Steven Menzies v. Seyfarth Shaw LLP

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 18-3232

STEVEN MENZIES,

Plaintiff-Appellant,

v.

SEYFARTH SHAW LLP, an Illinois limited liability partnership,

et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:15-cv-3403 — John Robert Blakey, Judge.

____________________

ARGUED MAY 22, 2019 — DECIDED NOVEMBER 12, 2019

____________________

Before HAMILTON, SCUDDER, and ST. EVE, Circuit Judges.

SCUDDER, Circuit Judge. Insurance executive Steven Men-

zies sold over $64 million in his company’s stock but did not

report any capital gains on his 2006 federal income tax return.

He alleges that his underpayment of capital gains taxes (and

the related penalties and interest subsequently imposed by

the Internal Revenue Service) was because of a fraudulent tax

shelter peddled to him and others by a lawyer, law firm, and

2 No. 18-3232

two financial services firms. Menzies advanced this conten-

tion in claims he brought under the Racketeer Influenced and

Corrupt Organizations Act or RICO and Illinois law. The dis-

trict court dismissed all claims.

Menzies’s RICO claim falls short on the statute’s pattern-

of-racketeering element. Courts have labored mightily to ar-

ticulate what the pattern element requires, and Menzies’s

claim presents a close question. In the end, we believe Men-

zies failed to plead not only the particulars of how the defend-

ants marketed the same or a similar tax shelter to other tax-

payers, but also facts to support a finding that the alleged

racketeering activity would continue. To conclude otherwise

would allow an ordinary (albeit grave) claim of fraud to ad-

vance in the name of RICO—an outcome we have time and

again cautioned should not occur. In so holding, we in no way

question whether a fraudulent tax shelter scheme can violate

RICO. The shortcoming here is one of pleading alone, and it

occurred after the district court authorized discovery to allow

Menzies to develop his claims.

As for Menzies’s state law claims, we hold that an Illinois

statute bars as untimely the claims advanced against the law-

yer and law firm defendants. The claims against the two re-

maining financial services defendants can proceed, however.

So we affirm in part, reverse in part, and remand.

I

The original and amended complaints supply the opera-

tive facts on a motion to dismiss. On appeal we treat all alle-

gations as true, viewing them in the light most favorable to

Steven Menzies. See Moranski v. Gen. Motors Corp., 433 F.3d

537, 539 (7th Cir. 2005).

No. 18-3232 3

Menzies is the co-founder and president of an insurance

company called Applied Underwriters, Inc. or AUI. In 2002

advisers from Northern Trust approached him to begin a fi-

nancial planning relationship. In time these advisers pitched

Menzies and his colleague and AUI co-founder Sydney

Ferenc on a tax planning strategy (dubbed the Euram Oak

Strategy) to shield capital gains on major stock sales from fed-

eral tax liability. Not knowing the strategy reflected what the

IRS would later deem an abusive tax shelter, Menzies agreed

to go along with the scheme. He conducted a series of trans-

actions that, through the substitution of various assets and the

operation of multiple trusts, created an artificial tax loss used

to offset the capital gains he realized upon later selling his

AUI stock.

Northern Trust worked with others in marketing and

implementing the strategy. Christiana Bank, for example,

served as trustee for some of Menzies’s trusts while tax

attorney Graham Taylor and his law firm, Seyfarth Shaw,

provided legal advice. Taylor repeatedly assured Menzies

and Ferenc of the tax shelter’s legality, eventually opining that

there was a “greater than 50 percent likelihood that the tax

treatment described will be upheld if challenged by the IRS.”

Taylor stood by his more-likely-than-not opinion even after

being indicted in 2005 for the commission of unrelated tax

fraud—a development he never disclosed to Menzies.

In 2006 Menzies sold his AUI stock to Berkshire Hathaway

for over $64 million. Nowhere in his 2006 federal income tax

return did Menzies report the sale or any related capital gains.

Nor did Christiana Bank, which filed tax returns on behalf of

Menzies’s trusts, report any taxable income from the stock

4 No. 18-3232

sale. When the IRS learned of these developments, it com-

menced what became a three-year audit and found that the

primary purpose of the Euram Oak Strategy was tax evasion.

Facing large fines and potential adverse legal action, Menzies

agreed in October 2013 to settle with the IRS, paying over $10

million in back taxes, penalties, and interest.

In April 2015 Menzies filed suit in the Northern District of

Illinois, advancing a civil RICO claim and various Illinois law

claims against Taylor, Seyfarth Shaw, Northern Trust, and

Christiana Bank. The district court granted the defendants’

motion to dismiss, but from there twice allowed Menzies to

amend his complaint. Indeed, the district court afforded Men-

zies a full year of discovery to develop facts to support re-

newed pleading of the RICO claim that appeared in his sec-

ond amended complaint in August 2017. On the defendants’

motion, the district court dismissed that complaint for failure

to state any claim. Menzies now appeals.

II

A. The RICO Bar for Actionable Securities Fraud

Before addressing the district court’s dismissal of Men-

zies’s RICO claim, we confront a threshold issue pressed by

the defendants—whether an amendment to the RICO statute

added by the Private Securities Litigation Reform Act of 1995

or PSLRA precluded Menzies from bringing a RICO claim in

the first instance. We agree with the district court that the bar

now embodied in 18 U.S.C. § 1964(c) did not prevent Menzies

from pursuing a RICO claim on the facts alleged in his com-

plaint.

No. 18-3232 5

In enacting the PSLRA, Congress did more than seek to

curb abusive practices in securities class actions by, for exam-

ple, imposing a heightened pleading standard, requiring a

class representative to be the most adequate plaintiff, and lim-

iting damages. See Amgen Inc. v. Connecticut Ret. Plans & Trust

Funds, 568 U.S. 455, 475–76 (2013) (describing the PSLRA). The

enactment also amended RICO to prohibit a cause of action

based on “any conduct that would have been actionable as

fraud in the purchase or sale of securities.” 18 U.S.C. § 1964(c)

(emphasis added).

Upon reviewing the allegations in Menzies’s original com-

plaint, the district court denied the defendants’ motion to dis-

miss the RICO claim based on the bar in § 1964(c). The district

court started with the observation that “nothing about the sale

of his AUI stock itself was fraudulent.” Menzies v. Seyfarth

Shaw LLP, 197 F. Supp. 3d 1076, 1116 (N.D. Ill. 2016) (“Menzies

I”). “By selling Plaintiff a bogus tax shelter plan,” the court

reasoned, “[d]efendants were attempting to hide the resulting

income from Plaintiff’s sale of stock from the IRS,” and “[i]n

both form and substance” this was a “case about tax shelter

fraud, not securities fraud.” Id.

The defendants urge us to reverse, contending that the

RICO bar applies because the whole point of the Euram Oak

Strategy was for Menzies to avoid realizing taxable gains

from a stock sale. But for the stock sale, the tax shelter meant

nothing, thereby easily satisfying, as the defendants see it, the

requirement for the alleged fraud to be “in connection with”

the sale of a security and thus actionable as securities fraud

under section 10(b) of the Securities and Exchange Act of 1934,

15 U.S.C. § 78j(b), and SEC Rule 10b-5, 17 C.F.R. § 240.10b-5.

6 No. 18-3232

We see the analysis as more difficult. By its terms, the bar

in § 1964(c), as the district court recognized, requires asking

whether the fraud Menzies alleged in his complaint would be

actionable under the securities laws, in particular under sec-

tion 10(b) and Rule 10b-5. See Rezner v. Bayerische Hypo-Und

Vereinsbank AG, 630 F.3d 866, 871 (9th Cir. 2010) (assessing the

PSLRA bar and explaining that “[a]ctions for fraud in the pur-

chase or sale of securities are controlled by section 10(b) of the

Securities Exchange Act of 1934”); Bixler v. Foster, 596 F.3d 751,

759–60 (10th Cir. 2010) (adopting a similar approach); Affco

Investments 2001, LLC v. Proskauer Rose, LLP, 625 F.3d 185, 189–

90 (5th Cir. 2010) (same).

Had he sought to plead a securities fraud claim under

those provisions, Menzies would have had to allege a material

misrepresentation or omission by a defendant, scienter, a con-

nection between the misrepresentation or omission and the

purchase or sale of a security, reliance, economic loss, and loss

causation. See Glickenhaus & Co. v. Household Int’l., Inc., 787

F.3d 408, 414 (7th Cir. 2015) (citing Halliburton Co. v. Erica P.

John Fund, Inc., 573 U.S. 258, 267 (2014)). The district court got

it right in concluding that the allegations in Menzies’s original

complaint did not amount to actionable securities fraud un-

der federal law.

The Supreme Court supplied substantial direction in SEC

v. Zandford, 535 U.S. 813 (2002). The SEC brought a civil secu-

rities fraud action against a stockbroker who sold his elderly

and disabled clients’ securities and pocketed the proceeds.

See id. at 815. The Court granted review to determine whether

the stockbroker’s theft, which the SEC alleged also constituted

securities fraud, was sufficiently “in connection with” the sale

of the clients’ securities to fall within section 10(b) and Rule

No. 18-3232 7

10b-5. The Court answered yes, explaining that both provi-

sions “should be construed ‘not technically and restrictively,

but flexibly to effectuate its remedial purposes.’” Id. at 819

(quoting Affiliated Ute Citizens of Utah v. United States, 406 U.S.

128, 151 (1972)). As a practical pleading matter, the Court con-

tinued, that meant a plaintiff need not allege any misrepre-

sentation or omission about a security’s value. Nor was it nec-

essary to allege misappropriation or, even more generally, an-

other form of manipulation of a security. What would be

enough, the Court held, are allegations where “the scheme to

defraud and the sale of securities coincide.” Id. at 822.

The SEC’s allegations met this standard because the

stockbroker defendant, alongside affirmatively

misrepresenting how he intended to manage his clients’

investments—he “secretly intend[ed] from the very

beginning to keep the proceeds”—acted on that intent by

engaging in unauthorized securities sales. Id. at 824. This

misconduct “deprived [his clients] of any compensation for

the sale of their valuable securities.” Id. at 822. The “securities

transactions and breaches of fiduciary duty coincide[d],” the

Court explained, because the “[clients’] securities did not

have value for the [stockbroker] apart from their use in a

securities transaction and the fraud was not complete before

the sale of securities occurred.” Id. at 824–25. Put another way,

the SEC’s allegations left no daylight between the alleged

fraud and the securities sale.

