Robert Vasquez, commissioner of Canyon County, Idaho, is at the forefront of the campaign to control illegal immigration. His unorthodox tactics and unbridled comments have some cheering him as a leader of immigration reform. However, others view him as an overzealous racist--and for good reason.
In April 2004, Vasquez sent a bill to the Mexican government requesting payment of $2 million, claiming that illegal immigrants were costing his county's taxpayers in the form of medical care, welfare and criminal justice services. He also has referred to the Mexican flag's depiction of an eagle gripping a snake in its talons as, "the Mexican chicken-and-worm."
But symbolic invoices and inflammatory speech aside, Vasquez and his fellow commissioners are pursuing another novel approach to recoup costs associated with illegal immigration. No longer are they taking jabs at Mexico. This time they are mounting a courtroom assault against companies in their own backyard.
Using the Racketeer Influenced and Corrupt Organizations Act (RICO) as the basis for the suit, the county filed a complaint on July 27 against four corporations--Syngenta Seeds, Sorrento Lactalis Inc., Swift Beef Co., and Harris Moran Seed Co.--accusing them of indirectly depleting the county's funds through hiring and harboring illegal immigrants. The county seeks reimbursement for the cost of illegal immigrants' use of health care and criminal justice services. Although no specific amount has been cited, plaintiff's counsel plans on employing experts to mull through county records to calculate an estimate.
Because cases similar to this one have already survived motions to dismiss and motions for summary judgment, experts believe RICO-based immigration suits could proliferate.
"In situations like this immigration case, this [use of RICO] isn't such a far stretch," says Jeff Grell, who runs RICOAct.com, a Web site that attempts to shed light on the history and intricacies of the complex law. "It's just looking at a provision of RICO that hasn't gotten much attention in the past."
At first glance, the Canyon County RICO claim seems to be standing on weak legs. The defendants and critics say the suit is a politically motivated publicity stunt. Swift Co.'s general counsel Don Wiseman believes the suit is another example of abuse of RICO. He cites the impossibility of establishing an accurate amount of damages as one reason the suit will likely fail.
"Civil RICO has been expanded way beyond the intentions that Congress had when it was first adopted," he says. "Political entities such as the county in this case are going to have a very hard time proving damages even if you had a violation."
Yet the Canyon County suit isn't the only RICO claim faulting companies for employing illegal immigrants. Although it is the only one with a governmental plaintiff, four other RICO claims are making headlines around the country. Chicago attorney Howard Foster, a partner at Johnson & Bell, is filing all of them.
In the four cases, Foster represents former and current employees who are using RICO to sue companies for allegedly depressing wages by hiring illegal workers. These cases, which include a claim against Tyson Foods Inc., have withstood summary judgment. In all four suits, the district courts dismissed the cases only to have appeals courts remand them for trial.
"Do I have a broader agenda in mind?" Foster says. "Through my lawsuits, do I want to change what is going on in immigration? I don't think I can do that. All I can do is bring one lawsuit at a time and see what happens."
Grell--a former lawyer at Jones, Day, Reavis & Pogue--believes Foster's moderate success may spur more plaintiffs to sue companies for hiring illegal immigrants using RICO, which was originally intended to allow the government to fight organized crime.
"Right now RICO is being used much less frequently than 10 or 15 years ago," he says. "Foster and some other plaintiff attorneys around the country noticed that you have this provision in there that this importing of illegal aliens into the country for purposes of doing work was an act of racketeering. And when you have NAFTA and the outcry from unions and everywhere else that there are all these illegal aliens flooding into the country and taking up U.S. jobs, people start looking around at how you can remedy that situation. RICO was one way in which people thought they could change that and make it stop happening."
Arsenal Of Defenses
Because RICO allows plaintiffs to collect treble damages, losing a RICO case can be a costly venture. That is why companies need to carefully manage their risk when defending a RICO claim.
"If you can settle the claim for an economically reasonable amount of money, than you do it because that's better than going to a jury and getting slammed with some figure that would put you out of business," Grell says.
Of course settling a claim is not cheap and, for many companies, is not the ideal defense. Luckily RICO itself has certain provisions that play in the defendant's favor. The Act's complexities mean that most complaints have deficiencies that are grounds for dismissal.
"[T]here are a lot of crappy RICO claims out there and a lot of lawyers who don't know how to use the statute," Grell says. "If you are dealing with plaintiff's counsel who have brought one or two RICO claims in their whole life, I guarantee there is something wrong with their complaint if you know what you are looking at."
Also working to defendants' advantage is the fact that many judges despise RICO claims because of the Act's overuse. Plaintiff lawyers' with an appetite whetted by hopes of treble damages used to file RICO claims for incidents that clearly did not fit the criteria of the legislation, especially in the Act's 1980s heyday. Because of this, many judges are skeptical of any RICO case.
"RICO gives judges a great deal of discretion, and a lot of judges don't like RICO," Grell says. "So if this claim gets before a judge that is not pro-RICO, he or she will be more than able to find a way to get rid of it."
Of course, the last and most effective method to defending a RICO claim is to not commit a predicate offense that would warrant a suit.
"You only have a RICO claim if you have some kind of a crime that is being committed," Grell says. "If you can prove a RICO violation, you have proven by its nature that it was intentional, malicious and that someone was engaged in a conspiracy or strategy."