Brown v. Cassens Transport Co.

HAROLD A. ACKERMAN, Senior District Judge,

concurring.

I substantially agree with Judge Moore’s conclusion in her separate opinion that RICO, properly construed, does not require that a plaintiff plead or demonstrate reliance in a civil RICO case based upon the predicate acts of mail or wire fraud. Were I considering this issue as a matter of first impression in the Sixth Circuit, I would join Judge Moore in so holding in this case. However, we do not face a blank slate on this issue in this Circuit. As the majority opinion demonstrates, this Court has consistently held that reliance is required in civil RICO fraud claims such as the claims presented here. We cannot overrule these many pri- or decisions absent en banc review, and no decision of the Supreme Court of the United States compels reversal by this panel. Therefore, while I concur with the majority opinion by Judge Gibbons, I agree with Judge Moore’s exhortation that this issue should be reviewed en banc. .

Reliance is not a required element under the federal mail and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343. Furthermore, although RICO requires that a claimant be injured “by reason of a violation,” 18 U.S.C. § 1964 (c), this causation provision does not necessitate, or even suggest, incorporation of a reliance element. The “by reason of’ requirement of § 1964(c) “entails an inquiry into whether a defendant’s action can be said to have proximately caused the plaintiffs injuries.” Prudential Ins. Co. of Am. v. U.S. Gypsum Co., 828 F.Supp. 287, 296 (D.N.J.1993) *652 (Ackerman, J.) “Specific detrimental reliance is a sufficient but not necessary element of a RICO cause of action.” Id. Imputation of a reliance element into RICO, where neither the statute nor the predicate statutory crime requires it, runs afoul of the broad purposes of RICO. The Supreme Court, in reviewing “Congress’ self-consciously expansive language and overall approach,” has instructed that RICO should be “liberally construed to effectuate its remedial purposes.” Sedima, S.P.R.L. v. Imrex, Co., 473 U.S. 479, 498 , 105 S.Ct. 3275 , 87 L.Ed.2d 346 (1985) (citations omitted). If not bound by precedent, I would join Judge Moore in rejecting a reliance requirement.

However, as the majority opinion discusses, the Sixth Circuit has expressly and repeatedly held that a plaintiff must show reliance to maintain a civil RICO claim based on mail or wire fraud. See, e.g., Cent. Distribs. of Beer, Inc. v. Conn, 5 F.3d 181 , 184 (6th Cir.1993) (collecting cases). Most respectfully, Judge Moore’s attempts to distinguish these prior cases are unavailing. While I am convinced that these eases misinterpreted RICO, this panel lacks the authority to reverse those decisions unless mandated by a subsequent, contrary decision by the Supreme Court or by en banc review by the entire Sixth Circuit. The Supreme Court, in Neder v. United States, 527 U.S. 1, 24-25 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999), restated the longstanding principle that the federal criminal fraud statutes do not require that the Government prove reliance, but Neder did not work a change in the law. Long before Neder , the federal fraud statutes did not require reliance, and the Sixth Circuit has so recognized. See, e.g., United States v. Merklinger, 16 F.3d 670, 678 (6th Cir.1994) (collecting cases). In both published and unpublished opinions issued since Neder , this Court has reiterated the reliance requirement. Yax v. UPS, 196 Fed.Appx. 379, 381-82 (6th Cir.2006) (unpublished opinion); Chaz Constr., LLC v.Codell, 137 Fed.Appx. 735, 738-39 (6th Cir.2005) (unpublished opinion); VanDenBroeck v. CommonPoint Mortgage Co., 210 F.3d 696, 701 (6th Cir.2000). In Yax and Chaz Construction, different panels of this Court explicitly rejected the argument that Neder somehow compels reversal of panel precedent and rejection of the reliance requirement.

As a “visiting fireman” sitting by designation on this Court, I take seriously my responsibility to apply the law of this Circuit, even if I would read the law differently. I hope that the Sixth Circuit elects, at some point in the future, to consider this issue en banc and reaches what I suggest is the proper conclusion that reliance need not be shown in a civil RICO case based on mail or wire fraud. But this panel alone cannot make such a ruling, and must instead follow established precedent in this Circuit. Because Plaintiffs here failed to plead reliance, and because I concur with the majority opinion’s conclusion that dismissal of Plaintiffs’ state-law claims was appropriate, I join Judge Gibbons in affirming the district court’s judgment in its entirety.