Regulatory Enforcement Defense
Practice Areas
Financial Services Litigation & Regulation
Strategic Discovery & Information Management
Looking Forward
Despite a 35-day government shutdown, a longstanding hiring freeze only recently lifted, and the challenge of policing new products and evolving trading patterns, the SEC saw a solid growth in its enforcement statistics. This vigor will unquestionably persist during 2020. As we look forward, things to watch closely include the following: The Supreme Court’s Liu case will likely resolve the question, first raised two years ago in Kokesh, of the SEC’s statutory authority to seek disgorgement in federal court. At the same time, Congress has mustered strong bipartisan support for legislation that would confirm the SECs disgorgement authority and extend the disgorgement statute of limitations from 5 to 14 years. Other pending legislation proposes to substantially increase the measure of SEC monetary penalties, including by adding a restitutionary penalty. The SEC has largely worked through its backlog of remanded administrative proceedings following the successful appointments clause challenge to its ALJs in Lucia, but its administrative adjudication system remains frozen, at least for litigated cases, by a new Constitutional challenge based on the removal clause. Finally, the SEC enforcement staff continues to struggle with the ill fit of the Howey test to digital assets, and cases during 2020 will present an opportunity to rationalize regulation of this new asset class.