statute of limitations runs from the date the loan was made).
The plaintiffs respond that their claims are governed by the exception for cases of "fraud or concealment." As a result, the six year period runs from the "date of discovery of the alleged violation" not the date of the loan. See 29 U.S.C. § 1113; Diduck v. Kaszycki & Sons Contractors, Inc., 874 F.2d 912, 919 (2d Cir. 1989).
The "fraud or concealment" exception contained in section 1113 incorporates the common law doctrine of fraudulent concealment, which operates "to toll the statute of limitations until the plaintiff in the exercise of reasonable diligence should have discovered the alleged fraud or concealment." J. Geils Band Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, 1252 (1st Cir.), cert. denied, 136 L. Ed. 2d 39, 117 S. Ct. 81 (1996); Larson v. Northrop Corp., 305 U.S. App. D.C. 416, 21 F.3d 1164, 1172-74 (D.C. Cir. 1994); Martin v. Consultants & Administrators, Inc., 966 F.2d 1078, 1093-96 (7th Cir. 1992); Schaefer v. Arkansas Medical Soc'y, 853 F.2d 1487, 1491-92 (8th Cir. 1988). Although the Second Circuit has not directly addressed the issue, at least one district court in this circuit has held that the doctrine includes both situations where the fraud or concealment "consists of covering up prior ERISA violations" as well as self concealing wrongs. Petrilli v. Gow, 957 F. Supp. 366, 1997 U.S. Dist. LEXIS 1588, *8, CIV. 3:95 CV1657 (PCD), 1997 WL 633312 *3 (D. Conn. Feb. 12, 1997); accord J. Geils Band Benefit Plan, 76 F.3d at 1253 n.9; see Wolin v. Smith Barney, Inc., 83 F.3d 847, 852 (7th Cir. 1996) (distinguishing between self concealing acts on the one hand, namely acts committed during the course of the fraud which have the effect of concealing the fraud, and other ERISA violations which the actor subsequently attempts to conceal). The Second Circuit has recognized that application of the fraud or concealment exception is appropriate where the plaintiff can demonstrate common law fraud, namely: (1) a material false representation or omission of an existing fact, (2) made with knowledge of its falsity, (3) with an intent to defraud, (4) reasonable reliance, and (5) damages. Diduck v. Kaszycki & Sons Contractors, Inc., 974 F.2d 270, 275-76 (2d Cir. 1992); Gruby v. Brady, 838 F. Supp. 820, 831 (S.D.N.Y. 1993). Other circuit courts, apparently focusing on the "concealment" element, apply the exception where the plaintiff demonstrates that: (1) the defendants engaged in a course of conduct designed to conceal evidence of the alleged wrongdoing; (2) the plaintiffs were not on actual or constructive notice of that evidence, despite (3) their exercise of reasonable diligence. J. Geils Band Benefit Fund, 76 F.3d at 1255; Larson, 21 F.3d at 1172. Indeed, the Second Circuit has alluded to this latter definition in other contexts. See, e.g., Pinaud v. County of Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995) (considering similar elements while addressing the doctrines of fraudulent concealment and equitable tolling in the context of a section 1983 claim). Further, it is the plaintiffs' burden to plead with particularity under Fed. R. Civ. P. 9(b) the events giving rise to a claim of fraud or concealment. J. Geils Band Benefit Fund, 76 F.3d at 1255; Larson, 21 F.3d at 1173; Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1415 (9th Cir. 1987); see Armstrong v. McAlpin, 699 F.2d 79, 89 (2d Cir. 1983) (applying the heightened pleading standard to fraudulent concealment claim in securities fraud action). To satisfy the particularity requirement of Rule 9(b), the allegations should "specify the time, place, speaker, and sometimes content of the alleged misrepresentations." IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1057 (2d Cir. 1993), cert. denied, 513 U.S. 822, 130 L. Ed. 2d 38, 115 S. Ct. 86 (1994); Di Vittorio, 822 F.2d 1242, 1247 (2d Cir. 1987), citing, Luce v. Edelstein, 802 F.2d 49, 54 (2d Cir. 1986).
Applying these standards the Court finds that the plaintiffs have failed to allege facts sufficient to warrant application of the "fraud or concealment" exception to the statute of limitations set forth in section 1113. In their opposing papers, the plaintiffs rely on the following allegations in support of their position that they entitled to the protection of section 1113's tolling provision.
19. The closing of the Loan Transaction took place on November 20, 1989 (the "Closing"). At the Closing, FGH required, and was provided with, the following certifications from the Training Fund, Union and Building Corporation (collectively, the "Certifications"):