In Re: Anadarko Petroleum Corporation Securities Litigation

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IN RE: ANADARKO
PETROLEUM
CORPORATION
SECURITIES LITIGATION
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CIVIL ACTION NUMBER
4:20-cv-00576
JUDGE CHARLES ESKRIDGE
OPINION AND ORDER
DENYING MOTIONS TO EXCLUDE AND
GRANTING MOTION FOR CLASS CERTIFICATION
The competing motions by Lead Plaintiff Norfolk
County Council as Administrative Authority of the Norfolk
Pension Fund, Iron Workers Local #580 Joint Funds, and
Defendants Anadarko Petroleum Corporation, Robert G.
Gwin, R.A. Walker, Robert P. Daniels, and Ernest A.
Leyendecker, III, to exclude certain testimony of each
other’s expert is denied. Dkts 111 & 248.
The motion by Plaintiff for class certification is
granted. Dkt 86.
For reasons stated at length below, both the record
evidence and common sense point to the same conclusion.
And that is, when news broke on the same day of both an
actual $900 million write-off as to the complained-of event
and a potential $140 million in new regulatory costs as to
an entirely different event, an eight percent decline in the
company’s stock price the following day isn’t solely
attributable to the latter regulatory costs.
1. Background
Defendant Anadarko Petroleum Corporation was a
large oil and gas exploration company until it was
purchased by Occidental Petroleum Corporation in August
2019. Dkt 55 at ¶2. Lead Plaintiff Norfolk County Council
United States District Court
Southern District of Texas
ENTERED
March 10, 2026
Nathan Ochsner, Clerk
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and Plaintiff Building Trades United Pension Fund, as well
as other putative class members, purchased Anadarko
common stock between the dates of February 20, 2015, and
May 2, 2017. Dkt 55 at ¶¶1, 15. Those are also dates within
which Defendants R.A. Walker, Robert G. Gwin, Robert P.
Daniels, and Ernest A. Leyendecker III served as senior
Anadarko executives. Dkt 55 at ¶¶16–20.
Plaintiff alleges that Anadarko and its corporate
representatives actively misled investors about the
viability and profitability of a deepwater asset in the Gulf
of Mexico—the Shenandoah oil field project, known as
Shen. Dkts 55 at ¶¶4–5 & 93 at 8. Plaintiff specifically
contends that Defendants recklessly overstated the
viability of the project and concealed negative information
from investors. Dkt 55 at ¶5; see also Frye v Anadarko
Petroleum Corp, 953 F3d 285, 288 (5th Cir 2019).
After nine years of development and expenditures,
with attendant public statements and projections,
Anadarko announced that it was suspending Shen
appraisal activity, resulting in $435 million in expensed
suspended exploratory well costs and a $467 million
impairment. Dkt 86-1 at 26. It made that announcement
on May 2, 2017, at 4:16 PM EST, after trading concluded.
Dkts 86-1 at 25–26 (Steinholt expert report) & 93-1 at 10
n 9, 12 (Ferrell expert report).
Coincidentally, and within the same hour, news also
broke regarding Anadarko’s involvement in a fatal
explosion of a natural gas pipeline. The explosion occurred
on April 17, 2017, in Firestone, Colorado. Dkt 93-1 at 12–
13, 15–16. An investigation ensued. On the afternoon of
May 2nd, Firestone fire officials held a press conference
beginning at approximately 4:03 PM EST. Dkt 111-1 at 10,
n 16. Three tweets regarding the press conference, but
without reference to Anadarko, were published as early as
4:03 PM EST. See Dkt 111-1 at 10, n 16 (Ferrell report in
support of Daubert motion). Later, at 4:51 PM EST, the
Denver Post reported the explosion was caused by gas
seeping from a severed pipeline running from an Anadarko
well. See Dkt 93-1 at 12, n 22.
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During the next trading day of May 3, 2017, Anadarko
stock dropped almost eight percent. Dkt 55 at ¶¶152–54;
see also Dkt 86-1 at 26.
Georgia Firefighters’ Pension Fund filed this putative
class action in February 2020 for violations of Sections
10(b) and 20(a) of the Exchange Act. Dkt 1; see 15 USC
§§78j & 78t. Judge Nancy Atlas appointed Norfolk County
Council (as administering authority of the Norfolk Pension
Fund, Iron Workers Local #580 Joint Funds, and Building
Trades United Pension Trust Fund) as lead plaintiff and
Robbins Geller Rudman & Dowd LLP as lead counsel.
Dkt 41. The case was later reassigned to Judge Vanessa D.
Gilmore and thereafter to this Court in December 2021.
Dkts 66 & 91.
Pending is a motion by Plaintiff to certify the following
class:
All persons and entities that purchased or
acquired the common stock of Anadarko
Petroleum Corporation between February
20, 2015, and May 2, 2017, inclusive (the
“Class Period”), and were damaged
thereby. Excluded from the Class are
Defendants and their families, legal
representatives, heirs, successors, or
assigns; officers, directors, subsidiaries,
and affiliates of Anadarko during the Class
Period; any entity in which Defendants
have a controlling interest; and any judicial
officer to which this litigation is assigned.
Dkt 86 at 9–10; see also Dkt 55 at ¶¶1, 165–71 (amended
class action complaint).
Originally pending with the class-certification motion
was a motion by Defendants for leave to file a surreply in
further opposition to class certification. Dkt 97. It
contended that Plaintiff’s reply (along with an attached
rebuttal report) contained new arguments and data
analysis by Plaintiff’s expert, Dr. Bjorn I. Steinholt, about
the price impact of the alleged corrective Shen disclosure.
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Id at 2–3; see also Dkts 96 (reply) & 96-1 (rebuttal report).
That motion was denied based on a finding that the reply
only responded to arguments in Defendants’ response.
Dkt 110.
Also during the original pendency of the class-
certification motion was a motion by Defendants to exclude
the referenced expert rebuttal testimony of Plaintiff’s
expert. Dkt 111. It contended that the rebuttal report was
itself inadmissible under Daubert. Id at 13–20. Upon
consideration, the motion to exclude was denied and the
motion for class certification was granted. Dkt 141; see also
Dkt 198 (order denying reconsideration).
