Federal Deposit Insurance Corporation et al v. Bear Stearns Asset Backed Securities I L.L.C. et al
Filing
135
OPINION AND ORDER re: 132 MOTION for Partial Lift of the PSLRA Discovery Stay re: 65 Order, . filed by Federal Deposit Insurance Corporation, 80 JOINT MOTION to Dismiss the Amended Complaint. filed by Bear Stearns Asset Backed Securities I L.L.C., Merrill Lynch Mortgage Capital Inc., Deutsche Bank Securities Inc., Merrill Lynch Mortgage Investors, Inc., J.P. Morgan Securities L.L.C., Ally Securities, L.L.C., HSBC Securities (USA) Inc., Citigroup Global Markets Inc., The Bear Stearns Companies L.L.C., Credit Suisse Management L.L.C., Merrill Lynch, Pierce, Fenner & Smith, Inc., Citimortgage, Inc., Credit Suisse First Boston Mortgage Securities Corp., UBS Securities L.L.C., RBS Securities Inc., Citicorp Mortgage Securities, Inc., Credit Suisse Securities (USA) L.L.C. For the foregoing reasons, Defendants' motion to dismiss the Amended Complaint is granted. Plaintiff's motion for a partial lift of the PSLRA dis covery stay is denied as moot. The Clerk of the Court is directed to enter judgment in favor of Defendants and to close this case. This Memorandum Opinion and Order resolves docket entry numbers 80 and 132. SO ORDERED. (See Order.) (Signed by Judge Laura Taylor Swain on 3/24/2015) (ajs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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FEDERAL DEPOSIT INSURANCE CORP.,
as Receiver for CITIZENS NATIONAL BANK
and Receiver for STRATEGIC CAPITAL BANK,
Plaintiff,
-v-
No. 12CV4000-LTS-MHD
BEAR STEARNS ASSET BACKED
SECURITIES I LLC, et al.,
Defendants.
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OPINION AND ORDER
APPEARANCES:
GRAIS & ELLSWORTH LLP
By: Mark B. Holton, Esq.
David J. Grais, Esq.
Kathryn E. Matthews, Esq.
1211 Avenue of the Americas
New York, New York 10036
SIMPSON THACHER & BARTLETT LLP
By: Andrew T. Frankel, Esq.
Thomas C. Rice, Esq.
Abigail W. Williams, Esq.
425 Lexington Avenue
New York, New York 10017
Attorneys for Plaintiff Federal Deposit
Insurance Corporation, as Receiver for
Citizens National Bank and as Receiver for
Strategic Capital Bank
Attorneys for Defendants Deutsche Bank
Securities Inc., RBS Securities Inc., and UBS
Securities LLC
CRAVATH, SWAINE & MOORE LLP
By: Richard W. Clary, Esq.
Julie A. North, Esq.
Richard J. Stark, Esq.
Michael T. Reynolds, Esq.
Lauren A. Moskowitz, Esq.
825 Eighth Avenue
New York, New York 10019
Attorneys for Defendants Credit Suisse
Securities (USA) LLC, Credit Suisse First
Boston Mortgage Securities Corp., and
Credit Suisse Management LLC
MAYER BROWN LLP
By: Michael O. Ware, Esq.
S. Christopher Provenzano, Esq.
1675 Broadway
New York, New York 10019
Attorneys for Defendant HSBC
Securities (USA), Inc.
LAURA TAYLOR SWAIN, United States District Judge
In this action Plaintiff, the Federal Deposit Insurance Corporation, as receiver for
both Citizens National Bank (“CNB”) and Strategic Capital Bank (“SCB,” and together with
CNB the “Banks”), sues Bear Stearns Asset Backed Securities I LLC (“BSABS”); the Bear
Stearns Companies LLC; J.P. Morgan Securities LLC; Citicorp Mortgage Securities, Inc.
(“CMSI”); CitiMortgage, Inc. (“CitiMortgage”); Citigroup Global Markets Inc. (“Citigroup”);
Credit Suisse First Boston Mortgage Securities Corp.; Credit Suisse Management LLC (“Credit
Suisse Mgmt.”); Credit Suisse Securities (USA) LLC (“Credit Suisse Securities”); Merrill Lynch
Mortgage Investors, Inc. (“Merrill Lynch”); Merrill Lynch Mortgage Capital Inc. (“MLMCI”);
Merrill Lynch, Pierce, Fenner & Smith Inc.; Ally Securities, LLC; Deutsche Bank Securities Inc.
