GOLDMAN SACHS GROUP, INC., et al. v. ARKANSAS TEACHER RETIREMENT SYSTEM, et al.
No. 20–222
SUPREME COURT OF THE UNITED STATES
June 21, 2021
594 U.S. 113
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Respondent shareholders (Plaintiffs) filed this securities-fraud class action alleging that The Goldman Sachs Group, Inc., and certain of its executives (collectively, Goldman) violated securities laws and regulations prohibiting material misrepresentations and omissions in connection with the sale of securities.
1. The generic nature of a misrepresentation often is important evidence of price impact that courts should consider at class certification, including in inflation-maintenance cases. That is true even though the same evidence may be relevant to materiality, an inquiry reserved for the merits phase of a securities-fraud class action. See Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 568 U. S. 455. A court has an obligation before certifying a class to determine that
2. Defendants bear the burden of persuasion to prove a lack of price impact by a preponderance of the evidence at class certification. The Court has held that nothing in
955 F. 3d 254, vacated and remanded.
BARRETT, J., delivered the opinion of the Court, in which ROBERTS, C. J., and BREYER, KAGAN, and KAVANAUGH, JJ., joined in full; in which THOMAS, ALITO, and GORSUCH, JJ., joined as to Parts I and II–A; and in which SOTOMAYOR, J., joined as to Parts I, II–A–1, and II–B. SOTOMAYOR, J., filed an opinion concurring in part and dissenting in part. GORSUCH, J., filed an opinion concurring in part and dissenting in part, in which THOMAS and ALITO, JJ., joined.
Kannon K. Shanmugam argued the cause for petitioners. With him on the briefs were Stacie M. Fahsel, Kristina A. Bunting, Richard H. Klapper, Robert J. Giuffra, Jr., David M. J. Rein, Benjamin R. Walker, Julia A. Malkina, and Jacob E. Cohen.
Sopan Joshi argued the cause for the United States as amicus curiae in support of neither party. On the brief were Acting Solicitor General Prelogar, Deputy Solicitor General Stewart, Benjamin W. Snyder, Michael A. Conley, and Jeffrey A. Berger.
Thomas C. Goldstein argued the cause for respondents. With him on the brief were Kevin K. Russell, Erica Oleszczuk Evans, Thomas A. Dubbs, James W. Johnson, Michael H. Rogers, Irina Vasilchenko, and Joseph D. Daley.*
GOLDMAN SACHS GROUP, INC., et al. v. ARKANSAS TEACHER RETIREMENT SYSTEM, et al.
No. 20–222
SUPREME COURT OF THE UNITED STATES
June 21, 2021
594 U.S. 113
JUSTICE BARRETT delivered the opinion of the Court.
This case involves a securities-fraud class action filed by several pension funds against The Goldman Sachs Group, Inc., and three of its former executives (collectively, Goldman). Plaintiffs allege that Goldman maintained an artificially inflated stock price by making generic statements about its ability to manage conflicts—for example, “We have extensive procedures and controls that are designed to identify and address conflicts of interest.” Plaintiffs say that Goldman‘s generiс statements were false or misleading in light of several undisclosed conflicts of interest, and that once the truth about Goldman‘s conflicts came out, Goldman‘s stock price dropped and shareholders suffered losses.
Below, this securities-fraud class action proceeded in typical fashion. Plaintiffs sought to certify a class of Goldman
In this Court, Goldman argues that the Second Circuit erred twice: first, by holding that the generic nature of its alleged misrepresentations is irrelevant to the price impact inquiry; and second, by assigning Goldman the burden of persuasion to prove a lack of price impact.
On the first question, the parties now agree, as do we, that the generic nature of a misrepresentation often is important evidence of price impact that courts should consider at class certification. Because we conclude that the Second Circuit may not have properly considered the generic nature of Goldman‘s alleged misrepresentations, we vacate and remand for the Court of Appeals to reassess the District Court‘s price impact determination. On the second question, we agree with the Second Circuit that our precedents require defendants to bear the burden of persuasion to prоve a lack of price impact by a preponderance of the evidence. We emphasize, though, that the burden of persuasion should rarely be outcome determinative.
