In Bloomberg Law, Litigation Team Examines Impact of Major Questions Doctrine on SEC Enforcement

In an article for Bloomberg Law, litigation & enforcement partners Helen Gugel, Chris Conniff and Doug Hallward-Driemeier examine the development of the major questions doctrine and explore the potential long-term impact on the SEC's enforcement of private funds, off-channel communications, and digital assets.

“Federal agencies have historically been given broad latitude to interpret and administer their statutory authority,” said the team. “However, the Supreme Court has invoked the major questions doctrine several times in the last three years, suggesting it has become another powerful avenue to curtail the authority of administrative agencies in determining their own mandates.”

Much of the SEC's ambitious regulatory and enforcement agenda has centered on the private fund industry and the digital asset space. The major questions doctrine may allow market participants a pathway to challenge the agency's broad interpretations of its authority in key areas that underpin this agenda.”

“To the extent that petitioners are successful in challenging the SEC's authority with respect to the proposed Private Funds Rules under the major questions doctrine, other market participants may follow a similar playbook to push back on other areas of perceived agency overreach in the private funds space,” added the team.