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December 15, 1992

THOMAS M. EGAN, et al., Defendants.

The opinion of the court was delivered by: MILTON I. SHADUR

 After this Court had rejected the several motions of Relief Defendants to dismiss SEC's Complaint and had therefore ordered them to answer SEC's allegations, Northern filed its Answer and Affirmative Defenses, including this Sixth Affirmative Defense:

 The relief requested by Plaintiff against Northern Investment is barred by the statute of limitations or statute of repose applicable under Federal securities laws, or in the alternative is in violation of Northern Investment's right to of [sic] due process of law guaranteed by the Fifth Amendment to the United States Constitution.

 SEC zeroed in on that statute of limitations defense with a motion to strike, and the parties have now briefed the issues.

 What is at stake here is whether any limitations period bars SEC's recovery in the same way that any private claim under Securities and Exchange Act of 1934 ("1934 Act") § 10(b) (15 U.S.C. § 78j(b)) and SEC's enabling Rule 10b-5 would be barred under the teaching of Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 111 S. Ct. 2773, 115 L. Ed. 2d 321 (1991). SEC's right to sue here is invoked under 1934 Act §§ 21(d) and (e) (15 U.S.C. § 78u (d) and (e)) and Securities Act of 1933 ("1933 Act") § 20(b) (15 U.S.C. § 77t(b)), neither of which contains an express statute of limitations.

 SEC argues persuasively that Congress' omission of a statute of limitations from those statutory authorizations to sue is difficult to label as inadvertent--for at the same time as the respective enactments of those provisions, both the 1933 Act and the 1934 Act specifically defined limitation periods for various express private rights of action conferred by those statutes (see 1933 Act § 13 (15 U.S.C. § 77m) and 1934 Act §§ 9(e), 16(b) and 18(c) (15 U.S.C. §§ 78i(e), 78p(b) and 78r(c)). It has long been accepted that no statute of limitations operates against the government when it sues in its governmental capacity--see, e.g., the historical excursion into the rule quod nullum tempus occurrit regi in Guaranty Trust Co. v. United States, 304 U.S. 126, 132-33, 82 L. Ed. 1224, 58 S. Ct. 785 (1938). *fn2" And in the securities area Congress has known precisely how to curb SEC whenever Congress wishes to do so by imposing time constraints (see 1934 Act § 21A(d)(5) (15 U.S.C. § 78u-1 (d)(5)) and 1934 Act § 20A(b)(4) (15 U.S.C. § 78t-1(b)(4)).

 Northern first responds (its Mem. 2) that SEC's motion to strike is "premature" and that this Court should not entertain the motion "before any significant factual inquiry has been conducted." *fn3" That type of argument, really bizarre when the legal sufficiency of an affirmative defense is at issue, is not calculated to inspire much confidence in what Northern then has to say on the merits of the matter. But this Court has not therefore been tempted to apply notions of guilt by association--instead it has looked at Northern's substantive arguments without reference to the frivolousness of Northern's opening procedural volley.

 In substantive terms Northern attempts to ground its case primarily in Lampf, which said at 111 S. Ct. 2782 (in the limited context of the implied private right of action under 1934 Act § 10(b) and Rule 10b-5):

 Litigation instituted pursuant to § 10(b) and Rule 10b-5 therefore must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation.

 According to Northern, the Court's failure to begin that sentence with the words "Private litigation" rather than "Litigation" means that the time limitations extend to SEC actions as well. That is an extraordinary way to read a Supreme Court opinion in which the always-careful Justice Blackmun, writing for the Court, began the Lampf opinion with this wholly unambiguous statement of precisely what the Court was deciding in the first place (111 S. Ct. at 2776):

 In this litigation we must determine which statute of limitations is applicable to a private suit brought pursuant to § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U.S.C. § 78j(b), and to Securities and Exchange Commission Rule 10b-5, 17 CFR § 240.10b-5 (1990), promulgated thereunder.

 And Northern's proposed reading is doubly extraordinary given the fact that the "1-and-3-year" limitations structure, which the Court announced for such private claims, was drawn directly from other private causes of action that are expressly set out in the 1933 and 1934 Acts (111 S. Ct. at 2777).

 Northern's effort at the divination of Lampf's entrails also points to the passing reference in Justice Blackmun's opinion (111 S. Ct. at 2778 n.3) to Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 53 L. Ed. 2d 402, 97 S. Ct. 2447 (1977). As SEC points out, that reference occurs in the one segment of Justice Blackmun's opinion that did not command a majority of the Court. *fn4" But quite apart from that, Northern's attempt to draw any inference from another attenuated inference is much like the multiplication of minor fractions--the absolute value diminishes with ...

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