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Business Litigation Report - August 2016

Circuit Courts Align to Shield SEC Administrative Proceedings from Collateral Constitutional Attack - In response to the financial crisis of the late 2000s, Congress passed the Dodd-Frank Wall Street Reform and Consumer...more

August 2016: Circuit Courts Align to Shield SEC Administrative Proceedings from Collateral Constitutional Attack

In response to the financial crisis of the late 2000s, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) in 2010. Previously the SEC could pursue civil penalties only against...more

Update on Lawsuits Challenging the U.S. Department of Labor’s Fiduciary Rule

As we previously reported, there are five pending lawsuits challenging the U.S. Department of Labor’s new fiduciary rule. Our Client Alert on the new rule outlines the significance of the rule and the implications of the...more

Financial Services Weekly News - August 2016 #2

Editor's Note - OATS Reporting Violations and FINRA Enforcement. FINRA’s Order Audit Trail System (OATS), is an integrated audit trail of order, quote and trade information for all NMS stocks and OTC equity securities,...more

ALJs are A-OK: D.C. Circuit Upholds Constitutionality of SEC In-House Courts

In several recent decisions we have covered, Federal Circuit Courts have unanimously ruled that respondents in an SEC enforcement action cannot bypass the Exchange Act’s review scheme by filing a collateral lawsuit in federal...more

D.C Circuit rejects constitutional challenge to SEC’s use of administrative law judges

A challenge to the constitutionality of the SEC’s use of administrative law judges (ALJ) was rejected by the U.S. Court of Appeals for the D.C. Circuit. In Raymond J. Lucia Companies, Inc. et al. v. Securities and Exchange...more

D.C. Circuit Rejects Challenge to Appointment of SEC ALJs

While the Commission’s venue selection determinations have been repeatedly challenged, each of the decisions in favor of the agency at the circuit court level has failed to reach the merits of the Constitutional claim....more

Turns Out the Second Circuit . . . Uh, Heh Heh . . . Tossed Gibson Dunn for a Very Good Reason

So yesterday I wrote about the seemingly wrongheaded decision by the U.S. Court of Appeals for the Second Circuit to strike Gibson Dunn’s appearance from Lynn Tilton’s case in that court. Its apparent issue was that Judge...more

Supreme Court Declines to Review Constitutionality of SEC In-House Court

The SEC’s increased use of its own "home court" for enforcement proceedings has triggered constitutional challenges to SEC administrative proceedings (APs). See "Defendants Challenge SEC’s Increased Use of Administrative...more

The Scope Of SEC Defendants' Jury Trial Right: Part 2

This is the second of four articles examining the scope of the Seventh Amendment jury trial right for civil defendants in U.S. Securities and Exchange Commission enforcement actions. The previous article explained why the...more

Equity Trust Notches a Rare Defense Win in SEC Administrative Proceedings

On June 27, 2016, SEC Administrative Law Judge Carol Fox Foelak dismissed the Division of Enforcement’s charges against IRA custodian Equity Trust Company in connection with the company’s processing of investments marketed by...more

Hill v. SEC: Eleventh Circuit Buries District Court Challenges to the Constitutionality of SEC Enforcement Actions

Last week, the United States Court of Appeals for the Eleventh Circuit held that a district court cannot hear constitutional challenges to an ongoing administration enforcement action of the U.S. Securities and Exchange...more

Eleventh Circuit Joins Peers in Preserving SEC’s Home Court Advantage

After four failed attempts at persuading federal appellate courts to hear constitutional challenges to SEC administrative courts, it is increasingly clear that defendants in SEC in-house proceedings will not be able to pursue...more

11th Circuit Holds Judicial Review of SEC ALJs Premature

The Eleventh Circuit Friday joined three others in concluding that Congress intended Respondents must wait until appeal from the Commission to have a Court consider their challenges to the Constitutionality of the SEC’s...more

No federal court challenge to constitutionality of SEC’s use of administrative law judges before final SEC order, Second Circuit...

A recent decision by the U. S. Court of Appeals for the Second Circuit suggests that an attempt by a company or individual that is the target of a CFPB administrative enforcement action to bring a separate action in federal...more

Second Circuit Halts Constitutional Challenge to SEC Administrative Proceedings

On June 1, the Second Circuit in Tilton et al. v. SEC, No. 15-2103 (2d. Cir. Jun. 1, 2016), echoed recent Seventh and D.C. Circuit decisions (respectively, Bebo v. SEC, No. 15-1511 (7th Cir. Aug. 24, 2015), cert. denied, 136...more

This Week In Securities Litigation

The Second Circuit rejected a challenge to the SEC’s venue selection decisions, concluding that the district court did not have jurisdiction to hear an issue regarding the Appointments Clause. This is the third circuit court...more

2nd Cir. Joins 7th & D.C. Requiring Exhaustion to Challenge SEC ALJs

The Second Circuit has affirmed dismissal of “diva of distressed” Lynn Tilton’s constitutional challenge to the SEC’s administrative forum, holding that issue isn’t reviewable by the courts until an appeal after two levels of...more

Second Circuit Rejects Challenge to SEC Venue Decision

The second circuit joined the two other circuits which have rejected challenges to the SEC’s venue selection decisions, concluding that district courts do not have jurisdiction to hear the suits presenting the question while...more

Weighted Scales of Justice in SEC Administrative Proceedings?

Since the 2010 passage of the Dodd-Frank Act, the U.S. Securities and Exchange Commission (“SEC”) has been the subject of growing criticism regarding its increased use of administrative proceedings. By enacting Dodd-Frank,...more

BREAKING NEWS: Supreme Court Declines to Address the Constitutionality of Securities and Exchange Administrative Forum

On March 28, 2016, the Supreme Court denied a petition for certiorari review brought by Laurie Bebo, the former CEO of Assisted Living Concepts Inc., who challenged the constitutionality of proceedings conducted in an SEC...more

Will Supreme Court Hear A Challenge to SEC Venue Decisions?

The SEC continues to prevail in actions brought challenging its venue selections. On March 28, 2016, the Supreme Court denied a request for a writ of certiorari in Bebo v. SEC, 799 F. 3d 765 (7th Cir. 2015). Ms. Bebo’s case...more

SEC Tees Up Newman & Admin Forum Issues for 2016

The SEC granted two petitions for review last week that tee-up significant issues for full Commission consideration late next Spring. The Commission will consider the application of the Second Circuit’s Newman decision...more

Court Enjoins SEC Administrative Proceeding

Last March, I posed the following question:   But if you were hailed before an unconstitutional tribunal with the ostensible authority to fine you and bar you from working, would you want a “real” court to step in and...more

Your daily dose of financial news The Brief – 11.18.15

The Journal reports that Federal prosecutors are “actively pursuing” criminal cases against executives from RBS and JPMorgan for the toxic securities sold in the lead-up to the 2008 financial crisis. If filed, the charges...more

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