The Supreme Court’s opinion in Axon Enterprise Inc. v. FTC (Axon/ Cochran) is full of surprises, from its inception—launched despite a seemingly impenetrable barrier of five adverse circuit precedents (hereinafter the SEC ALJ Cases)—to conclusion in a unanimous victory that overruled all those cases. Its significance is still playing out in the courts—and will continue to do so in litigation across all administrative agencies. Its abrupt denouement, with the SEC dismissing all 42 open cases that could be affected by the decision including Michelle Cochran’s, conjures up a kind of agency seppuku—or perhaps kabuki. It’s hard to know.
The object of this paper is to bring to the surface what all too often gets buried or omitted altogether in necessarily selective academic commentary and judicial opinions. Paul Clement, who argued the appeal for Axon, has called the case “a sleeper” that will have surprising and far-ranging repercussions. As counsel for Michelle Cochran, I agree.