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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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Conducting Internal Investigations During the COVID-19 Pandemic
By Jacqueline C. Wolff, Scott T. Lashway, and Matthew M.K. Stein
In times of crisis, criminal activity — particularly crimes involving theft and fraud — tend to spike. There is no reason to believe that the Covid-19 pandemic and the unrest in the financial markets will be any different. An important difference for company counsel, however, will be in how the malfeasance, negligence or wrongdoing can be investigated.
Force Majeure and the Doctrine of Impossibility
By John Kelly
The COVID-19 pandemic is resulting in landlords and tenants closely reviewing a clause in their lease that was long considered unimportant boilerplate. Yes, we are referring to the “force majeure” provision.
New Normal Sets In for White-Collar Lawyers in the Virus Era
By C. Ryan Barber
In a practice that prizes in-person meetings, virtual communication has become commonplace.
The Importance of ‘Particulars’ in Criminal Fraud Cases
By Elkan Abramowitz and Jonathan Sack
This article discusses the standard for ordering a bill of particulars in the Second Circuit, drawing a comparison with the standard for civil fraud claims, and then describes a recent decision ordering a bill of particulars in the high-profile prosecution growing out of the Theranos blood-testing scandal. The decision in that case highlights the importance of seeking bills of particulars in fraud cases.
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