     11-1522-cv
     Koch v. Cristie’s Int’l PLC

 1                     UNITED STATES COURT OF APPEALS
 2
 3                                 FOR   THE   SECOND CIRCUIT
 4                    ____________________________________
 5
 6                                  August Term, 2011
 7
 8        Argued:     May 2, 2012                      Decided: October 4, 2012
 9
10                            Docket No. 11-1522-cv
11                    ____________________________________
12
13                                   WILLIAM I. KOCH,
14
15                                                              Plaintiff-Appellant,
16
17                                              —v.—
18
19      CHRISTIE’S INTERNATIONAL PLC, A U.K. PUBLIC LIMITED COMPANY,
20        CHRISTIE, MASON & WOODS, LIMITED, A U.K. PRIVATE LIMITED
21         COMPANY, CHRISTIE’S INCORPORATED, A NEW YORK CORPORATION
22
23                                                 Defendants-Appellees.
24                     ___________________________________
25
26     Before: SACK and RAGGI, Circuit Judges, and KOELTL, District
27                                Judge.*
28
29         This is an appeal from the judgment of the United States

30   District Court for the Southern District of New York (Jones,

31   J.) dismissing the civil RICO conspiracy and common law fraud

32   claims of plaintiff-appellant William I. Koch against the

33   defendants after determining that the statute of limitations



     * The Honorable John G. Koeltl, of the United States District
     Court for the Southern District of New York, sitting by
     designation.




                                               -1-
 1   for those claims had expired.      The claims relate to alleged

 2   fraud in falsely attributing bottles of wine to Thomas

 3   Jefferson’s collection.   Because we find that Koch’s claims

 4   were time-barred, we affirm the judgment of the District

 5   Court.

 6   ______________
 7
 8   Edward M. Spiro, Barbara L. Trencher, Adam L. Pollock,
 9   Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, P.C., New
10   York, NY, and Irell & Manella LLP, Newport Beach, CA, for
11   Plaintiff-Appellant William I. Koch.
12
13   Jonathan J. Lerner, Maura Barry Grinalds, Robert A. Fumerton,
14   Patrick G. Rideout, Skadden, Arps, Slate, Meagher & Flom, LLP,
15   New York, NY, for Defendants-Appellees Christie’s
16   International PLC, Christie, Mason & Woods, Ltd., and
17   Christie’s Inc..
18
19   ______________
20
21   JOHN G. KOELTL, DISTRICT JUDGE:

22        For wine, timing is critical.      The same is true for

23   causes of action.

24        This case requires us to clarify the operation of

25   “inquiry notice” in the context of a civil action pursuant to

26   the Racketeer Influenced and Corrupt Organizations Act

27   (“RICO”), 18 U.S.C. § 1961 et seq., and common law fraud

28   claims under New York law.   This analysis is necessary to

29   determine whether the wine-related causes of action in this

30   case were stale when brought.      The claims relate to alleged




                                  -2-
 1   fraud in inflating the value of bottles of wine by falsely

 2   attributing them to Thomas Jefferson’s wine collection.

 3        Plaintiff-appellant William I. Koch appeals from the

 4   judgment of the United States District Court for the Southern

 5   District of New York (Jones, J.) that dismissed his claims

 6   against Christie’s International PLC; Christie, Mason & Woods,

 7   Ltd.; and Christie’s Inc. (collectively, “Christie’s”) because

 8   they were time-barred.    The District Court dismissed the

 9   claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil

10   Procedure.   Koch v. Christie's International PLC, 785 F. Supp.

11   2d 105 (S.D.N.Y. 2011).

12        The essence of Koch’s allegations against Christie’s is

13   that Christie’s promoted as authentic a cache of wine that was

14   ostensibly bottled in the late eighteenth century and was

15   linked to Thomas Jefferson.    Koch alleges that these

16   “Jefferson wines” were in fact counterfeit, and that

17   Christie’s knew or was reckless in not knowing of the wines’

18   dubious authenticity.    Koch purchased four bottles of the now-

19   discredited Jefferson wines from third-party dealers in

20   November and December of 1988, allegedly relying on

21   promotional representations made by Christie’s.   In January of

22   2008, Koch and Christie’s agreed to toll the statute of

23   limitations with respect to any claims against Christie’s




                                   -3-
 1   arising out of the Jefferson wine sales.   Koch then filed this

 2   lawsuit in March 2010.

 3        Koch argues that the District Court erred in describing

 4   and applying the legal standard with respect to the doctrine

 5   of inquiry notice, under which, in some circumstances, a court

 6   imputes to a plaintiff knowledge of facts sufficient to

 7   trigger the running of the statute of limitations where the

 8   plaintiff could have discovered those facts by a reasonably

 9   diligent investigation.   Koch further argues that, in any

10   event, the Supreme Court’s decision in Merck & Co. v.

11   Reynolds, 130 S. Ct. 1784 (2010), changed the law with respect

12   to what knowledge is required to trigger accrual in cases

13   arising under RICO.   Koch also argues that the District Court

14   erred in dismissing his New York state law claims as time-

15   barred because the standard for inquiry notice under New York

16   law is different from the standard under federal law in RICO

17   cases, and his claims should survive under the New York

18   standard.

19        Because we find no error in the District Court’s

20   conclusion that Koch’s claims were time-barred, we AFFIRM the

21   judgment of the District Court.

22

23

24



                                 -4-
 1                                BACKGROUND

 2           For the purpose of reviewing the grant of a motion to

 3   dismiss pursuant to Rule 12(b)(6) of the Federal Rules of

 4   Civil Procedure, we accept as true the facts alleged in the

 5   Complaint, drawing all reasonable inferences in favor of the

 6   plaintiff.    See, e.g., Muto v. CBS Corp., 668 F.3d 53, 56 (2d

 7   Cir. 2012).    We provide a summary of the relevant allegations

 8   here.

 9           The origins of this case lie with one Hardy Rodenstock, a

10   “well-known wine connoisseur” and German national.    In the

11   mid-1980s, Rodenstock claimed to have discovered a cache of

12   wine in a bricked-up wine cellar in Paris.    The bottles bore

13   the initials “Th.J.,” as well as various late eighteenth

14   century vintages and the names of wineries from the period.

15   Rodenstock pronounced the bottles authentic and linked them to

16   Thomas Jefferson who had served as the United States Minister

17   to France in the late 1700s prior to becoming the third

18   President of the United States and whose zeal for wine is

19   well-documented in the historical record.

20           The Complaint alleges that Rodenstock had a longstanding

21   and symbiotic relationship with Christie’s and specifically

22   with J. Michael Broadbent, a wine consultant for Christie’s

23   and the former head of its wine department.    Christie’s, as

24   alleged in the Complaint, is “one of the world’s largest



                                   -5-
 1   auction houses   . . . . [and] describes itself as ‘firmly at

 2   the front of the international wine auction market.’”

