Catching Up With Morrison

The Morrison decision limiting the extraterritorial application of the U.S. securities laws continues to be the subject of extensive judicial, practicioner, and academic commentary. Recent items include:

(1) Professor Hannah Buxbaum has published a paper entitled “Remedies for Foreign Investors Under U.S. Federal Securities Law,” in which she discusses Morrison‘s transaction-based test and explores the possibility of foreign investors suing under U.S. law or participating in the SEC’s Fair Funds program.

(2) The American Lawyer describes Morrison as “The Global Securities Case of the Decade (So Far)” (Jan. 20 – subscrip. req’d). The article summarizes the widespread impact of Morrison to date and notes that seven Morrison-related cases are currently on appeal in the Second Circuit alone.

(3) NERA has issued a report, in response to an SEC comment request, on “Cross-Border Shareholder Class Actions Before and After Morrison” (Dec. 2011). The authors conclude that by “reducing expected litigation costs, Morrison eases a deterrent to US listing by foreign issuers and thereby makes the US a more competitive venue for cross-listings, as well as for the volume in cross-listed stocks.”

(4) The Harvard Law School Forum on Corporate Governance and Financial Regulation has a post entitled “A New Playbook for Global Securities Litigation and Regulation.” The author discusses the rise of alternative forums to the U.S. for global securities litigation.

(5) A Reuters article (Feb. 1) discusses a recent decision in the Vivendi securities litigation confirming that Morrison applies to claims under both the Securities Exchange Act of 1934 (market activity) and the Securities Act of 1933 (offering and sale of securities).

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