Civil RICO — Is It the Time of Reckoning?

By SOFIA ADROGUÉ

A. The Mantra
• “[RICO] is very possibly the single worst piece of legislationon the books.”1
• “RICO has become one of the most free wielding clubs of our time.”2
• “RICO is the civil law’s Moby Dick.”3
• “RICO’s lure of treble damages and attorneys’ fees draws litigants and lawyers . . .
_ like lemmings to the sea.”4
• “[A] judge’s nightmare.”5

B. RICO’s Lure and the Seeming Abandonment of Traditional State and Common Law Fraud
Many have expressed frustration as to what is perceived as the “private civil RICO morass,”6 with litigants’ attempts to “turn ‘garden variety’ civil fraud cases into RICO cash crops.”7 The entry of this new millennium marked the thirtieth anniversary of this famous, if not infamous statute, the Racketeer Influenced and Corrupt Organizations (“RICO”) chapter of the Organized Crime Control Act adopted in 1970 and codified in 1988.8 As evidenced above, this formidable arsenal for civil litigants is the subject of heated dialogue.9 Albeit generally known and oft-stated, its genesis merits repetition. The statute was created to annihilate organized criminal conduct. Originally, the Senate Bill limited civil remedies to injunctive actions brought by the United States, but the House added a treble-damages remedy modeled on section 4 of the Clayton Act. The Senate Bill’s sponsor stated that this provision would be “a major new tool in extirpating the baneful influence of organized crime in our economic life.”10 The result of this eleventh-hour addition of a civil remedy not confined to governmental plaintiffs has resulted in an exponential growth in the number of civil RICO suits since the 1980s.11
Indeed, the seminal U.S. Supreme Court case, Sedima S.P.R.L. v. Irmex Co.,12 may have fueled this furor. Almost twenty years ago, Justice Marshall, dissenting, alerted his brethren regarding the potential abandonment of traditional state law and common law fraud remedies for civil RICO’s treble damages and attorney’s fees awards with this new RICO jurisprudence.13 The 5-4 Sedima decision, in which the Court rejected the racketeering injury requirement, relying primarily upon the text of the statute, and vastly expanded the scope of civil RICO beyond those traditionally involved in organized crime, deserves scrutiny and is discussed below.14

C. RICO’s Appeal
RICO’s appeal is legendary.15 A plaintiff invoking RICO derives numerous procedural advantages: (1) the ability to reach beyond the actual actors to the supporting network and organizers; (2) federal jurisdiction with its corresponding national service of process; (3) discovery (particularly benefiting from mandatory disclosure rules); (4) liability for the criminal conduct based on only a preponderance of the evidence rather than proof beyond a reasonable doubt; (5) expanded remedies such as federal court orders restraining further violations and civil proceedings by the Attorney General; and (6) civil RICO’s lure—the recovery of treble damages and costs, including attorney’s fees.
The last factor enumerated, the lucrative damages that RICO awards, is a driving force behind the plethora of these suits.16 The abandonment of traditional state law and common law fraud remedies for RICO’s treble damages and attorney’s fees awards has been met with some hostility and concomitant, heightened review. As Circuit Judges have articulated, “Courts presently tend to scrutinize civil RICO claims with far more skepticism than they scrutinize criminal RICO charges.”17 The consequence is clear: civil RICO plaintiffs face formidable barriers.18
Indeed, the courts’ tolerance for civil RICO as a remedy for ordinary business disputes continues to diminish.19 Thus, a caveat: Although the Fifth Circuit has astutely stated that “[a]n imaginative plaintiff could take virtually any illegal occurrence and point to acts preparatory to the occurrence . . . as meeting [RICO’s requirements],”20 a litigant must overcome the growing resentment toward the business plaintiff’s weapon of choice. 21

D. Sedima S.P.R.L. v. Irmex Co. & its Progeny—
Civil RICO Mania
Prior to Sedima S.P.R.L. v. Irmex Co.,22 little consideration was given to the pattern requirement in RICO.23 In Sedima, the U.S. Supreme Court reversed the dismissal of a RICO claim24 and rejected the Second Circuit’s standing requirement that a plaintiff show the defendant was convicted of a RICO predicate act as well as establish a “racketeering injury.”25 The Court found these standing requirements unsupported by statutory language, and explained that they “were a form of ‘statutory amendment’ not within the court’s power to create.”26
The Court held as follows: “If the defendant engages in a pattern of racketeering activity in a manner forbidden by [the statute], and the racketeering activities injure the plaintiff in his business or property, the plaintiff has a . . . claim.”27 In rejecting the racketeering injury concept, the Sedima Court, in essence, approved the use of RICO causes of action against an entity not previously seen as a typical RICO defendant—most specifically, Corporate America. Thus, the commencement of a new era of civil RICO jurisprudence was launched.
In his dissent, Justice Marshall stated that the statute clearly allows recovery for an injury from the commission of events detailed in section 1962, and not from just the commission of a predicate act, i.e., a racketeering injury.28 The majority’s reading of the statute, in Justice Marshall’s opinion, was a distortion of the statutory language, unsupported by the legislative history.29 RICO’s language and history require a narrower interpretation than that provided by the majority.
Justice Marshall articulated with clairvoyance that the majority’s interpretation of the civil RICO statute “quite simply revolutionizes private litigation.”30 Justice Marshall correctly expected that the Sedima holding, combined with the treble damages provision and attorney’s fees allowance, would create the flood of litigation against legitimate businesses that the courts face today.31 According to Justice Marshall, nothing in the statutory language or history of RICO indicated a congressional intent to have the statute dramatically change or federalize the law governing commercial disputes.32

