10-4401-cv
In re American International Group, Inc. Securities Litigation




                                    UNITED STATES COURT OF APPEALS
                                          FOR THE SECOND CIRCUIT


                                                         August Term, 2011

                           (Argued: January 9, 2012                  Decided: August 13, 2012)

                                                      Docket No. 10-4401-cv


                IN RE AMERICAN INTERNATIONAL GROUP, INC. SECURITIES LITIGATION

OHIO PUBLIC EMPLOYEES RETIREMENT SYSTEM, STATE TEACHERS RETIREMENT SYSTEM
                 OF OHIO, OHIO POLICE AND FIRE PENSION FUND,

                                                                             Plaintiffs-Appellants,

                                                                 — v. —

     GENERAL REINSURANCE CORPORATION, RONALD E. FERGUSON, RICHARD NAPIER,
                             JOHN HOULDSWORTH,

                                                                             Defendants-Appellees.*


B e f o r e:

                                WINTER, KATZMANN, and LYNCH, Circuit Judges.

                                                       __________________

           Appeal from the district court’s denial of plaintiffs’ motion to certify a settlement

class. The court held that the class could not satisfy the predominance requirement of


           *
               The Clerk of Court is respectfully directed to amend the official caption as shown
above.
Federal Rule of Civil Procedure 23(b)(3) because the fraud-on-the-market presumption

does not apply to the class’s securities fraud claims. We hold that, under Amchem

Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997), a securities fraud class’s failure to

satisfy the fraud-on-the-market presumption primarily threatens class certification by

creating “intractable management problems” at trial. Because settlement eliminates the

need for a trial, a settlement class need not demonstrate that the fraud-on-the-market

presumption applies to its claims in order to satisfy the predominance requirement. We

therefore VACATE the district court’s class certification ruling, its grant of judgment on

the pleadings, and its grant of partial final judgment under Federal Rule of Civil

Procedure 54(b), and REMAND to the district court for further proceedings.



              THOMAS A. DUBBS, Labaton Sucharow LLP, New York, New York (Louis
                   Gottlieb, Labaton Sucharow LLP, New York, New York; Alan S.
                   Kopit, Hahn Loeser & Parks LLP, Cleveland, Ohio, on the brief), for
                   Plaintiffs-Appellants.

              GEORGE M. GARVEY, Munger, Tolles & Olson LLP, Los Angeles, California
                   (Peter L. Zimroth, Kerry A. Dziubek, Arnold & Porter LLP, New York,
                   New York), for Defendant-Appellee General Reinsurance Corporation.

              Frank J. Silvestri, Jr., Levett Rockwood P.C., Westport, Connecticut, for
                    Defendant-Appellee Richard Napier.

              Douglas Koff, Paul, Hastings, Janofsky & Walker LLP, New York, New York,
                    for Defendant-Appellee Ronald E. Ferguson.




                                             2
GERARD E. LYNCH, Circuit Judge:

       In this class action case, we face a rare joint appeal from a district court’s order.

After the parties arrived at a settlement agreement, the district court (Deborah A. Batts,

J.) denied plaintiffs’ motion to certify a settlement class. The court held that the class

could not satisfy the predominance requirement of Federal Rule of Civil Procedure

23(b)(3) because the fraud-on-the-market presumption does not apply to the class’s

securities fraud claims. We hold that, under Amchem Products, Inc. v. Windsor, 521 U.S.

591, 620 (1997), a securities fraud class’s failure to satisfy the fraud-on-the-market

presumption primarily threatens class certification by creating “intractable management

problems” at trial. Because settlement eliminates the need for trial, a settlement class

ordinarily need not demonstrate that the fraud-on-the-market presumption applies to its

claims in order to satisfy the predominance requirement. We therefore vacate the district

court’s class certification ruling, its grant of judgment on the pleadings, and its grant of

partial final judgment under Federal Rule of Civil Procedure 54(b), and remand this case

to the district court.

                                     BACKGROUND

       In October 2004, a number of securities fraud class actions were filed in the United

States District Court for the Southern District of New York against American

International Group, Inc. (“AIG”) and various other corporate and individual defendants,

including the General Reinsurance Corporation and its officers Ronald E. Ferguson,

Richard Napier, and John Houldsworth (collectively, “Gen Re” or “Gen Re Defendants”).

                                               3
On February 8, 2005, the district court consolidated those actions and appointed as lead

plaintiffs three Ohio public pension funds: the Ohio Public Employees Retirement

System, the State Teachers Retirement System of Ohio, and the Ohio Police and Fire

Pension Fund (collectively, the “Lead Plaintiffs”).1 Because the present appeal arises

from the efforts of the Lead Plaintiffs and Gen Re Defendants to obtain approval for their

proposed class settlement, we focus primarily on the course of the litigation between

them.2

         On December 15, 2006, Lead Plaintiffs filed the Consolidated Third Amended

Class Action Complaint (“Complaint”) on behalf of a putative class consisting of

investors who purchased AIG’s publicly traded securities between October 28, 1999, and

April 1, 2005. The Complaint alleges, in relevant part, that AIG and Gen Re violated

Rule 10b-5(a) and (c), promulgated under Section 10(b) of the Securities Exchange Act of

1934, 15 U.S.C. § 78j(b), by entering into a sham $500 million reinsurance transaction

designed to mislead the market and artificially increase AIG’s share price.

