A Pair of D.C. Circuit Opinions Raises the Question of Whether the Supreme Court’s Recent Kokesh Decision Means that Orders of Expulsion, Bar, or Suspension Should Be Considered Penalties under the Securities Laws.
The D.C. Circuit on October 13, 2017, released an order remanding to the SEC a question including an application of the Supreme Court’s current choice in Kokesh v. SEC: whether FINRA’s imposition of a lifetime ban on a signed-up agent is appropriately considered “punitive.”  The managing viewpoint itself does not consist of any binding conversation of Kokesh in this context, 2 members of the Court’s panel provided different viewpoints revealing their (divergent) views on this question. This issue is now before the SEC and, if appealed, will provide a chance for the D.C. Circuit to resolve this question, which might have a comprehensive influence on FINRA and SEC practice for charging and approving individual members of the securities market.
The D.C. Circuit Order
Over the period of 10 years, John M.E. Saad has endured a FINRA disciplinary hearing, an interest the National Adjudicatory Council (” NAC”), an interest the SEC, an interest the D.C. Circuit, a partial remand from the D.C. Circuit to the SEC (in 2013),  a 2nd NAC choice, a 2nd interest the SEC, a 2nd attract the D.C. Circuit, and now, a 2nd partial remand from the D.C. Circuit to the SEC. Underlying all of it is a lifetime restriction from the securities market troubled Mr. Saad by a FINRA hearing panel, upon concluding that Mr. Saad sent numerous incorrect cost declares to his company and consequently tried to hide his misbehavior.
In 2013, the D.C. Circuit remanded the case just because the SEC’s analysis cannot deal with possibly mitigating proof, such as Mr. Saad’s termination by his company, which took place prior to regulative detection, and Mr. Saad’s personal and expert tension.  Exposed was the question of whether the lifetime bar was an “extreme or overbearing” sanction. 
On remand, the SEC directed the NAC to reevaluate the imposition of the lifetime bar and to deal with different mitigating elements. The NAC identified that the lifetime ban was a proper treatment for Mr. Saad’s misbehavior and, on the record before it, found that no appropriate mitigating aspects existed. The SEC verified, after thinking about both worsening and alleviating aspects and concluding the record before it supported FINRA’s imposition of a lifetime bar. The SEC more identified that the lifetime bar is “‘ restorative, not punitive,’ and ‘needed to secure FINRA members, their consumers, and other securities market individuals ” 
In its current choice, the D.C. Circuit held that the SEC’s “out-and-out choice straight resolved the mitigating proof, as needed by our previous remand order, and supplied a mindful and extensive analysis of Saad’s arguments looking for a decrease in his sanction.”  Regarding the question of whether the SEC’s affirmance of the lifetime bar is impermissibly punitive, nevertheless, the D.C. Circuit remanded that question to the SEC to deal with the importance, if any, of the Supreme Court’s current choice in Kokesh.
The Supreme Court’s Kokesh Decision
In Kokesh v. SEC,  the Supreme Court held that disgorgement purchased in securities enforcement actions goes through the five-year statute of restrictions under 28 U.S.C. § 2462, which uses in any “action, fit or continuing for the enforcement of any civil fine, charge, or loss, monetary or otherwise.”  Because case, financial investment consultant Charles Kokesh was found accountable for abusing funds from his customers and was brought to pay $34.9 million in disgorgement.  The issue before the Supreme Court was whether the disgorgement order was considered a “charge” under Section 2462. Composing for a consentaneous Court, Justice Sonia Sotomayor held that the disgorgement order was punitive instead of restorative because” [i] t is enforced as an effect of breaking a public law and it is planned to discourage, not to compensate.” 
Kokesh did not attend to whether other SEC sanctions, such as bars or suspensions, need to also be considered charges and hence based on Section 2462’s statute of restrictions on www.robertwkelley.com.
Judge Kavanaugh Invokes Kokesh in Evaluating FINRA Sanctions.
In addition to the managing viewpoint, Circuit Judge Brett Kavanaugh released a different concurring viewpoint that raises the question of how Kokesh effects whether the lifetime bar enforced versus Mr. Saad is considered an impermissible charge.  In his view, Kokesh manages this question and bars, suspensions, and expulsions need to appropriately be deemed charges.
