Instructions for Parties

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Office of Administrative Law Judges

U.S. Securities and Exchange Commission

100 F Street NE, Mail Stop 2585

Washington, DC 20549

Phone: (202) 551-6030 Fax: (202) 777-1031 Email: alj@sec.gov

This information is primarily for parties1 appearing in Securities and

Exchange Commission (SEC or the Commission) administrative proceedings

before an administrative law judge.

If you have questions regarding the record of a case, documents posted on the

SEC’s website, or electronic filing through the SEC’s Electronic Filings in

Administrative Proceedings (eFAP) system, please contact the Office of the

Secretary at (202) 551-5400.

For eFAP system access or technical issues, contact (202) 551-EFAP (3327).

This document is not a rule or regulation and does not create any substantive or procedural

rights. It is merely a guide, and its information is not a substitute for reviewing the Rules of

Practice or obtaining advice from a qualified attorney. This document does not supersede any

rule or order of the Commission. In your case, an order of the Commission or the presiding

administrative law judge takes precedence over anything expressed in this document.

Part I:

General Instructions

Administrative proceedings are governed by the SEC’s rules of practice found

at 17 C.F.R. § 201.100 et seq. The rules are available online here. All parties,

including pro se respondents,2 are expected to be familiar with and abide by

As used in this document, the term party or parties usually means

Respondents and the Division of Enforcement. Non-party case participants

should follow these instructions to the extent applicable.

A respondent is the person or entity charged in an administrative

proceeding instituted by the Commission. In this context, pro se means a

respondent who is not represented by an attorney but instead appears on his

or her own behalf.

these rules. Parties must also familiarize themselves with the Office of the

Secretary’s eFAP instructions and user manual governing electronic filing.

Legal Representation

Respondents may retain their own legal counsel to represent them3 and are

encouraged to do so. The SEC cannot, however, appoint or pay for a

respondent’s legal counsel. The judges and staff in the Office of Administrative

Law Judges cannot provide legal advice to you.

Communications with the Office of Administrative Law Judges

If your case has been assigned to an administrative law judge and you have a

procedural question, you may send your question to alj@sec.gov (copying all

other parties) or call our office at (202) 551-6030. You may not engage in

prohibited ex parte communications, which are communications with

the judge or attorneys in the Office of Administrative Law Judges—

outside the presence of all parties—about the merits of a case or about

factual or legal issues.4 For this reason, you must copy all other parties on

your emails to our office, and you may call our office only with procedural

questions.

If you wish to express anything about the merits of a case or factual or legal

issues (for example, if you wish to challenge or support the allegations in an

order instituting proceedings), you must do so by either (1) filing a written

submission (such as a pleading, brief, or motion) in accordance with the rules

of practice and any schedule set by the judge, or (2) raising the issue during a

conference or hearing in the presence of both the judge and other parties.

How to File Your Written Submissions and Other Documents

Every party’s written submissions (such as any notice of appearance, pleading,

brief, motion, or other document) must be filed electronically through the eFAP

system, unless the party submits a certification of inability to file

17 C.F.R. § 201.102.

17 C.F.R. §§ 201.111(d), .120, .322; see also 17 C.F.R. § 200.111.

electronically.5 Please refer to Office of the Secretary’s eFAP instructions for

detailed filing requirements, including required redactions. 6

Serving Other Parties

The party filing a written submission or any other document is responsible for

serving that document on all other parties. You cannot fulfill this service

requirement by filing your document through eFAP. You can comply with this

requirement by emailing a copy of your document to the other parties, in

accordance with the rules of practice and the Office of the Secretary’s

instructions.7 You must include a certificate of service with each filing, per

Rule 151(d).8 Please see the example certificate of service posted on the ALJ

website under Resources for Parties in Administrative Proceedings.

If you are unable to serve the other parties electronically, you must file a

certification explaining your inability to do so with the Office of the Secretary

and serve copies of your written submissions or documents on the other parties

by one of the additional methods of service listed in Rule 150(d).9

Service of ALJ Orders and Initial Decisions

When the judge issues an order or initial decision in your case, eFAP will send

a notice to the email address you provided in the eFAP system, and you can log

into eFAP to download the document.10 If you cannot be served electronically,

documents will be sent to your mailing address of record, which you must keep

current on file with the Office of the Secretary.11

Orders and initial decisions issued by the administrative law judges are posted

on the SEC’s website shortly after they are issued:

17 C.F.R. § 201.152(a).

See also 17 C.F.R. § 201.151(e) and Part II of this document. Redaction

means removing or obscuring protected, confidential, or sensitive information

in a document. Please see Adobe’s guidance on how to redact PDFs.

17 C.F.R. § 201.150(c); eFAP instructions, items 3.4 and 3.6.

17 C.F.R. § 201.151(d).

17 C.F.R. § 201.150(d).

See eFAP instructions, item 3.7.

17 C.F.R. §§ 201.102(d), .141(b), .150(c), (d).

Webpage for ALJ Orders

Webpage for ALJ Initial Decisions

Official Record and Online Posting of Documents

All filings are included in each proceeding’s official record maintained by the

Office of the Secretary. In eFAP, you may view the record of your case. The

Office of the Secretary posts certain filings online under open and closed

proceedings on the SEC’s website. This online posting of filings is not the

official record. To comply with the Privacy Act and other laws, SEC staff

reviews documents before publicly posting them online and redacts

information to protect personal privacy or to comply with a confidentiality

order.12

Phases of Your Case

Prehearing

Respondents must file an answer within 20 days after being served with the

order instituting proceedings (OIP), unless a different period is provided by

rule or order.13 Unless otherwise ordered, the Division of Enforcement is

required to make its investigative file available to a respondent for inspection

and copying no later than seven days after the respondent is served with the

OIP.14

When a prehearing conference is scheduled with the presiding judge, it is

usually held by telephone or video conference. Parties should be prepared to

discuss the topics listed under Rule 221(c).15

Discovery and prehearing disclosures are available in certain cases, in

accordance with the rules of practice and any procedural schedule set by the

presiding judge.16 It is necessary to file a request for issuance of subpoenas for

the production of documents or requiring the testimony of witnesses at a

hearing or at a deposition.17 You must provide a copy of your request and

See Administrative Proceeding Documents.

17 C.F.R. §§ 201.160, .220.

17 C.F.R. § 201.230.

17 C.F.R. § 201.221(c).

17 C.F.R. §§ 201.222, .231 to .234.

17 C.F.R. § 201.232.

subpoena forms to the Office of Administrative Law Judges, and serve a copy

of the request on all other parties. All parties should use the subpoena forms

available on the ALJ website under Resources for Parties in Administrative

Proceedings. If the judge issues the subpoena, our office will return the signed

subpoena to the requesting party, who is responsible for serving the subpoena.

In certain cases, one or more issues may be resolved based on the parties’

written submissions and documents, such as through a procedure called

summary disposition.18 When a party moves for summary disposition, the

party is asking the judge to decide the proceeding or specific issues based on

written evidentiary materials, without a live hearing. To oppose summary

disposition, you may not simply rely on bare allegations or denials.19 Rather,

you must submit evidence—such as declarations, your own affidavit and/or the

affidavits of others, prior testimony, documentary evidence, or facts that can

be officially noticed under Rule 323—countering the facts asserted by the

moving party and raising specific facts showing that the matter requires a

hearing.

If a respondent does not file a timely answer, respond to a dispositive motion,

appear at a prehearing conference or hearing, or otherwise defend the

proceeding, the judge may find the respondent in default, deem true the OIP’s

allegations, and order relief.20

If a live hearing is ordered, the parties may be required to exchange copies of

exhibits and the names of their witnesses in advance of the hearing and to file

prehearing briefs.21 Do not use eFAP to file exhibits that are being

exchanged between the parties before the hearing; the filing of

exhibits occurs after the hearing, as explained below.

Hearing

The hearing process is similar to a federal bench trial. Hearings are

presumptively public.22 Hearing transcripts may be purchased at prescribed

17 C.F.R. § 201.250.

See James S. Tagliaferri, Exchange Act Release No. 80047, 2017 SEC

LEXIS 481, at *26 (Feb. 15, 2017).

17 C.F.R. §§ 201.155(a), .220(f), .221(f), .310.

17 C.F.R. § 201.222(a).

17 C.F.R. § 201.301.

rates.23 Our office cannot provide transcripts to parties or to the public. If a

respondent is unable to afford a copy of the transcript, the respondent must

file a motion and evidence demonstrating such inability to pay, and the judge

will decide whether to direct the court reporter to furnish a copy of the

transcript to the respondent.

Before the hearing, parties should confer and, to the extent possible, coordinate

the presentation of witness testimony and other evidence so that the hearing

will run efficiently.

