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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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