Number 1312 April 4, 2012 Client Alert While the Second Circuit s formulation answers some questions about what transactions fall within the scope of Section 10(b), it also raises a host of new questions about the circumstances in which irrevocable liability is incurred, or title transferred, in the United States. Latham & Watkins Litigation Department Securities Litigation and Professional Liability Practice Second Circuit Provides Guidance on What Constitutes Domestic Securities Transactions for Section 10(b) Liability In 2010, the US Supreme Court held in Morrison v. National Australia Bank Ltd. that Section 10(b) of the Securities Exchange Act of 1934 only applies to transactions in securities listed on domestic exchanges and domestic transactions in other securities. 1 That decision rejected the US Court of Appeals for the Second Circuit s longstanding conduct and effects tests, and sparked wide-ranging discussion regarding what would happen relative to securities transactions that are at least partially extraterritorial. Now the Second Circuit has weighed in on the discussion. In Absolute Activist Value Master Fund Ltd. v. Todd M. Ficeto, the Second Circuit provided guidance for the first time on the application of the phrase domestic transactions in other securities, holding that a domestic transaction occurs if irrevocable liability was incurred or title was transferred within the United States. 2 While the Second Circuit s formulation answers some questions about what transactions fall within the scope of Section 10(b), it also raises a host of new questions about the circumstances in which irrevocable liability is incurred, or title transferred, in the United States. This Client Alert considers the Second Circuit s new standard, and explores the effect of the new standard on future cases. Background Plaintiffs in Absolute Activist were foreign hedge funds that invested on behalf of investors around the world, including in the United States. Plaintiffs claimed that the defendants plaintiffs investment manager (Absolute Capital Management Holdings Limited (ACM)), certain officers of ACM, plaintiffs US-based broker-dealer (Hunter World Markets, Inc. (Hunter)) and certain principals of Hunter engaged in a classic pump-and-dump scheme that caused plaintiffs to suffer losses of at least US$195 million through fraudulent trading of securities. 3 As alleged, defendants caused plaintiffs to purchase billions of shares of thinlycapitalized US-based companies (referred to by the Second Circuit as the US Penny Stock Companies ) in subscriptions pursuant to private investment in public equity (PIPE) transactions, and later artificially inflated the prices of those stocks by trading and re-trading the stocks between the plaintiff hedge funds, creating the illusion of trading volume. 4 At the time of those purchases, certain of the defendants already held in their own name, or otherwise controlled, substantial amounts of shares and warrants from the US Penny Stock Companies. Some defendants even Latham & Watkins operates worldwide as a limited liability partnership organized under the laws of the State of Delaware (USA) with affiliated limited liability partnerships conducting the practice in the United Kingdom, France, Italy and Singapore and as affiliated partnerships conducting the practice in Hong Kong and Japan. Latham & Watkins practices in Saudi Arabia in association with the Law Office of Mohammed A. Al-Sheikh. In Qatar, Latham & Watkins LLP is licensed by the Qatar Financial Centre Authority. Under s Code of Professional Responsibility, portions of this communication contain attorney advertising. Prior results do not guarantee a similar outcome. Results depend upon a variety of factors unique to each representation. Please direct all inquiries regarding our conduct under s Disciplinary Rules to Latham & Watkins LLP, 885 Third Avenue,, NY 10022-4834, Phone: +1.212.906.1200. Copyright 2012 Latham & Watkins. All Rights Reserved.
