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Extraterritorial Application of the Securities Fraud Statute
In the era of global and relatively borderless business transactions, the federal government's reach in pursuing wrongdoing that occurs outside the United States is particularly relevant to white-collar practitioners. A recent decision from the U.S. Court of Appeals for the Second Circuit limits the government's ability to prosecute securities fraud to those cases involving a domestic security, defined as a security listed on an American exchange or purchased or sold in the United States. Although the defense bar undoubtedly welcomed the decision, it has spawned a number of significant questions, including whether the rule against the presumption of extraterritoriality applies to other criminal statutes; whether and how foreign conduct can be considered at sentencing; and whether recent legislation preempts the decision.'
United States v. Vilar
In United States v. Vilar, 729 F.3d 62 (2d Cir. 2013), the Second Circuit considered the appeals of Alberto Vilar and Gary Alan Tanaka, investment managers and advisers who were convicted of securities fraud for lying to clients about the nature and quality of certain investments. From 1986 through 2005, Vilar and Tanaka offered clients the opportunity to invest in “Guaranteed Fixed Rate Deposit Accounts” (GFRDAs), promising investment in high-quality, short-term deposits. In fact, Vilar and Tanaka invested all of the GFRDA funds received from clients in emerging growth stocks in the technology and biotechnology sectors, which dropped dramatically when the dot-com bubble burst in the fall of 2000. The defendants subsequently misappropriated client money to cover losses and to meet various personal and corporate obligations.'
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