In its landmark 2010 decision in Morrison v. National Australia Bank, the Supreme Court articulated what seemed to be a bright-line test for determining the extent to which the U.S. securities laws apply to transactions with international elements. In so doing, the Court harshly rejected the fact-intensive “conduct/effects” tests propounded several decades ago by the Second Circuit and followed by many other courts throughout the country.

Last week, the Second Circuit got its revenge. In a long-awaited decision in ParkCentral Global Hub Limited v. Porsche Automobile Holdings SE, the court declined “to proffer a test that will reliably determine when a particular invocation of [the Securities Exchange Act’s anti-fraud provision] will be deemed appropriately domestic or impermissibly extraterritorial.” Instead, the Second Circuit held that courts must carefully consider the facts and circumstances of each case to avoid the very result that the Supreme Court had hoped to prevent in Morrison: promiscuous application of the U.S. securities laws to transactions that have little, if any, relationship to the United States.

The ParkCentral decision illustrates the difficulties that the Morrison test created for determining whether U.S. law should apply to transactions involving unlisted securities and international elements. The decision reinforces the trend against extraterritorial application of U.S. law – while perhaps not closing the door to applying U.S. law where facts so warrant.

Background of the Second Circuit’s Decision

Until June 2010, most courts throughout the United States had analyzed the Exchange Act’s applicability to transnational securities transactions under the well-established “conduct/effects” tests. The conduct test had traditionally considered whether the defendant’s conduct in the United States was so significant as to have been more than merely preparatory to the alleged fraud and to have directly caused non-U.S. investors’ losses. The effects test had considered the alleged fraud’s effects on U.S. markets or investors.

Morrison rejected the fact-specific conduct/effects tests, observing that “there is no more damning indictment of the ‘conduct’ and ‘effects’ tests than the Second Circuit’s own declaration that ‘the presence or absence of any single factor which was considered significant in other cases . . . is not necessarily dispositive in future cases.'” Instead, the Supreme Court adopted a supposedly “clear test,” which the Court called “a transactional test”: § 10(b) of the Exchange Act applies only to “transactions in securities listed on domestic exchanges, and domestic transactions in other [i.e., non-U.S.-listed] securities.

The first prong of this transactional test – for U.S.-listed securities – has seemed relatively comprehensible, although it has generated some litigation. The second prong, however – “domestic transactions in other securities” – has raised many questions.

In March 2012, in Absolute Activist Value Master Fund Ltd. v. Ficeto, the Second Circuit attempted to clarify the second prong and held that, “to sufficiently allege the existence of a ‘domestic transaction in other securities,’ plaintiffs must allege facts indicating that irrevocable liability was incurred or that title was transferred within the United States.” A plaintiff can demonstrate that irrevocable liability was incurred in the United States by pleading facts showing that “the purchaser incurred irrevocable liability within the United States to take and pay for a security, or that the seller incurred irrevocable liability within the United States to deliver a security.” A plaintiff can also satisfy Morrison’s second prong by showing that the United States was “the location in which title is transferred.”

The ParkCentral Case

The ParkCentral case arose from an allegedly secret plan by Porsche, a German company, to take over Volkswagen (“VW”), another German company. The plaintiffs – U.S. and non-U.S. hedge funds managed in the U.S. – had entered into security-based swap agreements that referenced the price of VW shares. The swaps’ value fluctuated with the price of VW shares: their value rose as the price of VW shares declined, and fell as the price of VW shares rose. The swap agreements were not traded on any exchange – and thus were not subject to Morrison’s first prong.

The plaintiffs alleged that Porsche had violated § 10(b) by secretly accumulating large amounts of VW’s shares while falsely denying its intent to take over VW. When Porsche ultimately disclosed that it had acquired more than 74% of VW’s shares, the price of VW’s stock soared, and the value of the plaintiffs’ swap contracts plummeted.

The plaintiffs contended that § 10(b) applied to their transactions because their purchases of swaps constituted “domestic transactions in other [i.e., unlisted] securities” under Morrison’s second prong: U.S.-based investment managers had allegedly made the investment decisions; all steps necessary to the transactions had allegedly been carried out in the United States; the investment managers had signed swap confirmations at their U.S. offices; and the swap agreements contained New York choice-of-law and forum-selection clauses.

