DECISION AND ORDER
Lead Plaintiffs Irrevocable Trust FBO Lansing Davis and the Davis Partnership
Pursuant to Federal Rule of Civil Procedure 23 (“Rule 23”), Plaintiffs now move to certify the Proposed Class, which is comprised of all those who, during the Class Period, suffered losses resulting from (1) purchases of shares of CCME common stock, (2) purchases of CCME call options, and (3) sales of CCME put options. (Dkt. No. 177.) Plaintiffs also move for the Court to appoint them and three other individual class members (the “Proposed Class Representatives”) as class representatives and to appoint Hagens Berman Sobol Shapiro LLP (“Hagens Berman”) and Cohen Milstein Sellers & Toll PLLC (“Cohen Milstein”) (together, the “Proposed Class Counsel”) as lead counsel and co-counsel, respectively, for the Proposed Class. (Id.) DTT HK opposes the motion and also moves to strike the testimony of Plaintiffs’ market efficiency expert. (Dkt. No. 204.) ■
For the reasons discussed below, the Court finds that the Proposed Class satisfies all of the requirements of Rule 23(a) and the pertinent requirements of Rule 23(b). The Court also finds that appointment of the Proposed Class Representatives and the Proposed Class Counsel is appropriate. Plaintiffs’ motion is thus GRANTED, and DTT HK’s motion is DENIED.
I. BACKGROUND
The Gourt more fully detailed the background of this case in its previous Decision and Order. See McIntire,
Defendant DTT HK is a Hong Kong entity that is a member firm of Deloitte Touche Tohmatsu Limited. It provides audit, accounting, and other financial consulting services to its clients. DTT HK served as CCME’s independent auditor from December 4, 2009 to March 11, 2011. On March 31, 2010, CCME filed its Form 10-K annual report for the 2009 fiscal year with the SEC, which included an audit report from DTT HK certifying the financial statements contained in the Form 10-K report.
The integrity of CCME’s financial condition was first called into doubt on January 31, 2011, when Citron Research (“Citron”) published an analyst report (the “Citron Report”) questioning multiple aspects of CCME’s business operations and accounting practices. Citron stated that it had uncovered information suggesting that CCME was committing fraud. Shortly
DTT HK subsequently sent CCME a letter dated March 3, 2011, which outlined enormous signs of fraud that DTT HK had encountered during its audit of CCME’s 2010 financial statements. One week later, on March 11, 2011, DTT HK resigned as CCME’s auditor because no progress had been made with respect to the issues raised in the March 3 letter. DTT HK informed CCME that it could no longer-rely on management’s representations of CCME’s financial condition., DTT HK also withdrew its previous audit report.
After DTT HK’s resignation, CCME requested that trading in its shares be suspended. When trading resumed about two months later, CCME’s share price immediately declined 81.8 percent.
Plaintiffs had purchased shares of CCME during the putative Class Period. They allege a common course of wrongful conduct by DTT HK during the Class Period, through which DTT HK artificially inflated the share price of CCME by issuing false and misleading statements in its audit report certifying CCME’s 2009 financial statements and by stating that CCME’s financials complied with generally accepted accounting principles (“GAAP”). Plaintiffs assert that CCME’s share price had declined substantially from the Class Period high as a result of the market’s recognition of CCME’s fraud.
Plaintiffs commenced the first suit affiliated with this action on February 4, 2011. (Dkt. No. 1.) By Orders dated April 4, 2011 (Dkt. No. 4) and April 15, 2011 (Dkt. No. 28), the Court consolidated four separate actions under this docket. By Order dated June 7, 2011, the Court appointed Irrevocable Trust FBO Lansing Davis and the Davis Partnership LP as Lead Plaintiffs and approved the selection of Hagens Berman Sobol Shapiro LLP as Lead Counsel. (Dkt. No. 50.) Plaintiffs filed an amended and consolidated complaint on October 25, 2011. (Dkt. No. 63.)
All defendants in this action moved to dismiss Plaintiffs’ claims under Federal Rules of Civil Procedure 12(b)(6) and 9(b) and the Private Securities Litigation Reform Act of 1995 (“PSLRA”), Pub. L. No. 104-67, 109 Stat. 737, asserting that the amended complaint failed to state a claim upon which relief may be granted and to plead fraud with sufficient particularity. By Order dated February 28, 2013, the Court denied the motions to dismiss the case against CCME and DTT HK, but granted the motion as to the remaining defendants. McIntire,
II. LEGAL STANDARD
To certify the Proposed Class, Plaintiffs must satisfy all four of the requirements of Rule 23(a) and one of the categories of Rule 23(b). See In re Livent, Inc. Noteholders Sec. Litig.,
*423 (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a). Plaintiffs seek certification under Rule 23(b)(3), which requires that they further demonstrate that common questions of law or fact predominate over any questions affecting individual members and that maintaining a class action is superior to other available methods of adjudication. See Fed.R.Civ.P. 23(b)(3).
