Circuit Split: En Banc Ninth Circuit Reinstates RICO Case Against Microsoft
The Ninth Circuit, sitting en banc, today reversed the dismissal of a class action complaint against Microsoft, holding that the Racketeer-Influenced and Corrupt Organizations Act does not require a fraudulent "association-in-fact" enterprise to have a "structure" separate from its "pattern of racketeering activity". The case involved claims that Microsoft and Best Buy engaged in an association-in-fact enterprise to charge Best Buy customers for an MSN account. Odom v. Microsoft Corp., No. 04-35468 (9th Cir. May 4, 2007) (en banc).
The court overruled previous Ninth Circuit precedents to the extent they implied a separate structure requirement. The court also noted that its ruling conflicts with decisions by the Third, Fourth, Eighth, and Tenth Circuits.
Barry Barnett
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