Measured by these Zandford standards, Menzies’s allega-

tions do not satisfy the “in connection with” requirement for

an actionable claim under section 10(b) or Rule 10b-5. Start

with the alleged fraud itself. Menzies’s complaint focused not

on the AUI stock sale, but instead on its tax consequences. He

8 No. 18-3232

alleged that the defendants marketed a tax shelter that they

knew was abusive—that would conceal capital gains from the

U.S. Treasury—and caused him to incur not just unexpected

taxes and related interest and penalties but also substantial

professional fees. Yes, this may be enough to show that but

for following the defendants’ advice and selling his AUI stock

he would not have incurred the taxes and related interest and

penalties. Yet we know that such “but for” allegations do not

satisfy section 10(b) under the teachings of Zandford. See Ray

v. Citigroup Global Mkts., Inc., 482 F.3d 991, 995 (7th Cir. 2007)

(explaining that “[i]t is not sufficient [under section 10(b) and

Rule 10b-5] for an investor to allege only that it would not

have invested but for the fraud” and instead the investor must

go further and “allege that, but for the circumstances that the

fraud concealed, the investment … would not have lost its

value”) (quoting Caremark, Inc. v. Coram Healthcare Corp., 113

F.3d 645, 648–49 (7th Cir. 1997)).

If Menzies had tried to bring a securities fraud claim, he

would have had to close this pleading gap. His complaint

would have had to tether more directly the fraud to the stock

sale by including allegations that went beyond any “but for”

link and allowed a finding that the defendants’ misrepresen-

tations more closely coincided with Menzies’s sale of his AUI

stock. Menzies, in short, would have needed to plead facts

demonstrating that he incurred his alleged losses as a more

direct consequence of misrepresentations that closely touched

the stock sale itself and not just its tax consequences. That the

purpose of the tax shelter aimed to maximize the profits that

Menzies realized from his stock sale cannot itself bridge this

gap. See Ouwinga v. Benistar 419 Plan Servs., Inc., 694 F.3d 783,

791 (6th Cir. 2012) (affirming a district court’s conclusion that

the RICO bar did not apply because the plaintiffs’ “fraud

No. 18-3232 9

claim relates only to the tax consequences of the Benistar Plan,

and it is merely incidental that the [insurance] policies happen

to be securities”); Rezner, 630 F.3d at 872 (concluding the

RICO bar did not apply where, in a tax shelter fraud, “the se-

curities were merely a happenstance cog in the scheme”).

We can come at the analysis another way. No aspect of the

complaint challenged any term or condition on which

Menzies sold his AUI shares to Berkshire Hathaway. The

complaint all but says every aspect of the stock sale itself was

entirely lawful. Even more generally, no portion of the

complaint alleged that any defendant engaged in an

irregularity that tainted or affected the stock-sale transaction,

including, for example, by influencing the sales price or

somehow causing the proceeds to be mishandled. Every

indication is that Menzies received every last dollar he

expected from the sale. The fraud Menzies alleged is at least

one step removed—focused not on the sale of the AUI stock

but on how and why he charted a particular course in his

treatment of the sale for federal tax purposes and the losses

he sustained by doing so.

Do not read us to say that Menzies failed to allege fraud.

He plainly did when considered through the prism of com-

mon law standards. What we cannot say, though, is that—for

purposes of applying the RICO bar in § 1964(c)—Menzies’s

allegations amounted to actionable securities fraud under the

standards the Supreme Court has told us are required by sec-

tion 10(b) and Rule 10b-5.

While not aligning with the defendants’ view of the law,

our holding does seem on all fours with what we see and do

not see in the securities fraud case law. Our research, limited

though it is to reported decisions, reveals no meaningful

10 No. 18-3232

number of section 10(b) and Rule 10b-5 private federal secu-

rities fraud claims brought to challenge abusive tax shelters.

Nor do we see an indication that the SEC has brought many

enforcement proceedings alleging securities fraud to combat

abusive tax shelters. None of this suggests that fraud perpe-

trated as part of a scheme to evade taxes can never be action-

able under section 10(b). Our point is limited only to the ob-

servation that the federal reporters do not contain many ex-

amples of such actions, whether by private parties or the SEC.

And perhaps that reality owes itself, at least in part, to the de-

manding requirements for pleading a federal securities law

claim.

Unable to conclude that Menzies’s allegations of fraud

would be actionable under section 10(b) or Rule 10b-5, we

turn, as did the district court, to his civil RICO claim.

B. Civil RICO Claims and the Pattern Element

Enacted in response to long-term criminal activity, includ-

ing, of course, acts of organized crime, RICO provides a civil

cause of action for private plaintiffs and authorizes substan-

tial remedies, including the availability of treble damages and

attorneys’ fees. See 18 U.S.C. § 1964(c). Establishing a RICO

violation requires proof by a preponderance of the evidence

of “(1) conduct (2) of an enterprise (3) through a pattern (4) of

racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S.

479, 496–97 (1985) (interpreting § 1964(c)). It follows that a

plaintiff must plead these elements to state a claim. Congress

defined a “pattern of racketeering activity” to require “at least

two acts of racketeering activity” within a ten-year period. 18

U.S.C. § 1961(5).

No. 18-3232 11

Satisfying the pattern element is no easy feat and its pre-

cise requirements have bedeviled courts. See Jennings v. Auto

Meter Prod., Inc., 495 F.3d 466, 472 (7th Cir. 2007) (emphasizing

that “courts carefully scrutinize the pattern requirement”);

J.D. Marshall Int’l, Inc. v. Redstart, Inc., 935 F.2d 815, 820 (7th

Cir. 1991) (“Satisfying the pattern requirements—that there be

continuity and relationship among the predicate acts—is not

easy in practice.”).

The Supreme Court has considered the issue at least twice,

and our case law shows many efforts to articulate what a

plaintiff must plead to establish a pattern of racketeering ac-

tivity. See, e.g., Sedima, 473 U.S. at 496; H.J., Inc. v. Northwestern

Bell Tel. Co., 492 U.S. 229, 237–38 (1989); Vicom, Inc. v. Harbridge

Merchant Servs., Inc., 20 F.3d 771, 779–80 (7th Cir. 1994);

McDonald v. Schencker, 18 F.3d 491, 497 (7th Cir. 1994). Over

these many cases the law has landed on a pleading and proof

requirement designed “to forestall RICO’s use against iso-

lated or sporadic criminal activity, and to prevent RICO from

becoming a surrogate for garden-variety fraud actions

properly brought under state law.” Midwest Grinding Co., Inc.

v. Spitz, 976 F.2d 1016, 1022 (7th Cir. 1992) (citing H.J., Inc., 492

U.S. at 240–41).

To plead a pattern of racketeering activity, “a plaintiff

must demonstrate a relationship between the predicate acts

as well as a threat of continuing activity”—a standard known

as the “continuity plus relationship” test. DeGuelle v. Camilli,

664 F.3d 192, 199 (7th Cir. 2011). The Supreme Court an-

nounced this test in H.J., Inc. and made plain that the relation-

ship prong is satisfied by acts of criminal conduct close in time

and character, undertaken for similar purposes, or involving

12 No. 18-3232

the same or similar victims, participants, or means of commis-

sion. See 492 U.S. at 240. The relatedness of the predicate acts

often does not yield much disagreement, and much more of-

ten the focus is on the continuity prong of the test. See Vicom,

20 F.3d at 780.

Just so here: the battleground in this appeal is whether

Menzies adequately pleaded the continuity dimension of the

continuity-plus-relationship test. Doing so requires “(1)

demonstrating a closed-ended series of conduct that existed

for such an extended period of time that a threat of future

harm is implicit, or (2) an open-ended series of conduct that,

while short-lived, shows clear signs of threatening to continue

into the future.” Roger Whitmore’s Auto Servs., Inc. v. Lake

County, Ill., 424 F.3d 659, 673 (7th Cir. 2005).

Do not let the labels create confusion. The big picture

question is whether Menzies adequately alleged that the

challenged conduct occurred and went on long enough and

with enough of a relationship with itself to constitute a

pattern. Answering that question is aided by focusing on two,

more particular, inquiries. One of those inquiries—designed

to ascertain the presence of a so-called “closed-ended” series

of misconduct—asks whether there were enough predicate

acts over a finite time to support a conclusion that the criminal

behavior would continue. See Vicom, 20 F.3d at 779–80. The

focus, therefore, is on “the number and variety of predicate

acts and the length of time over which they were committed,

the number of victims, the presence of separate schemes and

the occurrence of distinct injuries.” Id. at 780 (quoting Morgan

v. Bank of Waukegan, 804 F.2d 970, 975 (7th Cir. 1986)).

The alternative continuity inquiry—applicable to an

“open-ended” series of misconduct—focuses not on what acts

No. 18-3232 13

occurred in the past but on whether a concrete threat remains

for the conduct to continue moving forward. See id. at 782.

This can be done by showing that a defendant’s actions pose

a specific threat of repetition; that the predicate acts form part

of the defendant’s ongoing and regular way of doing busi-

ness; or that the defendant operates a long-term association

for criminal purposes. See Empress Casino Joliet Corp. v. Bal-

moral Racing Club, Inc., 831 F.3d 815, 828 (7th Cir. 2016). On

these fronts, it is not enough to base an open-ended continuity

theory on just one prior predicate act and an otherwise un-

supported assertion that criminal activity will continue into

the future. See Gamboa v. Velez, 457 F.3d 703, 709 (7th Cir. 2006)

(explaining that when “a complaint explicitly presents a dis-

tinct and non-recurring scheme with a built-in termination

point and provides no indication that the perpetrators have

engaged or will engage in similar misconduct, the complaint

does not sufficiently allege continuity”).

Added complexity enters where, as here, a plaintiff seeks

to plead RICO’s pattern element through predicate acts of

mail or wire fraud. When that occurs the heightened pleading

requirements of Fed. R. Civ. P. 9(b) apply and require a plain-

tiff to do more than allege fraud generally. See Jepson v. Makita

Corp., 34 F.3d 1321, 1327 (7th Cir. 1994) (“Of course, Rule 9(b)

applies to allegations of mail and wire fraud and by extension

to RICO claims that rest on predicate acts of mail and wire

fraud.”). Rule 9(b) requires a plaintiff to provide “precision

and some measure of substantiation” to each fraud allegation.

United States ex rel. Presser v. Acacia Mental Health Clinic, LLC,

836 F.3d 770, 776 (7th Cir. 2016). Put more simply, a plaintiff

must plead the “who, what, when, where, and how” of the

alleged fraud. Vanzant v. Hill’s Pet Nutrition, Inc., 934 F.3d 730,

738 (7th Cir. 2019).

14 No. 18-3232

Given these heightened pleading standards and Con-

gress’s insistence that a RICO claim entail a clear pattern of

racketeering activity, we have cautioned that “we do not look

favorably on many instances of mail and wire fraud to form a

pattern.” Midwest Grinding, 976 F.2d at 1024–25 (quoting Hartz

v. Friedman, 919 F.2d 469, 473 (7th Cir. 1990)); see also Jennings,

495 F.3d at 475 (explaining that this court “repeatedly reject[s]

RICO claims that rely so heavily on mail and wire fraud alle-

gations to establish a pattern”). We can leave for another day

a more fulsome articulation of the interrelationship of RICO’s

pattern requirement and mail and wire fraud as predicate

acts. Our focus here is whether Menzies, within the four cor-

ners of his complaint, alleged with sufficient particularity the

acts of mail and wire fraud he believes demonstrate a pattern

of racketeering activity.