received shares and warrants from the US Penny Stock Companies for causing plaintiffs to purchase their shares. Once the prices of the stocks were manipulated to desired levels, the defendants were able to sell their own shares to plaintiffs (their clients) at inflated prices. Finally, Hunter and its principals allegedly were able to generate substantial commissions through their role as placement agents for the PIPE transactions. 5 In the fall of 2009, plaintiffs filed suit in the United States District Court for the Southern District of, alleging claims under Section 10(b) of the Exchange Act and Rule 10b-5, as well as associated common law claims. On the day after argument on defendants motion to dismiss the complaint, the US Supreme Court released its decision in Morrison. Thereafter, the District Court sua sponte dismissed plaintiffs complaint in its entirety, ruling that under Morrison it lacked subject matter jurisdiction over the case because the complaint failed to allege sufficiently the existence of domestic securities transactions. 6 Morrison and the Scope of Section 10(b) of the Exchange Act Section 10(b) of the Exchange Act makes it unlawful [t]o use or employ, in connection with the purchase or sale of any security... any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. 7 Rule 10b-5 provides that it is unlawful... to employ any device, scheme, or artifice to defraud, [or] to make any untrue statement of a material fact or omit to state a material fact... or to engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. 8 Prior to the Supreme Court s decision in Morrison, the Second Circuit, along with most other circuits, applied the conduct and effect tests for determining the extraterritorial application of Section 10(b). 9 The conduct test considered whether the wrongful conduct occurred in the United States, and the effects test considered whether the wrongful conduct had a substantial effect in the United States or upon United States citizens. 10 The Second Circuit generally declined to keep [those] two tests distinct on the ground that an admixture or combination of the two often gives a better picture of whether there is sufficient United States involvement to justify the exercise of jurisdiction by an American court. 11 In Morrison, the Supreme Court struck down the conduct and effects tests as extra-textual extensions of Section 10(b), holding that Section 10(b) applies only to purchases and sales of securities in the United States. 12 The Court established a transactional test for determining applicability of Section 10(b), holding that it applies only [to] transactions in securities listed on domestic exchanges, and domestic transactions in other securities. 13 The Morrison opinion, however, provided little guidance as to what the phrase domestic transactions in other securities means in practice. The Second Circuit s Decision in Absolute Activist Drawing upon definitions of the terms purchase and sale, and prior case law interpreting Morrison, the Second Circuit held in Absolute Activist that for a plaintiff to allege a domestic securities transaction sufficiently, the plaintiff must allege facts suggesting that irrevocable liability was incurred or title was transferred within the United States. 14 The Court affirmed dismissal of the complaint, holding that plaintiffs mere allegation that the 2 Number 1312 April 4, 2012
transactions carried out through [the broker-dealer] took place in the United States was insufficient to allege a domestic securities transaction. 15 The Court also held that plaintiffs remaining allegations failed to satisfy the new standard. Of particular note, the Court rejected plaintiffs allegation that certain defendants who resided in the United States were involved[] in the offerings of the US Penny Stock Companies, or otherwise carried out fraudulent activities in the United States, noting that such allegations did not sufficiently allege that the transactions themselves took place in the United States. 16 Questions Unresolved by Absolute Activist By holding that plaintiffs must plead facts supporting a plausible inference that irrevocable liability for the sale or purchase of a security was incurred in the United States (whether that security was issued in the United States or a foreign country), or that the title of that security was transferred within the United States, Absolute Activist provides needed guidance as to what constitutes a domestic securities transaction in securities not listed on a domestic exchange. 17 Absent sufficient allegations in this regard, Section 10(b) claims within the Second Circuit will be dismissed. 