The Justice Insiders Podcast: SEC Plays Chicken with Jarkesy
Podcast: Non-binding Guidance: A Discussion of Kisor v. Wilkie
Welcome to the latest edition of Fenwick’s Securities Law Update. This edition contains updates and reminders on: ..The federal court decision that struck down the FTC’s noncompete ban, blocking it from taking effect...more
Seyfarth Synopsis: EEOC Commissioner Keith Sonderling, a Republican who first joined the EEOC in 2020, has announced his departure from the Commission in August 2024. Sonderling’s tenure was marked by his significant...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
Host Gregg N. Sofer welcomes back to the podcast Richard Epstein, Laurence A. Tisch Professor of Law at NYU School of Law, to discuss the U.S. Supreme Court’s consideration of Securities and Exchange Commission v. Jarkesy, a...more
On July 5, 2023, the D.C. Circuit Court of Appeals issued an injunction that raises a challenge to FINRA’s authority to use FINRA-appointed hearing officers to conduct enforcement proceedings. The injunction enables Alpine...more
The U.S. Supreme Court ruled in two related cases, Axon Enterprise Inc. v. FTC (No. 21-86) and SEC v. Cochran (No. 21-1239), that federal district courts have jurisdiction to hear structural constitutional challenges to the...more
On April 14, 2023, in a decision involving appeals regarding two separate agency enforcement actions, the Supreme Court unanimously held that respondents in such actions may raise certain constitutional challenges outside of...more
On April 14, 2023, in Axon Enterprise, Inc. v. Federal Trade Commission and the companion case Cochran v. Securities and Exchange Commission, the Supreme Court held that district courts have jurisdiction to hear structural...more
On March 23, the U.S. Court of Appeals for the Second Circuit ruled that the CFPB’s funding mechanism is constitutional. The case, CFPB v. Law Offices of Crystal Moroney, is significant for two reasons. First, the Second...more
On May 18, 2022, the US Court of Appeals for the Fifth Circuit issued its decision in Jarkesy v. SEC, vacating a Securities and Exchange Commission (SEC) decision in an enforcement action brought as an administrative...more
As the saying goes, “the only thing for certain, is nothing is certain.” With a rash of changes since Chairperson Lina Kahn took command, the FTC is certainly proving that maxim true. Seeking to transform the historically...more
Lina Khan was sworn in as Chair of the Federal Trade Commission (FTC) on June 15, 2021. President Biden named Khan, a Democrat, to a term on the Commission that expires September 25, 2024, and designated her as Chair. Khan...more
Executive Order directs agencies to repeal rules and policies implementing regulatory reforms. Included among the seventeen executive orders signed by President Biden on his first day in office was an order revoking six...more
In late August 2020, to little notice, the Office of Management and Budget issued a memorandum (the OMB Memorandum) that is likely to have significant implications for administrative enforcement, extending well into the Biden...more
Meant to enhance fairness and transparency in federal administrative enforcement, the new presidential EOs will significantly affect the practice of administrative law. Two recent Executive Orders will curtail use of...more
On October 9, 2019, the President issued two executive orders that require agencies to formally provide official guidance before enforcing any new jurisdiction or legal standards. In other words, agencies cannot take novel...more
The president issued two executive orders limiting federal agencies' ability to use guidance documents for policymaking and enforcement and promoting transparency and fairness in civil enforcement matters....more
After much anticipation, the U.S. Supreme Court ruled on the constitutionality of the Securities and Exchange Commission’s (SEC or Commission) Administrative Law Judges (ALJs)....more
The new executive order (EO) granting agency chiefs the power to hire administrative law judges (ALJs) according to their own standards—and eliminating the exam and competitive hiring process formerly in place—could turn the...more
Over the last few years, there has been debate regarding whether ALJs are “inferior officers” under the Appointments Clause of the Constitution. This provision provides that officers, including inferior officers, may only be...more
On July 20, 2018, the Federal Circuit held that tribal sovereign immunity is not available as a defense in IPR. Allergan Pharmaceuticals owned patents that it had asserted in litigation against various generic...more
Federal Circuit Summary - Before Dyk, Moore, and Reyna. Appeal from the Patent Trial and Appeal Board. Summary: Tribal sovereign immunity does not shield Indian Tribe owned patents from IPR. ...more
U.S. Court of Appeals for the Federal Circuit affirmed a U.S. Patent Trial and Appeal Board (PTAB) decision finding that tribal sovereign immunity does not apply to Inter Partes Review (IPR) proceedings. In so holding, the...more
In one of its last opinions of the term, the U.S. Supreme Court held in Lucia v. U.S. Securities and Exchange Commission (SEC) on June 21, 2018, that administrative law judges (ALJs) are officers of the United States, not...more
Orrick's Andrew Morris and Ben Aiken co-authored an article for Law360 in which they identify three of the most significant defense arguments for respondents in SEC administrative actions in light of the Supreme Court's...more