Abstract
This article, by Professor William D. Warren of UCLA School of Law, analyzes Kokesh v. SEC where the Supreme Court held that disgorgement – a tool used by the SEC to recover ill-gotten gains through the courts – was a penalty rather than a remedy for the purposes of determining the appropriate statute of limitations. Warren contends that Kokesh raises questions about the validity of disgorgement as a sanction, especially considering issues of SEC authority, judicial power, and interstitial lawmaking.
Keywords: disgorgement, Rule 10b-5, Kokesh, statute of limitations, Texas Gulf Sulphur, penalty, equitable remedy, legal remedy, deterrence
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