Is Disgorgement a “Forfeiture” for Statute of Limitations Purposes?

The Harvard Law School Forum on Corporate Governance and Financial Regulation 2017-03-14

Posted by Jon Eisenberg, K&L Gates LLP, on Tuesday, March 14, 2017
Editor's Note: Jonathan N. Eisenberg is partner in the Government Enforcement practice at K&L Gates LLP. This post is based on a K&L Gates publication by Mr. Eisenberg.

In Gabelli v. SEC, 133 S.Ct. 1216 (2013), the Supreme Court held that the five-year statute of limitations in 28 U.S.C. §2462, which applies to actions for penalties, fines and forfeitures, begins to run when a violation is complete rather than when it is later discovered. The Court quoted Chief Justice Marshall’s statement from more than two centuries ago that it “would be utterly repugnant to the genius of our laws” if actions for penalties could “be brought at any distance of time,” id. at 1223 (internal citation omitted), and it described the important policies served by statutes of limitations as follows: