Fed. Sec. L. Rep. P 95,379 Marian W. Short v. Belleville Shoe Manufacturing Company

908 F.2d 1385, 1990 U.S. App. LEXIS 12829, 1990 WL 106178
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 30, 1990
Docket89-3271
StatusPublished
Cited by183 cases

This text of 908 F.2d 1385 (Fed. Sec. L. Rep. P 95,379 Marian W. Short v. Belleville Shoe Manufacturing Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fed. Sec. L. Rep. P 95,379 Marian W. Short v. Belleville Shoe Manufacturing Company, 908 F.2d 1385, 1990 U.S. App. LEXIS 12829, 1990 WL 106178 (7th Cir. 1990).

Opinions

EASTERBROOK, Circuit Judge.

Belleville Shoe Manufacturing Company redeemed 550 shares of its stock from Marian Short in 1977, paying $273 per share. Twelve years later Short filed this suit under § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and the SEC’s Rule 1 Ob-5, 17 C.F.R. § 240.10b-5, contending that Belleville (a closely-held, family corporation) and its controlling shareholders had defrauded her about the value of the shares. They painted a gloomy picture of the firm’s prospects in 1977; it has prospered since. Short depicts her brother Homer Weidmann, an officer of Belleville, as her principal business adviser and contends that she delayed filing suit because Weidmann repeatedly assured her that she had received a fair price in 1977.

The district court dismissed the case under Fed.R.Civ.P. 12(b)(6), concluding that Short could not escape the statute of limitations. Short relies on state and federal tolling rules. Defendants respond that we should not inquire into tolling because § 13 of the ’33 Act, 15 U.S.C. § 77m, which they ask us to apply, sets three years as an unyielding limit. Defendants ask, in other words, that we cease looking to state law [1387]*1387as a source of periods of limitations in securities cases, on the authority of Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987), which applied a federal statute of limitations (from the antitrust laws) to cases under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-68.

I

A

For many years we have applied to cases under Rule 10b-5 statutes of limitations borrowed from state blue sky statutes, adding an overlay of tolling principles from state and federal law. Davenport v. A.C Davenport & Son Co., 903 F.2d 1139 (7th Cir.1990), is the.most recent in a line going back at least to Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123, 125-27 (7th Cir.1972). See also, e.g., Norris v. Wirtz, 818 F.2d 1329 (7th Cir.1987); Teamsters Local 282 Pension Trust Fund v. Angelos, 815 F.2d 452 (7th Cir.1987); Suslick v. Rothschild Securities Corp., 741 F.2d 1000 (7th Cir.1984); Goldstandt v. Bear, Stearns & Co., 522 F.2d 1265 (7th Cir.1975); Tomera v. Galt, 511 F.2d 504 (7th Cir.1975). Like the other courts of appeals, we looked to state law because Congress has not enacted a statute of limitations for Rule 10b-5, and could hardly have been expected to— for the right of action under Rule 10b-5 was created by the courts rather than Congress. Section 10(b) itself grants rulemak-ing authority to the SEC; because it does not create a right of action, it is not accompanied by a statute of limitations.

Because Congress was silent, we applied the principle, derived from the Rules of Decision Act, 28 U.S.C. § 1652, that when federal law is deficient, state law fills the gap. One of the venerable applications is to obtain periods of limitations from state law. E.g., Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 704, 86 S.Ct. 1107, 1112, 16 L.Ed.2d 192 (1966) (collecting cases). This is so predictable that Congress may anticipate it, so that when it does not enact a federal statute of limitations it means to leave in place the background rule that state law applies. See Reed v. United Transportation Union, 488 U.S. 319, 109 S.Ct. 621, 625, 102 L.Ed.2d 665 (1989); Agency Holding, 483 U.S. at 147, 107 S.Ct. at 2762; DelCostello v. Teamsters, 462 U.S. 151, 158, 103 S.Ct. 2281, 2287, 76 L.Ed.2d 476 (1983). Federal courts are so accustomed to turning to state periods of limitations that we (and our colleagues in other circuits) did this on auto-pilot, without discussing whether something differentiated securities laws from other statutes. See also Ernst & Ernst v. Hochfelder, 425 U.S. 185, 210 n. 29, 96 S.Ct. 1375, 1389 n. 29, 47 L.Ed.2d 668 (1976); Herman & MacLean v. Huddleston, 459 U.S. 375, 384 n. 18, 103 S.Ct. 683, 688 n. 18, 74 L.Ed.2d 548 (1983), both recognizing the prevailing practice.

Yet there are differences. One is that Congress could hardly have anticipated that courts would turn to state law for a period of limitations, when Congress did not create the right of action in the first place. We are not dealing here with a problem of deciding whether Congress meant to depart from a norm; we have a problem of the courts’ creation. See United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 68 n. 4, 101 S.Ct. 1559, 1567, 67 L.Ed.2d 732 (1981) (Stewart, J., concurring); DelCostello, 462 U.S. at 158-59 n. 12, 103 S.Ct. at 2287 n. 12. Federal courts have an obligation to create stable periods of limitations for their handiwork. Smith v. Chicago, 769 F.2d 408 (7th Cir.1985).

A second difference is that Congress has not been silent. The securities acts are jammed with statutes of limitations. For every statutory right of action there is a corresponding statute of limitations. The Securities Act of 1933 gave the purchaser two years from the date of discovering the fraud, but in no event more than ten years from the date of sale. 48 Stat. 84 (1933). When Congress enacted the ’34 Act, it amended this statute (now § 13 of the ’33 Act) and added four more, one for each of the new express rights of action. See §§ 9(e), 16(b), 18(c), and 29(b), 15 U.S.C. §§ 78i(e), 78p(b), 78r(c), and 78cc(b). In 1988 it added another for inside trading [1388]*1388cases, 102 Stat. 4680-81, to be codified as § 20A, 15 U.S.C. § 78t-1.

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Bluebook (online)
908 F.2d 1385, 1990 U.S. App. LEXIS 12829, 1990 WL 106178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fed-sec-l-rep-p-95379-marian-w-short-v-belleville-shoe-manufacturing-ca7-1990.