Commercial Litigation and Arbitration

For RICO Statute of Limitations Accrual Purposes, Date of Injury = Date of Investment

From Daly v. Pearl Spirits, Inc., 2009 U.S. Dist. LEXIS 108188 (N.D. Cal. Nov. 19, 2009):

In Volk v. Davidson, 816 F.2d 1406 (9th Cir. 1987), the Ninth Circuit held that receiving written disclosure of the possibility of injury was sufficient to put a RICO plaintiff on constructive notice of his injury.... There, the plaintiffs had invested in land, and the offering materials stated that the land contained a substantial amount of coal and would therefore result in tax benefits to the plaintiffs.... In 1978, the plaintiffs learned from the general partner that the land in fact contained less coal than had been represented.... In 1982, the IRS disallowed the deductions plaintiffs had taken in 1976-1978 as a result of the low quantity of coal present on the land....

Although the Volk plaintiffs argued that their injury occurred in 1982, the Ninth Circuit rejected their argument, holding that cognizable injury occurs when an investor enters into a transaction as a result of material misrepresentations.... "This constitutes the injury giving rise to a cause of action, even if an actual monetary loss is not sustained until later." ... "Appellants should have brought their action once they discovered or should have discovered the facts constituting their claim. Defrauded securities purchasers are not permitted to delay in bringing an action while avoidable damages accrue."

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