C. Menzies’s Allegations of Racketeering Activity

In his second amended complaint, Menzies detailed chap-

ter and verse the fraud the defendants allegedly perpetrated

on him. He told of the defendants approaching and pitching

him the tax benefits of the Euram Oak Strategy. Reassured

multiple times of the shelter’s legality, Menzies relied on the

defendants’ representations, executed the strategy’s compo-

nent steps through transactions with trusts and the like, and

ultimately sold his AUI stock for over $64 million to Berkshire

Hathaway. Again relying on the defendants’ assurances, he

then filed his 2006 tax return without reporting his AUI stock

sale as a taxable event.

Menzies sought to plead RICO’s pattern element by

including allegations that the defendants marketed the

identical or a substantially-similar tax shelter to three

others—his business partner and co-founder of AUI, Sydney

No. 18-3232 15

Ferenc, and two other investors, one in North Carolina and

another in Arizona.

Menzies alleged that Northern Trust contacted him and

Ferenc at the same time to develop a financial advisory rela-

tionship. See SAC ¶¶ 25, 42, and 43. The complaint provides

substantial detail on the defendants’ interactions with Ferenc,

including the dates and content of phone calls, emails, and

meetings geared toward selling and advancing the scheme.

See SAC ¶¶ 58, 62, 63, 76, 81, 86, 88, and 115. By way of exam-

ple, consider these two factual allegations detailing the timing

and substance of Ferenc’s interactions with attorney Graham

Taylor:

 “On September 30, 2003, Taylor provided

Ferenc with an outline of the pre-arranged

steps of the Euram Oak Strategy via email,

assuring Ferenc that the strategy was legiti-

mate tax planning.” SAC ¶ 81.

 “On or about August 5, 2004, August 11, 2004

and August 18, 2004, Taylor sent Ferenc a

revised version of the tax opinion letter via

e-mail assuring Ferenc (and Menzies) that

the Euram Oak Strategy was legitimate tax

planning.” SAC ¶ 115.

From there Menzies alleged that Ferenc ultimately

“entered into a transaction substantially similar” to the one

undertaken by Menzies, including by receiving a loan from

Euram Bank, establishing a grantor trust, and maneuvering

various assets in anticipation of a major stock sale—all in

accordance with the instructions supplied by Taylor and

others. SAC ¶ 91.

16 No. 18-3232

While the complaint clearly alleges the defendants mar-

keted the same fraudulent tax shelter to Ferenc, Menzies

stopped short of alleging whether Ferenc followed through

with his sale of AUI stock and incurred substantial capital

gains tax liability and related penalties and interest as a result

of subsequent IRS scrutiny. The absence of such allegations in

no way meant that Menzies failed to plead a predicate act of

mail and wire fraud involving Ferenc, however. See United

States v. Koen, 982 F.2d 1101, 1106 (7th Cir. 1992) (explaining

that mail fraud under 18 U.S.C. § 1341 requires not actual and

successful deception but only “(1) a scheme to defraud and (2)

use of the mail for the purpose of executing, or attempting to

execute, the scheme to defraud”).

Menzies further alleged an Arizona investor fell victim to

the defendants’ scheme. The second amended complaint al-

leged that the Arizona investor received legal opinions from

Taylor and Seyfarth Shaw regarding the Euram Oak Strategy

sometime in 2004. From there, though, the complaint says lit-

tle more, alleging only that it is “reasonable to assume that

any such opinion letter asserts the legality of the [Euram Oak]

Strategy.” SAC ¶ 162. On “information and belief,” the com-

plaint then alleges that the Arizona investor incurred unspec-

ified damages from the tax deficiency that resulted from the

scheme, penalties and interest, professional and attorneys’

fees, and the lost opportunity to invest in a legitimate tax

planning vehicle. See SAC ¶ 165.

In much the same way, Menzies included similar allega-

tions of fraud against a North Carolina investor. According to

the complaint, the defendants approached this investor not

with the Euram Oak Strategy but with a different abusive tax

shelter of the same nature called the Euram Rowan Strategy.

No. 18-3232 17

See SAC ¶¶ 166, 167. With the exception of Northern Trust,

the other defendants pushed the Euram Rowan Strategy,

which “involved a series of integrated, pre-arranged, and

scripted steps designed to provide a taxpayer who had signif-

icant ordinary or capital gain with a non-economic ordinary

or capital loss.” SAC ¶ 167. Here too, however, the second

amended complaint adds few details. In 2003 the North Car-

olina investor received legal opinions from Taylor and Sey-

farth Shaw—leaving Menzies to allege that “it is reasonable

to assume that any such opinion letter asserted the legality of

the transaction.” SAC ¶ 177. From there the complaint alleges

that the North Carolina investor, as a result of the scheme,

owed a tax deficiency of $17.5 million to the IRS, along with

nearly $1 million in penalties. SAC ¶ 180.

The second amended complaint also included broad alle-

gations of future harm. On this score, Menzies alleged that

“[t]here is a threat of continued racketeering activity in that

Defendants’ predicate acts of mail and wire fraud were part

of their regular way of conducting business.” SAC ¶ 183. This

future threat, the complaint added, is clear from the “manner

in which the Euram products were presented as products,

with a preexisting team that could execute and support the

tax shelter for other taxpayers and from the regular manner

in which this enterprise did business with Menzies, Ferenc,

[the Arizona and North Carolina investors] and other inves-

tors in the fraudulent Euram strategies.” SAC ¶ 184.

D. The District Court’s Opinion

The district court dismissed Menzies’s RICO claim for fail-

ing to adequately plead a pattern of racketeering under either

the closed- or open-ended theories of continuity. See Menzies

18 No. 18-3232

v. Seyfarth Shaw LLP, No. 15C3403, 2018 WL 4538726 (N.D. Ill.

Sept. 21, 2018) (“Menzies II”).

As to the closed-ended approach, the court focused on

Menzies’s allegations of fraud against Ferenc and the North

Carolina and Arizona investors. Relying on Emery v. American

Gen. Fin., Inc., 134 F.3d 1321 (7th Cir. 1998), the district judge

assessed whether these additional allegations showed the

other victims were “actually deceived” by the defendants’

communications regarding the scheme. Menzies II, 2018 WL

4538726, at *4. The district court read Menzies’s complaint to

lack particularity about statements any defendant made to the

Arizona investor about the Euram Oak Tax Strategy and, even

more specifically, whether any misrepresentation led to the

investor being deceived and suffering adverse tax conse-

quences. The same deficiency plagued Menzies’s allegations

about the North Carolina investor, as the complaint was silent

as to whether and how the defendants marketed the Euram

Rowan Strategy in a way that resulted in actual deception and

related losses. As to Ferenc, the district court emphasized that

Menzies “does not allege that Ferenc was deceived, how he

was deceived, or even that he suffered any injury in the way

of IRS penalties or disallowances.” Id. at *5.

In summing these pleading shortcomings, the district

court reasoned that they were “particularly problematic in a

case, like this one, where the purported victims knowingly

entered into tax shelters, which by their nature are designed

to avoid taxes.” Id. The district court was unwilling to afford

Menzies additional leeway to develop a potential RICO claim

because he had already filed two prior complaints and had

over a year to conduct discovery before filing his second

amended complaint. See id. at *9.

No. 18-3232 19

Turning to whether that complaint adequately alleged an

open-ended theory of continuity, the district court likewise

concluded that Menzies came up short. The court emphasized

that the complaint identified no specific threat of the tax

avoidance strategy repeating, in no small part because the at-

torney responsible for orchestrating the scheme, Graham Tay-

lor, had been indicted for tax fraud in 2005 and convicted in

2008. See id. at *6. These facts, without some alternative expla-

nation from Menzies, undermined any meaningful possibility

that Graham and the other defendants would continue to per-

petuate the alleged fraud. See id. What is more, the district

court was unwilling—without supporting facts appearing

somewhere in Menzies’s complaint—to permit an inference

that the alleged fraud reflected any of the institutional defend-

ants’ regular way of doing business. On Menzies’s pleading,

the district court saw any such conclusion as reflecting rank

speculation. See id. at *7.

E. Menzies’s Insufficient Pleading of the Pattern

Element

We agree with the district court that Menzies failed to

allege a pattern of racketeering based on mail and wire fraud

predicates. The proper analysis begins by returning to

Menzies’s second amended complaint, and it is there that the

details—or lack thereof—matter. This is so because of the

combined demands of RICO’s pattern element and Rule 9(b)’s

particularity mandate.

Menzies is right that he pleaded enough to support a con-

clusion that what Sydney Ferenc experienced qualifies as a

predicate act of racketeering activity for pattern purposes.

The second amended complaint is replete with details de-

scribing how the defendants used phone calls, e-mails, and

20 No. 18-3232

meetings to assure Ferenc that the Euram Oak Strategy re-

flected lawful tax minimization. Those allegations speak di-

rectly to the nature and substance of the mail and wire fraud

allegedly perpetrated on Ferenc and are advanced with the

specificity necessary to clear Rule 9(b)’s particularity hurdle.

And this is so even though Menzies’s complaint does not al-

lege that Ferenc went through with AUI stock sales and the

Euram Oak Strategy tax treatment. See Koen, 982 F.2d at 1107.

Menzies’s complaint is night and day different, though,

when it comes to the allegations regarding the Arizona and

North Carolina investors. The details of the defendants’ inter-

actions with both investors are few and far between. The sec-

ond amended complaint says little more than that one or more

of the defendants targeted these investors and sought to sell

them either the Euram Oak or Rowan Strategies. Nowhere,

though, does the complaint spell out the specifics of any de-

fendant’s communications with either investor and instead

resorts to saying “on information and belief” that each of the

two investors received an opinion letter from defendant Gra-

ham Taylor and furthermore that “it is reasonable to assume

that any such opinion letter asserted the legality of the trans-

action.” SAC ¶¶ 162, 177.

These allegations meet neither Rule 9(b)’s particularity re-

quirement nor the demands of our RICO case law. In Emery,

we emphasized that RICO’s pattern element requires more

than a plaintiff pointing to others and saying, on information

and belief, that those persons received mailings about an al-

legedly fraudulent loan scheme. See 134 F.3d at 1322. The

plaintiff needed to come forward, not with general statements

about what others may have received, but with particular al-

legations detailing the content of the communications with

No. 18-3232 21

others allegedly defrauded by the defendant’s conduct. See id.

at 1323. Without those alleged facts there was no way to con-

clude that the plaintiff had advanced with particularity the

predicate acts of mail or wire fraud against anyone other than

himself. The complaint, in short, failed to plead the requisite

pattern of racketeering activity. See id.

