Today the Acting Solicitor General filed an invitation brief in Erica P. John Fund, Inc. v. Halliburton Co. (09-1403), recommending that the Court grant certiorari. At issue in the case is whether the Fifth Circuit correctly held 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; and whether the Fifth Circuit improperly considered the merits of the underlying litigation when it held that a plaintiff must establish loss causation to invoke the fraud-on-the-market presumption. The Acting Solicitor General’s brief is available here.
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