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SLATTERY v. COSTELLO

July 28, 1983

James E. SLATTERY, et al., Plaintiffs,
v.
John COSTELLO, et al., Defendants



The opinion of the court was delivered by: SIRICA

 SIRICA, District Judge.

 This matter is before the Court on the defendants' motion to dismiss the complaint pursuant to "Rules 12(b)(6), 21 and 23 of the Federal Rules of [Civil] Procedure." According to the complaint, the plaintiffs are two former clients of an executive employment service who allegedly represent a class of over 2,000 similarly situated clients. The defendants are five individuals and two District of Columbia corporations involved in a furnishing executive placement services to the public. The gravamen of plaintiffs' complaint is that each member of the alleged class paid sums of money to the defendants in order to obtain executive placement services based on the defendants' allegedly fraudulent representations about the defendants' resources and capabilities. In short, the complaint alleges that the defendants induced the plaintiffs to pay for job search services which the defendants never actually had the intention or ability to perform. The plaintiffs have alleged four separate claims in their alleged class action: a claim for treble damages under the federal civil racketeering statute (18 U.S.C. § 1964(c) (1976)); a claim for treble damages under the District of Columbia's Consumer Protection Act (D.C.Code § 28-3904); and two claims for misrepresentation and fraud.

 Defendants' second ground for dismissing the complaint is a general argument about misjoinder (Rule 21 and whether this case is appropriately maintained as a class action (Rule 23). In response to defendants' arguments regarding dismissal for misjoinder the Court refers the defendants to the first sentence of Rule 21. Defendants' Rule 23 arguments are not yet ripe because the class certification issue is not presently before the Court.

 Defendants' third contention in support of dismissal relates only to the plaintiffs' civil racketeering allegations. Basically, the defendants present two separate reasons for dismissing the cause of action brought under 18 U.S.C. § 1964(c) (Civil RICO). Initially the defendants suggest that the federal civil racketeering statute can only be used against civil defendants with some demonstrated connection to "organized crime." Alternatively, the defendants argue that the civil RICO count should be dismissed because the plaintiffs lack standing to sue under the terms of 18 U.S.C. § 1964(c) (1976). Although the Court will address both of defendants' arguments, the Court would like to clarify its position on a preliminary matter raised by the defendants.

 In their latest pleading the defendants have attempted to distinguish the plaintiffs' citations by claiming that the case law generated through judicial construction of the criminal racketeering statutes (18 U.S.C. §§ 1962(a)-(d)) (RICO) is inapplicable to the civil racketeering provisions in 18 U.S.C. § 1964(c). This Court must disagree with the defendants' views on the applicability of criminal precedent to RICO's civil provisions. As one court recently stated:

 
Permission to bring a civil action for a RICO violation, 18 U.S.C. § 1964(c), extends to those injured by a violation of the criminal RICO prohibitions, 18 U.S.C. § 1962. Had the Congress not intended civil RICO plaintiffs to prove the same elements which the Government must prove in a criminal case, it undoubtedly would not have defined a civil violation with specific reference to a criminal one. Therefore, in deciding whether plaintiffs have properly alleged a civil RICO claim, we may properly draw upon those criminal RICO cases which have described the essential elements of such a claim.

 Eaby v. Richmond, 561 F. Supp. 131, 134 (E.D.Pa.1983). In any event, given the inapplicability of the rule of lenity, see Rewis v. U.S., 401 U.S. 808, 812, 91 S. Ct. 1056, 1059, 28 L. Ed. 2d 493 (1971), to civil proceedings and RICO's statutory mandate for a liberal construction, 18 U.S.C. § 1961, note, this Court would be hard pressed to justify a narrower construction of RICO's civil cause of action than that afforded RICO's criminal provisions.

