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The Statute of Limitations Governing SEC Actions Against Foreign Defendants
There is no express statute of limitations governing lawsuits instituted by the Securities and Exchange Commission (SEC), including for violations of the Foreign Corrupt Practices Act (FCPA), 15 U.S.C. ' 78dd-1, et seq.; thus, the federal “catch-all” statute of limitations, 28 U.S.C. ' 2462, applies to any such claims for civil penalties. That statute provides: “Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon.”
The Tolling Provision
Although targets of the SEC's FCPA investigations increasingly are foreign issuers and foreign defendants who never have resided in the United States, there is scant case law interpreting the tolling provision of ' 2462 (“if ' the offender is found within the United States ' .”). Recently, a federal district court judge in the Southern District of New York issued an expansive interpretation of the tolling provision, effectively holding that the statute of limitations is tolled indefinitely so long as the foreign defendant is not found within the United States. We argue that this holding fails to sufficiently credit the stated and unambiguous purpose for which ' 2462 was enacted, and ignores the important laudatory purposes of statutes of limitations, as recently reaffirmed in the Supreme Court's decision in Gabelli v. SEC, 133 S. Ct. 1216 (2013).”
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