Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Alito, J., filed a concurring opinion, post, p. 482. Scalia, J., filed a dissenting opinion, post, p. 483. Thomas, J., filed a dissenting opinion, in which Kennedy, J., joined, and in which Scalia, J., joined except for Part I-B, post, p. 486.
Justice Ginsburg delivered the opinion of the Court.
This case involves a securities-fraud complaint filed by Connecticut Retirement Plans and Trust Funds (Connecticut Retirement) against biotechnology company Amgen Inc. and several of its officers (collectively, Amgen). Seeking class-action certification under Federal Rule of Civil Procedure 23, Connecticut Retirement invoked the “fraud-on-the-market” presumption endorsed by this Court in Basic Inc. v. Levinson, 485 U.S. 224, 108 S. Ct. 978, 99 L. Ed. 2d 194 (1988), and recognized most recently in Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 563 U.S. 804, 131 S. Ct. 2179, 180 L. Ed. 2d 24 (2011). The fraud-on-the-market premise is that the price of a security traded in an efficient market will reflect all publicly available information about a company; accordingly, a buyer of the security may be presumed to have relied on that information in purchasing the security.
that Connecticut Retirement meets all of the class-action prerequisites stated in Rule 23(a): (1) the alleged class “is so numerous that joinder of all members is impracticable”; (2) “there are questions of law or fact common to the class”; (3) Connecticut Retirement's claims are “typical of the claims . . . of the class”; and (4) Connecticut Retirement will “fairly and adequately protect the interests of the class.”
The issue presented concerns the requirement stated in Rule 23(b)(3) that “the questions of law or fact common to class members predominate over any questions affecting only individual members.” Amgen contends that to meet the predominance requirement, Connecticut Retirement must do more than plausibly plead that Amgen's alleged misrepresentations and misleading omissions materially affected Amgen's stock price. According to Amgen, certification must be denied unless Connecticut Retirement proves materiality, for immaterial misrepresentations or omissions, by definition, would have no impact on Amgen's stock price in an efficient market.
While Connecticut Retirement certainly must prove materiality to prevail on the merits, we hold that such proof is not a prerequisite to class certification. Rule 23(b)(3) requires a showing that questions common to the class predominate, not that those questions will be answered, on the merits, in favor of the class. Because materiality is judged according to an objective standard, the materiality of Amgen's alleged misrepresentations and omissions is a question common to all members of questions predominating. Instead, a failure of proof on the issue of materiality would end the case, given that materiality is an essential element of the class members' securities-fraud claims. As to materiality, therefore, the class is entirely cohesive: It will prevail or fail in unison. In no event will the individual circumstances of particular class members bear on the inquiry.
Essentially, Amgen, also the dissenters from today's decision, would have us put the cart before the horse. To gain certification under Rule 23(b)(3), Amgen and the dissenters urge, Connecticut Retirement must first establish that it will win the fray. But the office of a Rule 23(b)(3) certification ruling is not to adjudicate the case; rather, it is to select the “metho[d]” best suited to adjudication of the controversy “fairly and efficiently.”
I
A
This case involves the interaction between federal securities-fraud laws and Rule 23's requirements for class certification. To obtain certification of a class action for money damages under Rule 23(b)(3), a plaintiff purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation.” Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 37-38, 563 U.S. 27, 131 S. Ct. 1309, 179 L. Ed. 2d 398, 409 (2011) (internal quotation marks omitted).
“Reliance,” we have explained, “is an essential element of the §10(b) private cause of action” because “proof of reliance endorsed the “fraud-on-the-market” theory, which permits certain Rule 10b-5 plaintiffs to invoke a rebuttable presumption of reliance on material misrepresentations aired to the general public. Id., at 241-249, 108 S. Ct. 978, 99 L. Ed. 2d 194.
Part IV of Justice Blackmun's opinion in Basic--the part endorsing the fraud-on-the-market theory--was joined by Justices Brennan, Marshall, and Stevens. Together, these Justices composed a majority of the quorum of six Justices who participated in the case. See 28 U.S.C. §1 (“The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.”).
The fraud-on-the-market theory rests on the premise that certain well developed markets are efficient processors of public information. In such markets, the “market price of shares” will “reflec[t] all publicly available information.” Id., at 246, 108 S. Ct. 978, 99 L. Ed. 2d 194. Few investors in such markets, if any, can consistently achieve above-market returns by trading based on publicly available information alone, for if such above-market returns were readily attainable, it would mean that market prices were not efficiently incorporating the full supply of public information. See R. Brealey, S. Myers, & F. Allen, Principles of Corporate Finance 330 (10th ed. 2011) (“[I]n an efficient market, there is no way for most investors to achieve consistently superior rates of return.”).
In Basic, we held that if a market is shown to be efficient, courts may presume that investors who traded securities in that market relied on public, material misrepresentations regarding those securities. See 485 U. S., at 245-247. 108 S. Ct. 978, 99 L. Ed. 2d 194. This presumption springs from the very concept of market efficiency. If a market misrepresentations through their “reliance on the integrity of the price set by the market.” Id., at 245, 108 S. Ct. 978, 99 L. Ed. 2d 194. “[T]he presumption,” however, is “just that, and [can] be rebutted by appropriate evidence.” Halliburton, 563 U. S., at 811, 131 S. Ct. 2179, 180 L. Ed. 2d 24, at 32. See also Basic, 485 U. S., at 248-249, 108 S. Ct. 978, 99 L. Ed. 2d 194 (providing examples of showings that would rebut the fraud-on-the-market presumption).
Although fraud on the market is a substantive doctrine of federal securities-fraud law that can be invoked by any Rule 10b-5 plaintiff, see, e.g., Black v. Finantra Capital, Inc., 418 F.3d 203, 209 (CA2 2005); common to the class. See Basic, 485 U. S., at 242, 108 S. Ct. 978, 99 L. Ed. 2d 194. The fraud-on-the-market theory, however, facilitates class certification by recognizing a rebuttable presumption of classwide reliance on public, material misrepresentations when shares are traded in an efficient market. Ibid.
Although describing Basic's adoption of the fraud-on-the-market presumption of reliance as “questionable,” Justice Thomas dissent acknowledges that “the Court has not been asked to revisit” that issue. Post, at 489, n. 4, 185 L. Ed. 2d, at 334. See also post, p. 482, 185 L. Ed. 2d, at 330 (Alito, J., concurring).
B
In its complaint, Connecticut Retirement alleges that Amgen violated §10(b) and Rule 10b-5 through certain misrepresentations and misleading omissions regarding the safety, efficacy, and marketing of two of its flagship drugs. According to Connecticut Retirement, these misrepresentations and omissions artificially inflated the price of Amgen's stock at the time Connecticut Retirement and numerous other securities buyers purchased the stock. When the truth came to light, Connecticut Retirement asserts, Amgen's stock price declined, resulting in financial losses to those who purchased the stock at the inflated price. In its answer to Connecticut Retirement's complaint, Amgen conceded that “[a]t all relevant times, the market for [its] securities,” which are traded on the NASDAQ stock exchange, “was an efficient market”; thus, “the market for Amgen's securities promptly digested current information regarding Amgen from all publicly available sources and reflected such information in Amgen's stock price.” Consolidated Amended Class Action Complaint PP199-200 in No. CV-07-2536 (CD Cal.); Answer PP199-200.
