Bell, et al v. Ascendant Solutions, et al

United States Court of Appeals
Fifth Circuit
F I L E D
August 23, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-11078
_______________
RICHARD BELL,
ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED; ET AL.,
Plaintiffs,
PLUTARCH, LTD., MARIO SONZONE,
Plaintiffs-Appellants,
VERSUS
ASCENDANT SOLUTIONS, INC.; NORMAN CHARNEY;
PAUL JENNINGS; CCLP, LTD., ALAN E. SALZMAN,
Defendants-Appellees.
* * * * * * * * * * * * * * *

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2
DENNIS HOFFMAN,
INDIVIDUALLY AND ON BEHALF OF HIMSELF
AND ALL OTHERS SIMILARLY SITUATED; ET AL.,
Plaintiffs,
PLUTARCH, LTD.,
Plaintiff-Appellant,
VERSUS
ASCENDANT SOLUTIONS, INC.;
NORMAN CHARNEY; PAUL JENNINGS,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
Before GARWOOD, SMITH, and CLEMENT,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Mario Sonzone and Plutarch, Ltd., an indi-
vidual investor and a closely-held Liberian cor-
poration, appeal the denial of class certification
in a securities fraud suit against Ascendant
Solutions, Inc. (“Ascendant”), some of its
former executives and directors, and a related
entity. Concluding that the district court did
not abuse its discretion, we affirm and remand.
I.
Ascendant, a Dallas-based firm founded in
1995, provided electronic order management
and customer service solutions to e-commerce
and direct marketing firms. It made an initial
public offering (“IPO”) of five million shares
of common stock on November 11, 1999. All
the shares were purchased on a firm-commit-
ment basis and at a pre-set price ($8.00 per
share) by an underwriting syndicate. After

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two days of trading on the NASDAQ National
Market, both of which were marked by insig-
nificant price declines, Ascendant common
stock more than tripled in price within three
weeks, closing at $28.00 on November 30, all
during the twenty-five-day post-IPO “quiet
period.” See 17 C.F.R. § 230.174(d).
The good times were short-lived: On Jan-
uary 24, 2000, Ascendant announced that
problems with its capacity to provide the re-
quisite software services had caused it to lose
three of its seven customers, including one
featured in Ascendant’s prospectus as a “Se-
lect Client Case Stud[y].” The next day, As-
cendant’s stock price declined almost 30%.
By the end of September, it had announced
that it would no longer provide order fulfill-
ment and customer-service call-center opera-
tions; by May 2001, it had been de-listed from
NASDAQ.
II.
Litigation ensued. The district court con-
solidated five securities fraud class action com-
plaints filed against Ascendant and some of its
executives and directors and appointed lead
plaintiffs. Plaintiffs filed an amended class
action complaint; a motion to dismiss fol-
lowed, which the district court granted in part
and denied in part, winnowing-down some of
the plaintiffs’ allegations but leaving their basic
theory of liability intact: Ascendant and
various insiders had made false and misleading
statements in connection with the IPO
regarding the scope of Ascendant’s order
management and customer service systems and
its success in providing such systems to clients.
Plaintiffs then moved to certify a class,
based on Federal Rule of Civil Procedure
23(b)(3), consisting of all persons (except de-
fendants and certain related persons and inter-
ests) who purchased Ascendant common stock
on the open market between November 11,
1999 (the date of the IPO) and January 24,
2000 (the day Ascendant announced its trou-
bles) and who were damaged by defendants’
allegedly false and misleading statements in
violation of sections 10(b) and 20(a) of the Se-
curities Exchange Act of 1934 and rule 10b-5
promulgated thereunder.1
Ascendant responded in opposition to class
certification and, in support, submitted an ex-
pert report, the rub of which was that Ascen-
dant’s common stock did not trade in an effi-
cient market. This being so, Ascendant main-
tained, the putative class could not invoke the
fraud-on-the-market theory recognized in Ba-
sic Inc. v. Levinson, 485 U.S. 224 (1988), and
obtain the benefit of its class-wide presump-
tion of reliance,2 leaving plaintiffs’ fraud claims
1 See 15 U.S.C. § 78j(b), 78t(a); 17 C.F.R.
§ 240.10b-5.
