On February 27, 2013, the Supreme Court of the United States in
Gabelli v. SEC unanimously disapproved of the so-called
discovery rule for postponing the running of a statute of
limitations when a federal government agency seeks a civil
penalty. The Court held that the limitations period begins to
run once a violation occurs, and is not postponed until the agency
discovers or reasonably should have discovered the violation.
"Supreme Court Rules SEC Has Five Years to Seek
Penalties" for more information.)
Although the Gabelli decision did not directly deal
with the Occupational Safety and Health (OSH) Act, it effectively
eliminates what might have remained of the OSH Review
Commission's 1993 Johnson Controls decision, which had
endorsed the use of a discovery rule in Occupational Safety and
Health Administration (OSHA) recordkeeping cases.
Together with the U.S. Court of Appeals for the District of
Columbia Circuit's decision in AKM LLC dba Volks
Constructors v. Secretary of Labor, 675 F.3d 752 (D.C. Cir.
2012), Gabelli ends any possibility of OSHA extending the
OSH Act's limitations period. In Volks (in which
McDermott represented the employer), the D.C. Circuit disapproved
of OSHA's continuing violation theory, under which the
limitations period does not begin to run until the violation is
corrected. Although the D.C. Circuit reserved in a footnote
whether OSHA might use a discovery rule to extend the limitations
period, the Gabelli decision eliminates that
As a result, employers should not accept an OSHA citation
alleging violations more than six months old.
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stimates place the amount of money illegally "laundered" through
United States banks in the hundreds of billions of dollars each year.1
For more than five decades, the U.S. government has attacked money
laundering, in part, through anti-money laundering ("AML") disclosure,
monitoring, and reporting requirements placed on financial institutions.
We recently notified you of the FDIC’s Financial Institution Letter 47-2013 , which urges directors and officers of financial institutions to examine their institutions’ directors and officers (D&O) insurance coverage to ensure adequate protection for themselves as well as their depositors and shareholders.
Comments made by Kara N. Brockmeyer, the Securities Exchange Commission’s chief of the Foreign Corruption Practices Act unit, and Charles E. Duross, deputy chief of the Department of Justice’s FCPA unit, at the recent International Conference on the FCPA suggest that both agencies are increasing their scrutiny of possible FCPA violations for the next year.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Last Friday’s edition of the New York Law Journal features an article in its "Outside Counsel" column authored by Mintz Levin colleagues Andrew Roth and Kim Gold, entitled Cracking Down on Executive Compensation for Not-for-Profits.