You have filed your civil RICO case on behalf of the plaintiff and have made it past the Rule 12(b) motions and are in discovery. What should be the focus of your questions in depositions of relevant persons and parties?
- First, you would want to ask questions which would prove the existence of a RICO “enterprise.” RICO’s definition of 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 an examination of what the group does, which would be the focus of your questions. Also, you would want to make sure that the RICO enterprise is “distinct” from the RICO defendant, that is, they are not the same. A legal entity by definition is a RICO enterprise but you would want to be sure the RICO defendant is not this same legal entity. Proof of such an entity is usually straightforward based on documents.
- Second, you would want to ask questions to prove there is “racketeering activity.” Racketeering activity includes specifically enumerated federal crimes and certain state offenses. The federal offenses alleged in a civil RICO typically involve mail and mail and wire fraud. You would need to ask questions which would prove all of the elements of mail fraud and wire fraud. State offenses include bribery offenses, which commonly serve as predicate crimes for racketeering indictments against state and local officials for corruption.
- Third, you would need to solicit information as whether there is a “pattern of racketeering activity.” To prove PORA, the plaintiff must show that the activity is both “related” and “continuous.” Generally, the “relationship” prong is more easily proven, while the “continuity” prong may be proven in several ways, either by length of time of the predicates or whether the predicates pose a “threat of continuing activity.”
There are many other issues involved in a complex civil RICO case, such as proving monetary injury proximately and directly caused by the “racketeering activity.” Civil RICO cases are difficult to litigate through trial and generally difficult to get favorable rulings. However, the many advantages of a civil RICO case, such as broad venue, evidentiary advantages, potential treble damages and civil RICO litigation attorneys’ fees, provide support for bringing your fraud action in federal court.