Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System

P R E L I M I N A R Y P R I N T
Volume 594 U. S. Part 1
Pages 113–138
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 21, 2021
REBECCA A. WOMELDORF
reporter of decisions
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OCTOBER
TERM, 2020
113
Syllabus
GOLDMAN SACHS GROUP, INC., et al. v. ARKANSAS
TEA
CHER RETIREMENT SYSTEM, et al.
certiorari to the united states court of appeals for
the second circuit
No. 20–222. Argued March 29, 2021—Decided June 21, 2021
Respondent shareholders (Plaintiffs) fled this securities-fraud class action
alleging that The Goldman Sachs Group, Inc., and certain of its exe-
cutives (collectively, Goldman) violated securities laws and regulations
prohibiting material misrepresentations and omissions in connection
with the sale of securities. 15 U. S. C. § 78j(b); 17 CFR § 240.10b–5.
Plai nti ffs a l lege that Goldman mai nt ai ned an ar ti ficia l ly i nflated
stock price by repeatedly making false and misleading generic state-
ments about its ability to manage conficts. Under Plaintiffs' infation-
maintenance theory, Goldman's alleged misrepresentations caused its
stock price to remain infated until the market reacted to the truth about
Goldman's practices—at which point Goldman's stock price dropped and
Plaintiffs suffered losses. Seeking to certify a class of Goldman share-
holders harmed by reliance on Goldman's alleged misrepresentations,
Plaintiffs invoked the presumption, endorsed by the Court in Basic Inc.
v. Levinson, 485 U. S. 224, that investors are presumed to rely on the
market price of a company's security, which in an effcient market will
refect all of the company's public statements, including misrepresenta-
tions. The Basic presumption allows class-action plaintiffs to prove re-
liance through evidence common to the class. Goldman in turn sought
to defeat class certifcation by rebutting the Basic presumption through
evidence that its alleged misrepresentations had no impact on its stock
price. After an initial round of litigation which resulted in a remand
from the Second Circuit, the District Court certifed the class based on
Goldman's failure to establish by a preponderance of the evidence that
its alleged misrepresentations had no price impact. The Second Circuit
authorized an appeal under Federal Rule of Civil Procedure 23(f ), and
affrmed in a divided decision, fnding that the District Court's price
impact determination was not an abuse of discretion. Goldman now
argues that the Second Circuit erred twice: frst, by holding that the
generic nature of Goldman's alleged misrepresentations is irrelevant to
the price impact inquiry; and second, by assigning Goldman the burden
of persuasion to prove a lack of price impact.
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114 GOLDMAN
SACHS GROUP, INC. v. ARKANSAS TEACHER
RETIREMENT SYSTEM
Syllabus
Held:
1.
The generic nature of a misrepresentation often is important evi-
dence of price impact that courts should consider at class certifcation,
including in infation-maintenance cases. That is true even though the
same evidence may be relevant to materiality, an inquiry reserved for
the merits phase of a securities-fraud class action. See Amgen Inc. v.
Connecticut Retirement Plans and Trust Funds, 568 U. S. 455. A
court has an obligation before certifying a class to determine that Rule
23 is satisfed, Comcast Corp. v. Behrend, 569 U. S. 27, 35, and a court
cannot make that fnding in a securities-fraud class action without con-
sidering all evidence relevant to price impact. See Halliburton Co. v.
Erica P. John Fund, Inc., 573 U. S. 258, 284 (Halliburton II). The par-
ties now accept this legal framework but dispute whether the Second
Circuit properly considered the generic nature of Goldman's alleged mis-
representations. Because the Court concludes that the Second Circuit's
opinions leave suffcient doubt on this question, the Court remands for
the Second Circuit to consider all record evidence relevant to price im-
pact, regardless whether that evidence overlaps with materiality or any
other merits issue. Pp. 121–124.
2. Defendants bear the burden of persuasion to prove a lack of price
impact by a preponderance of the evidence at class certifcation. The
Court has held that nothing in Federal Rule of Evidence 301 constrains
the Court's authority to change customary burdens of persuasion under
a federal statute, see NLRB v. Transportation Management Corp., 462
U. S. 393, 404, n. 7, and the Court has exercised this authority to reas-
sign the burden of persuasion to the defendant in other contexts. Gold-
man does not challenge the Court's relevant precedents, but questions
whether the Court exercised this authority in establishing the Basic
framework pursuant to the securities laws. The Court concludes that
Basic and Halliburton II did allocate to defendants the burden of per-
suasion to prove a lack of price impact. As relevant here, Basic ex-
plains that defendants may rebut the presumption of reliance if they
“show that the misrepresentation in fact did not lead to a distortion of
price” by making “[a]ny showing that severs the link between the al-
leged misrepresentation and . . . the price received (or paid) by the
plaintiff.” 485 U. S., at 248 (emphasis added). Similarly, Halliburton
II held that defendants may rebut the Basic presumption at class certi-
fcation “by showing . . . that the particular misrepresentation at issue
did not affect the stock's market price.” 573 U. S., at 279 (emphasis
added). These references to a defendant's “showing ” require a defend-
ant to do more than produce some evidence relevant to price impact;
the defendant must “in fact” “seve[r] the link” between a misrepresenta-
tion and the price paid by the plaintiff. Moreover, Halliburton II's
holding that plaintiffs need not directly prove price impact to invoke the

Cite
as: 594 U. S. 113 (2021)
115
Syllabus
Basic presumption, 573 U. S., at 278–279, would be negated in almost
e
very case if a defendant could shift the burden of persuasion to the
plaintiffs by mustering any competent evidence of a lack of price impact
(including, for example, the generic nature of the alleged misrepresenta-
tions). Thus, the best reading of the Court's precedents assigns defend-
ants the burden of persuasion to prove a lack of price impact by a
preponderance of the evidence. Even so, that allocated burden will be
outcome determinative only in the rare case in which the evidence is in
perfect equipoise. Pp. 124–127.
955 F. 3d 254, vacated and remanded.
Barrett, J., delivered the opinion of the Court, in which Roberts,
C. J., and Breyer, Kagan, and Kavanaugh, JJ., joined in full; in which
Thomas, Alito, and Gorsuch, JJ., joined as to Parts I and II–A; and in
which Sotomayor, J., joined as to Parts I, II–A–1, and II–B. Sotomayor,
J., fled an opinion concurring in part and dissenting in part, post, p. 127.
