As highlighted in this previous post, in 2017 the Supreme Court unanimously bench slapped the SEC in Kokesh v. SEC and held that disgorgement “in the securities-enforcement context is a ‘penalty’ within the meaning of [28 U.S.C.] 2462 and so disgorgement actions must be commenced within five years of the date the claim accrues.”
It was noted that while Kokesh was not an FCPA case, the decision was FCPA relevant given that disgorgement has become the dominant remedy sought by the SEC in corporate FCPA enforcement actions.
In covering the Kokesh decision, this prior post highlighted how a footnote in the Supreme Court’s decision seemed to be inviting another disgorgement case. Specifically, footnote 3 of the decision stated: