Category: Statute of Limitations


The Supreme Court Unanimously Holds SEC Disgorgement Constitutes a “Penalty”

Posted on June 6th, by and in Disgorgement, Statute of Limitations. Comments Off on The Supreme Court Unanimously Holds SEC Disgorgement Constitutes a “Penalty”

On June 5, 2017, the Supreme Court of the United States released its unanimous opinion in Kokesh v. Securities and Exchange Commission and established that “SEC disgorgement constitutes a penalty within the meaning of § 2462” and therefore is restricted by the applicable 5-year statute of limitations. As predicted in our previous blog post, the Court determined that the SEC cannot impose disgorgement fees without regard to statute of limitations.

The Supreme Court determined that SEC disgorgement “bears all the hallmarks of a penalty” and therefore should be subject to the 5-year statute of limitation in § 2462 for three main reasons: (1) “SEC disgorgement is imposed by courts as a consequence for violation” of public laws, i.e. for violations committed against the United States rather than a “aggrieved individual”; (2) “SEC disgorgement is imposed for punitive purposes” such as deterrence, … Read More »


Kokesh v. Securities and Exchange Commission: A New Limitation to the Government’s Enforcement Power?

Posted on April 21st, by and in Disgorgement, Statute of Limitations. Comments Off on Kokesh v. Securities and Exchange Commission: A New Limitation to the Government’s Enforcement Power?

The United States Supreme Court will soon decide whether the SEC can continue to impose disgorgement fees without regard to any statute of limitations. Based on the oral argument in Kokesh v. Securities and Exchange Commission, held on Tuesday, April 18, 2017, it appears likely that the Court will determine that the SEC does not have the wide power it claims in pursuing disgorgement, or the return of profits made from illegal actions.

Background

The petitioner, Charles Kokesh, was the owner of two registered investment advisers. Between 1995 and 2006, he misappropriated $34.9 million from the business development companies operated by the investment advisers. The SEC pursued civil enforcement actions against him in 2009 and the jury found he violated the Securities Exchange Act, the Investment Advisers Act and the Investment Company Act. The United States District Court for the District of … Read More »


District Court Invalidates Tolling Agreements in Criminal Securities Fraud Prosecution Case Due to Misunderstanding of Applicable Statute of Limitations

Posted on February 6th, by and in Criminal Liability, Dodd-Frank, Statute of Limitations, Tolling Agreements. Comments Off on District Court Invalidates Tolling Agreements in Criminal Securities Fraud Prosecution Case Due to Misunderstanding of Applicable Statute of Limitations

On January 30, 2017, the United States District Court for the District of New Jersey dismissed the government’s indictment against Guy Gentile for a pump-and-dump securities fraud scheme. After his arrest Gentile admitted to having engaged in the scheme and agreed to cooperate, which included signing two tolling agreements, each extending the statute of limitations for one year. In dismissing the indictments, the court held that the tolling agreements were invalid and the applicable statute of limitations for securities fraud was five years, not six years.

According to the opinion, Gentile engaged in a securities fraud scheme that indisputably ended in June 2008, at which time the statute of limitations for securities fraud was five years. In 2010, however, the Dodd-Frank Wall Street Reform and Consumer Protection Act extended the statute of limitations to six years for certain criminal securities fraud … Read More »


Update: SCOTUS Will Consider Statute of Limitations on Disgorgement

Posted on January 18th, by and in Civil Penalties, Disgorgement, Statute of Limitations. Comments Off on Update: SCOTUS Will Consider Statute of Limitations on Disgorgement

We previously wrote about how the SEC urged the Supreme Court to grant certiorari in Kokesh v. SEC, and on Friday, January 13, the Court did just that. In an order without comment, the Court granted certiorari after both the petitioner and the SEC requested the Court’s review, albeit for different reasons. While the petitioner believes he should not be subject to disgorgement for ill-gotten gains that were obtained more than five years ago, the SEC wants the Court to bring clarity to the circuit split that has developed since the Eleventh Circuit’s decision in SEC v. Graham, which held that the five-year statute of limitations applies to disgorgement. As we previously noted, the SEC argued that Graham impedes its ability to achieve uniformity in the administration of securities laws.

We will continue to monitor developments in this case, which is … Read More »


SEC Urges Supreme Court to Consider Nature of Disgorgement

Posted on December 21st, by and in Civil Penalties, Disgorgement, Statute of Limitations. Comments Off on SEC Urges Supreme Court to Consider Nature of Disgorgement

We previously posted about how the Southern District of Florida’s and Eleventh Circuit’s decisions in SEC v. Graham undermined the SEC’s long-held position that disgorgement was not subject to the five-year statute of limitations. The SEC recently asked the Supreme Court to examine that decision by joining the petitioner’s request for certiorari in Kokesh v. SEC, a case in which the Tenth Circuit affirmed an award of disgorgement, holding that the five-year statute of limitations did not apply.

In Kokesh, the SEC obtained a final judgment in 2014 that included nearly $35 million of disgorgement that covered ill-gotten gains obtained as far back as 1995. The Tenth Circuit affirmed the final award, diverging with Graham, and holding that disgorgement was not a penalty or forfeiture to which the five-year statute of limitations applied.  Kokesh applied for certiorari.