 The defendants have asked the Court to follow a few-reported cases which have implied an "organized crime connection" before recognizing a valid complaint under civil RICO. See, e.g., Adair v. Hunt Int'l Resources Corp., 526 F. Supp. 736-48 (N.D.Ill.1981); Moss v. Morgan Stanley, Inc., 553 F. Supp. 1347, 1361 (S.D.N.Y. 1983). The clear and overwhelming majority of courts which have addressed this question, however, have rejected any attempt to add an "organized crime" requirement onto the statutory terms of 18 U.S.C. § 1964(c). Schact v. Brown, 711 F.2d 1343 (7th Cir.1983); Bennett v. Berg, 685 F.2d 1053, 1063 (8th Cir.1982), aff'd, en banc, 710 F.2d 1361 (8th Cir.1983); Hunt Int'l Resources Corp. v. Binstein, 559 F. Supp. 601 (N.D.Tex.1982); Crocker Nat'l Bank v. Rockwell Int'l Corp., 555 F. Supp. 47 (N.D.Calif.1982); Meineke Discount Muffler Shops, Inc. v. Noto, 548 F. Supp. 352 (S.D.N.Y.1982); Mauriber v. Shearson/Amer. Express, 546 F. Supp. 391 (S.D.N.Y.1982); cf. United States v. Cauble, 706 F.2d 1322, 1330 (5th Cir.1983) ("judicial consensus that [RICO] may be used even though no organized crime activity is charged"). Reference to the legislative history of RICO's provisions reveals that Congress drafted RICO in broad terms to avoid creating a criminal offense whose definition depended on a term as vague as "organized crime." See 116 Cong.Rec. 35, 204 (1970); 116 Cong.Rec. 35,343-46 (1970). In light of Congress's understandable reluctance to draft a criminal offense in terms of a relation to some ill-defined notion of organized crime this Court has no difficulty following the majority of courts by refusing to add such a requirement to RICO's civil provisions.

 The defendants' alternative argument for dismissal of the Civil RICO count focuses on the status of the plaintiffs rather than that of the defendants. Defendants argue that the plaintiffs lack standing to sue under Civil RICO. The plain terms of the statute confer standing to "any person injured in his business or property." 18 U.S.C. § 1964(c) (1976). The defendants, relying on a few reported district court opinions, ask this Court to look beyond the plain terms of the statute to determine whether the plaintiffs belong to that group of litigants for whom the statute was enacted. The defendants contend that plaintiffs lack standing because they have not alleged either "competitive injury" or what has been termed "racketeering enterprise injury." The Court will address these two standing arguments raised by the defendants as though they are distinct although the distinction between the two standing tests is less than clear.

 Briefly stated, the "competitive injury" standing requirement which the defendants ask this Court to place upon 18 U.S.C. § 1964(c) would require that the plaintiffs allege some type of commercial, business-related injury before they could invoke the statute. In other words, the defendants assert that the plaintiff must allege that they were placed at a competitive disadvantage due to the defendants' conduct. The few courts that have endorsed the "competitive injury" test have done so in the belief that because 18 U.S.C. § 1964(c) was modeled after traditional antitrust remedies the standing requirements of the antitrust field should be brought into play in actions under 18 U.S.C. § 1964(c). Upon analysis, however, there are few, if any, satisfactory grounds for requiring a showing of "competitive injury" from plaintiffs under civil RICO. To begin with, there is legislative history to suggest that Congress intended to thwart the imposition of restrictive antitrust standing tests by placing civil RICO within title 18. See 115 Cong.Rec. 9567 (1969) (remarks of Sen. McClellan). Even assuming that the antitrust laws are an appropriate guide to construing 18 U.S.C. § 1964(c), an assumption which ignores the markedly different purposes behind these two legislative schemes, judicial construction of the antitrust parallel to civil RICO, section four of the Clayton Act, argues against the imposition of a "competitive injury" requirement on civil RICO. See Reiter v. Sonotone Corp., 442 U.S. 330, 99 S. Ct. 2326, 60 L. Ed. 2d 931 (1979) (injury to "business or property" under Clayton Act includes non-competitive, "consumer" injury). Finally, it would take a very narrow view of civil RICO's legislative history to contend that Congress, in enacting 18 U.S.C. § 1964(c), was only concerned with the plight of those racketeering victims who were engaged in open business competition with racketeers. Accordingly, this Court joins an increasing number of other courts in holding that there is no "competitive" injury standing requirement applicable to 18 U.S.C. § 1964(c). Accord, Schact v. Brown, 711 F.2d 1343 (7th Cir.1983); Bennett v. Berg, 685 F.2d 1053, 1059 (8th Cir.1982), aff'd, en banc, 710 F.2d 1361 (8th Cir.1983); Crocker Nat'l Bank v. Rockwell Int'l Corp., 555 F. Supp. 47, 49 (N.D.Cal.1982).

 Those few courts which have used the term "racketeering enterprise injury" have reached the conclusion that 18 U.S.C. § 1964(c) requires an allegation of this type of injury for two primary reasons. First, some courts have based their conclusions on a general analogy to antitrust law and reason that the general purpose of RICO is served when standing is limited to those injured by conduct Congress intended to proscribe. See Landmark Savings & Loan v. Rhoades, 527 F. Supp. 206, 208 (E.D.Mich.1981). A second reason for imposing a "racketeering enterprise injury" standing requirement has been found in the "by reason of a violation of section 1962" language contained in 18 U.S.C. § 1964(c). See Harper v. New Japan Securities Int'l, 545 F. Supp. 1002 (C.D.Cal.1982). Despite these two different approaches to ...


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