The U.S. Supreme Court will hear oral argument today at 10:00 a.m. Eastern in Erica P. John Fund, Inc. v. Halliburton Co., no. 09-1403.
Transcripts of U.S. Supreme Court arguments are generally available within hours after the argument takes place. When it is posted online, the Erica P. John Fund transcript should be available at this link. [UPDATE: The broken link to the transcript has been fixed.]
These are the issues on review as stated in the cert. petition:
(1) Whether the Fifth Circuit correctly held, in direct conflict with the Second Circuit and district courts in seven other circuits and in conflict with the principles of Basic v. Levinson, 485 U.S. 224 (1988), that plaintiffs in securities fraud actions must not only satisfy the requirements to trigger a rebuttable presumption of fraud on the market, but must also establish loss causation at class certification by a preponderance of admissible evidence without merits discovery;
(2) whether the Fifth Circuit improperly considered the merits of the underlying litigation, in violation of both Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), and Federal Rule of Civil Procedure 23, when it held that a plaintiff must establish loss causation to invoke the fraud-on-the-market presumption.
Class action attorneys in all areas of practice, not just securities, have been closely watching this case given its potential to construe the Eisen case and the rule against unnecessary merits determinations at the class certification stage. The Fifth Circuit's opinion is Archdiocese of Milwaukee Supporting Fund, Inc. v. Halliburton Co., 597 F.3d 330 (5th Cir. 2010).