For over 30 years, retaliatory civil RICO actions, often brought by disgruntled former litigation adversaries, alleging predicate acts of fraudulent litigation activity, have been the object of public policy concern for the district courts of the Second Circuit. See, e.g., von Bulow by Auersperg v. von Bulow, 657 F. Supp. 1134, 1143 (S.D.N.Y. 1987). In a matter of first impression likely to impact a litigant’s ability to successfully plead certain civil RICO claims in the future, the U.S. Court of Appeals for the Second Circuit ruled that an alleged single frivolous, fraudulent or baseless lawsuit cannot constitute a viable RICO predicate act of racketeering activity. Kim v. Kimm, 884 F.3d 98 (2d Cir. 2018). In so ruling, the Second Circuit concurred with long-established district court precedent and four other courts of appeals on the issue, while simultaneously declining to declare all civil RICO actions based on litigation activity categorically meritless. See id. at 104 (discussing precedent).

RICO’s Statutory Framework