![]() ![]() But plaintiffs fail to grasp the distinction between saying something has not been proven without an admissible expert report and saying something cannot be proven without it. Plaintiffs also claim that the district court improperly required expert testimony to prove market efficiency.Thus we review for abuse of discretion the denial of class certification. The class certification decision rests within the sound discretion of the district court, so long as that discretion is exercised within the framework of rule 23. ![]() Yet, even if we were to consider this factor on appeal, both the caselaw and economic literature suggest "the mere number of market makers, without further analysis, has little to do with market efficiency." Unger, 401 F.3d at 324. They contend on appeal, however, that the presence of between seventeen and twenty-three market makers during the class period supports a finding of market efficiency. Nor did plaintiffs' briefing to the district court discuss the presence of market makers for Ascendant stock.Thus, in the market efficiency context, "lthough the court's determination for class certification purposes may be revised (or wholly rejected) by the ultimate factfinder, the court may not merely presume the facts in favor of an efficient market." Unger v. Only in its determination of whether the requirements of Rule 23 have been demonstrated. The findings made for resolving a class action certification motion serve the court The analysis under Rule 23 must focus on the requirements of the rule, and if findings made in connection with those requirements overlap findings that will have to be made on the merits, such overlap is only coincidental. Eisen's prohibition against assessing plaintiffs' likelihood of success on the merits as part of a Rule 23 certification does not mean that consideration of facts necessary to a Rule 23 determination is foreclosed merely because they are required to be proved as part of the merits.Accordingly, the fraud-on-the-market theory holds "only to the extent that markets efficiently reflect (and thus convey to investors the economic equivalent of) all public information". The central premise of the theory is that, in an efficient capital market, the market price of a stock reflects all public information hence an investor who purchases a stock in such a market is harmed if the price reflects false information as a consequence of a material misrepresentation. Fischel, Efficient Capital Markets, the Crash, and the Fraud on the Market Theory, 74 CORNELL L.REV. ![]() It does so by "interpreting the reliance requirement to mean reliance on the integrity of the market price rather than reliance on the challenged disclosure." Daniel R.
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