We prosecute civil RICO cases. As far as we know, we are the only law firm in the country devoted exclusively to RICO, one of the most complex federal statutes. Our clients are located throughout the U.S. and the world. We analyze their situations, determine if RICO can be used, and through RICO’s conspiracy provision, expand liability to all of the responsible persons. And we can turn what may appear to be a standard commercial dispute into a RICO claim if the facts warrant it. RICO has far-reaching applications, applying to disputes involving the use of e-mail and internet fraud, extortion and loansharking, to employing illegal alien labor, and copyright infringement (just to name a few). Many people do not realize their cases can be brought under RICO.
There are several advantages to using RICO rather than relying on common law legal theories, such as fraud or breach of contract, which are typically brought in state courts. RICO dramatically ups the stakes with triple damages, attorneys’ fees, allegations of criminal misconduct, and federal court jurisdiction. When appropriately used, RICO can make a tremendous difference in how long a case will take to be resolved, and what the defendant will be willing to pay to resolve it. In short, we aim to achieve results more quickly and more efficiently than any other lawyers. And if RICO cannot be used, we’ll tell you up front so you can go to another law firm.
RICO was designed to combat the explosion of organized crime in the 1960's. The idea of a private civil cause of action was not discussed in the early stages. But late in the legislative process the House sponsors added a civil cause of action, allowing private citizens to use the law to recover money damages when a person has suffered an injury to "business or property."
This “private right of action” was modeled on the treble damages provision of the Clayton Antitrust Act. Little attention was paid to this provision until 1985 when the Supreme Court held a dispute between two businesses over unpaid commissions could proceed under RICO even though neither party had any connection to “organized crime.”
The result was a proliferation of civil RICO case filings for all manner of commercial disputes, most of which were nothing more than standard contract or single-episode fraud disputes in which the U.S. mails were used to transmit documents.
In the 1990’s, the federal appellate courts across the country rejected, on various technical grounds, the use of RICO in most “garden variety” commercial and consumer disputes. The upshot of all these cases, several of which were written by Judge Richard Posner of the Seventh Circuit in Chicago, is that a RICO plaintiff must allege a long-term pattern of racketeering activity and an enterprise, which is something more than an association of affiliated corporations, such as a parent and its subsidiaries. These decisions severely curtailed the use of civil RICO, and consequently, Congress left the law intact (except for the removal of securities fraud and the addition of some immigration crimes as forms of “racketeering activity”). According to one commentator, 70% of reported civil cases were disposed of by motions to dismiss or for summary judgment, and 80% of appellate decisions were rendered for the defendants.
The last decade, however, saw a revival of civil RICO. In 2000, the Supreme Court noted that its civil provisions were devised “to turn [victims] into private prosecutors, private attorneys general dedicated to eliminating racketeering activity.” In 2009, the Supreme Court issued one of its most pro-plaintiff opinions in a civil RICO case, noting, “We have repeatedly refused to adopt narrowing constructions of RICO in order to make it conform to a preconceived notion of what Congress intended to proscribe.”
We think civil RICO is an appropriate legal remedy in cases involving long-term patterns of racketeering activity and the victimization of numerous parties. Judges are rightly skeptical of civil RICO cases predicated upon mail and wire fraud, and plaintiffs should have experienced RICO counsel if they hope to prevail. All civil RICO cases face determined motions to dismiss and summary judgment motions to dispose of them before trial.
Individuals and Businesses
RICO can be used on behalf of individuals or businesses in a wide variety of contexts. A basic business dispute, one company over-billing another one for services, might be the basis of a RICO case if the over-billing firm has engaged in that type of fraud in the past against others. A breach of contract or commercial disagreement might be much more serious if it causes big damages and is part of a pattern of misconduct involving extortion, loansharking, or fraud, for example. A company competes unfairly by using illegal alien labor to cut costs and it is able to underbid rivals for big contracts. Or one spouse hides assets from another during a divorce, causing an ill-gotten distribution of marital property for that party. Piracy is big business. Studios and other copyright owners are in a never-ending war against the illegal downloading and sale of copyrighted works and use of their trademarks. All of these disputes can be redressed under RICO. But very few are. And these are just a few examples of how racketeering activity may victimize individuals or businesses.
