SCOTUScast 8-18-17 featuring Janet Galeria
On June 5, 2017, the Supreme Court decided Kokesh v. Securities and Exchange Commission. In 2009, the Securities and Exchange Commission (SEC) alleged that Charles Kokesh had violated various securities laws by concealing the misappropriation of roughly $35 million in various development ventures dating back as far as 1995. Since the 1970s, the SEC has ordered disgorgement in addition to monetary civil penalties in its enforcement proceedings. In effect, the violator must not only pay monetary civil penalties, but also “disgorge” the profit he or she gained by the unlawful action. Under 28 U. S. C. §2462, however, a five-year limitations period applies to “an action, suit or proceeding for the enforcement of any civil fine, penalty or forfeiture” when the SEC seeks monetary civil penalties. In Kokesh’s case, the District Court concluded that the five-year limitations period did not apply to disgorgement. The U.S. Court of Appeals for the Tenth Circuit affirmed, holding that disgorgement was neither a penalty nor a forfeiture within the meaning of section 2462. As a result Kokesh could be required to disgorge the full $35 million, with interest.
By a vote of 9-0, the Supreme Court reversed the judgment of the Tenth Circuit. In an opinion delivered by Justice Sotomayor, a unanimous Court held that disgorgement, as it is applied in SEC enforcement proceedings, operates as a penalty under section 2462. Thus, any claim for disgorgement in an SEC enforcement action must be commenced within five years of the date the claim accrued.
And now, to discuss the case, we have Janet Galeria, who is Senior Counsel for Litigation for the US Chamber Litigation Center at the US Chamber of Commerce.
Intellectual Property Law Practice Group Podcast
The smartphone patent wars have caused a great deal of litigation and consternation. As global patent litigation has accelerated, an international arms race characterized by competing alliances and massive portfolio acquisitions ensued. One recurring claim was "hold-up": certain patent owners, having given assurances that they would license their essential technologies on reasonable and nondiscriminatory (RAND) terms, sought to enjoin smartphone makers from practicing industry standards. Charged with protecting consumers, antitrust enforcers experienced pressure to do something.
The FTC and other competition agencies responded aggressively, clamping down on perceived efforts by owners of RAND-encumbered SEPs to hold-up standard implementers. They happened upon the rule that such patentees violate antitrust law if they try to enjoin a “willing licensee”—essentially a “no-injunction rule.” While that approach has intuitive appeal, is it consistent with core antitrust principles? Does the no-injunction properly consider whether the relevant conduct harms competition? Have the U.S. Federal Trade Commission's actions emboldened foreign competition agencies to act aggressively? These and other questions were addressed.
- Hon. Maureen K. Ohlhausen, Acting Chairman, Federal Trade Commission
- Mr. Alex Okuliar, Partner, Orrick, Herrington & Sutcliffe LLP
Boston Lawyers Chapter
The Federalist Society and Commonwealth Shakespeare Company present Shakespeare’s Measure by Measure and the Art of Judging.
Steven Maler, Artistic Director of Commonwealth Shakespeare Company
Daniel J. Kelly, Partner at McCarter & English
- Florida Supreme Court Justice, Charles Canady
- Judge Jeffrey Sutton, Sixth Circuit Court of Appeals
- Chief Federal Judge, Patti Saris, U.S. District Court
- Federal Judge, Nathaniel Gorton
- Federal Judge, Timothy Hillman
- Federal Judge, Dennis Saylor IV
- Federal Judge, Douglas Woodlock
- Federal Judge, Rya Zobel
- Supreme Judicial Court Judge, Kimberly Budd
- Former Supreme Judicial Court Judge, Robert Cordy
- Former Supreme Judicial Court Judge, Judith Cowin
- Judge William Mead, Massachusetts Appeals Court
- Judge Eric Neyman, Massachusetts Appeals Court
Administrative Law & Regulation Practice Group Podcast
This call highlighted recent trends in how the courts have considered benefit-cost analysis when reviewing regulations under various statutes. Our experts examined the pros and cons of greater judicial review of regulatory analysis and the effect of judicial review on agency behavior. Professor Emily Hammond, Professor of Law at The George Washington University Law School, and Eugene Scalia, Partner at Gibson, Dunn & Crutcher LLP, joined us to discuss these important topics.
- Emily Hammond, Professor of Law, The George Washington University Law School
- Eugene Scalia, Partner, Gibson, Dunn & Crutcher LLP