Tuesday, August 11, 2020


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Plaintiffs' Amended and Consolidated Complaint asserts and/or alleges that all applicable statutes of limitation have either been tolled or have not run with respect to all currently pleaded causes of action. Tolling theories are applied to address questions of equity and to prevent injustice to plaintiffs due to factors occurring quite outside of the plaintiffs' control.

As to plaintiffs' claims that are facially outside the statute of limitations, plaintiffs assert, given their pleadings which allege affirmative concealing and self-concealing conduct by the defendants and which chronicle and refer to the utterly unique and horrific experience of the African-American community both prior to and after 1865, that the plaintiffs have, for purposes of this motion to dismiss, presented sufficient pleadings to render the issues of statutes of limitation unripe for dismissal. That is, the court must "presum[e] that general allegations embrace those specific facts that are necessary to support the claim." Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990). A statute of limitations analysis is likely to prove unproductive at this stage, requiring the court to revisit it later. Staggs v Northwest Airlines Inc., 592 F. Supp 165, 169 (1984); Thompson v. Metropolitan Life, 149 F. Supp.2d 38 (S.D.N.Y. 2001). Plaintiffs, therefore, urge the Court to decline to rule on the tolling issues pending discovery.

As will be shown herein, case law and the facts at bar trigger one or more tolling theories for the appropriate causes of action.


A. Federal Accrual/Discovery Rule.

Plaintiffs' claims when taken as true, trigger the application of the federal accrual tolling provision more commonly referred to as the federal discovery rule. Although under federal law an action normally accrues at the time of injury, there are exceptions to this rule. Specifically, "where plaintiff would reasonably have had difficulty discerning the fact or cause of injury at the time it was inflicted, the so-called "diligence-discovery rule of accrual' applies." Therefore, "accrual may be postponed until the plaintiff has or, with reasonable diligence, should have discovered the critical facts of both his injury and its cause."

It is well settled that a court may consider the sophistication of a plaintiff investor in evaluating issues of inquiry notice, fraudulent concealment, and constructive knowledge because an investor's sophistication affects the extent to which a court may properly conclude that a particular event should have influenced that investor to inquire into the likelihood of fraud involving his or her investment."

In the present case, plaintiffs have alleged that in their miserable condition which was a direct result of slavery and a perpetuation of slavery, near-slavery and unequal segregation through to the present, the plaintiffs' ancestors and plaintiffs that were enslaved, although intimately familiar with their pitifully horrific condition, were not aware of the nature of the investments, insurance policies, joint ventures and other schemes and conspiracies developed and utilized by these defendants and other corporations or their predecessors in interest to profit from slavery. Given the self-concealing nature of the profits gained via the private business dealings of the insurance industry, the banking industry, the railroads and all other businesses which profited from slavery while not necessarily owning slaves, plaintiffs could not have been aware of either the injury of stolen profits nor of the causation with sufficient clarity to either be aware of the existence of their cause of action or even be placed upon inquiry notice.

Tolling based on the facts at bar is entirely consistent with Thompson where the court allowed plaintiffs to proceed on tolling theories where plaintiff African- American life insurance holders claimed self-concealing discriminatory sales practices dating back to 1881 through to the 1970s. Thompson, 149 F. Supp.2d at 38-39.


