This decision teems with the muddled thinking from mixing law and equity. The statute (law) enables the Attorney General (law enforcement) to use civil discovery (from equity) to investigate fraud (a potential crime) and bypass the Constitutional protections granted to someone accused of a crime (e.g, search warrants). Is that justice? Oh, it’s OK because restitution limits what can be extracted from the target. The AG is just getting compensation for victims, that’s all. “Restitution” is an equitable remedy, so there is no jury to try facts.
Wait, the AG is a party in a civil suit, so don’t our rules of procedure allow access to all equitable remedies? This new-fangled “disgorgement” is floating around as an equitable remedy. They say it discourages wrongdoing by stripping the accused of their ill-gotten gains. Nothin’ wrong with that. Since disgorgement has no accepted legal meaning, what if we say that it doesn’t require identifiable victims because we’re discouraging wrongdoing. No victims, uh, who gets the money? Hey, we can put the money in the treasury! Neat, huh? Government employees in black robes gettin’ it done! Thank you, Mr. Field.
Wait, the AG is a party in a civil suit, so don’t our rules of procedure allow access to all equitable remedies? This new-fangled “disgorgement” is floating around as an equitable remedy. They say it discourages wrongdoing by stripping the accused of their ill-gotten gains. Nothin’ wrong with that. Since disgorgement has no accepted legal meaning, what if we say that it doesn’t require identifiable victims because we’re discouraging wrongdoing. No victims, uh, who gets the money? Hey, we can put the money in the treasury! Neat, huh? Government employees in black robes gettin’ it done! Thank you, Mr. Field.
