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Disgorgement Circuit Split Deepens As 10th Circuit Holds That Disgorgement Is Not Subject To A Five-Year Limitations Period

The SEC first sought disgorgement in a Foreign Corrupt Practices Act enforcement action in 2004. Since then, approximately 100 SEC corporate FCPA enforcement actions have included disgorgement including, most controversially, enforcement actions that do not charge or find violations of the FCPA’s anti-bribery provisions.

Disgorgement is in the news again.

First, it was the IRS concluding that disgorgement paid in an FCPA enforcement action is not deductible. (See here [1]).

Then, it was the Eleventh Circuit concluding in SEC v. Graham that disgorgement is akin to forfeiture and thus subject to a five-year limitations period. (See here [2]).

Last week in SEC v. Kokesh [3], the Tenth Circuit disagreed with the Eleventh Circuit and held, similar to other circuits, that disgorgement is neither a penalty or forfeiture and thus not subject to a five-year limitations period.

Kokesh was not an FCPA enforcement action, but rather an action brought by the SEC against Charles Kokesh for misappropriating funds from four SEC-registered business development companies in violation of federal securities laws. As stated by the 10th Circuit:

“After a jury returned a verdict in favor of the SEC, the United States District Court for the District of New Mexico entered a final judgment permanently enjoining Defendant from violating certain provisions of federal securities laws, ordering disgorgement of $34.9 million plus prejudgment interest of $18.1 million, and imposing a civil penalty of $2.4 million. Defendant appeals, asserting that the court’s imposition of the disgorgement and permanent injunction was barred by 28 U.S.C. § 2462, which sets a five-year limitations period for suits “for the enforcement of any civil fine, penalty, or forfeiture.”

The relevant statute in Kokesh, as in Graham, was 28 USC 2462 which states:

“Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon.”

The 10th Circuit stated in pertinent part as follows.

“Disgorgement “consists of factfinding by a district court to determine the amount of money acquired through wrongdoing—a process sometimes called ‘accounting’—and an order compelling the wrongdoer to pay that amount plus interest to the court.” United States v. Badger, 818 F.3d 563, 566 (10th Cir. 2016) (internal quotation marks omitted). The amount of the disgorgement is essentially the same whether the relief is sought in a private cause of action or, as in this case, by the government. See 15 U.S.C. § 78u(d)(5) (authorizing court to grant equitable relief sought by SEC); F.T.C. v. Bronson Partners, LLC, 654 F.3d 359, 369–70 (2d Cir. 2011) (affirming district court’s award because it “satisfies the requirements of equitable disgorgement”).

Defendant, who owned and controlled the Advisers, misappropriated $34.9 million from the Funds between 1995 and 2006 to pay salaries and bonuses to officers of the Advisers (including himself), to pay the Advisers’ office rent, and to pay phony “tax distributions.” The district court ordered him to disgorge this money that went to him and his subordinate cohorts, finding that the sum “reasonably approximates the ill-gotten gains causally connected to [his] violations.” Aplt. App., Vol. 2 at 1880. Defendant claims that the disgorgement order is a penalty or forfeiture. We disagree. We first address the claim that it is a penalty.

We have previously said that disgorgement is not a penalty under § 2462 because it is remedial. See Telluride, 146 F.3d at 1247 (“[O]ther equitable remedies, such as 10 disgorgement, which sanction past conduct, are remedial [rather than punitive].” (emphasis added)). Other circuits have similarly held that it is not. See Riordan, 627 F.3d at 1234 (“[D]isgorgement orders are not penalties, at least so long as the disgorged amount is causally related to the wrongdoing.”); S.E.C. v. Tambone, 550 F.3d 106, 148 (1st Cir. 2008) (“[T]he applicable five-year statute of limitations period [the defendant] invokes applies only to penalties sought by the SEC, not its request for injunctive relief or the disgorgement of ill-gotten gains.”), withdrawn, 573 F.3d 54 (1st Cir. 2009), reinstated in relevant part, 597 F.3d 436, 450 (1st Cir. 2010).

The reasons for this view are clear. Properly applied, the disgorgement remedy does not inflict punishment. “The object of restitution [in the disgorgement context] . . . is to eliminate profit from wrongdoing while avoiding, so far as possible, the imposition of a penalty.” Restatement (Third) of Restitution and Unjust Enrichment § 51(4) (Am. Law Inst. 2010). Disgorgement just leaves the wrongdoer “in the position he would have occupied had there been no misconduct.” Id. § 51 cmt. k; see id. (“Disgorgement of wrongful gain is not a punitive remedy.”). To be sure, disgorgement serves a deterrent purpose, but it does so only by depriving the wrongdoer of the benefits of wrongdoing. See S.E.C. v. Contorinis, 743 F.3d 296, 301 (2d Cir. 2014) (“[D]isgorgement does not serve a punitive function . . . . [Its] underlying purpose is to make lawbreaking unprofitable for the law-breaker . . . .”); S.E.C. v. First City Fin. Corp., 890 F.2d 1215, 1231 (D.C. Cir. 1989) (“[D]isgorgement primarily serves to prevent unjust enrichment . . . .”). Indeed, if punishment is required, disgorgement can be supplemented with exemplary damages. See Restatement (Third) § 51 cmt. k.

