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Expert Analysis

The Impact Of Kokesh So Far, And What's Next: Part 2

By Dixie Johnson, Alec Koch, Carmen Lawrence, Abraham Shashy, Richard Walker, Jessica Rapoport and Gregory Lucas (February 14, 2018, 1:22 PM EST) -- As we addressed in our first installment, until the U.S. Supreme Court issued its unanimous opinion in Kokesh v. SEC,[1] the U.S. Securities and Exchange Commission took the position that it could obtain disgorgement from defendants no matter how long ago the alleged wrongdoing occurred. Kokesh changed that, holding that SEC disgorgement is a penalty, not an equitable remedy, and therefore subject to the five-year statute of limitations codified in 28 U.S.C. § 2462. Courts and the SEC have been grappling with the ramifications of Kokesh ever since....

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