A unanimous United States Supreme Court held Monday, in Kokesh v. Securities and Exchange Commission, that the five-year statute of limitations under 28 U.S.C. § 2462 applies to disgorgement sought by the Securities and Exchange Commission. Previously, the Circuits had been split on this issue.
The issue in Kokesh was straightforward. Kokesh appealed a trial court judgment ordering disgorgement of nearly $35 million for conduct between 1995 and 2009. Kokesh argued that this disgorgement award was in the nature of a penalty or forfeiture, and thus subject to the five-year statute of limitations under § 2462.
Conversely, the SEC maintained that disgorgement, by its nature, is not a punitive remedy. Rather, because disgorgement is merely a remedy that prevents offenders from reaping ill-gotten gains, the SEC argued it is not subject to § 2462’s five-year statute of limitations.
The Court, however, in a unanimous opinion authored by Justice Sonia Sotomayor, disagreed with the SEC. It held that disgorgement “bears all the hallmarks of a penalty: It is imposed as a consequence of violating a public law and it is intended to deter, not to compensate.” Thus, “[t]he 5-year statute of limitations in § 2462 therefore applies when the SEC seeks disgorgement.”
This is the second time since 2013 that the Supreme Court has narrowed the SEC’s ability to obtain monetary relief in enforcement actions. In Gabelli v. SEC, the Court held that the SEC cannot use the “discovery rule” to extend the statute of limitations for civil penalties, though the Gabelli court expressly declined to address whether the statute of limitations under § 2462 applied to disgorgement. Kokesh has now answered that question.
As disgorgement is a routine remedy for the SEC staff, the Court’s ruling will substantially impact the damages the SEC can obtain in investigations involving long-running conduct, like the conduct in Kokesh. For others subject to investigation, however, it may represent a pyrrhic victory, as the SEC staff may become even more aggressive in its use of tolling agreements, now with an eye towards extending the statutes of limitations for both liability and damages. Indeed, the SEC staff may seek tolling agreements at ever earlier stages of an investigation, including at the very outset of an investigation. Finally, the staff will may become less flexible with deadlines and requests for extensions, as it seeks to hasten the resolution of investigations in light of this newfound limitation.