Kan-Di-Ki, LLC, dba Diagnostic Laboratories v. John Leslie Sorensen, et al.

To plead a “pattern of racketeering” under Title XI of the Organized Crime Control Act of 1970 (also called the Racketeer Influenced and Corrupt Organizations Act (RICO)), a plaintiff must allege that the racketeering acts have “continuity” in that they either “amount to or pose a threat of continued criminal activity.” H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239 (1989). This “fairly flexible concept” can be satisfied with allegations of “closedended” continuity, that is a closed period of repeated conduct that is sufficiently substantial by itself, or “open-ended” continuity, that is “past conduct that by its nature projects into the future with a threat of repetition.” Id. at 239, 241–42. The complaint in this case alleged that Defendants perpetrated a mail and wire fraud scheme that was active for at least ten months, targeted at numerous victims, abetted by other related racketeering activity, and threatened to continue into the future. The Ninth Circuit concluded the allegations did not satisfy continuity. The question presented is: Whether the Ninth Circuit erred in applying a rigid, minimum time requirement for continuity instead of the flexible, multi-factor analysis employed by other circuits.