North Carolina Business Litigation Report

Puckett v. KPMG, LLP, 2006 NCBC 19 (N.C. Super. Nov. 15, 2006, amended Nov. 16, 2006)(Diaz)

The Court denied plaintiffs' Motion to Amend to add a claim for violation of the North Carolina RICO Claim, finding that it would be futile. The statute requires that a plaintiff allege "at least one act of racketeering activity other than (i) an act indictable under 18 U.S.C. § 1341 or U.S.C. § 1343 [prohibiting wire and mail fraud], or (ii) an act which is an offense involving fraud in the sale of securities." The Court found that it was not bound by cases construing the federal RICO Act, as the state statute was different, and applied general principles of statutory construction. It focused on the intent of the Legislature, and found that the purpose of the statue was to "provide compensation to private persons injured by unlawful activity," but not to allow recovery for wrongful acts which were also wire fraud, mail fraud, or fraud in teh sale of securities. All of the wrongful acts alleged by plaintiffs, the court found, were designed to get them to engage in the purchase or sale of securities. Therefore, plaintiffs were not entitled to make a state RICO claim.

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Mack Sperling
Brooks Pierce, LLP
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