# Amicus Curiae Brief — Beck v. Prupis

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0268%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 494

## Text

No. 98-1480

IN THE
Supreme Court of the United States

ROBERT A. BECK, II,
Petitioner,
Vv.

RONALD M. PRUPIS, ET AL.
Respondents.

On Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit

BRIEF OF THE AMERICAN TORT REFORM
ASSOCIATION AND HEALTH INSURANCE
ASSOCIATION OF AMERICA AS AMICI CURIAE IN
SUPPORT OF RESPONDENTS LEONARD
BELLEZA, ERNEST J. SABATO, WILLIAM
PAULUS, JR., AND HARRY OLSTEIN

Of Counsel Victor E. Schwartz*

Sherman Joyce Mark A. Behrens

AMERICAN TORT Christopher J. McGuire
REFORM ASSOCIATION CROWELL & MORING LLP

1850 M Street, N.W., 1001 Pennsylvania Ave.,N.W.
Suite 1095 Washington, D.C. 20004

Washington, D.C. 20036 (202) 624-2500
(202) 682-1163

Jeffrey L. Gabardi Attorneys For Amici Curiae
HEALTH INSURANCE

ASSOCIATION OF AMERICA
555 Thirteenth Street, N.W. * Counsel of Record

Washington, D.C. 20004
(202) 824-1600

BEST AVAILABLE

QUESTION PRESENTED

Whether Congress intended to federalize
traditional state law breach of contract and wrongful
termination claims by allowing a plaintiff to
maintain a civil Racketeer Influenced and Corrupt
Organizations Act (RICO) conspiracy claim for treble
damages despite the lack of any evidence that
plaintiffs alleged harm was proximately caused by a
pattern of racketeering.

(i)

TABLE OF CONTENTS

TABLE OF AUTHORITIES .............--ccccssseeceeseeeeee
INTEREST OF AMICI CURIAE............0c00c00cces0e00e
STATEMENT OF THE CASE..............c-ccscseseeseeees

I. BOTH THE INTENT AND PLAIN
MEANING OF RICO ARE BEST
SERVED BY AFFIRMING THE
COURT OF APPEALS’ DECISION
THAT PETITIONER FAILED TO
ESTABLISH A CIVIL RICO
CONSPIRACY CLAIM .........cccccceceeeeeeeeees

Be Inconsistent With The

B. Requiring Injury Proximately

C. Petitioner Failed To Prove Injury
Proximately Resulting From A
Pattern Of Racketeering ......................

(iii)

Il. FINDING THAT RICO COVERS
PETITIONER’S CLAIM WOULD
CREATE A NEW FEDERAL TORT
FOR EMPLOYMENT-BASED
DISPUTES THAT ARE GOVERNED
BY STATE LAW AS WELL AS
INTRODUCE A MAJOR NEW
FACTOR INTO EMPLOYMENT
AND LABOR RELATIONS ................-...++ 9

A. Congress Did Not Intend To

C. An Expansive Reading of RICO

Il. THE COURT SHOULD DEFER TO
CONGRESS AS THE APPROPRIATE

BRANCH TO CONSIDER ANY
EXPANSION OF RICO'S REACH............. 14
COB ICI ABO nccccccseccccesccsccecscescossscnsovccssnsnvsssorases 15

(iv)

TABLE OF AUTHORITIES
CASES Page

Associated Contractors of California
v. California State Council of
Carpenters, 459 U.S. 519 (1983) ...........000000.... 7,9

Beck v. Prupis,
162 F.3d 1090 (11th Cir. 1998),
cert. granted, 119 S. Ct. 2046 (1999) ............... passim

Bowman v. Western Auto Supply Co.,
985 F.2d 383 (8th Cir.),
cert. denied, 508 U.S. 957 (1993) ..................... 5

Coats v. Penrod Drilling Corp..,
61 F.3d 1113 (Sth Cir. 1995)........................00+. 14

Department of Revenue of Oregon
v. ACF Industries, Inc.,
RLS ane ore ae 10

Halcyon Lines v. Haenn Ship Ceiling
& Refitting Corp., 342 U.S. 282 (1951)............ 14

