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Officers of the United States

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

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

Snell & Wilmer

Supreme Court Grants Certiorari to Decide if PTAB Judges Are Constitutional

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Are PTAB judges constitutional? This week the Supreme Court granted certiorari to answer this question. In Arthrex v. Smith & Nephew, the Federal Circuit considered whether the appointment of administrative patent judges...more

Jones Day

From the Top in Brief: U.S. Supreme Court Bankruptcy Roundup

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Appointment of PROMESA Financial Oversight Board Was Constitutional - In Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC, No. 18-1334, 590 U.S. ___ (June 1, 2020), the Supreme Court...more

Skadden, Arps, Slate, Meagher & Flom LLP

Supreme Court Validates PR Financial Oversight Board, but Challenges Remain

Since PROMESA was enacted in 2016 to pave the way for a comprehensive restructuring of Puerto Rico’s mounting municipal debt obligations, the U.S. District Court for the District of Puerto Rico (District Court) has become a...more

Bass, Berry & Sims PLC

Chris Lazarini Reviews Whether Privity Exists Between Officers of the United States

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Bass, Berry & Sims attorney Chris Lazarini reviewed a case questioning whether privity exists between officers of the United States if, in the earlier litigation, the representative of the government had authority to...more

McDonnell Boehnen Hulbert & Berghoff LLP

Federal Circuit Denies Rehearing En Banc in Arthrex

Last fall, the Federal Circuit held in Arthrex, Inc. v. Smith & Nephew, Inc. that the way the U.S. Patent and Trademark Office (“USPTO”) had appointed administrative patent judges (“APJs”) to the Patent Trial and Appeal Board...more

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

Federal Circuit Appeals From The PTAB: Summaries of Key 2019 Decisions: Arthrex v. Smith & Nephew, 941 F.3d 1320 (Fed. Cir. 2019)

Arthrex appealed a final written decision from an inter partes review (IPR) where the Patent Trial and Appeal Board (PTAB) found all challenged claims of its patent anticipated. On appeal, Arthrex argued for the first time...more

Allen Matkins

Is Impeachment A Pardonable Offense?

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Monday's post concerned California's constitutional and statutory provisions governing impeachment. These provisions are based on the English parliamentary model developed in the 14th century. In 1678, the Commons impeached...more

Allen Matkins

Impeachment In California

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The Founding Fathers did not invent impeachment. The procedure was largely copied from English precedent dating to the reign of Edward III. In 1376, the so-called "Good Parliament" under the leadership of Peter de la Mare...more

International Lawyers Network

Can Appointment of Administrative Patent Judges be Unconstitutional?

For the Patent and Trial Appeal Board (“PTAB”), the Administrative Patent Judges (“APJs”) are appointed by the Secretary of Commerce in consultation with the Director of the United States Patent and Trademark Office.  For an...more

Cadwalader, Wickersham & Taft LLP

Federal Circuit to Examine the Constitutionality of Prior Inter Partes Review Invalidity Determinations in the Wake of Arthrex

On November 9, 2019, the United States Court of Appeals for the Federal Circuit ordered the parties in Polaris Innovations Lt. v. Kingston Technology Company, Inc. to provide supplemental briefing addressing the...more

Jones Day

Federal Circuit Says Appointment of PTAB Judges Unconstitutional

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Last Thursday, the Federal Circuit found the appointments of Patent Trial and Appeal judges unconstitutional, in part because the judges do not receive sufficient oversight from the Director of the United States Patent and...more

Womble Bond Dickinson

Federal Circuit Says PTAB APJ Appointments Were Unconstitutional – Now What?

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Yesterday October 31, 2019, a 3-judge panel of the Federal Circuit (Judges Moore, Reyna, and Chen) issued a unanimous decision holding that the USPTO’s appointment practice for Administrative Patent Judges (APJs) violates the...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

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

Polsinelli

Lack of Presidential Appointment May Invalidate ALJ Decisions

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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

Ballard Spahr LLP

President Trump issues executive order to change process used by CFPB and other federal agencies for hiring administrative law...

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In response to the U.S. Supreme Court’s decision in Lucia v. SEC, President Trump has issued an executive order that changes the process used by federal agencies for administrative law judges (ALJs)....more

Orrick, Herrington & Sutcliffe LLP

3 Key Defense Arguments For Post-Lucia SEC Proceedings

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

Carlton Fields

Supreme Court Set to Rule on Constitutionality of SEC’s ALJs

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In April, the U.S. Supreme Court heard oral argument in Lucia v. SEC to resolve the federal circuit court split on whether the SEC’s administrative law judges (ALJs) are "inferior officers" of the United States who must be...more

Vedder Price

SEC Administrative Law Judges: Key Takeaways and Lingering Questions from Lucia v. SEC

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On June 21, 2018, the United States Supreme Court resolved a circuit split on the question of whether administrative law judges (“ALJs”) of the Securities and Exchange Commission (the “SEC” or the “Commission”) qualify as...more

Ballard Spahr LLP

What does the Supreme Court’s Lucia decision mean for the CFPB and federal banking agencies?

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In its June 21 decision in Lucia v. Securities & Exchange Commission, the U.S. Supreme Court ruled that administrative law judges (ALJs) used by the SEC are “Officers of the United States” under the Appointments Clause in...more

Jones Day

U.S. Supreme Court Holds SEC's Staff Appointments for Administrative Law Judge Unconstitutional

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In Lucia v. SEC, the U.S. Supreme Court made things messy for the Securities and Exchange Commission ("SEC") by vindicating constitutional concerns over the agency's use of administrative law judges. The Court concluded that...more

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