The district court dismissed the case based largely on its view of how “the economics of the swaps” affect “securities-based swaps that reference stocks traded abroad.” The parties had agreed that the swap contracts, “which reference VW shares, were economically equivalent to the purchase of VW shares.” The court therefore concluded that “the nature of a reference security [the underlying VW stock] must play a role in determining whether a transnational swap agreement may be afforded the protection of § 10(b).” “Here, Plaintiffs’ swaps were the functional equivalent of trading the underlying VW shares on a German exchange. Accordingly, the economic reality is that Plaintiffs’ swap agreements are essentially transactions conducted upon foreign exchanges and markets, and not domestic transactions that merit the protection of § 10(b).”

The court was “loathe to create a rule that would make foreign issuers with little relationship to the U.S. subject to suits here simply because a private party in this country entered into a derivatives contract that references the foreign issuer’s stock.” The court thus read Morrison’s second prong to cover only “purchases and sales of securities explicitly solicited by the issuer in the U.S., rather than transactions in foreign-traded securities – or swap agreements that reference them – where only the purchaser is located in the United States.”

The Second Circuit’s Decision

The Second Circuit affirmed the dismissal of the claims, but for different reasons. Without accepting or rejecting the district court’s “economic reality” analysis of swaps, the Second Circuit ruled that “the imposition of liability under § 10(b) on these foreign defendants with no alleged involvement in plaintiffs’ transactions, on the basis of the defendants’ largely foreign conduct, for losses incurred by the plaintiffs in securities-based swap agreements based on the price movements of foreign securities would constitute an impermissibly extraterritorial extension of the statute.” The court “express[ed] no view whether we would have reached the same result if the suit were based on different transactions.”

The Second Circuit essentially assumed that the plaintiffs’ swap transactions might have met the Absolute Activist test for satisfying Morrison’s second prong: incurrence of irrevocable liability or transfer of title in the United States. But the possibility that the swaps might have constituted “domestic transactions” under Morrison created a problem for the court: even if the transactions technically fell within the Morrison test, the court “[thought] it clear that the claims in this case are so predominantly foreign as to be impermissibly extraterritorial.”

So the Second Circuit bailed out the Supreme Court. The court looked beyond Morrison’s literal language to reach what it considered a result that was more in line with Morrison’s aim of avoiding inappropriately extraterritorial application of U.S. law.

The Second Circuit began its analysis by limiting Morrison to its facts: “the Supreme Court has said that it is ‘acutely aware . . . that [it] sit[s] to decide concrete cases and not abstract propositions of law’ and has therefore ‘decline[d] to lay down . . . broad rule[s] . . . to govern all conceivable future questions in an area.'” Morrison had involved only common stock, not esoteric financial instruments. The Second Circuit therefore warned of the need to “proceed cautiously in applying teachings the Morrison Court developed in a case involving conventional purchases and sales of stock to derivative securities, like securities-based swap agreements, that vest parties with rights to payments based on changes in the value of a stock.”

The court then considered “whether, under Morrison, a domestic transaction in a security (or a transaction in a domestically listed security) – in addition to being a necessary element of a domestic § 10(b) claim – is also sufficient to make a particular invocation of § 10(b) appropriately domestic” (emphasis in original). The court concluded that, while Morrison “unmistakably made a domestic securities transaction (or a transaction in a domestically listed security) necessary to a properly domestic invocation of § 10(b), such a transaction is not alone sufficient to state a properly domestic claim under the statute” (emphasis added).

In other words, Morrison’s self-described “clear test” is not necessarily the whole story (at least for nonconventional securities). As the Second Circuit explained, “a rule making the statute applicable whenever the plaintiff’s suit is predicated on a domestic transaction, regardless of the foreignness of the facts constituting the defendant’s alleged violation, would seriously undermine Morrison’s insistence that § 10(b) has no extraterritorial application. It would require the courts to apply the statute to wholly foreign activity clearly subject to regulation by foreign authorities solely because a plaintiff in the United States made a domestic transaction, even if the foreign defendants were completely unaware of it. Such a rule would inevitably place § 10(b) in conflict with the regulatory laws of other nations.”

