Second Circuit Offers Primer on Extraterritoriality Issues in Civil RICO Litigation

Bascunan v. Elsace, ___ F.3d ___, 2017 WL 4872400 (2d Cir., Oct. 30, 2017)

The Second Circuit reversed, in part, a lower court decision granting a motion to dismiss in which plaintiff, a citizen and resident of Chile and entities owned and controlled by citizen brought civil RICO action against his cousin, who was also citizen and resident of Chile, and the cousin’s employees and corporate entities, alleged the cousin had power of attorney over his finances and stole millions of dollars from him through several fraudulent financial schemes.

Of the four schemes analyzed, two were found to constitute “domestic injury,” and thus provide standing to Plaintiff.

As a matter of first impression, in the Second Circuit and elsewhere, the court analyzed the Supreme Court decision in RJR Nabisco to consider whether the RICO statute applies extraterritorially. The Court determined, as an initial matter, that “[t]he question of RICO’s extraterritorial application really involves two questions”: (1) “do RICO’s substantive prohibitions, contained in § 1962, apply to conduct that occurs in foreign countries?” and (2) “does RICO’s private right of action, contained in § 1964(c), apply to injuries that are suffered in foreign countries?” In answering both questions, the Court applied the presumption against extraterritoriality.

With respect to the first question, the Court held that “RICO applies to some foreign racketeering activity,” explaining that “[a] violation of § 1962 may be based on a pattern of racketeering that includes predicate offenses committed abroad, provided that each of those offenses violates a predicate statute that is itself extraterritorial.”

On the second question, the one directly relevant to this appeal, the Court concluded that a plaintiff must allege a domestic injury. In answering the second question, the Court made a point of separately applying the presumption against extraterritoriality to Section 1964(c). Nevertheless, the Supreme Court stated that the “domestic injury” requirement of Section 1964(c)—more specifically, the fact that RICO’s private right of action lacks language expressly providing recovery for injuries to foreign persons—“does not mean that foreign plaintiffs may not sue under RICO.”

Ultimately, because the plaintiffs had stipulated that they waived their damages claims for any domestic injuries, the Court did not explain how to identify a “domestic injury” and noted only that “[t]he application of this rule in any given case will not always be self-evident, as disputes may arise as to whether a particular alleged injury is ‘foreign’ or ‘domestic.’ ”

Based on this sparse guidance, the Court did not indicate what factors a court should examine to determine whether a plaintiff’s alleged injury is foreign or domestic. If a plaintiff alleges more than one “injury,” courts should separately analyze each injury to determine whether any of the injuries alleged are domestic. If one of the alleged injuries is domestic, then the plaintiff may recover for that particular injury even if all of the other injuries are foreign.

Schemes Not Found to Have Caused “Domestic Injury”

Based on the above, the Second Circuit analyzed each fraud scheme, and concluded first that two schemes, i.e., the Dividend Scheme and the General Anacapri Investment Fraud Scheme, failed to allege a “domestic” injury, as the only domestic element alleged is that Defendant Elsaca transferred these foreign funds to his own accounts in New York, and Elsaca laundered stolen money using bank accounts in the United States and elsewhere.

The Second Circuit ultimately concluded that an injury to tangible property is generally a domestic injury only if the property was physically located in the United States, and that a defendant’s use of the U.S. financial system to conceal or effectuate his tort does not, on its own, turn an otherwise foreign injury into a domestic one. The court thus held that the use of bank accounts located within the United States to facilitate or conceal the theft of property located outside of the United States does not, on its own, establish a domestic injury. In addition, and importantly, the court stated that these injuries did not arise from any preexisting connection between Bascuñán and the United States. To allow such a plaintiff to recover treble damages would thus “unjustifiably permit [foreign] citizens to bypass their own [nation’s] less generous remedial schemes.”

Schemes Finding “Domestic Injury”

The Second Circuit did hold that two other schemes constituted domestic injury, i.e., when certain property—although belonging to a foreign owner—was located within the United States when it was stolen. Thus, the District Court erred in holding that these schemes caused only foreign injuries. Thus, when Defendant Elsaca misappropriated funds held in a New York bank account at J.P. Morgan this scheme was to involve the misappropriation of tangible property located within the United States. Where the injury is to tangible property, the court concluded that, absent some extraordinary circumstance, the injury is domestic if the plaintiff’s property was located in the United States when it was stolen or harmed, even if the plaintiff himself resides abroad. it ensures that both foreign and domestic plaintiffs can obtain civil RICO’s remedy for damage to their property, but only if their property was located within the territorial jurisdiction of the United States. In so doing, it protects the interest each sovereign has in regulating the private property situated in its own territory without extending the reach of American law or discriminating against foreign plaintiffs. Accordingly, the Second Circuit stated that its holding reduces the possibility of international discord. Id. * 11.