E. Safeguarding Against the Aftermath via RICO Case Statements, the Rules & the Like
1. Precision Pleading Needed
While correct that “an imaginative plaintiff” can utilize “illegal occurrences” and advocate civil RICO as the remedy, the complexity of the RICO statute demands precision in pleading and creates formidable hurdles.33 A trial judge is not “obligated to construct a cause of action from allegations in a complaint filed by a party who was unwilling or unable to plead the cause of action himself.”34 Nonetheless, some inherent assistance is provided as many federal courts have “institutionalized” their desire for precision in civil RICO cases by requiring plaintiffs to file RICO case statements.35 These statements are designed to amplify and clarify a pleading’s allegations, requiring precision in the civil RICO claim, and function to assist in identifying and narrowing factual and legal issues. In some federal courts, existing standing orders mandate the filing of RICO case statements by all parties pleading RICO claims.36 According to a leading treatise on civil RICO actions, at least 15 different district courts in the Second, Third, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and D.C. Circuits have issued RICO standing orders.37
In NOW v. Scheidler,38 the U.S. Supreme Court noted the use of a “RICO Case Statement” without criticism. Despite the seeming acceptance by the U.S. Supreme Court as well as the widespread use of RICO standing orders, however, only four of the circuits have directly or indirectly considered the question of whether such orders are in compliance with the notice pleading requirements. Among such circuits, opinions differ as to whether such RICO statements filed in response to a standing order mandate more than traditional dismissal under the Federal Rules of Civil Procedure.39
For instance, in Figueroa-Ruiz v. Algeria,40 the First Circuit affirmed the dismissal by the district court of a plaintiff’s RICO claims for failure to comply with its RICO standing order.41 The First Circuit upheld the lower court’s dismissal, and noted that the need for the efficient and orderly progress of litigation is especially pronounced in civil RICO suits.42 The Court further noted that the courts should “strive to flush out frivolous RICO allegations at an early stage of the litigation.”43
Similarly advocating RICO standing orders, the Fifth Circuit has upheld their use on at least three occasions.44 In Elliot v. Foufas,45 for instance, the plaintiff challenged the standing order as being in conflict with the pleading requirements of Fed. R. Civ. P. 8(a). Rule 8 requires that pleadings contain a clear statement of the claim and be direct and concise. The plaintiff in Elliot alleged that the standing order requires information in excess of what is required by Rule 8.46 The Fifth Circuit disagreed, and like the First Circuit, upheld the validity of the RICO standing order, and then affirmed the dismissal for failure to comply with the order.47 In Marriott v. Gage,48 the Fifth Circuit reiterated its view, again upholding the standing order of a district court.
The Second Circuit, however, follows a different path. In Commercial Cleaning Services, L.L.C. v. Colin Service Systems, Inc.,49 the Court reversed the lower court’s dismissal of a claim for violating its standing order.50 The Court found that the order called for information far in excess of the elements of a RICO claim, and that the plaintiff’s inability to produce the information, especially prior to discovery, did not justify a grant of judgment to the defendant.51
The Ninth Circuit adheres to the Second Circuit’s rationale. In Wagh v. Metris Direct, Inc.,52 the Court held as follows: “We find the reasoning of the Second Circuit persuasive. The use of RICO Standing Orders to compel plaintiffs to produce detailed RICO Case Statements, which are then treated by the district court as part of that party’s pleadings, can in certain circumstances require far more information from plaintiffs than is required under either Rule 8(a) or 9(b) of the Federal Rules.”53
Thus, the fate of RICO standing orders is not clear. Despite the seeming acceptance by the U.S. Supreme Court in Scheidler of the case-by-case use of RICO case statements, the U.S. Supreme Court has not yet passed on the issue of standing orders. Moreover, as articulated above, review also indicates that the circuits that have addressed the issue may be split. The circuits in which standing orders survive are just another example of the court system’s insistence of certitude in allegations at the outset of the litigation. In the absence of standing orders, judges often require filing of RICO case statements in individual actions, often in response to or in conjunction with defense motions to dismiss pursuant to Rule 9(b) or 12(b)(6) or motions for a more definite statement pursuant to Rule 12(e).54

2. Dismissals Pursuant to Federal Rules of Civil Procedure 9(b), 12b(6) & 56
Indeed, the onus on the civil RICO plaintiff is substantial as the Federal Rules of Civil Procedure similarly serve as impediments in such litigation. A road map to clarify pleadings to satisfy Rule 9(b) and successfully invoke civil RICO may be outcome-determinative.55 In practice, most predicate acts in civil RICO claims sound in fraud; consequently, the pleading of those acts must satisfy the particularity requirements of Rule 9(b). This traditionally occurs under section 1962(a), (b), and (c) because the most commonly alleged predicate acts—securities fraud, mail fraud, and wire fraud—are subject to the pleading strictures of Rule 9(b).56 To plead mail and wire fraud violations within Rule 9(b), the plaintiff must allege (1) the existence of a scheme to defraud; (2) the use of the mail in furtherance of the fraudulent scheme; and (3) culpable participation by the defendant.57 Courts will dismiss a civil RICO claim for failure to plead predicate acts with particularity.58
Moreover, pursuant to Rule 12(b)(6), any person against whom a claim, including a RICO claim, is asserted has the option to move for a dismissal if the pleading “fail[s] to state a claim upon which relief can be granted.” The requirements of Rules 9(b) and 12(b)(6) tend to merge in the civil RICO area
and often the defendants make such motions in tandem. Applying Rule 12(b)(6) to RICO produces distinctive requirements.59 Most importantly, the RICO plaintiff must allege the substantive components of an “enterprise” and “pattern” sufficiently to withstand a dismissal motion.60 Courts have not hesitated to dismiss complaints alleging RICO violations when the alleged facts, even assuming their truth, fail to establish a pattern of racketeering activity, an enterprise, or any other prerequisite to the claim.61
Additionally, under Rule 56, any party may move for summary judgment prior to trial if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”62 Focusing commonly but not exclusively on the enterprise and pattern requirements, federal courts have not hesitated to enter summary judgment on RICO claims in the absence of genuine issues of material fact.63 Conversely, if a genuine issue of material fact exists as to any material RICO element, summary judgment is inappropriate.64

F. Sample Areas of Restriction
1. Class Actions
In Patterson v. Mobil Oil Corp.,65 the Fifth Circuit reiterated its previous assertion that class actions may not be sustained under RICO.66 Albeit basic RICO jurisprudence, it is worth repeating that RICO requires a plaintiff to show reliance to recover.67 Specifically, a RICO plaintiff must prove justifiable detrimental reliance to establish factual causation.68 This determination emerges from the “by reason of” language in the statute. Courts have held that the “by reason of” language in RICO requires both “but for” and “proximate” causation.69 To establish an injury “by reason of” a predicate act, a plaintiff must show he relied on such acts.70 The detrimental reliance element in the causation requirement of a RICO action impedes facile pursuit of a class action.
Indeed, the Patterson Court poignantly noted as follows: “Claims for money damages in which individual reliance is an element are poor candidates for class treatment, at best.”71 To determine reliance for each class member would defeat the efficiency that the class action device was promulgated to promote.72 The Fifth Circuit is not alone in this interpretation. For instance, in Andrews v. AT&T, et al.,73 the Eleventh Circuit held that individual reliance prevented the class from pursuing their RICO claims, stating “manageability problems…defeat the Rule’s underlying purposes and render these claims inappropriate for class treatment.”74 These cases suggest that, at least in some circuits, RICO’s reliance element may preclude the availability of a class action pursuant to the statute.

