Post-Morrison: The Global Journey Towards Asset Recovery

By Maya Saxena, Kathryn Weidner, and members of the National Association of Public Pension Attorneys (NAPPA) Morrison Working Group Sub-Committee

Six years ago the Supreme Court of the United States, by its decision in Morrison v. National Australia Bank, Ltd., 561 U.S. 247 (2010), launched the institutional investor’s odyssey into the developing world of non-U.S. securities law and regulation. Understanding the implications of Morrison on an investor’s ability to recover assets lost due to the malfeasance of others, NAPPA membership began to develop the tools and identify the resources necessary to conduct appropriate risk/reward analysis with respect to the uncharted waters of foreign securities litigation.

In 2012, members of the National Association of Public Pension Plan Attorneys (“NAPPA”) working group Securities Litigation, Including Remedies Outside the U.S. published “Living in a Post-Morrison World: How To Protect Your Assets Against Securities Fraud.”  The paper was an effort to identify potential means of recovery in the post-Morrison era and served as a first of its kind guide (the Morrison White Paper).

At first, the concept of international securities fraud cases was a novel one.  Foreign securities laws were minimal, and there limited recoveries in non-U.S. jurisdictions.  Fast-forward six years and the landscape has shifted: foreign securities laws have strengthened, major recoveries have been secured, and U.S. institutional investors have participated.  The pace of foreign litigation continues to accelerate as international fraud continues to surface.  Recent cases involve multinational companies committing fraud on a global scale, resulting in unprecedented damage to shareholders.

In light of these developments, the NAPPA Working Group Morrison Sub-Committee set out to revisit international securities litigation in hopes of producing a new resource for institutional investors who are considering this growing landscape.  The Working Group created this paper, which provides the current state of various courts’ interpretation of Morrison; practical considerations for institutional investors when considering foreign actions, the current state of securities laws of 15 foreign jurisdictions; and select foreign case studies which show how some of the first foreign cases have been resolved and highlight those cases to watch.

Saxena White is proud to be among those who contributed to this project. For a full version of the paper, please contact co-author Maya Saxena.