The Second Circuit stated that, to be clear, it did not hold that a plaintiff’s place of residence is never relevant to the domestic injury inquiry required by RJR Nabisco. A plaintiff’s residence may often be relevant—perhaps even dispositive—in determining whether certain types of business or property injuries constitute a domestic injury. But with respect to the particular type of property injury alleged here—the misappropriation of Bascuñán’s trust funds from a specific bank account located in the United States—the court concluded that the location of the property and not the residency of the plaintiff is the dispositive factor.

Regarding the second scheme, the BCI Share Theft scheme, the court found that the misappropriation of the bearer shares, located in a safety deposit box in New York, also constitutes the misappropriation of tangible property, and thus a “domestic injury” within the meaning of the civil RICO statute.

Ed Note: This detailed opinion provides a primer on interpreting factual scenarios involving whether a Plaintiff has standing when there is a question as to whether there is “domestic injury.”

David J. Stander is a civil RICO Attorney who focuses on complex issues involved in civil RICO litigation.

 

Advertisements

Ninth Circuit Reverses and Allows Plaintiff to File Third Amended Civil RICO Complaint

Mai Mgoc Bui v. Ton Phi Nguyen, 2017 WL 4653438 (9th Cir. 10/17/17)

The Court reversed and remanded with instructions so that plaintiff Bui would have another opportunity to amend her complaint. The district court found that Bui’s SAC failed to sufficiently allege each element.

First, the Court found that Bui’s SAC sufficiently pleads the existence of such an enterprise. First, Bui alleges that Defendants had a “scheme to plunder millions of dollars from Mrs. Bui,” and that Defendants “accomplished this plunder of Mrs. Bui’s money by means of deliberate, calculated and malicious legal acts, including actual fraud, wire fraud and forgery.” As evidenced by the SAC’s allegations, this scheme required a common purpose to carry out. Second, the SAC pleads a sufficient “structure or organization,” because, although the SAC alleges that Hung Tran (Hung) and Lan Bich Nguyen (Lan) functioned as the primary actors, the corporate entities controlled by others, and the property transactions facilitation by them, formed a cohesive part of the group Bui alleges defrauded her. Finally, the SAC sufficiently alleges longevity necessary to accomplish the enterprise’s purpose, as it alleged that the Nguyen family operated other fraudulent schemes in the past, which interacted with the instant allegation. As such, the district court erred by concluding that Bui had failed to sufficiently plead the existence of an “enterprise.”

Second, a RICO claim must adequately plead at least “two acts of racketeering activity,” which, in this case, are wire and mail fraud. 18 U.S.C. § 1961(5). Bui alleges four wire transfers and one mailing as the necessary predicate acts of wire and mail fraud, but the district court concluded that, at most, only one of the alleged transfers was wire fraud. The Court disagreed finding that three of the alleged transfers sufficiently plead three instances of wire fraud.

The Court further stated that even if the three instances of alleged wire fraud may not provide a sufficient “pattern,” we cannot say that the amendment would be futile and would contradict the Chodos factors at this motion to dismiss stage of the action. There may be additional facts and legal theories that could be incorporated into a Third Amended Complaint which, as required by the Federal Rules, “[t]he court should freely give … when justice so requires.” Fed. R. Civ. P. 15(a)(2).

Ed Note: There are two major takeaways here: (1) the Court will liberally construe amendments of civil RICO complaints; (2) the Court will reverse even if the district court erred on the threshold issue of finding two acts, without necessity to find whether other elements, such as “pattern of racketeering activity” have been adequately alleged.

 

Second Circuit Rules Liability for Only RICO conspiracy Not Inconsistent

Ruocco v. Hemmerdinger Corporation, 2017 WL 4387184 (2d Cir., Oct. 10, 2017)

The Court affirmed the denial of Defendants Ruocco and Tomicic’s post-trial motions for judgment as a matter of law or a new trial after a jury had found the Defendants liable under RICO conspiracy.

