The US Supreme Court has agreed to hear an appeal by two Gabelli executives who claim the SEC waited too long to bring a civil case action against them for market timing activity. The case addresses the question of when the statute of limitations clock begins to run and could have significant implications on the SEC investigative process. The Gabelli executives argue that the alleged market timing activity took place six years before the SEC brought suit, well outside the five year statute of limitations. However, the SEC counters that the statute of limitations clock did not begin to tick until the fraud claim could have been discovered with reasonable due diligence, and that they brought suit within five years of that date. Many are concerned that if the Supreme Court agrees with the SEC, it could create great uncertainty in the industry about when civil charges could be brought. On the other hand, a statute of limitations clock that starts running as soon as a claim “accrues” could diminish the SEC’s enforcement power. A decision is expected by next June.
