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Federal Issues

Extraterritorial Private Rights of Action, also known as F-Cubed Litigation 

Section 929Y of the Dodd-Frank Wall Street Reform and Consumer Protection Act stated that the Securities and Exchange Commission (SEC) “shall solicit public comment and thereafter conduct a study” on whether the holding of the Supreme Court decision in Morrison v. National Australia Bank, Ltd. limiting private liability under Section 10(b) of the Securities Exchange Act of 1934 to alleged fraud “in connection with the purchase or sale of a security listed on an American stock exchange, and the purchase or sale of any other security in the United States,” should remain in force or should be overturned to allow for a private cause of action to be extended extraterritorially to securities claims against foreign domiciled companies, brought by foreign-domiciled claimants who purchased their shares on foreign exchanges, (“F-cubed litigation”). In essence, the United States Supreme Court held in Morrison that shareholders who purchase or sell securities on non-U.S. exchanges cannot participate in class action lawsuits brought by plaintiffs’ lawyers in U.S. courts. 

The Dodd-Frank law granted extraterritorial jurisdiction to the SEC and Department of Justice for fraudulent conduct in the U.S. that is connected to a foreign securities transaction.  However, in response to pressure from U.S. plaintiff’s lawyers to fully overturn Morrison, Congress also authorized the SEC to study overturning Morrison to allow for an extraterritorial private right of action. 

The accounting profession contends the holding in Morrison is an important limitation on the scope of U.S. lawsuits and a reaffirmation that the securities laws are only meant to be applied within the territorial jurisdiction of the United States. 

The SEC comment period for the Morrison study closed on February 18, 2011, and the accounting profession filed comments in opposition to the creation of an extraterritorial private right of action. 

The SEC released a staff report in April 2012.  The study was not subject to a vote by the SEC commissioners and does not represent the views of any of the commissioners.  Importantly, the report does not endorse legislative action and is inconclusive in its recommendations.  The accounting profession believes that the absence of a clear recommendation makes it very difficult for plaintiffs to use the report as a platform for attacking the Morrison decision and seeking legislative change.

Resources

Copy of Legislation

A copy of the law is available on the Library of Congress's THOMAS website.  The law, and all major Congressional actions leading to passage, are available by using the advanced search function and searching for H.R. 4173 by bill number under the 111th Congress.

Accounting Profession Submission to SEC

February 18, 2011 Letter to SEC from seven accounting firm networks commenting on SEC's upcoming study in accordance with Section 929Y of Dodd Frank Act.

Staff Contact

Brady King
Director, Congressional Affairs
202.434.9263
bking@aicpa.org

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Audits of FHA-Approved Participants and Related HUD Requirements

Article FHA proposes new rule to strengthen risk management and shift accountability for the underwriting of FHA-insured loans to the mortgage banks. It may no longer require FHA to approve loan correspondents (mortgage brokers) participating in the FHA program and HUD would no longer require FHA to submit audited financial statements or audits
Published on May 14, 2013

Municipal Advisors

Article The AICPA generally supports the SEC’s proposed rules as a means to strengthen investor protections in the municipal securities market.  The AICPA is concerned, however, because the proposed rule would require that accountants performing customary and usual accounting services would be required to register as municipal advisors.
Published on May 01, 2013

Congressional and Political Affairs Advocacy

Overview The AICPA monitors and advocates on legislative and other matters that affect the accounting profession. Working with state CPA societies and other professional organizations, the AICPA provides information to and educates federal, state and local policymakers regarding key issues.
Published on May 01, 2013

Convergence of International and US Accounting Principles and IFRS

Article International Financial Reporting Standards (IFRS) set by the International Accounting Standards Board (IASB) in London is a response to worldwide demand from regulators, investors, businesses, and auditing firms for a single set of high-quality, globally-accepted accounting standards.
Published on April 03, 2013

Tax Legislation and Policy

Article The Congressional and Political Affairs Team often assists the Tax Team with tax legislation and policy issues, and advocates about them to Members of Congress and other key policymakers on behalf of the profession.
Published on April 03, 2013

Section 404(b) of Sarbanes-Oxley Act of 2002

Article The Sarbanes Oxley Act requires that the management of public companies assess the effectiveness of the internal control of issuers for financial reporting.  Section 404(b) requires a publicly-held company’s auditor to attest to, and report on, management’s assessment of its internal controls. AICPA believes that all investors in public companies
Published on April 03, 2013

GAO Study of Financial Planning

Federal Law Dodd-Frank required the GAO to conduct a study on the effectiveness of existing regulation of financial planners, including tax advisors.  The AICPA met with the GAO during the study to present the profession’s point of view.  AICPA strongly opposed any new regulatory structure affecting CPAs as they are already comprehensively
Published on April 03, 2013

Financial Literacy and Education

Article Learn about the AICPA's award winning financial literacy programs.
Published on April 03, 2013

FASB Independence and Fair Value Accounting

Article The AICPA strongly and unequivocally supports independence of the U.S. and international accounting standard setting bodies, the Financial Accounting Standards Board (FASB) in Norwalk, Connecticut, and the International Accounting Standards Board (IASB) in London.
Published on April 03, 2013

Extraterritorial Private Rights of Action, also known as F-Cubed Litigation

Article The accounting profession believes private litigants may utilize U.S. securities laws within the territorial jurisdiction of the U.S. and that the United States Supreme Court decision in Morrison v. National Australia Bank, Ltd. is the correct reading of the Securities Exchange Act of 1934.
Published on April 03, 2013

ERISA Fiduciary Definition - Appraisers of Employee Stock Ownership Plans

Article The AICPA believes that CPAs who perform valuation services for employee stock ownership plans (ESOPs) should not be defined as fiduciaries under the Employee Retirement Income Security Act (ERISA). Rather, the AICPA believes that the U.S. Department of Labor (DOL) should implement rules that would require appraisers of ESOPs to
Published on April 03, 2013

Consumer Financial Protection Bureau

Article This article outlines the AICPA's involvement with the development of the Consumer Financial Protection Bureau (CFPB). The AICPA was successful in winning recognition by House and Senate lawmakers of the vital role CPAs play in advising Americans on their financial decisions, thus preventing CPAs from reporting to a new regulatory body.
Published on April 03, 2013

Federal Legislative and Regulatory Issues

Federal Law This page highlights the advocacy issues in which the Congressional & Political Affairs Team is advocating on behalf of the profession, and also those issues that the team has recently followed.
Published on March 29, 2013

Tax Legislation and Policy - Recent Issues

Overview See current tax issues and legistlation that the AICPA recently followed. The Congressional and Political Affairs Team often assists the Tax Team with tax legislation and policy issues, and advocates about them to Members of Congress and other key policymakers on behalf of the profession.
Published on March 28, 2013

Audits of Federal Funds (Single Audits)

Article Entities that receive federal funds including states, local governments, and not-for-profit organizations (NPOs), are subject to audit requirements commonly referred to as “single audits” under the Single Audit Act of 1984, as amended in 1996.  The Single Audit Act was enacted to standardize the requirements for auditing federal programs. 
Published on March 28, 2013

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