2 The fraud-on-the-market theory enables in-
vestors who cannot satisfy the traditional require-
ment of proving actual reliance on a fraudulent
representation (i.e., those investors who did not
read the documents or hear the statements alleged
to contain the fraudulent representations) neverthe-
less to maintain a fraud action for which reliance is
an essential element. It does so by “interpreting the
reliance requirement to mean reliance on the integ-
rity of the market price rather than reliance on the
challenged disclosure.” Daniel R. Fischel, Effi-
cient Capital Markets, the Crash, and the Fraud
on the Market Theory, 74 CORNELL L. REV. 907,
908 (1989).
The central premise of the theory is that, in an
efficient capital market, the market price of a stock
reflects all public information; hence an investor
who purchases a stock in such a market is harmed
if the price reflects false information as a conse-
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dependent on proving individual reliance and
thus unsuited for aggregation.3
Plaintiffs responded with an expert report
of their own, which included an event study
purporting to show that Ascendant common
stock did, in fact, trade in an efficient market.
But the district court, on Ascendant’s motion
to exclude under Daubert,4 excluded plaintiffs’
expert, concluding that his event study was
unreliable and purposefully designed to
support its market-efficiency conclusion.
The court then determined that plaintiffs,
lacking an expert, had otherwise failed to dem-
onstrate that Ascendant common stock traded
in an efficient market, so the putative class
could not take advantage of the presumption
of class-wide reliance permitted under the
fraud-on-the-market theory. The fraud claims
thus would require proof of individual reliance,
so the proposed class does not satisfy the
predominance requirement of rule 23(b)(3).
Accordingly, the court denied class certifica-
tion.5 Plaintiffs thereafter sought, and we
granted, pursuant to Rule 23(f) of the Federal
Rules of Civil Procedure, an interlocutory ap-
peal of that denial.
III.
The class certification decision rests within
the sound discretion of the district court, so
long as that discretion is exercised within the
framework of rule 23. See Robinson v. Texas
Auto Dealers Ass’n, 387 F.3d 416, 421 (5th
Cir. 2004); Castano, 84 F.3d at 740. Thus we
review for abuse of discretion the denial of
class certification. See In re Monumental Life
Ins. Co., 365 F.3d 408, 414 (5th Cir.), cert.
denied, 125 S. Ct. 277 (2004).
IV.
Plaintiffs challenge the district court’s con-
clusion that they failed adequately to show that
Ascendant common stock traded in an efficient
market during the class period. We un-
derstand their argument on appeal to contain
two primary contentions. First, they claim
they need only plead market efficiency at the
class certification stage and that the district
court, by looking beyond the pleadings, im-
properly decided an issue going to the merits
under Eisen v. Carlisle & Jacquelin, 417 U.S.
156 (1974). Second, they attack the substance
of the court’s market efficiency determination
on the ground that the court failed to give due
consideration to various factors relevant to
market efficiency.
A.
Plaintiffs claim they are required only to
plead market efficiency at the class certifica-
tion stage and that the district court, by going
2(...continued)
quence of a material misrepresentation. See id. at
911; Basic, 485 U.S. at 246. Accordingly, the
fraud-on-the-market theory holds “only to the
extent that markets efficiently reflect (and thus
convey to investors the economic equivalent of) all
public information”. Asher v. Baxter Int’l Inc.,
377 F.3d 727, 731-32 (7th Cir. 2004), cert. de-
nied, 125 S. Ct. 1639 (2005).
3 Cf. Castano v. Am. Tobacco Co., 84 F.3d
734, 745 (5th Cir. 1996) (“[A] fraud class action
cannot be certified when individual reliance will be
an issue.”).
4 See Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579 (1993).
5 See Bell v. Ascendant Solutions, Inc., No.
Civ. A. 3-01-CV-0166-N, 2004 WL 1490009
(N.D. Tex. July 1, 2004).

