The U.S. Supreme Court Adds Another Weapon Against Stockholder Class Actions

by Parker Poe Adams & Bernstein LLP

Things keep getting tougher for class action plaintiffs. You may recall that the Delaware Supreme Court recently held that fee-shifting provisions in a corporation’s bylaws are facially valid and enforceable against stockholder plaintiffs under Delaware corporate law. (See this Doug’s Note.) Now comes the U.S. Supreme Court’s decision in Halliburton v. Erica P. John Fund, Inc., which adds another defense against the proliferation of meritless stockholder class action litigation.

What was Halliburton about?

In a nutshell, the stockholder plaintiff filed a class action suit against Halliburton and one of its executives alleging that they had made misrepresentations designed to inflate Halliburton’s stock price. The case went back and forth between the U.S. District Court and the Fifth Circuit Court of Appeals over the issue of class certification. The arguments boiled down to:

  • Must the plaintiffs prove a causal connection between the alleged misrepresentations and the plaintiffs’ loss? (An affirmative answer would have overturned the Supreme Court’s 1988 Basic v. Levinson decision, which established the “fraud on the market” theory that allows the presumption of reliance by class action plaintiffs once the information is made public instead of establishing it for each class member individually), and
  • May Halliburton rebut the presumption of fraud on the market loss causation at the class certification stage by showing the absence of any impact on its stock price when the alleged misrepresentation became public knowledge?

What did Halliburton hold?

  • Basic’s fraud on the market theory remains the law of the land. Some observers were hoping the Court would reverse Basic on this point, thereby effectively ending meritless securities class action suits since class certification on a member-by-member basis would be virtually impossible. However, that was never a realistic possibility since, as Chief Justice Roberts noted in his opinion, “those concerns are more appropriately addressed to Congress.”

  • The Court did, however, reverse the Court of Appeals, and widely established precedent, by concluding that defendants may introduce evidence of the absence of “price impact” at the class certification stage of litigation, rather than after certification (when the damage is already done).

What does this mean for defendant companies?

Halliburton has given companies a new tool in their battles against meritless class action suits. Now, in order to make class certification more likely, plaintiffs are expected to be more targeted in the statements they identify as potentially misleading, which could shrink the scope, and therefore the impact, of what have become shotgun-style complaints. Also, the weakest cases may never be filed or, if filed, may settle more easily and for smaller amounts.


Although Halliburton was not a win-the-lottery decision for defendant companies, the odds against that result were extremely high to begin with. For now it’s enough that the drumbeat against strike lawsuits continues to sound from various locations, including the U.S. Supreme Court, and that progress is being made.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Parker Poe Adams & Bernstein LLP | Attorney Advertising

Written by:

Parker Poe Adams & Bernstein LLP

Parker Poe Adams & Bernstein LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.