Since the inception of the Dodd-Frank Act the Securities and Exchange Commission has come under fire for its increased use of administrative proceedings in adjudicating the agency’s enforcement actions. That criticism has come to several suits in federal court claiming constitutional challenges to the system generally and most recently, the Administrative Law Judges themselves. Until June of 2015, when Hill v. the SEC took place in federal court, the Government was unbeaten in when arguing against these constitutional challenges. Hill, however found that it was likely the SEC had hired their Administrative Law Judges unconstitutionally. The SEC Administrative Law Judges have progressively been given more power through Congressional legislation and the question became whether these judges were mere employees, or inferior officers under the executive branch. While I think it is likely that an appellate court would uphold such an interpretation, I do not think it will lead to less SEC administrative proceedings and could potentially cause financial harm to those with cases currently in such a proceeding.
{"title":"Ice Skating up Hill : Constitutional Challenges to SEC Administrative Proceedings","authors":"Thomas Glassman","doi":"10.2139/SSRN.2641178","DOIUrl":"https://doi.org/10.2139/SSRN.2641178","url":null,"abstract":"Since the inception of the Dodd-Frank Act the Securities and Exchange Commission has come under fire for its increased use of administrative proceedings in adjudicating the agency’s enforcement actions. That criticism has come to several suits in federal court claiming constitutional challenges to the system generally and most recently, the Administrative Law Judges themselves. Until June of 2015, when Hill v. the SEC took place in federal court, the Government was unbeaten in when arguing against these constitutional challenges. Hill, however found that it was likely the SEC had hired their Administrative Law Judges unconstitutionally. The SEC Administrative Law Judges have progressively been given more power through Congressional legislation and the question became whether these judges were mere employees, or inferior officers under the executive branch. While I think it is likely that an appellate court would uphold such an interpretation, I do not think it will lead to less SEC administrative proceedings and could potentially cause financial harm to those with cases currently in such a proceeding.","PeriodicalId":114268,"journal":{"name":"Journal of Business & Securities Law","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114268839","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On November 28, 2011, Judge Jed S. Rakoff of the United States District Court in Manhattan declined to approve a consent judgment between the Securities and Exchange Commission (SEC) and Citigroup. Because Citigroup had not admitted or denied the allegations in the consent decree, Judge Rakoff concluded that he was unable to make an informed judgment about the merits of the settlement. Judge Rakoff’s decision has met with serious criticism from legal observers and rekindled discussion about the scope of judicial review of agency consent decrees, which have become a valuable agency enforcement tool. This paper attempts to articulate a clear standard of review focused on agency disability caused by a misalignment of interest or inadequate information. The concrete and deferential standard described in this paper would maintain an important gate-keeping function for the court without unduly interfering with agency policy. And a restricted inquiry, focused on conflicts of interest and adequate consideration, is appropriate given the limited institutional competence of the judiciary. The judiciary is not well situated to evaluate the terms of a settlement, which is the product of a complex balancing of agency priorities and is informed by the agency’s overall strategy and policy objectives. It is difficult to see what advantages a judge with a heavy caseload can add to a deal brokered by an agency staff charged solely with promoting the public interest in a particular area. By contrast, judges can be alert to conflicts of interest, as they are in other areas of the law. When evaluating an agency’s structure and information, the reviewing judge is not at an informational disadvantage relative to the parties. As a result, the court can determine whether the agency is properly accounting for social costs and benefits, and can ensure that the agency is not ignoring an important third party interest. Absent any indication of conflict or structural impairment, and given a reasonable justification for the settlement, the judge need not scrutinize the merits of the settlement and incur the costs of judicial review.
2011年11月28日，曼哈顿联邦地方法院法官Jed S. Rakoff拒绝批准美国证券交易委员会(SEC)与花旗集团之间的同意判决。由于花旗集团既没有承认也没有否认和解协议中的指控，拉科夫法官得出结论，他无法对和解协议的价值作出明智的判断。拉科夫法官的决定遭到了法律观察人士的严厉批评，并重新引发了对行政机关同意令的司法审查范围的讨论，这已成为一项宝贵的行政机关执法工具。本文试图阐明一个明确的审查标准，侧重于由利益失调或信息不足引起的机构残疾。本文所描述的具体和恭敬的标准将为法院保持重要的看门功能，而不会过度干扰机构政策。考虑到司法机构有限的机构能力，集中于利益冲突和充分考虑的有限调查是适当的。司法机构不善于评价解决办法的条件，这是机构优先事项的复杂平衡的产物，并根据机构的总体战略和政策目标作出判断。很难看出，一个案件负担沉重的法官能给一个只负责在某一特定领域促进公众利益的机构人员促成的交易带来什么好处。相比之下，法官可以对利益冲突保持警惕，就像他们在其他法律领域一样。在评估机构的结构和信息时，审查法官并不处于相对于当事人的信息劣势。因此，法院可以确定该机构是否适当地考虑了社会成本和收益，并可以确保该机构没有忽视重要的第三方利益。在没有任何冲突或结构性损害迹象的情况下，并给予和解的合理理由，法官不需要审查和解的是非事实，也不需要承担司法审查的费用。
{"title":"Lessons from SEC v. Citigroup: The Optimal Scope for Judicial Review of Agency Consent Decrees","authors":"D. S. Lund","doi":"10.2139/SSRN.2246033","DOIUrl":"https://doi.org/10.2139/SSRN.2246033","url":null,"abstract":"On November 28, 2011, Judge Jed S. Rakoff of the United States District Court in Manhattan declined to approve a consent judgment between the Securities and Exchange Commission (SEC) and Citigroup. Because Citigroup had not admitted or denied the allegations in the consent decree, Judge Rakoff concluded that he was unable to make an informed judgment about the merits of the settlement. Judge Rakoff’s decision has met with serious criticism from legal observers and rekindled discussion about the scope of judicial review of agency consent decrees, which have become a valuable agency enforcement tool. This paper attempts to articulate a clear standard of review focused on agency disability caused by a misalignment of interest or inadequate information. The concrete and deferential standard described in this paper would maintain an important gate-keeping function for the court without unduly interfering with agency policy. And a restricted inquiry, focused on conflicts of interest and adequate consideration, is appropriate given the limited institutional competence of the judiciary. The judiciary is not well situated to evaluate the terms of a settlement, which is the product of a complex balancing of agency priorities and is informed by the agency’s overall strategy and policy objectives. It is difficult to see what advantages a judge with a heavy caseload can add to a deal brokered by an agency staff charged solely with promoting the public interest in a particular area. By contrast, judges can be alert to conflicts of interest, as they are in other areas of the law. When evaluating an agency’s structure and information, the reviewing judge is not at an informational disadvantage relative to the parties. As a result, the court can determine whether the agency is properly accounting for social costs and benefits, and can ensure that the agency is not ignoring an important third party interest. Absent any indication of conflict or structural impairment, and given a reasonable justification for the settlement, the judge need not scrutinize the merits of the settlement and incur the costs of judicial review.","PeriodicalId":114268,"journal":{"name":"Journal of Business & Securities Law","volume":"339 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122920853","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Taking the Series LLC Seriously: Why States Should Adopt This Innovative Business Form","authors":"M. Pohl","doi":"10.2139/ssrn.2907690","DOIUrl":"https://doi.org/10.2139/ssrn.2907690","url":null,"abstract":"...................................................................................209","PeriodicalId":114268,"journal":{"name":"Journal of Business & Securities Law","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117041949","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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