Overview
Law360 quoted Dan Mullen in a May 20 article titled "FERC Judges Won't Be Felled By 5th Circ. SEC Ruling." The article discusses a Fifth Circuit decision made on May 18 that the U.S. Securities Exchange Commission’s use of in-house judges is unconstitutional. The decision will also impact the Federal Energy Regulatory Commission's (FERC) in-house enforcement process as the agency uses administrative law judge's in gas market manipulation cases. However, the decision shouldn’t affect FERC's nonmarket manipulation enforcement work.
Dan called attention to the fact that the Fifth Circuit said that "fraud actions are not new actions unknown to the common law" and securities fraud suits "are not uniquely suited for agency adjudication." He added, "I don't know that statutorily authorized FERC tariffs are a matter of common law….Neither reliability nor ratemaking would have jury trials available at common law and both would be uniquely suited for agency adjudication."
The full article can be read at Law360 (subscription required).