Gorsuch, J., fled an opinion concurring in part and dissenting in part, in
which Thomas and Alito, JJ., joined, post, p. 130.
Kannon K. Shanmugam argued the cause for petitioners.
With him on the briefs were Stacie M. Fahsel, Kristina A.
Bunting, Richard H. Klapper, Robert J. Giuffra, Jr., David
M. J. Rein, Benjamin R. Walker, Julia A. Malkina, and
Jacob E. Cohen.
Sopan Joshi argued the cause for the United States as
amicus curiae in support of neither party. On the brief
were Acting Solicitor General Prelogar, Deputy Solicitor
General Stewart, Benjamin W. Snyder, Michael A. Conley,
and Jeffrey A. Berger.
Thomas C. Goldstein argued the cause for respondents.
With him on the brief were Kevin K. Russell, Erica Oleszc-
zuk Evans, Thomas A. Dubbs, James W. Johnson, Michael
H. Rogers, Irina Vasilchenko, and Joseph D. Daley.*
*Briefs of amici curiae urging reversal were fled for the American
International Group, Inc. et al. by Joseph S. Allerhand, Gregory Silbert,
Stacy Nettleton, Jaime A. Santos, and Gerard J. Cedrone; for Financial
Economists by Michael C. Keats; for Former SEC Offcials et al. by Todd
G. Cosenza; for the Retail Litigation Center, Inc., by Susan E. Hurd, Cara
M. Peterman, and Deborah R. White; for the Securities and Financial Mar-
kets Association, et al. by Jonathan K. Youngwood, Kevin Carroll, and
Daryl Joseffer; for the Society for Corporate Governance by Jeremy C.
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116 GOLDMAN
SACHS GROUP, INC. v. ARKANSAS TEACHER
RETIREMENT SYSTEM
Opinion of the Court
Justice Barrett delivered the opinion of the Court.
Th
is case involves a securities-fraud class action fled by
several pension funds against The Goldman Sachs Group,
Inc., and three of its former executives (collectively, Gold-
man). Plaintiffs allege that Goldman maintained an artif-
cially infated stock price by making generic statements
about its ability to manage conficts—for example, “We have
extensive procedures and controls that are designed to iden-
tify and address conficts of interest.” Plaintiffs say that
Goldman's generic statements were false or misleading in
light of several undisclosed conficts of interest, and that once
the truth about Goldman's conficts came out, Goldman's
stock price dropped and shareholders suffered losses.
Below, this securities-fraud class action proceeded in typi-
cal fashion. Plaintiffs sought to certify a class of Goldman
Marwell, James T. Dawson, and Christopher E. Duffy; and for the Wash-
ington Legal Foundation by Lyle Roberts, Cory L. Andrews, and John M.
Masslon II.
Briefs of amici curiae urging affrmance were fled for the State of New
Mexico et al. by Hector H. Balderas, Attorney General of New Mexico,
and Nicholas Sydow and Mark Swanson, Assistant Attorneys General,
and by the Attorneys General for their respective States as follows: Kath-
leen Jennings of Delaware, Clare E. Connors of Hawaii, Kwame Raoul of
Illinois, Aaron M. Frey of Maine, Dana Nessel of Michigan, Keith Ellison
of Minnesota, Douglas J. Peterson of Nebraska, Gurbir S. Grewal of New
Jersey, Joshua H. Stein of North Carolina, Ellen F. Rosenblum of Oregon,
Josh Shapiro of Pennsylvania, Peter F. Neronha of Rhode Island, Thomas
J. Donovan, Jr., of Vermont, Mark R. Herring of Virginia, and Robert W.
Fe rgu so n of Wash i ng ton; for Better Markets, Inc., by John Paul
Schnapper-Casteras, Dennis M. Kelleher, and Daniel Hume; for Evidence
Law Professors by Rachel Bloomekatz, Allison Ehlert, Jeremy A. Lieber-
man, Emma Gilmore, Marc I. Gross, and Sherrie R. Savett; for Institu-
tional Investors by J. Carl Cecere, Darren J. Check, Andrew L. Zivitz,
and Stacey M. Kaplan; for the National Association of Shareholder and
Consumer Attorneys by Ernest A. Young; for the North American Securi-
ties Administrators Association, Inc., by Laura H. Posner, Vincente L.
Martinez, and Zachary Knepper; for Professors of Securities Law and
Complex Litigation by Deepak Gupta and Javier Bleichmar; and for Pub-
lic Citizen et al. by Wendy Liu, Scott L. Nelson, and Allison M. Zieve.
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as: 594 U. S. 113 (2021)
117
Opinion of the Court
shareholders by invoking the presumption endorsed by this
Cour
t in Basic Inc. v. Levinson, 485 U. S. 224 (1988). The
Basic presumption is premised on the theory that investors
rely on the market price of a company's security, which in
an effcient market incorporates all of the company's public
misrepresentations. For its part, Goldman sought to defeat
class cer ti ficati on by rebutting the Basi c presumpti on
through evidence that its alleged misrepresentations actu-
ally had no impact on its stock price. After determining
that Goldman had failed to carry its burden of proving a lack
of price impact, the District Court certifed the class, and the
Second Circuit affrmed.
In this Court, Goldman argues that the Second Circuit
erred twice: frst, by holding that the generic nature of its
alleged misrepresentations is irrelevant to the price impact
inquiry; and second, by assigning Goldman the burden of per-
suasion to prove a lack of price impact.
On the frst question, the parties now agree, as do we, that
the generic nature of a misrepresentation often is important
evidence of price impact that courts should consider at
class certifcation. Because we conclude that the Second
Circuit may not have properly considered the generic nature
of Goldman's alleged misrepresentations, we vacate and re-
mand for the Court of Appeals to reassess the District
Court's price impact determination. On the second ques-
tion, we agree with the Second Circuit that our precedents
require defendants to bear the burden of persuasion to prove
a lack of price impact by a preponderance of the evidence.
We emphasize, though, that the burden of persuasion should
rarely be outcome determinative.
I
A
Section 10(b) of the Securities Exchange Act of 1934 and
its implementing regulation, Rule 10b–5, prohibit material
misrepresentations and omissions in connection with the sale
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118 GOLDMAN
SACHS GROUP, INC. v. ARKANSAS TEACHER
RETIREMENT SYSTEM
Opinion of the Court
of securities. 48 Stat. 881, as amended, 15 U. S. C. § 78j(b);
17
CFR § 240.10b–5 (2020). We have inferred from these
provisions an implied private cause of action permitting the
recovery of damages for securities fraud. Halliburton Co.
v. Erica P. John Fund, Inc., 573 U. S. 258, 267 (2014) (Halli-
burton II). To recover damages, a private plaintiff must
prove, among other things, a material misrepresentation or
omission by the defendant and the plaintiff's reliance on that
misrepresentation or omission. Ibid.
