Search results

1 – 10 of 11
To view the access options for this content please click here
Article
Publication date: 29 August 2018

Brad Karp, Andrew Ehrlich, Lorin Reisner, Audra Soloway, Richard Tarlowe, Maia Lichtenstein and Peter Vizcarrondo

This paper aims to explain the US Supreme Court’s ruling in Kokesh v. SEC, which limited the U.S. Securities and Exchange Commission’s (SEC) ability to seek the remedy of…

Abstract

Purpose

This paper aims to explain the US Supreme Court’s ruling in Kokesh v. SEC, which limited the U.S. Securities and Exchange Commission’s (SEC) ability to seek the remedy of disgorgement and to examine how lower courts have applied the ruling to other types of equitable relief that that the SEC commonly pursues.

Design/methodology/approach

This study explains why the Supreme Court in Kokesh ruled that disgorgement is a “penalty” and that the five-year limitations period therefore was applicable to actions seeking disgorgement; discusses a footnote in Kokesh that left open the question of whether the SEC has the power to pursue disgorgement at all; and reviews four recent cases that grapple with the application of Kokesh to injunctions and lifetime bars.

Findings

Lower courts and the SEC have not settled on how Kokesh might impact equitable remedies commonly pursued by the SEC, but recent cases indicate that the effect of Kokesh may be broader than its narrow holding suggests.

Originality/value

Practical guidance from experienced white collar and regulatory defense lawyers that consolidates several recent developments in one piece.

Details

Journal of Investment Compliance, vol. 19 no. 3
Type: Research Article
ISSN: 1528-5812

Keywords

To view the access options for this content please click here
Article
Publication date: 6 November 2017

Marc Litt, Jerome P. Tomas, Elizabeth L. Yingling and Richard A. Kirby

To explain the Supreme Court’s ruling in its recent Kokesh v. SEC decision and its impact on the SEC’s ability to recover disgorgement of ill-gotten gains beyond the…

Abstract

Purpose

To explain the Supreme Court’s ruling in its recent Kokesh v. SEC decision and its impact on the SEC’s ability to recover disgorgement of ill-gotten gains beyond the five-year statute of limitations.

Design/methodology/approach

This article discusses the Supreme Court’s recent decision and the immediate effects it will have on the SEC’s approach to a variety of cases in which a significant portion of the recovery may now be outside the statute of limitations.

Findings

The article concludes that the recent Supreme Court decision will have an immediate effect of preventing the SEC from reaching back beyond five years for disgorgement; however, the SEC may be able to comply with Kokesh and modify its procedures so that its financial recoveries from those that violate securities laws may be categorized as an equitable remedy (like restitution) rather than as a penalty (like forfeiture) which is subject to a five-year statute of limitations.

Originality/value

The article provides practical guidance from experienced securities litigation and white collar crime lawyers. It explains and analyzes the Supreme Court decision that severely limits the ability of the SEC to seek disgorgement by limiting the SEC’s use of disgorgement to a five-year statute of limitations.

Details

Journal of Investment Compliance, vol. 18 no. 4
Type: Research Article
ISSN: 1528-5812

Keywords

To view the access options for this content please click here
Article
Publication date: 8 April 2021

Russ Ryan, Matthew H. Baughman, Carmen J. Lawrence, Aaron W. Lipson, Richard H. Walker, Jessica Rapoport, Katie Barry and Scott Hiers

To analyze the impact of recent legislation that amended the Securities Exchange Act of 1934 to expressly empower the U.S. Securities and Exchange Commission (SEC) to seek…

Abstract

Purpose

To analyze the impact of recent legislation that amended the Securities Exchange Act of 1934 to expressly empower the U.S. Securities and Exchange Commission (SEC) to seek disgorgement in federal district court proceedings and to codify applicable statutes of limitations.

