Notre Dame Law School NDLScholarship Journal Articles Publications 1982 RICO Civil Fraud Action in Context: Reflections on Bennett .v Berg G. Robert Blakey Notre Dame Law School Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Civil Law Commons, and the Criminal Law Commons Recommended Citation G. R. Blakey, RICO Civil Fraud Action in Context: Reflections on Bennett .v Berg, 58 Notre Dame L. Rev. 237 (1982-1983). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/170 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. The RICO Civil Fraud Action in Context: Reflections on Bennett v. Berg G. Robert Blakev* I. Introduction /Tjhe ofle of all theJudges is always to make such. construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasionsfor continuationof the mischief,.. and to addforce andlife to the cure and remedy, according to the true intent of the makers of the Act pro bono publico. Hdon's Case, 76 Eng. Rep. 637, 638 (Ex. 1584). In Bennett v. Berg,' the United States Court of Appeals for the Eighth Circuit, as a matter of "first impression in the Circuit Courts of Appeals," 2 faced and resolved a number of significant issues in the construction of Title IX, the Racketeer Influenced and Corrupt Or- ganizations (hereinafter "RICO") provisions of the Organized Crime Control Act of 1970. 3 In Bennett, the plaintiffs, residents in a "life * Professor of Law, Notre Dame Law School. A.B. 1957, J.D. 1960, Notre Dame. Pro- fessor Blakey was the Chief Counsel of the Senate Subcommittee on Criminal Laws and Pro- cedures of the United States Senate in 1969-1970, when the Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat. 941 (1970), was processed. 1 685 F.2d 1053 (8th Cir. 1982). A rehearing en banc in Bennett was granted on Septem- ber 17, 1982. Oral argument was held on January 13, 1983. 2 685 F.2d at 1057. 3 18 U.S.C. §§ 1961-1968 (1976). Judge Shadur in Parnes v. Heinold Commodities, Inc., 548 F. Supp. 20, 21 n.1 (N.D. Ill. 1982) wondered, "[gliven. .[RICO's] very awkward title and the convenient acronym it generated. [whether] the person who christened the legislation was a movie buff with a sense of humor . .[for in] 'Little Caesar,' the first Hollywood gangster movie of the '30s. ., Edward G. Robinson played the thinly disguised Al Capone leading role-and was named 'RICO."' Judge Shadur's question was first raised by Newsweek reporters, Tony Marro and Elaine Shannon, in a story on RICO that appeared in The Legal Times of Washington, Oct. 8, 1979, at 32, col. 1. They reported that G. Robert Blakey, "who had a major role in drafting the statute. will neither admit nor deny that the title was [so] constructed." See Blakey & Gettings, Racketeer Influenced and CorraptOrganiza- lions (RICO): Basic Concepts-Criminaland Civil Remedies, 53 TEMP. L.Q. 1009, 1025 n.91 (1980) [hereinafter cited as Basic Concepts] for an alternative, but not necessarily inconsistent explanation of the development of RICO's title. The following state statutes are modeled on the federal act: ARIZ. REV. STAT. ANN. § 13-2312 (1978); CAL. PENAL CODE § 186 (West Supp. 1983); COLO. REV. STAT. § 18-17- 101 (1981); 1982 CONN. PUB. AcTs 343; FLA. STAT. ANN. § 895.01 (West Supp. 1982); GA. CODE ANN. § 26-3401 (Supp. 1982); HAWAII REV. STAT. § 842-1 (1976); The Narcotics Profit Forfeiture Act, H.B. 2450, State of Ill. (1982); IND. CODE ANN. § 35-45-6-1 (Burns Supp. 1982); N.J. STAT. ANN. 2C:41 (West 1982); N.M. STAT. ANN. § 30-42-1 (Supp. 1978); OR. THE NOTRE DAME LAW REVIEW [December 19821 care" retirement village, sought treble damages and equitable relief under 18 U.S.C. § 1964 from a number of defendants, including named individuals, a not-for-profit corporation, the John Knox Vil- lage, attorneys, accountants, the firm of Snyder, Ernst & Muehling, and the Prudential Life Insurance Company, a mortgage lender. The district court dismissed the complaint, and an appeal was taken. On appeal, the defendants sought to sustain the dismissal by arguing that: (1) no allegation of a connection between organized crime and the plaintiffs had been made; (2) no allegation of a culpable "person" separate from the charged "enterprise" had been made; (3) no allegation of an "enterprise" separate from the charged "pattern of racketeering activity" had been made; (4) no allegation of a "pattern of racketeering" had been made; (5) no allegation of "investment," "acquisition," or an association with the "conduct" of an enterprise through a pattern of racketeer- ing activity had been made; (6) no allegation of a