ODOM v. MICROSOFT CORP.
The Ninth Circuit Court of Appeals today released an opinion in ODOM v. MICROSOFT CORP., No. 04-35468, a federal appeal. The panel consisted of Mary M. Schroeder, Chief Circuit Judge, Stephen Reinhardt, Diarmuid F. O’Scannlain, Pamela Ann Rymer, Michael Daly Hawkins, Sidney R. Thomas, Barry G. Silverman, William A. Fletcher, Raymond C. Fisher, Richard A. Paez, Marsha S. Berzon, Richard C. Tallman, Johnnie B. Rawlinson, Jay S. Bybee, and Carlos T. Bea, Circuit Judges.
W. FLETCHER, Circuit Judge:
Putative class action plaintiffs appeal from the dismissal of their suit under Federal Rule of Civil Procedure 12(b)(6) for failure to allege an “associated in fact” “enterprise” under RICO and, in the alternative, under Federal Rule of Civil Procedure 9(b) for failure to plead wire fraud with particularity. The district court dismissed with prejudice and without leave to amend. We reverse and remand. . . .
SILVERMAN, Circuit Judge, with whom RYMER, TALLMAN, RAWLINSON, and BEA, Circuit Judges, join, concurring in the result:
I do not see how Odom’s complaint successfully pleads an “enterprise” within the RICO statute. The language in Turkette is the starting point. An “enterprise” is “a group of persons associated together for a common purpose,” and is proven by “evidence of an ongoing organization, formal or informal” and “evidence that the various associates function as a continuing unit.” United States v. Turkette, 452 U.S. 576, 583 (1981). Paragraph 34 of Odom’s complaint alleges only the following with respect to defining the associated-in-fact “enterprise” element: Defendants’s agreement that Microsoft will advertise and promote Best Buy and its online store on its MSN Internet access service and various Microsoftowned Websites, while Best Buy will advertise and promote MSN service in its “bricks and mortar” and online stores, together with Defendants’ activities in furtherance of the agreement, constitute an “enterprise” as defined in 18 U.S.C. ยง 1961(4). Nothing in this paragraph fairly alleges an “ongoing organization” between Microsoft and Best Buy. It merely states that . . .
BYBEE, Circuit Judge, joined by Judge REINHARDT, concurring:
It strikes me as outlandish that what Judge Silverman correctly describes as a “marketing contract” between Microsoft and Best Buy could subject them to a private RICO action. Slip Op. at 4986 (Silverman, J., concurring in the result). But my concerns were voiced and dismissed more than twenty years ago. See Sedmina, S.P.R.L. v. Imrex Co., 473 U.S. 479, 497-99 (1985). I therefore join Judge Fletcher’s opinion for the court. . . .