TRANSNATIONAL LITIGATION AND GLOBAL SECURITIES CLASS-ACTION LAWSUITS

被引:0
|
作者
Choi, Stephen J. [1 ]
Silberman, Linda J. [1 ]
机构
[1] NYU, Sch Law, New York, NY 10003 USA
关键词
MERITS MATTER; RETHINKING;
D O I
暂无
中图分类号
D9 [法律]; DF [法律];
学科分类号
0301 ;
摘要
The U.S. securities laws often apply extraterritorially. Courts apply a number of doctrines, including the conduct and effects tests, to determine how far to extend jurisdiction in securities class-action lawsuits involving transnational securities fraud. In determining both jurisdiction and the propriety of a class-action lawsuit, courts often focus on whether foreign jurisdictions will recognize a U.S. class-action judgment and whether there are effective alternative remedies abroad. We focus our analysis on the present extraterritorial regime as applied to securities class-action lawsuits involving foreign issuers and, at least in part, foreign investors transacting abroad (often referred to as f-cubed litigation). We argue that the conduct and effects tests, as well as court inquiries into whether foreign jurisdictions will recognize U.S. judgments and the presence of alternative remedies abroad, are uncertain in their application and as a result, unpredictable. We propose instead that courts adopt a uniform, bright-line exchange-based presumptive rule in determining the applicable class in a rule 10b-5 class-action lawsuit. Courts should presume jurisdiction over all investors trading in a company's securities within the United States, and presume no jurisdiction for rule 10b-5 lawsuits for foreign investors trading outside the United States. Under this approach, private plaintiffs' attorneys have equivalent incentive to file a class-action lawsuit under rule 10b-5 against foreign issuers, compared with domestic issuers with a similar level of U.S. investor ownership and trading volume, and thus an equal level of private deterrence against the negative effects of fraud on the U.S. markets.
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页码:465 / 506
页数:42
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