 3   Broadbent was the head of the wine department at Christie’s in

 4   1985, when Christie’s first sold a bottle of “Th.J wine” from

 5   the Rodenstock cache, namely a bottle of “1787 Th.J Lafitte.”1

 6        In the run up to the first sale of Th.J. wine by

 7   Christie’s, Broadbent contacted the Thomas Jefferson

 8   Foundation at Monticello.   In the course of Broadbent’s

 9   correspondence with Monticello historian Cinder Goodwin in

10   November 1985, Broadbent noted at one point that there was “no

11   actual proof” of the Th.J wine’s connection to Jefferson.

12   Goodwin, for her part, said she was skeptical, but would

13   reserve final judgment.

14        Despite this, the 1985 Christie’s Catalogue, in text

15   allegedly written by Broadbent, discussed in detail

16   Jefferson’s interest in wine in connection with the Th.J

17   Lafitte.   Christie’s publicized and marketed the bottle of

18   Th.J. Lafitte in its 1985 Catalogue and publicly released a

19   Sale Memorandum that also connected the wine to Jefferson and

20   that represented that the Jefferson wine was in fact from the

21   late eighteenth century.    In December 1985, Christie’s sold
     1
       Christie’s has explained that “Lafitte” was the main
     spelling at the end of the eighteenth century for the winery
     now spelled “Lafite.” This opinion follows the spelling used
     at various points in the Complaint.




                                  -6-
 1   the “1787 Th.J. Lafitte” at auction for approximately

 2   $156,000, reportedly the highest price ever paid for a bottle

 3   of wine.   Christie’s then issued a December 9, 1985 press

 4   release that again tied the wine to Jefferson and again touted

 5   the wine’s authenticity.

 6        Shortly after the December 1985 sale, Rodenstock began

 7   corresponding with Monticello about the status of the

 8   Jefferson wine and suggested holding a wine tasting from the

 9   Th.J. cache at Monticello.    Monticello’s director declined,

10   citing “doubts about the Jefferson connection.”    The

11   correspondence culminated in an April 1986 letter to

12   Rodenstock that included a research report (the “Monticello

13   Report”) prepared by historian Goodwin on December 12, 1985.

14   The Monticello Report examined Jefferson’s financial records,

15   including records of his wine purchases, correspondence,

16   initialed personal property, and existing wine collection, and

17   concluded that “no solid connecting evidence could be found”

18   between Jefferson and the Th.J. wine.   The Report did not

19   become public at that time.    However, in October 1985, The New

20   York Times published an article discussing the Th.J. wine and

21   airing the doubts of Monticello Jefferson scholars.      Another

22   Times article that ran the day after the auction noted the

23   “scholarly doubt” as to the authenticity of the Th.J. wine.




                                   -7-
 1        In 1986, Christie’s placed another bottle from the Th.J.

 2   cache up for auction.   Again, the Th.J. bottle was featured in

 3   the 1986 Christie’s Catalogue.     The description of the bottle

 4   in the Catalogue noted that “it is assumed that the wine . . .

 5   was once the property of Thomas Jefferson,” and that “there is

 6   a very strong case to be made for the authenticity of the

 7   engraving and provenance.”   The bottle ultimately sold on

 8   December 4, 1986, for approximately $56,000.     In 1987,

 9   Christie’s sold another half-bottle from the Th.J. cache at an

10   annual trade show in Bordeaux, France.

11        In November 1988, Koch purchased a bottle marked “1787

12   Branne Mouton Th.J.” for $100,000.     Koch allegedly purchased

13   the bottle from Rodenstock who used the Chicago Wine Company

14   and Farr Vintners as intermediaries.     Koch alleges that he

15   purchased the bottle in reliance on “glowing endorsements of

16   the wines and Rodenstock,” made by Christie’s “with the intent

17   to influence wine collectors like [Koch] to purchase

18   Rodenstock’s wines” and that “reasonably led [Koch] to believe

19   that the wine offered by Rodenstock was authentic.”     The next

20   month, Koch purchased three more bottles of Th.J. wine for

21   $211,804.40.   Koch purchased these bottles from Farr Vintners

22   acting as Rodenstock’s agent.      The bottles were marked,

23   respectively, as: “1787 Lafite Th.J.,” “1784 Lafite Th.J.,”

24   and “1784 Branne Mouton Th.J.”



                                  -8-
 1           In deposition testimony in a related case in Illinois

 2   state court,2 Koch admitted that, in the early 1990s, he read

 3   several articles detailing the “real doubts” that existed with

 4   respect to the authenticity of the Th.J. wine.     One news

 5   report from the period described the Th.J. wine issue as “the

 6   wine world’s biggest scandal.”      During this period, Koch also

 7   learned of a lawsuit by a German wine collector against

 8   Rodenstock.    The lawsuit alleged that the Th.J. wine was

 9   counterfeit.    Koch hired attorneys in 1993 to investigate and

10   assess the provenance of the Th.J. wine.     These attorneys sent

11   him several of the articles relating to testing of the Th.J.

12   wine that had been conducted for the purpose of the German

13   lawsuit, some of which had confirmed the wine as authentic and

14   some of which had indicated that it was counterfeit.     Koch

15   received legal advice concerning a potential action against

16   Rodenstock in 1993 and sought the advice of counsel again in

17   1995.    However, Koch took no legal action over the course of
     2
       The District Court in this case took judicial notice of the
     press coverage of the controversy and litigation surrounding
     the Th.J. wines, as well as the court documents and documents
     in the public record that were “integral to the complaint.”
     Koch, 785 F. Supp. 2d at 111-12 (citing Staehr v. Hartford
     Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008) and
     Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d
     Cir. 1991)). Koch raised no specific objection to the
     consideration of these documents at the motion to dismiss
     stage, id. at 112, and does not raise the issue in this
     appeal.




                                   -9-
 1   the 1990s, as the debate over the authenticity of the Th.J.

 2   wine continued.

 3        In October 2000, Koch sent samples of the Th.J. wine to

 4   the Woods Hole Oceanographic Institution (“Woods Hole”) for

 5   radiocarbon testing to determine their age.   In his deposition

 6   testimony in the Illinois litigation, he testified that he

 7   sent the samples for testing to see if he had been “hoaxed.”

 8   The October 16, 2000 Report from Woods Hole (the “Woods Hole

 9   Report”) indicated that there was a 26.5% probability that the

10   wine was from the time period between the year 1680 and 1740

11   and a 68.9% probability that the wine was from between 1800

12   and 1960.   The Report appears to indicate only a 4.6%

13   probability that the wine was from the period between 1740 and

14   1800, the only period that would have been consistent with the

15   engraving on each of the bottles that Koch bought.   Woods Hole

16   estimated the wine’s radiocarbon age as 90 years, with a

17   standard deviation of 35 years, although the Woods Hole Report

18   notes that this age “does not convert directly to a calendar,

19   or chronological, age,” and that, more broadly, “the past 350-

20   400 year period is a very difficult one for determining

21   calendar ages.”   Koch apparently viewed these results as

22   “neutral,” and he took no further action to investigate the

23   authenticity of the Th.J. wine in response to the Woods Hole

24   testing.



