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ARTICLE · 27 MARCH 2014

Securities Certification Requires Actual Evidence - In Re Kosmos Energy

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For some time, academics have been decrying the demise of the class action, arguing that the Supreme Court's precedent makes it harder than ever to certify a class under Rule 23.

United StatesLitigation, Mediation & Arbitration
Andrew J. Trask
Andrew J. Trask

For some time, academics have been decrying the demise of the class action, arguing that the Supreme Court's precedent makes it harder than ever to certify a class under Rule 23. And yet, as one practitioner I know observed, plaintiffs keep filing the things. And quite a few courts keep certifying them.

Now, however, at least one federal district court appears to be listening to the academy.

The case, In re Kosmos Energy Ltd. Secs. Litig., No. 3:12-CV-373-B, 2014 U.S. Dist. LEXIS 36365 (N.D. Tex. Mar. 19, 2014), appears to be an unremarkable stock-drop case, the exact kind that is often considered easy to certify. And that's exactly what plaintiffs argued.

The court, however, disagreed vehemently. In an opinion that cites liberally to Dean Robert Klonoff's article The Decline of Class Actions, it refused to certify the class because the plaintiffs did not meet their burden of proof for Rule 23. As the court explained the standard:

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