At the urging of both an individual petitioner and the SEC, the Supreme Court has agreed to resolve a recent circuit split as to whether the five-year limitations period applicable to SEC enforcement actions applies to the remedy of disgorgement. Kokesh v. SEC, __ S. Ct. __, No. 16-529, 2017 WL 125673 (U.S. Jan. 13, 2017). The issue is whether disgorgement is a “penalty” or “forfeiture” for purposes of the five-year limitations period in 28 U.S.C. § 2462, which applies to government actions seeking a “civil fine, penalty, or forfeiture.” If, on the other hand, disgorgement is an equitable remedy akin to injunctive relief, a long line of cases holds that the statute would not apply. Last year two U.S. Courts of Appeal reach diametrically opposed conclusions on this question. In May, the Eleventh Circuit held that disgorgement is a “forfeiture” subject to the five-year limitations period. See SEC v. Graham, 823 F.3d 1357, 1363-64 (11th Cir. 2016). Three months later, the Tenth Circuit held that disgorgement is neither a “penalty” nor a “forfeiture” and therefore is not subject to the five-year limitations period. See SEC v. Kokesh, 834 F.3d 1158, 1166-67 (10th Cir. 2016).

To learn more, please see GT AlertThe Supreme Court Agrees to Determine Whether SEC Actions Seeking Disgorgement are Subject to the Five-Year Limitations Period Set Forth in 28 U.S.C. § 2462.”

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Photo of Robert A. Horowitz Robert A. Horowitz

Bob Horowitz is Co-Chair of the firm’s D&O Securities Litigation Practice. His securities practice involves the defense of underwriters, issuers, directors, and officers in securities class actions, shareholder derivative action, SEC investigations, and enforcement actions. Among his representations are a defense judgment after

Bob Horowitz is Co-Chair of the firm’s D&O Securities Litigation Practice. His securities practice involves the defense of underwriters, issuers, directors, and officers in securities class actions, shareholder derivative action, SEC investigations, and enforcement actions. Among his representations are a defense judgment after trial in an SEC action alleging insider trading against a money manager, summary judgment on the eve of trial dismissing a securities class action against a medical insurance company, dismissal of putative class action against the majority shareholder of a Russian oil company, and an award of sanctions under the PSLRA (reimbursement of all defense costs) in conjunction with a dismissal of a putative class action against an issuer and its officers and directors.

Bob’s consumer practice focuses on the defense of companies accused of violating consumer protection statutes in class actions and regulatory proceedings. In a multidistrict litigation that has been widely cited to support dismissal of claims by consumers who allege that webpage offers are deceptive, Bob obtained dismissal of a putative class action as a matter of law based on the court’s finding that consumers are charged with knowledge they would glean from reading the disclosures, whether or not they read them, and in this case a reasonable consumer who read the disclosures would have understood them.

Bob also has substantial experience in prosecuting and defending trademark, trade dress, design patent and licensing claims, mostly in the footwear and fashion industry, in representing franchisors in disputes with franchisees, and in handling general commercial litigation.