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Disgorgement
Disgorgement
Disgorgement
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Disgorgement is the act of giving up something on demand or by legal compulsion, for example giving up profits that were obtained illegally.[1]

In United States regulatory law, disgorgement is often a civil remedy imposed by some regulatory agencies to seize illegally obtained profits. When a private party sues for net profits, this is instead ordinarily known as restitution for unjust enrichment.

Indeed, the U.S. Supreme Court has noted in Liu v. SEC (2020) that disgorgement is simply another term for restitution, and that it is subject to equitable limitations. Most relevantly, equity does not "penalize", so agencies cannot disgorge more than the net profits that resulted from the wrongdoing.[2]

Overview

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Disgorgement is a remedy used in US securities law. For example, disgorgement of short-swing profits is the remedy prescribed by § 16(b) of the Securities Exchange Act of 1934.[3]

The second edition of American Jurisprudence states that:

Disgorgement is an equitable remedy designed to deter future violations of the securities laws and to deprive defendants of the proceeds of their wrongful conduct. Indeed, in the exercise of its equity powers, the district court may order disgorgement of profits acquired through securities fraud. Disgorgement takes into account the fact that the issuance of an injunction, by itself, does not correct the consequences of past activities. This remedy may also be imposed if the court believes that a defendant should not profit from his or her wrong, but equitable considerations indicate that an injunction should not be granted.[4]

Although not labelled "disgorgement," recovery of profits from the wrongful use of a patent or copyright belonging to another person or entity has a long history in US law. The US Supreme Court, in Sheldon v. Metro-Goldwyn Pictures Corp. (1940), stated:

Prior to the Copyright Act of 1909, there had been no statutory provision for the recovery of profits, but that recovery had been allowed in equity both in copyright and patent cases as appropriate equitable relief incident to a decree for an injunction.... That relief had been given in accordance with the principles governing equity jurisdiction, not to inflict punishment but to prevent an unjust enrichment by allowing injured complainants to claim "that which, ex aequo et bono, is theirs, and nothing beyond this."... Statutory provision for the recovery of profits in patent cases was enacted in 1870.

In Kokesh v. SEC (2017), the US Supreme Court unanimously disagreed with the view of the Security and Exchange Commission (SEC) that disgorgement in the case was remedial but held that disgorgement payments to the SEC in the case were penalties.[5] The decision raised the questions of whether the SEC's power to order disgorgement derives only from statute, which would make congressional action necessary for the SEC to pursue disgorgement orders in federal court, and of whether the amounts awarded should be limited to actual profits gained.[6] After Kokesh, the SEC has argued in district courts throughout the US that outside Kokesh in the statute of limitations context, disgorgement is not a penalty but an equitable remedy.[7]

Subsequently, in Liu v. SEC (2020), the US Supreme Court affirmed that disgorgement awards could be issued as equitable remedies by the SEC but could not exceed the wrongdoer's net profits, as under 15 U.S.C. § 77u(d)(5), and that they should be funds returned to the defrauded investors.[8]

Disgorgement is a remedy for violations of the UA Commodity Exchange Act. The purpose of such a remedy, as in securities cases, is "to deprive the wrongdoer of his or her ill-gotten gains and to deter violations of the law."[9] However, in such cases, the court may order disgorgement only up to "the amount with interest by which a defendant profited from his or her wrongdoing."[9]

Disgorgement payments to the SEC have for decades been considered completely equitable and compensatory and thus deductible under the Internal Revenue Code.[7][10] The December 2017 tax reform law provided that to be deductible, such payments must now be identified in the relevant court order or settlement agreement as serving one of a number of specific purposes, and the appropriate government official must report to the IRS the total amount of the payment and the amount of the payment that constitutes restitution or the amount paid to come into compliance with law.[7] The new law adds Section 6050X, which requires the government to file an IRS information return setting out any amount paid (over $600) in a suit or agreement to or at the direction of the government in relation to the violation of any law, and it must set forth any amount that is restitution or remediation.[11]

See also

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Notes

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References

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Disgorgement

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from Grokipedia
Disgorgement is an equitable legal remedy that compels a wrongdoer to forfeit any net profits obtained through unlawful or wrongful conduct, serving primarily to prevent unjust enrichment by depriving the violator of ill-gotten gains rather than to compensate specific victims or impose punishment. In practice, disgorgement functions as a deterrent mechanism in regulatory enforcement, most prominently wielded by the U.S. Securities and Exchange Commission (SEC) against securities law violators, where it targets gains from fraud, insider trading, or market manipulation to eliminate the economic incentive for misconduct. This remedy traces its roots to traditional equity principles akin to restitution but evolved distinctly in the 1970s through SEC actions, gaining formal statutory footing via amendments to the Securities Exchange Act. Distinguished from restitution, which restores losses to identifiable plaintiffs, and from , which may compensate harm or penalize , disgorgement measures recovery by the defendant's actual benefit, often without requiring proof of victim pecuniary loss—a point of ongoing judicial contention, as seen in circuit splits where some courts mandate harm tracing while others do not for agency actions. The U.S. Supreme Court's 2020 decision in Liu v. SEC clarified its permissible scope under , holding that disgorgement qualifies as equitable relief only when limited to net profits causally attributable to the violation and directed toward victim compensation, rejecting broader applications that might resemble penalties subject to shorter statutes of limitations. Beyond securities regulation, the remedy applies in antitrust enforcement, disputes, and breaches of fiduciary duty, underscoring its role in upholding causal accountability by aligning violators' incentives with lawful behavior.

