AND · 18usc1962:pattern.continuity
"Continuity" is both a closed- and open-ended concept: either a closed period of repeated conduct extending over a substantial period of time (typically >1 year, evaluated with multi-factor tests in single-victim/single-scheme fraud cases), or past conduct that by its nature projects into the future with a threat of repetition.
Exact element source
a pattern of racketeering activitySource:
docroot/ir/usc/title18.jsonl#title18_sec1962; Unicode character offsets [135:169] (end exclusive); SHA-256 6caae47f43b5ab0899b660616e298363bd36f9f540d915c2be11eb7126f5e27d.Routes and case patterns
| Route | Definition | Merits instance blocks | Distinct merits cases | Examples (up to 3 cases per count group) |
|---|---|---|---|---|
| closed-ended provisional; 3 observed cases | Whether a closed period of repeated conduct is long enough to show continuity (H.J. Inc.). | 3 Satisfied 0; not satisfied 3; excluded context 1 | 2 | Senior Health Ins. Co. of Pa. v. Beechwood Re Ltd. — 377 F. Supp. 3d 414 (2019) · United States District Court for the Southern District of New York · 2019 — not · pleaded (18usc1962: author: Flash1 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) · applied/merits · counted Midwest Grinding Co. v. Spitz — 976 F.2d 1016 (1992) · United States Court of Appeals for the Seventh Circuit · 1992 — not · no-evidence (18usc1962: author: Fable · QA: PASS (QA1, neov2/qa/cases-v1-QA1.md)) · applied/merits · counted Midwest Grinding Co. v. Spitz — 976 F.2d 1016 (1992) · United States Court of Appeals for the Seventh Circuit · 1992 — not · no-evidence (18usc1962: author: Fable · QA: PASS (QA1, neov2/qa/cases-v1-QA1.md)) · applied/merits · counted Crest Construction II, Inc. v. Doe — 660 F.3d 346 (2011) · United States Court of Appeals for the Eighth Circuit · 2011 — not · pleaded (18usc1962: author: Fable · not independently reviewed) · applied/alternative · not counted |
| open-ended provisional; 2 observed cases | Whether the conduct by its nature threatens repetition into the future. | 1 Satisfied 0; not satisfied 1; excluded context 1 | 1 | Midwest Grinding Co. v. Spitz — 976 F.2d 1016 (1992) · United States Court of Appeals for the Seventh Circuit · 1992 — not · no-evidence (18usc1962: author: Fable · QA: PASS (QA1, neov2/qa/cases-v1-QA1.md)) · applied/merits · counted Crest Construction II, Inc. v. Doe — 660 F.3d 346 (2011) · United States Court of Appeals for the Eighth Circuit · 2011 — not · pleaded (18usc1962: author: Fable · not independently reviewed) · applied/alternative · not counted |
How courts decided this element
| Case | Element | Holding and scope | Pattern | Exact source quotations |
|---|---|---|---|---|
| Senior Health Ins. Co. of Pa. v. Beechwood Re Ltd. — 377 F. Supp. 3d 414 (2019) · United States District Court for the Southern District of New York · 2019 — not · pleaded (18usc1962: author: Flash1 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | Continuity of predicate acts (closed-ended or open-ended continuity) | not Counted merits instance applied / merits basis: pleaded; claim: (a), (c), (d); party: Beechwood defendants (Beechwood Re, BAM, BBIL, BRILLC, Feuer, Taylor, Narain); count: civil RICO claims under § 1962(a), (c) and (d), Second Amended Complaint; theory: closed-ended continuity from misvalued performance-fee withdrawals, the only predicates outside the securities-fraud bar; subject: party=Beechwood defendants (Beechwood Re, BAM, BBIL, BRILLC, Feuer, Taylor, Narain); count=civil RICO claims under § 1962(a), (c) and (d), Second Amended Complaint; theory=closed-ended continuity from misvalued performance-fee withdrawals, the only predicates outside the securities-fraud bar Once the securities-related predicates are barred, the remaining predicates cover only 22 months, short of the two years the Second Circuit requires for closed-ended continuity; the earlier inducement acts, which would have stretched the period past two years, fall within the bar. | surviving predicates (misvalued performance-fee withdrawals) span 22 months, under the Second Circuit two-year floor | In the SAC, SHIP adds multiple allegations of fraud, including allegations regarding defendants' misrepresentations of the market value of SHIP's assets in connection with defendants' regular withdrawal of performance fees.Source: docroot/ir/caselaw/f_supp_3d_377.jsonl#/f-supp-3d/377/0414-01; Unicode character offsets [23823:24046] (end exclusive); SHA-256 c74ec68ba461f362e9f20621deaf8ca808eb83739109e098a4cd911bc194df74.These withdrawals are alleged to have taken