The 6 women suing Harvey Weinstein are using a gangster law originally designed to take down the Mafia — and experts warn it won’t be easy

  • Harvey Weinstein and his companies face a potential class-action racketeering lawsuit after allegedly conspiring to cover up sexual assault and silence victims.
  • Legal experts say using the federal racketeering statute is a more complex route than a personal injury suit – but if they win, they could receive triple the amount of potential damages.

Six women on Wednesday filed a proposed class-action lawsuit against disgraced Hollywood mogul Harvey Weinstein and the companies associated with him, alleging that their coordinated efforts to cover up a pattern of egregious sexual misconduct amounted to racketeering.

The women accused Weinstein, The Weinstein Company, members of its board, and Miramax of violating the Racketeer Influenced and Corrupt Organizations (RICO) act, a law passed in 1970 that was designed to prosecute massive criminal enterprises like the Mafia.

But legal experts say a class-action racketeering suit against Weinstein and his co-defendants will likely be a complex, lengthy process.

The RICO claim’s primary value is to bring publicity to the lawsuit.

“In my opinion, the RICO claim’s primary value is to bring publicity to the lawsuit,” Jeffrey Grell, a University of Minnesota law professor who has written a book on RICO, told Business Insider. He added that the plaintiffs would have better standing to sue over personal injury – tort – claims.

“This is assault, it’s battery, it’s intentional infliction of emotional distress,” he said. “I tell people when they present [racketeering] claims like this to me, ‘Hey, if you need to get from point A to point B, why buy a jet when you can get to point B by riding a bike?’ And the tort claims are like riding the bicycle.”

Though racketeering claims can be more complicated than torts, successful suits come with significantly higher damages, Morgan Cloud, an Emory University law professor who has studied RICO, told Business Insider in an email.

“Litigants sue for civil damages under the RICO statute in part because, if they win, they are entitled to recover treble damages – three times their actual damages – and their costs of litigation, including attorneys’ fees,” he said.

The crux of the women’s arguments is that Weinstein and multiple “complicit” individuals and companies conspired to lure women, under the guise of career advancement opportunities, into situations where Weinstein could sexually harass or assault them. Then, they say, Weinstein and his associates would allegedly silence accusations of wrongdoing by blacklisting or threatening to blacklist the women.

Weinstein’s alleged sexual misconduct ranges from instances of flashing, groping, and harassing to fondling, battering, false imprisonment, sexual assault, and rape.

‘I don’t know how they prove that’

The women who took down Weinstein, and other

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The women who took down Weinstein, and other “Silence Breakers” like them, were immortalized as TIME magazine’s 2017 “Person of the Year” on Wednesday.
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TIME

Despite the gravity of the women’s allegations, there are several problems their attorneys will run into with a racketeering claim, Grell said.

In a civil RICO claim, for instance, a plaintiff must prove that racketeering damaged their business or property.

In this case, the suit alleges that Weinstein and his associates used obstruction of justice, witness tampering, and mail and wire fraud to prevent the women from getting work. That, Grell said, is notoriously difficult to prove.

“RICO requires that the plaintiff prove that but for the fraud they would have received the part … and I don’t know how they prove that in a case like this,” Grell said.

“They essentially have to prove that but for Weinstein’s lie, or half-truth, they would have gotten this part. And when you look into the reasons why anyone is hired for any job, there’s a multitude of reasons.”

Similar civil racketeering cases have died for those reasons, he added, including cases against clergy members accused of covering up sexual abuse scandals.

Attorney Steve Berman, managing partner of the Hagens Berman firm representing the women, told Business Insider in a statement that the suit is “a classic case for RICO.”

“Yesterday’s New York Times article called it ‘Weinstein’s Complicity Machine,'” Berman said. “Exactly what we have here is an enterprise of many assisting Weinstein’s unlawful conduct, and RICO prohibits unlawful enterprises. We see it as a classic RICO case.”

We see it as a classic RICO case.

One aspect in the plaintiff’s favor is that the federal racketeering statute is a broad one that many conventional organizations have been successfully sued under. Cloud sees several aspects of the women’s suit that at first glance appear to fall neatly under RICO’s requirements.

For instance, the women must demonstrate a “pattern” of racketeering activity, meaning multiple acts over a significant period of time. Their suit – and the dozens of other women who have made public allegations against Weinstein in recent months – appears to have done that, Cloud said.

“Assuming that press reports have been accurate, actions by Weinstein and his associates could constitute a pattern – if these actions are ‘racketeering acts,'” he told Business Insider in an email.

Furthermore, the plaintiffs must demonstrate the existence of an “enterprise,” which must in some way affect interstate or foreign commerce.

“The Weinstein Company undoubtedly passes that test,” Cloud said.