Legal Memorandum: Requirements for Establishing a RICO Claim

Issue: What is required to establish a claim under the Racketeering Influenced and Corrupt Organizations Act (RICO)?

Area of Law: Criminal Law, Litigation & Procedure
Keywords: Racketeering Influenced and Corrupt Organizations Act (RICO); RICO claim; Pattern of racketeering activity
Jurisdiction: Federal, Minnesota
Cited Cases: 48 F.3d 1066
Cited Statutes: Subsection (c) of 18 U.S.C. § 1962; Rule 9(b) of the Federal Rules of Civil Procedure
Date: 01/01/2009

Subsection (c) of 18 U.S.C. § 1962 provides:

It shall be unlawful for any person employed by or associated with the enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.


Subsection (d) makes it unlawful for any person to conspire to violate any of the provisions of subsection (c). 

Common-law fraud is not a predicate act under RICO.  Smith v. Wampler, 95 Fed. Appx. 194, 195 (8th Cir. 2004) (unpublished).  See also Manion v. Freund, 967 F.2d 1183 (8th Cir. 1992) (breach of fiduciary duty cannot support a civil RICO claim because it is not one of the predicate acts specified in § 1961(1)). 

A plaintiff must still satisfy the specificity requirements in pleadings under Rule 9(b) of the Federal Rules of Civil Procedure which apply to mail and wire fraud as they do to common law fraud.  See Murr Plumbing v. Scherer Bros. Fin. Servs. Co.., 48 F.3d 1066, 1068 (8th Cir., 1995) (affirming summary judgment for RICO defendant on grounds that plaintiff failed to plead mail and wire fraud with required specificity).


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