Commercial Litigation and Arbitration

Factors Determining whether the SEC Is Entitled to Injunctive Relief against Future Violations in a Civil Enforcement Action

From SEC v. Curshen, 2010 U.S. App. LEXIS 7555 (10th Cir. April 13, 2010):

An injunction based on the violation of securities laws is appropriate if the SEC demonstrates a reasonable and substantial likelihood that Mr. Curshen, if not enjoined, will violate securities laws in the future. *** Determination of the likelihood of future violations requires analysis of several factors, such as (1) the seriousness of the violation; (2) the degree of scienter; (3) whether his occupation will present opportunities for future violations; and (4) whether he has recognized his wrongful conduct and given sincere assurances against future violations.... "Although no single factor is determinative, we have previously held that the degree of scienter 'bears heavily' on the decision." *** "A knowing violation of §§ 10(b) or 17(a)(1) will justify an injunction more readily than a negligent violation of § 17(a)(2) or (3). However, if there is a sufficient showing that the violation is likely to recur, an injunction may be justified even for a negligent violation of § 17(a)(2) or (3)."

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