Definition and Principles

Core Concept and Purpose

Disgorgement constitutes an that mandates a wrongdoer to forfeit any profits derived from illegal or wrongful conduct, thereby stripping the offender of economic benefits obtained through the violation. Unlike compensatory , which address the victim's losses, disgorgement targets the defendant's net gains to neutralize the financial incentive for misconduct. This approach rests on principles of equity, aiming to prevent the retention of ill-gotten gains without regard to whether those funds are redistributed to harmed parties. The primary purpose of disgorgement is to deter future violations by rendering wrongdoing economically unprofitable, as the offender cannot retain the fruits of the breach. By focusing on forfeiture rather than , it addresses at its source, ensuring that equity is restored through the denial of any advantage from the impropriety. Courts have emphasized that this remedy operates discretionarily, requiring traceability of profits to the specific violation to avoid overreach. In practice, calculations typically deduct legitimate expenses to yield net profits, as affirmed in the U.S. Supreme Court's 2020 decision in Liu v. SEC, which limited disgorgement to amounts exceeding the wrongdoer's costs and directed toward victim compensation where feasible. Disgorgement requires a wrongdoer to forfeit profits derived from unlawful conduct, measured by the defendant's net gains rather than the plaintiff's losses, distinguishing it from compensatory damages, which aim to reimburse the victim for actual harm suffered. Compensatory damages, a legal remedy available at law, focus on restoration of the injured party's position through calculation of direct economic or non-economic losses, such as out-of-pocket expenses or lost profits attributable to the violation. In contrast, disgorgement operates as an equitable remedy emphasizing deterrence by stripping illicit benefits, even if the victim has not suffered a corresponding loss or if tracing the gains to specific victims proves challenging, provided the award does not exceed net profits and benefits harmed parties. Unlike restitution, which seeks to reverse by returning the specific value of benefits conferred directly by the upon the , disgorgement does not require proof of a direct transfer from victim to wrongdoer and may apply to broader profits from the wrongdoing, such as those from breach of fiduciary duty without individualized victim tracing. Restitution, also equitable, prioritizes the plaintiff's loss or the 's enrichment from the plaintiff's property or services, often resulting in a narrower award calculated to prevent the from retaining any unjust benefit at the plaintiff's expense. For instance, in securities enforcement, the U.S. in Liu v. SEC (2020) clarified that disgorgement must be limited to net profits and distributed to victims to qualify as restitutionary and equitable, rejecting awards paid to the government treasury as impermissible penalties, thereby aligning it closer to victim-focused restitution while preserving its gain-based distinctiveness. Disgorgement further diverges from and civil penalties, which serve primarily to punish and deter through awards untethered to measured gains or losses, often multiplying compensatory amounts or following statutory formulas. , awarded in addition to compensation, target egregious conduct with variable multiples based on factors like reprehensibility, whereas disgorgement avoids such punitiveness by focusing solely on forfeiture of actual illicit profits, though the in Kokesh v. SEC (2017) classified it as a "penalty" for statutes of limitations purposes due to its deterrent effect beyond pure remediation. Civil penalties, by contrast, impose fixed or tiered fines per violation under regulatory statutes, independent of profits realized, emphasizing punishment over gain removal.
RemedyPrimary FocusMeasurement BasisKey PurposeEquitable/Legal Nature
DisgorgementDefendant's net gainsProfits from wrongdoing, net of legitimate expensesDeterrence; prevent Equitable
RestitutionBenefit from Value transferred or direct enrichmentRestore status quo for Equitable
Compensatory DamagesPlaintiff's lossesHarm or detriment sufferedMake victim wholeLegal
Punitive DamagesWrongdoer's Multiple of actual and general deterrenceLegal
Civil PenaltiesStatutory violationFixed or formulaic per violationSpecific deterrence and Statutory/legal
This table illustrates the remedial distinctions, with disgorgement's emphasis on defendant-side calculus enabling its use in regulatory contexts like securities or antitrust where victim identification is diffuse, unlike the plaintiff-centric approach of or restitution.

Statutory and Equitable Bases

Disgorgement derives from equitable principles developed in English and American courts of chancery, where it functioned as a restitutionary remedy to compel the surrender of profits obtained through wrongful conduct, such as breaches of fiduciary duty, thereby preventing without serving a punitive purpose. This equitable character requires that awards be limited to net gains causally attributable to the violation and directed toward remedying harm to victims rather than the public fisc. In Liu v. SEC (2020), the U.S. confirmed disgorgement's status as equitable relief under statutes like Section 21(d) of the , emphasizing traditional equity's focus on individualized restitution over generalized deterrence. Statutory authorizations for disgorgement emerged to codify and expand equitable practices, particularly in regulatory enforcement. Prior to explicit legislation, agencies like the Securities and Exchange Commission (SEC) invoked ancillary equitable powers under broad remedial provisions, as in Section 21(d)(1) of the Exchange Act, though courts imposed limits to align with equity's non-punitive nature. In Kokesh v. SEC (2017), the deemed SEC-ordered disgorgement a "penalty" for statute-of-limitations purposes under 28 U.S.C. § 2462, subjecting it to a five-year limit and highlighting tensions between equitable origins and administrative application. Congress responded with the for Fiscal Year 2021, adding Section 21(d)(7) to the Exchange Act, which expressly permits disgorgement of "any by the person that is derived from the violation," with a 10-year limitations period for scienter-based claims, thereby providing a distinct statutory basis potentially independent of equitable constraints. Beyond securities law, statutes in other domains incorporate disgorgement as a remedial tool. For example, the Clayton Act's Section 4 authorizes equitable relief in antitrust suits, which federal courts have construed to encompass disgorgement of monopoly profits where restitutionary principles apply, though awards remain subject to equitable discretion to avoid windfalls. Similar provisions appear in statutes, such as the Lanham Act's allowance for recovery of an infringer's profits in cases, calculated to reflect only those attributable to the violation. These statutory bases often build on equitable foundations but enable legislative tailoring of scope, limitations periods, and distribution mechanisms to specific enforcement needs.

