GICC Capital Corp. v. Technology Finance Group, Inc. (1995)

DeFalco, 244 F.3d at 321; Cofacrèdit, 187 F.3d at 243; cf. GICC Capital Corp., 67 F.3d at 467 (“Because GICC does not allege any racketeering activity in connection with the individual CRI defendants’ takeover of CRI, the takeover cannot form the starting point of defendants’ pattern of racketeering activity.”).

DeFalco, 244 F.3d at 321; 11 Cofacrèdit, 187 F.3d at 243 ; cf. GICC Capital Corp., 67 F.3d at 467 (“Because 12 GICC does not allege any racketeering activity in connection with the individual 13 CRI defendants’ takeover of CRI, the takeover cannot form the starting point of 14 defendants’ pattern of racketeering activity.”). 15 Since the Supreme Court decided H.J.

“Thus, a plaintiff in a *14 RICO action must allege either an ‘open-ended’ pattern of racketeering activity (ie., past criminal conduct coupled with a threat of future criminal conduct) or a ‘closed-ended’ pattern of racketeering activity (ie., past criminal conduct ‘extending over a substantial period of time’).” Id. at 465.

Rather, a plaintiff must provide some basis for a court to conclude that defendants’ activities were ‘neither isolated nor sporadic.’ ” GICC, 67 F.3d at 467.

Grp., 67 F.3d 463 , 466 (2d Cir. 1995) (“It defies logic to suggest that a threat of continued looting activity exists when, as plaintiff admits, there is nothing left to loot.”).

Corp., 67 F.3d at 466.

Grp., Inc., 67 F.3d 463 , 465 (2d Cir. 1995) ("[P]laintiff must plead at least two predicate acts.").

To allege a pattern of racketeering under RICO, a plaintiff ʺmust plead at least two predicate acts and must show that the predicate acts are related and that they amount to, or pose a threat of, continuing criminal activity.ʺ GICC Capital, 67 F.3d at 465.

The requisite continuity may be found in “either an ‘open-ended’ pattern of racketeering activity (i.e., past criminal conduct coupled with a threat of future criminal conduct) or a ‘closed-ended’ pattern of racketeering activity (i.e., past criminal conduct ‘extending over a substantial period of time’).” GICC *488 Capital Corp. v. Technology Finance Group, Inc., 67 F.3d 463, 466 (2d Cir.1995), cert. denied, 518 U.S. 1017 , 116 S.Ct. 2547 , 135 L.Ed.2d 1067 (1996).

Grp., Inc., 67 F.3d at 466.

See Spool, 520 F.3d at 184 ; Cofacrèdit, 187 F.3d at 242 (noting that “other factors such as the number and variety of predicate acts, the number of both participants and victims, and the presence of separate schemes are also relevant in determining whether closed-ended continuity exists” (citing GICC, 67 F.3d at 468)); see also GICC, 67 F.3d at 468-69 (noting that the plaintiffs allegations “do not present a ‘complex, multi-faceted conspiracy to defraud executed by numerous…

Inc., 492 U.S. at 240 , 109 S.Ct. 2893 (quoting 18 U.S.C. § 3575 (e)); see also GICC, 67 F.3d at 467 (“plaintiff must provide some basis for a court to conclude that defendant’s activities were neither isolated nor sporadic”) (internal quotations omitted).

Corp., 67 F.3d at 467); see also Marini v. Adamo, 812 F. Supp. 2d 243, 262 (E.D.N.Y. 2011) (“Furthermore ‘[w]hile closed ended continuity is primarily concerned with the time period of the activities, the court also considers factors such as the “number and variety of predicate acts, the number of both participants and victims, and the presence of separate schemes” as relevant when determining whether closed ended continuity exists.’” (alteration in original) (quoting SKS Co…

Group, supra, 67 F.3d at 466 (inner quotations omitted).

Corp., 67 F.3d at 466).

Inc., 492 U.S. at 241 , 109 S.Ct. 2893 , “ ‘a plaintiff must provide some basis for a court to conclude that defendants’ activities were neither isolated nor sporadic,’” and that defendants engaged in such activity for a substantial period of time, DeFalco, 244 F.3d at 321 (quoting GICC Capital, 67 F.3d at 467).

Similarly, in GICC Capital Corp., the Second Circuit held that, where the defendants’ scheme was designed to deprive the plaintiff corporation of its assets, there was no longer a threat of ongoing racketeering activity once there were no more assets to loot. 67 F.3d. at 467.

