Creative plaintiff lawyers have learned that all modern business transactions use the mails, wires or email. That means any aggrieved party that has communicated with a potential defendant can try to construct a civil RICO case alleging mail or wire fraud, the go-to predicate acts. And so why can’t the filing of a lawsuit be a RICO predicate act, since lawsuits are commonly filed online and frequently involve the transmission of papers across state lines? Many RICO lawsuits have been predicated on the idea that a lawsuit is a “scheme to defraud,” or more aptly, attempted extortion. (Extortion is a RICO predicate offense, either via the Hobbs Act or state extortion laws if punishable by at east a year in jail.) So if one could get away with this type of RICO claim, they would proliferate and be a sort of coda on all kinds of simple cases.

The problem is the First Amendment to the Constitution, which, among other things, guarantees the right “to petition the government for the redress of grievances.” Federal courts interpret this so broadly as to to encompass filing lawsuits. It’s very far removed from the original meaning of the phrase, which was designed to allow all American citizens, not just an aristocratic elite, to formally object to a government action without reprisal. This was a big problem in Medieval England. But redressing was never done through litigation. Yet today the courts believe litigation is an essential part of the redress of grievances, and one cannot be punished for filing a lawsuit unless it is sanctionable, i.e., patently frivolous. And the remedy for a party subjected to a frivolous lawsuit is to seek sanctions by a motion to the court, not filing a new lawsuit.

The federal courts created the Noerr-Pennington doctrine in antitrust law to protect the filing of lawsuits from being punished as means of monopolization. It has been expanded to RICO. The most detailed case doing so is Sosa v. Direct TV from the Ninth Circuit. But other decisions have also used the “rule of lenity” to shield defendants’ lawsuits or litigation correspondence from RICO liability.

Basically, federal judges will bend over backwards not to impose RICO liability on someone for filing a case, even if they are patently abusing the access to the courts, such as objectors do in some class actions do for the sole purpose of delay and to get paid off by the parties seeking approval of a settlement. See Edelson PC v. Bandas Law Firm, (N.D. Ill. 2018), a most egregious example of extortionate litigation. Nevertheless, the Judge was constrained from allowing the RICO claim to proceed.

There is simply no way to challenge a lawsuit by a RICO counterclaim based on the notion that the lawsuit is fraudulent or extortionate. Any defendant facing such a RICO-based theory can find ample cases rejecting such a move and should seek sanctions under Rule 11.