We see Menzies’s second amended complaint in much the

same way. He did not plead enough about what transpired

with the Arizona and North Carolina investors for us to know

what any defendant represented, misrepresented, or omitted.

Emery teaches that the pleading bar requires more than posit-

ing that he believes these two investors received similar opin-

ion letters from Graham Taylor. Resorting to that level of gen-

erality sidesteps what Rule 9(b) requires. What Menzies

needed to do—drawing perhaps on what he learned in the

year of discovery afforded by the district court—was allege at

least some particulars about the precise communications with

each investor. See Katz v. Household Int’l, Inc., 91 F.3d 1036,

1040 (7th Cir. 1996) (explaining the demands of Rule 9(b) are

relaxed only if discovery is unavailable to a plaintiff). Without

such allegations, we have no way to determine whether mul-

tiple predicate acts of mail or wire fraud occurred in a manner

that satisfies RICO’s pattern requirement.

Without predicate acts of fraud covering the Arizona and

North Carolina investors, Menzies is left only with the

allegations of what he and Sydney Ferenc experienced with

the defendants. That falls short of pleading a pattern of

racketeering under the closed-ended approach to the

continuity-plus-relationship test that the Supreme Court

announced in H.J., Inc. We need to look at the number and

variety of predicate acts, the length of time over which they

22 No. 18-3232

were committed, the number of victims, the presence of

separate schemes, and the occurrence of distinct injuries.

Vicom, 20 F.3d at 780; see also Roger Whitmore’s Auto Servs., 424

F.3d at 673 (explaining that, in this analysis, “[n]o one factor

is dispositive”). In doing so, we keep foremost in mind a

“natural and commonsense approach to RICO’s pattern

element,” which requires enforcing “a more stringent

requirement than proof simply of two predicates, but also

envisioning a concept of sufficient breadth that it might

encompass multiple predicates within a single scheme that

were related and that amount to, or threatened the likelihood

of, continued criminal activity.” H.J., Inc., 492 U.S. at 237.

But here we only have two individuals (Menzies and

Ferenc)—two business partners and indeed co-founders of

AUI—who allegedly fell victim to the same fraudulent

scheme (the Euram Oak Strategy) at the same time. While the

scheme lasted from 2003 to 2006, the complaint alleges only

that Menzies went through with the strategy and suffered ad-

verse tax consequences. The second amended complaint says

not a word about whether Ferenc followed through on the

strategy or suffered financial harm of any kind. Given Men-

zies’s close business relationship with Ferenc, the absence of

particular factual allegations about how and to what degree

Ferenc was defrauded is noteworthy.

On the whole, though, Menzies alleged enough with

respect to Ferenc to establish a predicate act of mail or wire

fraud. And with those allegations he advanced, in total, at

least two such predicates (against himself and Ferenc). But

RICO’s pattern element is not just quantitative; it includes

qualitative components designed to ascertain the presence of

a pattern of racketeering activity. And it is on this precise

No. 18-3232 23

point—whether Menzies alleged enough, quantitatively and

qualitatively, to show a qualifying pattern of racketeering

activity—that we determine his pleading was deficient.

To conclude that Menzies has failed to plead closed-ended

continuity is not to say that he has failed to plead fraud. He

clearly has and indeed he uses those precise allegations of

fraud as the basis for his state law claims against the defend-

ants. But what we are not permitted to do is allow a plaintiff

to shoehorn a state-law fraud claim into a civil RICO claim.

See Jennings, 495 F.3d at 472. It is the statute’s pattern element

that separates the viable RICO wheat from the common-law

chaff, and, despite substantial effort, Menzies has come up

short.

Our analysis of the open-ended theory of a pattern of rack-

eteering is more straightforward. Only a few lines of the sec-

ond amended complaint even hint at any threat of continued

fraud by the defendants, and even then Menzies presents only

conclusory assertions to support those allegations. He urges

us to infer a future threat of repetition because the Euram Oak

Strategy was developed for marketing to many taxpayers and

thus inherently presented a “threat of repetition” capable of

defrauding others.

But “[a] threat of continuity cannot be found from bald as-

sertions.” Vicom, 20 F.3d at 783. The law requires us to exam-

ine Menzies’s complaint for allegations of “predicate acts,

[which] by their very nature, pose ‘a threat of repetition ex-

tending indefinitely into the future,’ or ‘are part of an ongoing

entity’s regular way of doing business.’” McDonald, 18 F.3d at

497 (quoting H.J., Inc., 492 U.S. at 242).

24 No. 18-3232

What we see is insufficient. Even if we credit Menzies’s

contention that the development and marketing of the Euram

Oak Strategy foretold future offenses, the claim still would

fail to measure up to the standard of alleging open-ended

continuity. That the tax shelter scheme was, as our dissenting

colleague puts it, an “off-the-rack product” capable of

distribution to other victims does not alone threaten

continuity. We cannot conclude as a legal matter—altogether

without regard to what a plaintiff alleges in a complaint—that

all fraudulent tax shelters designed for use by multiple

taxpayers satisfy open-ended continuity for purposes of

RICO’s pattern element.

A close look at the complaint shows allegations suggesting

that any risk of future fraud was drying up. As the district

court highlighted, a grand jury indicted Graham Taylor for

tax fraud in 2005, and he was convicted in 2008. With Taylor

out of the factual equation it is unclear how Menzies’s com-

plaint supports any inference that the alleged scheme would

continue. Menzies’s complaint is full of indications that the

scheme was running its course—reaching its “natural ending

point,” Roger Whitmore’s Auto Servs., 424 F.3d at 674—and was

not being shopped to new targets:

 In 2007, Euram Bank divested from its sub-

sidiary, Pali Capital, which made integral

contributions to the implementation of the

Euram Oak and Rowan strategies. SAC ¶ 19.

 In 2008, Seyfarth Shaw forced one of Taylor’s

colleagues who had helped with the opinion

letters to resign for himself promoting illegal

tax shelters. SAC ¶ 122.

No. 18-3232 25

 As early as 2003, Christiana Bank and Euram

Bank were conducting internal investiga-

tions with the assistance of outside counsel

“regarding the possibility that the Euram

Oak Strategy might be a reportable transac-

tion to the IRS.” SAC ¶ 94.

Nowhere does Menzies counterbalance these allegations

with facts suggesting the schemes promoted by the defend-

ants presented any meaningful prospect of continuing. In-

stead, the thrust of Menzies’s complaint conveys that the de-

fendants were taking action to move away from the promo-

tion of the fraudulent tax shelters challenged here.

The dissent sees our analysis as falling prey to “hindsight

error” by considering these intervening events. Not so. All we

have done is reach a conclusion about the sufficiency of Men-

zies’s RICO pleading by assessing the totality of his factual

allegations. We cannot stop halfway by, for example, over-

looking what Menzies chose to plead about Taylor’s indict-

ment and what did (and did not) happen in its wake. The

open-ended continuity inquiry requires more than pinpoint-

ing a moment in time where it looked like a scheme may entail

continuity but then disregarding facts supplied by the plain-

tiff that point in the opposite direction. What is missing from

Menzies’s second amended complaint is any factual allega-

tion supporting his conclusion that, following Taylor’s arrest

and indictment, there existed a threat of the defendants fraud-

ulently marketing the tax shelter into the indefinite future.

Because Menzies did not plead a pattern of racketeering

under either an open- or closed-ended theory of continuity,

we agree with the district court’s dismissal of his RICO claim.

26 No. 18-3232

III

In closing we turn to Menzies’s state law claims. Beyond

his federal RICO claim, Menzies advanced claims under Illi-

nois law for fraudulent misrepresentation, conspiracy, joint

enterprise liability, negligent misrepresentation, breach of fi-

duciary duty, and unjust enrichment. Exercising supple-

mental jurisdiction, the district court addressed each of these

claims in one broad stroke. The court determined each claim

was untimely under the five-year statute of repose formerly

found in Illinois Securities Law, 735 ILCS 5/12 et seq., and in

effect during the relevant period—in particular, during the

five years after Menzies’s May 2006 sale of his AUI stock. (In

August 2013, the Illinois legislature amended the Securities

Law to remove this provision.) While we disagree with that

conclusion, we nonetheless find that a separate limitations pe-

riod in Illinois law operates to preclude some—but not all—

of Menzies’s state law claims.

A

The Illinois Securities Law’s (former) statute of repose

provided that “[n]o action shall be brought under this Section

or upon or because of any of the matters for which relief is

granted by this Section” after five years from the securities

transaction at issue. 815 ILCS 5/12(D). Illinois courts have em-

phasized the provision’s breadth, explaining that the five-

year time bar applies to any claim—whether brought under

the Illinois Securities Law or otherwise—that fits within the

statute’s substantive prohibitions. See, e.g., Tregenza v. Lehman

Bros., Inc., 678 N.E.2d 14, 15 (Ill. App. Ct. 1997) (concluding

that the Illinois Securities Law’s statute of repose barred com-

mon law claims, including for fraud, because those claims

were “reliant upon matters for which relief is granted by the

No. 18-3232 27

Securities Law”); see also Klein v. George G. Kerasotes Corp., 500

F.3d 669, 671 (7th Cir. 2007) (recognizing that the Illinois Se-

curities Law’s limitations periods apply to common law

claims that otherwise could have been brought as securities

fraud claims under the statute). So the controlling question is

whether Menzies could have brought his state law claims as

securities fraud claims under the Illinois Securities Law.

Section 12(F) of the Illinois law prohibits any person from

“engag[ing] in any transaction, practice or course of business

in connection with the sale or purchase of securities which

works or tends to work a fraud or deceit upon the purchaser

or seller thereof.” 815 ILCS 5/12(F). For its part, section 12(I)

disallows any person from “employ[ing] any device, scheme,

or artifice to defraud in connection with the sale or purchase

of any security, directly or indirectly.” 815 ILCS 5/12(I).

If these provisions sound like the prohibitions in the fed-

eral securities laws, that is the right reaction. The Illinois leg-

islature modeled sections 12(F) and 12(I) after parallel provi-

sions in section 17(a) of the Securities Act of 1933. See Tirapelli

v. Advanced Equities, Inc., 813 N.E.2d 1138, 1142 (Ill. App. Ct.

2004). Not surprisingly, then, “Illinois courts look to federal

securities fraud case law in interpreting [that section] of the

Illinois Securities Law.” Id.

After outlining this same framework, the district court

evaluated Menzies’s state law claims by asking whether the

alleged fraud fell within the ambit of sections 12(F) and 12(I)

of the Illinois Securities Law. More to it, the district court

asked whether the allegations in Menzies’s second amended

complaint reflected fraud “in connection with” the sale of his

AUI stock. This, of course, was the same question at the center

of the inquiry as to whether the RICO bar in 18

28 No. 18-3232

U.S.C. § 1964(c) precluded Menzies from bringing a civil

RICO claim.

