HomeWebcastThe Kokesh v. SEC Ruling: Significant Implications for Financial Regulatory Investigations
Online CLE Financial Regulatory CLE

The Kokesh v. SEC Ruling: Significant Implications for Financial Regulatory Investigations

Live Webcast Date: Monday, November 13, 2017 from 2:30 pm to 4:00 pm (ET)
Finance (CPE)Recording

Online CLE Financial Regulatory

Join us for this Knowledge Group Online CLE Financial Regulatory Webinar. On June 5, 2017, the U.S. Supreme Court unanimously ruled in Kokesh v. SEC that disgorgement of ill-gotten gains by a defendant in a Securities and Exchange Commission (SEC) action is a penalty subject to the five-year statute of limitations provision in 28 U.S.C. § 2462. The impact of this decision may well be far-reaching, and will significantly affect investigations and enforcement efforts and practices by the SEC and other federal financial regulators. At the same time, Kokesh has provided some powerful arguments to defendants against disgorgement and other remedies in SEC and other government proceedings.

In a webcast, a panel of thought leaders and practitioners assembled by The Knowledge Group will discuss the Supreme Court decision in Kokesh v. SEC and its significant impact on SEC enforcement actions and other financial regulatory investigations.

Key issues that will be covered in this course are:

  • Overview of 28 U.S.C § 2462
  • Supreme Court Decision in Kokesh v. SEC
  • Significant Implications for Federal Financial Regulators
  • Implications for Disgorgement in Ongoing Investigations
  • Impact on Other Sanctions
  • Other Expected Challenges

Agenda

SEGMENT 1:
Ronald J. ColomboProfessor of Law and Associate Dean for Distance Education
Maurice A. Deane School of Law at Hofstra University

  • Explanation of the case
  • Calls into question the SEC’s authority to request disgorgement;
  • “punitive” versus “compensatory” is a false dichotomy: court-ordered relief may be both;
  • Disgorgement is a penalty, and as such is subject to the statute of limitations set forth in 28 U.S.C. s. 2462;

SEGMENT 2:
Paul RoseAssociate Dean for Academic Affairs
Moritz College of Law - Ohio State University

  • SEC likely has tolling agreements in place with many defendants; without one, Kokesh limits them to 5 years, which, of course, limits how much the SEC could require in disgorgement.  Defendants will resist tolling agreements, which creates significant difficulties for the SEC as many investigations take quite a long time to complete.
  • The decision may affect other agencies’ enforcement actions (such as the CFTC’s).  It may also affect other remedies that the SEC has deemed to be “remedial” but could also be characterized as “punitive”.
  • Sotomayor seems to invite litigation on the issue of whether the SEC can even require disgorgement in federal court actions (they are specifically allowed to, however, in administrative proceedings).

SEGMENT 3:
Arthur S. GreenspanPartner
Richards Kibbe & Orbe LLP

  • Current practice issues – Kokesh creates pressure on government enforcement attorneys to bring cases more quickly and should lead to an increase in requests for tolling agreements.
  • In combination with Gabelli SCOTUS decision, the Court sees statutory limitations periods as important safeguards against government overreach.
  • The Kokesh Court’s broad definition of penalty may have several practical consequences, including:
    • Even purely “compensatory” or “remedial” disgorgement may be considered a penalty.
    • Decision should confirm that industry bars and suspensions usually operate as penalties.
    • Litigants will use Kokesh to argue that even injunctions operate as penalties.

Who Should Attend

  • Finance Lawyers & Advisors
  • Corporate Counsel
  • Corporate Financial Officers
  • Chief Financial Officers
  • Finance Professionals
  • Private and Public Companies
  • Other Related Professionals

Online CLE Financial Regulatory

SEGMENT 1:
Ronald J. ColomboProfessor of Law and Associate Dean for Distance Education
Maurice A. Deane School of Law at Hofstra University

  • Explanation of the case
  • Calls into question the SEC’s authority to request disgorgement;
  • “punitive” versus “compensatory” is a false dichotomy: court-ordered relief may be both;
  • Disgorgement is a penalty, and as such is subject to the statute of limitations set forth in 28 U.S.C. s. 2462;

SEGMENT 2:
Paul RoseAssociate Dean for Academic Affairs
Moritz College of Law - Ohio State University

  • SEC likely has tolling agreements in place with many defendants; without one, Kokesh limits them to 5 years, which, of course, limits how much the SEC could require in disgorgement.  Defendants will resist tolling agreements, which creates significant difficulties for the SEC as many investigations take quite a long time to complete.
  • The decision may affect other agencies’ enforcement actions (such as the CFTC’s).  It may also affect other remedies that the SEC has deemed to be “remedial” but could also be characterized as “punitive”.
  • Sotomayor seems to invite litigation on the issue of whether the SEC can even require disgorgement in federal court actions (they are specifically allowed to, however, in administrative proceedings).