         In particular, the Complaint alleges that in late 2000 and early 2001 AIG and Gen

Re entered into a two-part transaction that allowed AIG to book a total of $500 million in


         1
         That order was entered by the Honorable Laura Taylor Swain, to whom the case was
originally assigned.
         2
         For a broader overview of the various parties to and allegations in the AIG securities
litigation, see In re American International Group, Inc. Securities Litigation, 265 F.R.D. 157
(S.D.N.Y. 2010). Earlier this year, the district court granted final approval of a $725 million
class settlement resolving claims against AIG. See In re Am. Int’l Grp., Inc. Sec. Litig., No.
04-cv-8141, 2012 WL 345509 (S.D.N.Y. Feb. 2, 2012).

                                              4
premiums revenues and $500 million of claims reserves to its balance sheet in the fourth

quarter of 2000 and first quarter of 2001. The terms of the transaction appeared to require

AIG to make an additional $100 million of claims payments in the event that additional

losses developed. According to the Complaint, however, the additional $100 million of

risk was a fiction, having been added by the parties to give the appearance that risk was

being transferred in the transaction. In reality, AIG was only obligated to pay a total

amount of $500 million in losses, which was equal to the amount of premiums revenues

that AIG was receiving from Gen Re. The Complaint alleges that the transaction was

therefore not a bona fide reinsurance transaction, which would have required that AIG

assume actual insurance risk, but was instead a transaction that would only look like

reinsurance for AIG’s accounting purposes. The Complaint further alleges that Gen Re

did not treat the transaction as reinsurance in its own accounting, but knew that AIG

intended to account for the transaction improperly as reinsurance. In exchange for its

participation in the transaction, Gen Re received an undisclosed $5.2 million side

payment.

       The sham reinsurance transaction came, according to the Complaint, at a time

when investors were concerned about recent reductions in AIG’s loss reserves. The

transaction had a significant impact on AIG’s financial statements, allowing it to report

added loss reserves of $106 million for the fourth quarter of 2000 and $63 million for the

first quarter of 2001. As the Complaint noted, the increased reserves were highlighted in

a press release issued by AIG and received favorably by investment analysts.

                                             5
       The Complaint further alleges that the true nature of the transaction remained

hidden from public view until late 2004 and early 2005, when the Securities and

Exchange Commission and the New York Attorney General began to investigate AIG’s

dealings with Gen Re. Following a series of news reports detailing the results of the

investigation, AIG publicly acknowledged on March 30, 2005, that it had improperly

treated the Gen Re transaction as reinsurance for accounting purposes. In the wake of

that announcement, as well as of the disclosure of numerous other serious accounting

improprieties at AIG, the company’s stock price dropped substantially. On May 31,

2005, AIG issued a dramatic restatement of its earnings for the previous four years,

reducing its reported pre-tax income for that period by more than $3.9 billion.

       Just over a year after filing the Complaint, Lead Plaintiffs moved, on February 20,

2008, to certify a class for litigation of its claims against all of the defendants, including

the Gen Re Defendants. To demonstrate the element of reliance in their Section 10(b)

claim, the Lead Plaintiffs invoked the fraud-on-the-market doctrine of Basic Inc. v.

Levinson, 485 U.S. 224 (1988).3 On May 29, 2008, before the district court had ruled on


       3
         The elements of a Section 10(b) securities fraud claim are “(1) a material
misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the
misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the
misrepresentation or omission; (5) economic loss; and (6) loss causation.” Erica P. John
Fund, Inc. v. Halliburton Co., 131 S. Ct. 2179, 2184 (2011) (internal quotation marks
omitted). The fraud-on-the-market theory “involves two rebuttable presumptions that permit
a finding of class-wide reliance with respect to a Rule 10b-5 claim: ‘that (1)
misrepresentations by an issuer affect the price of securities traded in the open market, and
(2) investors rely on the market price of securities as an accurate measure of their intrinsic
value.’” Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196,

                                               6
the class certification motion, the Gen Re Defendants moved for judgment on the

pleadings based on a then-recent Supreme Court case, Stoneridge Investment Partners,

LLC v. Scientific-Atlanta, Inc., 552 U.S. 148 (2008), which addressed the availability of

the fraud-on-the-market doctrine in circumstances similar to those in the present case.

       The Stoneridge plaintiffs had alleged that Charter Communications, Inc., a cable

operator, arranged a transaction with two of its suppliers of digital cable set top boxes in

which Charter overpaid for each set top box by $20 and the suppliers returned the

overpayment by purchasing advertising from Charter at above-market rates. Id. at 154-

55. According to the plaintiffs, the transaction “had no economic substance,” and existed

solely to “enable Charter to fool its auditor into approving a financial statement showing

it met projected revenues and operating cash flow numbers.” Id. at 154. The suppliers

properly accounted for these transactions in their own financial statements, and were not

involved in preparing Charter’s fraudulent financial statements. Id. at 155. Nonetheless,

the plaintiffs alleged that the suppliers were liable under Section 10(b) of the Exchange

Act and Rule 10b-5 because the suppliers knew that Charter intended to use the

transactions to issue misleading financial statements. Id.




