Professor Verity Winship has published an article that is now available on SSRN, titled Disgorgement in Insider Trading Cases: FY2005-FY2015. The article, an invited symposium piece, will be published in a forthcoming issue of SMU Law Review.
The paper abstract is as follows:
For about 50 years – at least since Texas Gulf Sulphur – the SEC has ordered defendants to disgorge their profits from transactions that violated the securities laws. Despite disgorgement’s long history, in its 2017 opinion in Kokesh v. SEC, the US Supreme Court put two aspects of the remedy on the table. It applied a five-year statute of limitations to disgorgement. It also reopened old questions about agencies’ power to seek remedies not specified in statute. This article provides data to inform these debates over the agency’s use of disgorgement and the effects of Kokesh. It reports the results of an empirical study of ten years of the remedies ordered by the SEC in insider trading actions, with particular emphasis on the agency’s reliance on disgorgement. It finds widespread reliance on disgorgement, but also identifies aspects of its use that may limit Kokesh’s effects in this area.
Winship posted about the article on Oxford Business Law Blog and on NYU's Compliance & Enforcement blog.