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Archive for December 1st, 2009

The United States Supreme Court has granted certiorari to review the Second Circuit’s decision in the “foreign-cubed” securities class action Morrison v. National Australia Bank, Ltd., No. 07-0583-cv (2d Cir. 2008).  The Second Circuit’s decision is discussed at some length in this October 28, 2008 CAB Entry.  The Supreme Court docket number is 08-1191

The questions presented for review are as follows: 

I. Whether the antifraud provisions of the United States securities laws extend to transnational frauds where: (a) the foreign-based parent company conducted substantial business in the United States, its American Depository Receipts were traded on the New York Stock Exchange and its financial statements were filed with the Securities Exchange Commission (“SEC”); and (b) the claims arose from a massive accounting fraud perpetrated by American citizens at the parent company’s Florida-based subsidiary and were merely reported from overseas in the parent company’s financial statements. 

II. Whether this Court, which has never addressed the issue of whether subject matter jurisdiction may extend to claims involving transnational securities fraud, should set forth a policy to resolve the three-way conflict among the circuits (i.e., District of Columbia Circuit versus the Second, Fifth and Seventh Circuits versus the Third, Eighth and Ninth Circuits). 

III. Whether the Second Circuit should have adopted the SEC’s proposed standard for determining the proper exercise of subject matter jurisdiction in transnational securities fraud cases, as set forth in the SEC’s amicus brief submitted at the request of the Second Circuit, and whether the Second Circuit should have adopted the SEC’s finding that subject matter jurisdiction exists here due to the “material and substantial conduct in furtherance of” the securities fraud that occurred in the United States. 

 

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Labor and employment attorney and fellow Baker Hostetler partner, Todd Lebowitz, sent me a helpful reminder today about changes to the time calculation rules and time periods in the Federal Rules of Civil Procedure, Criminal Procedure, and Bankruptcy Procedure.  There are some significant changes, including:
  • All dates are now calculated by counting all calendar days, not just business days, even if the time period being measured is ten days or shorter. 
  • Three days are still added for service, and the due date still skips to the next business day if it falls on a weekend or holiday, but there is no more skipping of interim weekends and holidays when counting days. 
  • The new time periods are generally multiples of seven, such as 21 days to answer a complaint, 21 days to respond to MSJ, 14 days to reply to MSJ response.
The changes apply to all cases filed after today and, “insofar as just and practicable, all proceedings [already] pending.”  Here is some further info and helpful links from the uscourts.gov website:

Rules Amendments Effective 12/1/09

Congress has taken no action on the amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure, approved by the Supreme Court on March 26, 2009, which include revisions of time periods in 91 rules. The following amendments to the rules on the computation of time therefore will take effect on December 1, 2009:

  • Appellate Rules 4, 5, 6, 10, 12, 15, 19, 25, 26, 27, 28.1, 30, 31, 39, and 41;
  • Bankruptcy Rules 1007, 1011, 1019, 1020, 2002, 2003, 2006, 2007, 2007.2, 2008, 2015, 2015.1, 2015.2, 2015.3, 2016, 3001, 3015, 3017, 3019, 3020, 4001, 4002, 4004, 6003, 6004, 6006, 6007, 7004, 7012, 8001, 8002, 8003, 8006, 8009, 8015, 8017, 9006, 9027, and 9033;
  • Civil Rules 6, 12, 14, 15, 23, 27, 32, 38, 50, 52, 53, 54, 55, 56, 59, 62, 65, 68, 71.1, 72, 81; Supplemental Rules B, C, and G; and Illustrative Civil Forms 3, 4, and 60; and
  • Criminal Rules 5.1, 7, 12.1, 12.3, 29, 33, 34, 35, 41, 45, 47, 58, and 59; Rule 8 of the Rules Governing Section 2254 Cases in the United States District Courts; and Rule 8 of the Rules Governing Section 2255 Proceedings for the United States District Courts.

The following non-time computation amendments and new rules under the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure will also take effect on December 1, 2009:

  • Appellate Rules 4, 22, 26, and new Rule 12.1;
  • Bankruptcy Rules 2016, 4008, 7052, 9006, 9015, 9021, 9023, and new Rule 7058;
  • Civil Rules 13, 15, 48, and 81, and new Rule 62.1; and
  • Criminal Rules 7, 32, 32.2, and 41; Rule 11 and new Rule 12 of the Rules Governing Section 2254 Cases in the United States District Courts; and Rule 11 of the Rules Governing Section 2255 Proceedings for the United States District Courts.

In accordance with 28 U.S.C. § 2074(a) and the March 26, 2009, Supreme Court orders, they will govern all proceedings commenced on or after December 1, 2009, and “insofar as just and practicable” all proceedings then pending.

The time-computation changes are intended to make the federal rules on calculating time periods simpler, clearer, and consistent. The principal simplifying innovation is to count all days, including intermediate weekends and holidays, in computing time periods under the procedural rules. The current rules exclude intermediate weekends and holidays for some short time periods, resulting in inconsistency and unnecessary complication. In addition, all the deadlines in the rules were reviewed and most short periods were extended to offset the shift in the time-computation rules and to ensure that each period is reasonable.

Further information on the time-computation rules amendments and parallel changes to certain statutory time periods affecting court proceedings can be found in the excerpt reports of the Rules Committees, which are posted on the Rules web site at http://tiny.cc/2QZB2 and at http://www.uscourts.gov/rules/HR1626.pdf. Separate PowerPoint presentations, which you may find helpful, explaining the amended time-computation rules and their operation in appellate, bankruptcy, and district court proceedings are posted at http://tiny.cc/5GEJU.

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