2. Continuity
One of the pleading requirements of RICO is that the plaintiff show, among other things, a pattern of violative activity.75 This pattern is sufficiently alleged if there is “continuity plus [a] relationship” between the predicate violative acts.76 The relationship factor and the predicate acts must be connected to each other. The continuity factor requires that the predicate acts constitute at least a threat of continuing racketeering activity. Scrutiny of the jurisprudence suggests that the continuity requirement has proven challenging to many plaintiffs.77 For instance, in Edmondson & Gallagher v. Alban Towers Tenants Ass’n,78 the plaintiff’s claims were dismissed for showing only a single scheme designed to interfere with only one business project.79 In Whelan v. Winchester Production Co., et al.,80 the Fifth Circuit held that “[a]n enterprise that ‘briefly flourished and faded’ will not suffice; [the RICO plaintiff] must adduce evidence showing the enterprise functioned as a continuing unit.”81

3. Standing
Another area of significant restriction on the availability of private civil RICO claims is standing.82 As is often elaborated, a civil RICO plaintiff must show: (1) a violation of section 1962(a), (b), (c), or (d); (2) an injury to business or property; and (3) a violation causing the injury. Moreover, to sue pursuant to section 1962(a), a plaintiff must show that the income was received from a pattern of racketeering activity and used or invested in an enterprise.
A majority of courts have held that the injury must flow from this use or investment, not merely from predicate acts.83 For instance, in St. Paul Mercury Ins. Co. v. Williamson,84 the Fifth Circuit, like so many other circuits that have considered the issue, held that the injury must be an “investment injury.” The Court defined this term as “an injury from the use or investment of racketeering income in a RICO enterprise,” not just from the predicate acts themselves.85 Further, in Wagh v. Metris Direct, et al.,86 the Ninth Circuit held that a plaintiff seeking civil damages for a violation of section 1962(a) must allege facts tending to show that it was injured by the use or investment of racketeering income.87
In contrast, it appears that the Fourth Circuit has not placed this restriction on the standing requirements of a plaintiff. In Busby v. Crown Supply, Inc.,88 the Court held that a plaintiff need not show his damages flowed from the use or investment of the racketeering income, but only that damages flowed from the racketeering activity itself.89

4. Statute of Limitations
Although RICO does not contain any specific statutory period of limitations, the U.S. Supreme Court in Agency Holding Corp. v. Malley-Duff Assos., Inc.,90 imposed a limitations period of four years on civil RICO claims.91 It has been determined that the limitations period begins to run when the injury is discovered—that is, the “injury discovery” rule. Although it does not appear that the Supreme Court has specifically adopted such a rule, it has specifically rejected all others.92
The limitations period begins to run when the plaintiff knew or should have known of the injury underlying the cause of action.93 The plaintiff need not have actual knowledge that the injury is part of a pattern of racketeering for the limitations period to begin.94 Nonetheless, within this “injury discovery” rule is a “separate accrual” rule, which provides that a new claim, and, therefore, a new four-year limitations period, accrues each time an independent injury is suffered due to the RICO violation.95 Thus, if a RICO defendant continues its violative conduct after the limitations period begins, a plaintiff may have a new claim, and a new statute of limitations period, after the pattern requirement is satisfied.

5. The Person versus the Enterprise
Under section 1962(c), a plaintiff attempting to establish liability must show the existence of a person and an enterprise distinct from the person.96 One area of interpretive dispute among the federal circuits is RICO’s conspiracy provision—section 1962(d). The debate focuses on its interaction with section 1962(c)—RICO’s participation provision. The split among the circuits concerns liability for continued participation in a RICO enterprise. Two main issues emerge: (1) the level of participation the defendant must have; and (2) whether the standard contained in general conspiracy law or civil conspiracy law governs the civil RICO statute.97
The Fifth Circuit addressed this civil RICO component and opined that the enterprise may be any legal entity or group of individuals “associated in fact.”98 The Whelan Court further held that the association-in-fact must not be a pattern of racketeering activity alone, but must exist independently of the pattern.99 Moreover, for purposes of the statute’s prohibition of conducting an enterprise’s affairs through such a pattern, a RICO plaintiff must show not only that the association-in-fact is separate from the predicate acts that constitute the racketeering activity, but also that the person committing the acts is distinct from the enterprise.100 Thus, it is not enough that the employees of a corporation, in the course and scope of their employment, associate to commit the predicate acts. According to the Court, such activity does not establish an association-in-fact distinct from the corporation.101

G. Litigation Trends in the Use of Civil RICO—A Sampling
1. Family Law
One innovation in the use of civil RICO emerges in the family law arena. Most popular has been the claim that one member of a divorcing couple has engaged in a RICO conspiracy with another person, generally an accountant, to prevent an accurate reflection of income from being considered during the distribution of marital assets. For instance, in federal district court in Pennsylvania, a wife alleged her ex-husband and his accountant participated in a fraudulent scheme to disguise the true value of the ex-husband’s income during their divorce proceedings.102 Although the claim twice survived summary judgment, ultimately the court dismissed the claim, holding that the plaintiff failed to show the defendants committed the alleged predicate acts and, therefore, did not carry her burden of proof.103 Similarly, in a recent Tenth Circuit case, a wife claimed her husband violated RICO by concealing his income in their divorce action.104 After articulating the requisite criteria under RICO, the Court determined that the plaintiff’s complaint failed to allege the requisite elements, and affirmed the district court’s dismissal.105 Thus, like other civil RICO claims, the courts scrutinize such allegations in the family law realm with fervor.106

