Search for:

Richard Kirby

Richard A. Kirby is a partner in the Litigation Practice Group at Baker McKenzie, Washington, DC. Mr. Kirby litigates complex corporate, securities, bankruptcy and administrative law issues. Mr. Kirby also represents clients in SEC, Justice Department, state and self-regulatory organization law enforcement investigations and in parallel private securities fraud and derivative actions. He has participated on behalf of clients in most of the major recent broker-dealer liquidations under the Securities Investor Protection Act, including Lehman Bros., and Bernard L. Madoff Investments Securities, LLC. He specializes in representing victims of Ponzi schemes.

On June 5, 2017, the United States Supreme Court held that the power of the SEC to take the profit out of violations of the securities laws through the remedy of disgorgement as practiced by the SEC is limited to the five-year period immediately preceding the filing of an enforcement action by the SEC because it operates as a penalty.

When the SEC seeks disgorgement, is it asking for a fine, a forfeiture, or an equitable remedy outside the reach of the current statute of limitations? On Friday, 13 January 2017, the Supreme Court in Kokesh v. SEC, No. 16-529, granted review of the Tenth Circuit’s ruling in that an…