At oral argument, the Justices seemed primarily concerned about not opening the flood gates to all sorts of peripheral challenges that could be labeled as being “constitutional.” The Court’s ultimate ruling continues to reflect that concern. One got a sense from the colloquy with the Court that the Court was not opposed to the notion of allowing parties to go straight to district court with so-called “structural” constitutional challenges. The oral argument in the Axon and Cochran cases held on Novemforeshadowed the Court’s ultimate decision. The government reasoned that only after the proceeding had run its course and resulted in an adverse determination against the person or entity at issue would those constitutional challenges be ripe to be heard by the court of appeals (as opposed to a district court). The government had taken the contrary position – namely, that any constitutional challenge to the use of the ALJs must first be made within the administrative proceeding itself. We also describe what we learned from the oral argument in Slack and what clues the argument provided for how the Court might ultimately rule in that case.Įarlier this month, the Supreme Court reached a unanimous decision in the Axon and Cochran appeals, holding that targets of enforcement actions brought by the FTC and SEC can file suit in federal district court challenging the constitutionality of the agency proceedings against them when the government has chosen to bring claims in an administrative proceeding before an ALJ. Below, we outline the Court’s ruling in the Axon and Cochran cases and assess the potential impact it could have. ![]() Pirani, which will determine whether private plaintiffs who buy shares in so-called “direct listings” can bring claims under Sections 11 and 12(a)(2) of the Securities Act of 1933. A few days later on April 17, 2023, the Court heard oral argument in Slack Technologies, LLC (f/k/a Slack Technologies, Inc.), et al., v. Cochran, which authorized parties to bring constitutional challenges to the Federal Trade Commission’s (FTC) and the Securities and Exchange Commission’s (SEC) ability to pursue claims in their “home courts” before administrative law judges (ALJs). ![]() ![]() Earlier this month, on April 14, 2023, The Supreme Court issued its decision in Axon Enterprise, Inc.
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