The court declined to certify the subclass covering the vast majority of the proposed class period and most allegations.
Retained by Sullivan & Cromwell
This ruling follows a prior denial by Judge Keith P. Ellison of the U.S. District Court for the Southern District of Texas of a proposed two-and-a-half-year investor class covering over twenty alleged misrepresentations. In the earlier ruling, the court cited the U.S. Supreme Court’s decision in Comcast v. Behrend, noted the plaintiffs’ failure to establish that damages could be measured as a class consistent with their theories of liability, and invited the plaintiffs to re-urge their motion for certification. The plaintiffs then substantially revised their motion for class certification, among other things, proposing to divide the class into two subclasses.
In a ruling on the new motion, the court declined to certify the subclass covering the vast majority of the proposed class period and most allegations. The remaining subclass covers just thirty-three days and four alleged misrepresentations. The court noted having been “substantially aided in this inquiry by the efforts of parties’ counsel and experts.” For the remaining portion of the case, the judge identified concerns with the methods employed by the plaintiffs’ expert.
BP counsel Sullivan & Cromwell retained Cornerstone Research and Professor René M. Stulz of The Ohio State University in the context of both motions for class certification. Professor Stulz filed expert declarations at each stage.
In declining to certify the larger of the proposed subclasses, the court cited the findings of Professor Stulz and noted that the methodology employed by the plaintiffs “injects individualized inquiries into what is supposed to be a classwide model of recovery” and is “antithetical to the ‘fraud-on-the-market’ theory.”