Registration as Consent: Patching Jarkesy's Hole in SEC Enforcement

100 Notre Dame Law Review Reflection (forthcoming 2024)

27 Pages Posted: 13 Mar 2024 Last revised: 26 Mar 2024

Date Written: February 29, 2024

Abstract

In SEC v. Jarkesy, the Supreme Court is poised to hold that whenever the SEC seeks to impose monetary penalties on enforcement targets for securities fraud, it must proceed in federal court and not its own administrative forum. Many observers predict such a holding will significantly impact SEC enforcement.

But not necessarily. A simple legal patch might repair the hole Jarkesy is poised to open: parties who register with the SEC may thereby consent to its administrative jurisdiction. (Because Jarkesy and the funds he managed were not registered, his case will not resolve the issue.)

This paper shows how registration may constitute consent to SEC administrative adjudication. Drawing on Supreme Court precedent on consent to otherwise unconstitutional adjudications, I show how SEC registrants either already have consented to SEC administrative adjudication or could easily be deemed to have done so by adopting new interpretive guidance or amending a few regulatory forms.

If accepted, this constitutional consent argument would substantially insulate SEC enforcement from Jarkesy’s impact. I review all 1,481 actions the SEC brought in FY 2021 and FY 2023 and find that only 5% of original enforcement actions involved administrative proceedings against unregistered parties for fraud-related misconduct seeking monetary penalties. Limiting Jarkesy to unregistered persons would allow SEC enforcement to proceed virtually unchanged.

Keywords: Jarkesy, SEC Enforcement, Administrative Proceedings, Registration, Consent, Separation of Powers, Adjudication, Administrative Law, Securities Regulation

Suggested Citation

Platt, Alexander I., Registration as Consent: Patching Jarkesy's Hole in SEC Enforcement (February 29, 2024). 100 Notre Dame Law Review Reflection (forthcoming 2024), Available at SSRN: https://ssrn.com/abstract=4744104 or http://dx.doi.org/10.2139/ssrn.4744104

Alexander I. Platt (Contact Author)

University of Kansas School of Law ( email )

Green Hall
1535 W. 15th Street
Lawrence, KS 66045-7577
United States

HOME PAGE: http://law.ku.edu/alexander-platt

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