"Prejudgment" Rejudgment: The True Story of Antoniu v. SEC

In Antoniu v. SEC, the Eighth Circuit found that Charles C. Cox, then a member of the Securities and Exchange Commission (SEC or Commission), had "impermissibly tainted" an SEC administrative proceeding against Antoniu by a speech Cox gave while the proceeding was pending. In this way, Commissioner Cox is now joined with former Federal Trade Commission (FTC) Chairman Paul Rand Dixon of Texaco, Inc. v. FTC and Cinderella Career & Finishing Schools, Inc. v. FTC fame as an administrative law casebook poster child for "prejudgment" by an administrative agency.

After a brief discussion of the factual background of the case, I will demonstrate first that Cox's speech was well on the permissible side of the prejudgment line. Second, I will discuss participation by agency members in settlement offers in administrative proceedings. These offers have the potential for abuse, but modem law suggests that this potential is rarely, if ever, realized. I will show that there was no impropriety in this case. Finally, I will discuss the realities of agency action by delegated authority and how such an otherwise reasonable process makes it difficult for the agency to distance itself from action appropriately taken by its delegates.