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Gerald Hodgkins

A former Associate Director for the U.S. Securities and Exchange Commission’s Enforcement Division (SEC), Gerald Hodgkins has a broad regulatory enforcement practice focused on representing financial institutions, public companies and individuals in investigations and enforcement actions brought by the key financial regulators. Jerry has extensive experience in matters pertaining to the SEC, with particular focus on broker-dealer and investment adviser regulation, public company accounting and U.S. anti-corruption law. He also has represented clients in matters before the Public Company Accounting Oversight Board (PCAOB).

During his 20-year tenure at the SEC, Jerry oversaw more than 100 enforcement matters, covering the entire breadth of the SEC’s law enforcement authority. In addition to matters involving financial services regulation and public company oversight, Jerry oversaw multiple investigations involving insider trading, the Foreign Corrupt Practices Act (FCPA), and municipal securities regulation. The enforcement actions he oversaw included the largest penalty in SEC history for issuer reporting and disclosure fraud and the first, and still largest, settlement involving the clawback of executive compensation under Section 304 of the Sarbanes-Oxley Act of 2002.

In 2020, Jerry was elected to the steering committee of the Corporation, Finance and Securities Law Community of the DC Bar. He frequently speaks at conferences and continuing education programs and has authored several articles focused on SEC enforcement.

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On Monday, November 7, the Supreme Court heard argument in Axon Enterprise, Inc. v. FTC and SEC v. Cochran to decide whether a party subject to an FTC or SEC administrative proceeding can simultaneously challenge the constitutionality of an administrative proceeding, or even of the agency itself, in federal district court rather than waiting for final agency action.  At least five Justices expressed some measure of support for the private parties’ arguments, which indicates that the Court may permit certain kinds of collateral constitutional attacks (e.g., due process and appointments clause claims) at the outset of administrative proceedings.

Although predicting the outcome of any case from the oral argument is extremely difficult, three Justices – Neil Gorsuch, Samuel Alito, and Clarence Thomas – expressed strong support for finding in Axon’s and Cochran’s favor. Through their questions, they implied that 28 U.S.C. Section 1331, which grants federal district courts “original jurisdiction of all civil actions arising under the Constitution of the United States,” provides a clear grant of jurisdiction over constitutional claims and neither the FTC Act nor the Securities Exchange Act of 1934 (“the Exchange Act”) could strip district courts of that jurisdiction. They also suggested that Free Enterprise Fund v. PCAOB requires a finding for the companies. In PCAOB, the Court held that a district court had jurisdiction to hear an appointments clause challenge to PCAOB’s structure despite the fact that the SEC had not yet issued a final order against Free Enterprise Fund.

Other justices appeared to favor the private parties, but not as overtly. Chief Justice John Roberts’s questions suggested that PCAOB may prove to be an insurmountable barrier to the government’s claims and that the availability of jurisdiction in other forums (i.e., the court of appeals) under the FTC Act and the Exchange Act clearly does not act as an implied removal of jurisdiction from Section 1331. Justice Brett Kavanaugh’s questions indicated that he believes that the issue may be decided solely by reference to the “wholly collateral” factor of the Thunder Basin test, which courts have used to guide determinations about when a party may bring an Article III challenge to agency proceedings before those proceedings have concluded. Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) (holding that the statutory review scheme of the Federal Mine Safety and Health Amendments Act of 1977 precludes a district court from exercising subject-matter jurisdiction over a pre-enforcement challenge to the Act). He stated that clarity, certainty, and speed counseled in favor of permitting district courts to hear constitutional claims.Continue Reading Supreme Court Considers Whether to Allow Early Constitutional Challenges to FTC and SEC Administrative Proceedings