Amgen's allegedly improper marketing practices have sparked federal and state investigations and several whistleblower lawsuits. See Dye, Amgen To Pay $762 Million in Drug-Marketing Case, Washington Post, Dec. 19, 2012, p. A17.
Amgen stock between the date of the first alleged misrepresentation and the date of the last alleged corrective disclosure. After granting Amgen's request to take an interlocutory appeal from the District Court's class-certification order, see Fed. Rule Civ. Proc. 23(f), the Court of Appeals affirmed. 660 F.3d 1170 (CA9 2011).
Amgen raised two arguments on appeal. First, Amgen contended that the District Court erred by certifying the proposed class without first requiring Connecticut Retirement to prove that Amgen's alleged misrepresentations and omissions were material. Second, Amgen argued that the District Court erred by refusing to consider certain rebuttal evidence that Amgen had proffered in opposition to Connecticut Retirement's class-certification motion. This evidence, in Amgen's view, demonstrated that the market was well aware of the truth regarding its alleged misrepresentations and omissions at the time the class members purchased their shares.
The Court of Appeals rejected both contentions. Amgen's first argument, the Court of Appeals noted, made the uncontroversial point that immaterial misrepresentations and omissions “by to ensure compliance with Rule 23(b)(3)'s requirement that common questions predominate. Id., at 1177.
With respect to Amgen's second argument, the Court of Appeals determined that Amgen's proffered rebuttal evidence was merely “a method of refuting [the] materiality” of the misrepresentations and omissions alleged in Connecticut Retirement's complaint. Ibid. Having already concluded that a securities-fraud plaintiff does not need to prove materiality before class certification, the court similarly held that “the district court correctly refused to consider” Amgen's rebuttal evidence “at the class certification stage.” Ibid.
We granted Amgen's petition for certiorari, 567 U.S. 905, 567 U.S. 905, 132 S. Ct. 2742, 183 L. Ed. 2d 614 (2012), to resolve a conflict among the Courts of Appeals over whether district courts must require plaintiffs to prove, and must allow defendants to present evidence rebutting, the element of materiality before certifying a class action under §10(b) and Rule 10b-5. Compare 660 F.3d 1170 (case below); and Schleicher v. Wendt, 618 F.3d 679, 687 (CA7 2010) (materiality need not be proved at the class-certification stage), with In re Salomon Analyst Metromedia Litigation, 544 F.3d 474, 484-485, 486, n. 9 (CA2 2008) (plaintiff must prove, and defendant may present evidence rebutting, materiality before class certification). See also In re DVI, Inc. Securities Litigation, 639 F.3d 623, 631-632, 637-638 (CA3 2011) (plaintiff need not prove materiality before class certification, but defendant may present rebuttal evidence on the issue).
II
A
The only issue before us in this case is whether Connecticut Retirement has satisfied Rule 23(b)(3)'s requirement that “questions of law or fact common to class members predominate over any questions affecting only & Jacquelin, 417 U.S. 156, 177, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974))); Advisory Committee's 2003 Note on subd. (c)(1) of Fed. Rule Civ. Proc. 23, 28 U.S.C. App., p. 144 (“[A]n evaluation of the probable outcome on the merits is not properly part of the certification decision.”).
Bearing firmly in mind that the focus of Rule 23(b)(3) is on the predominance of common questions, or omission. And without the fraud-on-the-market theory, the element of reliance cannot be proved on a classwide basis through evidence common to the class. See id., at 242, 108 S. Ct. 978, 99 L. Ed. 2d 194. It thus follows, Amgen contends, that materiality must be proved before a securities-fraud class action can be certified.
Contrary to Amgen's argument, the key question in this case is not whether materiality is an essential predicate of the fraud-on-the-market theory; indisputably it is. Instead, the pivotal inquiry is whether proof of materiality is needed to ensure that the questions of law or fact common to the class will “predominate over any questions affecting only individual members” as the litigation progresses. Fed. Rule Civ. Proc. 23(b)(3). For two reasons, the answer to this question is clearly “no.”
We agree with Justice Thomas that “[m]ateriality was central to the development, analysis, and adoption of the fraud-on-the-market theory both before Basic and in Basic itself.” Post, at 502, 185 L. Ed. 2d, at 342. We disagree, however, that the history of the fraud-on-the-market theory's development “confirms that materiality must be proved at the time that the theory is invoked-- i.e., at certification.” Ibid. As explained below, see infra, at 468-470,185 L. Ed. 2d, at 320-322, proof of materiality is not required prior to class certification because such proof is not necessary to ensure satisfaction of Rule 23(b)(3)'s predominance requirement.
First, because “[t]he question of materiality . . . is an objective one, involving the significance of an omitted or misrepresented fact to a reasonable investor,” materiality can be proved through evidence common to the class. TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 445, S. Ct. 978, 99 L. Ed. 2d 194 (listing “materiality” as one of the questions common to the Basic class members).
Second, there is no risk whatever that a failure of proof on the common question of materiality will result in individual the failure of proof on the element of materiality would end the case for one and for all; no claim would remain in which individual reliance issues could potentially predominate.
Totally misapprehending our essential point, Justice Thomas' dissent asserts that our “entire argument is based on the assumption that the fraud-on-the-market presumption need not be shown at certification because it will be proved later on the merits.” Post, at 495, n. 9, 185 L. Ed. 2d, at 338. Our position is not so based. We rest, instead, entirely on the text of Rule 23(b)(3), which provides for class certification if “the questions of law or fact common to class members predominate over any questions affecting only individual members.” A failure of proof on the common question of materiality ends the litigation and thus will never cause individual questions of reliance or anything else to overwhelm questions common to the class. Therefore, under the plain language of Rule 23(b)(3), plaintiffs are not required to prove materiality at the class-certification stage. In other words, they need not, at that threshold, prove that the predominating question will be answered in their favor.
Justice Thomas urges that a plaintiff seeking the market, the Rule 10b-5 element of reliance is not “susceptible of a classwide answer.” Post, at 491, 495, 185 L. Ed. 2d, at 335-338. See also post, at 496, 185 L. Ed. 2d, at 339 (“[I]f a plaintiff wishes to use Basic's presumption to prove that reliance is a common question, he must establish the entire presumption, including materiality, at the class certification stage.”).
Rule 23(b)(3), however, does not require a plaintiff seeking class certification to prove that each “elemen[t] of [her] claim [is] susceptible to classwide proof.” Post, at 491, 185 L. Ed. 2d, at 336. What the Rule does require is that common questions “ predominate over any questions affecting only individual [class] members.” Fed. Rule Civ. Proc. 23(b)(3) (emphasis added). Nowhere does Justice Thomas explain entirety; there will be no remaining individual questions to adjudicate.
Consequently, proof of materiality is not required to establish that a proposed class is “sufficiently cohesive to warrant adjudication by representation” --the focus of the predominance inquiry under Rule 23(b)(3). and thus cannot be said to “predominate” for purposes of Rule 23(b)(3).
