8 companies that deal with public companies” and would be “ultimately harmful to our economy.” The State of the International Financial Services System: Hearing Before the H. Fin. Servs. Comm., 110th Cong. (2007), reprinted by Fed. News Serv. See also Comm’n on the Regulation of U.S. Capital Mkts. in the 21st Century, Report and Recommendations 90-91 (Mar. 2007) (“Final Report”) (opposing “scheme” liability).4 In particular, foreign companies would have a strong reason not to do business with American public companies. As The Economist stated: “An unfavorable ruling [in Stoneridge] would send a chill through boardrooms, and not only in America . . . [because] it would no longer even be necessary to issue shares in the United States to incur securities liability . . . . Any firm, anywhere, doing business with American companies would have to live with the risk that the transaction could later be portrayed as fraudulent or deceptive. And painting such pictures is what trial lawyers do best.” The Stoneridge Showdown, Economist, Jun. 14, 2007, at 84.5 4
Indeed, two current SEC Commissioners have opposed “scheme” liability in public testimony because it has proved unworkable, creates “a real danger in chilling ongoing transactions,” and will harm the “competitiveness of our economy.” A Review of Investor Protection and Market Oversight with the Five Commissioners of the Securities and Exchange Commission: Hearing Before the H. Comm. on Fin. Servs., 110th Cong. (2007), reprinted by Fed. News Serv. (Statements of Paul S. Atkins and Kathleen L. Casey, Commissioners of the Securities Exchange Commission). 5
See also Professor Rüdiger von Rosen, Transatlantic Relations in Danger, Boersenzeitung, June 28, 2007, at 14 (The President of the Deutsches Aktieninstitut, a business organization of German companies, explaining that “legal certainty and forseeability in transatlantic business could suffer a severe setback if [Petitioners are] successful,” and could lead to a “wave of lawsuits” and “incalculable risks of class actions in the United States” that would require German companies doing business with listed companies in the U.S. “to examine the possibility of a false booking in every transaction, which is practically impossible.” This could result in “transatlantic business relations [being] burdened by significant additional
