Request for Commission Amicus Participation in a Pending Case

The Commission files amicus curiae briefs in cases raising issues of significance to the administration of the federal securities laws. Although many of these briefs are filed in response to invitations from courts, often they are filed after cases are brought to the attention of the Commission’s staff by lawyers representing parties in private lawsuits. As the office responsible for considering requests to review cases to determine whether to recommend Commission amicus participation, the Office of the General Counsel is providing this statement to advise lawyers and others about how to bring cases to the staff’s attention and the considerations bearing on our review of those cases.

The Commission generally files amicus curiae briefs in order to offer its views on important securities law issues, rather than to support the interests of a specific party in a particular case. Cases in trial courts can be decided on many grounds, and the significance of issues important to the Commission may not be apparent until factual disputes or other legal issues are resolved. In addition, decisions of appellate courts have broader precedential effect than decisions of trial courts. For these reasons, the staff usually recommends amicus participation only after a case has reached an appellate court. In some instances, however, where it is unlikely that appellate review will occur, or other factors counsel early involvement, the staff may recommend trial court participation.

In deciding whether to recommend that the Commission file an amicus brief, the staff generally considers the following factors: (a) whether the decision in the case is likely to have substantial precedential impact; (b) whether the case raises issues important to the Commission’s ability to carry out its statutory objectives or other important securities law issues; (c) whether there is a potential conflict between the securities laws and other federal or state laws involved; and (d) whether the brief might provide an opportunity to convince the court to adopt a narrow or moderate holding, rather than a broad and potentially damaging one.

Should you determine, based on your assessment of these factors, that your case is one that might be of interest to the Commission, please send us copies of the relevant materials, including any decision on review and the briefs of all parties. In your covering letter, which should be directed to the General Counsel, please discuss the issue or issues you believe warrant Commission participation, and tell us the date on which any amicus curiae brief filed by the Commission would be due. Our address is Office of the General Counsel, Securities and Exchange Commission, 100 F Street, NE, Washington D.C. 20549. You may also contact us by telephone at (202) 55l-5130.

The Office of the General Counsel will review the materials submitted and seek input from Divisions and Offices of the Commission that may have an interest in the case. In cases where further review is appropriate, the staff generally will contact both sides and offer them the opportunity to make further submissions in writing, in person, or by telephone. If the staff determines that amicus participation is merited in a particular case, the Office of the General Counsel will make a recommendation, together with interested Divisions and Offices, to the Commission. The Commission then considers and votes on whether to accept the recommendation and file a brief. This process can take a significant amount of time. For this reason, parties who seek Commission participation in a case are urged to contact the staff as early as possible. If the Commission does not file a brief in a case, no inference should be drawn as to the Commission’s position on the issues in the case, since resource and time constraints may preclude the Commission from participating as amicus curiae even where participation might otherwise be appropriate.

http://www.sec.gov/litigation/briefs/amicusrequest.htm