The Securities and Exchange Commission has a problem, and everyone knows it: its investigative process suffers from excessive delay, which harms both individuals and entity it investigates and its own enforcement program. This problem has long been recognized and complained about, but never remedied.
In 2010, Congress passed a law specifically designed to solve the problem of excessive delay but, the way the SEC has read the law—which has been acquiesced in by the courts and ignored by subsequent Congresses—has rendered it toothless and essentially meaningless. This has been accomplished, first, by the Commission’s cabined interpretation of the purpose of the law and its flawed review of supposed Supreme Court precedent, and then by the lower courts’ overly strong deference to this administrative agency’s reading of a law designed to curb its penchant for excessive delay.
Even though the problem of excessive delay remains unsolved and unchanged, there has been no serious published analysis of the 2010 law or of the courts’ (or of the SEC’s) reading of that law. The purposes of this Article are first, to attempt to quantify the problem of excessive delay; and second, to explore, in more depth than it appears has ever been assayed, both the 2010 law and the court decisions that have considered it, to the end of determining whether new life can properly be breathed into this law. I conclude that the 2010 law, while hardly a model of ideal statutory craftsmanship, should be viewed as an actual deadline, akin to a statute of limitations. Or, Congress should revisit the issue of unnecessary delay and enact a clearer and more meaningful legislative solution.