The Sixth Circuit ruled that ERISA’s six-year statute of repose can be tolled by the parties even though it is a statute of repose. During pre-litigation negotiations between the U.S. Department of Labor and a trustee of an employee stock ownership plan, the parties signed a series of tolling agreements, which delayed the filing of any action in exchange for the trustee agreeing not to raise a timeliness defense if the DOL later sued. Ultimately, the negotiations failed and the DOL sued the trustee for breach of fiduciary duty and prohibited self-dealing.  The trustee moved to dismiss the complaint, arguing that the claims were untimely and that the tolling agreements were invalid because ERISA’s six-year statute of repose is jurisdictional and therefore cannot be waived. Even if not jurisdictional, the trustee argued, a statute of repose is per se immune from waiver. The Sixth Circuit held that ERISA’s six-year statute of repose is not jurisdictional because ERISA does not contain the clear textual indication required to characterize the limitation as such. The Court also explained that, contrary to the trustee’s argument, there is well-established precedent holding that statutes of repose are subject to express waiver, particularly when the statute setting forth the limitation period does not contain a categorical rule prohibiting waiver. The case is Sec’y, United States DOL v. Preston, No. 17-10833, 2017 U.S. App. LEXIS 19926 (11th Cir. Oct. 12, 2017).

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