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 divided court held that the SEC’s use of administrative hearings was unconstitutional because it violated the right to a jury trial, represented an unconstitutional delegation of Congress’s legislative power, and violated the “Take Care Clause” of Article II. Unless overturned, the decision will be a sea change in both the regulation of the financial industry and administrative law. After all, the Fifth Circuit departed from long-standing precedent and threatens to upend decades of SEC regulatory action.
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