At the hearing, the parties may make opening statements if permitted by the

judge. Even if the judge allows opening statements, parties may waive this

option and instead just file prehearing briefs. The Division of Enforcement

usually will present witnesses and offer exhibits first since it has the burden

of proof, but the judge has the discretion to allow the parties to present

evidence out of order. Subject to the judge’s procedures and time limits, a

respondent has the right to present witnesses, offer exhibits, and crossexamine witnesses presented by the Division. In turn, the Division may crossexamine witnesses presented by a respondent.

A party may object to testimony (including questions posed to a witness) or

documentary evidence on the grounds that it is irrelevant, immaterial, unduly

repetitious, or unreliable.24 A pro se respondent called to testify may object to

questions posed to him or her on these same grounds.

An adverse inference may be drawn from a respondent’s refusal to testify or

answer questions about matters within the respondent’s knowledge, even if

such refusal is based on the Fifth Amendment privilege against selfincrimination.25

17 C.F.R. § 201.302(b).

17 C.F.R. § 201.320. A party may object to hearsay evidence on these same

grounds. Federal court rules on the exclusion of hearsay evidence do not

govern SEC administrative proceedings. Amendments to the Commission’s

Rules of Practice, 81 Fed. Reg. 50,212, 50,226–27 & nn.141, 142 (July 29, 2016).

See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976); Guy P. Riordan,

Exchange Act Release No. 61153, 2009 SEC LEXIS 4166, at *65–66 (Dec. 11,

2009), pet. denied, 627 F.3d 1230 (D.C. Cir. 2010); Strathmore Secs., Inc.,

Exchange Act Release No. 8207, 1967 SEC LEXIS 563, at *35–36 (Dec. 13,

1967), pet. denied, 407 F.2d 722 (D.C. Cir. 1969).

Post-hearing

At the conclusion of a hearing, the judge sets the schedule for the parties to file

proposed findings and conclusions and supporting briefs.26

At the conclusion of the hearing or shortly thereafter, the parties file their

hearing exhibits at the direction of the presiding judge.27 Hearing exhibits

should be segregated and labeled in two categories—(1) admitted exhibits, or

(2) exhibits offered but not admitted (excluded). Do not file exhibits that were

not offered at the hearing unless you seek and obtain permission from the

judge. Along with your hearing exhibits, you must include the required

certification under Rule 351(c)(3).28 You must seek approval before filing

hearing exhibits on a disc or thumb drive.29

The parties also should jointly email to alj@sec.gov a list of exhibits admitted

into evidence and exhibits offered but not admitted (excluded). The joint

exhibit list should contain columns with the following information: the exhibit

number; a description of the exhibit; the Bates-stamp numbers, if any; and

page(s) in the hearing transcript in which the exhibit was offered and admitted

or not admitted. Ideally, the list should be in MS Excel or Word format; please

check with our office if you plan to use a different format.

The joint exhibit list does not take the place of the required filing of hearing

exhibits. After the hearing and filing of briefs and exhibits in your case, the

Office of the Secretary will issue a record index listing all materials in the

official record. The parties will have the opportunity to review the record index

and propose corrections within three days of service of the record index.30

17 C.F.R. § 201.340.

For details on how to filing hearing exhibits, see eFAP instructions, items

5.4, 6.1.

17 C.F.R. § 201.351(c)(3).

eFAP instructions, items 4.3, 4.4.

17 C.F.R. § 201.351(b).

Part II:

Guidelines regarding

protected, confidential, or sensitive information

Parties are directed to follow this guide so that their filings and conduct at

hearings do not result in public disclosure of protected, confidential, or

sensitive information.

Covered information

The following is a non-exhaustive list of categories of protected, confidential,

or sensitive information. You generally must omit this information from

your filings and take measures to ensure that such information is not

disclosed during a public hearing. If information in one of the following

categories is necessary for the judge to decide a matter, you must seek and

obtain permission from the judge to include it in the record under seal in

accordance with Rule 322,31 as further explained in the instructions regarding

party filings.

(1)

Any information that could reasonably be expected to reveal the

identity of a whistleblower.32

(2)

Information concerning suspicious activity reports (SARs) and other

reports under the Bank Secrecy Act, including any information that

would reveal the existence of a SAR.33

(3)

Sensitive personal information, such as:

a. An individual’s social security number, taxpayer identification

number, financial account numbers (including bank account,

brokerage account, and investment account numbers), credit

card or debit card numbers, passport number, driver’s license

number, or state-issued identification number.

b. An individual’s home address (other than city and state) and

telephone number.

c. An individual’s date of birth (other than year).

d. Names and initials of minor children.

