Posts from June 2017.

The Quebec Court of Appeals recently held in an advisory opinion that Canada's attempt to create a national securities regulation scheme with the voluntary participation of the provinces is unconstitutional. Canada's Constitution Act of 1867 grants provinces exclusive authority to regulate securities within their provincial lines. In 2011, the Supreme Court of Canada struck down the Canadian Securities Act, which attempted to establish a central regulation scheme on the basis that the Constitution granted securities regulation power to the provinces.

In an effort to get ...

A unanimous Supreme Court held June 5 that SEC disgorgement is a "penalty" subject to five-year limitations under 28 U.S.C. §2462 and Gabelli v. SEC, 568 U.S. 442 (2013)(5-year limitations applies to civil monetary penalties).

Justice Sotomayor's Opinion started with the premise that a "penalty is a punishment … imposed and enforced by the State," redressing a public wrong for punishment and deterrence, rather than victim compensation. Slip Op. at 5-7. She rejected all three of the SEC's standard arguments.

First, the Court held that deterrence is not a legitimate non-punitive ...

Posted in: SEC, Supreme Court

On June 1, new SEC Chair Clayton returned the SEC to the arena in the policy debate surrounding the DOL's Fiduciary Rule. Clayton's public statement responded to a direct invitation for SEC participation by DOL Secretary Acosta in his Wall St. Journal op-ed last week. Acosta used the article to announce there would be no further delay in the DOL Rule, despite continuing study.

In a masterful understatement without apparent irony, the Chair noted: "The SEC has been reviewing this area for some time, including through the RAND study of investor perspectives commissioned in 2006, the ...

Posted in: Fiduciary Rule

Last week Labor Secretary Acosta chose a Wall Street Journal op-ed to announce DOL's decision not to delay the "fiduciary rule" past the once-extended June 9 effective date. See A. Acosta, Deregulators Must Follow the Law, so Regulators Will Too¸ Wall St. J. at A19 (May 23, 2017); our blog, here: blogs/securities-litigation/2017/05/25/dol-wont-delay-fiduciary-rule-past-june-9/

This week, opponents answered, with the lead counsel for the industry's litigation challenge summarizing those arguments on the same op-ed page. See E. Scalia, Godzilla (the Fiduciary Rule) Ate ...

Posted in: Fiduciary Rule
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