I have a question.
Angels and ministers of grace defend me.
Would it be RICO if . . .
. . . .
But how do you know? I haven't even described the case yet.
It's never RICO!
I mean, not literally never. But I can say with a very high level of confidence that if you're asking me, it's not RICO.
But it's an important case! And the facts are terrible! This defendant did really bad things.
That's not what RICO means. RICO is not a fucking frown emoji. It's not an exclamation point. It's not a rhetorical tool to convey you are upset about something. It's not a petulant foot-stomp.
RICO is a really complicated racketeering law that has elaborate requirements that are difficult to meet. It's overused by idiot plaintiff lawyers, and it's ludicrously overused by a hundred million jackasses on the internet with an opinion and a mood disorder.
You have a really big vein throbbing on your head and I am concerned it is going to burst and it will be really gross.
I'm going to need a minute here.
Calm. Peaceful. Go to your happy place.
Okay. I'm good. Proceed.
So what is RICO, anyway?
RICO is the Racketeer Influenced and Corrupt Organizations Act, because goddamn Congress likes acronyms like your great-aunt likes porcelain cats.
Congress passed it in 1970 to address organized crime. It was specifically designed to help with some of the difficulty that prosecutors traditionally had in cracking big organized crime rings — mafia families, drug trafficking organizations, that sort of thing.
What sort of problems?
The stuff that crime bosses did was already illegal. But it could be very hard to attack the whole enterprise instead of one act after another. You could take down some mook for one street assault, but you couldn't take down the mook's boss's boss. You had to nibble at the edges, and meanwhile the crime family or drug ring or whatever kept making money.
RICO was designed as a way to describe, legally, the whole criminal enterprise based on some of its acts, go after people who supported it, and take its assets.
Why not just charge a conspiracy?
Good question. A RICO claim is really just an elaborate over-complicated conspiracy claim. The answer, in part, was that it was 1970, crime was way up, Nixonian "law and order" was popular, and everyone wanted to be seen as doing something.
Wait. I thought RICO let you sue people. It's a criminal law?
And even though it was passed to deal with large-scale organized crime, now it's vastly overused — not so much by the government, but definitely by plaintiff attorneys.
So you can't sue people for RICO?
Oh you can. It's just that almost all of the time you'll be wrong to do so. A RICO claim doesn't mean "these are bad people." It doesn't mean "they did bad things." It doesn't mean "they did lots of bad things" or "they did bad things over state lines" or "they did bad things and some of them were crimes" or "they did bad things and we need to take them really seriously."
But that's how people use RICO — as an idiotic rhetorical device. Like this:
Wow. I'm only an abstract imaginary foil written to sound like an idiot and even I know that's really stupid.
I know, right? But I hear his books are good.
So people on the Internet use "RICO" to sound tough. Do lawyers overuse it too?
Oh hell yes. And judges hate it. It's overcomplicated and most of the time it adds nothing to the case.
It's so overused — especially by crazy pro se plaintiffs — and so needless that a lot of federal judges have special RICO orders they issue in RICO cases demanding that the plaintiff explain, in painful detail, why they think they have a RICO claim. Like this one, for instance. Judges issue them automatically as soon as a RICO case hits their docket to gather information to dismiss the case because it's not fucking RICO you idiot.
So what would be a righteous civil RICO claim, as opposed to all the bogus ones?
Let me answer that by telling you the elements of civil RICO — that is, the list of things a plaintiff would have to prove to win a RICO case.
To win, a plaintiff would have to prove (1) conduct, (2) of an enterprise, (3) through a pattern, (4) of racketeering activity called "predicate acts," (5) causing injury to the plaintiff’s "business or property."
Each of those terms means something complicated — each term is a gateway to a whole bunch of other issues.
Okay. What's "conduct"?
That just means that you have to prove that the particular defendant has a role in the operation or management of the enterprise.
Wait. Isn't the defendant the enterprise?
No. In fact the defendant can't be the same as the enterprise.
