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SUPREME COURT HOLDS THAT SEC DISGORGEMENT ORDERS ARE SUBJECT TO STATUTE OF LIMITATIONS

  • June 6th, 2017
  • Russell Weigel
  • Comments Off on SUPREME COURT HOLDS THAT SEC DISGORGEMENT ORDERS ARE SUBJECT TO STATUTE OF LIMITATIONS

On June 5, 2017 the U.S. Supreme Court announced its unanimous opinion in Kokesh v. SEC holding that the five-year federal statute of limitations on government penalty and forfeiture claims applies to SEC claims for disgorgement. Our firm’s successful federal trial court and appellate pro bono efforts in SEC v. Graham led to the pathbreaking opinion that disgorgement claims are subject to the statute of limitations. The Eleventh Circuit Court of Appeals’ opinion in Graham created a split in the circuit courts, which the U.S. Supreme Court remedied in Kokesh with its holding that “Disgorgement, as it is applied in SEC enforcement proceedings, operates as a penalty under Section 2462 [28 U.S.C. §2462]. Accordingly, any claim for disgorgement in an SEC enforcement action must be commenced within five years of the date the claim accrued.” As of June 5, 2017, nationwide, not just in the Southeast, the SEC is restrained from pursuing stale allegations. This ruling will have a profound effect on many pending and future cases and represents a rejection of the SEC’s long-standing argument that its disgorgement claims have no statute of limitations.

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