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beyond the pleadings and requiring a threshold
showing, improperly decided an issue going to
the merits under Eisen. This betrays a mis-
reading of Eisen, which, as we explained in
Castano, does not suggest that a court is lim-
ited to the pleadings when deciding on class
certification. Rather, Eisen “stand[s] for the
unremarkable proposition that the strength of
a plaintiff’s claim should not affect the certifi-
cation decision.” Castano, 84 F.3d at 744.6
Eisen therefore offers no support for the
view that a district court must accept, on noth-
ing more than pleadings, allegations of ele-
ments central to the propriety of class certifi-
cation under rule 23.7 As the Fourth Circuit
has cogently explained in rejecting a similar
contention,
Eisen’s prohibition against assessing plain-
tiffs’ likelihood of success on the merits as
part of a Rule 23 certification does not
mean that consideration of facts necessary
to a Rule 23 determination is foreclosed
merely because they are required to be
proved as part of the merits. The analysis
under Rule 23 must focus on the require-
ments of the rule, and if findings made in
connection with those requirements overlap
findings that will have to be made on the
merits, such overlap is only coincidental.
The findings made for resolving a class
action certification motion serve the court
only in its determination of whether the
requirements of Rule 23 have been
demonstrated.
Gariety v. Grant Thornton, LLP, 368 F.3d
356, 366 (4th Cir. 2004). Thus, in the market
efficiency context, “[a]lthough the court’s de-
termination for class certification purposes
may be revised (or wholly rejected) by the ul-
timate factfinder, the court may not merely
presume the facts in favor of an efficient mar-
ket.” Unger v. Amedisys, Inc., 401 F.3d 316,
323 (5th Cir. 2005).8
6 See Castano, 84 F.3d at 744. (“In Eisen, the
Court held that it was improper to make a prelimi-
nary inquiry into the merits of a case, determine
that the plaintiff was likely to succeed, and conse-
quently shift the cost of providing notice to the
defendant.”) (citing Eisen, 417 U.S. at 177)).
7 Cf. Gen. Tel. Co. v. Falcon, 457 U.S. 147,
160 (1982) (“[S]ometimes it may be necessary for
the court to probe behind the pleadings before
coming to rest on the certification question.”);
Coopers & Lybrand v. Livesay, 437 U.S. 463, 469
(1978) (reasoning that “the class determination
generally involves considerations that are ‘en-
meshed in the factual and legal issues comprising
the plaintiff’s cause of action.’”); Castano, 84 F.3d
at 744 (“A district court may certainly look past
the pleadings to determine whether the require-
ments of rule 23 have been met. Going beyond the
pleadings is necessary, as a court must understand
the claims, defenses, relevant facts, and applicable
substantive law in order to make a meaningful
determination of the certification issues.”) (footnote
omitted)); Szabo v. Bridgeport Machs., Inc., 249
F.3d 672, 675-76 (7th Cir. 2001) (“The proposi-
tion that a district judge must accept all of the
complaint’s allegations when deciding whether to
(continued...)
7(...continued)
certify a class cannot be found in Rule 23 and has
nothing to recommend it. . . . Before deciding
whether to allow a case to proceed as a class action
. . . a judge should make whatever factual and legal
inquiries are necessary under Rule 23. . . . And if
some of the considerations under Rule 23(b)(3) . .
. overlap the merits . . . then the judge must make
a preliminary inquiry into the merits.”).
8 Cf. Nathenson v. Zonagen, Inc., 267 F.3d
400, 414 (5th Cir. 2001) (“Basic plainly states that
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Indeed, the suggestion that a court must ac-
cept mere allegations of market efficiency is
demonstrably at odds with Unger and, more
fundamentally, with a district court’s duty,
rooted in the text of rule 23(b)(3), to “find[]”
that common issues predominate before certi-
fying a class.9 At issue in Unger were “the
standards and procedures used by district
courts when considering certification of secu-
rities class actions dependent on the ‘fraud on
the market’ theory,” and we held that “a care-
ful certification inquiry is required and findings
must be made based on adequate admissible
evidence to justify class certification.” Unger,
401 F.3d at 319.
In so doing, we stressed the critical link be-
tween a threshold showing of market efficien-
cy and a district court’s duty to ensure that
class members’ fraud claims are not predicated
on proving individual reliance:
Without an initial demonstration of market
efficiency, there is no assurance that the
available material information concerning
the stock translates into an effect on the
market price and supports a classwide pre-
sumption of reliance. Absent an efficient
market, individual reliance by each plaintiff
must be proven, and the proposed class will
fail the predominance requirement.
