United States Supreme Court Hears Oral Argument on the “Extraterritorial” Application of the Securities Exchange Act

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Today the United States Supreme Court heard oral argument on the question of whether “Foreign-Cubed” securities class actions — private actions brought on behalf of foreign purchasers of the securities of foreign companies on foreign exchanges — may be litigated in United States courts.

The “extraterritorial” reach of the federal securities laws is the central focus of Morrison v. National Australia Bank, No. 08-1191. Morrison is the third in a series of fairly recent Supreme Court cases reviewing the extraterritorial application of federal statutes, following the Court’s consideration of the reach of antitrust law in F. Hoffmann-LaRoche Ltd. v. Empagran S.A., 542 U.S. 155 (2004), and patent law in Microsoft v. AT&T Corp., 550 U.S. 437 (2007). In Empagran (a unanimous decision) and Microsoft (an 8-to-1 decision), the Court concluded that the extraterritorial scope of the federal antitrust and patent statutes was a matter for Congress to decide. In the face of statutes that were ambiguous or silent on the issue, the Court applied a “presumption that United States law governs domestically but does not rule the world.”

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