Hecht v. Commerce Clearing House, Inc.,
897 F.2d 21 (2d Cir. 1990) ...................cccccceeeees 5, 8

Holmes v. Securities Investor Protection
Corp., 503 U.S. 258 (1992) ................ccceeeeeeeeeeee passim

Miranda v. Ponce Federal Bank,
948 F.2d 41 (1st Cir. 1991) ................ccceceeceeeeee 5

ve vii

Morast v. Lance, Raymond P. Green, The Application

807 F.2d 926 (11th Cir. 1987) ..........ssse-ssesseee0es 5 of RICO to Labor-Management and
: Employment Disputes,

Ones See 7 St. Thom. L. Rev. 309 (1995) .....-ccccsv
ee ne es ND A are rat rs ope =
cert. denied, 496 U.S. 926 (1990) ................0000 5 Thomas F. Harrison,

Look Who's Using RICO,

Reddy v. Litton Industries, Inc., 75 A.B.A. J. 56 (Feb. 1989) ..........eeccccceoe
enn One eee we A ern ce ae yee ee
cert. denied, 502 U.S. 921 (1991) ..............00000 5 W. Page Keeton ¢t ai.,

| Prosser and Keeton on the Law Of Torts

Salinas v. United States, | GeO Te cccrerteeresectesinatinsinsnitineienctnnianininies

UE, Be CI ccsececrncticcncensewsateetereininnininns eee oS) SR eee aa on ae ey
Wayne R. LaFave &
Austin W. Scott, Jr.,
Criminal Law (2d ed. 1986)...........ccccccc0000------....

STATUTORY MATERIALS ’

| Restatement (Second) of Torts § 491...

ST.) 6 |

18 U.S.C. § 1962(a)-(d)..........cccccccerrereeeeeresenneennennnes passim |

18 UBA.C. $ 19B41C).......ccecceececcrecccceccossoseggeorosrssssseces passim

Ue Fo, 13

PUBLICATIONS

Roger S. Fine, A Personal Perspective

from the “Manufacturer,” |

55 Brook. L. Rev. 899 (1989) ..............seeceseeeeeeeenees 14 |

Laura Ginger, Employers’ RICO

Liability for the Wrongful Discharge

of Their Employees,

68 Neb. L. Rev. 673 (1989) ..........cccc-eesereeeeeereeenneees 12

—

No. 98-1480

IN THE
Supreme Court of the United States

ROBERT A. BECK, I,
Petitioner,

Vv.

RONALD M. PRUPIS, ET AL.

Respondents.

On Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit

INTEREST OF AMICI CURIAE*

The American Tort Reform Association (““ATRA”),
founded in 1986 and based in Washington, D.C., is a
broad-based coalition of more than 300 businesses,
corporations, municipalities, associations, and
professional firms who have pooled their resources to
promote reform of the civil justice system with the
goal of er suring fairness, balance, and predictability

* Pursuant to Rule 37, letters of consent from the parties
have been filed with the Clerk of the Court. In accordance
with Rule 37.6, amici state that no counsel for either party
has authored this brief in whole or in part, and no persons
or entities, other than the amici, have made a monetary
contribution to preparation or submission of this brief.

2

in civil litigation. For over a decade, ATRA has filed
principal amicus curiae briefs in cases before this
Court that have addressed important liability issues,
including the Court’s recent “expert opinion”
decisions in A umho Tire Co. v. Carmichael, 119 S.
Ct. 1167 (1999), and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), the
Court’s rejection of medical monitoring claims in
Metro-North Commuter R.R. Co. v. Buckley, 521 U.S.
424 (1997), the landmark punitive damages decision
in BMW of North America, Inc. v. Gore, 517 U.S. 559
(1996), and the Court’s decision in Medtronic, Inc. v.
Lohr, 518 U.S. 470 (1996), regarding federal
preemption of state tort law.

