In September 2003, George Conway III of Wachtell, Lipton, Rosen & Katz e-mailed colleagues with a head-scratcher about a client matter that had just come in the door. An Australian bank had been hit with a U.S. securities action by Australian plaintiffs on the foundation of shares bought in Australia. “Can they do that???” asked Conway.
This question marked the birth of a case that was destined to sharply curtail the overseas reach of U.S. law: Morrison v. National Australia Bank. The textbook answer when Conway asked it was yes: Given sufficient U.S. effects or conduct, a U.S. court could hear a “foreign-cubed” suit—that is, one brought by foreign plaintiffs against a foreign defendant on the basis of foreign securities.
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