The Racketeer-Influenced and Corrupt Organizations Act has waxed and waned since Congress passed it, and President Richard Nixon signed it, in 1970 -- at least for the treble-damages civil cases it authorizes.
Plaintiffs started suing under RICO a lot in the 1980s. District courts tried to quell them by calling for elaborate RICO "case statements". And courts of appeals started taking narrow and technical views of broad RICO language. RICO filings fell.
They've stayed pretty steady in the last decade. Federal Judicial Caseload Statistics show 765 RICO filings (civil and criminal) in 2000, 791 in 2001, 707 in 2002, 845 in 2003, 695 in 2004, 840 in 2005, 678 in 2006, 703 in 2007, and 640 in 2008. They represent a tiny fraction of the 250,000 or so annual average of all case filings.
The Supreme Court hasn't shared the lower courts' -- and businesses' -- distaste for RICO. Last term, for example, the Court as one refused to read a "reliance" element into a RICO claim alleging mail fraud as a "predicate act". See "Supremes Reinstate RICO Case".
The streak grew last week. The Court, by 7-2, upheld the conviction of Edmund Boyle for his role in a series of bank thefts. The government charged Boyle with participating in an "enterprise" through a "pattern of racketeering activity". Boyle argued that the group of hoodlums he worked with lacked any formal or lasting "structure" distinct from the racketeering pattern. The Court held that RICO doesn't demand a fancy structure:
We see no basis in the language of RICO for the structural requirements that petitioner asks us to recognize. As we said in [United States v.] Turkette, [452 U.S. 576 (1981),] an association-in-fact enterprise is simply a continuing unit that functions with a common purpose. Such a group need not have a hierarchical structure or a "chain of command"; decisions may be made on an ad hoc basis and by any number of methods -- by majority vote, consensus, a show of strength, etc. Members of the group need not have fixed roles; different members may perform different roles at different times. The group need not have a name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies. While the group must function as a continuing unit and remain in existence long enough to pursue a course of conduct, nothing in RICO exempts an enterprise whose associates engage in spurts of activity punctuated by periods of quiescence. Nor is the statute limited to groups whose crimes are sophisticated, diverse, complex, or unique; for example, a group that does nothing but engage in extortion through old-fashioned, unsophisticated, and brutal means may fall squarely within the statute's reach.
Boyle v. United States, No. 07-1309, slip op. at 9 (U.S. June 8, 2009).
Amici curiae -- U.S. Chamber of Commerce and McKesson Corporation -- had foretold "particularly grave consequences for this Nation's businesses" unless the Court stiffened the "structure" of RICO.
As for Blawgletter, we'll wait for proof that the sky has commenced to falling. It hasn't collapsed in about 40 years. And Chamber Little's powers of prediction never have much impressed.
You might recall the "Bridges" case from last year, which had similar broad language about the SCOTUS "refusing" to limit RICO.
"Bridges," you might also recall, specifically held there was no need for a RICO claim predicated on mail or wire fraud to show first-party reliance on the fraudulent statements.
I kid you not, last week a defendant cited "Anza," from two years ago, in support of their argument that first-party reliance was required. No mention of "Bridges" at all.
These people live in another world...
Posted by: Max Kennerly | June 15, 2009 at 08:43 PM