Id. at 322. Accordingly, we joined several of
our sister circuits in applying “rigorous,
though preliminary, standards of proof to the
market efficiency determination,” id., and we
set forth various factors utilized by courts to
decide whether a stock trades in an efficient
market.10
Plaintiffs acknowledged Unger at oral argu-
ment but contended it is irrelevant insofar as it
involved a small-cap stock traded on the over-
the-counter market, whereas Ascendant was
listed on the NASDAQ National Market and
traded more heavily. Unger did involve a
small-cap stock traded on a less-developed 8(...continued)
the presumption of reliance [under the fraud-on-
the-market theory] may be rebutted by ‘[a]ny
showing that severs the link between the alleged
misrepresentation and . . . the price received (or
paid) by the plaintiff.’”) (quoting Basic, 485 U.S.
at 247)).
9 See Unger, 401 F.3d at 321 (“The plain text
of Rule 23 requires the court to ‘find,’ not merely
assume, the facts favoring class certification.”);
Gariety, 368 F.3d at 365 (“If it were appropriate
for a court simply to accept the allegations of a
complaint at face value in making class action
findings, every complaint asserting the require-
ments of Rule 23(a) and (b) would automatically
lead to a certification order, frustrating the district
court’s responsibilities for . . . making ‘findings’
that the requirements of Rule 23 have been satis-
fied.”) (citing FED. R. CIV. P. 23(b)(3)) (internal
citations omitted).
10 These factors include (1) the average weekly
trading volume expressed as a percentage of total
outstanding shares; (2) the number of securities an-
alysts following and reporting on the stock; (3) the
extent to which market makers and arbitrageurs
trade in the stock; (4) the company’s eligibility to
file SEC registration Form S-3 (as opposed to
Form S-1 or S-2); (5) the existence of empirical
facts “showing a cause and effect relationship
between unexpected corporate events or financial
releases and an immediate response in the stock
price”; (6) the company’s market capitalization; (7)
the bid-ask spread for stock sales; and (8) float, the
stock’s trading volume without counting insider-
owned stock. Unger, 401 F.3d at 323 (citing
Cammer v. Bloom, 711 F. Supp. 1264, at 1286-87
(D.N.J. 1989)); Krogman v. Sterritt, 202 F.R.D.
467, 477-78 (N.D. Tex. 2001)).

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market, and these distinctions are, of course,
relevant to the substance of the market effi-
ciency determination. But we reject the sug-
gestion that Unger exempts plaintiffs in suits
involving stocks traded on larger securities
markets from the burden of making a prelimi-
nary showing of market efficiency at the class
certification stage.
Beyond the conflict with rule 23(b)(3)’s
requirement that a court “find[]” that common
issues predominate and the forceful logic of
Unger itself,11 as well as the obvious problems
that would attend application of such a rule
(e.g., which markets and how much volume
(and for how long) would suffice to free a
putative class from the threshold proof re-
quirement?), we note that, as explained further
infra, the mere fact that a stock trades on a na-
tional exchange does not necessarily indicate
that the market for that particular security is
efficient. See Cammer, 711 F. Supp. at 1281.
In fact, “some companies listed on national
stock exchanges are relatively unknown and
trade there only because they met the eligibility
requirements. While the location of where a
stock trades might be relevant, it is not
dispositive of whether the ‘current price re-
flects all available information,’” id. (footnote
omitted), which, of course, is the hallmark of
an efficient capital market.12
In any event, if plaintiffs are as confident as
they seem to be in their empirical assertion that
the market for stocks, such as Ascendant,
listed on NASDAQ are necessarily efficient
during the relevant class periods, then making
a preliminary showing of such efficiency on
competent, admissible evidence should be no
burden at all. Accordingly, we reject plaintiffs’
contention that the district court erred in going
beyond the pleadings and requiring them to do
more than just allege market efficiency to
satisfy the predominance requirement of rule
23(b)(3).13
11 See Unger, 401 F.3d at 325 (“Questions of
market efficiency cannot be treated differently from
other preliminary certification issues.”); id. at 323
(“[T[he court may not simply presume the facts in
favor of an efficient market.”); id. at 325 (“When
a court considers class certification based on the
fraud on the market theory, it must engage in
thorough analysis, weigh the relevant factors,
require both parties to justify their allegations, and
base its ruling on admissible evidence.”).
12 See, e.g., Jonathan R. Macey & Geoffrey P.
Miller, Good Finance, Bad Economics: An Analy-
sis of the Fraud-on-the-Market Theory, 42 STAN.
