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U.S. SEC wrongly collected $14.9 billion from defendants: lawsuit
October 27, 2017 / 9:28 PM / a month ago

U.S. SEC wrongly collected $14.9 billion from defendants: lawsuit

BOSTON (Reuters) - The U.S. Securities and Exchange Commission has been hit with a class action lawsuit seeking to recover $14.9 billion that lawyers for an investment firm’s liquidating trustee say should not have been collected given a recent U.S. Supreme Court ruling.

The lawsuit was filed in federal court in Boston on Thursday by the liquidating trustee for F-Squared Investment Management LLC, who contends the firm paid the securities regulator $30 million that the SEC was not actually authorized to collect.

The Supreme Court in June scaled back the SEC’s power to recover ill-gotten profits from defendants’ misconduct, handing Wall Street firms a victory and dealing a blow to the regulator’s enforcement powers.

The Supreme Court ruled that the SEC’s ability to have defendants disgorge the sums they earned while violating securities laws was subject to a five-year statute of limitations.

The justices sided with New Mexico-based investment adviser Charles Kokesh, who had been ordered by a judge to pay $2.4 million in penalties plus $34.9 million in disgorgement of illegal profits after the SEC sued him.

Alex Lipman, a lawyer for F-Squared liquidating trustee Craig Jalbert, said in a statement that while the SEC has an understandable desire to do everything it can to punish wrongdoing, “it must stay within those limits.”

“The SEC does not have the power to collect extralegal fines under the guise of disgorgement,” he said.

The SEC declined to comment.

Jalbert, the trustee of the F-Squared liquidating trust, filed the lawsuit on behalf of others whom the lawsuit contends similarly paid unauthorized sums to the SEC.

In 2014, a unit of F-Squared agreed to disgorge $30 million and pay $5 million in penalties to resolve claims that it misled investors by falsely advertising the performance of an investment product dubbed “AlphaSector.”

The SEC at that time also filed a lawsuit against Howard Present, a co-founder of Wellesley, Massachusetts-based F-Squared, which was once the largest U.S. money manager creating portfolios out of exchange-traded funds.

In October, a federal jury in Boston found that Present violated federal securities laws. He has denied wrongdoing.

The case is Jalbert v. Securities and Exchange Commission, U.S. District Court, District of Massachusetts, No. 17-cv-12103.

Reporting by Nate Raymond in Boston; Editing by Leslie Adler

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