In a recent decision, a U.S. District Court set standards that would indicate what on-line activities would and would not constitute racketeering under RICO, the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c). The United States District Court for the District of Maine held on a motion for summary judgment that a group of individuals who published allegedly defamatory criticism of plaintiff The Gentle Wind Project (“GWP”) on-line did not qualify as an “association-in-fact” under RICO. Having dismissed the RICO-related federal claims over which it had original jurisdiction, the court declined to exercise supplemental jurisdiction over the plaintiff’s state claims and dismissed them without prejudice.GWP is a non-profit organization “dedicated to education and research aimed at alleviated [sic] emotional and mental human suffering and trauma.” As part of GWP’s mission, its members manufacture objects which they describe as “healing instruments that are designed to restore human beings to a natural state of existence.” GWP then sells these objects to the public in return for a “donation.”
Defendants Judy Garvey (“Garvey”) and James Bergin (“Bergin”) are former members of GWP who authored respectively “Insiders’ Stories” and “A Husband’s Perspective,” documents which purport to describe their experiences as members of GWP, an organization which they characterize as a “cult.” The documents produced by the defendants describe “energy work,” “consisting of group sex rituals undertaken between GWP’s leader and other members, which were allegedly required for creation of GWP’s instruments.” Garvey and Bergin published their documents on www.windofchanges.org, a website they developed.
In addition to self-publishing on their own website, the defendants also contacted the operators of several websites critical of “cults,” including “The Truth Campaign” run by Ivan Fraser, “Freedom of Mind” run by Steven Hassan, and the “Rick A. Ross Institute for the Study of Destructive Cults, Controversial Groups and Movements” run by Rick Ross. The website operators posted the defendants’ documents and provided links to the defendants’ website. After this initial contact, the defendants maintained contact with the various website operators and continued to communicate with them over e-mail. These e-mails included advice about how to respond to criticism from GWP, tips on how to copy and paste from the GWP website, and research into “transactions relating to GWP’s property.”
In determining whether the defendants’ behavior came under RICO, the court considered whether they had formed a “union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). The court cited the test set out by the Supreme Court in United States v. Turkette, 452 U.S. 576, 583 (1981), which held that finding an association-in-fact requires “evidence of [(1)] an ongoing organization, formal or informal, and . . . [(2)] evidence that the various associates function as a continuous unit.” According to the court, the test requires that “at a minimum” the “enterprise must be sufficiently organized and continuous such that it exists as an ‘entity’ distinct from the individual defendant.” Using this test, the court found that the defendants never acted as an organized entity because the group lacked a formal organization. It did not have a leader, did not have a division of responsibilities, never conducted meetings, never raised money, never shared control of the individual websites, and never shared content without permission.
While the court endorsed the plaintiff’s argument that “sharing information among group members is an activity that tends toward finding an association-in-fact enterprise,” it held that such sharing of information was not sufficient to find an association-in-fact without considering “whether the communications were consistent with an entity demonstrating ongoing organization and continued coordination.” The court found that the e-mails sent by the defendants were diffuse, disorganized, and rarely of much use to the other members. Moreover, they frequently involved topics unrelated to GWP, such as “cordial greetings” and “discussions of politics.” In the few cases where the information was useful, the assistance was given on an ad hoc basis that reflected the fact that “they shared common interests, but offer[ed] no proof of ongoing organization or coordination.”
By means of comparison, the court considered RICO cases from the First Circuit Court of Appeals that had found sufficient evidence of an enterprise. All of them required that the group in question maintain a formal structure more developed than that evinced by the “sharing of information and a few, ad hoc, coordinated activities.” Similarly, the court found that the defendants’ behavior did not accord with the purpose of the “enterprise element” in the RICO statute as described by the Supreme Court in National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 259 (1994), which held that RICO was intended to “prevent enterprises from serving as either the ‘victim’ or the ‘vehicle’ of racketeers.” In this case, the court held that “no reasonable person could conclude that Defendants’ either used an association as a vehicle for any racketeering activities or, that by engaging in such racketeering activities, they victimized an association to which they were members.” Thus, the defendants were entitled to summary judgment on the RICO charge because their “organization” was “simply not the type to which RICO applies.”