2. Health Care / Insurance
In 1999, the U.S. Supreme Court in Humana, Inc. v. Forsyth,107 held that the beneficiaries of a managed care organization could sue pursuant to civil RICO for the health care organization’s failure to pass on discounts it received from area hospitals to its customers.108 In the aftermath of Humana, other litigation ensued as, for instance, in Maio v. Aetna, Inc.,109 where insureds filed a civil RICO action against their health maintenance organization for false advertising designed to encourage enrollment. The insureds claimed the organization falsely represented that they would receive high quality health care; in reality, according to the plaintiffs, the plan restricted a physician’s ability to provide high quality care.110 The Third Circuit Court of Appeals held that because the plaintiffs had not shown that they received inadequate care or were denied benefits, they failed to establish a RICO injury under section 1964(c).111
In 2000, the Seventh Circuit followed suit by dismissing a civil RICO action alleging a mass conspiracy among health care insurance companies to defraud plan beneficiaries.112 The plaintiff was the assignee to whom the beneficiaries’ claims were reassigned by providers. The litigation alleged, inter alia, that the defendants violated section 1962(a) by denying claims on fraudulent grounds and investing the money that would have been used to pay those claims in a scheme to eliminate outside providers.113 The Seventh Circuit Court of Appeals found that the plaintiff could not show an injury to himself and, therefore, failed to plead a claim cognizable under section 1962(a).114 Thus, continuing an apparent pattern, the judiciary may have another mechanism—at least in the health care and insurance arena—to impede the flood of RICO claims.

3. Protest
Through NOW v. Scheidler115 and its progeny, the U.S. Supreme Court has enabled plaintiffs to utilize civil RICO causes of action against anti-abortion groups seeking to close abortion clinics.116 This outcome has created a debate as to whether this use of RICO against protest groups circumvents the protections contained within the First Amendment.117 Despite this concern, RICO claims have since been upheld against not only abortion protests, but also environmental activist groups.118 In Thompkins v. Cyr,119 for instance, the Fifth Circuit held that a physician successfully stated a RICO claim against abortion protestors who had tried to stop doctors, including the plaintiff, from performing abortions through harassment and by threatening their families with violence.
Similarly, in Huntingdon Life Sciences, Inc. v. Rokke,120 a federal district court in Virginia held that the plaintiff had a valid RICO claim against the defendant, a member of the environmental group, People for the Ethical Treatment of Animals. The defendant fraudulently gained employment at the plaintiff’s laboratory, and used information gained there to launch a negative public relations campaign against the plaintiff.121 Unlike the attempts in the family law arena, perusal of the case law suggests that the use of civil RICO against protest groups in the area of harassment may be met with greater acceptance by the federal judiciary.

4. Tobacco
Another new and inventive way in which civil litigants have used RICO as a weapon involves the tobacco industry. Civil RICO claims have emerged in the tobacco arena as plaintiffs attempt to recover from the tobacco giants for tobacco-related illnesses. However, courts have raised standing as an impediment and found, for instance, that union health funds have no standing to sue tobacco companies under RICO for the costs of providing health care to members and beneficiaries with illnesses caused by tobacco.122 Plaintiffs have also failed to show that their injuries were proximately caused by the alleged conspiracy by defendants to mislead the public as to the health risks associated with cigarette smoking.123 Similar reasoning has been extended to claims by health care providers, such as hospitals, for the costs associated with treating patients with tobacco-related illnesses.124 Finally, providing yet another hurdle for the RICO advocate in tobacco cases, the Fifth Circuit upheld the dismissal of a RICO class action against a tobacco trade association by reiterating the fact that the phrase “injury to business or property” in RICO excludes personal injuries.125

H. Four Decades and Still Litigating
With Sedima, civil RICO emerged as the business litigant’s tool of choice to rectify seemingly fraudulent conduct. The dissenting justices correctly predicted what has transpired over the last two decades. The Court’s conclusion “authorize[d] the types of private civil actions now being brought frequently against respected businesses to redress ordinary fraud and breach-of-contract cases” with civil RICO as the chief arsenal.126
Although RICO claims are increasingly “difficult to successfully plead,”127 the tremendous appeal of this notorious statute to plaintiffs continues to drive advocacy and innovation in the civil RICO arena. In 2002, for instance, the owners of the Montreal Expos filed a RICO suit against the Major League Baseball commissioner, alleging that he and his co-defendants conspired to eliminate baseball in Montreal.128 That same year, an attorney in Missouri filed a RICO suit on behalf of a man who alleged he was molested as a child by a Catholic priest, naming every bishop in the United States as an unnamed co-conspirator under RICO.129 However, despite the creative attempts by civil RICO litigants to explore avenues for its use, courts concomitantly have ratcheted up their scrutiny in order to rein in RICO’s turbulent jurisprudence. In RICO’s fourth decade, the question might finally be asked and answered: is it the time of reckoning for civil RICO litigants and their business arsenal of choice?

