Advancing and Defending Civil RICO Claims

In 1970, Congress enacted the Racketeer Influenced and Corrupt Organizations Act, aka RICO, codified at 18 U.S.C. § 1961 et. seq. RICO imposes severe criminal penalties on any person who participates in an organized and sustained group that exists for criminal purposes. 

Over recent decades, RICO has evolved beyond a tool used by prosecutors to fight organized crime. Private litigants have increasingly leveraged RICO in civil litigation to open the door to monetary remedies not typically available under ordinary business torts, including treble damages and attorney’s fees. 

For this reason, businesses and individuals must understand how RICO works, how to protect against it, and, if you are the victim of a RICO scheme, how to vindicate your rights. This article provides the starting point for that understanding. While the exact requirements for litigating a RICO claim depend on jurisdiction and the facts at hand, this article will discuss RICO’s text and certain United States Supreme Court and Ninth Circuit authority expanding on some of the key elements necessary for litigating a civil RICO claim. Where practicable, this article will also identify some basic and obvious practice pointers.

RICO’s Prohibited Activities (18 U.S.C. § 1962)

As written, RICO prohibits four activities, each of which is codified at 18 U.S.C. § 1962(a) through § 1962(d). Put simply, these prohibitions impose liability on any person who:

1. Uses or invests income derived from a pattern of racketeering activity to acquire an interest in or to operate an enterprise engaged in interstate commerce (18 U.S.C. § 1962(a)); 

1. Acquires or maintains an interest in or control of such an enterprise through a pattern of racketeering activity (18 U.S.C. §1962(b)); 

1. Being employed by or associated with such an enterprise, conducts or participates in the conduct of its affairs through a pattern of racketeering activity (18 U.S.C. § 1962(c)); or 

1. Conspires to engage in any of the above-prohibited activities (18 U.S.C. § 1962(d)). 

See H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 232–33 (1989).

Given the prevalence of civil claims brought under 18 U.S.C. § 1962(c), this article will focus on the elements necessary to substantiate a claim under that subsection.

RICO Statutory Standing (18 U.S.C. § 1964)

As a threshold matter, though, a plaintiff must show that he or she maintains statutory standing under 18 U.S.C. § 1964. That section provides a private cause of action for “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter.” 18 U.S.C. § 1964(c). As indicated by its text, this provision requires that the private litigant establish (1) an injury to plaintiff’s “business or property” and (2) that such injury occurred “by reason of” the subject violation.

Injury to Business or Property

In Medical Marijuana, Inc. v. Horn (2025), the Supreme Court recently explained that the “business or property” requirement “operates with respect to the kinds of harm for which the plaintiff can recover, not the cause of the harm for which he seeks relief.” 604 U.S. 593, 601 (italics in the original). To show actionable injury in the Ninth Circuit, a plaintiff must identify (1) harm to a specific property interest cognizable under state law that (2) resulted in concrete financial loss. See Glob. Master Int'l Grp., Inc. v. Esmond Nat., Inc., 76 F.4th 1266, 1274 (9th Cir. 2023). 

Such harms exclude “harm to one’s person.” Medical Marijuana, Inc. v. Horn, 604 U.S. 593, 601 (2025). And, at least in the Ninth Circuit, courts are clear that injuries to intangible property interests are not recoverable under RICO. Chaset v. Fleer/Skybox Int’l, LP, 300 F.3d 1083, 1086–87 (9th Cir. 2002).

As a practice pointer, then, a plaintiff should anchor his or her RICO claim around all non-speculative financial loss suffered because of the alleged misconduct. A RICO defendant should, on the other hand, work to identify and call out any non-financial harm on which the RICO plaintiff premises his or her claim.

Proximate Causation

The Supreme Court has ruled that RICO’s “by reason of” condition requires that plaintiff show a direct proximate causal relationship between the alleged racketeering activity and claimed harm. This requirement can be exacting, as “the general tendency of the law, in regard to damages at least, is not to go beyond the first step.” Hemi Grp., LLC v. City of New York, N.Y., 559 U.S. 1, 9-10 (2010). Stated differently, then, this requirement generally demands that not more than a single step separate the alleged misconduct from the claimed harm—meaning that the immediate cause of a plaintiff’s alleged harm should be the defendant’s alleged misconduct. As put by the Supreme Court in Hemi Group, “a link that is ‘too remote,’ ‘purely contingent,’ or ‘indirect’ is insufficient.”

