Albert Malvino v. Paul Delluniversita, 840 F.3d 223

Bonnie Pereida purchased 135 rare coins from PCA Collectibles for $727,569 in early 2011; each coin carried a grade from PCI Coin Grading that appeared on PCA invoices.
Anthony Delluniversita owned PCA and secretly owned and operated PCI, personally grading coins despite lack of formal training; many coins were later found overgraded, damaged, or counterfeit.
Pereida died in October 2011; her estate (executor Albert Malvino) obtained appraisals showing the collection's fair market value (~$151k–$191k), far below purchase price.
Malvino sued PCA, PCI, Anthony, and Paul for civil RICO (mail/wire fraud predicates), RICO conspiracy, state common-law fraud, negligent misrepresentation, civil conspiracy, and DTPA violations; the district court entered judgment for Malvino and awarded treble RICO damages ($1,610,802) plus attorneys’ fees, but dismissed DTPA claims as not surviving.
Defendants appealed, arguing (inter alia) that RICO claims do not survive Pereida’s death and that Malvino failed to prove the RICO “pattern” (continuity) element; the Fifth Circuit addressed survivability and sufficiency of evidence for continuity.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does a civil RICO claim survive the victim’s death?	RICO is remedial; Pereida’s estate may pursue the claim.	RICO is punitive (treble damages) and thus penal, so it should not survive.	RICO is primarily remedial per Supreme Court precedent; RICO claims survive and estate may pursue them.
Did Malvino prove a RICO pattern (continuity) based on Pereida’s purchases?	The 31 sales (Jan–May 2011) show repeated predicate acts and broader company-wide scheme.	The acts were confined to a five-month period and to Pereida; insufficient closed- or open-ended continuity.	Evidence insufficient: five-month, single-victim scheme fails closed-ended continuity and no proof of open-ended threat; RICO judgment vacated.
Were Defendants’ late challenges to pattern waived by not moving earlier?	N/A (plaintiff argued defendants should have raised earlier).	Defendants raised pattern post-trial via new-trial motion.	No waiver; sufficiency of trial evidence may be challenged on appeal after bench trial.
What follows given RICO vacatur as to remedies/election of remedies?	Malvino reserved right to re-elect remedies if RICO award reversed.	Defendants urged a take-nothing judgment based on plaintiff’s prior election.	Vacatur of RICO damages removes double-recovery risk; case remanded so district court may consider entering judgment on the state-law claims.

Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (recognizing Article III standing requirement of concrete injury)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing: injury-in-fact requirement)
Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (statutory standing/legislative scope of causes of action)
PacifiCare Health Sys., Inc. v. Book, 538 U.S. 401 (RICO’s treble-damages provision is remedial)
Shearson/American Express Inc. v. McMahon, 482 U.S. 220 (RICO legislative history and remedial emphasis)
Agency Holding Corp. v. Malley–Duff & Associates, Inc., 483 U.S. 143 (treble damages and remedial purpose)
H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (pattern/continuity requirement for RICO)
Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (RICO’s focus on long-term criminal conduct)
Faircloth v. Finesod, 938 F.2d 513 (holding civil RICO survives death)
Abraham v. Singh, 480 F.3d 351 (example of pleadings supporting open-ended continuity)
Tel-phonic Servs., Inc. v. TBS Int’l, Inc., 975 F.2d 1134 (short multi-month predicate act spans insufficient for closed-ended continuity)