News & Analysis as of

Appointments Clause Securities and Exchange Commission (SEC)

Burr & Forman

The Assault on the SEC’s Administrative Citadel Continues

Burr & Forman on

A panel of the D.C. Circuit recently relied on Lucia and Cochran to enjoin a FINRA regulatory enforcement action pending appeal of an Appointments Clause challenge....more

Burr & Forman

Jarkesy Gets His Day: SCOTUS to Review SEC ALJs

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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

Woodruff Sawyer

The SEC’s Administrative Law Judges Under Fire

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In addition to creating rules that govern both private and public companies, the Securities and Exchange Commission (SEC) uses an in-house, government legal system—Administrative Law Judges (ALJs)—to prosecute securities...more

Carlton Fields

Attacks on the SEC Administrative Citadel

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For decades, the SEC Enforcement Division has opted to use the SEC’s in-house administrative law judges (ALJs) when the case involved a registered entity, which was the jurisdictional base for in-house administrative...more

Holland & Knight LLP

SEC in Constitutional Danger Zone Following Several Recent Decisions

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The constitutional spotlight is shining on the U.S. Securities and Exchange Commission (SEC). In the last several weeks, the U.S. Supreme Court agreed to hear a case seeking broader federal jurisdiction for constitutional...more

Jenner & Block

Fifth Circuit Holds SEC's In-House Forum is Unconstitutional

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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

Kramer Levin Naftalis & Frankel LLP

The Supreme Court Will Review District Court Jurisdiction Over Constitutional Challenges to SEC ALJs | Fifth Circuit Holds SEC ALJ...

This alert addresses proceedings in two SEC securities enforcement actions emanating out of the Fifth Circuit. Both pose issues relating to the SEC’s power to bring enforcement proceedings in front of in-house administrative...more

WilmerHale

Jarkesy Case Upends SEC Tribunal

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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

Miller Canfield

Federal Court Calls Unconstitutional the U.S. Securities & Exchange Commission’s In-House Administrative Proceedings for...

Miller Canfield on

Key Takeaways - ..The U.S. Supreme Court is poised to hear cases that may curtail the administrative powers of the SEC. ..These rulings may portend greater limits on federal administrative agencies generally....more

Eversheds Sutherland (US) LLP

SEC faces new challenges to constitutionality of its in-house proceedings

Two recent decisions have put the US Securities and Exchange Commission’s (SEC) in-house administrative proceedings in the crosshairs. First, on May 16, 2022, the US Supreme Court agreed to consider whether Administrative Law...more

Kramer Levin Naftalis & Frankel LLP

Creating Circuit Split, Fifth Circuit Rules District Court May Hear Constitutional Challenge to SEC Enforcement Action

On Dec. 13, 2021, an en banc panel of the Fifth Circuit held that the Securities Exchange Act of 1934 (Exchange Act) does not preclude federal district courts from exercising subject matter jurisdiction over constitutional...more

Foley & Lardner LLP

Carr v. Saul – Has the Court Tired of Issue Exhaustion? Potential Effects on Arthrex

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On April 22, 2021, the Supreme Court decided Carr v. Saul, a case with interesting parallels to Arthrex, which deals with appointments clause challenges to the PTAB judges and which will be decided later this Term. In Carr,...more

WilmerHale

D.C. Circuit Forfeiture Holding Highlights Importance of Involving Litigation Counsel in the Early Stages of Administrative Agency...

WilmerHale on

On February 26, 2021, in Springsteen-Abbott v. Securities and Exchange Commission, a panel of the U.S. Court of Appeals for the D.C. Circuit held that a petitioner challenging sanctions imposed by the Financial Institutions...more

Dechert LLP

SEC’s Enforcement Division Releases 2019 Annual Report: Asset Management Industry Enforcement Leads to Record Numbers

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The Enforcement Division (Division) of the Securities and Exchange Commission released its Annual Report on November 6, 2019, summarizing the year’s enforcement activity. It was a record-setting year for the Division due to...more

Proskauer - The Capital Commitment

Rocky Mountain Securities Conference: A Review Of Enforcement

The SEC, in conjunction with the Colorado Bar Association and Colorado Society of Certified Public Accountants, recently sponsored the 51st Annual Rocky Mountain Securities Conference featuring SEC officials and corporate...more

Akin Gump Strauss Hauer & Feld LLP

PCAOB Amends Process for Appointing and Removing its Hearing Officers

On January 29, 2019, the Public Company Accounting Oversight Board (PCAOB or “Board”) adopted amendments to its bylaws and rules that make the PCAOB’s appointment and removal of its hearing officers subject to the approval of...more

Skadden, Arps, Slate, Meagher & Flom LLP

Inside the Courts – An Update From Skadden Securities Litigators - December 2018

This quarter’s issue includes summaries and associated court opinions of selected cases principally decided between September 2018 and October 2018. ...more

Carlton Fields

SEC Proceedings Face Uncertainty After Supreme Court Holds ALJs Unconstitutional

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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

Skadden, Arps, Slate, Meagher & Flom LLP

Inside the Courts – An Update From Skadden Securities Litigators - September 2018

This quarter’s issue includes summaries and associated court opinions of selected cases principally decided between May 2018 and August 2018.... US Supreme Court - Supreme Court Holds That SEC Administrative Law Judges...more

Manatt, Phelps & Phillips, LLP

ALJs Could Get Political With New Executive Order

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

Fisher Phillips

OSHA, Too? Will OSHA Citations Also Be Invalidated in the Wake of the Jones Brothers Case?

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After the Sixth Circuit Court of Appeals’ decision in Jones Brothers, Inc. v. Sec’y of Labor, citations upheld by administrative law judges within the Federal Mine Safety and Health Review Commission (“FMSHRC”) may be...more

Fisher Phillips

MSHA Citations Upheld by Administrative Law Judges Before April 3, 2018 May Be Invalid

Fisher Phillips on

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

Polsinelli

Lack of Presidential Appointment May Invalidate ALJ Decisions

Polsinelli on

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

Sterne, Kessler, Goldstein & Fox P.L.L.C.

PTAB Strategies and Insights - July 2018: Do You Want An Inferior Judge? Why PTAB Judges May Be Unconstitutional And What Happens...

Is the appointment of PTAB administrative patent judges (APJs) constitutional? The patent bar is asking in the wake of the Supreme Court’s decision in Lucia v. SEC....more

Sheppard Mullin Richter & Hampton LLP

Lucia Is Likely To Have Little Impact On Waning FCC Adjudications

During its most recent Term, the Supreme Court held in Lucia v. SEC that the administrative law judges (“ALJs”) that preside over adjudications at the Securities and Exchange Commission (“SEC”) are “Officers of the United...more

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