Hemmerdinger sued the Defendants for state law fraud (“Claim One”), a substantive claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c) (“Claim Two”), and a claim for conspiracy to violate RICO, § 1962(d) (“Claim Three”). The jury found Tomicic and McCambridge liable for fraud (Claim One), and concluded that Ruocco, ETI, Tomicic, and Recycle Technology had participated in a RICO conspiracy (Claim Three), but NOT Claim Two. The court entered judgment on June 6, 2016. Ruocco, ETI, and Tomicic then filed post-trial motions for judgment as a matter of law and a new trial. When these motions were denied, Ruocco and Tomicic filed a timely notice of appeal.

On appeal, Ruocco and Tomicic argued that the jury verdict was inconsistent, and that the district court’s jury instruction as to the RICO conspiracy claim (Claim Three) was flawed because the jury did not find on Claim Two (1962(c)) that a civil enterprise existed among the defendants. The jury had found there was an agreement among two or more persons to participate in an enterprise that would affect interstate commerce through a pattern of racketeering activity and thus had found liability as to Claim Three (RICO conspiracy).

Defendants also asserted that a jury may not find defendants liable for a RICO conspiracy after it has expressly found that a RICO “enterprise” does not exist. Ruocco and Tomicic argued, in addition, that a RICO conspiracy claim cannot succeed unless at least one defendant is found liable for a substantive RICO offense, so finding liability for Claim Three (§ 1962(d), RICO conspiracy) but not Claim Two (§ 1962(c), a substantive RICO offense) is inconsistent. This claim was rejected.

The trial judge had answered a question during deliberations in the affirmative that

“are claim two and claim three independent of each other as in the defendants can be found guilty of claim three, irrespective of the outcome of claim two?”

Even Ruocco’s attorney had agreed that the answer was yes, and no other party objected.

Ruocco and Tomicic both acknowledged that the instruction to which they object is taken from Leonard B. Sand, et al., Modern Federal Jury Instructions, CIVIL, # 84–35 (Lexis 2016), and that they did not raise this challenge either during the district court’s charge conference or in their post-trial motions.

Thus, the court found the district court did not err in setting aside the verdict as
inconsistent, and that “endorsement [of a jury charge] might well be deemed a true waiver, negating even plain error review.” The Court did not find the verdict to be inconsistent, and Defendants/Appellants’ second attack on the consistency of the jury verdict was waived.

The Court stated that it has held that when, as here, a trial court based jury instructions on pattern jury instructions that reflect current law, there is no plain error. The Modern Federal Jury Instructions supplied the very language that Ruocco and Tomicic now object to, and they have not cited any authority that plainly shows the Modern Federal Jury Instructions were incorrect.

Ed Note: This case importantly stands for the proposition, even without considering waiver by Defendants/Appellants that a defendant can be found liable under RICO conspiracy irrespective of the outcome of substantive RICO claim.

 

 

Second Circuit States Position Regarding Legal Entity RICO Persons and “Distinctness;” Reaffirms Kushner when RICO Person/Defendant is An Individual

U1it4less, Inc. v. Fedex Corporation, ___ F.3d ___, 2017 WL 4103869 (Sept. 18, 2017)

