SEC Administrative Proceedings and Equal Protection “Class of One” Challenges Evaluating Concerns about SEC Forum Choices Notes

Abstract

SEC Administrative Proceedings and Equal Protection “Class of One” Challenges: Evaluating Concerns about SEC Forum Choices Notes, 2015 Colum. Bus. L. Rev. 1195 (2015).

In the years since the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Securities and Exchange Commission has made use of its new authority to initiate administrative proceedings against individuals who previously would have faced action in federal court. Several individuals have challenged the SEC’s decision to bring enforcement actions in the administrative forum as a violation of equal protection rights. Their arguments draw on two Supreme Court cases—Village of Willowbrook v. Olech and Engquist v. Oregon Department of Agriculture—that allow “classes of one” to pursue equal protection claims.

This Note addresses this recent string of challenges. It aims to show that the current system is open to abuse and can potentially lead to the sort of unfair treatment that the Equal Protection Clause of the Constitution condemns. As such, the system by which the SEC selects a forum is in need of reforms that will alleviate the present concerns. The SEC should implement changes to minimize the burdens individuals face in administrative proceedings and should also provide greater transparency about its rationale for selecting a particular forum.