hAWKEYE V. SECURITIES AND EXCHANGE COMMISSION - CIV. NO. 99-X XXXX
REMEMBER, AS MR. JUSTICE BRENNAN ALWAYS SAY:
"The Court's opinion does not reveal how FLAGRANTLY ABUSIVE the Security and Exchange Commission's use of its § 12(k) authority has been. That section authorizes the Commission "summarily to suspend trading in any security . . . for a period not exceeding ten days. . . ." 15 U.S.C. § 78l(k)...I agree that § 12(k) is clear on its face, and that it prohibits this administrative practice. But even if § 12(k) were unclear ...even a 1-year suspension as here, without notice or hearing SO OBVIOUSLY VIOLATES FUNDAMENTALS OF DUE PROCESS AND FAIR PLAY that no ... reasonable individual could suppose that Congress intended to authorize such a thing. .See also 15 U.S.C. § 78l(j) (1976 ed.) (requiring notice and a hearing before a registration statement can be suspended), discussed ante at 121-122.
Moreover, THE SEC's PROCEDURAL IMPLEMENTATION OF ITS § 12(k) POWER MOCKS ANY CONCLUSION OTHER THAN THAT THE SEC SIMPLY COULD NOT CARE WHETEER ITS § 12(k)[TEMORARY SUSPENSION] ORDERS ARE JUSTIFIED....." *
* Mr. Justice Brennan
Concurring Opinion
speaking on the SEC's 10-day suspension authority in
SEC v. Samuel Sloan
(http://www.ishius.com/sec.htm )
The Sloan case was decided at a time when the SEC did not even issue its vague press releases generally setting out the "questions [that] have been raised"....While the particular unconstitutional evil that Justice Brennan was addressing has been corrected to some degree, one has to wonder what he would have said about the SLUP case. While technically, it is true that "trading" is not suspended for more than 10-days, the practical effect of the suspension is that what one generally considers as "trading" never occurs again unless the SEC finishes its investigation, discloses its findings, and the company complies with the SEC's demands to the satisfaction of market makers, or successfully challenges those demands in the courts.
The 10-day "temporary" suspension directly results in a direct, immediate, and heavy penalty -- delisting from the national exchanges and all that necessarily follows from that!! And this punishment of the company and its stockholders occurs before and without a fair public hearing of the charges i.e. without due process of law! EVERYONE KNOWS THIS!!! THE SEC'S PRACTICE IS A CONSTITUTIONAL SHAM!!!!
It is generally recognized that investigatory proceedings are not required to comply with the same full extent of due process requirements as those required in adjudicatory (trial-type) proceedings. But the 10-day "temporary" suspension and the following investigation render an undeniable and substantial penalty. The failure to afford full due process protections in this circumstance should be considered as having deprived SLUP and its stockholders of their property without due process of law.
hawkeye hopes that he is soon able to find the time to make this argument in an injunctive/mandamus proceeding in the United States District Court for the District of Columbia. Samuel Sloan was only a shareholder too!!! |