Jurisdictional Variations

In the United States, disgorgement is a well-established primarily invoked by federal agencies such as the Securities and Exchange Commission (SEC) in securities enforcement actions, where it requires defendants to forfeit net profits derived from violations, with the in Liu v. SEC (2020) clarifying that awards must be limited to wrongdoers' net gains and directed to victims to qualify as equitable relief under Section 21(d) of the Securities Exchange Act of 1934. The remedy's scope was further constrained by Kokesh v. SEC (2017), which treated disgorgement as a penalty subject to a five-year under 28 U.S.C. § 2462, though agencies continue to pursue it alongside civil penalties in cases like and . State courts vary, with some applying disgorgement in fiduciary breach or IP disputes but often requiring proof of causation between the wrong and the profit gained. In the , disgorgement operates as an account of profits, an traditionally available for breaches of duty, confidence, or certain contractual obligations, but it is not punitive and demands precise tracing of illicit gains to the claimant. Regulatory bodies like the (FCA) may seek restitutionary orders under the Financial Services and Markets Act 2000, but pure disgorgement remains rare in competition enforcement by the (CMA), which prioritizes fines and behavioral remedies over profit-stripping due to evidentiary challenges in isolating antitrust-related gains. English courts have awarded it in exceptional contract cases akin to duties, as in Vercoe v Rutland Fund Management Ltd (2010), but deny it where compensatory suffice. Other common law jurisdictions exhibit similarities with adaptations. In Canada, provincial securities regulators like the Ontario Securities Commission impose disgorgement orders under statutory powers, as formalized in a 2025 framework for distributing recovered funds to harmed investors, emphasizing forfeiture of profits from misconduct without requiring victim-specific loss. The Supreme Court in Parfeniuk v Bank of Nova Scotia (2020) limited its availability in class actions to proven wrongful gains, rejecting broad waivers of tortfeasor defenses. Australian law, via the Australian Securities and Investments Commission (ASIC), gained explicit disgorgement powers through 2019 amendments to the Corporations Act 2001, allowing confiscation of profits from contraventions like misleading conduct, though pre-2019 reliance was on equitable accounts in fiduciary contexts. Civil law jurisdictions, by contrast, traditionally emphasize compensatory damages over gain-based disgorgement, viewing the latter as quasi-punitive and incompatible with loss-focused civil codes, though selective adoption occurs in specialized areas. In the under Regulation 1/2003 relies on fines by the for deterrence, with disgorgement absent at the EU level but emerging nationally—e.g., Germany's 2021 amendment to the Act Against Restraints of Competition enabled the Federal Cartel Office to disgorge infringement benefits starting in 2023, targeting untraceable fines. and permit profit forfeiture in IP infringement but restrict it in contracts to restitution of , not full disgorgement. This divergence reflects civil law's causal realism in remedies, prioritizing proven harm over deterrence via profit denial, unlike the broader equitable flexibility in systems.

Historical Development

Common Law Origins

The remedy of disgorgement, traditionally termed an accounting of profits, emerged within the English as an equitable response to breaches of duty, supplementing the rigid writ of account which often failed to capture complex gains due to evidentiary limitations. By the late , equity courts invoked this mechanism to compel defendants to disclose and forfeit profits derived from disloyal conduct, prioritizing the prevention of over compensatory . This approach drew from broader restitutionary principles, where the wrongdoer's gain was stripped irrespective of the claimant's loss, reflecting Chancery's flexible to achieve substantive justice beyond strict legal forms. Foundational precedents trace to fiduciary contexts, such as trusts and agencies. In Walley v. Walley (1687), the Chancery court enforced accountability for breaches involving personal representatives, establishing early grounds for profit forfeiture in loyalty violations. The doctrine crystallized in Keech v. Sandford (1726), decided by King on October 31, where a who secured a market lease renewal for himself—originally held in trust for an —was required to convey the to the trust, disgorging the entire benefit to uphold the no-conflict rule. This ruling imposed liability even absent fraud, bad faith, or beneficiary harm, mandating to avoid personal advantage from their position. Over the , the remedy expanded to partnerships, bailments, and breaches of confidence, as in cases where agents profited secretly from principal opportunities. Equity's process involved inquisitorial discovery of books and records, culminating in a for net profits after allowable deductions, distinct from punitive measures. This framework deterred by ensuring no net gain from wrongdoing, influencing later jurisdictions while remaining tethered to equitable discretion rather than automatic entitlement.

Expansion in Modern U.S. Jurisprudence

In the mid-20th century, disgorgement emerged as a key enforcement tool in U.S. securities law, with the U.S. of Appeals for the Second Circuit's decision in SEC v. Texas Gulf Sulphur Co. (404 F.2d 80, 1968) representing the first explicit judicial approval of the remedy to compel insiders to forfeit trading profits obtained through material nonpublic information, thereby extending equitable principles beyond traditional restitution to deter . This ruling built on the SEC's authority under Section 21(d) of the (15 U.S.C. § 78u(d)), which permits to grant equitable relief, and paved the way for routine application in civil enforcement actions starting in the 1970s, where federal ordered disgorgement of all traceable ill-gotten gains rather than limiting recovery to direct victim losses. By the 1980s and 1990s, the remedy expanded to encompass not only individual trader profits but also corporate benefits from violations like and fraudulent offerings, with adopting approximations for calculating gains when precise tracing proved challenging, as seen in cases like SEC v. Bilzerian (29 F.3d 689, D.C. Cir. 1994). The doctrine's growth extended beyond securities to antitrust and intellectual property contexts, where agencies like the invoked disgorgement for monopolistic overcharges or trademark infringements, though judicial skepticism often confined it to scenarios with clear causation between wrongdoing and profits, as evidenced by the FTC's limited successes in cases like FTC v. Amy Travel Service, Inc. (875 F.2d 564, 1st Cir. 1989). U.S. intervention in Kokesh v. SEC (581 U.S. 455, 2017) classified disgorgement as a "penalty" subject to the five-year under 28 U.S.C. § 2462, curbing retroactive applications but affirming its availability as non-punitive equitable relief when tied to victim compensation rather than general deterrence. This was refined in Liu v. SEC (591 U.S. 215, 2020), where the Court upheld disgorgement's equitable status only if awards are limited to defendants' net profits, disgorged on a non-joint-and-several basis, and distributed to harmed investors, rejecting broader uses that approximated penalties or benefited the U.S. Treasury. Statutory developments further entrenched and broadened disgorgement's role; the for 2021 (Pub. L. No. 116-283, § 6502, Jan. 1, 2021) codified the SEC's authority under 15 U.S.C. § 78u(d)(7), explicitly authorizing disgorgement without requiring strict victim identification, permitting a 10-year limitations period for certain frauds involving , and facilitating "fair funds" for investor restitution, which mitigated Liu's constraints and signaled congressional endorsement of expanded enforcement flexibility. Critics, including some federal judges and scholars, have argued this evolution transformed disgorgement from a restorative measure into a civil fine, potentially exceeding equitable bounds by including non-traceable gains or overhead costs, as debated in post-Liu litigation where courts scrutinized approximations for overreach. Nonetheless, its integration into modern remedial frameworks has enhanced deterrence in high-stakes violations, with SEC actions yielding billions in disgorged funds annually by the 2010s, distributed via the Investor Protection Fund established under the Dodd-Frank Act of 2010 (Pub. L. No. 111-203).

