RICO Conspiracy Post-Bridge: Latecomer Liability for All Conspiracy-Caused Injury

The defendant in Grange Mut. Cas. Co. v. Mack, 2008 U.S. App. LEXIS 18467 (6th Cir. Aug 26, 2008), joined the conspiracy to defraud the plaintiff insurers after the plaintiffs suffered the harm for which they was suing. The district court dismissed on the ground that there was no causal connection between the defendant’s acts and the plaintiffs’ injuries. The Sixth Circuit reversed and remanded, holding that the analysis was correct under § 1962(c) but not necessarily correct under § 1962(d), in light of Bridge v. Phoenix Bond & Indem. Co., 128 S. Ct. 2131 (2008):

In Bridge v. Phoenix Bond & Indemnity Co., 128 S. Ct. 2131, 2145, 170 L. Ed. 2d 1012 (2008), the Supreme Court recently held that "a plaintiff asserting a RICO claim predicated on mail fraud need not show, either as an element of its claim or as a prerequisite to establishing proximate causation, that it relied on the defendant's alleged misrepresentations." While a plaintiff need not establish first-party reliance, she still must establish that the alleged violation was the cause (both "but for" and proximate) of her injury. Id. at 2141-42. Usually, this will require a showing of first or third-party reliance. Id. at 2144 ("In most cases, the plaintiff will not be able to establish even but-for causation if no one relied on the misrepresentation. . . . In addition, the complete absence of reliance may prevent the plaintiff from establishing proximate cause."). But Bridge did not change the overall standard for proximate cause. A plaintiff must still show that "the alleged violation led directly to the plaintiff's injuries." Id. at 2142 (quoting Anza, 547 U.S. at 461).

In this case, the district court treated plaintiffs' complaint as alleging that Mack violated both § 1962(c)'s substantive provision and the § 1962(d) conspiracy provision. It then determined that because the complaint failed "to plead facts demonstrating that [p]laintiffs' injuries were suffered in reliance on the fraudulent conduct of Mack or any conspiratorial acts after her joinder in the conspiracy" it could not conclude "that Mack's conduct was the proximate cause of [p]laintiffs' injuries."

Given that plaintiffs are no longer required to allege reliance following Bridge, we remand to the district court for consideration of whether plaintiffs have alleged facts establishing proximate cause for either a § 1962(c) or § 1962(d) violation. To establish proximate cause for a § 1962(c) violation, plaintiffs must allege that Mack's own violations of § 1962(c) led directly to plaintiffs' injuries. See Anza, 547 U.S. at 461. To establish proximate cause for a § 1962(d) violation, plaintiffs must allege that they were injured by reason of a conspiracy to violate § 1962(c)'s substantive provision. See Beck v. Prupis, 529 U.S. 494, 500, 507, 120 S. Ct. 1608, 146 L. Ed. 2d 561 (2000) (holding that to maintain a § 1964(c) claim predicated on a violation of § 1962(d), a plaintiff must be injured by an act of "racketeering or otherwise unlawful under the statute"). If plaintiffs can make this showing, the district court will need to further consider whether Mack can be held civilly liable for injuries caused by the conspiracy but occurring prior to Mack's joinder in the conspiracy.

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