U.S. Securities and Exchange Commission building in Washington, D.C. Legislation Misses Mark To Expand SEC Disgorgement Powers
A discussion of §6501, "buried in" the the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 which authorizes the SEC to seek disgorgement of unjust enrichment within 10 years for certain securities law violations, and five years for others. The authors argue that while Congress may have intended the provision to "free the SEC from the limits imposed by two High Court decisions, a close reading of it reveals that the legislation fell short of its mark."
March 15, 2021 at 10:23 AM
8 minute read
On Jan. 1, 2021, the U.S. Congress rang in the new year by passing the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021. Buried in the massive spending bill is §6501, a provision authorizing the U.S. Securities and Exchange Commission to seek disgorgement of unjust enrichment within 10 years for certain securities law violations, and five years for others. Congress passed this legislation in apparent response to a pair of U.S. Supreme Court decisions that limited disgorgement in SEC enforcement actions to a five-year statute of limitations and required that the remedy not exceed a wrongdoer's net profits and be awarded for the benefit of victims. See Kokesh v. Sec. & Exch. Comm'n, 137 S. Ct. 1635 (2017); Liu v. Sec. & Exch. Comm'n, 140 S. Ct. 1936, 1940 (2020).
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