Based on its conclusion that satisfaction of the Morrison test was not sufficient to invoke § 10(b), the Second Circuit examined the facts at issue and held that they were so predominantly foreign as to preclude § 10(b) liability. The alleged misrepresentations had been made primarily in Germany and had concerned the stock of a German company traded only on European exchanges. Moreover, the German defendant had not been a party to the plaintiffs’ securities transactions, even if they were domestic transactions under Morrison.

Accordingly, the court refused to “permit the plaintiffs, by virtue of an agreement independent from the reference securities, to hale the European participants in the market for German stocks into U.S. courts and subject them to U.S. securities laws.” But the Second Circuit cautioned that it had “neither the expertise nor the evidence to allow us to lay down, in the context of the single case before us, a rule that will properly apply the principles of Morrison to every future § 10(b) action involving the regulation of securities-based swap agreements in particular or of more conventional securities generally.”

Potential Impact of the Second Circuit’s Ruling

The Second Circuit’s decision rejects the notion that bright-line rules can and should apply to all cases concerning § 10(b)’s reach. The court concluded that slavish application of supposedly clear “tests” can lead to results that might be inconsistent with the underlying principles that the “tests” were designed to promote. Thus, the Second Circuit, while making due obeisances to the Supreme Court, construed Morrison to allow – if not require – courts to “carefully make their way with careful attention to the facts of each case and to combinations of facts that have proved determinative in prior cases, so as eventually to develop a reasonable and consistent governing body of law on this elusive question.”

The ParkCentral decision raises a number of intriguing questions, including the following:

First, if satisfaction of the Morrison test is not sufficient for § 10(b) liability, how wide an opening has the Second Circuit created for consideration of other facts about a transaction’s foreign or domestic nature?

Second, in light of the Second Circuit’s focus on the difference between the conventional securities at issue in Morrison (common stock) and various types of nonconventional securities, how much room exists to argue that the Morrison test is not itself dispositive for transactions involving American Depositary Receipts, derivatives, swaps, etc.?

Third, the Second Circuit did not express any opinion on the district court’s use of an “economic reality” test to analyze whether § 10(b) should apply to U.S. transactions in securities that reference foreign securities listed only on foreign exchanges. The decision thus does not resolve whether the economic-reality analysis is consistent with Morrison.

Fourth, the Second Circuit held that its decision “in no way forecloses the application of § 10(b) to govern fraud in connection with securities-based swap agreements where the transactions are domestic and where the defendants are alleged to have sufficiently subjected themselves to the statute” (emphasis added). Will this language be used to distinguish sponsored ADRs from unsponsored ADRs (which can be issued by U.S. depositary institutions without the foreign issuer’s involvement or even consent)?

Fifth, the Second Circuit took a passing swipe at Congress’s apparent effort in the Dodd-Frank Act to partially overturn the Morrison case by reinstating the conduct/effects tests in actions brought by the SEC or the United States (but not by private plaintiffs). The Act gives federal courts “jurisdiction” over cases involving significant U.S.-based conduct or substantial effects within the United States. However, as Morrison held, the scope of the Exchange Act’s extraterritorial effect is not a jurisdictional issue; it involves a substantive element of the claim. The Second Circuit therefore characterized “the import of this amendment [as] unclear.” Does the Second Circuit mean to suggest that the amendment might not have accomplished what Congress presumably intended to do for actions brought by the Government?

Originally published by Proskauer’s Securities Litigation Practice Group on August 18, 2014. Proskauer’s analysis of this case was also published by BNA Bloomberg’s World Securities Law Report and the Harvard Law School Forum on Corporate Governance and Financial Regulation.

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Photo of Jonathan Richman Jonathan Richman

Jonathan Richman represents a variety of companies in securities class actions, shareholder derivative actions, internal investigations, SEC investigations, corporate governance, insider trading, D&O insurance and related matters. Many of those matters involve international elements, including representations of non-U.S. issuers in U.S. litigation and…

Jonathan Richman represents a variety of companies in securities class actions, shareholder derivative actions, internal investigations, SEC investigations, corporate governance, insider trading, D&O insurance and related matters. Many of those matters involve international elements, including representations of non-U.S. issuers in U.S. litigation and in landmark non-U.S. collective settlements under Dutch law in the Netherlands. Jonathan’s clients have included Hewlett Packard, Royal Dutch/Shell, Zurich Insurance Group, Halliburton, Waste Management, and Bed Bath & Beyond.

