# Blinder, Robinson & Co., Inc. v. Securities & Exchange Commission, Meyer Blinder v. Securities & Exchange Commission > Court of Appeals for the D.C. Circuit · January 15, 1988 · 837 F.2d 1099 URL: https://www.frixlaw.com/law-library/cases/9477150 ## Case - **Full name:** BLINDER, ROBINSON & CO., INC., Petitioner, v. SECURITIES & EXCHANGE COMMISSION, Respondent; Meyer BLINDER, Petitioner, v. SECURITIES & EXCHANGE COMMISSION, Respondent - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** January 15, 1988 - **Citations:** 837 F.2d 1099; 267 U.S. App. D.C. 96; 1988 U.S. App. LEXIS 423 - **Precedential status:** Published - **Opinion:** Concurrence by Ginsburg - **Judges:** Ginsburg, Starr, Gesell - **Cited by:** 40 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9477150 ## How later opinions describe it (automated extraction) - holding that “an attack on the validity of [an underlying] proceeding” that could have been raised in the convicting jurisdiction “is doomed to fail” - holding that “an attack on the validity of [a] district court injunctive proceeding” that could have been raised there “is doomed to fail” ## Opinion text RUTH BADER GINSBURG, Circuit Judge, concurring: I join most of the court’s fine opinion, but write separately to express some misgivings about the last step my colleagues take. I question the propriety of any remand, particularly one missing well-defined “metes and bounds.” See court’s opinion at 1111 n. 12. The distinction my colleagues draw between “reliance on counsel” and “relationship with counsel,” see court’s opinion at 1110, slips from my grasp. True, different claims were at stake in the Colorado district court and before the SEC, so no claim preclusion operates here. I agree too that a degree of reliance sufficient to count as a mitigating factor in an administrative sanctions determination may be insufficient to constitute a good-faith defense in an injunction proceeding. 1 But degree of reliance never enters into the calculus when there was no reliance at all. Every counsel consulted, the Colorado district court found as a matter of fact, advised against the course of action ultimately chosen by petitioners. See court’s opinion at 1110 n. 11, citing the Colorado district court’s fact finding reported in 542 F.Supp. at 472. 2 As the Colorado district court reiterated, petitioners directly received “the advice of the involved attorneys,” and then, with “knowledge of the materiality of their conduct, and its potential consequences, they ignored counsel’s advice.” 542 F.Supp. at 476-77. See also id. at 481. If Meyer Blinder is not at liberty to urge again that he relied at all on the advice of counsel, then it is difficult for me to comprehend how a “relationship with counsel” can aid his cause. Arthur Lipper Corp. v. SEC, 547 F.2d 171 (2d Cir.1976), cert. denied, 434 U.S. 1009 , 98 S.Ct. 719 , 54 L.Ed.2d 752 (1978), is indeed “[ijmpressive deci-sional authority,” see court’s opinion at 1111, but that case seems to me critically different from the one at hand. Judge Friendly held in Arthur Lipper that when securities law violators “act under the supervision of experienced ... counsel,” 574 F.2d at 184, SEC sanctions should be mitigated. One who received and “specifically declined to follow” advice of counsel, however, as the Colorado court found Blinder did, 542 F.Supp. at 481, is not largely assisted by precedent sympathetic to a party who acted on counsel’s advice. Seeking and then rejecting advice logically should aggravate, not mitigate, blameworthiness. I note, further, that my colleagues appear to have entrusted to the Commission a comparative analysis obligation heavier than any that has gone before. See, Butz v. Glover Livestock Comm’n Co., 411 U.S. 182, 187 , 93 S.Ct. 1455, 1459 , 36 L.Ed.2d 142 (1973) (“employment of a sanction within the authority of an administrative agency is ... not rendered invalid in a particular case because it is more severe than sanctions imposed in other cases”). In sum, before returning a case to an agency, I believe a reviewing court has an obligation to specify with great care and *1115 precision the “metes and bounds” for the remand. My colleagues say they do not mean to “forc[e] the SEC to engage in an open-ended inquiry.” Court’s opinion at 1111 n. 12. I am uneasy, however, about the less than tight instructions the court’s opinion contains concerning 1) the limitations now placed on what petitioners and their able counsel may open up or delve into on remand, and 2) what the Commission must do to justify its sanctions. I fear the court’s opinion may be read by petitioners to present not limitations as intended, but an opening to introduce anything and everything arguably “relating to the[ir] relationship with counsel.” See court’s opinion at 1110. There is in the remand course ordered some risk of confusion, 3 and an opportunity to protract. I take it to be the view of all members of the panel that the Commission, while instructed to “craft with care,” court’s opinion at 1113, is also to be vigilant to guard against undue protraction and deferral of the final disposition of this case. . This is the sole force of the SEC’s remark quoted in the court's opinion: Blinder, Robinson is correct that the district court’s judgment is not preclusive as to the issue of what sanctions are required in the public interest. Court’s opinion at 1110, quoting SEC Brief at 28 n. 38. . The Colorado district court specifically found as fact, after evaluating conflicting evidence, that each counsel had advised Blinder, Robinson it was required by law to sticker the American Leisure prospectus so as to inform investors Blinder, Robinson was itself purchasing the securities it was underwriting. See 542 F.Supp. at 472. My colleagues’ hypotheticals therefore strike me as inapposite. See court’s opinion at 1110 n. 10. This was not an instance of counsel advising a client that certain conduct was permissible but dicey; it was a situation in which counsel advised Blinder, Robinson that sticker-ing was required, i.e., that not stickering the prospectus was im permissible. Blinder, Robinson did not reject advice that stickering was the better course of conduct; it rejected advice that stickering was the only permissible course of conduct. In that respect, the "precise nature of [each counsel’s] advice,” court’s opinion at 1110, has already been litigated and determined; issue preclusive effect is therefore warranted. . It should be recalled that petitioners’ "fruitless efforts” before the AU were, according to petitioners’ own description, to introduce evidence concerning Meyer Blinder’s "reliance on counsel." See court’s opinion at 1102 (quoting from Brief for Petitioner Blinder, Robinson & Co. at 7-8). I therefore underscore the court’s definitive ruling that the issue whether there was reliance on counsel "has been conclusively decided against [Meyer Blinder].” See court’s opinion at 1109. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9477150. Public record. Not legal advice.