October 30, 2009

Not So Fast

When the U.S. Supreme Court asked for the government's view on the National Australia Bank cert petition, it seemed a safe bet that the government would encourage the Court to take the case. After all, the SEC had filed an unsuccessful amicus brief in the Second Circuit in favor of the plaintiffs. Here was an opportunity to get a second bite at the apple.

Earlier this week, however, the Solicitor General and SEC filed a joint amicus brief arguing that the Supreme Court should deny cert. The government now asserts that the Second Circuit's decision was correct, even if its reasoning was wrong.

First, the government argues that the Second Circuit, along with all of the other circuits that have addressed the issue of the "transnational reach of Section 10(b)," have incorrectly described it as one of subject matter jurisdiction. In fact, the relevant jurisdictional provision has no geographical limitation. The need for a connection to the United States is better understood as being related to the elements of the claim. For a private plaintiff (but not the SEC), this includes the requirement that the plaintiff establish a connection between the defendant's violation and the alleged injury.

Second, the government takes issue with the Second Circuit's examination of where the "heart of the alleged fraud" took place. To the extent this analysis suggested that the conduct of National Australia Bank's U.S. subsidiary did not violate Section 10(b) - because it was not the "heart" of the fraud - the holding was "erroneous." Alternatively, the government proposes the following standard: "it is sufficient if the scheme involves significant conduct within the United States that is material to the fraud's success." The U.S. subsidiary's creation of false information that was incorporated into National Australia Bank's financial statements was sufficient to establish a violation of Section 10(b) and the SEC could have brought an action based on these facts.

For a foreign private plaintiff, however, an additional assessment must be made. According to the government, "the plaintiff should be required to prove that his loss resulted not simply from the fraudulent scheme as a whole, but directly from the component of the scheme that occurred in the United States." As to this assessment, the Second Circuit apparently got it right, concluding that causation was too attenuated given all of the activity that took place in Australia prior to the issuance of the false financial statements.

Finally, the government concedes that there is a circuit split over the "conduct" test, with the D.C. Circuit having adopted the most restrictive version. The D.C. Circuit requires that a defendant's "domestic conduct comprise all the elements . . . necessary to establish a violation of Section 10(b)." Nevertheless, the government argues that National Australia Bank "would not be a suitable vehicle for resolving that division" because the plaintiffs could not prevail under any of the existing conduct tests.

Whatever one makes of the government's arguments, it's overall position on granting cert is puzzling. Appellate court misunderstood fundamental legal question? Check. Appellate court applied wrong legal standard? Check. Appellate court decision caused or confirmed existence of circuit split? Check. The U.S. Supreme Court should resolve these important issues? Pass. Stay tuned for the Court's decision.

Quote of note: "[O]ther nations might perceive affording a private remedy to foreign plaintiffs as circumventing the causes of action and remedies (and the limitations thereon) that those nations provide their own defrauded citizens, particularly if the plaintiff’s principal grievance appears directed at another foreign entity. Absent indications of a contrary congressional intent, the judicially-created private right of action under Section 10(b) should be tailored so as to minimize the likelihood of such international friction."

Posted by Lyle Roberts at October 30, 2009 9:43 PM | TrackBack
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