This case concerns the element of reliance. The “tradi-
tional (and most direct) way” for a plaintiff to prove reliance
is to show that he was aware of a defendant's misrepresenta-
tion and engaged in a transaction based on that misrepresen-
tation. Ibid. (internal quotation marks omitted). In Basic,
however, we held that a plaintiff may also invoke a rebutta-
ble presumption of reliance based on the fraud-on-the-market
theory. 485 U. S., at 241–247.
The “fundamental premise” of the fraud-on-the-market
theory underlying Basic's presumption is “that an investor
presumptively relies on a misrepresentation so long as it was
refected in the market price at the time of his transaction.”
Erica P. John Fund, Inc. v. Halliburton Co., 563 U. S. 804,
813 (2011). To invoke the Basic presumption, a plaintiff
must prove: (1) that the alleged misrepresentation was pub-
licly known; (2) that it was material; (3) that the stock traded
in an effcient market; and (4) that the plaintiff traded the
stock between the time the misrepresentation was made and
when the truth was revealed. Halliburton II, 573 U. S.,
at 268. The defendant may then rebut the presumption
through “[a]ny showing that severs the link between the al-
leged misrepresentation and either the price received (or
paid) by the plaintiff, or his decision to trade at a fair market
price.” Basic, 485 U. S., at 248.
Although the Basic presumption “can be invoked by any
Rule 10b–5 plaintiff,” it has “particular signifcance in
securities-fraud class actions.” Amgen Inc. v. Connecticut
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as: 594 U. S. 113 (2021)
119
Opinion of the Court
Retirement Plans and Trust Funds, 568 U. S. 455, 462
(2013).
The presumption allows class-action plaintiffs to
prove reliance through evidence common to the class. That
in turn makes it easier for plaintiffs to establish the pre-
dominance requirement of Federal Rule of Civil Procedure
23, which requires that “questions of law or fact common
to class members predominate” over individualized issues.
Fed. Rule Civ. Proc. 23(b)(3). Indeed, without the Basic
presumption, individualized issues of reliance ordinarily
would defeat predominance and “preclude certifcation” of a
securities-fraud class action. Amgen, 568 U. S., at 462–463;
see Halliburton II, 573 U. S., at 281–282.
As a result, class-action plaintiffs must prove the Basic
prerequisites before class certifcation—with one exception.
In Amgen, we held that materiality should be left to the
merits stage because it does not bear on Rule 23's predomi-
nance requirement. 568 U. S., at 466–468. The remaining
Basic prerequisites—publicity, market effciency, and market
timing—“must be satisfed” by plaintiffs “before class certi-
fcation.” Halliburton II, 573 U. S., at 276.
Satisfying those prerequisites, however, does not guaran-
tee class cer tificati on. We held in Hall iburt on II that
defendants may rebut the Basic presumption at class certi-
fcation by showing “that an alleged misrepresentation did
not actually affect the market price of the stock.” Id., at
284. If a misrepresentation had no price impact, then Ba-
sic's fundamental premise “completely collapses, rendering
class certifcation inappropriate.” Id., at 283.
B
Respondents here—whom we'll call Plaintiffs—are Gold-
man shareholders. They brought this securities-fraud class
action against Goldman in the Southern District of New
York, alleging violations of § 10(b) and Rule 10b–5.
The specifc theory of securities fraud that Plaintiffs allege
is known as infation maintenance. Under this theory, a mis-
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120 GOLDMAN
SACHS GROUP, INC. v. ARKANSAS TEACHER
RETIREMENT SYSTEM
Opinion of the Court
representation causes a stock price “to remain infated by
pre
venting preexisting infation from dissipating from the
stock price.” FindWhat Investor Group v. FindWhat.com,
658 F. 3d 1282, 1315 (CA11 2011).
1
Plaintiffs allege here that between 2006 and 2010, Goldman
maintained an infated stock price by making repeated mis-
representations about its conflict-of-interest policies and
business practices. The alleged misrepresentations are ge-
neric statements from Goldman's SEC flings and annual re-
ports, including the following:
•
“We have extensive procedures and controls that are
designed to identify and address conficts of interest.”
App. 216 (emphasis and boldface deleted).
•
“Our clients' interests always come frst.” Id., at
162 (same).
•
“Integrity and honesty are at the heart of our busi-
ness.” Id., at 163 (same).
According to Plaintiffs, these statements were fa lse or
misleading—and caused Goldman's stock to trade at artif-
cially infated levels—because Goldman had in fact engaged
in several allegedly conficted transactions without disclosing
the conficts. Plaintiffs further allege that once the market
learned the truth about Goldman's conficts from a Govern-
ment enforcement action and subsequent news reports, the
infation in Goldman's stock price dissipated, causing the
price to drop and shareholders to suffer losses.
After Goldman unsuccessfully moved to dismiss the case,
Plaintiffs moved to certify the class, invoking the Basic pre-
sumption. In response, Goldman sought to rebut the Basic
presumption by proving a lack of price impact. Both parties
submitted extensive expert testimony on the issue.
1
Although some Cour ts of Appea ls have approved the i nflati on-
maintenance theory, this Court has expressed no view on its validity or
its contours. We need not and do not do so in this case.
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as: 594 U. S. 113 (2021)
121
Opinion of the Court
The District Court certifed the class, but the Second Cir-
cuit
authorized a Rule 23(f ) appeal and vacated the class-
cer tificati on order. 879 F. 3d 474 (2018). The Second
Circuit held that Goldman, as the defendant, bears the bur-
den of persuasion to prove a lack of price impact by a prepon-
derance of the evidence. But it concluded that the District
Court erred by holding Goldman to a higher burden of proof
and by refusing to consider some of Goldman's price impact
evidence.
On remand, the District Court certifed the class again,
fnding that Goldman's expert testimony failed to establish
by a preponderance of the evidence that its alleged misrepre-
sentations had no price impact. The Second Circuit again
authorized a Rule 23(f ) appeal and this time affrmed in a
divided decision. 955 F. 3d 254 (2020). As relevant here,
the Court of Appeals held that the District Court's price im-
pact determination was not an abuse of discretion. In dis-
sent, Judge Sullivan concluded that “the generic quality of
Goldman's alleged misstatements, coupled with” Goldman's
expert testimony, compelled the conclusion that Goldman
proved a lack of price impact. Id., at 278–279.
