On Feb. 18, 2025, in a case seeking declaratory and injunctive relief against the SEC, the U.S. Department of Justice (DOJ) filed a Notice of Change in Position indicating that the DOJ will no longer defend in litigation "the...more
On February 18, 2025, President Donald J. Trump signed an Executive Order (EO), entitled, “Restoring Democracy and Accountability in Government,” which asserts greater authority over all federal agencies, including those...more
Whistleblower programs are the gifts that keep giving to enforcement agencies, driving a record number of cases, sanctions and awards across multiple agencies. In this ninth installment of Season's Readings, we revisit some...more
The Federal Trade Commission (FTC) is currently facing a growing number of challenges related to the constitutionality of the agency’s structure and operation. One of these challenges was raised by current FTC...more
On October 30, 2024, the District Court for the Southern District of Texas preliminarily enjoined the Department of Labor (“DOL”), the Secretary of Labor, the Office of Federal Contract Compliance Programs (“OFCCP”), and the...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
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
In recent years, independent agencies have continued to face a number of constitutional and statutory challenges before the Supreme Court. AMG Capital Management struck down the Federal Trade Commission’s authority to obtain...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
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
On June 30, 2023, the Supreme Court granted certiorari in Securities and Exchange Commission v. Jarkesy to review a decision by the Fifth Circuit rejecting key aspects of the Securities and Exchange Commission’s (SEC or the...more
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
The Securities and Exchange Commission (SEC) has filed a petition for certiorari with the U.S. Supreme Court seeking review of the Fifth Circuit’s decision in Jarkesy v. Securities and Exchange Commission, a case with...more
Article I of the U.S. Constitution articulates the fundamental principles that “[a]ll legislative Powers … shall be vested in a Congress,” “[t]he executive Power shall be vested in a President,” and “[t]he judicial Power …...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
In a decision that likely will reverberate throughout the administrative state, a three-judge panel of the United States Court of Appeals for the Fifth Circuit recently held in Jarkesy v. Securities and Exchange Commission...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
Two recent judicial developments create questions about the constitutionality of the SEC’s in-house judicial system. First, on May 16, the Supreme Court agreed to hear the case of Michelle Cochran, an accountant facing...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
On May 18, 2022, the Fifth Circuit issued an opinion vacating a Securities and Exchange Commission (“SEC”) Administrative Law Judge’s (“ALJ”) decision that George Jarkesy, Jr. (“Jarkesy”) and his investment adviser Patriot28,...more
The Fifth Circuit's opinion creates a circuit split that raises the possibility of a Supreme Court review. On December 13, 2021, the Fifth Circuit issued an en banc opinion in Cochran v. U.S. Securities & Exchange...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