Trial courts are given substantial discretion in determining whether to grant class certification because “ ‘the district court is often in the best position to assess the propriety of the class and has the ability ... to alter or modify the class, create subclasses, and decertify the class whenever warranted.”’ In re Nigeria Charter Flights Contract Litig.,
III. DISCUSSION
A. RULE 23(a) REQUIREMENTS
1. Numerosity
To meet the requirements of Rule 23(a)(1), “the class must be so large that joinder of all members would be impracticable” (the “Numerosity Requirement”). Sumitomo II,
CCME was a publicly traded company with more than 32.9 million shares outstanding and an average weekly trading volume of approximately 6 million shares during the Class Period. Given this trading volume, the size of the Proposed Class far exceeds 40 members. Plaintiffs have thus met the Numerosity Requirement. See, e.g., Vivendi,
2. Commonality
Rule 23(a)(2) requires Plaintiffs to demonstrate that common issues of law or fact affect all class members (the “Commonality Requirement”). This requirement has been characterized as a “ ‘low hurdle.’ ” See Sumitomo II,
Plaintiffs assert that members of the Proposed Class have suffered injury due to similar material misrepresentations and omissions by DTT HK. Additionally, they propose multiple common questions of law and fact including, but not limited to, whether the federal securities laws were violated by DTT HK’s acts and whether statements made by DDT HK to the investing public during the Class Period misrepresented material facts about the business operations of CCME. DTT HK does not dispute that Plaintiffs have met the Commonality Requirement. As such, the Court is persuaded that Plaintiffs have satisfied the Commonality Requirement.
3. Typicality
Rule 23(a)(3) requires that Plaintiffs’ claims be typical of the class (the “Typicality Requirement”). The Typicality Requirement is satisfied when each class member’s claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant’s liability. See Sumitomo I,
DTT HK argues that the Proposed Class Representatives fail to meet the Typicality Requirement because they engaged in trades of CCME stock that postdated the Citron Report and Muddy Waters Report. DTT HK argues that these purchases defeat typicality because “a person that increases his holdings in a security after revelation of an alleged fraud involving that security is subject to a unique defense that precludes him from serving as a class representative.” Rocco v. Nam Tai Elecs., Inc.,
The Court is not persuaded that the Proposed Class Representatives engaged in speculative trading such that unique non-reliance defenses would overshadow common questions of law and fact. The Citron Report and Muddy Waters Report both suggested signs of fraud, but did not conclusively reveal the fraud. See Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 119 F.R.D.
For the purposes of class certification, the Court is persuaded that Plaintiffs could reasonably have believed that DTT HK’s audit was based on better information about CCME’s corporate finances than the Citron Report and Muddy Waters Report, both of which were prepared by short sellers with financial interest in causing CCME stock prices to decline. In this sense, purchases of CCME stock made after the Citron Report and Muddy Waters Report may amplify Plaintiffs’ claims of reliance on DTT HK’s statements, rather than defeating it. At the least, these issues do not threaten to become the focus of the litigation such that Plaintiffs would inadequately represent the class. See In re Natural Gas Commodities Litig.,
4. Adequacy
Rule 23(a)(4) requires that the representative of the parties will “fairly and adequately protect the interests of the class” (the “Adequacy Requirement”). To meet this requirement, the lead plaintiffs counsel must be “qualified, experienced, and generally able to conduct the proposed litigation,” and the class representative must not have interests conflicting with the class. Livent,
DTT HK argues that the Plaintiffs are rendered inadequate to serve as class representatives due to abusive discovery practices.
The Court is also persuaded that the appointment of the Proposed Class Counsel is appropriate. Counsel have vigorously pursued the Proposed Class’s claims in this litigation, including defeating DTT HK’s motion to dismiss. The Proposed Class Counsel have additionally provided the Court with a list of their extensive experience and resources in prosecuting claims of the type made here.
