In a week when The Wall Street Journal reported that, since October 2004, the Securities and Exchange Commission prevailed against 90 percent of defendants in enforcement actions brought in its own administrative tribunals, as opposed to 69 percent in federal courts (click here to access the relevant article), the SEC’s Division of Enforcement published guidance regarding its approach to forum selection in contested actions. According to the Division, its primary consideration when it chooses a forum is to assess which venue “will best utilize the Commission’s limited resources to carry out its mission.” Although the Division provided no bright light tests, it indicated certain conditions that, if present, suggest it would prefer to use an administrative tribunal (as opposed to federal court) in a contested matter: where (1) the matter involves an SEC-registrant and charges of failure to supervise or causing another person’s violation –which only can be brought in an administrative forum; (2) there is a desire to bring an action more quickly; (3) the matter involves older conduct; or (4) the matter “is likely to raise unsettled and complex legal issues under the federal securities laws, or interpretation of the Commission’s rules.” The Division also acknowledged that the greater availability of pre-trial discovery in federal courts “may entail both costs and benefits, which should be weighed under the facts and circumstances of a case” and will influence its forum selection.