To guide whether there is a sufficiently direct relationship between the alleged misconduct and harm, the Supreme Court has also set forth a handful of indicia, namely:

1. Difficulty in determining the portion of alleged harm attributable to the alleged misconduct (versus other independent factors);

1. Need for complicated rules to apportion damages among plaintiffs at different levels of injury from the alleged misconduct (to obviate the risk of multiple recoveries); and 

1. The existence of more direct victims likely to vindicate the law.

See Holmes v. Securities Investor Protection Corp., 503 U.S. 258 (1992).

Of course, whether a plaintiff can satisfy RICO’s proximate causation requirement depends on the facts of the underlying dispute. To the extent possible, a RICO plaintiff should aim to tighten the nexus between the alleged misconduct and harm while a RICO defendant should try to put as much distance as possible between those events.

For an example of a sufficiently tight proximate causal relationship, a RICO plaintiff should review the Supreme Court’s decision in Bridge v. Phoenix Bond & Indemnity Co., 553. U.S. 639 (2008). A RICO defendant, on the other hand, should look to Holmes v. Securities Investor Protection Corp., 503 U.S. 258 (1992), Anza v. Ideal Steel Supply Corp., 547 U.S. 451 (2006), and Hemi Group, LLC v. City of New York, N.Y., 559 U.S. 1 (2010) for examples of the sorts of causal relationships that are not sufficient to support a RICO claim. 

RICO’s Prima Facie Elements (18 U.S.C. § 1962(c))

To substantiate a claim under Title 18 U.S.C. § 1962(c), a plaintiff must show that a defendant participates in (1) the conduct of (2) an enterprise that affects interstate commerce (3) through a pattern (4) of racketeering activity or collection of unlawful debt. See Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 997 (9th Cir. 2014).

Racketeering Activity (aka Predicate Acts)

Racketeering activity includes any act indictable as a specified state law crime or federal statutory offense. 18 U.S.C. § 1961(1). RICO enumerates which crimes and offenses qualify. Qualifying state crimes include extortion and bribery. Qualifying federal offenses range, including bribery (violation of 18 U.S.C. § 201), economic espionage/trade secret theft (violation of 18 U.S.C. §§ 1831, 1832), and obstruction of justice (violation of 18 U.S.C. § 1503). In the business litigation context, perhaps the most often litigated racketeering activities are mail fraud (18 U.S.C. § 1341) and wire fraud (18 U.S.C. § 1343). A defendant’s alleged violations of a qualifying crime or offense is often interchangeably referred to as a “predicate act.” 

Of course, to show racketeering activity, a plaintiff must establish the underlying elements for the predicate act. Thus, where the racketeering activity depends on defendant’s alleged mail/wire fraud, plaintiff must show (1) a scheme to defraud, (2) the use of either the mail or wire, radio, or television to further the scheme, and (3) the specific intent to defraud. United States v. Brugnara, 856 F.3d 1198, 1207 (9th Cir. 2017). Like any fraud claim, a civil RICO claim predicated on fraud must also satisfy Federal Rule of Civil Procedure 9(b)’s time, place, and manner particularity requirement. Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 405 (9th Cir. 1991).

As a practice pointer, a RICO plaintiff should clearly delineate all fraudulent acts or statements, identify which defendant engaged in those misrepresentations, and offer any helpful specifics surrounding them. A RICO defendant should, by contrast, carefully assess whether any of the subject misrepresentations qualify as non-actionable as a matter of law (e.g., opinion or puffery).

Enterprise

An enterprise “includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). RICO plaintiffs often rely on the “associated in fact” portion of this definition. The Supreme Court has ruled that, to show a so-called “associated in fact enterprise,” a plaintiff must allege that the proffered perpetrators maintain (1) a common purpose, (2) a structure or organization, and (3) longevity necessary to accomplish the purpose. Boyle v. United States, 556 U.S. 938, 946 (2009). The Supreme Court has explained that “the very concept of an association in fact is expansive.” 556 U.S. at 944.

At core, these requirements demand that a plaintiff show that, for a sufficient duration, the purported enterprise’s various actors organize and function as a continuing unit commonly aimed at engaging in a course of conduct. As put by the Supreme Court, an association-in-fact enterprise:

Need not have a hierarchical structure or a chain of command; decisions may be made on an ad hoc basis and by any number of methods—by majority vote, consensus, a show of strength, etc. Members of the group need not have fixed roles; different members may perform different roles at different times. The group need not have a name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies.

