Civil RICO Practice Manual

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CIVIL RICO PRACTICE MANUAL, Second Edition, takes you from the basic concepts to specialized problems of a civil RICO case. The author walks you through every complex aspect, from early pleading stages through the appeals process. You'll not only see how to use RICO on the offensive, but also develop proven strategies you can use to defend against it at trial. And you'll learn new tactics that will still let you use the statute in a securities fraud lawsuit, even after the enactment of the Private Securities ...
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Overview

CIVIL RICO PRACTICE MANUAL, Second Edition, takes you from the basic concepts to specialized problems of a civil RICO case. The author walks you through every complex aspect, from early pleading stages through the appeals process. You'll not only see how to use RICO on the offensive, but also develop proven strategies you can use to defend against it at trial. And you'll learn new tactics that will still let you use the statute in a securities fraud lawsuit, even after the enactment of the Private Securities Litigation Reform Act. Plus, you'll receive insightful analyses of the eight major RICO cases decided by the U.S. Supreme Court, such as NOW v. SCHEIDLER.

The book also gives you updated practice forms designed to give you complete, easy—to—understand guidance for handling all phases of a civil RICO action —— from the actual complaint and pretrial matters to settlement agreements and even appeal.

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Product Details

  • ISBN-13: 9780471845102
  • Publisher: Wiley, John & Sons, Incorporated
  • Publication date: 4/1/1987
  • Series: Trial Practice Library
  • Pages: 336
  • Product dimensions: 7.58 (w) x 10.26 (h) x 1.23 (d)

