Civil RICO Practice Manual

Civil RICO Practice Manual

by Paul A. Batista


$200.00 View All Available Formats & Editions


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.

Product Details

ISBN-13: 9780471538165
Publisher: Wolters Kluwer Law & Business
Publication date: 12/31/1995
Series: Business Litigation Library Series
Pages: 384
Product dimensions: 7.16(w) x 10.14(h) x 1.19(d)

Table of Contents

Chapter 2The Statutory Background: Basic Concepts and the Enigmatic Legislative History1
2.23--The Supreme Court Explains RICO's Conspiracy Provision1
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 Debate5
2.26--The Competition Between RICO and the McCarran-Ferguson Act6
2.27--The Court's Conclusions as to the Nature of RICO Remedies8
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 Limitations12
2.31--"How Long Is Tool Long?" The Supreme Court's Rationale for Determining Accrual14
2.32--The Future of the RICO Accrual Rule15
2.33--The Supreme Court's Imposition of Restrictions on RICO Conspiracy Liability17
2.34--An Overt Racketeering Act Must Cause Injury: The Emergence of New Restrictions on RICO Conspiracy Claims17
2.35--The Nature of the RICO Claims in Beck19
2.36--The New Meaning of RICO Civil Conspiracy20
2.37--Applications of the New "Overt-Act-Injury" Rule21
2.38--The Supreme Court Again Expansively Treats RICO: Reversal of the Person/Enterprise Dichotomy22
2.39--Narrowing the Person/Enterprise Defense23
2.40The Supreme Court's Newest Decision on RICO25
2.41The Nature of the Court's 2003 Decision in Scheidler25
2.42--The Facts at Issue in Scheidler26
2.43--The Checkered Procedural History of the Scheidler Litigation26
2.44--The Significance of the Result in the Recent Scheidler Decision27
2.45--The New Meaning of Extortion28
Chapter 3The Offensive Use of RICO31
3.6Mail Fraud and Finance Company Repossession Practices: The RICO Implications31
3.7--The Ingredients of a Complaint under Subsection (a) of [section] 1962: Mail Fraud as a Predicate Offense33
3.8--The Need to Plead Injury "by Reason of" the Predicate Acts34
3.12ACompetition in the Context of Violation of the Immigration and Nationality Act35
3.12BViolations of the Immigration Act as Predicate Offenses35
3.12CWho Has Standing to Assert RICO Claims Based on Violations of the Immigration Act?36
3.12DApplying the Holmes Factors to Specific Facts37
3.25AThe Scope of RICO Conspiracy Claims: Does a Person Who Does Not Control an Enterprise Face Liability as a Conspirator?39
3.25B--Establishing Conspirator Liability40
3.25C--The Facts Necessary to Plead a Viable RICO Conspiracy41
3.25D--The Distinction Between Conducting an Enterprise and Conspiring42
3.27AThe Ingredients of a Successful RICO Litigation: The Proof of Racketeering Conspiracies44
3.27B--The Selling of Tax Shelters, the Destruction of Records, and Other Factual Predicates for a RICO Conspiracy45
3.27C--The Directed Verdict, the Jury Verdict, and the Appeal: The Making of a Successful RICO Conspiracy Claim46
3.27D--The Status of Aiding and Abetting Liability under RICO49
3.27E--Applying the Limitation on Aiding and Abetting to Civil RICO50
3.27FDemonstrating the Existence of Compensable Damages51
3.27GThe Type of Pleading Necessary to Allege Compensable Damages51
3.27HDistinguishing Between the "Fact" of Injury and the "Amount" of Injury52
3.28A--Pathways to Success at Trial on RICO Claims53
3.28B--Phase One of the Successful Strategy: Defining the Worst Acts54
3.28C--The Trial Proceedings54
3.28D--Ingredients for Success on Appeal55
3.28E--Litigating a Successful Civil RICO Case56
3.28F--The Facts Supporting a Successful Trial Strategy for the Plaintiff57
3.28G--The More Egregrous the Facts, the More Likely the RICO Liability58
3.30AThe Exposure of Lawyers and Law Firms to Racketeering Claims: The Misuse of the Judicial System61
3.30B--Elements of a RICO Claim Against Lawyers for Misuse of the Judicial System61
3.30C--Racketeering Claims Based on Copyright Infringement63
3.30D--Copyright Infringement as Racketeering Activity65
3.30E--No Retroactive Application of Copyright Infringement as a Predicate Act65
3.31AThe 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 Complaint69
3.31D--Specific Suggestions for the Contents of a Fraud Complaint70
3.32--RICO, Satanism, and Commercial Disparagement71
3.33--Commercial Disparagement and RICO71
3.34--The Sustaining of the RICO and Lanham Act Claims72
Chapter 4Defenses to Civil RICO75
4.13ACan a Media Broadcast Constitute a Pattern of Racketeering Activity?75
4.13B--The Continued Vitality of the "Pattern of Racketeering" Defense78
4.13C--Application of the Pattern Defense79
