Reflections on Kokesh v. SEC: Potential Ramifications of SEC Disgorgement Being a Penalty

In the week since the Supreme Court’s unanimous decision in Kokesh v. SEC, which rejected the Securities and Exchange Commission’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. These are important and valid ramifications, and we include them in this article.

But the Kokesh decision raises other potential consequences that have not been as widely noted. We address many of those other consequences here, including the following...

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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