The statute of limitations problem remained, however, and federal district courts continued to apply the most analogous state statue of limitations. On December 1, 1990, the Congress had enacted 28 U.S.C. § 1658, a catchall 4-year statute of limitations for actions “arising under an Act of Congress enacted after the date of the enactment of this section” where Congress had not included a statute of limitations. 28 U.S.C. § 1658(a).

om liability after the legislatively determined period of time.’” Unlike statutes of limitations, statutes of repose “generally may not be tolled, even in cases of extraordinary circumstances beyond a plaintiff’s control.” The Supreme Court repeatedly has held that a statute of repose “begin[s] to run on the date of the last culpable act or omission of the defendant,” [35] which, under Section 1658(b), multiple circuit courts have deemed the date of the last “misrepresentation” (regardless of injury). That leaves only a three-year period (between two and five years before the filing of the complaint) as a battleground for plaintiffs and defendants to argue what facts a “reasonably diligent plaintiff” would have discovered and when. Beyond that point, the five-year statute of repose stands as an absolute bar, and questions as to what a “reasonably diligent plaintiff” might have done become moot.1York Cnty. on Behalf of Cnty. of York Ret. Fund v. HP, Inc., 65 F.4th 459 (9th Cir. 2023).2 28 U.S.C. § 1658(b).3 559 U.S. 633 (2010).4 Id. at 644.5Id. at 645 (quoting 2 H. Wood, Limitation of Actions § 276b(11), p. 1402 (4th ed. 1916)).6Id. at 648 (quoting Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193 n.12 (1976)).7See York Cnty. on behalf of Cnty. of York Ret. Fund v. HP Inc., No. 20-CV-07835-JSW, 2022 WL 624439, at *2-4 (N.D. Cal. Mar. 3, 2022).8Id. at *3.9 The opinion was authored by Circuit Judge Jay S. Bybee, joined by Circuit Judge Patrick J. Bumatay and Hon. Richard D. Bennett, District Judge for the District of Maryland, sitting by designation.10York, 65 F.4th at 464-65 (quoting City of Pontiac Gen. Emps.’ Ret. Sys. v. MBIA, Inc., 637 F.3d 169, 174 (2d Cir. 2011)).11Id. at 465 (citation omitted).12Id. (quoting MBIA, 637 F.3d at 175).13Id. (quoting Merck, 559 U.S. at 649).14Id. at 466 (quoting U.S. Commodity Futures Trading Comm’n v. Monex Credit Co., 931 F.3d 966, 972-73 (9th Cir. 2019)).15Id. (emphasis added).16Id. at 468.17Id.18Merck, 559 U.S. at 644, 648-49 (quoting Ernst & Ernst,

Merck moved to dismiss the complaint on the grounds that it was time-barred under the applicable statute of limitations, which required plaintiffs to file suit within “2 years after discovery of the facts constituting the violation” or “5 years after such violation.” 28 U.S.C. § 1658(b). The five-year statute of repose was not at issue.

19 Meanwhile, in In re BP p.l.c. Securities Litigation,20 a district court in the Southern District of Texas interpreted ANZ Securities—which refused to toll the three-year statute of repose under the Securities Act—to apply to claims under the Exchange Act. In In re BP, a group of investors sought to bring individual suits more than five years after the challenged misstatements notwithstanding the five-year statute of repose provided in the Exchange Act, 28 U.S.C. §1658(b)(2). The investors argued that the time limit was a statute of limitations, not a statute of repose, and therefore was tolled by the pendency of a prior class action.

The case focuses on an interpretation of the limitations period added to the securities laws as part of The Sarbanes Oxley Act. Specifically, the issue concerns when the two-year limitation period of 28 U.S.C., § 1658(b)(1) begins. That section provides in part that “an action [for fraud] may be brought not later than the earlier of — (1) “2 years after the discovery of the facts constituting the violation; or (2) 5 years after such violation.”

at 353.8 28 U.S.C. § 1658(b)(1).9Resh, 2018 WL 2767565, at *5 (citing Resh v. China Agritech, 857 F.3d 994, 1004 (9th Cir. 2017)).10Id. at *6.

See also Respondents’ Brief at 47, California Public Employees’ Retirement System v. ANZ Securities, Inc., et al., (April 17, 2017) (No. 16-373) (noting that “[a]s of November 2016, only three out of 189 securities class actions (1.59%) filed in the Second Circuit since IndyMac had generated any opt-out litigation”).[15]ANZ, No. 16-373, slip op. at 14.[16]Id., slip op. at 16.[17]Id.[18] 28 U.S.C. § 1658(b). [19]Merck & Co., Inc. v. Reynolds, 559 U.S. 633, 650 (noting that 28 U.S.C. § 1658(b)(2) “giv[es] defendants total repose after five years”) (citing Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 363 (1991)).

On appeal, the company argued that the suit was barred by the statute of limitations because it had been filed nearly three years after her termination. The company argued that the two-year statute of limitations found in 28 U.S.C. § 1658(b) applies, rather than the four-year limitations period in 28 U.S.C. § 1658(a). The Fourth Circuit rejected this argument, noting that the four-year limitations period applied to “a claim of fraud,” while the plaintiff’s claim involved retaliatory discharge that does not require any showing of actionable fraud.

In the context of supremacy clause jurisprudence – giving proper respect to the TCPA as a federal statute – the court said it must look to federal law to govern the case. Because the TCPA does not provide its own time limit, the court looked to other federal law, specifically 28 U.S.C. §1658(a). Enacted in 1990, this “catchall” statute was intended to govern all federal statutes that did not have their own statutes of limitations, the court explained.

The case centers on alleged fraud in connection with the sale of pain killing drug Vioxx. The question in the case turned on when the two year limitation period of 28 U.S.C. § 1658(b) for securities fraud suits begins to run. The high court concluded that such a cause of action accrues when the plaintiff in fact discovers, or with reasonable diligence would have discovered, the facts constituting a violation, whichever comes first.