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In this issue of GLOBALitigation: USA, viewers will read about recent a U.S. Supreme Court decision directly affecting the investment community, Department of Justice updates on antitrust and cartel issues, implications of transferring documents between foreign and domestic affiliates in civil litigation, little-known but significant foreign witness and pre-trial discovery procedures, foreign website activities and U.S. jurisdictional matters with regard to commerce issues.
| 03/10/08 |
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The Stoneridge Decision: Reliance Returns to 10b-5 Cases
On January 15, 2008, the U.S. Supreme Court handed down its decision in Stoneridge Investment Partners v. Scientific Atlanta, the case which has been called the most important securities law case to reach the Court this decade and "the securities lawyer's Roe v. Wade." While the case had international corporations concerned about its potential to dramatically expand the scope of 10b-5 claims in order to target third parties doing business with public companies in the United States, that concern can now be laid to rest.
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| 03/09/08 |
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U.S. Department of Justice Increases Focus on Foreign Nationals in Antitrust Cases
In January, I attended the International Cartel Workshop sponsored by the ABA Section of Antitrust and the International Bar Association, in San Francisco. One of the more interesting aspects of the program was its focus on the international dimension of most new cartel investigations. The program included enforcement officials and attorneys from many countries.
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| 03/08/08 |
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The Free Flow of Business Records and Information Between Domestic and Foreign Affiliates May Have Unexpected Consequences in the United States
It would be unwise to assume that documents, information and materials in the physical possession of a foreign corporate parent, subsidiary or affiliate of a U.S.-based corporate entity are beyond the reach of civil discovery in the United States. It would also be a mistake to assume that the production of foreign held documents and materials may only be compelled in the United States via compliance with the often complex and time consuming formalities of the Hague Convention. The simple fact is that documents held abroad by corporate parents, subsidiaries or affiliates are subject to production in the United States when it is shown that the documents sought are in the "control" of a U.S.-based entity.
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| 03/07/08 |
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A Cautionary Tale for Foreign Witnesses
Several months ago a judge of the U.S. District Court in New York City imposed sanctions on a prominent international law firm because two of its attorneys attempted in bad faith to dissuade a foreign witness from giving testimony in a U.S. proceeding. The court's opinion highlights some of the difficulties that foreign witnesses may encounter when they become involved in the U.S. legal process without U.S. counsel to advise them.
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| 03/06/08 |
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Exporting U.S. Discovery Abroad
The biggest difference between the U.S. litigation system and practically every other legal system in the world is the broad pre-trial discovery procedures available to the parties in a civil litigation. In a typical U.S. civil litigation, a party can obtain nearly all documents that are arguably relevant to the litigation and take wide ranging depositions (oral testimony under oath outside of court) of the other parties as well as non-party witnesses. However, many are unaware that the U.S. federal courts are authorized to provide the same broad discovery for use in foreign proceedings (including arbitration). A U.S. statute, 28 U.S.C. Sec. 1782 ("Section 1782"), allows a party to obtain documents and depose witnesses from entities and persons located within the United States in connection with a foreign proceeding. A recent U.S. Supreme Court decision provides guidance as to the applicability of Section 1782.
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| 03/05/08 |
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When Does the Website of a Foreign Company Subject It to the Jurisdiction of U.S. Courts?
While the Internet allows companies to expand their market base into other countries with minimal effort, they may not realize that their commerce with customers in the U.S. may subject them to the jurisdiction of the U.S. courts even if they have no other contacts with this country. The law is still developing but the trend is to permit the exercise of jurisdiction over a company whose website allows a buyer to consummate a transaction but not over one whose site is informational only.
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| 03/04/08 |
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Consumer Product Safety Commission FAQ's
Kelley Drye's Consumer Product Safety Practice Group prepared a client advisory providing detailed answers to frequently asked questions about the Consumer Product Safety Commission (CPSC).
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| 03/03/08 |
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Theft of Information and Securities Laws
Partners Alan Kaufman and James Keneally authored an article for the New York Law Journal titled "Theft of Information and Securities Laws." The article analyzes the recent decision in SEC v. Dorozhko, in the United State District Court in the Southern District of New York.
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