Supreme Court Seeks Solicitor General's Input On Granting Certiorari For Case Raising The Question Of Whether A Non-U.S. Corporate Issuer With No Involvement In Establishing Or Selling ADRs Can Be Subject To Section 10(b) As Long As Plaintiff's Alleged Securities Transaction Was "Domestic"

by Shearman & Sterling LLP

On January 14, 2019, the United States Supreme Court invited the Solicitor General to file a brief expressing the views of the United States in connection with a pending petition for writ of certiorari regarding whether, in determining if Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) may apply to a securities transaction—including one involving American Depositary Receipts (“ADRs”) which are not sponsored by the foreign issuer and are traded on over-the-counter markets—it is sufficient to show that the transaction itself was domestic.  Toshiba Corp. v. Auto. Indus. Pension Trust Fund, et al., No. 16-56058 (Jan. 14, 2019).  Under the Ninth Circuit decision for which review is being sought, a foreign issuer that has no involvement in establishing or selling the ADRs can be subject to Section 10(b) as long as the plaintiff purchased or sold the ADRs in a domestic transaction.  As noted by the defendant and various amici in support of the petition for certiorari, the Ninth Circuit’s holding significantly extends the extraterritorial application of Section 10(b) to non-U.S. companies which have not elected to avail themselves of the U.S. capital markets.

The Ninth Circuit’s approach appears to be in tension with the concerns expressed by the Supreme Court in the seminal case of Morrison v. Nat. Aust. Bank.  In Morrison, the Court emphasized the importance of the presumption against extraterritoriality of U.S. statutes and held that Section 10(b) and SEC Rule 10b-5 only apply to (i) the purchase or sale of a security listed on a U.S. securities exchange, or (ii) the purchase or sale of any other security in the United States.  561 U.S. 247 (2010).    

Since Morrison, lower courts have addressed its rule that Section 10(b) only applies to “transactions in securities listed on domestic exchanges, and domestic transactions in other securities” (id. at 267) in various contexts.  The transnational nature of transactions involving ADRs, in particular, has given rise to a number of decisions concerning the applicability of Section 10(b).  ADRs are negotiable certificates issued by a U.S. depositary institution, typically banks, which represent a beneficial interest in a specified number of shares of a non-U.S. company.  They allow investors in the United States to invest in foreign companies and facilitate access to the U.S. capital markets.  ADRs can be traded on U.S. exchanges, such as the New York Stock Exchange, or on over-the-counter markets, such as the Over-the-Counter Bulletin Board.  Unsponsored ADRs are registered by depositary institutions with the Securities and Exchange Commission (“SEC”) without the foreign company’s participation, whereas sponsored ADRs are jointly registered by the depositary institution and the foreign company.  

Courts have repeatedly held that Section 10(b) claims based on ADRs listed on a domestic exchange are permitted under Morrison.  The law is more unsettled concerning whether Section 10(b) claims can be brought on the basis of transactions related to ADRs or other instruments that are not listed on a U.S. exchange.  The Morrison court did not define the scope of “domestic” transactions.  In two significant cases, the Second Circuit has (i) set forth a test to determine if the transaction is domestic for purposes of Section 10(b) application (Absolute Activist), and (ii) held that, in any event, finding that a transaction is domestic is not sufficient to conclude that Section 10(b) applies to the transaction, if the claims are “so predominantly foreign as to be impermissibly extraterritorial” (Parkcentral).  The Second Circuit has held that a transaction is domestic “if irrevocable liability is incurred or title passes within the United States.”  Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 62 (2d Cir. 2012).  Numerous courts, including the Third Circuit, have adopted the “irrevocable liability” test.  

The Second Circuit has further held that a domestic transaction “is not alone sufficient to state a properly domestic claim under [Section 10(b)].”  Parkcentral Global Hub Ltd. v. Porsche Auto Holdings SE, 763 F.3d 198, 215 (2d Cir. 2014).  In Parkcentral, the Second Circuit held that a suit by investors in “securities-based swap agreements” relating to the stock of Volkswagen AG, a German corporation, “impermissibly [sought] to extend § 10(b) extraterritorially.”  Id. at 201-02.  The Porsche defendants allegedly made fraudulent statements about Porsche’s intentions with respect to Volkswagen stock, but Porsche was not alleged to be a party to the swap agreements or to have participated in the market for such swaps in any way.  The court concluded that, even if the purchase or sale of the swap agreements was domestic, “the imposition of liability under § 10(b) on these foreign defendants with no alleged involvement in plaintiffs’ transactions, on the basis of the defendants’ largely foreign conduct, for losses incurred by the plaintiffs in securities-based swap agreements based on the price movements of foreign securities, would constitute an impermissibly extraterritorial extension of the statute.”  Id. at 216, 201.  