Securities Regulation

In securities regulation, disgorgement serves as a primary equitable remedy employed by the U.S. Securities and Exchange Commission (SEC) in civil enforcement actions to compel violators of federal securities laws to forfeit profits derived from unlawful conduct, such as insider trading, market manipulation, or fraudulent misrepresentations. This remedy aims to prevent unjust enrichment by stripping defendants of net gains attributable to the violation, with recovered funds distributed to harmed investors where feasible, rather than serving punitive purposes. Unlike civil penalties, which are explicitly punitive and subject to stricter statutory caps, disgorgement focuses on restitutionary principles rooted in equity, though courts have imposed requirements for traceability to specific victims to maintain its non-penal character. The statutory authority for SEC disgorgement derives from Section 21(d) of the , codified at 15 U.S.C. § 78u(d)(5), which empowers district courts to grant "any equitable relief that may be appropriate or necessary for the benefit of investors." Historically, the SEC invoked this provision alongside inherent equitable powers of federal courts, but the U.S. in Kokesh v. SEC (2017) classified disgorgement as a "penalty" for statute-of-limitations purposes under 28 U.S.C. § 2462, imposing a five-year limitations period from the date the claim accrues. In that case, the Court upheld a $34.9 million disgorgement order against Charles Kokesh for misusing funds from registered investment companies but ruled that older violations fell outside the enforceable window, limiting the SEC's reach for stale claims. Subsequent clarification came in Liu v. SEC (2020), where the affirmed disgorgement's availability as equitable relief under § 78u(d)(5) provided it adheres to traditional equity principles: awards must reflect only the wrongdoer's net profits from the violation (excluding innocent third-party deductions unless jointly liable) and must be directed to identifiable victims rather than the general public fisc. The case involved Charles Liu and his wife, who raised $26.7 million from investors under false pretenses for a purported center, retaining most funds for personal use; the Court vacated a full disgorgement order exceeding net profits and remanded for recalculation. In response, Congress enacted Section 6501 of the for Fiscal Year 2021, codifying disgorgement explicitly and extending the to ten years for scienter-based violations (e.g., under Section 10(b)), with tolling for defendants outside U.S. . Application of disgorgement varies by violation type and circuit. In insider trading cases, courts routinely order disgorgement of trading profits plus prejudgment interest; for instance, in SEC v. Texas Gulf Sulphur Co. (1968), a foundational case, executives forfeited gains from trades on undisclosed mineral discoveries. Fraudulent offering cases, like SEC v. Brown (2d Cir. 2011), have upheld awards where misappropriated investor funds caused direct pecuniary harm. However, post-Liu circuit splits have emerged: the Second Circuit in SEC v. Govil (2023) barred disgorgement absent proof of investor losses, reasoning that failed benefit-of-the-bargain schemes may not yield violator profits if no harm occurred, creating tension with circuits permitting awards based solely on defendant's gains. The SEC distributed over $3.2 billion in disgorgement in fiscal year 2022, often alongside penalties, underscoring its role in deterrence without overstepping equitable bounds.

Antitrust Enforcement

Disgorgement in antitrust enforcement serves as an equitable remedy compelling violators of competition laws to forfeit profits derived from anticompetitive conduct, thereby eliminating incentives to retain ill-gotten gains and deterring future violations without compensating specific victims. Unlike treble damages under the Clayton Act, which focus on private harm, disgorgement targets the defendant's net gains from the violation, often calculated by estimating counterfactual profits absent the illegal acts. This remedy derives authority from courts' equitable powers under statutes like Section 4 of the Sherman Act for the Department of Justice (DOJ) and Section 13(b) of the Federal Trade Commission (FTC) Act for the FTC, though its application has been limited by proof burdens and judicial interpretations. The DOJ has infrequently pursued disgorgement in civil antitrust suits, emphasizing it in monopolization cases under Section 2 of the Sherman Act to prevent retention of monopoly overcharges. A notable instance occurred in United States v. KeySpan Corp. (2010), where the DOJ secured a $12 million disgorgement settlement from for profits gained through a bidding agreement that suppressed competition in New York's electricity capacity market between 1997 and 2004. State attorneys general have also invoked disgorgement under Section 16 of the Clayton Act, which permits equitable relief for past antitrust injuries; for example, a 2021 New York federal court ruling affirmed states' ability to seek nationwide disgorgement from defendants in delay cases, rejecting extraterritorial limits on such claims. However, courts have sometimes dismissed these claims when tied exclusively to past conduct, as in a ruling under Section 16 prohibiting retrospective monetary relief without ongoing threats. Prior to 2021, the FTC frequently sought disgorgement in antitrust matters involving "unfair methods of competition," such as reverse-payment settlements in pharmaceuticals that delayed generic entry. Examples include actions against Endo Pharmaceuticals and for pay-for-delay agreements, where the FTC aimed to recover hundreds of millions in excess monopoly profits, and two cases between 2003 and 2012 yielding such orders. The U.S. Supreme Court's unanimous decision in AMG Capital Management, LLC v. FTC (April 22, 2021) curtailed this practice, holding that Section 13(b) authorizes only injunctive relief, not monetary remedies like disgorgement, thereby overturning decades of lower-court precedents and limiting FTC access to such tools absent administrative proceedings under Sections 5 or 19. Post-AMG, disgorgement remains viable for DOJ and states but faces practical hurdles, including complex causation analyses to isolate illegal profits from legitimate ones, which critics argue renders it underutilized despite its potential to revive enforcement in hard-to-prove monopolization suits. Proponents advocate expanded use to address enforcement gaps, particularly in monopsony or innovation markets, where traditional damages prove elusive, though empirical evidence on its deterrence efficacy remains sparse due to rarity of awards. Legislative proposals have emerged to restore FTC monetary authority, but as of 2023, no comprehensive statutory overhaul has materialized, leaving reliance on case-by-case equitable discretion.