I
A
This case concerns the element of reliance. The “traditional (and most direct) way” for a plaintiff to prove reliance is to show that he was aware of a defendant‘s misrepresentation and engaged in a transaction based on that misrepresentation. Ibid. (internal quotation marks omitted). In Basic, however, we held that a plаintiff may also invoke a rebuttable presumption of reliance based on the fraud-on-the-market theory. 485 U. S., at 241–247.
The “fundamental premise” of the fraud-on-the-market theory underlying Basic‘s presumption is “that an investor presumptively relies on a misrepresentation so long as it was reflected in the market price at the time of his transaction.” Erica P. John Fund, Inc. v. Halliburton Co., 563 U. S. 804, 813 (2011). To invoke the Basic presumption, a plaintiff must prove: (1) that the alleged misrepresentation was publicly known; (2) that it was material; (3) that the stock traded in an efficient market; and (4) that the plaintiff traded the stock between the time the misrepresentation was made and when the truth was revealed. Halliburton II, 573 U. S., at 268. The defendant may then rebut the presumption through “[a]ny showing that severs the link between the alleged misrepresentation and either the price received (or paid) by the plaintiff, or his decision to trade at a fair market price.” Basic, 485 U. S., at 248.
Although the Basic presumption “can be invoked by any
As a result, class-action plaintiffs must prove the Basic prerequisites before class certification—with one exception. In Amgen, we held that materiality should be left to the merits stage because it does not bear on
Satisfying those prerequisites, however, does not guarantee class certification. We held in Halliburton II that defendants may rebut the Basic presumption at class certification by showing “that an alleged misrepresentation did not actually affect the market price of the stock.” Id., at 284. If a misrepresentation had no price impact, then Basic‘s fundamental premise “completely collapses, rendering class certification inappropriate.” Id., at 283.
B
Respondents here—whom we‘ll call Plaintiffs—are Goldman shareholders. They brought this securities-fraud class action against Goldman in the Southern District of New York, alleging violations of
The specific theory of securities fraud that Plaintiffs allege is known as inflation maintenance. Under this theory, a mis-
Plaintiffs allege here that between 2006 and 2010, Goldman maintained an inflated stock price by making repeated misrepresentations about its conflict-of-interest policies and business practices. The alleged misrepresentations are generic statements from Goldman‘s SEC filings and annual reports, including the following:
- “We have extensive procedures and controls that are designed to identify and address confliсts of interest.” App. 216 (emphasis and boldface deleted).
- “Our clients’ interests always come first.” Id., at 162 (same).
- “Integrity and honesty are at the heart of our business.” Id., at 163 (same).
According to Plaintiffs, these statements were false or misleading—and caused Goldman‘s stock to trade at artificially inflated levels—because Goldman had in fact engaged in several allegedly conflicted transactions without disclosing the conflicts. Plaintiffs further allege that once the market learned the truth about Goldman‘s conflicts from a Government enforcement action and subsequent news reports, the inflation in Goldman‘s stock price dissipated, causing the price to drop and shareholders to suffer losses.
After Goldman unsuccessfully moved to dismiss the case, Plaintiffs moved to certify the class, invoking the Basic presumption. In response, Goldman sought to rebut the Basic presumption by proving a lack of price impact. Both parties submitted extensive expert testimony on the issue.
On remand, the District Court certified the class again, finding that Goldman‘s expert testimony failed to establish by a preponderance of the evidence that its alleged misrepresentations had no price impact. The Second Circuit again authorized a
We granted certiorari. 592 U. S. ——— (2020).
II
Goldman argues that the Second Circuit erred in two respects: first, by concluding that the generic nature of alleged misrepresentations is irrelevant to the price impact question; and second, by placing the burden of persuasion on Goldman to prove a lack of price impact. We address these arguments in turn.
