transcript   Transcript

Kokesh v. SEC: Supreme Court Says Disgorgement is a Penalty Subject to Statute of Limitations

Recorded on: Jul. 14, 2017
Running Time: 01:00:49

Full Transcript:

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Taken from the briefing Kokesh v. SEC: Supreme Court Says Disgorgement is a Penalty Subject to Statute of Limitations recorded July, 2017 in New York.

The U.S. Supreme Court’s June 5, 2017 decision in Kokesh v. Securities and Exchange Commission held that the “disgorgement” remedy sought by the SEC in its enforcement actions is a “penalty” subject to the five-year statute of limitations found in 28 U.S.C. § 2462. At the same time, the Court made comments suggesting that the lower courts may be misinterpreting the law in fashioning disgorgement remedies in SEC cases. The Kokesh decision is important not only because it places a limitation on the ability of the SEC to seek disgorgement for long-past conduct, but also because the decision likely places similar limits on other federal agencies that seek disgorgement remedies. The decision also provides a basis for defendants in SEC enforcement actions to press lower courts to reconsider their interpretation of the scope of the disgorgement remedy and whether it is consistent with the common law understanding of such.

The Briefing on Kokesh was conducted by Matthew T. Martens of Wilmer Cutler Pickering Hale and Dorr LLP, who prepared an amicus brief in support of Kokesh in the Supreme Court.

Lecture Topics  [01:00:49]

Specific topics covered by this briefing will include:

  • Does Kokesh apply to other federal agency enforcement actions?
  • What are the collateral impacts of the Court’s ruling that disgorgement is a “penalty”?
  • Is disgorgement open to challenge as a remedy wrongly applied by the lower courts?

Presentation Material

  • Brief 16-529: Amicus Pet Chamber of Commerce
    Matthew T. Martens
  • Kokesh v. SEC
    Matthew T. Martens
Matthew T Martens ~ Wilmer Cutler Pickering Hale and Dorr LLP
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