D.C. Circuit Delivers Significant Victory for the SEC in Upholding the Use of Administrative Law Judges in Enforcement Proceedings

On August 9, 2016, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) ruled in favor of the SEC, rejecting a challenge to the constitutionality of the agency’s practice of bringing enforcement actions in front of administrative law judges (ALJs). In finding for the SEC against a registered investment adviser, the D.C. Circuit validated a long-standing practice utilized by the SEC to try certain enforcement cases in administrative proceedings. In addition to reviewing the D.C. Circuit’s decision, this article provides background on the SEC’s history of bringing contested cases before ALJs, discusses some of the recent criticism surrounding these tribunals and explores ways the decision may influence the SEC’s enforcement of hedge fund managers. For additional discussion of the SEC’s use of administrative proceedings, see “Four Insider Trading Enforcement Trends with Direct Impact on Hedge Fund Trading Strategies (Part One of Three)” (Nov. 13, 2014); and “Compliance Obligations for Registered CPOs and CTAs, OTC Derivatives Trading, SEC Examinations of Private Fund Managers and the JOBS Act (Part Two of Two)” (Feb. 6, 2014).

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