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Transnational Securities Fraud Jurisdiction Under Section 10(b): the Case for a Flexible and Expansive Approach

NCJ Number
132550
Journal
Washington and Lee Law Review Volume: 47 Issue: 3 Dated: (Summer 1990) Pages: 637-661
Author(s)
E D Peterson
Date Published
1990
Length
25 pages
Annotation
The wide variety of factual situations involved in securities fraud that crosses national boundaries has prevented the development of specific tests to determine when the United States properly has jurisdiction and also indicates the need for flexibility and the avoidance of narrowly restrictive jurisdictional tests.
Abstract
The smallest connection to the United States occurs in a case involving parties who are foreign in both citizenship and residence and in which some conduct furthering the fraud occurred in the United States. In contrast, transnational frauds that include conduct in the United States and one party with United States citizenship or residence have a clear connection to the United States. United States jurisdiction and adjudication is important to prospective litigants for several reasons, including the substantive and procedural contrasts between United States and foreign laws. Determining the scope of United States jurisdiction requires a two-step analysis. The first step is to determine whether jurisdiction exists under principles of international law, and the second is to determine whether a United States statute has sufficient jurisdictional scope for the particular dispute. In conducting these analyses, an expansive and flexible approach is the most desirable. Footnotes