Celesq® Programs

Challenging the SEC in Federal Court: Recent Developments in Case Law and Practice Notes

Active
Program Number
3103
Program Date
2021-01-14

Challenging an ongoing investigation by the SEC is a daunting task, particularly for those identified as subjects of the investigation. Two recent holdings, one by the Third Circuit in Gentile v. Sec. & Exch. Commn, 2020 WL 5416297 (3d Cir. Sept. 10, 2020) and the other by the United States District Court for the District of New Jersey in Sec. & Exch. Commn v. Gentile, 16-cv-01619-BRM-JAD (Order Sept. 29, 2020), both of which involved the same parties, offer some clarification on when and how best to mount such a challenge. The Third Circuits opinion makes clear that the SECs ability to investigate is one of the “rare circumstances in which an agencys action is exempt from the waiver of sovereign immunity that might otherwise apply under the Administrative Procedure Act and, as a result, is not subject to judicial review. By contrast, the district courts opinion reinforces that, once an investigation results in an enforcement action in federal court, the SEC is subject to the courts rules and review as any other litigant. Taken together, these opinions present both practitioners and those in the securities industry with useful guidance in when and how to challenge the SEC.

Available in States

  • California
  • Florida
  • Georgia
  • New Jersey
  • New York
  • Texas Self Study

Program Categories

  • Administrative Law & Regulations
  • Banking & Finance Law
  • Business Organizations & Contracts
  • Corporate and Securities Law
  • Federal Courts
  • Florida Eligible
  • International Law
  • International Law & Global Trade
  • Securities & Investing
  • Securities and Antitrust Litigation