King & Spalding Discusses SEC’s Potential Focus During Biden Administration

For the next several weeks and months, intense focus will be trained on determining the priorities of the Biden administration. We believe that at the Securities and Exchange Commission (“SEC”), the new administration will ramp up examinations and investigations of investment advisers, and specifically advisers to private funds.

The industry has certainly been in growth mode. By the SEC’s own calculations, the number of private funds increased by nearly one third during the past four years (from 26,840 funds in the first quarter of 2016 to 34,858 in the first quarter of 2020), and the aggregate net asset value increased … Read more

King & Spalding Discusses Potential Effects of SEC Disgorgement As a Penalty

In the week since the Supreme Court’s unanimous decision in Kokesh v. SEC,[1] which rejected the Securities and Exchange Commission’s longstanding position that disgorgement was an equitable remedy not subject to the five-year statute of limitations in 28 U.S.C. § 2462, many have commented about the increased need for the SEC’s enforcement attorneys to complete their investigations quickly and the frustration  that hidden ill-gotten gains would never be recovered due to the five-year limit.  These are important and valid ramifications, and we include them in this article.

But the Kokesh decision raises other potential consequences that have not … Read more