(“DBS”); HSBC Securities (USA) Inc. (“HSBC”); RBS Securities Inc. (“RBS”); and UBS
Securities LLC (“UBS”) (collectively, “Defendants”),1 alleging that Defendants violated the
Securities Act of 1933 (the “1933 Act”) in connection with the issuance of certain certificates
backed by collateral pools of residential mortgage loans. Plaintiff amended the complaint on
October 12, 2012 (the “Amended Complaint”).
Defendants later brought the instant motion to dismiss the Amended Complaint
(the “Motion”), arguing that the action is untimely and that the Amended Complaint fails to state
a claim upon which relief can be granted. Among Defendants’ arguments was the assertion that
the FDIC’s 1933 Act claims are barred by the statute of repose provision set forth in Section 13
of the 1933 Act, 15 U.S.C. § 77m. Plaintiff asserted that the statute of repose was preempted by
an extension provision of the Financial Institutions Reform, Recovery, and Enforcement Act of
1
Ally Securities, LLC, Bear Stearns Asset Backed Securities I LLC; the Bear Stearns
Companies LLC; J.P. Morgan Securities LLC, Citicorp Mortgage Securities, Inc.,
CitiMortgage, Inc., Citigroup Global Markets Inc., and the Merrill Lynch Defendants
have each been dismissed with prejudice by stipulated order pursuant to Federal Rule
of Civil Procedure 41. (Docket entry numbers 101, 102, 115, and 126.)
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1989 (“FIRREA”), codified as 12 U.S.C. § 1821(d)(14) (the “FDIC Extender Provision”). While
the motion was pending, the Second Circuit held, in Federal Housing Finance Agency v UBS
Americas, Inc., 712 F.3d 136 (2d Cir. 2013), that the Section 13 statute of repose was preempted
by the extension provision of the Housing and Economic Recovery Act of 2008 (“HERA”), 12
U.S.C. § 4617(b)(12), which is substantially identical to the FDIC Extender Provision, and
Defendants withdrew the Section 13 aspect of their motion. The Supreme Court thereafter held
in CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014), that an extender provision of the
Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) did not
preempt statutes of repose, and remanded, in light of that decision, a Tenth Circuit decision2 that
had held that statutes of repose were preempted by another statutory provision that is
substantially identical to the FDIC Extender Provision. At the parties’ suggestion, the Court
ordered supplemental briefing of Defendants’ reinstated statute of repose argument.
This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331, and has
considered carefully the submissions of the parties. For the reasons stated below, Defendants’
Motion is granted.
BACKGROUND
The following facts are taken from the Amended Complaint. Plaintiff’s factual
allegations are accepted as true for the purpose of resolving this Motion.
Defendants were involved in various aspects of the securitization of an issuance
of residential mortgage backed securities (“RMBS”). Between September 2007 and April 2008,
2
Nat’l Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc., 727 F.3d 1246,
1249 (10th Cir. 2013), cert. granted, judgment vacated, 134 S. Ct. 2818 (2014),
remand decision, 764 F.3d 1199 (10th Cir. 2014), cert. denied, 135 S. Ct. 949 (2015).
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CNB purchased ten RMBS certificates for approximately $67.5 million, and SCB purchased nine
of the certificates for approximately $73 million (together, the “Securities”). Each of the
Securities was offered to the public in 2006 and 2007. (See Am. Compl., Schedules 1-3, 5, 7,
10-12 Items 38(a) & 38(b).)
BSABS, MLMI, and CMSI issued certain of the Securities. Certain of the
Defendants – Citigroup, Credit Suisse Securities, RBS, Bear Stearns, Merrill Lynch, DBS, UBS,
and HSBC – acted as underwriters for the Securities. These underwriters purchased certificates
from the trust and sold them to various investors, including the Banks. CitiMortgage, MLMCI,
and Credit Suisse Mgmt. are sued as control persons.
The Banks were closed by the FDIC on May 22, 2009, and were placed into
receivership. The FDIC thereafter conducted an extensive investigation of the Securities,
including a detailed analysis of a random sample of the loans underlying each of the twelve
Securities at issue here. This investigation included use of an automated valuation model which
was based on “objective criteria like the condition of the property and the actual sale prices of
comparable properties in the same locale shortly before the specified date.” (Amend. Compl. ¶
50.) The FDIC alleges that this modeling revealed that loan-to-value ratios were misstated
significantly in the offering documents for the Securities, and that “the number of properties on
which the value was overstated exceeded by far the number on which the value was understated,
and the aggregate amount overstated exceeded by far the aggregate amount understated.”
