Martin Flumenbaum, left, and Brad S. Karp Conduct-and-Effects by Another Name: The Second Circuit and Extraterritoriality Analysis
Circuit Judges Michael H. Park, Rosemary S. Pooler, and Eunice Lee unanimously concluded that the claims asserted by a plaintiff who traded on a U.S.-based exchange were nevertheless impermissibly extraterritorial because they were based on "predominantly foreign conduct," i.e., the bank defendants' allegedly fraudulent submissions to the foreign organizations that set the relevant benchmark rates.
December 27, 2022 at 10:00 AM
8 minute read
The U.S. Court of Appeals for the Second Circuit recently held that the Commodity Exchange Act (CEA) does not apply to certain futures contracts tied to two foreign currency benchmark rates known as Yen-LIBOR and Euroyen TIBOR. See Laydon v. Coöperatieve Rabobank U.A., 2022 WL 17491341 (2d Cir. Oct. 18, 2022), amended (2d Cir. Dec. 8, 2022). In that decision, Circuit Judges Michael H. Park, Rosemary S. Pooler, and Eunice Lee unanimously concluded that the claims asserted by a plaintiff who traded on a U.S.-based exchange were nevertheless impermissibly extraterritorial because they were based on "predominantly foreign conduct," i.e., the bank defendants' allegedly fraudulent submissions to the foreign organizations that set the relevant benchmark rates.
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