B. Equitable Tolling

""The essence of the doctrine of equitable tolling is that a statute of limitations does not run against a plaintiff who is unaware of his cause of action." Thompson, 149 F. Supp.2d at 60. (quoting Cerbone v. Int'l Ladies Garment Worker's Union, 768 F.2d 45, 48 (2d Cir. 1985). The difference between the Federal Accrual/Discovery Rule and Equitable Tolling relates to the self-concealing nature of the defendant's conduct or the affirmative acts by the defendant, one or both of which prevented the plaintiffs' from discovering the conduct within the limitations period. Id. at 48-49; State of New York v. Hendrickson Bros. Inc., 840 F.2d 1065, 1083 (2d Cir. 1988). The plaintiffs' condition which has contributed to a lack of knowledge of the cause of action must be as a result of "disability, irremediable lack of information, or other circumstances beyond his control just cannot reasonably be expected to sue in time." Hoosier Bancorp of Indiana v. Rasmussen, et al, 90 F.3d 180, 183 (7th Cir. 1996)(quoting Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996) cert. denied, 519 U.S. 937 (1996). It is clear that in the case at bar the relevant question as to equitable tolling is whether the circumstances preventing the plaintiffs from gaining equal access to the justice system over the past decades are sufficiently extraordinary to justify application of the equitable tolling doctrine. Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)(citing to Alvarez-Machain v. U.S., 107 F.3d 696, 701 (1996), vacated on other grounds, 321 F.3d 604 (9th Cir. 2002), petition for cert. filed, 72 USLW 3170 (Sept. 2, 2003).

A review of 7th Circuit case law establishes that although it has decided cases regarding equitable tolling, it has infrequently addressed the issue of equitable tolling as between private parties. From this review, it is also incontrovertible that the historical, factual and legal arguments advanced in favor of equitable tolling in the instant litigation is a matter of first impression in this jurisdiction. The relevant 7th Circuit case law related to equitable tolling in general since its flagship equitable tolling decision in 1991, Cada v. Baxter Healthcare Corporation, 920 F.2d 446 (7th Cir. 1991), cert. denied, 501 U.S.1261 (1991) has done more to clarify what circumstances do NOT qualify for equitable tolling than to clarify what circumstances are sufficiently extraordinary to merit application of the doctrine. None of these doctrinal clarification cases should preclude this Court from denying defendant's motion to dismiss, given plaintiffs' tolling allegations. Additionally, none of the tolling allegation sufficiency cases should preclude this Cpurt from denying defendants' motion to dismiss given that plaintiffs' tolling allegations are clearly extraordinary.

The instant case provides a textbook example of a proper application of equitable tolling. If ever there was a case suited for it, it is the present case. It is unique on its face. The plaintiffs' delay in filing is not based on "garden variety" excusable neglect; it is not based on "run-of-the-mill" excuses for delay; it is not based on "inconvenience." The plaintiffs' delay is based on the uniquely catastrophic historical context from which their class is still seeking to advance and from which the defendants are still profiting. Equitable tolling is mandated as the case presents one of "those rare instances where -- due to circumstances external to the party's own conduct -- it would be unconscionable to enforce the limitation period against the party and gross injustice would result." Harris, 209 F.3d at 330.

The pervasiveness of racial inequality in the administration of justice, which continues into the present day, in effect rendered the doors of the courts closed to African Americans seeking justice for the harms occasioned upon them and their ancestors as a consequence of slavery in the United States. The inaccessibility of the courts as a forum for seeking equal justice under law, prevented the plaintiffs from asserting the rights they raise in the instant litigation; and it prevented assertion of their rights in the kind of "extraordinary way" for which the equitable tolling doctrine provides a necessary remedy.

The defending corporations under the laws of this country have infinite lifespan and should be held to account for any illegal conduct they or their predecessors in interest engaged in relating to illegal profits from slavery transactions. Plaintiffs and other members of the class have been kept in ignorance of vital information essential to pursue their claims, without any fault or lack of diligence on their part. The class should not be penalized for the concealment or destruction of these records and should be granted equitable tolling.


C. Continuing Violation

"The continuing violations doctrine tolls the running of the statute of limitations on all [wrongful] acts until the defendant has taken its last [wrongful] act." The continuing violation doctrine also allows for claims outside a given limitations period if there is a "substantial nexus" between that conduct and conduct occurring within the limitations period.

Defendants illegally profited from slavery during the limitations period. Defendants have ever since failed to provide an accounting of those wrongs through to the current date. There is a substantial nexus between the acts of chattel enslavement and the ongoing lack of accounting by the defendants for the use of that unjust institution. The nexus between the two is enough to satisfy the well-pleaded facts standard to show that there was indeed a continuing violation at the motion to dismiss stage.

