              Case: 15-13792     Date Filed: 09/02/2016   Page: 1 of 33




                                                                          [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 15-13792
                           ________________________

                       D.C. Docket No. 0:12-cv-61528-RNS

BRYAN RAY,
on behalf of himself and all others similarly situated,
GRETEL DORTA,
MICHAEL DIORIO,
Ph.D.,
DEBORAH GIBSON,
JENNIFER SILY,
DONNA TILTON,
JOSH RUBIN,
DONALD M. BADACZEWSKI,

                                                    Plaintiffs - Appellants,

versus

SPIRIT AIRLINES, INC.,
a Delaware corporation,

                                              Defendant - Appellee.
                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                (September 2, 2016)
               Case: 15-13792       Date Filed: 09/02/2016      Page: 2 of 33


Before MARCUS and FAY, Circuit Judges, and FRIEDMAN, * District Judge.

MARCUS, Circuit Judge:

       In this civil RICO case, plaintiffs seek to represent a class of customers

claiming that Spirit Airlines, Inc. (“Spirit”) engaged in an elaborate criminal

enterprise involving the use of mail and wire fraud. The complaint specifically

alleged that Spirit portrayed its Passenger Usage Fee as a government-imposed or

authorized fee when, in fact, it was merely a portion of the base fare price of an

airline ticket charged by the airline.

       This is the second time this case has come before our court. The first time,

we reversed the district court’s conclusion that the Airline Deregulation Act,

Pub. L. No. 95–504, 92 Stat. 1705, (“ADA”) displaced a civil RICO claim that an

airline engaged in deceptive practices. Ray v. Spirit Airlines, Inc., 767 F.3d 1220

(11th Cir. 2014). We remanded the case in order to afford the district court the

opportunity to determine in the first instance whether the plaintiffs had adequately

pled a RICO claim. Id. at 1229. On remand, the district court dismissed the

plaintiffs’ second amended complaint for failure to state a claim. As we see it, the

district court reached the right answer for two independent reasons: the plaintiffs




       *
          Honorable Paul L. Friedman, United States District Judge for the District of Columbia,
sitting by designation.


                                               2
              Case: 15-13792     Date Filed: 09/02/2016    Page: 3 of 33


failed to adequately allege proximate cause; and they also failed to properly plead

the existence of a RICO enterprise. Thus, we affirm.

                                          I.

      Plaintiffs commenced this civil suit against Spirit under the Racketeer

Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961–68, in the

United States District Court for the Southern District of Florida, alleging that Spirit

conducted an enterprise by means of racketeering activity -- here, two or more

predicate acts of mail and wire fraud involving the concealment and

misrepresentation of airfares and user fees. Plaintiffs seek to represent a class

consisting of all Spirit domestic and international customers who, within the

applicable statute of limitations, incurred a Passenger Usage Fee “as a result of

Spirit’s practice of assessing and collecting baseless hidden fees.”

      Plaintiffs’ second amended complaint alleged these basic facts. Spirit holds

itself out as an “Ultra Low Cost Carrier” offering airfares at rates lower than other

providers. These cheap fares purportedly disguise the total cost of travel because

Spirit forces consumers to pay unbundled charges traditionally included in the

price of an airline ticket. Specifically, Spirit charges a Passenger Usage Fee to all

consumers who buy tickets through its website or call center. When searching for

flights on Spirit’s website, a consumer sees only the base fares. Once he has

selected a flight, a webpage directs him to “confirm” the flight on a page that


                                           3
              Case: 15-13792     Date Filed: 09/02/2016    Page: 4 of 33


displays both the base fare and an undifferentiated amount labeled “Taxes & Fees.”

For a breakdown of these charges, the consumer then must click on an additional

link for “more information,” which listed a “Passenger Usage Fee” alongside

government taxes and fees. Plaintiffs alleged that this placement was a

coordinated effort to conceal the true nature of the fee by leading customers to

believe that it was an official government tax or sanctioned fee.

      The complaint listed seven named plaintiffs with the approximate dates on

which they had purchased tickets and (for most of them) the amount they were

charged for the Passenger Usage Fee. According to plaintiffs, Spirit committed

mail and wire fraud when it used the internet to advertise and engage in sales with

the deceptive inclusion and placement of the Passenger Usage Fee. The complaint

also generally asserted that the plaintiffs and other members of the proposed class

“were harmed in that they relied to their detriment on Spirit’s conduct and, as a

result, needlessly incurred excessive and unconscionable [Passenger Usage Fees].”

      The complaint further alleged that Spirit engaged in this fraudulent activity

while associated with, operating, or controlling a RICO enterprise. The enterprise

allegedly consisted of Spirit itself, along with two of its corporate officers and a

variety of outside consultants (both individual and corporate) who provided

various services for Spirit. Specifically, the enterprise was said to consist of: (1)

Spirit; (2) Spirit officers and executives, particularly Chief Executive Officer Ben


                                           4
              Case: 15-13792     Date Filed: 09/02/2016   Page: 5 of 33


Baldanza and Chief Marketing Officer/Senior Vice President Barry Biffle, who

orchestrated the allegedly fraudulent scheme; (3) Navitaire, a wholly owned

subsidiary of Accenture, LLC, which provided a platform for ticket sales that had

been customized to conceal the Passenger Usage Fee; (4) Colt Cooper, an airline

reservation software consultant who helped Spirit implement its website and

reservation system; (5) Objectart Solutions, LLC, and its owner Kenneth Ramirez,

another software consultant who was involved in the development, management,

and support of the ticketing website; and (6) MSP Communications, Inc., and its

president, Misty Pinson, who were responsible for public relations surrounding the

Passenger Usage Fee. The complaint further recited that the members of the

enterprise shared the common purpose to “increase and maximize the revenue of

Spirit Airlines by increasing the [Passenger Usage Fee] and other carrier-imposed

fees through a scheme that, in part, omitted and misrepresented that the fees were

not related to government taxes and other permitted fees for services but were a

bottom-line assessment for Spirit.” The allegations included that the members of

the enterprise “shared the bounty of their enterprise” by sharing in the “benefit”

derived from concealing the Passenger Usage Fee. But nothing in the complaint

alleged that the consultants’ fees were tied to the deceptive collection of the

Passenger Usage Fee as opposed to simply being compensation for general

business services rendered.


