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ARTICLE · 12 SEPTEMBER 2016

Sokenu Authors Article On Constitutionality Of SEC Administrative Proceedings

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The SEC's selective use of administrative proceedings (AP) for some, but not all, litigated enforcement actions has been the subject of significant public criticism in recent years.

United StatesLitigation, Mediation & Arbitration
A&O Shearman
A&O Shearman
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Previously published in New York Law Journal on September 6.

The Securities and Exchange Commission's (SEC) selective use of administrative proceedings (AP) for some, but not all, litigated enforcement actions has been the subject of significant public criticism in recent years. Respondents have brought numerous challenges to the SEC's use of APs arguing that the SEC's selective use of the proceedings is inherently unfair. Respondents achieved a measure of success in 2015 by challenging APs on the ground that administrative law judges (ALJs) were not properly appointed pursuant to the Appointments Clause of Article II of the Constitution and, thus, could not issue decisions in APs.1

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