In the

United States Court of Appeals

For the Seventh Circuit ____________________

Nos. 14-2282 & 14-2909

SIDNEY HILLMAN HEALTH CENTER OF ROCHESTER, et al.,

Plaintiffs-Appellants,

v.

ABBOTT LABORATORIES, INC., and ABBVIE, INC.,

Defendants-Appellees.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:13-cv-05865 — Sara L. Ellis, Judge.

____________________

ARGUED FEBRUARY 20, 2015 — DECIDED APRIL 13, 2015

____________________

Before RIPPLE, KANNE, and TINDER, Circuit Judges.

TINDER, Circuit Judge. Appellants are a group of multiemployer benefit funds challenging the dismissal of their

putative class action alleging that Abbott Laboratories, Inc., 

and its subdivision AbbVie, Inc. (collectively, “Abbott”), 

violated the Racketeer Influenced and Corrupt 

Organizations Act (“RICO”) through efforts to promote the 

anticonvulsant medication Depakote for ineffective and 

unsafe uses. The district court dismissed the case with 
2 Nos. 14-2282 & 14-2909

prejudice as barred by the statute of limitations, concluding 

that a reasonable benefit fund would have discovered its 

injuries in 1998, when the funds first reimbursed the cost of 

an “off-label” prescription for Depakote. We reverse.

I. BACKGROUND

According to the allegations in the complaint, which we 

accept as true for purposes of this appeal, see Fox v. Am. Alt. 

Ins. Corp., 757 F.3d 680, 681 (7th Cir. 2014), Abbott engaged 

in a scheme from 1998 to 2012 to illegally market Depakote 

for applications that had not been approved by the Food and 

Drug Administration (“FDA”). Unapproved applications are 

known as “off-label” uses. See United States v. King-Vassal, 

728 F.3d 707, 709 (7th Cir. 2013). Physicians may, and often 

do, prescribe drugs for off-label uses, id., but pharmaceutical 

companies are generally prohibited from marketing drugs 

for those same applications, see, e.g., United States ex rel. 

Wilson v. Bristol-Myers Squibb, Inc., 750 F.3d 111, 113 (1st Cir. 

2014); Wash. Legal Found. v. Henney, 202 F.3d 331, 332–33 

(D.C. Cir. 2010). The funds allege that Abbott, in promoting 

Depakote, not only misrepresented its safety and efficacy for 

off-label uses but also paid kickbacks to physicians, and 

established and funded intermediary entities like the 

Council for Excellence in Neuroscience Education, to 

promote the drug for off-label uses. Abbott then took steps 

to conceal its role in these activities. These efforts 

dramatically increased Depakote sales, which reached a high 

of $1.5 billion by 2007. 

The funds were not the first to bring Abbott’s marketing 

scheme to light. Four qui tam actions were filed against 

Abbott between October 2007 and January 2010, alleging 
Nos. 14-2282 & 14-2909 3

that its off-label marketing of Depakote violated the False 

Claims Act and caused excessive charges to government 

benefit programs. These actions were unsealed in February 

2011, when the federal government and multiple state 

governments intervened. Meanwhile, in November 2009, 

Abbott disclosed in a public filing with the Securities and 

Exchange Commission (“SEC”) that the Department of 

Justice (“DOJ”) was investigating its marketing of Depakote. 

In May 2012, Abbott pleaded guilty to illegally promoting 

Depakote from 2001 through 2006 for uses that had not been 

shown to be effective in clinical trials. In connection with this 

plea, Abbott agreed to pay $1.6 billion to settle the criminal 

and qui tam actions against it.

Fifteen months later, in August 2013, the funds filed this 

lawsuit asserting that Abbott’s off-label marketing of 

Depakote constituted a civil RICO violation. The funds 

sought to represent a class of “[a]ll third party purchasers in 

the United States and its territories who, during the period 

from 1998 through 2012, reimbursed and/or paid some or all 

of the purchase price for Depakote for indications not 

approved by the FDA.” They also sought to bring state-law 

claims of deceptive business practices and unjust enrichment 

on behalf of New York, Illinois, and Massachusetts 

subclasses.

Abbott moved to dismiss in part on the basis of 

timeliness, arguing that, because the lawsuit alleges injury 

dating back to 1998, it falls outside the four-year statute of 

limitations for civil RICO claims. In response, the funds

argued that equitable tolling or estoppel should apply, 

contending that they could not have discovered the 

existence of their claims before the 2012 guilty plea because 
4 Nos. 14-2282 & 14-2909

Abbott had taken steps to conceal its marketing scheme. 

