Sie befinden Sich nicht im Netzwerk der Universität Paderborn. Der Zugriff auf elektronische Ressourcen ist gegebenenfalls nur via VPN oder Shibboleth (DFN-AAI) möglich. mehr Informationen...
Insights; the Corporate & Securities Law Advisor, 2022-07, Vol.36 (7), p.16-18
Ort / Verlag
Englewood Cliffs: Aspen Publishers, Inc
Erscheinungsjahr
2022
Link zum Volltext
Quelle
EBSCOhost Business Source Ultimate
Beschreibungen/Notizen
SEC ENFORCEMENT On May 18, 2022, the US Court of Appeals for the Fifth Circuit in Jarkesy v. SEC issued a scathing rebuke of the Securities and Exchange Commission's (SEC) use of administrative law judges (ALJ).1 Considered in tandem with the US Supreme Court's May 16, 2022 grant of certiorari in SEC v. Cochran,2 which examines district courts' jurisdiction to consider actions to enjoin ongoing SEC administrative actions, Jarkesy may have profound implications for the SEC's and other federal agencies' use of ALJs in a wide array of matters. Permitting them to do so before waiting for a decision from the SEC would have the potential to radically change the SEC's calculus in determining whether, or when, to proceed with administrative cases. [...]the issues raised in Jarkesy and Cochran are finally resolved, litigants opposite the SEC and agencies with similarly appointed ALJs would be well-served to preserve the rights the Fifth Circuit has now recognized, both as to the agencies' use of ALJs in general and the right to pursue injunctive relief earlier than might previously have been deemed possible. In a signal of the importance of Cochrans potential impact beyond the SEC context, Solicitor General Elizabeth Prelogar asked the Supreme Court on May 19, 2022, to coordinate the briefing schedules (though not the arguments) of Cochran and Axon Enterprise, Inc. v. Federal Trade Commission-a case presenting similar questions about federal district courts' jurisdiction over challenges to the FTC's structure.5 Indeed, these cases and Jarkesy alike will have a profound impact on the extent to which many government agencies can utilize ALJs and the ways future litigants can challenge those ALJs' authority. Conclusion The practical impact of Jarkesy and Cochran is to leave the SEC and numerous other federal agencies facing serious questions about the continued viability of their in-house courts. [...]these issues are resolved by the Supreme Court or Congress, litigants will undoubtedly continue to challenge the ability of the SEC and other government agencies to even bring such cases before such tribunals.