Friday, April 15, 2005

Round Three for Scheidler v. NOW

The long-running RICO lawsuit between NOW and anti-abortion activists has made it to the Supreme Court twice, with decisions in NOW v. Scheidler, 510 U.S. 249 (1994) (RICO does not require proof of an economic motive) and Scheidler v. NOW, 537 U.S. 393 (2003) (the Hobbs Act [as a RICO predicate racketeering activity] requires that the defendants gain property through extortion).  After a remand to the Seventh Circuit and another decision, a petition for cert. has been filed (available here) by the defendants below (Scheidler) for review on three issues:

1. Whether the Seventh Circuit, on remand, disregarded this Court’s mandate by holding that "all" of the predicate acts supporting the jury’s finding of a RICO violation were not reversed, that the "judgment that petitioners violated RICO" was not necessarily reversed, and that the "injunction" issued by the District Court not need to be vacated.

2. Whether the Seventh Circuit correctly held, in conflict with decisions of the Sixth and Ninth Circuits, that the Hobbs Act, 18 U.S.C. § 1951(a), can be read to punish acts or threats of physical violence against "any person or property" in a manner that "in any way or degree * * * affects commerce," even if such acts or threats of violence are wholly unconnected to either extortion or robbery.

3. Whether this Court should again grant certiorari to resolve the deep and important intercircuit conflict over whether injunctive relief is available in a private civil action for treble damages brought under RICO, 18 U.S.C. § 1964(c).

The third question was before the Court in Scheidler v. NOW but not reached, and would allow consideration of whether the maxim that equity should not enjoin a criminal act applies to RICO--imagine the fun the court will have with that one.  A third trip would also give the Court an opportunity to resolve a circuit split on the Hobbs Act issues, which have proven difficult for the lower courts because of the rather vague wording used by the Court in Scheidler v. NOW for the definition of extortion. Thanks to Alan Untereiner of Robbins, Russell, Englert, Orseck & Untereiner LLP for the cert. petition. (ph)

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