Case Western Reserve University School of Law Scholarly Commons Faculty Publications 1983 Ancillary Relief in Federal Securities Law: A Study in Federal Remedies George W. Dent Case Western University School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.case.edu/faculty_publications Part of the Business Organizations Law Commons, and the Courts Commons Repository Citation Dent, George W., "Ancillary Relief in Federal Securities Law: A Study in Federal Remedies" (1983). Faculty Publications. 459. https://scholarlycommons.law.case.edu/faculty_publications/459 This Article is brought to you for free and open access by Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Ancillary Relief in Federal Securities Law: A Study in Federal Remedies George W. Dent, Jr.* TABLE OF CONTENTS I. INTRODUCTION . 866 II. THE HISTORY AND CURRENT PRACTICE OF ANCILLARY RELIEF IN FEDERAL SECURITIES LAW .................................................... 869 III. FEDERAL JUDICIAL REMEDIES AND ANCILLARY RELIEF . 877 A. ANCILLARY RELIEF IN OTHER AREAS OF ADMINISTRATIVE LAw . 877 B. FEDERAL EQUITY, STATUTORY INTERPRETATION, AND FEDERAL COMMON LAw . 882 C. IMPLIED STATUTORY REMEDIES . • . 889 IV. THE SCOPE OF THE FEDERAL SECURITIES LAWS .................................................. 899 A. THE TEXT AND LEGISLATIVE HISTORY OF THE FEDERAL SECURITIES LAws . 899 1. Express Enforcement Powers . 899 2. Implied Remedies-The Legislative History and Purposes of the Federal Securities Laws 903 B. RECENT JUDICIAL RESTRICTIONS................... 910 C. THE FEDERAL SECURITIES LAws AND CoRPORATE GOVERNANCE . • . • • • . • . • • . • • • . 913 1. Federalism and Santa Fe . 913 2. The Purposes of the Securities Laws, the Scope of Disclosure, and Corporate Governance . 916 V. ANCILLARY RELIEF IN SECURITIES LAW........ 922 A. A GENERAL APPROACH TO ANCILLARY RELIEF . • . • 923 1. A Blanket Prohibition on Ancillary Relief?... 923 • Associate Professor of Law, New York Law School. The author thanks Hillel Tendler, Esq., who rendered invaluable aid as a student research assis­ tant during the preparation of this Article. 865 866 MINNESOTA LAW REVIEW [Vol. 67:865 2. A Blanket Approval Subject to Judicial Discretion?..................................... 924 3. Toward a General Approach to Ancillary Relief ........................................... 927 B. ANciLLARY RELIEF IN CoNTESTED CASES . 930 1. Remedies to Rectify Past Violations­ Disgorgement, Restitution, Rescission, Sterilization of Voting Rights, Etc. 930 2. Relief Pendente Lite .. .. .. .. .. .. .. .. .. .. .. .. .. 933 3. Remedies to Prevent Future Violations­ Removal and Appointment of Directors, Appointment of Special Agents and Special Counsel, Etc. 933 4. Receiverships . 941 C. THE SIGNIFICANCE OF THE DEFENDANT'S CONSENT 946 VI. THE ALI FEDERAL SECURITIES CODE AND A PROPOSED LEGISLATIVE APPROACH . 950 VII. CONCLUSION............... 960 I. INTRODUCTION The power of federal courts to fashion remedies not ex­ pressly provided by federal law has been widely debated. Al­ though the Supreme Court has spoken often in recent years on equitable remedies for constitutional violations! and implied damage actions for violations of the federal Constitutionz and statutes,3 the Court has not recently dealt with implied equita­ ble remedies under federal statutes. The latter area has at­ tracted much attention,4 however, especially regarding the 1. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971); Hill, Constitutional Remedies, 69 CoLUM. L. REv. 1109 (1969); Nagel, Separation of Powers and the Scope of Federal Equitable Remedies, 30 STAN. L. REV. 661 (1978). 2. See Carlson v. Green, 446 U.S. 14 (1980); Davis v. Passman, 442 U.S. 228 (1979); Butz v. Economou, 438 U.S. 478 (1978); Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971); Katz, The Jurisprudence of Remedies: Constitu­ tional Legality and the Law of Torts in Bell v. Hood, 117 U. PA. L. REV. 1 (1968). 3. See infra notes 107-48 and accompanying text. 4. See Ellsworth, Disgorgement in Securities Fraud Actions Brought by the SEC, 1977 DUKE L.J. 641; Farrand, Ancillary Remedies in SEC Civil Enforce­ ment Suits, 89 HARv. L. REV. 1779 (1976); Jacobs, Judicial and Administrative Remedies Available to the SEC for Breaches of Rule IOb-5, 53 ST. JoHN's L. REv. 397 (1979); Malley, Far-Reaching Equitable Remedies Under the Securities Acts and the Growth of Federal Corporate Law, 17 WM. & MARY L. REv. 47 (1975); Mathews, Recent Trends in SEC Requested Ancillary Relief in SEC Level In­ junctive Actions, 31 Bus. LAw. 1323 (1976); Sporkin, SEC Developments in Liti­ gation and the Molding of Remedies, 29 Bus. LAw. 121 (March 1974); Treadway, SEC Enforcement Techniques: Expanding and Exotic Forms of Ancillary Re- 1983] ANCILLARY RELIEF 867 Securities and Exchange Commission (the "SEC" or the "Com­ mission"). Over the last fifteen years the SEC has obtained, with increasing frequency and on a scale unprecedented in ad­ ministrative law, a broad range of equitable remedies-gener­ ally known as "ancillary remedies" or "ancillary relief'5-not expressly authorized by federal statutes. Remedies the SEC has obtained against general issuers6 without express statutory authority include disgorgement of profits, restitution, rescission of transactions, appointment of receivers, sterilization of voting rights, orders to do (or to for­ bear from doing) acts not otherwise required (or prohibited) by law, and the restructuring of corporate managements by ap­ pointing persons to or removing persons from corporate office.7 Neither the language nor the legislative history of the securi­ ties laws expressly empowers the SEC to seek, or the courts to grant, such remedies. The SEC and some commentators have found justification for ancillary relief in the need to effectuate the purposes of the securities laws and in the general equity powers of the federal courts, particularly as reflected in prece­ dents involving other administrative agencies. Nevertheless, lief, 32 WASH. & LEE L. REV. 637 (1975); Note, Ancillary Relief in SEC Injunction Suits for Violation of Rule IOb-5, 79 HARv. L. REV. 656 (1966); Comment, Court Appointed Directors: Ancillary Relief in Federal Securities Law Enforcement Actions, 64 GEo. L.J. 737 (1976) [hereinafter cited as Comment, Court Ap­ pointed Directors J; Comment, SEC Enforcement of the Rule JOb-5 Duty to Dis­ close Material Information-Remedies and the Texas Gulf Sulphur Case, 65 MICH. L. REV. 944 (1967) [hereinafter cited as Comment, Texas Gulf Sulphur]; Comment, Equitable Remedies in SEC Enforcement Actions, 123 U. PA. L. REV. 1188 (1975) [hereinafter cited as Comment, Equitable Remedies]; Comment, The SEC and Court-Appointed Directors: Time to Tailor the Director to Fit the Suit, 60 WASH. U.L.Q. 507 (1982) [hereinafter cited as Comment, Tailor the Director]. 5. The terms "ancillary relief' and "ancillary remedies" are themselves somewhat vague. The word "ancillary" derives from the Latin ancilla, meaning a female servant, a handmaiden, WEBSTER'S THIRD NEW INTERNATIONAL DIC­ TIONARY (1961), as in the Virgin's response to the angel Gabriel at the Annunci­ ation, "Ecce ancilla domini"-"Behold I am the handmaiden of the Lord." Luke 1:38. Ancillary relief thus once connoted relief aiding or subsidiary and supple­ mental to some principal relief to make the principal relief effective. See 1 J. PoMEROY, EQUITY JURISPRUDENCE§ 171(1) (5th ed. 1941). The term has come to be used more broadly to mean any equitable relief not authorized by statute (note that the titles of many articles cited supra note 4 refer to ancillary relief or ancillary remedies), and will be so used in this Article. 6. This Article discusses ancillary remedies against issuers generally and not, except for purposes of comparison, against members of the professional se­ curities industry (such asbroker-dealers, securities exchanges, associations of securities dealers, investment companies, and investment advisors). See infra notes 161-64 and accompanying text. Treatment of the latter area would raise very different questions. 7. See infra notes 10-58 and accompanying text. 868 MINNESOTA LAW REVIEW [Vol. 67:865 close examination of the legislative history raises questions whether certain ancillary remedies promote or hinder the pur­ poses of the securities laws, and recent Supreme Court deci­ sions restricting the federal securities laws . and limiting the power of federal courts to imply remedies cast doubts on the courts' power to grant many ancillary remedies. The American Law Institute's proposed Federal Securities Code attempts to eliminate these uncertainties by authorizing the federal courts "to grant appropriate ancillary or other re­ lief.''B Although this provision would resolve certain questions, it would also create many new problems of interpretation. More important, the proposed Code offers an opportunity to write a new law of ancillary relief in the securities area and thereby raises the question what that law should be. The issues raised by ancillary relief in securities law have important implications for administrative law generally. The securities laws typify federal administrativ-e legislation in that they expressly approve certain remedies but neither approve nor deny others. By pursuing novel remedies, the SEC has raised the broader question of when