Kang Haggerty News
In Uber Technologies v. Simon & Simon, Judge Mark Kearney denied a motion to dismiss a RICO complaint filed by Uber and FedEx against the Philadelphia plaintiffs firm Simon & Simon, P.C. and a network of medical providers. The 54-page opinion charts how corporate defendants frame “systemic fraud” and what RICO plaintiffs must plead to survive a Rule 12 motion.
In the July 9, 2026 edition of The Legal Intelligencer, Edward Kang writes, “When the Lawyer Becomes the Defendant: RICO Comes for the Personal Injury Bar.”
For decades, civil RICO, 18 U.S.C. Sections 1961 et seq., with its treble damages and fee-shifting provisions, has been used primarily by plaintiffs for claims involving fraud and organized wrongdoing. A notable countertrend has emerged: corporate defendants are turning RICO against the plaintiffs lawyers who sue them, alleging that some high-volume personal-injury practices have crossed from advocacy into fraud. In Uber Technologies v. Simon & Simon, 2026 WL 1284178 (E.D. Pa. May 11, 2026), Judge Mark Kearney denied a motion to dismiss a RICO complaint filed by Uber and FedEx against the Philadelphia plaintiffs firm Simon & Simon, P.C. and a network of medical providers. The 54-page opinion charts how corporate defendants frame “systemic fraud” and what RICO plaintiffs must plead to survive a Rule 12 motion.
The Alleged Scheme
According to the complaint, over several years, Simon & Simon filed dozens of suits on behalf of clients with minimal or no injury, many with limited-tort coverage capping recovery at out-of-pocket expenses. The firm allegedly directed clients to a “conveyor belt of preselected treatment providers and medical experts”: chiropractors generating high volumes of treatment records; a pain specialist performing radiofrequency ablations on a flat per-procedure basis; and an examining physician who confirmed serious, permanent, accident-related injury in every reported case. Those records allegedly converted low-value claims into demands exceeding $50,000, avoiding compulsory arbitration and driving inflated settlements.
At the core of the RICO predicates were transmissions of false records by mail and interstate wire, which the court held Uber pleaded with Rule 9(b) particularity by identifying each participant, each record, the providers’ roles, and the means of transmission and use in litigation demands. Uber further alleged that roughly 30 suits were voluntarily dismissed immediately after it subpoenaed the pain-management provider, supporting an inference that those filings were leverage rather than merit-driven.
The RICO Architecture at the Pleading Stage
The court held Uber sufficiently pleaded an association-in-fact enterprise under Section 1962(c), which has become the most commonly used Section other than Section 1962(d) (relating to conspiracy), by alleging common purpose, relationships, and longevity, with a pattern formed by mail and wire fraud. On proximate cause, the usual stumbling block, the court accepted Uber’s theory that it incurred defense costs and paid inflated settlements it would not otherwise have paid, rejecting any first-party reliance requirement under Bridge v. Phoenix Bond & Indemnity, 553 U.S. 639 (2008).
Noerr-Pennington, Petitioning, and the ‘Whole Scheme’ Lens
Defendants invoked Noerr-Pennington and the petition clause as absolute immunity for petitioning activity, but the court focused on the level of generality: Uber and FedEx did not sue over any single complaint; rather, they alleged a coordinated racketeering scheme and that lawsuits were just part of that scheme. Filing lawsuits is protected petitioning, but the court distinguished the pre-filing direction to providers and the manufacture and transmission of false records—communications with third parties not directed at a court or opponent—as conduct outside the doctrine’s core protection.
Following Judge Stephanos Bibas’ March 2026 decision in Montway v. Navi Transport Services, 2026 WL 866290 (D. Del. Mar. 30, 2026), the court treated such third-party communications as not “incidental” to petitioning. Alternatively, even if deemed petitioning, the court found the sham-litigation exception plausibly alleged under the California Motor “series-of-petitions” test because the suits were alleged to have been filed without regard to merit, to inflict litigation costs, and the alleged falsehoods went to the core of the claims (existence, causation, and severity of injury), not merely to damages inflation.
Litigation Activity as a Predicate Act
Defendants relied on the U.S. Court of Appeals Third Circuit’s Applebaum v. Fabian, 2022 WL 17090172 (3d Cir. Nov. 21, 2022), to argue that fraudulent litigation activity cannot qualify as a RICO predicate. Judge Kearney read Applebaum narrowly: it barred a claim resting on litigation fraud and perjury alone, arising from a single probate dispute without cognizable mail or wire-fraud predicates. After surveying authorities cited in Applebaum, the court adopted the Kim v. Kimm, 884 F.3d 98, (2d Cir. 2018) line of cases and State Farm Mutual Automobile Insurance v. Tri-Borough New York Medical Practice, 120 F.4th 59 (2d Cir. 2024). Those decisions distinguish between litigation activity “without more” (not a predicate) and a coordinated, multi-actor scheme that uses mail and interstate wires to manufacture and monetize false evidence (which can support RICO). Thus, while each filing alone is a protected petitioning, the filings can function as the cash-out mechanism of a broader racketeering enterprise when combined with pre-filing fabrication and transmission of false records.