cognizable "injury" had been made; and (7) the 4equitable relief sought was not available to private plaintiffs. The court of appeals reversed in part and affirmed in part the district court's dismissal of the complaint. Because the Bennett court's deci- sion represents the first comprehensive effort by a court of appeals to treat a number of important issues regarding the construction of 5 RICO in the context of civil litigation, it merits extended comment. REV. STAT. § 166-715 (1981); 18 PA. CONS. STAT. § 911 (1978); R.I. GEN. LAWS § 7-15-1 (Supp. 1982); Wis. STAT. ANN. § 946.80 (Supp. 1982). Legislation is under consideration in Louisiana, New York, and Ohio. For newspaper coverage of the use of the state legislation, see Siegel, Arizona Hits Racketeers hz Wallet, L.A. Times, May 3, 1982, at 1, col. 1; Granelli, Playingfor Keeps With State RICO, The National Law Journal, July 5, 1982, at 1, col. 4. 4 685 F.2d at 1057. For purposes of analysis, the order of the defendants' appellate arguments has been altered. 5 The courts of appeals for the Second, Sixth, and Seventh Circuits have also faced civil RICO appeals. In Cullen v. Margiotta, 618 F.2d 226 (2d Cir. 1980), the court of appeals dismissed an appeal of the dismissal of a civil RICO suit for the failure to allege a sufficient connection to interstate commerce, holding that certifying the orders under Rule 54(b) of the Federal Rules of Civil Procedure as final was an abuse of discretion. See United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982) (mail fraud and extortion conviction of political leader of Nassau County, N.Y., upheld). In Grayson v. Wooden, No. 80-5460 (6th Cir. Feb. 10, 1982), the court of appeals affirmed the granting of a motion for summary judgment and the dismissal of a civil RICO suit, since the plaintiff did not allege two acts of racketeering. In Cenco Inc. v. Seidman & Seidman, 686 F.2d 449 (7th Cir.), cert. denied, 103 S. Ct. 177 (1982), the court of appeals affirmed the dismissal of a civil RICO counterclaim, since only "indirect injury" was alleged. In USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94 (6th Cir. 1982), the court of appeals upheld the issuance of an injunction to preserve the status quo [Vol. 58:237] RICO CIVIL ACTIONS Before examining the court of appeals' opinion in that case, however, this article will discuss the facts of the case, the text of RICO, the legislative history of RICO, and the jurisprudence under RICO. 6 II. The Facts of Bennett v. Berg The plaintiffs in Bennett alleged to be present and former resi- dents, 423 in number, of the John Knox Village retirement commu- nity in Lee's Summit, Missouri. 7 Owned and operated by a not-for- profit corporation, the John Knox Village is the "largest retirement community of its kind in the country."8 The residential community consisted of approximately 2,500 residents, who occupied units in the facility pursuant to "Occupancy Agreement" contracts. In return for the payment of an initial lump sum-an "Entrance Endowment"- the residents were entitled to occupy specific apartments for life. En- dowments paid ranged from $9,000 to more than $50,000. In addi- tion, the "Occupancy Agreement" provided for the payment of a monthly lodging and service charge, "in such amounts as determined by the Board of Directors of the Village." 9 More than fifty million dollars has been paid in endowments or collected in monthly fees. t0 The monthly charge was to cover fifty-one services and facilities, in- cluding tray and diet service, building and grounds maintenance, scheduled transportation, laundry service, and various forms of medi- cal care. According to the complaint, the Village was also "pro- moted as being a religiously or spiritually oriented, Christian community."'" The plaintiffs alleged, however, that the Village was in fact on pendente lite in a civil RICO suit. Neither Cullen nor Grayson merits further comment. Cenco Inc. is discussed at text accompanying note 139 infra; USACO Coal Co. is discussed at note 217 infra. 6 The facts are taken from the opinion of the court of appeals, except where supplemented, as noted, from the pleadings or papers. Since the appeal was heard on the pleadings, the facts alleged in the pleadings were accepted as true. 685 F.2d at 1056 n.4 ("accept. .factual allegations as true"), 1057-58 ("A complaint must be viewed in the light most favorable to plaintiff"). In addition, the court followed the "accepted rule that a complaint states a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v.