On August 17, 2022, Judge Steven D. Grimberg of the United States District Court for the Northern District of Georgia granted a motion to dismiss a putative class action alleging an investment bank (the “Company”), certain of its advisors (the “Advisor Defendants”), and certain of its external accountants (the “Accounting Defendants”) aided and abetted one of the Company’s former advisors (the “Individual Defendant”) in facilitating an alleged decade-long Ponzi scheme.  6694 Dawson Blvd, LLC v. Oppenheimer & Co., Inc., et al., 1:21-cv-03625.  (N.D. Geo. Aug. 17, 2022).  Plaintiffs alleged that defendants misrepresented or concealed material facts that, had plaintiffs known, would have caused them not to purchase allegedly “bogus” securities from the Individual Defendant.

On February 26, 2020, the United States Supreme Court, in a unanimous decision by Justice Samuel Alito, held that for purposes of assessing the appropriate statute of limitations for a breach of fiduciary duty claim under the Employee Retirement Income Security Act of 1974 (“ERISA”), a plaintiff does not gain “actual knowledge” of allegedly improper investments disclosed in documents that he receives but does not read or cannot recall reading.  Intel Corp. Inv. Policy Comm. v. Sulyma,—U.S.—, 2020 WL 908881 (2020).  Thus, under such circumstances, the applicable statute of limitations is ERISA’s general six-year statute of repose, which begins to run from “the date of the last action which constituted a part of the breach or violation,” rather than the three-year limitations period, which begins to run from the earliest date on which a plaintiff gains “actual knowledge” of the breach or violation.  Id. at *2.