3 Key Defense Arguments For Post-Lucia SEC Proceedings

Law360 (July 6, 2018, 4:23 PM EDT) -- In Lucia v. U.S. Securities and Exchange Commission, the U.S. Supreme Court held that SEC administrative law judges have been serving in violation of the Constitution’s appointments clause — so that all of their actions have been legally invalid.[1] Lucia has rattled federal enforcement agencies, and it has triggered a torrent of commentary about its long-term implications for agency in-house courts. Lucia also set up several concrete defense arguments for respondents in SEC administrative actions. This article identifies three of the most significant arguments.

The Lucia Decision

The Lucia court held that SEC ALJs are “officers of the United States” and, therefore, must be appointed in a...

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