The New York Law Journal reports today that "2nd Circuit Refuses to Rehear IPO Class Action Issue." The Second Circuit's opinion denying the petition for rehearing is available at this link. The following excerpt is of interest:
[O]ur ruling rejected class certification only of the class as certified by the District Court. Nothing in our decision precludes the Petitioners from returning to the District Court to seek certification of a more modest class, one as to which the Rule 23 criteria might be met, according to the standards we have outlined. District courts have ample discretion to consider (or to decline to consider) a revised class certification motion after an initial denial. [Citations.] ....
We do not think a district court’s authority to revise a class certification ruling requires a “without prejudice” reservation of authority, and we surely are not inviting Judge Scheindlin to certify a more limited class in the aftermath of our rejection of the broad class. Rather, we simply conclude that the Petitioners’ attempt to persuade us to revise our initial decision fails, and we leave it to the Petitioners in the first instance to seek whatever relief they deem appropriate from the District Court, which can be expected to give such a request full and fair consideration.
Slip op. at 5-7. The original opinion from December is In re Initial Public Offering Securities Litigation, 471 F.3d 24 (2d Cir. 2006). I presume that a petition for a writ of certiorari will be filed in the near future. There certainly are a lot of class-action-related developments in the federal appellate courts lately. We recently had the Enron decision (Regents v. Credit Suisse) from the Fifth Circuit, and also Dukes v. Wal-Mart from the Ninth Circuit. The interplay between these decisions is quite interesting. The Dukes v. Wal-Mart majority did not even mention In re IPO Securities, decided two months earlier, but instead continued to heavily rely on an earlier Second Circuit opinion, In re Visa Check/Mastermoney Antitrust Litig., 280 F.3d 124 (2d Cir. 2001), which In re IPO Securities all but overruled. All of these decisions address the extent to which merits determinations may be made at the class certification stage. In re Visa Check was a leading decision limiting such determinations, and the Ninth Circuit in Dukes v. Wal-Mart made its own position clear by citing Visa Check instead of IPO Securities. I'm just glad California law in this area is more settled. See Linder v. Thrifty Oil Co., 23 Cal.4th 429 (2000).