Highlighting the value courts place on simple illustrations, the D.C. Circuit last week relied repeatedly in a published opinion on a homespun illustration offered by counsel at oral argument.
The question was whether the SEC acted arbitrarily and capriciously in ruling that a certain type of securities-exchange order executed “immediately,” as required by the SEC’s regulation. No. 20-1424, Citadel Securities LLC v. SEC (July 29, 2022) (Walker, J.).
The court started with the dictionary definitions of “immediate.” But then it quickly pivoted to counsel’s homespun analogy:
To spin off an example put forth by Citadel’s counsel at oral argument, imagine a mother tells her daughter, Annie, to clean her room “immediately.” If Annie picks up a book and reads it before cleaning her room, then she disobeys her mother’s command. But if Annie instead just blinks her eyes once more than necessary before starting to clean, she does not violate that command because her delay is de minimis. The SEC’s conclusion that mere de minimis delays do not cause an order to violate [the regulation’s] immediacy requirement was therefore reasonable.
And after that, when the court wanted to show that its holding made sense in various situations, it referred back to Annie.
But an experienced lawyer knows how hard—and time consuming—it can be to find good, simple, and safe illustrations. As the securities case shows, it’s worth the effort.