Kokesh v. SEC is an appeal to the U.S. Supreme Court from the 10th Circuit Court of Appeals, in which the Court will be asked to decide whether a disgorgement award in favor of the SEC constitutes a penalty or forfeiture within the meaning of 28 U.S.C. § 2462, which therefore must be brought within that section’s five year statute of limitations. This verdict from New Mexico, affirmed on appeal by the 10th Circuit, awarded the Securities and Exchange Commission (“SEC”) a disgorgement award of $34.9 million, plus $18.1 million in prejudgment interest, and a penalty of $2.4 million for Charles R. Kokesh’s (“Kokesh”) misappropriation of funds from four SEC-registered business development companies (“BDC”). The BDCs raised money from investors through public securities offering and invested in private start-up companies that focused on technology, biotechnology, and medical diagnostics. From 1995 through 2006, Kokesh directed the BDCs to take $23.8 million to pay salaries and bonuses to BDC Advisers, including Kokesh himself, and to take $5 million to cover office rent. In 2000, Kokesh also had the BDCs distribute $6.1 million in payments described as “tax distributions.” See SEC v. Kokesh, 834 F.3d 1158, 1160-61 (10th Cir. 2016). The jury found “(1) that Defendant knowingly and willfully converted the Funds’ assets to his own use or to the use of another and (2) that he knowingly and substantially assisted the Advisers in defrauding the [BDCs], in filing false and misleading reports with the SEC, and in soliciting proxies using false and misleading proxy statements.” Id. at 1161. The trial court held that disgorgement of $34.9 million “reasonably approximates the ill-gotten gains causally connected to Defendant’s violations.” Id.
The Tenth Circuit: Disgorgement Is Remedial, Not a Penalty or Forfeiture
The 10th Circuit held that disgorgement is not “a penalty or forfeiture within the meaning of § 2462.” Id. at 1167. First the 10th Circuit held that “disgorgement is not a penalty under 2462 because” it “does not inflict punishment” but rather “is remedial.” Id. at 1164. “[I]t does so…by depriving the wrongdoer of the benefits of wrongdoing.” Id. (citing SEC v. Contorinis, 743 F.3d 296, 301 (2d Cir. 2014)). However, the 10th Circuit acknowledged that “in common English the words forfeit and disgorge…capture similar concepts,” and that the “definitions in the leading legal dictionary…also have similarities”: Black’s defines “disgorgement” as a “legal compulsion” to “giv[e] up something (such as profits illegally obtained),’” and “forfeiture” as the “’loss of…property because of a crime, breach of obligation, or neglect of duty.’” The 10th Circuit believed that § 2462 used “forfeiture” in a narrow historical sense—as “an in rem procedure to take ‘tangible property used in criminal activity.’” Id. at 1165 (citing U.S. v. 92 Buena Vista Ave., 507 U.S. 111, 118 (1993)). In end, the 10th Circuit affirmed the disgorgement award.
Petitioner’s Argument: Circuit Split and Consequences of No Statute of Limitations for Disgorgement
Kokesh appealed to the U.S. Supreme Court, presenting the question of whether: “[u]nder 28 U.S.C. § 2462, any ‘action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued.’ Does the five-year statute of limitations in 28 U.S.C. § 2462 apply to claims for “disgorgement?’” Pet. Brief at i, Docket No. 16-529 (2016).
28 U.S.C. § 2462 sets a five-year limitations period for claims seeking certain sanctions and states:
Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon.
Kokesh argues that Gabelli v. SEC, 133 S. Ct. 1216 (2013) mandates that § 2462 applies to disgorgement awards because disgorgement is a form of penalty or forfeiture. Gabelli also rejected the SEC’s request for the application of the “discovery rule” to the § 2462 statute of limitations as that “would leave defendants exposed to Government enforcement action not only for five years after their misdeeds, but for an additional uncertain period into the future.” Id. at 1223. Gabelli expressly reserved the question of whether § 2462 applies to claims for disgorgement. Id. at 1220 n. 1.
As an initial matter, all parties agreed that there is a circuit split on the question of whether § 2462 applies to claims for disgorgement. The 11th Circuit has held that “§ 2462’s statute of limitations applies to disgorgement,” finding that disgorgement is a “forfeiture” within the meaning of the statute. SEC v. Graham, 823 F.3d 1357, 1363 (11th Cir. 2016). The underlying Graham district court held that “disgorgement…can truly be regarded as nothing other than a forfeiture…, which remedy is expressly covered by § 2462.” 21 F.Supp.3d at 1310-11. By contrast, the 1st and D.C. Circuits (and the 10th Cir. in Kokesh) held that § 2462 does not apply to actions for disgorgement. SEC v. Tambone, 550 F.3d 106, 148 (1st Cir. 2008); Riordan v. SEC, 627 F.3d 1230, 1234 (D.C. Cir. 2010)(“there is no statute of limitations for SEC disgorgement actions”).
