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On Nov. 1, 2019, the U.S. Supreme Court granted certiorari in Liu v. Securities and Exchange Commission to address a question that, until fairly recently, seemed clear beyond cavil: whether the SEC has authority to obtain disgorgement in civil actions to enforce the federal securities laws. Since the 1970’s, disgorgement of ill-gotten gains has been a powerful and frequently utilized weapon in the SEC’s arsenal. In its June 2017 decision in Kokesh v. SEC, 137 S. Ct. 1635 (2017), the Supreme Court characterized SEC disgorgement as a “penalty” rather than an equitable remedy but expressly declined to decide whether courts possess authority to order disgorgement in SEC enforcement proceedings. In Liu, the Court will address head-on the question left open in Kokesh. The outcome of Liu has the potential to upset long-standing precedent and practices. If the Court further restricts the SEC’s ability to obtain disgorgement, the decision will have significant ramifications for the SEC’s enforcement program.
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Decoding DOJ’s New ‘Justice AI’ Initiative
By James D. Gatta, Allan J. Medina and Ian Q. Rogers
The DOJ is likely to face many practical challenges and novel issues as it begins coding its own algorithm for AI-related enforcement. This article briefly examines three areas of AI-related enforcement where such practical challenges and novel issues may arise.
The FTC and DOJ’s New Guidelines Promise Sharper Scrutiny of Mergers
By Karen Hoffman Lent and Kenneth Schwartz
From loosened structural presumptions to unconventional theories of harm such as “ecosystem competition” to consideration of a merger’s effects on outside markets, we review some of the most noteworthy changes in the new Guidelines.
Supreme Court Set to Decide On Competing Interpretations of Federal Corruption Statute
By Elkan Abramowitz and Jonathan Sack
In this article, we describe the competing interpretations of Section 666 and comment on the implications of a Supreme Court decision in United States v. Snyder, where it will decide whether the law criminalizes “gratuities,” and not simply “bribes,” given to state and local officials.
The Role of the SEC In Cryptocurrency Regulation and Enforcement
By Jay Dubow, Joanna Cline and Milica Krnjaja
The SEC's cryptocurrency-related actions reached a new high in 2023, jumping more than 50% when compared to 2022. We expect the SEC’s enforcement efforts in this area to continue at a high pace in 2024, even though whether or not cryptocurrency should be classified as a security or something else remains uncertain.