In respondents' private civil action brought under the Racketeer
Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§
1961-1968, they alleged that petitioner bank and several of its
officers had fraudulently charged excessive interest rates on loans
to respondents, and that the scheme to defraud, which was carried
on through the mails, violated § 1962(c), in that the mailings
constituted a pattern of racketeering activity by means of which
petitioners conducted, or participated in the conduct of, the bank.
The only injuries alleged were the excessive interest charges
themselves. The District Court dismissed on the ground that the
complaint did not state a claim, but the Court of Appeals reversed
in relevant part.
Held:
1. In their brief and at oral argument, petitioners raised the
issue -- not raised or addressed below and not included in the
question presented by their petition for certiorari -- that
respondents' complaint did not adequately allege a violation of §
1962(c) because they had not shown that the enterprise was
"conducted" through a pattern of racketeering activity. The issue
will not be considered, in view of this Court's Rule 21.1(a) that
only the question set forth in the petition for certiorari or
fairly included therein will be considered.
2. There is no merit to petitioners' argument that respondents'
injury must flow not from the predicate offenses, prescribed in the
statute, but from the fact that they were performed as part of the
conduct of an enterprise. That argument is a variation on the
"racketeering injury" concept rejected in
Sedima, S. P. R. L.
v. Imrex Co., ante p.
473
U. S. 479.
747 F.2d 384, affirmed.
Page 473 U. S. 607
PER CURIAM.
This is a private civil action brought under the Racketeer
Influenced and Corrupt Organizations Act (RICO), Pub.L. 91-452,
Title IX, 84 Stat. 941, as amended, 18 U.S.C. §§ 1961-1968.
Respondents' complaint alleged that petitioner bank and several of
its officers had fraudulently charged excessive interest rates on
loans. The gist of the claim was that the bank had lied with regard
to its prime rate, and that the rate charged to respondents, which
was pegged to the prime, was therefore too high. The complaint
alleged that this scheme to defraud, which was carried on through
the mails, violated 18 U.S.C. § 1962(C), in that the mailings
constituted a pattern of racketeering activity by means of which
petitioners conducted, or participated in the conduct
Page 473 U. S. 608
of, the bank. The only injuries alleged were the excessive
interest charges themselves.
The District Court dismissed on the ground that the complaint
did not state a claim.
577 F.
Supp. 111 (ND Ill.1983). In its view,
"to be cognizable under RICO, [the injury] must be caused by a
RICO violation, and not simply by the commission of predicate
offenses, such as acts of mail fraud."
Id. at 114. The Court of Appeals for the Seventh
Circuit reversed in relevant part, 747 F.2d 384 (1984), rejecting
various formulations of a requirement of a distinct RICO injury. We
granted certiorari, 469 U.S. 1157 (1984), to consider the question
whether a claim under § 1964(c) requires that the plaintiff have
suffered damages by reason of the defendant's violation of § 1962
through the prescribed predicate offenses, or whether injury from
those offenses alone is sufficient.
*
In their brief, and at oral argument, petitioners have argued
primarily that respondents' complaint does not adequately allege a
violation of § 1962(c). In particular, they assert that respondents
have not shown that the enterprise was "conducted" through a
pattern of racketeering activity. Petitioners do not appear to have
made this precise argument below, it was not addressed by the Court
of Appeals, and it quite clearly is not included in the question
presented by their petition for certiorari. Although we have the
authority to waive it, this Court's Rule 21.1(a) provides that only
the question set forth in the petition for certiorari or fairly
included therein will be considered, and we therefore do not
consider petitioners' late-blooming argument that the complaint
failed to allege a violation of § 1962(c).
Page 473 U. S. 609
To the extent petitioners' argument is a variation on the
racketeering injury concept at issue in
Sedima, S. P. R. L. v.
Imrex Co., ante p.
473 U. S. 479, it
is inconsistent with that decision. The submission that the injury
must flow not from the predicate acts themselves, but from the fact
that they were performed as part of the conduct of an enterprise
suffers from the same defects as the amorphous and unfounded
restrictions on the RICO private action we rejected in that
case.
With regard to the question presented, we view the decision of
the court below as consistent with today's opinion in
Sedima, and it is accordingly
Affirmed.
[For dissenting opinion of JUSTICE MARSHALL,
see ante
p.
473 U. S.
500.]
* The question presented was:
"Whether a civil claim for treble damages under the Racketeer
Influenced And Corrupt Organizations Act ('RICO') requires that the
plaintiff suffer damages by reason of the defendant's acquiring,
maintaining control or an interest in, or conducting the affairs of
an 'enterprise' through the commission of statutorily prescribed
offenses, as opposed to being damaged solely by reason of the
defendant's commission of such offenses."
Pet. for Cert. i.