199 n.4 (2d Cir. 2008) (quoting Hevesi v. Citigroup Inc., 366 F.3d 70, 77 (2d Cir. 2004)).
The theory is “‘based on the hypothesis that, in an open and developed securities market, the
price of a company’s stock is determined by the available material information regarding the
company and its business’ and that ‘[m]isleading statements will therefore defraud
purchasers of stock even if the purchasers do not directly rely on the misstatements.’” Id.
(quoting Basic, 485 U.S. at 241-42).

                                              7
       The Supreme Court held that the Stoneridge plaintiffs’ claim failed because the

plaintiffs had not adequately alleged reliance under Section 10(b). Id. at 159.4

According to the Court, the fraud-on-the-market presumption of reliance did not apply to

the suppliers’ conduct because “their deceptive acts were not communicated to the

public” and “[n]o member of the investment public had knowledge, either actual or

presumed, of [the suppliers’] deceptive acts during the relevant times.” Id. at 159.5 As a

result, the plaintiffs could not establish their reliance upon the suppliers’ actions “except

in an indirect chain that we find too remote for liability.” Id. The Court also rejected the

plaintiffs’ “scheme liability” argument, which suggested that the market had relied on the

suppliers’ actions because the suppliers’ conduct was essential to Charter’s ability to

make its deceptive statements. Id. at 159-160.6

       4
          As the Court noted, Section 10(b) liability does not extend to aiders and abettors.
Stoneridge, 552 U.S. at 157 (citing Central Bank of Denver, N.A. v. First Interstate Bank of
Denver, N.A., 511 U.S. 164 (1994)). Therefore, “[t]he conduct of a secondary actor must
satisfy each of the elements” of a Section 10(b) claim to expose the secondary actor to
liability. Id. at 158.
       5
        In addition, the Court noted that the presumption did not apply because suppliers
“had no duty to disclose” the transaction to investors. Id. at 159.
       6
         According to the Court, the scheme liability argument effectively suggested that “in
an efficient market investors rely not only upon the public statements relating to a security
but also upon the transactions those statements reflect.” Id. at 160. The Court refused to
adopt this broad concept of reliance, observing that it would cause Section 10(b) to “reach
the whole marketplace in which the issuing company does business.” Id.; see also id. at 161
(“Were [Section 10(b)] to be extended to the practices described here . . . there would be a
risk that the federal power would be used to invite litigation beyond the immediate sphere
of securities litigation and in areas already governed by functioning and effective state-law
guarantees.”). The Court also noted that the private right of action under Section 10(b) had
been implied through judicial interpretation, and suggested that that fact “caution[ed] against

                                              8
        In their motion for judgment on the pleadings, the Gen Re Defendants argued that,

under Stoneridge, the Lead Plaintiffs failed to state a Section 10(b) claim against Gen Re

because Gen Re made no public statements about the sham reinsurance transaction. The

Lead Plaintiffs opposed the motion, arguing, among other things, that their claims against

Gen Re survived Stoneridge because key details about the sham transaction – including

Gen Re’s participation in it and the amount of loss reserves transferred – were disclosed

to the market by AIG in state regulatory filings shortly after the transaction was

consummated. In these circumstances, Lead Plaintiffs argued, AIG’s investors can be

presumed, through the fraud-on-the-market doctrine, to have relied on Gen Re’s

deceptive acts. Thus, the central dispute between the parties was whether Stoneridge bars

a Section 10(b) claim against a counterparty to a deceptive transaction with an issuer of

stock where the existence of the transaction and the counterparty’s participation in it is

disclosed to the market by the issuer, but not by the counterparty.

        The district court did not immediately rule on this question. On September 23,

2008, Gen Re filed its opposition to Lead Plaintiffs’ motion for class certification. At

around the same time, in light of the “uncertainty with respect to how the District Court,

and this Court, would rule on the Stoneridge issue,” Gen Re and the Lead Plaintiffs

entered into settlement discussions. Joint Brief of Appellants and Appellees (“Joint Br.”)

at 5.


its expansion.” Id. at 165. Accordingly, the plaintiffs’ allegations failed to satisfy the
element of reliance, and their Section 10(b) claim failed. Id. at 167.

                                              9
       On November 3, 2008, the parties jointly requested that the district court hold Gen

Re’s motion for judgment on the pleadings in abeyance so that they could participate in

mediation. The court stayed decision of the motion until February 6, 2009.7 On February

4, 2009, Lead Plaintiffs and Gen Re (collectively, “the Settling Parties”) reported to the

district court that they had reached an agreement in principle on terms for a settlement.

At their request, the district court granted a further stay until March 20, 2009. Thereafter,

the Settling Parties agreed upon terms for a $72 million settlement, and on February 25,

2009, they submitted to the district court a signed settlement agreement and an

accompanying motion for preliminary settlement approval. The district court

subsequently granted several additional stays during 2009, the last of which suspended

the Gen Re proceedings indefinitely.

