The Section 1962(c) Claim

Section 1962(c) provides in relevant:

"It shall be unlawful for any person employed by or associated with any enterprise... to conduct or participate, ... in the conduct of such enterprise's affairs through a pattern of racketeering activity...."

So, as Judge Rakoff's treatise points out, § 1962(c) represents the final step in the progression from 1962(a) through 1962(c). Whereas 1) 1962(a) involves a situation where the criminals are merely investing in the legitimate enterprise; and 2) 1962(b) involves the more alarming situation where the criminals now own or control the enterprise; 3) 1962(c) involves the ultimate form of infiltration, where the criminals are running the enterprise.

The elements of a § 1962(c) claim are fourfold:

“[I]n order to establish a RICO violation under § 1962(c), a plaintiff ... must allege and prove four elements: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.”

Smartix International Corp. v. Mastercard International, LLC, 355 Fed.Appx. 464, 466 (2nd Cir. 2009).

The Operation and Management Test

The use of the "conduct"-- whether used as a verb or as a noun-- requires that the defendant participate in the operation or management of the enterprise:

"In order to “participate, directly or indirectly, in the conduct of such enterprise's affairs,” one must have some part in directing those affairs.... some part in directing the enterprise's affairs is required. The “operation or management” test expresses this requirement in a formulation that is easy to apply...."

Reves v. Ernst & Young, 507 U.S. 170, 179, 113 S.Ct. 1163, 1170 (1993).

Later decisions have fleshed out the contours of the operation and management test. To satisfy it, a defendant must be either 1) in a managerial role, or 2) a subordinate with broad discretion in carrying out the instructions of his principal. Merely performing tasks that are necessary or helpful will not satisfy the test. Furthermore, the defendant must have exercised broad discretion in carrying out the instructions of his principal. And the simple taking of directions and performance of tasks that are ‘necessary or helpful' to the enterprise, without more, is insufficient to bring a defendant within the scope of § 1962(c). United States v. Diaz, 176 F.3d 52, 92 (1999)

Furthermore, it has been held that, to satisfy the test, the defendant must have been participating in the operation or management of the enterprise's affairs, not of his own affairs. And that's true even if managing the defendant's own affairs involved the commission of predicate acts. And, of course, the defendant must know about the enterprise's affairs.

No "Racketeering Injury" Required

But significantly, § 1962(c) dispenses with the troublesome requirement of a racketeering injury that bedevils § 1962(a) and 1962(b) claims. Sedima, S.P.R.L. v. Imrex Co., 478 U.S. 479, 495, 105 S.Ct. 3275, 3284 (1985). That is, it's not necessary to show that plaintiff's injury results from the violation of § 1962(c); rather, it suffices if plaintiff's injury results from the commission of the predicate acts themselves. Perhaps for this reason, § 1963(c) has become the most often-used of the three sections.

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