Kokesh And The Future Of SEC Receivers Abroad

Law360, New York (June 30, 2017, 11:38 AM EDT) -- To quote Justice Sonia Sotomayor of the U.S. Supreme Court during argument in Kokesh v. U.S. Securities and Exchange Commission,[1] referring to the darling enforcement tool of the SEC — disgorgement — “If it looks like a forfeiture, why don’t we treat it like a forfeiture?”

That just about sums up the basis of the Supreme Courts’s unanimous ruling on June 5 in the same case, that SEC disgorgement orders are penalties under federal law.

The finding that disgorgement per se is a “penalty” is unlikely to have...
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