Agency Power and Adjudication: The Government Seeks Supreme Court Review of Jarkesy v. SEC

In May 2022, the U.S. Court of Appeals for the Fifth Circuit decided Jarkesy v. SEC, holding that SEC enforcement proceedings before an administrative law judge were unconstitutional on three separate grounds. Jarkesy therefore threatened a key avenue the SEC regularly pursues to enforce the securities laws. As a result, the SEC has petitioned the U.S. Supreme Court (Court) to reverse the Fifth Circuit’s decision. If the Court takes the appeal and upholds the Fifth Circuit’s decision, it could entirely reshape the SEC’s enforcement priorities going forward. This guest article by MoloLamken attorneys Eric Nitz, Catherine Martinez and Christian Ronald summarizes the Fifth Circuit’s decision, examines the SEC’s pending petition before the Court and forecasts the decision’s impact on future SEC enforcement efforts against private fund managers if the Court takes the case. For additional commentary from MoloLamken attorneys, see “How Fund Managers Can Handle Insider Trading Risks After U.S. v. Chow” (Jun. 24, 2021).

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