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In the Courts
On Feb. 27, 2013, the United States Supreme Court unanimously rejected an argument advanced by the U.S. Securities and Exchange Commission (SEC) that the so-called “discovery rule” would apply to civil penalties cases involving fraud, such that the statute of limitations would not begin to run until the fraud was discovered. The case, Gabelli v. Securities and Exchange Commission, 133 S.Ct. 1216 (2013), involved an SEC civil penalties case in which the petitioners were sued by the SEC with respect to fraud allegations under the Investment Advisers Act of 1940.
The Investment Advisers Act makes it illegal for investment advisers to defraud their clients, and allows the SEC to seek civil penalties through an enforcement action against investment advisers who violate the Act. In a 2008 complaint, the petitioners, a portfolio manager and chief operating officer of an investment advisory firm, were alleged to have aided and abetted fraud between 1999 until 2002 by allowing one investor in the fund they advised to covertly engage in a trading strategy that would harm other investors in exchange for investing in a hedge fund run by one of the petitioners. Id. at 1217-19.
In response to the SEC's complaint, the petitioners filed a motion to dismiss. They argued in part that the claims were time-barred, as the alleged conduct only extended to August 2002, while the complaint was not filed until April 2008. Id. at 1220. The District Court agreed and dismissed the claim as time-barred. However, the Second Circuit reversed, accepting the SEC's argument that the “discovery rule” should apply such that the claim would not accrue until it was discovered or could have been discovered through reasonable diligence by the plaintiff. 653 F. 3d 49, 59 (2011).
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