We granted certiorari. 592 U. S. ––– (2020).
II
Goldman argues that the Second Circuit erred in two re-
spects: frst, by concluding that the generic nature of alleged
misrepresentations is irrelevant to the price impact question;
and second, by placing the burden of persuasion on Goldman
to prove a lack of price impact. We address these argu-
ments in turn.
A
1
On the frst question—whether the generic nature of a
misrepresentation is relevant to price impact—the parties'
dispute has largely evaporated. Plaintiffs now concede that
the generic nature of an alleged misrepresentation often will
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122 GOLDMAN
SACHS GROUP, INC. v. ARKANSAS TEACHER
RETIREMENT SYSTEM
Opinion of the Court
be important evidence of price impact because, as a rule of
thumb
, “a more-general statement will affect a security's
price less than a more-specifc statement on the same ques-
tion.” Brief for Respondents 15; see Tr. of Oral Arg. 6–7,
59, 79. The parties further agree that courts may consider
expert testimony and use their common sense in assessing
whether a generic misrepresentation had a price impact.
See Tr. of Oral Arg. 12, 64. And they likewise agree that
courts may assess the generic nature of a misrepresentation
at class certifcation even though it also may be relevant to
materiality, which Amgen reserves for the merits. See id.,
at 23, 65.
We share the parties' view. In assessing price impact
at class certifcation, courts “ `should be open to all proba-
tive evidence on that question—qualitative as well as
quantitative—aided by a good dose of common sense.' ” In
re Allstate Corp. Securities Litig., 966 F. 3d 595, 613, n. 6
(CA7 2020) (quoting D. Langevoort, Judgment Day for
Fraud-on-the-Market: Refections on Amgen and the Second
Coming of Halliburton, 57 Ariz. L. Rev. 37, 56 (2015); empha-
sis added). That is so regardless whether the evidence is
also relevant to a merits question like materiality. As we
have repeatedly explained, a court has an obligation before
certifying a class to “determin[e] that Rule 23 is satisfed,
even when that requires inquiry into the merits.” Comcast
Corp. v. Behrend, 569 U. S. 27, 35 (2013); see Wal-Mart
Stores, Inc. v. Dukes, 564 U. S. 338, 351, and n. 6 (2011). And
under Halliburton II, a court cannot conclude that Rule 23's
requirements are satisfed without considering all evidence
relevant to price impact. See 573 U. S., at 284.
2
2
We recognize that materiality and price impact are overlapping con-
cepts and that the evidence relevant to one will almost always be relevant
to the other. But “a district court may not use the overlap to refuse to
consider the evidence.” In re Allstate, 966 F. 3d, at 608. Instead, the
district court must use the evidence to decide the price impact issue “while
resisting the temptation to draw what may be obvious inferences for the
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as: 594 U. S. 113 (2021)
123
Opinion of the Court
The generic nature of a misrepresentation often will be
i
mportant evidence of a lack of price impact, particularly in
cases proceeding under the infation-maintenance theory.
Under that theory, price impact is the amount of price infa-
tion maintained by an alleged misrepresentation—in other
words, the amount that the stock's price would have fallen
“without the false statement.” Glickenhaus & Co. v. House-
hold Int'l, Inc., 787 F. 3d 408, 415 (CA7 2020). Plaintiffs
typically try to prove the amount of infation indirectly: They
point to a negative disclosure about a company and an associ-
ated drop in its stock price; allege that the disclosure cor-
rected an earlier misrepresentation; and then claim that the
price drop is equal to the amount of infation maintained
by the earlier misrepresentation. See, e. g., id., at 413–417;
In re Vivendi, S. A. Securities Litig., 838 F. 3d 223, 233–237,
253–259 (CA2 2016).
But that fnal inference—that the back-end price drop
equals front-end infation—starts to break down when there
is a mismatch between the contents of the misrepresentation
and the corrective disclosure. That may occur when the
earlier misrepresentation is generic (e. g., “we have faith in
our business model”) and the later corrective disclosure is
specifc (e. g., “our fourth quarter earnings did not meet ex-
pectations”). Under those circumstances, it is less likely
that the specifc disclosure actually corrected the generic
misrepresentation, which means that there is less reason to
infer front-end price infation—that is, price impact—from
the back-end price drop.
2
The parties do not dispute any of this. They disagree only
about whether the Second Circuit properly considered the
generic nature of Goldman's alleged misrepresentations.
Because the Second Circuit's opinions leave us with suffcient
closely related issues that must be left for the merits, including material-
ity.” Id., at 609.
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124 GOLDMAN
SACHS GROUP, INC. v. ARKANSAS TEACHER
RETIREMENT SYSTEM
Opinion of the Court
doubt on this score, we remand for further consideration.
3
On
remand, the Second Circuit must take into account all
record evidence relevant to price impact, regardless whether
that evidence overlaps with materiality or any other merits
issue.
B
Goldman also argues that the Second Circuit erred by re-
quiring Goldman, rather than Plaintiffs, to bear the burden
of persuasion on price impact at class certifcation. Gold-
man relies exclusively on Federal Rule of Evidence 301,
which provides in full:
“In a civil case, unless a federal statute or these rules
provide otherwise, the party against whom a presump-
tion is directed has the burden of producing evidence to
rebut the presumption. But this rule does not shift the
burden of persuasion, which remains on the party who
had it originally.”
According to Goldman, Rule 301 applies to the Basic pre-
sumption at class certifcation, and, as a result, a plaintiff 's
satisfaction of the Basic prerequisites shifts only the burden
of production to the defendant. Once a defendant dis-
charges that burden by producing any competent evidence
of a lack of price impact, Goldman says, the Basic presump-
tion is rebutted and the plaintiff must carry the burden of
persuasion to show price impact.
We disagree. We have held that Rule 301 “in no way re-
stricts the authority of a court . . . to change the customary
3
Compare 955 F. 3d 254, 268 (2020) (“Whether alleged misstatements
are too general to demonstrate price impact has nothing to do with the
issue of whether common questions predominate over individual ones”
(emphasis added)); id., at 270 (“The infation-maintenance theory does not
discriminate between general and specifc misstatements”), with 879 F. 3d
474, 485–486 (2018) (correctly requiring the District Court to consider Gold-
man's price impact evidence notwithstanding overlap with materiality).