Justice Thomas is also wrong in arguing that a failure of proof on the issue of materiality would demonstrate that a Rule 10b-5 class action “should not have been certified in the first place.” Post, at 487, 185 L. Ed. 2d, at 332. Quite the contrary. The fact that such a failure of proof resolves all class members' claims once and for all, leaving no individual issues to be adjudicated, confirms that the original certification decision was proper.
Because the question of materiality is common to the class, and because a failure of proof on that issue would not result in questions “affecting only individual members” predominating, Rule 23(b)(3), Connecticut Retirement was not required to prove the materiality of Amgen's alleged misrepresentations and omissions at the class-certification stage. This is not a case in which the asserted problem-- i.e., that the plaintiff class cannot prove materiality--“exhibits some fatal dissimilarity” among class members that would make use of the class-action device inefficient or unfair. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 107 (2009). Instead, what Amgen alleges is “a fatal similarity--[an alleged] failure of proof as to an element of the plaintiffs' cause of action.” Ibid. Such a contention is properly addressed at trial or in a ruling on a summary-judgment motion. The allegation should not be resolved in deciding whether to certify a proposed class. Ibid. See also Schleicher, 618 F.3d, at 687 (“[W]hether a statement is materially false is a question common to all class members and therefore may be resolved on a class-wide basis after certification.”).
B
Insisting that materiality must be proved at the class-certification stage, Amgen relies chiefly on two arguments, neither of which we find persuasive.
Amgen advances a third argument founded on modern economic research tending to show that market efficiency is not “ 'a binary, yes or no question.' ” Brief for Petitioners 32 (quoting Langevoort, Basic at Twenty: Rethinking Fraud on the Market, 2009 Wis. L. Rev. 151, 167). Instead, this research suggests, differences in efficiency can exist within a single market. For example, a market may more readily process certain forms of widely disseminated and easily digestible information, such as public merger announcements, than information more difficult to acquire and understand, such as obscure technical data buried in a filing with the Securities and Exchange Commission. See, e.g., Macey & Miller, Good Finance, Bad Economics: An Analysis of the Fraud-on-the-Market Theory, 42 Stan. L. Rev. 1059, 1083-1087 (1990); Stout, The Mechanisms of Market Inefficiency: An Introduction to the New Finance, 28 J. Corp. L. 635, 653-656 (2003). Amgen, however, never clearly explains how this research on market efficiency bolsters its argument that courts should require precertification proof of materiality. In any event, this case is a poor vehicle for exploring whatever implications the research Amgen cites may have for the fraud-on-the-market presumption recognized in Basic. As noted above, see supra, at 463, 185 L. Ed. 2d, at 318, Amgen conceded in its answer that the market for its securities is “efficient” and thus “promptly digest[s] current information regarding Amgen from all publicly available sources and reflect[s] such information in Amgen's stock price.” Consolidated Amended Class Action Complaint PP199-200; Answer PP199-200. See also App. to Pet. for Cert. 40a (relying on the admission in Amgen's answer and an unchallenged expert report submitted by Connecticut Retirement, the District Court expressly found that the market for Amgen's stock was efficient). Amgen remains bound by that concession. See American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (CA9 1988) (“Factual assertions in pleadings and pretrial orders, unless amended, are considered judicial admissions conclusively binding on the party who made them.”); cf. Christian Legal Soc'y Chapter of Univ. of Cal., Hastings College of Law v. Martinez, 561 U.S. 661, 677, 561 U.S. 661, 130 S. Ct. 2971, 177 L. Ed. 2d 838, 878 (2010) (“This Court has . . . refused to consider a party's argument that contradicted a joint 'stipulation [entered] at the outset of th[e] litigation.' ” (quoting Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 226, 120 S. Ct. 1346, 146 L. Ed. 2d 193 (2000))). We thus find nothing in the cited research that would support requiring precertification proof of materiality in this case.
1
Amgen points first to our statement in Halliburton that “securities fraud plaintiffs must prove certain things in order to invoke Basic's rebuttable the misrepresentations were made and the time the truth was revealed.' " 563 U. S., at 811, 131 S. Ct. 2179, 180 L. Ed. 2d 24, at 32 (quoting Basic, 485 U. S., at 248, n. 27, 108 S. Ct. 978, 99 L. Ed. 2d 194). See also Dukes, 564 U. S., at 351, n. 6, 131 S. Ct. 2541, 180 L. Ed. 2d 374, at 391 (“[P]laintiffs seeking 23(b)(3) certification [of a securities-fraud class action] must prove that their shares were traded on an efficient market.”). If these fraud-on-the-market predicates must be proved before class certification, Amgen contends, materiality--another fraud-on-the-market predicate--should be treated no differently.
We disagree. As an initial matter, the requirement that a putative class representative establish that it executed trades “between the time the misrepresentations were made and the time the truth was revealed” relates primarily to the Rule 23(a)(3) and (a)(4) inquiries into typicality and adequacy of representation, not to the Rule 23(b)(3) predominance inquiry. Basic, 485 U. S., at 248, n. 27, 108 S. Ct. 978, 99 L. Ed. 2d 194. A security's market price cannot be affected investors who did trade during the window between misrepresentation and truth revelation. Fed. Rule Civ. Proc. 23(a)(3). Nor could a court confidently conclude that such a plaintiff would “fairly and adequately protect the interests” of investors who traded during the relevant window. Rule 23(a)(4). The requirement that the fraud-on-the-market theory's trade-timing predicate be established before class certification thus sheds little light on the question whether materiality must also be proved at the class-certification stage.
As earlier noted, see supra, at 459, 185 L. Ed. 2d, at 315, Amgen does not here contest Connecticut Retirement's satisfaction of Rule 23(a)'s requirements.
Accordingly, “the timing of the relevant stock trades” is indeed an “element” of the fraud-on-the-market theory. Post, at 490, n. 6, 185 L. Ed. 2d, at 335 (opinion of Thomas, J.). Unlike Justice Thomas, however, see ibid., we do not understand the United States as amicus curiae to take a different view. See Brief for United States 15, n. 2 (“Precise identification of the times when the alleged misrepresentation was made and the truth was subsequently revealed is . . . important to ensure that the named plaintiff has traded stock during the time the stock price allegedly was distorted by the defendant's misrepresentations.”).
Amgen is not aided by Halliburton’s statement that market efficiency and the public nature of the alleged misrepresentations must be proved before a securities-fraud class action can be certified. As Amgen notes, market efficiency, publicity, and materiality can all be proved on a classwide basis. Furthermore, they are all essential predicates of the fraud-on-the-market theory. Unless those predicates are established, there is no basis for presuming that the defendant's alleged misrepresentations were reflected in the security's market price, and hence no grounding for any contention that investors indirectly therefore, could not be certified under Rule 23(b)(3) as a class action, but the initiating plaintiff's claim would remain live; it would not be “dead on arrival.” 660 F.3d, at 1175.
A failure of proof on the issue of materiality, in contrast, not only precludes a plaintiff from invoking the fraud-on-the-market proof on the issue of materiality ends the case for the class and for all individuals alleged to compose the class. See Brief for United States as Amicus Curiae 20 (“Unless the failure of common proof gives rise to a need for individualized proof, it does not cast doubt on the propriety of class certification.”). In short, there can be no actionable reliance, individually or collectively, on immaterial information. Because a failure of proof on the issue of materiality, unlike the issues of market efficiency and publicity, does not give rise to any prospect of individual questions overwhelming common ones, materiality need not be proved prior to Rule 23(b)(3) class certification.