Filing Suit Is Protected—But Not Absolutely
The court’s whole-scheme approach aligns with familiar limits under Pennsylvania law. The Dragonetti Act permits suit for wrongful use of civil proceedings, and the tort of abuse of process addresses misuse of the court’s process for an improper purpose, even if the underlying claim is valid. These doctrines reflect a basic principle that petitioning is not a license to weaponize litigation. Noerr-Pennington may shield isolated petitioning acts but does not immunize fraudulent schemes that enlist litigation as the end-stage mechanism.
Not an Isolated Case
Uber has filed parallel RICO actions in Los Angeles, New York, and Florida, alleging attorney-directed referrals to preselected providers on lien arrangements, and within days of the ruling, it filed a notice of supplemental authority citing a California decision in its favor. RICO’s remedies, treble damages, fee-shifting, and, as pleaded by Uber, potential divestiture and dissolution, raise existential stakes for targeted firms.
On June 8, 2026, the Simon defendants filed counterclaims against Uber and FedEx for sham litigation, abuse of process, and extortion, contending that the RICO case is the actual sham.
Strategic Takeaways for Plaintiffs-Side Lawyers
This is neither a defense of fraud nor an attack on the plaintiff’s bar. The overwhelming majority of personal injury lawyers do not fabricate records or run kickback networks. But the rise of these suits should concern every personal injury plaintiff’s lawyer, and the risk is structural. Large defendants now have a tested playbook for turning a routine practice into a federal racketeering investigation, and the mere filing, even of a suit that ultimately fails, triggers costly, reputation-damaging discovery into referral relationships, internal communications, and intake procedures. Personal injury lawyers who rely on networks of treating providers should re-examine those relationships now. Arrangements involving providers whose diagnoses consistently support large claims may be litigated as evidence of an enterprise, and firms that cannot show arm’s-length dealings and independent medical judgment will be at a disadvantage.
At the same time, the same doctrinal architecture remains available to plaintiffs harmed by coordinated corporate schemes. Where a pattern of mail or wire fraud, an enterprise, and proximate injury to business or property converge, civil RICO remains among the commercial litigator’s most potent tools.
- Practical Lessons From Uber for RICO Plaintiffs
- Predicate particularity: Plead the who/what/when/where/how for mail/wire transmissions; identify participants, document types, transmission paths, and how false records monetized the scheme.
- Proximate cause: Articulate direct injury (e.g., inflated settlements/defense costs or business/property harms) and address apportionment as a fact issue consistent with Bridge.
Noerr-Pennington framing: Focus allegations on pre-filing fabrication and third‑party communications; plead sham‑litigation under the series‑of‑petitions test where suits were filed without regard to merit. - Litigation activity “plus”: Distinguish isolated litigation misconduct from a coordinated, multi‑actor enterprise using mails/wires to manufacture and monetize false evidence.
- Remedies and relief: Align remedies to enterprise scope and injury; preserve treble damages and fee-shifting; consider structural relief only where supported by facts already pleaded.
Conclusion
Uber signals a maturing consensus: fraud does not become protected advocacy merely because it is tethered to litigation. At the pleading stage, plaintiffs who frame the whole scheme—pre-filing fabrication, third‑party communications, coordinated use of mails and wires, and litigation as the monetization endpoint—can withstand Noerr-Pennington and “litigation activity” objections while plausibly alleging enterprise, pattern, and proximate cause. For plaintiffs-side lawyers, the message cuts both ways. Use RICO aggressively when the facts show coordinated fraud and direct injury; fortify your own practices to avoid having routine litigation activity recast as racketeering. And remember the posture: these are Rule 12 rulings. The proof, apportionment, and boundaries of petitioning immunity will be tested in discovery and beyond.
Edward T. Kang is the managing member of Kang Haggerty. He devotes the majority of his practice to business litigation and other litigation involving business entities. Contact him at ekang@kanghaggerty.com.
Reprinted with permission from the June 11, 2026 edition of “The Legal Intelligencer” © 2026 ALM Global, LLC. All rights reserved. Further duplication without permission is prohibited. Request academic re-use from www.copyright.com. All other uses, submit a request to asset-and-logo-licensing@alm.com. For more information visit Asset & Logo Licensing.