Jonathan writes extensively on topics ranging from securities and insider-trading law, corporate governance and fiduciary issues to non-U.S. law on collective actions. His articles have been published in major legal publications.

Jonathan is the past co-head of the Firm’s Securities Litigation Group.

Class Action and SEC Enforcement Experience

  • Royal Dutch/Shell
  • Global Crossing
  • Waste Management
  • Zurich Insurance Group
  • Vestas Wind Systems A/S (class action only)
  • JBS S.A. (class action only)
  • Henry Schein, Inc. (class action only)
  • YRC Worldwide Inc. (class action only)
  • Bed Bath & Beyond Inc. (class action only)
  • Roka Bioscience, Inc. (class action only)
  • Fifth Street (class action only)
  • Vida Longevity Fund (class action only)
  • Former CEO of Lumber Liquidators (class action only)
  • Individual defendant in Third Avenue securities class actions
  • American General (class action only)
  • Metropolitan Life (class action only)
  • New York Life (class action only)
  • Leucadia/Jefferies merger litigation (class action only)
  • Realty Income/American Realty merger litigation (class action only)
  • ARCP/ARCT III merger litigation (class action only)
  • Aberdeen/Artio merger litigation (class action only)
  • PhotoMedex/LCA-Vision merger litigation (class action only)
  • RCS Capital/Summit Financial merger litigation (class action only)
  • First American/First Advantage merger litigation (class action only)
  • SEC inquiry involving CMBS servicing
  • SEC inquiry involving issuer’s confidentiality notice for internal investigations
  • Various SEC, CFTC, and FINRA inquiries involving trading issues

Shareholder Derivative Litigation

  • Hewlett-Packard
  • Royal Dutch/Shell
  • Brocade Communications Systems, Inc.
  • Halliburton Company
  • Waste Management, Inc.
  • Henry Schein, Inc.
  • YRC Worldwide Inc.
  • Bed Bath & Beyond Inc.
  • Fifth Street
  • Vida Longevity Fund
  • Former CEO of Lumber Liquidators
  • Individual defendant in Third Avenue derivative litigation

Department of Justice Proceedings

  • Royal Dutch/Shell
  • Global Crossing
  • Property and casualty insurers


  • Advising outside directors of for-profit educational institution on litigation and regulatory investigations
  • Providing advice and training sessions for clients on insider-trading issues
  • Representing Financial Oversight and Management Board for Puerto Rico in pending litigation arising from Puerto Rico bankruptcy


