International Business Law Advisor Insights on International Litigation & Transactions

Post-Game Analysis of Morrison v. National Australia Bank. Read the Transcript Here

By Santiago A. Cueto on Posted in Dispute Resolution, International Banking, International Litigation

"I mean, this case is Australian plaintiff, Australian defendant, shares purchased in Australia.  It has ‘Australia’ written all over it."  

                 — Justice Ginsburg, March 29, 2010

Following up on yesterday’s pre-game analysis of oral argument in Morrison v. National Australia Bank,  Hannah Buxbaum over at the Conglomorate blog,  has posted an excellent post-game analysis of this pivotal U.S. Supreme Court case. We thank her for providing a link to the transcript, embedded below:

Morrison v. National Australia Oral Argument Transcript

 

After reviewing the transcript, Hannah is of the opinion that the Court "will have no problem concluding that f-cubed cases are not governed by U.S. securities law."  But she notes that "the bright-line test advocated by respondents, under which U.S. law would apply only if the securities transaction in question took place in the United States, wouldn’t just foreclose those cases — it would also foreclose cases involving American investors who had invested abroad.  Would that be throwing the baby out with the bathwater?"

That’s a great point. What about protecting the interests of defrauded U.S. investors? What do you think?

       -Santiago 

  • Roger

    I think that Mr. Dubbs did an excellent job of showing how small of an opening he was trying to secure for foreign plaintiffs in f-cubed cases. He argued for the most restrictive test applied in the circuits, and showed how other judicial doctrines place even more severe limitations on foreign plaintiffs. On the other hand, I think Mr. Conway bit off far more than he could chew, as evidenced by the fact that he couldn’t pass the laugh test. Even if the Court doesn’t side with Mr. Dubbs, there is no way they would adopt Mr. Conway’s test. Conway would have been better off arguing that the conduct test should be limited to government actions, as the SEC does, or simply arguing that the conduct test is not met in this case.