(Amend. Compl. ¶ 51.)
The FDIC, as receiver for the Banks, filed this lawsuit on May 18, 2012, well
over three years after each of the Securities was offered to the public.
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DISCUSSION
Claims brought under Section 11 of the 1933 Act are subject to the two-pronged
timing provision of Section 13 of that Act, which is codified as 15 U.S.C. § 77m. The first prong
of Section 13 is a statute of limitations, which provides that Section 11 claims must be brought
within one year of “the discovery of the untrue statement or the omission, or after such discovery
should have been made by the exercise of reasonable diligence.” 15 U.S.C.S. § 77m
(LexisNexis 2012). The statute of limitations may be tolled based on equitable considerations,
but not beyond three years from the date of the relevant offering, at which point a plaintiff’s
claim is extinguished by Section 13’s second prong – a statute of repose – which provides that
“[i]n no event shall any such action be brought . . . more than three years after the security was
bona fide offered to the public.” Id.
The FDIC asserts that its claims are timely, notwithstanding the three-year
Section 13 statute of repose, because the statute of repose is preempted by the FDIC Extender
Provision, which reads in pertinent part as follows:
Statute of limitations for actions brought by conservator or receiver
(A) In general
Notwithstanding any provision of any contract, the applicable statute of
limitations with regard to any action brought by the [FDIC] as conservator or
receiver shall be-(i) in the case of any contract claim, the longer of-(I) the 6-year period beginning on the date the claim accrues; or
(II) the period applicable under State law; and
(ii) in the case of any tort claim (other than a claim which is subject to
section 1441a(b)(14) of this title), the longer of–
(I) the 3-year period beginning on the date the claim accrues; or
(II) the period applicable under State law.
(B) Determination of the date on which a claim accrues
For purposes of subparagraph (A), the date on which the statute of limitations
begins to run on any claim described in such subparagraph shall be the later of–
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(i) the date of the appointment of the [FDIC] as conservator or receiver; or
(ii) the date on which the cause of action accrues.
12 U.S.C.S. § 1821(d)(14) (LexisNexis 2008).
The FDIC asserts that the Second Circuit’s 2013 decision in Federal Housing
Finance Agency v. UBS Americas, Inc., 712 F.3d 136 (2d Cir. 2013), holding that a substantially
identical extender statute, governing actions brought by the Federal Housing Finance Agency
(the “FHFA”), preempted the 1933 Act’s statute of repose, is binding precedent that requires this
Court to reject Defendants’ untimeliness argument.
Defendants contend that the Supreme Court’s decision in CTS Corp. v.
Waldburger, 134 S. Ct. 2175 (2014), requires a different result. In Waldburger, the Court held
that section 9658 of the CERCLA, which preempts state law statutes of limitations in certain tort
actions, does not preempt state statutes of repose. The question thus before the Court is whether
the Supreme Court’s analysis in Waldburger calls the Second Circuit’s UBS analysis into
question sufficiently to relieve this Court of any obligation to follow UBS in determining the
scope of the FDIC Extender Provision.
In UBS, the Second Circuit held that the extender statute applicable to actions
brought by the FHFA, in its capacity as conservator of the Federal National Mortgage
Association and the Federal Home Loan Mortgage Corporation under HERA, operated to extend
the FHFA’s time to assert federal securities law claims, notwithstanding the repose provision of
Section 13 of the 1933 Act. HERA’s extender provision provides in pertinent part that:
(A) In General
Notwithstanding any provision of any contract, the applicable statute of
limitations with regard to any action brought by the [FHFA] as conservator or
receiver shall be—
(i) in the case of any contract claim, the longer of—
(I) the 6–year period beginning on the date on which the claim
accrues; or
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(II) the period applicable under State law; and
(ii) in the case of any tort claim, the longer of—
(I) the 3–year period beginning on the date on which the claim
accrues; or
(II) the period applicable under State law.
(B) Determination of the date on which a claim accrues
For purposes of subparagraph (A), the date on which the statute of limitations
begins to run on any claim described in such subparagraph shall be the later of—
(i) the date of the appointment of the [FHFA] as conservator or receiver;
or
(ii) the date on which the cause of action accrues.
