RICO — Intracorporate Conspiracy Doctrine Viable under § 1962(d) Even Though Not Viable under § 1962(c) — Circuit Split

From United States v. Gwinn, 2008 U.S. Dist. LEXIS 26361 (S.D. W.Va. Mar. 31, 2008) (a False Claims Act case):

• "Under the intra-corporate conspiracy doctrine, ... a corporation cannot conspire with its own officers while the officers are acting in their official capacity." [Quotations, brackets and citation omitted].

• “The rationale for the doctrine is that since the acts of a corporate agent are the acts of the corporation, a conspiracy among the agents of the corporation, or among an agent and the corporation, is in effect a conspiracy with only one actor — the corporation.”

• “[I]n Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 166 (2001) ... the Court held that an agent and a corporation could be sued under § 1962(c) of the Racketeer Influenced and Corrupt Organizations Act (RICO) without conflicting with the doctrine.”

• “In analyzing this issue, it is important to note that the context of the Supreme Court's discussion in Cedric Kushner did not arise under 18 U.S.C. § 1962(d), which is the civil RICO conspiracy statute. Rather, it arose under 18 U.S.C. § 1962(c), which, by definition, requires a person and an enterprise.”

• “Thus, even though the Supreme Court has said that the intracorporate conspiracy doctrine does not apply to subsection (c), it left open the question of whether it applies to subsection (d) (the conspiracy statute), which is an issue that is currently the subject of a circuit split. See Broussard v. Meineke Discount Muffler Shops, 945 F. Supp. 901, 911 (W.D.N.C. 1996) (noting the split).”

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