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Reflections on <b><I>Kokesh v. SEC</I></b>
As we addressed in our first installment last month, 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's) 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.
Our first article addressed whether the five-year statute of limitations applies to administration actions and if the period will hinder SEC enforcement. We additionally evaluated whether the SEC will tie cooperation credit to acting promptly. We also considered whether the SEC can continue to obtain disgorgement and pre-judgment interest generally, as well as disgorgement from relief defendants.
But the Kokesh decision raises other potential consequences that move beyond the realm of SEC enforcement. In the article herein, we address the following:
- Can defendants and respondents still seek indemnification or insurance coverage for disgorgement and pre-judgment interest?
- Is disgorgement paid to a government deductible for U.S. federal tax purposes?
- Can those who paid disgorgement for conduct outside the five-year statute of limitations period get money back?
The SEC's Enforcement Action and the Supreme Court's Opinion in Kokesh
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