In this important case, the Second Circuit affirmed the lower court’s granting of Defendant FedEx’s summary judgment motion which dismissed the Plaintiff U1it4less (BikerGear) substantive RICO claims because BikerGear failed to adduce evidence that FedEx Corp. and FedEx Services, corporate entities, the alleged RICO “persons,” are distinct from FedEx Ground, the alleged RICO “enterprise.”
BikerGear, an internet retailer of motorcycle gear, accused FedEx Corporation and its subsidiaries FedEx Corporate Services, Inc. and FedEx Ground Package System, Inc. of fraudulently marking up the weights of packages shipped by BikerGear and overcharging BikerGear for Canadian customs.
District Court
Judge Forrest held that the mere fact of separate incorporation was not enough to satisfy the requirement that the RICO “person” and “enterprise” be distinct. In addition, Judge Forrest concluded that BikerGear’s RICO claims required a showing that the separate incorporation of FedEx Ground facilitated the racketeering enterprise allegedly run by FedEx Corp. and FedEx Services. Because the evidence showed only that BikerGear “interacted with FedEx Ground and FedEx Services precisely as it would have had those sister subsidiaries in fact been divisions of a single FedEx corporation,” Judge Forrest concluded that there was “no genuine question as to whether FedEx Corp. and FedEx Services are distinct from FedEx Ground for purposes of the RICO claims.”
Second Circuit Analysis of Distinctness
Though Congress initially enacted the RICO statute to target organized crime, the Supreme Court in Cedric Kushner, 533 U.S. at 164, has since identified the statute’s basic purposes as “both protect[ing] a legitimate ‘enterprise’ from those who would use unlawful acts to victimize it and also protect[ing] the public from those who would unlawfully use an ‘enterprise’ (whether legitimate or illegitimate) as a vehicle through which unlawful activity is committed.” Id., at *4 (emphasis added). (the “victim” and “vehicle” criterions). Note: Usually, this means that a legal entity is the enterprise which is victimized, and the association in fact which is used as the vehicle.

BikerGear argued that the mere fact of separate legal incorporation satisfies the distinctness requirement under Section 1962(c). The court disagreed stating that because “a corporate person cannot violate the statute by corrupting itself,” Cruz v. FXDirectDealer, LLC, 720 F.3d 115, 120 (2d Cir. 2013) (citing Bennett, 770 F.2d at 315), so “if a corporate defendant can be liable for participating in an enterprise comprised only of its agents—even if those agents are separately incorporated legal entities—then RICO liability will attach to any act of corporate wrong-doing and the statute’s distinctness requirement will be rendered meaningless.” Id., at *5, citing to In re ClassicStar Mare Lease Litig., 727 F.3d 473, 492 (6th Cir. 2013) (citing Riverwoods Chappaqua Corp. v. Marine Midland Bank, N.A., 30 F.3d 339, 344 (2d Cir. 1994)).

Accordingly, a plaintiff [corporate entity] may not circumvent the distinctness requirement “by alleging a RICO enterprise that consists merely of a corporate defendant associated with its own employees or agents carrying on the regular affairs of the defendant,” Riverwoods, 30 F.3d at 344—that consists, in other words, of a corporate defendant “corrupting itself,” Cruz, 720 F.3d at 120.

The Second Circuit noted that the principle in Discon and Cruz has its limits and “does not foreclose the possibility of a corporate entity being held liable … where it associates with others to form an enterprise that is sufficiently distinct from itself.” Riverwoods, 30 F.3d at 344; Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 263–64 (2d Cir. 1995). Thus, among other things, because BikerGear presented no evidence showing that any FedEx entity operated outside of a unified corporate structure guided by a single corporate consciousness. See Cruz, 720 F.3d at 121.

BikerGear’s argument that Discon and Cruz are distinguished because the alleged RICO enterprises in those cases were associations-in-fact comprised of all the defendant corporations combined, while the alleged enterprise here is a discrete subsidiary was viewed as “immaterial.”

Cedric Kushner

This Supreme Court case was distinguished as the Second Circuit stated that in Cedric Kushner the Supreme Court emphasized that its holding was limited to the circumstances in which “a corporate employee unlawfully conducts the affairs of the corporation of which he is the sole owner—whether he conducts those affairs within the scope, or beyond the scope, of corporate authority.” Id. at 166, 121 S.Ct. 2087. As for both corporate employees and corporate entities, the Supreme Court suggested, Congress had in mind the “protect[ion of] the public from those who would run organizations in a manner detrimental to the public interest.” Id. at 165, 121 S.Ct. 2087 (quotation marks omitted).

The Second Circuit stated that the Court in Kushner described its earlier decisions relating to the distinctness issue (for example, Discon) as “significantly different”—a strong signal that it was not addressing cases in which, as here in BikerGear, a corporate person conducts the affairs of an enterprise consisting only of corporate members of its wholly-owned corporate family. Id. at 164, 121 S.Ct. 2087; see also Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1356 (11th Cir. 2016); ClassicStar Mare, 727 F.3d at 492.

Finally, the Second Circuit noted that in analogous contexts the majority of its sister circuits appear to agree that the fact of separate incorporation alone fails to satisfy RICO’s distinctness requirement. Id.,at *7 , citing cases.

