Commercial Litigation and Arbitration

Party Directly Injured by RICO Violation Has Standing Even If It Is Not the Defendants’ Intended or Primary Victim

Plaintiff RWB in RWB Serv., LLC v. Hartford Computer Group, 2008 U.S. App. LEXIS 18142 (7th Cir. Aug. 25, 2008), complained that the defendants misappropriated used cameras in which the plaintiff had security interests and then resold the cameras as new to Wal-Mart, thus stealing from the plaintiff in order to defraud Wal-Mart. The district court dismissed the complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of standing, reasoning that (1) there was no basis to believe that the plaintiff would received the cameras back even if the defendant had not defrauded Wal-Mart with them (and the predicate acts harming Wal-Mart were essential to the RICO pattern), and (2) the plaintiff was not the "direct victim of Defendants' alleged scheme." The Seventh Circuit reversed, disagreeing with both conclusions:

[The Alleged Pattern.] To prove the "pattern of racketeering activity," RWB Services pointed to the violation of five of the statutes laid out or referenced in 18 U.S.C. § 1961(1) as predicate acts: the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1; 18 U.S.C. § 1341 (mail fraud); 18 U.S.C. § 1343 (wire fraud); 18 U.S.C. § 1344 (bank fraud); and 18 U.S.C. § 2314 (the interstate transportation of stolen or fraudulently obtained property). Four of these acts relate to the scheme to defraud Wal-Mart by selling repackaged cameras as new, consisting of the three claims of fraud and one of deceptive trade practices under Illinois law. The other act alleges the transportation of stolen or fraudulently obtained property across state lines, an act that relates to RWB Services' loss of its cameras. The parties do not dispute here that RWB Services has properly pled a "violation of section 1962."

The question on appeal is instead whether RWB Services showed that its injury occurred "by reason of" this alleged "violation." Such a showing proves the plaintiff's standing and is thus jurisdictional. ***

[But-For Causation & Counterfactual Inquiry.] First, RWB Services properly pled cause in fact. RICO's civil provision gives a cause of action for those "injured in his business or property by reason of a violation of section 1962." 18 U.S.C. § 1964(c). The question here is whether the plaintiff's injury would have occurred "but for" the "violation of section 1962." *** The typical question asked in determining cause-in-fact is counterfactual: would the claimed injury still have happened if the defendant had not engaged in the tortious conduct alleged? *** This inquiry is a straightforward one in the mine-run tort or negligence claim. ***

Under RICO, however, such a simple question is harder to ask. A defendant is liable for a "violation of section 1962," and such a "violation" consists of, among other things, a "pattern of racketeering activity," which in turn results from at least two predicate acts each with its own essential elements. The district court reasoned that, if the defendants had not obtained RWB Services' cameras in order to defraud its customers, they would have misappropriated the cameras anyhow or still refused to repay the loan. Or, in other words, but for the actions underlying a few of the predicate acts alleged — those four constituting the scheme to defraud Wal-Mart — RWB Services' injury would still have occurred. A literal application of the "but for" counterfactual could lead to this articulation of the standard; for it is undeniably true that but for the existence of the "pattern," or a predicate act, or its elements, there would be no "violation of section 1962."

[Entire-Violation Standard.] But we think the relevant question is instead whether the plaintiff's alleged injury would have resulted but for the entire "violation of section 1962." *** Although the plaintiff still must allege an injury resulting from one of the predicate acts, see Beck v. Prupis, 529 U.S. 494, 506 (2000), courts must examine these acts in the context of the entire "violation" when assessing factual causation. If a predicate act was sufficient to cause the plaintiff's injury and that predicate act was part of the entire "violation of section 1962," the plaintiff has pled causation.

Here, the allegations in the complaint are that the defendants developed a scheme to defraud Wal-Mart and other customers by stealing or fraudulently obtaining used cameras and reselling them as new. One part of the scheme consisted of defrauding Wal-Mart. *** The other part of the scheme consisted of obtaining the cameras. RWB Services alleges that the defendants "obtained the returned RWB cameras by fraud." *** These allegations relate to the last predicate act: the interstate transportation of stolen or fraudulently obtained property. 18 U.S.C. § 2314.

The district court did not question and the parties do not dispute that these two parts of the scheme collectively formed a "pattern," meaning they were related and in some sense ongoing. *** As a result, the part of the scheme concerning the acquisition of the cameras did not happen for just any reason. Instead, as alleged, the defendants took them precisely because of the need for the cameras in order to "violat[e] section 1962." And as the one whose property was allegedly stolen or fraudulently obtained as part of this "violation," RWB Services has pled the requisite causal connection between its injury--lost cameras--and the scheme.

[Direct Victim Satisfies Proximate Cause Requirement.] Second, we disagree that RWB Services' injury was not proximately caused by the "violation of section 1962. ***

[H]ere RWB Services was a direct victim of the alleged scheme, even if Wal-Mart was one as well. The existence of multiple victims with different injuries does not foreclose a finding of proximate cause; in fact, one of the hallmarks of a RICO violation is "the occurrence of distinct injuries" affecting several victims. *** In addition, the predicate act that RWB Services claims injured it — essentially fraud or theft of an interstate nature — has as its victims those who have their property stolen or fraudulently obtained; and here, that is RWB Services. *** Nor is it dispositive that the scheme envisioned defrauding Wal-Mart as well, who could also potentially bring a RICO claim. The existence of a "better" plaintiff is most relevant where the plaintiff alleges only an indirect injury. *** It will not otherwise be grounds for denying a claim to a plaintiff directly injured by one predicate act in the hopes that a different one will emerge. As alleged, the defendants robbed Peter to defraud Paul; the former is as foreseeable a plaintiff as the latter with as direct an injury. As a result, RWB Services properly alleged that the "violation of section 1962" proximately caused the loss of its cameras.

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