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Regulation Securities Litigation United States Supreme Court White Collar Crime

Reflections on Kokesh v. SEC

Potential Ramifications of SEC Disgorgement Being a Penalty

Part Two of a Two-Part Article

The Kokesh decision raises potential consequences that move beyond the realm of SEC enforcement. They are discussed in depth in this article.


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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.

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