By Andrew J. Morris, a Partner with Morvillo LLP. Mr. Morris authored a March 10, 2017 WLF Legal Backgrounder, Is the Clock Running out on SEC’s Unchecked Pursuit of Disgorgement Penalties?
In Kokesh v. Securities and Exchange Commission, the US Supreme Court ruled that SEC actions for disgorgement are governed by the five-year statute of limitations for penalties. This decision is a real blow to the SEC: It ends the practice of using disgorgement actions to obtain massive sanctions for conduct that took place many years in the past, outside the limitations period for penalties and forfeitures. The decision also invites defendants to make further challenges to SEC enforcement actions by litigating several related issues.
Implications for Enforcement Proceedings
The Court’s opinion, written by Justice Sotomayor, is summarized in a WLF Legal Pulse post authored last week by UCLA School of Law Professor Stephen Bainbridge. The gist of the decision is that disgorgement is a form of penalty because it involves a defendant who has violated a public law and must pay money to the United States Treasury; this contrasts with non-penalty cases, where the defendant has injured a particular victim and must pay compensation to that victim. And because disgorgement is a penalty, the Supreme Court held, disgorgement actions are covered by 28 U.S.C. § 2462, the five-year statute of limitations for penalties. Continue reading
[Ed. Note: For more on the Gordon cert petition, watch WLF’s May 22 press conference, which featured former Solicitor General Gregory Garre, at our YouTube channel.]
The US Constitution imposes important checks on the exercise of executive power by the federal government. In particular, Article II specifies that executive power may be exercised only at the behest of properly appointed “officers” of the United States, and it sets forth detailed requirements for the appointment and Senate confirmation of such officers. However, a recent decision from the US Court of Appeals for the Ninth Circuit threatens to undermine those checks on federal power by permitting the Executive Branch to retroactively ratify actions taken by officials not properly appointed as “officers.” The Supreme Court should review and overturn the appeals court decision, which is the subject of a pending certiorari petition. Gordon v. Consumer Financial Protection Bureau, Case No. 16-673. Washington Legal Foundation represents Mr. Gordon in the Supreme Court. Continue reading
Gordon v. CFPB: Will the High Court Halt an End-Run Around the Appointments Clause?
To view this WLF Media Briefing program on our IBM Cloud Video channel click here.
To view the program on our YouTube channel, click here.
The program featured commentary on WLF cert petition on behalf of our client Chance Gordon currently pending before the US Supreme Court. The Court may decide as early as this Thursday, May 25, on our review request. WLF’s petition argues that the Consumer Financial Protection Bureau could not lawfully prosecute a claim against Mr. Gordon at a point when the agency lacked a lawfully appointed director.
Our Gordon v. CFPB page, which contains our briefs and press releases in the case, is available here.
In a year-end assessment of the Consumer Financial Protection Bureau (CFPB), attorneys from the law firm K&L Gates LLP evaluated the potential impact of Gordon v. CFPB, a constitutional challenge in which Washington Legal Foundation has filed a certiorari petition with the US Supreme Court on behalf of its client, Chance Gordon.
In the Legal Insight, “Down But Not Out: The CFPB’s Future May Be Uncertain, But Industry Participants Must Remain Vigilant,” the authors discuss judicial challenges facing the Bureau in 2017, including Gordon and PHH Corp. v. CFPB. In PHH Corp., the US Court of Appeals for the DC Circuit ruled that CFPB’s leadership structure runs afoul of the Constitution’s separation of powers. WLF’s petition in Gordon calls into question the subsequent, retroactive ratification of CFPB’s enforcement action against Mr. Gordon, as well as 15 other actions, that were taken during a time when Bureau Director Richard Cordray had not been lawfully appointed.
The K&L Gates Legal Insight notes:
With PHH concluding (for now) that the CFPB’s directorship structure is unconstitutional and Gordon questioning the validity of certain CFPB actions on other constitutionality grounds, a trend may be developing toward judicial challenges to the validity of the CFPB as an agency and the propriety of its enforcement activities.”
A WLF Legal Pulse post discussing Gordon and the three amicus briefs filed in support of WLF’s cert petition can be found here.
On November 17, 2016, Washington Legal Foundation petitioned the US Supreme Court to review a US Court of Appeals for the Ninth Circuit decision, Gordon v. Consumer Financial Protection Bureau. CFPB had pursued a substantial fine against WLF’s client, Chance Gordon, in June 2013, a time during which the Bureau lacked a properly appointed Director. Mr. Gordon’s petition argues that the attempted corrective action Richard Cordray took once he lawfully became CFPB Director—a blanket, retroactive ratification of all actions taken during his unconstitutional recess appointment—runs afoul of the US Constitution’s Appointments Clause (contained in Article II). Mr. Gordon also argues that because Mr. Cordray had not been properly appointed, CFPB lacked standing to pursue a claim against him in federal court.
This week, three organizations filed amicus curiae briefs with the Supreme Court in support of Mr. Gordon’s writ of certiorari. The briefs positively reinforce WLF’s two major justifications for the Court’s review of Gordon v. CFPB. The petition first argues that the Ninth Circuit’s acceptance of Director Cordray’s blanket ratification severely undermines a fundamental check on Executive power: the requirement that Congress must first approve presidential nominees before they can be lawfully appointed. The Gordon decision is also contrary to Supreme Court precedent and furthers a split in the circuit courts over when ratification of ultra vires administrative action is permissible. Continue reading
By Burt M. Rublin, Partner, and Daniel L. Delnero, Associate, Ballard Spahr LLP
Prior restraints on speech are highly disfavored and presumptively unconstitutional. See Tory v. Cochran, 544 U.S. 734, 738 (2005) (“Prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.”). Yet the Consumer Financial Protection Bureau (CFPB) proposed exactly that in its Proposed Rule Relating to Disclosure of Records and Information (Proposed Rule), CFPB-2016-0039, 81 Fed. Reg. 58310 (Aug. 24, 2016). CFPB seeks to prohibit the recipient of a civil investigative demand (CID) or letter from the agency providing notice and opportunity to respond and advise (NORA letters) from disclosing the CID or NORA letter to third parties without prior written consent of a high-ranking CFPB official. In effect, this would constitute a “gag” rule that would stifle constitutionally protected speech.
The proposed gag rule is not only ill-advised as a matter of public policy, it is also unconstitutional both as a prior restraint on speech and a content-based restriction. It would be subject to strict scrutiny, and the CFPB would have to show a compelling government interest to justify it, which it could not. Indeed, CFPB has not claimed, nor could it claim, that the absence of a similar gag rule since the creation of CFPB has hindered or impaired its effectiveness. Continue reading
No one any longer contests that President Obama acted in excess of his constitutional powers when, on January 4, 2012—a day on which the Senate was not in recess—he purported to grant a recess appointment to Richard Cordray to head the Consumer Financial Protection Bureau (CFPB). Yet, in a troubling decision issued last week, the U.S. District Court for the District of Columbia indicated that it was of no moment that for a period of 18 months Cordray, although no more than a private citizen, issued dozens of significant decisions in the name of CFPB. Judge Ellen Huvelle ruled in State National Bank of Big Springs v. Lew that Cordray, after finally receiving Senate confirmation, could simply wave a magic wand and retroactively approve all of his unauthorized acts. That decision eviscerates the Constitution’s explicit limitations on the President’s appointment powers and encourages future Presidents to disregard those limitations. Continue reading