SEGMENT 3:
Arthur S. GreenspanPartner
Richards Kibbe & Orbe LLP

  • Current practice issues – Kokesh creates pressure on government enforcement attorneys to bring cases more quickly and should lead to an increase in requests for tolling agreements.
  • In combination with Gabelli SCOTUS decision, the Court sees statutory limitations periods as important safeguards against government overreach.
  • The Kokesh Court’s broad definition of penalty may have several practical consequences, including:
    • Even purely “compensatory” or “remedial” disgorgement may be considered a penalty.
    • Decision should confirm that industry bars and suspensions usually operate as penalties.
    • Litigants will use Kokesh to argue that even injunctions operate as penalties.

Online CLE Financial Regulatory

Online CLE Financial Regulatory

Arthur S. GreenspanPartnerRichards Kibbe & Orbe LLP

Arthur S. Greenspan is a litigation partner at Richards Kibbe & Orbe LLP in New York City.  He helps financial services and other corporate clients effectively navigate and defend governmental and regulatory investigations and complex securities and other financial litigation. He also represents senior executives and professionals in both investigations and litigations.

Mr. Greenspan has been recognized in New York Super Lawyers in the areas of securities litigation and white collar defense (2007-2017).  He is an officer of the Federal Bar Council (FBC), and served as President of the FBC American Inn of Court (2009-2010).  He received a B.S.E. degree, summa cum laude, from Princeton University in 1986, and graduated magna cum laude from Harvard Law School in 1989.  He served as a law clerk for Judge John M. Walker, Jr., of the United States Court of Appeals for the Second Circuit in 1989-1990. 

Online CLE Financial Regulatory

Paul RoseAssociate Dean for Academic AffairsMoritz College of Law - Ohio State University

Professor Paul Rose is the Associate Dean for Academic Affairs and professor in business law and securities law at The Ohio State University. He has written extensively on sovereign wealth funds, corporate governance, and securities regulation, and has consulted the U.S. Senate Committee, the U.S. Securities & Exchange Commission, the Government Accountability Office, and the Congressional Research Service. Prior to joining the faculty at The Ohio State University Moritz College of Law, Professor Rose was a visiting assistant professor in securities and finance at Northwestern University School of Law, practiced law in Covington & Burling LLP’s San Francisco office and worked as an assistant trader in equity and emerging market derivatives at Citibank. He graduated with honors from Brigham Young University with a B.A. in Philosophy, and has a J.D. from the U.C.L.A. School of Law.

Online CLE Financial Regulatory

Ronald J. ColomboProfessor of Law and Associate Dean for Distance EducationMaurice A. Deane School of Law at Hofstra University

Professor Colombo teaches Business Organizations, Securities Regulation, Contracts, and a seminar in corporate and securities law at Hofstra University’s Maurice A. Deane School of Law.  His scholarship has focused largely on issues of securities fraud, corporate law, and financial regulation, and has done so via the application of natural law theory, economic theory, moral philosophy, and neuroscience. More recently, his scholarship has addressed the constitutional rights of business entities.  In 2015 he authored a book on the subject, entitled “The First Amendment and the Business Corporation,” published by Oxford University Press.

Professor Colombo has earned the Stessin Prize for Outstanding Scholarly Publication, and has addressed academic and professional associations around the country, including the Gruter Institute for Law and Behavioral Research, the Federal Bar Council, and a number of law schools and business schools.  He has been quoted in the New York Times, Wall Street Journal, Dallas Morning News, Newsday, Bloomberg, and The Daily Beast, and his op-eds / letters have been published in The Washington Times, The Christian Science Monitor, The Financial Times, and The Huffington Post.  He has also appeared on “Brad and Britt in the Morning” (FM Talk 101.1 WZTK Radio), “The John Williams Show” (830 AM WCCO [CBS] Radio), and Hofstra’s Ed Ingles’ Show “Newsline” (88.7 FM WRHU).  Professor Colombo serves on the editorial review board of the Review of Business, and as an arbitrator for the Financial Industry Regulatory Authority (FINRA).  From 2013-2015, Professor Colombo served as the Associate Dean for Academic Affairs of Hofstra Law School.

Before joining the Hofstra faculty in 2006, Professor Colombo served in the Complex Global Litigation Group of Morgan Stanley & Co., Inc., as vice president and counsel. In this position, Professor Colombo supervised investigations, litigations, and regulatory inquiries affecting Morgan Stanley's investment banking franchise. Prior to that, Professor Colombo practiced as a litigation associate at the New York office of Sullivan & Cromwell, where, among other things, he represented corporate and banking clients in civil and criminal investigations conducted by the S.E.C., the U.S. Attorney's Office, and the Federal Reserve Bank; in matters before state courts, federal courts, and arbitration panels; and in appeals before the Third Circuit, the D.C. Circuit, and the U.S. Supreme Court. From 2000-2003, Professor Colombo also served on the Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York.


Click Here to Read Additional Material

Online CLE Financial Regulatory

Course Level:
   Intermediate

Advance Preparation:
   Print and review course materials

Method Of Presentation:
   On-demand Webcast

Prerequisite:
   Experience in securities law

Course Code:
   146821

NASBA Field of Study:
   Finance - Technical

NY Category of CLE Credit:
   Areas of Professional Practice

Total Credits:
    1.5 CLE

No Access

You are not logged in. Please or register to the event to gain access to the materials and login instructions.