De Falco v. Bernas, 244 F.3d 286 , 321 (2d Cir.2001) (quoting GICC Capital Corp., 67 F.3d at 467 (additional quotation marks omitted)); accord Kades v. Organic Inc., No. 00-CV-3671 (LTS), 2003 WL 470331 , at *11, 2003 U.S. Dist.

When seeking to satisfy the continuity requirement, a plaintiff must show that the defendants’ activities were “neither isolated or sporadic.” GICC Capital Corp. v. Technology Finance Group, Inc., 67 F.3d 463, 467 (2d Cir.1995).

The only allegation hinting at the possibility of ongoing or at least additional criminal conduct is the amended complaint’s assertion that Varghese “has committed similar racketeering activities involving wire fraud to defraud additional victims.”62 That allegation, however, refers only to past conduct and expressly pertains only to Varghese, not the alleged RICO enterprise. 58 Am. Compl. ¶¶ 43, 78, 116 (plaintiff introduced to Varghese in April 2024; Mercola demanded asset…

Moreover, “an ‘inherently terminable’ scheme does not imply a threat of continued racketeering activity.” Cofacrèdit, 187 F.3d at 244; see also GICC Capital Corp., 67 F.3d 463 , 466 (2d Cir. 1995) (“It defies logic to suggest that a threat of continued looting activity exists when, as plaintiff admits, there is nothing left to loot.”).

Corp., 67 F.3d at 465 (holding that the plaintiff “must show that the predicate acts are related and that they amount to, or pose a threat of, continuing activity”); Williams v. Long Beach Mortg.

Group, Inc., 67 F. 3d 463 465 (2d Cir. 1995).

GICC, 67 F.3d at 465 (“Under any prong of § 1962 a plaintiff in a civil RICO suit must establish a pattern of racketeering activity.”); Schlesinger v. Schlesinger, No. 05-CV-5016-ADS-WDW, 2007 WL 9706975 , at *15 (E.D.N.Y.

See GICC Capital, 67 F.3d at 468 (“Only one case arguably supports plaintiff’s” claim that a group of defendants allegedly “looting [the] assets” of a single entity over thirteen months is sufficient for close-ended continuity.

The Court of Appeals for the Second Circuit has noted that periods of less than two years rarely satisfy the “substantial period of time requirement.” See Cofacredit, S.A., 187 F.3d at 242; GICC Capital Corp., 67 F.3d at 467.

DeFalco, 244 F.3d at 321 (quoting GICC Capital, 67 F.3d at 467 (additional quotation marks omitted)); accord Kades v. Organic Inc., No. 00-CV-3671 (LTS), 2003 WL 470331 , at *12 (S.D.N.Y.

There are no allegations in the Amended Complaint to suggest that the scheme continued after the ESI Defendants successfully ran Plaintiffs out of business. 26 The Second Circuit has held that such an “ ‘inherently terminable’ scheme does not imply a threat of continued racketeering activity.” Cofacrèdit, 187 F.3d at 244 (quoting GICC, 67 F.3d at 466).

Closed-Ended Continuity “A closed-ended pattern of racketeering activity involves predicate acts ‘extending over a substantial period of time.’ ” First Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 181 (2d Cir.2004) (quoting GICC Capital Corp., 67 F.3d at 466). “[T]o measure whether closed-ended continuity exists,” the Court must also “weigh[ ] a variety of non-dispositive factors,” including “the number and variety of acts, the number of participants, the numb…

Inc., 67 F.3d 463, 467 (2d Cir.1995).

The alleged scheme to obtain PEPCO’s work without payment was therefore “inherently terminable.” Cofacrèdit, 187 F.3d at 244 (“[A]n ‘inherently terminable’ scheme does not imply a threat of continued racketeering activity.”); GICC Capital Corp., 67 F.3d at 466 (“It defies logic to suggest that a threat of continued looting activity exists when, as plaintiff admits, there is nothing left to loot.”).

Cofacredit, S.A., 187 F.3d at 244 (citing GICC Capital Corp., 67 F.3d at 468-69.); see Bayshore Cap.

Corp., 67 F.3d at 466).

Contrast GICC Cap., 67 F.3d at 467-69 (finding 11 months insufficient), and Reiner v. Paneth, 24-CV-4914 (RER) (PK), 2025 WL 2783246 , at *23 (E.D.N.Y.