For reasons unexplained by the record, however, the dis-

trict court gave two different answers to this same question.

In its July 2016 opinion the district court concluded that Men-

zies had not alleged “an ‘actionable’ securities claim [within

the meaning of the § 1964(c) bar], because nothing about the

sale of his AUI stock itself was fraudulent in this case.” Men-

zies I, 197 F. Supp. 3d at 1116. But then two years later, in its

September 2018 opinion, the court determined that the five-

year statute of repose in the Illinois Securities Law barred

each of Menzies’s state law claims because those claims met

the “in connection with” requirement by alleging the “entire

purpose of the tax shelter was to shield the proceeds of [Men-

zies’s AUI] stock sale.” Menzies II, 2018 WL 4538726, at *8. We

cannot square these answers.

Regardless, our review of the district court’s order dis-

missing Menzies’s state law claims proceeds de novo, and,

based on our own fresh look at the allegations in his second

amended complaint, we cannot conclude he pleaded claims

within the scope of sections 12(F) and 12(I) of the Illinois Se-

curities Law.

We are aware of no substantive differences between the

“in connection with” requirements in sections 12(F) and 12(I)

of the Illinois statute and either section 17(a) of the federal

1933 Act or section 10(b) and Rule 10b-5 of the federal 1934

Act. And accepting that the Illinois courts look to the federal

securities laws to interpret the Illinois Securities Law, see

Tirapelli, 813 N.E.2d at 1142; People v. Whitlow, 433 N.E.2d 629,

633–34 (Ill. 1982), we see no reason to depart from our prior

conclusion that Menzies’s original complaint did not contain

No. 18-3232 29

allegations sufficient to constitute actionable securities fraud

under section 10(b) and Rule 10b-5. See Schaefer v. First Nat’l

Bank of Lincolnwood, 509 F.2d 1287, 1295 (7th Cir. 1975) (ex-

plaining that section 12 of the Illinois Securities Law “closely

parallels Rule 10b-5 and a study of [the statute] reveals a

nearly identical aim”).

As we explained when evaluating whether Menzies’s

allegations fell within the RICO bar of 18 U.S.C. § 1964(c), we

see an insufficient link between the alleged fraud—deception

about the tax consequences of a sale of AUI stock—and the

securities transaction itself. To be sure, while a “but for”

connection is there, we know the law requires more. See Ray,

482 F.3d at 995. And Menzies’s complaints do not supply the

more because nowhere does he allege any misconduct that

coincided with his sale of his AUI stock. See Zandford, 535 U.S.

at 824. What this means for purposes of the RICO bar is that

Menzies’s allegations do not amount to actionable federal

securities fraud and thus he was able to proceed with his civil

RICO claim. And so, too, for purposes of the Illinois Securities

Act: Menzies’s state law claims are not barred by the statute’s

five-year period of repose.

B

The question then becomes whether any other Illinois law

bars Menzies’s claims. The answer turns out to be yes as to the

state law claims brought against defendants Graham Taylor,

the attorney who provided legal advice to Menzies about the

Euram Oak tax shelter, and his firm, Seyfarth Shaw.

The Illinois statutory provision addressing attorney

misconduct contains a two-year statute of limitations and a

30 No. 18-3232

six-year statute of repose. See 735 ILCS 5/13-214.3. The Illinois

General Assembly provided that:

(b) An action for damages based on tort, con-

tract, or otherwise against an attorney arising

out of an act or omission in the performance of

professional services … must be commenced

within 2 years from the time the person bringing

the action knew or reasonably should have

known of the injury for which damages are

sought.

(c) [A]n action described in subsection (b) may

not be commenced in any event more than 6

years after the date on which the act or omission

occurred.

Id.

By its terms, the statute covers the claims against Taylor,

as the second amended complaint plainly alleges that he pro-

vided fraudulent legal advice and opinion letters, all of which

fell within his role as Menzies’s counsel. The Illinois statute

likewise covers Menzies’s claims against Seyfarth Shaw. See

Blue Water Partners, Inc. v. Edwin D. Mason, Foley and Lardner,

975 N.E.2d 284, 297 (Ill. App. Ct. 2012) (applying the statute

of limitations in 735 ILCS 5/13-214.3 to claims against a law

firm).

All that remains is a question of timing. On this score, the

math is straightforward and does not compute in Menzies’s

favor. Even on the most generous framing of the facts—that

Menzies did not discover the alleged attorney misconduct

until he received his deficiency notice from the IRS and settled

in December 2012—he would still be beyond the two-year

No. 18-3232 31

limitations period in Illinois law by filing his lawsuit in

federal court as he did in April 2015. Under any timeline, then,

we conclude that this provision of Illinois law bars each of the

state law claims Menzies brought against Taylor and Seyfarth

Shaw.

The same is not true as to the state law claims advanced

against the remaining financial services defendants, Northern

Trust and Christiana Bank & Trust Company. On remand the

district court will retain subject matter jurisdiction over those

claims under 28 U.S.C. § 1367. We leave the consideration of

those claims to the district court in the first instance.

* * *

Therefore, the judgment of the district court is AFFIRMED

in part, VACATED in part, and REMANDED for proceedings

consistent with this opinion.

32 No. 18-3232

HAMILTON, Circuit Judge, dissenting in part. We should

reverse the dismissal of plaintiff’s RICO claims. The com-

plaint alleges multiple acts of racketeering showing the

“continuity and relationship” needed to establish a “pattern

of racketeering activity.” Plaintiff has alleged in detail how

the defendants created an off-the-shelf tax-shelter scam—one

that was easily replicable for other, similarly situated tax-

payers facing substantial tax bills on large capital gains. The

defendants marketed the scam to plaintiff and others. They

were positioned to keep the fraud going unless and until

they were stopped.

The majority errs by finding insufficient plaintiff’s allega-

tions of a “pattern” of racketeering activity. The most fun-

damental mistake is the majority’s use of the distorting lens

of hindsight. The majority relies on intervening events to

find no genuine threat that the defendants would have con-

tinued indefinitely with their profitable scheme. That mis-

take weakens RICO for both civil and criminal enforcement.

The mistake is also contrary to substantial case law and has

no apparent support in the case law. My colleagues also de-

mand far too much from a complaint that is already quite

detailed, and they fail to give plaintiff the benefit of plausible

inferences from his complaint. I respectfully dissent from the

dismissal of plaintiff’s RICO claims.

I. Points of Agreement

I agree with my colleagues on some important points,

however. We agree that the securities-fraud bar to civil RICO

claims, which was added to 18 U.S.C. § 1964(c) by the Private

Securities Litigation Reform Act of 1995, does not apply to

plaintiff’s claims. We also agree on the dispositions of the

defendants’ various statute of limitations defenses to

No. 18-3232 33

plaintiff’s state-law claims. I concur with the portions of the

judgment that address the state-law claims.

II. The RICO “Pattern” Requirement

Turning to the RICO claims: Because defendants moved

to dismiss under Federal Rule of Civil Procedure 12(b)(6) for

failure to state a claim, I use harsh language to describe the

actions of a well-known law firm and two otherwise-

legitimate banks. I do not vouch for the truth of plaintiff’s

allegations. I only apply the standard of appellate review

that defendants themselves have invoked: assume the factu-

al allegations in the complaint are true, and give plaintiff the

benefit of reasonable, favorable inferences that can be drawn

from those allegations.

A. The Fraudulent Scheme

Attorney Graham Taylor (later convicted for another tax

fraud) and other attorneys at Seyfarth Shaw teamed up with

bankers from Euram Bank (The European American Invest-

ment Bank), Northern Trust Corporation, and later Christia-

na Bank to devise a fraudulent scheme for concealing a tax-

payer’s receipt of a large capital gain. The defendants

pitched the scheme to Menzies, his business partner Ferenc,

and others.

The scheme involved a series of carefully designed paper

transactions among the taxpayer, the banks, and nominally

independent trusts established on the defendants’ instruc-

tions, all blessed with fraudulent legal opinion letters. The

strategy took several years to set up and execute just for

Menzies himself, beginning about three years before he ac-

tually sold his stock in AUI to Berkshire Hathaway.

34 No. 18-3232

The complaint describes the scheme in great detail. A

brief description of the “Euram Oak Strategy,” must be in-

complete but can help show its complexity and why plaintiff

characterizes the scheme as a “product” that defendants

used at least several times and threatened to continue to re-

peat.

The scheme used a network of trusts and a dizzying ar-

ray of sham transactions to disguise the ownership of AUI

stock and to enable Menzies to obscure a large capital gain

upon the eventual sale of the stock. See Second Amended

Cplt. (SAC) ¶¶ 65–97 (detailing the 2003 and 2004 transac-

tions). Menzies began to execute defendants’ fraudulent

“Euram Oak Strategy” in 2003. First, defendants had him

borrow $19 million from Euram and deposit those funds in

another Euram account in the name of a trust that the de-

fendants had just set up for him. SAC ¶ 74. The trust rein-

vested the proceeds with Euram itself, in return for a prom-

issory note. The defendants then set up another trust for

Menzies and orchestrated a series of sham transactions

among Menzies and the trusts. SAC ¶ 79.

Menzies then swapped assets with the original trust, ac-

cepting the Euram promissory note in exchange for an equal

value of AUI stock, and used the note to pay off his original

loan obligation. SAC ¶¶ 83–85. After another series of trans-

actions involving the movement of assets and the termina-

tion of the first trust, the second trust held $19 million of

AUI stock and owed Menzies $19 million. SAC ¶ 90.

Throughout all of this, the funds from the original loan nev-

er left Euram.

In 2004, the defendants led Menzies through another se-

ries of similar transactions with a new $54 million loan from

No. 18-3232 35

Euram. SAC ¶¶ 95–96. After these transactions, another $54

million of AUI stock was in the second trust, with a corre-

sponding obligation from the trust to Menzies.

The payoff came in 2006, when Menzies and Ferenc

agreed to sell their business to Berkshire Hathaway. As part

of the deal, Berkshire Hathaway paid the remaining trust

more than $64 million for the shares that Menzies had placed

there. SAC ¶ 132. The trust then used the proceeds from the

sale to repay Menzies the amount it owed him.

Pursuant to advice from the defendants, when Menzies

filed his 2006 tax return, he did not report his capital gain of

more than $44 million. SAC ¶ 143. In 2009, the IRS began an

audit of Menzies, finding that the key transfers of stock were

not arms-length transactions and that the scheme constituted

an abusive tax shelter SAC ¶¶ 138–40. In 2012, Menzies set-

tled with the IRS, paying $6.7 million in capital gains tax,

$1.3 million in penalties, and $2.4 million in interest.

B. Allegations of a “Pattern”

The complaint includes detailed allegations about the

scope of the defendants’ scheme, their efforts to market it

and its variations, and the threat of continued criminal activ-

ity. See SAC ¶¶ 25–27, 50–55, 69, 82, 89, 122, 157–58, 180–84.

