The Clearing House (TCH), along with the ABA and SIFMA, filed an amicus brief in support of the defendants’ petition for certiorari in FDIC v. First Horizon. The case is one of the many “extender” statute cases that poses the question of whether the Federal Deposit Insurance Act extender statute displaces both preexisting statutes of limitations and statutes of repose when it sets the “applicable statute of limitations” for the FDIC to bring suit as a receiver. In the brief, the trades argue that (i) the Second Circuit’s decision defies and is flatly inconsistent with Supreme Court precedent and the text of the Statute and overlooks the critical significance of the Securities Act of 1933’s statute of repose; (ii) the decision departs from the Court’s teaching on the importance of applying laws as they are written by Congress, rather than applying them based on subjective judicial assertions of legislative purpose; (iii) the trades’ members rely on the fair, consistent and timely enforcement of the securities laws to deter and remedy wrongdoing in order to provide the markets with a measure of certainty and finality, set a time after which participants are free from lingering liabilities and stale claims, and ensure that claims can be adjudicated based on evidence that is fresh; (iv) the Supreme Court’s review of this case is imperative to bring the lower courts’ constructions of extender statutes and treatment of critical statutes of repose into alignment with this Court’s holdings on extender statutes.
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