A
1
On the first question—whether the generic nature of a misrepresentation is relevant to price impact—the parties’ dispute has largely evaporated. Plaintiffs now concede that the generic nature of an alleged misrepresentation often will
We share the parties’ view. In assessing price impact at class certification, courts “‘should be open to all probative evidence on that question—qualitative as well as quantitative—aided by a good dose of common sense.‘” In re Allstate Corp. Securities Litig., 966 F. 3d 595, 613, n. 6 (CA7 2020) (quoting D. Langevoort, Judgment Day for Fraud-on-the-Market: Reflections on Amgen and the Second Coming of Halliburton, 57 Ariz. L. Rev. 37, 56 (2015); emphasis added). That is so regardless whether the evidence is also relevant to a merits question like materiality. As we have repeatedly explained, a court has an obligation before certifying a class to “determin[e] that
But that final inference—that the back-end price drop equals front-end inflation—starts to break down when there is a mismatch between the contents of the misrepresentation and the corrective disclosure. That may occur when the earlier misrepresentation is generic (e. g., “we have faith in our business model“) and the later corrective disclosure is specific (e. g., “our fourth quarter earnings did not meet expectations“). Under those circumstances, it is less likely that the specific disclosure actually corrected the generic misrepresentation, which means that there is less reason to infer front-end price inflation—that is, price impact—from the back-end price drop.
2
The parties do not dispute any of this. They disagree only about whether the Second Circuit properly considered the generic nature of Goldman‘s alleged misrepresentations. Because the Second Circuit‘s opinions leave us with sufficient
B
Goldman also argues that the Second Circuit erred by requiring Goldman, rather than Plaintiffs, to bear the burden of persuasion on price impact at class certification. Goldman relies exclusively on
“In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally.”
According to Goldman,
We disagree. We have held that
Goldman does not ask us to revisit these precedents. So the threshold question here is not whether we have the authority to assign defendants the burden of persuasion to prove a lack of price impact, but instead whether we already exercised that authority in establishing the Basic framework pursuant to the securities laws. We conclude that Basic and Halliburton II did just that.
Basic held that defendants may rebut the presumption of reliance if they “show that the misrepresentation in fact did not lead to a distortion of price.” 485 U. S., at 248 (emphasis added). To do so, Basic said, defendants may make “[a]ny showing that severs the link between the alleged misrepresentation and . . . the price received (or paid) by the plaintiff.” Ibid. (emphasis added). Similarly, Halliburton II held that defendants may rebut the Basic presumption at class certification “by showing . . . that the particular misrepresentation at issue did not affect the stock‘s market price.” 573 U. S., at 279 (emphasis added).
Goldman and JUSTICE GORSUCH argue that these references to a defendant‘s “showing” refer to the defendant‘s burden of production. Post, at 135–137 (opinion concurring in part and dissenting in part) (hereinafter the dissent). On this reading, Basic and Halliburton II require a defendant merely to offer “evidence that, if believed, would support a finding” of a lack of price impact. Post, at 134. But Basic and Halliburton II plainly require more: The defendant must “in fact” “seve[r] the link” between a misrepresentation and the price paid by the
Accepting Goldman and the dissent‘s argument would also effectively negate Halliburton II‘s holding that plaintiffs need not directly prove price impact in order to invoke the Basic presumption. 573 U. S., at 278–279. If, as they urge, the defendant could defeat Basic‘s presumption by introducing any competent evidence of a lack of price impact—including, for example, the generic nature of the alleged misrepresentations—then the plaintiff would end up with the burden of directly proving price impact in almost every case. And that would be nearly indistinguishable from the regime that Halliburton II rejected.
Thus, the best reading of our precedents—as the Courts of Appeals to have considered the issue have recognized—is that the defendant bears the burden of persuasion to prove a lack of price impact. See Waggoner v. Barclays PLC, 875 F. 3d 79, 99–104 (CA2 2017) (“the phrase ‘[a]ny showing that severs the link’ aligns more logically with imposing a burden of persuasion rather than a burden of production“); In re Allstate, 966 F. 3d, at 610–611 (”Basic said that ‘[a]ny showing that severs the link’ would be sufficient to rebut the presumption, not that mere production of evidence would defeat the presumption” (citation omitted)). We likewise agree with the Courts of Appeals that the defendant must carry that burden by a preponderance of the evidence. See Waggoner, 875 F. 3d, at 99; In re Allstate, 966 F. 3d, at 610.
Although the defendant bears the burden of persuasion, the allocation of the burden is unlikely to make much difference on the ground. In most securities-fraud class actions, as in this one, the plaintiffs and defendants submit competing expert evidence on price impact. The district court‘s task
* * *
The Second Circuit correctly placed the burden of proving a lack of price impact on Goldman. But because it is unclear whether the Second Circuit properly considered the generic nature of Goldman‘s alleged misrepresentations in reviewing the District Court‘s price impact determination, we vacate the judgment of the Second Circuit and remand the case for further proceedings consistent with this opinion.