                                -10-
 1        In 2005, Koch was asked to include a photograph of his

 2   bottles of Th.J. wine in a museum catalog.   Koch alleges that,

 3   as part of the preparation of the catalog materials, his staff

 4   contacted Monticello “to confirm the provenance of the Th.J.

 5   wine.”   This communication ultimately led to obtaining the

 6   1985 Monticello Report, which became public shortly

 7   thereafter.    Koch alleges that, in response to the “credible

 8   and serious questions” concerning the wine’s authenticity

 9   raised by the Monticello Report, he then conducted an

10   investigation that revealed that the Th.J. wine was

11   counterfeit.   By 2009, Koch had allegedly tracked down German

12   engravers who claimed to have engraved the bottles with the

13   “Th.J.” initials.

14        On August 31, 2006, less than 18 months after he had

15   obtained a copy of the Monticello Report, Koch sued Rodenstock

16   in the Southern District of New York for fraud in connection

17   with the Th.J. wine.   Rodenstock never appeared and the

18   District Court entered a default judgment against him in 2010.

19   See Complaint, Koch v. Rodenstock, No. 06 Civ. 6586 (S.D.N.Y.

20   Aug. 31, 2006), ECF No. 1; Koch v. Rodenstock, No. 06 Civ.

21   6586, 2010 WL 2010900 (S.D.N.Y. May 18, 2010), ECF No. 82

22   (Order Entering Judgment of Default).

23        Koch filed this lawsuit on March 30, 2010, asserting

24   claims against Christie’s for a civil RICO violation of 18



                                 -11-
 1   U.S.C. § 1962(c) and civil conspiracy to defraud and aiding

 2   and abetting fraud in violation of New York Law.        Koch alleged

 3   that Christie’s conducted an enterprise and participated in

 4   the conduct of an enterprise through a pattern of racketeering

 5   activity in violation of 18 U.S.C. § 1962(c).      Koch sought

 6   treble damages under 18 U.S.C. § 1964(c) and an injunction

 7   under 18 U.S.C. § 1964(a).       Koch also asserted a claim for

 8   violation of New York’s General Business Law § 349.

 9           On March 18, 2011, the District Court dismissed all

10   claims against Christie’s as time-barred.      The District Court

11   held that Koch “was on inquiry notice of his injuries no later

12   than October 16, 2000, when he submitted the Th.J bottle for

13   testing,” and that the four-year statute of limitations for a

14   RICO cause of action and the two-year statute of limitations,

15   which applies to Koch’s state law claims, began to run on that

16   date.    Koch, 785 F. Supp. 2d at 115-16, 118.    The District

17   Court also held that the doctrine of equitable tolling did not

18   apply to Koch’s causes of action.      Id. at 116-19.   The Court

19   also dismissed the claim under New York’s General Business Law

20   § 349, a ruling Koch does not appeal.

21           This appeal followed.    Our review of the District Court’s

22   grant of a motion to dismiss pursuant to Rule 12(b)(6) of the

23   Federal Rules of Civil Procedure and of the District Court’s




                                     -12-
 1   “interpretation and application of a statute of limitations,”

 2   is de novo.    See Muto, 668 F.3d at 56.

 3

 4                               DISCUSSION

 5                                   I.

 6        RICO claims are subject to a four-year statute of

 7   limitations.   See Rotella v. Wood, 528 U.S. 549, 552 (2000);

 8   Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S.

 9   143, 156 (1987); Pearl v. City of Long Beach, 296 F.3d 76, 79

10   n.1 (2d Cir. 2002).   “Federal courts . . . generally apply a

11   discovery accrual rule when a statute is silent on the issue,

12   as civil RICO is here.”   Rotella, 528 U.S. at 555; In re

13   Merrill Lynch Ltd. P’ships Litig., 154 F.3d 56, 60 (2d Cir.

14   1998).    The District Court held that “[t]he clock begins to

15   run when the plaintiff has ‘inquiry notice’ of his injury,

16   namely when he discovers or reasonably should have discovered

17   the RICO injury.”   Koch, 785 F. Supp. 2d at 114 (citing

18   Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1102 (2d Cir.

19   1988)).

20        Koch contends that the District Court incorrectly applied

21   the law with respect to what facts must be discovered for a

22   RICO claim to accrue.   Koch argues that the District Court

23   misinterpreted the Supreme Court’s decision in Rotella as

24   supporting a “discovery of the injury standard,” and that, in



                                 -13-
 1   any event, the Supreme Court’s recent decision in Merck, 130 S.

 2   Ct. 1784, requires that a plaintiff have knowledge of a

 3   defendant’s scienter, as well as the alleged injury, for the

 4   plaintiff’s claim to accrue.   This threshold question is one

 5   of first impression for this Court.

 6         Koch argues that the Court in Rotella declined to “settle

 7   upon a final rule” with respect to RICO claim accrual.     528

 8   U.S. at 554 n.2.   That argument fails to appreciate the impact

 9   of Rotella.   In Rotella, the Supreme Court resolved a conflict

10   among the Courts of Appeals between “some form of the injury

11   discovery rule (preferred by a majority of Circuits to have

12   considered it), and the injury and pattern discovery rule.”

13   Id. at 554.   The Court definitively “eliminate[d] the latter.”

14   Id.   The Court left open the possibility of “a straight injury

15   occurrence rule” unsoftened by an extension to allow for

16   reasonable discovery, id. at 554 n.2, but such a rule would be

17   even less favorable to plaintiffs like Koch who assert RICO

18   claims decades after the alleged injury occurred.   However,

19   the Court made plain that, to the extent that “a discovery

20   accrual rule” applies, “discovery of the injury, not discovery

21   of the other elements of a claim, is what starts the clock.”

22   Id. at 555.

23         This Court’s decisions in RICO cases have followed

24   Rotella’s plain language on this point.   See, e.g., World



                                -14-
 1   Wrestling Entm’t, Inc. v. Jakks Pac., Inc., 328 F. App’x 695,

 2   697 (2d Cir. 2009) (summary order); Frankel v. Cole, 313 F.

 3   App’x 418, 419-20 (2d Cir. 2009) (summary order); McLaughlin v.

 4   Am. Tobacco Co., 522 F.3d 215, 233 (2d Cir. 2008) (RICO’s

 5   four-year statute of limitations “begins to run when the

 6   plaintiff discovers-or should reasonably have discovered-the

 7   alleged injury”), abrogated in part on other grounds by,

 8   Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008); see

 9   also Merrill Lynch P’ships, 154 F.3d at 60 (“[T]his Circuit

10   has adopted an ‘injury discovery’ rule in RICO cases which

11   holds that ‘a plaintiff’s action accrues against a defendant

12   for a specific injury on the date that plaintiff discovers or

13   should have discovered that injury.’” (quoting Bankers Trust,

14   859 F.2d at 1103)).

