On June 5, 2017, the U.S. Supreme Court unanimously held that SEC disgorgement remedies used as punitive sanctions for violating federal securities laws constitute civil penalties and are subject to the five-year statute of limitations of 28 U.S.C. § 2462. Kokesh v. S.E.C., No. 16-529, 2017 WL 2407471 (U.S. June 5, 2017).
Section 2462’s five-year limitations period applies to any “action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise.” 28 U.S.C. § 2462. In 2013, the Supreme Court in Gabelli v. S.E.C., 568 U.S. 442, held that the five-year statute of limitations applies when the Commission seeks statutory monetary penalties. To avoid the implications of the five-year statute of limitations, the SEC sought a disgorgement claim of $34.9 million ($29.9 million of which resulted from violations outside the limitations period). The district court, in a decision upheld by the Tenth Circuit, held the disgorgement claim was not a penalty within the meaning of Section 2462. As a result, the SEC was awarded its full disgorgement request after a five-day trial wherein the jury found the defendant had violated the federal securities laws.
In now reversing the decision of the Tenth Circuit and resolving a circuit split on this issue, the Supreme Court held that “SEC disgorgement constitutes a penalty within the meaning of § 2462.” Kokesh, 2017 WL 2407471, at *7. The Supreme Court relied on the Court’s 2013 Gabelli decision and prior precedent dating back as far as 1899 to hold that SEC disgorgement goes “‘beyond compensation'” and is “‘intended to punish, and label defendants wrongdoers.'” Id. at *6 (quoting Gabelli, 568 U.S. at 451-52).
Justice Sotomayor wrote the opinion and included an important footnote inviting further litigation on the applicability of SEC disgorgement remedies with a caution that the opinion should not be “interpreted as an opinion on whether courts possess authority to order disgorgement in SEC enforcement proceedings or on whether courts have properly applied disgorgement principles in this context.” Id. at *5 n.3. It, therefore, remains to be seen how the SEC will approach disgorgement requests in future SEC proceedings after this decision but it is now clear that any such requests must be brought within five years of when the alleged fraud occurs.