The civil remedy in the Racketeer Influenced and Corrupt Organizations (RICO) statute, 18 U.S.C. 1961, et. seq., is not limited to the “archetypal, intimidating mobster.” Sedima SPRL v. Imrex Co. Inc., 473 U.S. 479, 498 (1985).

In other words, existence of two parties does not create an enterprise, as there must be some proof of ongoing activities the parties are working in conjunction to carry out.Second, RICO defines “racketeering activity” to include numerous so-called predicate acts, including “any act which is indictable under any of the following provisions of title 18, United States Code: . . . section 1341 (relating to mail fraud), section 1343 (relating to wire fraud),” and the interstate transportation of stolen property. 18 U.S.C. § 1961(1). “An offense under the mail fraud statute may be established by showing a scheme to defraud and the use of the mails in furtherance of that scheme.”

ective states these Attorneys General represent. Press reports state that CVS and Walgreens plan only to distribute abortion-inducing medications where it is legal to do so. Nevertheless, these warning letters assert that each Attorney General has the right to enforce federal law—typically the purview of federal prosecutors—against any retail pharmacy that mails abortion-producing medications within, to, or from jurisdictions that are less restrictive with respect to abortions.18 U.S.C. § 1461 (mailing obscene or crime-inciting matter), the proverbial hammer cited in the two warning letters, criminalizes using the mail to send any medicine, among other things, for the purposes of “producing” an abortion. Perhaps acknowledging the atypical nature of a state Attorney General attempting to invoke a federal criminal statute, the twenty state Attorneys General here cross-reference a federal anti-racketeering statute, known as the Racketeer Influenced and Corrupt Organizations Act (“RICO”). 18 U.S.C. §§ 1961 et seq. Section 1461 is among the statutes listed in the definition of “racketeering activity.” 18 U.S.C. § 1961(1). Therefore, the warning letters highlight that a violation of § 1461 could give rise to civil liability under RICO. See 18 U.S.C. § 1964(c). In turn, the state Attorneys General contend that they, along with other private parties, have proper standing to assert a claim in federal court nationwide to enforce § 1461.Like many risk-oriented issues raised in our post-Dobbs world, these warning letters pose novel legal questions. More than 650 cases have cited to § 1461 since the first published opinion in the 1870s. Yet, we are aware of no case that has sought to couple the concept of abortion and the federal racketeering statute. The dearth of guidance leads practitioners (healthcare and law practitioners, alike) to many significant questions and considerations:Even if using the mail to facilitate abortions may be considered “racketeering activity” under the definition set

[3] 18 U.S.C. §1964(c). [4] 18 U.S.C. §1961(1). [5] 18 U.S.C. §1952(a).

In order to prevail in a civil RICO action, a plaintiff must establish that the defendant engaged in a “pattern of racketeering activity,” which means, at a minimum, “at least two acts of racketeering activity.” See 18 US.C. §§ 1961(5) and 1962. “Racketeering activity” includes a long list of criminal violations, including violations of the federal wire fraud and mail fraud statutes.

Mail fraud charges, in turn, are defined by the federal racketeering statute, RICO, as “racketeering activity”—what prosecutors call “predicate acts.” See 18 U.S.C. § 1961 (1)(B). Under RICO, two related instances of mail fraud committed in a ten-year period amount to a “pattern of racketeering activity.”

The court held these two transactions constituted two predicate acts of racketeering activity. 18 U.S.C. Section 1961(1)(D). The court also noted their ruling would not change even if the defendants mistakenly believed their product was not a controlled substance.

Adding to a line of decisions limiting the extraterritorial application of U.S. statutes, the U.S. Supreme Court yesterday issued its decision in RJR Nabisco v. European Community. In a 4-3 decision, the Court held that to assert a claim under the Racketeer Influenced and Corrupt Practices Act (RICO), 18 U.S.C. § 1961 et seq., a private plaintiff must demonstrate "a domestic injury to its business or property" and clarified that the statute "does not allow recovery for foreign injuries." Since 2010, the Court has narrowly construed the extraterritorial reach of a number of statutes, including the Alien Tort Statute, the Torture Victim Protection Act and the Securities and Exchange Act of 1934, and it has limited the ability of the U.S. courts to exercise general personal jurisdiction over foreign corporations for foreign activities based on the unrelated contacts of their wholly owned U.S. subsidiaries.1 The RJR decision further reduces the ability of litigants to seek redress in the U.S. courts for torts occurring outside of the United States.

Additional commentary on the CFAA is available here. [11] - 18 U.S.C. § 1961(1). [12] - The proposal would add to the definition of "racketeering activity" under 18 U.S.C. § 1961(1) any "act which is indictable under . . . section 1030 (relating to fraud and related activity in connection with computers) if the act indictable under section 1030 is felonious."

See, e.g., Formax, Inc. v. Hostert, 841 F.2d 388, 390 (Fed. Cir. 1988) (“Activities such as those alleged in the instant case – misappropriation of trade secrets – fall within the definition of property and fraud under the mail and wire fraud statutes and thus can fulfill some elements of a RICO violation.”)The second element requires the existence of an “enterprise,” which the statute broadly defines as “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). An enterprise must be distinct from a RICO defendant, but the Supreme Court has held that a defendant’s employer is sufficiently distinct from the defendant to satisfy the requirement.