Is SEC Aggressiveness Leading to More Trials and Defeats?

Luis Mejia, the SEC Enforcement Division’s chief litigation counsel, says that the SEC has a 21-6 trial record during the current fiscal year (which ends September 30) and a 48-12 record during the past three fiscal years. Mejia also told the National Law Journal that the SEC has prevailed on 81 percent of the motions for summary judgment filed by defendants in the past two fiscal years.

Howard Schiffman
Howard Schiffman

The article in the NLJ looks at a recent flurry of SEC cases dismissed by federal courts.  According to some defense counsel, these victories may be the result of the SEC taking such an aggressive stance in cases that defendants and their lawyers feel compelled to litigate.  “The cases that are going to trial are marginal, cases that should never have been brought,” said Howard Schiffman, head of securities litigation at Schulte Roth & Zabel.  “What you have is the price of poker has gone up so substantially for defendants that they have no choice but to litigate,” Schiffman said. “Twenty-five years ago, you could settle with the SEC and go on with your career. In the current milieu it is often career-ending.”

Read the National Law Journal article