Design/methodology/approach

This article provides an overview of the authors’ prior work analyzing courts’ treatment of SEC disgorgement and summarizes how the scope of the remedy has evolved since Kokesh v. SEC (2017). Then, the article analyzes the changes to the Securities Exchange Act of 1934 contained in Section 6501 the 2021 National Defense Authorization Act (NDAA), which statutorily empowered the SEC to seek and obtain disgorgement in federal court actions. Finally, the authors discuss the impact of the legislation on the Supreme Court’s decisions in Kokesh and Liu v. SEC (2020).

Findings

The availability and appropriateness of SEC disgorgement have been the subject of vigorous debate. Just as courts began to iron out the contours of SEC disgorgement in the wake of Kokesh and Liu, Congress intervened by granting to the SEC explicit statutory authority to seek a remedy traditionally obtained at equity. In passing this legislation, Congress answered some questions that remained after Liu but also raised many new ones. These new questions will likely take years to resolve through subsequent litigation and potentially additional legislation.

Originality/value

Original, practical analysis and guidance from experienced lawyers in financial services regulatory and enforcement practices, many of whom have previously worked in the SEC’s Division of Enforcement.

To view the access options for this content please click here
Article
Publication date: 4 December 2020

M. Alexander Koch, Carmen J. Lawrence, Aaron Lipson, Russ Ryan, Richard H. Walker, Jessica Rapoport and Katie Barry

To analyze the impact of the U.S. Supreme Court’s decision in Liu v. SEC, where the Court confronted the issue of whether the SEC can obtain disgorgement in federal…

Abstract

Purpose

To analyze the impact of the U.S. Supreme Court’s decision in Liu v. SEC, where the Court confronted the issue of whether the SEC can obtain disgorgement in federal district court proceedings.

Design/methodology/approach

This paper provides an overview of the authors’ prior work analyzing courts’ treatment of SEC disgorgement and a summary of the background and opinion in Liu v. SEC. This article then focuses on the practical implications of Liu on SEC disgorgement by considering questions left open by the decision.

Findings

The Court in Liu held that the SEC is authorized to seek disgorgement as “equitable relief” as long as it “does not exceed a wrongdoer’s net profits and is awarded for victims.” But the Court left many unanswered questions, such as whether disgorged funds must always be returned to investors for disgorgement to be a permissible equitable remedy, whether the SEC can obtain joint-and-several disgorgement liability from unrelated co-defendants, what “legitimate expenses” should be deducted in disgorgement calculations, and to what extent the SEC can seek disgorgement in cases when victims are difficult to identify.

Originality/value

Original, practical guidance from experienced lawyers in financial services regulatory and enforcement practices, many of whom have previously worked in the SEC’s Division of Enforcement.

Details

Journal of Investment Compliance, vol. 21 no. 2/3
Type: Research Article
ISSN: 1528-5812

Keywords

To view the access options for this content please click here
Article
Publication date: 25 November 2020

Alan R. Friedman, Dani R. James, Gary P. Naftalis, Paul H. Schoeman and Chase Henry Mechanick

To analyze the U.S, Supreme Court’s decision in Liu v. S.E.C., 140 S. Ct. 1936 (2020) and its potential implications for insider trading cases.

Abstract

Purpose

To analyze the U.S, Supreme Court’s decision in Liu v. S.E.C., 140 S. Ct. 1936 (2020) and its potential implications for insider trading cases.

Design/Methodology/Approach

Provides context on the history of disgorgement in SEC enforcement proceedings; discusses factual and procedural background underlying the Liu decision; summarizes the Court’s opinion and rationale, with a particular focus on the Court’s pronouncements regarding the permissible scope of SEC disgorgement as an equitable remedy; identifies and explores three possible issues in insider trading cases that may be affected by the Court’s narrowing of SEC disgorgement.

Findings

In Liu, the Supreme Court narrowed SEC disgorgement by stating that, as a general matter, SEC disgorgement is not permitted where: (1) the proceeds are not remitted to investors; (2) one defendant is made to disgorge profits that were received by someone else; or (3) the amount of disgorgement fails to deduct legitimate business expenses, in each case subject to possible exemptions as outlined by the Court.