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as: 594 U. S. 113 (2021)
125
Opinion of the Court
burdens of persuasi on” pursuant to a federa l st atute.
NLRB
v. Transportation Management Corp., 462 U. S. 393,
404, n. 7 (1983). And we have at times exercised that au-
thority to reassign the burden of persuasion to the defendant
upon a prima facie showing by the plaintiff. See, e. g., Team-
sters v. United States, 431 U. S. 324, 359, and n. 45 (1977);
Franks v. Bowman Transp. Co., 424 U. S. 747, 772–773
(1976).
Goldman does not ask us to revisit these precedents. So
the threshold question here is not whether we have the au-
thority to assign defendants the burden of persuasion to
prove a lack of price impact, but instead whether we already
exercised that authority in establishing the Basic framework
pursuant to the securities laws. We conclude that Basic and
Halliburton II did just that.
Basic held that defendants may rebut the presumption of
reliance if they “show that the misrepresentation in fact did
not lead to a distortion of price.” 485 U. S., at 248 (emphasis
added). To do so, Basic said, defendants may make “[a]ny
showing that severs the link between the alleged misrepre-
sentation and . . . the price received (or paid) by the plain-
tiff.” Ibid. (emphasis added). Similarly, Halliburton II
held that defendants may rebut the Basic presumption at
class certifcation “by showing . . . that the particular misrep-
resentation at issue did not affect the stock's market price.”
573 U. S., at 279 (emphasis added).
Goldman and Justice Gorsuch argue that these references
to a defendant's “showing ” refer to the defendant's burden of
production. Post, at 135–137 (opinion concurring in part and
dissenting in part) (hereinafter the dissent). On this reading,
Basic and Halliburton II require a defendant merely to offer
“evidence that, if believed, would support a fnding ” of a lack
of price impact. Post, at 134. But Basic and Halliburton II
plainly require more: The defendant must “in fact” “seve[r] the
link” between a misrepresentation and the price paid by the
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126 GOLDMAN
SACHS GROUP, INC. v. ARKANSAS TEACHER
RETIREMENT SYSTEM
Opinion of the Court
plaintiff—and a defendant's mere production of some evi-
dence
relevant to price impact would rarely accomplish that
feat.
4
Accepting Goldman and the dissent's argument would also
effectively negate Halliburton II's holding that plaintiffs
need not directly prove price impact in order to invoke the
Basic presumption. 573 U. S., at 278–279. If, as they urge,
the defendant could defeat Basic's presumption by introduc-
ing any competent evidence of a lack of price impact—
including, for example, the generic nature of the alleged
misrepresentations—then the plaintiff would end up with the
burden of directly proving price impact in almost every case.
And that would be nearly indistinguishable from the regime
that Halliburton II rejected.
Thus, the best reading of our precedents—as the Courts
of Appeals to have considered the issue have recognized—is
that the defendant bears the burden of persuasion to prove
a lack of price impact. See Waggoner v. Barclays PLC, 875
F. 3d 79, 99–104 (CA2 2017) (“the phrase `[a]ny showing that
severs the link' aligns more logically with imposing a burden
of persuasion rather than a burden of production”); In re
Allstate, 966 F. 3d, at 610–611 (“Basic said that `[a]ny show-
ing that severs the link' would be suffcient to rebut the pre-
sumption, not that mere production of evidence would defeat
the presumption” (citation omitted)). We likewise agree
with the Courts of Appeals that the defendant must carry
that burden by a preponderance of the evidence. See Wag-
goner, 875 F. 3d, at 99; In re Allstate, 966 F. 3d, at 610.
Although the defendant bears the burden of persuasion,
the allocation of the burden is unlikely to make much differ-
ence on the ground. In most securities-fraud class actions,
as in this one, the plaintiffs and defendants submit competing
expert evidence on price impact. The district court's task
4
The dissent points out that, as a general rule, presumptions shift only
the burden of production. Post, at 131–133. We don't disagree, but we
read Basic and Halliburton II as a clear departure from that general rule.

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127
Opinion of Sotomayor, J.
is simply to assess all the evidence of price impact—direct
and
indirect—and determine whether it is more likely than
not that the alleged misrepresentations had a price impact.
The defendant's burden of persuasion will have bite only
when the court fnds the evidence in equipoise—a situation
that should rarely arise. Cf. Medina v. California, 505 U. S.
437, 449 (1992) (preponderance of the evidence burden mat-
ters “only in a narrow class of cases where the evidence is
in equipoise”).
***
The Second Circuit correctly placed the burden of proving
a lack of price impact on Goldman. But because it is unclear
whether the Second Circuit properly considered the generic
nature of Goldman's alleged misrepresentations in reviewing
the District Court's price impact determination, we vacate
the judgment of the Second Circuit and remand the case for
further proceedings consistent with this opinion.
It is so ordered.
Justice Sotomayor, concurring in part and dissenting in
part.
I agree with the Court's answers to the questions pre-
sented, and I accordingly join Parts I, II–A–1, and II–B of
the Court's opinion. Under Basic Inc. v. Levinson, 485 U. S.
224 (1988), securities plaintiffs may demonstrate reliance by
invoking the rebuttable presumption that investors rely on
any misrepresentations refected in a security's market price.
Id., at 241–247. The Basic presumption is particularly use-
ful to class-action plaintiffs who, without the presumption,
ordinarily could not demonstrate that questions common to
the class predominate over individual ones. Ante, at 118–119.
Defendants, for their part, may rebut the Basic presumption
by demonstrating that the alleged misrepresentations did
not in fact affect the security's price. Ante, at 118. So-called
“price impact” may be disproved with a variety of evidence,
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alone or in combination. As the Court holds today, one
potentia
lly relevant piece of evidence may be the “generic
nature” of the misrepresentation. Ante, at 121–123.
I do not, however, join the Court's judgment to vacate and
remand because I believe the Second Circuit “properly con-
sidered the generic nature of Goldman's alleged misrepre-
sentations.” Ante, at 123. On appeal, Goldman did not
contend that the District Court improperly refused to con-
sider the generic nature of the alleged misstatements as evi-
dence of price impact (or lack thereof ). Instead, Goldman
argued that “general statements, like those challenged here,
are incapable of impacting a company's stock price as a mat-
ter of law” because they are “ `too general to cause a reason-
able investor to rely upon them.' ” Brief for Appellants in
No. 18–3667 (CA2), pp. 43, 46. Goldman reasoned that “the
challenged statements are incapable of maintaining infation
in a stock price for the same reasons that those statements
are immaterial as a matter of law (as well as fact).” Id.,
at 48.