In Kokesh, the SEC did not bring its disgorgement claims against Petitioner until 2009, yet the district court entered a $34.9 million disgorgement order based on securities-law violations that occurred as far back as 1995. Pet. Brief at 2. “In the Eleventh Circuit, all the SEC’s claims that arose before 2004 would be untimely under § 2462, and the SEC has conceded that this rule would preclude all but $5 million of the disgorgement order against Petitioner. Id. (citing Pet. App. 26a-27a).
According to Kokesh, if §2462 does not limit disgorgement actions, then sweeping disgorgement liability will be limitless in time. Statutes of limitation aim to provide “security and stability to human affairs,” reflecting the settled wisdom that it would be “’utterly repugnant to the genius of our laws’” if actions “could ‘be brought at any distance of time.’” Gabelli, 133 S. Ct. at 1223 (quoting Adams v. Woods, 6 U.S. (2 Cranch) 336, 342 (1805)). Moreover, the difference it would make to recoveries in SEC actions is sizeable. For Kokesh, it would mean at least $29 million in disgorgement liability would be erased. And writ large, in 2015 alone, “the SEC extracted $3 billion in disgorgement payments. That amount dwarfs the SEC’s money penalties, which were just $1.2 billion, and is also growing faster: Disgorgement collections have jumped 60% since 2011, compared with just a quarter increase in penalties.” Pet. Br. at 3.
SEC: There Is No Statute of Limitations For Disgorgement Actions
The SEC’s argument is surprisingly simple: there is no statute of limitations for disgorgement and § 2462 does not apply to bar SEC disgorgement actions. See generally, Res. Br. The “equitable relief” power under 15 U.S.C. § 78u(d)(5) includes authority to order disgorgement. Porter v. Warner Holding Co., 328 U.S. 395, 398-99 (1946); see, e.g., SEC v. Masson, Inc., 465 F.3d 1174, 1179 (10thCir. 2006), cert. denied, 550 U.S. 905 (2007).
Congress has not specified a statute of limitations for an SEC enforcement action alleging a violation of the Exchange Act, the Advisers Act, or the Investment Company Act. Res. Br. at 2. But Congress has enacted a statute of limitations (28 U.S.C. § 2462) that governs “penalty provisions throughout the U.S. Code.” Gabelli, 133 S. Ct. at 1219. The purpose of disgorgement is “not to inflict punishment but to prevent an unjust enrichment.” Res. Br. at 8 (citing Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390, 399 (1940)). Disgorgement “differs greatly from…damages and penalties,” because it has a quintessential remedial nature. Id., (citing Porter, 328 U.S. 402).
Apart from that general recitation of the purpose of disgorgement and the implications of the Circuit split, the SEC’s argument was very simple, if only by implication: there is no statute of limitations for the disgorgement remedy and the SEC should be able to reach back as far as disgorgement can be “reasonably approximate[d].” SEC v. Kokesh, 834 F.3d at 1161.
Reply and Amicus (Chamber of Commerce): Disgorgement to Injured Victims Is Distinguishable Because That is Remedial And “Forever Liability” Could Result in Potentially Crippling Monetary Awards
Kokesh’s reply focuses primarily on the nature of disgorgement that the SEC routinely seeks, as it is “a legal obligation to pay money to the government, imposed as a consequence of wrongdoing—a classic form of punishment.” Pet. Reply at 1. Kokesh then also distinguishes Porter and Sheldon as cases where the disgorgement went to injured victims: rents to tenants in Porter and profits from copyright infringement in Sheldon. Id. at 1-2. “In those cases restitution order had the remedial effect of restoring property to its rightful owner,” whereas in Kokesh’s case the disgorgement money goes to the SEC. Id. at 2.
The Chamber of Commerce’s amicus brief took head on the SEC’s argument that there was no statute of limitations for disgorgement:
a defendant in an agency enforcement action is forever liable for potentially crippling monetary awards that may never be discharged. This is an extraordinary position. Statutes of limitation “promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared,” Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-349 (1944), and provide “certainty about…a defendant’s potential liabilities,” Rotella v. Wood, 528 U.S. 549, 555 (2000).
Amicus Br. at 3.