The defendants’ scheme was not like a custom-designed suit,

cut just for Menzies. It was more like an off-the-rack suit: it

would fit a specific class of taxpayers with just a few indi-

vidual alterations at minimal effort and cost. With repetition,

costs per taxpayer-client would drop and the defendants’

profits from fees would rise, adding to the incentive for and

the threat of repetition. The potential for repeated use of the

fraudulent tax shelter helps show why plaintiff has alleged a

36 No. 18-3232

pattern of racketeering activity. See SAC ¶ 157 (“it is the very

nature of a tax shelter product, such as the Euram Oak Strat-

egy, to be created once and then replicated multiple times to

multiple taxpayers”).

The complaint does not rely on conclusions to show a

pattern. It includes specific factual allegations showing the

replicable nature of the fraudulent tax shelter and the threat

of continued fraud with other taxpayers. For example, de-

fendants presented plaintiff with slick marketing materials

for the tax shelter—prepared with Euram—that came with a

disclaimer addressed generally to “investors.”1 Before de-

fendants would discuss the details of their proposed tax

shelter, they required Menzies to sign a confidentiality

agreement, which the complaint describes as “typical in the

presentation of purportedly proprietary tax shelter prod-

ucts,” SAC ¶ 36, indicating that defendants saw their inge-

nuity as a proprietary secret from which they could continue

to profit by repetition. One can also reasonably infer that the

confidentiality agreement had the effect of deterring or pre-

venting targets from seeking truly independent legal and tax

advice.

Other paragraphs of the complaint show that the

defendants marketed to Menzies and Ferenc an off-the-rack

product that they were adapting from previous applications

for other clients. The defendants themselves noted the

similarity between Menzies’s transactions and the

transactions carried out for these other clients, referred to in

the briefs as “the Arizona investor” and “the North Carolina

1The Power-Point slides, labeled as Euram products, are an appen-

dix to the complaint.

No. 18-3232 37

investor.” When the other defendants recruited Christiana

Bank to act as a supposedly independent trustee for Menzies

and Ferenc, they told Christiana that the proposed

transactions would be “very similar” to previous

transactions carried out for the Arizona investor. SAC ¶ 50.

When later sending documents to Christiana, the other

defendants said the documents “should be familiar to you

from the [Arizona] transaction,” and were “very similar” to

those used in the Arizona transaction. SAC ¶ 78. When the

other defendants sent more documents to Christiana for the

proposed Menzies and Ferenc transactions, they said the

transaction would be “in essence identical to that for” the

Arizona investor. SAC ¶ 82. Another email to Christiana

described the Menzies and Ferenc transactions as “two new

trades involving the Oak structure.” SAC ¶ 89.

Thus, the defendants themselves described the tax shelter

strategy as a template that they had used before, were adapt-

ing to Menzies and Ferenc, and could continue replicating

and adapting for other taxpayers. As the complaint alleges,

these sorts of communications helped demonstrate “a con-

tinued threat that the Euram Oak strategy could later be rep-

licated for other taxpayers.” Id.

C. “Continuity Plus Relationship”

These detailed allegations easily satisfy pleading re-

quirements for a civil RICO claim, including the required

“pattern of racketeering activity.” To start with RICO basics,

“racketeering activity” is defined with a long list of specific

crimes and categories of crime. 18 U.S.C. § 1961(1). That list

includes mail fraud and wire fraud under 18 U.S.C. §§ 1341

& 1343. As a matter of general federal criminal law, each in-

dividual mailing or interstate wire transmission in further-

38 No. 18-3232

ance of a scheme to defraud can count as a separate act of

mail or wire fraud.2

RICO provides that a “‘pattern of racketeering activity’

requires at least two acts of racketeering activity’” that occur

within ten years of each other. 18 U.S.C. § 1961(5). The Su-

preme Court has interpreted this to require that the predi-

cate acts of racketeering activity show “continuity plus rela-

tionship.” See Roger Whitmore’s Auto Services, Inc. v. Lake

County, 424 F.3d 659, 672 (7th Cir. 2005), quoting H.J., Inc. v.

Northwestern Bell Telephone Co., 492 U.S. 229, 239 (1989), quot-

ing in turn 116 Cong. Rec. 18940 (1970) (Sen. McClellan),

quoting S. Rep. No. 91–617, at 158. The majority’s restrictive

approach to the pattern requirement here has lost sight of

the point the Supreme Court emphasized in H.J., Inc.: the

statutory language shows that “Congress intended to take a

flexible approach, and envisaged that a pattern might be

demonstrated by reference to a range of different ordering

principles or relationships between predicates, within the

expansive bounds set.” 492 U.S. at 238.

Our decisions have long recognized this need for flexibil-

ity in applying the pattern requirement. In Morgan v. Bank of

Waukegan, 804 F.2d 970, 975 (7th Cir. 1986), we anticipated

2E.g., United States v. Bush, 522 F.2d 641, 649 (7th Cir. 1975) (“Each of

the eleven counts of the indictment charges only one offense—a mailing

in furtherance of one multifaceted scheme in violation of the mail fraud

statute.”); United States v. Brighton Building & Maintenance Co., 435 F.

Supp. 222, 229 n.10 (N.D. Ill. 1977) (Flaum, J.), citing United States v. Joyce,

499 F.2d 9, 18 (7th Cir. 1974), quoting in turn Badders v. United States, 240

U.S. 391, 394 (1916); see also Bridge v. Phoenix Bond & Indemnity Co., 553

U.S. 639, 648 (2008) (observing that each individual mailing in further-

ance of single scheme to defraud is predicate act of mail fraud under

RICO).

No. 18-3232 39

the holding of H.J., Inc. and rejected a rigid requirement of

“separate schemes.” In applying the “continuity plus rela-

tionship” standard, we recognized that many factors would

be relevant, including “the number and variety of predicate

acts and the length of time over which they were committed,

the number of victims, the presence of separate schemes and

the occurrence of distinct injuries.” Id. We cautioned, howev-

er, that having one overall scheme or even just one victim

would not automatically defeat the pattern requirement:

“The doctrinal requirement of a pattern of racketeering ac-

tivity is a standard, not a rule, and as such its determination

depends on the facts and circumstances of the particular

case, with no one factor being necessarily determinative.” Id.

at 976. Morgan reversed dismissal in a case with a much

weaker claim of a pattern than we see here. The plaintiffs al-

leged that defendants committed several acts of mail fraud

over several years in furtherance of one overall scheme to

defraud plaintiffs through foreclosure sales: “While these

acts can be viewed as part of a single grand scheme, they

were ongoing over a period of nearly four years in addition

to being distinct acts. Under the facts of this case, plaintiffs

have satisfied both the continuity and relationship aspects of

the pattern requirement.” Id. 3

3 The flexibility of the pattern standard is evident in this circuit’s pat-

tern criminal jury instructions, which suggest the following general ex-

planation for charges under 18 U.S.C. § 1962:

Acts are related to each other if they are not isolated

events, that is, if they have similar purposes, or results,

or participants, or victims, or are committed a similar

way, [or have other similar distinguishing characteris-

tics] [or are part of the affairs of the same enterprise].

40 No. 18-3232

Finding both continuity and relationship here is

consistent with our decisions that have recognized the

generality and flexibility of the standard, eschewing rigid

rules in both criminal and civil RICO cases. See, e.g., United

States v. Horak, 833 F.2d 1235, 1240 (7th Cir. 1987) (affirming

RICO conviction; defendants’ three bribes to local officials

with monthly payments were sufficient to show pattern

under flexible standard aimed at ongoing crimes); Ashland

Oil, Inc. v. Arnett, 875 F.2d 1271, 1278–79 (7th Cir. 1989)

(affirming jury verdict for plaintiffs on pattern issue where

defendants’ fraud and theft injured four victims in separate

transactions over a period of months); Olive Can Co. v.

Martin, 906 F.2d 1147, 1152 (7th Cir. 1990) (describing

Ashland Oil activity as open-ended scheme that threatened

continued crime, and confirming that Morgan test is

consistent with H.J., Inc.); DeGuelle v. Camilli, 664 F.3d 192,

202–04 (7th Cir. 2011) (reversing dismissal of RICO claim;

pattern shown where defendant corporation and its agents

allegedly carried out tax fraud scheme over several years

and retaliated against plaintiff-whistleblower); United States

v. Maloney, 71 F.3d 645, 661 (7th Cir. 1995) (affirming RICO

conviction of corrupt judge; bribes and criminal acts to

conceal them showed sufficient pattern under “relatively

broad standard” of H.J., Inc.); see also RWB Services, LLC v.

Hartford Computer Group, Inc., 539 F.3d 681, 688–89 (7th Cir.

There is continuity between acts if, for example, they are

ongoing over a substantial period, or if they are part of

the regular way some entity does business or conducts

its affairs.

Under this instruction, a jury that heard proof of plaintiff’s allegations

here could easily find a pattern.

No. 18-3232 41

2008) (reversing dismissal of RICO claim for scheme to

defraud Wal-Mart and its customers; pattern conceded where

defendants sold 50,000 stolen and/or repackaged cameras as

new). With such plausible and detailed allegations of a

pattern as we have here, especially when made on the basis

of quite limited discovery, the better course is to let the case

go forward, let the case develop, and decide the pattern issue

on a full record.4

As the majority acknowledges, the relationship prong of

“continuity and relationship” test can be satisfied by crimi-

nal acts close in time and character, undertaken for similar

purposes, or involving the same or similar victims, partici-

pants, or means of commission. See H.J., Inc., 492 U.S. at 240.

The majority and I agree that the relationship prong is satis-

fied here. Plaintiff has alleged very similar efforts by the de-

fendants to carry out the tax-shelter scam with him and with

his partner Ferenc, who received a similar large capital gain

in 2006. In those two episodes of the fraudulent scheme, we

have multiple acts of mail and wire fraud, and we have simi-

lar victims, the same criminal participants, and the same

means of commission, all undertaken for similar purposes at

around the same time.

The majority correctly finds that plaintiff has alleged

with sufficient specificity the defendants’ fraudulent efforts

to target both him and his partner Ferenc through criminal

4 Plaintiff will be entitled to further discovery from defendants on

his surviving state-law claims. What will the federal courts do if that dis-

covery turns up more detailed evidence of additional attempts by de-

fendants to sell the Euram Oak and Euram Rowan strategies such that

the scheme would satisfy even the majority’s restrictive view of the pat-

tern requirement? Will we reconsider our premature dismissal?