The Health Insurance Association of America
(“HIAA”), based in Washington, D.C., is one of the
largest associations of health insurance companies in
the world. HIAA is a leading advocate for the
private, market-based health insurance system. Its
more than 260 members provide medical expense
and supplemental insurance, as well as long-term
care insurance and disability income protection to
more than 123 million people — one out of two non-
elderly Americans. HIAA develops and advocates
federal and state policies which build upon our
health care system’s quality, affordability,
accessibility, and responsiveness.

ee

3

Amici submit this brief to indicate their strong
support for the holdings of the majority of the federal
courts of appeals, including the Eleventh Circuit
Court of Appeals in the instant case, which have
wisely held that a plaintiff alleging a civil Racketeer
Influenced and Corrupt Organizations Act (RICO)
conspiracy claim under must show that his or her
injury proximately resulted from a pattern of
racketeering. Amici are concerned that the minority
position, which Petitioner asks this Court to adopt,
would create a new and unfair “federal tort” with
potential treble damages liability for garden-variety
breach of contract and wrongful termination claims
that should be a matter of state law and have been
since the time of the Founding Fathers. Finally, as a
matter of public policy, this approach flies in the face
of —- of federalism and respect for States’
rights.

Petitioner’s construction goes far beyond what
Congress has authorized under RICO and is
inconsistent with the Court’s prior rulings. This
Court does not need to adopt Petitioner’s
construction of RICO either to deter racketeering
activity or to compensate persons for harms
allegedly incurred as a result. See Holmes v.
a Investor Protection Corp., 503 U.S. 258
1992).

For these reasons, amici urge this Court to affirm
the decision of the Eleventh Circuit Court of

Appeals.

4
STATEMENT OF THE CASE

Amici adopt Respondents’ summary of the
dispute in question.

INTRODUCTION AND
SUMMARY OF THE ARGUMENT

itting civil RICO conspiracy claims despite
ss aan aie a plaintiff has been harmed as the
proximate result of a pattern of racketeering would
create a new federal cause of action: (1) inconsistent
with Congressional intent; (2) inconsistent with vo
Court’s prior rulings; (3) that violates principles o
federalism and States’ rights; and (4) that would be
both unsound and unnecessary. This Court should
not rewrite the RICO statute to provide remedies
that are not grounded in the statute itself; it should”
be left to Congress, if it desires to do so, to change

the law.
ARGUMENT

I. BOTH THE INTENT AND PLAIN MEANING
OF RICO ARE BEST SERVED BY
AFFIRMING THE COURT OF APPEALS
DECISION THAT PETITIONER FAILED TO
ESTABLISH A CIVIL RICO CONSPIRACY

CLAIM.

Congress intended for plaintiffs alleging civil
Racketeer Influenced and Corrupt Organizations Act
(RICO) conspiracy claims to prove that their vs
were proximately caused by a pattern 0
racketeering. See 18 U.S.C. 1964(c) (permitting
recovery for injury “by reason of a violation of section

5

1962”). This conclusion is supported by a majority of
the federal courts of appeal that have ruled on the
issue. See Bowman v. Western Auto Supply Co., 985
F.2d 383, 388 (8th Cir.), cert. denied, 508 U.S. 957
(1993); Miranda v. Ponce Federal Bank, 948 F.2d 41,
48 (1st Cir. 1991); Reddy v. Litton Industries, Inc.,
912 F.2d 291, 294-95 (9th Cir. 1990), cert. denied,
502 U.S. 921 (1991); Hecht v. Commerce Clearing
House, Inc., 897 F.2d 21, 25 (2d Cir. 1990); Morast v.
Lance, 807 F.2d 926, 933 (11th Cir. 1987); O'Malley
v. O’Neill, 887 F.2d 1557, 1561-62 (11th Cir. 1989),
cert. denied, 496 U.S. 926 (1990). As set out below,
there is sound support for this conclusion.

A.A Contrary Reading Would’ Be
Inconsistent With The Court’s Prior
Rulings.

Section 1964(c) of RICO creates a federal private
right of action and the potential recovery of treble
damages for anyone injured “by reason of a violation

-of section 1962.” Section 1962 consists of three

substantive subsections, 18 U.S.C. § 1962(a)-(c),! and
a subsection concern:ng conspiracy to violate any of

the three substantive provisions, 18 U.S.C.
§ 1962(d).

1

Section 1962(a) prohibits the investment of proceeds
derived from a pattern of racketeering activity in any
enterprise involving interstate commerce. Section 1962(b)
prohibits acquisition through a pattern of racketeering
activity of any interest in an enterprise involving interstate
commerce. Section 1962(c) prohibits participation in the
conduct of an enterprise involving interstate commerce
through a pattern of racketeering activity.