       While the Gen Re litigation was stayed, the district court heard several days of

evidence and argument on Lead Plaintiffs’ pending motion for class certification. In light

of the settlement, the Gen Re Defendants did not participate in those proceedings. On

February 22, 2010, the district court issued a lengthy class certification decision, which,

in relevant part, denied Lead Plaintiffs’ class certification motion with respect to the

claims against Gen Re. See In re Am. Int’l Grp., Inc. Sec. Litig., 265 F.R.D. 157

(S.D.N.Y. 2010). The court invoked our decision in In re Salomon Analyst Metromedia



       7
        The stay was granted by the Honorable John E. Sprizzo, to whom the case had been
reassigned. Judge Sprizzo died in December 2008, and the consolidated actions were
reassigned to Judge Batts.

                                             10
Litigation, which recognized that, under Stoneridge, a Section 10(b) plaintiff must

demonstrate that a defendant’s “conduct ‘satisf[ies] each of the elements or preconditions

for liability’” and that the fraud-on-the-market presumption does not apply to a defendant

whose “‘deceptive acts were not communicated to the public.’” 544 F.3d 474, 481 (2d

Cir. 2008) (quoting Stoneridge, 552 U.S. at 158, 159). The district court then held:

               Because Lead Plaintiffs have not established or even pled that
               the Gen Re Defendants made any public misstatement or
               omission with regard to AIG, the fraud-on-the-market
               presumption does not apply to claims against these Defendants,
               and individual issues of reliance predominate over common
               issues for the claims against the Gen Re Defendants regarding
               AIG stock. Accordingly, the Court does not certify the class of
               claims against the Gen Re Defendants.

Id. at 175. On March 4, 2010, the court issued a one-sentence order denying Lead

Plaintiffs’ motion for preliminary approval of the settlement “as moot” in light of its class

certification ruling.

       Thereafter, the Settling Parties continued to seek approval of the Gen Re

settlement. On June 23, 2010, they jointly moved for preliminary approval of the

settlement, arguing that even if certification of a litigation class was inappropriate, the

court could – and should – nonetheless certify a settlement class. Relying on the Supreme

Court’s decision in Amchem, 521 U.S. at 619-20, the Settling Parties argued that the

individual reliance issues that led the court to deny class certification would not pose a

problem of trial manageability because the very existence of the settlement eliminated the

need for a trial.


                                              11
       On September 10, 2010, the court issued an order (“Dismissal Order”) denying the

preliminary approval motion and granting Gen Re’s long-dormant motion for judgment

on the pleadings. On the class certification question, the court rejected the Settling

Parties’ “attempts to distinguish between settlement and litigation classes based upon the

issue of manageability at trial.” Dismissal Order at 3. According to the court, the parties’

trial manageability argument was beside the point, because the Lead Plaintiffs’ claim

against Gen Re still “fail[ed] to meet the predominance requirement” of Federal Rule of

Civil Procedure 23(b)(3). Id. As support for this conclusion, the court again invoked our

decision in In re Salomon, noting its “teaching that ‘a successful rebuttal’ of proof of the

elements of the fraud-on-the-market presumption ‘defeats certification by defeating the

Rule 23(b)(3) predominance requirement.’” Id. (quoting In re Salomon, 544 F.3d at 485).

The court found that neither we nor the Supreme Court have “state[d] that a court may

dispense with the requirement of proving the application of the fraud-on-the-market

presumption when certifying a class for settlement purposes.” Dismissal Order at 3-4

(citing Basic, 485 U.S. 224; In re Salomon, 544 F.3d 474; In re Initial Pub. Offerings

Sec. Litig., 471 F.3d 24 (2d Cir. 2006) (“In re IPO”)). Then, turning to Gen Re’s motion

for judgment on the pleadings, the district court again held that Stoneridge barred Lead

Plaintiffs’ Section 10(b) claim because “none of the Gen Re Defendants made any public

statement or took any action regarding AIG stock” that could be relied upon. Id. at 5-6.

The court therefore dismissed the claim against Gen Re, and entered a partial final

judgment in favor of Gen Re pursuant to Federal Rule of Civil Procedure 54(b).

                                             12
       Lead Plaintiffs filed a timely notice of appeal. The Settling Parties then jointly

moved to bifurcate this appeal, so that the issue of the propriety of certifying a settlement

class (about which the Settling Parties agree) could be addressed before the merits issues

(about which they disagree). We granted the motion, and the Settling Parties filed a joint

brief that argues that the district court erred by declining to certify a settlement class.

                                        DISCUSSION

I.     Standard of Review

       We review both a district court’s ultimate decision on class certification and its

rulings as to individual Rule 23 requirements for abuse of discretion. In re IPO, 471 F.3d

at 32; Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010). When reviewing a denial

of class certification, we accord a district court noticeably less deference than when we

review a grant of class certification. In re Salomon, 544 F.3d at 480. To the extent a

district court’s ruling on an individual Rule 23 requirement involves an issue of law, our

review is de novo. Brown v. Kelly, 609 F.3d 467, 475 (2d Cir. 2010).

II.    Class Certification Requirements

       “Rule 23 does not set forth a mere pleading standard.” Wal-Mart Stores, Inc. v.

