Corporations, Securities & Antitrust

Constitutionality of Administrative Law Judges at the Securities and Exchange Commission and Elsewhere - Event Audio/Video

2015 National Lawyers Convention
John S. Baker, Jr., Stephen Crimmins, Todd Pettys, Tuan Samahon, F. Scott Kieff November 17, 2015

The Securities and Exchange Commission (SEC) has recently increased its use of administrative proceedings, before Administrative Law Judges (ALJs), to seek civil penalties, as an alternative to proceeding in an Article III court. Other federal regulatory and enforcement agencies use ALJs for various purposes at various rates. Although no single set of rules governs all ALJs, they typically differ from Article III courts in important ways, bringing their use under recent criticism. As two examples, ALJs do not enjoy life tenure and they are sometimes employed by and answerable to the agency itself. Our panel will discuss the pros and cons of the use of ALJs at the SEC and other agencies.

Corporations: Constitutionality of Administrative Law Judges at the Securities and Exchange Commission and Elsewhere
2:00 p.m. – 3:30 p.m.
East Room

  • Prof. John S. Baker, Jr., Visiting Professor, Georgetown University Law Center
  • Mr. Stephen J. Crimmins, Shareholder, Murphy & McGonigle PC
  • Prof. Todd E. Pettys, H. Blair and Joan V. White Chair in Civil Litigation, University of Iowa College of Law
  • Prof. Tuan Samahon, Villanova University School of Law
  • Moderator: Hon. F. Scott Kieff, Commissioner, International Trade Commission

The Mayflower Hotel
Washington, DC

Guilty as Charged: The Yates Memo - Podcast

Criminal Law & Procedure Practice Group Podcast
James R. Copland, Paul J. Larkin, John G. Malcolm October 26, 2015

On September 15, 2015, Deputy Attorney General Sally Yates issued a much-talked about memo, directing federal prosecutors to focus their efforts on individual corporate wrong-doers, not just corporate entities. Unclear in the minds of many is just how much effort will now be expended on corporate entities vs. individuals. Some assert that prosecution of corporate entities is rarely a good idea, since the punishment negatively effects the shareholders, who were often the victims of the initial wrongdoing. Others note that it can be near impossible to prove what should be a required guilty state of mind in an individual operating within a corporate structure. More complications arise when individuals rely in good faith on legal advice from in-house or outside counsel.


  • James R. Copland, Director, Center for Legal Policy, Manhattan Institute for Policy Research
  • Paul J. Larkin, Senior Legal Research Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
  • Moderator: John G. Malcolm, Director, Edwin Meese III Center for Legal and Judicial Studies, and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, The Heritage Foundation

Unplugging FERC?: Federal Energy Regulatory Commission v. Electric Power Supply Association - Podcast

Federalism & Separation of Powers and Environmental Law & Property Rights Practice Groups Podcast
Erik S. Jaffe October 21, 2015

In a case that could have serious implications about the limits of judicial review, the Supreme Court will be deciding a narrow statutory interpretation question. The initial question is whether FERC has authority to regulate the rules used by operators of wholesale-electricity markets to pay for reductions in electricity consumption and to recoup those payments through adjustments to wholesale rates. But wrapped within that question is how much deference the Supreme Court is willing to give FERC on this matter.


  • Mr. Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC

Supreme Court Declines to Hear Blockbuster Insider Trading Case: What’s Next After United States v. Newman? - Podcast

Corporations, Securities & Antitrust Practice Group Podcast
James M. Burnham, Peter M. Thomson October 20, 2015

On October 2, 2015, the United States Supreme Court denied certiorari in United States v. Newman, a high-profile case dealing with the prosecution of two hedge fund managers for alleged insider trading. The Second Circuit Court of Appeals overturned their convictions, and the Department of Justice urged the Supreme Court to take the case and claimed the Second Circuit’s approach to insider trading would greatly reduce the government’s ability to prosecute insider trading. What is the current state of insider trading law? Will the Supreme Court eventually be forced to intervene and provide clarity?


  • James M. Burnham, Associate, Jones Day
  • Peter M. Thomson, Special Counsel, Stone Pigman Walther Wittmann LLC

Consumer Financial Protection Bureau Update - September 2015 - Podcast

Financial Services & E-Commerce Practice Group Podcast
Wayne A. Abernathy, Julius L. Loeser September 29, 2015

Members of the Federalist Society’s Financial Services & E-Commerce Practice Group Executive Committee provided an update on recent important activity at the Consumer Financial Protection Bureau (CFPB).

  • Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association
  • Julius L. Loeser, Of Counsel, Winston & Strawn LLP