The Securities and Exchange Commission (“SEC”) has been awarded a substantial win in its civil enforcement action against Samuel Wyly and Donald R. Miller, Jr. as the Independent Executor of the Will and Estate of Charles J. Wyly Jr. (the “Wylys”). The Court ordered the Wylys to pay a total of $188 million plus pre-judgment interest associated with (i) their use of offshore trusts and subsidiary entities to trade in shares of four public companies they had acquired or founded and on whose boards the Wylys sat (collectively described as the “Issuers” and including Michaels Stores), and (ii) their failure to properly disclose their beneficial ownership of that stock.
The SEC won liability in the bifurcated civil enforcement action and sought an order of disgorgement in an August bench trial. Disgorgement is an equitable remedy to deprive a defendant of any ill-gotten gains, often called unjust enrichment. It is an economic calculation which captures the incremental profits obtained through wrongful activity. Although the avoidance of taxes is not usually a measure of damages, the SEC’s disgorgement calculation, largely accepted by the Court, included the following components:
1) $194 million in unpaid taxes for gains on the sale of registered Issuer securities, plus $289 million in prejudgment interest, and
2) $65 million in profits made on the sale of unregistered Michaels Stores stock, plus $71 million in prejudgment interest.
This is an interesting case since, as described by the Wylys, “no court has ever before approved the use of… any analogous indirect measure of unjust profits.” This link provides additional information regarding the case particulars and the disgorgement calculation.