Forging a New Use for Civil RICO
A Chicago attorney's suits on behalf of valid workers could pay off
Gary Young
The National Law Journal
07-09-2004
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Despite a string of defeats before federal trial judges, Howard W. Foster has doggedly pressed on with a type of litigation he pioneered: using RICO to target companies that allegedly hire undocumented workers for the purpose of driving down wages.
His persistence appears to be paying off. Foster, a shareholder at Chicago's Johnson & Bell, has brought five Racketeer Influenced and Corrupt Organizations Act suits since 1999, usually on behalf of employees with valid work authorization. Four were dismissed at an early stage by trial judges. But in three of those cases, Foster has persuaded federal appellate courts to reinstate his suits.
Last month, for instance, the 6th U.S. Circuit Court of Appeals gave the green light to Foster's lawsuit against poultry giant Tyson Foods Inc. of Springdale, Ark. Trollinger v. Tyson Foods Inc., No. 02-6020.
In April, Foster won his first victory in a district court. Judge Harold Murphy of the Northern District of Georgia denied a motion to dismiss brought by Mohawk Industries Inc., a Calhoun, Ga., maker of rugs and carpets. Williams v. Mohawk Industries Inc., No. 04-CV-0003.
THE 'GO-TO' FIRM
If Foster is the go-to guy for plaintiffs, then Sidley Austin Brown & Wood seems to have become the go-to firm for companies sued by Foster.
The firm represents Mohawk, Tyson and, in a third case, IBP Inc., a meat-processing company bought by Tyson in 2001. Frank R. Volpe, a partner in Sidley Austin's Washington office who represents Tyson in Trollinger, said he is disappointed in the 6th Circuit decision, but predicts that as the evidence unfolds Foster will be denied class certification and will lose on summary judgment.
Tyson had hoped the 6th Circuit would rule that Foster's claims were pre-empted by the National Labor Relations Act, and that the proper party to bring such a suit was the employees' union, not the employees themselves.
In February, the 7th Circuit had tossed out the IBP suit because the employees' union was a necessary party. Baker v. IBP Inc., 357 F.3d 685.
But the 6th Circuit demurred, pointing to the "critical fact that Tyson directly employed and directly paid plaintiffs."
The union -- the Retail, Wholesale and Department Store Union -- is still likely to play a role in the litigation, but as a witness. The 6th Circuit warned that it will be difficult to prove that Tyson dictated wage rates, given the union's role in negotiations.
As Volpe put it, "We believe that the union negotiated these contracts in good faith and at arm's length. We believe the union will ultimately support the company." The union did not return messages seeking comment.
Volpe asserted that Foster's suit would falter on the same lack of evidence that did in the federal government's criminal prosecution of Tyson and three of its managers on immigration-related charges in March 2003.
A Chattanooga, Tenn., jury -- presided over by U.S. District Judge R. Allan Edgar, who also has Trollinger on his docket -- exonerated the defendants. Tyson showed that a few supervisors were to blame for violations, and that the company fully cooperated with the authorities when it learned of the wrongdoing, Volpe said.
Foster said that the issues and thus the evidence are not the same under RICO, and that, in any event, his civil suit is not burdened with the requirement of proof beyond a reasonable doubt.
He said he will not ask the United Food and Commercial Workers (which represents IBP employees) to join in his suit. The UFCW did not return messages asking for comment.
Foster scored two other circuit court victories before Trollinger.
In Commercial Cleaning Services LLC v. Colin Service Systems Inc., 271 F.3d 374, Foster represented Commercial Cleaning Services, which alleged that its competitor, Colin Services Systems, was able to undercut its bids by hiring illegal immigrants. In Mendoza v. Zirkle Fruit Co., 301 F.3d 1163, Foster represents documented agricultural workers against a group of Washington state fruit growers and packers.
The 2nd and 9th circuits both reversed district court rulings that the alleged connections between the defendants' hiring practices and the plaintiffs' injuries were too speculative to support a lawsuit. Commercial discontinued its suit after its 2nd Circuit victory.
I would like to take the opportunity to criticize Sidley Austin Brown & Wood. Alas, I cannot. I have been sued by them and they have an injunction placed on me that prevents me from discussing them.