Dukes, 131 S. Ct. 2541, 2551 (2011). The party seeking “class certification must

affirmatively demonstrate . . . compliance with the Rule,” and a district court may only

certify a class if it “‘is satisfied, after a rigorous analysis,’” that the requirements of Rule

23 are met. Id. (quoting Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161

(1982)); see also In re IPO, 471 F.3d at 41 (holding that a district court must make a

                                               13
“definitive assessment of Rule 23 requirements” and “resolve[] factual disputes relevant

to each Rule 23 requirement”); Myers, 624 F.3d at 547 (“The party seeking class

certification bears the burden of establishing by a preponderance of the evidence that each

of Rule 23’s requirements has been met.”). As the Supreme Court has recently noted,

“[f]requently that ‘rigorous analysis’ will entail some overlap with the merits of the

plaintiff’s underlying claim. That cannot be helped.” Wal-Mart Stores, 131 S. Ct. at

2551; see also In re IPO, 471 F.3d at 41 (holding that “the obligation to make [Rule 23]

determinations is not lessened by overlap between a Rule 23 requirement and a merits

issue, even a merits issue that is identical with a Rule 23 requirement”).

       Before approving a class settlement agreement, a district court must first determine

whether the requirements for class certification in Rule 23(a) and (b) have been satisfied.

See In re Pet Food Prods. Liab. Litig., 629 F.3d 333, 341 (3d Cir. 2010). Thus, the court

must assess whether the proposed class satisfies Rule 23(a)’s four threshold requirements:

(1) numerosity (“the class is so numerous that joinder of all members is impracticable”),

(2) commonality (“there are questions of law or fact common to the class”), (3) typicality

(“the claims or defenses of the representative parties are typical of the claims or defenses

of the class”), and (4) adequacy of representation (“the representative parties will fairly

and adequately protect the interests of the class”). Fed. R. Civ. P. 23(a). The district

court must also determine whether the action can be maintained under Rule 23(b)(1), (2),

or (3). In this case, the Lead Plaintiffs seek to certify a class under Rule 23(b)(3), which

permits certification where “the court finds that the questions of law or fact common to

                                             14
class members predominate over any questions affecting only individual members, and

that a class action is superior to other available methods for fairly and efficiently

adjudicating the controversy.” If the class satisfies the requirements of Rules 23(a) and

(b), then the district court must separately evaluate whether the settlement agreement is

“fair, reasonable, and adequate” under Rule 23(e).

       In its landmark decision in Amchem, the Supreme Court addressed whether a class

of both current and future asbestos claimants could be certified for the purpose of entering

into a global settlement of virtually all asbestos claims. 521 U.S. at 597, 602. The Court

noted that the settlement class consisted of “[u]ntold numbers of individuals,” including

both plaintiffs who currently manifested asbestos-related injuries and those who had only

been exposed to asbestos-containing products. Id. at 602-03. The Court held that this

“sprawling” class failed both Rule 23(b)(3)’s predominance requirement and Rule

23(a)(4)’s adequacy of representation requirement, and accordingly refused to permit the

certification of the class. Id. at 622-28.

       In the course of its opinion, the Court recognized that “the ‘settlement only’ class

has become a stock device” in modern class action litigation, and noted that it had

“granted review to decide the role settlement may play, under existing Rule 23, in

determining the propriety of class certification.” Id. at 618, 619. The Court squarely held

that “[s]ettlement is relevant to a class certification.” Id. at 619. According to the Court,

a district court “[c]onfronted with a request for settlement-only class certification . . .

need not inquire whether the case, if tried, would present intractable management

                                               15
problems, for the proposal is that there be no trial.” Id. at 620 (citing Fed R. Civ. P.

23(b)(3)(D)). At the same time, however, the Court stressed that in the settlement context

“other specifications of [Rule 23] – those designed to protect absentees by blocking

unwarranted or overbroad class definitions – demand undiluted, even heightened,

attention.” Id. As Judge Scirica has explained:

              [S]ome inquiries essential to litigation class certification are no
              longer problematic in the settlement context. A key question in
              a litigation class action is manageability—how the case will or
              can be tried, and whether there are questions of fact or law that
              are capable of common proof. But the settlement class presents
              no management problems because the case will not be tried.
              Conversely, other inquiries assume heightened importance and
              heightened scrutiny because of the danger of conflicts of
              interest, collusion, and unfair allocation.

Sullivan v. DB Invs., Inc., 667 F.3d 273, 335 (3d Cir. 2011) (Scirica, J., concurring)

(citing Amchem, 521 U.S. at 620); see also In re Gen. Motors Corp. Pick-Up Truck Fuel

Tank Products Liab. Litig., 55 F.3d 768, 795 (3d Cir. 1995) (identifying “collusion,

inadequate prosecution, and attorney inexperience [as] the paramount concerns in pre-

certification settlements”). Thus, in the context of settlement, Rules 23(a) and (b)

continue to serve the purpose of “focus[ing] court attention on whether a proposed class

has sufficient unity so that absent members can fairly be bound by decisions of class

representatives.” Amchem, 521 U.S. at 621.8


       8
        Accordingly, the Amchem Court cautioned that the fairness inquiry under Rule 23(e)
does not supplant the Rule 23(a) and (b) requirements, but instead “function[s] as an
additional requirement.” Id.; see also Ortiz v. Fibreboard Corp., 527 U.S. 815, 858 (1999)
(“Rule 23 requires protections under subdivisions (a) and (b) against inequity and potential

