RICO: Corporation + Subsidiaries + Affiliates + Customers + Independent Contractors + Regulators ≠ Enterprise

From Shields v. UnumProvident Corp., 2011 U.S. App. LEXIS 5611 (6th Cir. Mar. 17, 2011):

In interpreting RICO, courts have applied a "distinctness" requirement, which requires the "person" charged with violating RICO be a separate entity from the "enterprise." See Begala v. PNC Bank, Ohio, 214 F.3d 776, 781 (6th Cir. 2000). Under this requirement, a corporation may not be liable under § 1962(c) for participating in the affairs of an enterprise that consists only of its own subdivisions, agents, or members. *** Thus, "[a]n organization cannot join with its own members to undertake regular corporate activity and thereby become an enterprise distinct from itself."

The Plaintiffs fail to adequately plead the existence of an "association in fact" RICO enterprise. See id. In their complaint, the Plaintiffs identify Unum as the "person," with an "enterprise" consisting of "[Unum's] various subsidiaries, affiliates, wholly owned companies, customers, policy holders, claimants, independent contractors, and governmental and nongovernmental regulators." As in Begala, "the complaint essentially lists a string of entities allegedly comprising the enterprise, and then lists a string of supposed racketeering activities in which the enterprise purportedly engages." Id. The complaint is devoid of facts suggesting that the behavior of the listed entities is "coordinated in such a way that they function as a continuing unit." See id. Rather, the Plaintiffs' allegations appear to relate only to Unum's alleged bad faith claim handling. Yet a corporation cannot become an enterprise distinct from itself for RICO purposes. See id. Accordingly, the Plaintiffs fail to state a RICO claim.

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