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Civil RICO Claims - Part III

We have already discussed in this blog series why businesses often pursue civil RICO claims for a variety of torts.  In part III, we will break down the second element for a civil RICO claim, establishing a pattern of behavior.  This tends to be the most important and the most difficult element to establish.  In review, RICO stands for the Racketeer Influenced and Corrupt Organizations Act.

The federal statute requires a “pattern of racketeering activity” to have at least two predicate (prior) acts of racketeering activity that occurred within ten years of each other (excluding any period of imprisonment).  18 U.S.C. § 1961(5).  Washington’s statute, alternatively, requires three predicate acts in five years while Oregon’s requires two acts in five years. (RCW 9A.82.010(2); ORS 166.715)

These predicate or prior acts must be related (not isolated) and amount to or pose a threat of continued criminal activity.  Jarvis v. Regan, 833 F.2d 149, 152-53 (9th Cir. 1987, No. 84-5900).  This is where things starts to get complicated since the continued criminal activity must either be open or closed-ended.  

To establish 'close-ended continuity,’ a series of unrelated activities must occur over an substantial period of time.  H.J. Inc. v. NW Bell Tel Co., 492 U.S. 229, 238-253 (1989).  Prior acts that extend over a short period of time and have no threat of continuing do not satisfy the continuity requirement.  

Alternatively, you can try to establish 'open-ended continuity.’  In this case, you must show that there is a threat of continuing criminal activity extending indefinitely into the future.  This requires evidence that the criminal acts regularly occur, or at least imply that they will regularly occur.  

In sum, one criminal act to one person or business is not going to satisfy this element.  The nature of the criminal activity must be continuous or at least suggest that it will be continuous. 

In part III of our blog series, we will look at the final element, racketeering activity.

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