Judge Alan Albright of the U.S. District Court for the Western District of Texas issued an order on July 23, 2024, granting Space Exploration Technologies Corporation’s (SpaceX) motion for a preliminary injunction after...more
SpaceX is challenging whether the National Labor Relations Board should continue to exist as we know it. In two separate lawsuits, the aerospace company has asked a federal court to strike down the agency’s structure as...more
In a landmark decision issued last week, SEC v. Jarkesy, the Supreme Court held that the Seventh Amendment guarantees a defendant a jury trial when the SEC seeks civil penalties against the defendant for committing securities...more
In a much-watched case concerning the administrative state, on June 27, the Supreme Court decided in SEC v. Jarkesy that defendants facing a fraud suit by the SEC have a Seventh Amendment right to a jury trial in an Article...more
An impending Supreme Court decision is poised to transform how the National Labor Relations Board decides cases and may fundamentally alter the course of labor relations as we know it. We predict that a SCOTUS decision to be...more
Last week, the Fifth Circuit handed down an across-the-board rejection of four constitutional challenges raised by gene sequencing company Illumina in defending against the Federal Trade Commission’s merger challenge. Bah!...more
On November 29, 2023, the U.S. Supreme Court will hear oral argument in Jarkesy v. Securities and Exchange Commission, a case in which the respondents are challenging the constitutionality of the SEC’s use of administrative...more
The U.S. Supreme Court began its new term this week and is taking cases government enforcement practitioners will want to follow. Specifically, the Court will address issues concerning: the interplay between SEC...more
In a landmark decision, the Fifth Circuit struck down the U.S. Securities and Exchange Commission’s (SEC) primary mechanism for enforcing the nation’s securities laws. In Jarkesy v. Securities and Exchange Commission, a...more
When Congress passed the Dodd-Frank Act, it expanded the SEC’s power to use its in-house administrative forum to bring enforcement actions. Supporters said this change promoted investor protection by giving the SEC a more...more
The United States Court of Appeals for the Fifth Circuit issued a major decision on May 18, 2022 holding Securities and Exchange Commission (SEC or Commission) administrative adjudications unconstitutional on multiple...more
Key Points On May 18, 2022, in Jarkesy v. SEC, No. 20-61007 (5th Cir. May 18, 2022), a split panel of the U.S. Court of Appeals for the Fifth Circuit identified three independent constitutional flaws in the administrative...more
In Jarkesy v. Securities and Exchange Commission, the Court of Appeals for the Fifth Circuit issued a remarkable opinion holding numerous aspects of the SEC’s administrative enforcement regime are unconstitutional. The May...more
Article II of the Constitution provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and...more
Arthrex, Inc. v. Smith & Nephew, Inc., Appeal No. 2018-2140 (Fed. Cir., October 31, 2019) - Since the inception of inter partes review at the Patent Trial and Appeals Board (PTAB), there have been a number of...more
The Consumer Financial Protection Bureau (“CFPB” or “Bureau”) has been an agency under fire. Acting Director Mick Mulvaney has begun to institute significant changes at the Bureau. And last year, a panel of the D.C. Circuit...more
Earlier today, an en banc panel of the U.S. Court of Appeals for the D.C. Circuit ruled that the CFPB was constitutionally structured, reversing an earlier decision by a divided three-judge panel and holding that the...more
In a long-awaited constitutional decision regarding the Consumer Financial Protection Bureau (“CFPB”), the full D.C. Circuit Court of Appeals today in PHH v. CFPB reversed a prior ruling by a three-judge panel that the CFPB...more
The Supreme Court of the United States, on Friday, January 12, 2018, agreed to decide whether the former practice of the Securities and Exchange Commission (SEC) of having its chief judge appoint administrative law judges...more
The Supreme Court is considering a cert petition requesting that it hear the Lucia case, which we have blogged about extensively due to its potential impact on the outcome of the PHH case. Significantly, the DOJ recently...more
On Thursday, November 30, 2017, the Securities and Exchange Commission (“SEC” or the “Commission”) took action to settle an issue that had been impacting its enforcement efforts for some time: whether its administrative law...more
The District of Columbia Circuit Court of Appeals’ earlier decision in Lucia v. SEC that U.S. Securities and Exchange Commission (SEC) administrative law judges (ALJs) are employees who are not subject to the Appointments...more
On Wednesday, May 24, 2017, the U.S. Court of Appeals for the District of Columbia Circuit, sitting en banc, heard arguments in Raymond J. Lucia Cos. v. SEC, a case in which it is tasked with deciding whether the...more
On Monday, May 22, the SEC stayed all its administrative proceedings assigned to an ALJ in which a Respondent has an option for review by the 10th Circuit. (Securities laws provide appellate review of SEC administrative...more
The Tenth Circuit Court of Appeals, in Bandimere v. SEC, recently held that the SEC’s administrative law judges (ALJs) are “inferior officers” whose appointments violate the Appointments Clause of the U.S. Constitution...more