They also noted that it is unusual to dismiss a case as 

untimely at the pleadings stage because the statute of 

limitations is an affirmative defense that typically depends

on factual determinations. The funds argued that nothing in 

the complaint could serve as an admission that the 

limitations period had expired and “[t]here are thus 

unresolved factual determinations that make it 

inappropriate for the Court to grant Defendants’ motion to 

dismiss on statute of limitations grounds.”

The district court granted Abbott’s motion and dismissed 

the funds’ claims with prejudice pursuant to Federal Rule of 

Civil Procedure 12(b)(6). In doing so, the court concluded 

that the statute of limitations for the RICO claim began to 

run in 1998, when the funds initially reimbursed a 

prescription for off-label use of Depakote. The court 

acknowledged that “[o]ff-label prescription of drugs is not 

illegal and is a routine practice among physicians.” But the 

court decided that, given that third-party purchasers are 

sophisticated entities in the business of monitoring 

prescription reimbursements, a reasonable benefit fund 

would have discovered its injuries from Abbott’s actions 

when it began paying for off-label prescriptions for 

Depakote. The court applied similar reasoning to bar the 

state-law claims.

The district court further rejected the funds’ equitable 

arguments. The court refused to toll the limitations period 

until the time of the guilty plea in 2012 because, it reasoned, 

tolling is appropriate only for “relatively brief” delays and 

should not shift the start of the limitations period from the 

time of the initial injury to when a plaintiff becomes aware 
Nos. 14-2282 & 14-2909 5

of possible racketeering. The court additionally concluded 

that equitable estoppel did not apply because, in its view, 

Abbott’s efforts to conceal its off-label promotion of 

Depakote were not designed to hinder potential lawsuits.

II. DISCUSSION

The civil RICO statute is silent about the statute of 

limitations, so the Supreme Court established a four-year 

limitations period by analogy to the Clayton Act. See Agency 

Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156 

(1987). The Court initially left open the question of the start 

of this period, leading to a three-way circuit split. See Rotella 

v. Wood, 528 U.S. 549, 553 (2000). Prior to Rotella, the majority 

of circuits, including this one, recognized some form of an

“injury discovery” rule “starting the clock when a plaintiff 

knew or should have known of his injury.” Id.; see McCool v. 

Strata Oil Co., 972 F.2d 1452, 1464–65 (7th Cir. 1992); see also 

Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 

1990) (recognizing “the ‘discovery rule’ of federal common 

law, which is read into statutes of limitations in federalquestion cases ... in the absence of a contrary directive from 

Congress”). Other circuits held either that the claim “accrues 

only when the claimant discovers, or should discover, both 

an injury and a pattern of RICO activity,” or that the “period 

began to run as soon as the plaintiff knew or should have 

known of the injury and the pattern of racketeering activity, 

but began to run anew upon each predicate act forming part 

of the same pattern.” Rotella, 528 U.S. at 553–54. 

The Supreme Court rejected both of these latter 

approaches in favor of the majority view. See Rotella, 528 U.S. 

at 555 (rejecting “injury and pattern discovery” rule); Klehr v. 
6 Nos. 14-2282 & 14-2909

A.O. Smith Corp., 521 U.S. 179, 187 (1997) (rejecting “last 

predicate act” rule). Although “RICO has a unique pattern 

requirement,” and “a pattern of predicate acts may well be 

complex, concealed, or fraudulent,” the Court reasoned that 

establishing “a less demanding basic discovery rule than 

federal law generally applies would clash with the 

limitations imposed on Clayton Act suits”—on which the 

RICO limitations period is based. Rotella, 528 U.S. at 556–57. 

The Court noted that both RICO and the Clayton Act “share 

a common congressional objective of encouraging civil 

litigation to supplement Government efforts to deter and 

penalize the respectively prohibited practices.” Id. at 557. “It 

would, accordingly, be strange to provide an unusually long 

basic limitations period that could only have the effect of 

postponing whatever public benefit civil RICO might 

realize.” Id. at 558. Therefore, the Court emphasized, 

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

of a claim, is what starts the clock.” Id. at 555.

