Last summer, in Kokesh v. SEC, 137 S. Ct. 1635 (2017), the Supreme Court held that, under 28 U.S.C. § 2462, the Securities and Exchange Commission (SEC) could not seek disgorgement based on conduct that occurred more than five years earlier. The Supreme Court’s unanimous decision was another major loss for the SEC and provided fresh fodder for those challenging government enforcement actions. Kokesh has since been relied on by those arguing that the Federal Trade Commission (FTC) cannot obtain restitution (e.g., FTC v. Credit Bureau Ctr., LLC, No. 17 C 194 (N. D. Ill. June 26, 2018)), that the U.S. Commodities Futures Trading Commission (CFTC) and other agencies cannot obtain monetary relief (e.g., CFTC v. Reisinger, No. 11-cv-08567 (N.D. Ill. Sept. 19, 2017)), and that the SEC is not authorized to seek disgorgement at all (Osborn v. Griffin, 865 F.3d 417 (6th Cir. 2017) (Merritt, J., dissenting)). Thus far, the judiciary has resisted these requests to dramatically reshape the law.
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