In the course of my various foreign travels, I have had occasion to speak to many underwriters and brokers who place D&O insurance for non-U.S. companies whose American Depository Receipts (ADRs) trade in the U.S. There is a pervasive, inexplicable, and mistaken belief among some underwriters and brokers that companies whose Level I ADRs trade in the U.S cannot be subject to a U.S. securities suit. These individuals persist in this error despite the Toshiba case, in which the Ninth Circuit reversed a district court’s dismissal of the securities suit brought by investors in Toshiba’s unsponsored Level I ADRs. Because of the persistence of the error about the potential liability of companies with ADRs trading in the U.S., it is mandatory for every single underwriter or broker who places D&O insurance for a non-U.S. ADR company to read the latest court ruling in the Toshiba case. As discussed below, the U.S. securities lawsuit brought against Toshiba brought by purchasers of the company’s unsponsored Level I ADRs is going forward. 
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As I noted in a recent post, the securities class action lawsuit pending against Toshiba raises the question of whether or not the U.S. securities laws apply to transactions in unsponsored American Depository Receipts (ADRs). The company’s petition to the U.S. Supreme Court posed the larger question of whether there are exceptions to the second-prong of the Morrison standard holding that the U.S. securities laws apply to domestic transactions in securities. A number of organizations and even governments filed amicus briefs urging the Court to take up the case. However, in a June 24, 2019, the Court denied the company’s petition, sending the case back to the lower courts and, as discussed below, leaving behind several unanswered questions.
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I have been fortunate in recent years to be able to travel around the world and to speak to D&O insurance professionals in a wide variety of different countries. One recurring question I get in these meetings has to do with non-U.S. companies that have Level I American Depository Receipts (ADRs) trading in the U.S. The question is usually something along the lines of – “these Level 1 ADR companies don’t have U.S. securities litigation exposure, right?” This question always puzzles me, given the several high profile cases in recent years (discussed below) demonstrating that —  while there may be  an interesting question between sponsored and unsponsored ADRs — transactions in Level 1 ADRs certainly can be subject to the U.S. securities litigation.  
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