Practical implications

This rule may call into question whether courts may: (a) order disgorgement against insider traders, given the difficulty of identifying investors who have been harmed; (b) order insider traders to disgorge profits earned by others on account of their violations; or (c) order insider traders to pay civil penalties under Section 21 A of the Exchange Act based on profits earned by others.

Originality/Value

Expert analysis and guidance from experienced securities enforcement lawyers with expertise in insider trading.

Details

Journal of Investment Compliance, vol. 21 no. 1
Type: Research Article
ISSN: 1528-5812

Keywords

To view the access options for this content please click here
Article
Publication date: 19 October 2020

Todor Kolarov

The purpose of this paper is to evaluate the benefits and challenges, on the national and international level, associated with the settlement of cases involving…

Abstract

Purpose

The purpose of this paper is to evaluate the benefits and challenges, on the national and international level, associated with the settlement of cases involving non-conviction civil confiscation of unexplained wealth.

Design/methodology/approach

This paper is centered on evaluation of key aspects of settlement of civil confiscation of unexplained wealth cases. Conducting a review of settlement of confiscation cases and of non-conviction-based unexplained wealth regimes, this research evaluates the validity of the lead thesis.

Findings

Settlement of civil asset confiscation of unexplained wealth cases presents several challenges that call for mitigation.

Originality/value

This paper emphasizes the theoretical and practical issues on the national and international level related to settlement of cases involving non-conviction-based civil asset confiscation of unexplained wealth, with recommendations for development of legal principles for non-conviction based civil asset confiscation.

Details

Journal of Money Laundering Control, vol. 24 no. 3
Type: Research Article
ISSN: 1368-5201

Keywords

To view the access options for this content please click here
Article
Publication date: 8 May 2018

Matthew C. Solomon, Robin M. Bergen and Alexis Collins

To discuss and analyze the US Securities and Exchange Commission’s (SEC’s) FY 2017 Annual Report, which details its priorities for the coming year and evaluates…

Abstract

Purpose

To discuss and analyze the US Securities and Exchange Commission’s (SEC’s) FY 2017 Annual Report, which details its priorities for the coming year and evaluates enforcement actions that occurred during FY2017.

Design/methodology/approach

Summarizes key shifts from FY 2016, outlines the Enforcement Division’s current priorities, and, in view of its stated focus on the conduct of investment professionals and protection of retail investors, provides guidance to the investment management industry as it gears up for the coming year.

Findings

The Report provides insight into changes in the SEC’s approach to enforcement actions, including a general shift in tone suggesting a more measured approach to enforcement and remedies and a move away from a statistics-oriented approach, and a glimpse into its priorities for the coming year, including five core principles guiding the Division’s enforcement decisions.

Practical implications

As those in the asset management industry consider revisions to their policies and procedures for FY 2018, as well as their risk profile more generally, they should keep in mind key insights into the Commission’s enforcement strategy offered by the Report.

Originality/value

Practical guidance from experienced securities enforcement, litigation, compliance and anti-corruption lawyers.

To view the access options for this content please click here
Article
Publication date: 4 May 2012

Melissa Lewis‐Duarte and Michelle C. Bligh

Executive coaching is commonly utilized in organizations to facilitate the personal and professional growth of executives. Executive coaches utilize a variety of proactive…

Abstract

Purpose

Executive coaching is commonly utilized in organizations to facilitate the personal and professional growth of executives. Executive coaches utilize a variety of proactive influence tactics to create behavioral change in their clients. The current study aimed to examine coaches' perceived use and effectiveness of the outcome, timing, and objective of proactive influence tactics in coaching relationships.

Design/methodology/approach

Members of ten organizations affiliated with executive coaching were targeted for participation. A total of 110 participants completed the online survey.

Findings

Influence tactics including coalition, consultation, inspirational appeals, and rational persuasion were more frequently associated with client commitment. Consultation was more frequently utilized during initial influence attempts; pressure was more frequently utilized during follow‐up attempts. Coaches also reported using different tactics depending on the desired outcome of the influence attempt: coalition and pressure were utilized to change behavior, whereas coaches used consultation and rational persuasion to both change behavior and assign work.

