Kokesh v. SEC: the end of a disgorgement era?

Abstract

Purpose To explain the Supreme Court’s ruling in its recent Kokesh v. SEC decision and its impact on the SEC’s ability to recover disgorgement of ill-gotten gains beyond the five-year statute of limitations. Design/methodology/approach This article discusses the Supreme Court’s recent decision and the immediate effects it will have on the SEC’s approach to a variety of cases in which a significant portion of the recovery may now be outside the statute of limitations. Findings The article concludes that the recent Supreme Court decision will have an immediate effect of preventing the SEC from reaching back beyond five years for disgorgement; however, the SEC may be able to comply with Kokesh and modify its procedures so that its financial recoveries from those that violate securities laws may be categorized as an equitable remedy (like restitution) rather than as a penalty (like forfeiture) which is subject to a five-year statute of limitations. Originality/value The article provides practical guidance from experienced securities litigation and white collar crime lawyers. It explains and analyzes the Supreme Court decision that severely limits the ability of the SEC to seek disgorgement by limiting the SEC’s use of disgorgement to a five-year statute of limitations.