6

To prove a RICO violation under any of the three
substantive provisions, a plaintiff must show that he
or she suffered injury as a result of a “pattern of
racketeering activity.” 18 U.S.C. § 1961(5) (defining
“pattern” as at least two acts of racketeering activity
within ten years of one another). To prove a
violation of the conspiracy provision requires only
proof of an agreement to violate a substantive
section of 1962; there is no separate overt act
requirement. See Salinas v. United States, 522 US.
52 (1997).

In Holmes v. Securities Investor Protection Corp.,
503 U.S. 258 (1992), the Court established a
limitation upon civil RICO recoveries under 18
U.S.C. § 1964(c). The case concerned the claim of a
federally created corporation, the Secu: ities Investor
Protection Corp. (“SIPC”), which was acting to
protect the rights of customers of a brokerage firm
who suffered indirect harm as a result of a stock-
manipulation scheme directed against the firm.

The Court in Holmes said that, while a literal
reading of the statute would permit a recovery based
on mere “but for” factual causation, that construction
was “hardly compelled.” Jd. at 266. The Court found
that it was very unlikely that this was the result
intended by Congress. Jd. Consequently, the Court
held that the phrase “by reason of” in Section 1964(c)
of RICO meant not merely factual causation, but
also imposed the additional requirement of
proximate cause stemming from a violation of

7

section 1962. Jd. at 268.2 The Court then ruled that
the losses for which the SIPC sought recovery were
too remote. See id. at 270. The proximate cause
requirement is a significant barrier that prevents a
deluge of claims by parties potentially indirectly
injured in a wide variety of circumstances (e.g.,
stockholders, policyholders, union members,
customers, and employees).

B. Requiring Injury Proximately Resulting
From A “Pattern of Racketeering” Is
Proper In Civil RICO Cases.

The effect of the Salinas decision on cases such as
Petitioner's case is that a mere agreement to
conspire to violate one of the substantive provisions
of 18 U.S.C. § 1962 constituves « RICO violation. A
different agreement, such as an agreement to
discharge an employee, is not in itself a conspiracy to
violate one of the three substantive provisions and,
therefore, is not a RICO violation.

The Court’s holding in Salinas impacts criminal
and civil cases differently. In criminal law cases,
where the purpose of the conspiracy charge is to
punish the act of agreement itself, the prosecutor
does not need to prove that the agreement to engage
in criminal activity resulted in an injury-causing

2 The Court was guided by the fact that the federal antitrust
statutes which served as a model for RICO had been read
to incorporate common law principles of causation. See
Associated Contractors of Calif. v. California State Council
of Carpenters, 459 U.S. 519 (1983).

8

event. See Wayne R. LaFave & Austin W. Scott, Jr.,
Criminal Law § 6.4(d) (2d ed. 1986).

For example, if a group of individuals takes steps
to commit a bank robbery that is foiled by police
before the robbery is committed, the would-be bank
robbers are subject to prosecution for conspiracy to
commit bank robbery. The agreement is punishable
as a crime by itself, because of “the special danger [to
society] incident to group activity.” Id. at § 6.4(c).

In a civil context, however, as Holmes makes
clear, a mere agreement “in the air” to conspire does
not proximately cause any direct injury. Thus, in
the example, while the would-be bank robbers could
be subject to criminal prosecution for conspiring to
rob the bank, they could not be subject to a civil
conspiracy claim by the bank, because it never
suffered a direct harm. See Hecht v. Commerce
Clearing House, Inc., 897 F.2d 21, 25 (2d Cir. 1990)
(recognizing the break in the chain of causation
flowing from a mere agreement in the context of
RICO).

This distinction reflects a fundamental difference
between traditional tort law and criminal law. Tort
law requires that the plaintiff suffered a harm
proximately caused by a defendant’s conduct;
criminal law requires a wrongful act that has been
deemed by a legislature to be against public policy.
See generally W. Page Keeton et al., Prosser and
Keeton on the Law Of Torts § 46 (5th ed. 1984);
Restatement (Second) of Torts § 491.

mg 3 a ‘
Consequently, plaintiffs such as Petitioner canno
establish proximate cause as required by Holmes,

9

because their injuries are too remote. The civil
RICO conspiracy claim still serves a purpose,
however, because claimants that can prove direct
injury through one of RICO’s substantive provisions

may hold any one of the alleged conspirators jointly
liable for the entire harm.

C. Petitioner Failed To Prove Injury

Proximately Resulting From A Pattern
Of Racketeering.

Petitioner has resorted to trying to prove a
violation of RICO’s conspiracy provision because he
has failed in his effort to prove a violation of one of
RICO’s three substantive provisions. See Beck v.
Prupis, 162 F.3d 1090 (11th Cir. 1998), cert. granted,
119 S. Ci. 2046 (1999). He is left arguing conspiracy
“in the a.” His claim should be barred based on
remoteness. See Holmes v. Securities Investor
Protection Corp., 503 U.S. 258 (1992). Cf. Associated
Contractors of Calif. v. California State Council of
Carpenters, 459 U.S. 519 (1983).

Il. FINDING THAT RICO COVERS
PETITIONER’S CLAIM WOULD CREATE A
NEW FEDERAL TORT FOR EMPLOYMENT-
BASED DISPUTES THAT ARE GOVERNED
BY STATE LAW AS WELL AS INTRODUCE
A MAJOR NEW _ FACTOR INTO
EMPLOYMENT AND LABOR RELATIONS.

A. Congress Did Not Intend To Federalize
Well-Established State Law Remedies.

Petitioner's construction of the civil RICO
conspiracy provision would create a new federal tort

10

with potential treble damages liability for many
ordinary state breach of contract, wrongful
termination, and fraud claims.

It also would allow plaintiffs to circumvent the
requirements of the three substantive subsections of
RICO, see 18 U.S.C. § 1962(a)-(c), simply by alleging
a conspiracy. Congress could not have intended to
create such a gaping loophole. While Congress may
have wanted the RICO statute to be liberally
construed to effectuate its remedial purposes — i.e.,
to address the influences of organized crime and acts
of racketeering — this Court itself has recognized the
key practical difference between liberally construing
the RICO statute and giving it a content that was
never intended by Congress. See Holmes v.
Securities Inv. Protection Corp., 503 U.S. 258 (1992).

If Congress had intended to enact a statutory
scheme that would, in effect, largely displace an area
of law that has been left to the States, one would
find evidence of that intent. Cf. Department of
Revenue of Oregon v. ACF Industries, Inc., 510 U.S.
332, 333 (1994) (“Principles of federalism compel this
view, for a statute is interpreted to pre-empt
traditional state powers only if that result is the
clear and manifest purpose of Congress.”). There is
no such meaningful evidence in the statute or
RICO’s legislative history.

This is not surprising. As a general matter, it
has been ATRA’s experience, for more than two
decades of direct work on federal liability reform
initiatives that Congress is very hesitant to
“federalize” state tort law unless there is a

11

compelling justification to do so. That justificati
does not exist in the present case. . ge

B. Petitioner’s Construction Is Unnecessary.

Permitting recovery through the civil RICO
conspiracy provision for claims such as Petitioner’s is
unnecessary. As the Supreme Court noted in
Holmes, recoveries by directly injured plaintiffs
provide adequate deterrence against harmful
conduct. See Holmes, 503 U.S. at 269-70. There is
also the possibility of criminal liability, if the
requisite elements are met.

The circuit courts have been a good laboratory i
. . . . ry n
this regard. Racketeering activity has not notably
increased in the circuits that are in accord with the
Eleventh Circuit’s decision below.

Furthermore, with respect to persons such as
Petitioner, who allege indirect harm as a result of a

conspiracy resulting in direct harm to others, a

federal cause of action is not needed. State statutory
and common law tort and other claims are generally
available to such plaintiffs and have been used both
prior to and after RICO’s enactment.

12

C. An Expansive Reading of RICO Will Only
Aggravate RICO’s Deleterious Impact On
The Legislatively-Established Balance
Governing Labor And Employment Issues.

