The Second Circuit’s holding in Police & Fire Retirement Sys. of City of Detroit v. IndyMac MBS, Inc., Nos. 11-2998-cv(L) & 11-3036-cv(CON), 2013 WL 3214588 (June 27, 2013) confirms that Section 13’s three-year statute of repose is indeed iron-clad. The case originated as a putative class action brought against IndyMac for fraud in the sale of mortgage pass-through certificates. The Southern District of New York dismissed some of the claims on the basis that the named plaintiffs had not actually purchased the securities at issue and therefore lacked standing to sue. Other members of the putative class who had purchased the securities at issue then sought to intervene in the action to revive the dismissed claims.

Although the statute of repose had passed at this point, the proposed interveners invoked the tolling doctrine of American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974), in which the Supreme Court held that the filing of a class action tolled any applicable statute of limitations with respect to the claims of putative class members. The proposed interveners argued that the American Pipe rule should apply equally to a statute of repose. But the district court, as well as the Second Circuit, found this to be an apples-to-oranges comparison and rejected intervention.