place over a 22-month periodSource: docroot/ir/caselaw/f_supp_3d_377.jsonl#/f-supp-3d/377/0414-01; Unicode character offsets [24073:24145] (end exclusive); SHA-256 c74ec68ba461f362e9f20621deaf8ca808eb83739109e098a4cd911bc194df74.the last withdrawal is alleged to have taken place more than two years after SHIP was induced to enter into the IMAsSource: docroot/ir/caselaw/f_supp_3d_377.jsonl#/f-supp-3d/377/0414-01; Unicode character offsets [24249:24365] (end exclusive); SHA-256 c74ec68ba461f362e9f20621deaf8ca808eb83739109e098a4cd911bc194df74.Where, as here, the pattern is closed-ended, the Second Circuit has held that "predicate acts occurring over less than a two-year period may not be deemed a pattern."Source: docroot/ir/caselaw/f_supp_3d_377.jsonl#/f-supp-3d/377/0414-01; Unicode character offsets [23224:23390] (end exclusive); SHA-256 c74ec68ba461f362e9f20621deaf8ca808eb83739109e098a4cd911bc194df74.However, as noted above, defendants' withdrawals are alleged to have taken place over only 22 months, which is less than the two years required to constitute a "pattern" for RICO purposes.Source: docroot/ir/caselaw/f_supp_3d_377.jsonl#/f-supp-3d/377/0414-01; Unicode character offsets [29513:29701] (end exclusive); SHA-256 c74ec68ba461f362e9f20621deaf8ca808eb83739109e098a4cd911bc194df74. |
| Midwest Grinding Co. v. Spitz — 976 F.2d 1016 (1992) · United States Court of Appeals for the Seventh Circuit · 1992 — not · no-evidence (18usc1962: author: Fable · QA: PASS (QA1, neov2/qa/cases-v1-QA1.md)) | Continuity of predicate acts (closed-ended or open-ended continuity) | not Counted merits instance applied / merits basis: no-evidence; claim: (c),(d); count: the diversion scheme; theory: open-ended continuity (threat of repetition after Spitz left Midwest); subject: count=the diversion scheme; theory=open-ended continuity (threat of repetition after Spitz left Midwest) Disloyal-insider scheme has a natural end point: once the insider resigns, competing is lawful, so no threat of future racketeering. | continuity/open-ended-no-threat-scheme-ended-with-employment | That reassurance notwithstanding, Spitz resigned from Midwest in August 1986 and immediately went to work for U.S. Grinding.Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [2905:3029] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.As will later become relevant, Spitz’s relationship with Midwest was not governed by a non-competition or confidentiality agreement, which would have prevented him from competing with Midwest or soliciting its customers in the event he left its employ.Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [941:1193] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.Such a threat of continuity exists when the plaintiff can show (1) a “specific threat of repetition,” (2) that the “predicate acts or offenses are part of an ongoing entity’s regular way of doing business,” or (3) that the defendant operates a “long-term association that exists for criminal purposes.”Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [20458:20760] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.Absent a non-competition or confidentiality clause, Spitz owed no duty to Midwest; thus, the alleged scheme to fraudulently divert business and employees to U.S. Grinding ceased to exist in August 1986 when Spitz left Midwest.Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [22064:22290] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.Second, Midwest has failed to present any evidence that the predicate acts here are part of the defendants’ “regular way of doing business,” or that Spitz and Grunfeld routinely raided competitors in this fashion.Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [22291:22504] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79. |
| Midwest Grinding Co. v. Spitz — 976 F.2d 1016 (1992) · United States Court of Appeals for the Seventh Circuit · 1992 — not · no-evidence (18usc1962: author: Fable · QA: PASS (QA1, neov2/qa/cases-v1-QA1.md)) | Continuity of predicate acts (closed-ended or open-ended continuity) | not Counted merits instance applied / merits basis: no-evidence; claim: (c),(d); count: the litigation cover-up (false deposition testimony and mailed responses to requests to admit); theory: later concealment extends the duration of the scheme; subject: count=the litigation cover-up (false deposition testimony and mailed responses to requests to admit); theory=later concealment extends the duration of the scheme Predicate status of the cover-up acts assumed arguendo; later concealment does not lengthen a closed-ended scheme unless plotted in advance. Was [assumed]: what is assumed arguendo is only the predicate status of the cover-up acts (see racketeering.obstruction). The continuity ruling itself is summary judgment -- "not a trace of evidence" that concealment was plotted in advance. | continuity/cover-up-does-not-extend-scheme | For example, Spitz and Grunfeld denied under oath that they went to Michigan together to acquire machinery for U.S. Grinding.Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [16657:16782] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.Midwest contends that the responses to their requests to admit, which were sent through the mails, constituted mail fraud and, therefore, can serve as predicate acts.Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [16914:17080] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.A conspiracy ends when the design to commit substantive misconduct ends; it does not continue beyond that point “merely because the conspirators take steps to bury their traces, in order to avoid detection and punishment after the central criminal purpose has been accomplished.”Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [26383:26662] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.even if we assume actions to hide Spitz’s involvement with U.S. Grinding qualify as predicate acts, they do nothing to extend the duration of the underlying diversion schemeSource: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [25848:26021] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79. |
| Midwest Grinding Co. v. Spitz — 976 F.2d 1016 (1992) · United States Court of Appeals for the Seventh Circuit · 1992 — not · no-evidence (18usc1962: author: Fable · QA: PASS (QA1, neov2/qa/cases-v1-QA1.md)) | Continuity of predicate acts (closed-ended or open-ended continuity) | not Counted merits instance applied / merits basis: no-evidence; claim: (c),(d); count: the diversion scheme (customers and employees moved from Midwest to U.S. Grinding); theory: closed-ended continuity; subject: count=the diversion scheme (customers and employees moved from Midwest to U.S. Grinding); theory=closed-ended continuity Single scheme, single victim, single injury, at most nine months (footnote: really three to four); hundreds of similar mailings do not add continuity. Summary judgment for defendants: plaintiff's evidence insufficient as a matter of law. | continuity/closed-ended-too-short | in June 1986, for example, Spitz fired or laid off Midwest’s entire night shift of six workers, several of whom mysteriously reappeared as employees of U.S. GrindingSource: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [2245:2410] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.Here, the effort to divert Midwest’s customers and employees was a one-shot scheme that lasted, at most, nine months, from the time Spitz and Grun-feld began doing the groundwork to establish U.S. Grinding (December 1985) to the time Spitz resigned (August 1986).Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [24647:24910] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.The predicate acts consisted primarily of hundreds of invoices sent through the mails to former Midwest customers.Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [27087:27201] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.There was only one victim (Midwest), see, e.g., J.D. Marshall, 935 F.2d at 819, one scheme (the diversion of customers and employees from Midwest to U.S. Grinding), see, e.g., Sutherland, 882 F.2d at 1204 (no pattern where defendant engaged in a “one-shot” effort to inflict injury), and one type of injury (loss of business).Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [28395:28721] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.To satisfy the continuity element in a closed-ended case, the plaintiff must prove a series of related predicates enduring a “substantial period of time.”Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [19762:19916] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.According to Mor gan, continuity is a function of the duration of time over which the predicate acts were committed, the number and variety of predicate acts, the number of victims, the presence of separate schemes, and the occurrence of distinct injuries.Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [24093:24349] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.Although the sheer number of predicate acts might appear at first glance to prove continuity, when it comes to a pattern premised on acts of mail or wire fraud, the volume of mailings is not dispositive.Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [27202:27405] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79.This closed-ended scheme has none of the trappings of a long-term criminal operation that carries with it a threat to society; it is, in short, a run-of-the mill fraud case that belongs in state court.Source: docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [28766:28967] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79. |
