Request for Commission "Amicus" Participation in a Pending Case

The Commission files amicus curiae briefs in cases raising issues of significance to the federal securities laws. Although some amicus briefs are filed in response to invitations from courts, others are filed in response to requests made by attorneys representing parties in private lawsuits. The Office of the General Counsel, which has primary responsibility for determining whether to recommend Commission amicus participation, offers these suggestions to lawyers and others about how to bring cases to the staff’s attention and the considerations bearing on our review of requests for amicus participation. 

The Commission 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. Notably, the staff usually recommends amicus participation only after a case has reached an appellate court. District court cases can be decided on many grounds, and the significance of issues to the Commission may not be apparent until appeal, when factual disputes or other legal issues have been resolved. In addition, decisions of appellate courts have broader precedential effect than decisions of trial courts. In some instances, however, where it is unlikely that appellate review will occur or other factors favor 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 a 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, including its enforcement mission; and (c) whether there is a potential conflict between the securities laws and other federal or state laws involved.

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. Please provide a cover letter, directed to the General Counsel, that discusses 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. All materials should be submitted electronically by sending an email to AmicusRequest@sec.gov.

The Office of the General Counsel will review submitted materials and seek input from the Commission’s Divisions and Offices that may have an interest in the case. If further review is appropriate, the staff in the Office of the General Counsel may contact both sides and offer them the opportunity to make further submissions in writing, in person, or by telephone. When the staff determines that a particular case merits amicus participation, the Office of the General Counsel will make a recommendation to the Commission. The Commission then votes on whether to accept the recommendation and file a brief. This process can take a significant amount of time. For this reason, parties seeking Commission participation should 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.