James Odom v. Microsoft Corporation, a Washington Corporation Best Buy Co., Inc., a Minnesota Corporation

Opinion by Judge WILLIAM A. FLETCHER; Concurrence by Judge SILVERMAN; Concurrence by Judge BYBEE.

Putative class action plaintiffs appeal from the dismissal of their suit under Federal Rule of Civil Procedure 12(b)(6) for failure to allege an “associated in fact” “enterprise” under RICO and, in the alternative, under Federal Rule of Civil Procedure 9(b) for failure to plead wire fraud with particularity. The district court dismissed with prejudice and without leave to amend.

We reverse and remand.

I. Background

Named plaintiff James Odom — then the only plaintiff — filed the first complaint in this action in the Northern District of California, alleging that defendants Microsoft and Best Buy had violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1962 (c) and (d). Odom alleged that in April 2000 defendants entered into an agreement under which “Microsoft invested $200 million in Best Buy and agreed to promote Best Buy’s online store through its MSN service.” MSN is a division of Microsoft offering Internet access services. In return, “Best Buy agreed to promote MSN service and other Microsoft products in its stores and advertising.” Odom…