4.16A--The Supreme Court's Reversal of the Person/Enterprise Dichotomy Defense80
4.16B--Narrowing the Person/Enterprise Defense81
4.17A--The Absence of a Racketeering Injury83
4.17B--The Absence of Standing for Pension Plan Participants to Maintain Racketeering Actions84
4.17C--Cigarettes and RICO: Smoke, but No Fire85
4.17D--The Reasons for Dismissal of RICO Claims Against Tobacco Companies87
4.17E--The "Remoteness" of Loss Causation88
4.17F--The Factors That Determine Standing88
4.17GProspects for Supreme Court Review of RICO and Smoking89
4.19A--Failure to Plead Fraud with Particularity90
4.19B--Pleading Fraud in Racketeering Action91
4.19C--Articulating the Rule 9(b) Defense92
4.19D--Related Dismissal Arguments on a Rule 9(b) Motion92
4.23A--The Supreme Court's Partial Resolution of the Accrual Debate93
4.23B--The Death of the "Last Predicate Act" Approach94
4.23C--The Revival of the Antitrust Analogies96
4.23D--The Survival of the Two Main "Discovery" Accrual Rules97
4.24AThe Supreme Court's Most Recent Effort to Define RICO Accrual Rules98
4.24B--The Factors for Determining Accrual99
4.24C--The Supreme Court's Rationale for Determining Accrual100
4.24D--Further Developments in the RICO Accrual Debate102
4.24ERICO Litigation and Law Enforcement Abuses103
4.24FThe Need to Demonstrate Financial Loss, Not "Intangible" Personal Harm104
4.24GMore on Standing Issues: The Scope of the Relevant Zone of Interest Analysis105
4.24H--The Facts Relating to the Standing Issue106
4.24I--The State Regulatory System as a RICO Enterprise107
4.24J--The Nuances of the "Zone-of-Interest" Analysis109
4.25AThe Interplay of RICO and the McCarran-Ferguson Act in the Insurance Context110
4.25B--The Competition Between RICO and the McCarran-Ferguson Act111
4.25C--The Court's Conclusions as to the Nature of RICO Remedies113
4.27The In Pari Delicto Defense: Can a Bad Actor Be a Plaintiff?115
4.28Defenses to RICO Conspiracy Claims Under [section] 1962(d)--Recent "Conspiracy" Applications of the Salinas Decision117
4.28AThe Supreme Court's New Restrictions on Civil RICO Conspiracy Claims120
4.28BThe "Overt-Act-Must-Injure" Rule: The Emergence of New Restrictions on RICO Conspiracy Claims120
4.28C--The Specific RICO Claims in Beck122
4.28D--The New Rules of RICO Civil Conspiracy123
4.28E--New Applications of the "Overt-Act-Injury" Rule124
4.33--The Doctrine of Forum Non Conveniens and Civil RICO125
4.34--The Operation of the Forum Non Conveniens Argument126
4.35--Framing the Forum Non Conveniens Defense127
4.36More Perspectives on the Lack of Standing Defense128
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 Claims131
4.40--The Meaning of "Collection of Unlawful Debt"131
4.41--The Concept of "Injury" Under [section] 1962(a)132
Chapter 5The Procedural Dimensions of Civil RICO Litigation: From Discovery Practices Through Appeal135
5.11A--Person/Enterprise Dichotomy135
5.13ARe-Pleading Dismissed RICO Claims137
5.13BLimitations on the Opportunity to Re-Plead137
5.13CThe Grounds for Refusing the Opportunity to Re-Plead139
5.13DWhen Is a RICO Amendment "Futile"?140
5.13E--Standards for Granting Leave to Amend RICO Complaints141
5.13F--Allegations of a RICO Complaint Stemming from "Squeeze-Out" Mergers142
5.13G--The Guidelines for Permitting Amendments143
5.14AWhen Are RICO Injunctions Available?143
5.14BWhen Should a RICO Injunction Be Entered?145
5.15AThe Scope of Personal Jurisdiction in RICO Cases: The Conflicting Guidelines146
5.15B--The Second Circuit's Narrow Approach to Jurisdiction147
5.15C--The Eleventh Circuit's Expansive Approach to Jurisdiction149
5.38--Racketeering Claims Against Anti-Abortion Organizations150
5.39--Reversal on Appeal: RICO as an Infringement of the First Amendment151
Chapter 6Special Problems of Civil RICO Cases153
6.10ALimitations on "Extortion" as a Predicate Act153
6.10BThe Facts Giving Rise to "Extortion" Claims153
6.10CThe Rise and Fall of NOW's Action154
6.10D--The Significance of the Result in the Recent Scheidler Decision155
6.10E--The New Meaning of Extortion155
6.25ARICO's Extraterritorial Reach156
6.26Civil 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 Applies162
6.29--Agencies of the United States as RICO Defendants163
6.30--Individual Federal Officials as RICO Defendants164
6.31The Use of the Fifth Amendment Privilege Against a Defendant in a Civil RICO Case165
6.32--The Factual Setting for Invoking the Fifth Amendment Privilege165
Appendix ARacketeer Influenced and Corrupt Organizations Act169
Form 1A: Model Civil RICO Complaint187
Form 1B: Model Civil RICO Complaint211
Table of Authorities239

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