                                              16
       As noted above, the Lead Plaintiffs seek to certify a Rule 23(b)(3) class, and

therefore must show that common questions of law or fact “predominate” over purely

individual questions and that a class action is “superior” to other methods of resolving the

dispute. Fed. R. Civ. P. 23(b)(3). As Amchem observed, Rule 23(b)(3) was developed

“for situations in which class-action treatment is not as clearly called for as it is in Rule

23(b)(1) and (b)(2), [but] may nevertheless be convenient and desirable.” 521 U.S. at 615

(internal quotation marks omitted). Rule 23(b)(3) specifies that the “matters pertinent” to

the predominance and superiority findings include:

              (A) the class members’ interests in individually controlling the
              prosecution or defense of separate actions; (B) the extent and
              nature of any litigation concerning the controversy already
              begun by or against class members; (C) the desirability or
              undesirability of concentrating the litigation of the claims in the
              particular forum; and (D) the likely difficulties in managing a
              class action.

Fed. R. Civ. P. 23(b)(3).

       Rule 23(b)(3)’s predominance requirement tests “whether proposed classes are

sufficiently cohesive to warrant adjudication by representation.” Amchem, 521 U.S. at

623. The requirement’s purpose is to “ensure[] that the class will be certified only when

it would ‘achieve economies of time, effort, and expense, and promote . . . uniformity of

decision as to persons similarly situated, without sacrificing procedural fairness or



inequity at the precertification stage, quite independently of the required determination at
postcertification fairness review under subdivision (e) that any settlement is fair in an
overriding sense.”).

                                              17
bringing about other undesirable results.’” Cordes & Co. Fin. Servs., Inc. v. A.G.

Edwards & Sons, Inc., 502 F.3d 91, 104 (2d Cir. 2007) (quoting Amchem, 521 U.S. at

615). While predominance may be difficult to demonstrate in mass tort cases, such as

Amchem, in which the “individual stakes are high and disparities among class members

great,” it is a “test readily met in certain cases alleging consumer or securities fraud or

violations of the antitrust laws.” Amchem, 521 U.S. at 625.

       When evaluating litigation classes, we have held that the predominance

“requirement is satisfied ‘if resolution of some of the legal or factual questions that

qualify each class member’s case as a genuine controversy can be achieved through

generalized proof, and if these particular issues are more substantial than the issues

subject only to individualized proof.’” Myers, 624 F.3d at 547 (quoting Moore v.

PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002)); see also In re Salomon, 544

F.3d at 480 (“To meet the [predominance] requirement, a plaintiff must show that those

issues in the proposed action that are subject to generalized proof outweigh those issues

that are subject to individualized proof.” (internal quotation marks omitted)); In re Nassau

County Strip Search Cases, 461 F.3d 219, 227 (2d Cir. 2006) (“[A]n issue is common to

the class when it is susceptible to generalized, class-wide proof.”).

       In the context of a settlement class, concerns about whether individual issues

would create “intractable management problems” at trial drop out of the predominance

analysis because “the proposal is that there be no trial.” Amchem, 521 U.S. at 620.

However, the certifying court must still determine whether the “the legal or factual

                                              18
questions that qualify each class member’s case as a genuine controversy” are sufficiently

similar as to yield a cohesive class. Id. at 623; see also Sullivan, 667 F.3d at 338 (Scirica,

J., concurring) (“Issues of predominance and fairness do not undermine this settlement.

All plaintiffs here claim injury that by reason of defendants’ conduct . . . has caused a

common and measurable form of economic damage. . . . All claims arise out of the same

course of defendants’ conduct; all share a common nucleus of operative fact, supplying

the necessary cohesion.”). The focus of this analysis is on “questions that preexist any

settlement,” and not on whether all class members have “a common interest in a fair

compromise” of their claims. Amchem, 521 U.S. at 623.

       While the predominance inquiry will sometimes be easier to satisfy in the

settlement context, other requirements of Rule 23 “designed to protect absentees by

blocking unwarranted or overbroad class definitions,” such as the Rule 23(a)(4)

requirement of adequate representation, will “demand undiluted, even heightened,

attention.” Id. at 620; see also In re Prudential Ins. Co. Am. Sales Practice Litig. Agent

Actions, 148 F.3d 283, 308 (3d Cir. 1998) (suggesting that “the key to Amchem appears

to be the careful inquiry into adequacy of representation”); In re Literary Works in Elec.

Databases Copyright Litig., 654 F.3d 242, 250-55 (2d Cir. 2011) (vacating certification of

settlement class of copyright owners because of conflicts between different categories of

class members).




                                             19
III.   Certification of the Gen Re Settlement Class

       The district court held that it could not certify a settlement class because

Stoneridge barred plaintiffs from invoking the fraud-on-the-market presumption against

Gen Re. The Settling Parties note that the proposed class in this securities case is far

more cohesive than the sprawling asbestos class in Amchem, and argue that the district

court erred by denying their joint motion for preliminary approval of the Gen Re

settlement because, “[w]hether or not a class could properly have been certified . . . for

purposes of litigation, such a class could have been – and should have been – certified

conditionally for settlement purposes.” Joint Br. at 10, 23.

