New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration
« Back to Complex Lit Blog

RICO Statute of Limitations — Notice of Injury vs. Fraudulent Concealment — Disregard of Prior Order as Tolling Statute

Download PDF

From Pecot v. S.F. Deputy Sheriff’s Ass’n, 2009 U.S. Dist. LEXIS 21710 (N.D. Cal. Mar. 6, 2009):

Civil RICO claims are subject to a four-year statute of limitations. Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156 (1987). "The limitations period for civil RICO actions begins to run when a plaintiff knows or should know of the injury which is the basis for the action." Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 365 (9th Cir. 2005). "The plaintiff is deemed to have constructive knowledge of the injury when it had enough information to warrant an investigation which, if reasonably diligent, would have led to discovery of the fraud." Id. (internal quotations marks and citation omitted). Courts ordinarily leave "the question of whether a plaintiff knew or should have become aware of fraud to the jury." Id.

***

Although Plaintiffs oppose defendants' motion on the grounds of fraudulent concealment, the proper inquiry is whether the complaint alleges when the statute of limitations began to run, that is, whether the complaint alleges facts that establish as a matter of law that Plaintiffs knew or should have known of the fraud more than four years before the complaint was filed. See Living Designs, Inc., 431 F.3d at 365-66. ***

The complaint's allegations and attached exhibits demonstrate that prior to November 10, 2004 Plaintiffs had actual or at least constructive notice of defendants' scheme to use SFDSA [San Francisco Deputy Sheriff's Association] funds to pay Wong's mortgage. Plaintiffs allege that on September 8, 2004, plaintiff Owyang submitted written charges to the SFDSA Board of Directors seeking Wong's removal for, among other things, misappropriating SFDSA funds to pay his mortgage. The claim based on this injury is nonetheless not barred because the complaint also alleges that a committee appointed to investigate the charges determined that Wong had wrongfully misappropriated SFDSA funds and ordered him to repay those funds. Defendants do not cite any case that suggests that the statute of limitations continues to run even after the defendants have been ordered to "repay" their fraud and thus rectify the RICO injury. Thus, defendants have not proved that the statute of limitations bars Plaintiffs' RICO claim to the extent it is based on the use of SFDSA fund to pay Wong's mortgage.

Share this article:

Facebook
Twitter
LinkedIn
Email

Recent Posts

RICO: Indirect Injury Unrecoverable — Indirect Purchaser Rule Imported from Antitrust

Rule 11 Sanctions: (1) Improper Purpose of Harassment Reasonably Determined Based on Past Tactics (25 Lawsuits, 14 Ethics Complaints, and 150 FOIA Requests) As Well As Present Behavior — (2) Hearings Are Not Only Not Required to Satisfy Due Process But, If The Record Is Otherwise Adequate, Are Affirmatively Discouraged

RICO and Probate Exception to Federal Jurisdiction: Federal Jurisdiction over RICO Claim Not Barred by Probate Exception Even If the Federal Judgment May Be Binding on the Probate Proceedings (Or Vice Versa) — Calculating Damages Based on Diminution of Value of Estate ≠ Administration of the Estate — Doesn’t Matter If RICO Misconduct Includes Defendants’ Actions with Respect to The Estate

RICO: No Causation Where Harm Flowed Several Steps After the Fraudulent Acts — RICO Causation Same As Antitrust Causation

Sanctions vs. Automatic Stay: Imposition of Sanctions (Here, Inherent Power Sanctions) Is Subject to the Police Power Exception to the Automatic Stay in Bankruptcy

The Word “Include” May Be A Word of Limitation As Opposed to a Word of Enlargement, Depending on the Context

RICO — Pleading Conspiracy — Plaintiffs Must Plausibly Allege That the Defendants Knowingly Joined the RICO Conspiracy — Sparse Allegations of Knowledge of Fraud Due to Participation in a Commercial Transaction Insufficient to State RICO Conspiracy Claim Where Allegations Not Inconsistent with Ordinary Commercial Behavior — While Knowledge May Be Pled “Generally” under Rule 9(b), It Cannot Be Alleged Conclusorily and Must Satisfy the Twiqbal Plausibility Standard

Depositions: Improper to Object to Form to Straightforward Questions (Not Compound, Vague, Leading or Speculative) — Lack of Foundation Objection Improper in 30(b)(6) Deposition — Improper to “Educate” Witness During Breaks of 30(b)(6) Deposition Through Witness Calls to Knowledgeable Corporate Colleagues — Magistrate Judge May Impose Financial Sanctions

Spoliation/Sanctions: “A Party Does Not Spoliate Evidence When, Without Notice Of The Evidence’s Potential Relevance, It Destroys The Evidence According To Its Policy Or In The Normal Course Of Its Business” (Good Quote)

RICO: Fraud on Government Entities Causing Plaintiffs to Pay More for Inmate Calls Actionable on Bridge v. Phoenix Bond Analysis — Fact That Governments Had Separate Injuries As Part of the Scheme (from Reduced Commissions) Irrelevant — Plaintiffs’ Injuries Not Derivative of Governments’ — The Fraud on the Governments Was Not Too Distinct From Plaintiffs’ Injuries But Rather Necessary to Injure Plaintiffs — No Risk of Duplicative Recoveries and No Plaintiff Better Situated to Sue for Plaintiffs’ Injuries

Archives
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

New York Office

© 2024 Joseph Hage Aaronson LLC  
Disclaimer | Attorney Advertising Notice | Legal Notice