An Oak is an Oak is an Oak: The Disappointing Entrenchment in Halliburton Co. v. Erica P. John Fund of the Implied Private Right of Action Under Section 10(B) and Rule 10B-5
In Sacred Emily, Gertrude Stein famously wrote, “Rose is a rose is a rose is a rose.” Although the first instance of the word “Rose” is a person’s name, the next three instances appear to be mere repetition about this person. Stein contended, however, “I never repeat that is while I am writing.” She believed this because “It is not repetition if it is that which you are actually doing because naturally each time the emphasis is different just as the cinema has each time a slightly different thing to make it all be moving.” Each time Stein wrote the same thing again she intended to convey new meaning and transform importance.
On June 23, 2014, the Supreme Court of the United States arguably repeated itself when it issued Halliburton Co. v. Erica P. John Fund. Although the Court offered a minor clarification regarding the procedures to be used in class actions brought based upon the implied private right of action under section 10(b) and Rule 10b-5,6the Court essentially reaffirmed the existence of an implied private right of action and the use of a “fraud-on-the-market” presumption of reliance for purposes of allowing class action certification under that private right of action. The Court also continued to usurp Congress’s role as the body defining the scope and contours of the implied private right of action and did so without demanding that Congress fulfill its proper role in defining or extinguishing the implied private right of action.
