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William F. Johnson

As the season changes to fall, and baseball playoffs and football dominate sports headlines, the home field advantage has proven important once again. But in the regulatory litigation game, it appears that even a home field advantage cannot help the Securities and Exchange Commission consistently win its enforcement trials in administrative proceedings. The SEC clearly expected to do better when it announced it would be bringing more cases in its administrative forum as opposed to district court. But in the last 25 months, the SEC has lost a number of high-profile administrative cases, notwithstanding the fact that the SEC has distinct advantages over respondents in these proceedings, such as less comprehensive discovery rules, no juries, and relaxed evidentiary requirements. Despite all these advantages, the SEC has struggled to win consistently in the administrative forum.

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