1. The Government Can Collect Before You Get Your Day in Court
On June 4 and 5, the Supreme Court issued two rulings that changed how federal agencies can come after companies.
On June 4 and 5, the Supreme Court issued two rulings that changed how federal agencies can come after companies.
In the first case, AT&T and Verizon were fined a combined $104 million by the FCC (Federal Communications Commission) for selling customers' real-time phone location data to third parties without consent. The carriers argued they had a constitutional right to a jury trial before paying. The Court disagreed, 8-1. Chief Justice Roberts held that the FCC can impose penalties through its own administrative process. A jury only enters the picture if the government later sues to collect in federal court, and that step is not guaranteed to happen.
In the second case, the SEC (Securities and Exchange Commission) went after a stock trader for running a pump-and-dump scheme and demanded he surrender his profits. He argued the SEC had to prove that specific investors actually lost money before it could take anything. The Court disagreed unanimously, 9-0. Justice Gorsuch wrote that the SEC can order you to give back profits based solely on the fact that you broke the rules. No identified victim required. No specific dollar of loss required.
These two rulings work together. The first means agencies can fine you without a jury. The second means they can take your profits without proving anyone was harmed. For any federal agency that operates a similar enforcement structure, and most do, the path from investigation to penalty just got shorter and less expensive to travel.
The timing is pointed. The SEC's expanded breach notification rule, Regulation S-P (which requires financial firms to notify customers within 30 days of a data breach), took full effect for smaller firms on June 3. The SEC has been quiet about enforcement so far. But the Court just removed two of the procedural barriers that made enforcement slow and costly to pursue.