Appeals court: Civil RICO claims not preempted

Jennifer Nelson
January 1, 2008
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The Indiana Uniform Trade Secrets Act does not preempt a civil Racketeer Influenced and Corrupt Organizations claim, the Indiana Court of Appeals ruled today.

In an issue of first impression, the court was asked to decide in AGS Capital Corp., Inc., et al. v. Product Action International, LLC, No. 49A02-0702-CV-176, whether civil provisions for treble damages based on certain criminal acts are covered by the Indiana Uniform Trade Secrets Act (IUTSA).

AGS Capital Corp., which owned Fast Tek Group and Superior Metal Technologies, was a direct competitor with Product Action International, which is in the business of quality control and most of whose customers are automotive industry manufacturers and suppliers. In order to gain an economic edge over Product Action, AGS owners Alan Symons and Scott Weaver decided to hire for Fast Tek employees of Product Action in order to gain access to confidential information in how Product Action operated. The company hired Anthony Roark and Chan Chanthaphone away from Product Action, and the two brought along confidential information regarding Product Action's systems, methods, and customer information. The company also had the secretary of Superior Metal contact Product Action to get a price quote sent to the company; Fast Tek used that information to set its prices.

Fast Tek copied the Product Action documents and replaced Product Action's name with their own.

Product Action filed a verified complaint for preliminary injunction, permanent injunction, and damages against AGS, Fast Tek, Superior Metal, Symons, Weaver, Roark, and Chanthaphone in May 2006. Product Action hired a consultant in computer forensics to perform discovery on Fast Tek's computers. The discovery returned numerous documents showing Fast Tek converted Product Action's documents to say "Fast Tek."

The trial court ruled Fast Tek and AGS are alter egos, making AGS liable for Fast Tek's actions; the defendants violated the IUTSA, which entitled Product Action to injunctive relief; and Product Action proved the defendants violated Indiana's civil RICO statute. The preliminary injunction ordered AGS, Symons, Weaver, Fast Tek, Roark, Chanthaphone, and all the company's agents and employees from contacting or soliciting new business from certain entities for two years, and they are all enjoined from participating in the business of Fast Tek in any form for a year. The injunction also ordered the computer consultant to expunge any information from the computers that was taken from Product Action. Product Action was required to post a $2,000 bond.

AGS appealed, arguing several issues, including the IUTSA preempts Product Action's claims under the state's RICO statute, the preliminary injunction was overbroad, and the bond posted by Product Action was unreasonably low.

The Indiana Court of Appeals ruled civil RICO actions are not preempted under the IUTSA. Indiana's RICO statute allows for a civil remedy for criminal activity. The IUTSA preemption provision refers to areas of law as a whole as opposed to the national Uniform Trade Secrets Act, which deals in terms of remedies provided. Because of this, the IUTSA preemption provision exempts criminal law and its concomitant criminal remedies, Judge L. Mark Bailey wrote. The court believes permitting a RICO claim along with an IUTSA claim provides for greater protection for the integrity of Indiana businesses.

"Because the RICO statute was designed to address the more sinister forms of corruption and criminal activity, the preemption provision of IUTSA should not prohibit RICO from fulfilling its purpose where the form of corruption involves the systematic acquisition of economically valuable information through the artifice of competitors' employees in order to gain an unlawful economic advantage in the marketplace," Judge Bailey wrote.

The appellate court also affirmed most of the trial court's earlier ruling, including the preliminary injunction and amount of bond posted, except for the barring of participation of AGS and its employees in the business of Fast Tek for one year and the length of time AGS may not solicit customers or business from entities listed in Product Action's Exhibit A in the preliminary injunction hearing. The provision goes far beyond what is reasonably necessary to protect Product Action's interests, he wrote. The court concluded prohibiting the participation of AGS, Symons, and Weaver in the operation of Fast Tek for a year is overbroad.

The court also remanded the trial court to revise its two-year ban on contacting customers to be effective until there is a final adjudication on the merits.

The Court of Appeals also overturned the grant of attorney's fees to Product Action because there is no judgment or settlement by the parties yet and the prevailing party is yet to be determined.

In a separate opinion, Judge Nancy Vaidik concurred in part and dissented in part regarding the majority's conclusions regarding the duration of the preliminary injunction and whether the bond is unreasonably low.

Judge Vaidik wrote no one argued that the injunction should be made longer regarding how long AGS can't contact certain companies, so she believes the two years imposed by the trial court isn't unreasonable.

Also, she wrote the $2,000 bond is unreasonably low and was an abuse of discretion by the trial court. She would remand for a new determination of an appropriate preliminary injunction bond.

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  1. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.