Securities & Exchange Commission v. Eurobond Exchange, Ltd.

25 Citing cases

  1. De Wit v. Firstar Corp.

    879 F. Supp. 947 (N.D. Iowa 1995)   Cited 81 times
    Holding that is not sufficient to control even fraudulent activity that is ancillary to the fraud carried out by the RICO enterprise and thus, "even provision of services essential to the operation of the RICO enterprise itself is not the same as participating in the conduct of the affairs of the enterprise."

    The definition of a "security" for the purposes of federal securities regulations is found in § 2(1) of the Securities Act of 1933, 15 U.S.C. § 77b(1), and in § 3(10) of the Securities Exchange Act of 1934, 15 U.S.C. § 78c(a)(10). Teague v. Bakker, 35 F.3d 978, 986 (4th Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1107, 130 L.Ed.2d 1073 (1995); SEC v. Eurobond Exchange, Ltd., 13 F.3d 1334, 1338 (9th Cir. 1994); Stone, 8 F.3d at 1084-85 (discussing only § 78c(a)(10)); Resolution Trust Corp. v. Stone, 998 F.2d 1534, 1537 (10th Cir. 1993) (hereinafter "RTC") (discussing only § 77b(1)); Holden v. Hagopian, 978 F.2d 1115, 1118 (9th Cir. 1992).

  2. DeWit v. Firstar Corp.

    904 F. Supp. 1476 (N.D. Iowa 1995)   Cited 47 times
    Noting that general allegations of multiple instances of fraud, but failure to identify which plaintiffs were contacted or defrauded in what way, and lack of time, place, and content of the messages, was insufficient to plead fraud

    Plaintiffs have also attempted to meet the "common enterprise" element of the Howey test by repleading allegations of vertical commonality. Although the plaintiffs explicitly plead that plaintiffs' fortunes were tied either to Morken's efforts or to his fortunes, see Second Amended Complaint, ¶¶ 47.g. i. ¶¶ 110-113, the standards for finding vertical commonality, see Revak, 18 F.3d at 88, S.E.C. v. Eurobond Exchange, Ltd., 13 F.3d 1334, 1339 (9th Cir. 1994), these conclusory allegations are unwarranted factual inferences or legal conclusions in light of the facts actually pleaded in the second amended complaint. Westcott, 901 F.2d at 1488.

  3. United States v. Keys

    95 F.3d 874 (9th Cir. 1996)   Cited 34 times
    Holding that court should review for reversible error rather than plain error where the "solid wall" of authority has been overturned since trial and contemporaneous objection would have been pointless

    United States v. Khan, 993 F.2d 1368, 1373 (9th Cir. 1993) (citations, internal quotations omitted). In Securities Exchange Commission v. Eurobond Exchange, Ltd., 13 F.3d 1334 (9th Cir. 1994), this court held that the specialty defense is one of personal, rather than subject matter jurisdiction, and further held that a defendant who had failed to raise the defense in his answer had waived it. Id. at 1337.

  4. U.S. v. Baramdyka

    95 F.3d 840 (9th Cir. 1996)   Cited 282 times
    Holding that a valid waiver of the right to appeal the defendant's conviction and sentence applied to his challenge to the district court's purported lack of personal jurisdiction over him

    United States v. Khan, 993 F.2d 1368, 1373 (9th Cir. 1993) (citations, internal quotations omitted). In Securities Exchange Commission v. Eurobond Exchange, Ltd., 13 F.3d 1334 (9th Cir. 1994), this court held that the specialty defense is one of personal, rather than subject matter jurisdiction, and further held that a defendant who had failed to raise the defense in his answer had waived it. Id. at 1337.

  5. United States v. Lazarevich

    147 F.3d 1061 (9th Cir. 1998)   Cited 29 times
    Finding the evidence in equipoise, the district judge was required to rule against the defendant

    Protection of the doctrine of specialty "exists only to the extent that the surrendering country wishes." SEC v. Eurobond Exchange, Ltd., 13 F.3d 1334, 1337 (9th Cir. 1993) (quoting United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir. 1986)). Lazarevich was neither detained nor tried on child abduction charges.