12 U.S.C.S. § 4617(b)(12) (LexisNexis 2014). In reaching its decision, the Second Circuit found
that, in using the phrase “the applicable statute of limitations with regard to any action brought
by [FHFA] as conservator or receiver,” Congress had expressed its intent to set a timing rule that
a “reasonable reader could only understand . . . to apply to both the federal and state claims in”
the case – that is, to both statutes of limitation and the federal statute of repose. UBS, 712 F.3d
at 141-42 (quoting 12 U.S.C. § 4617(b)(12)(A) (emphasis supplied by UBS Court)). “[A]ny
ambiguity” in the text of the statute was, the court held, eliminated by the legislative history of
the extender provision, which makes it clear that HERA was intended to empower the FHFA to
collect all monies due to the conservatee agencies and provide the FHFA with time to mobilize
and determine what claims to bring. According to the UBS Court, “it would have made no sense
for Congress to have carved out securities claims from the ambit of the extender statute, as doing
so would have undermined Congress’ intent to restore [the conservatee agencies] to financial
stability.” Id. at 142.
Although the court recognized the distinct theoretical character of statutes of
limitation as compared to statutes of repose, it observed that both courts and Congress have long
used the term “statute of limitations” to refer to both, and concluded that “[i]n view of the text of
the statute and its legislative history . . . , it is clear that Congress intended one statute of
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limitations – [the HERA extender statute] . . . – to apply to all claims brought by FHFA as
conservator.” Id. at 143. Congress would have used distinct, explicit terminology had it “really
wanted to exclude securities claims from the ambit of HERA’s extender statute,” according to
the UBS Court. Id. Based on this analysis, the UBS Court held that the HERA extender statute
“supplants any other time limitations that might otherwise have applied” and saved the FHFA’s
Securities Act claims from the otherwise-applicable statute of repose. Id. at 143-44.
The Supreme Court’s Waldburger decision calls into question several aspects of
the UBS Court’s analysis. Focusing on the text of the CERCLA extender statute, the
Waldburger Court noted that the CERCLA statute used the term “statute of limitations” four
times (in addition to use in the statute’s caption), finding that usage “instructive” but not
“dispositive.” 134 S. Ct. at 2185. Acknowledging that the term “statute of limitations” is
sometimes used in a “less formal” sense, referring “to any provision restricting the time in which
a plaintiff must bring suit,” the Court proceeded “to examine other evidence of the meaning of
the term ‘statute of limitations’” as used in the CERCLA extender statute. Id. Textual clues to
meaning included the use of singular terms in referring to the period covered by the extension:
“‘the applicable limitations period,’ ‘such period shall commence’ and ‘the statute of limitations
established under State law.’” The Court observed that “[t]his would be an awkward way to
mandate the pre-emption of two different time periods with two different purposes.” Id. at 218687.
Focusing on the difference in operation between statutes of limitation, which limit
the time period within which suits may be brought, and statutes of repose, which “mandat[e] that
there shall be no cause of action beyond a certain point, even if no cause of action has yet
accrued,” the Court held that
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[i]n light of the distinct purpose for statutes of repose, the [CERCLA statute’s]
definition of ‘applicable limitations period’ [(‘the period specified in a statute of
limitations during which a civil action . . . may be brought’)] (and thus also the
definition of ‘commencement date’ [(defined as ‘the date specified in a statute of
limitations as the beginning of the applicable limitations period’)]) is best read to
encompass only statutes of limitations, which generally begin to run after a cause
of action accrues and so always limit the time in which a civil action ‘may be
brought.’ A statute of repose, however, may preclude an alleged tortfeasor’s
liability before a plaintiff is entitled to sue, before an actionable harm occurs.
Id. at 2187. The Court also found particularly significant a 1982 Congressionally-commissioned
Study Group Report concerning the effect of state statutes of limitation and statutes of repose on
CERCLA claims, which specifically recommended that both types of statutes be repealed. This
report confirmed that Congress had been advised of the clear distinction between the two types
of statutes, and made it “proper to conclude that Congress did not exercise the full scope of its
pre-emption power” when it enacted the CERCLA extender statute, referring only to statutes of
limitation, in response to the Report. Id. at 2186.
