Abstract

http://ssrn.com/abstract=1765901
 


 



The Aftermath of Morrison v. National Australia Bank and Elliott Associates v. Porsche


Wulf A. Kaal


University of St. Thomas, Minnesota - School of Law; European Corporate Governance Institute (ECGI)

Richard W. Painter


University of Minnesota Law School

February 21, 2011

European Company and Financial Law Review, Vol. 1, 2011

Abstract:     
This article evaluates the ambiguities and shortcomings of the U.S. Supreme Court decision in Morrison with a particular emphasis on the implications of the recent Porsche decision in the Southern District of New York. We conclude that the ambiguities in Morrison and the implications of interpreting Morrison for persons and companies in European jurisdictions and elsewhere in the world make it necessary for the U.S. Congress to further clarify the extraterritorial reach of the implied right of action under the Securities Exchange Act of 1934. We also conclude that the U.S. Congress should clarify its intent in Section 929P(b) of the Dodd-Frank Act of 2010 to give extraterritorial enforcement authority to the U.S. Securities and Exchange Commission (SEC) and U.S. Department of Justice. An SEC study of private rights of action is also required by the Dodd-Frank Act, but regardless of the outcome of this study, Congress should decline to reinstate private rights of action in “foreign-cubed” cases. Restraining and clarifying the U.S. approach to extraterritoriality could help provide certainty to international securities markets and avoid a downturn in international economic cooperation.

Number of Pages in PDF File: 23

Keywords: Foreign-Cubed, Dodd-Frank Act, Securities Regulation, Securities Litigation, Morrison, Porsche, Section 929P(b), Section 929Y, Jurisdiction, Section 10(b)

JEL Classification: K2, K22

Accepted Paper Series


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Date posted: February 22, 2011 ; Last revised: August 17, 2011

Suggested Citation

Kaal , Wulf A. and Painter, Richard W., The Aftermath of Morrison v. National Australia Bank and Elliott Associates v. Porsche (February 21, 2011). European Company and Financial Law Review, Vol. 1, 2011. Available at SSRN: http://ssrn.com/abstract=1765901

Contact Information

Wulf A. Kaal (Contact Author)
University of St. Thomas, Minnesota - School of Law ( email )
MSL 400, 1000 La Salle Avenue
Minneapolis, MN Minnesota 55403-2005
United States

European Corporate Governance Institute (ECGI) ( email )
c/o ECARES ULB CP 114
B-1050 Brussels
Belgium
Richard W. Painter
University of Minnesota Law School ( email )
229 19th Avenue South
Minneapolis, MN 55455
United States
612-626-9707 (Phone)
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