Dodd Frank’s Revisions To SOX (Part 2)

Today we are posting on Dodd Frank’s revisions to SOX. This post addresses the statute of limitations.

Section 922(c) increased the statute of limitations for SOX whistleblower claims from 90 to 180 days and clarified that SOX retaliation plaintiffs can elect to try their cases in federal court before a jury. Courts have addressed, but largely not ruled on, whether Dodd-Frank’s change in the statute of limitations applicable to SOX is retroactive. See, e.g., Riddle v. Dyncorp Int’l Inc., 666 F.3d 940, 944 (5th Cir. 2012) (concluding that Dodd–Frank’s statute of limitations can be applied to a pending case, unless the effect would be to revive a claim that expired before the statute’s effective date); Saunders v. District of Columbia, 789 F. Supp. 2d 48, 52 n. 3 (D.C.C. 2011) (considering the retroactive application of Dodd–Frank’s statute of limitations, but declining to reach a decision on the merits); Lindsay v. Technical Coll. Sys. of Georgia, 2011 WL 1157456, at *6 (N.D. Ga. Mar. 29, 2011) (considering the retroactive application of Dodd–Frank’s statute of limitations, but declining to reach a decision on the merits); Citgo Petroleum Corp. v. Bulk Petroleum Corp., 2010 WL 3212751, at *8 n. 4 (N.D. Okla. Aug. 12, 2010) (holding that Dodd–Frank’s extension of the limitations period of the Equal Credit Opportunity Act should not be applied retroactively because there is no clear indication in the Act that it is to be applied retroactively).

In Ashmore v. CGI Group Inc., No. 11 Civ. 8611(LBS), 2012 WL 2148899 (S.D.N.Y. June 12, 2012), the plaintiff was fired shortly before the change in the law from a 90 to a 180 day limitations period, and then filed his complaint 177 days later, after the law had changed. The district court rejected the employer’s motion to dismiss based on the limitations period, stating:

Defendants argue that applying the 180–rather than the 90–day limitations period to Ashmore’s claim would be an improper retroactive application of the Dodd–Frank Act amendments. We disagree. As the Second Circuit has made clear, “applying a new or amended statute of limitations to bar a cause of action filed after its enactment, but arising out of events that predate its enactment, generally is not a retroactive application of the statute.” Vernon v. Cassadaga Valley Cent. Sch. Dist., 49 F.3d 886, 889–890 (2d Cir. 1995). Because Ashmore filed both his whistleblower complaint with the Secretary and his civil complaint with this Court after the 2010 amendments went into effect, on July 22, 2010, the 180–day statute of limitations thus applies without raising any retroactivity concerns. Applying the 180–day limitations period set forth in the amended 18 U.S.C. § 1514A(b)(2) (D) we conclude that Ashmore’s complaint is timely.

Id. at *5.

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