42 No. 18-3232

mail and wire fraud, so that both episodes add up to racket-

eering activity. Ante at 19–20. The majority also correctly

recognizes that the allegations about Ferenc are sufficient

even though he apparently did not go through with the pro-

posed scam. Id., citing United States v. Koen, 982 F.2d 1101,

1107 (7th Cir. 1992).5

Thus, the majority agrees that plaintiff has sufficiently al-

leged two distinct but related episodes in which the defend-

ants carried out their fraudulent scheme. The remaining re-

quirement of “continuity” is what divides us.

D. Open-Ended Continuity

The two fraudulent episodes aimed at Menzies and

Ferenc should be sufficient to establish a pattern. By design,

each episode lasted several years. Each episode required

numerous acts of mail and wire fraud and elaborate

sequences of otherwise-useless financial transactions. Each

episode produced hundreds of thousands of dollars in fees

for the defendants. This should be sufficient. See Ouwinga v.

Benistar 419 Plan Services, Inc., 694 F.3d 783, 795–96 (6th Cir.

5See also Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639, 648

(2008) (civil RICO plaintiff alleging mail fraud need not prove it relied on

defendant’s misrepresentations), citing Neder v. United States, 527 U.S. 1,

24–25 (1999) (common-law requirement of justifiable reliance has no

place under mail, wire, or bank fraud statutes); United States v. Bucey, 876

F.2d 1297, 1311 (7th Cir. 1989) (“this court has reiterated on numerous

occasions that the ultimate success of the fraud and the actual defraud-

ing of a victim are not necessary prerequisites to a successful mail fraud

prosecution”); United States v. Keane, 852 F.2d 199, 205 (7th Cir. 1988). The

majority does not say so forthrightly, but its description of the district

court’s decision, see ante at 18, shows that the district court erred by fo-

cusing on whether Ferenc and the Arizona and North Carolina investors

actually followed through all the way with the fraudulent strategy.

No. 18-3232 43

2012) (reversing dismissal of civil RICO claim based on

marketing of fraudulent tax shelter; pattern alleged

adequately where defendants marketed shelter over period

of five years); Gagan v. American Cablevision, Inc., 77 F.3d 951,

962–64 (7th Cir. 1996) (affirming civil RICO conspiracy

verdict for plaintiff; scheme to defraud all limited partners to

sell interests established pattern; even though evidence

appeared to point to only one scheme, “an inference can be

drawn that the various defendants certainly had the means

to conduct similar schemes”); Newmyer v. Philatelic Leasing,

Ltd., 888 F.2d 385, 396–97 (6th Cir. 1989) (reversing dismissal

of civil RICO claim based on marketing of fraudulent tax

shelter; defendants alleged to have acted in concert over five

years, defrauding hundreds of taxpayers); Durham v.

Business Management Associates, 847 F.2d 1505, 1512 (11th Cir.

1988) (affirming denial of summary judgment; plaintiffs

offered evidence of pattern with two related schemes to

market fraudulent tax shelters, and schemes’ similarity

presented jury question; “use of business instructional video

cassette tapes” deemed significant); United Energy Owners

Committee, Inc. v. U.S. Energy Management Systems, Inc., 837

F.2d 356, 360–61 (9th Cir. 1988) (reversing dismissal of civil

RICO claim based on marketing of fraudulent tax shelter;

pattern alleged adequately where defendants engaged in

multiple fraudulent acts involving multiple victims over

more than one year; no rigid requirement for plaintiff to

allege or prove more than one criminal “episode”).

The complaint easily satisfies the “pattern” requirement

when the Menzies and Ferenc episodes are combined with

the detailed allegations of a reasonably foreseeable threat of

continued efforts to repeat the scheme with still more

similarly situated taxpayers. In the rubric of RICO patterns,

44 No. 18-3232

plaintiff has alleged “open-ended continuity,” that is, “past

conduct that by its nature projects into the future with a

threat of repetition.” Vicom, Inc. v. Harbridge Merchant

Services, Inc., 20 F.3d 771, 782 (7th Cir. 1994), quoting H.J.,

Inc., 492 U.S. at 241.

The majority, however, rejects open-ended continuity,

saying: “Only a few lines of the second amended complaint

even hint at any threat of continued fraud by the defendants,

and even then Menzies presented only conclusory assertions

to support those allegations.” Ante at 23. With respect, that

description is just wrong. The majority’s rejection of open-

ended continuity is based on two related errors: relying on

hindsight and failing to give the plaintiff the benefit of his

detailed allegations.

1. Hindsight Error

First, the majority makes the basic error of giving the de-

fendants the benefit of hindsight rather than considering the

threat of continued fraud as it was happening. The majority

(like the district court) emphasizes the 2005 indictment and

2008 conviction of attorney Taylor for an unrelated tax fraud:

“With Taylor out of the factual equation it is unclear how

Menzies’s complaint supports any inference that the alleged

scheme would continue.” Ante at 24. This is wrong as a fac-

tual matter. According to the complaint, Taylor’s indictment

in 2005 most certainly did not deter him and the other defend-

ants from continuing the effort to defraud Menzies in 2006

and 2007 with respect to his 2006 tax return. There is also no

reason the other defendants could not have continued the

scheme with another Seyfarth Shaw lawyer or two.

No. 18-3232 45

More fundamental, though, is the legal error. Taylor’s

2008 conviction was an intervening event that at most inter-

rupted the ongoing scheme. Extensive RICO case law shows

that such an intervening event is not relevant to the threat of

repetition. The same is true of the other events from 2007

and 2008 that the majority suggests are “indications that the

scheme was running its course … and was not being

shopped to new targets.” Ante at 24. (Affirming dismissal

based on “indications” and “suggestions” in a complaint is

not consistent, of course, with the more generous reading of

complaints required in deciding Rule 12(b)(6) motions, but I

digress.)

To see the problem with determining continuity based on

hindsight, consider how we and other federal courts would

consider this same defense to a RICO charge against mem-

bers of a street gang. Suppose the evidence showed that after

two profitable episodes of robbery, each time following the

same careful plan, the gang’s leader was arrested and later

convicted on unrelated charges. In a RICO prosecution alleg-

ing a pattern of robberies, the other gang members then ar-

gue they must be acquitted because there was no pattern:

“We stopped committing crimes after our leader was indict-

ed, arrested, and later convicted.” In a criminal case, that ar-

gument would be laughed out of court. E.g., United States v.

Aulicino, 44 F.3d 1102, 1113–14 (2d Cir. 1995). Yet the “pattern

of racketeering activity” standard is the same for both civil

and criminal RICO. The majority’s error in this civil case will

unduly narrow criminal applications of RICO where ongo-

ing schemes are interrupted by arrests, indictments, convic-

tions, or other events.

46 No. 18-3232

The majority’s reliance on hindsight runs contrary to Au-

licino and numerous other RICO precedents, which establish

that courts do not rely on hindsight and intervening events

to show the absence of a threat of repetition. In Aulicino, the

defendants operated a kidnapping ring that carried out

about seven kidnappings over a period of three and a half

months. 44 F.3d at 1105. The kidnappings ended after one

leader was murdered and another was arrested on other

charges. The defendants argued that the government had

failed to prove a pattern, but the Second Circuit affirmed the

RICO convictions. The Second Circuit did not use hindsight

to find that the intervening events (the murder and arrest of

two leaders) had defeated a threat of continued crimes. In-

stead, the Second Circuit found a sufficient threat of contin-

ued racketeering activity. The kidnappings were successful

and profitable. 44 F.3d at 1113. “The ring’s activities were

abandoned; they were not a discrete and finite project that

came to a natural end.” Id. at 1114. The same description fits

these defendants’ fraud.

The Sixth Circuit rejected a similar argument based on

hindsight in United States v. Busacca, 936 F.2d 232 (6th Cir.

1991). A pension official was convicted under RICO for em-

bezzling funds to pay for his defense in an earlier prosecu-

tion. He had obtained money illegally over only three

months. Id. at 236. He argued that there was no threat of con-

tinuity because his opportunity for embezzlement ended

with his earlier conviction and his removal from office, much

as defendants here and the majority argue that Taylor’s in-

dictment and conviction ended the threat of continuity.

The Sixth Circuit rejected that argument based on hind-

sight and found open-ended continuity: “The manner in

No. 18-3232 47

which the embezzlements occurred was capable of repetition

indefinitely into the future, as long as there were either legal

fees or other expenses which Busacca wanted paid.” Id. at

238. In words that apply directly here, the “analysis of the

threat of continuity cannot be made solely from hindsight”

and must instead “be viewed at the time the racketeering ac-

tivity occurred.” Id. The majority rejects that approach here,

and it is hard to see why, especially since it weakens crimi-

nal application of RICO where intervening events interrupt

ongoing criminal schemes.

The Sixth Circuit applied this principle more recently in a

civil RICO case, Heinrich v. Waiting Angels Adoption Services,

Inc., 668 F.3d 393 (6th Cir. 2012). The individual defendants

argued that because the defendant adoption business they

owned was shut down as part of a criminal prosecution,

there had not been an open-ended threat of continued

crimes. Id. at 410. The Sixth Circuit rejected the argument

and reversed dismissal of civil RICO claims: “Subsequent

events are irrelevant to the continuity determination …

because ‘in the context of an open-ended period of

racketeering activity, the threat of continuity must be viewed

at the time the racketeering activity occurred.’” Id., quoting

Busacca, 936 F.2d at 238. “The lack of a threat of continuity of

racketeering activity cannot be asserted merely by showing a

fortuitous interruption of that activity such as by an arrest,

indictment or guilty verdict.’” Heinrich, 668 F.3d at 410, again

quoting Busacca, 936 F.2d at 238, and citing Blue Cross & Blue

Shield of Michigan v. Kamin, 876 F.2d 543, 545 (6th Cir. 1989)

(reversing dismissal on pattern issue; open-ended continuity

alleged because, if defendant had not been caught, there was

no reason to believe he would not still be submitting

fraudulent insurance claims). In language that applies

48 No. 18-3232

directly here, Heinrich explained that when the defendants

committed the four predicate acts, “there was no indication

that their pattern of behavior would not continue

indefinitely into the future.” 668 F.3d at 411. Dismissal under

Rule 12(b)(6) was reversed, just as we should reverse here.

In fact, the district judge who dismissed this case made

exactly this point—even quoting Heinrich—in denying

dismissal in another civil RICO case:

It is important to note that, in the context of an

open-ended period of racketeering activity, the

threat of continuity must be viewed “at the

time the racketeering activity occurred.” Sub-

sequent events “are irrelevant.” Thus, a lack of

a threat of continuity “cannot be asserted

merely by showing a fortuitous interruption of

that activity such as by an arrest, indictment or

guilty verdict.”

Inteliquent, Inc. v. Free Conferencing Corp., 2017 WL 1196957,

at *10 (N.D. Ill. 2017), quoting Heinrich, 668 F.3d at 410, and

citing CVLR Performance Horses, Inc. v. Wynne, 524 Fed. App’x

924, 929 (4th Cir. 2013). In Inteliquent, Judge Blakey found

correctly that the plaintiff had sufficiently alleged an open-

ended pattern of racketeering activity through a series of

fraudulent invoices under a contract that would renew au-

tomatically and that could be expected to be renewed. As a

result, there was no natural ending point or “clear and ter-

minable goal” for the scheme. Id. He was right then; he was

wrong in this case.