Ed Note:   David J. Stander is an Attorney who focuses his practice on civil RICO. It is important to note that the holding only addressed RICO persons who are “corporate entities,” while the court distinguished the holding of Kushner in which the Supreme Court emphasized that its holding was limited to the circumstances in which “a corporate employee unlawfully conducts the affairs of the corporation of which he is the sole owner—whether he conducts those affairs within the scope, or beyond the scope, of corporate authority.” Id. at 166, 121 S.Ct. 2087. Clearly, such a “corporate employee” who operates his P.C. through fraud is running the “an organization in a manner detrimental to the public interest.”

 

District Court Ignores Supreme Court in Boyle Dismissing a Civil RICO Complaint

Illinois Farmers Ins. Co. v. Guthman et al., 2017 WL 3971867 (D. Minn. 9/7/17)

The court dismissed the Plaintiff’s civil RICO claims finding that the alleged association in fact enterprise was not “separate and apart” or distinct from the pattern of racketeering activity.  Here, plaintiffs allege that Defendants Guthman, Steiner, their clinics, and the runners violated RICO by associating with each other to achieve the purpose of billing and receiving improper no-fault benefit payments.

In relying on, principally, case law prior to the Supreme Court’s 2009 decision in Boyle v. United States, 556 U.S. 939 (2009), the court completely misconstrued the law regarding “separateness.” The court cites to case law which in part is correct that the enterprise is a separate element which must be proved. But, incorrectly, the court relies on pre-Boyle law citing to Stephens, Inc. v. Geldermann, Inc., 962 F.2d 808, 815–16 (8th Cir. 1992) (holding that plaintiff failed to prove the existence of an enterprise under RICO because “[t]he only common factor that linked all these parties together and defined them as a distinct group was their direct or indirect participation in [the] scheme to defraud [plaintiff].”)

Boyle overruled existing Eighth Circuit cases and specifically held that the existence of an enterprise may be inferred from the evidence showing that persons associated with the enterprise engaged in a pattern of racketeering. As a basis for the decision, the Boyle court referenced the Court’s decision in Turkette that the evidence proving racketeering activity and evidence establishing an enterprise, “may in particular cases coalesce.” Id., at 947. The proof to assert an enterprise must merely show the “three structural features,” a purpose; relationships, and longevity. Id., at 945.

For this court to ignore Boyle is mind-blowing. The Plaintiffs correctly argued that the enterprise independently exists without the fraudulent acts because the clinics are otherwise legitimate is also a strong argument of “separate and apart,” and which is evidence of the “three structural features.”  The courts continued reliance on the 1992 decision in Stephens is just wrong, and completely contrary to the liberal construction of RICO espoused by the Supreme Court in Boyle and other cases. Boyle itself was a group of four or five bank robbers who associated together to commit predicate crimes; nothing else. For the Supreme Court to find this an enterprise shows the liberal breadth.  In fact, the Court in Boyle summed up in the conclusion, that

“the point we made in Turkette that proof of a pattern of racketeering may be sufficient in a particular case to permit a jury to infer the existence of an association in fact enterprise.”

Id., at 951.

 

 

First Circuit Reverses RICO and RICO Conspiracy Convictions- Sets Forth RICO Conspiracy Analysis

United States v. Burhoe, __ F.3d ___, 2017 WL 3047056 (1st Cir., Sept. 8, 2017)

The Court reversed Hobbs Act and RICO convictions in a case which involves union members/defendants who allegedly extorted property from nonunion companies when they threatened to take certain actions, including picketing, if those companies did not give union members jobs. The government further obtained convictions under the Hobbs Act and RICO that the defendants extorted wages, benefits, and rights to democratic participation within the union from their fellow union members.
The court vacated the conviction for extortion of a nonunion company on count 4 and remanded for a new trial because the jury instructions allowed the jury to convict upon a finding that the work performed was merely unwanted, and on all other counts, the court reversed the convictions.

The court underwent a detailed analysis to find that the defendants did not commit or conspire to commit the Hobbs Act violations. As a result, it failed to find that Count 1, which alleged racketeering and count 2, which alleged racketeering conspiracy were proven. The government contended that Local 82 itself was a racketeering enterprise. Because the court reversed all but one of the extortion count convictions, the court was left with at most one racketeering act by defendant Burhoe. Because the government was required to prove a “pattern of racketeering activity,” which has been defined as requiring at least two predicates, it found insufficient evidence to support Burhoe’s and Perry’s convictions on count 1.