2
Amgen also contends that certain “policy considerations” militate in favor of requiring stage, Amgen contends, the issue may never be addressed by a court, for the defendant will surrender and settle soon after a class is certified. Insistence on proof of materiality before certifying a securities-fraud class action, Amgen thus urges, ensures that the issue will be adjudicated and not forgone. See also post, at 485-486, 185 L. Ed. 2d, at 332 (Scalia, J., dissenting) (expressing the same concerns).
In this regard, however, materiality does not differ from other essential elements of a Rule 10b-5 claim, notably, the requirements that the statements or omissions on which the plaintiff's claims are based were false or misleading and that the alleged statements or omissions caused the plaintiff to suffer economic loss. See Matrixx Initiatives, 563 U. S., at 37-38, 131 S. Ct. 1309, 179 L. Ed. 2d 398, at 409. Settlement pressure exerted by class certification may prevent judicial resolution of these issues. Yet this Court has held that loss causation and the falsity or misleading nature of the defendant's alleged statements or omissions are common questions that need not be adjudicated before a class is certified. See Halliburton, 563 U. S., at 809, 131 S. Ct. 2179, 180 L. Ed. 2d 24, at 30 (loss causation need not be proved at the class-certification stage); Basic, 485 U. S., at 242, 108 S. Ct. 978, 99 L. Ed. 2d 194 (“the falsity or misleading nature of the . . . public statements” allegedly made by the defendant is a “common questio[n]”). See also Schleicher, 618 F.3d, at 685 (falsity of alleged misstatements need not be proved before certification of a securities-fraud class action).
Congress, we count it significant, has addressed the settlement pressures associated with securities-fraud class actions through means other than requiring proof of materiality at the class-certification stage. In enacting the Private Securities Litigation Reform Act of 1995 (PSLRA), 109 Stat. 737, litigation by bringing class-action suits under state rather than federal law. See 15 U.S.C. §78bb(f)(1) (2006 ed.).
to make its own further adjustments by reinterpreting Rule 23 to make likely success on the merits essential to class certification in securities-fraud suits.” Schleicher, 618 F.3d, at 686; cf. Smith v. Bayer Corp., 564 U.S. 299, 317-318, 564 U.S. 299, 131 S. Ct. 2368, 180 L. Ed. 2d 341, 356 (2011) (“Congress's decision to address the relitigation concerns associated with class actions through the mechanism of removal provides yet another reason for federal courts to adhere in this context to longstanding principles of preclusion.”).
In addition to seeking our aid in warding off “in terrorem” settlements, Amgen also argues that requiring proof of materiality before class certification would conserve judicial resources by sparing judges the task of overseeing large class proceedings in which the essential element of reliance cannot be proved on a classwide basis. In reality, however, it is Amgen's position, not the judgments of the lower courts in this case, that would waste judicial resources. Amgen's argument, if embraced, would necessitate a minitrial on the issue of materiality at the class-certification stage. Such preliminary adjudications would entail considerable expenditures of which instructs that the decision whether to certify a class action be made “[a]t an early practicable time.” If the class is certified, materiality might have to be shown all over again at trial. And if certification is denied for failure to prove materiality, nonnamed class members would not be bound by that determination. See Smith, 564 U. S., at 312-318, 131 S. Ct. 2368, 180 L. Ed. 2d 341, 353. They would be free to renew the fray, perhaps in another forum, perhaps with a stronger showing of materiality.
Given the tenuousness of Amgen's judicial-economy argument, Amgen's policy arguments ultimately return to the contention that private securities-fraud actions should be hemmed in to mitigate their potentially “vexatiou[s]” character. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 739, 95 S. Ct. 1917, 44 L. Ed. 2d 539 (1975). We have already noted what Congress has done 127 S. Ct. 2499, 168 L. Ed. 2d 179 (2007); see H. R. Conf. Rep. No. 104-369, at 31; Brief for United States as Amicus Curiae 1. See also Amchem, 521 U. S., at 617, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (“ 'The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.' ” (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (CA7 1997))). We have no warrant to encumber securities-fraud litigation by adopting an atextual requirement of precertification proof of materiality that Congress, despite its extensive involvement in the securities field, has not sanctioned.
C
Justice Scalia acknowledges that proof of materiality is not required to satisfy Rule 23(b)(3)'s predominance requirement. See post, at 483, 185 L. Ed. 2d, at 330. Nevertheless, he maintains that full satisfaction of Rule 23's requirements is insufficient to obtain class certification under Basic. In Justice Scalia's view, the Court's decision in Basic established a special rule: A securities-fraud class action cannot be certified unless all of the prerequisites of the fraud-on-the-market presumption of reliance, including materiality, have first been established. Post, at 484, 185 L. Ed. 2d, at 330.
The purported rule is Justice Scalia's invention. It cannot be attributed to anything the Court said in Basic. That decision is best known for its endorsement of the fraud-on-the-market theory. But the opinion also established something more. It stated the proper standard for judging but reversed the grant of summary judgment. Id., at 229, 108 S. Ct. 978, 99 L. Ed. 2d 194. This Court, in turn, vacated the Court of Appeals' judgment and remanded for further proceedings on the defendants' summary-judgment motion in light of the materiality standard set forth in the Court's opinion. Id., at 240-241, 250, 108 S. Ct. 978, 99 L. Ed. 2d 194. Notably, however, we did not disturb the District Court's class-certification order, which we stated “was appropriate when made.” Id., at 250, 108 S. Ct. 978, 99 L. Ed. 2d 194.
Scouring the Court's decision in Basic for some semblance of support for his position, Justice Scalia attaches portentous significance to Basic's statement that the District Court's class-certification order, although “ 'appropriate when made,' ” was “ 'subject on remand to such adjustment, if any, as developing circumstances demand[ed].' ” Post, at 484, 185 L. Ed. 2d, at 331 (quoting Basic, 485 U. S., at 250, 108 S. Ct. 978, 99 L. Ed. 2d 194). This statement, however, merely reminds that certifications are not frozen once made. Rule 23 empowers district courts to “alte[r] or amen[d]” class-certification orders based on circumstances developing as the case unfolds. Rule 23(c)(1) (1988). See also Rule 23(c)(1)(C) (2013).
If Justice Scalia were correct that our decision in Basic demands proof of materiality that further proceedings were necessary to determine whether the plaintiffs had mustered sufficient evidence to satisfy the relatively lenient standard for avoiding summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (“[S]ummary judgment will not lie if . . . the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”). Unlike Justice Scalia, we are unwilling to presume that Basic announced a rule requiring precertification proof of materiality when Basic failed to apply any such rule to the very case before it.
Justice Scalia suggests that the Court's approach in Basic might have been influenced by the obsolete view that “ ' Rule 23 . . . set[s] forth a mere pleading standard.' ” Post, at 484, 185 L. Ed. 2d, at 331 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S. Ct. 2541, 180 L. Ed. 2d 374, 390 (2011). The opinion in Basic, however, provides no indication that the Court perceived any issue before it to turn on the question whether a plaintiff must merely plead, rather than “affirmatively demonstrate,” her satisfaction of Rule 23's certification requirements. Dukes, 564 U. S., at 350, 131 S. Ct. 2541, 180 L. Ed. 2d 374, at 390.
III
Amgen also argues that the District Court erred by refusing to consider the rebuttal evidence Amgen proffered in opposing Connecticut Retirement's class-certification motion. This evidence, Amgen contends, showed that “in light of all the information available to the market,” its alleged misrepresentations and misleading omissions “could not be presumed to have altered the market price because they would not have 'significantly altered the total mix of information documents--including the committee's meeting agenda, which was published in the Federal Register more than a month before the meeting--stating that safety concerns associated with Amgen's drug would be discussed at the meeting. See id., at 41a-42a. See also 69 Fed. Reg. 16582 (2004).
The District Court did not err, we agree with the Court of Appeals, by disregarding Amgen's rebuttal evidence in deciding whether Connecticut Retirement's proposed class satisfied Rule 23(b)(3)'s predominance requirement. The Court of Appeals concluded, and Amgen does not contest, that Amgen's rebuttal evidence aimed to prove that the misrepresentations and omissions alleged in Connecticut Retirement's complaint were immaterial. 660 F.3d, at 1177 (characterizing Amgen's rebuttal evidence as an attempt to present a “ 'truth-on-the-market' defense,” which the Court of Appeals explained “is a method of refuting an alleged misrepresentation's materiality”). See also Reply Brief 17 (Amgen's evidence was offered to rebut the “materiality predicate” of the fraud-on-the-market theory). As explained above, however, of classwide reliance will collapse. But again, as earlier explained, see supra, at 467-470, 185 L. Ed. 2d, at 320-322, individual reliance questions will not overwhelm questions common to the class, for the class members' claims will have failed on their merits, thus bringing the litigation to a close. Therefore, just as a plaintiff class's inability to prove materiality creates no risk that individual questions will predominate, so even a definitive rebuttal on the issue of materiality would not undermine the predominance of questions common to the class.
We recognized as much in Basic itself. A defendant could “rebut the [fraud-on-the-market] presumption of reliance,” evidence for summary judgment or trial. It was not required to consider the evidence in determining whether common questions predominated under Rule 23(b)(3).
Amgen attempts to minimize the import of this statement by noting that it was made prior to a 2003 amendment to Rule 23 that eliminated district courts' authority to conditionally certify class actions. See Advisory Committee's 2003 Note on subd. (c)(1) of Fed. Rule Civ. Proc. 23, 28 U.S.C. App., p. 144. Nothing in our opinion in Basic, however, suggests that the statement relied in any way on district courts' conditional-certification authority. To the contrary, the Court in Basic stated: “Proof of that sort [ i.e., that news of the truth had entered the market and dissipated the effects of prior misstatements] is a matter for trial, throughout which the District Court retains the authority to amend the certification order as may be appropriate.” 485 U. S., at 249, n. 29, 108 S. Ct. 978, 99 L. Ed. 2d 194 (emphasis added). Rule 23(c)(1)(C) continues to provide that a class-certification order “may be altered or amended before final judgment.”
* * *
For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is affirmed.
It is so ordered.
Concur by:Alito
Concur
Justice Alito, concurring.
I join the opinion of the Court with the understanding that the petitioners did not ask us to revisit Basic's fraud-on-the-market presumption. See Basic Inc. v. Levinson, 485 U.S. 224, 108 S. Ct. 978, 99 L. Ed. 2d 194 (1988). As the dissent observes, more recent evidence suggests that the presumption may rest on a faulty economic premise. Post, at 489, n. 4, 185 L. Ed. 2d, at 334 (opinion of Thomas, J.); see Langevoort, Basic at Twenty: Rethinking Fraud on the Market, 2009 Wis. L. Rev. 151, 175-176. In light of this development, reconsideration of the Basic presumption may be appropriate.
Dissent by:Scalia; Thomas
Dissent
Justice Scalia, dissenting.
I join the principal dissent, that of Justice Thomas, except for Part I-B.
The fraud-on-the-market rule says that purchase or sale of a security in a well functioning market establishes reliance on a material misrepresentation known to the market. This rule is to be found nowhere in the United States Code or in the common law of fraud or deception; it was invented by the Court in Basic Inc. v. Levinson, 485 U.S. 224, 108 S. Ct. 978, 99 L. Ed. 2d 194 (1988). Today's Court applies stage even when materiality has not been shown. That would be a correct procedure if Basic meant the rule it announced to govern only the question of substantive liability--what must be shown in order to prevail. If that were so, the new substantive rule, like the more general substantive rule that reliance must be proved, would be subject, at the certification stage, to the commonality analysis of Rule 23(b)(3). In my view, however, the Basic rule of fraud-on-the-market--a well functioning market plus purchase or sale in the market plus material misrepresentation known to the market establishes a necessary showing of reliance--governs not only the question of substantive liability, but also the question whether certification is proper. All of the elements of that rule, including materiality, must be established if and when it is relied upon to justify certification. The answer to the question before us today is to be found not in Rule 23(b)(3), but in the opinion of Basic.
Basic established a presumption that the misrepresentation under the appropriate legal standard: “The District Court's certification of the class here was appropriate when made but is subject on remand to such adjustment, if any, as developing circumstances demand.” Id., at 250, 108 S. Ct. 978, 99 L. Ed. 2d 194. Those circumstances are the establishment of facts that rebut the presumption, including of facts that show the misrepresentation was not material, or was not known to the market.
The Court argues that if materiality were a predicate to certification on a fraud-on-the-market theory, the Basic Court would not have approved the class certification order while remanding for reconsideration of “whether the plaintiffs had mustered sufficient evidence to satisfy the relatively lenient standard for avoiding summary judgment.” See Ante, at 480, 185 L. Ed. 2d, at 328. The Court manufactures an inconsistency on the basis of doctrine that did not govern class certification at the time of Basic. We recently clarified that “Rule 23 does not set forth a mere pleading standard.” Wal-Mart Stores, Inc. on remand to rebut the pleading in order to defeat certification.
As for the Court's contention that I have “[s]cour[ed] the Court's decision in Basic” to find “some semblance of support” for my reading of the case, ante, at 479, n. 9, 185 L. Ed. 2d, at 328: It does not take much scouring to come across the Court's opening statement that “[w]e granted certiorari . . . to determine whether the courts below properly applied a presumption of reliance in certifying the class.” 485 U. S., at 230, 108 S. Ct. 978, 99 L. Ed. 2d 194 (emphasis added).
Certification of the class is often, if not usually, the prelude to a substantial settlement by the defendant because the costs and risks of litigating further are so high. It does an injustice to the Basic Court to presume without clear evidence--and indeed in the face of language to the contrary--that it was establishing a regime in which not only those market class-action suits that have earned the presumption of reliance pass beyond the crucial certification stage, but all market-purchase and market-sale class-action suits do so, no matter what the alleged misrepresentation. The opinion need not be read this way, and it should not.