                                          5
              Case: 15-13792     Date Filed: 09/02/2016   Page: 6 of 33


      The district court granted Spirit’s first motion to dismiss the second

amended complaint, concluding that because the Airline Deregulation Act

preempted all state and federal common law claims, it also prohibited a RICO

action. The district court found that Congress intended the Department of

Transportation to be the sole legal control on deceptive airfare, fees, and fare

advertising. On appeal, we reversed, holding that, although the ADA preempted

state law, it said nothing about preempting federal causes of action such as RICO.

Ray, 767 F.3d at 1221. We concluded that the ADA did not repeal the application

of the civil provisions of RICO, either expressly or by implication. Id. at 1229.

We reasoned that RICO and the ADA are capable of coexistence because they

feature different requirements and offer different protections. Id. at 1226. Thus,

for example, we observed that it is far more difficult to establish a RICO predicate

act like mail or wire fraud than to prove a violation of the Department of

Transportation’s regulations concerning unfair or deceptive practices. Id. at 1226-

27. Mail and wire fraud are specific intent crimes, whereas the DOT need not find

a specific intent to deceive or commit fraud or injury “before levying penalties or

ordering a carrier to alter an unfair or deceptive practice.” Id. at 1226. Moreover,

we noted that civil RICO also provides for treble damages. Id. at 1227. In short,

we concluded that the Airline Deregulation Act is wholly different from RICO and

that civil RICO claims are not barred by the ADA.


                                          6
                Case: 15-13792       Date Filed: 09/02/2016       Page: 7 of 33


       Our ruling, however, passed no judgment on the adequacy of the plaintiffs’

RICO pleading, remanding the matter to the district court to make that

determination. Id. at 1222, 1229.

       Back in district court for round two, the defendants successfully moved to

dismiss the complaint for failure to state a claim pursuant to Fed. R. Civ. P.

12(b)(6). First, the district court found that the plaintiffs had failed to sufficiently

plead the existence of a RICO enterprise. The plaintiffs had failed to adequately

allege that the various parties were engaged in an ongoing relationship with the

common purpose of defrauding Spirit customers. Because the complaint made no

showing that the various members of the alleged enterprise actually intended to

participate in Spirit’s scheme to conceal the Passenger Usage Fee or, indeed, even

knew about the scheme, the district court concluded that there was no basis to infer

that the members acted as part of a single enterprise designed to defraud

customers. Moreover, the district court determined that the complaint failed to

meet Fed. R. Civ. P. 9(b)’s specificity requirements.1 The district court

highlighted that the complaint failed to plead, among other salient details, the

precise statements in Spirit’s advertisements that were allegedly deceptive, where

the plaintiffs saw the advertisements, the costs of the tickets the plaintiffs

       1
         Rule 9(b) states: “In alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of
a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b).


                                                7
              Case: 15-13792     Date Filed: 09/02/2016    Page: 8 of 33


purchased, and the steps the plaintiffs took on the website when they purchased

tickets. Having concluded that the complaint failed to adequately state a claim for

civil RICO, the district court granted the plaintiffs leave to file a third amended

complaint by June 18, 2015 if there was a good faith basis for doing so. That

deadline was later extended until June 29, 2015.

      The plaintiffs did not file a third amended complaint during that timeframe.

Therefore, the district court entered final judgment on the matter on June 30, 2015.

The same day, however, plaintiffs filed a motion for relief from the judgment

pursuant to Fed. R. Civ. P. 60(b)(1), claiming that a calendar error had led to their

failure to file their third amended complaint. With that, the plaintiffs also filed

their third amended complaint. However, the changes between the second and

third amended complaints were exceedingly minimal. The most prevalent change

was the complaint’s re-characterization of its description of the fees; rather than

allege that the fees were hidden, the third amended complaint said that they

amounted to fraudulent misrepresentations. The third amended complaint added

no new facts about the actions of the named plaintiffs, nor did it materially alter the

description of the alleged fraud or the members and purpose of the alleged

enterprise.

      The district court concluded that the plaintiffs’ delayed filing of the third

amended complaint was the result of excusable neglect and so granted in part relief


                                           8
              Case: 15-13792     Date Filed: 09/02/2016    Page: 9 of 33


from the judgment. But, because the third amended complaint failed to overcome

the various deficiencies that had led it to dismiss the second amended complaint,

the district court found that it would be futile to reopen its judgment and allow the

complaint to be pled on the latest amendation. Thus, it denied the plaintiff’s Rule

60(b) motion for relief from judgment and closed the cause.

      The plaintiffs timely filed this appeal, challenging the order dismissing the

second amended complaint, the judgment, and the order denying them relief from

the judgment.

                                          II.

      We review de novo the grant of a Rule 12(b)(6) motion to dismiss for failure

to state a claim. Simpson v. Sanderson Farms, Inc., 744 F.3d 702, 705 (11th Cir.

2014). We accept, as we must at this stage, the allegations in the complaint as true

and construe them in the light most favorable to the plaintiffs. Ironworkers Local

Union 68 v. AstraZeneca Pharm., LP, 634 F.3d 1352, 1359 (11th Cir. 2011). To

survive a Rule 12(b)(6) motion to dismiss, a complaint must plead “enough facts to

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). We are, of course, free to affirm the district court’s dismissal on


                                           9
              Case: 15-13792      Date Filed: 09/02/2016     Page: 10 of 33


“any ground that is supported by the record.” United States v. Elmes, 532 F.3d

1138, 1142 (11th Cir. 2008).