  • Author, “Court Preliminarily Enjoins Florida’s ‘Stop Woke Act,’” National Law Review (Aug. 22, 2022)
  • Author, “Blockchain Meets Morrison:  Court Rejects Blockchain Class Settlement Because of Concerns About Adequacy of Representation,” National Law Review (Aug. 16, 2022)
  • Author, “Delaware Supreme Court Allows Use of ‘Reliable’ Hearsay to Support Books-and-Records Demand,” National Law Review (July 20, 2022)
  • Author, “Divided Delaware Supreme Court Decision Highlights Issues About Director Independence in Derivative Actions,” National Law Review (June 30, 2022)
  • Author, “Second Circuit Reverses Dismissal of Securities Claim Alleging Failure to Disclose SEC Investigation,” National Law Review (May 25, 2022)
  • Author, “Ninth Circuit Upholds Delaware-Forum Bylaw That Precludes Assertion of Federal Proxy Claim,” National Law Review (May 13, 2022)
  • Co-author, “SEC Defeats Motion to Dismiss Insider Trading Complaint Alleging Novel ‘Shadow Trading’ Theory, The Corporate Lawyer, vol. 59, no. 3 (Feb. 2022), at 1
  • Co-author, “Seventh Circuit Reverses Dismissal of Derivative Action Based on Forum Clause as Applied to Federal Claim,” National Law Review (Jan. 21, 2022)
  • Author, “California Federal Court Holds U.S. Securities Laws Inapplicable to Unsponsored, Unlisted ADR Transaction Preceded by Purchase of Common Stock Outside the U.S.,” National Law Review (Jan. 10, 2022)
  • Co-author, “SEC Pursues ‘Shadow Trading’ Insider Trading Case,” Corporate Governance Advisor, vo. 29, no. 6 (Nov./Dec. 2021), at 29
  • Co-author, “SEC Investor Advisory Committee Considers Recommendations to Tighten Rules for Insiders’ Trading Plans,” National Law Review (Sept. 7, 2021)
  • Author, “Second Circuit Holds that Accurately Reported Financial Statements Are Not Actionable and that Materiality Has a Half-Life,” National Law Review (Aug. 27, 2021)
  • Author, “First Circuit Adopts Prevailing Standard for Applicability of Federal Securities Laws to Foreign Investors, But Rejects Second Circuit’s Narrower Test,” National Law Review (May 11, 2021)
  • Author, “Second Circuit Upholds Insider Trading Conviction, Finding Sufficient Confidentiality Duty and Personal Benefit,” National Law Review (Apr. 7, 2021)
  • Co-author, “Second Circuit Reaffirms that Federal Securities Laws Do Not Apply to Predominantly Foreign Transactions,” National Law Review (Jan. 26, 2021)
  • Author, “Corporate Scienter Requires Link Between Employees with Knowledge and the Alleged Misstatements,” National Law Review (May 26, 2020)
  • Author, “Delaware Supreme Court Rules that Corporate Charters Can Require Litigation of Federal Securities Act Claims in Federal Court,” National Law Review (Mar. 18, 2020)
  • Author, “California Federal Court Holds that U.S. Securities Laws Apply to Unsponsored, Unlisted ADRs,” National Law Review (Jan. 30, 2020)
  • Author, “Second Circuit Holds that a ‘Personal Benefit’ Is Not Required for Insider Trading Under Criminal Securities Statute,” National Law Review (Jan. 2, 2020)
  • Co-author, “When Passive Investors Drift into Activist Status,” CCR Corp. Deal Lawyers (Nov.-Dec. 2019)
  • Author, “Delaware Supreme Court Rejects Presumption of Confidentiality for Books-and-Records Productions,” National Law Review (Aug. 8, 2019)
  • Author, “Supreme Court Raises Questions About Private Rights of Action Under § 14 of Securities Exchange Act,” National Law Review (Apr. 24, 2019)
  • Author, “Second Circuit Rejects Securities Claims Based on Generic Statements About Ethics and Compliance,” Securities Reform Act Litigation Reporter, vol. 47, no. 1 (April 2019), at 54
  • Author,” Supreme Court Holds that Persons Who Do Not ‘Make’ Misstatements Can Nevertheless Be Liable for Other Securities-Fraud Violations,” National Law Review (Mar. 29, 2019)
  • Author, “The importance of documenting corporate actions: Delaware Supreme Court requires production of emails in books-and-records request,” Westlaw Journal Mergers & Acquisitions (Feb. 2019)
  • Author, “First Appellate Decision Holds that SEC Can Bring Extraterritorial Enforcement Action Based on Conduct or Effects in United States,” National Law Review (Jan. 24, 2019)
  • Author, “Insider Trading for Dummies: Judge Rakoff Tries to Simplify the Law,” National Law Review (Dec. 10, 2018)
  • Co-author, “Fortis Case Confirms Viability of Dutch Settlement Law,” Law360 (July 27, 2018) (with Professor Ianika Tzankova)
  • Author, “Second Circuit Again Holds That Tipper/Tippee Liability Can Arise from a Gift of Inside Information Even Without a Close Personal Relationship,” National Law Review (June 29, 2018)
  • Author, “Supreme Court Rules That Federal Courts Are Not Bound to Give Conclusive Effect to Foreign Governments’ Statements About Their Laws,” National Law Review (June 14, 2018)
  • Author, “Supreme Court Prohibits Stacking of Successive Class Actions Beyond Limitations Period,” National Law Review (June 14, 2018)
  • Author, “Supreme Court Rules That State Courts Can Adjudicate Class Actions Under the Securities Act of 1933,” Securities Arbitration Commentator (April 11, 2018)
  • Author, “Fourth Circuit Upholds Disclosure of Government Subpoena as Evidence of Loss Causation,” National Law Review (Feb. 24, 2018)