Intellectual Property Disputes

Disgorgement in disputes functions primarily as a restitutionary remedy to eliminate the economic benefits derived from infringement, thereby deterring without necessarily compensating the rights holder's losses. This approach aligns with equitable principles, focusing on the infringer's gains rather than punitive measures, though calculations often require to isolate profits causally linked to the violation. Under the Copyright Act, 17 U.S.C. § 504(b), copyright owners may recover the infringer's profits as an alternative or supplement to actual , provided they establish the 's gross revenue attributable to the infringement; the burden then shifts to the to deduct allowable expenses. This mechanism, enacted in 1976, aims to prevent infringers from retaining any net gains, but courts apply equitable adjustments, such as for non-infringing contributions, to avoid over-recovery. For instance, in cases involving derivative works, disgorgement targets only profits exceeding what the infringer would have earned absent the copying. In trademark infringement actions governed by the (15 U.S.C. § 1117(a)), courts may order disgorgement of the defendant's profits, subject to principles of equity, without a prerequisite of willful misconduct, as clarified by the in Romag Fasteners, Inc. v. Fossil, Inc. (590 U.S. 255 (2020)). The remedy extends to cases of consumer confusion, with plaintiffs needing to prove sales but not precise profit causation, allowing courts discretion to estimate based on evidence. However, the 's unanimous ruling in Dewberry Group, Inc. v. Dewberry Engineers Inc. on February 26, 2025, restricted awards to profits directly traceable to the named defendant, rejecting imputation from non-party affiliates unless corporate separateness is disregarded under traditional veil-piercing doctrines; this vacated a $43 million award, emphasizing statutory limits on "defendant's profits." Patent law generally eschews disgorgement for utility patents, favoring compensatory damages under 35 U.S.C. § 284—such as lost profits or reasonable royalties—to reflect the patentee's exclusionary right without awarding the infringer's full gains, a shift codified in the 1946 amendments to avoid windfalls. Design patents provide an exception via 35 U.S.C. § 289, mandating recovery of "the total profit" from all infringing "articles of manufacture," interpreted broadly in Samsung Electronics Co. v. Apple Inc. (580 U.S. 52 (2016)) to encompass multi-component products like smartphones, potentially yielding substantial awards (e.g., Apple's $399 million recovery against Samsung for design elements in Android devices). Apportionment remains contentious, with courts dissecting profits tied to the patented design versus unpatented features.

Contract and Fiduciary Contexts

In fiduciary relationships, disgorgement compels the breaching party to surrender all profits derived from the violation of duties such as or prudence, irrespective of any loss to the . This prioritizes deterrence of self-interest over compensation for harm, tracing origins to principles that prohibit from profiting at the expense of their principals. Courts apply it broadly to directors, officers, trustees, and agents, including forfeiture of fees or salaries earned during disloyal conduct. For example, in Kaye v. Rosefielde (2015), the Supreme Court upheld disgorgement of an employee's compensation for breach of fiduciary duty, even without proven economic damage to the employer, emphasizing the remedy's role in upholding . Fiduciary disgorgement calculations typically encompass the full net gains from the breach, net of but excluding hypothetical alternatives the fiduciary might have pursued loyally. This approach contrasts with compensatory by focusing solely on the wrongdoer's enrichment, as affirmed in federal and state precedents where principals recover secret profits without offsetting benefits. Recent applications include multimillion-dollar orders against advisors for , such as a 2025 ruling mandating $259 million in disgorgement from conflicted transactions. In contract , disgorgement diverges from the standard by targeting the breacher's gains from opportunistic violations, though U.S. courts apply it sparingly absent overlays or statutory mandates. It gains traction where measuring losses proves infeasible or where the breach yields disproportionate profits, as in cases of willful non-performance conferring alternative benefits. The Restatement (Third) of § 39 endorses it for knowing breaches producing net gains exceeding the promisee's expectancy, aiming to neutralize incentives for efficient but opportunistic repudiation. Judicial adoption remains jurisdiction-specific; for instance, courts have extended disgorgement to benefits from withholding , akin to prejudgment , but critics note measurement challenges undermine its efficiency beyond such narrow uses. The U.S. has invoked it in interstate compact disputes resembling contracts, awarding $1.8 million atop compensatory relief in a 2010s water-rights case to deter deliberate breaches. Appellate rulings, like a 2023 Fourth Circuit decision, affirm its suitability alongside contract breaches involving willful gain-seeking, provided causation links the profits to the violation. Scholars contend reasoned discretion prevents overreach, preserving contract 's compensatory core while addressing gaps in traditional remedies.

Judicial Interpretations and Precedents

Calculation Methodologies

Disgorgement calculations generally seek to identify and strip wrongdoers of net profits causally attributable to the violation, deducting only legitimate expenses directly connected to the illicit gains rather than overhead or unrelated costs. Courts permit reasonable approximations when precise tracing proves infeasible, placing the initial burden on enforcers to demonstrate gross gains before shifting to defendants for deductions. This methodology distinguishes disgorgement from compensatory damages by focusing on the defendant's enrichment rather than victim losses, though post-Liu v. SEC (2020), awards must align with victims' restitution where possible. In securities enforcement, the U.S. Securities and Exchange Commission (SEC) typically computes disgorgement by measuring realized trading profits or avoided losses from insider information, using before-and-after market price comparisons or hypothetical trading models. Legitimate expenses, such as brokerage commissions, are subtracted to yield net profits, but speculative or non-traceable costs are often disallowed; for instance, in Liu v. SEC, the mandated deductions limited to those yielding a "bona fide" net figure, rejecting joint-and-several liability for non-participants' gains. On remand in Liu, the Ninth Circuit upheld a court's apportionment excluding non-violative contributions, affirming that calculations must exclude innocent co-investors' funds. Pre-Liu practices sometimes inflated awards by basing them on gross investor losses, but subsequent rulings enforce stricter net-profit limits, with 2023 data showing SEC awards averaging $1.2 million per case after deductions. Antitrust disgorgement, though rarely imposed due to proof burdens, quantifies illicit gains such as monopoly overcharges retained by defendants or profits exceeding competitive benchmarks, often via econometric models comparing actual revenues to counterfactual "but-for" scenarios absent the violation. Courts require causal linkage, disallowing awards where gains stem from lawful efficiencies; for example, (FTC) methodologies in merger challenges subtract verifiable costs like production expenses but reject broad overhead allocations. In limited precedents, such as FTC v. H.J. Heinz Co. (2002), approximations used data to estimate diverted profits, emphasizing defendant's enrichment over victim harm. Intellectual property disputes employ to isolate profits attributable to the infringement, with defendants bearing the burden to prove costs after plaintiffs establish total revenues from infringing sales. In cases under 17 U.S.C. § 504(b), courts deduct direct expenses like but apportion for non-IP factors (e.g., 50% attribution if branding contributed equally), as in Sheldon v. Metro-Goldwyn Pictures Corp. (1936). Trademark disgorgement, per Romag Fasteners, Inc. v. Fossil, Inc. (2020), follows similar net-profit rules without requiring willfulness, using sales data minus proven deductions; awards under 35 U.S.C. § 289 mandate total infringing profits without apportionment, as affirmed in Samsung Electronics Co. v. Apple Inc. (2016). Fiduciary and contract breaches analogously compute gains from disloyal acts, tracing traceable assets or using surrogate measures like opportunity costs. Challenges in implementation include causation disputes—e.g., proving violation-induced profits—and valuation of non-monetary benefits, prompting courts to favor conservative estimates to avoid overreach. Recent SEC guidance post-2020 emphasizes for net figures, reducing disputes but increasing litigation over expense legitimacy.

