NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

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No. 18-2474

_____________ GREGORY VIZIRGIANAKIS; PHONG THOMAS DINH; JAMSHID KHODAVANDI

v. AETERNA ZENTARIS, INC.; JUERGE N ENGEL; DAVID A. DODD; PAUL BLAKE; NICHOLAS J. PELLICCIONE Appellants

____________ On Appeal from the United States District Court for the District of New Jersey (No. 3:14-cv-07081) District Judge: Hon. Peter G. Sheridan Submitted under Third Ci rcuit L.A.R. 34.1(a) April 2, 2019 Before: CHAGARES, HARDIMAN, and SILER, JR., * Circuit Judges (Filed: May 30, 2019)

____________ OPINION 

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* The Honorable Eugene E. Siler, Jr., Unite d States Circuit Judge for the Court of Appeals for the Sixth Circu it, sitting by designation.

 This disposition is not an opinion of th e full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.2 SILER, Circuit Judge. Pursuant to Federal Rule of Civil Pr ocedure 23(f), defendants Aeterna Zentaris, Inc., and its named former employees, 1 appeal the district court’s order granting class certification in this securities action. We w ill affirm the decision of the district court.
I. We write for the parties and relate onl y the necessary facts. In 2009, the biopharmaceutical company Aeterna acquire d the rights to AEZS-130, a drug in development it sought to have approved for commercialization by the Food and Drug Administration (“FDA”). To this end, Aetern a agreed to continue an ongoing study of the drug according to the te rms of a Special Protocol A ssessment (“SPA”), an agreement between Aeterna and the FDA regarding how th e study should be completed to show the drug’s safety and efficacy. According to the complain t, Aeterna issued numerous press releases and other statements indicating that the study showed the drug was effe ctive in accordance with the protocol agreed to by the FDA in the SPA. Based on the strength of the “successful” study, Aeterna sold nearly $75 million of its common stock to the investing public. In reality, says the complaint, AEZS- 130 failed to show efficacy. And in November 2014, the FDA denied Aeterna’s a pplication to market AEZS-130 publicly,

1 These former employees are: David A. Dodd, Juergen Engel, Ni cholas J. Pelliccione, and Paul Blake.3 because the planned analysis of Aeterna’s “pi votal trial did not meet its stated primary efficacy objective as agreed to in the Special Protocol Assessment agreement letter between [Aeterna] and the FDA.” The current action was filed by Aeterna shareholders. The class action complaint alleges Aeterna violated Section 10(b) of the Exchange Act and Rule 10b-5 by carrying out a plan to deceive the investing public and cause class members to purchase Aeterna stock at artificially inflated prices. It further alleges that several former Aeterna employees are liable under Section 20(a) of the Exchange Act by virtue of their influence and control over the false and misleading stat ements by Aeterna. The district court granted plaintiffs’ motion for class certification under Federa l Rule of Civil Procedure 23(b)(3). Pursuant to Rule 23 (f), Aeterna timely appealed.
II. 2
“We review a class certification order for abuse of discretion.” Neale v. Volvo Cars of North America, LLC , 794 F.3d 353, 358 (3 d Cir. 2015) (quoting Grandalski v. Quest Diagnostics Inc. , 767 F.3d 175, 179 (3d Cir. 2014)). We bear in mind “[t]he trial court, well-positioned to decide which facts and legal arguments are most important to each Rule 23 requirement, possesses broad di scretion to control proceedings and frame issues for consideration under Rule 23.” In re Hydrogen Peroxide Antitrust Litigation , 552 F.3d 305, 310 (3d Ci r. 2008) (citation omitted).

