Beck v. Prupis Page 16

Beck v. Prupis general information

Media for Beck v. Prupis

Audio Transcription for Oral Argument - November 03, 1999 in Beck v. Prupis

Michael M. Rosenbaum:

I think, as the Court indicated in Holmes, it used a proximate cause analysis to determine whether someone remotely down the linear chain in effect had standing to seek relief under RICO, so I think the two go together.

It's a question of nomenclature.

I don't think the answer to the question is essential to the outcome.

Sandra Day O'Connor:

Mr. Rosenbaum, section 1962(d) I gather has been held to give rise to criminal liability as well as a civil cause of action.

Michael M. Rosenbaum:

Absolutely, Justice O'Connor.

Absolutely.

Sandra Day O'Connor:

And could there be a criminal prosecution brought here without proof of any predicate act?

Michael M. Rosenbaum:

Absolutely.

Under the criminal concepts of conspiracy, or...

Sandra Day O'Connor:

Or overt act...

Michael M. Rosenbaum:

Yes.

Sandra Day O'Connor:

Or an act... proof of an overt act would not be required if it were a criminal prosecution.

Michael M. Rosenbaum:

That's correct.

All that's necessary for a criminal prosecution is proof of the unlawful agreement.

However, in the criminal context, which distinguishes section (d), the interpretation of section (d) from the similar... a similar interpretation in the civil context, the... if there is an overt act, it may be a completely innocent overt act, but it's demonstrated to the court to show that the conspiracy is at work, so that in a criminal context, a completely innocent overt act... if it's a mail fraud conspiracy I go out and buy stationery to facilitate the mail fraud.

William H. Rehnquist:

But is an overt act required for liability in a criminal conspiracy?

Michael M. Rosenbaum:

No.

William H. Rehnquist:

An attempt, yes, but not a criminal conspiracy.

Michael M. Rosenbaum:

It's not necessary to show, but it's certainly helpful in demonstrating that there is a conspiracy.

Sandra Day O'Connor:

But the effect of this is that we have very different rules applicable in the civil action context...

Michael M. Rosenbaum:

That's correct...

Sandra Day O'Connor:

under the very same statute.

Michael M. Rosenbaum:

That's correct, Justice O'Connor, for a very good reason.

This is both a criminal and a civil statute.

In order to have criminal liability, as I said before, all that's necessary is to show from a criminal standpoint the existence of the conspiracy, but that doesn't provide a civil cause of action, because the mere existence of a conspiracy absent some injury, some tortious conduct directed at someone as a result of the conspiracy doesn't create civil liability because, as this Court has said, as have other, lower courts have said, a conspiracy absent an injury does not provide a civil cause of action.

John Paul Stevens:

May I ask one question at this point.

You've explained... say you've convinced me that this doesn't apply to whistleblowers.

That's only half of the question presented by the cert petition, which is, he was terminated for both blowing the whistle and refusing to participate in the pattern of activity.

And what if one could show that in order to close the factory, which is the object of the objective, you had to fire executive A, who would otherwise have had sufficient strength to prevent the closing of the factory.

Why isn't that covered?