       There is some confusion between the parties as to whether the second or

third amended complaint is the operative pleading for the purposes of this appeal.

At bottom, as the parties agree, it matters little which complaint we consider

because the differences between the two are minimal and immaterial. To the

extent it matters at all, the second amended complaint is the operative one because

the district court denied leave (albeit retroactively) to the plaintiffs to file a third

amended complaint. Thus, when considering whether the dismissal was

appropriate, we look to the second amended complaint. But when we review

whether to permit further leave to amend the complaint still again, we may look to

the third amended complaint as a reliable indicator of whether allowing future

amendments would be futile.

                                           III.

       Congress enacted RICO in 1970, prohibiting racketeering activity connected

to interstate commerce. Ray, 767 F.3d at 1224. The statute makes it “unlawful for

any person employed by or associated with any enterprise engaged in, or the

activities of which affect, interstate or foreign commerce, to conduct or participate,

directly or indirectly, in the conduct of such enterprise’s affairs through a pattern

of racketeering activity or collection of unlawful debt.” 18 U.S.C. § 1962(c). In


                                            10
             Case: 15-13792      Date Filed: 09/02/2016    Page: 11 of 33


addition to creating criminal penalties for racketeering activities, the statute also

created a private, civil cause of action. Thus, “[a]ny person injured in his business

or property by reason of a violation of section 1962 of this chapter may sue

therefor in any appropriate United States district court and shall recover threefold

the damages he sustains and the cost of the suit, including a reasonable attorney’s

fee . . . .” 18 U.S.C. § 1964(c). “To recover, a civil plaintiff must establish that a

defendant (1) operated or managed (2) an enterprise (3) through a pattern (4) of

racketeering activity that included at least two racketeering acts.” Ray, 767 F.3d at

1224. A civil plaintiff must also show “(1) the requisite injury to ‘business or

property,’ and (2) that such injury was ‘by reason of’ the substantive RICO

violation.” Williams v. Mohawk Indus., Inc., 465 F.3d 1277, 1282–83 (11th Cir.

2006), abrogated on other grounds as recognized in Simpson, 744 F.3d at 714–15.

“The upshot is that RICO provides a private right of action for treble damages to

any person injured in his business or property by reason of the conduct of a

qualifying enterprise’s affairs through a pattern of acts indictable as mail fraud.”

Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 647 (2008).

      Although initially enacted to fight organized crime, the Supreme Court has

rejected a reading of RICO that applies only where the pattern of conduct is

“characteristic either of organized crime in the traditional sense, or of an

organized-crime-type perpetrator, that is, of an association dedicated to the


                                           11
             Case: 15-13792     Date Filed: 09/02/2016    Page: 12 of 33


repeated commission of criminal offenses.” H.J. Inc. v. Nw. Bell Tel. Co., 492

U.S. 229, 243 (1989). So limited a reading of the statute, the Supreme Court has

concluded, is unsupported by the text or legislative history of RICO. Id. at 244.

To the contrary, “the RICO statute provides that its terms are to be liberally

construed to effectuate its remedial purposes.” Boyle v. United States, 556 U.S.

938, 944 (2009) (internal quotation marks omitted); see also Sedima, S.P.R.L. v.

Imrex Co., 473 U.S. 479, 497–98 (1985). With that background, we examine this

civil RICO complaint and ultimately conclude that it fails to state a claim.

                                          A.

      The second amended complaint fails in the first instance because it does not

adequately plead that the plaintiffs suffered injury as a result of Spirit’s purported

mail and wire fraud. The RICO statute provides a cause of action for “[a]ny

person injured in his business or property by reason of a violation of section 1962.”

18 U.S.C. § 1964(c) (emphasis added). The Supreme Court has been clear that a

party is only entitled to recover under RICO “to the extent that[] he has been

injured in his business or property by the conduct constituting the violation.”

Sedima, 473 U.S. at 496. Thus, a defendant who commits an act of racketeering is

“not liable for treble damages to everyone he might have injured by other conduct,

nor is the defendant liable to those who have not been injured.” Id. at 496–97

(quoting Haroco, Inc. v. Am. Nat’l Bank & Trust Co. of Chicago, 747 F.2d 384,


                                          12
             Case: 15-13792     Date Filed: 09/02/2016    Page: 13 of 33


398 (7th Cir. 1984)). Rather, pleading a civil RICO claim requires that plaintiffs

plead facts sufficient to give rise to a reasonable inference that the claimed

racketeering activity -- here, the misrepresentation of the Passenger Usage Fee

through mail and wire fraud -- was the but-for and proximate cause of the

plaintiffs’ injuries. See Simpson, 744 F.3d at 712; Williams, 465 F.3d at 1287.

The connection between the racketeering activity and the injury can be neither

remote, purely contingent, nor indirect. See Anza v. Ideal Steel Supply Corp., 547

U.S. 451, 457 (2006); Williams, 465 F.3d at 1287–88. “When a court evaluates a

RICO claim for proximate causation, the central question it must ask is whether the

alleged violation led directly to the plaintiff’s injuries.” Anza, 547 U.S. at 461; see

also Williams, 465 F.3d at 1287. The injurious conduct need not be the sole cause

of the plaintiffs’ injuries, but there must be “some direct relation” between the

conduct and the injury to sustain a claim. Williams, 465 F.3d at 1287–88 (quoting

Anza, 547 U.S. at 457). Notably, the fact that an injury is reasonably foreseeable

is not sufficient to establish proximate cause in a RICO action -- the injury must be

direct. Hemi Grp., LLC v. City of New York, 559 U.S. 1, 12 (2010) (plurality

opinion); Williams, 465 F.3d at 1291. Thus, we have previously held that

plaintiffs did not adequately plead a RICO claim where their complaint asserted

only the bald conclusion that the plaintiffs relied on a misrepresentation without

showing how that reliance was manifested. Ambrosia Coal & Constr. Co. v. Pages


                                          13
             Case: 15-13792      Date Filed: 09/02/2016    Page: 14 of 33


Morales, 482 F.3d 1309, 1317 & n.12 (11th Cir. 2007). Moreover, we have held

that plaintiffs lack standing to bring a RICO claim unless their injuries were

proximately caused by the RICO violation. Bivens Gardens Office Bldg., Inc. v.

