Resurrecting Rico: Removing Immunity for White-Collar Crime
41 Pages Posted: 31 Mar 2006
Abstract
... A decade ago, I published an article in these pages entitled Judicial Immunity for White-Collar Crime: The Ironic Demise of Civil RICO. ... Part II explains how and why federal courts and Congress, respectively, dismantled RICO's civil enforcement mechanism through heightened pleading requirements and artificially restrictive readings of the statutory pattern and enterprise elements, and legislative reform denying relief to many victims of securities fraud. ... Despite these clear principles, however, many courts have dismissed RICO claims for failure to allege a proper pattern of racketeering activity, a proper enterprise, or both. ... Cases in which a racketeering victim has successfully established an investment injury are virtually nonexistent. ... First, Congress should eliminate the judicially imposed personenterprise doctrine by amending RICO to impose liability on perpetrator entities that conduct their own affairs through a pattern of racketeering activity. Otherwise, for example, neither Enron nor Arthur Andersen could be ccused, civilly or criminally, of conducting its own business through a pattern of racketeering activity. ... Most recently, this perspective proved decisive in Swierkiewicz v. Sorema N.A., the last case in the trilogy, an employment discrimination case in which the Supreme Court rejected the Second Circuit's attempt to impose a heightened pleading standard upon employment discrimination plaintiffs. ...
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