The Second Circuit properly rejected Goldman's argu-
ment. The court explained that although “Goldman is not
formally asking for a materiality test,” its proposed rule
would “essentially requir[e] courts to ask” at the class-
certifcation stage “whether the alleged misstatements are,
in Goldman's words, `immaterial as a matter of law.' ” 955
F. 3d 254, 267 (2020). But “materiality is irrelevant at the
Rule 23 stage.” Id., at 268 (citing Amgen Inc. v. Connecti-
cut Retirement Plans and Trust Funds, 568 U. S. 455, 468
(2013)). “If general statements cannot maintain price infa-
tion because no reasonable investor would have relied on
them, then the question of inactionable generality is common
to the class.” 955 F. 3d, at 268.
In declining to adopt Goldman's proposed rule that generic
misstatements cannot have a price impact (as a matter of
law), the Second Circuit nowhere held that the generic na-
ture of an alleged misstatement could not serve as evidence
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of price impact (as a matter of fact). Nor did the Second
Circuit
refuse to consider such evidence in affrming the Dis-
trict Court's fnding that Goldman failed to rebut the Basic
presumption. The Court nevertheless reads a handful of
sentences in the Second Circuit's opinion to create “doubt”
over whether the Court of Appeals refused to consider “all
record evidence relevant to price impact.” Ante, at 124; see
also ante, at 124, n. 3. But such statements must be viewed
in the context of Goldman's now-abandoned argument that
generic misrepresentations have no price impact as a matter
of law. Take, for example, the Second Circuit's statement
that “[w]hether alleged misstatements are too general to
demonstrate price impact has nothing to do with the issue
of whether common questions predominate over individual
ones.” 955 F. 3d, at 268. Fairly read in light of Goldman's
appellate briefng, that sentence addresses only Goldman's
argument that general statements are always per se irrele-
vant. That is why the Second Circuit observed several sen-
tences later that “Goldman's test is materiality by another
name.” Ibid. At the same time, the court was careful to
emphasize that defendants “may attempt to disprove [price
impact] at class certifcation” even though the inquiry “re-
sembles materiality.”* Id., at 267.
In short, the Second Circuit did not address whether the
generic nature of a misstatement may be used as evidence
to disprove price impact for a simple reason: Goldman identi-
fed no error in the District Court's treatment of such evi-
dence. Goldman did not press the argument in the Second
*Indeed, in a prior appeal in this case, an earlier Second Circuit panel
vacated an order of the District Court in part because it had refused to
consider price-impact evidence that overlapped with materiality. See 879
F. 3d 474, 486 (2018) (holding that “[a]lthough price impact touches on
materiality, which is not an appropriate consideration at the class certif-
cation stage, ” cour ts nonetheless must consider evidence regardi ng
“[w]hether a misrepresentation was refected in the market price at the
time of the transaction”). It is hard to imagine that the Second Circuit
here was unaware of (or intended to depart from) the prior panel's holding.
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Circuit that it now urges here, and the Second Circuit did
not
reject the proposition that this Court now adopts.
Thus, the argument Goldman seeks to press on remand is
unpreserved, and nothing in the Second Circuit's opinion
misstates the law. Because affrmance is appropriate under
these circumstances, I respectfully dissent from Part II–A–
2 of the Court's opinion and from the judgment of the Court.
Justice Gorsuch, with whom Justice Thomas and
Justice Alito join, concurring in part and dissenting in
part.
I join all but Part II–B of the Court's opinion. There,
the Court holds that the defendant, rather than the plaintiff,
“bear[s] the burden of persuasion on price impact.” Ante,
at 124. Respectfully, I disagree.
We start from common ground. Basic Inc. v. Levinson,
485 U. S. 224, 245–247 (1988), sought to import fraud on the
market theory from economics into securities litigation. In
doing so, Basic posited two things—frst, in an effcient mar-
ket a company's stock price generally refects any public and
material information about the company; second, investors
generally rely on a company's stock price as an indicator of
the frm's true value. Ibid. Given these economic assump-
tions, the Court held that securities fraud plaintiffs can
presumptively meet their burden of proving reliance on an
alleged misrepresentation by proving four things: (1) the de-
fendant's alleged misrepresentation was publicly known; (2)
it was material; (3) the stock traded in an effcient market;
and (4) the plaintiff purchased the stock at the market price
between the time the misrepresentation was made and the
truth was revealed. See Halliburton Co. v. Erica P. John
Fund, Inc., 573 U. S. 258, 277–278 (2014) (Halliburton II).
The presumption of reliance not only helps a plaintiff prove
one of the essential elements of a securities fraud claim.
Certain class actions require that “questions of law or fact
common to class members predominate over any questions
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affec ti ng only i ndiv idua l members. ” Fed. Ru le Civ.
Proc.
23(b)(3). So to the extent a court is able to presume
reliance by everyone who purchased an affected stock, Basic
can help avoid individualized questions that otherwise might
stand in the way of proceeding with a securities fraud action
on a classwide basis. Erica P. John Fund, Inc. v. Hallibur-
ton Co., 563 U. S. 804, 809–811 (2011) (Halliburton I).
At the same time, Basic's presumption of reliance has only
ever been just that. Everyone accepts that, if a defendant
undermines one of the assumptions on which it rests, the
presumption dissipates. So, for example, if the defendant's
alleged misrepresentation did not actually affect the market
price, there can be no ground for presuming anyone relied
on that misrepresentation when purchasing the stock. Hal-
liburton II, 573 U. S., at 279. Similarly, if a particular plain-
tiff did not care about the integrity of the market price when
purchasing a stock, there is no basis for presuming that indi-
vidual's reliance. Id., at 276.
Before us, the only meaningful dispute concerns what bur-
den a defendant bears when it comes to rebutting the Basic
presumption. Does the defendant carry only a burden of
production, or does the defendant sometimes carry a burden
of persuasion? In my view, only a burden of production is
involved.
Start with what we have said about presumptions like
Basic's. This Court has long recognized that a “ ` “presump-
tion” properly used refers only to a device for allocating the
production burden.' ” Texas Dept. of Community Affairs v.