Barnett Banks of Florida, Inc., 140 F.3d 898, 906 (11th Cir. 1998) (citing Pelletier

v. Zweifel, 921 F.2d 1465, 1499 (11th Cir. 1991), abrogated on other grounds by

Bridge, 553 U.S. 639).

      Here, the plaintiffs alleged only that they “and the other members of the

proposed class were harmed in that they relied to their detriment on Spirit’s

conduct and, as a result, needlessly incurred excessive and unconscionable

[Passenger Usage Fees].” But this allegation amounts to little more than a

“[t]hreadbare recital[] of the elements of a cause of action, supported by mere

conclusory statements,” which is plainly insufficient to support a cause of action.

Iqbal, 556 U.S. at 678; cf. Ambrosia Coal, 482 F.3d at 1317 & n.12. The plaintiffs

argue that “merely purchasing a ticket and paying the unlawful passenger usage fee

in the process, by itself, amounts to reliance on Spirit’s fraudulent conduct.” We

find this argument wholly unconvincing. While paying the fee may establish an

injury-in-fact, it does not in any way establish that the plaintiffs sustained an injury

as the direct result of Spirit’s claimed fraudulent misrepresentations. The mere fact

of having been misled does not ineluctably give rise to a RICO cause of action




                                           14
             Case: 15-13792     Date Filed: 09/02/2016    Page: 15 of 33


unless the act of misleading the plaintiffs actually caused them injury in their

business or to their property that they would not otherwise have suffered.

      To be sure, RICO does not contain a requirement that the plaintiff personally

relied on the defendant’s fraudulent misrepresentation. Bridge, 553 U.S. at 648–

49. In Bridge, the Supreme Court recognized a civil RICO claim where the

defendants had submitted fraudulent documents to Cook County, Illinois, which

was conducting property auctions, thereby giving the defendants an unfair

advantage over the plaintiffs in securing property at those auctions. Id. at 642–44.

The Court ruled that the plaintiffs could proceed with the lawsuit even though it

was Cook County, and not the plaintiffs, that had relied on the misrepresentations.

But the Court was clear that its holding dismissing the need for first-party reliance

on the fraud did not mean that a party can prevail without showing that someone

had relied on the fraud. Id. at 658. Without reliance on the fraud by someone -- in

Bridge, Cook County -- the plaintiffs would not be able to show that they were

injured by reason of the alleged racketeering activity. And a showing of direct

injury is required to sustain a RICO claim. Unable to establish even but-for

causation, such a plaintiff necessarily would be unable to meet the higher burden

of showing that the racketeering activity proximately caused the plaintiff’s injuries.

See Holmes v. Sec. Inv’r Prot. Corp., 503 U.S. 258, 268 (1992); Williams, 465

F.3d at 1287.


                                          15
              Case: 15-13792     Date Filed: 09/02/2016     Page: 16 of 33


      Whatever else the second amended complaint asserts, it does not allege a

direct link -- or, indeed, any link at all -- between Spirit’s presentation of its

Passenger Usage Fee and the plaintiffs’ decision to purchase tickets on Spirit’s

website. It pleads causation only at the highest order of abstraction and supports

the claim only with conclusory assertions; notably absent is an allegation of any

specific fact that would make those conclusions plausible. Thus, the complaint

does not so much as tell us the prices that the various plaintiffs paid for their

tickets or the prices that other airlines charged for comparable flights, to say

nothing of the many factors aside from cost that might induce someone to purchase

an airline ticket. The complaint does not even allege that the plaintiffs would not

have purchased their tickets from the Spirit website had they known that the

Passenger Usage Fee was not authorized or collected by the government.

Moreover, it strains credulity to insist -- as the plaintiffs must -- that a customer

willing to purchase a ticket for $129 in base fare plus an $8.99 Passenger Usage

Fee (among other taxes and fees) announced before the tickets were purchased

would balk at purchasing a ticket if he knew that the $8.99 fee came from the

airline and not the government. In short, it seems utterly implausible to us that

Spirit’s customers would have declined to purchase a ticket if, in the “taxes and

fees” listing on Spirit’s website, they encountered an item titled “Airline-Imposed

Passenger Usage Fee.” The plaintiffs have pled nothing even remotely suggesting


                                            16
             Case: 15-13792     Date Filed: 09/02/2016    Page: 17 of 33


that they -- or anyone else for that matter -- would have acted at all differently had

Spirit been clearer in its presentation and description of the Passenger Usage Fee.

Based on the limited facts alleged in this complaint, we cannot come close to

drawing a reasonable inference that the plaintiffs would not have purchased their

tickets utilizing Spirit’s website or call center, even if they had understood the true

source of the Passenger Usage Fee.