In addition to satisfying Rule 23(a), Plaintiffs must also establish that this action is maintainable as a class action under Rule 23(b). Here, Plaintiffs seek to certify the Proposed Class pursuant to Rule 23(b)(3), which provides that an action is maintainable as a class action if “questions of law or fact common to class mémbers predominate over any questions affecting only individual members” (the “Predominance Requirement”), and “that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy” (the “Superiority Requirement”). Fed.R.Civ.P. 23(b)(3).
DTT HK does not argue that Plaintiffs have failed to satisfy the Superiority Requirement. The Court is persuaded that Plaintiffs have met the Superiority Requirement. See, e.g., In re Blech Sec. Litig.,
On the other hand, DTT HK contends that Plaintiffs have not met the Predominance Requirement for several reasons. According to DTT- HK, individualized questions about whether members of the Proposed Class actually relied on DTT HK’s alleged misstatements and omissions when they purchased CCME stock predominate over class-wide questions of reliance. Plaintiffs counter that the fraud-on-the-market presumption applies here.
The fraud-on-the-market presumption is “based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business,” and thus, “[mjisleading statements will ... defraud purchasers of stock even if the purchasers do not directly rely on the misstatements.” Basic Inc. v. Levinson,
If Plaintiffs meet their burden of demonstrating materiality and market efficiency, they are entitled to a rebuttable presumption that DTT HK’s alleged misstatements and omissions affected the price of CCME securities on the open market and .that all class members relied on the alleged misrepresentations or omissions. See Hevesi v. Citigroup Inc.,
DTT HK focuses its arguments on the Market Efficiency Requirement. Plaintiffs have proffered the testimony of Cynthia Jones, CFA (“Jones”), to demonstrate that CCME traded on an efficient market. According to Plaintiffs, Jones is an expert in market efficiency. Jones. conducted an “event study,” which “correlates the disclosures of unanticipated, material information about a security with corresponding fluctuations in price.” Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc.,
1. Daubert Motion
a. Legal Standard
A court must investigate the expert’s compliance with the provision of Federal Rule of Evidence 702 (“Rule 702”) that requires an expert to be “qualified as an expert by knowledge, skill, experience, training or education.” As the Second Circuit has noted, “[t]he initial question of whether a witness is qualified to be an ‘expert’ is important, among other reasons, because an ‘expert’ witness is permitted substantially more leeway than ‘lay witnesses in testifying as to opinions that are not rationally based on [his or her] perception.’ ” Nimely v. City of New York,
Á trial court must also decide whether a qualified expert’s testimony rests on a reliable foundation, or is improperly based on “subjective belief or unsupported speculation.” Daubert,
b. Qualifications
DTT argues that Jones is insufficiently qualified to opine on market efficiency based on her lack of meaningful educational and practical expertise. The Court disagrees. Jones’s academic training includes an MBA in Finance and a Chartered Financial Analyst (CFA) designation, and her 20 years of industry experience includes conducting event studies and other statistical analyses to assess the efficiency of markets and consulting on a variety of other economic topics germane to securities litigation. Plaintiffs submitted to the Court a list of 19 cases in which courts have accepted Jones as an expert on a variety of matters pertaining to the economic analysis of issues relevant to securities law. (Dkt. No. 179, Exh. A, at 35-37.) The Court is persuaded that these credentials are sufficient to survive the Daubert motion.
The law does not require a witness to have substantial academic training and accreditation in order to be qualified as an expert under Rule 702. Rather, an expert may earn his or her expertise “through knowledge, skill, experience, training, or education.” Tiffany (NJ) Inc. v. eBay, Inc.,
DTT HK leans strongly on IBEW Local 90 Pension Fund v. Deutsche Bank AG, No. 11 Civ. 4209,
DTT HK also employs a theory of disqualification by association: it notes that the expert disqualified in Deutsche Bank, Michael Marek (“Marek”), is Jones’s supervisor.
c. Reliability
DTT HK suggests that Jones’s analysis suffers from flawed methodology and other errors that render her opinions unreliable. For the reasons explained below, the Court is persuaded that DTT HK’s objections go to the weight, not the admissibility, of the testimony. See Olin
DTT HK first argues that Jones’s event study rests on a faulty cause-and-effect analysis. As part of her analysis, Jones classified days into two buckets: those days on which news potentially material to the market was released to the public (“News Days”), and those days on which non-material news or no news at all was released (“Non-News Days”). Jones began her study by searching databases at Bloomberg and Factiva for news articles on CCME during the relevant Class Period. She retrieved over 2000 pages of news articles which she compiled into an event chronology. Without taking into account the price movement of CCME share prices on those days listed in the chronology, Jones used the news articles that she collected to classify each day.