  • Author, “Revisiting Preclusion Principles in Derivative Actions,” Law360 (July 28, 2017)
  • Author, “Second Circuit Requires Increased Scrutiny of Securities Class Actions Involving Off-Exchange Transactions,” National Law Review (July 8, 2017)
  • Author, “Dutch Court Denies Approval of Collective Settlement Unless Changes Are Made as to Allocation of Compensation and Fees,” National Law Review (June 19, 2017)
  • Author, “Utah Court Bites Bullet with Dodd-Frank Jurisdiction Ruling,” Law360 (Apr. 13, 2017)
  • Author, “Non-Use Agreement Need Not Precede Disclosure of Confidential Information,” National Law Review (March 21, 2017)
  • Author, “Watch the Napkin: First Circuit Affirms Insider-Trading Conviction,” National Law Review (Feb. 28, 2017)
  • Author, “Dueling Shareholder Class Actions Could Raise Due Process Issues,” Law360 (Jan. 30, 2017)
  • Author, “Supreme Court Reaffirms Personal-Benefit Requirement for Insider Trading,” WestLaw Journal: Securities Litigation & Regulation and WestLaw Journal: White-Collar Crime (Dec. 22, 2016)
  • Author, “Rakoff Addresses Tippee Liability in SEC v. Payton,” Law360 (Dec. 2, 2016)
  • Author, “Dutch Collective Actions vs. Collective Settlements,” National Law Review (Oct. 18, 2016)
  • Author, “Judgment Recognition and the Reach of US Securities Laws,” Law360 (Oct. 3, 2016)
  • Author, “Executives Face SOX Disgorgement Uncertainty After Jensen,” Law360 (Sept. 8, 2016)
  • Author, “Wine, Steak and a Taste of the ‘Personal Benefit’ Tension,” Law360 (June 6, 2016)
  • Author, “Proskauer Explains Supreme Court’s Clarification of Jurisdiction Under Securities Exchange Act,” The CLS Blue Sky Blog (May 24, 2016)
  • Author, “Second Circuit Reinforces Liability Standard in Securities Cases Based on Statements of Opinion,” Business Law Today (Mar. 2016)
  • Author, “The Netherlands Returns as a Collective Settlement Forum,” Law360 (Mar. 15, 2016)
  • Author, “How Morrison v. Australia Bank Was Applied in Petrobras,” Law360 (Feb. 16, 2016)
  • Author, “New York Court Certifies Classes in Petrobras Securities Litigation,” National Law Review (Feb. 3, 2016)
  • Author, “Delaware Court of Chancery Rejects Another Disclosure-Only M&A Settlement and Warns of ‘Increasingly Vigilant’ Scrutiny,” National Law Review (Jan. 25, 2016)
  • Author, “What To Expect from High Court’s New Insider Trading Case,” Law360 (Jan. 19, 2016)
  • Author, “Second Circuit Upholds Common-Interest Privilege for Borrower’s Sharing of Legal Advice with Consortium of Lenders,” Transaction Advisors (Dec. 2015)
  • Author, “What Jarkesy Means for SEC Admin Court Challenges,” Law360 (Sept. 30, 2015)
  • Author, “A Farewell to Alms? Peppercorn Settlements of M&A Litigation,” National Law Review (Sept. 21, 2015)
  • Author, “Seventh Circuit Rejects Court Challenge to Pending SEC Administrative Proceeding,” com (Aug. 27, 2015)
  • Author, “9th Circuit Rebuffs Newman,” Law360 (July 8, 2015)
  • Author, “Proskauer Discusses Supreme Court’s Omnicare Decision, Clarifying Liability for Statements of Opinion in Registration Statements,” The CLS Blue Sky Blog (Mar. 24, 2015)
  • Author, “U.S. Appeals Court Rejects Bright-Line Test for Extraterritorial Reach of U.S. Securities Laws,” Bloomberg BNA World Securities Law Report, vol. 20, no. 9 (Sept. 2014)
  • Author, “Whistleblower Anti-Retaliation Provision Does Not Apply Outside the U.S.,” Westlaw Journal Securities Litigation & Regulation, vol. 20, issue 9 (Sept. 4, 2014)
  • Author, “So Much for Bright-Line Tests on Extraterritorial Reach of US Securities Laws?,” Harvard Law School Forum on Corporate Governance and Financial Regulation (Sept. 2, 2014)
  • Co-author, “Defending Directors: Cram Sheet,” Wolters Kluwer Law & Business (October 23, 2012)
  • Author, “Delaware Chancery Court Issues Decision on Collateral Estoppel in Derivative Suits,” Westlaw Journal Delaware Corporate, vol. 26, issue 25 (June 25, 2012)
  • Author, “SEC Issues Report on Extraterritorial Reach of U.S. Securities Laws,” VCExperts on-line publication (June 2012)
  • Co-author, “Fraud? Foreign Purchase? Forget It! ‘Foreign-Cubed’ and Other Foreign-Issuer Cases After Morrison,” of Secs. & Commodities Reg., vol. 44, no. 4 (Feb. 23, 2011)
  • Author, “Supreme Court Clarifies Statute of Limitations in Securities-Fraud Actions,” Derivatives Financial Prods. Rpt., 11, no. 10, at 23 (June 2010)
  • Author, “Transnational Class Actions and Judgment Recognition,” Class Action Litigation Report (June 25, 2010)
  • Co-author, “Pushing the Limits of U.S. Securities Laws: ‘Foreign-Cubed’ (‘F-Cubed’) Cases,” 42 SRLR 10 (March 8, 2010)
  • Co-author, “Assignees Have Discovery Obligations When Asserting Assignors’ Claims,” Journal of Payment Systems Law (June/July 2005)
  • “Punitive Damages: Past, Present and Future,” International Commercial Litigation (July/August 1995)
  • Co-author and editor, Takeovers: Attack and Survival (1987)
  • Co-author, “New Life for State Takeover Statutes?,” New York Law Journal (July 27, 1987)
  • Co-author, “Damages in Defamation Actions,” Damages in Tort Actions (1985)
  • “Facial Adjudication of Disciplinary Provisions in Union Constitutions,” Yale Law Journal (1981)


