SCOTUS: Supreme Court likely to preserve SEC power to recoup fraud money

The Supreme Court seemed prepared Tuesday to preserve an important tool that federal securities regulators used last year to recoup $3.2 billion in ill-gotten gains in fraud cases.

At most, the justices might impose some limits on how the Securities and Exchange Commission seeks repayment, or disgorgement, of profits from people who have been found to violate securities law.

But no one on the court appeared ready to say that the SEC lacks the power to ask a federal court to order repayment of money obtained through fraud. That was the argument made by a lawyer for a husband and wife who were ordered to cough up $27 million after a federal court found they engaged in a fraudulent scheme to lure Chinese investors to back a cancer center in southern California.

“Isn’t it an equitable principle that no one should be allowed to profit from his own wrong?” Justice Ruth Bader Ginsburg asked Gregory Rapawy, the lawyer for Charles Liu and Xin “Lisa” Wang.

He responded that his clients should not be worse off than they were. Liu and Wang together reaped profits of $8.2 million from their scheme, but were ordered to repay $27 million based on what investors poured into the fraudulent project. the bulk of it was used for marketing and property development, Rapawy said.

Liu and Wang are relying on a unanimous Supreme Court decision in 2017 that already limited the SEC’s ability to go after profits where alleged fraud has been going on for years before authorities file charges.

The 2017 case left open whether courts have the authority to order disgorgement of profits. The SEC meanwhile has continued to aggressively pursue defendants’ profits in fraud cases. A year ago, for instance, the SEC persuaded a federal judge in Florida to order defendants in an alleged Ponzi scheme to repay $892 million in profits.

A decision in Liu v. SEC, 18-1501, is expected by late June.