Mere Clearance of a Foreign Stock by a Domestic Clearing Broker Does Not Constitute a Domestic Transaction

The World in U.S. Courts: Spring 2013 - Securities

In re Sanofi-Aventis Securities Litigation (U.S. District Court, S.D.N.Y., Mar. 20, 2013)

The defendant corporation’s common shares were not traded or listed on any domestic exchange. Although the plaintiff in this Securities Exchange Act suit did not dispute that its purchases were made outside of the U.S., it argued that it incurred “irrevocable liability” in the U.S.—and thus U.S. law applied—because the defendant corporation’s common shares are eligible for clearing through a domestic clearing broker and some of the shares purchased were cleared domestically.

A district court in New York held that the point of “irrevocability” occurs at the time and place when the parties enter into a binding contract. Because a trade is cleared only after the parties have agreed to the terms of the trade (price and quantity), the court concluded that the plaintiff’s securities purchases did not constitute domestic transactions covered by the statute.

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