SEC's penalty without time limit questioned

WASHINGTON - The Supreme Court indicated Tuesday that the federal government does not have the wide power it claims in pursuing the ill-gotten profits of fraudulent behavior.

Justices across the board were at least skeptical of the Securities and Exchange Commission's claim that it is not bound by a five-year statute of limitations when it seeks "disgorgement," or the return of profits made from illegal behavior.

It is a popular tool for SEC lawyers, who took in more than $3 billion in disgorgement payments in 2015. Some was returned to victims, and some went in the federal treasury.

Adam Unikowsky, a Washington lawyer representing Charles Kokesh, who has been convicted of federal securities fraud, said the government was claiming an open-ended ability to impose punishments. This latitude, Unikowsky said, even exceeds that for punishing terrible violent crimes.

It seeks enforcement actions "based on conduct dating back forever, with no statute of limitations at all," he said.

He seemed to find a receptive audience, notably Chief Justice John Roberts.

Roberts quoted a predecessor, Chief Justice John Marshall, as saying it was "utterly repugnant to the genius of our laws to have a penalty remedy without limit." Marshall was talking about a statute of limitations, Roberts said.

"The concern, it seems to me, is multiplied when it's not only no limitation but it's something that the government kind of devised on its own," he said.

Justice Department lawyer Elaine Goldenberg, representing the SEC, disputed Roberts' premise.

Disgorgement is not a penalty, she said. "It remedies unjust enrichment and just takes the person back to where they would have been" had they not acted illegally.

Kokesh is a Santa Fe, N.M., businessman who was convicted of misappropriating money from four investment companies he controlled from 1995 through 2006 and using the proceeds for a lavish lifestyle. A judge in 2015 ordered him to pay a $2.4 million civil penalty.

But because the SEC has interpreted disgorgement to have no time restraint, the judge said Kokesh must also pay $35 million, the calculated amount of illegal profits dating back to the initiation of his illegal behavior.

Federal law establishes a five-year statute of limitations on "enforcement of any civil fine, penalty or forfeiture." But that does not apply to disgorgements, the SEC says.

Federal courts are split on that question. If the five-year limit applies, Kokesh's disgorgement would be reduced to about $5 million.

The newest justice, Neil Gorsuch, noted that there was no law governing disgorgements, only the SEC's regulations. "We're just making it up," he said.

Goldenberg noted that it is not up to the SEC what wrongdoers pay. Judges decide the amount and where the money goes, she said.

But Roberts said that was not enough.

"It does seem to me that we kind of have a special obligation to be concerned about how far back the government can go when it's something that Congress did not address because it did not specify the remedy," he said.