| Crest Construction II, Inc. v. Doe — 660 F.3d 346 (2011) · United States Court of Appeals for the Eighth Circuit · 2011 — not · pleaded (18usc1962: author: Fable · not independently reviewed) | Continuity of predicate acts (closed-ended or open-ended continuity) | not Excluded from merits counts applied / alternative basis: pleaded; claim: (c); theory: open-ended continuity; subject: theory=open-ended continuity Unnamed "multiple victims" and labels like "ongoing scheme" do not plead a threat of future repetition. | continuity/open-ended-conclusory-threat | Plaintiffs argue the district court failed to “recognize the true nature of the Defendants’ long term threat not only to Plaintiffs but as to the multiple victims over a significant period of time”Source: docroot/ir/caselaw/f3d_660.jsonl#/f3d/660/0346-01; Unicode character offsets [18651:18848] (end exclusive); SHA-256 7242ae3a845a9fa3ef9d25b96ac25219b1844b6afcfbaf06badc6e8e5c6be7c8.We reject Plaintiffs’ conclusory assertion that Defendants’ activities constituted an open-ended fraudulent scheme because the “true nature of the Defendants’ long term threat [was] not only [as] to Plaintiffs but as to the multiple victims over a significant period of time.”Source: docroot/ir/caselaw/f3d_660.jsonl#/f3d/660/0346-01; Unicode character offsets [24804:25080] (end exclusive); SHA-256 7242ae3a845a9fa3ef9d25b96ac25219b1844b6afcfbaf06badc6e8e5c6be7c8. |
| Crest Construction II, Inc. v. Doe — 660 F.3d 346 (2011) · United States Court of Appeals for the Eighth Circuit · 2011 — not · pleaded (18usc1962: author: Fable · not independently reviewed) | Continuity of predicate acts (closed-ended or open-ended continuity) | not Excluded from merits counts applied / alternative basis: pleaded; claim: (c); theory: closed-ended continuity; subject: theory=closed-ended continuity Eighth Circuit bright-ish line: closed-ended continuity needs about a year; under seven months (single investor, one dealership) fails as a matter of law. | continuity/closed-ended-too-short | In December 2003, Randall Robb (Robb), doing business as Crest, was approached by business acquaintance Larry Myers (Myers) about purchasing third-party auto sales contracts and promissory notes (Loan Accounts) from On Time Auto, Inc. (On Time Auto).Source: docroot/ir/caselaw/f3d_660.jsonl#/f3d/660/0346-01; Unicode character offsets [629:879] (end exclusive); SHA-256 7242ae3a845a9fa3ef9d25b96ac25219b1844b6afcfbaf06badc6e8e5c6be7c8.In June 2004, Myers unilaterally withdrew from the day-to-day operations of On Time Auto and used the entire amount in the Reserve Account ($40,000) for his own purposes.Source: docroot/ir/caselaw/f3d_660.jsonl#/f3d/660/0346-01; Unicode character offsets [3450:3620] (end exclusive); SHA-256 7242ae3a845a9fa3ef9d25b96ac25219b1844b6afcfbaf06badc6e8e5c6be7c8.We have held that closed-ended continuity “can be shown by related acts continuing over a period of time lasting at least one year____”Source: docroot/ir/caselaw/f3d_660.jsonl#/f3d/660/0346-01; Unicode character offsets [23781:23916] (end exclusive); SHA-256 7242ae3a845a9fa3ef9d25b96ac25219b1844b6afcfbaf06badc6e8e5c6be7c8.The complaint also fails to satisfy the continuity element alleging a scheme that began in December 2003 and continued until June 2004, a period of less than seven months.Source: docroot/ir/caselaw/f3d_660.jsonl#/f3d/660/0346-01; Unicode character offsets [23609:23780] (end exclusive); SHA-256 7242ae3a845a9fa3ef9d25b96ac25219b1844b6afcfbaf06badc6e8e5c6be7c8.The scheme allegedly lasted less than seven months, which is legally insufficient “to constitute the requisite pattern of racketeering activity.”Source: docroot/ir/caselaw/f3d_660.jsonl#/f3d/660/0346-01; Unicode character offsets [24081:24226] (end exclusive); SHA-256 7242ae3a845a9fa3ef9d25b96ac25219b1844b6afcfbaf06badc6e8e5c6be7c8. |
Court interpretations
interpretation
To satisfy the continuity element in a closed-ended case, the plaintiff must prove a series of related predicates enduring a “substantial period of time.”
