A Rare Statute-Of-Limitations Victory Against The SEC

By Joseph Dever and Matthew Elkin (July 30, 2018, 2:10 PM EDT) -- Earlier this month, the U.S. Securities and Exchange Commission suffered a major setback to its core enforcement principle that no statute of limitations bars the agency from filing cases for permanent injunctions. In SEC v. Cohen et al.,[1] Judge Nicholas G. Garaufis of the U.S. District Court for the Eastern District of New York dismissed as untimely the SEC's entire case, including its claim for injunctive relief, on statute of limitations grounds. This is an important decision for SEC defense counsel to take note of when dealing with the agency in litigation and investigations. The decision is a rare complete victory against the SEC on statute-of-limitations grounds at the pleadings stage. Moreover, the decision provides defense counsel with ammunition to boost their argument in Wells meetings with the SEC staff that the agency should forgo completely any charges based on older conduct falling outside a five-year window....

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