Disgorgement or Accounting for Profits? An Analysis of Liu v. SEC

, , and | January 4, 2021 | Torts: Remedies

In Liu v. SEC (June 22, 2020), the Supreme Court of the United States held, in an enforcement action by the Securities and Exchange Commission, that a disgorgement order that did not exceed a wrongdoer’s net profits and was awarded for victims constituted “equitable relief” that was permissible under the Securities Exchange Act of 1934, 15 U.S.C. § 78u(d)(5), rather than punitive sanctions, which were historically excluded from the definition of “equitable relief” under the Act.

From Season Two of Reasonably Speaking, this episode will discuss the Supreme Court’s decision, both the Securities Act of 1933 and the Securities Exchange Act of 1934, and whether the Court’s reference to “equitable relief” includes the remedy of “disgorgement.” Douglas Laycock, who filed an amiscus brief in support of neither party, will lead this discussion.

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Andrew Kull

The University of Texas at Austin School of Law

Andrew Kull is a Distinguished Senior Lecturer at The University of Texas at Austin School of Law. He served as Reporter on The American Law Institute’s Restatement of the Law, Restitution and Unjust Enrichment. He also served as an Adviser for Restatement of the Law Third, Torts: Liability for Economic Harm, and currently serves on the Members Consultative Group for the Restatement of the Law Fourth, Property. He earned his B.A. from the University of California-Berkley and his J.D. from the University of Chicago Law School.

Douglas Laycock

Reporter, Torts: Remedies

Douglas Laycock is perhaps the nation’s leading authority on the law of religious liberty and also on the law of remedies. He has taught and written about these topics for four decades. He is currently the Robert E. Scott Distinguished Professor of Law and Professor of Religious Studies at the University of Virginia School of Law, and the Alice McKean Young Regents Chair in Law Emeritus at the University of Texas School of Law.

Caprice L. Roberts

George Washington University Law School

Caprice L. Roberts is a Visiting Professor of Law at the George Washington University Law School. Caprice regularly teaches Federal Courts, Remedies, and Contracts. At GW Law, she will also teach Property and Leg-Reg. Her scholarship focuses on judicial power and restraint. Her op-ed on Kavanaugh’s Supreme Court confirmation hearing appeared in the Washington Post. Her works have appeared in prominent journals such as: Florida, Cincinnati, Maryland, Washington & Lee, Villanova, Tennessee, Rutgers, Marquette, Lewis & Clark, Louisville, and Seattle. The United States Supreme Court cited Caprice for accurately predicting novel application of unjust enrichment principles to contract law.

Jennifer Morinigo

The American Law Institute

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