The fraud-on-the-market theory approved by Basic envisions a demonstration of materiality not just for substantive recovery but for certification. Today's holding does not merely accept what some consider the regrettable consequences of the four-Justice opinion in Basic; it expands those consequences from the arguably regrettable to the unquestionably disastrous.
Justice Thomas, with whom Justice Kennedy joins, and with whom Justice Scalia joins except for Part I-B, dissenting.
I
The Court today allows plaintiffs to obtain certification of securities-fraud class actions without proof that common questions predominate over individualized questions of reliance, in contravention of Federal Rule of Civil Procedure 23(b)(3). The Court does so by all but eliminating materiality as one of the predicates of the fraud-on-the-market theory, which serves as an alternative mode of establishing reliance. See Basic Inc. v. Levinson, 485 U.S. 224, 241-250, 108 S. Ct. 978, 99 L. Ed. 2d 194 (1988). Without demonstrating materiality at certification, plaintiffs cannot establish Basic's fraud-on-the-market presumption. Without proof of fraud on the market, plaintiffs cannot show that otherwise individualized questions of reliance will predominate, as required by Rule 23(b)(3). And without satisfying Rule 23(b)(3), class certification is improper. Fraud on the market is thus a condition precedent to class certification, without which individualized questions of reliance will defeat certification.
The Court's cannot be excused of their Rule 23 burden to show at certification that questions of reliance are common merely because they might lose later on the merits element of materiality. Because a securities-fraud plaintiff invoking Basic's fraud-on-the-market presumption to satisfy Rule 23(b)(3) should be required to prove each of the predicates of that theory at certification in order to demonstrate that questions of reliance are common to the class, I respectfully dissent.
A
We begin with §10 of the Siracusano, 563 U.S. 27, 37, 563 U.S. 27, 131 S. Ct. 1309, 179 L. Ed. 2d 398, 409 (2011). See also Superintendent of Ins. of N. Y. v. Bankers Life & Casualty Co., 404 U.S. 6, 13, n. 9, 92 S. Ct. 165, 30 L. Ed. 2d 128 (1971) (“It is now established that a private right of action is implied under §10(b)). The elements of an implied §10(b) cause of action for securities fraud are “ '(1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation.' " Matrixx, supra, at 37-38, 131 S. Ct. 1309, 179 L. Ed. 2d 398, at 409 (quoting Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, 157, 128 S. Ct. 761, 169 L. Ed. 2d 627 (2008)). This case concerns the reliance element of the §10(b) claim and its interaction with Rule 23(b)(3).
“(b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange . . . any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe . . . .”
“(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.”
To prove reliance, a plaintiff, whether proceeding individually or as a class member, must show that his stock transaction are unable to meet the traditional reliance requirement because they cannot establish that they “engaged in a relevant transaction . . . based on [a] specific misrepresentation.” Erica P. John Fund, supra, at 810, 131 S. Ct. 2179, 180 L. Ed. 2d 24, at 31.
Courts have also “referred to the element of reliance as 'transaction causation.' ” Erica P. John Fund, 563 U. S., at 812, 131 S. Ct. 2179, 180 L. Ed. 2d 24, at 32 (quoting Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 341-342, 125 S. Ct. 1627, 161 L. Ed. 2d 577 (2005), in turn citing Basic Inc. v. Levinson, 485 U.S. 224, 248-249, 108 S. Ct. 978, 99 L. Ed. 2d 194 (1988)). This alternative phrasing recognizes that the reliance inquiry is directed at determining whether a particular piece of information caused an individual to enter into a given transaction.
This concern was the driving force behind the development of the fraud-on-the-market theory adopted in Basic. Because individuals trading stock on an impersonal market often cannot show reliance even for purposes of an individual securities-fraud action, Basic permitted “plaintiffs to invoke a rebuttable presumption of reliance.” Erica P. John Fund, supra, at 811, 131 S. Ct. 2179, 180 L. Ed. 2d 24, at 32. Basic presumes that “ 'in an open and developed purchasers do not directly rely on the misstatements.' " 485 U. S., at 241-242, 108 S. Ct. 978, 99 L. Ed. 2d 194. As a result, “[a]n investor who buys or sells stock at the price set by the market does so in reliance on the integrity of that price,” and “an investor's reliance on any public material misrepresentations” may therefore “be presumed for purposes of a Rule 10b-5 action.” Id., at 247, 108 S. Ct. 978, 99 L. Ed. 2d 194 (emphasis added).
Moreover, the Court acknowledges there is disagreement as to whether market efficiency is “ ' “a binary, yes or no question,” ' ” or instead operates differently depending on the information at issue, see ante, at 470, n. 6, 185 L. Ed. 2d, at 322 (quoting Brief for Petitioners 32, in turn quoting Langevoort, Basic at Twenty: Rethinking Fraud on the Market, 2009 Wis. L. Rev. 151, 167).
Basic “adopt[ed] the TSC Industries standard of materiality for the §10(b) and Rule 10b-5 context.” 485 U. S., at 232, 108 S. Ct. 978, 99 L. Ed. 2d 194. That standard indicates that “ '[a]n omitted fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote.' " Id., at 231, 108 S. Ct. 978, 99 L. Ed. 2d 194 (quoting TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S. Ct. 2126, 48 L. Ed. 2d 757 (1976); alteration in original). “[T]o fulfill the materiality requirement 'there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the “total mix” of information made available.' " 485 U. S. , at 231-232, 108 S. Ct. 978, 99 L. Ed. 2d 194 (quoting TSC Industries, supra, at 449, 96 S. Ct. 2126, 48 L. Ed. 2d 757).
If a plaintiff opts to show reliance through fraud on the market, Basic is clear that the plaintiff must show the following predicates in order to prevail: (1) an efficient market, (2) a public statement, (3) that the stock was traded after the statement was made but before the truth was revealed, and (4) the materiality of the statement. Id., at 248, n. 27, 108 S. Ct. 978, 99 L. Ed. 2d 194. Both the Court and respondent agree that materiality is a necessary component of fraud on the market. See, e.g., ante, at 467, 185 L. Ed. 2d, at 320 (materiality is “indisputably” “an essential predicate of the fraud-on-the-market theory”); Brief for Respondent 29 (“If the statement is not materially false, then no one in the class can establish reliance via the integrity of the market”). The materiality of a specific statement is, therefore, essential to the fraud-on-the-market presumption, which in turn enables a plaintiff to prove reliance.
