Extraterritoriality Rules

News & Analysis as of

The CFTC’S Cross-Border Application of the Dodd-Frank Act

After years of anticipation, the U.S. Commodity Futures Trading Commission in July 2013 issued more than 300 pages of “guidance” ostensibly to assist market participants in understanding the breadth of the extraterritorial...more

Volcker Rule and Covered Bonds

The subtler aspects of the Volcker Rule continue to emerge. One of the subtleties is the extraterritorial reach of the Rule in connection with underwriting, investments in, and market making for covered bonds by foreign...more

Second Circuit Applies “Morrison” to Reject “Listing Theory”

On May 5, 2014, the U.S. Court of Appeals for the Second Circuit decided City of Pontiac v. UBS AG, affirming the dismissal of a securities fraud complaint against UBS and holding that the Supreme Court's decision in Morrison...more

2nd Circuit Decision in Lotes Clarifies FTAIA’s Effect on the Extraterritorial Reach of the Sherman Act, But Leaves Unresolved the...

Long-simmering issues concerning the applicability of the Sherman Act to foreign conduct under the Foreign Trade Antitrust Improvements Act, 15 U.S.C. § 6a (FTAIA), were addressed in the June 4, 2014 decision of the 2nd U.S....more

Second Circuit Limits Extraterritorial Application of Federal Securities Laws

On May 6, 2014, the U.S. Court of Appeals for the Second Circuit issued its opinion in City of Pontiac Policemen’s and Firemen’s Retirement System v. UBS AG, No 12-4355, slip op. (2d Cir. May 6, 2014) (“City of Pontiac”), a...more

Advanced Topics Under Section 75-1.1

Last year, I spoke on section 75-1.1 at a CLE program sponsored by the Antitrust and Complex Business Disputes Section of the North Carolina Bar Association. In the presentation, I addressed three perennially...more

Top Ten Issues when Drafting International Agreements – Part I

Cross-border agreements come in all shapes and sizes, from manufacturing agreements to joint ventures, employment contracts to merger agreements. Each type has its own quirks, but we can boil down the most common legal issues...more

Postcards From Paris To The U.S. – An Object Lesson For Those Who Favor Extraterritorial Jurisdiction By U.S. Courts And...

Many years ago, an American friend of mine was living in Paris and went to the local post office near his apartment to mail a letter. There he found some American tourists who were clearly upset with the French postal clerk....more

International Litigation Update: Second Circuit Clarifies Rules Governing Extraterritorial Application of RICO and Definition of...

In a series of recent decisions, the U.S. Supreme Court has sought to restrict plaintiffs’ ability to apply U.S. law to, and to bring claims in the U.S. courts based on, extraterritorial conduct. In Morrison v. National...more

Second Circuit Clarifies the Limits on The Extraterritorial Application of U.S. Securities Laws

On May 6, 2014, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of a putative securities class action brought by purchasers of foreign issued-securities on a foreign exchange. City of Pontiac...more

Second Circuit Rejects 'Listing Theory,' Finds That Cross-Listing on a U.S. Exchange Is Insufficient to Justify an Exception Under...

In a case of first impression, the U.S. Court of Appeals for the Second Circuit recently held in a published opinion that the Supreme Court’s decision in Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010),...more

City of Pontiac Policemen's and Firemen's Retirement System v. UBS AG: The Second Circuit Court of Appeals Further Limits the...

Last week, the U.S. Court of Appeals for the Second Circuit issued its opinion in City of Pontiac Policemen's and Firemen's Retirement System v. UBS AG, No 12-4355, slip op. (2d Cir. May 6, 2014) ("City of Pontiac"), further...more

Second Circuit Applies Morrison v. National Australia Bank to Allow Certain Extraterritorial Application of RICO

In European Community v. RJR Nabisco, Inc., Case No. 11-CV-2475 (2d Cir. Apr. 23, 2014), the United States Court of Appeals for the Second Circuit held that the Racketeer Influenced and Corrupt Organizations (“RICO”) statute,...more

Second Circuit Narrows Reach of Federal Securities Laws as to Foreign Securities Transactions

On May 6, 2014, the U.S. Court of Appeals for the Second Circuit issued a decision clarifying the applicability of the anti-fraud provisions of the Securities Exchange Act of 1934 to transactions in foreign securities. The...more

Morrison, RICO And Extraterritorial Reach

In the wake of Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869 (2010), a critical question has been whether a statute has extraterritorial reach. In Morrison the Court rejected a claim that Exchange Act Section...more

SDNY Significantly Broadens Reach of Warrants under the Stored Communications Act: Forces Microsoft to Produce Customer Email on...

Last Friday, in the Southern District of New York, U.S. Magistrate Judge James C. Francis IV compelled extensive production of the contents of an unnamed user’s email account stored on a Microsoft server located in Dublin,...more

The Second Circuit Clarifies the Presumption against Extraterritoriality in European Community v. RJR Nabisco, Inc.

On April 23, 2014, the Second Circuit issued an opinion that could be straight from a modern international-spy novel. European Community v. RJR Nabisco, Inc. involves Colombian and Russian cartels, drug smuggling and money...more

Prince v ACE: Extra-Territorial Effect Of U.S. Tax Laws?

Should a Canadian court exercise its jurisdiction to hear a class action lawsuit against Air Canada for improperly collecting U.S. travel taxes on ticket purchases in Canada and on air travel in Canada?...more

Cross-Border RTS Starts Countdown For EMIR Obligations For Non-EU Counterparties

OTC derivative contracts which have a counterparty located outside of the European Union (“EU”) may now be subject to the requirements of the European Market Infrastructure Regulation(“EMIR”). ...more

Minnesota Appeals Court Upholds State Regulation Of Online Payday Lender

On March 31, the Minnesota Court of Appeals held that the Minnesota state legislature may regulate the activities of online payday lenders that extend loans to individuals residing within the state’s borders, even if the...more

FTAIA and Foreign Sales: Seventh Circuit Limits Extraterritorial Reach of U.S. Antitrust Law in Motorola Mobility v. AU Optronics

On March 27, 2014, in Motorola Mobility LLC v. AU Optronics Corp., the Seventh Circuit set precedent in the growing body of law interpreting the Foreign Trade Antitrust Improvements Act (FTAIA). Judge Posner held that the...more

New York Court Affirms Separate Entity Ruling on Appeal

On March 11, 2014, a New York state appellate court affirmed an important decision on the “separate entity” rule that is favorable to all multinational banks that maintain a New York branch. New York’s separate entity rule...more

Fifth Circuit Finds No Protected Activity under SOX, Mum on Extraterritoriality

In Villanueva v. United States Department of Labor, No. 12-60122, 2014 WL 550817 (5th Cir. Feb. 12, 2014), the Fifth Circuit Court of Appeals held that the petitioner had not engaged in protected activity under Section 806 of...more

Securities Regulation: The Supreme Court of Canada Speaks Again

The Supreme Court of Canada recently issued its decision in McLean v British Columbia (Securities Commission). The case is the first by the Court to address inter-provincial cooperation in relation to securities...more

The Volcker Rule: Impact of the Final Rule on Foreign Banking Organizations

On December 10, 2013, the Federal Reserve, FDIC, OCC, SEC, and CFTC (the “Agencies”) issued the long-awaited final rule (“Final Rule”) construing the Volcker Rule. The Volcker Rule generally prohibits banking entities — a...more

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