The SEC has approved a final rule amending its rules of practice for administrative proceedings. The changes make incremental improvements but fall short of what is necessary to make the proceedings more fair. Among other things, the final rules would adjust the timing of administrative proceedings and give parties additional opportunities to take depositions of witnesses:
- Initial decision of hearing officer and timing of hearing (Rule 360): Under amended Rule 360, orders instituting proceedings would designate the time period for preparation of the initial decision as 30, 75 or 120 days from the completion of post-hearing or dispositive motion briefing or a finding of a default. Amended Rule 360 also would extend the length of the prehearing period from the current four months to a maximum of 10 months for cases designated as 120-day proceedings, a maximum of six months for 75-day cases, and a maximum of four months for 30-day cases.
- Depositions upon oral examination (Rule 233): Amended Rule 233 would permit parties in 120-day proceedings the right to notice three depositions per side in single-respondent cases and five depositions per side in multi-respondent cases, and would permit each side to request an additional two depositions under an expedited procedure.
- Answer to allegations (Rule 220): Amended Rule 220 would require a respondent to disclose in its answer to an order instituting proceedings whether the respondent is asserting any “reliance” defense and whether the respondent relied on the advice of counsel, accountants, auditors, or other professionals in connection with any claim, violation alleged, or remedy sought.
- Dispositive motions (Rule 250): Amended Rule 250 would provide that three types of dispositive motions may be filed at different stages of an administrative proceeding and would set forth the standards and procedures governing each type of motion.
- Evidence (Rule 320): Amended Rule 320 would exclude evidence that is irrelevant, immaterial, unduly repetitious, or unreliable and would provide that hearsay may be admitted if it is relevant, material, and reliable.
- Other: The amendments also would address, among other things, procedures for the service of the order instituting proceedings in foreign jurisdictions, disclosures regarding expert witnesses and reports prepared by expert witnesses, and procedures governing appeals to the Commission.
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