The Inferiority Complex: Hiring v. Appointing at the SEC

 

They hold hearings. They issue subpoenas. They adjudicate. In the 2016 fiscal year, they ordered $12.4 million in disgorgement and $14.5 million in civil penalties. They are the U.S. Securities and Exchange Commission’s (SEC) administrative law judges.

Administrative proceedings are commonly used by agencies to adjudicate claims or enforcement actions quicker than if the agency filed in federal court. Cases are heard before administrative law judges, or ALJs, instead of Article III judges on the federal bench. While the SEC faces numerous challenges to the partiality of its ALJs and its rules of practice, there is a preliminary challenge—are the SEC’s ALJs constitutional at all?

Hiring v. Appointing

Currently, the SEC’s ALJs are selected by the current Chief ALJ of the SEC, subject to the ALJ hiring process set forth by the Office of Personnel Management. Under the view that ALJs are employees of the SEC, this approach is perfectly fine. However, if ALJs are deemed “inferior officers,” then this selection process is unconstitutional.

The issue derives from the Appointment Clause of the Constitution. The Appointment Clause gives the President the power to appoint “primary officers,” subject to confirmation by the Senate. The clause gives Congress the power to vest appointment power for inferior officers in the President, judicial courts, or heads of departments. Thus far, there is no definitive test to determine what positions are inferior officers as opposed to mere employees.

The Split

In Bandimere v. SEC, the Tenth Circuit determined that SEC ALJS are inferior officers under the Appointment Clause. The court relied upon three facts from Freytag v. Commissioner of Internal Revenue, where the Supreme Court determined that the Tax Court’s special trial judges were inferior officers. The court wrote in Bandimere:

Those three characteristics exist here: (1) the position of the SEC ALJ was “established by Law”; (2) “the duties, salary, and means of appointment . . . are specified by statute”; and (3) SEC ALJs “exercise significant discretion” in “carrying out important functions.”

However, the D.C. Circuit reached the opposite result in Raymond J. Lucia Companies v. SEC. Here, the court determined that ALJs were employees of the SEC by primarily focusing on the fact that the ALJs’ decisions were subject to final review by the SEC Commissioners (who are primary officers).

Put otherwise, the Commission’s ALJs neither have been delegated sovereign authority to act independently of the Commission nor, by other means established by Congress, do they have the power to bind third parties, or the government itself, for public benefit.

Looking Forward

So where does this leave the law? Clearly, one circuit on its own cannot change the structure of a federal agency. If the Supreme Court concludes that the SEC’s ALJs are inferior employees, Congress would need to take swift action to create an appropriate avenue to appoint ALJs to avoid overwhelming the federal docket with cases that would have been resolved in administrative proceedings.

Speak Now or Forever Hold Your Peace: A Split on a Fiduciary’s Duty to Speak

Imagine: a member of your trusted investment club approaches you encouraging you to purchase securities in a new company, which you do because your investment club always has the group’s best interests in mind. Later you learn that this member received a commission from your transaction. You feel betrayed, but did he have a duty to tell you about his stake in your investment?

Duty to Speak

In Chiarella v. United States, the Supreme Court held, “When an allegation of fraud is based upon nondisclosure, there can be no fraud absent a duty to speak.” Such a duty is found when a party has information “that the other is entitled to know because of a fiduciary or similar relation of trust and confidence between them.”

This rule, like virtually all legal rules, reflects a balancing of competing interests. On one hand, we want to believe that people are trustworthy, particularly when a person has a fiduciary duty to us. The investment adviser industry depends on people trusting that their investment advisers have their best interests at heart. If an individual recommending the purchase of securities is deriving a commission from the sale, a potential investor would want to be wary of a potential conflict of interest.

On the other hand, is it wise to impose a duty to speak on every individual who may share information about a company offering securities? With the growth of technology, communication and the sharing of information have become constant. If such a duty is imposed on every individual who recommends a security or supplies information about a company, the chain of liability would be unending.

The Split

On whom do we impose a duty to speak? Three circuits have taken different approaches.

The Third Circuit found that a general fiduciary duty does not implicate a duty to speak. In Schiff v. United States the Court held:

“The Government argues that Schiff’s duty to disclose in the SEC filings derives from a general fiduciary obligation of ‘high corporate executives’ to the company’s shareholders . . . This argument reaches too far.”

The Second Circuit held in Securities and Exchange Commission v. Dorozkho that a duty to speak should be found wherever there is a fiduciary duty.

“[These cases] all stand for the proposition that nondisclosure in breach of a fiduciary duty ‘satisfies § 10(b)’s requirement . . . [of] a deceptive device or contrivance’.”

Finally, the Ninth Circuit extends the duty to speak to a much broader class in Paracor Finance, Inc. v. General Electric Capital Corp.

“A number of factors are used to determine whether a party has a duty to disclose: (1) the relationship of the parties, (2) their relative access to information, (3) the benefit that the defendant derives from the relationship, (4) the defendant’s awareness that the plaintiff was relying upon the relationship in making his investment decision, and (5) the defendant’s activity in initiating the transaction.”

Looking Forward

While the Ninth Circuit approach allows a judge to balance factors and find whether a duty to speak exists as a matter of fairness, this approach does not seem practical in a world where people are constantly accruing and sharing information. Thus, it makes the most sense for the court to follow the Second Circuit’s approach of only finding a duty to speak where there is a fiduciary duty, which represents the middle ground of who has a duty to speak and promotes predictability.