15        Koch argues that the Supreme Court’s recent decision in

16   Merck overruled Rotella and that, after Merck, a RICO

17   plaintiff must have discovered the facts showing the fraud,

18   including scienter.   This argument is without merit.

19        Merck arose out of an alleged violation of § 10(b) of the

20   Securities Exchange Act of 1934, 15 U.S.C. § 78j(b).

21   See 130 S. Ct. at 1790.   Because it was a securities fraud

22   action, 28 U.S.C. § 1658(b) governed the accrual rule in Merck.

23   That section provides:




                                -15-
 1        [A] private right of action that involves a claim of
 2        fraud,     deceit,   manipulation,    or     contrivance      in
 3        contravention of a regulatory requirement concerning
 4        the securities laws . . . may be brought not later
 5        than the earlier of—(1) 2 years after the discovery
 6        of the facts constituting the violation; or (2) 5
 7        years after such violation.
 8   28 U.S.C. § 1658(b); see Merck, 130 S. Ct. at 1790.

 9   At issue in Merck was the meaning of the statutory terms “the

10   facts constituting the violation.”        Id. at 1796.    The Court

11   held that “facts showing scienter are among those that

12   ‘constitut[e] the violation.’”       Id. (quoting 28 U.S.C. §

13   1658(b)) (alterations in original).       This Court has followed

14   that holding in subsequent securities fraud cases.          See City

15   of Pontiac Gen. Emps.’ Ret. Sys. v. MBIA, Inc., 637 F.3d 169,

16   173 (2d Cir. 2011) (Merck “changed the securities fraud law of

17   this Circuit with respect to the onset of the applicable two-

18   year statute of limitations.”).

19        But § 1658(b) does not apply to RICO actions.           With

20   respect to accrual, the civil RICO statute is “silent on the

21   issue.”   Rotella, 528 U.S. at 555.       In such circumstances,

22   “[f]ederal courts . . . generally apply a discovery accrual

23   rule.”    Id.   “[I]n applying a discovery accrual rule, . . .

24   discovery of the injury, not discovery of the other elements

25   of a claim, is what starts the clock.”          Id.   Nothing in




                                   -16-
 1   Merck’s discussion of § 1658(b) purports to alter this well-

 2   established rule or even to apply it outside the context of

 3   the statute at issue in that case.    At bottom, Merck involved

 4   a situation where the statute was not silent, but rather

 5   stated that discovery of the facts constituting the

 6   “violation” lead to accrual.    Merck, in other words, involved

 7   a statutory exception to the common law rule discussed in

 8   Rotella.   See Jay E. Hayden Found. v. First Neighbor Bank,

 9   N.A., 610 F.3d 382, 387 (7th Cir. 2010) (“For remember that

10   it’s the discovery of the injury (and injurer) . . . that

11   starts the limitations period running . . . .    That at least

12   is the general rule, though there are exceptions; the

13   limitations period in the Securities Exchange Act of 1934, for

14   example, doesn't begin to run until the plaintiff discovers

15   ‘the facts constituting the violation.’    But RICO requires

16   discovery only of the injury and the injurer.” (citing Merck

17   130 S. Ct. at 1796-97)) (citation omitted).

18        There is a presumption that the Supreme Court does not

19   overrule itself sub silentio.     See, e.g., Hohn v. United

20   States, 524 U.S. 236, 252-53 (1998) (“Our decisions remain

21   binding precedent until we see fit to reconsider them,

22   regardless of whether subsequent cases have raised doubts

23   about their continuing vitality.”).    Merck never mentioned

24   Rotella and did not discuss the rationale for the discovery of



                                -17-
 1   the injury rule that Rotella adopted.   The underlying

 2   rationale of the Court’s decisions in both Rotella and Klehr v.

 3   A.O. Smith Corp., 521 U.S. 179 (1997), upon which Rotella

 4   relied, was concerned with the lengthy limitations period that

 5   would flow from a “last predicate act” discovery rule, Klehr,

 6   521 U.S. at 186, or an “injury and pattern discovery rule,”

 7   Rotella, 528 U.S. at 554.   The Supreme Court rejected these

 8   because they “would allow proof of a defendant’s acts even

 9   more remote from time of trial and, hence, litigation even

10   more at odds with the basic policies of all limitations

11   provisions: repose, elimination of stale claims, and certainty

12   about a plaintiff’s opportunity for recovery and a defendant’s

13   potential liabilities.”   Id. at 555.

14        In Rotella, the appellant proposed an “accrual rule

15   softened by a pattern discovery feature.”   Id. at 558.   Koch

16   proposes an accrual rule softened by a scienter discovery

17   feature.   Here, as in Rotella, such a softening feature “would

18   undercut every single policy” served by limitations provisions.

19   Id. at 558-59 (“A limitations period that would have begun to

20   run only eight years after a claim became ripe would bar

21   repose, prove a godsend to stale claims, and doom any hope of

22   certainty in identifying potential liability.”).   It would

23   also dilute the incentive of private attorneys general

24   diligently to investigate, prosecute, and bring unlawful



                                 -18-
 1   activity to light.    See Klehr, 521 U.S. at 195 (“[P]rivate

 2   civil [antitrust and RICO] actions seek not only to compensate

 3   victims but also to encourage those victims themselves

 4   diligently to investigate and thereby to uncover unlawful

 5   activity.”); see also Rotella, 528 U.S. at 559 (noting

 6   Congress’s intent to create “a civil enforcement scheme

 7   parallel to the Clayton Act regime, aimed at rewarding the

 8   swift who undertake litigation in the public good.”).

 9           The injury discovery rule serves those policies by

10   holding plaintiffs to a high standard.    The Court in Rotella

11   considered and rejected the argument that RICO fraud claims

12   demand a more “lenient” rule of accrual, id. at 557, and noted

13   specifically that the requirement to plead RICO fraud claims

14   with particularity pursuant to Rule 9(b) of the Federal Rules

15   of Civil Procedure was not a basis for rejecting the discovery

16   of the injury rule for accrual.     Id. at 560-61.

17           The rule of accrual for securities fraud cases pursuant

18   to § 1658(b) is a statutory exception to the injury discovery

19   rule.    In the securities fraud context, discovery of facts

20   constituting the violation, including scienter, is necessary

21   for the claim to accrue because the statute of limitations

22   requires it.    Pontiac, 637 F.3d at 174 (citing Merck, 130 S.

23   Ct. at 1798).    But Merck’s scienter discovery requirement does

24   not apply outside the realm of the statute that it interpreted.



                                  -19-
 1   It remains the law in this Circuit that a RICO claim accrues

 2   upon the discovery of the injury alone.

 3

 4                                 II.

 5        The next issue is when Koch’s claim accrued.

 6        In a RICO case, the first step in the statute of

 7   limitations analysis is to determine when the plaintiff

 8   sustained the alleged injury for which the plaintiff seeks

 9   redress.   The court then determines when the plaintiff

10   “discovered or should have discovered the injury and begin[s]

11   the four-year statute of limitations period at that point.”