Endnotes
1. Stephanie Profitt, Comment: RICO Conspiracy: The Ninth Circuit Distinguishes Itself From the Rising Costs of Guilty Thoughts, 33 Golden Gate U.L. Rev. 47, 70 n.6 (2003) (citing Second Thoughts on RICO, Wall St. J., Review and Outlook Editorial (May 19, 1989)). 2. Lawrence Morahan, Use of Racketeer Statute to Sue Catholic Church Draws Fire, CNSNews.com at http://www.cnsnews.com/Nation/Archive/200203/NAT20020325b.html. 3. Lee Applebaum, Is There a Good Faith Claim for the RICO Enterprise Plaintiff?, 27 Del.J. Corp. L. 519, 522 n.16 (2002). 4. Wolin v. Hanley Dawson Cadillac, Inc., 636 F. Supp. 890, 891 (N.D. Ill. 1986) (citation omitted). 5. Vicom v. Harbridge Merchant Servs., Inc., 20 F.3d 771, 785 (7th Cir. 1994). 6. Ralph K. Winter, Paying Lawyers, Empowering Prosecutors, and Protecting Managers: Raising the Cost of Capital in America, 42 Duke L. J. 945, 961 (1993). 7. Bryan T. Camp, Dual Construction of RICO: The Road Not Taken In Reves, 51 Wash. & Lee L. Rev. 61, 70 (1994) (discussing the “flood of lawsuits attempting to turn ‘garden variety’ civil fraud cases into RICO cash crops, as plaintiff lawyers go ‘theory shopping’ simply to obtain the treble damage award”) (footnotes omitted). 8. RICO provides a private civil action to recover treble damages for injuries resulting from a violation of its substantive provisions. The civil RICO cause of action is created by 18 U.S.C. § 1964(c): “Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefore in any appropriate United States District Court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee.” This single sentence is the source, although, for some, the culprit of civil RICO litigation.
To state a civil RICO claim, a plaintiff must allege the following elements: (1) a substantive RICO violation, (2) “racketeering activity,” (3) conducted through a “pattern,” (4) affecting an “enterprise,” (5) a culpable “person,” and (6) an effect on interstate or foreign commerce. See, e.g., Porter v. Shearson Lehman Bros. Inc., 802 F. Supp. 41, 64 (S.D. Tex. 1992); see also Price v. Pinnacle Brands, Inc., 138 F.3d 602, 606 (5th Cir. 1998) (reciting similar list); Morley v. Cohen, 888 F.2d 1006, 1009 (4th Cir. 1989) (same).
The reference to section 1962 in section 1964 incorporates four separate causes of action arising out of various aspects of racketeering activity (statutorily labeled “prohibited activities”). These activities are as follows: (1) investment — under section 1962(a), it is unlawful to invest any income derived from a pattern of racketeering activity (or through collection of an unlawful debt (extremely rare in civil RICO cases)) to acquire any interest in, or to establish or operate, any enterprise that is engaged in or affects interstate or foreign commerce; (2) acquisition — under section 1962(b), it is unlawful to acquire or maintain any interest in, or control of, any enterprise that is engaged in or affects interstate or foreign commerce through a pattern of racketeering activity or collection of an unlawful debt; (3) participation — under section 1962(c), it is unlawful for any person to conduct or participate in the conduct of the affairs of an enterprise that is engaged in or affects interstate or foreign commerce through a pattern of racketeering activity or collection of an unlawful debt; and (4) conspiracy — under section 1962(d), it is unlawful for any person to conspire to violate any of the provisions of section 1962(a) – (c). 9. Profitt, supra note 1, at 49. 10. Profitt, supra note 1, at 70 n.17 (citing William H. Rehnquist, Get RICO Out of My Courtroom, Wall. St. J., May 19, 1989, at A14). 11. Arthur F. Matthews, et al., Civil Rico Litigation, Ch. 1 at 1-2 (2d ed. 1992) (hereinafter Matthews). 12. 473 U.S. 479 (1985). 13. Justice Powell agreed with Justice Marshall’s dissent and provided a separate discussion, cited infra, at note 126. 14. Sedima, 473 U.S. at 495-500. 15. Note, 32 states and territories have enacted statutes that track the federal RICO statute. They are as follows: Arizona, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Louisiana, Michigan, Minnesota, Mississippi, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island, Tennessee, Utah, the Virgin Islands, Washington, and Wisconsin. See Teresa Bryan, et al., Racketeer Influenced and Corrupt Organizations, 40 Am. Crim. L. Rev. 987, 988 n.1 (2003). 16. Profitt, supra note 1, at 49. 17. Winter, supra note 6, at 961. 18. Matthews, supra note 11, at 1-26 (“[T]he consequence of this hostility is that civil RICO plaintiffs can count on heightened scrutiny of their claims.”). 19. For instance, in 1995, commentators noted that nearly 70 to 80 percent of all RICO actions are dismissed or fall victim to summary judgment. Matthews, supra note 11, at 1-22 n.45. Concomitantly, between 1993-94, for instance, approximately 80 percent of the district courts’ decisions summarily disposing of a civil RICO claim were affirmed on appeal. See Jon H. Kingsepp and Robert B. Johnston, Recent Developments in Commercial Tort Law, 30 Tort & Ins. L. J. 262, 263 n.12 (1995). 20. Montesano v. Seafirst Commercial Corp., 818 F.2d 423, 424 (5th Cir. 1987). 21. See Camp, supra note 7, at 70. 22. 473 U.S. 479 (1985). 23. Lisa A. Huestis, The Second Circuit Review—1986-1987 Term: RICO: The Meaning of “Pattern” Since Sedima, 54 Brooklyn L. Rev. 621, 628 (1988). 24. Sedima S.P.R.L. v. Irmex Co., 473 U.S. 479, 500 (1985). The Second Circuit dismissed the claim because the defendants had not previously been convicted of a RICO violation, and for failure to establish a “racketeering injury.” Id. 25. The Second Circuit defined “racketeering injury” as one distinct from the injury arising from the predicate acts. Sedima S.P.R.L. v. Irmex Co., 741 F.2d 482, 494-96 (2d Cir. 1984). 26. Huestis, supra note 23, at 628 (quoting Sedima, 473 U.S. at 500). 