About the Knowledge Group

The Knowledge Group

The Knowledge Group has been a leading global provider of Continuing Education (CLE, CPE) for over 13 Years. We produce over 450 LIVE webcasts annually and have a catalog of over 4,000 on-demand courses.

About the Knowledge Group

The Knowledge Group

The Knowledge Group has been a leading global provider of Continuing Education (CLE, CPE) for over 13 Years. We produce over 450 LIVE webcasts annually and have a catalog of over 4,000 on-demand courses.

Richards Kibbe & Orbe LLP is a dynamic and entrepreneurial firm with deep experience and relationships in the financial markets and the business community.  The firm conducts a highly collaborative practice through approximately 65 lawyers based in New York, Washington, D.C. and London.  RK&O’s key attribute is the ability to find thoughtful, creative solutions to the hardest legal problems, in a manner carefully tailored to its clients’ objectives.  Whether in a transaction, litigation or regulatory matter, RK&O lawyers seek to provide precisely the technically excellent, informed and efficient service that they would want to receive as a client.

Website: https://www.rkollp.com/

Arthur S. Greenspan is a litigation partner at Richards Kibbe & Orbe LLP in New York City.  He helps financial services and other corporate clients effectively navigate and defend governmental and regulatory investigations and complex securities and other financial litigation. He also represents senior executives and professionals in both investigations and litigations.

Mr. Greenspan has been recognized in New York Super Lawyers in the areas of securities litigation and white collar defense (2007-2017).  He is an officer of the Federal Bar Council (FBC), and served as President of the FBC American Inn of Court (2009-2010).  He received a B.S.E. degree, summa cum laude, from Princeton University in 1986, and graduated magna cum laude from Harvard Law School in 1989.  He served as a law clerk for Judge John M. Walker, Jr., of the United States Court of Appeals for the Second Circuit in 1989-1990. 

Professor Paul Rose is the Associate Dean for Academic Affairs and professor in business law and securities law at The Ohio State University. He has written extensively on sovereign wealth funds, corporate governance, and securities regulation, and has consulted the U.S. Senate Committee, the U.S. Securities & Exchange Commission, the Government Accountability Office, and the Congressional Research Service. Prior to joining the faculty at The Ohio State University Moritz College of Law, Professor Rose was a visiting assistant professor in securities and finance at Northwestern University School of Law, practiced law in Covington & Burling LLP’s San Francisco office and worked as an assistant trader in equity and emerging market derivatives at Citibank. He graduated with honors from Brigham Young University with a B.A. in Philosophy, and has a J.D. from the U.C.L.A. School of Law.

Professor Colombo teaches Business Organizations, Securities Regulation, Contracts, and a seminar in corporate and securities law at Hofstra University’s Maurice A. Deane School of Law.  His scholarship has focused largely on issues of securities fraud, corporate law, and financial regulation, and has done so via the application of natural law theory, economic theory, moral philosophy, and neuroscience. More recently, his scholarship has addressed the constitutional rights of business entities.  In 2015 he authored a book on the subject, entitled “The First Amendment and the Business Corporation,” published by Oxford University Press.

Professor Colombo has earned the Stessin Prize for Outstanding Scholarly Publication, and has addressed academic and professional associations around the country, including the Gruter Institute for Law and Behavioral Research, the Federal Bar Council, and a number of law schools and business schools.  He has been quoted in the New York Times, Wall Street Journal, Dallas Morning News, Newsday, Bloomberg, and The Daily Beast, and his op-eds / letters have been published in The Washington Times, The Christian Science Monitor, The Financial Times, and The Huffington Post.  He has also appeared on “Brad and Britt in the Morning” (FM Talk 101.1 WZTK Radio), “The John Williams Show” (830 AM WCCO [CBS] Radio), and Hofstra’s Ed Ingles’ Show “Newsline” (88.7 FM WRHU).  Professor Colombo serves on the editorial review board of the Review of Business, and as an arbitrator for the Financial Industry Regulatory Authority (FINRA).  From 2013-2015, Professor Colombo served as the Associate Dean for Academic Affairs of Hofstra Law School.

Before joining the Hofstra faculty in 2006, Professor Colombo served in the Complex Global Litigation Group of Morgan Stanley & Co., Inc., as vice president and counsel. In this position, Professor Colombo supervised investigations, litigations, and regulatory inquiries affecting Morgan Stanley's investment banking franchise. Prior to that, Professor Colombo practiced as a litigation associate at the New York office of Sullivan & Cromwell, where, among other things, he represented corporate and banking clients in civil and criminal investigations conducted by the S.E.C., the U.S. Attorney's Office, and the Federal Reserve Bank; in matters before state courts, federal courts, and arbitration panels; and in appeals before the Third Circuit, the D.C. Circuit, and the U.S. Supreme Court. From 2000-2003, Professor Colombo also served on the Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York.

Ultimate Value Annual Program

Bring a colleague for only $149, a savings of $50 per additional attendee.

  • Unlimited Access to Live & Recorded Webcasts
  • Instant Access to Course Materials
  • And More!

$199