Civil RICO Act Plaintiffs are "Private Attorneys General!"

I’m spillin’ the beans here!!
Excerpt from my Civil RICO Act Complaint without the footnotes:
“The Substantial Benefit Doctrine”
A.K.A. “The Private Attorney General Doctrine” & the RICO Act

To improve my education on the RICO Act as an unrepresented civil plaintiff, this past week I purchased by mail order directly from Thomson/West, the Annotated Manual for Complex Litigation, 4th Edition (2006) by David F. Herr. Citing Chapter 35, Civil RICO, p. 792-793. From that book:

Congress enacted the 1920 Racketeer (Influence and Corrupt Organizations Act (RICO) to respond to the “infiltration of organized crime and racketeering into legitimate organizations operating in interstate commerce.” Congress targeted organized crime through a broad statutory scheme that included severe criminal penalties, fines, imprisonment, asset forfeiture, and civil remedies in an effort to undermine the economic power of racketeering organizations. The statute further enabled private litigants to act, in effect, as private attorneys general to sue for injury to their businesses or property caused by a RICO violation.

Civil RICO claims have alleged wrongs actionable under state and common law, as well as other federal statutes. Although the statute was targeted at organized crime, courts have broadly construed RICO’s provisions, and its scope has extended well beyond its original aim. Early efforts by lower courts restrict claims that appeared to exceed RICO’s original goals were overruled by Supreme Court decisions that broadened the statute’s reach. RICO claims can now be found in a variety of contexts, including insurance and business disputes, anti[-]abortion and other protests consumer financial services litigation, family law, and whistle-blower actions. Although the nontraditional uses of RICO have continued to expand despite significant criticism by commentators and the courts, Congress has shown little inclination to narrow the state’s focus or reach.

“Private attorney general? What the hell is that?!” (I wondered). A quick search on the Internet and I found one case law from the Supreme Court of Indiana giving a brief overview on the Private Attorney General Doctrine. Bolding, underlined text, and the indexing dots are my emphasis as directly applying to my case:

I. The Private Attorney General Doctrine: An Overview

As a prelude to analyzing Indiana law, we note that there are two basic attorney fee schemes: the English rule (“loser pays”) and the American rule (“every man for himself”). W. Kent Davis, The International View of Attorney Fees in Civil Suits: Why Is the United States the “Odd Man Out” in How It Pays Its Lawyers?, 16 Ariz. J. Int’l & Comp. L. 361, 399, 403 (1999). Both schemes are grounded in statute. Id. at 400, 404.

Some view the English rule as more fair, arguing that a legal victory is not complete if one is out of pocket for attorney fees. Id. at 405. Proponents of the American rule respond:

[S]ince litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit, and [] the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents’ counsel. Also, the time, expense, and difficulties of proof inherent in litigating the question of what constitutes reasonable attorney’s fees would pose substantial burdens for judicial administration.

Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967) (citations omitted).

Courts in various American jurisdictions have sought a middle ground by using their inherent equitable powers to carve out exceptions to the American rule. See Saint Joseph’s Coll. v. Morrison, Inc., 158 Ind. App. 272, 279, 302 N.E.2d 865, 870 (1973). The most common exceptions are:

● The “obdurate behavior” exception, in which courts impose costs upon defendants as a punishment for bringing frivolous actions or otherwise acting in bad faith. Andrew W. Hull, Attorney’s Fees for Frivolous, Unreasonable or Groundless Litigation, 20 Ind. L. Rev. 151, 152-53 (1987).

● The “common fund” exception, in which an award benefits members of an ascertainable class, and the court reimburses the prevailing litigant’s attorney fees out of that pool of money to prevent the unjust enrichment of free riders. Id. at n.11.

● The “private attorney general” exception, where courts award fees to litigants who bring actions to protect important social policies or rights. Id.

Judge Jerome Frank coined the phrase “private attorney general” in 1943, to describe a private person acting to “vindicate the public interest.” Associated Indus. v. Ickes, 134 F.2d 694, 704 (2d Cir. 1943). In 1975, the U.S. Supreme Court resolved a federal circuit split by declining to reallocate by judicial decree the burdens of federal litigation under the private attorney general doctrine. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247, 270 n.46 (1975). The Court expressed concern that without statutory authorization, authority to make fee awards would leave courts free to “pick and choose among plaintiffs and the statutes under which they sue and to award fees in some cases but not in others, depending upon the courts’ assessment of the importance of the public policies involved in particular cases.” Id. at 269. The Court recently reaffirmed its commitment to the American rule, citing Alyeska, in Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 121 S.Ct. 1835, 1839 (Rehnquist, C.J., for majority), 1856 (Ginsburg, J., dissenting) (2001).

. . .

III. Other Jurisdictions Have Mixed Views

States Adopting the Exception.

A number of state high courts have adopted the private attorney general exception. One widely-cited case is Serrano v. Priest, 569 P.2d 1303 (Cal. 1977), in which the California Supreme Court recognized the exception because:

In the complex society in which we live it frequently occurs that citizens in great numbers and across a broad spectrum have interests in common. These, while of enormous significance to the society as a whole, do not involve the fortunes of a single individual to the extent necessary to encourage their private vindication in the courts. Although there are within the executive branch of the government offices and institutions (exemplified by the Attorney General) whose function it is to represent the general public in such matters and to ensure proper enforcement, for various reasons the burden of enforcement is not always adequately carried by those offices and institutions, rendering some sort of private action imperative. Because the issues involved in such litigation are often extremely complex and their presentation time-consuming and costly, the availability of representation of such public interests by private attorneys acting pro bono publico is limited.

Id. at 1313.

New Hampshire was among the most recent to adopt the private attorney general doctrine, in Claremont School District v. Governor, 761 A.2d 389 (N.H. 1999)(fees sought following declaratory judgment that the state public education funding system was unconstitutional). The New Hampshire Supreme Court observed that proportional and reasonable taxation is one of the core constitutional foundations of this State” and held that “[t]he public interest in preserving constitutional rights against governmental infringement is paramount. Only private citizens can be expected to ‘guard the guardians.’ Because the benefits of this litigation flow to all members of the public, the plaintiffs should not have to bear the entire cost of this litigation.” Id. at 393-94.

1 thought on “Civil RICO Act Plaintiffs are "Private Attorneys General!"

  1. vicfedorov

    1) Private attorney general status, of a sort that allowed state resource to be contracted as possible, existed in pre public attorney general america through states, and in britain in the 1600’s and 1700’s. The sovereign, looking out for conspiracy herself, encouraged and granted private efforts to look into criminal matters, the state lacked information or disposition to deal with. So this article like so much, ignores history; isolated america, america without grounding in historical tradition, as older western areas.


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