Jacob Frenkel quoted in Law 360: SEC Administrative Court Has A Constitutionality Problem
August 12, 2015
“This decision in the Southern District of New York is a game changer,” said Jacob Frenkel of Shulman Rogers Gandal Pordy & Ecker PA. “Decisions involving the SEC within the Second Circuit, particularly within the Southern District [of New York], carry enormous weight.”
“These decisions on the appointments clause enjoining the ALJ proceedings are like a 5-Hour Energy drink,” Frenkel said. “They provide temporary relief but not on the major issue that is fundamental to the disparities now present in the ALJ process.”
If the due process and equal protection claims were not in play, few attorneys would waste their time on the Appointments Clause issue, Frenkel added.
“The real issue remains equal protection and due process, and a helpful decision would acknowledge the importance of those critical procedural issues that are lacking in the SEC’s administrative process,” he said. “Until those are resolved, there will continue to be efforts and new arguments to try to remove these cases from the ALJ forum.”
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