Burdine, 450 U. S. 248, 255, n. 8 (1981). Throughout the law,
courts have sometimes created presumptions to help plain-
tiffs prove their cases when direct evidence can be hard to
come by. See Basic, 485 U. S., at 245. These presumptions
operate by allowing the plaintiff to prove only certain speci-
fed “predicate fact[s]” at the outset. St. Mary's Honor Cen-
ter v. Hicks, 509 U. S. 502, 506 (1993). If the plaintiff does
so, an inference or “presumption” arises that the plaintiff has
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met its burden of persuasion, at least “in the absence” of
some
competing “explanation.” Ibid. (internal quotation
marks omitted). At that point, the defendant bears a bur-
den of production to present evidence that, if “taken as
true,” would “permit the conclusion” that the presumption
in the plaintiff's favor is mistaken. Id., at 509 (emphasis
deleted). If the defendant produces such evidence, the pre-
sumption “drops from the case.” Id., at 507 (internal quota-
tion marks omitted). “[T]he trier of fact” then “proceeds to
decide the ultimate question.” Id., at 511. Throughout this
whole back-and-forth process, the burden of persuasion
never shifts: The “plaintiff at all times bears the ultimate
burden of persuasion” to prove all aspects of its cause of
action. Ibid. (internal quotation marks omitted).
The Court has explained that nearly “all presumptions”
operate in this way. Id., at 507. The Federal Rules of Evi-
dence confrm the point too. Rule 301, titled “Presumptions
in Civil Cases Generally,” provides that “the party against
whom a presumption is directed has the burden of producing
evidence to rebut the presumption,” but “the burden of per-
suasion . . . remains on the party who had it originally.”
Again, a burden of production may shift to the defendant,
but never the burden of persuasion.
Title VII practice offers a familiar illustration of these
principles. There, the plaintiff bears the ultimate burden
of proving that his employer intentionally discriminated
against him because of his race or some other unlawful fac-
tor. See St. Mary's Honor Center, 509 U. S., at 511. But
because direct evidence of intentional discrimination can be
“elusive,” the Court has created a presumption. See id., at
506 (internal quotation marks omitted). If a plaintiff proves
certain “predicate fact[s]”—for example, that he is black, that
he was fred from a job for which he was qualifed, and that
the job remained open and was ultimately flled by a white
person—an inference or presumption of intentional discrimi-
nation arises. Ibid. At that point, the defendant bears the
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burden of producing evidence that, if accepted as true, shows
it
fred the plaintiff for only legitimate business reasons.
Id., at 506–507. Should that happen, the presumption of in-
tentional discrimination disappears and the trier of fact must
weigh the parties' competing proof. Id., at 510–511. None
of that means the plaintiff 's indirect evidence of discrimina-
tion also disappears. It simply means the trier of fact must
consider any inferences arising from that indirect evidence
while also considering the defendant's evidence and any
other proof the plaintiff submits. See id., at 511. “[A]t all
times” throughout the litigation, however, the plaintiff bears
the “ultimate burden of persuading the trier of fact that he
has been the victim of intentional discrimination.” Id., at
507–508 (brackets and internal quotation marks omitted).
Since the Court frst started tangling with the fraud on
the market theory in Basic, it has followed these traditional
rules. Consistently, our decisions have “made clear” that
Basic's “presumption” of reliance is “just that.” Hallibur-
ton I, 563 U. S., at 811. Much as the Court said it created
the Title VII presumption to help prove the “elusive” ques-
tion of intentional discrimination, Basic said it created its
presumption of reliance to relieve “an unnecessarily unrealis-
tic evidentiary burden” on securities fraud plaintiffs. 485
U. S., at 245. And when creating its presumption Basic ex-
pressly cited Rule 301. Ibid.
The process Basic outlined matches traditional under-
standings too. The Court explained that a plaintiff 's ability
to prove certain “threshold facts”—about market operations
and the publicity of the misstatement—gives rise to a “pre-
sumption” of reliance. See id., at 248, and n. 27. After such
a showing, the Court continued, a defendant may then pro-
ceed to “rebut the presumption.” Id., at 248. Nowhere in
any of this did Basic suggest the order of operations govern-
ing its presumption should differ in any way from those
governing others commonly found in the law and subject to
Rule 301. Nor is there any doubt which party has the burden
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of persuasion on the question of reliance in securities fraud
cases
like ours. From start to fnish, the plaintiff has the
burden to satisfy that essential element of its claim. Basic's
presumption of reliance thus “does not shift” any burden of
persuasion—that always “remains” with the plaintiff. Fed.
Rule Evid. 301; see also St. Mary's Honor Center, 509 U. S.,
at 506–508.
Consider how all this works in routine securities fraud
cases. Once a plaintiff proves the four “predicate facts”
Basic specifed, see supra, at 130, a presumption of reliance
attaches. At that point, the defendant bears the burden of
producing evidence that, if believed, would support a fnding
that the plaintiff did not actually rely on its alleged misrepre-
sentation. As we have seen, a defendant might do so by
producing evidence suggesting that its alleged misrepresen-
tation did not have an impact on market price or that the
plaintiff was indifferent to the alleged misrepresentation.
Upon such a showing, the presumption of reliance drops from
the case and the trier of fact must decide the question of
reliance vel non, cognizant of the fact the plaintiff bears the
burden of proving reliance like any other essential elements
of its claim. Again, that does not mean the plaintiff's indi-
rect proof disappears. A court may still infer from the
Basic predicates that a particular misstatement was incorpo-
rated into the stock price and that the plaintiff relied on the
integrity of that price. Both sides are free to present addi-
tional proof too. It's simply that a court no longer must fnd
reliance. See St. Mary's Honor Center, 509 U. S., at 511.
The Court disputes none of this. It does not even try to
defend on the merits its unusual suggestion that the defend-
ant carries some burden of persuasion in a plaintiff 's claim
for securities fraud. Instead, the Court contends only that
precedent ties our hands.
Primarily, the Court points to a single clause in a single
sentence in Basic observing that a defendant may rebut the
presumption of reliance with “[a]ny showing that severs the

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link between the alleged misrepresentation” and the stock
pr
ice. See ante, at 125 (quoting Basic, 485 U. S., at 248; em-
phasis deleted). The Court then splices that clause together
with another clause in a preceding sentence explaining that,
before Basic, lower courts had said a defendant rebuts the
fraud on the market presumption by showing “that the mis-
representation in fact did not lead to a distortion of price.”