Table of Contents

Preface xv
Chapter 2 The Statutory Background: Basic Concepts and the Enigmatic Legislative History 1
2.23 --The Supreme Court Explains RICO's Conspiracy Provision 1
2.24 --The Broad Scope of a RICO Conspiracy: The Absence of an "Overt Act" 3
2.25 --The Supreme Court's 1999 Resolution of the Preemption Debate 5
2.26 --The Competition Between RICO and the McCarran-Ferguson Act 6
2.27 --The Court's Conclusions as to the Nature of RICO Remedies 8
2.28 --Are RICO Treble Damages Punitive Damages? 11
2.29 --The Supreme Court's New Century of RICO Interpretation: When Does a RICO Claim Accrue? 11
2.30 --The Competing Accrual Rules for Purposes of RICO's Four-Year Statute of Limitations 12
2.31 --"How Long Is Tool Long?" The Supreme Court's Rationale for Determining Accrual 14
2.32 --The Future of the RICO Accrual Rule 15
2.33 --The Supreme Court's Imposition of Restrictions on RICO Conspiracy Liability 17
2.34 --An Overt Racketeering Act Must Cause Injury: The Emergence of New Restrictions on RICO Conspiracy Claims 17
2.35 --The Nature of the RICO Claims in Beck 19
2.36 --The New Meaning of RICO Civil Conspiracy 20
2.37 --Applications of the New "Overt-Act-Injury" Rule 21
2.38 --The Supreme Court Again Expansively Treats RICO: Reversal of the Person/Enterprise Dichotomy 22
2.39 --Narrowing the Person/Enterprise Defense 23
2.40 The Supreme Court's Newest Decision on RICO 25
2.41 The Nature of the Court's 2003 Decision in Scheidler 25
2.42 --The Facts at Issue in Scheidler 26
2.43 --The Checkered Procedural History of the Scheidler Litigation 26
2.44 --The Significance of the Result in the Recent Scheidler Decision 27
2.45 --The New Meaning of Extortion 28
Chapter 3 The Offensive Use of RICO 31
3.6 Mail Fraud and Finance Company Repossession Practices: The RICO Implications 31
3.7 --The Ingredients of a Complaint under Subsection (a) of [section] 1962: Mail Fraud as a Predicate Offense 33
3.8 --The Need to Plead Injury "by Reason of" the Predicate Acts 34
3.12A Competition in the Context of Violation of the Immigration and Nationality Act 35
3.12B Violations of the Immigration Act as Predicate Offenses 35
3.12C Who Has Standing to Assert RICO Claims Based on Violations of the Immigration Act? 36
3.12D Applying the Holmes Factors to Specific Facts 37
3.25A The Scope of RICO Conspiracy Claims: Does a Person Who Does Not Control an Enterprise Face Liability as a Conspirator? 39
3.25B --Establishing Conspirator Liability 40
3.25C --The Facts Necessary to Plead a Viable RICO Conspiracy 41
3.25D --The Distinction Between Conducting an Enterprise and Conspiring 42
3.27A The Ingredients of a Successful RICO Litigation: The Proof of Racketeering Conspiracies 44
3.27B --The Selling of Tax Shelters, the Destruction of Records, and Other Factual Predicates for a RICO Conspiracy 45
3.27C --The Directed Verdict, the Jury Verdict, and the Appeal: The Making of a Successful RICO Conspiracy Claim 46
3.27D --The Status of Aiding and Abetting Liability under RICO 49
3.27E --Applying the Limitation on Aiding and Abetting to Civil RICO 50
3.27F Demonstrating the Existence of Compensable Damages 51
3.27G The Type of Pleading Necessary to Allege Compensable Damages 51
3.27H Distinguishing Between the "Fact" of Injury and the "Amount" of Injury 52
3.28A --Pathways to Success at Trial on RICO Claims 53
3.28B --Phase One of the Successful Strategy: Defining the Worst Acts 54
3.28C --The Trial Proceedings 54
3.28D --Ingredients for Success on Appeal 55
3.28E --Litigating a Successful Civil RICO Case 56
3.28F --The Facts Supporting a Successful Trial Strategy for the Plaintiff 57
3.28G --The More Egregrous the Facts, the More Likely the RICO Liability 58
3.30A The Exposure of Lawyers and Law Firms to Racketeering Claims: The Misuse of the Judicial System 61
3.30B --Elements of a RICO Claim Against Lawyers for Misuse of the Judicial System 61
3.30C --Racketeering Claims Based on Copyright Infringement 63
3.30D --Copyright Infringement as Racketeering Activity 65
3.30E --No Retroactive Application of Copyright Infringement as a Predicate Act 65
3.31A The Pleading Necessary to Satisfy the "Particularity" Requirement of Rule 9(b) 67
3.31B --The Elements of a Successful Fraud Pleading Under Rule 9(b) 67
3.31C --The Details of an Adequate Fraud Complaint 69
3.31D --Specific Suggestions for the Contents of a Fraud Complaint 70
3.32 --RICO, Satanism, and Commercial Disparagement 71
3.33 --Commercial Disparagement and RICO 71
3.34 --The Sustaining of the RICO and Lanham Act Claims 72
Chapter 4 Defenses to Civil RICO 75
4.13A Can a Media Broadcast Constitute a Pattern of Racketeering Activity? 75
4.13B --The Continued Vitality of the "Pattern of Racketeering" Defense 78
4.13C --Application of the Pattern Defense 79
4.16A --The Supreme Court's Reversal of the Person/Enterprise Dichotomy Defense 80
4.16B --Narrowing the Person/Enterprise Defense 81