Boyle, 556 U.S. at 948. 

As a practice pointer, while a RICO plaintiff need not proffer these indicia, doing so may greatly strengthen the plaintiff’s enterprise showing. On the other hand, a RICO defendant should identify any directly inconsistent interests between and among the proffered group members to defeat a common purpose showing.

Finally, the Supreme Court has ruled that an enterprise may include both legitimate legal entities and illegal organizations. See e.g., United States v. Turkette, 452 U.S. 576, 580-81 (1981). Also, the Supreme Court has recognized that a RICO enterprise must be distinct from the defendant actor, Cedric Kushner Promotion Ltd., v. King, 533 U.S. 158, 160-162 (2001), and has specified that the enterprise itself must exist separate and apart from the alleged pattern of racketeering activity, Turkette, 452 U.S. at 583. That said, a RICO plaintiff may rely on pattern evidence to also show an enterprise because the two elements “may in particular cases coalesce.” Id.

Conduct

A plaintiff must also show that, in some way, each defendant directed in the enterprise’s operations. Reves v. Ernst & Young, 507 U.S. 170, 179 (1993). To show such conduct, plaintiff need not show that defendant held a formal position. Id. A RICO plaintiff also need not show that defendant was a senior member of the enterprise because, as put by the Supreme Court in Reves, “[a]n enterprise is ‘operated’ not just by upper management but also by lower rung participants in the enterprise who are under the direction of upper management.” 507 U.S. at 184. 

As a practice pointer, a RICO plaintiff should generally consider naming every perpetrator with a material (and intentional) role in alleged misconduct. Still, to maintain credibility, the RICO plaintiff should nonetheless take care not to overreach.

Pattern

To show a “pattern” of racketeering activity, plaintiff must show that each defendant engaged in at least two predicate acts of racketeering activity and that the most recent act occurred within ten years of the prior such act. 18 U.S.C. § 1961(5). A plaintiff must also show that the predicate acts are (1) related and (2) continuous. See H.J. Inc., 492 U.S. at 239. As noted, courts recognize that while these two elements are conceptually distinct, evidence of each may, in practice, overlap. H.J. Inc., 492 U.S. at 239.

Relatedness – To show relatedness, plaintiff must show a relationship between and among the predicate acts. As set forth by the Supreme Court in H.J. Inc., indicia of relatedness include whether the acts had the same or similar purposes, results, participants, victims, or methods of commission, or were interrelated by distinguishing characteristics. 492 U.S. at 240. As a practice pointer, a RICO plaintiff should aim to identify and emphasize the parallels and features shared by all predicate acts. A RICO defendant, on the other hand, should try to frame such acts as isolated events. 

Continuity – Under RICO, continuity comes in two forms: (1) open-ended and (2) close-ended. The Supreme Court in H.J. Inc. defined open-ended continuity as “past conduct that by its nature projects into the future with a threat of repetition,” whereas close-ended continuity is “a closed period of repeated conduct.” 492 U.S. at 241. 

The focus on open-ended continuity is whether plaintiff can show a threat of continued racketeering activity, which, as the Supreme Court has emphasized, “depends on the specific facts of each case.” 492 U.S. at 242. A plaintiff may show closed-ended continuity by proving a series of related predicates that extend over a substantial period of time. 492 U.S. at 241. Such duration cannot be met by predicate acts extending only “over a few weeks or months.” 492 U.S. at 242. 

Remedies

As stated, a RICO plaintiff may recover treble damages, attorney’s fees, and costs. 18 U.S.C. § 1964(c). In some jurisdictions (particularly the Ninth Circuit), a RICO plaintiff may not obtain private injunctive relief. Religious Technology Center v. Wollersheim, 796 F.2d 1076, 1088-89 (9th Cir. 1986). This bar, however, does not prevent a government enforcer from obtaining public injunctive relief under RICO. See 18 U.S.C. § 1964(b).

Bona Law Experience with Civil RICO Claims

If you believe you or your business has been the victim of organized criminal activity (including fraud), or has recently been named as a civil RICO defendant, contact Bona Law. Its attorneys have substantial experience litigating civil RICO claims. 

In January 2026, for example, Bona Law successfully moved the United States District Court for the District of Oregon (Hon. Michael Simon) to dismiss a civil RICO counterclaim against Bona Law client PharmacyChecker, Inc.