Defendants appealed under Rule 23(f) of the Federal
Rules of Civil Procedure. Dkt 206. They argued that
(i) evidence and argument presented with the motion for
leave to file a surreply should have been considered on the
merits, and (ii) Plaintiff’s expert should have been excluded
under Daubert. The Fifth Circuit found that Plaintiff
indeed raised new arguments in their reply, thus entitling
Defendants to file a surreply. It also found that the Daubert
analysis should be considered again more fulsomely, given
(in part) the contentions brought to bear in the surreply.
As such, the order on class certification was vacated with
instructions to reconsider the motions, including the
ultimate conclusion as to class certification. See Georgia
Firefighters’ Pension Fund v Anadarko Petroleum
Corporation, 99 F4th 770, 774–75 (5th Cir 2024).
On remand, Defendants filed the surreply that was the
subject of the appeal. See Dkt 237; see also Dkt 239 (further
response by Plaintiff). Plaintiff also filed a motion to
exclude certain testimony of Defendants’ expert, Dr. Allen
Ferrell. Dkt 248. Plaintiff didn’t challenge Ferrell’s initial
report opposing class certification. See Dkt 93-1.
And so, considered now on remand are motions (i) by
Plaintiff for class certification, (ii) by Defendants to exclude
rebuttal testimony of Plaintiff’s expert, Dr. Bjorn I.
Steinholt, and (iii) by Plaintiff to exclude certain testimony
of Defendants’ expert, Dr. Allen Ferrell. Dkts 86, 111 &
248. Both Steinholt and Ferrell testified and were subject
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to cross-examination at hearing on the motions. Dkt 286
(minute entry).
2. Admissibility of expert testimony
The proponent of testimony by an expert witness must
“prove by a preponderance of the evidence that the
testimony is reliable.” Moore v Ashland Chemical Inc,
151 F3d 269, 276 (5th Cir 1998). The admissibility of expert
testimony is governed by Rule 702 of the Federal Rules of
Civil Procedure. It states:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or
education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or
other specialized knowledge will help the
trier of fact to understand the evidence or
to determine a fact in issue;
(b) the testimony is based on sufficient
facts or data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the
principles and methods to the facts of the
case.
This rule “assigns to the district judge a gatekeeping
role to ensure that scientific testimony is both reliable and
relevant.” Curtis v M & S Petroleum Inc, 174 F3d 661, 668
(5th Cir 1999), citing Daubert v Merrell Dow Pharma-
ceuticals Inc, 509 US 579, 597 (1993). In making this
assessment, courts must make “a preliminary assessment”
as to the validity of the reasoning or methodology
underlying the testimony and “whether that reasoning or
methodology properly can be applied to the facts in issue.”
Brown v Illinois Central Rail Co, 705 F3d 531, 535 (5th Cir
2013) (cleaned up). “If an opinion is fundamentally
unsupported, then it offers no expert assistance to the
jury.” Guile v United States, 422 F3d 221, 227 (5th Cir
2005) (cleaned up). And “nothing in either Daubert or the
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Federal Rules of Evidence requires a district court to admit
opinion evidence that is connected to existing data only by
the ipse dixit of the expert.” Kumho Tire Co v Carmichael,
526 US 137, 157 (1999) (cleaned up).
Both parties move to exclude opposing experts on
Daubert grounds. Both fail because the experts are plainly
qualified, and their methods are sufficiently reliable. Any
complaints ultimately go to the weight of testimony, not its
admissibility. As such, opinions from both experts will be
considered, where pertinent, regarding the motion for class
certification.
a. Rebuttal report by Plaintiff’s expert
Defendants filed a motion to exclude the rebuttal
report of Plaintiff’s expert, Bjorn I. Steinholt. Dkt 111;
see Dkt 96-1 (rebuttal report). Defendants don’t dispute
Steinholt’s qualifications. Nor could they, as he has a
Master of International Business degree from University of
San Diego, is a Chartered Financial Analyst, and has been
routinely retained to offer expert opinions in similar
securities class action cases. See Dkt 86-1 at 4–6.
Instead, Defendants challenge only his reliability, for
purposes of this action, under Daubert. Dkt 111 at 13–14.
They argue that the Steinholt rebuttal report—but not his
original report—is unreliable for six different reasons. See
Dkt 111 at 14–20. But none are persuasive upon
inspection. Instead, the Steinholt rebuttal report is
sufficiently reliable under Daubert.
First, Defendants contend that Steinholt assumed,
without proving, that the common stock was traded after-
hours in an efficient market. Dkts 111 at 14–15 & 123 at 6.
To the contrary, the rebuttal report focuses on the price
impact on the following trading day of May 3rd, and not the
after-hours period on May 2nd. Dkt 118 at 12–13; see also
Dkt 96-1 at 29–32. And there is no dispute that Anadarko’s
shares are efficiently traded.
Second, Defendants argue that Steinholt has no basis
for his opinion that the 4.1% price shift was abnormal or
statistically significant because he failed to conduct an
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event study that considered after-hours trading. Dkt 111
at 15–16. This fails for reasons similar to the first. Plaintiff
explains that the Steinholt event study and its conclusions
are based on a different price point—the price at market
close on May 3rd—not the 4.1% after-market price decline
on May 2nd. Dkt 118 at 13–14.
