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The Supreme Court Levels the SEC Playing Field

By Jeffrey R. Blackwood on June 21, 2018
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The Supreme Court Levels the SEC Playing FieldIn a highly anticipated decision, the United States Supreme Court ruled the practice employed for years by the Securities and Exchange Commission of choosing administrative law judges to hear SEC enforcement actions, violates the Appointments Clause of the Constitution. The Supreme Court, in Lucia v. Securities and Exchange Commission, held that administrative law judges (ALJs) are “officers of the United States” subject to the Appointments Clause.

The SEC has long been criticized for the process of choosing ALJs to hear enforcement matters. Going forward, ALJs will need to be appointed by the president or the head of the SEC. Holding for the requirement of an appointment, the court did not agree that ALJs are regular federal employees hired through the civil service process.

The case was brought by former investment advisor Raymond J. Lucia who appealed sanctions handed down by an ALJ that included a bar from the industry, as well as a $300,000 fine. Lucia argued that his constitutional rights were violated because the ALJ was not constitutionally authorized to have such broad power. Lucia asserted that ALJs should be subject to the Appointments Clause because they carry out judicial proceedings, including evidentiary rulings and rendering decisions. Lucia (as well as others), noted that the SEC rarely overturns or gives more than a passing review to ALJ decisions.

This decision should help level the playing field, at least within the SEC, for internally handled enforcement matters.

Photo of Jeffrey R. Blackwood Jeffrey R. Blackwood

Jeffrey Blackwood has practiced in the Jackson office for over 22 years and has handled a variety of complex commercial litigation matters. He recently represented a private equity firm in a breach of contract matter during the pandemic that involved numerous hearings and…

Jeffrey Blackwood has practiced in the Jackson office for over 22 years and has handled a variety of complex commercial litigation matters. He recently represented a private equity firm in a breach of contract matter during the pandemic that involved numerous hearings and over 25 depositions, all conducted remotely. He is actively representing broker-dealers and registered investment advisors in FINRA arbitrations and investigations before the Mississippi Secretary of State Securities Division. Jeffrey has successfully tried a case in Delaware Chancery Court representing a trust in litigation involving investment LLCs, where the client prevailed and was awarded attorneys’ fees, and he recently obtained dismissal of a putative class action in federal court in Mississippi representing a healthcare client. He routinely speaks and writes on topics related to securities regulatory and enforcement matters. He also has significant experience in representing life insurance companies and brokers in a variety of matters, including sales practice litigation, regulatory actions and professional negligence actions.

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  • Posted in:
    Financial
  • Blog:
    Financial Services Perspectives
  • Organization:
    Bradley Arant Boult Cummings LLP
  • Article: View Original Source

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