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Keeping your dawn raid guidance current
Unannounced inspections or ‘dawn raids’ are used by antitrust authorities to obtain evidence when there are suspicions that individuals or businesses have infringed the antitrust rules.
United States | Publication | May 2022
In a watershed opinion, a divided panel of the Fifth Circuit has ruled that the United States Securities and Exchange Commission's (SEC) system of in-house administrative tribunals is unconstitutional. The case, Jarkesy v. SEC, No. 20-61007 (5th Cir. May 18, 2022), holds that (1) defendants facing securities fraud charges have the constitutional right to a jury trial under the Seventh Amendment, (2) the Exchange Act's grant of complete discretion to the SEC to decide whether to bring charges in an administrative tribunal or in federal court violates the non-delegation doctrine and (3) the SEC's administrative law judges are unconstitutionally insulated from removal in violation of the Take Care Clause. This decision follows on the heels of several Supreme Court decisions casting doubt on the constitutionality of agency administrative proceedings, Lucia v. SEC, 138 S. Ct. 2044 (2018), and the need for targets of agency enforcement to submit to those proceedings before raising constitutional challenges in the federal courts, Cochran v. SEC, 20 F.4th 194 (5th Cir. 2021) (en banc) cert. granted, --- S. Ct. ----, 2022 WL 1528373 (May 16, 2022); Axon Enter. v. FTC, 986 F.3d 1173 (9th Cir. 2021), cert. granted in part, 142 S. Ct. 895 (2022).
These developments merit close attention among public companies and those in the financial sector. Key takeaways include:
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Unannounced inspections or ‘dawn raids’ are used by antitrust authorities to obtain evidence when there are suspicions that individuals or businesses have infringed the antitrust rules.
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The EU Foreign Subsidies Regulation, or FSR, is intended to prevent or remedy distortions of the EU internal market caused by “foreign” – meaning non-EU – subsidies benefitting companies active in the EU.
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In July 2024, the English High Court handed down a judgment on whether or not the insurers under a charterer’s liability policy were obliged to indemnify third parties, where the insured went insolvent and had not paid the underlying claim to the third parties.
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