It is so ordered.
GOLDMAN SACHS GROUP, INC., et al. v. ARKANSAS TEACHER RETIREMENT SYSTEM, et al.
No. 20–222
SUPREME COURT OF THE UNITED STATES
June 21, 2021
594 U.S. 113
I agree with the Court‘s answers to the questions presented, and I accordingly join Parts I, II–A–1, and II–B of the Court‘s opinion. Under Basic Inc. v. Levinson, 485 U. S. 224 (1988), securities plaintiffs may demonstrate reliance by invoking the rebuttable presumption that investors rely on any misrepresentations reflected in a security‘s market price. Id., at 241–247. The Basic presumption is particularly useful to class-action plaintiffs who, without the presumption, ordinarily could not demonstrate that questions common to the class predominate over individual ones. Ante, at 118–119. Defendants, for their part, may rebut the Basic presumption by demonstrating that the alleged misrepresentations did not in fact affect the security‘s price. Ante, at 118. So-called “price impact” may be disproved with a variety of evidence,
I do not, however, join the Court‘s judgment to vacate and remand because I believe the Second Circuit “properly considered the generic nature of Goldman‘s alleged misrepresentations.” Ante, at 123. On appeal, Goldman did not contend that the District Court improperly refused to consider the generic nature of the alleged misstatements as evidence of price impact (or lack thereof). Instead, Goldman argued that “general statements, like those challenged here, are incapable of impacting a company‘s stock price as a matter of law” because they are “‘too general to cause a reasonable investor to rely upon them.‘” Brief for Appellants in No. 18–3667 (CA2), pp. 43, 46. Goldman reasoned that “the challenged statements are incapable of maintaining inflation in a stock price for the same reasons that those statements are immaterial as a matter of law (as well as fact).” Id., at 48.
The Second Circuit properly rejected Goldman‘s argument. The court explained that although “Goldman is not formally asking for a materiality test,” its proposed rule would “essentially requir[e] courts to ask” at the class-certification stage “whether the alleged misstatements are, in Goldman‘s words, ‘immaterial as a matter of law.‘” 955 F. 3d 254, 267 (2020). But “materiality is irrelevant at the Rule 23 stage.” Id., at 268 (citing Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 568 U. S. 455, 468 (2013)). “If general statements cannot maintain price inflation because no reasonable investor would have relied on them, then the question of inactionable generality is common to the class.” 955 F. 3d, at 268.
In declining to adopt Goldman‘s proposed rule that generic misstatements cannot have a price impact (as a matter of law), the Second Circuit nowhere held that the generic nature of an alleged misstatement could not serve as evidence
In short, the Second Circuit did not addrеss whether the generic nature of a misstatement may be used as evidence to disprove price impact for a simple reason: Goldman identified no error in the District Court‘s treatment of such evidence. Goldman did not press the argument in the Second
GOLDMAN SACHS GROUP, INC., et al. v. ARKANSAS TEACHER RETIREMENT SYSTEM, et al.
No. 20–222
SUPREME COURT OF THE UNITED STATES
June 21, 2021
594 U.S. 113
I join all but Part II–B of the Court‘s opinion. There, the Court holds that the defendant, rather than the plaintiff, “bear[s] the burden of persuasion on price impact.” Ante, at 124. Respectfully, I disagree.
We start from common ground. Basic Inc. v. Levinson, 485 U. S. 224, 245–247 (1988), sought to import fraud on the market theory from economics into securities litigation. In doing so, Basic posited two things—first, in an efficient market a company‘s stock price generally reflects any public and material information about the company; second, investors generally rely on a company‘s stock price as an indicator of the firm‘s true value. Ibid. Given these economic assumptions, the Court held that securities fraud plaintiffs can presumptively meet their burden of proving reliance on an alleged misrepresentation by proving four things: (1) the defendant‘s alleged misrepresentation was publicly known; (2) it was material; (3) the stock traded in an efficient market; and (4) the plaintiff purchased the stock at the market price between the time the misrepresentation was made and the truth was revealed. See Halliburton Co. v. Erica P. John Fund, Inc., 573 U. S. 258, 277–278 (2014) (Halliburton II).