Even after Rotella, as we will discuss later, there remains 

some ambiguity about the contours of the accrual rules for 

civil RICO claims. But the funds here argue that, even under 

a stringent understanding of those rules, the district court 

erred in determining at the pleading stage when a 

reasonable third-party purchaser should have discovered 

that it had been injured by Abbott’s actions. They emphasize 

that the basis of their claims is that they were harmed by 

increased costs due to Abbott’s illegally marketing of 

Depakote, not merely by reimbursing off-label prescriptions, 

which are common and permissible. See, e.g., King-Vassal, 728 

F.3d at 709 (“[O]ff-label prescriptions by physicians are quite 

common.”); see also Buckman Co. v. Plaintiffs’ Legal Comm., 531 

U.S. 341, 351 (2001) (observing that off-label use of medical 
Nos. 14-2282 & 14-2909 7

devices “is generally accepted”). In fact, off-label 

prescriptions are particularly high for anticonvulsants, at 

one point constituting as much as 74 percent of all such 

prescriptions. See Randall S. Stafford, Regulating Off-Label 

Drug Use–Rethinking the Role of the FDA, 358 New Eng. J. 

Med. 1427, 1427 (2008), available at http://www.nejm.org/doi

/pdf/10.1056/NEJMp0802107. Thus, the funds argue, it is not 

clear at this stage of the proceedings that a reasonable thirdparty purchaser would have had any reason to discover 

Abbott’s illegal marketing scheme based simply on 

reimbursing off-label prescriptions. 

Abbott first responds that the funds waived these 

arguments by not sufficiently raising them in the district 

court. In the district court, it argues, the funds focused on 

equitable doctrines, not the problems with factual 

determinations regarding discovery of their injuries. But 

“[w]aiver is not meant as an overly technical appellate 

hurdle,” and the nuances of a litigant’s arguments may 

differ from their stance in the district court without resulting 

in waiver. Fox v. Hayes, 600 F.3d 819, 832 (7th Cir. 2010). And 

in the funds’ response to Abbott’s motion to dismiss, they 

argued, even if in a relatively cursory fashion, that 

“unresolved factual determinations [made] it inappropriate 

for the Court to grant Defendants’ motion to dismiss on

statute of limitations grounds.” We believe that this 

discussion was sufficient to preclude waiver. Moreover, 

even if the funds had not raised their appellate arguments in 

the district court, the court clearly addressed the question of 

when the limitations period began, and “it is well settled 

that the waiver rule does not prevent a party from attacking 

on appeal the legal theory upon which the district court 

based its decision,” Hedge v. Cnty. of Tippecanoe, 890 F.2d 4, 8 
8 Nos. 14-2282 & 14-2909

(7th Cir. 1989); accord Allison v. Ticor Title Ins. Co., 979 F.2d 

1187, 1194 (7th Cir. 1992).

Abbott next argues that a reasonably diligent benefit 

fund should have known that it was paying for off-label use 

and, with some investigation, even about Abbott’s illegal 

marketing scheme. To demonstrate this, Abbott points to 

news articles raising concerns about off-label marketing and

Depakote as early as 2006. Abbott also argues that we may 

take judicial notice of the fact that insurers are sophisticated 

entities with ready access to medical databases and 

information about healthcare matters. See Int’l Bhd. of 

Teamsters, Local 734 Health & Welfare Trust Fund v. Philip 

Morris Inc., 196 F.3d 818, 826 (7th Cir. 1999). Similarly, 

Abbott maintains that the funds’ fiduciary duty under 

ERISA to act in the interest of their participants and 

beneficiaries, see 29 U.S.C. § 1104(a)(1), requires them to 

investigate potential off-label reimbursements, cf. O'Reilly v. 

Hartford Life & Accident Ins. Co., 272 F.3d 955, 961 (7th Cir. 

2001) (noting, with respect to a disability insurance claim, 

that fiduciary duties in ERISA require “reasonable inquiry” 

into claimant’s condition and skills, though not a “fullblown” investigation); Harris v. Amgen, Inc., 770 F.3d 865, 

881–82 (9th Cir. 2014) (reversing dismissal of claim for 

breach of ERISA fiduciary duties through purchase of 

pension-plan stock at prices inflated by illegal off-label 

marketing).

These arguments may eventually carry considerable 

weight, and we express no opinion on the funds’ ultimate 

ability to show that their lawsuit was timely filed (or for that 

matter, succeed on the merits of their RICO claim). But given 

the allegations of the complaint, we are convinced that the 
Nos. 14-2282 & 14-2909 9

district court erred by dismissing this case based on the 

statute of limitations without giving the parties an 

opportunity for discovery into when a reasonable benefit 

fund should have known about its injuries from off-label 

marketing. 

