RICO
 Meaning of “Enterprise” under RICO
Microsoft Corporation v. Odom
No. 07-138
Supreme Court of the United States
The Supreme Court declined to grant review to consider whether a corporation can form an “enterprise” under the Racketeer Influenced and Corrupt Organizations Act (RICO) where the alleged combination exists solely of two corporations engaged in a marketing relationship. In its brief, NCLC argued that the statute’s plain language does not bear such a result and that treble damages liability should not be available where the suggested “enterprise” constitutes no more than the alleged pattern of racketeering activity itself.
Amicus brief in support of Cert. filed 9/5/07. Cert. denied 10/15/07.
 View brief
 Unwarranted Expansion of RICO LiabilityUnited States v. Philip Morris USA
No. 06-5267 U.S. Court of Appeals for the District of Columbia Circuit
NCLC urged the District of Columbia Circuit to vacate the RICO judgment below for two reasons: (1) the district court employed a definition of "enterprise" under the Racketeer Influenced and Corrupt Organizations act that was not supported by the plain meaning of the statute; and (2) the district court used a collective knowledge doctrine rejected by other courts of appeals to aggregate the knowledge of various employees to satisfy the corporate scienter standard under the mail and wire fraud acts. NCLC also urged the district court to vacate the judgment as it relates to defendants' marketing activities worldwide because Congress has not clearly indicated that RICO should have extraterritorial effect.
Amicus brief filed 8/17/07.
Meaning of "Enterprise" under RICO
Mohawk Industries v. WilliamsNo. 05-465 Supreme Court of the United States The Supreme Court declined to grant review to consider whether a corporation can form an "enterprise" under the Racketeering Influenced Corrupt Organizations Act (RICO) where the alleged combination exists solely of the corporation itself and its third party recruiters. In its brief, NCLC argued that the statute's plain language does not bear such a result and that treble damages liability should not be available where the corporation is merely using third party agents to perform integral corporate functions. Amicus brief filed 1/22/07. Decision 2/26/07. View brief
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Class Actions and RICO
Schwab v. Philip Morris, et al.
No. 06-4666
United States Court of Appeals for the Second Circuit
NCLC urged the Second Circuit to vacate the trial court's grant of class certification to plaintiffs charging via the Racketeering Influenced Corrupt Organizations Act (RICO) that, while each "Lights" cigarette contained less nicotine and tar than non-Lights cigarettes, the product did not deliver less tar and nicotine to users because users compensated by smoking additional cigarettes. In its brief, NCLC argued that the district court did not apply the rigorous analysis required by Federal Rule of Civil Procedure 23(b)(3). In addition, NCLC explained that affirming the district court's decision could expand civil RICO liability well beyond its intended purpose to address the effect of illicit activities on legitimate businesses.
Amicus brief filed 12/26/06.
View brief......................................................................................................................................
 Third Party Reliance and RICO
Anza v. Ideal Steel Supply Corp.04-433 Supreme Court of the United States
The Supreme Court significantly limited the scope of private actions that can be brought under Racketeering Influenced and Corrupt Organizations Act by requiring a plaintiff to show that its was directly harmed by racketeering activity. In this case, the plaintiff contends that the defendant submitted fraudulent sales tax receipts to the New York state government and thereby was able to charge a lower price for its products than the plaintiff was able to. NCLC argued that RICO was not intended to be a private attorneys general statute where individuals could seek to combat fraud against the government, urging the Court to resolve a split in the circuits by requiring a specific showing that the plaintiff –rather than a third-party – relied on the defendant's fraudulent behavior. The Court declined to resolve that circuit split, but instead relied on Holmes v. Securities Investor Protection Corporation to impose an equally important check against the misuse of the RICO statute.
Amicus brief filed 1/12/06. Decision 6/05/06. View brief
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The Requirement of Reasonable Reliance under RICOBank of China v. NBM, L.L.C
No. 03-1559 Supreme Court of the United States
After NCLC filed a brief urging affirmance of the rule announced in the court below, petitioner withdrew its appeal because retrial of the underlying claims had undermined the claims raised in the petition. The Supreme Court had granted review to consider whether, in supporting the predicate claims of mail and wire fraud under the Racketeering Influenced and Corrupt Organizations Act, plaintiffs are required to demonstrate that they had reasonably relied on any alleged misrepresentations. In its merits brief before the Court, NCLC argued that plaintiffs must do so; otherwise the prospect of treble damages and attorneys' fees would attract challenges by litigants to otherwise unimportant misstatements. The petition's withdrawal leaves the Second Circuit's favorable rule intact.
Amicus brief on the merits filed 10/31/05. Petition withdrawn 11/15/05. View brief......................................................................................................................................
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