In a criminal case, we have also held that even a brief

scheme cut short by intervening events can establish a

No. 18-3232 49

pattern if the scheme threatened to continue from the per-

spective of the time the racketeering activity occurred. In

United States v. O’Connor, 910 F.2d 1466 (7th Cir. 1991), a po-

lice officer committed several acts of extortion over a two-

month period. The acts of extortion ended with his arrest.

We held that the evidence permitted the trier of fact to con-

clude that he “had committed himself to an enduring series

of criminal acts, sufficient to establish a ‘pattern’ under H.J.

Inc.” O’Connor, 910 F.2d at 1468. The Second Circuit in Au-

licino cited O’Connor to support its approach to open-ended

continuity. 44 F. 3d at 1112–13.

These cases can all be contrasted with schemes with no

open-ended continuity, which are those with discrete and

finite goals or natural end points. For example, in Vicom, Inc.

v. Harbridge Merchant Services, Inc., 20 F.3d 771, 783 (7th Cir.

1994), we found no open-ended continuity where the predi-

cate acts of fraud involved one particular contract and a fi-

nite scheme that did not threaten continued wrongdoing.

For other examples of inherently finite schemes, see Empress

Casino Joliet Corp. v. Balmoral Racing Club, Inc., 831 F.3d 815,

829–30 (7th Cir. 2016) (reversing plaintiff’s verdict under civ-

il RICO for lack of pattern; scheme to bribe governor to se-

cure enactment of one new law did not pose threat of open-

ended continuity because scheme had a “natural ending

point”); Vemco, Inc. v. Camerdella, 23 F.3d 129, 134–35 (6th Cir.

1994) (alleged fraud in one construction contract over 17

months did not pose threat of continued wrongdoing);

Thompson v. Paasche, 950 F.2d 306, 311 (6th Cir. 1991) (five-

month fraudulent scheme involving sale of lots on one di-

vided tract of land was “an inherently short-term affair”).

50 No. 18-3232

Against this substantial case law showing that courts do

not rely on hindsight and intervening events to avoid recog-

nizing a continued threat of crimes in both criminal and civil

RICO cases, the majority offers no support for its reliance on

hindsight. Curiously, rather than respond to the applicable

precedent and reasoning, the majority instead denies that it

is relying on hindsight. Ante at 25. It’s hard to take that de-

nial seriously, though. The majority tells us quite plainly:

“What is missing from Menzies’s second amended com-

plaint is any factual allegation supporting his conclusion

that, following Taylor’s arrest and indictment, there existed a

threat of the defendants fraudulently marketing the tax shel-

ter into the indefinite future.” Id. Put aside the fact that de-

fendants actually did continue their scheme after Taylor’s in-

dictment. Where does that supposed requirement come

from, if not from hindsight and reliance on intervening

events? This mistaken reliance on hindsight offers a windfall

to RICO defendants in both civil and criminal cases.

2. The Detailed Allegations of Continuity

The majority also errs by simply failing to engage with

the extensive factual details alleged in the complaint that

indicate a threat of repetition and support open-ended

continuity. The majority also fails to give the plaintiff the

benefit of favorable inferences from his allegations. The

complaint uses the right labels and descriptors—“regular

way of conducting and participating in an ongoing criminal

enterprise,” SAC ¶ 26; “part of [a] pattern of similar or

identical activity by Defendants, as tax shelter promoters,

advisors, and others that had the same or similar purposes,

results, participants, victims, or methods of commission”

¶ 157; “it is the very nature of a tax shelter product, such as

No. 18-3232 51

the Euram Oak Strategy, to be created once and then

replicated multiple times to multiple taxpayers,” ¶ 157;

“[t]he threat of repetition and continued criminal activity is

implicit, as there was a continued threat that it later could be

replicated for other taxpayers,” ¶ 158; defendants’

“predicate acts of mail and wire fraud were part of their

regular way of conducting business,” ¶ 183; and defendants’

“pattern of criminal conduct … projects into the future,” as

illustrated by “the manner in which the Euram products

were presented as products, with a preexisting team that

could execute and support the tax shelter for other taxpayers

and from the regular manner in which this enterprise did

business with Menzies, Ferenc, [the Arizona and North

Carolina investors], and other investors in fraudulent Euram

strategies,” ¶ 184.

These general allegations are made more plausible by the

extensive details about how defendants carried out the fraud

with Menzies and Ferenc. The majority fails to recognize that

defendants themselves described those schemes as “very

similar” to and “in essence identical” to transactions with

the Arizona investor. The complaint also describes the simi-

lar “Euram Rowan Strategy” with the North Carolina inves-

tors (without Northern Trust, however). To one another,

they further described Menzies and Ferenc transactions as

“two new trades involving the Oak structure.” And the de-

fendants presented the fancy marketing materials to Menzies

with a disclaimer addressed to “investors” and demanded

that prospective clients sign confidentiality agreements be-

fore the scheme could be explained to them. These details

provide ample support for the allegation that defendants

would continue marketing identical or closely similar fraud-

ulent tax shelters to other taxpayers. Neither defendants nor

52 No. 18-3232

the majority have identified any natural ending point for this

profitable scheme.

In rejecting open-ended continuity, the majority fails to

apply the proper standard of review, which gives the plain-

tiff the benefit of reasonable inferences from the allegations.

Of course there was a threat of continued fraudulent epi-

sodes! As long as the defendants were getting away with this

scam, why should they have stopped with the Arizona in-

vestor, Menzies, and Ferenc? They had developed a profita-

ble product, one that promised their clients millions of dol-

lars in tax savings and assured defendants hundreds of

thousands of dollars in fees every time it was used. In the

law we ordinarily assume that people are rational actors.

Here, that means that we would expect defendants to con-

tinue with their profitable venture.

Giving plaintiff the benefit of his allegations and reason-

able inferences from them—and viewed at the time of the al-

leged fraud—these were “predicate acts, which by their very

nature, pose[d] ‘a threat of repetition extending indefinitely

into the future or [were] part of an ongoing entity’s regular

way of doing business.’” McDonald v. Schencker, 18 F.3d 491,

497 (7th Cir. 1994), quoting H.J., Inc., 492 U.S. at 242.

E. Closed-Ended Continuity

Plaintiff’s strong case of open-ended continuity should be

sufficient to warrant reversal here, but the majority also errs

in rejecting closed-ended continuity. The majority criticizes

plaintiff for not alleging in more fulsome detail the specifics

of defendants’ efforts to defraud the Arizona investor and

the North Carolina investor using the same fraudulent tax

shelter or the Euram Rowan variant. Ante at 20. In doing so,

No. 18-3232 53

the majority imposes an unfair and excessive pleading re-

quirement that goes beyond Rule 9(b) and any need for fair

notice to defendants.

The pleading requirement is unfair because the defend-

ants have thus far kept the cloak of attorney-client privilege

around the content of some of their fraudulent communica-

tions with the Arizona and North Carolina investors and

others. Given the IRS’s rejection of these abusive tax shelters,

there are ample reasons to think that the crime-fraud excep-

tion would apply to pierce the privilege, which may still oc-

cur on remand of some of plaintiff’s state-law claims. See

generally Valero Energy Corp. v. United States, 569 F.3d 626

(7th Cir. 2009) (discussing statutory tax-practitioner privi-

lege that parallels attorney-client privilege and is subject to

exceptions for crime and fraud, as well as promotion of tax

shelters, 26 U.S.C. § 7525).

The majority’s pleading requirement is excessive because

it discounts the complaint’s plausible allegations about the

fraud aimed at the North Carolina and Arizona investors. In

rejecting closed-ended continuity, the majority relies on Em-

ery v. American General Finance, Inc., 134 F.3d 1321 (7th Cir.

1998), which affirmed dismissal of a civil RICO complaint for

failure to allege with sufficient particularity facts concerning

alleged victims in addition to the named plaintiff. Emery is

readily distinguishable. That complaint alleged only one vic-

tim with any particularity or evidence. It did not involve an

off-the-shelf fraudulent product that could be repeated easi-

ly with additional targets. The plaintiff in Emery was not able

to provide any meaningful details about the alleged fraudu-

lent letters to other alleged victims, who apparently did not

54 No. 18-3232

keep any documents or remember anything about the

scheme. 134 F.3d at 1323.

By comparison, the North Carolina and Arizona inves-

tors spent on the order of a million dollars each on the de-

fendants’ fraudulent professional services. These investors

experienced multimillion-dollar tax bills, with penalties and

interest. Unlike the other targets in Emery, these victims do

not seem to have forgotten the incidents or thrown away the

relevant documents. And recall that defendants themselves

described the transactions as “in essence identical” and

“very similar” to the transactions with Menzies and Ferenc.

SAC ¶¶ 50, 82.

Even with these handicaps, plaintiff has identified some

specific fraudulent communications for the North Carolina

and Arizona investors, sufficient to satisfy Rule 9(b). ¶¶ 160–

64, 166–78. The closed-end theory should not fail simply be-

cause plaintiff has not yet seen those fraudulent opinion

letters. Defendants claim the letters are privileged, but the

complaint alleges they exist and were sent. It’s not difficult

to infer what they said. If the letters had not asserted the

fraudulent shelters were legal, there of course would have

been no point in the transactions. See SAC ¶¶ 162, 177. The

inference that the defendants’ opinion letters say fraudulent-

ly that the tax shelters would be legal is not merely plausible

but compelling. The allegations about the opinion letters and

related communications provide sufficient information

about the who, what, when, where, and how of the fraud to

satisfy Rule 9(b) regarding the other investors.

As discussed above, it also does not matter whether a

particular taxpayer-client was deceived regarding the tax

shelter’s legality. If he was not deceived and did not go

No. 18-3232 55

through with the transaction, there was at least an attempt to

defraud by the defendants. If the targeted taxpayer was not

deceived, understood the transaction, and went through

with it, he was joining a criminal venture to defraud the fed-

eral government. Either way, that’s another episode of fraud

in implementing the scheme.

Even with the limited information available to him,

plaintiff provided sufficient information about these addi-

tional instances of fraud to satisfy the RICO pattern re-

quirement and Rule 9(b). By affirming dismissal of the RICO

claims, the majority unfairly rewards defendants for their

efforts to cover up their attempts to defraud other investor-

taxpayers.

Because the majority has adopted an erroneous, restric-

tive view of the RICO pattern requirement, giving defend-

ants the benefit of hindsight and failing to give plaintiff the

benefit of his allegations, the majority is substantially weak-

ening both civil and criminal RICO. I respectfully dissent

from the dismissal of plaintiff’s RICO claims.