833 F.3d 1125
9th Cir.2016Background
- The NCUA, as liquidating agent for Western Corporate Federal Credit Union (Wescorp), sued Nomura and Wachovia for misrepresentations in RMBS offering documents under §§ 11 and 12(a)(2) of the Securities Act of 1933.
- Wescorp purchased the RMBS in 2006–2007 and later failed; NCUA placed Wescorp in conservatorship (March 20, 2009) and filed suit July 18, 2011.
- Section 13 of the 1933 Act ordinarily requires § 11/§ 12(a)(2) claims to be brought within one year of discovery and within three years after the security was offered or sold (the repose provision).
- FIRREA’s Extender Statute, 12 U.S.C. § 1787(b)(14), prescribes the “applicable statute of limitations” for any action brought by NCUA as conservator or liquidating agent (generally six years for contract claims, three years for tort claims, measured from accrual or NCUA appointment).
- The district court held FIRREA’s Extender Statute displaced only the 1933 Act’s one-year limitations period, not its three-year statute of repose, and dismissed NCUA’s claims as time-barred.
- The Ninth Circuit vacated, holding the Extender Statute supplants preexisting federal time limits (including statutes of repose) and applies to statutory claims like those under the 1933 Act; the case was remanded for further proceedings.
Issues
| Issue | NCUA's Argument | Nomura/Wachovia's Argument | Held |
|---|---|---|---|
| Whether FIRREA’s Extender Statute displaces the 1933 Act’s three-year statute of repose | Extender Statute replaces all preexisting time limitations (limitations and repose) for actions by NCUA | Extender Statute only displaces ordinary statutes of limitations (e.g., the 1-year discovery rule), not statutes of repose | Extender Statute displaces the 1933 Act’s statute of repose; NCUA’s claims timely |
| Whether the Extender Statute applies to statutory claims (not only common-law tort/contract) | “Any action brought by the NCUA” includes statutory claims under federal law (e.g., 1933 Act) | Extender Statute is limited to common-law tort/contract claims; applying it to statutory claims would improperly repeal portions of the 1933 Act | Extender Statute applies to statutory claims asserted by NCUA |
| Whether CTS Corp. v. Waldburger controls interpretation of Extender Statute | CTS is distinguishable; FIRREA’s extender creates exclusive time limits rather than altering commencement dates | CTS shows statutes distinguishing limitations vs repose should not be conflated; therefore repose survives | CTS is distinguishable; its reasoning does not require excluding statutes of repose from FIRREA’s extender |
| Proper construction of accrual language in the Extender Statute | Accrual language simply fixes when the Extender Statute’s exclusive period begins (later of accrual or NCUA appointment) | Accrual language indicates Congress did not mean to displace repose (which is triggered by defendant’s act) | Accrual provision governs start of the Extender Statute period and does not limit its displacement of repose |
Key Cases Cited
- Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (discusses § 13 repose in Securities Act)
- CTS Corp. v. Waldburger, 134 S. Ct. 2175 (distinguishes statutes of limitations from statutes of repose)
- Nat’l Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc., 764 F.3d 1199 (10th Cir. 2014) (Extender Statute displaces 1933 Act repose; applied to statutory claims)
- Fed. Hous. Fin. Agency v. UBS Americas Inc., 712 F.3d 136 (2d Cir. 2013) (analogous extender statute displaces repose)
- Fed. Deposit Ins. Corp. v. RBS Sec. Inc., 798 F.3d 244 (5th Cir. 2015) (FDIC extender statute supplants other time limits)