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Abstract: 

Rejecting the SEC’s position, the Supreme Court unanimously held that disgorgement sought by the Commission is a penalty subject to the federal five-year statute of limitations. The author discusses the background to the case and points to some open issues. He then considers the decision’s effect on tolling agreements, the speed of filing, scope of disgorgement, tax treatment, and indemnification/insurance claims. *This article is adapted, with updates by the authors, from The Review of Securities & Commodities Regulation, © RSCR Publications LLC, and is available for download for Journal of Taxation & Regulation of Financial Institutions subscribers only; no pay-per-article option is available.

Keywords: Kokesh v. SEC, discovery rule, fraudulent concealment, restitution, tolling agreements, Johnson v. SEC, Gabelli v. SEC

Affiliations:  1: Katten Muchin Rosenman LLP.