Third, Defendants raise a series of reliability concerns
pertaining to the factual timeline of news releases that
Steinholt relies upon for his report. Dkt 111 at 16–17. The
parties dispute when certain information became available
on May 2nd, the content of those releases, and the impact
of those releases. For example, see Dkts 93-1 at 39–41
(Ferrell report, discussing and ascribing Anadarko price
drop to Firestone news timeline), 96-1 at 27–28 (Steinholt
rebuttal report, outlining why Firestone news disclosure
couldn’t have caused price decline as described by Ferrell);
see also Dkts 111 at 16 (contention by Defendants that
Steinholt is “wrong on the facts” because Firestone news
broke at 4:03 PM, before 4:16 PM earnings announcement)
& 118 at 14 (contention by Plaintiff that 4:03 PM tweets
were inapposite because Anadarko’s stock price didn’t
decline until after 4:16 PM earnings announcement and
corrective disclosure). Such factual disputes don’t establish
that any of Steinholt’s conclusions are so unreliable that
they are inadmissible under Daubert. The Supreme Court
instead held in Daubert that “shaky but admissible
evidence” should be evaluated through traditional
methods, including “presentation of contrary evidence,”
and not excluded through motions to strike expert
testimony. 509 US at 596. The timeline-related argument
is that type of evidence. It doesn’t render the analysis by
Steinholt unreliable in and of its very nature.
Fourth, Defendants claim that Steinholt with his
rebuttal report excluded a relevant industry index that he
used in his first event study. Dkt 111 at 17–18. But this
mischaracterizes what Steinholt did. With his rebuttal,
Steinholt performed an event study controlling for the
Firestone news by using an index of Colorado peer
companies identified by Ferrell—in response to a gap
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identified by Defendants’ own expert. Dkt 118 at 15–16; see
also Dkt 96-1 at 30–31. This isn’t a “shift in methodology”
that means his overall testimony changed or is unreliable.
He instead responded to a point identified by Defendants.
Likewise, event studies are a well-recognized method for
analyzing the effect of a corrective disclosure on a
company’s stock price. See Ludlow v BP, PLC, 800 F3d 674,
683–84, n 37 (5th Cir 2015).
Fifth, Defendants argue that Steinholt’s reliability is
undermined by his assumption that the company’s
reported write-off would be reflected in a drop in market
value. See Dkt 111 at 19. In this first place, Defendants
appear to conflate “sunk” costs with “lost” costs. Ibid. These
aren’t the same thing, and it was only Anadarko’s write-off
that indicated future cash flows could no longer be expected
on the Shen investment. See Dkt 118 at 17. In any event,
the argument must be rejected at this stage, as it simply
critiques the basis of Steinholt’s opinion, thus ultimately
going to its weight and not admissibility. Puga v RCX
Solutions, Inc, 922 F3d 285, 294 (5th Cir 2019), citing Rock
v Arkansas, 483 US 44, 61 (1987): “As a general rule,
questions related to the bases and sources of an expert’s
opinion affect the weight to be assigned that opinion rather
than its admissibility.” Last, this “cost approach” is one of
several “recognized and generally accepted approaches to
measuring the fair value of an asset.” SEC v Yorkville
Advisors, LLC, 305 F Supp 3d 486, 505–06 (SDNY 2018).
Sixth, Defendants contend that the Steinholt used
unreliable reasoning because, if he was accurate, other
Shen partners (such as Conoco Phillips and Cobalt) would
have experienced a decline relatively proportional to
Anadarko, which didn’t occur. Dkt 111 at 20. This is
unavailing for purposes of exclusion, as it evinces a
disagreement with Steinholt’s conclusion as applied to the
facts, and not as to his methods. And for his part, Steinholt
articulates reasons why impacts would be different as
between the partners. See Dkt 96-1 at 18–24. Such dispute
is more properly dealt with on the merits, to preserve the
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adversarial system. See Pipitone v Biomatrix, Inc, 288 F3d
239, 249–50 (5th Cir 2002).
Plaintiff has otherwise shown that Steinholt’s opinion
on the May 3rd decline is reliable. As noted above, it
demonstrates that the event study of the type conducted is
“a well-established method for analyzing the effect” of
company disclosures on stock prices, citing binding
precedent stating as much. Dkt 118 at 15, citing Ludlow,
800 F3d at 683–84, n 37; see also Halliburton Co v Erica P.
John Fund Inc (Halliburton II), 573 US 258, 280–82 (2014)
(discussing function and utility of event studies in
securities litigation). But analysis for purposes of exclusion
here isn’t a determination whether the event study’s
results are correct, or even that this particular event study
is the “best” one for the circumstances. It is instead limited
to determination whether Steinholt’s opinions are based on
reliable methods, and whether he applied those methods to
the facts under recognized methods and procedures of
science.
In sum, the motion by Defendants to exclude the
Steinholt rebuttal report will be denied. Dkt 111. Plaintiff
has shown that the report isn’t unsupported speculation or
subjective belief, but rather, is based on accepted methods
reliably applied to the facts of this case. The Steinholt
rebuttal report will thus be considered where pertinent for
purposes of the motion for class certification.
b. Surreply report by Defendants’ expert
The surreply by Defendants contains a report by its
expert, Dr. Allen Ferrell. Dkts 237 & 237-1 (report).
Plaintiff filed a motion to exclude portions of that report.
See Dkt 248. As with the Steinholt report, where
Defendants didn’t dispute his qualifications, Plaintiff
doesn’t challenge Ferrell’s qualifications. And again, nor
could they. Ferrell has a Ph.D. in Economics from
Massachusetts Institute of Technology, is a professor of
securities law at Harvard Law School, and has routinely
offered expert testimony in securities class action
litigation. See Dkt 237-1 at 31–36 (resume).
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Plaintiff instead challenges only three of Ferrell’s
class-certification opinions, being his (i) accounting
opinions, (ii) “flip-flop” on the Firestone news timeline, and
(iii) ConocoPhillips event study. Dkt 248 at 11. None of
these opinions need to be excluded.
As to Ferrell’s accounting opinions, Plaintiff contends
that Ferrell offers putative “accounting-related” opinions,
which should be excluded, they say, because he “does not
qualify as an accounting expert.” Dkt 248 at 11–12. This
derives from the fact that Ferrell is not a CPA by training,
but rather, is a lawyer and an academic of finance and
securities law. Id at 11; see Dkt 93-1 at 47–53 (Ferrell CV).
