Elements of Nevada's Theories of Liability

RICO

Elements

  • It is unlawful for a person:
    • Who has with criminal intent received any proceeds derived, directly or indirectly, from racketeering activity to use or invest, whether directly or indirectly, any part of the proceeds, or the proceeds derived from the investment or use thereof, in the acquisition of:
      • Any title to or any right, interest or equity in real property; or
      • Any interest in or the establishment or operation of any enterprise.
    • Through racketeering activity to acquire or maintain, directly or indirectly, any interest in or control of any enterprise.
    • Who is employed by or associated with any enterprise to conduct or participate, directly or indirectly, in:
      • The affairs of the enterprise through racketeering activity; or
      • Racketeering activity through the affairs of the enterprise.
    • Intentionally to organize, manage, direct, supervise or finance a criminal syndicate.
    • Knowingly to incite or induce others to engage in violence or intimidation to promote or further the criminal objectives of the criminal syndicate.
    • To furnish advice, assistance or direction in the conduct, financing or management of the affairs of the criminal syndicate with the intent to promote or further the criminal objectives of the syndicate.
    • Intentionally to promote or further the criminal objectives of a criminal syndicate by inducing the commission of an act or the omission of an act by a public officer or employee which violates his official duty.
    • To conspire to violate any of the provisions of this section.

NRS 207.400

Important Definitions

  • “Criminal syndicate” means any combination of persons, so structured that the organization will continue its operation even if individual members enter or leave the organization, which engages in or has the purpose of engaging in racketeering activity.

NRS 207.370

  • “Racketeering activity” means engaging in at least two crimes related to racketeering that have the same or similar pattern, intents, results, accomplices, victims or methods of commission, or are otherwise interrelated by distinguishing characteristics and are not isolated incidents, if at least one of the incidents occurred after July 1, 1983, and the last of the incidents occurred within 5 years after a prior commission of a crime related to racketeering.

NRS 207.390

  • “Crime related to racketeering” defined. “Crime related to racketeering” means the commission of, attempt to commit or conspiracy to commit any of the following crimes:
    • Murder;
    • Manslaughter, except vehicular manslaughter as described in NRS 484.3775
    • Mayhem;
    • Battery which is punished as a felony;
    • Kidnapping;
    • Sexual assault;
    • Arson;
    • Robbery;
    • Taking property from another under circumstances not amounting to robbery;
    • Extortion;
    • Statutory sexual seduction;
    • Extortionate collection of debt in violation of NRS 205.322
    • Forgery;
    • [Resisting public officer]Any violation of NRS 199.280 which is punished as a felony;
    • Burglary;
    • Grand larceny;
    • Bribery or asking for or receiving a bribe in violation of chapter 197 or 199 of NRS which is punished as a felony;
    • Battery with intent to commit a crime in violation of NRS 200.400
    • Assault with a deadly weapon;
    • [Controlled substances]Any violation of NRS 453.232, 453.316 to 453.3395, inclusive, or 453.375 to 453.401, inclusive;
    • Receiving or transferring a stolen vehicle;
    • [Firearms and weapons] Any violation of NRS 202.260 [Unlawful possession, manufacture or disposition of explosive or incendiary device], 202.275 [Possession, manufacture or disposition of short-barreled rifle or short-barreled shotgun] or 202.350 [Manufacture, importation, possession or use of dangerous weapon or silencer; carrying concealed weapon without permit]which is punished as a felony;
    • [Gaming] Any violation of subsection 2 or 3 of NRS 463.360 [related to gaming] or chapter 465 of NRS [crimes and liabilities concerning gaming];
    • Receiving, possessing or withholding stolen goods valued at $250 or more;
    • Embezzlement of money or property valued at $250 or more;
    • Obtaining possession of money or property valued at $250 or more, or obtaining a signature by means of false pretenses;
    • Perjury or subornation of perjury;
    • Offering false evidence;
    • [Prostitution] Any violation of NRS 201.300 [Pandering in relation to prostitution] or 201.360 [Placing person in house of prostitution];
    • [Specific Fraudulent Acts] Any violation of NRS 90.570 [fraudulent practices in relation to the sale of securites], 91.230 [Fraudulent conduct in relation to commodities] or 686A.290 [insurance fraud], or insurance fraud pursuant to NRS 686A.291

Example Cases

Allum v. Valley Bank, 109 Nev. 280, 849 P.2d 297, 299 (1993)

Hale v. Burkhardt, 104 Nev. 632, 642, 764 P.2d 866, 872 (1988).

Siragusa v. Brown, 114 Nev. 1384, 1393-94, 971 P.2d 801, 810 (1998).

Proof

Damages

  • General damages rules

Having reviewed the Nevada statutory scheme as well as federal court interpretations of RICO, we conclude that for a plaintiff to recover under Nevada RICO, three conditions must be met:

  1. the plaintiff’s injury must flow from the defendant’s violation of a predicate Nevada RICO act;
  2. the injury must be proximately caused by the defendant’s violation of the predicate act; and
  3. the plaintiff must not have participated in the commission of the predicate act.

Allum v. Valley Bank, 109 Nev. 280, 283 849 P.2d 297, 299 (1993)

  • Treble damages

Nevada’s racketeering statutes provide a private right of action for treble damages to “[a]ny person who is injured in his business or property by reason of any violation of NRS 207.400.”
Stoddart v. Miller, Case Nos. 42133, 42234, 2008 WL 6070835, *5 (Nev. 2008).

  • accrual of damages, statute of limitations

In Massey v. Litton, 99 Nev. 723, 727, 669 P.2d 248, 251 (1983) we held that the term “injury” as used in a medical malpractice statute encompassed “legal injury.”—that is, “both the fact of damage suffered and the realization that the cause was the health care provider’s negligence.” Likewise, we conclude that the term “injury” as used in NRS 207.520 encompasses discovery of both an injury and the cause of that injury, in this case Brown’s alleged racketeering activity.See Penuel v. Titan/Value Equities Group, Inc., 127 Or.App. 195, 872 P.2d 28, 31 (Or.Ct.App.1994) (holding that a state RICO cause of action accrues under Oregon’s five year statute of limitations when the claimants discovered or in the exercise of reasonable diligence should have discovered that they had been damaged and the cause of their damages and concluding that such determinations were factual). We conclude that such factual determinations cannot be made as a matter of law. To the extent that the district court based its decision to dismiss Joanne’s Nevada RICO claims on the statute of limitations, it erred.