As to the significance of the purpose of the CERCLA extender statute – “namely
to help plaintiffs bring tort actions for harm caused by toxic contaminants” – the Court cautioned
that “the level of generality at which the statute’s purpose is framed affects the judgment
whether a specific reading will further or hinder that purpose.” Id. at 2188. The Court noted that
CERCLA does not provide a comprehensive remedial framework3 but, rather, leaves “judgments
about causes of action, the scope of liability, the duration of the period provided by statutes of
limitations, burdens of proof, rules of evidence and other important rules governing civil
3
The Waldburger Court expressly rejected application of “the proposition that
remedial statutes should be interpreted in a liberal manner” to “substitute for a
conclusion grounded in the statute’s text and structure,” noting that “[a]fter all,
almost every statute might be described as remedial in the sense that all statutes are
designed to remedy some problem.” 134 S. Ct. at 2185. Instead, the congressional
intent in enacting such statutes should be interpreted “primarily from the statutory
text.” Id.
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actions” to state law. Id. In the context of this framework, the Court held that, “[r]espondents
ha[d] not shown that in light of Congress’ decision to leave those many areas of state law
untouched, statutes of repose pose an unacceptable obstacle to the attainment of CERCLA’s
purposes.” Id.
Like the CERCLA extender statute, the FDIC’s Extender Provision refers only to
“statute of limitations” in the singular, several times, and includes no reference to any statute of
repose. The Extender Provision is phrased by reference to the accrual of causes of action – the
uniform extended limitations periods provided for FDIC-initiated actions “begin[] on the date
the claim accrues,” and “the date on which a claim accrues” is defined as “the date on which the
statute of limitations begins to run on any claim described” in the relevant subparagraph,
determined by reference to the date on which the FDIC was appointed as conservator or receiver
or, if later, “the date on which the cause of action accrues.” 12 U.S.C.S. § 1821(d)(14)
(LexisNexis 2008). As the Supreme Court recognized in Waldburger, statutes of repose operate
without regard to the accrual of causes of action and, indeed, may expire and extinguish potential
causes of action before they accrue at all. See 134 S. Ct. at 2187. Unlike statutes of limitation,
statutes of repose are “measured not from the date on which the claim accrues but instead from
the date of the last culpable act or omission of the defendant.” Id. at 2182. The FDIC Extender
Provision’s supplemental provision is triggered by, and measures accrual from, the appointment
of the FDIC as conservator, not any action of the defendant. The text of the FDIC Extender
Provision, read in light of the Waldburger Court’s analysis, thus indicates strongly that Congress
did not intend to encompass both types of timing provisions when it referred to statutes of
limitation.
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A finding that the Extender Provision does not supplant both types of timing
provisions is not inconsistent with its remedial purpose, which is “to maximize potential
recoveries by the Federal Government by preserving to the greatest extent permissible by law
claims that otherwise would have been lost due to the expiration of hitherto applicable
limitations periods.” See 135 Cong. Rec. § 10205 (daily ed. Aug. 4, 1989). Like the CERCLA
extender statute, the FDIC Extender Provision does not create new causes of action or procedural
provisions to supplant existing statutory provisions. Extending statutes of limitation broadens
the FDIC’s potential scope of recoveries; the fact that certain securities law causes of action may
be extinguished by the statute of repose does not indicate that the statute of repose is “an
unacceptable obstacle to the attainment of [the FDIC Extender Provision’s] purpose.” Cf.
Waldburger, at 2188. As another judge of this District has observed, “[b]y postponing otherwise
applicable times of accrual of claims in state statutes of limitations, the FDIC Extender Provision
did give the FDIC more time to bring claims that would otherwise have been lost, thus
increasing the FDIC’s ability to collect money through litigation.” F.D.I.C. v. Chase Mortgage
Fin. Corp., No. 12CV6166, 2014 WL 4354671, at *5 (S.D.N.Y. Sept. 2, 2014). A literal reading
of the FDIC Extender Provision is thus effective to promote the purposes of the provision.
Reading the statute of repose as preempted could, furthermore, produce extraordinarily openended liability for securities issuers. If, for instance, the relevant statute of limitations is
discovery-based and the FDIC takes over as receiver prior to discovery of the wrong, the FDIC
Extender Provision, which sets the outside date as the later of the three-year period beginning on
the date the FDIC is appointed and three years after the cause of action accrues by reason of
discovery, would subject the issuer to potentially unlimited exposure to suit. Nothing in the text
of the FDIC Extender Provision suggests that Congress intended such a result.
