SEC v. Cohen—New York Federal Trial Court Holds Supreme Court’s Kokesh Decision Applies to SEC FCPA Case, Including Demand for Injunctive Relief: The Court Concludes That SEC Demands for Injunctions Operate as Penalties for Purposes of Applicable Statute of Limitations

Sullivan & Cromwell LLP - July 16, 2018
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On July 12, 2018, the United States District Court for the Eastern District of New York dismissed as untimely a lawsuit by the Securities and Exchange Commission against two former employees of Och-Ziff Capital Management Group LLC. The lawsuit, SEC v. Cohen, alleged that, between 2007 and 2012, the defendants participated in a scheme to make improper payments to government officials in Libya, the Democratic Republic of the Congo, and other African countries, to steer business to Och-Ziff, in violation of the Foreign Corrupt Practices Act and the Investment Advisers Act of 1940. The SEC’s action sought monetary penalties, disgorgement of ill-gotten gains, and injunctive relief barring the defendants from committing future violations of the FCPA and Advisers Act.  The court held that, under the U.S. Supreme Court’s decision in SEC v. Kokesh, the SEC’s claims were barred by the applicable five-year statute of limitations set forth in 28 U.S.C. § 2462.  Although Kokesh addressed disgorgement and not demands for injunctive relief, the Cohen court held that the reasoning of Kokesh supported a conclusion that the demand for injunctive relief was similarly time-barred, because the requested injunction would operate, at least in part, as a penalty.  The decision represents a departure from the Eighth Circuit’s post-Kokesh decision in SEC v. Collyard, as well as a number of pre-Kokesh decisions holding that injunctions are not penalties for purposes of Section 2462, and could have an impact on the SEC’s charging decisions in FCPA cases.