The RICO Trend in Class Action Warfare

Abstract

Aggregate litigation, including class actions and mass actions, have been under attack for decades. Recent Supreme Court cases have further weakened class actions, and the current Congress is considering numerous aggregate litigation and tort reform efforts. Recently, defendants in aggregate litigation have employed an additional tactic by filing civil RICO cases against plaintiffs’ counsel. In a number of these cases, defendants’ primarily allegation is that plaintiffs’ counsel are fraudulently inflating the value of lawsuits by filing baseless lawsuits as part of aggregate litigation. In some of these cases, the predicate acts consist solely of litigation filings: the filing of complaints and related litigation documents in aggregate litigation. Members of the defense bar have made no secret of the fact that these RICO cases are part of a larger strategy to prevent plaintiffs’ attorneys from bringing large-scale litigation. Despite the rich literature on aggregate litigation, there is little scholarship exploring this recent aggressive use of RICO by the defense bar and corporate interest groups to punish plaintiffs’ attorneys for the alleged fraudulent filing of aggregate litigation.

This Article pulls together several previously unassociated areas of law -- including RICO, Rule 11, complex litigation, SLAPP motions, and asbestos litigation -- to develop a model for defendants’ use of RICO as a tool of reprisal. It argues that holding plaintiffs’ attorneys liable under civil RICO solely for litigation activities is illegal, results in the lamentable federalization of state common law, and leads to improper forum shopping. The RICO reprisal also avoids legitimate state protections for litigation activity and is a thinly veiled attempt by the defense bar to further weaken aggregate litigation by targeting the plaintiffs’ attorneys themselves. This use of RICO punishes the aggregate litigation device itself, rather than the underlying fraudulent conduct; as a remedy for frivolous aggregate litigation conduct, it is both over- and under-inclusive. The Article concludes by proposing several alternatives, including effectively barring any civil RICO action targeting attorneys’ pure litigation activities without a showing of malicious intent -- a proposal that draws on existing common law litigation privilege doctrine.

Keywords: class actions, RICO, Rule 11, SLAPP litigation, frivolous litigation