Reproduced with permission from Class Action Litigation Report, 15 CLASS 1400, 12/12/2014. Copyright 姝2014
by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com
CERTIFICATION
SUPREME COURT
Understanding Halliburton in Light of Recent Supreme Court Jurisprudence
BYJASON M. HALPER,E.JOSHUA ROSENKRANZ AND
WILLIAM J. FOLEY
In recent years, the Supreme Court has decided a
number of cases that, alone and certainly in the ag-
gregate, have significantly impacted the ability of
plaintiffs to initiate and maintain class actions.
By and large, these decisions have opened up new av-
enues for companies to prevent plaintiffs from com-
mencing class actions in the first place or for defen-
dants successfully to challenge class certification. In
particular, and as discussed previously by the authors,
1
the Court in a series of decisions has upheld the ability
of contracting parties to eliminate class procedures in
arbitration; raised the bar for plaintiffs to obtain class
certification by requiring them to prove each of the Rule
23 prerequisites at the class certification stage; and
barred courts from applying the federal securities law
to predominantly extraterritorial investors and transac-
tions, thereby eliminating such class actions.
As explained in the Court’s opinions, these decisions
were premised on an adherence to congressional intent
as reflected in statutory text, which to the Court over-
rode other considerations that might have warranted a
contrary result.
Among the most, if not the most, highly anticipated of
the recent class action decisions was Halliburton Co. v.
Erica P. John Fund, Inc., 2014 BL 172975 (U.S. 2014)
(‘‘Halliburton II’’). But the result in Halliburton II is dif-
ficult to square with the Court’s recent class action ju-
risprudence. The Halliburton II Court considered the
1
See, e.g., Jason M. Halper & Ryan J. Andreoli, Arbitration
Clauses and Class Certification Standards: How the Supreme
Court Is Limiting Plaintiffs’ Ability to Maintain Class Actions,
Bloomberg BNA: Class Action Report, Jan. 25, 2013; Jason M.
Halper & Ryan J. Andreoli, Class Action Issues in Supreme
Court: Assessing the Significance of Amgen, 249 N.Y.L.J. 4
(Apr. 3, 2013).
Jason M. Halper, a partner at Orrick, serves
as Co-Head of its Financial Institutions Litiga-
tion Practice and is resident in New York.
Halper can be reached at jhalper@orrick.com.
E. Joshua Rosenkranz, also a partner, serves
as Head of Orrick’s Supreme Court and
Appellate Practice in the firm’s New York
office. Rosenkranz is available at
jrosenkranz@orrick.com.
William J. Foley, a managing associate in
Orrick’s Securities Litigation and Regulatory
Enforcement Practice Group in New York, can
be contacted at wfoley@orrick.com.
COPYRIGHT 姝2014 BY THE BUREAU OF NATIONAL AFFAIRS, INC. ISSN 1529-0115
Class Action
Litigation Report®
