What Kokesh V. SEC Means For Enforcement Actions

By Mary Jo White, Andrew Ceresney, Kara Brockmeyer, Robert Kaplan, Julie Riewe and Jonathan Tuttle (June 8, 2017, 4:54 PM EDT) -- On June 5, 2017, the U.S. Supreme Court unanimously held that the "catch-all" statute of limitations for government actions in 28 U.S.C § 2462 bars the U.S. Securities and Exchange Commission from obtaining disgorgement in actions brought beyond the five-year limitations period. Interpreting the scope of § 2462 and expanding on its landmark ruling in Gabelli v. SEC,[1] the court rejected the government's argument that disgorgement is remedial in that it "restores the status quo," and held that "[b]ecause disgorgement orders go beyond compensation, are intended to punish, and label defendants wrongdoers as a consequence of violating public laws, they represent a penalty and thus fall within the 5-year statute of limitation of § 2462."...

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