L. REV. 1059, 1060 (1990).
13 Plaintiffs also claim that the district court
improperly required expert testimony to prove mar-
ket efficiency. But plaintiffs fail to grasp the
distinction between saying something has not been
proven without an admissible expert report and
saying something cannot be proven without it.
The district court did not hold, as plaintiffs’ brief-
ing suggests, that expert testimony is required as a
matter of law to show market efficiency. Rather,
the court found the particular expert testimony
offered by plaintiffs to be unreliable, then con-
cluded that there was otherwise insufficient evi-
dence of market efficiency to permit plaintiffs to
demonstrate predominance by way of the fraud-on-
the-market theory.
In any case, although “[t]here is no requirement
for expert testimony on the issue of market effi-
ciency . . . many courts have considered it when
addressing this determination, which may often
benefit from statistical, economic, and mathemati-
cal analysis.” Unger, 401 F.3d at 323 n.6. Indeed,
though Unger admonishes district courts “not to
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B.
Thus, our focus narrows to the substance of
their market efficiency showing; we consider
whether the court abused its discretion in find-
ing that plaintiffs failed to make a showing suf-
ficient to avail themselves of the class-wide
presumption of reliance under the fraud-on-
the-market theory. Because we hear this ap-
peal on an interlocutory basis, however, our
review is bridled by rule 23(f). Under that
rule, “a party may appeal only the issue of
class certification; no other issues may be
raised.” Bertulli v. Indep. Ass’n of Cont’l
Pilots, 242 F.3d 290, 294 (5th Cir. 2001).14
Consequently, as plaintiffs concede, we may
not review the exclusion of their expert report,
so we must look to the remainder of their mar-
ket efficiency showing and determine whether
the district court abused its discretion in find-
ing it wanting. We see no abuse of discretion.
Plaintiffs argue the district court failed to
give due consideration to various factors of
market efficiency: (1) Ascendant’s listing on
NASDAQ; (2) trading volume; (3) the number
of market makers and analysts; and (4) stock
price movement in response to new, company-
specific information. Beyond their expert re-
port, however, plaintiffs did not provide the
court with any analysis of these or other mar-
ket efficiency factors.
Plaintiffs’ motion for class certification is
devoid of any arguments or evidence in sup-
port of the fraud-on-the-market theory. The
brief filed in support of the motion does con-
tain a section on predominance, but it, too,
contains no analysis of any of the market ef-
ficiency factors. Instead it merely assumes that
the putative class is entitled, as a matter of
right, to a presumption of reliance, noting with
little more than a citation to Basic that “the re-
liance element is presumed.”
To be sure, plaintiffs did emphasize to the
court that Ascendant was traded on a major
stock exchange, but the court was well within
reason to find this fact alone insufficient to
show market efficiency and thus predomi-
nance. After all, the relevant question is
whether the market for a particular security is
efficient, because a market can be open and
developed for some securities and not for
others. As the court in Cammer explained,
“[i]t would be illogical to apply a presumption
of reliance merely because a security is traded
within a certain whole market without consid-
ering the trading characteristics of the individ-
ual stock itself.” Cammer, 711 F. Supp. at
1281 (internal marks omitted).15
As for trading volume, plaintiffs’ brief in
support of class certification did note, in its
statement of facts, Ascendant’s high average
13(...continued)
insist upon a ‘battle of the experts’ at the class
certification stage,” id., we quoted with approval a
statement from the district court’s opinion in this
case in defense of considering at least the reliability
of expert testimony on market efficiency at the
class certification stage. Id. at 323-24 n.6 (citing
Bell, 2004 WL 1490009, at *3-*4).
14 Bertulli, of course, recognizes an exception to
this rule, but only for challenges to the power of
federal courts to entertain the underlying action in
the first instance: “Standing is an inherent pre-
requisite to the class certification inquiry; thus,
despite the limited nature of a Rule 23(f) appeal,
defendants can raise the issue of standing before
this court.” Id.
15 See also id. (“[T]he inquiry in an individual
case remains the development of the market for that
stock, and not the location where the stock
trades.”).

