Recently, several New York Courts have rendered decisions addressing whether Statute of Limitations concerns affect whether a party can maintain an action, or whether a dismissal was merited.
On July 2, 2018, a federal judge in California denied a defendant’s motion to dismiss a federal government’s wire fraud indictment on the basis that it was time-barred. See United States v. Bogucki, 18-cr-00021. The defendant, Bogucki, a trader at Barclays Bank, was alleged to have deceived Hewlett Packard in a 2011 options trade. In January 2018, the government filed an initial indictment charging Bogucki with one count of conspiracy to commit wire fraud and six counts of substantive wire fraud. In filing the original indictment, the government relied upon a tolling order it had obtained from the Court pursuant to 18 U.S.C. 3292 based upon the government’s assertion that evidence the government needed was in a foreign country. Thereafter, the Department of Justice closed its investigation of Barclays in return for certain conditions in a Declination Letter. In consideration for the government’s agreement not to prosecute, Barclays agreed to pay over $12 million in combined restitution and disgorgement. The government subsequently filed a superseding wire fraud indictment against Bogucki. In filing the superseding indictment, the government dropped its reliance on the tolling order and instead stated that it was solely relying on the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), 18 U.S.C. 3293(2), which provides for a 10-year statute of limitations for wire fraud charges “if the [charged] offense affects a financial institution.”
On June 28, 2018, the Securities and Exchange Commission (the “SEC”) voted to propose amendments to the rules governing its whistleblower program. The whistleblower program was established in 2010 as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act. It added Section 21F to the Securities Exchange Act of 1934 (the “Exchange Act”), establishing the Commission’s whistleblower program. The public comment period is for 60 days following publication of the proposing release in the Federal Register.