U.S. Supreme Court Rulings

In Kokesh v. SEC, 581 U.S. 455 (2017), the Supreme Court unanimously ruled that disgorgement ordered in Securities and Exchange Commission (SEC) enforcement actions constitutes a "penalty" for purposes of 28 U.S.C. § 2462, thereby subjecting such claims to a five-year statute of limitations. The case arose from SEC allegations that Charles Kokesh violated antifraud provisions by holding investment seminars and misusing attendee funds for personal expenses from 1995 to 2009; a jury found liability, leading a district court to impose $34.9 million in disgorgement plus $18 million in prejudgment interest. The Court reasoned that disgorgement serves penal objectives by deterring violations and benefiting the public rather than solely remedying harm, distinguishing it from purely compensatory measures; it declined to resolve whether disgorgement qualifies as equitable relief under securities statutes but emphasized its punitive character imposed for civil penalties. The Kokesh decision resolved a circuit split and curtailed the SEC's ability to pursue disgorgement for violations predating the five-year window, prompting the agency to accelerate investigations and file actions earlier, though it preserved disgorgement's availability within the limitations period. In SEC v. Liu, 591 U.S. ___ (2020), an 8-1 majority upheld disgorgement as permissible "equitable relief" under Section 21(d) of the Securities Exchange Act of 1934, provided it adheres to traditional equity principles: limiting awards to the wrongdoer's net profits (after deducting legitimate expenses) and directing funds to identifiable victims rather than the U.S. Treasury. Petitioners Charles Liu and Xin "Lisa" Wang raised approximately $27 million from Chinese investors in an EB-5 visa program promising cancer-treatment centers, but diverted most funds to marketing and personal uses without constructing facilities; the SEC sought full disgorgement without offsets. The Court rejected joint-and-several liability for disgorgement absent individualized fault findings and cautioned against imposing it on innocent third-party gains or non-wrongdoer profits, distinguishing compliant disgorgement from the penal variety addressed in Kokesh. Justice Sotomayor dissented, arguing the majority's constraints misaligned with statutory text authorizing broad equitable remedies. The Liu ruling clarified boundaries to prevent disgorgement from functioning punitively or confiscatorily, influencing lower courts to scrutinize calculations for net-profit deductions and victim restitution, while Congress later codified expanded SEC disgorgement authority in the 2021 National Defense Authorization Act to override some limits. In Dewberry Group, Inc. v. Dewberry Engineers Inc., No. 23-900 (2025), the Supreme Court unanimously held that disgorgement of profits under Section 35(a) of the Lanham Act, 15 U.S.C. § 1117(a), is confined to gains attributable to the named defendant, excluding affiliates' profits absent veil-piercing evidence or direct liability. Dewberry Engineers sued Dewberry Group for trademark infringement over use of the "Dewberry" mark in real estate despite a 2007 settlement; a district court awarded nearly $43 million in disgorgement, attributing affiliates' revenues to Group based on common control and branding. The Court reversed the Fourth Circuit's affirmance, interpreting "defendant's profits" literally to require traceability to the sued entity's conduct and rejecting imputation theories that bypass corporate separateness without extraordinary justification, thereby reinforcing limits on expansive profit-stripping in trademark cases. This decision narrows remedies in intellectual property disputes, prioritizing precise attribution over broad deterrence through affiliate liability.

Federal Circuit Developments

In Texas Advanced Optoelectronic Solutions, Inc. v. Renesas Electronics America, Inc., decided May 1, 2018, the Federal Circuit ruled that of profits for constitutes an under both the Texas Uniform Trade Secrets Act and , thereby denying a Seventh Amendment right to on the amount. The district court jury had awarded TAOS approximately $48 million in defendant's profits attributable to misappropriated designs shared during failed merger talks, but the vacated this portion of the verdict due to the absence of historical for jury-determined disgorgement in analogous equity proceedings and remanded for on the remedy's appropriateness and quantum. The decision clarified that while disgorgement remains available to prevent , it requires judicial findings on causation—linking the misappropriation directly to the profits—rather than speculative awards. The litigation's continuation, restyled as AMS-OSRAM USA Inc. v. Renesas Electronics America, Inc. and resolved April 4, 2025, further refined disgorgement methodologies in cases. Affirming a $8.546 million disgorgement award for Renesas's (successor to ) sales of infringing sensors to Apple, the court upheld inclusion of post-"head start" profits where misappropriation secured wins, rejecting rigid temporal limits absent evidence of independent development. It mandated deduction of only causally tied to the misappropriated secrets for net profit calculation, vacated an erroneous across-the-board cost deduction as overbroad, but deemed the error harmless given the district court's conservative apportionment. The ruling emphasized avoiding double recovery by crediting concurrent contract royalty awards against disgorgement, aligning with equitable principles under the . In design patent infringement, governed by 35 U.S.C. § 289's mandatory total-profit disgorgement, the Federal Circuit has addressed remedial mechanics post-Samsung Electronics Co. v. Apple Inc. (2016). In Columbia Sportswear North America, Inc. v. Seirus Innovative Accessories, Inc., issued September 15, 2023, the court remanded profit-disgorgement calculations for heat-reflective material designs, directing clarification on whether statutory remedies under § 289 entitle parties to or bench determination, while affirming liability and the need to apportion profits to the patented article of manufacture. This built on prior precedents limiting disgorgement to net gains causally attributable to the infringement, excluding unrelated revenues. These rulings reflect the Federal Circuit's consistent application of first-principles equity to disgorgement—prioritizing net unjust gains over punitive measures—while integrating statutory mandates in IP , often requiring remand for precise causation and analyses to ensure remedies neither under- nor over-compensate.

