Petrobras Renounces 2nd Circ. ‘Preference’ For Class Cert.July 27, 2017
Earlier this month, the Second Circuit decided In re Petrobras Securities, and class action practitioners have been talking about it ever since — chiefly for its relevance to the red-hot “ascertainability” debate. Because Petrobras purported to reject a “heightened” ascertainability requirement, many have deemed it a setback for class action defendants. By contrast, I have written that the ultimate impact of Petrobras’ comments on ascertainability remains unclear.
But the hubbub over ascertainability has obscured another remarkable part of the Petrobras decision — one that constitutes a major victory for the defense side. Specifically, the Second Circuit finally rejected the decades-old canard that the grant of a class certification motion is generally preferred over the denial of such a motion. This largely overlooked aspect of Petrobras may eventually have a greater impact on class action practice in the Second Circuit than the headline discussion about ascertainability.
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