As challenges to the SEC's ALJ system sprung up in recent years, the agency began bringing more cases in federal court instead of in-house, a trend that legal experts expect to continue at least until after the Supreme Court's decision in the Jarkesy case.
But those challenges so far have not slowed down SEC enforcement. In fiscal year 2022, the SEC enforcement division posted a record $6.4 billion in penalties and disgorgement, up from $3.9 billion the previous year.
If the court were to rule in the SEC's favor in the Jarkesy case, the agency would likely bring more cases through the administrative process, said C. Dabney O'Riordan, a partner in Quinn Emanuel Urquhart & Sullivan LLP's Washington and Los Angeles offices and former head of the SEC's enforcement division's asset management unit, though sources don't expect such a ruling in this case.
In April, the Supreme Court unanimously ruled against the agency in SEC vs. Cochran, a case that focused on a procedural issue involving the SEC's use of ALJs. In that case, the plaintiff, Michelle Cochran, an accountant facing SEC administrative charges of violating federal accounting standards, originally challenged the constitutionality of the SEC's ALJ system in the Northern District of Texas in 2019. She asked the court to allow her to challenge the constitutionality of the ALJs in a U.S. District Court before the conclusion of the agency adjudication. Historically, a person or company facing charges heard before an ALJ had to go through a lengthy administrative process before bringing a case to challenge the constitutionality.
The Cochran case changed that precedent.
In light of the Cochran decision, the 5th Circuit's ruling in the Jarkesy case, a 2018 Supreme Court decision in Lucia vs. SEC that found that ALJs at the time were improperly appointed, and the conservative leaning Supreme Court, sources expect another ruling against the SEC in Jarkesy.
"This current makeup of the Supreme Court is one that could go against the ALJ process," said Christian D. H. Schultz, a Washington-based partner at Arnold & Porter Kaye Scholer LLP and former assistant chief litigation counsel in the SEC's enforcement division.
Added Mr. Dubow: "The consensus is that the court's going to rule against the SEC."
Of note, Justice Clarence Thomas in a concurring opinion in the Cochran case said that he has "grave doubts about the constitutional propriety of Congress vesting administrative agencies with primary authority to adjudicate core private rights with only deferential judicial review on the back end."