(Compl., Dkt. 1, ¶ 131.) However, this allegedly ongoing pattern of illegal conduct is based on behavior confined to the interactions between Defendants and Plaintiff,10 (id. ¶ 105), and is thus “inherently terminable,” One World, 2021 WL 4452070 , at *3 (quoting GICC, 67 F.3d at 466 (internal citations omitted)).

Grp., Inc., 67 F.3d 463 , 466 (2d Cir. 1995) (“It defies logic to suggest that a threat of continued looting activity exists when, as [the] plaintiff admits, there is nothing left to loot.”).

Corp, 67 F.3d at 466 (rejecting as “entirely speculative” argument that defendant would have continued scheme had plaintiff not commenced litigation).

Civ. P. 9(b), rely upon allegations concerning other unnamed victims to plead a pattern of racketeering activity.” Id. (citing, inter alia, Goren v. New Vision Intern., Inc., 156 F.3d 721 , 729 (7th Cir. 1998) (“[C]onclusory allegations that ‘defendants’ also defrauded unidentified ‘others’ are not enough to plead the requisite pattern of fraud.”); GICC Capital Corp. v. Technology Finance Group, Inc., 67 F.3d 463, 468 (2d Cir. 1995)(“Plaintiff attempts to allege that the def…

“To establish closed-ended continuity, “a plaintiff must provide some basis for a court to conclude that defendants' activities were ‘neither isolated nor sporadic.’” DeFalco v. Bernas, 244 F.3d 286 , 321 (2d Cir. 2001)(quoting GICC Capital Corp. v. Technology Finance Group, Inc., 67 F.3d 463, 467 (2d Cir.1995)).

Corp., 67 F.3d at 466.

The plaintiff must plead at least, two predicate acts, and must show that the predicate acts are related and that they amount to, or pose a threat of, continuing criminal activity.” GICC, 67 F.3d at 465 (citation and internal quotation marks omitted); see also Jus Punjabi, LLC v. Get Punjabi Inc., No. 14-CV-3318, 2015 WL 2400182 , at *4 (S.D.N.Y.

Although there are a variety of non-dispositive factors relevant to the inquiry of whether closed-ended continuity exists, including “the length of time over which the alleged predicate acts took place, the number and variety of acts, the number of participants, the number of victims, and the presence of separate schemes,” GICC Capital Corp., 67 F.3d at 467, “closed-ended continuity is primarily a temporal concept,” Cofacredit, 187 F.3d at 242 .

GICC Capital Corp., 67 F.3d at 468.

Group, Inc., 67 F.3d 463, 465 (2d Cir.1995)).

Although, as stated, “closed-ended continuity is primarily a temporal concept,” id., the Second Circuit has also identified a number of other factors that may be relevant to continuity, including “the number and variety of acts, the number of participants, the number of victims, and the presence of separate schemes.” GICC Capital Corp. v. Technology Finance Group, Inc., 67 F.3d 463, 467 (2d Cir.1995).

“Section 1962 of RICO outlaws (a) the use of income ‘derived ... from a pattern of racketeering activity’ to acquire an interest in, establish, or operate an enterprise engaged in or affecting interstate commerce; (b) the acquisition of any interest in or control of such an enterprise ‘through a pattern of racketeering activity’; ‘(c) the conduct or participation in the conduct of such an enterprise’s affairs ‘through a pattern of racketeering activity’; and (d) conspiring t…

The Second Circuit has provided no clear rules about the application of this standard, but has rather indicated that a court must “weigh[ ] a variety of non-dispositive factors, including, inter alia, the length of time over which the alleged predicate acts took place, the number and variety of acts, the number of participants, the number of victims, and the presence of separate schemes.” GICC Capital Corp. v. Technology Finance Group, Inc., 67 F.3d 463, 467 (2d Cir.1995) (c…

Schlaifer Nance & Co. v. Estate of Warhol, 119 F.3d 91, 97 (2d Cir.1997). “[A] plaintiff in a RICO action must allege either an ‘open-ended’ pattern of racketeering activity (i.e., past criminal conduct coupled with a threat of future criminal conduct) or a ‘closed end’ pattern of racketeering activity (i.e., past criminal conduct ‘extending over a substantial period of time’).” GICC Capital Corp. v. Technology Finance Group, Inc., 67 F.3d 463, 466 (2d Cir.1995), cert denied…

For example, “an inherently unlawful act performed at the behest of an enterprise *515 whose business is racketeering activity would automatically give rise to the requisite threat of continuity.” GICC Capital Corp., 67 F.3d at 466 (finding no open-ended continuity where scheme was inherently terminable once all assets had been looted) (citation omitted); accord H.J.