In an opinion issued last week, Judge Kaplan denied a motion for partial summary judgment on certain civil claims brought by the SEC. The defendants, investment advisers with foreign clients, argued that the SEC could not prove that the transactions complained of were domestic and that the pertinent statutes did not apply under the Supreme Court’s decision in Morrison v. National Australia Bank. Judge Kaplan disagreed, finding that the location of the client was not the proper question; instead, following a recent Second Circuit decision (Absolute Acvitist Value Master Fund v. Ficeto), the determining factor is whether “the parties incur irrevocable liability to carry out the transaction within the United States or when title is passed within the United States.”
In addition, Judge Kaplan joined a “nascent consensus” in the Southern District in construing the Morrison holding — which applied only to Exchange Act claims — to Securities Act claims as well. Judge Kaplan, citing the recent ruling by Judge Sweet in SEC v. Gruss (which we reported on in the past), also extended that reasoning to claims under the Investment Advisers Act.