Robert J. Anello and Richard F. Albert ()
The SEC has sought ways to avoid the broad application of the so-called “fallback” five-year statute of limitations since federal courts began applying it to SEC enforcement actions in 1996.1 In 2013, the Supreme Court rejected the agency’s attempts to extend the five-year period by utilizing the fraud discovery rule to toll the statute until the SEC “discovered” the misconduct. The SEC also consistently has asserted that no statute of limitations applies to actions seeking equitable relief, which the agency insists includes claims for disgorgement. Last month, the court granted certiorari in Kokesh v. SEC, 834 F.3d 1158 (10th Cir. 2016), to settle the issue of whether the five-year statute of limitations applies to the SEC’s ability to recoup disgorgement.
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