The presumption of reliance not only helps a plaintiff prove one of the essential elements of a securities fraud claim. Certain class actions require that “questions of law or fact commоn to class members predominate over any questions
At the same time, Basic‘s presumption of reliance has only ever been just that. Everyone accepts that, if a defendant undermines one of the assumptions on which it rests, the presumption dissipates. So, for example, if the defendant‘s alleged misrepresentation did not actually affect the market price, there can be no ground for presuming anyone relied on that misrepresentation when purchasing the stock. Halliburton II, 573 U. S., at 279. Similarly, if a particular plaintiff did not care about the integrity of the market price when purchasing a stock, there is no basis for presuming that individual‘s reliance. Id., at 276.
Before us, the only meaningful dispute concerns what burden a defendant bears when it comes to rebutting the Basic presumption. Does the defendant carry only a burden of production, or does the defendant sometimes carry a burden of persuasion? In my view, only a burden of production is involved.
Start with what we have said about presumptions like Basic‘s. This Court has long recognized that a “‘presumption’ properly used refers only to a device for allocating the production burden.” Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 255, n. 8 (1981). Throughout the law, courts have sometimes created presumptions to help plaintiffs prove their cases when direct evidence can be hard to come by. See Basic, 485 U. S., at 245. These presumptions operate by allowing the plaintiff to prove only certain specified “predicate fact[s]” at the outset. St. Mary‘s Honor Center v. Hicks, 509 U. S. 502, 506 (1993). If the plaintiff does so, an inference or “presumption” arises that the plaintiff has
The Court has explained that nearly “all presumptions” operate in this way. Id., at 507. The Federal Rules of Evidence confirm the point too.
Title VII practice offers a familiar illustration of these principles. There, the plaintiff bears the ultimate burden of proving that his employer intentionally discriminated against him because of his race or some other unlawful factor. See St. Mary‘s Honor Center, 509 U. S., at 511. But because direct evidence of intentional discrimination can be “elusive,” the Court has created a presumption. See id., at 506 (internal quotation marks omitted). If a plaintiff proves certain “predicate fact[s]“—for example, that he is black, that he was fired from a job for which he was qualified, and that the job remained open and was ultimately filled by a white person—an inference or presumption of intentional discrimination arises. Ibid. At that point, the defendant bears the
Since the Court first started tangling with the fraud on the market theory in Basic, it has followed these traditional rules. Consistently, our decisions have “made clear” that Basic‘s “presumption” of reliance is “just that.” Halliburton I, 563 U. S., at 811. Much as the Court said it created the Title VII presumption to help prove the “elusive” question of intentional discrimination, Basic said it created its presumption of reliance to relieve “an unnecessarily unrealistic evidentiary burden” on securities fraud plaintiffs. 485 U. S., at 245. And when creating its presumption Basic expressly cited
The process Basic outlined matches traditional understandings too. The Court explained that a plaintiff‘s ability to prove certain “threshold facts“—about market operations and the publicity of the misstatement—gives rise to a “presumption” of reliance. Seе id., at 248, and n. 27. After such a showing, the Court continued, a defendant may then proceed to “rebut the presumption.” Id., at 248. Nowhere in any of this did Basic suggest the order of operations governing its presumption should differ in any way from those governing others commonly found in the law and subject to
Consider how all this works in routine securities fraud cases. Once a plaintiff proves the four “predicate facts” Basic specified, see supra, at 130, a presumption of reliance attaches. At that point, the defendant bears the burden of producing evidence that, if believed, would support a finding that the plaintiff did not actually rely on its alleged misrepresentation. As we have seen, a defendant might do so by producing evidence suggesting that its alleged misrepresentation did not have an impact on market price or that the plaintiff was indifferent to the alleged misrepresentation. Upon such a showing, the presumption of reliance drops from the case and the trier of fact must decide the question of reliance vel non, cognizant of the fact the plaintiff bears the burden of proving reliance like any other essential elements of its claim. Again, that does not mean the plaintiff‘s indirect proof disappears. A court may still infer from the Basic predicates that a particular misstatement was incorporated into the stock price and that the plaintiff relied on the integrity of that price. Both sides are free to present additional proof too. It‘s simply that a court no longer must find reliance. See St. Mary‘s Honor Center, 509 U. S., at 511.