27. Sedima, 473 U.S. at 495. A section 1962(c) violation “requires (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Id. at 496. If the plaintiff alleges all elements of section 1962 (c) and shows he was injured in his business or property by the conduct constituting a violation, the injury is the harm caused by the predicate acts sufficiently related as to constitute a pattern. Id. at 497. 28. Id. at 509-10 (Marshall, J., dissenting). 29. Id. 30. Id. at 501. 31. Id at 503-06. 32. Id. at 507; see also Applebaum, supra note 3, at 534 n.73. 33. The Second Circuit, in a frequently quoted passage, has itemized the necessary allegations of a routine section 1962(a), (b), or (c) complaint: (1) that the defendant (2) through the commission of two or more acts (3) constituting a “pattern” (4) of “racketeering activity” (5) directly or indirectly invests in, or maintains an interest in, or participates in (6) an “enterprise” (7) the activities of which affect interstate or foreign commerce . . . . [P]laintiff must [also] allege [(8)] that he was “injured in his business or property [(9)] by reason of [the] violation of § 1962.” Moss v. Morgan Stanley Inc., 719 F.2d 5, 16-17 (2d Cir. 1983) (citations omitted), cert. denied, 465 U.S. 1025 (1984); see also Rose v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989) (summarizing that to state a section 1962(d) claim, a plaintiff must allege “(1) agreement to commit the predicate acts of fraud, and (2) knowledge that those acts were part of a pattern of racketeering activity conducted in such a way as to violate § 1962(a), (b), or (c).”). 34. Glenn v. First Nat’l Bank in Grand Junction, 868 F.2d 368, 372 (10th Cir. 1989). 35. Of note, Federal Rules of Civil Procedure 11, 12(e), 16, and 83 provide the requisite authority for judges to order parties to file RICO case statements. Moreover, the substance of RICO case statements may be considered on motions to dismiss because they are viewed as elaborations on pleadings. See, e.g., Dennis v. General Imaging, Inc., 918 F.2d 496, 511 (5th Cir. 1990) (considering complaint, amended complaint, and RICO case statement on motion to dismiss); Sil-Flo Inc. v. SFHC, Inc., 917 F.2d 1507, 1516 (10th Cir. 1990) (same); Glessner v. Kenny, 952 F.2d 702, 712 n.9 (3d Cir. 1991) (“Courts may consider the RICO case statement in assessing whether plaintiffs’ RICO claims should be dismissed”). Interestingly, for instance, in the late 1980s, the New York State Bar Association Commercial and Federal Litigation Section published a model civil RICO case statement order. See N.Y. State Bar Ass’n Commercial & Fed. Litig. Sec., The Civil RICO Case Statement 21-24 (1989), reprinted in [1990] RICO Bus. Disputes Guide (CCH) ¶ 7453 at 10,280-81 (May 1990); see also Wagh v. Metris Direct, Inc., No. 02-15580, 2003 U.S. App. LEXIS 25242 (9th Cir. Nov. 7, 2003); Lyman Steel Co. v. Shearson Lehman Bros., Inc., No. 86-355, 1986 U.S. Dist. LEXIS 29346 (N.D. Ohio 1986). 36. See, e.g,. Wagh, 2003 U.S. App. LEXIS 25242. See also Old Time Enters. v. International Coffee Corp., 862 F.2d 1213 (5th Cir. 1989); Elliot v. Foufas, 867 F.2d 877 (5th Cir. 1989); Figueroa-Ruiz v. Algeria, 896 F.2d 645 (1st Cir. 1990); Marriot Bros. v. Gage, 911 F.2d 1105 (5th Cir. 1990). 37. Wagh, 2003 U.S. App. LEXIS 25242 at *17 (citing Terrance G. Reed & David B. Smith, CIVIL RICO App. 9A, 9-100.17 (March 2003)). 38. 510 U.S. 249, 252 (1994). 39. See notes 40-54 and accompanying text. 40. 896 F.2d 645 (1st Cir. 1990). 41. Figueroa-Ruiz, 896 F.2d at 646. 42. Id. at 650. 43. Id. 44. See Old Time Enters. v. International Coffee Corp., 862 F.2d 1213 (5th Cir. 1989); Elliot v. Foufas, 867 F.2d 877 (5th Cir. 1989); Marriot Bros. v. Gage, 911 F.2d 1105 (5th Cir. 1990). 45. 867 F.2d 877 (5th Cir. 1989). 46. Id. at 880. 47. Id. 48. 911 F.2d 1105 (5th Cir. 1990). 49. 271 F.3d 374 (2d Cir. 2001). 50. Id. at 385. 51. Id. at 386. 52. 2003 U.S. App. LEXIS 25242 (9th Cir. Nov. 7, 2003). 53. Id. at *12-13. 54. See, e.g., Old Time Enters., Inc. v. International Coffee Corp., 862 F.2d 1213 (5th Cir. 1989) (Eastern District of Louisiana); Homico Constr. & Dev. Co. v. Ti-Bert Sys., Inc., 939 F.2d 392 (6th Cir. 1991) (Northern District of Ohio); Glessner v. Kenny, 952 F.2d 702 (3d Cir. 1991) (District of New Jersey); Brooks v. Blue Cross & Blue Shield, 116 F.3d 1364 (11th Cir. 1997) (Southern District of Florida). 55. See Rentclub, Inc. v. TransAmerica Rental Fin. Corp., 775 F. Supp. 1460, 1462-463 (M.D. Fla. 1991) (providing a paradigm to clarify pleadings to satisfy Rule 9(b)). 56. See, e.g., Feinstein v. Resolution Trust Corp., 942 F.2d 34, 42 (1st Cir. 1991) (“the pleader is required ‘to go beyond a showing of fraud and state the time, place and content of the alleged mail and wire communications perpetrating that fraud’”). 57. See, e.g., Browning Ave. Realty Corp. v. Rosenshein, 774 F. Supp. 129, 137 (S.D.N.Y. 1991) (citations omitted). 58. See, e.g., Craighead v. E.F. Hutton & Co., Inc., 899 F.2d 485, 495 (6th Cir. 1990) (“[t]he plaintiffs’ collection of conclusions and unrelated, unexplained events fails to set forth any instance of mail fraud, securities fraud, or any other fraud, with any particularity. As plaintiffs have failed to allege any predicate acts, there can be no pattern of racketeering”); Jepson, Inc. v. Makita Corp., 34 F.3d 1321, 1328 (7th Cir. 1994) (dismissing because the complaint did not meet Fed. R. Civ. P. 9(b) requirements). Accord Durham v. Business Management Assocs., 847 F.2d 1505 (11th Cir. 1988); Saporito v. Combustion Engineering Inc., 843 F.2d 666 (3d Cir. 1988), cert. granted and vacated on other grounds, 489 U.S. 1049 (1989). 59. See, e.g., Proctor & Gamble Co. v. Amway Corp., 242 F.3d 539, 565 (5th Cir. 2001), cert. denied, 122 S. Ct. 329 (2001) (dismissing plaintiff’s RICO claim because causation rested on a tenuous relationship, and that allowing such actions would “open floodgates” the Fifth Circuit is unwilling to open). 60. See, e.g., Brown v. Protective Life Ins. Co., No. 03-30010, 2003 U.S. App. LEXIS 26393, *3 (5th Cir. Dec. 30, 2003) (plaintiff must plead specific facts that establish an association that exists other than merely to commit the predicate acts forming the pattern). 