Regarding the conspiracy conviction, the court found insufficient evidence to meet the government’s burden.   The court stated that-
“While it is unnecessary to prove that the defendants committed two predicate offenses in order to prove a racketeering conspiracy, the government does have to prove that the defendants “agreed with one or more others that two predicate offenses be committed.” Id. at 1562.   Because we find that only one of the predicate acts might constitute extortion, we find that the government provided insufficient evidence that the defendants agreed to engage in a pattern of racketeering activity. We therefore reverse Burhoe and Perry’s convictions on count 2.”
Id. at *22.

Editor Analysis – The court is correct that the government does not have to prove that the defendants committed two predicate offenses in order to prove a racketeering conspiracy. The Court’s statement that “the government does have to prove that the defendants “agreed with one or more others that two predicate offenses be committed’” is also correct under a Salinas analysis. However, the application is puzzling. Is the Court saying that the proof of a RICO conspiracy when defendants “agreed with one or more others that two predicate offenses be committed’” is nullified when the actual commission of the offense (here, Hobbs Act) is legally impossible? Doesn’t this focus the onus on the actual commission of the predicate offense when the “agreement” that a conspirator would commit a violation of RICO is sufficient proof for RICO conspiracy?

Under this analysis, practitioners must be able to prove that the object predicate offenses which defendants agreed conspirators would commit are in fact actual predicate offenses. In civil RICO, but not criminal RICO, this is somewhat consistent with Beck v. Prupis, in which the commission of at least object predicate offense which causes an injury is required to prove RICO conspiracy.

David J. Stander is a civil RICO Attorney who focuses his practice on civil RICO litigation and consulting.

 

Court Addresses When “Litigation Expenses” Constitutes RICO Injury

Sasmor v. Meisels, __ Fed. Appx. ___, 2017 WL 395768 (2d Cir., Sept. 8, 2017)

The Second Circuit affirmed the District Court’s grant of summary judgment concluding that Sasmor’s civil RICO claims failed because he failed to demonstrate that he suffered a cognizable RICO injury.

Sasmor contended that he suffered two RICO injuries: first, he asserted that he made a rental payment in May 2010 because of Defendants’ acts of wire fraud, mail fraud, and extortion; second, he asserts that he incurred litigation expenses during the eviction proceedings that Defendants pursued against him, and that those proceedings (and thus, the related expenses) resulted from Defendants’ acts of mail fraud and extortion.

Regarding the first alleged injury, Sasmor argued that his rental payment in May 2010 was an injury caused by a RICO violation when he “would not have moved in or paid any money” if Defendants had not misrepresented that his room was “legitimate, legal housing”—a misrepresentation that Sasmor argues constitutes “wire fraud.” But, Sasmor did not present any evidence suggesting that he would have paid lower rent, however, had Defendants not misrepresented the legal status of the room and, as a result, he had chosen to live elsewhere.

Regarding the second injury, similarly, the court found the record did not support the existence of a causal link between any alleged RICO predicate act and Sasmor’s litigation expenses. He argues that the eviction proceedings against him in state court constituted mail fraud and extortion, pointing primarily to the success of his technical defense during those proceedings. But, Sasmor did not present evidence sufficient to transform Defendants’ assertion of a losing legal position in state court into mail fraud or extortion. These “misrepresentations” during the eviction proceedings are no more than litigation positions taken on legal questions. Thus, the record did not support an inference that Defendants’ design was to defraud Sasmor by taking incorrect legal positions during eviction proceedings pursued by them when he refused to pay rent or vacate the premises.

Nor did Sasmor present evidence sufficient to establish that the very act of pursuing the eviction proceedings amounted to extortion stating improperly brought litigation without more, however, does not constitute the kind of “wrongful use of force” required for the offense of extortion. See, e.g., Deck v. Engineered Laminates, 349 F.3d 1253, 1257–58 (10th Cir. 2003) (“[M]eritless litigation is not extortion under § 1951.”) (collecting cases holding same). Accordingly, Sasmor did not incur these litigation expenses as a result of a RICO violation and in this respect, too, Sasmor has not shown that he suffered a RICO injury.

David J. Stander is a civil RICO Attorney who focuses on civil RICO litigation and consulting.