But Defendants offer his expert opinion largely to show
that the Shen write-off represented a “sunk cost” that
doesn’t affect future cash flow, which in turn cannot—in
his view—affect the company’s value and stock price. See
Dkts 249 at 12 & 237-1 (Ferrell’s report) at 10–14. And they
maintain that such testimony is based on the principles of
“finance and valuation,” not accounting. Dkt 249 at 12.
To the extent that Ferrell touches on matters “related
to” finance and valuation, even if they do veer all the way
into accounting, disagreement goes to weight, not
admissibility. For example, the Fifth Circuit stated in
United States v Wen Chyu Liu that “an expert witness is
not strictly confined to his area of practice, but may testify
concerning related applications; a lack of specialization
does not affect the admissibility of the opinion, but only its
weight.” 716 F3d 159, 168–69 (5th Cir 2013) (citation
omitted).
Plaintiff seeks to frame Ferrell’s opinions as being
“accounting-based” and “rel[ying] exclusively on
accounting standards.” Dkt 250 at 3. It also describes part
of his analysis—a determination that the “impairment”
from the write-off is a sunk-cost—as being “undeniably an
accounting determination.” Id at 4 (emphasis in original).
But they provide no explanation for why that is necessarily
so. And to the contrary, Ferrell clearly has the experience
needed to testify on such matters in this case. He has
routinely testified on securities fraud cases, has experience
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performing the necessary analyses, and is plainly qualified
by his education and publications. Dkt 237-1 at 31–36; see
also Dkt 249 at 12–13. In essence, Ferrell’s testimony
focuses on the connection between the Shen “sunk cost” to
Anadarko’s stock price and, thus, is within the scope of his
financial valuation expertise. Dkt 249 at 13.
Plaintiff also argues that Ferrell’s accounting opinions
regarding the book value of Shen are inconsistent with
Generally Accepted Accounting Principles and, in turn,
Anadarko’s previous representations to its investors that
the company’s valuations complied with GAAP. Dkt 248
at 13–17. In sum, they contend that Ferrell is unreliable
because (i) his opinion that the $902 million write-off
consists of sunk costs is inconsistent with Anadarko’s
representations in financial statements to investors that
“its accounting complied with GAAP,” (ii) his sunk-costs
opinion necessarily assumes Anadarko didn’t conduct an
impairment analysis that would be required if the write-off
were indeed of sunk costs, which would mean that
Anadarko wasn’t in compliance with GAAP, and (iii) he
relied on a minority view of analysts covering Anadarko to
support his conclusions as to Anadarko’s valuation. Id
at 13–16.
None of these arguments are reason to exclude Ferrell’s
opinions. Defendants have provided sufficient evidence
that his sunk-cost opinions are based on valid valuation
principles. See Dkt 249 at 14–15. That he relied more
heavily on analyst reports that assigned a “low to zero”
value to Shen, while other analysts assigned a higher
value, again goes to weight and credibility, not to its
admissibility as evidence. See SEC v Cuban, 2013 WL
3809654, *4 (ND Tex). Ferrell’s accounting-related
opinions are thus admissible and considered where
pertinent below.
As to the Firestone news timeline, Plaintiff argues that
Ferrell’s causation analysis is unreliable because it relies
on a series of false assumptions and factual errors. Dkt 248
at 17–18. They point, factually, to two “fundamental
problems” with his testimony, being that (i) Ferrell fails to
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provide evidence that investors actually read and relied
upon the three tweets that supposedly broke the further
Firestone news at 4:03 PM on May 2nd, and thus, his
“opinion” based on how these tweets affected Anadarko’s
stock price is pure speculation, and (ii) the investigators
during that May 2nd press conference didn’t assign any
responsibility for the accident, so investors couldn’t have
assigned fault to Anadarko. Id at 16–18.
At issue is Rule 702(d) of the Federal Rules of Evidence,
which requires that “the expert’s opinion reflects a reliable
application of the principles and methods to the facts of the
case.” Plaintiff’s objections in this regard amount to mere
factual disputes, to which Defendants counter with ready
explanation. See Dkts 248 at 17–20 & 249 at 17–20. Where,
as here, the expert employs a reliable methodology and
applies it to facts, it should be left for jury consideration.
Such “questions relating to the bases and sources of an
expert’s opinion affect the weight to be assigned that
opinion rather than its admissibility.” Puga, 922 F3d
at 294. Beyond that, exclusion would usurp the jury’s fact-
finding role.
As to the ConocoPhillips event study, Plaintiff argues
that it’s unreliable because of a high error rate that can
cause false negatives—so-called “Type II errors.” Dkt 248
at 20–23. Potential error rates are relevant to the Daubert
inquiry. Id at 21, citing Moore v Ashland Chemical Inc,
151 F3d 269, 275 (5th Cir 2009). On this, Plaintiff
specifically argues that, based on the parameters Ferrell
used and identified, the event study has a 67% “Type II”
error rate and is thus unreliable. Id at 21. It also maintains
that the study “does not establish a lack of price impact.”
Id at 22 (emphasis omitted). Defendants respond by
explaining that Type II errors are actually indicators of a
lack of statistically significant price movement, meaning
that Plaintiff’s characterization of the study is misleading.
Dkt 249 at 20–22. They also argue that, because
ConocoPhillips’s stock price increased on May 3, 2017, any
Type II error rate would only support Defendants’ position
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that the Shen disclosure did not negatively impact its stock
price. Id at 22.
Like the conclusion as to Plaintiff’s expert rebuttal
report, all that Defendants must do at this stage is
establish by a preponderance of the evidence that Ferrell’s
testimony is “grounded in the methods and procedures of
science and be more than unsupported speculation or
subjective belief.” In re Taxotere (Docetaxel) Products
Liability Litigation, 26 F4th 256, 268 (5th Cir 2022)
(cleaned up). By showing that he relied on a scientific
process to come to his conclusion, Defendants have carried
their burden on reliability in addition to the Daubert
analysis as a whole.
In sum, the motion by Plaintiff to exclude certain
opinions of Dr. Allen Ferrell will be denied. Dkt 248.
Defendants have shown that his report isn’t unsupported
speculation or subjective belief, but rather, is based on
accepted methods reliably applied to the facts of this case.