4.17A --The Absence of a Racketeering Injury 83
4.17B --The Absence of Standing for Pension Plan Participants to Maintain Racketeering Actions 84
4.17C --Cigarettes and RICO: Smoke, but No Fire 85
4.17D --The Reasons for Dismissal of RICO Claims Against Tobacco Companies 87
4.17E --The "Remoteness" of Loss Causation 88
4.17F --The Factors That Determine Standing 88
4.17G Prospects for Supreme Court Review of RICO and Smoking 89
4.19A --Failure to Plead Fraud with Particularity 90
4.19B --Pleading Fraud in Racketeering Action 91
4.19C --Articulating the Rule 9(b) Defense 92
4.19D --Related Dismissal Arguments on a Rule 9(b) Motion 92
4.23A --The Supreme Court's Partial Resolution of the Accrual Debate 93
4.23B --The Death of the "Last Predicate Act" Approach 94
4.23C --The Revival of the Antitrust Analogies 96
4.23D --The Survival of the Two Main "Discovery" Accrual Rules 97
4.24A The Supreme Court's Most Recent Effort to Define RICO Accrual Rules 98
4.24B --The Factors for Determining Accrual 99
4.24C --The Supreme Court's Rationale for Determining Accrual 100
4.24D --Further Developments in the RICO Accrual Debate 102
4.24E RICO Litigation and Law Enforcement Abuses 103
4.24F The Need to Demonstrate Financial Loss, Not "Intangible" Personal Harm 104
4.24G More on Standing Issues: The Scope of the Relevant Zone of Interest Analysis 105
4.24H --The Facts Relating to the Standing Issue 106
4.24I --The State Regulatory System as a RICO Enterprise 107
4.24J --The Nuances of the "Zone-of-Interest" Analysis 109
4.25A The Interplay of RICO and the McCarran-Ferguson Act in the Insurance Context 110
4.25B --The Competition Between RICO and the McCarran-Ferguson Act 111
4.25C --The Court's Conclusions as to the Nature of RICO Remedies 113
4.27 The In Pari Delicto Defense: Can a Bad Actor Be a Plaintiff? 115
4.28 Defenses to RICO Conspiracy Claims Under [section] 1962(d)--Recent "Conspiracy" Applications of the Salinas Decision 117
4.28A The Supreme Court's New Restrictions on Civil RICO Conspiracy Claims 120
4.28B The "Overt-Act-Must-Injure" Rule: The Emergence of New Restrictions on RICO Conspiracy Claims 120
4.28C --The Specific RICO Claims in Beck 122
4.28D --The New Rules of RICO Civil Conspiracy 123
4.28E --New Applications of the "Overt-Act-Injury" Rule 124
4.33 --The Doctrine of Forum Non Conveniens and Civil RICO 125
4.34 --The Operation of the Forum Non Conveniens Argument 126
4.35 --Framing the Forum Non Conveniens Defense 127
4.36 More Perspectives on the Lack of Standing Defense 128
4.37 --The Elements of a Successful "Standing Defense" 129
4.38 --The Need for "Concrete Financial Loss" 130
4.39 --The Imposition of "Late Fees" in the Context of RICO Claims 131
4.40 --The Meaning of "Collection of Unlawful Debt" 131
4.41 --The Concept of "Injury" Under [section] 1962(a) 132
Chapter 5 The Procedural Dimensions of Civil RICO Litigation: From Discovery Practices Through Appeal 135
5.11A --Person/Enterprise Dichotomy 135
5.13A Re-Pleading Dismissed RICO Claims 137
5.13B Limitations on the Opportunity to Re-Plead 137
5.13C The Grounds for Refusing the Opportunity to Re-Plead 139
5.13D When Is a RICO Amendment "Futile"? 140
5.13E --Standards for Granting Leave to Amend RICO Complaints 141
5.13F --Allegations of a RICO Complaint Stemming from "Squeeze-Out" Mergers 142
5.13G --The Guidelines for Permitting Amendments 143
5.14A When Are RICO Injunctions Available? 143
5.14B When Should a RICO Injunction Be Entered? 145
5.15A The Scope of Personal Jurisdiction in RICO Cases: The Conflicting Guidelines 146
5.15B --The Second Circuit's Narrow Approach to Jurisdiction 147
5.15C --The Eleventh Circuit's Expansive Approach to Jurisdiction 149
5.38 --Racketeering Claims Against Anti-Abortion Organizations 150
5.39 --Reversal on Appeal: RICO as an Infringement of the First Amendment 151
Chapter 6 Special Problems of Civil RICO Cases 153
6.10A Limitations on "Extortion" as a Predicate Act 153
6.10B The Facts Giving Rise to "Extortion" Claims 153
6.10C The Rise and Fall of NOW's Action 154
6.10D --The Significance of the Result in the Recent Scheidler Decision 155
6.10E --The New Meaning of Extortion 155
6.25A RICO's Extraterritorial Reach 156
6.26 Civil RICO Litigation Against Foreign Countries: When Is It Viable? 160
6.27 --Can Foreign Nations Commit "Indictable" Acts for RICO Purposes? 160
6.28 --The Types of Foreign State Activity to Which RICO Applies 162
6.29 --Agencies of the United States as RICO Defendants 163
6.30 --Individual Federal Officials as RICO Defendants 164
6.31 The Use of the Fifth Amendment Privilege Against a Defendant in a Civil RICO Case 165
6.32 --The Factual Setting for Invoking the Fifth Amendment Privilege 165
Appendix A Racketeer Influenced and Corrupt Organizations Act 169
Form 1A: Model Civil RICO Complaint 187
Form 1B: Model Civil RICO Complaint 211
Table of Authorities 239
Index 251
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