Saving Disgorgement from Itself: SEC Enforcement After Kokesh v. SEC

by Patrick L. Butler

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Abstract

Disgorgement is under threat. In Kokesh v. SEC , the Supreme Court held that disgorgement—a routine remedy that allows the SEC to recoup ill-gotten gains from financial wrongdoers—is subject to a 5-year statute of limitations because it functions as a “penalty.” This ruling threatens to upend the traditional conception of disgorgement as an ancillary remedy granted by the court’s equity power, because there are no penalties at equity. With the possibility that Kokesh’s penalty reasoning could be adopted beyond the statute of limitations context, the future of disgorgement in federal court is in doubt.

This Note proposes a way forward that allows for disgorgement’s continued viability. The SEC should moderate its use of disgorgement for three reasons: because of a trend of suspicion toward strong government enforcement power by the Supreme Court, because it has been improperly used punitively, and because the rise of other statutory schemes has displaced disgorgement’s original justification. At the same time, disgorgement should be saved because of the uncertain future of administrative disgorgement proceedings, the intuitive notion of recovering money from wrongdoers, and the much-needed ability to compensate victims. To save disgorgement, the SEC should limit its use only to restoring the status quo of injured investors, thereby ensuring a remedial—not penal—purpose.

Saving Disgorgement from Itself: SEC Enforcement After Kokesh v. SEC

by Patrick L. Butler

Click here for a PDF file of this article

Abstract

Disgorgement is under threat. In Kokesh v. SEC , the Supreme Court held that disgorgement—a routine remedy that allows the SEC to recoup ill-gotten gains from financial wrongdoers—is subject to a 5-year statute of limitations because it functions as a “penalty.” This ruling threatens to upend the traditional conception of disgorgement as an ancillary remedy granted by the court’s equity power, because there are no penalties at equity. With the possibility that Kokesh’s penalty reasoning could be adopted beyond the statute of limitations context, the future of disgorgement in federal court is in doubt.

This Note proposes a way forward that allows for disgorgement’s continued viability. The SEC should moderate its use of disgorgement for three reasons: because of a trend of suspicion toward strong government enforcement power by the Supreme Court, because it has been improperly used punitively, and because the rise of other statutory schemes has displaced disgorgement’s original justification. At the same time, disgorgement should be saved because of the uncertain future of administrative disgorgement proceedings, the intuitive notion of recovering money from wrongdoers, and the much-needed ability to compensate victims. To save disgorgement, the SEC should limit its use only to restoring the status quo of injured investors, thereby ensuring a remedial—not penal—purpose.