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 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).
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.
Id. 28 U.S.C. § 1658(b). 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.
Relying on China Agritech, the defendants moved to decertify the class, arguing that Practice Management’s class claims in this third successive class action were untimely. Judge Durkin agreed, reasoning that Practice Management did not file the case within the applicable four-year statute of limitations set forth in 28 U.S.C. § 1658; hence, the claims were untimely unless a tolling doctrine applies. And because the plaintiff could not rely on American Pipe tolling — i.e., that an earlier filed class action tolled the running of the statute of limitations for a successive class action — there was no basis for tolling.
Plaintiffs argued, however, that SOX extended to two years the statute of limitations applicable to certain “private right[s] of action that involve[ ] a claim of fraud, deceit, manipulation, or contrivance in contravention of a regulatory requirement concerning the securities laws…of the Securities Exchange Act of 1934.” 28 U.S.C. §1658(b). Adopting the Court of Appeals for the Second Circuit’s conclusion inDekalbCounty Pension Fund v. Transocean Ltd., 817F.3d393 (2dCir. 2016), the court held that claims under Section 18(a) sound in fraud and that theextended limitations periodin SOX therefore applies.Although its reasoning was not included in its decision, the Second Circuit inDekalbhad concluded that Section 18(a) sounds of fraud, and is therefore within the claims covered by the extended SOX limitations period because it imposes liability “unless the person sued shall prove that he acted in good faith and had no knowledge that such statement was false or misleading,” 15U.S.C.
Defendant argued that plaintiffs’ Exchange Act claims were barred by the applicable five-year statute of repose, which provides that a claim “that involves a claim of fraud, deceit, manipulation, or contrivance in contravention of a regulatory requirement…may be brought not later than…5 years after such violation.” 28 U.S.C. §1658(b)(2). Relying on dicta in a Sixth Circuit decision and another Eastern District of Michigan case, defendant argued that the “violation” referenced in the Exchange Act statute of repose must refer to misrepresentations that precede the purchase or sale of securities.
737. 28 USC § 1658(b).Cal.