Id. at 291. ... Ironically, too, the District Court's decision gives RICO a scope more narrow than - Finally, the few RICO cases that have discussed the primary jurisdiction doctrine 548-49 (E.D.N.Y. 1987), the District Court held that the doctrine of primary jurisdiction was inapplicable, since the issue of the reasonableness of a rule was not in question. In Meritech Int'l Co. v. Minigrip, Inc., 648 F. Supp. 1488 (N.D. Ill. 1986), the District Court did not dismiss, but stayed the action pending determination of certain issues by the International Trade Commission, and did so at the pleading stage, not after a full trial. Here, the PSC members and chairpersons, who made the relevant decisions, testified before the jury and explained why they made those decisions, how the decisions might have been affected by different circumstances, and what the effect of different decisions might have been.21/ (Amended Mem., p. 26.) These factual questions -- if and how the PSC decisions were affected by LILCO's alleged RICO fraud - were what the jury had to decide, not whether utility rates were "just and reasonable." Such questions did not and do not require the "special expertise" of the PSC.22/ - - Indeed, the only real difference between the jury verdict and a hypothetical decision by the PSC is that under RICO's civil enforcement provisions, damages are trebled and attorneys' fees can be awarded. The District Court said in its charge to the jury that "[t]o say that a fraud was successfully committed against the PSC resulting in damages is, for practical purposes, to retroactively reduce electric rates." In fact, to say that the PSC should decide the question of RICO fraud is, for practical purposes, to eliminate damages as a remedy, trebled or otherwise, and attorneys' fees, and squarely to 21/ The "hindsight" aspect of this testimony, which the District Court found so objectionable, would clearly be just as prevalent were the PSC alone to consider the case, as did the jury, several years after the fact. 22/ This conclusion is not affected by the fact that the measure of damages claimed by Suffolk County was the amount of the special rate increases secured during the relevant period. The amount was fixed and readily calculated without resort to rate-making expertise. frustrate the remedial treble damage and attorneys' fees provision expressly made available by Congress to facilitate RICO's purposes, the deterrence of specific fraudulent conduct, ample compensation for victims, and a stimulation to private enforcement efforts. 3. Abstention: Inapplicable Factor for Narrow Construction of RICO. All that has been said with respect to primary jurisdiction applies with equal, if not stronger, force to the District Court's reliance on the doctrine of abstention. Abstention, too, more than primary jurisdiction, is applicable before proceedings have begun, not after proceedings have terminated. Moreover, the District Court's use of the doctrine of abstention as a factor to construe RICO narrowly cannot survive New Orleans Public Service, Inc. v. New Orleans City Council, 57 U.S.L.W. 4755, 4758 (June 20, 1989) ("federal courts lack the authority to abstain from the exercise of jurisdiction that has been conferred [, as] Congress, and not the judiciary, defines the scope of federal jurisdiction") (Burford doctrine inapplicable unless in federal equity (1) federal suit presents difficult question of state law, and (2) federal review disruptive of state efforts). Here, the claim for relief seeks damages not an injunction. ... Nevertheless, citing Burford v. Sun Oil Co., 319 U.S. 315 (1943), the Court discussed its concerns of a purported federal conflict with state policy and noted (Amended Mem., p. 30): "The Burford doctrine embodies these concerns by enabling a federal court to 'abstain from interfering with ongoing state regulatory schemes.'" [Citation omitted.] The validity of this general statement is again sharply undercut by the Court's faulty premise that rate making, rather than fraud, was the subject of the lawsuit. Clearly, fraud is not part of the State of New York's ongoing regulatory scheme. Moreover, the views of the State were available to the Court, and hardly reflected a resentment of federal interference with its regulatory policies. In an amicus letter to the court dated February 1, 1988, the State of New York declared: [I]f defendants are proved to have misled the Public Service Commission, an award of damages would enhance, rather than conflict with, New York's regulatory scheme. The two RICO cases relied upon by the District Court are also plainly distinguishable. In DuBroff v. DuBroff, 833 F.2d 557 (5th Cir. 1987), the Court of Appeals found abstention proper in a domestic dispute based on its belief that all of the plaintiff's claims could be brought in state court, according to lower federal court precedent that RICO jurisdiction is concurrent. Id. at 562. The PSC plainly has no RICO jurisdiction. (Amended Mem., pp. 16-17.) In Brandenburg v. First Maryland Savings and Loan, 660 F. Supp. 717 (D. Md. 1987), aff'd, 858 F.2d 1179 (4th Cir. 1988), abstention was similarly upheld, where the state legislature had met in two special sessions and passed legislation dealing with the State's savings and loan crisis, including provision for the appointment of a state judge to adjudicate all disputes arising from the First Maryland receivership proceedings. 660 F. Supp. at 722. Moreover, a similar suit had already been filed in state court, over which the appointed judge had assumed jurisdiction. Id. at 735. Here, the District Court's real concern is, perhaps, evidenced in the second paragraph of the order appealed from (Amended Mem., p. 5); The welfare of Long Island residents is threatened by doubts about LILCO's continued capacity to supply necessary electric power at affordable rates. 23/ Suffolk County v. Long Island Lighting Co., 685 F. Supp. 38, 39 (E.D.N.Y. 1988). The consequences for the wrongdoer of RICO's treble damages remedy involve enforcement policy decisions already spoken to by Congress. See Section A(2), supra. The practical effect of the District Court's decision is to immunize LILCO from suit because of the court's own perception of the State's interest in keeping the utility from going bankrupt. It amounts to a holding that if you steal millions, but not thousands, you are above the law. As such, bank robbers, but not utilities, would be subject to RICO. That is not the message Congress sent in promulgating Civil RICO and its enforcement mechanisms. See Ralston v. Capper, 569 F. Supp. 1575, 1580 (E.D. Mich. 1983); Basic Concepts at 1042. Federalism and the Doctrine of Clear Statement: Inapplicable Factors for The final factor which the District Court used in justifying its implied exception is a misapplication of legitimate concerns about federalism and the notion — contrary to clear expressions in the statute and legislative history - that Congress did not intend or consider RICO to implicate existing state law. The District Court began by noting that "federal courts have become increasingly reluctant to interfere with state enforcement of state laws in state courts and administrative bodies." (Amended Mem., p. 35, emphasis added.) To fit this case within that truism, the Court ignored the plain thrust of plaintiff's allegations and declared (Amended Mem., p. 36): In the instant case, it is apparent that while LILCO is 24/ Earlier, however, the court had opined that the PSC was "the instrumentality through which defendants are said to have perpetrated their fraud on its alleged real victims, the ratepayers." Suffolk County, 685 F. Supp. at 39. |