2 The district court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1292(e) and Rule 23(f).4 III. In a § 10(b) private action, a plainti ff must prove reliance upon the alleged misrepresentation or omission. Stoneridge Inv. Partners, LLC v. Scientific-Atlanta , 552 U.S. 148, 157 (2008) (citing Dura Pharmaceuticals, Inc. v. Broudo , 544 U.S. 336, 341- 42 (2005)). The district court found that pl aintiffs could procee d under a fraud-on-themarket theory of reliance. Th is theory “accords plaintiffs in Rule 10b-5 class actions a rebuttable presumption of relia nce if plaintiffs bought or sold their secu rities in an efficient market.” In re Burlington Coat Fa ctory Securities Litigation , 114 F.3d 1410, 1419 n.8 (3d Cir. 1997) (int ernal quotation omitted). Here, plaintiffs provided an expert repor t completed by Dr. Adam Werner to prove market efficiency; the report relied on four dates on which information related to the development of AEZS-130 was disseminated to conclude that Aeterna stock reflected publicly available information. On appeal, Ae terna does not contest that plaintiffs raised the presumption of an efficient market, and th erefore class-wide reliance. It argues the district court erred in finding that it had not rebutted the presumption. Aeterna’s hired expert, Dr. David Taba k, responded to the declaration of plaintiffs’ expert, pointing out that Dr. We rner had not proven—to a 95% confidence level—that the alleged misrepresentations ma de on August 30, 2011 impacted the price of Aeterna’s common stock. The district cour t found this evidence insufficient to rebut the presumption. It aptly noted that plai ntiffs do not have the burden to prove price impact (or lack thereo f), so it was not surprising that th eir expert’s report did no such thing. And even were plaintiffs’ study a ttempting to demonstrat e a price impact, the5 district court reasoned that its failure to do so is not necessarily proof of the opposite. This conclusion is consistent with the opini on of Dr. Werner and ot her district courts weighing similar event studies, in cluding two in this circuit. See West Palm Beach Police Pension Fund v. DFC Global Corp. , No. 13-6731, 2016 WL 4 138613, *14 (E.D. Pa. Aug. 4, 2016) (“[I]t does not necessarily foll ow from the mere absence of a statistically significant change in the stock price that there was no price impact” (internal quotation omitted)); City of Sterling Heights Gen. Empl. Ret. Syst. v. Prudential Finan., Inc. , No. 12-5275, 2015 WL 50 97883, *12 (D.N.J. Aug. 31, 2015) (failure of statistical significance on one of six alleged misstatement dates did not show a lack of price impact sufficient to rebut presumption of reliance). Further, Dr. Werner found abnormal stock return to a 95% conf idence level for the other three events in his study, one of whic h was Aeterna’s June 26, 2012 representation regarding AEZS-130. Dr. Tabak’ s contention that plaintiffs’ legal theory precludes them from relying on the 2012 representation is a legal conclusion, which the district court could reject. See Berckeley Inv. Grp. Ltd. v. Colkitt , 455 F.3d 195, 217 (3d Cir. 2006) (explaining that “an expert witness is prohi bited from rendering a legal opinion”). Dr. Tabak’s contention that the 20 12 representation did not provid e any new, market-relevant information conflicts with Dr. Werner’s opposite conclusion. Weighing conflicting expert testimony is a normal task of the di strict court at the certification stage and Aeterna has not shown the district court abused its discretion weighing it here. See In re DVI, Inc. Sec. Lit. , 639 F.3d 623, 633 (3d Cir. 2011), abrogated on other grounds by Amgen Inc. v. Conn. Ret. Plans & Trust Funds , 568 U.S. 455 (2013).6 Finally, Aeterna misreads the district c ourt opinion when it contends the district court required it to rebut the presumption by proving “with scientific certainty” that the alleged misrepresentation caused no price movement, a burden it deems “impossible” and unknown to science and law. Given that the bulk of the reliance challenge centered on statistical analysis, and a certain ty level agreed to by both par ties, it is hollow indeed that Aeterna would read the opinion and believe it divorced from this context.
IV. In sum, the district court considered th e expert report tendered by Aeterna. In light of plaintiffs’ expert and caselaw c oncluding otherwise, it rejected Dr. Tabak’s conclusion that lack of price impact was prov en by Dr. Werner’s fa ilure to prove price impact in his report on market efficiency. The district court also credited Dr. Werner’s conclusion that the 2012 statem ent conveyed new, valuation-re levant information, despite Dr. Tabak’s concluding the opposite. Wei ghing conflicting expert testimony and making factual findings are normal functions of the district court at this stage. DVI , 639 F.3d at 633. Aeterna has not shown that either decision was an abuse of discretion. We will affirm.