18 However, the day-to-day application of the new standard in a 21st-century trading environment may prove difficult without further guidance from courts. For instance, when one party to a securities transaction is present within the United States, and the counterparty is present outside the US, it is not immediately clear how a court would determine whether liability was incurred, or title transferred, within the United States. Further complications may arise when the presence of brokers or other intermediaries are considered. Moreover, most securities transactions today are conducted electronically, which adds a layer of complexity to the determination of the location of the seller, broker, holder and/or purchaser. The complexity of the issue is compounded by questions of when liability becomes irrevocable e.g., it could mean at the time an offer and acceptance is made, the time the security is delivered to the purchaser (or intermediary), when payment is sent (or received), when liability accrues under GAAP, or otherwise. Of course, when liability is incurred can affect where it is incurred. In Absolute Activist, the Second Circuit suggests in dicta that one of the ways litigants could deal with these uncertainties is for plaintiffs to plead facts concerning the formation of the contracts, the placement of purchase orders, the passing of title, or the exchange of money within the United States. 19 Further monitoring will be necessary to determine how plaintiffs will handle this suggestion in their complaints and amended complaints. Depending on the nature of any such allegations, defendants may argue in motions to dismiss that such allegations merely attempt to resurrect the nowabrogated conduct test, which required a plaintiff to allege that the wrongful conduct occurred in the United States. 20 Pleading such facts the location of the formation of contracts, the time and place of monetary exchanges, etc. was a staple of pre-morrison complaints, whenever the domestic nature of the securities exchange at issue was in dispute. Conclusion While Absolute Activist creates a fixed standard for courts to consider when assessing whether a plaintiff has sufficiently alleged a domestic transaction in securities, it remains to be seen how this new standard whether irrevocable liability was incurred or title was transferred within the United States will be applied in practice. 3 Number 1312 April 4, 2012
While a small handful of cases post- Morrison applied the irrevocable liability standard even before Absolute Activist, 21 the questions raised in this Client Alert were left unanswered in those cases. A fundamental question is likely to surface in the wake of Absolute Activist: If plaintiffs now must plead facts regarding the locus of the contracting process between the issuer and purchasers (or secondary holders and purchasers), does this effectively come back full circle to the conduct test? How plaintiffs respond to the dicta in Absolute Activist will need to be squared with the Supreme Court s holding in Morrison rejecting that test. Endnotes 1 Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869, 2884 (2010). 2 Absolute Activist Value Master Fund Ltd., et al. v. Todd M. Ficeto, et al., ---F.3d---, 2012 WL 661771, at *1 (2d Cir. Mar. 1, 2012). 3 Id. at *1-2. 4 Id. at *2. 5 Id. at * 2-3. 6 Id. at *4. 7 15 U.S.C. 78j(b). 8 17 C.F.R. 240.10b-5. 9 130 S.Ct. at 2889 (Stevens, J., concurring). 10 Id. at 2879 (citing S.E.C. v. Berger, 322 F.3d 187, 192-193 (2d Cir. 2003)). 11 Id. (citing Itoba Ltd. v. Lep Group PLC, 54 F.3d 118, 122 (1995)). 12 Id. at 2884 ( Those purchase-and-sale transactions are the objects of the statute s solicitude. It is those transactions that the statute seeks to regulate. (citation omitted)). 13 Id. 14 Absolute Activist, 2012 WL 661771, at *6 (emphasis added). 15 Id. at *8. 16 Id. at *8-9. 17 Id. at *6. 18 As the Second Circuit made clear, this is a merits question, not a subject matter jurisdiction question. Id. at *5. 19 Id. at *8. 20 Morrison, 130 S.Ct. at 2879. 21 See Basis Yield Alpha Fund (Master) v. Goldman Sachs Group, Inc., 798 F. Supp. 2d 533, 537 (S.D.N.Y. 2011) ( to state a claim under Section 10(b), a plaintiff must allege that the parties incurred irrevocable liability to purchase or sell the security in the United States ; plaintiff s mere allegation that it agreed to purchase securities from defendant fails to provide sufficient facts that allow the Court to draw the reasonable inference that the purchase or sale was made in the United States. ); S.E.C. v. Goldman Sachs & Co., 790 F. Supp. 2d 147, 157-58 (S.D.N.Y. 2011) (SEC tacitly concedes that none of the US-based conduct it describes alleges that any party incurred irrevocable liability in the United States ); Plumbers Union Local No. 12 Pension Fund v. Swiss Reins. Co., 753 F. Supp. 2d 166, 178 (S.D.N.Y 2010) ( plaintiff never asserts that its order was irrevocable when placed ; purchase order in the United States for a security that is sold on a foreign exchange is insufficient to subject the purchase to the coverage of section 10(b) of the Exchange Act ). If you have any questions about this Client Alert, please contact one of the authors listed below or the Latham attorney with whom you normally consult: Robert J. Malionek +1.212.906.1816 robert.malionek@lw.com H. Gregory Baker +1.212.906.2941 gregory.baker@lw.com John D. Castiglione +1.212.906.1694 john.castiglione@lw.com 4 Number 1312 April 4, 2012
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