Tag Archives: Extraterritoriality

Class Action Raising Predominantly Non-U.S. Law Claims Dismissed on the Basis of Comity

Toyota Motor Corp. Securities Litigation, cv 10-922 DSF (AJWx) (C.D. Cal. July 2011), addressed claims asserted both under the Private Securities Litigation Reform Act and under Japanese law arising out of Toyota’s recall of Toyota and Lexus brand cars, which cost roughly $4 billion and caused stock value loss of 11%.   The Distirct Court addressed … Continue Reading

D.C. Circuit Holds that the Alien Tort Statute Applies to Corporations, Confirming Circuit Split with Second Circuit’s Kiobel Decision

John Doe VIII, et al. v. Exxon Mobil Corp., et al., No. 09-7125 (consolidated) (D.C. Cir. July 2011),  is a 112 page 2-1 majority decision analyzing the scope of claims under the Alien Tort Statute, 28 U.S.C. sec. 1350.  The decision confirms the Circuit split over whether the ATS applies to corporations, siding with the … Continue Reading

U.S. Supreme Court Reaffirms Basic Personal Jurisdiction Principles; Finds No Specific or General Jurisdiction Over Non-U.S. Affiliates of Goodyear

Last year’s end-of-Term Supreme Court international practice case, Morrison v. National Australia Bank, No. 08-1191 (S. Ct. June 2010),  has ushered in a year’s worth of jurisdiction shifting cases attempting to be faithful to the Supreme Court’s dictate that Section 10(b) of the Securities Exchange Act of 1934 did not provide a private cause of … Continue Reading

SEC v. Torre — German Discovery Rejected; Many Claims Dismissed Under Morrison

We have previously posted on the Magistrate Judge’s rejection of Fabrice Tourre’s discovery requests concerning Germany in SEC v. Goldman Sachs & Co. and Fabrice Tourre, 10 Civ. 3229 (S.D.N.Y.).  In a short order, the District Court has now affirmed the Magistrate Judge’s Report and Recommendation. At the same time, the District Court, on June … Continue Reading

First Circuit Dissent Explores the Constitutional Infirmity of the Extraterritorial Application of U.S. Drug Trafficking Law

U.S. v. Jose Del Carmen Cardales-Luna, No. 08-1028 (1st Cir. Jan. 2011), involves the First Circuit’s review, and affirmance, of a drug trafficking conviction by a jury in the District of Puerto Rico of a Columbian crew member of a Bolivian flag vessel boarded by the U.S. Coast Guard in international waters.  The majority opinion … Continue Reading

Morrison Strikes Again — District Court in D.C. Modifies International, Industry-wide Tobacco Judgment Only As Against BATCo

We have posted many times on last year’s U.S. Supreme Court’s decision in Morrison v. National Australia Bank (No. 08-1191), which held that Section 10(b) of the Securities Exchange Act of 1934 did not provide a private cause of action in “foreign-cubed” cases—cases where foreign plaintiffs sue foreign defendants for misconduct in connection with securities traded … Continue Reading

Ninth Circuit Find Personal Jurisdiction Over DamilerChrysler AG under the ATS; Upholds “Agency” Rather than Alter-Ego Jurisdiction

Bauman, et al. v. DaimlerChrysler, et al., No. 07-15386 (9th Cir. 18 May 2011), involves claims by 22 Argentinian residents against DaimlerChrysler Aktiengesellschaft (DCAG) and its Argentinian subsidiary alleging that Mercedes Benz (owned by DaimlerChrysler) collaborated with Argentine state security forces to kidnap, detain, torture, and kill plaintiffs and/or their family members during Argentina’s “Dirty … Continue Reading

Southern District of New York Courts Are Not Alone in Dismissing Securities Fraud Claims Under Morrison

Recall (how can one forget!) that the Supreme Court’s decision in Morrison v. National Australia Bank (No. 08-1191), held that Section 10(b) of the Securities Exchange Act of 1934 did not provide a private cause of action in “foreign-cubed” cases—cases where foreign plaintiffs sue foreign defendants for misconduct in connection with securities traded on foreign … Continue Reading

Morrison and International Practice in Financial Services and Products: Scorecard Nine Months In

It’s time to take quick stock of Morrison v. National Australia Bank (No. 08-1191).  It will be recalled that in that case the Supreme Court held that Section 10(b) of the Securities Exchange Act of 1934 did not provide a private cause of action in “foreign-cubed” cases—cases where foreign plaintiffs sue foreign defendants for misconduct … Continue Reading

In International Litigation, A Closed U.S. Court House May Just Mean U.S. Claimants Suing U.S. Entities in Non-U.S. Courts

We have written elsewhere (European Lawyer (2008) and Journal of International Banking and Financial Law (2010)),  about the promise and potential of collective action claims in non-U.S. jurisdictions, especially in the EU.  We have also questioned whether one consequence of the U.S. Supreme Court’s decisions concerning whether to permit international controversies to proceed in U.S. courts is that, … Continue Reading

District Court Extends Morrison Again, Dismissing Not-So-“Foreign-Cubed” Claims — ’33 Act Claims by U.S. Plaintiffs

Twice recently (here and here) we posted summaries of decisions extending the Supreme Court’s decision in Morrison v. National Australia Bank (No. 08-1191)(24 June 2010), holding that Section 10(b) of the Securities Exchange Act of 1934 did not provide a private cause of action in “foreign-cubed” cases—cases where “foreign” plaintiffs sue “foreign” defendants for misconduct in connection … Continue Reading

