SEC Leans toward Administrative Hearings

The Securities and Exchange Commission is increasingly relying on administrative hearings for its enforcement actions, according to a new report.

The report, by Sara Gilley, Heather Lazur and Alberto Vargas of Cornerstone Research, recently appeared in Law360.

“Enforcement activity in the first half of fiscal year 2015 indicates that the U.S. Securities and Exchange Commission is on track for another strong year of new enforcement actions filed,” they wrote. “The SEC continues to bring the vast majority of its enforcement cases as commission administrative proceedings before administrative law judges, a venue that has received intensifying scrutiny for allegedly favoring the SEC. In the past two years, the SEC has increased its use of administrative proceedings for many areas the commission designates ‘high priority.’”

In the first half of the current fiscal year, the SEC filed more than 80 percent of its over 300 enforcement actions as administrative proceedings, a 20 percent increase from before passage of the Dodd-Frank Act of 2010. That’s not surprising. As The Wall Street Journal recently noted, the SEC won 100 percent of administrative proceedings before administrative law judges last year, while the success rate was considerably lower when the SEC presented its cases in federal court. Thus, the SEC is likely to continue to use administrative hearings as its preferred venue, even though the commission is coming under more criticism for its increasing reliance on in-house judges who appear to be inclined to go along with the SEC point of view.

Cornerstone anticipates financial reporting actions brought as administrative proceedings will only increase. The report points out that accounting and auditing enforcement releases, or AAERs, filed in the first half of fiscal year 2015 serve as a good indicator of this trend. Of the 55 AAERs filed in the first half of fiscal year 2015, 93 percent were filed as administrative proceedings, compared to only 74 percent of the 43 AAERs filed as administrative proceedings in the same period in fiscal year 2014, and only 63 percent of the 35 releases filed in the same period in fiscal year 2013.