Federal Appeals Court Affirms Extender Statutes Trump Securities Act Statute Of Limitations

RMBS NCUA

On August 19, the U.S. Court of Appeals for the Tenth Circuit reissued its original opinion affirming a district court’s holding that FIRREA’s NCUA extender statute circumvents the three-year repose period found in Section 13 of the Securities Act. Nat’l Credit Union Admin. Board v. Nomura Home Equity Loan Inc., Nos. 12-3295, 12-3298, 2014 WL 4069137 (10th Cir. Aug. 19, 2014). Extender statutes define the time period for government regulators to bring actions on behalf of failed financial organizations. The NCUA sued a number of RMBS issuers for violations of federal securities laws on behalf of two credit unions that the NCUA had placed into conservatorship. The defendant RMBS issuers countered that the suit was untimely under the applicable three-year statute of limitations in the Securities Act. The court originally held in 2013 that the NCUA’s claim was timely pursuant to the relevant extender statute, but its opinion had been vacated and remanded for further consideration in light of the Supreme Court’s recent decision in a similar case under a federal environmental statute. The court distinguished its case by first determining that the relevant statute was “fundamentally different” from the one in the Supreme Court’s case because the extender statute “plainly establishes a universal time frame for all actions brought by [the] NCUA.” The court rejected the argument that placed a distinction between statutes of limitations and statutes of repose by noting that extender statutes “displace[] all preexisting limits on the time to bring suit, whatever they are called.” The court then found that the extender statute’s surrounding language, statutory context, and statutory purpose supported its original decision that the NCUA’s suit was timely. Accordingly, the court reinstated its original opinion.