DTT HK argues that Jones failed to use defined, objective, and replicable standards in this classification process. In support of this argument, DTT HK submitted a declaration from its own expert, Rene Stulz (“Stulz”), who identified shortcomings in Jones’s selection method and recommended more objective procedures. DTT HK also argues that Jones’s methodology was circular because some of the stories she selected were written in response to changes in CCME’s stock price, rather than news items that subsequently affected the stock price. Finally, DTT HK claims that Jones failed to account for the directionality of CCME’s share price movement in her analysis.
Plaintiffs respond that Jones’s multistep approach to selecting News Days effectively minimized the potential for bias. Plaintiffs also offer a declaration from Professor Stephen E. Christophe, Ph.D. (“Christophe”). Christophe incorporated some of the procedures urged by Stulz and yielded results that demonstrated market efficiency to an even greater degree than Jones’s analysis did. Further, Plaintiffs claim that Jones’s selection process did not take into account price movement of CCME stocks and thus was an adequate check against circularity, and Plaintiffs deny that Jones failed to consider directionality.
The Court notes that an expert who is conducting an event study necessarily must use his or her discretion to define selection criteria that are conducive to the execution of a meaningful multivariate regression analysis. Billhofer,
DTT HK next argues that Jones’s test for market efficiency lacks sufficient marks of reliability. Jones found the market for CCME stock to be efficient because she concluded that statistically sig
The Court is persuaded that the test Jones used to evaluate the results of her regression and to conclude that CCME stocks traded on an efficient market was sufficiently reliable. DTT HK’s proposed alternative test suffers from a fatal flaw: it fails to account for the fact that Jones examined days with potentially material news. An efficient market can respond to potentially material news in one of two ways. First, if the market had anticipated the potentially material news, that news was already incorporated into the market price, and the share price would not change in response to the news. On the other hand, if the potentially material news was not anticipated by the market, the share price will change as the market adjusts to the news. Adopting DTT HK’s test would account for only the second type of potentially material news, and not the first type. To require a stock to change on at least 50 percent of potentially material news days ignores that, in many circumstances, the absence of a price change on a potentially material news day is not inconsistent with an efficient market.
For that reason, courts have instead endorsed the comparison test that Jones used. See, e.g., In re Alstom SA Sec. Litig.,
DTT HK levels a host of other objections to Jones’s methodology. The Court has reviewed these objections and finds them to be without merit for the purposes of a Daubert motion. While DTT HK has styled these arguments as part of a motion to strike expert testimony, its actual claim is that Jones’s event study fails to prove that CCME stock traded on an efficient market. These issues are appropriately considered below as part of the Court’s analysis of the merits of Plaintiffs’ motion for class certification. In other words, the objections that DTT HK raises go to the weight to be given to the event study, and not to its admissibility. See Cedar Petro
2. Market Efficiency Requirement
DTT HK argues that Plaintiffs have failed to establish that CCME stock traded on an efficient market. When assessing the Market Efficiency Requirement, courts consider the factors laid out in Cammer v. Bloom,
(1) a large weekly trading volume; (2) the existence of a significant number of analyst reports; (3) the existence of market makers and arbitrageurs in the security; (4) the eligibility of the company to file an S-3 registration statement; and (5) a history of immediate movement of the stock price caused by unexpected corporate events or financial releases.
In re Alstom,
For the reasons explained below, after evaluating the Cammer factors and the Krogman factors, the Court is persuaded that Plaintiffs have presented sufficient evidence to show that CCME traded in an efficient market.
