Commercial Litigation and Arbitration

RICO — Whistleblower’s Firing Not Caused by RICO Violations about Which He Blew the Whistle

From Donnelli v. County of Sullivan, 2009 U.S. Dist. LEXIS 66994 (S.D.N.Y. July 31, 2009):

The gist of the plaintiffs' RICO claim is that the defendants were involved in an enterprise that entailed the purchase of heavy duty highway maintenance equipment in the name of Sullivan County and the illegal appropriation of such equipment for personal use and sale. The plaintiffs also appear to allege, pursuant to 18 U.S.C. § 1962(d), that the defendants conspired to participate in this enterprise.

The plaintiffs fail to state a RICO claim. First, the plaintiffs lack standing to bring a RICO claim. "[T]he reasonably foreseeable victims of a RICO violation are the targets, competitors and intended victims of the racketeering enterprise." Lerner v. Fleet Bank, N.A., 318 F.3d 113, 124 (2d Cir. 2003). "[C]ourts routinely find that . . . plaintiffs lack standing to bring a RICO claim, where the plaintiff's injuries are caused not by the RICO violations themselves, but by the exposure of those acts, or where the plaintiff seeks to recover for injuries caused by his refusal to aid and abet the violations." Hollander v. Flash Dancers Topless Club, 340 F. Supp. 2d 453, 459-60 (S.D.N.Y. 2004). The plaintiffs have not explained how the injury they have alleged - the forced resignation of Mr. Donelli - was caused by the defendants' alleged appropriation of highway equipment. There is no allegation that Mr. Donelli was the target, competitor, or intended victim of the alleged racketeering enterprise. The apparent target or victim of the alleged conspiracy was Sullivan County, from which equipment was allegedly stolen. The only allegation of a causal link between the alleged enterprise and the forced resignation is that the defendants forced Mr. Donelli to resign because he would not keep quiet about the corruption in the Department. Put another way, the only causal allegation is that Mr. Donelli was forced to resign because he blew the whistle on the alleged enterprise and refused to participate in the alleged enterprise. However, allegations of injuries resulting from whistle blowing and non-participation in an enterprise are insufficient to confer standing for a civil RICO claim. See Hecht v. Commerce Clearing House, Inc., 713 F. Supp. 72, 75 (S.D.N.Y. 1989), aff'd, 897 F.2d 21 (2d Cir. 1990); Burdick v. Am. Express Co., 677 F. Supp. 228, 229-30 (S.D.N.Y. 1988). Because the only plausible causal connection between the alleged enterprise and the alleged injury is insufficient to support standing, the plaintiffs lack standing for their civil RICO claim.

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