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, the lower courts have wrestled with the issue of whether or not the transactions at issue in a particular securities suit were sufficiently “domestic” to bring them under the U. However, as demonstrated in the Second Circuit’s July 7, 2017 decision in the securities case, the “domestic” transactions inquiry is relevant at the class certification stage as well. The case proceeded forward, and the claimants’ filed a motion for class certification. exchange, the noteholders are entitled under to assert their claims only if they can show they acquired their Notes in “domestic transactions.” In certifying two classes, one on behalf of those asserting Section 10b-5 claims and the other on behalf of those asserting Section 11 claims, Judge Rakoff limited both class definitions to “members who purchased Notes in domestic transactions.” The defendants sought to appeal the class certification ruling.

These inquiries mostly have taken place at the motion to dismiss phase. Following disclosures surrounding the investigations, investors launched a series of securities class action lawsuits in the U. The investors’ actions largely survived motions to dismiss (other than with respect to investors who purchased Petrobras securities on the Brazilian stock exchange), as discussed here.

Instead, the appellate court merely remanded the case for the district court to undertake the “robust predominance inquiry” the federal procedural rules require and that the appellate court had outlined.

Finally, the appellate court rejected that Petrobras defendants’ challenge to the district court’s finding that Plaintiffs were entitled to a presumption of reliance under the “fraud on the market” theory.

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This case will now return to the district court for Judge Rakoff to consider these questions. As the Proskauer Rose firm noted in its July 7, 2017 memo about the case, the Second Circuit’s decision “will likely increase plaintiffs’ burden of satisfying the predominance requirement in putative class actions involving transactions in non-U.The Petrobras defendants also argued that the district court erred in finding that the plaintiffs has successfully established a class-wide presumption of reliance under the “fraud on the market” theory.On July 7, 2017, in an opinion written by Eastern District of New York Judge Nicholas Garaufis (sitting by designation) for a unanimous three-judge panel, the Second Circuit affirmed in part and vacated in part Judge Rakoff’s class certification order, and remanded the case to the district court for further proceedings.The Second Circuit’s rejection of the Third Circuit’s requirement that in order to meet the ascertainability requirement a court must conclude that class membership is administratively feasible arguably further expands the split in the circuits on this issue.Whether or not this is or will become the kind of circuit split that will attract the interest of the U. Supreme Court probably depends on how significant it becomes in the determination of class certification issues.

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