Sixth Circuit Practitioners: The Standard Is Coming, the Standard Is Coming!

Over the past several years, circuit courts have started to provide more specific guidance on the countours of the "rigorous" analysis required by district courts in deciding whether to certify a class.    The Second Circuit's decision in In re Initial Public Offerings Securities Litig., 471 F.3d 24 (2d Cir. 2006) and the Third Circuit's decision in In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008) are probably the most cited cases in this area, although most circuit courts have not specifically addressed this issue.

A few months ago, the Sixth Circuit finally decided to address the issue head on when it granted a Rule 23(f) interlocutory appeal "to clarify the scope and extent of the district court's obligation to resolve disputed factual issues in undertaking a rigorous analysis of the claims asserted as they relate to the class certification requirements" and to address "the question of the standard of proof a potential class representative must meet in demonstrating that the fraud on the market presumption is applicable to the claims asserted."  In re Abercombie & Fitch Co., et al., Case No. 09-0310 (Aug. 24, 2009 Order).

The Abercrombie case will set the standard within the Circuit and will be closely watched.