The Court disputes none of this. It does not even try to defend on the merits its unusual suggestion that the defendant carries some burden of persuasion in a plaintiff‘s claim for securities fraud. Instead, the Court contends only that precedent ties our hands.
Primarily, the Court points to a single сlause in a single sentence in Basic observing that a defendant may rebut the presumption of reliance with “[a]ny showing that severs the
But what does this prove? Surely this language confirms an important and by now familiar point: Once a defendant produces evidence that, if believed, shows that fraud on the market theory does not hold in its particular case because its alleged misrepresentation in fact failed to affect the stock price, the presumption of reliance drops away. On the Court‘s reading today, however, this language doesn‘t just carry that obvious meaning. We are told it also must mean that Basic intended to shift the “burden of persuasion” with respect to “price impact” to the defendant—at least “at class certification“—because the “mere production of some evidence relevant to price impact would rarely accomplish th[e] feat” of “in fact” “sever[ing] the link between a misrepresentation and the price paid” for the stock. Ante, at 125–126 (internal quotation marks omitted; emphasis deleted).
That much does not follow. Not only has this Court often said it is a mistake to parse terms in a judicial opinion with the kind of punctilious exactitude due statutory language. See Reiter v. Sonotone Corp., 442 U. S. 330, 341 (1979). Even read for all they are worth, the handful of words on which the Court rests its entire holding today—a “showing” that “in fact” “sever[s] the link“—cannot begin to carry the weight the Court assigns them. See ante, at 125 (emphasis deleted). These terms do not even appear together in Basic: The Court has to pluck the phrase “in fact” from one sеntence and the phrase “[a] showing that severs the link” from another, and then combine them to create a new clause
The hard truth is that in the 30-plus years since Basic this Court has never (before) suggested that plaintiffs are relieved from carrying the burden of persuasion on any aspect of their own causes of action. To the contrary, when discussing the presumption it created, Basic expressly referenced
If Basic doesn‘t command today‘s result, the Court offers a backup theory. Separately, it insists, Halliburton II requires us to shift a burden of persuasion to the defendant. Specifically, the Court points to the fact that Halliburton II reaffirmed Basic‘s holding that a plaintiff need not show reliance “directly,” but may do so “presumptively” by carrying the burden of proving the four Basic factual predicates. 573 U. S., at 278. A decision holding that the defendant merely bore the burden of producing evidence suggesting a lack of price impact at class certification, the Court now submits, “would be nearly indistinguishable from the regime that Halliburton II rejected.” Ante, at 126.
The Court has no answer to any of this. Instead, it replies only by touting the fact that two Court of Appeals decisions have read Basic and Halliburton II as it does. Ante, at 126. But this is a non sequitur. The Court does not suggest that a pair of lower court oрinions represents some robust judicial consensus. Nor does the Court suggest those opinions free us from having to interpret the law for ourselves. After all, “[o]ur duty is to follow the law as we find it, not to follow rotely whatever lower courts might once have said about it.” BP p.l.c. v. Mayor and City Council of Baltimore, 593 U. S. 230, 244 (2021). The fact remains that nothing in our prior decisions has ever placed a burden of persuasion on the defendant with respect to any aspect of the plaintiff‘s case. It is incumbent on the plaintiff to prove
Perhaps recognizing the incongruity of its conclusion, the Court goes out of its way to downplay its significance. We‘re told that “on the ground” today‘s holding “is unlikely to make much difference” because “[i]n most securities-fraud сlass actions . . . the plaintiffs and defendants submit competing expert evidence on price impact.” Ante, at 126. And in cases like these, “[t]he district court‘s task,” according to the Court, “is simply to assess all the evidence of price impact” and “determine whether it is more likely than not that the alleged misrepresentations had a price impact.” Ante, at 126-127.
This is a curious disavowal. Obviously, the Court thinks the issue important enough to spend the time and effort to rejigger the burden of persuasion. Now, though, it says none of this matters because most cases come down to a dispute over evidence of price impact irrespective of the presumption. The Court‘s suggestion that the burden of persuasion will “rarely” make a “difference” misses the point too. The whole reason we allocate the burden of persuasion is to resolve close cases by providing a tie breaker where the burden does make a difference. That close cases may not be common ones is no justification for indifference about how the law resolves them.
Respectfully, I dissent.