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Did The SEC Violate The Administrative Procedure Act?

Yesterday, Broc Romanek wrote about the joint dissent issued by Commissioners Daniel M. Gallagher and Michael S. Piwowar with respect to the Commission’s recent adoption of Regulation SBSR which requires regulatory reporting of security-based swap information and the public dissemination of security-based swap transaction, volume, and pricing information by registered security-based swap data repositories.  But when exactly…

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SEC Shamelessly Targets Late Filers

Yesterday, the Securities and Exchange Commission announced “charges” against 28 officers, directors, or major shareholders for failing to report timely ownership and transactions as required by Section 16(a) and Section 13 of the Securities and Exchange Act of 1934.  These individuals were ordered pay thousands of dollars in fines and to cease and desist from future…

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Finding Ambiguity – The Future Of Mandatory Rule Making Under The Dodd-Frank Act

When Congress says that an agency “shall” adopt a rule, is there any room for discretion on the part of the agency?  That was the question for U.S. District Court Judge Robert L. Wilkins in International Swaps & Derivatives Ass’n v. U.S. Commodity Futures Trading Comm’n, Civil Action No. 11-cv-2146 (RLW) (D. D.C. Sept. 28,…

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The SEC’s Rule Making Rule Doesn’t Follow The Rules

As discussed in yesterday’s post, Congress has once again directed the Securities and Exchange Commission to engage in rule making.  The SEC almost always adopts rules through the informal rule making procedures of the Administrative Procedure Act (5 U.S.C. § 553) rather than the formal, on the record provisions (5 U.S.C. §§ 556 & 557).  In general, Section 553…

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Comment Letters And The APAs

Yesterday, Broc Romanek wrote that the Commodity Futures Trading Commission had removed a comment letter from its website.  This caught my attention because I teach Administrative Law at the University of California, Irvine School of Law and this very week I had used the CFTC’s website to demonstrate to my class how the informal comment process…

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