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Legislation Misses Mark in Attempt to Expand SEC Disgorgement Powers

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Description: On January 1, 2021, the United States Congress rang in the new year by passing the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021. Buried in the massive spending bill is Section 6501, a provision authorizing the United States Securities and Exchange Commission (“SEC”) to seek disgorgement of unjust enrichment within 10 years for certain securities law violations, and 5 years for others. Congress passed this legislation in apparent response to a pair of United States Supreme Court decisions that limited disgorgement in SEC enforcement actions to a 5-year statute of limitations and required that the remedy not exceed a wrongdoer’s net profits and be awarded for the benefit of victims. While Congress may have intended for Section 6501 to free the SEC from the limits imposed by these two High Court decisions, a close reading of the statue’s text reveals that the legislation may have missed its mark. As such, the new law leaves defendants in enforcement actions free to argue that Congress has not actually restored any of the agency’s lost powers, and potentially subjecting the SEC to continued litigation over disgorgement absent an additional legislative fix. This presentation will address the pre-2021 precedent, the structure of the new legislation and how it might be subject to unexpected interpretation, and address the effectiveness, or lack thereof, of Congress’ latest effort to overrule Supreme Court precedent.
Christopher Bosch is an associate in Sheppard Mullin’s Government Contracts, Investigations and International Trade practice group.  Christopher's practice primarily focuses on securities regulation, compliance, and litigation, as well as internal investigations and white collar defense.  Christopher frequently represents banks, broker-dealers, investment advisers, boards of directors, corporate officers, financial advisors, and other securities professionals in connection with internal investigations and inquiries by the U.S. Attorney’s Offices for the Southern District of New York and Northern District of California, the SEC, the CFTC, FINRA, the IRS, the FRB, the NY Department of Financial Services, and other governmental entities and self-regulatory organizations. He counsels clients on matters relating to insider trading, trading and position valuation, misuse of confidential information, unauthorized trading, money laundering and BSA/AML issues, retail brokerage sales practice violations, criminal and civil tax violations, and legal challenges posed by emerging technologies. Christopher has also advised financial institutions on compliance with data privacy and cybersecurity legal mandates, represented a blockchain investor in connection with shareholder derivative and class actions alleging securities law violations, advised firms regarding digital token issuances and regulatory compliance, and regularly publishes on regulatory developments in the cybersecurity, blockchain, and cryptocurrency spaces.  Christopher represents organizations and individuals in connection with a wide variety of litigation, including grand jury and regulatory enforcement matters, as well as RICO, breach of contract, fraud, intellectual property infringement, and shareholder actions.  Christopher is actively involved in pro bono work at the firm, including the representation of individuals seeking asylum in immigration proceedings.
Sarah E. Aberg is special counsel in Sheppard Mullin’s Government Contracts, Investigations and International Trade practice group.  Sarah's practice encompasses litigation, internal investigations and white collar defense, with a focus on financial services and securities. She has conducted multiple criminal trials and numerous internal investigations into a wide variety of allegations, including mail and wire fraud, mortgage fraud, insider trading, market manipulation, money laundering, terrorist financing, cybercrimes, and data privacy violations.  Sarah’s regulatory practice encompasses market regulation, foreign registration and disclosure requirements, supervisory procedures, and sales practices.  Sarah represents corporations, financial services companies, and associated individuals in connection with investigations and regulatory matters before the U.S. Department of Justice, the Securities and Exchange Commission, the Commodity Futures Trading Commission, FINRA, the New York Stock Exchange, the New York State Department of Financial Services, and the New York Attorney General’s Office.

Practice Areas: Corporate & Securities
Online Media Type: Audio
Production Date: 05/13/2021
Level: Intermediate
Category: Standard
Duration: 1 Hours, 10 Minutes
Online Format: On Demand

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Total Credits: 1
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Status: Reciprocal Credit Available
Expiration: 05/12/2024
Training Type: Online

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Christopher Bosch, Esq. - Sheppard Mullin
Sarah Aberg, Esq. - Sheppard Mullin
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