Legal Memorandum: Requirements of a RICO Claim

Issue: Under the Federal Rules, in a RICO case where it is required to show a ‘pattern of racketeering activity,’ and continuity, does the court concern itself with activities beyond those involving the immediate plaintiff?

A “key requirement” of any RICO claim is to show the “pattern of racketeering activity” element.  See Rotella v. Wood, 528 U.S. 549, 556 (2000).  Part of the pattern element includes a “continuity” sub-element.  Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1265 (11th Cir. 2004).  The requirement is that two or more related predicate acts be shown to occur within a ten-year period.  18 U.S.C. § 1961(5).  To establish the requisite continuity of the racketeering, Plaintiff is not limited to evidence involving only the activities that directly injured the Plaintiff.  Related activities that injured other victims or involved other participants and other but related schemes are “highly relevant” to show continuity.  H.J. Inc. v. NW Bell Tel. Co., 492 U.S. 229, 240 (1989) “Proof that a RICO defendant has been involved in multiple criminal schemes would certainly be highly relevant to the inquiry into the continuity of defendant’s racketeering activity.”  Id. (emphasis added). 

In making the requisite continuity determination the court “may consider external facts that are not necessarily charged as predicate acts” in the complaint.  Resolution Trust Corp. v. Stone, 998 F.2d 1534, 1544 (10th Cir. 1993); see also Vicom, Inc. v. Harbridge Merchant Servs., 20 F.3d 771, 780 (7th Cir. 1994) (various factors besides temporal span should be considered in assessing continuity, including the number of victims, the presence of separate schemes, and the occurrence of distinct injuries); Resolution Trust Corp. v. Stone, 998 F.2d at (in addition to duration, weighing “extensiveness” of […]