12   Merrill Lynch P’Ships, 154 F.3d at 59.    As a general matter,

13   “the limitations period does not begin to run until [a

14   plaintiff] ha[s] actual or inquiry notice of the injury.”     Id.

15   at 60.

16        The District Court in this case held that “[t]he RICO

17   statute of limitations . . . runs even where the full extent

18   of the RICO scheme is not discovered until a later date, so

19   long as there were ‘storm warnings’ that should have prompted

20   an inquiry.”   Koch, 785 F. Supp. 2d at 114 (quoting Jakks, 328

21   F. App’x at 697).   Such storm warnings, the District Court

22   explained, “need not detail every aspect of the alleged

23   fraudulent scheme.”   Id. (quoting Staehr v. Hartford Fin.

24   Servs. Grp., Inc., 547 F.3d 406, 427 (2d Cir. 2008)).     Rather,



                                -20-
1   such storm warnings are sufficient where, “a person of

2   ordinary intelligence would consider it ‘probable’ that fraud

3   had occurred.”   Id. (quoting Dodds v. Cigna Secs., Inc., 12

4   F.3d 346, 350 (2d Cir. 1993)).3   We agree that the statute of

5   limitations began to run at least by October 2000, by which

6   time Koch was on inquiry notice with respect to his RICO

7   injury, and therefore the RICO claim was time-barred before

8   January 2008, when Koch and Christie’s agreed to toll the

9   statute of limitations.




    3
      Koch argues that the District Court erred in holding that he
    was “on inquiry notice of his injuries no later than October
    16, 2000,” because “[b]y this date, a reasonable person should
    have been alerted to ‘storm warnings’ that the Th.J wine was
    possibly counterfeit.” Koch, 785 F. Supp. 2d at 116 (emphasis
    added). However, the District Court correctly stated, in the
    section of its opinion laying out the legal standard, that the
    standard for triggering inquiry notice is whether “a person of
    ordinary intelligence would consider it ‘probable’ that fraud
    had occurred.” Koch, 785 F. Supp. 2d at 114 (citing Dodds, 12
    F.3d at 350). Moreover, while the District Court’s language
    may have been incorrect inasmuch as it used the term
    “possible” rather than “probable,” the District Court’s
    holding was plainly that there was “ample evidence showing
    Plaintiff was aware of his injuries no later than October 16,
    2000.” Id. at 116. In any event, our review of the District
    Court’s decision with respect to inquiry notice is de novo,
    and, as explained in greater detail below, the District Court
    reached the correct conclusion because the Woods Hole Report,
    which indicated a greater than 90% chance that the Th.J. wine
    was not from the date that it purported to be, would suggest
    to a plaintiff of reasonable intelligence that his injury was
    probable, not simply possible.




                               -21-
 1       In Lentell v. Merrill Lynch & Co., Inc., 396 F.3d 161 (2d.

 2   Cir. 2005), this Court set out a detailed description of when

 3   inquiry notice occurs:

 4        Inquiry notice-often called “storm warnings” in the
 5        securities context-gives rise to a duty of inquiry
 6        “when the circumstances would suggest to an investor
 7        of ordinary intelligence the probability that she
 8        has been defrauded.”     In such circumstances, the
 9        imputation of knowledge will be timed in one of two
10        ways: (i) “[i]f the investor makes no inquiry once
11        the duty arises, knowledge will be imputed as of the
12        date the duty arose”; and (ii) if some inquiry is
13        made, “we will impute knowledge of what an investor
14        in the exercise of reasonable diligence[ ] should
15        have discovered concerning the fraud, and in such
16        cases the limitations period begins to run from the
17        date such inquiry should have revealed the fraud.”

18   Id. at 168 (citations omitted).

19        While inquiry notice as described in Lentell was

20   developed in the context of securities fraud cases, it applies

21   equally in RICO cases.   See, e.g., Jakks, 328 F. App’x at 697;

22   Merrill Lynch P’Ships, 154 F.3d at 60.   In the securities

23   fraud context, this Court has recently explained that “Merck

24   overruled this analysis.”   Pontiac, 637 F.3d at 174 (quoting

25   Merck, 130 S. Ct. at 1798).   Merck held that, in securities

26   fraud actions, “the limitations period begins to run only

27   after ‘a reasonably diligent plaintiff would have discovered



                                 -22-
 1   the facts constituting the violation, including scienter—

 2   irrespective of whether the actual plaintiff undertook a

 3   reasonably diligent investigation.’”   Id. (quoting Merck, 130

 4   S. Ct. at 1798).   However, as discussed above, the Court’s

 5   holding in Merck on this point was grounded explicitly on the

 6   securities-related statute at issue in that case, which tied

 7   the statute of limitations to the “discovery of the facts

 8   constituting the violation.”   Merck, 130 S. Ct. at 1796.    The

 9   Court acknowledged that the common law rule, which imputes

10   knowledge as of the date of inquiry notice to a plaintiff who

11   makes no inquiry for the entire statutory period after the

12   duty to inquire arose, might be unaffected.   Id. at 1797

13   (“[T]he court-created ‘discovery rule’ exception to ordinary

14   statutes of limitations is not generally available to

15   plaintiffs who fail to pursue their claims with reasonable

16   diligence.   But we are dealing here with a statute, not a

17   court-created exception to a statute.”).

18        This Court’s pre-Merck securities fraud cases grounded

19   inquiry notice doctrine upon common law principles that are

20   applicable to RICO actions.    See, e.g., Armstrong v. McAlpin,

21   699 F.2d 79, 88 (2d Cir. 1983) (“[W]here the circumstances are

22   such as to suggest to a person of ordinary intelligence the

23   probability that he has been defrauded, a duty of inquiry

24   arises, and if he omits that inquiry when it would have



                                -23-
 1   developed the truth, and shuts his eyes to the facts which

 2   call for investigation, knowledge of the fraud will be imputed

 3   to him.” (quoting Higgins v. Crouse, 42 N.E. 6, 7 (N.Y.

 4   1895))).   Compare Dodds, 12 F.3d at 350 (“[W]hen the

 5   circumstances would suggest to an investor of ordinary

 6   intelligence the probability that she has been defrauded, a

 7   duty of inquiry arises, and knowledge will be imputed to the

 8   investor who does not make such an inquiry.” (citing

 9   Armstrong, 699 F.2d at 88)).4   And this Court has previously

10   drawn on the pre-Merck securities fraud cases in explaining

11   the nature of inquiry notice and accrual in RICO actions.     See,

12   e.g., Merrill Lynch P’ships, 154 F.3d at 60 (citing Dodds, 12


     4
       That the Lentell analysis treats differently plaintiffs who
     act differently comports with the discovery rule’s animating
     common law principle: parties have a duty to pursue potential
     claims with reasonable diligence. Compare Holmberg v.
     Armbrecht, 327 U.S. 392, 397 (1946) (“[T]his Court long ago
     adopted as its own the old chancery rule that where a
     plaintiff has been injured by fraud and ‘remains in ignorance
     of it without any fault or want of diligence or care on his
     part, the bar of the statute does not begin to run until the
     fraud is discovered.’” (quoting Bailey v. Glover, 88 U.S. 342,
     348 (1874))) (emphasis added), with Higgins, 42 N.E. at 6-7
     (“When . . . facts are known from which the inference of fraud
     follows, there is a discovery of the facts constituting the
     fraud . . . . That the defrauded party did not actually draw
     the inference, but shut his eyes to it, does not stop the
     running of the statute. He ought to have known, and so is
     presumed to have known, the fraud perpetrated.”).




