David J. Howard


The use and abuse of the Racketeer Influenced and Corrupt Organizations Act ("RICO") has troubled judges and lawyers for some time while providing fertile ground for commentators. The plethora of RICO cases is equaled only by the tremendous proliferation of commentary. This Article, while admittedly contributing to this proliferation, is excusable, however, because its purpose is to facilitate summary disposition of RICO claims by providing a practical guide to achieving early dismissal under Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure. It is impossible to set forth all grounds for dismissing every RICO complaint. The scope of this Article is to explore several grounds for dismissal that are likely to repeatedly arise. A minimum of six threshold inquiries should be made when reviewing a RICO complaint. Provided that any one of these is answered in the negative, defendant, in lieu of filing an answer, should move to dismiss for failure to state a claim and/or for summary judgment under Federal Rule of Civil Procedure 12(b)(6) or 56, respectively. Until Congress limits the scope of civil RICO, or the Supreme Court decides to elaborate upon Sedima's footnote, such motion practice is the best protection for non-racketeer civil defendants against lawsuits that are often no more than legalized forms of blackmail.