61. See, e.g., Wagh v. Metris Direct, Inc., No. 02-15580, 2003 U.S. App. LEXIS 25242, *22 (9th Cir. Nov. 7, 2003) (“Plaintiff has failed to meet the enterprise requirements established by the Ninth Circuit in presenting this theory of enterprise. Plaintiff has not alleged that Defendants....have established a system of making decisions in furtherance of their alleged criminal activities, independent from their respective regular business practices. Nor has Plaintiff alleged that an independent system of distributing the proceeds of money obtained from persons like Wagh exists between the Defendants.... [Plaintiff] has therefore failed to allege the elements of a violation of § 1962(c), and the dismissal of this claim was correct.”); Anderson v. Smithfield Foods Inc., No. 02-14089, 2003 U.S. App. LEXIS 25447, *3 (11th Cir. Dec. 17, 2003) (dismissing plaintiffs’ claim because “the facts they alleged were too vague to show the enterprise required for RICO liability, and…they had failed to allege the harm required by RICO”). 62. Fed. R. Civ. P.56(c). 63. See, e.g., Lou v. Belzberg, 728 F. Supp. 1010, 1026 (S.D.N.Y. 1990) (granting combined summary judgment and dismissal motions because RICO allegations failed to state pattern of racketeering activity); Whelan v. Winchester Prod. Co., 319 F.3d 225, 229 (5th Cir. 2003) (affirming grant of summary judgment because the plaintiff failed to establish an enterprise). 64. See, e.g., Federal Ins. Co. v. Ayers, 772 F. Supp. 1503, 1508 (E.D. Pa. 1991) (denying summary judgment “because there are genuine issues of material fact regarding the commission of the alleged predicate acts”). 65. 241 F.3d 417 (5th Cir. 2001). 66. Id. at 418-19 (citations omitted). 67. See, e.g., Summit Prop. v. Hoechst Celanese Corp., 214 F.3d 556, 558-60 (5th Cir. 2000). 68. Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris, Inc., 113 F. Supp. 2d 345, 369 (E.D.N.Y. 2000). 69. Summit Prop., 214 F.3d at 558-60. This has been extended to include the requirement that the RICO plaintiff must have been injured by actually relying upon the RICO violation providing the basis of the RICO claim. See generally Sandwich Chef of Tex., Inc. v. Reliance Nat’l Indem. Ins. Co., 319 F.3d 205 (5th Cir. 2003). 70. Blue Cross., 113 F. Supp. 2d at 369. 71. Patterson, 241 F.3d at 419. 72. Id. The Fifth Circuit similarly concluded as such in Sandwich Chef of Texas, Inc. v. Reliance National Indemnity Insurance Co., 319 F.3d 205 (5th Cir. 2003). The Court held that the lower court had abused its discretion in certifying a class in a RICO class action because individual issues of reliance as well as causation defeated the predominance component required by Fed. R. Civ. P. 23(b). Id. at 224. 73. 95 F.3d 1014 (11th Cir. 1996). 74. Andrews, 95 F.3d at 1025. See also Deborah M. Russell and Robert L. Hodges, Emerging Issues in Noninjury Class Litigation Targeting Product Lines, 39 Tort & Ins. L. J. 137, 153 (2003) (discussing Summit Properties, Inc. v. Hoechst Celanese Corp., 214 F.3d 556, 562 (5th Cir. 2000), in which the Fifth Circuit rejected a RICO claim, finding that general reliance, as opposed to individual reliance, precluded a finding that RICO’s proximate cause requirement was satisfied). The Fifth Circuit’s posture in Summit merits repetition: “Today we are invited to read RICO as establishing a federal products liability scheme complete with treble damages and attorney fees . . . . We are unpersuaded that RICO can be extended so far by such a marriage of distinct duty and liability regimes.” Summit, 214 F.3d at 557. 75. To state a civil RICO claim, a plaintiff must allege the following elements: (1) a substantive RICO violation, (2) “racketeering activity,” (3) conducted through a “pattern,” (4) affecting an “enterprise,” (5) a culpable “person,” and (6) an effect on interstate or foreign commerce. See, e.g., Porter v. Shearson Lehman Bros. Inc., 802 F. Supp. 41, 64 (S.D. Tex. 1992); see also Price v. Pinnacle Brands, Inc., 138 F.3d 602, 606 (5th Cir. 1998) (reciting similar list); Morley v. Cohen, 888 F.2d 1006, 1009 (4th Cir. 1989) (same). See also supra note 8. 76. Karen D. Walker and Michael G. Tanner, RICO Claims: The Challenge of Alleging the “Pattern” Element, 76 Fla. Bar. J. 34, 36 (2002). 77. Id. 78. 48 F.3d 1260 (D.C. Cir. 1995). 79. Id. at 1264-265. 80. 319 F.3d 225 (5th Cir. 2003). 81. Id. at 230 (quoting Landry v. Air Line Pilots Ass’n Int’l AFL-CIO, 901 F.2d 404, 433 (5th Cir. 1990)). 82. Bryan, supra note 15, at 1030. 83. Id. at 1031 (citing the Second, Fifth, Sixth, Eighth, Ninth, Tenth and D.C. Circuit Courts of Appeal). 84. 224 F.3d 425 (5th Cir. 2000). 85. St. Paul, at 442. Similarly, the First Circuit explained in Compagnie de Reassurance d’Ile de France v. New England Reinsurance Corp., 57 F.3d 56, 91 (1st Cir. 1995), that in proving a right to recover for a RICO violation under section 1962(a), a plaintiff must show that it was injured by the defendant’s use or investment of income received from a pattern of racketeering activity in some enterprise. See also Discon, Inc. v. NYNEX Corp., No. 95-7673, 1996 U.S. App. LEXIS 28747, *23 (2d Cir. Mar. 27, 1996) (holding that in order to state a cause of action under section 1962(b), a plaintiff must allege what is referred to as an “acquisition injury,” analogous to the use or investment injury required under section 1962(a) to show injury under section 1962(b)); Advocacy Org. for Patients and Providers v. Auto Club Ins. Ass’n, 176 F.3d 315, 330 (6th Cir. 1999) (dismissing a civil RICO complaint because the plaintiffs failed to allege they suffered an injury by reason of the use and investment of racketeering income). 86. No. 02-15580, 2003 U.S. App. LEXIS 25242 (9th Cir. Nov. 7, 2003). 