      Plaintiffs, however, cite to our decision in Kemp v. AT&T, 393 F.3d 1354,

1361 (11th Cir. 2004), in arguing that where the allegations of mail or wire fraud

involve omissions rather than affirmative misrepresentations, no reliance is

necessary. But this does not excuse plaintiffs from adequately pleading proximate

cause in their RICO claim. The discussion in Kemp revolved around a challenge

to whether AT&T had committed the predicate racketeering acts of mail and wire

fraud. Id. at 1359–61. We found that a plaintiff does not have to prove reliance on

a fraudulent omission of material information to sustain a claim for mail or wire

fraud. Id. at 1361. But finding that a defendant committed a predicate

racketeering offense, such as mail or wire fraud, is not the same as finding that it

committed a RICO violation. Civil RICO plaintiffs must sufficiently plead both

racketeering activity and that the activity caused them some injury. “This is true

even when a criminal conviction for the underlying racketeering activity would not

require a showing of actual injury, as is the case with mail and wire fraud.” Beck


                                          17
             Case: 15-13792      Date Filed: 09/02/2016    Page: 18 of 33


v. Prupis, 162 F.3d 1090, 1095 (11th Cir. 1998); see also Pelletier, 921 F.2d at

1499. Thus, Kemp provides no relief from the requirement that civil RICO

plaintiffs properly plead proximate cause for their injuries. Because the plaintiffs

have not pled that they or anyone else relied on Spirit’s alleged misrepresentations

in purchasing their tickets -- and, thus, have not shown that they were injured “by

reason of” a RICO violation -- they have failed to state a claim upon which relief

may be granted.

      There is no ambiguity in Supreme Court or Eleventh Circuit precedent about

the requirement that a civil RICO claim must sufficiently plead proximate cause.

The failure to adequately plead causation is compounded in this case because the

district court, in dismissing the second amended complaint for the first time,

explained that a RICO claim required a showing of proximate cause and that the

plaintiffs had failed “to include any allegations linking [their] loss to the fraud

here.” The district court added that if plaintiffs planned to file a third amended

complaint, they “should include specific allegations that they would have acted

differently” had they known the true nature of the Passenger Usage Fee. The

plaintiffs nonetheless failed to make any averment in their third amended

complaint that would tend to show any sort of causal link between the alleged

fraud and some injury to the plaintiffs’ business or property. This strongly

suggests that allowing further leave to amend the complaint would be futile. Thus,


                                           18
                Case: 15-13792      Date Filed: 09/02/2016       Page: 19 of 33


we affirm the dismissal of this civil RICO complaint because it has failed to

adequately plead proximate cause.2

                                               B.

       Moreover, the plaintiffs’ second amended complaint has failed for a second

and independent reason: it has failed to plead the existence of a RICO enterprise

because it has not adequately alleged a common purpose shared by Spirit and the

other members of the alleged enterprise. Again, the racketeering enterprise pled

here was said to consist of Spirit, two Spirit officers, three software

vendors/consultants, and a public relations consultant. According to the RICO

statute, an “‘enterprise’ includes any individual, partnership, corporation,

association, or other legal entity, and any union or group of individuals associated

in fact although not a legal entity.” 18 U.S.C. § 1961(4). Thus, the enterprise

alleged in this case is an association-in-fact enterprise; it does not itself comprise a

legal entity.


       2
          Because the plaintiffs have failed both to properly plead proximate cause and a RICO
enterprise, we need not and do not decide whether they adequately pled the commission of fraud
with the particularity demanded by Fed. R. Civ. P. 9(b). That said, we have serious doubts about
whether, were we to consider the matter, the complaint would survive scrutiny under Rule 9(b).
As highlighted by the district court, the complaint failed to plead the precise statements in
Spirit’s advertisements purported to be fraudulent, where the plaintiffs saw the advertisements,
the costs of purchased tickets, what steps the plaintiffs took on the website when they purchased
tickets, even what date the tickets were purchased in some instances, among other salient details.
Indeed, the only plaintiffs who even come close to surviving the particularity requirements
demanded by Rule 9(b) are Michael Diorio and Jennifer Sily, who, in contrast to the other
plaintiffs, pled the dates on or about which they purchased tickets, where they purchased the
tickets (Spirit’s website), and cited the amounts they paid in Passenger Usage Fees.


                                               19
               Case: 15-13792        Date Filed: 09/02/2016        Page: 20 of 33


       The Supreme Court has instructed us that an association-in-fact enterprise

must possess three qualities: “a purpose, relationships among those associated with

the enterprise, and longevity sufficient to permit these associates to pursue the

enterprise’s purpose.” Boyle, 556 U.S. at 946. It is “simply a continuing unit that

functions with a common purpose.” Id. at 948. An enterprise need not have a

hierarchical structure, specific governing procedures, or fixed roles for its

members. Id. at 948. What is required is “evidence of an ongoing organization,

formal or informal, and . . . evidence that the various associates function as a

continuing unit.” United States v. Turkette, 452 U.S. 576, 583 (1981).

       The second amended complaint fails because it has not plausibly alleged that

the technology (Navitaire/Accenture, Colt Cooper, and Objectart) and public

relations (MSP Communications) vendors named in the complaint shared a

common purpose with Spirit. The complaint charged that the RICO enterprise

members had a common purpose “to increase and maximize the revenue of Spirit

Airlines by increasing the [Passenger Usage Fee] and other carrier-imposed fees

through a scheme that, in part, omitted and misrepresented that the fees were not

related to government taxes and permitted fees for services but were a bottom-line

assessment for Spirit.” 3 Because we cannot accept purely conclusory allegations,


       3
         Plaintiffs later attempted to alter their own allegations by arguing that any purpose -- for
instance, the common purpose of making money -- is sufficient to qualify under the RICO


                                                 20
               Case: 15-13792       Date Filed: 09/02/2016      Page: 21 of 33


we look to whether the complaint alleged facts sufficient to give rise to a plausible

inference that the various members of the alleged enterprise acted with this

common purpose. Iqbal, 556 U.S. at 678.

