By Brad Karp, Richard Rosen and Audra Soloway ( July 10, 2017, 4:10 PM EDT) -- On July 7, 2017, in In re Petrobras Securities Litigation, No. 16 Civ. 1914, the Second Circuit addressed the standards for certifying Rule 23(b)(3) classes in securities fraud cases concerning over-the-counter securities that trade in a global market. While acknowledging the administrative difficulties of determining which transactions are "domestic," and thus subject to the U.S. securities laws, the Second Circuit joined the Ninth Circuit in rejecting the Third Circuit's holding (and the Second Circuit's own prior dicta) that Rule 23's implied requirement of ascertainability includes a requirement of "administrative feasibility." The Second Circuit went on to hold that the district court's finding of predominance was inadequate in light of the same extraterritoriality issues.[1]...
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