Last week, the SEC urged … Read More »


Update: IRS, SEC, and Courts Diverge on Nature of Disgorgement

Posted on July 12th, by and in Disgorgement, Foreign Corrupt Practices Act (FCPA), General, IRS, Statute of Limitations. Comments Off on Update: IRS, SEC, and Courts Diverge on Nature of Disgorgement

We previously wrote about decisions in SEC v. Graham from the Eleventh Circuit,  __ F.3d __, No. 14-13562, 2016 WL 3033605 (11th Cir. May 26, 2016), and the U.S. District Court for the Southern District of Florida, 21 F. Supp. 3d 1300 (S.D. Fla. 2014), considering whether disgorgement claims and other remedies were subject to five-year statute of limitations on actions “for the enforcement of any civil fine, penalty, or forfeiture” codified in 28 U.S.C. § 2462. The Eleventh Circuit affirmed the decision of the lower court that the SEC’s disgorgement claims were time-barred, holding that “disgorgement” is synonymous with the plain meaning of “forfeiture” as it is used in the statute.

On May 6, 2016—shortly before the Eleventh Circuit issued its ruling in Graham—the IRS published non-precedential Chief Counsel Advice (“CCA”) on whether Internal Revenue Code Section 162(f) bars business expense … Read More »


Update: Eleventh Circuit Affirms Dismissal of Claims for Declaratory Relief and Disgorgement in SEC v. Graham, __ F.3d __, No. 14-13562, 2016 WL 3033605 (11th Cir. May 26, 2016)

Posted on June 1st, by and in Statute of Limitations. Comments Off on Update: Eleventh Circuit Affirms Dismissal of Claims for Declaratory Relief and Disgorgement in SEC v. Graham, __ F.3d __, No. 14-13562, 2016 WL 3033605 (11th Cir. May 26, 2016)

We previously wrote about a decision out of the U.S. District Court for the Southern District of Florida in SEC v. Graham, 21 F. Supp. 3d 1300 (S.D. Fla. 2014), which involved claims by the SEC in connection with an alleged $300 million real estate Ponzi scheme. Echoing the Supreme Court’s reaffirmation in SEC v. Gabelli, 133 S. Ct. 1216 (2013), of the importance of statutes of limitation “to the welfare of society,” the district court had held that the five-year statute of limitations in 28 U.S.C. § 2462 is jurisdictional rather than a “claim-processing rule” and that the limitations period provided by § 2462 applies not only to civil penalties but also to equitable relief including injunctions, declaratory relief, and disgorgement. On May 26, 2016, the Eleventh Circuit affirmed in part, reversed in part, and remanded this decision for further … Read More »


Securities Trade Association Voices Support for Application of Gabelli Decision to All SEC Enforcement Actions

Posted on March 10th, by and in Statute of Limitations. Comments Off on Securities Trade Association Voices Support for Application of Gabelli Decision to All SEC Enforcement Actions

In a recently filed amicus brief, the Securities Industry Financial Markets Association (“SIFMA”), which represents the interests of securities firms, banks, and asset managers, urged the Eleventh Circuit Court of Appeals to affirm a lower court’s decision to apply the Supreme Court’s holding in SEC v. Gabelli, 113 S.Ct. 1216 (2013) to SEC enforcement actions seeking equitable relief.

We previously blogged about the underlying decision in SEC v. Graham, No. 13-10011, 2014 WL 1891418 (S.D. Fla. May 12, 2014), in which the U.S. District Court for the Southern District of Florida dismissed a case involving an allegedly $300 million Ponzi scheme on statute of limitations grounds. In Graham, the court ruled that it lacked subject matter jurisdiction over the SEC’s claims against former real estate executives because the five-year statute of limitations in 28 U.S.C. § 2462 had run. The court … Read More »


Graham Decision Adopts Gabelli Rationale to Apply Five-Year Statute of Limitations to Enforcement Actions Seeking Equitable Relief

Posted on May 20th, by and in Statute of Limitations. Comments Off on Graham Decision Adopts Gabelli Rationale to Apply Five-Year Statute of Limitations to Enforcement Actions Seeking Equitable Relief

The decision of a U.S. District Court for the Southern District of Florida judge to dismiss a case involving an alleged $300 million Ponzi scheme on statute of limitations grounds holds significant implications for time limits on the SEC’s power to bring enforcement actions.

In SEC v. Graham, No. 13-10011, 2014 WL 1891418 (S.D. Fla. May 12, 2014), the court ruled that it lacked subject matter jurisdiction over the SEC’s claims against former real estate executives because the five-year statute of limitations in 28 U.S.C. § 2462 had run. Notably, the court drew a distinction between “jurisdictional” statute of limitations and statute of limitations that act as “claim-processing rules.” While “claim-processing rules” would allow the court to determine whether the statute of limitations had been tolled or otherwise extended, “jurisdictional” limitations prevent a court from entertaining a matter unless the claim … Read More »




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