Sam Bankman-Fried, co-founder of FTX Cryptocurrency Derivatives Exchange, departs from court in New York, US, on Thursday, Dec. 22, 2022. Bankman-Fried was released on a $250 million bail package after making his first US court appearance to face fraud charges over the collapse of FTX, the cryptocurrency exchange he co-founded. Photo: Stephanie Keith/Bloomberg Extraterritorial Fraud: When Can the Government Sue?
The bottom line is that extraterritoriality in regulatory cases appears to lie today largely in the eye of the beholder. All that a judge has to assert is that some conduct by a person in the United States was "integral" to the fraud.
January 18, 2023 at 11:00 AM
13 minute read
Fraud has a tendency to ooze across borders, and fraudsters often locate in the jurisdiction of greatest laxity. This sets up an inevitable tension between prosecutorial zeal and legal doctrine. As most practitioners well know, U.S. law mandates a strong presumption against the extraterritorial application of a U.S. statute to foreign conduct. Since Morrison v. Nat'l Australia Bank, Ltd., 561 U.S. 247 (2010), this has been the law, and it has been enforced fairly strictly in cases involving private litigation. But once we move to the public enforcement arena, outcomes become less predictable.
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