Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

Reflections on <b><I>Kokesh v. SEC</I></b>

By Dixie L. Johnson and M. Alexander Koch
September 02, 2017

As we addressed in our first installment last month, in the period since the Supreme Court's unanimous decision in Kokesh v. SEC, No. 16-529, 2017 WL 2407471 (U.S. June 5, 2017), which rejected the Securities and Exchange Commission's (SEC's) longstanding position that disgorgement was an equitable remedy not subject to the five-year statute of limitations in 28 U.S.C. § 2462, many have commented about the increased need for the SEC's enforcement attorneys to complete their investigations quickly — and the frustration that hidden ill-gotten gains would never be recovered due to the five-year limit.

Our first article addressed whether the five-year statute of limitations applies to administration actions and if the period will hinder SEC enforcement. We additionally evaluated whether the SEC will tie cooperation credit to acting promptly. We also considered whether the SEC can continue to obtain disgorgement and pre-judgment interest generally, as well as disgorgement from relief defendants.

But the Kokesh decision raises other potential consequences that move beyond the realm of SEC enforcement. In the article herein, we address the following:

  • Can defendants and respondents still seek indemnification or insurance coverage for disgorgement and pre-judgment interest?
  • Is disgorgement paid to a government deductible for U.S. federal tax purposes?
  • Can those who paid disgorgement for conduct outside the five-year statute of limitations period get money back?

The SEC's Enforcement Action and the Supreme Court's Opinion in Kokesh

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Major Differences In UK, U.S. Copyright Laws Image

This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.

Strategy vs. Tactics: Two Sides of a Difficult Coin Image

With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.

The Article 8 Opt In Image

The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.

Removing Restrictive Covenants In New York Image

In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?

Fresh Filings Image

Notable recent court filings in entertainment law.