The Chamber proceeded to argue that disgorgement is a penalty because it “goes beyond remedying the damage caused to the harmed parties by the defendant’s actions.” Amicus Br. at 5 (quoting Johnson v. SEC, 87 F.3d 484, 488 (D.C. Cir. 1996)). Disgorgement is animated by a deterrent purpose, which is a hallmark of punitive remedies. Id. (citing SEC v. Rind, 991 F.2d 1486, 1490 (9th Cir. 1993)(“The theory behind the remedy is deterrence and not compensation.”)). The SEC’s “public statements about its enforcement actions” confirm this deterrent purpose by highlighting the “deterrent and retributive effect of its disgorgement orders.” Id. at 6 (citing SEC, Press Release No. 2005-93 (June 28, 2005)).
The Chamber argued further that disgorgement is particularly punitive when the defendant has not retained the benefit of all the ill-gotten gains—where for instance those monies were expended on rent/salaries. Amicus Br. at 6-7. Moreover, a disgorgement claim that cannot be ascertained with sufficient certainty “takes on the character of a plea for punitive relief.” Id. at 7 (citing SEC v. Wills, 472 F.Supp. 1250, 1276 (D.D.C. 1978)). The SEC is only required to provide a “reasonable approximation” for disgorgement. Id. (citing SEC v. Teo, 746 F.3d 90, 107 (3d Cir. 2014). Finally, the disgorgement awards go to the U.S., not victims, and therefore are by nature punitive. Id. at 8 (citing SEC v. Cavanagh, 445 F.3d 105, 117 (2d Cir. 2006)).
In a final piquant point, the Chamber points out that the SEC has taken the position that disgorgement orders are non-dischargeable in bankruptcy because they fit within the “fine, penalty, or forfeiture” language of the discharge exception. Id. at 11-12 (citing In re Telsey, 144 B.R. 563 (Bankr. S.D. Fla. 1992); see also IRS, Office of Chief Counsel, Memorandum, No. 201619008, at p. 9 (May 6, 2016)).
Implications for Missouri and Other States Which Do Not Have an Express Statute of Limitations for Administrative or Civil Securities Enforcement Actions
Current Statute of Limitations for Missouri State Securities Enforcement Actions
The Missouri Securities Act of 2003 (“MSA”) was based on the Uniform Securities Act of 2002. It contains provisions for administrative, civil, and criminal enforcement, as well as a private cause of action. Section 409.5-509, RSMo. is the private cause of action under the MSA and has very clear statutes of limitation: one year for the violation of the provision prohibiting the offer and/or sale of an unregistered security (§409.3-301, RSMo.); two years after discovery of the facts for any other violations of the Act, with a five year statute of repose. See § 409.5-509(j), RSMo. However, administrative, civil, and criminal actions do not carry specific statutes of limitation under the Act.
Clearly, a statute of limitation would apply to criminal actions under Section 409.5-508, RSMo., likely Mo. Rev. Stat. § 556.036.2 (three years for any felony). However, without a specific provision, the statutes of limitations for civil and administrative enforcement actions are not clear. Section 409.5-509(j), RSMo., does not apply, leaving a series of possible candidates in the general civil statutes of limitations. And it is in this context that Kokesh may be relevant to interpreting civil and/or administrative enforcement actions under the Act.
Sections 409.6-603 and 409.6-604, RSMo., address the SEC enforcement action corollary for the state of Missouri, allowing the Commissioner, through the Attorney General, or the Commissioner him/herself administratively, to pursue penalties and/or an order of rescission, restitution, or disgorgement for violations of the Act. However, the Act is “remedial” in nature and court decisions interpreting the securities laws have construed these acts to achieve broad investor protection. See Uniform Securities Act (Last Revised or Amended in 2005), § 608(b), and Official Comment 5 (citing SEC v. W.J. Howey Co., 328 U.S. 293, 299, 301 (1946).
Hence, it is likely that the several Missouri statutes of limitation that apply to “penal statutes” would not apply to actions under Sections 409.6-603 and 409.6-604, RSMo. See Mo. Rev. Stat. §§ 516.380 (1 year from violation), 516.390 (2 years from violation), and 516.400 (3 years from commission of offense). Indeed, precedent suggests that those statutes of limitation are for actions where the primary focus is penalties, such as for clean water act violations, rather than for enforcement actions where a broad penumbra of remedies are available. See State ex rel. Nixon v. Summit Inv. Co., LLC, 186 S.W.3d 428 (Mo. App. S.D. 2006).
