Sripetch v. SEC · ¶43

Disgorgement generally means the “act of giving up something (such as profts illegally obtained) on demand or by legal compulsion.” Black's Law Dictionary 588 (12th ed. 2024). But, disgorgement has “never been a precise legal term,” SEC v. Hallam, 42 F. 4th 316, 327 (CA5 2022), in part because it “has no basis in historical practice,” Liu v. SEC, 591 U. S. 71, 95 (2020) (Thomas, J., dissenting). This lack of pedigree causes confusion as to whether “disgorgement” refers to an “equitable” remedy or a “legal” one requiring a jury trial. See S. Bray, Fiduciary Remedies, in The Oxford Handbook of Fiduciary Law 454 (2019) (Bray, Fiduciary Remedies) (noting that “[s]ometimes” disgorgement refers to “any gain-based equitable remedy,” but “other times” the term is used to refer to “legal relief”).

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