RICO — Distinctiveness Requirement of § 1962(c) Held Unsatisfied Where Defendants = Constituents of Enterprise

From Pena v. International Union of Operating Engineers Local 150, 2009 U.S. Dist. LEXIS 62263 (N.D. Ill. July 21, 2009):

It is well-established that a RICO "person" must be distinct from the RICO "enterprise." Haroco, Inc. v. American National Bank & Trust Co. of Chicago, 747 F.2d 384, 400 (7th Cir. 1984). RICO prohibits defendant persons from conducting the affairs of an enterprise in a criminal or fraudulent manner. Ewing v. Midland Fin. Co., 1997 U.S. Dist. LEXIS 15694, 1997 WL 627644 (N.D.Ill. Sept. 26, 1997. Because the terms of RICO prohibit defendant persons from conducting the affairs of an enterprise in a criminal or fraudulent manner, the person must be a distinct and separate entity from the enterprise whose affairs it conducts. Richmond, 52 F.3d at 646. In order to satisfy the distinctness requirement, the RICO person must have committed the crime or fraud while conducting the enterprises' affairs, not merely its own business. Id. When a plaintiff seeks to hold a group of RICO persons liable, and that group is identical to the group making up the alleged enterprise, the RICO claim fails because the persons are not distinct from the enterprise. Brown, 549 F. Supp. 2d at 1030. In this case, the Plaintiffs allege that the Defendants are the RICO persons, as well as the enterprise.... Based upon the allegations in the Complaint, Count I fails to sufficiently plead that the Defendants conducted or participated in the conduct of the enterprise.

Whatever vitality this line of cases had before Boyle, it no longer exists. On this theory, Defendant Boyle could not have been prosecuted.

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