Research limitations/implications

The results offer insights into executive coaching engagements, areas for potential training and development of practicing coaches, and techniques for creating more successful outcomes with coaching clients. The findings are limited by sample size, self‐report measures, and the lack of contextual or organizational information. Future research should expand these findings to provide additional information regarding the use of influence tactics in the executive coaching industry.

Originality/value

There is little empirical data regarding how executive coaches effectively influence behavioral change in their clients. The current study applies research on proactive influence tactics to the context of executive coaching, bridging these two previously disparate streams of research.

Details

Leadership & Organization Development Journal, vol. 33 no. 3
Type: Research Article
ISSN: 0143-7739

Keywords

To view the access options for this content please click here
Case study
Publication date: 9 July 2021

Diana Franz

This case is based on Weatherford International’s settlement with the Securities and Exchange Commission (SEC) and the Department of Justice (DOJ). Both the SEC and the…

Abstract

Theoretical basis

This case is based on Weatherford International’s settlement with the Securities and Exchange Commission (SEC) and the Department of Justice (DOJ). Both the SEC and the DOJ were critical of Weatherford for its violations of the Foreign Corrupt Practices Act and for its “inadequate internal controls.” This case explores the Foreign Corrupt Practices Act (FCPA) violations and issues related to internal controls.

Research methodology

Case study.

Case overview/synopsis

This case is based on Weatherford International’s settlement with the SEC and the Department of Justice. Weatherford provided equipment and services in the oil and gas industry. Because international markets were growing faster than domestic markets, Weatherford made a strategic decision to pursue growth in international markets. The oil and gas industry has high levels of operating risk as did the countries that Weatherford decided to pursue operations in. However, despite the decision to take on additional risk, Weatherford failed to implement adequate systems of internal controls. The title of the case “A Perfect Storm” refers to Weatherford’s trifecta of operating in an industry with high levels of corruption risk, countries with high levels of corruption risk and failing to implement adequate internal controls despite those high operating risks (Department of Justice, 2013). Weatherford was ultimately assessed a $152m penalty for its violations of the FCPA that included bribery, volume discounts, improper payments and kickbacks.

Complexity academic level

Undergraduate and graduate auditing classes.

Details

The CASE Journal, vol. ahead-of-print no. ahead-of-print
Type: Case Study
ISSN: 1544-9106

Keywords

To view the access options for this content please click here
Book part
Publication date: 25 June 2012

Abby Swanson Kazley, Amy C. McLeod and Karen A. Wager

Purpose – Use of telemedicine is increasingly prevalent in order to provide better access to expert care, and we examine telemedicine use internationally.

Abstract

Purpose – Use of telemedicine is increasingly prevalent in order to provide better access to expert care, and we examine telemedicine use internationally.

Design/methodology – Using Donabedian's structure, process outcome framework, we conduct an analysis of published studies in the United States, Europe, and Asia to examine the uses, conditions treated, barriers, and future of telemedicine.

Findings – We identify several similarities and challenges to telemedicine use in each region. We find use of videoconferencing between providers or providers and patients for the treatment of acute and chronic conditions. Studies in the United States are more likely to identify applications for the use of chronic conditions, whereas studies in Europe or Asia are more likely to use them for acute access to expertise. Each region reported comparable challenges in reimbursement, liability, technology, and provider licensing.

Research limitations – We compare available research articles from three diverse regions, and many of the articles were merely descriptive in nature. Furthermore, the number of articles per region varied.

Practical implications – Barriers to telemedicine use include a lack of reimbursement, language commonality, technological availability, physician licensure or credentialing, trained support staff and patient privacy, and security assurances. Practitioners and policy makers should work to address these barriers.

Originality/value – Through this work, a summary of the research to date describes telemedicine use in the United States, Asia, and Europe. Identification of use and barriers may provide impetus for improving access to care by finding ways to increase telemedicine use through standardization.

Details

Health Information Technology in the International Context
Type: Book
ISBN: 978-1-78052-859-5

Keywords

1 – 10 of 11