Judge Kavanaugh discussed that, under existing D.C. Circuit precedent, an order authorizing FINRA sanctions such as expulsion or a bar need to be therapeutic, not punitive.  These cases examined the statute governing SEC evaluation of disciplinary actions by self-regulatory companies (” SRO”), which supplies that the SEC, “having due regard for the public interest and the defense of financiers” need to find that the sanction does not enforce any concern on competition not “required or suitable” in furtherance of the securities laws or that is “extreme or overbearing.”  These previous cases have figured out that a challenged SRO order “might enforce sanctions for a therapeutic function, but not for the penalty.” 
Judge Kavanaugh cast doubt regarding whether Kokesh overthrows the choices discovering expulsions or suspensions to be restorative. In his viewpoint, the Kokesh choice is not restricted to disgorgement; rather, because sanctions such as bars and suspensions (like disgorgement) “do not supply a solution to the victim,” they are correctly identified as a “charge.”  He kept in mind that previous D.C. Circuit viewpoints have identified a lifetime bar as “the securities market equivalent of capital penalty.” 
Judge Kavanaugh explained that he was not recommending that, under his application of Kokesh, FINRA would do not have the power to enforce expulsions or suspensions as punitive sanctions.  Rather, such sanctions might be enforced, but would need to be identified and assessed as a penalty (not a solution). Therefore, “FINRA and the SEC will need to fairly describe in each individual case why an expulsion or suspension satisfies of penalty and is not extreme or overbearing,” which might, in time, lead to “a fairer, fairer, and less approximate system of FINRA and SEC sanctions.” 
Judge Millett’s “Grave Doubts” that Kokesh Applies.
Circuit Judge Patricia Millett, on the other hand, submitted a different dubitante viewpoint, revealing her “severe doubts” about the position taken by Judge Kavanaugh and arguing that Kokesh has no importance in this area.
Judge Millett explained numerous differences in between the 2 actions, consisting of that they included “different restorative plans and materially different statutory requirements.”  Whereas Kokesh fixed the question of whether a SEC order of disgorgement based upon offenses of federal securities laws made up a “charge,” the evaluation in Saad worried the SEC’s exercise of discretionary superintendence over the choices of a personal self-regulatory company to guarantee its disciplinary choices do not enforce problems “not required or proper” and not “extreme or overbearing.”  Even more, the Supreme Court’s thinking for why disgorgement was not “restorative” (that such payments do not secure or compensate victims) does not use to FINRA bars, which she discussed are meant to secure the market and its financiers from bad stars.  Hence, she disagreed with Judge Kavanaugh that Kokesh overthrew any previous D.C. Circuit choices, and rather mentioned that exact same precedent as proof for her contention that “the Commission might authorize expulsion not as a charge but as a means of safeguarding financiers.” 
Judge Millett described that the fundamental facility of Judge Kavanaugh’s viewpoint was that it (mistakenly) conflated “therapeutic” with “countervailing.” In her view, a sanction can be therapeutic even if it does not offer a solution to the victim, keeping in mind precedent that a therapeutic sanction can be preventative. As she discussed, the debarment order versus Mr. Saad straight fixed the damages he triggered, keeping in mind: “Ordering the fox from the henhouse falls easily within the typical understanding of the term ‘therapeutic.'”.
The D.C. Circuit’s choice in Saad has no instant binding effect on these concerns, it represents another possibly fascinating outgrowth of Kokesh and might offer a means by which people and companies might challenge a FINRA order of bar, expulsion, or suspension. It also might supply more thinking for why a bar or suspension must be considered a charge for functions of the five-year statute of constraints in Section 2462.
As this issue establishes even more on demand and in other places, the situations under which suspensions and bars are enforced might also change. Judge Kavanaugh anticipated that FINRA and the SEC might still use such tools, but that they would need to validate any such “punitive” sanction in individual cases. As he kept in mind, previous choices have held that, under the securities laws, FINRA bars might just be enforced for a restorative function, not for the penalty. If Judge Kavanaugh’s position is accepted by a later court, those precedents may need to be considered and, possibly, reversed for bars and suspensions to endure.
Regardless of the legal limbo of the Saad case, the dispute in between Judges Kavanaugh and Millett offers another fascinating take on the effect of Kokesh. Specialists and regulators might wish to keep in mind of and think about the problems raised in the Saad case about future disciplinary actions.