With its expansive growth and encroachment
upon traditional areas of labor and employment
relations, the developing RICO jurisprudence poses a
distinct threat to the delicate balance of factors that
state legislatures and Congress have established.
Commentators have noted that as a consequence of
broader-than-broad interpretations by the courts,
“RICO is upsetting the rules of the game in the areas
of labor and employment law.” Thomas F. Harrison,
Look Who’s Using RICO, 75 A.B.A. J. 56, 56 (Feb.
1989).

Petitioner's claims are representative of a
particular class of these cases. Indeed, the area of
employee discharges has been identified as the one
most affected by the trend of RICO jurisprudence.
See Laura Ginger, Employers’ RICO Liability for the
Wrongful Discharge of Their Employees, 68 Neb. L.
Rev. 673, 673 (1989). The possibility of treble
damages provides a strong incentive for discharged
employees to convert simple employment disputes
into allegations that aggressive business practices
constitute racketeering activity for RICO purposes,
significantly raising the nuisance value of such suits.
The terminated worker’s employer is then faced with
the decision to defend a much more expensive suit
with the potentially significant reputation-damaging
publicity that accompanies racketeering accusations,
or to accede to an aggrieved former employee's
demand for settlement.

13

As time has passed, sweeping interpretations of
RICO have even become an unwelcome factor in the
more structured area of labor-management relations.
See Raymond P. Green, The Application of RICO to
Labor-Management and Employment Disputes, 7 St.
Thom. L. Rev. 309, 309 (1995) (noting that RICO
“has disrupted the labor-management relationship”
and can now be used “to upset the tenuous balance of
power that is the hallmark of labor-management
relations”).

For example, in the area of labor-management
relations, Congress has already specifically designed
a framework to address such issues in the National
Labor Relations Act, 29 U.S.C. §§ 141 et seg., and
related statutes. Through the expansive growth of
RICO, plaintiffs from both sides of the labor-
management equation are now attempting to bring
issues related to striking and picketing or plant
closures and corporate reorganizations under RICO’s
hammer as opposed to resorting to the statutory
devices already in place to address these matters.

Novel or strained interpretations of RICO thus
promote the abuse of RICO as a bargaining tool and
pose the risk of causing significant and
unpredictable shifts in the carefully established
balance of labor and employment interests under
existing legislative schemes. The presence of these
additional consequences flowing from an expansive
reading of RICO in the context of this case counsels
against resorting to such a reading unnecessarily.

14

Il THE COURT SHOULD DEFER TO
CONGRESS AS THE APPROPRIATE
BRANCH TO CONSIDER ANY
EXPANSION OF RICO'S REACH.

Petitioner's desire to obtain a new federal tort
remedy that is not grounded in the RICO statute
should be addressed by Congress, not judicially
created by courts. This is particularly the case
where, as here, the cause of action is not a
development of the common law but is statutorily-
based. See generally Roger S. Fine, A Personal
Perspective from the “Manufacturer,” 55 Brook. L.
Rev. 899, 903 (1989) (“[L]et us go back to the days
when there was a real difference between the
yzdicial and legislative branches. When a court is
faced with a problem that is a social one rather than
a legal one, we defer to the legislature, which has far
more flexibility and power to mold solutions that
match our problems”).

As this Court has stated, when “[mJany groups of
persons with varying interests are vitally concerned .
We think that legislative consideration and
action can best bring about a fair accommodation of
the diverse but related interests of these groups.”
Halcyon Lines v. Haenn Ship Ceiling & Refitting
Corp., 342 U.S. 282, 286 (1951). See also Coats v.
Penrod Drilling Corp., 61 F.3d 1113, 1138 (5th Cir.
1995) (“[T]he Congress is in a better position than a
court to evaluate various policy objectives. We are
persuaded that deferring to congressional action
here is the wiser course.”).

15
CONCLUSION

For these reasons, the decision of the Eleventh
Circuit Court of Appeals should be affirmed.

Respectfully submitted,

Victor E. Schwartz*

Mark A. Behrens

Christopher J. McGuire
CROWELL & MORING LLP

1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004

(202) 624-2500

Attorneys for Amici Curiae
* Counsel of Record

Dated: September 17, 1999 ’

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0268%3A13. Public record. Not legal advice.