On June 5, 2017, the U.S. Supreme Court unanimously held in Kokesh v. Securities and Exchange Commission, No. 16-529, that the SEC may not reach beyond the general five year statute of limitations period in order to obtain “ill-gotten gains,” a remedy known as disgorgement. Although the case did not involve a Foreign Corrupt Practices Act (“FCPA”) enforcement action, it nonetheless has important implications for FCPA enforcement and importantly, the DOJ’s recently-renewed Pilot Program.

Prior to this case, lower federal appeals courts had been divided over whether the five-year time limit applied to not only civil penalties, but also to the equitable remedy of disgorgement through which the government also seeks all of the funds obtained as a result of a party’s alleged misconduct. Thus, in some jurisdictions disgorgement proved an important tool for the government in cases involving aged conduct.

The five year statute of limitations at issue in Kokesh is a general one that applies in FCPA civil enforcement actions as well as in the securities laws underlying Kokesh. Indeed, the parties’ briefing in the case referenced the large amounts of disgorgement in FCPA cases and that disgorgement in FCPA cases often goes directly to the U.S. Treasury and not to any victims as they may be difficult to ascertain in the FCPA context.

In holding that the statute of limitations applies to disgorgement, the Supreme Court affected a critical component of the DOJ’s FCPA Pilot Program. DOJ guidance expressly requires that to be eligible for the Program’s main benefit of mitigation credit, a company must disgorge all profits resulting from the FCPA violation. Accordingly, published declinations pursuant to the Program have indicated substantial disgorgements.

It will be informative to monitor any change in DOJ’s approach to the Pilot Program following Kokesh. Potential effects include DOJ seeking to have parties agree to waive the statute of limitations as a condition of their participation in the Pilot Program or requesting full disgorgement to obtain cooperation credit, or a possible reluctance of private parties whose conduct occurred primarily outside of the statute of limitations to engage in the Pilot Program.