The Ferrell report will thus be considered where pertinent
for purposes of the motion for class certification.
3. Class certification
Class actions proceed under Rule 23 of the Federal
Rules of Civil Procedure. “The class action is an exception
to the usual rule that litigation is conducted by and on
behalf of individual named parties only.” Comcast Corp v
Behrend, 569 US 27, 33 (2013) (quotation marks and
citation omitted). “To come within the exception, a party
seeking to maintain a class action must affirmatively
demonstrate his compliance with Rule 23.” Ibid; see also
Madison v Chalmette Refining LLC, 637 F3d 551, 554
(5th Cir 2011).
Rule 23(a) begins by listing four prerequisites to class
certification—numerosity, commonality, typicality, and
adequacy of representation. Meeting these requirements
isn’t alone sufficient. Rule 23(b) instead specifies three
class types and the requirements for each. The putative
class here seeks to proceed under Rule 23(b)(3), which
permits class certification where common questions of law
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or fact predominate over individual questions. See Charles
Alan Wright & Arthur R. Miller, Federal Practice and
Procedure §§1772, 1775, 1777 (3d ed). This in turn requires
a showing as to both predominance and superiority.
The reviewing court must “rigorously consider” the
Rule 23(a) prerequisites and the requirements specific to
the class type under Rule 23(b). Chavez v Plan Benefit
Services, Inc, 957 F3d 542, 546 (5th Cir 2020). This
requires a court to look beyond the pleadings to
“understand the claims, defenses, relevant facts, and
applicable substantive law.” Flecha v Medicredit, Inc,
946 F3d 762, 766 (5th Cir 2020). A court must also consider
how any trial on the merits would be conducted if the class
was certified. Prantil v Arkema Inc, 986 F3d 570, 574
(5th Cir 2021).
a. Rule 23(a)
Plaintiff asserts that this action satisfies all
prerequisites of Rule 23. Dkt 86 at 13. The only aspect
challenged by Defendants pertains to predominance under
Rule(b)(2). Even with such concessions, the Fifth Circuit
holds that Rule 23 nonetheless “requires the court to ‘find,’
not merely assume, the facts favoring class certification.”
Unger v Amedisys Inc, 401 F3d 316, 321 (5th Cir 2005).
Each requirement is thus addressed in turn.
As to numerosity, a plaintiff must show that “the class
is so numerous that joinder of all members is
impracticable.” FRCP 23(a)(1). In addition to the sheer
number of purported class members, a court may consider
“the geographical dispersion of the class, the ease with
which class members may be identified, the nature of the
action, and the size of each plaintiff’s claim.” Ibe v Jones,
836 F3d 516, 528 (5th Cir 2016).
Numerosity “‘is generally assumed to have been met’ in
a class action suit involving nationally traded securities,
since the putative class is likely sufficiently numerous,
geographically dispersed, and difficult to identify.”
Prause v TechnipFMC, PLC, 2020 WL 3549686, *2
(SD Tex), quoting Zeidman v J. Ray McDermott & Co,
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651 F2d 1030, 1039 (5th Cir 1981). This action falls
squarely within that general rule. Anadarko was listed on
the New York Stock Exchange for the entire class period
with a trading volume of 2.9 billion shares and over 1,800
institutional investors. Dkt 86-1 at 15, 20. Joinder of all
members is plainly impracticable.
As to commonality, a plaintiff must show that “there
are questions of law or fact common to the class.”
FRCP 23(a)(2). As the Supreme Court stated in Wal-Mart
Stores Inc v Dukes, the class members must have a common
contention that is “capable of classwide resolution—which
means that determination of its truth or falsity will resolve
an issue that is central to the validity of each one of the
claims in one stroke.” 564 US 338, 350 (2011); see also
Ahmad v Old Republic National Title Insurance Co,
690 F3d 698, 702 (5th Cir 2012). A common instance of the
defendant’s injurious conduct can establish commonality
“even if the amount of damages differs for each injured
class member.” Prause, 2020 WL 3549686 at *3, citing In re
Deepwater Horizon, 739 F3d 790, 810 (5th Cir 2014).
Whether Defendants made false and misleading
statements, what effect those statements had on the
Anadarko stock price, what damages (if any) were
sustained by class members—these and others are all
common questions capable of classwide resolution within
the meaning of Dukes. Common evidence will likewise
answer these common legal questions. For example, see
Rooney v EZCORP, Inc, 330 FRD 439, 445 (WD Tex 2019)
(finding commonality satisfied in securities litigation
where multiple questions common to class existed).
As to typicality, a plaintiff must show that “the claims
or defenses of the representative parties are typical of the
claims or defenses of the class.” FRCP 23(a)(3). This
inquiry “focuses on the similarity between the named
plaintiffs’ legal and remedial theories and the theories of
those whom they purport to represent.” Mullen v Treasure
Chest Casino, LLC, 186 F3d 620, 625 (5th Cir 1999)
(quotation marks and citation omitted). A plaintiff can
satisfy typicality “by showing that class representatives’
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claims arise from a similar course of conduct and share the
same legal theory.” In re Cobalt International Energy, Inc
Securities Litigation, 2017 WL 2608243, *2 (SD Tex).
Plaintiff purchased Anadarko stock during the class
period. Its allegations of fraudulent conduct and its
damages theories are shared by the entire class. See
Dkts 26-2, 26-3, 55 & 86-2.
As to adequacy of representation, a plaintiff must show
that “the representative parties will fairly and adequately
protect the interests of the class.” FRCP 23(a)(4). Adequacy
explores “the zeal and competence” of lead counsel, the
“willingness and ability” of the class representative to
“take an active role in and control the litigation and to
protect the interests of absentees,” and the “risk of conflicts
of interest between the named plaintiffs and the class they
seek to represent.” Slade v Progressive Securities Insurance
Co, 856 F3d 408, 412 (5th Cir 2017) (cleaned up).
Here, lead counsel Robbins Geller has served as lead
counsel in multiple securities class actions. It has
demonstrated a prior willingness to take securities fraud
actions to trial, and it has here been active in this
litigation. See Dkt 86-4 (firm resume), listing matters
including In re Enron Corp Securities, Derivative & ERISA
Litigation, 586 F Supp 2d 732 (SD Tex 2008). Plaintiff is
similarly well situated for class representation, being a
large and sophisticated investor. Dkt 86-2 at 3. Large
institutional investors are the preferred named plaintiffs
in securities fraud litigation because they generally have
the same interests as the plaintiff class. See In re BP, PLC
Securities Litigation, 758 F Supp 2d 428, 439 (SD Tex
2010). The interests of the group are also aligned with
other class members, as all seek to maximize recovery
stemming from the alleged misconduct by Anadarko and
its executives. See Dkt 86-2. And the group has
demonstrated “a sufficient level of knowledge and
understanding” in this litigation to date. Prause, 2020 WL
3549686, at *4, quoting Ibe, 836 F3d at 529.
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b. Rule 23(b)(3) predominance
Certification under Rule 23(b)(3) requires a finding
that “the questions of law or fact common to class members
predominate over any questions affecting only individual
members.” This is known as the predominance
requirement.
The same analytical principles that govern Rule 23(a)
pertain, but “Rule 23(b)(3)’s predominance criterion is even
more demanding.” Comcast Corp, 569 US at 34. A court
must identify “the substantive issues that will control the
outcome” of the case and assess “which issues will
predominate.” Madison, 637 F3d at 555 (quotation marks
and citation omitted). It must therefore consider “how a
trial on the merits would be conducted if a class were
certified.” Ibid (quotation marks and citation omitted). The
inquiry “tests whether proposed classes are sufficiently
cohesive to warrant adjudication by representation.”
Torres v SGE Management, LLC, 838 F3d 629, 636 (5th Cir
2016, en banc) (quotation marks and citation omitted). But
of note, this showing doesn’t require that the court find
that the common questions “will be answered, on the
merits, in favor of the class.” Amgen Inc v Connecticut
Retirement Plans & Trust Funds, 568 US 455, 459 (2013).
Defendants forward two contentions. First, that
Plaintiff fails to establish a critical requirement in
securities class actions prosecuted under Rule 23(b)(3)—
that being reliance on the alleged misstatements. Dkt 93
at 5. Second, that the posited damages theory is too vague
to adequately connect to the liability theory. Id at 7, 26.
Neither ultimately has merit.
i. Showing as to reliance
“In securities law cases, predominance often hinges
upon whether or not class members will need to
individually demonstrate they relied upon a
misrepresentation or omission made by the defendant.”
Rooney, 330 FRD at 448, citing Amgen, 568 US at 461.
Plaintiff proposes to satisfy reliance by pointing to the
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Affiliated Ute and Basic presumptions. Dkt 86 at 18. While
the former isn’t applicable, the latter quite clearly is.
To invoke the Affiliated Ute presumption, a plaintiff
must “allege a case primarily based on omissions or
nondisclosure” and “demonstrate that the defendant owed
him a duty of disclosure.” In re Enron Corp Securities,
Derivative & ERISA Litigation, 610 F Supp 2d 600, 610
(SD Tex), quoting Regents of University of California v
Credit Suisse First Boston, Inc, 482 F3d 372, 384 (5th Cir
2007). A defendant omits information when it says
“absolutely nothing about matters whose very existence
plaintiffs have no reason to consider.” In re Enron, 610
F Supp 2d at 630 n 33.
This action is primarily based upon certain affirmative
representations by Defendants regarding Shen upon which
Plaintiff and other putative class members purport to have
relied. By contrast, the alleged omissions are those that
putatively would have served primarily to clarify those
representations. In other words, the subject statements are
said to be misleading in part because of the omissions. And
the Fifth Circuit holds that the Affiliated Ute presumption
does not apply to such “true statements that are
nonetheless so incomplete as to be misleading.” In re
Enron, 610 F Supp 2d at 631 n 33. As a result, the Affiliated
Ute presumption isn’t applicable.
The Basic presumption holds that “a public, material
misrepresentation will distort the price of stock traded in
an efficient market.” Halliburton II, 573 US at 283–84; see
also Basic Inc v Levinson, 485 US 224, 241–42, 247 (1988).
An investor thus relies on the misrepresentation “so long
as it was reflected in the market price at the time of his
transaction.” Goldman Sachs, 594 US at 118 (cleaned up).
As the Supreme Court summarized, “The presumption
allows class-action plaintiffs to prove reliance through
evidence common to the class,” which “in turn makes it
easier for plaintiffs to establish the predominance
requirement” of Rule 23(b)(3). Id at 119.
To invoke this presumption, a plaintiff must prove that
(i) “the alleged misrepresentation was publicly known,”
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(ii) “it was material,” (iii) “the stock traded in an efficient
market,” and (iv) “the plaintiff traded the stock between
the time the misrepresentation was made and when the
truth was revealed.” Id at 118. Defendants can then rebut
the presumption by demonstrating that the misstatements
did not affect the market price of the stock—a point upon
which they bear the burden of persuasion. Id at 118, 124.
“The district court’s task 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.” Id at 126–27.
Defendants made the alleged misstatements in public
SEC filings, and the misstatements concerned a significant
asset. See Dkt 55 at ¶¶94–141. The statements were thus
both public and material. Additionally, Anadarko stock
was traded on the New York Stock Exchange, which is an
indicia of market efficiency. See Strougo v Barclays PLC,
312 FRD 307, 318 (SDNY 2016). And Anadarko stock
meets three further indicia of market efficiency—large
market capitalization, narrow bid-ask spread, and large
stock float. See Dkt 86-1 at 26–29; Krogman v Sterritt,
202 FRD 467, 478 (ND Tex 2001).
Dispute by Defendants as to the Basic presumption is
twofold. First, they appear to argue that Plaintiff fails to
invoke the Basic presumption in the first instance because
it doesn’t establish efficiency in the after-market. Dkt 237
at 9–10. Second, they maintain they can rebut the Basic
presumption. Dkt 93 at 13–21; see also Dkt 237 at 4–9.
