National Law Journal Publishes Article by 3 Curtis Lawyers on Potential Impact of SEC-Gabelli Supreme Court Case

An article by Curtis Litigation partner Eliot Lauer, counsel Jason Gottlieb, and associate Ellen Tobin, entitled, 'The Past Is Never Dead,' was published in the December 10, 2012 National Law Journal on page 30 and on the web.

The article analyzes the Second Circuit's decision in S.E.C. v. Gabelli, which is being reviewed by the Supreme Court this term, in particular the Second Circuit's holding that 28 U.S.C. § 2462, the federal law stating that administrative agencies have five years from 'the date when the claim first accrued' to commence any action seeking civil penalties, includes a 'discovery rule' giving the S.E.C. five years to initiate an action from the date the S.E.C. first discovered the alleged wrongdoing, not when the wrongdoing actually occurred.

The authors write that the ramifications of the Supreme Court's decision may be far broader than just S.E.C. actions. Absent specific Congressional guidance, Section 2462 also applies to other administrative agencies with significant regulatory authority, such as the Internal Revenue Service in bringing actions against tax professionals; the Environmental Protection Agency in bringing actions under the Clean Air Act or the Clean Water Act; the Federal Trade Commission in certain actions; and many others. A Supreme Court ruling that sides with the S.E.C. could unleash an avalanche of unintended consequences, and allow federal agencies to pursue conduct that has long past.