Second Circuit Clarifies That Use of an Innocent Intermediary Cannot, by Itself, Establish Agreement for a RICO Conspiracy – Moss v. First Premier Bank

1. Introduction

Moss v. First Premier Bank, decided by the United States Court of Appeals for the Second Circuit on 24 June 2025, concerns an alleged conspiracy to violate §1962(d) of the Racketeer Influenced and Corrupt Organizations Act (RICO). The plaintiff, Deborah Moss, claimed that First Premier Bank (“First Premier”) conspired with payday-lending entities controlled by Scott Tucker (collectively, the “Tucker Lenders”) to extract unlawful, usurious interest from consumers.

The central procedural question was whether Moss produced enough evidence at the summary-judgment stage to permit a reasonable jury to find that First Premier:

1. Had knowledge of the supposed RICO enterprise, and
2. Agreed to join and further the enterprise.

The District Court (Cogan, J.) granted summary judgment for First Premier and denied Moss’s motion for reconsideration. On appeal, the Second Circuit affirmed, focusing exclusively on the “agreement” element and holding that, absent proof of a “meeting of the minds,” the mere presence of a contracted intermediary (Intercept Corporation, a Third-Party Sender in the ACH network) cannot supply the requisite agreement under §1962(d).

2. Summary of the Judgment

3. Analysis

3.1 Precedents Cited

• United States v. Pizzonia, 577 F.3d 455 (2d Cir. 2009) – Restates that §1962(d) makes it unlawful to conspire to violate substantive RICO provisions; highlighted the need for proof of agreement.
• United States v. Cain, 671 F.3d 271 (2d Cir. 2012) – Elaborates the “meeting of the minds” requirement for RICO conspiracies.
• United States v. Zichettello, 208 F.3d 72 (2d Cir. 2000) – Provides the standard for inferring knowledge and agreement: whether circumstances logically compel the conclusion that the defendant was part of a larger enterprise.
• Jones v. County of Suffolk, 936 F.3d 108 (2d Cir. 2019) & Holtz v. Rockefeller & Co., 258 F.3d 62 (2d Cir. 2001) – General summary-judgment standards (Rule 56).

These precedents collectively shaped the Court’s approach:

1. They imposed the heavyweight burden on the plaintiff to produce evidence of both knowledge and agreement.
2. They clarified that inferential leaps (e.g., “they must have known”) are insufficient unless specific facts indicate conscious adoption of the enterprise’s aims.

3.2 Legal Reasoning

The Court’s reasoning can be broken down into sequential steps:

1. Framing the single dispositive issue: Whether any reasonable jury could find that First Premier agreed to advance the Tucker Scheme.
2. Examining communications and contracts:
   • No direct contract or communication existed between First Premier and the Tucker Lenders.
   • Intercept’s contracts with both parties, and First Premier’s approval of “New Client Request Forms” (NCRFs) related to the Tucker Lenders, were the only links.
3. Applying the “meeting-of-the-minds” test (Cain):
   • Because First Premier personnel admitted no knowledge of tribal-immunity deceit, the NCRF approvals indicated routine processing, not agreement.
   • Absent direct or circumstantial evidence that First Premier intended to further illicit objectives, no jury could infer agreement solely from ACH processing.
4. Rejecting plaintiff’s conduit theory:
   • The plaintiff labeled Intercept as a “conduit,” not a co-conspirator, but wanted the Court to infer that messages and funds passing through Intercept supplied tacit coordination.
   • The Court declined, stressing that passive utilization of a mutual service provider is not a conspiracy unless there is proof that the parties purposely used the intermediary to facilitate illegal ends.
5. Concluding: Lack of any evidence—direct, circumstantial, or inferential—of a “meeting of the minds” meant summary judgment was proper; discussion of knowledge was unnecessary.

3.3 Impact of the Judgment

Although issued as a “Summary Order” (non-precedential under 2d Cir. R. 32.1.1), the decision carries persuasive weight, especially because:

• RICO plaintiffs against financial intermediaries will confront heightened scrutiny when linking banks to underlying fraudulent schemes that use payment networks.
• ACH processing relationships alone will rarely—if ever—satisfy the agreement prong of §1962(d) without evidence of intentional adoption of illegal objectives.
• Payday-lending and tribal-immunity litigation is likely to pivot toward substantive state-law or consumer-protection claims rather than federal RICO conspiracy when banks are mere ODFIs.
• Risk-allocation among banks, processors, and lenders will be clarified: banks may rely on KYC/AML protocols and contractual buffers; plaintiffs must unearth emails, instructions, or other indicia of shared illicit purpose.

Future courts inside and outside the Second Circuit may cite Moss v. First Premier Bank as persuasive authority for the proposition that routine banking or payment-processing services, absent specific evidence of intent, do not amount to a RICO agreement—even where services facilitate illegal conduct by another actor.

4. Complex Concepts Simplified

RICO §1962(d) Conspiracy

A civil or criminal claim alleging that the defendant agreed to facilitate a pattern of racketeering activity. Two elements: (1) knowledge of the enterprise’s overall objectives, and (2) intentional agreement to further those objectives.

Meeting of the Minds

The conspirators must share a common purpose. Mere parallel conduct or mutual business dealings are insufficient.

ODFI (Originating Depository Financial Institution)

Bank that initiates ACH transactions on behalf of an originator (here, Intercept).

ACH Network

Nationwide electronic system used to transfer funds between banks in batch form. Think of it as the “electronic mail” of money.

Third-Party Sender (TPS)

A service provider (Intercept) that submits ACH entries on behalf of multiple clients (Tucker Lenders) through its ODFI.

NCRF (New Client Request Form)

Internal due-diligence paperwork banks use before allowing a TPS to process transactions for a new merchant.

Summary Order

A non-precedential disposition by the Second Circuit. It can be cited under Fed. R. App. P. 32.1 but does not bind future panels.

5. Conclusion

Moss v. First Premier Bank re-emphasises an important but sometimes overlooked principle: a RICO conspiracy requires proof of intentional, knowing agreement—passive commercial proximity is not enough. The Court’s refusal to treat a routine ACH relationship, mediated by an “innocent intermediary,” as evidence of agreement strengthens the evidentiary threshold for plaintiffs targeting banks in sweeping RICO actions. While labelled “non-precedential,” the opinion nonetheless offers a clear, concise roadmap for future litigants and judges confronting similar claims:

• Obtain concrete evidence of shared illicit objectives;
• Do not rely solely on the existence of business contracts or payment flows; and
• Recognise that, at summary judgment, courts will isolate the “agreement” element and dismiss where it is unsubstantiated.

In the broader legal landscape, Moss underscores a judicial caution against diluting RICO’s conspiracy clause and serves as a reminder that liability cannot be predicated on mere facilitation, particularly within complex, multi-actor financial networks.