Since at least the 2017 decision in Kokesh v. SEC, 137 S.Ct. 1635, there have been questions about Commission remedies. There the High Court held that disgorgement in agency enforcement actions was subject to Section 2462 of Title 28 since it was a “penalty” within the meaning of the statute. The Court also reserved the question of whether the agency could in fact seek and obtain disgorgement since there was no statutory basis for such an award, a point lamented by certain Justices during the oral argument on Kokesh.
A related question was recently considered by the Third Circuit Court of Appeals in SEC v. Gentile, No. 18-1242 (3rd Cir. Sept. 26, 2019). There the Circuit Court considered a challenge to the imposition of a statutory injunction citing Kokesh.
‘Enforcement 40’ for 2020
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