Chapter 13 - § 13.4 • DEFENSES

• Jurisdiction: Colorado

§ 13.4 • DEFENSES

§ 13.4.1—Lack of Standing

COCCA affords any person who is injured by reason of any violation of COCCA standing to pursue a civil claim.²⁸ Courts have applied a two-part test to determine whether a claimant has standing to assert a civil COCCA claim: (1) the claimant must establish that each of the predicate acts constituting the alleged pattern of racketeering activity caused one or more injuries to someone (not necessarily to the claimant); and (2) the claimant must show that at least one of the predicate acts caused harm to the claimant, for which he or she seeks compensation.²⁹ If the predicate acts the claimant relies upon to establish a pattern of racketeering activity did not cause any of the claimant's damages, then the claimant lacks standing to sue under COCCA.³⁰

§ 13.4.2—Failure to Plead with Particularity

At the pleading stage, a civil COCCA claim is subject to a heightened pleading standard if the racketeering activity forming the basis for the claim consists of fraudulent acts.³¹ In such cases, the claim must be pleaded with the particularity required by C.R.C.P. 9(b), which requires that "[i]n all averments of fraud . . ., the circumstances constituting fraud . . . shall be stated with particularity."³² C.R.C.P. 9(f) further provides that, "For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter."³³

§ 13.4.3—Statute of Limitations

A civil claim for violation of COCCA is subject to Colorado's general two-year statute of limitations, because there is no express statute of limitations period set forth in the COCCA statute.³⁴ An action under COCCA accrues, for statute of limitations purposes, when the claimant knew or should have known of all elements of the claim, including the existence of a pattern of racketeering activity.³⁵ (RICO claims are subject to a four-year limitations period, but since COCCA claims are subject to a much shorter limitations period, claimants must evaluate potential COCCA claims early and carefully.)

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Notes:

^[28] See C.R.S. § 18-17-106(7).

^[29] Floyd v. Coors Brewing Co., 952 P.2d 797, 803 (Colo. App. 1997), rev'd on other grounds, 978 P.2d 663 (Colo. 1999); New Crawford Valley, Ltd., 877 P.2d at 1372.

^[30] Floyd, 952 P.2d at 803; New Crawford Valley, Ltd., 877 P.2d at 1372.

^[31] New Crawford Valley, Ltd., 877 P.2d at 1370-71.

^[32] C.R.C.P. 9(b); see also New Crawford Valley, Ltd., 877...