a. Cammer Factors
The Court finds that the Plaintiffs have proffered sufficient evidence establishing the Market Efficiency Requirement under the Cammer analytical framework. Cammer factors one and four are easily met here. First, Plaintiffs’ expert’s finding of a 17 percent average weekly volume provides a strong presumption of market efficiency. Even if the figure is inflated to some degree, as DTT argues, it is doubtful that the actual volume, in the event that it can be more accurately measured, is below the 1 to 2 percent benchmark set forth in Cammer. See Cammer,
Plaintiffs’ showing for the second Cammer factor—the presence of analyst reports-—is less persuasive. This factor is commonly met where multiple large brokerage finns produce and disseminate analysis reports on the financial condition of a company for the entirety of a Class Period. See, e.g., In re Alstom,
The Court finds that the Plaintiffs have not made a strong showing with respect to the second Cammer factor. However, the Court does not find this deficiency to be fatal to Plaintiffs’ motion for class certification, given the strength of the Plaintiffs’ showings toward the other measures of market efficiency. Indeed, the Cammer factors are meant to be an analytical tool to assist in the evaluation of market efficiency, not a rigid checklist. See In re Freddie Mac,
The third Cammer factor concerns the ability of investors to act as arbitrageurs and to facilitate the efficiency of the market. Plaintiffs have submitted the testimony of Jones, who identified more than 200 market makers from a list taken from Bloomberg, and of Christophe, who determined that CCME had an average of 20 market makers throughout the Class Period based on an analysis of data taken directly from NASDAQ-OMX. DTT HK disputes that the number of market makers is an accurate measure of market efficiency, and instead posits that significant short-selling constraints identified by Stulz limited arbitrage opportunities, delinked actual stock prices from prices implied by options, and corrupted the market’s overall efficiency. DTT HK also asserts that Plaintiffs’ experts failed to assess the existence and effects of short-selling constraints, which undermines their opinions that CCME shares traded in an efficient market.
■ The Court disagrees. Christophe, using NASDAQ’s definition, identified an average of 20 registered market makers for CCME during the Class Period. He observed that during no week in the Class Period did CCME have fewer than 14 market makers, which is the average for a typical NASDAQ-listed stock. The Court is satisfied that CCME’s 20-market-mak-er average supports a presumption of market efficiency. See In re Winstar Commc’ns Sec. Litig.,
The Court is not persuaded that short-selling constraints had a sufficiently corrosive effect on the market for CCME shares as to render it inefficient. While DTT HK relies on Deutsche Bank, the short-selling constraints in that case were much more pervasive, including three short-sale bans by the United States and German governments. See Deutsche Bank,
Both parties acknowledge that the 'fifth Cammer factor, which requires evidence tending to demonstrate that unexpected corporate events or financial releases cause an immediate response in the price of a security, is the most important indica
The Court finds that Plaintiffs have proffered sufficient evidence to satisfy the fifth and most important Cammer factor. As noted above, the Court credits the test used by both Jones and Christophe, which compares the frequency of statistically significant CCME share price reactions on News Days versus Non-News Days. See Ferrillo et al., 78 St. John’s L.Rev. at 120. The Court concludes that because CCME’s stock price was six to eight times more likely to change on News Days than on Non-News Days, Plaintiffs have satisfied the fifth Cammer factor. See In re Alstom,
b. Krogman Factors
The Court is also persuaded that Plaintiffs, based on Jones’s report, have satisfied the three Krogman factors. As to the first factor—the firm’s capitalization—Jones found specifically that CCME’s market capitalization ranged from $292 million to $585 million during the Class Period, which was consistent with other mid-sized publieally traded companies. For the second factor-—the bid-ask spread—Jones determined that CCME’s spread was .27 percent, which is relatively large and indicative of an efficient market. Finally, with respect to the third factor—the company’s public float— Jones found that CCME “insiders” owned between 57 percent and 69 percent of the shares outstanding during the Class Period, which was consistent with a finding of market efficiency. The Court credits Jones’s analysis and -is persuaded that the three Krogman factors weigh in favor of its conclusion that the market for CCME stock was efficient. See, e.g., Billhofer,
3. Options Traders
Plaintiffs also seek to include options traders as part of the Proposed Class. In general, “[t]he market price for options is directly responsive ... to changes in the market price of the underlying stock, and to information affecting that price.” Deutschman v. Beneficial Corp.,
4. Price Impact
DTT HK argues that, even if CCME stock traded on an efficient market, the fraud-on-the-market presumption is rebutted because DTT HK’s alleged misstatements did not impact CCME’s stock price.
The United States Supreme Court recently held that a securities-fraud defendant can “defeat the [fraud-on-the-market] presumption at the class certification stage through evidence that the misrepresentation did not in fact affect the stock price.” Halliburton Co. v. Erica P. John Fund, Inc. (Haliburton II), — U.S. -,
DTT HK correctly notes that on the day after it released its 2009 audit opinion—which contains the misstatements that Plaintiffs allege to be actionable— CCME’s stock price did not increase, and in fact decreased slightly.
