While the SEC may seek disgorgement, it may not, under the guise of disgorgement, seek a remedy beyond traditional equitable principles

In a much anticipated ruling, the United States Supreme Court held today in Liu v. Securities and Exchange Commission that a disgorgement award that does not exceed a wrongdoer’s net profits and is awarded for “the benefit of investors” is “equitable relief” permissible under 15 U. S. C. §78u(d)(5).[1] In reaching its decision, the Court analyzed categories of relief “typically available in equity,” concluding that “equity practice [has] long authorized courts to strip wrongdoers of their ill-gotten gains.”[2]  However, in vacating the decision of the Ninth Circuit Court of Appeals and remanding for further proceedings, the Court left open the questions of whether disgorgement awards not paid to victims can be consistent with the statutory requirement that such a remedy be imposed “for the benefit of investors,” and whether concepts of equity contemplate any circumstance under which a joint-and-several award of disgorgement would be appropriate.

Based on public statements, including a recent speech discussing the operation of the Division of Enforcement’s COVID-19 Steering Committee (Enforcement speech), it is clear that the SEC Enforcement Staff (the Staff) is already thinking ahead to the types of enforcement investigations and actions that may follow the COVID-19 Crisis. In doing so, the Staff likely will draw on its experience following the 2008 global financial crisis (2008 Crisis) to identify potential patterns of misconduct that occur during periods of extraordinary market volatility and financial stress. Below we discuss the various areas that the SEC Enforcement Division is currently focused on, as well as our analysis of the enforcement actions arising out of the 2008 Crisis, with a particular focus on the asset management industry.

SEC 2020: Expect SEC Enforcement to Cast Wide Net on Corporate Disclosure This is the second installment in our series of year-end analyses of the year in securities regulation and enforcement. Based on our ongoing analysis of SEC enforcement actions in 2019, we expect the SEC’s Division of Enforcement to…

On March 3, 2020, the US Supreme Court heard oral argument on whether the SEC has the authority to obtain disgorgement of “ill-gotten gains” in federal court for securities law violations. During the oral argument, in their questioning, the Justices frequently referred back to district courts’ inherent authority to enter…

Welcome to the first of our series of year-end analyses of the year in securities regulation and enforcement. First, we will consider the past year “by the numbers,” the statistics that the Securities and Exchange Commission (SEC), or more specifically, its component Divisions and Offices, release annually. Later parts of…

View presentation At the recent roundtable discussion, “SEC Regulatory and Enforcement Trends: How to Prepare for the SEC in 2020,” held at the Baker McKenzie Chicago office, our North America Financial Regulation & Enforcement team talked about what to expect from the Staff in 2020. Drawing from their collective SEC regulatory…

The US Securities and Exchange Commission (SEC) Division of Enforcement recently issued its 2019 Annual Report (ENF Annual Report), which you can read in full here. Of course, the headline is always how many cases did the Enforcement Staff bring and how much money did they collect and distribute and,…

On November 1st, the U.S. Supreme Court agreed to hear arguments on whether the SEC has the authority to obtain disgorgement of “ill-gotten gains” in federal court for securities law violations.  The SEC historically has been successful in obtaining monetary relief from defendants through disgorgement, which the SEC has asserted…

The Division of Investment Management recently issued guidance on the obligation of investment advisers to disclose financial conflicts of interest in the form of Frequently Asked Questions Regarding Disclosure of Certain Financial Conflicts Related to Investment Adviser Compensation (the “Guidance”).  The Guidance substantiates (and to some degree legitimizes) the positions…