Second Circuit Declines to Strike Down No-Deny Provision of Executive’s SEC Consent Agreement

On Sept. 27, 2021, the U.S. Court of Appeals for the Second Circuit rejected the most recent legal challenge to the Securities and Exchange Commission’s (SEC) practice of using “no-deny” consent agreements to resolve civil enforcement actions. This practice allows alleged violators of federal securities laws to settle civil actions with the SEC without admitting or denying wrongdoing but requires that the persons agree not to publicly deny the SEC’s allegations against them. Corporate executives, constitutional scholars, activists and even members of the judiciary have raised First Amendment concerns, but so far, no challenge has been successful.

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