“Dismissing a complaint as untimely at the pleading 

stage is an unusual step, since a complaint need not

anticipate and overcome affirmative defenses, such as the 

statute of limitations.” Cancer Found., Inc. v. Cerberus Capital 

Mgmt., LP, 559 F.3d 671, 674 (7th Cir. 2009). “Further, these 

defenses typically turn on facts not before the court at that 

stage in the proceedings.” Brownmark Films, LLC v. Comedy 

Partners, 682 F.3d 687, 690 (7th Cir. 2012). It is true that, “if a 

plaintiff alleges facts sufficient to establish a statute of

limitations defense, the district court may dismiss the 

complaint on that ground.” O’Gorman v. City of Chicago, 777 

F.3d 885, 889 (7th Cir. 2015); see Cancer Found., 559 F.3d at 

674–75 (“[D]ismissal is appropriate when the plaintiff pleads 

himself out of court by alleging facts sufficient to establish 

the complaint’s tardiness.”). But we have cautioned that this 

“irregular” approach is appropriate “only where the 

allegations of the complaint itself set forth everything 

necessary to satisfy the affirmative defense.” Chi. Bldg. 

Design, P.C. v. Mongolian House, Inc., 770 F.3d 610, 613–14

(7th Cir. 2014) (quotations omitted); see United States v. N. 

Trust Co., 372 F.3d 886, 888 (7th Cir. 2004). As long as there is 

a conceivable set of facts, consistent with the complaint, that 

would defeat a statute-of-limitations defense, questions of 

timeliness are left for summary judgment (or ultimately 

trial), at which point the district court may determine 

compliance with the statute of limitations based on a more 

complete factual record. See Clark v. City of Braidwood, 318 
10 Nos. 14-2282 & 14-2909

F.3d 764, 767 (7th Cir. 2003) (reversing dismissal because, “at 

this stage, the question is only whether there is any set of 

facts that if proven would establish a defense to 

the statute of limitations, and that possibility exists” (citation 

omitted)); Early v. Bankers Life & Cas. Co., 959 F.2d 75, 80 (7th 

Cir. 1992) (“[W]hen a complaint is dismissed at the 

pleadings stage the question is not what are the facts, but is 

there a set of facts that if proved would show that the case 

had merit?”).

The district court’s departure from orthodoxy was not 

justified here. Even if the funds had the duty and ability to 

monitor off-label prescriptions, that conclusion is not clear 

from the complaint and requires factual determinations not 

appropriately made at the pleadings stage. It also remains 

unclear when the funds actually became aware that they 

were paying for off-label use. Compare Rotella, 528 U.S. at 

558–59 (emphasizing that plaintiff did not deny that he knew 

of his injury more than ten years before filing suit). 

Moreover, “[i]t is not the date on which the wrong that 

injures the plaintiff occurs, but the date—often the same, but 

sometimes later—on which the plaintiff discovers that he 

has been injured.” Cada, 920 F.2d at 450. At this stage, there 

is insufficient information to decide when a reasonable 

third-party purchaser should have discovered that it had 

paid more for off-label uses than it otherwise would have 

had to because of an illegal marketing scheme. Cf. Barry 

Aviation, Inc. v. Land O’Lakes Mun. Airport Comm’n, 377 F.3d 

682, 688–89 (7th Cir. 2004) (reversing dismissal of RICO 

claim on timeliness grounds when “at some point, no doubt, 

a reasonable person would have investigated whether [a] 

disappointing business pattern was the product of 

fraudulent misrepresentations by the defendants, but the 
Nos. 14-2282 & 14-2909 11

complaint before us does not preclude the possibility that 

this date was within the applicable statute of limitations”); In 

re Celexa & Lexapro Mktg. & Sales Practices Litig., Nos. 13-

13113, 14-10784, 2014 WL 7009339, at *3–4 (D. Mass. Dec. 12, 

2014) (refusing to conclude at the pleading stage that similar 

RICO claim accrued when plaintiff first reimbursed off-label 

use versus when plaintiff became aware of illegal off-label 

marketing); In re Schering-Plough Corp. Intron/Temodar 

Consumer Class Action, No. 2:06-cv-5774, 2009 WL 2043604, at 

*22 (D. N. J. July 10, 2009) (refusing to dismiss similar RICO 

claims as untimely when complaint did not establish 

conclusively that plaintiffs knew or should have known of 

illegal marketing, and an FDA warning letter and other 

public information did not put them on notice).