A better analog for assessing the proper statute of limitations would be the Missouri Merchandising Practices Act (“MMPA”), section 407 et seq., as it likewise is a remedial statute with multiple remedies in enforcement actions brought by the Missouri Attorney General, as well for private rights of action. For the MMPA, courts have applied one of two statutes of limitation:
(1) Mo. Rev. Stat. §516.120.2 (5 years) for “[a]n action upon a liability created by a statute other than a penalty or forfeiture;” or
(2) Mo. Rev. Stat. §516.130.5 (3 years) for “[a]n action upon a statute for a penalty or forfeiture, where the action is given to the aggrieved, or to such party and the state…”
There is a general consensus in courts that section 516.120.2, RSMo., applies for all actions under the MMPA. Huffman v. Credit Union of Texas, 758 F.3d 963, 967 (8th Cir. 2014)(citing Ullrich v. CADCO, Inc., 244 S.W.3d 772, 778 n. 3 (Mo. App. 2008); Owen v. Gen. Motors Corp., 533 F.3d 913, 921 n.6 (8th Cir. 2008)). However, there has been discussion that section 516.130.5, RSMo., may apply. Huffman, 758 F.3d at 966; Schuchmann v. Air Services Heating & Air Conditioning, Inc., 199 S.W.3d 228 (Mo. App. S.D. 2006). The Missouri Securities Act carries similar remedies to the MMPA, and likewise would be an “action upon liability created by a statute other than a penalty or forfeiture.” Thus it is reasonable to assume that whatever the statute of limitation is for a civil enforcement action by the Attorney General under the MMPA would also apply to civil and administrative enforcement actions under the Securities Act.
Missouri Securities Enforcement Actions After Kokesh – Some Statute of Limitations Will Apply
Kokesh might have application for Missouri state securities enforcement actions by virtue of the debate between whether the MMPA (and by implication the MSA) has a 3 or 5 year statute of limitations under sections 516.120 or 516.130, RSMo. If disgorgement is considered a “penalty” for federal securities enforcement actions, then the MSA itself, or actions for disgorgement under it, may very well also be considered actions on a “penal statute,” and therefore fall under the provisions of section 516.130(2), RSMo. The third, less likely scenario, is that “penalty” actions under the MSA, including for disgorgement if Kokesh find the remedy penal, would be limited to three years by section 516.130(2), RSMo., while restitution and other remedies could be brought up to five years after the violation under section 516.120(5), RSMo. Obviously, the way in which the SEC makes use of “disgorgement” as a remedy makes that remedy look quite penal, particularly under the facts of Kokesh. Thus the usage of disgorgement by the Attorney General or Commissioner in a Missouri enforcement action may be distinguishable from Kokesh on its facts.
What is clear irrespective of whether disgorgement is characterized as “penal” or “remedial,” is that Gabelli is persuasive authority that some statute of limitations applies to state enforcement actions for violations of the Missouri Securities Act, even if there is no such specific statutes of limitation and the existing general statutes of limitation are poor fits. A holding by the Kokesh Court that disgorgement is “penal” in nature would be persuasive authority that, notwithstanding precedent labeling the MSA “remedial,” the MSA is a “penal” statute by virtue of providing equitable “penalties” such as disgorgement, and therefore subject to a 3 year SOL under section 516.130 (or the more restrictive limits under other statutes). At the very least, it would be persuasive authority that where the Commissioner or Attorney General seeks disgorgement, he/she can reach back only 3 years, instead of the five contemplated under section 516.120, RSMo., which would be a hybrid approach essentially applying two different statutes of limitations to causes of actions under one statute.
Conversely, if the Supreme Court finds that the SEC’s disgorgement remedy is not time barred by 28 U.S.C. §2462, then it is persuasive authority for the proposition that the equitable remedies under the Missouri Securities Act likewise are not time barred. That seems an unlikely outcome. Gabelli strongly infers that the Supreme Court would not countenance there being absolutely no statute of limitations for actions under sections 409.6-603 and 409.6-604, RSMo. On the other hand, the variety of remedies under the MSA speak to labeling it as a “remedial statute,” even though the MSA also contains certain penal provisions. Hence the five year statute of limitations under section 516.120, RSMo., would be most appropriate, even if Kokesh finds that disgorgement is subject to the statute of limitations for penalties under 28 U.S.C. §2462.
 Because of the hybrid nature of the remedies, it seems unlikely that MSA enforcement actions would ever be “penal statutes” for the purposes of the statutes of limitation in sections 516.380, 516.390 and/or 516.400, RSMo. But that also would remain an open question.