Commercial Litigation and Arbitration

RICO — Materiality Not an Element of Mail Fraud —Standing Need Not be Pled with Specificity

From Myrus Hack, LLC v. McDonald’s Corp., 2009 U.S. Dist. LEXIS 25765 (D.N.J. Mar. 27, 2009):

The Supreme Court teaches that "mail fraud requires two elements — (1) having devised or intending to devise a scheme to defraud (or to perform specified fraudulent acts), and (2) use of the mail for the purpose of executing, or attempting to execute, the scheme (or specified fraudulent acts)." Carter v. United States, 530 U.S. 255, 261 (2000). As a civil RICO predicate act, mail fraud does not require a showing of materiality. Bridge v. Phoenix Bond & Indem. Co., 128 S. Ct. 2131, 2139 (2008).


The Third Circuit has announced that a federal RICO claim requires a party to show standing through an injury that is "a concrete financial loss and not mere injury to a valuable intangible property interest." Maio v. Aetna, Inc., 221 F.3d 472, 483 (3d Cir. 2000) (quoting Steele v. Hospital Corp. of Am., 36 F.3d 69, 70 (9th Cir. 1994)). ***

[T]his Court finds that RICO standing need not be pled under Federal Rule of Civil Procedure 9(b). It is well-established in this Circuit that RICO itself need only be pled under Rule 8(a), and that Rule 9(b) applies only to RICO predicate acts that themselves require the higher pleading standard. See Zax Environmental, Inc. v. Plant Constr. Co., LLC, No. 06-1020, 2008 WL 2509759, at *2 (W.D. Pa. June 18, 2008).

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