Some years ago I brought a “civil” RICO lawsuit. RICO is a federal law, an acronym for “Racketeering, Influenced and Corrupt Organizations” Act, dating from about 1970 and designed to bring organized crime – basically mafia like entities – under federal jurisdiction.
My case was dismissed at the pleading stage. There was no good reason for that, but let’s not dwell on all that right now.
What was very interesting to me about RICO is that in addition to being a federal statute authorizing private enforcement by individuals, it was also a federal criminal statute authorizing prosecution by the US government.
The USG doesn’t use RICO that much, having as they do many options for prosecuting people. But when they do the result is the usual: they win convictions. By contrast, almost all civil RICO claims brought by lesser entities such as individuals are dismissed at the pleading stage, unless they’re just piggy-backing on a criminal case that has already been brought by the USG.
Yet, the elements of the civil and criminal claims, the substance of them, are exactly the same.
RICO then becomes a tidy illustration of the disparity of treatment in the courts between the government-as-litigant and the individual-as-litigant. Almost any litigating lawyer can do at least as good a job, and probably a much better job, outlining the facts of a RICO claim in a written complaint than the government can do by presenting evidence to a Grand Jury. But judges are eager to get rid of civil RICO complaints whereas they never apply similar scrutiny to the criminal RICO cases, even though in essence they are exactly the same thing.
A lawyer in Louisiana named Ted Lyon has come to grips with the reality of this in the context of the foreclosure crisis by bringing a RICO lawsuit against MERS and its too big to fail bank sponsors. But his clients are not the poor sap homeowners who may have suffered damage as a result of the MERS debacle, but rather county and parish governments that are claiming a scheme to deprive them of recording fees:
So you’re filing on behalf of county – I would assume mostly county governments. Are there no individual homeowners that are involved in this?
TED LYON: No. Our case is we’re representing the counties or the parishes. We’re not representing any individual homeowners, even though they have been damaged also. That’s not our lawsuit. Our lawsuit we think is on firmer footing, and what makes this different than most other lawsuits – there have been a number of lawsuits filed against MERS across the country, but they’re basically all, almost all of them have been brought as a result of the individual homeowner. We’re not going to go that route because that’s just too time-consuming and also many of those cases have been lost.
It’s not the lawyer’s fault, of course, but he’s basically admitting that the difference between winning and losing in court is determined, at least in this instance, not by the law or the evidence but by who the parties to the lawsuit are.
Which is, you know, unfortunate, since the Rule of Law would dictate the opposite. You can therefore conclude from this that we really don’t have the rule of law in the US. And that might be a little more than unfortunate.