Jarkesy and Loper: Bombshells or Busts?

Much ink has been spilled on the recent decision by the U.S. Supreme Court (Court) in SEC v. Jarkesy, with some commentators proclaiming that the decision signals the end of the administrative state and others dismissing it as having few practical consequences. This guest article by MoloLamken attorneys Eric R. Nitz and Kenneth E. Notter III discusses the Court’s decision in Jarkesy; the implications for the SEC and other agencies, such as the CFTC, as well as for pending and future enforcement actions; and what Jarkesy, when read together with Loper Bright Enterprises v. Raimondo, means for the future of the SEC and its approach to rulemaking and enforcement. For more on Jarkesy and the lower court decisions, see “Common Law Fraud and SEC v. Jarkesy: The Key Issue Underlying the Questions Presented” (Mar. 28, 2024); “Agency Power and Adjudication: The Government Seeks Supreme Court Review of Jarkesy v. SEC” (Jun. 8, 2023); “A Jury of Your Peers: Fifth Circuit Ruling in Jarkesy v. SEC Broadly Expands the Right to a Jury Trial for SEC Actions” (Jul. 21, 2022); and “Fifth Circuit Decision Could Hamstring SEC Enforcement Abilities” (Jun. 9, 2022).

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