We can advise you as to whether your case is a good fit for RICO. And if it is, you have a huge litigation advantage against your opponents because RICO is powerful and not well understood. When you use RICO properly, your opponent’s in house lawyer may well realize he or she is cannot handle the case and has to employ a costly high-end law firm and a public relations consultant to defend its reputation. RICO changes everything.
Whether you are a business owner or individual, you may have a RICO case. If you do, we want to hear from you.
Law Firm Consulting
Foster PC has experience working and consulting with law firms—large and small—around the country who have clients involved (or soon to be involved) with RICO litigation, as plaintiffs or defendants. If you represent a client involved in RICO litigation and need assistance with any of the following, Foster PC can help:
- Preparing the RICO complaint or claim;
- An existing client wants an opinion/evaluation about the strength/weaknesses of a possible RICO case;
- A RICO complaint has been filed and is now being contested with a Motion to Dismiss, based on enterprise issues, pattern of racketeering, proximate causation, extraterritoriality; and/or statute of limitations issues;
- A RICO complaint has been dismissed without prejudice and your client seeks to file an Amended Complaint curing the defects noted by the Court;
- Your client’s existing RICO case is pending, but wants to amend it to make it stronger;
- Your client needs a RICO expert to opine about the purpose or applicability of civil RICO (in litigation, arbitration, and/or mediation);
- Your client is a defendant in a civil RICO matter;
- Your client is facing class certification in a RICO matter;
- Issues related to venue in RICO cases;
- General consulting for RICO cases, including the distinctions in case law between various Circuits; and
- Appellate consulting in RICO cases
We have often become involved in litigation in which an inadequate RICO complaint has already been filed and motions to dismiss are pending, threatening the entire litigation. We do so quickly, efficiently, and cost-effectively. And we do so in partnership with the client’s existing counsel, so as to allow you to maintain the strong relationship you have developed with your client over time.
We understand that your clients, on occasion, may become involved with RICO litigation. We also understand that RICO can be complicated, even for sophisticated and experienced attorneys. You want to be able to fully assist your clients on these individual RICO matters as they arise, while still continuing to service their remaining legal needs in the future, and without having to compete with co-counsel down the road.
We can help. All we do are RICO cases.
Illegal immigration is one of the most pressing problems facing the country. This is so despite the fact that we have ample federal laws dealing with it. But the laws are not enforced as they should be. Non-enforcement benefits both political parties. High levels of illegal immigration lower the cost of unskilled labor, benefiting employers. Americans without college educations must endure the erosion of their wages and higher unemployment because of the steady flow of a million illegal immigrants into the country year after year. Jobs that used to support a middle class family, like poultry processing, now pay barely above the poverty level.
Howard Foster filed the first wage depression RICO class action against Zirkle Fruit Company of Selah, Washington in 2000. Long-time employees at that company worked at stagnant wages while a former illegal aliens oversaw hiring of a mostly illegal workforce. The case was certified as a class action on behalf of the legally-authorized workers and then settled on the eve of trial. Legal workers received backpay for each hour employed, the first such settlement on behalf of the victims of illegal immigration in American history.
Since then, Howard has won many decisions from federal district courts and four appellate circuits allowing these cases to proceed under RICO and be certified as class actions. In 2006, Howard argued the Mohawk Industries case in the U.S. Supreme Court and persuaded the Justices not to read the concept of a group enterprise out of RICO, which the Company’s lawyers had sought. The case settled for $18 million. These class actions have been featured in the Wall Street Journal, the New York Times, the National Law Journal, CNN, Lou Dobbs, and many local newspapers and web sites across the country.
If your employer is hiring illegal alien labor, feel free to tell us what you have observed. We will follow up with you. If your employer is the subject of one of our cases, we need to hear from you.
We have served as experts in insurance coverage disputes concerning RICO claims. Arguments can be made on both sides of this complex issue, which often involves the propriety of insuring against criminal and intentional wrongdoing,. Our opinions have led to the resolution of significant cases. We can also assist lawyers seeking, and defending, sanctions for frivolous RICO claims.
Litigation Financing Information
We understand that from time to time, clients may need litigation financing to assist in prosecuting their RICO cases (or portions/phases of their case). While we do not provide any kind of financing at Foster P.C., we do have experience working with litigation financing companies to ensure a smooth operation of your case. We can also refer you to litigation financing companies that have experience evaluating complex RICO cases.