Washington Law Review


The threat of civil, criminal, or administrative sanctions is, of course, the greatest risk faced by a subject of an SEC investigation. However, regardless of the investigatee's guilt or innocence, an investigation poses other hazards, especially damage to business reputation. SEC investigatees traditionally have had virtually no protection against the economic risks that accompany the investigative process. These risks have been seen as the unavoidable cost of pursuing a regulated activity. This Note examines generally the economic interests of SEC investigatees and reviews prior judicial treatment of these interests. The Note then analyzes the O'Brien decision, focusing on the court's avoidance of serious reviewability questions in its attempt to provide relief for investigatees. The Note concludes that the court's reasoning is fundamentally incorrect. Finally, the Note proposes two alternative methods of protecting the interests that the O'Briencourt apparently wished to protect.

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