SEC’s ALJ Process Rolled Back by Supreme Court

The court ruled that issuing fines administratively violates the Seventh Amendment.

The Supreme Court ruled in favor of George Jarkesy in the case Securities and Exchange Commission v. Jarkesy on Thursday.

The court ruled, in a 6-3 decision, that “when the SEC seeks civil penalties against a defendant for securities fraud, the Seventh Amendment entitles the defendant to a jury trial.” The court decision continues that “while courts of equity could order a defendant to return unjustly obtained funds, only courts of law issued monetary penalties to punish culpable individuals.”

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Jarkesy was a hedge fund manager who was charged by the SEC with violating securities laws for misrepresenting two private funds he managed. Jarkesy was fined almost $1 million in disgorgement and penalties. Jarkesy challenged the SEC’s in-house administrative law judge process, under which he was fined, and argued that it was unconstitutional under the Seventh Amendment to the Constitution, which requires a jury trial and an Article III Court for civil cases.

Jay Dubow, a partner with the Troutman Pepper law firm and a former enforcement attorney with the SEC, says that based on the way the court wrote the decision, it is limited to monetary penalties in civil cases and “one can argue its limited to civil fraud cases.”

“The SEC could still seek disgorgement or equitable relief,” such as removing a board member, Dubow says, through the commission’s in-house judges.

Disgorgement is a fine that offsets unjust gains and is normally returned to impacted investors where possible, Dubow explains. Cases that seek disgorgement only “could still be brought administratively,” Dubow argues, though the SEC usually also seeks civil penalties as well but “if they seek both they would have to go to federal court.”

How this case affects other agencies is “really the big question here,” Dubow says, and this case certainly “invites challenges to other ALJs.” He names the FTC and CFTC as agencies that are likely to face new legal challenges that cite this case.

Other ALJs that do not issue civil penalties and adjudicate “public rights,” likely would also be untouched by this decision. Public rights, according to the decision, include disputes over benefits, immigration and customs, public lands, and relations with Native American tribes. During oral arguments in November, Justice Neil Gorsuch indicated that most ALJs work for the Social Security Administration and normally adjudicate disputes over benefits and so are not at issue in this case.

When it comes to the SEC’s ability to bring cases, “I don’t think it’s really going to impact it a whole lot,” Dubow says. “They have cut back on ALJs for a number of years” in favor of taking cases to court.” If the court had ruled in the SEC’s favor “I think it would have had a more profound effect,” because the SEC would likely pursue more cases administratively after the process was affirmed by the court.

 

 

SageView Launches First Pooled Plan Solutions With Transamerica

RIA jumps into the PEP space as the 3(38) investment manager and financial adviser for a couple pooled plan options.

SageView Advisory Group is getting into the pooled employer plan space through a partnership with Transamerica, the firm announced Tuesday.

SageView will serve as the 3(38) investment manager and financial adviser for plans that join its Integrity Pooled Solutions, set to launch July 1. The pooled plan options include joining the PEP, which the firms say can include plans of all sizes, or Transamerica’s retirement plan exchange for smaller plans of less than 100 employees.

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Transamerica Fiduciary Services is the pooled plan provider for the PEP, and TAG Resources, a Transamerica firm, is the 3(16) plan administrator.

SageView is joining other 401(k) advisory firms in offering their own PEP for use by its network of plan advisers; the firm currently has about 270 people across 30 offices overseeing more than $202 billion in client assets across businesses and individuals.

“Interest in retirement plans continues to grow among American workers and employers who want to maintain a competitive edge in a tight labor market,” says Chris Donnelly, chief advisory services officer at SageView. ”As a leader in advising institutions and individuals, we understand the importance of access to these plans among plan sponsors of all sizes.”

PEPs were introduced with the Setting Every Community Up for Retirement Enhancement Act of 2019, but have had slow uptake by some estimates as compared to the trillions of dollars in the defined contribution space.

Transamerica is the third largest PEP provider by assets at $1.6 billion, behind Voya Financial at more than $2 billion and Principal Financial Group at $1.7 billion, from among providers who participated in PLANSPONSOR’s 2024 DC Recordkeeping Survey. PLANSPONSOR is a sister publication of PLANADVISER.

SageView noted that plan sponsors that join its solution will also have access to its PersonalSAGE financial education and engagement platform for participants, a service that includes one-on-one financial education and guidance.

“Whether it’s the launch of our PersonalSAGE education platform or Integrity Pooled Solutions, SageView is always identifying ways to ensure plan sponsors of all sizes, and participants, regardless of the size of their account balance have the right services and support,” Donnelly says.

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