The Court is not persuaded that DTT HK has met its burden to prove that its alleged misstatements did not improperly maintain CCME’s already-inflated stock price. Indeed, the evidence suggests quite the contrary. Only days before DTT HK issued its audit opinion, CCME’s stock price increased based on its release of unaudited financial statements. It is reasonable to infer that this increase included the market’s expectation that DTT HK’s audit opinion would later confirm the accu
5. Damages Theory
DTT HK argues that Plaintiffs fail to show that their theory of damages is sufficiently linked to their theory of liability. See Comcast Corp. v. Behrend, — U.S. -,
In entering a default judgment against CCME, the Court accepted Jones’s analysis of the classwide damages that CCME’s misrepresentations caused. (Dkt. No. 192, Exh. 6.) Plaintiffs’ theory of liability is that DTT HK’s misrepresentations caused losses of the same kind: the artificial inflation of CCME’s share price. The Complaint alleges that DTT HK knowingly violated the securities laws. (See Compl. ¶ 156, Dkt. No. 63.) Consequently, if a factfinder agrees, under the PSLRA DTT HK would be jointly and severally liable for the damages caused by CCME. See 15 U.S.C. § 78u-4(f)(2)(A). Thus, the same damages report used to determine classwide damages against CCME can be used to determine classwide damages against DTT HK. Plaintiffs have therefore met their burden under Comcast.
DTT HK argues that Jones’s damages model cannot be used against DTT HK because the model attributes all of Plaintiffs’ damages to CCME. The Court is not persuaded that DTT HK reads Jones’s damages model properly. Jones’s model calculates the full loss attributable to all of the misstatements alleged in this action, but does not seek to apportion responsibility for the damages among the various speakers. While the Court’s default judgment against CCME held it liable for the full amount of the damages that Jones calculated, that was only because the Court found that CCME knowingly violated the securities laws and thus was jointly
A factfinder could also conclude that DTT HK violated the securities laws but did not do so knowingly. In that case, the factfinder would have to apportion liability to DTT HK according to its responsibility for the damages. See 15 U.S.C. § 78u-4(f)(2)(B)(i),' (f)(3). Whether under those circumstances Jones’s damages model would suffice to make out a classwide measure of damages as required under Comcast can be considered at the appropriate time. Should such a course then be warranted, it may be initiated by DTT HK in the form of a motion to decertify the class. See Sumitomo III,
IV. ORDER
For the reasons discussed above, it is hereby
ORDERED that the motion (Dkt. No. 177) of Lead Plaintiffs Irrevocable Trust FBO Lansing Davis and the Davis Partnership LP and additional plaintiffs John Haughton, Ethan Lamar Pierce and John Shaffer for class certification is GRANTED; and it is further
ORDERED that the motion (Dkt. No. 204) of defendant Deloitte Touche Tohmatsu in Hong Kong SAR to strike the opinions of Cynthia L. Jones is DENIED.
SO ORDERED.
. Certain information relevant to these arguments is subject a protective order stipulated to by the parties and entered by the Court. (Dkt. No. 172.) The parties have filed redacted copies of their papers on the public docket and submitted unredacted copies to the Court. The Court has reviewed the unredacted papers and considered them in reaching its decision.
. "A class certified pursuant to Rule 23(b)(3) is sometimes referred to as an 'opt-out' class because Rule 23(c)(2) mandates that members of a class certified pursuant to Rule 23(b)(3) be afforded the opportunity to 'request exclusion' from that class.” Vivendi,
. Courts must also determine whether the proffered testimony would be helpful to the trier of fact in its determination of the question presented. See Nimely,
. Other courts have accepted Marek as an expert in market efficiency. See, e.g., Billhofer v. Flamel Techs., S.A.,
. The cases that DTT HK cites to support its proposed test are distinguishable. In In re Federal Home Loan Mortgage Corp. (Freddie Mac) Securities Litigation,
. Both Jones and Christophe concluded, however, that the price decrease was not statistically significant.
. This observation should not be construed as relieving Plaintiffs from proving loss causation at the merits stage of this litigation. While the price impact of DTT HK's withdrawal of its audit opinion tends to disprove that the original audit opinion had no impact on CCME's stock price, Plaintiffs must do more to prove loss causation. See Dura Pharms., Inc. v. Broudo,
. Whether Jones's damages report accurately describes the damages suffered by the Proposed Class is an issue to be considered at the merits stage of this litigation. For the purposes of class certification, all Plaintiffs must show is a “proposed damages methodology ” to measure classwide damages. In re U.S. Foodservice Inc.,