                                -24-
 1   F.3d at 350).   Because Merck was interpreting the meaning of

 2   the term “discovery” in the accrual statute for securities

 3   fraud actions,5 it did not alter the accrual rules for RICO

 4   actions.   Therefore, the Lentell articulation of inquiry

 5   notice continues to apply in RICO actions.

 6        Koch argues that, notwithstanding Lentell, inquiry notice

 7   can never trigger the running of the statute of limitations.

 8   Rather, he argues, the statute does not begin to run until a

 9   plaintiff “in the exercise of reasonable diligence, should

10   have discovered” the injury.   See Rothman v. Gregor, 220 F.3d

11   81, 97 (2d Cir. 2000) (quoting Sterlin v. Biomune Sys., 154

12   F.3d 1191, 1201 (10th Cir. 1998)).   However, in Rothman, which

13   preceded Lentell, the plaintiffs “actually inquired further

14   after” a duty of inquiry arose.   Id. at 97.   Rothman, a

15   securities fraud case, is illustrative of Lentell’s second

16   prong; in that case, it would have been improper to begin the

17   running of the statute at the time that the duty to inquire

18   arose.   Where a RICO plaintiff does begin or has begun to

19   inquire once the duty arises, the Court must determine when a

20   reasonably diligent investigation would have revealed the

     5
       Indeed, the Court in Merck rejected altogether the
     application of inquiry notice in 28 U.S.C. § 1658(b), finding
     that “[w]e cannot reconcile it with the statute, which simply
     provides that ‘discovery’ is the event that triggers the 2–
     year limitations period.” 130 S. Ct. at 1798.




                                -25-
 1   injury to a person of reasonable intelligence, and the statute

 2   of limitations begins to run on that date.    Cf. Lentell, 396

 3   F.3d at 168.   The existence of “storm warnings” sufficient to

 4   trigger inquiry notice does not begin the clock when the

 5   plaintiff actually pursues an investigation.

 6        Nevertheless, when a RICO plaintiff “makes no inquiry

 7   once the duty arises, knowledge will be imputed as of the date

 8   the duty arose.”   Id.   Thus, once there are sufficient “storm

 9   warnings” to trigger the duty to inquire, and the duty arises,

10   if a plaintiff does not inquire within the limitations period,

11   the claim will be time-barred.     In such a case, knowledge of

12   facts that would suggest to a reasonably intelligent person

13   the probability that the person has been injured is

14   dispositive.   See Jakks, 328 F. App’x at 697 (“The RICO

15   statute of limitations . . . runs even where the full extent

16   of the RICO scheme is not discovered until a later date, so

17   long as there were ‘storm warnings’ that should have prompted

18   an inquiry.”).

19        The District Court correctly determined that this is such

20   a case.   At least by October 16, 2000, when the Woods Hole

21   Report was issued, inquiry notice had been triggered.    By

22   then, Koch was aware of numerous articles noting that the

23   provenance of the Th.J wine could not be proved and noting

24   comments by Monticello experts on Thomas Jefferson that cast



                                 -26-
 1   serious doubt on Jefferson’s ownership or relationship to the

 2   wine.    Attorneys retained to investigate the authenticity of

 3   the Th.J. wine brought these articles to Koch’s attention.

 4   Around that same time, the plaintiff became aware of a lawsuit

 5   in a German court accusing the man who supposedly found the

 6   Th.J wine and from whom the plaintiff had bought the wine, of

 7   forging the bottles, based on testing that dated the wine to

 8   1960.    The Woods Hole Report indicated that the wine was

 9   likely not from the period that the defendants had claimed it

10   to be.    Indeed, the Woods Hole Report indicated a greater than

11   90% probability that the Th.J. wine was not from the years

12   listed on their bottles.    All of these facts, but particularly

13   the Woods Hole testing, which related directly to the

14   authenticity of the    age of the wine and not merely to its

15   relationship to Thomas Jefferson, would suggest to a

16   reasonably intelligent person that the wine was not authentic.

17   The circumstances suggested far more than the “mere

18   possibility” that Koch had bought counterfeit wine.    Thus, by

19   October 16, 2000, Koch had a duty to conduct a reasonably

20   diligent investigation into the Th.J. wine.

21           It is not disputed that Koch did not begin any such

22   investigation until 2005.    Because the duty to inquire had

23   arisen and been unmet for more than four years, the District




                                  -27-
 1   Court correctly imputed to Koch knowledge of the injury as of

 2   the date the duty arose.   His claim is therefore time-barred.

 3

 4                                   III.

 5        Koch also argues that the District Court erred in

 6   dismissing his common law fraudulent conspiracy and aiding and

 7   abetting claims.   Under New York law, the time within which an

 8   action based upon fraud must be commenced is “the greater of

 9   six years from the date the cause of action accrued or two

10   years from the time the plaintiff . . . discovered the fraud,

11   or could with reasonable diligence have discovered it.”    N.Y.

12   C.P.L.R. 213(8) (MCKINNEY 2004); see Sargiss v. Magarelli, 909

13   N.E. 2d 573, 576 (N.Y. 2009).     Because the alleged fraud was

14   completed in 1988, when Koch purchased the Th.J. wine, his

15   common law claims are timely only if they were brought within

16   two years of the date the fraud was discovered or could have

17   been discovered with reasonable diligence.

18        Koch relies on Erbe v. Lincoln Rochester Trust Co., 144

19   N.E.2d 78 (N.Y. 1957), for the proposition that whether a

20   plaintiff is “possessed of knowledge of facts from which

21   [fraud] could be reasonably inferred,” such that the statute

22   of limitations begins to run, “[o]rdinarily . . . presents a

23   mixed question of law and fact and, where it does not

24   conclusively appear that the plaintiffs had knowledge of facts



                                -28-
 1   of that nature a complaint should not be dismissed on motion.”

 2   Id. at 80-81.   He argues that New York law provides a higher

 3   threshold for inquiry notice than the standard under RICO law,

 4   and that this precludes dismissal of a fraud claim on a motion

 5   to dismiss.    This argument is without merit.

 6        Erbe arose from a bank’s sale of stock in a closely-held

 7   corporation.    Id. at 79.   The bank was an executor and

 8   creditor of an estate, a major portion of which consisted of

 9   stock.   Id.   In 1943, the bank sold the stock to itself at a

10   public auction.   Id.   The plaintiffs, who were interested in

11   the estate, sued ten years later for fraud, and the action was

12   dismissed on the grounds that it was barred by the six year

13   statute of limitations that then existed.6       Id. at 79-80.


