Kokesh to pay $5 million in SEC case on remand from Supreme Court

Charles Kokesh, who won a unanimous U.S. Supreme Court ruling in June over whether there was a five-year statute of limitations in connection with his allegedly illegal activities, must still disgorge $5 million, a federal appeals court said on Monday.

However, that sum is significantly less than the $34.9 million Mr. Kokesh was originally told to pay.

The case of Securities and Exchange Commission v. Charles Kokesh has a long litigation history. The SEC had charged Mr. Kokesh with misappropriating funds from four business development companies in violation of federal securities laws from 1995 through 2006.

Following a jury trial, in 2014 the U.S. District Court in Las Cruces, New Mexico, ordered the disgorgement of $34.9 million plus prejudgment interest of $18.1 million and imposed a $2.4 million civil penalty.

In August 2016, the 10th U. S. Circuit Court of Appeals in Denver held the SEC was not subject to a five-year statute of limitations, and Mr. Kokesh appealed.

However, after a contradictory opinion was issued by another appeals court, the U.S. Supreme Court said in a unanimous 9-0 ruling in June 2017 in Mr. Kokesh’s case that the SEC’s disgorgement recovery method is subject to a five-year statute of limitations. 

Monday’s ruling by the 10h Circuit focused on the issue of whether, in light of the Supreme Court’s ruling, Mr. Kokesh is obligated to pay $5 million in connection with activities that occurred with the five -year limitation period.

The statute-of-limitations issue in this case “turns on whether defendant’s misappropriation of funds … are properly viewed as a continuing violation or as a number of discrete wrongs,” said the ruling.

In ruling for the latter, the decision said: “To hold that Defendant’s misappropriations constituted only one continuing violation would do much more than provide repose for ancient misdeeds; it would confer immunity for ongoing misconduct …

“We cannot continence such a result, nor do we think that a proper interpretation of (the Supreme Court opinion) requires use to,” said the ruling, in remanding the case with instructions to require Mr. Kokesh to disgorge more than $5 million.