June 09, 2017

After arguing three US Supreme Court cases in a 28-day span in March and April 2017, Jenner & Block Partner Adam G. Unikowsky achieved unanimous wins in all three.  The cases were Howell v. Howell, Honeycutt v. US and Kokesh v. SEC.

Mr. Unikowsky authored the successful petitions for certiorari in each case.  Based on this record, plus his authorship of one certiorari stage amicus brief in a granted case, Empirical SCOTUS, a blog that analyzes data about the Court, placed Mr. Unikowsky in a tie for first place among all attorneys on cert petitions and cert stage amici filings for the term.

Then, within a one-month period beginning with Howell on March 20, 2017, and ending with Kokesh on April 18, 2017, Mr. Unikowsky presented oral arguments in the three cases.  Mr. Unikowsky won unanimous victories in all three cases, despite facing opposition from the Justice Department in all three cases, and despite the fact that the vast majority of lower courts had rejected the positions he advanced.

In Kokesh, Mr. Unikowsky unanimously won a decision that the five-year statute of limitations in a general federal statute of limitations governing penalties and forfeitures applies to SEC claims seeking disgorgement of illegally obtained profits.  The Court rejected the Justice Department’s view that there was no statute of limitations applicable to disgorgement claims.  The Court’s landmark ruling reduced the liability of Mr. Unikowsky’s client by at least $29 million, and will dramatically affect the SEC’s ability to obtain disgorgement in enforcement actions under the securities laws and the Foreign Corrupt Practices Act.  The Court rejected the views not only of the Justice Department, but of the vast majority of lower-court cases to have considered the question.  And the Supreme Court’s specific basis for its holding—that, as Mr. Unikowsky argued, disgorgement was a “penalty”—had never been accepted by any lower court prior to the Court’s ruling.

In Honeycutt, the Court ruled unanimously that federal criminal asset forfeiture statutes apply only to property a defendant actually acquires as the result of the crime, or substitute property under narrowly defined circumstances.  It rejected the Justice Department’s position that there is joint and several liability for forfeiture among members of a criminal conspiracy.  The Court reached this ruling despite a 9-1 circuit split in favor of the government’s position—and thus rejected the Justice Department’s plea at oral argument that the Court should endorse the rule “that’s prevailed in nine circuits for, in some cases, decades.”

In Howell, the Court unanimously agreed with Mr. Unikowsky’s position that federal law pre-empted a state court’s order directing his client, an Air Force veteran, to indemnify his former spouse for the reduction in her portion of his retirement pay resulting from his post-divorce decision to take disability pay.  The Court reached this ruling over the opposition of the Justice Department, which, among other things, argued that “the vast majority of States” had rejected veterans’ arguments under these circumstances, going as far as to include an appendix in its brief enumerating all the state court decisions rejecting Mr. Unikowsky’s position.

The 8-0 Howell decision was announced on May 15; the 8-0 Honeycutt ruling came down on June 5, 2017.  Kokesh, a 9-0 decision that included newly appointed Supreme Court Justice Gorsuch, also came down on June 5.