It’s Time to Adopt the Standard Accrual Rule for Civil RICO Claims

Health care partner Jesse Witten and business litigation associate Nick Merrill co-authored an article for the D.C. Bar’s Washington Lawyer publication to discuss the Supreme Court’s recent application of what it calls the “standard rule” for civil Racketeer Influenced Corrupt Organizations Act (RICO) claims.

The article explains that, under the standard rule, a federal statutory cause of action accrues once all the elements are present. This rule rejects the position that a federal statutory claim does not accrue until after the plaintiff discovers its injury.

Witten and Merrill also provide background on the rationales federal circuit courts have used to adopt different accrual rules, including the "injury discovery" rule, "injury and pattern discovery" rule, and the “last predicate act” rule. They note that since a majority of the courts have adopted the injury discovery rule – that the limitations period begins to run when plaintiffs knew or should have known they were injured – the Supreme Court's more recent adoption of the standard rule casts serious doubt on these decisions.

“Adopting clear, presumptive rules is important to the rule of law. Otherwise, the meaning of statutes will be left too often to judicial whims. It is the responsibility of Congress - not federal courts – to establish limitations periods and rules for accrual of statutory causes of action,” the authors conclude.