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In UBS, the Second Circuit also relied heavily on the remedial purposes discussed
in the legislative history of the HERA statute and the mission of the FHFA, which is similar to
that of the FDIC under FIRREA. Waldburger instructs that the remedial purpose of a statute is
not a license to eschew the import of the text of an extender provision as enacted by Congress.
UBS, in citing the mission of the FHFA as the proper basis of an assumption that Congress
would not have intended to exclude securities law claims otherwise governed by a statute of
repose, appears to have taken an analytical path inconsistent with the Supreme Court’s new
guidance.4
Furthermore, although there appears to be no legislative history indicating that
Congress made a specific decision to exclude statutes of repose from the text or operation of the
FDIC Extender Provision, it is clear that Congress was well aware of the two distinct concepts
and had enacted both types of provisions in the time frame surrounding the enactment of the
FDIC Extender Provision. See In re Countrywide Financial Corp. Mortgage-Backed Securities
Litig., 966 F. Supp. 2d 1031, 1037-39 (C.D. Cal. 2013) (discussing Congressional Record
statements and statutory enactments).
The Court recognizes that the Tenth Circuit, following the Supreme Court’s
remand in light of Waldburger, adhered to its earlier holding in Nomura that the National Credit
Union Administration Board’s extender statute, which is substantially identical to the FDIC
Extender Provision, preempts both statutes of repose and statutes of limitation. See 764 F.3d at
1239. The Court respectfully disagrees with the Nomura decision on remand which, among
other things, reads a provision measuring the extended statute of limitations from the date of
appointment of the plaintiff conservator as “invok[ing] the concept of repose because it is based
4
See supra note 3.
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on when a specific event occurs, regardless of whether the plaintiff is aware of the injury.” 764
F.3d at 1211. That provision appears under the heading “Determination of the date on which a
claim accrues.” 12 U.S.C.S. § 1787(b)(14)(B) (LexisNexis 2012). As explained above, concepts
of claim accrual, and measurement from events distinct from the actions of the defendant, are
entirely inconsistent with the conceptual and practical framework of statutes of repose. Cf.
Waldburger, 134 S. Ct. at 2182.
The analytical framework set out by the Supreme Court in Waldburger calls into
question the Second Circuit’s analysis of the extender provision of HERA in its UBS decision,
implicitly overruling material aspects of the UBS decision’s rationale. “Lower courts are bound
by Second Circuit precedent ‘unless it is expressly or implicitly overruled’ by the Supreme Court
or an en banc panel of the Second Circuit. Courts have interpreted this to mean that a decision
of the Second Circuit is binding ‘unless it has been called into question by an intervening
Supreme Court decision or by one of the Second Circuit sitting in banc’ or ‘unless and until its
rationale is overruled, implicitly or expressly, by the Supreme Court, or the Second Circuit court
in banc.’” In re S. African Apartheid Litig., 15 F. Supp. 3d 454, 459-60 (S.D.N.Y. 2014)
(quoting World Wrestling Entm’t Inc. v. Jakks Pac., Inc., 425 F. Supp. 2d 484, 499 (S.D.N.Y.
2006) and United States v. Agrawal, 726 F.3d 235, 269 (2d Cir. 2013), cert. denied, 134 S. Ct.
1527 (2014)) (internal quotation marks omitted). Accordingly, the UBS decision does not bind
this Court in its evaluation of the parties’ contentions regarding the scope of the FDIC Extender
Provision.
Having considered the text of the FDIC Extender Provision in light of its
legislative context and the guidance provided by the Supreme Court’s Waldburger decision, the
Court concludes that the FDIC Extender Provision does not preempt the statute of repose set
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forth in Section 13 of the 1933 Act. Accordingly, Defendants’ motion to dismiss the Amended
Complaint as untimely is granted and the Court need not address the parties’ remaining
arguments in connection with the motion practice.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss the Amended
Complaint is granted. Plaintiff’s motion for a partial lift of the PSLRA discovery stay is denied
as moot.
The Clerk of the Court is directed to enter judgment in favor of Defendants and to
close this case.
This Memorandum Opinion and Order resolves docket entry numbers 80 and 132.
SO ORDERED.
Dated: New York, New York
March 24, 2015
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge
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