On June 27, 2013, the Second Circuit held that the tolling rule set forth by the Supreme Court in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 554 (1974), does not apply to the three year statute of repose in Section 13 of the Securities Act of 1933. In re IndyMac Mortgage-Backed Sec. Litig., Nos. 11-2998, 11-3036 (2d. Cir. June 27, 2013). In American Pipe, the Supreme Court held that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” The named plaintiffs in In re IndyMac brought securities claims against IndyMac; some of those claims were dismissed for lack of standing because the named plaintiffs had not purchased the securities at issue. Several class members who were not named plaintiffs, but who had purchased the relevant securities, moved to intervene. Despite raising their claims more than three years after their claims arose, the intervenors argued that the tolling rule set forth in American Pipe applied and their claims were timely. The principal issue before the Second Circuit was whether American Pipe tolling, which applies to statutes of limitations, also applies to statutes of repose. Tolling can be either equitable or legal in nature. Statutes of limitations are often subject to equitable considerations such as tolling, but statutes of repose completely extinguish a cause of action after the passage of time. Thus, if American Pipe tolling is equitable in nature, it would not apply to Section 13. The Second Circuit held that, even assuming American Pipe is a form of legal tolling, the Rules Enabling Act prohibited the extension of the Section 13 statute of repose. The Rules Enabling Act forbids interpreting Rule 23 of the Federal Rules of Civil Procedure to abridge or modify any substantive right. The Second Circuit reasoned that permitting a plaintiff to file a complaint or intervene after the repose period set forth in Section 13 of the Securities Act has expired would affect an existing legal right in violation of the Rules Enabling Act.