       Nowhere in the complaint do the plaintiffs allege facts giving rise to a

plausible inference that the various technology vendors and consultants, either

individually or in corporate form, were in any way involved in the actual decisions

of how to portray the Passenger Usage Fee, knew the true nature of the fee, or

worked intentionally to misrepresent the fee. Thus, passing over the complaint’s

wholly conclusory claims, there is no plausible allegation that these vendors

knowingly cooperated with Spirit in a scheme that involved misrepresenting the

Passenger Usage Fee.

       Consider the following passage from the complaint, which is typical of the

allegations against these service providers:

              Objectart Solutions, LLC and its owner Kenneth Ramirez
              have consulted with Spirit since 2006 in the area of
              software architecture, development, quality assurance
              and technology management, including, but not limited
              to revenue management system interfaces and support
              and interface systems for the Naitaire ticketing and
              reservations system. As such they have been involved
              with the development management and support of the


statute. But we are bound to examine the sufficiency of the plaintiffs’ complaint, not what they
argue their complaint could have said. Moreover, since making money is the purpose of every
for-profit corporation, at least based on these pleadings, this purpose is wholly insufficient to
establish an association-in-fact enterprise.


                                               21
             Case: 15-13792      Date Filed: 09/02/2016    Page: 22 of 33


             revenue management system(s) that allow for Spirit’s
             collection of the deceptive [Passenger Usage Fee] in its
             client-side reservation and ticketing process.

In short, the plaintiffs allege that Objectart and its owner helped Spirit set up the

ticket reservation system for Spirit’s website. But this is a wholly innocent activity

undertaken as a course of regular business for Objectart. More importantly, this

passage is notable for what it lacks. It does not say that Objectart had any control

over (or, for that matter, was even aware of) the actual content on the web platform

it helped develop. It does not allege that Objectart worked to conceal the true

nature of the Passenger Usage Fees. It does not indicate that Objectart and its

owner knew that Spirit was engaging in misleading behavior. It does not indicate

that Objectart directly profited from the misrepresentation, as opposed to simply

receiving a fee for the anodyne services it provided. That Objectart helped set up a

platform that Spirit independently misused does not give rise to a plausible

inference that Objectart and Spirit acted with the common purpose, let alone the

common purpose arising out of a continuing relationship, to misrepresent the

Passenger Usage Fee or defraud Spirit customers.

      The allegations regarding Cooper and Accenture/Navitaire suffer from

similar failings. For instance, the allegations against Cooper assert:

             Colt Cooper[] [is] an airline reservation software
             consultant and specialist in Accenture’s Navitaire
             platform, who has worked extensively with Spirit to
             implement its website and reservation system. Beginning
                                           22
             Case: 15-13792     Date Filed: 09/02/2016   Page: 23 of 33


             in July 2007, Cooper converted Spirit’s legacy airline
             reservation system for additional capabilities. Cooper
             was involved in several development phases of the
             reservation software to the specifications of the
             enterprise, a platform that allows for concealment of the
             [Passenger Usage Fee] in the booking process[.]

Like the allegations against Objectart, the allegations against Cooper stop short of

saying that he was responsible for any of the content on the platform he helped

develop. The complaint also does not so much as suggest that Cooper was

personally involved in the purported concealment of the Passenger Usage Fee,

saying only that he worked on a platform that “allows” for the concealment.

Indeed, the complaint does not plead any facts suggesting that Cooper knew Spirit

was engaging in misleading behavior or that he shared a common purpose of

engaging in (or even consciously enabling) that behavior.

      Likewise, the allegations against Accenture/Navitaire only allege in

conclusory fashion that the company had any active role in facilitating and

promoting Spirit’s alleged fraud. Moreover, the claim that “Navitaire’s Revenue

and Decision Support products and services have been employed and manipulated

by Spirit in devising ways to maximize revenues through hidden fees” is a far cry

from saying that Navitaire shared the common purpose of defrauding Spirit

customers. Spirit’s alleged misuse of a software platform does not suggest that the

maker of that platform knew anything of, let alone shared, Spirit’s allegedly

fraudulent purpose.
                                         23
             Case: 15-13792      Date Filed: 09/02/2016    Page: 24 of 33


      Nor do the plaintiff’s allegations concerning communications consultant

MSP Communications and its president, Misty Pinson, fare any better. The

complaint alleged that MSP and Pinson were largely responsible for the public

relations regarding Spirit’s business model in general and the Passenger Usage Fee

in particular. But, as with the software consultants that we have already discussed,

there is not the slightest factual averment or indication that MSP or Pinson played

any role in determining how the fee would be presented on Spirit’s website, where

the complaint alleged the fraud occurred. Indeed, there are no claims that MSP or

Pinson had any involvement with Spirit’s website or method of charging fees at all.

Moreover, because the plaintiffs disclaimed any reliance on misrepresentations in

Spirit’s advertisements in the district court, it is unclear how the public relations

efforts by MSP and Pinson relate in any way to the wrongs alleged in the

complaint. That a public relations firm engaged in public relations work when

Spirit hired it to do so hardly gives rise to a plausible inference that MSP and

Pinson shared a common purpose with Spirit of scheming to misrepresent the

Passenger Usage Fee.

      Moreover, the complaint’s general allegations about the operations of the

enterprise do no better in plausibly alleging a common purpose among Spirit and

its various vendors to misrepresent the Passenger Usage Fee. Thus, for example,

the complaint alleged that “Spirit designed and employed an airline ticket booking


                                           24
             Case: 15-13792     Date Filed: 09/02/2016    Page: 25 of 33


system to conceal and assess fees and charges, including the [Passenger Usage

Fee], via a website process designed specifically to obfuscate, omit and/or

misrepresent the assessment and foundation for the [Passenger Usage Fee].”