17 C.F.R. § 201.322.

15 U.S.C. § 78u-6(h)(2)(A).

31 U.S.C. § 5318(g)(2)(A)(ii); 31 C.F.R. § 1023.320(e)(2).

e. Unnecessary health information identifiable by individual, such

as an individual’s medical records.34

(4)

Any other information protected by law.35

However, the following information may be included and is not

required to be redacted from filings:

(1)

The last four digits of a financial account number, credit card or debit

card number, passport number, driver’s license number, and stateissued identification number.

(2)

Home addresses and telephone numbers of parties and persons filing

documents with the SEC.

(3)

Business telephone numbers.

(4)

Copies of unredacted filings by regulated entities or registrants that

are available on the SEC’s public website.36

In addition to these categories, parties may move to protect other types of

information as well, such as sensitive information about an individual’s

financial condition.

Instructions regarding party filings

You generally must omit from your filings as much protected, confidential, or

sensitive information as possible; if not omitted, you generally must redact

such information. Specifically, when filing a document in eFAP, you will be

required to confirm compliance with the rules concerning the redaction or

omission of sensitive personal information, in accordance with Rule 151(e) and

the Office of the Secretary’s eFAP instructions, item 4.1.

17 C.F.R. § 201.151(e); see also 42 U.S.C. § 290dd-2(a), (c) (protecting

“[r]ecords of the identity, diagnosis, prognosis, or treatment of any patient

which are maintained in connection with the performance of any program or

activity relating to substance use disorder education, prevention, training,

treatment, rehabilitation, or research . . . .”).

See, e.g., 12 C.F.R §§ 261.2(b)(1), (c), .20(a) (protecting confidential

supervisory information within the meaning of the rules of the Board of

Governors of the Federal Reserve System).

17 C.F.R. § 201.151(e)(1); see also Amendments to the Commission’s Rules

of Practice, 85 Fed. Reg. 86,464, 86,466–68 (Dec. 20, 2020).

If your filing contains protected, confidential, or sensitive information that you

believe is necessary for the judge to decide a matter, you must move for the

unredacted filing to be maintained under seal in accordance with Rule 322.

When moving for a protective order under Rule 322, you generally should

submit two versions of the document that is the subject of your request—an

unredacted copy (referred to as a “sealed” copy) and a redacted copy—in

accordance with the Office of the Secretary’s eFAP instructions, item 5.2. You

may be excused from the need to file a redacted copy if you seek and obtain

permission from the judge to file a document under seal in its entirety without

redactions.

Instructions regarding Form D-A

A respondent who claims an inability to pay monetary sanctions should file a

Form D-A, pursuant to Rule of Practice 630.37 The form and accompanying

instructions are available online here. In adopting Rule 630, the Commission

observed:

Early submission of a financial disclosure form to support

a planned claim of inability to pay will allow the hearing

officer and parties to better prepare for hearing and to

assess the time needed for the hearing. Part I of Form DA requires only summary information as to which

confidentiality interests are limited. Part II requires

detailed back-up information that is more likely to call for

personal, confidential data, such as bank account

numbers and information about regular medical

payments.38

Instructions regarding hearing exhibits

In its prehearing exhibit list, a party must identify exhibits that contain

protected, confidential, or sensitive information. At the hearing, the party who

anticipates seeking admission of an exhibit under seal must promptly alert the

judge and briefly explain whether any testimony or discussion related to the

exhibit may involve protected, confidential, or sensitive information. In their

joint post-hearing exhibit list, the parties must identify any exhibits offered or

admitted under seal.

17 C.F.R. § 201.630.

Rules of Practice, 60 Fed. Reg. 32,738, 32,792–93 (June 23, 1995)

(comment to adoption of 17 C.F.R. § 201.630(c)).

Instructions regarding hearing testimony

A party must alert the presiding judge if it anticipates that a portion of any

hearing testimony may involve protected, confidential, or sensitive

information. As administrative proceedings are presumptively public, parties

should avoid situations that require closing the hearing room unless testimony

involving protected, confidential, or sensitive information is necessary for the

judge to decide a matter.

Instructions regarding investigative files

The Division of Enforcement may move for entry of an order to protect

confidential information in its investigative file before it produces a copy to the

respondents.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.