     6
       At the time Erbe was decided, “[t]he New York Civil Practice
     Act, § 48, subd. 5, provide[d] a six-year period of
     limitations as to actions for fraud, a period which [began] to
     run only from the discovery of the fraud.” Rieser v. Balt. &
     Ohio R.R. Co., 228 F.2d 563, 566 (2d Cir. 1955); see Civil
     Practice Act § 48, subd. 5, compiled in, 8 Gilbert-Bliss Civil
     Practice of the State of New York 13 (1956) (“The cause of
     action in [a fraud] case is not deemed to have accrued until
     the discovery by the plaintiff . . . of the facts constituting
     the fraud”); see also Erbe, 144 N.E.2d at 80 (citing Civil
     Practice Act, § 48, subd. 5).
          In 1965, New York enacted the predecessor of what is now
     N.Y. C.P.L.R § 203(g). See 1965 N.Y. Laws 56. That section
     now provides, with certain exceptions, that “where the time
     within which an action must be commenced is computed from the
     time when facts were discovered or from the time when facts
     could with reasonable diligence have been discovered, . . .
     the action must be commenced within two years after such
     actual or imputed discovery or within the period otherwise




                                  -29-
 1        The New York Court of Appeals reversed the dismissal,

 2   because the record did not “disclose a sufficient basis for

 3   imputing a knowledge of the fraud alleged to the plaintiffs at

 4   a date greater than six years prior to the commencement of

 5   this action.”   Id. at 80.   The Court characterized the facts

 6   in the record as merely “facts which aroused plaintiffs'

 7   suspicions as to the defendant bank's good faith in the prior

 8   Surrogate's proceedings,” and “not necessarily knowledge of

 9   facts from which the alleged fraudulent conspiracy might be

10   reasonably inferred.”   Id. at 81.   However, the Court


     provided, computed from the time the cause of action accrued,
     whichever is longer.” N.Y. C.P.L.R. 203(g) (MCKINNEY 2001).
     The section was enacted at the suggestion of the joint
     legislative committee tasked with overhauling New York’s
     system of civil practice in the early 1960s. See 7B
     McKinney’s Consolidated Laws of N.Y. Ann. § 203, at 213
     (2003). The joint committee recommended the shorter discovery
     rule because “where the facts are not discovered, and the
     period consequently would not begin to run until long after
     the event, there seems no reason why the plaintiff should not
     be required to proceed expeditiously after such discovery.”
     Sixth Report to the Legislature by the Senate Finance
     Committee Relative to the Revision of the Civil Practice Act
     74 (1962). The joint committee acknowledged that, at the
     time, the proposed two-year discovery provision “ha[d] no
     counterpart in present practice.” Id.; see also 1 Weinstein,
     Korn & Miller, New York Civil Practice: CPLR ¶ 203.App.03 (2d
     Ed.) (noting that the two-year discovery provision had “no
     precedent either in New York statutory or case law.”). In
     2004, N.Y. C.P.L.R. § 213(8), the limitations provision for
     fraud-based actions, was amended to include explicitly the two
     year discovery limitation of § 203(g), although New York
     courts had applied the two-year discovery provision to fraud
     actions since the provision’s enactment. Id. at ¶¶ 203.35,
     213App.01, 213App.03.




                                  -30-
 1   acknowledged the longstanding rule in New York that

 2   “plaintiffs will be held to have discovered the fraud when it

 3   is established that they were possessed of knowledge of facts

 4   from which it could be reasonably inferred, that is, inferred

 5   from facts which indicate the alleged fraud.”   Id. at 80.

 6        The statement of New York law in Erbe remains accurate.

 7   See Sargiss, 909 N.E.2d at 576 (“The inquiry as to whether a

 8   plaintiff could, with reasonable diligence, have discovered

 9   the fraud turns on whether the plaintiff was ‘possessed of

10   knowledge of facts from which [the fraud] could be reasonably

11   inferred.’   ‘Generally, knowledge of the fraudulent act is

12   required and mere suspicion will not constitute a sufficient

13   substitute.’   ‘Where it does not conclusively appear that a

14   plaintiff had knowledge of facts from which the fraud could

15   reasonably be inferred, a complaint should not be dismissed on

16   motion and the question should be left to the trier of the

17   facts.’” (quoting Erbe, 144 N.E.2d at 80-81)) (internal

18   citations omitted).   However, New York law does not support a

19   contrary result in this case.

20        Unlike in Erbe, there is no factual dispute about what

21   knowledge Koch had in this case; rather, the question is

22   whether he could reasonably have inferred the fraud from that

23   knowledge.   For the reasons already explained, Koch could have

24   inferred the fraud based on the facts he had in October 2000,



                                -31-
 1   when he learned that there was a high probability that the

 2   wine that he alleges he bought in reliance on the

 3   representations of authenticity made by Christie’s was in fact

 4   counterfeit, and certainly by 2005, when he came into

 5   possession of the Monticello Report.   Even beginning to run

 6   the limitations period at the latter date would render Koch’s

 7   common law claims time-barred under New York’s two-year

 8   statute of limitations.

 9        Moreover, New York law recognizes, as RICO law does, that

10   a plaintiff may be put on inquiry notice, which can trigger

11   the running of the statute of limitations if the plaintiff

12   does not pursue a reasonable investigation.   See Gutkin v

13   Siegal, 926 N.Y.S.2d 485, 486 (App. Div. 2011) (“‘[W]here the

14   circumstances are such as to suggest to a person of ordinary

15   intelligence the probability that he has been defrauded, a

16   duty of inquiry arises, and if he omits that inquiry when it

17   would have developed the truth, and shuts his eyes to the

18   facts which call for investigation, knowledge of the fraud

19   will be imputed to him’” (quoting Higgins, 42 N.E. at 7)).

20   Thus, while it is true that New York courts will not grant a

21   motion to dismiss a fraud claim where the plaintiff’s

22   knowledge is disputed, it is proper under New York law to

23   dismiss a fraud claim on a motion to dismiss pursuant to the

24   two-year discovery rule when the alleged facts do establish



                               -32-
 1   that a duty of inquiry existed and that an inquiry was not

 2   pursued.7   See Sielcken-Schwarz v. Am. Factors, 192 N.E. 307,

 3   310 (N.Y. 1934) (citing Higgins, 42 N.E. at 7); see, e.g,

 4   Shalik v. Hewlett Assocs., L.P., 940 N.Y.S.2d 304, 305-

 5   06 (App. Div. 2012) (“The two-year period begins to run when

 6   the circumstances reasonably would suggest to the plaintiff

 7   that he or she may have been defrauded, so as to trigger a

 8   duty to inquire on his or her part”) (citation omitted)

 9   (affirming dismissal because “the defendants established,

10   prima facie, that the plaintiffs possessed information

11   regarding the questionable authenticity of the decedent’s

12   signature on the Amendment more than two years before they

13   filed the complaint”); Gutkin, 926 N.Y.S.2d at 486; Waters of

14   Saratoga Springs, Inc. v. New York, 498 N.Y.S.2d 196,

15   199 (App. Div. 1986), aff’d, 498 N.E.2d 146 (N.Y. 1986).



