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California Public Employees’ Retirement System v. ANZ Securities Post-Decision SCOTUScast

SCOTUScast 8-9-17 featuring Mark Chenoweth
Mark Chenoweth August 09, 2017

On June 26, 2017, the Supreme Court decided California Public Employees’ Retirement System v. ANZ Securities. Between 2007 and 2008, Lehman Brothers Holdings raised capital through a number of public securities offerings. California Public Employees’ Retirement System (CalPERS) purchased some of these securities.  In 2008, a putative class action alleging federal securities law violations was filed against respondents--various financial firms involved in underwriting the offerings--in the U.S. District Court for the Southern District of New York.  Because the complaint was filed on behalf of all persons who purchased the identified securities, petitioner CalPERS fell within the putative class. In 2011, however, CalPERS filed a separate action, alleging identical violations against respondent firms in the U.S. District Court for the Northern District of California.  That suit was then transferred and consolidated with other related litigation in the Southern District of New York.  The New York class action then settled, but CalPERS opted out of the settlement. Respondents thereafter moved to dismiss CalPERS’ separate suit based on Securities Act language providing 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,” the CalPERS suit having fallen outside the three-year limit.  CalPERS argued that the time limit was equitably tolled during the pendency of the class action, but the district court rejected the claim and U.S. Court of Appeals for the Second Circuit affirmed.

By a vote of 5-4, the Supreme Court affirmed the judgment of the Second Circuit. In an opinion by Justice Kennedy, the Court held that CalPERS’ untimely filing of its individual complaint more than three years after the relevant securities offering was grounds for dismissal.  The three-year limitation in the Securities Act, the Court indicated, is a “statute of repose” and therefore not subject to equitable tolling.  Justice Kennedy’s majority opinion was joined by the Chief Justice and Justices Thomas, Alito, and Gorsuch. Justice Ginsburg filed a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined.

And now, to discuss the case, we have Mark Chenoweth, who is General Counsel for the Washington Legal Foundation.

The Future of Fintech Regulation - Podcast

Financial Services & E-Commerce Practice Group Podcast
Brian Knight, John W. Ryan, Wayne A. Abernathy August 07, 2017

Technology is having a significant impact on how financial services are being delivered. The rise of non-bank financial firms using the internet as a means of distribution is calling into question the divide between state and federal regulation and the definition of what a “bank” is. The Office of the Comptroller of the Currency has responded by offering a new banking charter for non-depository fintech firms, while the states have filed law suits to prevent what they see as an illegal overreach by the OCC into their jurisdiction. How fintech firms are regulated, and by whom, could have a significant impact on how innovative, accessible, and inclusive financial services are in the future.

Featuring: 

  • Brian Knight, Senior Research Fellow, Financial Markets Working Group, Mercatus Center, George Mason University
  • John W. Ryan, President and Chief Executive Officer, Conference of State Bank Supervisors
  • Moderator: Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association

Federal Reserve Accountability and the CHOICE Act - Podcast

Financial Services & E-Commerce Practice Group Podcast
Alex J. Pollock, Norbert J. Michel June 15, 2017

To whom is the Federal Reserve accountable?  Does the Fed's insistence on its "independence" mean it thinks the answer is: To no one?  Who should oversee the results, successful or unsuccessful, of the Fed's actions?  One answer was given by a former president of the New York Fed years ago: "The Congress which set us up has the authority and should review our actions at any time they want to, and in any way they want to."  The CHOICE Act, recently passed by the House Financial Services Committee would in its Title X., "Fed Oversight Reform," create greater Fed accountability to the Congress.This Federalist Society Teleforum explored the bill's provisions and the issues involved.

Featuring: 

  • Alex Pollock, Senior Fellow, R Street Institute
  • Norbert Michel, Senior Research Fellow, Financial Regulations and Monetary Policy, The Heritage Foundation