Document Type

Court Brief

Publication Date

2-28-2018

Abstract

The amicus brief takes no position on the merits of this case and expresses no view as to its resolution. Instead, we write exclusively to address two empirical questions raised by the debate over the Commission’s reliance on administrative enforcement of the federal securities laws. First, is there statistically reliable evidence that ALJs systematically resolve cases in a manner that differs from the resolution of equivalent Commission actions filed in federal district court? Second, has the Commission steered a disproportionate share of contested proceedings to ALJs because the Commission is more likely to prevail before those ALJs?

The amicus brief reports on the findings of an empirical analysis that examines every enforcement action filed by the SEC from the beginning of fiscal year 2007 through September 30, 2017, the end of the SEC’s 2017 fiscal year, and resolved prior to January 1, 2018. Contrary to the suggestions that appear in the press and are cited in the briefing, there is no statistically reliable evidence that the Commission has a “home court” advantage before ALJs. We also find that the SEC has continued to litigate a large majority of contested proceedings in federal district court, and not before its ALJs. There is no statistically reliable evidence that the Commission is steering a disproportionate share of litigation to the administrative forum in order to capitalize on this non-existent advantage.

Comments

Raymond J. Lucia et al. v. Securities and Exchange Commission, Docket Number. 17-130 in the Supreme Court of the United States

Additional Files
Grundfest & Velikonja, Amicus Brief in Lucia v. SEC_data file.xlsx (129 kB)
Data file for Grundfest & Velikonja, Amicus Brief in Lucia v. SEC
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