An enterprise is a legal entity or group of people. So, for instance, the Gambino Crime Family can be an enterprise, or Prenda Law. But the enterprise has to be different than the defendant for a RICO claim. Instead, the defendants have to be people and entities who run the enterprise. So if you filed a crazy pro se complaint saying that General Motors is a criminal enterprise and named General Motors as the defendant, your claim would be legally insufficient.
That sounds convoluted.
It is. But remember — RICO wasn't supposed to be an everyday tool. It's supposed to be a way to take down slippery crime families.
Okay. So what's a pattern?
A pattern is at least two acts of racketeering activity — which we'll get back to later — over a ten year period. The activity has to be both "related" and "continuous."
"Related" means that it's part of the same effort — so if your crime family does drugs, prostitution, and extortion, all of those could be related. "Continuous" means you have to show either a series of acts over a substantial period of time, or past conduct that by its nature suggests it will continue.
Again, RICO's supposed to be about organized crime. So if you and I decide to knock over a bank, that's not RICO — it's not part of a pattern of conduct, even if the FBI can find more than two charges to apply to it. The idea of RICO is "these people are in the crime business, and as part of the crime business they committed a crime against me."
So what's "racketeering activity"?
Racketeering activity is the commission of a whole bunch of very specific federal crimes. But it's not just any crime. It's only the ones on the list.
That's one of the reasons that the "[advocacy organization I don't like] should be sued for RICO!" arguments are so infuriating. Where's the underlying federal crime? And how is it harming the plaintiff's business or property? RICO doesn't mean "this organization advocates things that are bad for society."
So that's it, right?
No, remember the last element — you have to show that all of the foregoing causes injury to the plaintiff's business or property. It can't be a harm to society at large.
Also, you can sue someone for conspiring to commit RICO — meaning you have to show they agreed to do all that.
Is criminal RICO the same?
Mostly. It's more complicated. It can include a RICO conspiracy or acquiring a share in a RICO enterprise or to use a RICO enterprise to collect debt.
This sounds hard to allege and prove.
It is. It's really difficult even to allege it right in a complaint. RICO claims usually generate a series of motions to dismiss. That's why judges often have standing orders requiring plaintiffs to explain how and why they are claiming RICO — that's something judges don't do for almost any other cause of action. Most of the time, if a civil plaintiff can prove RICO, they can much more easily prove fraud or other more straightforward claims.
So why bring a civil RICO claim?
Well, if you win, you can get attorney fees, and possibly even triple your actual damages.
But mostly I think it's a scare tactic and a propaganda tool, as its idiotic rhetorical misuse suggests. Lawyers bring RICO claims so they can say "the defendant's behavior is so criminal that we sued them for RICO!" Dupes play along by describing RICO claims as "charges," and generally by acting like a RICO claim suggests that there's already been a finding that someone did something wrong.
It doesn't mean that. A RICO claim just means someone wrote down a RICO claim and filed it. Even if the RICO claim survives a motion to dismiss, that just means that a plaintiff was able to allege a complex set of facts in a convoluted way. It doesn't mean those facts are true.
So why do we still have civil RICO?
Mostly because Congress is more scared of being called soft on crime than they are interested in reforming time-wasting abusive statutes.
There have been some reforms. One Congressional amendment prevented plaintiffs from using securities fraud as a racketeering act under the statute, probably because investment banks donate enough to members of Congress. And every now and again someone proposes reform. But it's dry, boring, and complicated, so it never goes anywhere. For now, we're stuck with it: a convoluted statute used by twits and crazies to make litigation more expensive, and waved around by morons like a big foam finger at a ball game.
Well that's a little pessimistic.
Everything is shit.
Would you like a cookie?
. . . yes.
Last 5 posts by Ken White
- Free Speech Triumphant Or Free Speech In Retreat? - June 21st, 2017
- The Power To Generate Crimes Rather Than Merely Investigate Them - June 19th, 2017
- Free Speech, The Goose, And The Gander - June 17th, 2017
- Free Speech Tropes In The LA Times - June 8th, 2017
- I write letters - June 1st, 2017