The opinion of the court was delivered by: Norgle, District Judge.
After a jury trial in 1981, Joan Lynch ("LYNCH") was convicted
in a conspiracy to obtain fraudulent real estate tax assessment
reductions in violation of the Racketeer Influence and Corrupt
Organizations Act ("RICO"), 18 U.S.C. § 1962(d). The "pattern of
racketeering activity" with which Lynch was charged consisted of
"multiple acts of bribery and mail fraud, involving payments of
money to Jimmie Smith, James Woodlock and other officials at the
Board of [Tax] Appeals." Indictment, U.S. v. Lynch, # 84 CR 97,
at Count 14, ¶ 6. Her conviction was affirmed by the Seventh
Circuit Court of Appeals in September of 1982, United States v.
Lynch, 699 F.2d 839 (C.A.7 1982). While Lynch's appeal was
pending, the County of Cook ("COUNTY") filed this suit to recover
treble damages under § 1964(c) of RICO (Count I) and an equitable
accounting by Lynch (Count II). Judge Decker granted the County's
motion for partial summary judgment on Count I and summary
judgment on Count II. County of Cook v. Lynch, 560 F. Supp. 136,
140-41 (N.D.Ill. 1982).
In granting the County's motion for partial summary judgment on
Count I, Judge Decker held that Lynch's prior conviction under §
1962(d) estopped her from denying liability in the County's civil
suit. 560 F. Supp. at 140. At the same time, however, Judge Decker
noted the burden of establishing the "remaining elements of
liability under 18 U.S.C. § 1964(c), i.e., that (1) the Plaintiff
was injured in its business or property (2) by reason of the
Defendant's violation of Section 1962" remained with the County.
Id. The County now uses Lynch's conviction under § 1962(d) and
Judge Decker's grant of partial summary judgment as the basis for
its present motion for summary judgment on the remainder of Count
I — the § 1964(c) claim for treble damages.
The County maintains it was injured in its business or property
by reason of Lynch's violation of RICO because it was forced to
pay for the services of two corrupt officials (Woodlock and
Smith) which were never performed. Lynch does not deny that such
an injury is cognizable under § 1964(c). E.g., Hellenic Lines
Ltd. v. O'Hearn, 523 F. Supp. 244, 248 (S.D.N.Y. 1981). Nor does
Lynch disagree that the County's injury resulted from a violation
The County suggests the proper measure of damages in this case
is the entire salaries of the two corrupt officials during the
period of the bribery scheme. This measure of damages is drawn
from the common law remedy provided by Illinois courts for a
tortious interference with an employment contract. E.g., ABC
Trans National Transport v. Aeronautics Forwarders,
413 N.E.2d 1299 (1st Dist 1980); Vendo Co. v. Stoner, 58 Ill.2d 289,
321 N.E.2d 1 (1974). See also NSC International Corp. v. Ryan,
531 F. Supp. 362, 363 (N.D.Ill. 1981) (on issue of availability of
jury trial in civil RICO action; court found civil RICO "most
closely resembles an action for tortious interference with
economic relations"). Strictly speaking, Lynch does not object to
the County's position that its damages under RICO should be
measured with reference to the common law remedy for a tortious
interference with contract. See Deft's Memo at 9. See generally
Sutherland Statutory Construction § 50.01 et seq. (4th ed. 1984).
She does argue, however, that the County has failed to meet its
burden under Fed.R.Civ.P. 56 and that she cannot be held liable
for damages caused by other independent conspirators. The former
argument raises issues involving the County's use of collateral
estoppel in this action; the latter argument raises the issue of
whether Lynch may be held liable for damages potentially
resulting from the acts of other independent conspirators. This
opinion first discusses the issues raised by the County's theory
of damages and then proceeds to determine the reach, if any, of
collateral estoppel in this lawsuit.
The County maintains the proper measure of damages in this case
is supplied by analogy to the remedy provided for the common law
tort of intentional interference with contract. The remedy
provided by Illinois courts for a tortious interference
with an employment contract is the entire amount of the disloyal
employee's salary during the period of disloyalty. See ABC,
supra, at 1315. The caselaw does not make an allowance in damages
for a disloyal employee's periodic loyalty. The entire salary is
forfeited under the rationale that the employer is paying for all
of the disloyal employee's performance and not just part of it.
ABC, id., at 1314, 1315. The same result could be reached on a
breach of fiduciary duty theory. See Monotronics Corp. v. Baylor,
107 Ill.App.3d 14, 62 Ill. Dec. 760, 765, 436 N.E.2d 1062, 1067
(2d Dist. 1982). Thus, if several parties conspire to interfere
with an employer/employee contract, they will be jointly and
severally liable for the entire salary of the disloyal employee.
There can be no apportionment of damages among co-conspirators.
Lynch does not dispute this.
Lynch contends that she was not the only person paying bribes
to Woodlock and Smith. She names various persons ("on information
and belief") who were making payments to the two Board members
and insists that those independent payments were made without her
knowledge or participation. Deft's Memo at 7-8. From this Lynch
argues she may not be held jointly and severally liable for the
conduct of persons with whom she neither conspired nor acted in
concert. In essence, Lynch argues she is only liable for only a
portion of the County's damages because others were also paying
bribes to Woodlock and Smith. Such an argument suggests damages
in this case can and should be apportioned.
The County maintains that its damages are not susceptible to
apportionment among all potential defendants. Consequently,
because apportionment is not possible, Lynch may be held solely
liable for its entire damages notwithstanding the existence of
independent bribery schemes involving other potential defendants.
See generally Prosser and Keeton on Torts § 52 (1984) ("PROSSER &
Ordinarily a tort plaintiff bears the burden of proof of his
damages as to each defendant. However, where the independent,
successive acts of several tort-feasors result in an indivisible
injury to the plaintiff, then the burden of proof shifts and the
tort-feasors are required to bear the burden of proving any
reasonable apportionment of damages. To do otherwise would
penalize an innocent plaintiff merely because his injury was
caused by several tort-feasors. Thus, if the County's damages are
indivisible, the burden of apportioning damages rests with Lynch.
Her inability to carry that burden will result in liability for
the entirety of the County's damages. This principle is applied
most frequently in personal injury cases (e.g., Phennah v.
Whalen, 28 Wn. App. 19, 621 P.2d 1304, 1309-10 (1980)), but it
also has been applied in other contexts as well (e.g., Ricky
Smith Pontiac v. Surbaru of New England, 14 Mass. App. 396,
440 N.E.2d 29 (1982) (unfair and deceptive trade practices in
violation of state statute)).
The issue, therefore, is whether the County's damages are
subject to any rational apportionment among the several
independent tort-feasors. Illinois caselaw (c.f. Monotronics
Corp. v. Baylor, 107 Ill.App.3d 14, 62 Ill.Dec. 760, 765,
436 N.E.2d 1062, 1067 (2d Dist. 1982)) and The Restatement (Second)
Torts ("RESTATEMENT") suggest the County's injury (deprivation of
the loyal services of its employees resulting from an intentional
interference with contractual relations) is not the kind of
injury which is capable of apportionment.
Section 433A of the Restatement states the rule for
apportionment of damages among two or more causes:
(1) Damages for harm are to be apportioned among two