[…]

Defendant next contends that disgorgement is a “forfeiture.” To be sure, in common English the words forfeit and disgorge (as well as relinquish) capture similar concepts; one subject to formal forfeiture could be said to “disgorge” what is forfeited. The definitions in the leading legal dictionary, although different, also have similarities. See Black’s Law Dictionary 568, 765 (10th ed. 2014) (defining disgorgement as “[t]he act of giving up something (such as profits illegally obtained) on demand or by legal compulsion,” and forfeiture as “[t]he loss of a right, privilege, or property because of a crime, breach of obligation, or neglect of duty”). Because of these similarities the Eleventh Circuit recently held that disgorgement is a forfeiture under § 2462. See S.E.C. v. Graham, 823 F.3d 1357, 1363–64 (11th Cir. 2016).

Other circuits have a different view. See Riordan, 627 F.3d at 1234; Tambone, 550 F.3d at 148 (§ 2462 does not apply to disgorgement); see also S.E.C. v. Saltsman, No. 07-CV-4370 (NGG) (RML), 2016 WL 4136829, at *25–29 (E.D.N.Y. Aug. 2, 2016) (rejecting Graham and citing three other district courts sharing that view). Respectfully, we also see things a bit differently. The word forfeiture in § 2462 must be read in the context of government causes of action—“an action, suit or proceeding,” 28 U.S.C. § 2462. Government forfeiture actions date back to the early days of the Republic, and for most of the time since then have had a narrow focus. Forfeiture was an in rem procedure to take “tangible property used in criminal activity.” United States v. 92 Buena Vista Ave., 507 U.S. 111, 118 (1993). Indeed, Black’s Law Dictionary defines civil forfeiture— which, in our view, is the relevant definition here—as “[a]n in rem proceeding brought by the government against property that either facilitated a crime or was acquired as a result of criminal activity.” As the Supreme Court has summarized: “The First Congress enacted legislation authorizing the seizure and forfeiture of ships and cargos involved in customs offenses. Other statutes authorized the seizure of ships engaged in piracy . . . . Later statutes involved the seizure and forfeiture of distilleries and other property used to defraud the United States of tax revenues from the sale of alcoholic beverages.” Id. at 119–20. The owner of the seized property could be completely innocent of any wrongdoing, and the value of the property taken have no necessary relation to any loss to others or gain to the owner. A modern-day example makes the point. In Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974), the Supreme Court affirmed a forfeiture proceeding in which a yacht was seized from an innocent owner after government officers apparently found only one marijuana cigarette on the yacht while it was under the control of the lessee, see id. at 693 (Douglas, J., dissenting).

When the term forfeiture is linked in § 2462 to the undoubtedly punitive actions for a civil fine or penalty, it seems apparent that Congress was contemplating the meaning of forfeiture in this historical sense. The nonpunitive remedy of disgorgement does not fit in that company. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts ch. 31, 195–98 (2012) (“Associated words bear on one another’s meaning (noscitur a sociis).”). In fact, construing a predecessor to § 2462, which imposed a five-year limitations period for a “suit or prosecution for any penalty or forfeiture,” the Supreme Court said that “[t]he words ‘penalty or forfeiture’ in this section refer to something imposed in a punitive way for an infraction of a public law.” Meeker v. Lehigh Valley R.R. Co., 236 U.S. 412, 423 (1915).

We recognize that in recent years some federal forfeiture statutes have been expanded to include disgorgement-type remedies, see 18 U.S.C. § 1963(a)(3) (authorizing forfeiture of proceeds from racketeering activity); 21 U.S.C. § 881(a)(6) (authorizing forfeiture of the proceeds of illegal drug transactions). But this is a recent development, occurring decades after § 2462 was enacted in 1948. The Supreme Court recently discussed the development in United States v. 92 Buena Vista Ave., 507 U.S. 111 (1993) (addressing scope of innocent-owner exception to federal forfeiture statute). The introduction of “disgorgement” features in the forfeiture laws began with the 1978 amendment to the Comprehensive Drug Abuse Prevention and Control Act of 1970, which “authorize[d] the seizure and forfeiture of proceeds of illegal drug transactions” and continued with the 1984 amendment to the Racketeer Influenced and Corrupt Organizations Act, which likewise authorized “forfeiture of ‘proceeds’” from racketeering activity. Id. at 121 & n.16. These changes in the forfeiture statutes “marked an important expansion of governmental power.” Id. at 121 (emphasis added). But this expansion should not expand the meaning of the word forfeiture in § 2462 to encompass traditional disgorgement remedies outside those forfeiture statutes. We have said that when interpreting statutory language, “words will be interpreted as taking their ordinary, contemporary, common meaning at the time Congress enacted the statute.” Hackwell v. United States, 491 F.3d 1229, 1236 (10th Cir. 2007) (internal quotation marks omitted).

Further, we must not forget that we are to construe § 2462 in the government’s favor to avoid a limitations bar. See Telluride, 146 F.3d at 1246 & n.7. We should not strain to expand the meaning of the statute’s language to restrict the government. We conclude that the disgorgement order in this case is not a forfeiture within the meaning of § 2462.

Because we hold that the disgorgement order and injunction in this case are neither penalties nor forfeitures under § 2462, we need not decide whether (as requested by the government) the statute is inapplicable to all equitable remedies; nor need we decide whether disgorgement remedies in forfeiture statutes come under § 2462. And for the same reason, we need not address Defendant’s arguments that the government’s causes of action accrued more than five years before it filed suit and that the statute is jurisdictional.”