As to after-market efficiency, Defendants maintain in
their surreply that Steinholt’s report is unreliable because
he failed to establish market efficiency for aftermarket
trading in Anadarko stock on May 2nd. Dkt 237 at 9–10.
Defendants rely on differences between after-hours and
normal trading hours such as “fewer participants, thinner
volume, wider bid-ask spreads, and higher volatility after-
hours.” Ibid. This is unpersuasive, however, because it fails
to account for the finding by Steinholt as to when the price
change was statistically significant. He unambiguously
concludes it was the “May 3, 2017 residual decline in
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Anadarko’s stock price [that] was statistically significant.”
Dkt 86-1 at 26. And the prices he compares are the closing
prices on May 2nd and May 3rd. Ibid.
Given how the stock market and stock prices adjust
during normal trading hours, the May 3rd closing price
would necessarily reflect after-hours trades. The argument
thus doesn’t undermine Steinholt’s findings.
As to rebutting the Basic presumption, the arguments
proceed in four parts.
First, Defendants note that ConocoPhillips—the
development partner of Anadarko—disclosed similar
information about Shen before markets opened on May 2,
2017. And the stock price of neither ConocoPhillips nor
Anadarko dropped during that trading day. Dkt 93 at 14–
15. But the disclosure by ConocoPhillips on May 2nd was
quite limited, being a single sentence noting, “First-quarter
earnings were negatively impacted by $101 million of pre-
tax dry hole expense, which includes the Shenandoah-6
well in the Gulf of Mexico.” Dkt 96-1 at 15. ConocoPhillips
didn’t disclose the suspension of Shen appraisal activity, it
didn’t write down Shen, and it didn’t disclose Shen
sidetrack well results. Id at 15–18. The point is thus
unpersuasive.
Second, Defendants observe that ConocoPhillips’ stock
didn’t drop after the Shen disclosures by Anadarko, despite
ConocoPhillips’ $101 million stake in the project. Dkt 93
at 10, 15–16. But ConocoPhillips isn’t a proper comparator,
given that the Shen project was a minor expenditure
relative to its massive market cap. What’s more, its $101
million stake paled in comparison to the $902 million stake
held by Anadarko. Dkt 96-1 at 15–16. And notably, other
Shen development partners with high Shen-stake-to-
market-cap ratios suffered major price drops on May 3rd.
Id at 22–24.
Third, Defendants highlight a potential $140 million in
new regulatory costs as a result of the Firestone news.
Dkt 93 at 16–18. In their surreply, Defendants claim that
investors were apprised of Anadarko’s liability as early as
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4:03 PM, when a tweet mentioning a news conference
featuring Colorado officials first was published. Dkt 237
at 10. This means, Defendants say, that public information
regarding the company’s Firestone liability preceded the
4:16 PM Shen disclosure. Ibid. The parties dispute whether
investors could discern from these tweets that Anadarko
was indeed liable for the Firestone incident or if investors
even were aware of these tweets. Regardless, what is clear
is that Anadarko’s stock price dropped 4.1% during after-
hours trading between the time Anadarko made its Shen
disclosures at 4:16 PM and the time the Firestone news
broke in a report by the Denver Post at 4:51 PM. See
Dkt 96-1 at 27. There was no price decline between 4:03 PM
and 4:15 PM, but there was 2.3% price decline in the two
minutes between 4:16 PM and 4:18 PM. Dkt 118-1 at 12–13
(Steinholt report in opposition to Defendants’ motion to
exclude). And the Steinholt event study concluded that the
price drop on May 3rd remained statistically significant
even when controlling for the Firestone news. Dkt 96-1
at 30–32.
Fourth, Defendants contend that the Shen write-off is
representative of “sunk costs” which would not impact
stock price as a matter of basic finance, whereas expected
future value of the project does impact stock price. Dkt 237
at 11–12. But this argument itself only attacks Plaintiff’s
contention. It doesn’t carry Defendants’ burden of showing
that the alleged misstatements had no bearing on
Anadarko’s market price.
The Supreme Court admonishes, “In assessing price
impact at class certification, courts should be open to all
probative evidence on that question—qualitative as well as
quantitative—aided by a good dose of common sense.”
Goldman Sachs, 594 US at 122 (quotation marks omitted).
Common sense suggests here that, when news broke on the
same day of both an actual $900 million write-off and a
potential $140 million in new regulatory costs, an eight
percent decline in the company’s stock price the following
day isn’t solely attributable to the latter, lesser regulatory
costs. Cf In re Signet Jewelers Limited Securities
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Litigation, 2019 WL 3001084, *17 (SDNY) (stating that
“common sense” appeared contrary to certain opinions
offered by Ferrell).
Plaintiff has adequately invoked the Basic presump-
tion. And in response, Defendants have failed to meet their
burden of showing lack of price impact. All Defendants
establish is that there is a possible alternative reason for
stock price changes, which is more properly considered at
the merits stage than class certification. Plaintiff has thus
established reliance sufficient to satisfy the predominance
requirement of Rule 23(b)(3).
ii. Showing as to damages
Plaintiff bears the burden of demonstrating that
damages may be measured using a common methodology
that’s consistent with the theory of liability. Comcast Corp,
569 US at 35. But damages at the class-certification stage
needn’t be exact. Ludlow, 800 F3d at 683; see also Story
Parchment Co v Paterson Parchment Paper Co, 282 US 555,
563 (1931). Nor must plaintiff prove loss causation as a
condition of obtaining class certification. Ludlow, 800 F3d
at 687, citing Erica P. John Fund Inc v Halliburton Co
(Halliburton I), 563 US 804, 813 (2011).
Steinholt in his expert report presents a stock price
inflation theory (also known as the out-of-pocket measure).
See Dkt 86-1 at 29–31. “That is, the theory alleges that the
stock price was higher than it would have been, and the
damage is the difference between the ‘true’ price and the
‘paid’ price.” Ludlow, 800 F3d at 689.
Here, the underlying theory is that the alleged
misrepresentations inflated the Anadarko stock price.
Steinholt proposes calculating the “true” price—the price
the stock would have been absent the alleged
misrepresentations—by conducting an event study
supplemented by fundamental valuation tools that help
control for other influencing factors. The individual
damages of each class member can then be calculated
based on the difference between the price they paid and the
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“true” price at the time of their respective purchases and
sales. See Dkt 86-1 at 29–31.
Defendants contend that this theory is “so vague and
imprecise that it is impossible to assess whether Plaintiff
has presented a damages methodology consistent with
their theory of liability.” Dkt 93 at 26. But the Fifth Circuit
approved a nearly identical theory of damages in Ludlow,
noting that the damages theory remained “tied to a theory
of liability common to all” putative class members. See
800 F3d at 687. The same is true here. See Dkt 96 at 12.
Plaintiff contends that Defendants are liable to all putative
class members for misstatements regarding the viability of
Shen. And the loss forming the basis for its damages model
“comes from the inflated stock price caused by those
misstatements.” See Ludlow, 800 F3d at 687.
Defendants also attempt to brand the damages theory
proposed by Plaintiff as a materialization of the risk model.
Dkt 93 at 27. Under such a theory, “investors are harmed
by [ ] corrective events that represent materializations of
the risk that was improperly disclosed.” Ludlow, 800 F3d
at 689 (quotation marks and citation omitted, omission in
original). The Fifth Circuit has explained that such a model
is insufficient because it can’t “be applied uniformly across
the class, as Comcast requires, because it lumps together
those who would have bought the stock at the heightened
risk with those who would not have. It also presumes
substantial reliance on factors other than price, a theory
not supported by Basic and the rationale for fraud-on-the-
market theory.” Id at 691.
But such problems aren’t present here. See Dkt 96
at 12–13. Plaintiff doesn’t assert that Defendants under-
represented an unrealized risk. It instead asserts that
certain risks had in fact materialized, yet Defendants
actively misled investors to the contrary. For example, see
Dkt 55 at ¶¶6, 98, 116; see also Dkt 63 at 15 (order denying
motion to dismiss). These misrepresentations (they say)
artificially inflated the Anadarko stock price, and it is that
artificial inflation that was subsequently removed via a
corrective disclosure. The theory thus bears the “hallmarks
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of the fraud on the market theory of liability.” Rougier v
Applied Optoelectronics, Inc, 2019 WL 6111303, *17
(SD Tex). And it stands in stark contrast to the theory
rejected in Ludlow, where individual investors relied on
their own risk assessment as opposed to the integrity of the
market price. In re BP PLC Securities Litigation, 2014 WL
2112823, *11 (SD Tex), affirmed by Ludlow, 800 F3d
at 691.
In sum, the intended damages model measures “only
the difference between the price paid and the true value of
the security at the time of the initial purchase by the
defrauded buyer” without the need to inquire into other
factors such as individual risk tolerance. Ludlow, 800 F3d
at 682, 691 (cleaned up). Plaintiff has thus satisfied its
burden under Comcast to demonstrate that its
methodology is “sound” and produces a “commonality of
damages.” Comcast Corp, 569 US at 37.
c. Rule 23(b)(3) superiority
Certification under Rule 23(b)(3) also requires a
finding that “a class action is superior to other available
methods for fairly and efficiently adjudicating the
controversy.” This is known as the superiority requirement.
The inquiry is fact specific on factors of (i) “the
interests of members of the class in individually controlling
the prosecution or defense of separate actions,” (ii) “the
extent and nature of any litigation concerning the
controversy already begun by or against class members,”
(iii) “the desirability or undesirability of concentrating the
litigation of the claims in the particular forum”, and
(iv) “the likely difficulties encountered in managing a class
action.” Ibe, 836 F3d at 529–30, citing Amchem Products,
Inc v Windsor, 521 US 591, 615–16. Courts have routinely
found that plaintiffs in securities litigation meet the
superiority requirement. For example, see In re BP PLC
Securities Litigation, 2013 WL 6388408, *18 (SD Tex);
Prause, 2020 WL 3549686 at *7; Rooney, 330 FRD at 451.
Superiority is easily met here. First, as is often the case
in securities litigation, “[t]he costs and expenses of
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individual litigation would prove prohibitive for potential
class members, who would have little incentive to litigate
their claims outside the context of a class action.” Prause,
2020 WL 3549686 at *7. Second, there’s no other pending
litigation concerning the alleged misconduct of Anadarko
and its officials. Dkt 86 at 26. Third, concentrating this
litigation will promote judicial efficiency, economy, and
uniformity by avoiding “the time and expense of requiring
all class members to litigate individually.” Rougier,
2019 WL 6111303 at *19, quoting In re BP PLC Securities
Litigation, 2013 WL 6388408 at *18. Fourth, the potential
for individualized issues has been adequately addressed
above, with no further manageability issues either noted
by the parties or readily ascertainable.
The superiority requirement of Rule 23(b)(3) is met.
4. Conclusion
The motion by Defendants to exclude the expert
rebuttal report of Bjorn I. Steinholt is DENIED. Dkt 111.
The motion by Plaintiff to exclude certain testimony of
Dr. Allen Ferrell is DENIED. Dkt 248.
The motion by Plaintiff for class certification is
GRANTED. Dkt 86.
The following class is CERTIFIED pursuant to Rule 23 of
the Federal Rules of Civil Procedure:
All persons and entities that purchased or
acquired the common stock of Anadarko
Petroleum Corporation between February
20, 2015, and May 2, 2017, inclusive, and
were damaged thereby. Excluded from the
Class are Defendants and their families,
legal representatives, heirs, successors, or
assigns; officers, directors, subsidiaries,
and affiliates of Anadarko during the Class
Period; any entity in which Defendants
have a controlling interest; and any judicial
officer to which this litigation is assigned.
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SO ORDERED.
Signed on March 10, 2026, at Houston, Texas.
__________________________
Honorable Charles Eskridge
United States District Judge
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