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
7/6/2023
/ Administrative Law Judge (ALJ) ,
Appointments Clause ,
Article II ,
Certiorari ,
Disgorgement ,
Enforcement Actions ,
Investment Adviser ,
Investment Funds ,
Public Rights Doctrine ,
SCOTUS ,
Securities and Exchange Commission (SEC)
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
5/31/2022
/ Arbitration ,
Arbitration Agreements ,
Employment Litigation ,
Federal Arbitration Act ,
Morgan v Sundance ,
Motion to Compel ,
Prejudice ,
Remand ,
Reversal ,
SCOTUS ,
Securities Litigation ,
Wage and Hour ,
Waivers
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
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
10/27/2020
/ Absentee Voting ,
Business Litigation ,
Cybersecurity ,
Employee Rights ,
Family and Medical Leave Act (FMLA) ,
Financial Industry Regulatory Authority (FINRA) ,
Liability Insurance ,
Mail-In Ballots ,
Phishing Scams ,
Political Campaigns ,
Remote Proceedings ,
Right to Vote ,
SCOTUS ,
Wage and Hour
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
6/25/2020
/ 15 U.S.C. § 78u(d)(5) ,
Administrative Authority ,
Business Expenses ,
Calculation of Damages ,
Corporate Misconduct ,
Disgorgement ,
Enforcement Actions ,
Equitable Relief ,
Kokesh v SEC ,
Lack of Authority ,
Liu v Securities and Exchange Commission ,
Net Profits ,
Remedies ,
SCOTUS ,
Securities and Exchange Commission (SEC)
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
4/2/2019
/ Appeals ,
Enforcement Actions ,
False Statements ,
Fines ,
Intent to Defraud ,
Investment Banks ,
Lorenzo v SEC ,
Material Dissemination ,
Misleading Statements ,
Reaffirmation ,
Rule 10b-5 ,
SCOTUS ,
Securities and Exchange Commission (SEC) ,
Securities Violations ,
Suspensions
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
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
3/6/2018
/ Avoidance ,
Bankruptcy Code ,
Chapter 11 ,
Commercial Bankruptcy ,
Debtors ,
Financial Institutions ,
Fraudulent Transfers ,
Intermediaries ,
Merit Management Group v FTI Consulting ,
Safe Harbors ,
SCOTUS ,
Section 546(e) ,
Split of Authority ,
Trustees
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
2/23/2018
/ Anti-Retaliation Provisions ,
Digital Realty Trust Inc v Somers ,
Dodd-Frank ,
Internal Reporting ,
Reporting Requirements ,
Retaliation ,
Sarbanes-Oxley ,
SCOTUS ,
Securities and Exchange Commission (SEC) ,
Securities Violations ,
Whistleblower Protection Policies ,
Whistleblowers
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
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
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
1/16/2017
/ Civil Monetary Penalty ,
Discovery Rule ,
Disgorgement ,
Enforcement Actions ,
Forfeiture ,
Gabelli v SEC ,
Injunctive Relief ,
SCOTUS ,
Securities and Exchange Commission (SEC) ,
Securities Violations ,
Statute of Limitations
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
12/7/2016
/ Confidential Information ,
Dirks v SEC ,
Financial Markets ,
Illegal Tipping ,
Insider Trading ,
Non-Public Information ,
Personal Benefit ,
SCOTUS ,
Securities Violations ,
Tippees ,
Tippers ,
US v Newman ,
US v Salman
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
5/18/2016
/ 28 USC 1331 ,
Exclusive Jurisdiction ,
Federal Jurisdiction ,
Financial Institutions ,
Merrill Lynch ,
Merrill Lynch v Manning ,
Regulation SHO ,
SCOTUS ,
Securities Exchange Act ,
Securities Litigation ,
Short Selling
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
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
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
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
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
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