Controversies and Criticisms

Equitable Limits vs. Punitive Overreach

Disgorgement, as an , is confined to recovering a wrongdoer's net profits causally attributable to the violation, with such funds directed toward victim compensation to prevent rather than to impose . This principle traces to historical equity practices, such as in breaches where trustees disgorge only gains net of legitimate expenses, ensuring the remedy restores the without exceeding compensatory bounds. Courts have emphasized that equitable disgorgement must avoid elements of deterrence or retribution, which characterize penalties subject to stricter procedural safeguards like proof beyond a preponderance of or trials. Critics of agency practices prior to judicial clarifications argued that disgorgement frequently crossed into punitive overreach, such as when regulators like the SEC calculated awards based on gross revenues without deducting costs, imposed joint-and-several liability on multiple defendants without apportionment, or deposited recoveries into the U.S. Treasury rather than distributing them to harmed investors. In Kokesh v. SEC (2017), the characterized such disgorgement as functioning as a penalty due to its non-restitutive applications, subjecting it to a five-year under 28 U.S.C. § 2462, distinct from the equitable goal of victim restoration. This overreach risked double recovery—pairing disgorgement with civil fines—or punishing innocent parties through untraced funds, undermining the causal link between violation and gain required for equity. The U.S. Supreme Court's decision in Liu v. SEC (June 22, 2020) imposed explicit limits to realign disgorgement with equitable principles, holding that awards under § 21(d)(5) of the must not exceed net profits, must be awarded for victims, and should generally track individual wrongdoing to avoid punitive effects. The Court rejected the SEC's broader interpretations, noting that deviations—like non-victim allocations—transform the remedy into an unauthorized penalty lacking statutory basis in equity jurisdiction. Post-Liu, agencies face heightened scrutiny in proving net calculations and victim identification, with circuit courts diverging on requirements such as direct evidence of investor losses; for instance, the Second Circuit has mandated proof of pecuniary harm, while the Ninth Circuit has allowed disgorgement without it if funds benefit the public fisc indirectly. Despite these constraints, debates persist over residual overreach, particularly in implementation where estimating "net profits" involves subjective deductions for business expenses or where unidentifiable victims lead to deposits, potentially reviving punitive aspects. Legal analysts contend that without rigorous causation analysis—distinguishing violation-linked gains from unrelated revenues—disgorgement risks over-deterrence, chilling legitimate risk-taking in fields like securities trading or , as empirical studies on penalty-like remedies show diminished compliance incentives beyond restitution. Proponents of stricter limits argue for statutory codification to enforce 's boundaries across agencies, preventing equitable labels from masking punitive goals unsupported by legislative intent.

Practical Challenges in Implementation

One primary challenge in implementing disgorgement lies in accurately calculating net profits attributable to the violation, as required by the U.S. Supreme Court's ruling in Liu v. SEC (2020), which mandates deducting legitimate business expenses from gross gains to avoid penalizing lawful activities. Determining which expenses qualify as "legitimate" proves contentious, particularly in cases involving intertwined legal and illegal conduct, such as where operational costs support both compliant and non-compliant operations; courts must apportion expenses, often relying on subjective economic analyses that invite disputes and prolong proceedings. This ambiguity has led to inconsistent rulings, with lower courts struggling to define boundaries, exacerbating resource demands on enforcers like the SEC. Attributing profits solely to the wrongdoing presents further difficulties, requiring proof of causation—that gains would not have occurred but for the violation—which demands complex modeling of counterfactual scenarios, such as estimating monopoly overcharges in antitrust cases or isolating infringing contributions in disputes. In antitrust enforcement, for instance, agencies like the FTC rarely pursue disgorgement—employing it in only 11 cases historically—due to the challenge of disentangling illegal profits from market dynamics or pre-existing advantages, risking erroneous awards that either under-deter violations or confiscate lawful earnings. Similarly, in IP contexts, apportioning profits to the specific infringing feature amid multi-component products often yields underestimations, as total revenue streams obscure direct links, prompting courts to default to proxies that may not reflect true ill-gotten gains. For joint wrongdoers, allocating disgorgement shares complicates enforcement, as Liu limits joint-and-several liability to avoid windfalls, yet practical division among multiple defendants—common in securities or cartel cases—relies on imprecise fault-based metrics, fostering litigation over relative contributions. Tracing dissipated or commingled funds adds enforcement hurdles, particularly when assets are offshore or reinvested, diminishing recoverable amounts despite initial calculations. Distributing disgorged funds to victims, mandated post-Liu to align with equitable principles, encounters logistical barriers in identifying harmed parties, especially in diffuse harms like market-wide securities manipulation where individual losses are hard to quantify or trace. Agencies must devise claims processes and notification protocols, but infeasibility—such as unidentifiable investors in insider trading schemes—often results in Treasury deposits, undermining remedial intent and sparking challenges over fund adequacy. These implementation frictions contribute to disgorgement's selective use, as enforcers weigh protracted, costly adjudications against deterrence benefits.

Debates on Deterrence Efficacy

Proponents of disgorgement argue that it enhances deterrence by eliminating the financial for , as wrongdoers cannot retain profits derived from violations, thereby signaling to potential actors that unlawful gains will be forfeited. In securities enforcement, for instance, the U.S. Securities and Exchange Commission (SEC) has long maintained that disgorgement serves this purpose by depriving violators of ill-gotten gains, a view echoed in federal courts prior to statutory limitations. Similarly, in antitrust contexts, advocates contend that disgorgement prevents retention of monopoly profits, fostering compliance where fines alone might fall short due to underestimation of harms. Critics, however, question its practical deterrent value, asserting that disgorgement's effectiveness hinges on enforcement certainty rather than mere profit forfeiture, aligning with broader criminological findings that the probability of detection outweighs punishment severity in altering behavior. In intellectual property disputes, scholarly analysis highlights a misalignment: disgorgement targets overall profits rather than incremental gains from infringement, potentially failing to calibrate deterrence to the specific wrongful act and risking over-deterrence of innovative but risky activities. Moreover, joint-and-several liability in multi-defendant cases can dilute individual accountability, as shared payments may not impose proportional costs, undermining the intended signal to future actors. Empirical evidence directly assessing disgorgement's causal impact on violation rates remains scarce, with most evaluations relying on theoretical rationales or anecdotal case outcomes rather than controlled studies measuring pre- and post-remedy trends. One analysis of SEC awards over nine years documented substantial recoveries but did not isolate deterrence effects from concurrent penalties or regulatory changes. U.S. rulings, such as Kokesh v. SEC (2017), have acknowledged disgorgement's deterrent intent while classifying it as a penalty subject to time limits, implicitly raising concerns about its standalone efficacy absent complementary measures like heightened . In fiduciary and contract settings, alternatives like or may better target repeated offenders, as disgorgement's focus on past gains offers limited marginal deterrence for high-uncertainty violations. These debates persist amid institutional biases in enforcement data, where agencies like the SEC emphasize success metrics that may overstate deterrence by conflating recovery volumes with behavioral change, potentially overlooking underreporting of undetected violations. Overall, while disgorgement theoretically aligns incentives with compliance, its real-world deterrent power appears constrained by evidentiary gaps and implementation challenges, prompting calls for hybrid approaches integrating it with probability-enhancing tools.