       Even assuming that the district court correctly applied Stoneridge – an issue we do

not reach9 – the court erred in holding that a Section 10(b) settlement class must satisfy

the fraud-on-the-market presumption in order to demonstrate predominance. In the

context of a litigation class, the fraud-on-the-market presumption spares the plaintiff class

from the extremely laborious – and often impossible – task of proving at trial that each

individual plaintiff was aware of and specifically relied upon the defendant’s false



       9
          Thus, we do not consider whether the Lead Plaintiffs’ arguments are consistent with
Pacific Investment Management Co. LLC v. Mayer Brown LLP, 603 F.3d 144 (2d Cir.
2010), a decision construing and applying Stoneridge that we issued after the parties in this
case agreed to the settlement. We note, however, that Lead Plaintiffs’ arguments seeking to
distinguish Stoneridge do not strike us as frivolous, and apparently did not appear so to the
Gen Re Defendants, who were willing, after Stoneridge was decided, to agree to a settlement
worth $72 million. It is also, of course, not unheard of for federal courts of appeals or for the
Supreme Court to reverse seemingly-controlling prior decisions, and parties may well decide
to settle to the avoid the risk of such changes in the law.

                                               20
statement. See Basic, 485 U.S. at 245 (noting that presumptions such as the fraud-on-the-

market presumption “serve to assist courts in managing circumstances in which direct

proof . . . is rendered difficult”); Hevesi, 366 F.3d at 78 (“To the extent that members of a

plaintiff class of securities purchasers can invoke the Basic presumption by alleging fraud

on the market, they need not prove individual reliance on alleged misrepresentations by

an issuer. By contrast, if plaintiffs are not entitled to the Basic presumption because they

cannot plead fraud on the market, reliance must be proved separately as to each class

member . . .”).

       Therefore, a litigation class’s failure to qualify for Basic presumption typically

renders trial unmanageable, precluding a finding that common issues predominate. See

Basic, 485 U.S. at 242 (“Requiring proof of individualized reliance from each member of

the proposed plaintiff class effectively would have prevented respondents from

proceeding with a class action, since individual issues then would have overwhelmed the

common ones.”). By contrast, with a settlement class, the manageability concerns posed

by numerous individual questions of reliance disappear. See Amchem, 521 U.S. at 620.

       The district court suggested that our decision in In re Salomon, which involved a

litigation class, bars class certification in Section 10(b) actions when the fraud-on-the-

market presumption does not apply. In In re Salomon, we recognized that “a district court

[must] make a ‘definitive assessment’ that the Rule 23(b)(3) predominance requirement

has been met.” 544 F.3d at 485 (quoting In re IPO, 471 F.3d at 41). We further stated

that in a Section 10(b) case “[t]his assessment cannot be made without determining

                                             21
whether defendants can successfully rebut the fraud-on-the-market presumption,” and

noted that, under Basic, “a successful rebuttal” of the fraud-on-the-market presumption

“defeat[s] the Rule 23(b)(3) predominance requirement.” Id. (emphasis omitted) (citing

Basic, 485 U.S. 249 n.29). Accordingly, we held that a district court “must permit

defendants to present their rebuttal arguments before certifying a class.” Id. (internal

quotation marks and ellipsis omitted).10

       As noted, however, In re Salomon involved a litigation class, not a settlement

class, see 544 F.3d at 479-80, and nowhere in that decision did we suggest that a Section

10(b) settlement class cannot be certified unless the fraud-on-the-market presumption

applies to plaintiffs’ claims. Indeed, our emphasis in In re Salomon was on permitting

defendants the opportunity to “successfully rebut” the presumption prior to certifying the

class. Id. at 485. In the context of a litigation class, postponing analysis of the



       10
          We note that the Supreme Court has recently granted certiorari in Amgen Inc. v.
Connnecticut Retirement Plans and Trust Funds, No. 11-1085, 2012 WL 692881 (June 11,
2012). The two questions presented by the petition for certiorari seek resolution of a split
among the circuits regarding whether (1) in Section 10(b) misrepresentation cases district
courts must require proof of materiality before certifying a plaintiff class based on the fraud-
on-the-market theory, and (2) whether, in such cases, district courts must permit defendants
to present evidence rebutting the applicability of the fraud-on-the-market theory before
certifying a plaintiff class based upon that theory. See Petition for a Writ of Certiorari,
Amgen Inc. v. Connnecticut Retirement Plans and Trust Funds, No. 11-1085, 2012 WL
707042, *i (March 1, 2012); see also id. at *8-13 (discussing circuit split on these questions,
and noting that our decision in In re Salomon requires that, at the class certification stage,
plaintiffs present proof of a material misrepresentation and defendants have an opportunity
to rebut the fraud-on-the-market presumption). The two questions in Amgen arise from
Section 10(b) cases addressing the certification standards for litigation classes, not settlement
classes, and are thus not at issue in this appeal.

                                               22
defendant’s rebuttal arguments until after certification is inappropriate because the

rebuttal could demonstrate that individual reliance issues would render a trial

unmanageable, thereby defeating the predominance requirement. However, as noted

above, those manageability concerns do not stand in the way of certifying a settlement

class.

