Developments in Global Securities Litigation

by Dechert LLP
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As securities markets become increasingly interconnected, multi- national public corporations continue to be a part of a significant sea change in the globalization of securities fraud litigation—a change that began with the U.S. Supreme Court's 2010 decision Morrison v. National Australia Bank Ltd. In Morrison's wake, foreign and American investors are largely foreclosed from accessing American courts to litigate claims against foreign issuers whose shares do not trade on a U.S. exchange. Further, access to American courts was extinguished for "F-cubed" cases (foreign investors, suing a foreign issuer, traded on foreign exchanges). As such, shareholder plaintiffs barred from U.S. courts are looking to courts in foreign jurisdictions to provide the best forum to litigate alleged securities fraud and seek redress. To understand and prepare for this sea change, multi-national defendants facing securities litigation around the globe should be aware of jurisdictions in which they could be sued, as well as those in which they may be able to obtain global relief.

While class actions are commonplace in U.S. securities litigation, jurisprudence in several countries is developing to respond to these emerging issues. However, each country is developing a slightly different approach to the structure of a potential class or collective action, the type of claimants with ability to sue, and the scope of claims subject to redress and settlement. For example, changes to the laws governing class actions combined with amendments to provincial securities acts have prompted an increase in the filing of securities class actions in Canada. The rise of private third-party litigation funding in Australia has set the stage for a potentially rapid and truly global expansion of securities litigation. And the Netherlands, which views itself and is seen by others as a jurisdiction to handle significant, multi national matters, has become an increasingly popular venue for pursuing international securities class action claims because of its procedures for court-approved, opt-out class-settlements. Recently, the European Union ("EU") promulgated non-binding recommendations regarding collective redress, which invited member states to adopt a collective redress framework. How the law will evolve globally in the various jurisdictions is one of the most important securities law developments to watch for in the coming years.

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