I just read this article – admittedly authored by lawyers, Ethan Brecher and Ana Montoya, whose website provides that one of their three principal areas of practice is representing investors “who have been defrauded by their securities brokers”[1] – that advocates for a new FINRA rule designed “to limit wasteful post-arbitration appeals by brokerage
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Beyond Lucia: The Supreme Court’s Decision Is Just the Beginning
Here is an important post by my partner, Ken Berg, regarding SEC administrative proceedings, and what we can expect following the Supreme Court’s recent decision in Lucia. – Alan
By now everyone knows the US Supreme Court declared the SEC’s administrative proceedings unconstitutional because the ALJs were improperly hired by the SEC staff instead of…
Article II Appointments Clause Defense To SEC Administrative Actions Gains Momentum In The Courts
Here is Part II of Ken Berg’s analysis of constitutional defenses that have been raised in response to the SEC’s increased use of administrative proceedings. In the interest of full disclosure, note that the Malouf case referenced towards the end is one that Heidi VonderHeide and I are handling. In addition, it also worth mentioning…
No Surprise Here: Courts Take Constitutional Complaints About SEC Administrative Prosecutions More Seriously Than The SEC
This is the first in a series of posts by my partner, Ken Berg, discussing the constitutional defenses to SEC administrative enforcement actions, which we are called upon regularly to defend. Each subsequent post will discuss one of the constitutional issues and report the current state of the law as to that defense. Ken’s next…
2017 Off To A Bad Start For The SEC As The 10th Circuit Finds SEC ALJs To Be Unconstitutional
Many industry authors – including me[1] – have devoted a lot of attention lately to the SEC’s increased use of Administrative Proceedings (rather than Federal court cases) in recent years, and questioned the fairness of such proceedings, given their relative lack of discovery tools, the short timeframe provided within which to prepare a case…
Looking For A Silver Lining: Post-Election Thoughts On The SEC
Wednesday morning marked the confluence of two events. First, like the rest of the world, I awoke to the reality of the results of the presidential race. Then, as soon as I got to the office, I received the results of a case (on which I have previously blogged) that the SEC’s Division of…
Advertising Case Loss Reveals Limits To FINRA’s Jurisdiction Over Outside Business Activities
It is a simple fact that a broker-dealer has no obligation to supervise a disclosed outside business activity. How do I know? FINRA has said so. This, for instance, comes straight from Reg Notice 05-50: “Rule 3030 does not require that the firm supervise or even approve an outside business activity, although a…
Updates: Two Losers + One Positive Note = A Bad Week For Broker-Dealers
There have been some developments this week in a few matters on which I have previously offered my views. To help you stay on the cutting edge of financial world current events as you mingle at your upcoming Cinco de Mayo fiestas, here are three updates. Two, not surprisingly, represent wins for the regulators. The…
Nobody’s Perfect (And Even FINRA Finally Acknowledged It)
Fans of this blog (or, at least, readers of this blog who are fans of Jeopardy) will no doubt remember Alan’s prior post, published a few weeks ago, and discussing a recent case that FINRA’s Department of Enforcement brought against one of our clients. From the very beginning, we, as her counsel, were both…
The SEC’s Proposal To Improve The Fairness Of Administrative Proceedings: Not Nearly Enough To Impact Its Winning Percentage, But Enough To Make It Seem It Cares
In what many will likely consider to be an effort to quiet the increasing chorus of criticism over the SEC’s increased use of administrative proceedings over the last few years, today, the SEC announced a proposal to amend several of the rules governing those proceedings. While the SEC did not expressly acknowledge that the amendments…