  6. U.S. v. Saccoccia

    18 F.3d 795 (9th Cir. 1994)   Cited 37 times   1 Legal Analyses
    Declining jurisdiction over an interlocutory appeal from a motion to dismiss an indictment where the appeal was based on a claim that the defendant's extradition violated the doctrine of specialty, doctrine of dual criminality, and pertinent extradition treaty

    Further, courts have consistently analyzed alleged extradition treaty violations as jurisdictional challenges.See United States v. Alvarez-Machain, ___ U.S. ___, ___, 112 S.Ct. 2188, 2190, 119 L.Ed.2d 441 (1992) (deciding whether alleged violation of an extradition treaty divested the district court of jurisdiction); SEC v. Eurobond Exchange, Ltd., 13 F.3d 1334, 1336 (stating that "[t]he purpose of the extradition process is to obtain a court's personal jurisdiction over a defendant"). This includes alleged violations of the doctrines of dual criminality and specialty.

  7. S.E.C. v. Marimuthu

    552 F. Supp. 2d 969 (D. Neb. 2008)

    "The protection of the rule of specialty exists only to the extent that the surrendering country wishes." S.E.C. v. Eurobond Exchange, Ltd., 13 F.3d 1334, 1337 (9th Cir. 1994) (citing United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir.) (per curiam), cert. denied, 479 U.S. 1009 (1986)). In Eurobond Exchange, the office in the Swiss government responsible for international extradition cases represented to the United States Department of Justice that the rule of specialty contained in its extradition treaty did not prohibit a civil enforcement action filed by the SEC. The Eurobond Exchange court found that because the extraditing country affirmatively stated that the treaty did not apply to the civil matter, "as a matter of international comity a trial in this civil matter will not offend the Swiss."

  8. Securities and Exchange Commission v. Life Partners, Inc.

    898 F. Supp. 14 (D.D.C. 1995)   Cited 4 times

    Such risks are sufficient to meet the test for vertical commonality. S.E.C. v. Eurobond Exch. Ltd., 13 F.3d 1334, 1340 (9th Cir. 1994). LPI investments constitute a "common enterprise" under Howey.

  9. United States v. Alagbada

    No. 21-1079 (3d Cir. Jun. 2, 2022)

    We therefore lack jurisdiction over an interlocutory appeal to the extent it challenges the propriety of an extradition.S.E.C. v. Eurobond Exch., Ltd., 13 F.3d 1334, 1337 (9th Cir. 1994); see also United States v. Isaac Marquez, 594 F.3d 855, 858 (11th Cir. 2010) ("The extradition process, however, is the means by which a requesting country obtains personal jurisdiction over the defendant."); United States v. Vreeken, 803 F.2d 1085, 1088 (10th Cir. 1986) ("the extradition process is one whereby a court gains personal jurisdiction over a defendant"). United States v. Saccoccia, 18 F.3d 795, 800-01 (9th Cir. 1994)

  10. Living Benefits Asset Mgmt., L.L.C. v. Kestrel Aircraft Co. (In re Living Benefits Asset Mgmt., L.L.C.)

    916 F.3d 528 (5th Cir. 2019)   Cited 7 times
    Noting that, under 15 U.S.C. § 80b-3, "[t]he IAA prohibits unregistered investment advisers from using the instrumentalities of interstate commerce ‘in connection with’ their businesses" and, under § 80b-15(b), " contract made in violation of the IAA is void as to the unregistered adviser"

    Other circuits apply one or both of two more restrictive tests: horizontal commonality, under which a class of investors must share equally in the risk such that their investments rise and fall together, or strict vertical commonality, under which the investor and the promoter must share equally in the risk.Compare Goldberg v. 401 N. Wabash Venture LLC , 755 F.3d 456, 465 (7th Cir. 2014) (applying horizontal commonality); SEC v. SG Ltd. , 265 F.3d 42, 50 (1st Cir. 2001) (same); SEC v. Infinity Grp. Co. , 212 F.3d 180, 187-88 (3d Cir. 2000) (same); SEC v. Banner Fund Int'l , 211 F.3d 602, 614-15 (D.C. Cir. 2000) (same); Teague v. Bakker , 35 F.3d 978, 986 n.8 (4th Cir. 1994) (same); Revak v. SEC Realty Corp. , 18 F.3d 81, 87 (2d Cir. 1994) (same); Hocking v. Dubois , 885 F.2d 1449, 1459 (9th Cir. 1989) (en banc) (same); and Deckebach v. La Vida Charters, Inc. of Fla. , 867 F.2d 278, 281 (6th Cir. 1989) (same), with SEC v. Eurobond Exch., Ltd. , 13 F.3d 1334, 1339-40 (9th Cir. 1994) (applying strict vertical commonality as alternative to horizontal commonality). See generally Maura K. Monaghan, Note, An Uncommon State of Confusion: The Common Enterprise Element of Investment Contract Analysis , 63 Fordham L. Rev. 2135, 2152-63 (1995) (discussing circuit split).