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General Counsel and In House Counsel Litigation Regulations United States Supreme Court

Reflections on Kokesh v. SEC

Potential Ramifications of SEC Disgorgement Being a Penalty

Part One of a Two-Part Article

In reference to Kokesh, most commentators have focused on the five-year limitations period, which certainly carries important ramifications for the SEC. But as we describe here, the Supreme Court's ruling that "SEC disgorgement constitutes a penalty" has more far-reaching ramifications.

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In the period since the Supreme Court’s unanimous decision in Kokesh v. SEC, No. 16-529, 2017 WL 2407471 (U.S. June 5, 2017), which rejected the Securities and Exchange Commission’s (SEC) longstanding position that disgorgement was an equitable remedy not subject to the five-year statute of limitations in 28 U.S.C. § 2462, many have commented about the increased need for the SEC’s enforcement attorneys to complete their investigations quickly, and the frustration that hidden ill-gotten gains would never be recovered due to the five-year limit. These are important and valid ramifications, and we include them in this article.

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