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National Credit Union Administration Board v. RBS Securities, Inc.

United States Court of Appeals, Ninth Circuit

August 15, 2016

National Credit Union Administration Board, as Liquidating Agent of Western Corporate Federal Credit Union, Plaintiff-Appellant,
v.
RBS Securities, Inc., FKA RBS Greenwich Capital Markets, Inc., Defendant, and Nomura Home Equity Loan, Inc., Defendant-Appellee.

          Argued and Submitted December 8, 2015 Pasadena, California

         Appeal 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

          David 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; for Plaintiff-Appellant.

          Matthew S. Hellman (argued), Barbara S. Steiner and Barry Levenstam, Jenner & Block LLP, Chicago, Illinois, for Defendant-Appellee Nomura Home Equity Loan, Inc.

          Marc 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.

         SUMMARY[*]

         Securities

         The panel vacated the district court's judgment dismissing as time-barred claims brought under the Securities Act of 1933.

         The 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 credit union.

         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 1980.

         The panel held that the NCUA's claims were timely filed. It remanded the case for further proceedings consistent with its opinion.

          OPINION

          D.W. Nelson Judge

         This 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, ...


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