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trading volume. But the relevant indicator is
turnover measured as a percentage of out-
standing shares, see id. at 1286, and plaintiffs
provided the court with no analysis of this fig-
ure. And their effort is no better on appeal,
for they merely repeat the same number with-
out reference to the total number of outstand-
ing shares.
Nor did plaintiffs’ briefing to the district
court discuss the presence of market makers
for Ascendant stock. They contend on appeal,
however, that the presence of between seven-
teen and twenty-three market makers during
the class period supports a finding of market
efficiency. Yet, even if we were to consider
this factor on appeal, both the caselaw and
economic literature suggest “the mere number
of market makers, without further analysis, has
little to do with market efficiency.” Unger,
401 F.3d at 324.16
Instead the relevant information, which
plaintiffs did not provide, concerns “the vol-
ume of shares that they committed to trade,
the volume of shares they actually traded, and
the prices at which they did so.” O’Neil v. Ap-
pel, 165 F.R.D. 479, 502 (W.D. Mich. 1996).
Similarly, plaintiffs did not discuss analyst cov-
erage in their motion or brief to the district
court. They do cite on appeal to the expert re-
ports submitted in the district court, both of
which discuss analyst coverage, but even if this
factor was properly raised in the district court,
it reveals that Ascendant did not have analyst
coverage for more than a third of the class
period.17
Finally, as far as price movement in re-
sponse to new, company-specific information
is concerned, plaintiffs addressed this issue in
a sustained way only in the event study pre-
pared by their expert. Yet the district court
excluded this evidence as methodologically un-
sound and thus unreliable after concluding
that, once a single day on which no company-
specific information was released was exclud-
ed from the sample, there was no statistically
significant difference between stock-price
movement on so-called information days and
non-information days. And though plaintiffs
stress the single-day price decline on the last
day of the class period in response to what
they deem a corrective disclosure, this single
decline on the last day of the class period is
plainly insufficient by itself to show market
efficiency throughout the class period, espe-
cially here where the class period begins as
early as the day of the IPO itself.18
16 See also Brad M. Barber et al., The Fraud-
on-the-Market Theory and Indicators of Common
Stock’s Efficiency, 19 J. CORP. L. 285, 307 (1994)
(finding that “the number of market makers [does]
not marginally contribute to distinguishing between
efficient and inefficient firms”).
17 We also note that three of the four analysts
who eventually covered the stock and made pur-
chase recommendations were underwriters of the
IPO. Cf. William O. Fisher, Does the Efficient
Market Theory Help Us Do Justice in a Time of
Madness? 54 EMORY L.J. 843, 972 (2005) (sug-
gesting that increasing numbers of sell-side ana-
lysts for stocks, such as Ascendant, that rose and
fell during the Internet bubble should not be re-
garded as corresponding to an increase in probabil-
ity of an efficient market in such stocks, because
analysts were “behaviorally biased” and likely
“contributed to market inefficiency by statistically
biasing price changes”).
18 See Gariety, 368 F.3d at 368 (finding at class
certification stage that although drop in price after
revelation of company’s insolvency does reflect
“the assimilation of market information at its
(continued...)

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V.
In sum, even if competent evidence could
be marshaled to make a plausible case that As-
cendant common stock traded in an efficient
market such that reliance should be presumed
for the class, this case comes to us with plain-
tiffs’ expert report excluded and their briefing
to the district court devoid of any serious ef-
fort to show market efficiency, so plaintiffs
have not made that case. Accordingly, be-
cause it is their burden to demonstrate that
common issues predominate,19 we find no
abuse of discretion in denying class certifica-
tion. Nor are we persuaded that we should
require that they get a second bite at the class
certification apple; inadequate briefing on an
issue critical to class certification for which a
party bears the burden of proof is no basis for
us to order a repêchage round.
The order denying class certification is
AFFIRMED, and this matter is REMANDED
for further proceedings.
18(...continued)
grossest level, that single piece of information,
standing alone, does not represent adequate evi-
dence that plaintiffs . . . purchased their shares . . .
in an efficient market”).
19 See O’Sullivan v. Countrywide Home Loans,
Inc., 319 F.3d 732, 737-38 (5th Cir. 2003) (“The
party seeking certification bears the burden of dem-
onstrating that the requirements of rule 23 have
been met.”); Castano, 84 F.3d at 740 (“The party
seeking certification bears the burden of proof.”).

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