How A Train Wreck Changed The Constitution

In the early morning of October 3, 1970 on rural road just outside San Jose, 61-year old Engineer Anthony Gassell was at the controls of his Southern Pacific locomotive as it headed northwest.  At the same time, 24-year old Kathryn Colville was driving with her 2 1/2 year-old son, Paul, to feed her horse.  As

Court Enjoins SEC Administrative Proceeding

Last March, I posed the following question:  But if you were hailed before an unconstitutional tribunal with the ostensible authority to fine you and bar you from working, would you want a “real” court to step in and consider the constitutionality of the proceedings? At the time, I was disappointed by U.S. District Court Judge Rudolph

Defending The SEC’s Choice Of The Administrative Home Court

Wharton Associate Professor David Zaring has written an article defending the Securities and Exchange Commission’s choice to litigate in administrative rather than federal courts.  He argues that administrative adjudication “violates no rights, nor offends the separation of powers”.  Yet, he acknowledges: Lawyers often worry about administrative proceedings. “If given a choice … most practitioners would choose” district court “because

Facing Legal Challenges, SEC Proposes To Reform Administrative Proceedings

As has been widely reported elsewhere, the Securities and Exchange Commission has been facing a spate of challenges to its administrative court.  It should come as no surprise then that the SEC recently announced a number of proposals to the rules of practice in that forum.  I have already submitted a comment letter on the

Now This Is Truly Discomfiting – The SEC Proposes To Give Itself A 270 Day Extension!


In July 2010, Congress ordered the Securities and Exchange Commission to adopt a resource extraction rule within 270 days (i.e., by April 17, 2011).  The SEC missed that deadline by 1 year, 4 months and 2 days (or a total of 490 days).  In 2013, however, the U.S. District Court for the District of Columbia vacated

When Is Medical Information Considered Sensitive?

As discussed in yesterday’s post, the Securities and Exchange Commission has proposed that persons involved in administrative proceedings be required to submit all documents and other items electronically.  Under the SEC’s proposal, parties would be required to omit “sensitive health information” that is identifiable by individual.  The Privacy Act of 1974, however, prohibits agencies from disclosing information that

SEC Proposes “A Clearly Unwarranted Invasion of Personal Privacy”

Last week, the Securities and Exchange Commission proposed that persons involved in administrative proceedings be required to submit all documents and other items electronically.  The SEC is proposing these rules as part of its effort to create a comprehensive Internet-based electronic system that would, among other things, allow for the electronic filing and service of documents in

Where In The World Is An Issuer’s Home Country?

The Securities and Exchange Commission’s proposed rules setting listing standards for recovery of erroneously awarded compensation would allow exchanges to permit foreign private issuers to forgo recovery as impracticable if the recovery of erroneously awarded compensation pursuant to Section 10D would violate the home country’s laws so long as certain other conditions are satisfied.  Although the

California Judge Sides With Congress and Fifth Circuit In Whistleblower Split

Sean McKessy, Chief, Securities and Exchange Commission’s Office of the Whistleblower, Division of Enforcement discussed a recent split between the circuits this webcast broadcast last Thursday by  The split concerns whether the Dodd-Frank Act prohibits employer retaliation only against “whistleblowers”, who are defined as: . . . any individual who provides, or 2 or more individuals acting jointly who provide,

A Most Nescient Comment?


Monday was the close of the comment period on the Securities and Exchange Commission’s proposed rules with respect to listing standards requiring recovery of erroneously paid incentive compensation. In addition to myself, several commenters pointed out that the proposed rules make no allowance for state law.  I noted a potential conflict with California Labor Code