Is there any case law where the class was certified to include “in-and-out” investors?

A similar issue arose in McCann v. CP Ships Limited et al., an unreported certification decision of Rady J. of this Court (Action #46098CP, June 3, 2009). In that case, the plaintiff claimed for alleged misrepresentations in the company’s financial statements, which allegedly resulted in the overstatement of the company’s income. It was alleged that this caused the company’s securities to trade at artificially inflated prices during the period, so that people who bought shares during this period suffered a loss when the share price fell after the company restated its financial statements. The proposed class was defined as all persons who acquired the company’s securities during the class period. It was argued by the defendants that the proposed class definition was over-inclusive because it included persons described as “in-and-outs” – those who had bought and sold securities during the class period, prior to the restatement of the financials, with the result that they both purchased and sold at inflated prices. It appears that the class was certified to include the “in-and-outs,” although the issue was not discussed.