     7
       New York Courts also grant summary judgment based on the
     same clear principle that if a plaintiff is on inquiry notice
     and fails to make any investigation for two years, the
     plaintiff’s action will be time-barred under the two-year
     discovery rule. See, e.g., Marasa v. Andrews, 892 N.Y.S.2d
     494, 495 (App. Div. 2010); TMG-II v. Price Waterhouse &
     Co., 572 N.Y.S.2d 6, 7 (App. Div. 1991) (holding that, based
     on published news reports detailing a lawsuit filed against
     the defendant, “the underlying facts of the fraud claim
     against [the defendant], to the extent that they were not
     already known, could have been discovered with the exercise of
     due diligence more than two years before the action was
     commenced”), leave to appeal denied, 588 N.E.2d 97 (N.Y.
     1992).




                                 -33-
 1        Indeed, the standard applied in this Circuit with respect

 2   to inquiry notice in RICO and pre-Merck securities fraud cases

 3   shares its origin with the standard for inquiry notice under

 4   New York law.   In Armstrong v. McAlpin, this Court adopted the

 5   language of Higgins v. Crouse, a seminal case with respect to

 6   the common law of inquiry notice in New York, finding Higgins

 7   “fully applicable in cases such as the instant one, which

 8   involve claims of securities fraud.”   699 F.2d at 88.   Koch

 9   presents no argument why the rule under New York law is

10   different from the RICO rule: where the facts would suggest

11   the probability of fraud to a reasonably intelligent person,

12   failure to investigate will prove fatal to the plaintiff’s

13   claim if such a claim is not brought within the statutory

14   limitations period beginning from the time of such inquiry

15   notice.

16        The District Court in this case concluded that “[i]t is

17   clear that as of the testing of the wine in 2000, Plaintiff

18   ‘had knowledge of facts from which the alleged fraud might

19   reasonably be inferred.’”   Koch, 785 F. Supp. 2d at 118

20   (quoting Jeffrey BB. v. Cardinal McCloskey Sch., & Home for

21   Children, 689 N.Y.S.2d 721, 724 (App. Div. 1999)).   This

22   conclusion was correct.   At the very least, the Woods Hole

23   Report prompted a duty to inquire under New York law, and,

24   because Koch made no such inquiry over the course of the next



                                 -34-
 1   two years, knowledge of the fraud can be imputed to him.8

 2   See, e.g., Shalik, 940 N.Y.S.2d at 305.   The District Court

 3   properly dismissed Koch’s common law fraud claims.

 4

 5                                  IV.

 6        Finally, Koch argues that the District Court erred in

 7   refusing to toll the statute of limitations in this case due

 8   to alleged fraudulent concealment by Christie’s.   This

 9   argument is without merit.

10        “Under federal common law, a statute of limitations may

11   be tolled due to the defendant's fraudulent concealment if the

12   plaintiff establishes that: (1) the defendant wrongfully

13   concealed material facts relating to defendant’s wrongdoing;

14   (2) the concealment prevented plaintiff’s ‘discovery of the

15   nature of the claim within the limitations period’; and (3)

16   plaintiff exercised due diligence in pursuing the discovery of

17   the claim during the period plaintiff seeks to have tolled.”

18   Corcoran v. N.Y. Power Auth., 202 F.3d 530, 543 (2d Cir. 1999)

19   (internal citation omitted); see also Abbas v. Dixon, 480 F.3d

     8
       Koch does not appear to press the argument that, under New
     York law, all of the elements of the fraud, including
     scienter, must be known for the claim to accrue. Even if he
     did we would not need to reach the question. Koch failed to
     make any investigation after he was on inquiry notice of the
     fraud in October 2000 until at least 2005, by which time the
     two-year statute of limitations had expired.




                                  -35-
 1   636, 642 (2d Cir. 2007) (“Under New York law, the doctrines of

 2   equitable tolling or equitable estoppel may be invoked to

 3   defeat a statute of limitations defense when the plaintiff was

 4   induced by fraud, misrepresentations or deception to refrain

 5   from filing a timely action”) (internal quotation marks and

 6   citation omitted).   “We review a district court's decision to

 7   deny equitable tolling for abuse of discretion.”    Zerilli–

 8   Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 81 (2d Cir.

 9   2003).

10        Reasonable diligence is a prerequisite to the

11   applicability of equitable tolling.    See, e.g., Klehr, 521

12   U.S. at 194 (“[A RICO] plaintiff who is not reasonably

13   diligent may not assert fraudulent concealment”) (internal

14   quotation marks omitted); Abbas, 480 F.3d at 642 (noting with

15   respect to equitable tolling under New York law that diligence

16   is an “essential element of equitable relief”) (citation

17   omitted).   Based on the undisputed fact that Koch did not

18   pursue any investigation for over four years after receiving

19   the Woods Hole Report, Koch did not act with reasonable

20   diligence during that period.     While Koch makes specific

21   allegations with respect to the 2006 efforts of Christie’s and

22   Broadbent to hinder his investigation, the District Court

23   correctly found that those allegations were irrelevant because

24   the statute of limitations had already run by that time.      As



                                -36-
 1   the District Court explained with respect to those

 2   allegations, the “tolling period cannot delay the expiration

 3   of a deadline when that deadline has already expired.”      Koch,

 4   785 F. Supp. 2d at 117 (quoting Nichols v. Prudential Ins. Co.

 5   of Am., 406 F.3d 98, 108 (2d Cir. 2005)).

 6           Koch’s allegations with respect to the period before the

 7   Woods Hole Report, such as the somewhat generalized allegation

 8   that Christie’s intentionally failed to disclose the details

 9   of the Monticello Report, do not indicate how Christie’s

10   prevented Koch from discovering his claim.    Koch alleges that

11   he was able to obtain the Monticello Report by simply making a

12   phone call and that within two years he had uncovered the

13   fraud.    There is no allegation that any defendant took any

14   action that prevented Koch from making the same phone call

15   immediately after he had seen the Woods Hole Report in October

16   2000.    The ineluctable conclusion is that Koch failed to file

17   his claim within the statute of limitations not due to the

18   defendants’ fraudulent concealment, but due to his own failure

19   to exercise reasonable diligence.    The District Court’s

20   refusal to apply an equitable toll to any of Koch’s causes of

21   action was not an abuse of discretion.

22




                                  -37-
1                             CONCLUSION

2        We have considered all of the arguments of the parties.

3   To the extent not specifically addressed above, they are

4   either moot or without merit.    For the reasons explained

5   above, we AFFIRM the judgment of the District Court.

6




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