New Counterattack on SEC’s Home Court Advantage

April 8, 2015  |  New York Law Journal

In the wake of the 2010 Dodd-Frank Act’s broadening of the reach of SEC administrative enforcement proceedings, the agency undertook a major shift toward pursuing such proceedings instead of federal district court actions. Administrative proceedings, which are heard by judges employed by the Securities and Exchange Commission, are widely perceived to favor the agency. Indeed, recent data on the results of such proceedings reveal that the SEC has enjoyed a lopsided record of success, compared to its far more modest record in federal court trials. In this article, we discuss federal court challenges to the SEC’s initiation of administrative proceedings, including Duka v. SEC, in which Duka relies on recent Supreme Court precedent to assert an intriguing constitutional challenge to the status of SEC administrative law judges.

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