By Eric R. Breslin, Mauro M. Wolfe, and Jovalin Dedaj
In the last few weeks, the SEC and its administrative law judges (“ALJs”) have tested the truthfulness of the old adage, “There’s no such thing as bad publicity.”
On May 3, 2017, the United States Court of Appeals for the Tenth Circuit denied the SEC’s request to rehear a decision, in which the Court determined that the SEC’s administrative law judges were unconstitutional appointments. That decision was just another setback for the SEC in a high-stakes constitutional debate which could potentially put the issue of how the SEC appoints its ALJs before the Supreme Court. Later this month, much to the dismay of the SEC, the United States Court of Appeals for the D.C. Circuit will rehear arguments in its decision, which initially held in favor of the SEC. Continue reading Home-Field Advantage? Scrutinizing the Independence of the SEC’s ALJs
By Mauro M. Wolfe and Jovalin Dedaj
Under the new Administration, we have been promised a new tone regarding how Government interfaces with the market. This “change” is of particular interest to those who defend matters before the SEC. Will we see a change from “broken windows” enforcement where everything matters to a more traditional, and possibly, more friendly regulatory environment? Winding its way through the courts is an SEC life-altering moment: does the SEC concede that there is a five-year statute of limitations on enforcement cases including disgorgement? As far as penalties and fines are concerned, the Supreme Court has already ruled on that issue and said it does. The SEC lost that one. The question remaining is whether the Supreme Court will apply the same limitation to disgorgement and how the new SEC leadership will respond. The short answer is that such a limitation should apply. Continue reading Time is Running Out for the SEC: The Circuit Split on Limiting SEC Disgorgement to a Five-Year Statute of Limitations Signals an Impending Major Change
This week reports surfaced that a major shift in the SEC enforcement division had taken place – behind the scenes. The timing is quite interesting as the agency’s annual seminar and SEC Alumni dinner will occur at the end of the month. No doubt this will be a topic, among many, of the annual SEC cocktail regulars in DC.
The reports indicate that the Acting Chairman Michael Piwowar has centralized the power of the enforcement division to “issue subpoenas or formally launch probes,” as Reuters put it. The question that has been asked is – What does all of this really mean, really? Continue reading Changes Are Coming to the SEC Enforcement Division – What Does It All Mean?
Duane Morris special counsel Michael E. Clark, who is this event’s co-chair, will also present during several sessions at the American Bar Association’s (ABA) First Annual Foreign Corrupt Practices Act Mock Trial Institute, to be held on November 16–17, 2016, in Houston, Texas.
On Wednesday, November 16, Mr. Clark will participate in the following sessions: “Jury Selection and Voir Dire,” at 8:30 a.m.; “Initial Jury Charge and Opening Statements” at 10:00 a.m.; “Government Witness Two: FBI Agent” at 10:45 a.m.; and “Defense Witness One – Henry Hornsby” at 2:00 p.m. On Thursday, November 17, Mr. Clark will be a panelist on the topic, “Session One: Discussion of Key Strategies, Issues and Themes in the FCPA Trial,” at 8:30 a.m.
Continue reading Duane Morris’ Michael E. Clark to Present at ABA’s Foreign Corrupt Practices Act Mock Trial Institute