Granted, the funds do not contest that they are 

sophisticated, and we have been willing to hold 

sophisticated entities to a higher standard. See KDC Foods, 

Inc. v. Gray, Plant, Mooty, Mooty & Bennett, P.A., 763 F.3d 743, 

751 (7th Cir. 2014) (refusing “a more forgiving application of 

the discovery rule” for Wisconsin fraud claim because, “with 

corporate players, a different quantum of expertise and 

knowledge is in play”); Whirlpool Fin. Corp. v. GN Holdings, 

Inc., 67 F.3d 605, 610 (7th Cir. 1995) (observing that, for claim 

accrual purposes, “[a] reasonable investor is presumed to 

have information available in the public domain”). But 

Abbott is sophisticated as well and is alleged to have taken 

significant effort to conceal its underhanded marketing. 

Furthermore, at this stage, there is simply not enough 

information in the record to determine when even a 

sophisticated benefit fund should have uncovered its injuries 

from off-label promotion.
12 Nos. 14-2282 & 14-2909

Abbott emphasizes that certain news articles and judicial 

opinions—of which we may take judicial notice, see Geinosky 

v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012)—give a 

glimpse into how the funds might operate in regard to offlabel prescriptions. But these sources present conflicting 

information. It seems beyond dispute that the funds had a 

duty to act in the best interests of their beneficiaries and had 

ready access to medical information. But even so, as the 

Eleventh Circuit has pointed out, once a drug is placed on an 

insurer’s list of medications approved for coverage based on 

FDA-approved uses, the insurer may be contractually 

obligated to pay the drug’s price anytime it is prescribed, 

“regardless of the facts surrounding that prescription.” 

Ironworkers Local Union 68 v. Astrazeneca Pharms., LP, 634 F.3d 

1352, 1366 (11th Cir. 2011). Thus, the insurers in Ironworkers

“had to pay if the drug was prescribed for an FDA-approved 

use or an off-label use—even if the prescription was 

medically unnecessary or inappropriate.” Id. Although 

techniques like preauthorization review can limit improper 

prescriptions, these techniques are not employed 

universally, see id. at 1366–67, and are not alleged to have 

been in place here. Perhaps a failure to employ 

preauthorization review is unreasonable, or a reasonable 

fund, even without this type of review, should have 

investigated for improper marketing after reimbursing 

widespread off-label prescriptions for Depakote. But these 

questions, in our view, should be left for summary 

judgment, when they can be reviewed with a more complete 

record. 

Abbott also asserts that the funds are experienced 

litigants, with one having even brought a similar RICO claim 

against another drug manufacturer for off-label marketing of 
Nos. 14-2282 & 14-2909 13

Lipitor. See Complaint, Sidney Hillman Health Ctr. v. Pfizer, 

Inc., No. 06-cv-2410 (S.D.NY. Mar. 28, 2006). But the fact that 

one fund filed a similar claim against a different

pharmaceutical company, regarding a different drug, is of 

little value in showing when the funds should have been on 

notice of their injuries here. 

The funds contend that their argument for remand is 

further supported by case law stating that the limitations 

period for RICO claims begins to run only when plaintiffs 

have reason to discover who injured them. But as Abbott 

points out, our decisions on this issue are somewhat 

inconsistent. 

On the one hand, we noted in Barry Aviation that 

generally “accrual occurs when the plaintiff discovers that 

he has been injured and who caused the injury.” 377 F.3d at 

688 (quotation omitted). This language was arguably dicta, 

but we have echoed that formulation since then. See Jay E. 

Hayden Found. v. First Neighbor Bank, N.A., 610 F.3d 382, 386 

(7th Cir. 2010) (remarking that the limitations period “starts 

running when the prospective plaintiff discovers (or should 

if diligent have discovered) both the injury that gives rise to 

his claim and the injurer or (in this case) injurers” (emphasis 

added)); Cancer Found., 559 F.3d at 674 (holding that period 

“begins to run when the plaintiffs discover, or should, if 

diligent, have discovered, that they had been injured by the 

defendants” (emphasis added)). Moreover, in In re Copper 

Antitrust Litigation, 436 F.3d 782, 789–90 (7th Cir. 2006), we 

relied on Barry Aviation to reverse the dismissal on statuteof-limitation grounds of claims against a defendant accused 

of antitrust violations, reasoning that a dispute of fact 

existed regarding when a diligent inquiry by the plaintiffs 
14 Nos. 14-2282 & 14-2909

would have revealed the defendant’s role in causing their 

injuries. 

