Rethinking Civil RICO: The Vexing Problem of Causation in Fraud-Based Claims Under 18 U.S.C. 1962(c)

To recover in a private action, the three-part structure of RICO demands proof of particularized crimes at two levels and civil standing to sue for those crimes. The interpretation and application of the standing requirement which arises from the statutes mandate that compensable injuries be caused by reason of acts of racketeering have bedeviled courts and litigants for decades. Recent developments in class action law have exacerbated the problem. As more and more courts have rendered it nearly impossible to certify classes asserting state-law claims, class plaintiffs have turned to uniform federal laws like RICO. But civil RICO claims can only be certified when common issues predominate, and these claims nearly always involve allegations of fraud. Because a plaintiff must be able to prove that the fraud caused its injuries, this often raises the specter of individualized reliance, which is in most cases sufficient to defeat certification. This article examines the issues of reliance and causation unique to RICO claims, considers how these issues bear on class determination, and suggests an analytical paradigm for assessing class certification of RICO fraud claims based on recurring fact patterns.

Rethinking Civil RICO: The Vexing Problem of Causation in Fraud-Based Claims Under 18 U.S.C. 1962(c) Academic Article