         The district court also appears to have viewed manageability and predominance as

two independent inquiries under Rule 23(b)(3). See Dismissal Order at 3-4. However,

the plain text of Rule 23(b)(3) states that one of the “matters pertinent” to a finding of

predominance is “the likely difficulties in managing a class action.” Fed. R. Civ. P.

23(b)(3)(D); see also Amchem, 521 U.S. at 615 (noting that manageability is one of the

four considerations in the “nonexhaustive list of factors pertinent to a court’s close look at

the predominance and superiority criteria” (internal quotation marks omitted)); In re IPO,

226 F.R.D. 186, 195 n.51 (S.D.N.Y. 2005) (“[A]lthough litigants frequently conceive of

‘predominance’ and ‘manageability’ as separate requirements of Rule 23(b)(3), they are

not.”). Thus, the existence of a settlement that eliminates manageability problems can

alter the outcome of the predominance analysis. See in re IPO, 226 F.R.D. at 195 n.51

(noting that “[i]n this case, the removal of [the manageability] factor from consideration

alleviates the predominance defect”).

         We now clarify that a Section 10(b) settlement class’s failure to satisfy the fraud-

on-the-market presumption does not necessarily preclude a finding of predominance.

Where a Section 10(b) settlement class would otherwise satisfy the predominance

                                               23
requirement, the fact that the plaintiff class is unable to invoke the presumption, without

more, is no obstacle to certification. Because the only obstacle to a finding of

predominance identified by the district court was its conclusion that Stoneridge barred the

plaintiff class from invoking the fraud-on-the-market presumption, we will vacate its

class certification ruling. We leave it to the district court on remand to determine,

consistent with this opinion, whether class certification under Rule 23 is warranted, or

whether there are other obstacles to class certification that have not yet been identified in

the record.

       On remand, the district court should pay particular attention to Amchem’s

guidance that in the settlement context Rule 23’s requirements “designed to protect

absentees by blocking unwarranted or overbroad class definitions . . . demand undiluted,

even heightened, attention.” 521 U.S. at 620. On the record before us, it is not clear, for

example, whether any members of the class may have viable state law claims that would

be released by the settlement, and whether variations in state law might cause class

members’ interests to diverge. Cf. Sullivan, 667 F.3d at 302-03 (analyzing arguments by

objectors that “state law variations undermine a finding of predominance”). Because the

Gen Re class has not previously been certified, the district court has not yet had the

opportunity to hear from potential objectors, who might be able to raise these or other

concerns as appropriate. See Fed. R. Civ. P. 23(c)(2)(B) & (e)(5) (requiring that

members of a Rule 23(b)(3) class receive notice upon the class’s certification and

permitting any class member to object to a proposed class settlement); see also In re

                                             24
Literary Works, 654 F.3d at 249-50 (analyzing objectors’ arguments that a settlement

violated Rule 23(a)(4)’s adequacy of representation requirement because of conflicts of

interests between those class members with lucrative claims and those with lower-value

claims).

       In addition, we note that there may be circumstances in which it will be

appropriate for a district court to determine, in its analysis of class certification, whether

the fraud-on-the-market presumption applies to the claims of a settlement class. For

example, if there appear to be conflicts within the class, with some members who could

satisfy the presumption and others who cannot, a district court may need to address the

applicability of the presumption in order to make findings with respect to adequacy of

representation or predominance, or to evaluate whether subclasses are necessary. See

Fed. R. Civ. P. 23(c)(5) (permitting the division of a class into subclasses); see also In re

Literary Works, 654 F.3d at 251-55 (discussing circumstances under which the creation

of subclasses may be necessary to remedy fundamental conflicts of interest within a

class). The district court in this case did not suggest that such conflicts exist in the

proposed class, and we are aware of none. Nonetheless, should such conflicts – or other

questions regarding the scope of the proposed class – be brought to the court’s attention,

it may address the fraud-on-the-market presumption as necessary.

       Because we vacate the district court’s class certification ruling, we will also vacate

its order granting judgment on the pleadings to Gen Re and its grant of partial final

judgment to Gen Re under Federal Rule of Civil Procedure 54(b). Defendants in class

                                              25
action suits are entitled to settle claims pending against them on a class-wide basis even if

a court believes that those claims may be meritless, provided that the class is properly

certified under Rules 23(a) and (b) and the settlement is fair under Rule 23(e). See

Sullivan, 667 F.3d at 310 (“[W]ere we to mandate that a class include only those alleging

‘colorable’ claims, we would effectively rule out the ability of a defendant to achieve

‘global peace’ by obtaining releases from all those who might wish to assert claims,

meritorious or not. We need not take judicial notice of the fact that plaintiffs with

non-viable claims do nonetheless commence legal action.”).

       Finally, we emphasize that our order vacating the district court’s class certification

order should not be taken as an endorsement of the fairness of the proposed settlement –

an issue we leave to the district court to address in the first instance in the event that it

determines that class certification is appropriate.

                                       CONCLUSION

       For the reasons stated above, we VACATE the district court’s (1) class

certification order with respect to the Gen Re class; (2) its order granting Gen Re

judgment on the pleadings; and (3) its grant of partial final judgment to Gen Re under

Rule 54(b). We further REMAND this case to the district court with instructions that it

conduct further proceedings not inconsistent with this opinion.




                                               26
