In any event, although the application of state law to the instant TCPA case would require the use of the four year statute of limitations contained in 28 U.S.C. § 1658, as would federal law, as discussed above, state law does not apply to private TCPA actions in federal courts. In sum, the proper statute of limitations to apply to the TCPA claims in this case is the four year statute of limitations contained in 28 U.S.C. § 1658. POINT III THE FAXES DEFENDANTS SENT TO PLAINTIFF, WHICH ARE ATTACHED TO THE COMPLAINT AS EXHIBIT A, ARE ADVERTISEMENTS WITHIN THE MEANING OF THE TCPA

Instead, both five-year periods contain identical language Case 3:13-cv-07240-FLW-DEA Document 19 Filed 01/30/15 Page 36 of 50 PageID: 335 27 indicating the time within which an action “may be brought,” making them purely procedural in nature. See 28 U.S.C. § 1658(b); 15 U.S.C. § 78t-1(b)(4). Moreover, even assuming that these limitations periods did create substantive rights, American Pipe tolling would still be permitted because such tolling does not abridge or enlarge such rights.

Congress left subsection (a) of §1658 unchanged, indicating that subsection (a) excludes the discovery rule of accrual. In Merck & Co. v. Reynolds, the U.S. Supreme Court considered the same statute of limitations that applies to the DPPA – 28 U.S.C. § 1658. 130

501 U.S. at 359. That ruling has since been superseded by 28 U.S.C. § 1658(b), which provides for a two-and-five year limitations and repose structure. Case 1:05-cv-07583-WHP Document 156 Filed 08/08/11 Page 16 of 27 11 Lampf does not affect the applicability of American Pipe to statutes of repose.

Id. For all these reasons, this line of decisions does not establish that “violation” in 28 U.S.C. § 1658(b) should be interpreted to mean “transaction date,” particularly where the violation is an ongoing course of conduct carried out after the transaction date, as here.6 6 Indeed, “violation” must mean the defendant’s wrongful conduct if the statute of repose is to serve its purpose of providing a “fixed statutory cut-off” for the defendant. Br.

Moreover, § 1658(b)(2) is “an unqualified bar on actions instituted ‘5 years after [the] violation,’ … giving defendants total repose after five years.” Merck & Co. v. Reynolds, 130 S. Ct. 1784, 1797 (2010) (emphasis added) (quoting 28 U.S.C. § 1658(b)(2)); see also, e.g., Take-Two Interactive Software, 2010 WL 1257351, at *4 (holding § 1658(b) is a statute of repose). “[A] federal statute of repose is not subject to equitable tolling.”

Therefore, under the four-year statute of limitations in place at the time the alleged conduct occurred, Plaintiff's claims under the federal human trafficking statute, 18 U.S.C. § 1595, is barred as a matter of law. Additionally, the other federal statutes alleged in Plaintiff's SAC are also subject to a four-year statute of limitations under Section 1658 because the statutes do not provide a statute of limitations. See 18 U.S.C. §§ 1589, 1593 (both added by Pub.L. 106-386, Div. A, § 112(a)(2) on Oct. 28, 2000).

53 In re UnitedHealth Group Inc. S'holder Derivative Litig, No. 06-01216 (D. Minn. filed Mar. 29, 2006) ................................................... 52 In re Wireless Facilities, Inc. Sec. Litig. II, No. 3:07-cv-00482-NLS (S.D. Cal. filed Mar. 15, 2007) .................................. 50 STATUTES AND RULES 15 U.S.C. §78j(b)...............................................................................1, 10, 47, 49, 53 15 U.S.C. §78t(a) ...............................................................................1, 10, 11, 58, 59 28 U.S.C. § 1658...................................................................................................... 53 28 U.S.C. § 1658(b)(1) ............................................................................................ 53 28 U.S.C. § 1658(b)(2) ......................................................................................56, 57 17 C.F.R. § 240.10b-5 ............................................................................................... 1 Fed. R. Civ. P. 8(a)(2)........................................................................................36, 58 Fed. R. Civ. P. 9(b) .................................................................................................. 13 Fed. R. Civ. P. 12(b)(6) .....................................................................................10, 54 Fed. R. Civ. P. 12(f)................................................................................................... 6 Case 2:07-cv-07114-CAS-FMO Document 77 Filed 10/06/08 Page 10 of 70 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEAD PLAINTIFFS’ OMNIBUS OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS THE CONSOLIDATED CLASS ACTION COMPLAINT CIVIL ACTION NO.:

38 U.S.C. § 2024(b). Thus, well before 1990, the VRRA was enacted and interpreted to provide reservists with the 8 The Department of Labor also takes the position that Jones “is not dispositive because USERRA “otherwise provides by law” that no statute of limitations applies, and because, with respect to some USERRA claims, the cause of action previously existed under the VRRA and consequently predates the effective date of 28 U.S.C. 1658.” 69 Fed. Reg.

An action for securities fraud generally must be filed within two years of “the discovery of the facts constituting the violation.” See 28 U.S.C. § 1658(b). The clock began to run on Ms. Jackson’s claims when she either “did in fact discover . . . the facts constituting the violation” or when a “reasonably diligent plaintiff would have discovered [them].”