While this may allege Spirit’s purpose, it says nothing about the actions of the

other members of the putative enterprise. The next paragraph of the complaint

alleged that “the concerted scheme involved at least two freestanding entities . . . to

devise a registration practice of generating fees by intentionally omitting and/or

misrepresenting their actual purpose.” But this was pled in a wholly conclusory

manner unsupported by any factual averments concerning the specific roles played

by the vendors to support this purpose. This allegation just claimed that other

members of the alleged enterprise were involved in intentionally misrepresenting

the source of the Passenger Usage Fee, but without offering any factual averments

to make the assertion plausible. Similarly, the allegation that Spirit and its

associates-in-fact engaged in strategic planning, targeted marketing studies, and

customizing website technology described only common business practices and did

not offer facts suggesting that the consultants and vendors working with Spirit

were aware of or participated in Spirit’s alleged misrepresentations. Absent facts

plausibly suggesting that Spirit and the other alleged members of this association-

in-fact enterprise shared the common purpose alleged in the complaint, this RICO

pleading fails. On this bare record, Spirit, the outside consultants, software


                                          25
             Case: 15-13792     Date Filed: 09/02/2016    Page: 26 of 33


developers, and their officers, agents, and employees were engaged in no more

than a series of legitimate commercial transactions.

      Finally, the allegations concerning Spirit CEO Ben Baldanza and its Chief

Marketing Officer/Senior Vice President Barry Biffle regarding the enterprise’s

common purpose also seem to us to be insufficient. The complaint alleged that

Baldanza and Biffle orchestrated Spirit’s “ancillary revenue model” whereby

customers pay “unbundled charges that have traditionally been included in the total

price of an airline ticket.” The complaint then alleged that the ancillary revenue

model was “designed and/or adopted by the Enterprise to be intentionally

confusing and deceptive in order to fraudulently collect additional[] moneys from

Spirit customers.” But the complaint did not say who within the enterprise made

that model intentionally confusing. It did not allege that Baldanza or Biffle

instructed anyone within the alleged enterprise to misrepresent the Passenger

Usage Fee or that they were even aware the misrepresentation existed. While

Baldanza, Biffle, and Spirit most assuredly shared a common purpose of promoting

Spirit’s corporate profits and welfare, the complaint did not allege facts sufficient

to give rise to a reasonable inference that the common purpose they shared

included a scheme to misrepresent fees or otherwise defraud Spirit customers.




                                          26
              Case: 15-13792     Date Filed: 09/02/2016    Page: 27 of 33


                                           C.

      Even, however, were we to assume that Baldanza and Biffle shared a

common purpose to misrepresent the source of the Passenger Usage Fee -- making

it look like it was a tax imposed by the government rather than a fee imposed by

the airline -- the plaintiffs’ association-in-fact pleading would still fail because in

an association-in-fact enterprise, a defendant corporation cannot be distinct for

RICO purposes from its own officers, agents, and employees when those

individuals are operating in their official capacities for the corporation.

Significantly, to state a civil RICO claim, a plaintiff must establish a distinction

between the defendant “person” and the “enterprise” itself. The Supreme Court

has made it crystal clear that the racketeering enterprise and the defendant must be

two separate entities. Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158,

161–62 (2001); see also United States v. Goldin Indus., Inc., 219 F.3d 1268, 1271

(11th Cir. 2000) (en banc) (“We now agree with our sister circuits that, for the

purposes of 18 U.S.C. § 1962(c), the indictment must name a RICO person distinct

from the RICO enterprise.”). This requirement arises from the statutory language

making it “unlawful for any person employed by or associated with any enterprise”

to engage in racketeering activities through that enterprise. 18 U.S.C. § 1962(c). It

does not make sense for a person to employ or associate with himself. Thus, an




                                           27
             Case: 15-13792     Date Filed: 09/02/2016   Page: 28 of 33


enterprise may not simply be a “‘person’ referred to by a different name.” Cedric

Kushner Promotions, 533 U.S. at 161.

      The Supreme Court has held that, where the defendant is a natural person, he

is distinct for RICO purposes from a closely held corporation of which he is the

president and sole shareholder. Cedric Kushner Promotions, 533 U.S. at 160. That

case involved allegations that the boxing promoter Don King conducted the affairs

of Don King Productions (a corporation of which he was the president and sole

shareholder) through a pattern of racketeering activities consisting of fraud and

other RICO predicate crimes. Id. at 160–61. The Court started its analysis with

the premise that a corporation and its owner/employee are legally separate and

distinct entities. Id. at 163. Moreover, RICO was designed to protect legitimate

enterprises from becoming vehicles through which unlawful activities are

committed. Id. at 164. “A corporate employee who conducts the corporation’s

affairs through an unlawful RICO pattern of activity uses that corporation as a

vehicle whether he is, or is not, its sole owner.” Id. at 164–65 (internal quotation

marks and citation omitted, alteration adopted). Thus, RICO’s distinctiveness

requirement is met where an individual defendant engages in a pattern of

racketeering activity through a corporation, even a corporation of which the

defendant is the sole shareholder. Id. at 166. But the Court’s holding went no

further. Indeed, the Court explicitly disclaimed deciding the “quite different”


                                          28
              Case: 15-13792    Date Filed: 09/02/2016    Page: 29 of 33


issue, arising in this case, where the defendant “person” is a corporation and is

alleged to have engaged in an enterprise with its officers, employees, and agents.

Id. at 164.

      The plaintiffs argue that the distinction highlighted by the Supreme Court is

not one that compels a different result because the relationships alleged in this case

are just as much an enterprise as those found in Cedric Kushner. But recognizing

that distinction -- far from being an exercise in sophistry -- is very important. In

this case, the corporation is the defendant person, and the corporation, together

with its officers, agents, and employees, are said to constitute the enterprise. Every

circuit that has squarely decided this matter has recognized this distinction. See

Cruz v. FXDirectDealer, LLC, 720 F.3d 115, 121 (2d Cir. 2013); Fitzgerald v.