Ante, at 125 (quoting Basic, 485 U. S., at 248; emphasis
deleted).
But what does this prove? Surely this language confrms
an important and by now familiar point: Once a defendant
produces evidence that, if believed, shows that fraud on the
market theory does not hold in its particular case because its
alleged misrepresentation in fact failed to affect the stock
price, the presumption of reliance drops away. On the
Court's reading today, however, this language doesn't just
carry that obvious meaning. We are told it also must mean
that Basic intended to shift the “burden of persuasion” with
respect to “price impact” to the defendant—at least “at class
certifcation”—because the “mere production of some evi-
dence relevant to price impact would rarely accomplish th[e]
feat” of “in fact” “ sever[ing] the link between a misrepresen-
tation and the price paid” for the stock. Ante, at 125–126
(internal quotation marks omitted; emphasis deleted).
That much does not follow. Not only has this Court often
said it is a mistake to parse terms in a judicial opinion with
the kind of punctilious exactitude due statutory language.
See Reiter v. Sonotone Corp., 442 U. S. 330, 341 (1979).
Even read for all they are worth, the handful of words on
which the Court rests its entire holding today—a “showing ”
that “in fact” “sever[s] the link”—cannot begin to carry the
weight the Court assigns them. See ante, at 125 (emphasis
deleted). These terms do not even appear together in
Basic: The Court has to pluck the phrase “in fact” from one
sentence and the phrase “[a] showing that severs the link”
from another, and then combine them to create a new clause
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that appears nowhere in the U. S. Reports—a “showing ”
that
“in fact sever[s] the link.” Ante, at 125 (internal quota-
tion marks omitted). Even then, the Court's newly hand-
crafted phrase does not so much as mention the terms
“burden of persuasion” or “price impact.”
The hard truth is that in the 30-plus years since Basic this
Court has never (before) suggested that plaintiffs are re-
lieved from carrying the burden of persuasion on any aspect
of their own causes of action. To the contrary, when discuss-
ing the presumption it created, Basic expressly referenced
Rule 301 and invoked its normal order of operations. And
this Court has long explained that presumptions “properly
used” refer only to devices “for allocating the production
burden,” and not the burden of persuasion. Burdine, 450
U. S., at 255, n. 8 (internal quotation marks omitted). Are
we really to believe that Basic—while referencing tradi-
tional understandings embodied in Rule 301 and just seven
years after Burdine—secretly meant to depart from tradi-
tional and “proper” understandings about how presumptions
work? Thanks to spliced clauses found in two sentences this
Court has never before read that way? All while using
words that carry another and much more natural meaning?
To state the theory is to refute it.
If Basic doesn't command today's result, the Court offers
a backup theory. Separately, it insists, Halliburton II re-
quires us to shift a burden of persuasion to the defendant.
Specifcally, the Court points to the fact that Halliburton II
reaffrmed Basic's holding that a plaintiff need not show reli-
ance “directly,” but may do so “presumptively” by carrying
the burden of proving the four Basic factual predicates. 573
U. S., at 278. A decision holding that the defendant merely
bore the burden of producing evidence suggesting a lack of
price impact at class certifcation, the Court now submits,
“would be nearly indistinguishable from the regime that
Halliburton II rejected.” Ante, at 126.
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That much does not follow either. Like Basic, Hallibur-
t
on II concerned what facts a plaintiff must produce to gen-
erate a presumption of reliance. This case is about what
defendants must do to rebut that presumption. Deciding
one does not resolve the other. To say these issues are “in-
distinguishable” is to miss the entire point of a presumption:
It allows the plaintiff to state a prima facie case based on
inference and requires the defendant to bear the burden of
producing evidence in response; once the defendant does so,
the presumption has served its purpose and drops from the
case. At that point, the factfnder now has the beneft of
evidence from both sides and must decide the case with ref-
erence to the plaintiff's burden of persuasion. Nothing in
Halliburton II suggests a departure from these principles,
let alone that some burden of persuasion secretly shifts to
the defendant in a plaintiff's claim for securities fraud. To
the contrary, that decision arose in the class certifcation
context and expressly reaffrmed that “[t]he Basic presump-
tion does not relieve plaintiffs of the burden of proving ”
they have satisfed “the predominance requirement of Rule
23(b)(3).” 573 U. S., at 276.
The Court has no answer to any of this. Instead, it re-
plies only by touting the fact that two Court of Appeals deci-
sions have read Basic and Halliburton II as it does. Ante,
at 126. But this is a non sequitur. The Court does not sug-
gest that a pair of lower court opinions represents some ro-
bust judicial consensus. Nor does the Court suggest those
opinions free us from having to interpret the law for our-
selves. After all, “[o]ur duty is to follow the law as we fnd
it, not to follow rotely whatever lower courts might once
have said about it.” BP p.l.c. v. Mayor and City Council of
Baltimore, 593 U. S. 230, 244 (2021). The fact remains that
nothing in our prior decisions has ever placed a burden of
persuasion on the defendant with respect to any aspect of
the plaintiff 's case. It is incumbent on the plaintiff to prove
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reliance, not the defendant to disprove it. If a majority of
the
Court today really believes some novel new burden of
persuasion should be placed on the defendant, it ought to
say so. Past decisions—by this Court or others—cannot be
blamed for today's result.
Perhaps recognizing the incongruity of its conclusion, the
Court goes out of its way to downplay its signifcance.
We're told that “on the ground” today's holding “is unlikely
to make much difference” because “[i]n most securities-fraud
class actions . . . the plaintiffs and defendants submit compet-
ing expert evidence on price impact.” Ante, at 126. And
in cases like these, “[t]he district court's task,” according to
the Court, “is simply to assess all the evidence of price im-
pact” and “determine whether it is more likely than not that
the alleged misrepresentations had a price impact.” Ante,
at 126-127.
This is a curious disavowal. Obviously, the Court thinks
the issue important enough to spend the time and effort to
rejigger the burden of persuasion. Now, though, it says
none of this matters because most cases come down to a dis-
pute over evidence of price impact irrespective of the pre-
sumption. The Court's suggestion that the burden of per-
suasion will “rarely” make a “difference” misses the point
too. The whole reason we allocate the burden of persuasion
is to resolve close cases by providing a tie breaker where the
burden does make a difference. That close cases may not be
common ones is no justifcation for indifference about how
the law resolves them.
Respectfully, I dissent.
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