Beyond disgorgement: the impact of Kokesh on the SEC’s pursuit of equitable remedies

Abstract

Purpose

This paper aims to explain the US Supreme Court’s ruling in Kokesh v. SEC, which limited the U.S. Securities and Exchange Commission’s (SEC) ability to seek the remedy of disgorgement and to examine how lower courts have applied the ruling to other types of equitable relief that that the SEC commonly pursues.

Design/methodology/approach

This study explains why the Supreme Court in Kokesh ruled that disgorgement is a “penalty” and that the five-year limitations period therefore was applicable to actions seeking disgorgement; discusses a footnote in Kokesh that left open the question of whether the SEC has the power to pursue disgorgement at all; and reviews four recent cases that grapple with the application of Kokesh to injunctions and lifetime bars.

Findings

Lower courts and the SEC have not settled on how Kokesh might impact equitable remedies commonly pursued by the SEC, but recent cases indicate that the effect of Kokesh may be broader than its narrow holding suggests.

Originality/value

Practical guidance from experienced white collar and regulatory defense lawyers that consolidates several recent developments in one piece.

Citation

Karp, B., Ehrlich, A., Reisner, L., Soloway, A., Tarlowe, R., Lichtenstein, M. and Vizcarrondo, P. (2018), "Beyond disgorgement: the impact of Kokesh on the SEC’s pursuit of equitable remedies", Journal of Investment Compliance, Vol. 19 No. 3, pp. 13-16. https://doi.org/10.1108/JOIC-04-2018-0031