David J. Stander has substantial experience dealing with a wide array of RICO issues. A sampling of questions involving RICO claims follows:
Q: What is the most common RICO charge or claim?
Answer- The most typical charge or claim is to allege that a RICO defendant conducted or participated in the conduct of the affairs of an enterprise through a pattern of racketeering activity (PORA) [section 1962c], or conspired to do so [section 1962d]. There are less common uses of the RICO statute, including the allegation that a person participated in the affairs of an enterprise through the collection of unlawful debt, and the acquiring of interests in enterprises through racketeering activity or with racketeering income [sections 1962(a) and (b)].
Q. I have heard about RICO conspiracy. What does a RICO conspiracy charge [section 1962(d)] or claim involve?
Answer- The RICO conspiracy provision is essentially the same as traditional conspiracy provisions. As a result, in a RICO claim, there is no requirement that a RICO defendant actually commit any racketeering activity. Instead, the government or plaintiff must still prove the defendant agreed that either he, or a co-conspirator, would conduct and participate in the affairs of the enterprise through a pattern of racketeering activity.
Q. I have heard about the term “RICO enterprise.” What is a RICO enterprise and how does a plaintiff prove it?
Answer- A common error is to allege multiple enterprises in a single RICO count. Instead, a plaintiff must allege that defendants conducted the affairs of the RICO enterprise through a PORA. The Supreme Court has ruled that an enterprise broadly encompasses many types of organizations, ranging from hierarchal groups to loosely associated groups of individuals and corporations who act with a common purpose and function as a continuing unit. The typical proof of an enterprise would come from documents, testimony, and an examination of what the group does. A RICO enterprise also may be a legal entity and proof of such an entity is usually straightforward based on documents.
Q: What is the biggest hurdle in proving a civil RICO claim?
Answer- A civil RICO plaintiff will have to prove the basic elements required in the RICO statute. Were many RICO civil cases fail is when the plaintiff does not allege or prove that the PORA proximately causes the injury to business or property. Moreover, a civil RICO plaintiff must be aware of the statute of limitations, which is generally more rigorous than any criminal RICO charge.
Q: I have heard the term “pattern of racketeering activity.” What does that mean?
Answer- The RICO plaintiff must first prove the defendant engaged in “racketeering activity,” which includes specifically enumerated federal crimes, and certain state offenses which identify “generically” the kind of conduct proscribed by RICO. To prove PORA, the plaintiff must show that the defendant committed at least two acts of racketeering activity within ten years of each other, and that the racketeering activity is both “related” to the affairs of the enterprise and “continuous” (over a closed ended period, or over an open-ended period of time).
Q: Can RICO be alleged in class action litigation?
Answer- Yes, RICO claims are alleged in class action litigation, and are subject to the same requirements of proof when alleged as a claim in class action litigation. Courts have upheld RICO claims in complex nationwide class action litigation.