Commercial Litigation and Arbitration

Court Filing Fees and Contingent Future Losses ≠ RICO Injury

From Izenberg v. ETS Servs., 589 F. Supp. 2d 1193 (C.D. Cal. 2008):

Plaintiffs must … plead a concrete financial loss. See Forsyth, 114 F.3d at 1481. Plaintiffs allege that they have "been damaged in having to hire attorneys before bringing this action and [in] bring[ing] this action . . . and will have to incur attorneys['] fees to stop the wrongful acts" of defendants. Plaintiff also allege that, due to defendants' actions, their property may be subject to improper foreclosure in the future, and they may have to pay greater amounts than are in fact owed on their mortgage. Neither of these allegations suffices to establish a concrete financial injury.

As respects plaintiffs' claims regarding legal fees, the cost of filing a RICO action does not satisfy the concrete financial injury requirement. See Walter v. Palisades Collection, LLC, 480 F. Supp. 2d 797, 805 (E.D. Pa. 2007) ("Plaintiffs allege that they were forced to expend money on attorneys' fees to file the case sub judice. Clearly, any actions taken by Mr. Walter or his counsel to initiate or litigate the case sub judice cannot form the basis for RICO liability. It would be illogical to allow a plaintiff to have RICO standing based on damages incurred by the plaintiff in paying his attorney to file the RICO action. RICO's injury requirement would be a nullity if paying an attorney to initiate the RICO action itself sufficed as a damage").

Plaintiffs' remaining allegations involve prospective injuries — i.e., the possibility that they may, in the future, lose their property, have to pay more money than is owed on their mortgage, or incur additional attorneys' fees. Prospective injuries likewise do not satisfy RICO's concrete financial injury requirement. See Walter, 480 F. Supp. 2d at 804-05 ("Plaintiffs allege that they will be forced to expend money on attorneys' fees in the future to defend the state court lawsuits. These prospective damages are not actionable. RICO liability cannot attach to future contingent damages"); Frankel v. Cole, No. 06-CV-439 (CBA)(RER), 2006 U.S. Dist. LEXIS 96775, 2007 WL 5091074, *14 (E.D.N.Y. Apr. 20, 2007) ("[T]he alleged injury of lost business opportunities is too speculative to constitute a RICO injury. Courts have held lost business opportunities or commissions to be compensable where a plaintiff alleged that a business opportunity had already been lost as a result of the defendant's racketeering activity. Here, the alleged injury, if any, was prospective at the time the RICO predicate acts were committed" (citations omitted)). For this reason as well, therefore, plaintiffs' pleading of a RICO claim is deficient

See also Martinez v. Quality Loan Serv. Corp., 2009 U.S. Dist. LEXIS 21920 (C.D. Cal. Feb. 10, 2009) (“As respects plaintiff's claim for legal fees, the cost of filing a RICO action does not satisfy the concrete financial injury requirement”).

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