Chrysler Corp., 116 F.3d 225, 226–28 (7th Cir. 1997); Riverwoods Chappaqua

Corp. v. Marine Midland Bank, N.A., 30 F.3d 339, 343–44 (2d Cir. 1994); Bd. of

Cty. Comm’rs of San Juan Cty. v. Liberty Grp., 965 F.2d 879, 886 (10th Cir.

1992).

      We agree with the views expressed by our sister circuits on this matter.

Thus, for example, the Second Circuit has ruled on this issue at least twice. First,

in Riverwoods, the court rejected allegations of a RICO enterprise consisting of a

defendant corporation and three of the corporation’s vice presidents. Riverwoods,

30 F.3d at 343–45. The Second Circuit held that because a corporation can only


                                          29
             Case: 15-13792     Date Filed: 09/02/2016    Page: 30 of 33


act through its employees and agents, the fact that it does so is insufficient to

establish the existence of an enterprise. Id. at 344. Likewise, in Cruz, the Second

Circuit rejected claims of a RICO enterprise consisting of a defendant corporation,

its parent company, a former equity stakeholder, the CEO, the managing director

and corporate counsel, and various software companies that assisted the

corporation in developing its technological platform. Cruz, 720 F.3d at 120–21.

The court rejected the RICO claims as to the corporate officers because a

defendant corporation cannot form a RICO enterprise with its own employees or

agents who are carrying on the normal work of the corporation. Id. at 121. The

former stakeholder and software companies were deemed incapable of being part

of the enterprise because there was no pleading that they were aware of the

allegedly fraudulent activities of the corporation and, therefore, could not have

been working toward the common purpose of committing fraud. Id. Finally, the

corporation was held not to be able to form an enterprise with its parent company

where they shared a single, unified corporate structure. Id.

      The Tenth Circuit has also declined to find a RICO enterprise where a

corporate defendant was accused of acting through its employees and agents.

Liberty Grp., 965 F.2d at 886. There, the alleged enterprise consisted of a

corporation, the corporation’s general partners (both legal entities in their own

right), the corporation’s successor in interest, a corporate officer, and a corporate


                                          30
             Case: 15-13792     Date Filed: 09/02/2016    Page: 31 of 33


employee. Id. at 881. The Tenth Circuit held that these individuals and entities

lacked the requisite distinctiveness to form a RICO enterprise. Id. at 886.

      Finally, the Seventh Circuit in Fitzgerald affirmed the dismissal of a RICO

claim against the Chrysler Corporation where the alleged enterprise consisted of

the corporation, subsidiaries of the corporation, franchised Chrysler dealers, and

trusts controlled by the corporation. Fitzgerald, 116 F.3d at 226. The Seventh

Circuit concluded that the various parties to the alleged enterprise were either part

of the same corporation or else they served a role that could have been filled

directly by the corporate employees so that it made no sense to treat them as

distinct entities for RICO purposes. Id. at 228.

      We, too, hold that plaintiffs may not plead the existence of a RICO

enterprise between a corporate defendant and its agents or employees acting within

the scope of their roles for the corporation because a corporation necessarily acts

through its agents and employees. For our purposes, there is no distinction

between the corporate person and the alleged enterprise. See Riverwoods, 30 F.3d

at 344; Liberty Grp., 965 F.2d at 886. When an individual defendant acts through

a corporation, he may have formed an association-in-fact with an entity distinct

from himself. In that situation, the rule announced in Cedric Kushner makes sense.

In contrast to an individual, a corporation cannot act except through its officers,

agents, and employees. Thus, a corporate defendant acting through its officers,


                                          31
             Case: 15-13792     Date Filed: 09/02/2016    Page: 32 of 33


agents, and employees is simply a corporation. Labeling it as an enterprise as well

would only amount to referring to the corporate “person” by a different name. Cf.

Cedric Kushner Promotions, 533 U.S. at 161.

      Moreover, RICO was designed -- at least in part -- to prevent an individual

engaged in racketeering activities from increasing his power to do wrong by taking

over an apparently legitimate firm. Fitzgerald, 116 F.3d at 227. Doing so allows

that individual to “use[] the firm’s resources, contacts, facilities, and appearance of

legitimacy to perpetrate more, and less easily discovered, criminal acts than he

could do in his own person.” Id. But here, it is hard to see how Spirit increased its

authority or legitimacy, to say nothing of making its allegedly criminal acts more

difficult to discover, by operating in the manner that every corporation by necessity

acts -- through its officers, agents, and employees.

      Finally, while RICO was intended to be interpreted broadly, permitting

plaintiffs to plead an enterprise consisting of a defendant corporation and its

officers, agents, and employees acting within the scope of their employment would

broaden RICO beyond any reasonable constraints. See Cruz, 720 F.3d at 121;

Riverwoods, 30 F.3d at 344. Because every corporation acts through its own

employees as a matter of course, allowing such pleadings to go forward would turn

every claim of corporate fraud into a RICO violation. Fitzgerald, 116 F.3d at 226.

No matter how broadly RICO is interpreted, there is no reason to think that


                                          32
              Case: 15-13792    Date Filed: 09/02/2016    Page: 33 of 33


Congress intended the law to provide treble damages in every conceivable case of

corporate fraud.

      In this case, there is no distinction between the corporate defendant and an

enterprise composed of the corporation and some of its corporate officers. While

the outside vendors may be distinct, the second amended complaint did not

plausibly allege that they shared a common purpose with Spirit to misrepresent the

Passenger Usage Fee, as we have already discussed. And the corporate officers

and agents plainly are not distinct from the corporate defendant itself for purposes

of a RICO association-in-fact enterprise. In short, the district court correctly

dismissed the plaintiffs’ second amended complaint because the plaintiffs failed to

adequately allege the common purpose or distinctiveness required of a RICO

enterprise.

      AFFIRMED.




                                          33
