RICO - A Guide To Civil RICO Litigation In Federal Courts

• Published date: 11 July 2021
• Subject Matter: Corporate/Commercial Law, Insurance, Litigation, Mediation & Arbitration, Criminal Law, Corporate and Company Law, Insurance Laws and Products, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Personal Injury, Securities, White Collar Crime, Anti-Corruption & Fraud
• Law Firm: Jenner & Block
• Author: Mr Reid J. Schar, E.K. McWilliams and Philip B. Sailer

I. INTRODUCTION

' 1 Scope Note

"RICO" is the acronym for the Racketeer Influenced and Corrupt Organizations Act, codified as Title IX of the Organized Crime Control Act of 1970.¹ The full text of the key sections of the RICO statute are included in Appendix A.

With its charge of "racketeering" and its threat of treble damages and attorney's fees, RICO may seem like the blunt instrument of civil litigation. RICO's requirements of a culpable "person" who conducts the affairs of a distinct "enterprise" through a "pattern" of "racketeering" in a way that proximately causes injury can make RICO seem complex and mystifying. Adding to the perception of complexity are some historical disagreements among courts on how to interpret several key provisions of the broadlydrafted RICO statute. Our goal with this treatise is to demystify RICO by discussing the prevailing law on the elements common to all civil RICO claims and also by addressing specific issues that have most perplexed the courts and practitioners.

We have found this treatise to be a valuable resource in representing RICO plaintiffs and defendants. Section 86 below contains a checklist of essential allegations for all civil RICO claims. Counsel should review that list when deciding whether they have a RICO claim or to get ideas about how a RICO claim might be attacked.

Section 88 contains bare-bone allegations that should help counsel draft a RICO complaint. As with any civil complaint, a RICO complaint should tell a clear and compelling story. Fed. R. Civ. P. 8 requires the complaint to contain "a short and plain statement of the claim," but RICO claims that are based on mail or wire fraud also must satisfy Fed. R. Civ. P. 9(b) by stating the circumstances constituting fraud with particularity² by identifying the time, place, and content of the fraudulent communications, as well as the parties to the communications.³ The heightened pleading standards under Bell Atlantic Corp. v. Twombly⁴ and Ashcroft v. Iqbal⁵ are particularly important in RICO cases to protect defendants against baseless charges of racketeering that are serious, harmful, and expensive to defend.⁶

Section 87 contains a sample RICO Case Statement. Many federal courts or judges now require the plaintiff to file some form of RICO Case Statement at the beginning of the case. Consult your local rules and your judge's personal rules or standing orders. Even if your case is in a court that does not require a RICO Case Statement, it is good...