RICO, or the Racketeer Influenced and Corrupt Organizations Act, 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.