LIFETIME BAN ON PARTICIPATION IN THE SECURITIES INDUSTRY AND DISGORGEMENT OF WRONGFULLY OBTAINED PROFITS ARE AVAILABLE REMEDIES UNDER ANTI-FRAUD STATUTES.
The Court of Appeals, in a full-fledged opinion by Judge Stein, determined the Martin Act (General Business Law article 23-A) allowed a permanent injunction imposing a lifetime ban on defendants' participation in the securities industry and service as an officer or director of a public company. The court further found that both the Martin Act and the Executive Law allowed the remedy of disgorgement of wrongfully obtained profits. [This is the second time this securities-fraud case reached the Court of Appeals. The underlying facts were laid out in the prior decision (21 NY3d 439).]:
… [T]he Attorney General may obtain permanent injunctive relief under the Martin Act and Executive Law § 63 (12) upon a showing of a reasonable likelihood of a continuing violation based upon the totality of the circumstances … . “This is not a 'run of the mill' action for an injunction, but rather one authorized by remedial legislation, brought by the Attorney General on behalf of the People of the State and for the purposes of preventing fraud and defeating exploitation” … . “'[T]he standards of the public interest not the requirements of private litigation measure the propriety and need for injunctive relief'”. Therefore, we reject defendants' argument that the Attorney General must show irreparable harm in order to obtain a permanent injunction. * * *
We further conclude that disgorgement is an available remedy under the Martin Act and the Executive Law. The Martin Act contains a broad, residual relief clause, providing courts with the authority, in any action brought under the Act, to “grant such other and further relief as may be proper” (General Business Law § 353-a). Indeed, this Court has previously recognized that the courts are not limited to the remedies specified under either of these statutes … . In our view, disgorgement “merely requires the return of wrongfully obtained profits [and] does not result in any actual economic penalty” … . As we have previously stated, in an appropriate case, disgorgement may be an available “equitable remedy distinct from restitution” under this State's anti-fraud legislation … . People v Greenberg, 2016 NY Slip Op 04253, CtApp 6-2-16
SECURITIES (LIFETIME BAN ON PARTICIPATION IN THE SECURITIES INDUSTRY AND DISGORGEMENT OF WRONGFULLY OBTAINED PROFITS ARE AVAILABLE REMEDIES UNDER ANTI-FRAUD STATUTES)/MARTIN ACT (LIFETIME BAN ON PARTICIPATION IN THE SECURITIES INDUSTRY AND DISGORGEMENT OF WRONGFULLY OBTAINED PROFITS ARE AVAILABLE REMEDIES UNDER ANTI-FRAUD STATUTES)/EXECUTIVE LAW (SECURITIES, LIFETIME BAN ON PARTICIPATION IN THE SECURITIES INDUSTRY AND DISGORGEMENT OF WRONGFULLY OBTAINED PROFITS ARE AVAILABLE REMEDIES UNDER ANTI-FRAUD STATUTES)/FRAUD (SECURITIES, LIFETIME BAN ON PARTICIPATION IN THE SECURITIES INDUSTRY AND DISGORGEMENT OF WRONGFULLY OBTAINED PROFITS ARE AVAILABLE REMEDIES UNDER ANTI-FRAUD STATUTES)