The United States as amicus curiae invokes Rule 23(a)(3) to suggest that the third element, the timing of the relevant stock trades, is a “limit on the definition of the class.” Brief for United States 15, n. 2. But it is also necessary to establish the timing of the allegedly material, public misstatement made into an allegedly efficient market (as well as when the fraud ended due to entry of truth on the market) before the fraud-on-the-market theory can be evaluated under Rule 23(b)(3). Thus, the lower court opinion in Basic expressly identified “the time the misrepresentations were made and the time the truth was revealed” as part of fraud on the market. Levinson v. Basic Inc., 786 F.2d 741, 750 (CA6 1986). The Basic Court cited the formulation approvingly, 485 U. S., at 248, n. 27, 108 S. Ct. 978, 99 L. Ed. 2d 194, and recently in Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 131 S. Ct. 2179, 180 L. Ed. 2d 24, at 32 (2011), the Court cited the same language as part of the “undisputed” elements a securities-fraud plaintiff must prove to invoke Basic. 563 U. S., at 811, 131 S. Ct. 2179, 180 L. Ed. 2d 24, at 32 (quoting Basic, supra, at 248, n. 27, 108 S. Ct. 978, 99 L. Ed. 2d 194). Unless the timing of the misrepresentation and truth is established at certification, there is no framework within which to determine whether fraud on the market renders reliance a common question. Thus, insofar as the majority recognizes that timing is a factor of the fraud-on-the-market theory, ante, at 472, n. 8, 185 L. Ed. 2d, at 324, I agree. It would be incorrect to suggest that timing solely relates to Rules 23(a)(3) and (4). It is equally important to establish the timing range at certification for Rule 23(b)(3) reliance purposes. This fact undercuts the majority's attempt to isolate materiality as the only factor of fraud on the market that need not be shown at certification to demonstrate that reliance is a common question.
B
Basic's fraud-on-the-market presumption is highly significant because it makes securities-fraud class actions possible by converting the inherently individual reliance inquiry into a question common to the class, which is necessary to satisfy the dictates of Rule 23(b)(3). Rule 23(b)(3) requires the party seeking certification to prove that “questions of law or 23(b)(3) certification must prove that their shares were traded on an efficient market,” an element of the fraud-on-the-market theory (emphasis added)). Without that proof, there is no justification for certifying a class because there is no “ 'capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.' " Id., at 350, 131 S. Ct. 2541, 180 L. Ed. 2d 374, at 390 (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 132 (2009)).
There is no dispute that respondent meets the prerequisites of Fed. Rule Civ. Proc. 23(a).
If plaintiffs fail to show that reliance is a common question at the time of certification, certification is improper. For if reliance is not a common question, each plaintiff would be required to prove that he in fact relied on a misstatement, a showing which is simply not susceptible to classwide proof. Individuals make stock transactions for divergent, even idiosyncratic, reasons. As the leading pre- Basic fraud-on-the-market case recognized, “[a] purchaser on the stock exchanges may be either unaware of a specific false representation, or may not directly rely on it; he may purchase because of a favorable price trend, price earnings ratio, or some other factor.” Blackie v. Barrack, 524 F.2d 891, 907 (CA9 1975). The inquiry's inherently individualized nature renders it impossible to generate the common answers necessary for certification under Rule 23(b)(3). See Basic, 485 U. S., at 242, 108 S. Ct. 978, 99 L. Ed. 2d 194 (“Requiring proof of individualized reliance from each member of the proposed plaintiff class effectively would have prevented respondents from proceeding with a class action, since individual issues then would have overwhelmed the common ones”).
The Court's solution in Basic was to allow putative class members to prove reliance through the fraud-on-the-market presumption. Id., at 241-250, 108 S. Ct. 978, 99 L. Ed. 2d 194. As the Court today recognizes, failure to establish fraud on the market “leaves open the prospect of individualized proof of reliance.” Ante, at 474, 185 L. Ed. 2d, at 324. Notably, the Court and the Ninth Circuit both acknowledge that in order to obtain the benefit of the presumption, there are common questions of reliance at the time of class certification.
Nevertheless, the Court asserts that materiality--by its own admission an essential predicate to invoking fraud on the market--need not be established at certification because it will ultimately be proved at the merits stage. Ante, at 473-474, 185 L. Ed. 2d, at 324-325. This assertion is an express admission that parties will not know at certification whether reliance is an individual or common question.
the litigation on an independent merits element.
The majority ignores this explanation of the fundamental flaw in its position, asserting that I never “explain how . . . a plaintiff class's failure to prove an essential element of its claim for relief will result in individual questions predominating over common ones.” Ante, at 469, 185 L. Ed. 2d, at 321. But a plaintiff, who is excused from his burden of showing, at certification that reliance is a common question, fails to demonstrate that common questions predominate over the individualized questions of reliance that are inherent in a securities fraud claim. A plaintiff must carry this burden at certification for certification to be proper. The majority does not respond to the inherent timing problem in its position. It does not explain how ignoring questions of reliance--that undeniably will be individualized in some cases-- at certification is justified by the fact that those questions will be resolved months or years later on the merits in a way that indicates reliance was indeed an individualized question all along. Far from obeying the dictates of Rule 23(b)(3) as it claims, ante, at 469-470, 185 L. Ed. 2d, at 321-322, the majority unjustifiably puts off a critical part of the Rule 23(b)(3) inquiry until the merits. The only way the majority can purport to follow Rule 23(b)(3) is by ignoring the fact that, under its own analysis, reliance may be an individualized question that predominates over common questions at certification.
It is the Court, not Amgen, that “would have us put the cart before the horse,” ante, at 460, 185 L. Ed. 2d, at 316, by jumping chronologically to the §10(b) merits element of materiality. But Rule 23, as well as common sense, requires class certification issues to be addressed first. See Rule 23(c)(1)(A) (“At an early practicable time after a person sues or is sued . . . the court must determine by order whether to certify the action as a class may be put off until later because an adverse merits determination will retroactively wipe out the entire class. However, a plaintiff who cannot prove materiality cannot prove fraud on the market and, thus, cannot demonstrate that the question of reliance is susceptible of a classwide answer.
The fact that a statement may prove to be material at the merits stage does not justify conflating the doctrinally independent (and distinct) elements of materiality and reliance. The Court's error occurs when, instead of asking plaintiff wishes to use Basic's presumption to prove that reliance is a common question, he must establish the entire presumption, including materiality, at the class certification stage.
Of course, the Court's assertion that materiality will be resolved on the merits presumes that certification will not bring in terrorem settlement pressures to bear, foreclosing any materiality inquiry at all. The Court dismisses this concern, ante, at 474-477, 185 L. Ed. 2d, at 325-326, attempting to give fraud-on-the-market analysis the imprimatur of congressional enactment instead of recognizing it as a judicially created doctrine grafted onto an implied cause of action. But the fact that Congress has enacted legislation to curb excesses in securities litigation while leaving Basic intact, see ante, at 475-476, 185 L. Ed. 2d, at 325-326, says nothing about the proper interpretation of Basic at issue here. The Court retains discretion over the contours of Basic unless and until Congress sees fit to alter them--a fact Congress must also have realized when it passed the Private Securities Litigation Reform Act of 1995, 109 Stat. 737, and other legislation. The Court's entire argument is based on the assumption that the fraud-on-the-market presumption need not be shown at certification because it will be proved later on the merits; insofar as certification makes that later determination unlikely to occur, it at least counsels against the certitude with which the Court assures us that its gloss on Basic is correct.
Nor is it relevant, as respondent argues, that requiring plaintiffs to establish all predicates of fraud on the market at certification will make it more difficult to obtain certification. See Brief for Respondent 35-38. In Basic, four Justices of to save otherwise inadequate claims.
II
The majority's approach is, thus, doctrinally incorrect under Basic. Its shortcomings are further highlighted by the role that materiality played in the pre- Basic development of the fraud-on-the-market theory as a condition precedent to showing that there are common questions of reliance in the class-action context. Materiality, at the time of certification, has been a driving force behind the theory from the outset. This fact further supports the need to prove materiality at the time the fraud-on-the-market theory is invoked to show that questions of reliance can be answered on a classwide basis.