Recent Developments

Legislative Responses to Judicial Limits

In response to the U.S. Supreme Court's rulings in Kokesh v. SEC (2017), which classified SEC disgorgement as a penalty subject to a five-year , and Liu v. SEC (2020), which restricted disgorgement to net profits awarded to identifiable victims under equitable principles, Congress enacted amendments via Section 6501 of the for Fiscal Year 2021 (NDAA), signed into law on January 1, 2021. These amendments to Section 21(d) of the explicitly authorized the SEC to seek disgorgement in federal court of "any by the person who received it" resulting from securities violations, aiming to codify and broaden the agency's longstanding practice beyond the judicially imposed equitable constraints. The NDAA provisions established distinct statutes of limitations for disgorgement claims: ten years from the date of the violation for cases involving , deceit, manipulation, or deliberate violations, and five years for other violations, effectively extending recovery periods for intentional misconduct while distinguishing disgorgement from civil penalties. This applied retroactively to both pending and future SEC enforcement actions filed in federal court, enabling the agency to pursue disgorgement in older cases without solely relying on equitable remedies. Critics, including some legal scholars, argued that the amendments risked undermining Liu's equitable limits by permitting disgorgement of gross without mandatory victim distribution or net-profit deductions, potentially transforming the remedy into a punitive measure despite its statutory framing. However, subsequent interpretations have varied: the Fifth Circuit in SEC v. Hallam (2022) upheld broader SEC authority under the NDAA to seek disgorgement even absent direct victim harm, while the Second Circuit in SEC v. Govil (2023) imposed stricter traceability requirements akin to Liu, highlighting ongoing tensions between legislative intent and judicial oversight. No further major federal legislation addressing these limits has been enacted through 2025, leaving resolution to potential intervention amid persistent appellate conflicts.

Ongoing Appellate Conflicts

A principal ongoing appellate conflict concerning disgorgement in U.S. securities enforcement involves a circuit split over whether the Securities and Exchange Commission (SEC) must demonstrate pecuniary harm to specific victims to justify an award, or whether disgorgement of a defendant's ill-gotten gains suffices even absent uniform investor losses. This dispute stems from interpretations of the Supreme Court's 2020 decision in Liu v. SEC, which upheld disgorgement as an equitable remedy under 15 U.S.C. § 78u(d)(5) but imposed limits, including that awards represent net profits "for the benefit of victims." The Second Circuit, in SEC v. Govil (2023), ruled that disgorgement is unavailable where no victims suffered measurable financial harm, emphasizing that equitable relief must trace directly to injured parties rather than serve as a proxy for penalties; the court vacated a $1.3 million , holding that the SEC failed to identify harmed investors despite the defendant's $724,000 profit from . In contrast, the Circuit's September 2025 decision in SEC v. Sripetch affirmed a $2.25 million disgorgement order without requiring proof of pecuniary loss to all affected investors, aligning with the First and Fifth Circuits' view that permits awards of actual gains obtained through violations, distributable to the if victim tracing proves infeasible. The Sripetch panel explicitly rejected Govil's stricter standard, arguing it misreads 's focus on preventing over perfect victim compensation. This split persists following the Supreme Court's June 2025 denial of in Navellier & Associates, Inc. v. SEC, a Ninth Circuit case involving similar issues of disgorgement without direct victim harm, leaving lower courts divided on scope. As of October 2025, petitioners have urged the to resolve the conflict, citing inconsistent application in SEC actions and potential for forum-shopping by regulators. The divergence affects case outcomes, with Second Circuit jurisdictions imposing higher evidentiary burdens on the SEC compared to others, potentially undermining uniform deterrence of securities violations. Separate tensions arise in the Federal Circuit regarding disgorgement's role in disputes, though fewer remain unresolved post-2025 Supreme Court intervention. For instance, while the Court vacated a Fourth Circuit disgorgement award in Dewberry Group, Inc. v. Dewberry Engineers Inc. (February 2025) for failing to apportion profits to infringing sales, this clarified limits without spawning new appellate battles. Ongoing Federal Circuit applications, such as in misappropriation cases, continue to test disgorgement against contract damages, but lack the breadth of the SEC split.

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  87. https://www.ropesgray.com/en/news-and-events/news/2023/06/on-3rd-anniversary-of-liu-v-sec-amy-longo-and-brooke-cohen-discuss-disgorgement-remedy-in-law360
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  93. https://www.klgates.com/liu-v-sec-the-supreme-court-limits-the-secs-disgorgement-power-and-sets-the-stage-for-future-legal-battles-06-24-2020
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  96. https://www.orrick.com/en/insights/2018/06/federal-circuit-illuminates-right-to-disgorgement-as-remedy-for-trade-secret-misappropriation
  97. https://cafc.uscourts.gov/opinions-orders/22-2185.OPINION.4-4-2025_2493736.pdf
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  102. https://www.omm.com/insights/alerts-publications/disagreeing-with-the-second-circuit-the-ninth-circuit-holds-that-the-sec-can-obtain-disgorgement-without-having-to-prove-victim-losses/
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  104. https://www.kslaw.com/attachments/000/008/060/original/ca071020.pdf?1594396587
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  108. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3955&context=dlj
  109. https://www.dlapiper.com/en-us/insights/publications/2021/01/congress-expands-sec-enforcement-authority
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  111. https://www.americanbar.org/groups/business_law/resources/business-law-today/2021-february/sec-disgorgement-authority-may-be-limited/
  112. https://www.hklaw.com/en/insights/publications/2021/10/fifth-circuit-secs-plan-for-distributing-disgorged-amounts
  113. https://www.mondaq.com/unitedstates/securities/1684350/ninth-circuit-decision-deepens-circuit-split-on-whether-sec-can-seek-disgorgement-in-civil-enforcement-actions-involving-uninjured-investors
  114. https://www.hsfkramer.com/insights/2025-09/ninth-circuit-affirms-sec-disgorgement-award-without-pecuniary-harm-showing-deepening-circuit-split
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  116. https://cdn.ca9.uscourts.gov/datastore/opinions/2025/09/03/24-3830.pdf
  117. https://www.law360.com/articles/2400895/justices-urged-to-review-circ-split-over-sec-disgorgement
  118. https://www.iptechblog.com/2025/04/federal-circuit-upholds-major-trade-secrets-and-contract-damages-award-in-dispute-stemming-from-failed-merger-talks/
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