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Jarkesy Gets His Day: SCOTUS to Review SEC ALJs

On June 20, 2023, the Supreme Court granted certiorari to review three questions about the Securities and Exchange Commission’s (SEC’s) administrative courts...more

SCOTUS: Waiver of Arbitration Does Not Require Prejudice

A unanimous Supreme Court held May 23 that a party’s waiver of its arbitration right does not require showing prejudice to an opposing party, because the Federal Arbitration Act (“FAA”) prohibits arbitration-specific rules....more

SCOTUS: No Look-Through Jurisdiction for Arbitration Confirmation or Vacatur

The U.S. Supreme Court held March 31, 2022, that the Federal Arbitration Act (“FAA”) does not allow federal courts to “look through” to the dispute underlying an arbitration to establish jurisdiction to confirm or vacate an...more

Business Litigation E-Note - October 2020

Spotlight - U.S. Supreme Court Rules in Favor of Burr's Petition for the South Carolina Election Commission: South Carolina's Witness Requirement on Absentee Ballots is Here to Stay - On October 5th, the Supreme Court...more

Supreme Court Limits SEC Civil-Action Disgorgement; Raises More Questions

The Supreme Court allowed the SEC to seek “disgorgement” as a form of “equitable relief” in civil-actions, but limited the remedy to net profits for benefit of harmed investors.  Answering part of a question reserved in...more

Cut-And-Pasters (Not Janus "Makers") Still Liable Under 10b-5(A), (C)

Last week, the Supreme Court held that knowing distributors of another’s false statements still could be primarily liable under parts of Rule 10b-5, even though they didn’t “make” the statements under prior precedent....more

SCOTUS: Pure ‘33 Act Class Actions Not Removable Under SLUSA

A unanimous Supreme Court recently held that “covered class actions” over exchange-traded securities are not removable from state courts under SLUSA when they assert only ‘33 Act claims....more

“Clearing & Settlement” Exception to Trustee’s Avoiding Powers Saves Only Payments “To” (not “Through”) Market Intermediaries

Last week, the unanimous Supreme Court clarified that the “clearing and settlement” exception to a bankruptcy trustee’s avoiding powers covers only payments “to,” not merely through, financial market participants....more

Dodd-Frank Whistleblowers Must Have Reported to SEC

In a triumph of positive statutory law over Chevron deference to the administrative state, the unanimous Supreme Court held this week that Dodd-Frank whistleblower protections require SEC reporting, because the statute...more

Supreme Court to Review SEC ALJs

On January 12, the US Supreme Court agreed to review the constitutionality of the SEC’s administrative law judges. On November 29, 2017, the SEC did an abrupt about-face, telling the Court it now regards its ALJs as...more

Supreme Court: SEC Disgorgement a Penalty Subject to 5-Year Limitations

A unanimous Supreme Court held June 5 that SEC disgorgement is a “penalty” subject to five-year limitations under 28 U.S.C. §2462 and Gabelli v. SEC, 568 U.S. 442 (2013)(5-year limitations applies to civil monetary...more

Supreme Court to Review SEC Enforcement Limitations

On Friday, January 13, the Supreme Court granted certiorari to resolve a Circuit split on the extent to which SEC enforcement actions are restricted by the five-year statute of limitations in 28 U.S.C. § 2462. Section...more

Supremes Reaffirm Dirks Gifting Theory of Insider Trading; Limit Newman

A unanimous Supreme Court reaffirmed the “gifting” theory of insider trading under Dirks and rejected Newman “to the extent” it required more. The Court’s long-standing rule in Dirks v. SEC, 463 U.S. 646, 664 (1983)...more

Supreme Court: Exchange Act Jurisdiction = “Arising Under”

The Supreme Court held May 16 that the exclusive federal jurisdiction provision of the 1934 Securities Exchange Act means the same as the “arising under” test for federal-question jurisdiction and does not pre-empt state law...more

Supreme Court Reaffirms Arbitration Class-Waivers

The Supreme Court Monday re-affirmed the enforceability of class-waivers in arbitration agreements. The five-justice majority felt the need to rebuke the California courts for trying to end-run Federal preemption through a...more

DOJ Appeals Newman Insider-Trading Opinion

The Department of Justice appealed the Second Circuit’s Newman decision to the U.S. Supreme Court, after several extensions. United States v. Newman, No. 15-137 (U.S. filed July 30, 2015). Last December’s ruling narrowed the...more

High Court Divided: Is A Fish A Tangible Object?

Gulf fisherman John Yates was cited by a federally-deputized Florida Fish & Wildlife officer for having caught a few red grouper that were about an inch under the 20” minimum limit at the time (they’d have been legal under...more

Scalia & Thomas Look to Take on SEC’s Insider-Trading Theory

In an unusual three-page concurrence to a November 10 cert denial, Justice Scalia (joined by Justice Thomas) virtually called for a case that would subject the SEC’s insider-trading interpretations to scrutiny. Because courts...more

Arbitration vs Forum-Selection Clauses: Chicken & Egg Dilemma?

Last week the Fifth Circuit weighed in on how inartfully crafted arbitration and forum-selection clauses might trump one another. Together with recent decisions from the Second and Ninth Circuits – each with cert petitions...more

Texas Two Step: “In Connection With” At The End Of Its Tether?

The familiar “in connection with the purchase or sale” securities-litigation requirement may not be unlimited in its breadth, after all. On February 26, the US Supreme Court pulled up short defendants in litigation by...more

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