A
Before Basic, two signposts marked the way for courts applying the fraud-on-the-market theory. Both demonstrate that the materiality of an alleged falsehood was not a mere afterthought but rather one of the primary reasons for allowing traditional proof of reliance to be brushed aside at certification. This fact weighs strongly in favor of the conclusion that materiality must be resolved at certification when the fraud-on-the-market presumption is invoked to show that reliance can be proved on a classwide basis.
1975 opinion in Blackie, termed by one pre- Basic court the “seminal fraud on the market case.” Peil, 806 F.2d, at 1163, n. 16. See also Basic, supra, at 251, n. 1, 108 S. Ct. 978, 99 L. Ed. 2d 194 (opinion of White, J.) (“The earliest Court of Appeals case adopting this theory cited by the Court is Blackie v. Barrack, 524 F.2d 891 (CA9 1975), cert. denied, 429 U.S. 816, 97 S. Ct. 57, 50 L. Ed. 2d 75 (1976)).
Blackie arose from a $90 million loss reported by audio equipment manufacturer Ampex Corp. in its 1972 annual report. 524 F.2d, at 894. Ampex's independent auditors not only refused to certify the 1972 annual report but also withdrew certification of all 1971 financial statements “because of doubts that the loss reported for 1972 was in fact suffered in that year.” Ibid. In resultant class actions, the defendants argued that reliance stood in the way of class certification under Rule 23(b)(3) because it was not a common question.
Ampex's sales for 1971 were just under $284 million. See Reckert, A. & P. Registers Deficit for First Fiscal Quarter, N. Y. Times, July 1, 1972, p. 27 (discussing Ampex's revenue and net loss in its 1972 annual report).
The Ninth Circuit disagreed. Instead, it relieved plaintiffs from providing traditional proof be presumed at certification; materiality was the factor. It demonstrated that the defendants had committed a fraud on the market, that all putative class plaintiffs had relied on it in purchasing stock, and, therefore, that questions of reliance would be susceptible to common answers.
Blackie's use of materiality to satisfy reliance for purposes of Rule 23(b)(3) predominance continued to form the foundation for the fraud-on-the-market concept in subsequent pre- Basic appellate cases. See, e.g., Peil v. Speiser, 806 F.2d 1154, 1161 (CA3 1986) (“[W]e hold that plaintiffs who purchase in an open and developed market need not prove direct reliance on defendants' misrepresentations, but can satisfy their burden of proof on the element of causation by showing that the defendants made material misrepresentations” (footnote omitted)); Panzirer v. Wolf, 663 F.2d 365, 368 (CA2 1981) (“ Blackie held that the materiality of a fraud creates a presumption of reliance through its presumed effect on the market. . . . Our holding is no more than an extension of Blackie”).
The second fraud-on-the-market signpost prior to Basic was a note in the Harvard Law Review, which described the nascent theory. See Note, The Fraud-on-the-Market Theory, 95 Harv. L. Rev. 1143 (1982) (hereinafter Harv. L. Rev. Note). The Sixth Circuit opinion reviewed in Basic termed the Note “[t]he clearest statement of the theory of presumption of reliance.” Levinson v. Basic Inc., 786 F.2d 741, 750 (1986). Indeed, in the briefing for Basic itself, the plaintiffs, the United States, and plaintiffs' amicus cited the article repeatedly as an authoritative statement on the subject. See Brief for Respondents 43, n. 18, 46, n. 20 (cited in Peil, supra, at 1160), Brief for Securities and Exchange Commission as Amicus Curiae 22, n. 25, 24, n. 30, 26, n. 32, and Brief for Joseph Harris et al. as Amici Curiae 4, n. 2, in Basic Inc. v. Levinson, O.T. 1987, No. 86-279.
Like Blackie, the Note also hinged the fraud-on-the-market presumption of reliance on proof of materiality. Harv. L. Rev. Note 1161 (“In developed read Basic, the Note formulated a “pivotal assumption” underlying the fraud-on-the-market theory as the belief that
“market prices respond to information disseminated (or not disseminated) concerning the companies whose securities are traded. In such a setting--often described as an 'efficient market'--the reliance of some traders upon a material deception influences market prices and thereby affects even traders who never read or hear of the deception.” Harv. L. Rev. Note 1154 (footnote omitted).
Again, the materiality of the alleged misstatement was a key component, without which the market could not be presumed to move. As a result, without materiality it is impossible to say that there has been a fraud on the market at all, and if that is not the case there is no reason to believe that the market price at which stock transactions occurred was affected by an alleged misstatement or, by extension, that any market participants relied on it. Materiality should thus be proved when the fraud-on-the-market presumption is invoked, or there is no commonality with respect to questions of reliance.
B
Nor did the importance of materiality diminish in the Sixth Circuit opinion reviewed based upon the fraud on the market theory, a plaintiff must allege and prove . . . that the misrepresentations were material . . . .” Ibid. (citing Blackie, supra, at 906).
C
Finally, the briefing before this Court in Basic itself built upon this framework and the foundational principle that materiality is an integral part of the theory. Critically, the Basic defendants argued that the plaintiffs could not establish fraud on the market at certification even if the theory were valid because the alleged misstatement was immaterial. They “contrast[ed] the likely market impact of disclosure of the [$90 million Blackie loss] . . . with the disclosure of the information which respondents contend[ed] rendered Basic's statements materially misleading.” See Brief for Petitioners in O.T. 1987, No. 86-279, p. 42. The Basic defendants concluded that “the differences between a company's $90 million loss and a company's sporadic contacts with a friendly suitor are substantial. . . . [T]he fraud on the market theory, if it has vitality, should not be applied in a case such as this.” Id., at 43.
In response, the plaintiffs in Basic did not argue that the defendants misunderstood the role of materiality interpretation of dicta from Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974):
“Petitioners' final argument--that respondents will be unable to establish that Basic's repeated false and misleading statements impacted the price of Basic stock over a fourteen month period--represents an effort to litigate the merits of this case on the motion for class certification. . . . As this Court held in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, [94 S. Ct. 2140, 40 L. Ed. 2d 732] (1974): 'We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.' ” Brief for Respondents in O.T. 1987, No. 86-279, p. 54.
The Court rejected this reading of Eisen two Terms ago, explaining that the very language the Basic plaintiffs quoted was by our other cases.” Ibid. The Basic defendants' reply is consistent with Wal-Mart:
“Putative class representatives, such as respondents, should not be permitted to invoke the fraud on the market theory while, at the same time, arguing that courts may not make any preliminary inquiry into the claimed impact on the market. See, e.g., Resp. Br., p. 54. By seeking the benefit of the presumption, respondents necessarily invite judicial scrutiny of the circumstances in which it is invoked.” Reply Brief for Petitioners in O.T. 1987, No. 86-279, p. 18.
at the time that the theory is invoked-- i.e., at certification.
III
I, thus, would reverse the judgment of the Ninth Circuit and hold that a plaintiff invoking the fraud-on-the-market presumption bears the burden to establish all the elements of fraud on the market at certification, including the materiality of the alleged misstatement.