Supreme Court Scales Back SEC’s Disgorgement Remedy in Liu v. SEC

The U.S. Supreme Court (Court) recently issued a long-awaited decision in Liu v. SEC, which limits the SEC’s ability to collect disgorgement from defendants in enforcement actions. For many defendants, the decision will not be much help; the limitations the Court imposed did not curb the SEC’s general authority to seek disgorgement of the proceeds of defendants’ fraudulent schemes. For other defendants – including investment advisers – ordered to pay disgorgement for discrete instances of wrongdoing within the larger context of lawful business operations, however, Liu will likely prove to be a boon. In a guest article, David Slovick, partner at Barnes & Thornburg and former senior official in the SEC’s Enforcement Division, reviews the Kokesh decision that preceded the Liu case, as well as the lower courts’ decisions in Liu and the Court’s recent ruling. The article also analyzes the implications of the Liu decision for investment advisers. For additional discussion of disgorgement as a remedy, see “Disgorgement Action Reveals Dangers of Having an Unqualified CCO” (Apr. 16, 2020).

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