With Implications for International Litigation, Ninth Circuit’s Distinction Between U.S. and Non-U.S. Sales of Goods Left Standing by Supreme Court’s Affirmance by Equally Divided Court

The Supreme Court’s decision in Quality King Distributors, Inc. v. L’anza Research International, Inc., 523 U.S. 135 (1998), involved a “round trip” scheme of importation of goods into the U.S.:  a product with a U.S.-copyrighted label was manufactured inside the United States, exported to an authorized foreign distributor, sold to unidentified third parties overseas, shipped … Continue Reading

Morrison Extended Yet Further — To Dismiss U.S. PIPE Transactions Involving U.S. Corporations and Nationals

Our posting of 10 January 2011 discussed a case where a District Court in the Second Circuit relied on Morrison to dismiss a U.S.-based swap transaction keyed to a non-U.S. security.  What about Morrison’s applicability to an alleged  “pump and dump” scheme (first touting the stock of a company through false and misleading statements and then … Continue Reading

Supreme Court Morrison Decision Expanded To Dismiss Claims Where U.S. Swap Agreement Is Pegged to Non-U.S. Stock

In the area of international litigation, the District Court decision in Elliott Associates, et al. v. Porsche Automobil Holding SE, et al., 10 Civ. 0532 (HB) (S.D.N.Y. 30 Dec. 2010), represents a noteworthy extension of the holding of Morrison v. Australia National Bank, 130 S.Ct. 2869 (2010), which we have written about here and here.  … Continue Reading

Court of Appeals Sends International Litigation to Mediation Without First Determining Its Own Jurisdiction; Dissent Feels Morrison May Have Overruled Extraterritorial Application of the Alien Tort Statute

In Sarei v. Rio Tinto, No. 09-56381 (9th Cir. 10/26/10), the Ninth Circuit, en banc (meaning the full court of appeals (12 judges) rather than the typical panel of three judges), addressed for at least the third time claims arising out of events on the island of Bougainville in Papua New Guinea.  Plaintiffs, non-U.S. residents, … Continue Reading

Second Circuit, Which Created the “Conduct and Effects” Test To Detemine Extraterritoriality, Applies Morrison To Preclude Extraterritorial Application of RICO Claim in International Litigation Context

Prior posts of this blog, like others, has recorded the significant decisions applying the Supreme Court’s holding in Morrison v. National Australia Bank, No. 08-1191 (U.S. 6/24/10), that Section 10(b) of the Securities Exchange Act of 1934 did not provide a private cause of action in “foreign-cubed” cases—cases where foreign plaintiffs sue foreign defendants for … Continue Reading

Extraterritorial Application of Federal Act Both Congressionally Justified and Constitutional in the Case of the Torture Act (Eleventh Circuit) But Not in the Case of the Lanham Act, on the Facts (Ninth Circuit)

Prior posts discussed Morrison v. National Australia Bank (No. 08-1191), where the Court held that the federal securities laws did not apply to extraterritorial conduct in a so-called foreign cubed case (foreign plaintiffs sue foreign defendants for misconduct in connection with securities traded on foreign exchanges).  Notwithstanding the press generated by and the extensive judicial treatment of that … Continue Reading

Supreme Court’s Morrison’s Decision Spreading Extraterritoriality Concerns Beyond U.S. Securities Laws Into RICO – and Beyond?

An interesting collateral consequence of the U.S. Supreme Court’s decision in Morrison (discussed in our postings of 7/16/10 and 7/19/10) has just come to the fore.  Morrison held that the long-used “effects” test (to determine if federal jurisdiction was proper in international litigation) was not the proper one to employ to determine whether, in that case, … Continue Reading

RICO Held Not To Apply Extraterritorially, Following Morrison

In the first decision that we have seen (see our post of 7/16/10) since the U.S. Supreme Court’s decision in Morrison v. National Australia Bank (No. 08-1191) held that Section 10(b) of the Securities Exchange Act of 1934 did not provide a private cause of action in “foreign-cubed” cases—cases where foreign plaintiffs sue foreign defendants for misconduct … Continue Reading

Congressional Legislation to Overturn Morrison v. National Australia Bank

The passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act (H.R. 7143) (the “Act”) limits the Supreme Court’s decision in Morrison v. National Australian Bank Ltd., No. 08-1191 (June 24, 2010), to private rights of action.  The Act leaves open the possibility that Morrison will be completely overturned by legislation following a mandatory … Continue Reading

Morrison v. National Australia Bank Redux: The potentially even greater impact to international practice of the “other” holding of Morrison: the judicial power to hear a case vs. whether the statute applies to the challenged conduct.

The substantial amount of press and commentary generated by the second holding of the U.S. Supreme Court’s decision in Morrison v. National Australia Bank, discussed in our post of 7/16/10, has overshadowed the potential importance of the first holding of that decision, which has attracted little attention.  In fact, we have only one commentator on … Continue Reading

The US Supreme Court’s “foreign-cubed” ruling in Morrison v. Nat’l Australia Bank: Much ado about how much?

In the last “international litigation” case of the Term, the U.S. Supreme Court’s decision in Morrison v. National Australia Bank (No. 08-1191) held that Section 10(b) of the Securities Exchange Act of 1934 did not provide a private cause of action in “foreign-cubed” cases—cases where foreign plaintiffs sue foreign defendants for misconduct in connection with … Continue Reading
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