Between the highly publicized election interference case pending in Fulton County and the Young Thug/YSL RICO criminal trial underway in Fulton County, Georgia’s RICO statute has been in the news lately. Many people (particularly non-lawyers) may not be familiar with RICO or know it can also support a civil claim. Whether criminal or civil, RICO claims are complex and can be difficult to prove. This article provides an overview of the elements of a civil RICO claim.
What Does “RICO” mean?
“RICO” stands for “Racketeer Influenced and Corrupt Organizations” and refers to the Georgia or federal RICO Act (Georgia’s is similar but broader). Oxford Languages Dictionary defines “racketeering” as “dishonest and fraudulent business dealings.” RICO claims target not only organized crime and gangs but also a wide range of other acts.
What are the Elements of a Civil RICO Claim?
Georgia’ RICO statute is found at O.C.G.A. §§ 16-14-1 et seq. Under O.C.G.A. § 16-14-4(b), it is “unlawful for any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity.” A RICO claim therefore requires proof of (1) an enterprise and (2) a pattern of racketeering activity.
There are two other potential Georgia RICO violations. Under O.C.G.A. § 16-14-4(a), it is “unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money.” Therefore, upon proof of a person having an interest in or control of any real or personal property obtained through a pattern of racketeering or its proceeds, proof of an enterprise is not required. Under O.C.G.A. § 16-14-4(c), it is “unlawful for any person to conspire or endeavor to violate any of the provisions of subsection (a) or (b) of this Code Section.” In other words, a person can be liable for conspiracy to violate the RICO statute.
(1) Enterprise
Georgia law defines “enterprise” to include “any person, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this state, or other legal entity; or any unchartered union, association, or group of individuals associated in fact although not a legal entity; and it includes illicit as well as licit enterprises and governmental as well as other entities.” O.C.G.A. § 16-14-3(3). You do not have to pursue a RICO claim against all persons or entities alleged to be part of an enterprise.
(2) Pattern of Racketeering Activity
Georgia law defines “pattern” as “[e]ngaging in at least two acts of racketeering activity in furtherance of one or more incidents, schemes, or transactions that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one of such acts occurred after July 1, 1980, and that the last of such acts occurred within four years, after the commission of a prior act of racketeering activity.” O.C.G.A. § 16-14-3(4).
Regardless how many predicate acts are alleged, only two sufficiently related acts need be proven for a pattern. Brown v. Freedman, 222 Ga. App. 213 (1996). Where there are multiple defendants, a defendant may be liable when he commits one predicate act that forms part of the pattern. Faillace v. Columbus Bank & Trust Co., 269 Ga. App. 866, 868-69 (2004) (“Since the core purpose of the Act is to reach collective action, what matters is the existence of a pattern of criminal activity (including at least two interrelated acts) and each defendant’s participation in that pattern, whether by one act or more.”).
(3) Types of Racketeering Activity
Under Georgia law, a wide range of acts can support a RICO claim including more than 40 specified acts. O.C.G.A. § 16-14-3(5). Notably, “racketeering activity” includes not only a violation of an offense, but also any “attempt to commit, or to solicit, coerce, or intimate another person to commit" any recognized offense. O.C.G.A. § 16-14-3(5).
Specified acts include assault and battery, kidnapping, prostitution, burglary, arson, theft, mortgage fraud, insurance fraud, identity fraud, forgery, bribery, perjury, influencing witnesses, tampering with evidence, commercial gambling, certain marijuana violations, and many more. Two recognized acts that commonly apply in civil claims are mail and wire fraud. Elements include: (1) a scheme to defraud and (2) the use of the mail or wires for the purpose of executing or in furtherance of the scheme.
What are the Possible Damages for a Civil RICO Claim?
O.C.G.A. § 16-14-6(b) sets forth a private right of action for a RICO violation. In addition to potential injunctive relief, an injured party will recover treble damages (i.e. three times the actual damages suffered), and possibly punitive damages, upon proof of a RICO claim. In addition, the injured party will recover attorneys’ fees and reasonable expenses of litigation. O.C.G.A. § 16-14-6(c).
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