In the fallout of the 2007-2008 financial crisis, the Securities and Exchange Commission has been attacked for the size of penalties paid by the industry in settlements with the regulator. Recently, a judge in the Eastern District of New York, Frederic Block, decried the statutory limitation of SEC penalties,1 and Professor John Coffee advocated a substantial increase in the amount of SEC penalties.2 Historically, SEC penalties are relatively recent, and for much of the 1990s posed issues for the SEC, because the potentially criminal nature of the remedy (under a since overruled Supreme Court case) gave rise to a possible double-jeopardy defense in parallel criminal proceedings. Now, with SEC penalties higher than ever—despite the public clamor for even higher penalties—a decision by the Supreme Court last term, Southern Union v. United States,3 again raises the specter for the SEC that when the SEC seeks penalties in “civil” actions, defendants might deserve the constitutional protections afforded criminal defendants.
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