Use case statement orders to pump-up RICO pleadings

September 19, 2014

stack of file foldersPleading deficiencies pop up in opinion after opinion in civil RICO cases. So, why not tackle the problem head on, at the filing stage?

Consider filing a simultaneous motion for entry of a RICO case statement order.

Dean Browning Webb — a RICO litigator and long-time contributor to West’s Civil RICO Report — often promotes such a practice, and here’s why.

First, he says, consider the nature of civil RICO litigation.  The RICO Act’s complexity makes pleading issues infinitely more difficult.

A RICO plaintiff confronts the task of satisfying a multifaceted pleading threshold to comply with Fed. R. Civ. P. 9(b), along with companion federal rules on practice and procedure.

Generally, a motion for judgment on the pleadings must be based on those pleadings, and not on additional evidence submitted by any party.  But when courts rule on whether plaintiffs have sufficiently pleaded a RICO claim, they consider as true the facts alleged in the complaint, as supplemented by the plaintiffs’ RICO case statement.

In fact, some federal courts include RICO case statement standing orders, and individual federal judges routinely enter such orders at the outset of case.

A few courts specifically include such a mechanism within the local rules.  In those jurisdictions, a litigant initiating a racketeering action is required to respond to such order or local rule by submitting a written response specifically addressing the many components that comprise a RICO claim.

By filing a motion to enter a case statement order at the outset of the case, the RICO practitioner has the opportunity to submit evidentiary factual analysis — combined with legal analysis of materially relevant federal decisional authorities — to demonstrate the strength of their RICO claims.

The practical advantage is that it conveys to the federal court that by entering a RICO case statement order, the litigant will respond with both factual material and legal analysis supporting the RICO case in each of the statutory elements that comprise a claim.  Moreover, the litigant can advance the motion in the context of supplementing the RICO complaint for purposes of Rules 9(b) and 11.

It is Webb’s view that any defendant would be hard-pressed to oppose such a motion.