  • Practising Law Institute: “ESG 2022: What It Means for Boards, Management, and Counsel” (June 1, 2022) (full-day program; program co-chair and panel chair)
  • Practising Law Institute: “ESG 2021: What It Means for Boards, Management, and Counsel” (webcast, June 24, 2021) (full-day program; program co-chair and panel chair)
  • Practising Law Institute: “ESG 2020: What It Means for Boards, Management, and Counsel) (webcast, July 24, 2020) (full-day program; program co-chair and panel chair)
  • Practising Law Institute: “ESG and Promoting Corporate Sustainability” (New York, June 25, 2019) (full-day program; program chair and panel chair)
  • The Mason Judicial Education Program, Symposium for Judges: Securities Class Action Litigation (Arlington, VA, May 5, 2019)
  • The Mason Judicial Education Program, Symposium for Judges: The Economics of Corporate & Securities Law (San Diego, April 12-14, 2018)
  • ABA Section of Litigation: “Recent Developments in Securities Class Actions” (webinar, May 11, 2017)
  • Professional Liability Underwriters Society D&O Symposium: “Behaving Badly: The Non-U.S. Corporate Scandal Wave” (New York, February 9, 2017)
  • New York State Bar Association International Section: “Hot Topics in Cross-Border Securities Litigation” (São Paulo, October 16, 2015)
  • Proskauer Hedge-Fund Breakfast Seminar on Insider Trading (New York, Feb. 5, 2015)
  • CLE International’s 9th Annual Class Action Conference: “Collective Proceedings Abroad: Evolving Approaches & Attitudes” (Washington, D.C., October 2013)
  • Practising Law Institute: “Handling a Securities Case: From Investigation to Trial and Everything in Between” (New York, April 2012)
  • Institutional Investor Educational Foundation: Corporate Governance Roundtable Forum (New York, December 2011)
  • Institutional Investor Educational Foundation Amsterdam Roundtable: “The Netherlands and the Future of European Securities Litigation” (The Hague, September 2011)
  • Summer Institute on Law & Government, American Univ. Washington College of Law: “Securities Class Actions – An Update” (Washington, D.C., June 2010)
  • ABA Section on Litigation Annual Conference: “Global Class Actions: Lasting Peace or Ticking Time Bombs?” (New York, April 2010)