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Multinational Enforcement of U.S. Securities Laws and Protection of Korean Entities in the Security Class Action

  • DONG-A LAW REVIEW
  • 2011, (52), pp.737-776
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Yongjin Kim 1

1충남대학교

Accredited

ABSTRACT

For many years after § 23 F.R.C.P. was adopted, the United States was the center of class action litigation. § 10(b) of the Securities Exchange Act of 1934 has been the key anti-fraud provision of the US securities laws. Although the Act is silent as to its extraterritorial application, courts have analysed the Act's extraterritorial scope as a question of subject matter jurisdiction, relying on the so-called “conduct” and “effects” test. Because courts has applied these tests in an ad hoc, case-by-case manner, they are inherently unpredictable and unnecessarily complicated, This state of affairs has been particularly troublesome in recent years, as so-called “foreign-cubed” securities fraud lawsuits have proliferated in federal courts. The Supreme Court issued its decision in Morrison v. National Australia Bank, its first ever on the international reach of Section 10(b) and Rule 10b-5. It held that Section 10(b) applies only to fraud in connection with securities transactions that occur within the United States. This bright-line test then bars not only f-cubed claims, but some forms of “foreign-squared” claims (e. g., U.S. investor, foreign defendant, foreign investment transaction) as well. However, Morrison was confronted with the Dodd-Frank Act, in which Congress wanted to respond to Morrison by giving SEC and DOJ power to pursue the type of fraud alleged in Morrison -fraudulent conduct inside the United States that affects securities transactions outside the United States. This study analysed that the Dodd-Frank Act could not reverse Morrison and make Unites States securities laws apply. The Article identifies and analyses the procedural risks of Korean companies before American courts. In light of those important risks the Article strongly recommends that they make use of not only the Morrison but also the exclusive jurisdiction, which is prescribed in Korean securities class action Law.

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