Midwest Grinding Co. v. Spitz — 976 F.2d 1016 (1992) · United States Court of Appeals for the Seventh Circuit · 1992 (18usc1962: author: Fable · QA: PASS (QA1, neov2/qa/cases-v1-QA1.md))
To satisfy the continuity element in a closed-ended case, the plaintiff must prove a series of related predicates enduring a “substantial period of time.”Source:
docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [19762:19916] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79."Continuity" is both a closed- and open-ended concept: either a closed period of repeated conduct extending over a substantial period of time (typically >1 year, evaluated with multi-factor tests in single-victim/single-scheme fraud cases), or past conduct that by its nature projects into the future with a threat of repetition.
interpretation
Such a threat of continuity exists when the plaintiff can show (1) a “specific threat of repetition,” (2) that the “predicate acts or offenses are part of an ongoing entity’s regular way of doing business,” or (3) that the defendant operates a “long-term association that exists for criminal purposes.”
Midwest Grinding Co. v. Spitz — 976 F.2d 1016 (1992) · United States Court of Appeals for the Seventh Circuit · 1992 (18usc1962: author: Fable · QA: PASS (QA1, neov2/qa/cases-v1-QA1.md))
Such a threat of continuity exists when the plaintiff can show (1) a “specific threat of repetition,” (2) that the “predicate acts or offenses are part of an ongoing entity’s regular way of doing business,” or (3) that the defendant operates a “long-term association that exists for criminal purposes.”Source:
docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [20458:20760] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79."Continuity" is both a closed- and open-ended concept: either a closed period of repeated conduct extending over a substantial period of time (typically >1 year, evaluated with multi-factor tests in single-victim/single-scheme fraud cases), or past conduct that by its nature projects into the future with a threat of repetition.
interpretation
According to Mor gan, continuity is a function of the duration of time over which the predicate acts were committed, the number and variety of predicate acts, the number of victims, the presence of separate schemes, and the occurrence of distinct injuries.
Midwest Grinding Co. v. Spitz — 976 F.2d 1016 (1992) · United States Court of Appeals for the Seventh Circuit · 1992 (18usc1962: author: Fable · QA: PASS (QA1, neov2/qa/cases-v1-QA1.md))
According to Mor gan, continuity is a function of the duration of time over which the predicate acts were committed, the number and variety of predicate acts, the number of victims, the presence of separate schemes, and the occurrence of distinct injuries.Source:
docroot/ir/caselaw/f2d_976.jsonl#/f2d/976/1016-01; Unicode character offsets [24093:24349] (end exclusive); SHA-256 ebc98ea70879c4cb40e7f64b87cbfd47e72732fe1a73dbca8733e49576748b79."Continuity" is both a closed- and open-ended concept: either a closed period of repeated conduct extending over a substantial period of time (typically >1 year, evaluated with multi-factor tests in single-victim/single-scheme fraud cases), or past conduct that by its nature projects into the future with a threat of repetition.
interpretation
We have held that closed-ended continuity “can be shown by related acts continuing over a period of time lasting at least one year____”
Crest Construction II, Inc. v. Doe — 660 F.3d 346 (2011) · United States Court of Appeals for the Eighth Circuit · 2011 (18usc1962: author: Fable · not independently reviewed)
We have held that closed-ended continuity “can be shown by related acts continuing over a period of time lasting at least one year____”Source:
docroot/ir/caselaw/f3d_660.jsonl#/f3d/660/0346-01; Unicode character offsets [23781:23916] (end exclusive); SHA-256 7242ae3a845a9fa3ef9d25b96ac25219b1844b6afcfbaf06badc6e8e5c6be7c8."Continuity" is both a closed- and open-ended concept: either a closed period of repeated conduct extending over a substantial period of time (typically >1 year, evaluated with multi-factor tests in single-victim/single-scheme fraud cases), or past conduct that by its nature projects into the future with a threat of repetition.