New Circuit Split Complicates Domestic Securities Test

Law360 (May 25, 2021, 4:32 PM EDT) -- Two recent holdings have cemented a circuit split regarding one key issue: whether the Second Circuit's "predominantly foreign" test in its 2014 decision in Parkcentral Global Hub Ltd. v. Porsche Automobile Holdings SE[1] is an additional hurdle that plaintiffs must satisfy to demonstrate that a transaction is domestic under the second prong[2] in the U.S. Supreme Court's 2010 decision in Morrison v. National Australia Bank Ltd., even if they meet the traditional irrevocable liability test.

The implications of this circuit split are important, as plaintiffs are undoubtedly aware of the inherent vagueness of the Parkcentral inquiry and the relative clarity of the...

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