87. Wagh, at *13-14. However, what makes the Wagh case of particular interest is that the plaintiff argued that the use or investment of the income causing the injury need not be money taken from him, but that the income in question may be funds previously obtained from others in violation of RICO. The Ninth Circuit disagreed, stating that such an argument eliminates the causal connection between the defendant’s violation and the plaintiff’s injury. Id. at *14-15. 88. 896 F.2d 833 (4th Cir. 1990). 89. Busby, at 838-40. See also Potomac Elec. Power Co. v. Electric Motor and Supply, Inc., 262 F.3d 260, 264 (4th Cir. 2001) (electing to follow Busby, continuing the circuit split on the investment injury issue). 90. 483 U.S. 143 (1987). 91. Agency, at 156 (stating “[W]e conclude that there is a need for a uniform statute of limitations for civil RICO, that the Clayton Act clearly provides a far closer analogy than any available state statute, and that the federal policies that lie behind RICO and the practicalities of RICO litigation make the selection of the 4-year statute of limitations for Clayton Act actions...the most appropriate limitations period for RICO actions.”). 92. See Klehr v. A.O. Smith Corp., 521 U.S. 179, 186-87 (1997) (rejecting the “last predicate act” rule); Rotella v. Wood, 528 U.S. 549, 555-58 (2000) (rejecting the “injury and pattern discovery” rule). 93. See, e.g., Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir. 1996). 94. Id. 95. Bingham v. Zolt, 66 F.3d 553, 561 (2d Cir. 1995). 96. Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158 (2001) (holding that the person and the enterprise must at least be distinct legal entities, overruling the Second Circuit holding that an employee, acting within the course and scope of employment, is part of the enterprise). 97. Profitt, supra note 1, at 52. 98. Whelan v. Winchester Prod. Co., 319 F.3d 225 (5th Cir. 2003). 99. Id. at 229. 100. Id. (citing Bishop v. Corbett Marine Ways, Inc., 802 F.2d 122 (5th Cir. 1988)). 101. Id. 102. Perlberger v. Perlberger, No. 97, 4105, 1997 U.S. Dist. LEXIS 14582 (E.D. Pa. Sept. 18, 1997). 103. Perlberger v. Perlberger, 32 F. Supp. 2d 197, 204 (E.D. Pa. 1998). 104. Martinez. v. Martinez, No. 02, 2182, 2003 U.S. App. LEXIS 7533 (10th Cir. Apr. 21, 2003). 105. Id. at *10-11. 106. See also DeMauro v. DeMauro, No. 99-1589, 2000 U.S. App. LEXIS 2263 (1st Cir. Feb. 6, 2000) (wife sought RICO damages from ex-husband for transferring money via wire and mail transactions to prevent certain assets from being considered during the divorce proceedings); Morelli v. Morelli, No. 93-5619, 1994 U.S. Dist. LEXIS 9241 (E.D. Pa. July 7, 1994) (same). 107. 525 U.S. 299 (1999). 108. Humana, 525 U.S. at 306-07. 109. 221 F.3d 472 (3d Cir. 2001). 110. Maio, 221 F.3d at 475. 111. Id. at 491-92. The plaintiffs had additionally argued that they suffered financial losses because they obtained a “health care product” with a lowered economic value. Id. at 493. The Court disagreed. Id. 112. Simon v. Value Behavioral Health, Inc., 208 F.3d 1073 (7th Cir. 2000). 113. Id. at 1083. It was further alleged that the defendants violated sections 1962(c) and 1962(d) by conspiring to defraud the health care beneficiaries. Id. at 1084. 114. Id. at 1083. Additionally, the Court determined that the plaintiff could not show that the insurance companies associated with an enterprise that engaged in racketeering activity as required by sections 1962(c) and 1962 (d). Id. at 1084. See also Brown v. Protective Life Ins. Co., No. 03-30010, 2003 U.S. App. LEXIS 26393 (5th Cir. Dec. 30, 2003) (dismissing plaintiff’s claim because the injury to business or property did not exceed the $5,000 required for federal RICO standing); S-G Metals Indus. v. New England Life Ins. Co., 346 F.3d 218 (2d Cir. 2003) (dismissing plaintiff’s claim against life insurance company, finding fraudulent concealment did not toll the RICO 4-year statute of limitations). 115. 510 U.S. 249 (1994). 116. Bryan, supra note 15, at 1035 (citing NOW v. Scheidler, 510 U.S. 249 (1994)). 117. Id. 118. Id. 119. 202 F.3d 770, 787 (5th Cir. 2000). 120. 986 F. Supp. 982, 992 (E.D. Va. 1997). 121. Huntingdon, at 992. 122. Bryan, supra note 15, at 1034. 123. See, e.g., Steamfitters Local Union No. 420 Welfare Fund v. Phillip Morris, Inc., 171 F.3d 912, 933-34 (3d Cir. 1999). 124. See, e.g., Allegheny Gen. Hosp. v. Phillip Morris, Inc., 228 F.3d 429, 445 (3d Cir. 2000) (holding hospitals lacked standing under RICO to sue to recover the cost of care provided to nonpaying patients with tobacco-related illnesses); see also Russell, supra note 74, at 154 (citing United Foods and Commercial Workers Unions, Employers’ Health & Welfare Fund v. Philip Morris, Inc., 223 F.3d 1271, 1274 (11th Cir. 2000) (“Tobacco-based RICO claims brought by secondary payors such as health insurers or pension funds have also been uniformly rejected in the federal courts on proximate cause grounds.”)). 125. Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 422 (5th Cir. 2001). 126. Sedima S.P.R.L. v. Irmex, Co., 473 U.S. 479, 523 (1985) (Powell, J., dissenting); see also id. at 502 (Marshal, J., dissenting) (explaining that the broad reading of civil RICO displaces important areas of federal law, citing the securities law arena as an example). 127. Walker, supra note 76, at 38.
128. http://news.findlaw.com/hdocs/docs/sports/bmoexpos71602cmp.pdf. 129. See Lawrence Morahan, Use of Racketeer Statute to Sue Catholic Church Draws Fire, CNSNews.com at http://www.cnsnews.com/Nation/Archive/200203/NAT20020325b.html.

Sofia Adrogué (sadrogue@ebglaw.com) is a partner in the national litigation practice of Epstein Becker Green Wickliff & Hall, P.C., in the firm’s Houston office. Her practice focuses on complex commercial litigation, class actions, and healthcare peer review proceedings. Texas Lawyer has profiled Adrogué as one of Texas’ Top “40 Under 40.” She has been honored by The Texas Jaycees as one of its “5 Outstanding Young Texans,” and by the Houston Jaycees as one of its “5 Outstanding Young Houstonians.”

A permutation of this work has appeared in the Business Torts Journal © 2004 by the American Bar Association.

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