National Credit Union Administration Board v Barclays Capital, Inc.

Board, as conservator for two failed credit unions, sued Barclays alleging securities fraud in connection with mortgage backed securities. The district court granted judgment to Barclays ruling the special statue of limitations in 12 USC 1787(b)(14) could not be waived by agreement and the complaints here were field outside the 3 year limit. The panel reversed. It held that the 1787 limitations period cannot be altered by contract under the plain language of the notwithstanding clause. However, it agreed with Board that Barclays is estopped from asserting the 1787 defense as it agreed not to raise it in an agreement during settlement negotiations and the 1787 period is a limitations period not a repose period based on the language of 1787 including the accrual of claim provision and the legislative history.