Defendants, in their motion to dismiss, claim that slavery was a single event with purported continuing injuries, not a "continuing violation." The defendants obtusely misconstrue the plaintiffs' claims. The plaintiffs' assertion of the applicability of the continuing violation doctrine is limited to plaintiffs' cause of action for an Accounting.

The defendants continued failure to make restitution and its false representations that the basis of restitution is not identifiable, constitute a continuous and ongoing violation of the law. "The nature of plaintiffs claim is such that the continued denial of their assets, as well as facts and information relating thereto, if proven, constitutes a continuing violation." Bodner v. Banque Paribas, 114 F. Supp.2d 117 (E.D.N.Y. 2000). The statute of limitations has not yet begun to run because the wrongful acts are ongoing.


D. Equitable Estoppel.

To the extent that the Court determines that none of plaintiffs' asserted tolling theories applies to any of their causes of action, plaintiffs argue in the alternative that the defendants are equitably estopped from asserting a statute of limitations defense. Equitable Estoppel has six elements: (1) defendant undertook words or conduct that amounted to a misrepresentation or concealment of material fact; (2) defendant knew, or had reason to know, the falsity of his misrepresentation or concealment; (3) plaintiff did not know, or have reason to know, that defendant's misrepresentation or concealment was false; (4) defendant intended, or reasonably expected, that plaintiff would detrimentally rely on defendant's misrepresentation or concealment; (5) plaintiff's detrimental reliance was reasonable and in good faith; and (6) plaintiff would be prejudiced if defendant were permitted to avoid the falsity of his misrepresentation or concealment. Specifically, as discussed above and within plaintiffs' complaint, plaintiffs have listed sufficient, if not substantial, factual allegations to create a fact question as to the defendants' conduct in concealing information from the plaintiffs, thus precluding them from being able to file suit within the statute of limitations period and, therefore, this Court should deny defendants' motion to dismiss.

Plaintiffs factual allegations include: 1) defendants withheld documents and information related to their illegal profits from slavery and/or lied about their participation in slavery; 2) the fact that the defendants benefited from concealing the information and that the concealment was so complete, provides a sufficient basis to conclude that they were aware of the concealment; 3) plaintiffs did not know of the defendants conduct or illegal profits and therefore could not have known of the concealment and/or misrepresentations; 4) defendants in concealing the information knew that this concealment would protect them from accountability for their actions; 5) plaintiffs' lack of information was reasonable and in good faith given the nature of defendants' conduct and plaintiffs' conditions; and 6) clearly justice would not be served by allowing the defendants to benefit from their concealing behavior as measured against the extreme harm suffered by plaintiffs and their ancestors.

As a result of this brief outline of plaintiffs' allegations against defendants, plaintiffs respectfully assert that dismissal of this action as a matter of law would be improper and unjust.


E. Defendants' Contentions Are Faulty.

Defendants, in their motion to dismiss, make unsupported conclusory assertions that the tolling mechanisms alleged by plaintiffs do not apply as a matter of law and/or precedent. In so doing, defendants misstate plaintiffs' claims. In attempted support for defendants' contentions they inappropriately cite to a slate of other reparations cases for the simple reason that these cases were dismissed at least in part on statute of limitations grounds. However, a simple reading of the cases establishes that these cases are clearly inapposite for one or more of the following reasons: 1) in several of the cases, the plaintiffs did not provide any legal basis for tolling, unlike in this case; 2) in others, a German statute of repose applied, therefore foreclosing a tolling argument, unlike in this case; and 3) in others, the plaintiffs were not found to have triggered tolling, given the limited or substandard nature of their tolling allegations, again unlike this case.


F. Crimes Against Humanity Do not Invoke Statute of Limitations Concerns.

Refer to the substantive treatment of the plaintiffs' Crimes Against Humanity section at Point IV.C.2. Alternatively, plaintiffs have adequately pleaded tolling herein.

G. Consumer Protection Statutes Do Not Invoke Statute of Limitations Concerns.

The facts supporting plaintiffs' state consumer protection claims are all brought within the applicable statutes of limitations, none of which have yet to run. See Point I.C.8.



Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law