Punishment Without Cause: Disgorgement And Forfeiture Of Salary And Pensions

April 2, 2014  |  The Insider: White Collar Defense and Securities Enforcement

It has become popular among prosecutors and regulators in recent years to claim that officials who engaged in wrongdoing on the job should be forced to surrender every dollar earned on that job.  The U.S. Attorney for the Southern District of New York has issued a policy statement that his office will use federal forfeiture laws to seek to strip the pensions of state officials convicted on federal corruption charges.  Such policy mirrors the position often taken by SEC enforcement lawyers in seeking to disgorge all of the salary and bonuses earned by corporate officials found to have engaged in misdeeds.  The problem with these claims, both as a matter of law and as a matter of fairness, is that they most often fail the basic test of causation. [...]

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