On the other hand, however, the Supreme Court has 

never clearly adopted the funds’ preferred rule, even if some 

language quoted in Rotella hints that it might. See 528 U.S. at 

556 (“‘The prospect [of filing a timely lawsuit] is not so bleak 

for a plaintiff in possession of the critical facts that he has 

been hurt and who has inflicted the injury.’” (emphasis added) 

(quoting United States v. Kubrick, 444 U.S. 111, 122 (1979)).

Further, we have never overruled decisions from before 

Barry Aviation adopting a simple “injury discovery” rule, 

see McCool 972 F.2d at 1464–65; Cada, 920 F.2d at 450, and 

have emphasized—albeit not in the RICO context—that a 

plaintiff “doesn’t have to know who injured him” to file suit 

because, “[i]f despite the exercise of reasonable diligence he 

cannot discover his injurer’s (or injurers’) identity within the 

statutory period, he can appeal to the doctrine of equitable 

tolling to postpone the deadline for suing until he can obtain 

the necessary information,” Fid. Nat’l Title Ins. Co. v. Howard 

Sav. Bank, 436 F.3d 836, 839 (7th Cir. 2006); see Cancer Found., 

559 F.3d at 676 (cautioning that, “to know you’ve been 

injured and make no effort to find out by whom is the very 

laxity that statutes of limitations are designed to penalize”).

Ultimately, because we conclude that dismissal was 

unwarranted at this stage even under the standard 

articulated in McCool and Cada, we need not decide today 

whether a delay in discovering a wrongdoer’s identity might 

extend the start of the limitations period for RICO claims. 

Finally, in case the funds’ equitable arguments resurface 

on remand, we agree with the district court that, based upon 

the facts alleged in the complaint, those arguments are 
Nos. 14-2282 & 14-2909 15

unpersuasive. “‘Equitable tolling is granted sparingly only 

when extraordinary circumstances far beyond the litigant’s 

control prevented timely filing.’” Simms v. Acevedo, 595 F.3d 

774, 781 (7th Cir. 2010) (quoting Wilson v. Battles, 302 F.3d 

745, 749 (7th Cir. 2002)). The doctrine applies “when the 

plaintiff, exercising due diligence, was unable to discover 

evidence vital to a claim until after the statute of limitations 

expired.” Moultrie v. Penn Aluminum Int’l, LLC, 766 F.3d 747, 

752 (7th Cir. 2014). Furthermore, “a plaintiff who invokes 

equitable tolling to suspend the statute of limitations must 

bring suit within a reasonable time after he has obtained, or 

by due diligence could have obtained, the necessary 

information.” Cada, 920 F.2d at 451. Similarly, equitable 

estoppel, also called fraudulent concealment, applies only 

when plaintiffs act with reasonable diligence to discover and 

file their claims. See Klehr, 521 U.S. at 194–95 (“[A] plaintiff 

who is not reasonably diligent may not assert ‘fraudulent 

concealment.’”); Jay E. Hayden Found., 610 F.3d at 388 (“[I]n a 

RICO case, the plaintiff must both use due diligence to 

discover that he has been injured and by whom even if the 

defendant is engaged in fraudulent concealment, and 

diligently endeavor to sue within the statutory limitations 

period or as soon thereafter as feasible.”). 

Here, the funds acknowledge that they did not allege that 

they acted diligently in seeking information about their 

claims, or in fact attempt any investigation. Moreover, even 

assuming that the SEC filing in 2009 disclosing the DOJ’s 

investigation of Abbott’s off-label marketing did not alert the 

funds to their injuries, surely the 2012 guilty plea and 

corresponding $1.6-billion settlement did so. Yet the funds 

still waited more than a year to file suit. We thus are not 
16 Nos. 14-2282 & 14-2909

persuaded that the equitable doctrines at issue apply to 

extend the limitations period. 

We REVERSE the dismissal of the funds’ RICO claims and 

REMAND for further proceedings consistent with this 

opinion. Because the state law claims were dismissed based 

on similar reasoning, they are reinstated as well.