In Toshiba, the Ninth Circuit held that the purchase and sale of unsponsored ADRs traded on an over-the-counter market could qualify as domestic transactions under Morrison and subject the foreign issuer (to whose securities the ADRs refer) to Section 10(b).  Stoyas v. Toshiba Corp., 896 F.3d 933 (9th Cir. 2018).  The named plaintiffs, U.S.-based funds, had made over-the-counter purchases of unsponsored ADRs of Toshiba, a Japanese company with shares trading on the Tokyo Stock Exchange.  The district court dismissed the case with prejudice, finding that Section 10(b) did not apply under Morrison because the over-the-counter market was not a “stock exchange” under the Exchange Act, and plaintiffs had failed to allege Toshiba’s involvement in the ADRs at issue.  On appeal, the Ninth Circuit first found that the over-the-counter market was not a “domestic exchange” for purposes of Section 10(b).  Id. at *24.  Then, adopting the Second Circuit’s “irrevocable liability” test, the Court concluded that the complaint did not include sufficient factual allegations to determine where the parties incurred irrevocable liability, but suggested that “an amended complaint could almost certainly allege sufficient facts to establish that [plaintiff] purchased its Toshiba ADRs in a domestic transaction,” noting that plaintiffs, the over-the-counter market, and the depositary banks were all based in the U.S.  Id. at *28-29.  

The Court rejected defendant’s argument, based on the Second Circuit’s Parkcentral, that a domestic transaction is not sufficient to subject a non-U.S. issuer to Section 10(b) and that the claims should be dismissed because plaintiffs did not allege any connection between Toshiba and the ADRs.  The Ninth Circuit stated that the Parkcentral decision was “contrary to Section 10(b) and Morrison itself” because, according to the Ninth Circuit, “[i]t carves out ‘predominantly foreign’ securities fraud claims from Section 10(b)’s ambit, disregarding Section 10(b)’s text.”  Id. at *30.  The Ninth Circuit further found that Parkcentral was distinguishable on several grounds, including that:  (1) Parkcentral involved private swap agreements that did not constitute investments in the company or confer an ownership interest in the referenced securities; (2) the swap agreements were not traded on any exchanges, systems, or platforms regulated by the SEC; (3) the referenced securities were traded exclusively on foreign exchanges; and (4) no allegations were made that the foreign issuer of the referenced securities knew about or facilitated the swap agreements.  Id. at *29-30.  Regarding defendant’s arguments that applying the Exchange Act to unsponsored ADRs would undermine Morrison’s comity concerns, the court stated this was “not a basis for declining to follow the Court’s clear instructions in Morrison.”  Id. at *31.  The court found that the complaint did not sufficiently allege a domestic violation of the Exchange Act, but reversed and remanded the case to allow plaintiffs to file an amended complaint.  Id. at *31-35.  

Defendant submitted a petition for writ of certiorari to the Supreme Court of the United States.  Defendant asked the Supreme Court to decide whether a domestic securities transaction is or is not sufficient to subject a defendant to Section 10(b).  Defendant argued that by holding that the Exchange Act always applies if the claim involves a domestic securities transaction—even when it involves foreign conduct, has an effect on foreign securities exchanges, and interferes with foreign securities laws—the Ninth Circuit created a circuit split with the Second Circuit over how to apply Morrison’s limitation on the extraterritorial reach of Section 10(b).  Defendant further contended that the issue is of significant and immediate importance because the Ninth Circuit’s rule (i) interferes with foreign securities regulation and (ii) may lead foreign issuers to attempt to prevent trading in unsponsored ADRs referencing their stock.  Specifically, defendant argued that the Ninth Circuit’s decision “permits application of the Exchange Act to foreign companies that list their securities exclusively on foreign exchanges, have not otherwise entered the U.S. securities markets, had no involvement with the underlying domestic securities transactions, and whose allegedly fraudulent conduct occurred abroad and has been investigated by foreign authorities.”  Defendant also contended that the decision could inhibit the ability of U.S. investors to trade in unsponsored ADRs, negatively impacting the market, if foreign issuers seek to limit such trading to avoid securities litigation exposure.

Numerous amici filed briefs in support of the petition—including the Securities Industry and Financial Markets Association, the U.S. Chamber of Commerce, and the Institute of International Bankers—and similarly argued that the Ninth Circuit’s decision impermissibly extends the reach of Section 10(b) extraterritorially, in contravention of Morrison, and could have detrimental effects on non-U.S. companies, the U.S. regulatory system, and the global securities market.

The Supreme Court’s denial of the petition would leave in place a holding that would subject non-U.S. issuers to Section 10(b), in the Ninth Circuit, even if they are not involved in establishing the securities at issue—such as unsponsored ADRs—and do not participate in the securities transactions that form the basis of the alleged claim.  The Court’s invitation for a brief from the Solicitor General, however, suggests that the Court may possibly be leaning toward granting the petition.  We will continue to closely follow this case.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Shearman & Sterling LLP | Attorney Advertising

Written by:

Shearman & Sterling LLP

Shearman & Sterling LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.