National Credit Union Administration Board, as Liquidating Agent of Western Corporate Federal Credit Union, Plaintiff-Appellant,
RBS Securities, Inc., FKA RBS Greenwich Capital Markets, Inc., Defendant, and Nomura Home Equity Loan, Inc., Defendant-Appellee.
and Submitted December 8, 2015 Pasadena, California
from the United States District Court for the Central
District of California George H. Wu, District Judge,
Presiding D.C. No. 2:11-cv-05887-GW-JEM
C. Frederick (argued), Wan J. Kim, and Gregory G. Rapawy,
Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC,
Washington, D.C.; George A. Zelcs, Korein Tillery LLC,
Chicago, Illinois; Michael J. McKenna and John K. Ianno,
National Credit Union Administration, Alexandria, Virginia;
Matthew S. Hellman (argued), Barbara S. Steiner and Barry
Levenstam, Jenner & Block LLP, Chicago, Illinois, for
Defendant-Appellee Nomura Home Equity Loan, Inc.
T.G. Dworsky and David H. Fry, Munger, Tolles & Olson
LLP, San Francisco, California, for Defendant-Appellee
Wachovia Mortgage Loan Trust, LLC.
Before: Dorothy W. Nelson, Stephen Reinhardt, and Jacqueline
H. Nguyen, Circuit Judges.
panel vacated the district court's judgment dismissing as
time-barred claims brought under the Securities Act of 1933.
National Credit Union Administration Board (NCUA),
liquidating agent for a failed credit union, sued defendants
for making false and misleading statements in their offerings
of residential mortgage-backed securities purchased by the
"Extender Statute, " 12 U.S.C. § 1787(b)(14),
part of the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, establishes the applicable statute
of limitations with regard to any action brought by the NCUA
as conservator or liquidating agent for a failing or failed
credit union. The panel held that the Extender Statute
supplants the statute of repose contained within 15 U.S.C.
§ 77m, which provides that a private investor pursuing a
claim under § 11 or § 12(a)(2) of the Securities
Act must bring suit within three years after the security was
offered or sold. Joining other circuits, the panel held that
the Extender Statute replaces all preexisting time
limitations, whether styled as a statute of limitations or a
statute of repose, in any action by the NCUA as conservator
or liquidating agent. The panel also held that the Extender
Statute's scope includes actions such as this one, in
which the NCUA asserted statutory claims rather than common
law tort or contract claims. The panel distinguished CTS
Corp. v. Waldburger, 134 S.Ct. 2175 (2014), which
addressed a preemption provision of the Comprehensive
Environmental Response, Compensation, and Liability Act of
panel held that the NCUA's claims were timely filed. It
remanded the case for further proceedings consistent with its
case concerns the National Credit Union Administration
Board's (NCUA) liquidation of Western Corporate Federal
Credit Union (Wescorp). The NCUA sued Wachovia Mortgage Loan
Trust, LLC (Wachovia) and Nomura Home Equity Loan, Inc.
(Nomura) for making false and misleading statements in their
offerings of residential mortgage-backed securities (RMBS)
purchased by Wescorp. The NCUA brought these claims under the
Securities Act of 1933 (1933 Act). The district court
dismissed the NCUA's claims, ruling that 12 U.S.C. §
1787(b)(14) (the Extender Statute) did not supplant the
statute of repose contained within 15 U.S.C. § 77m, ...