Class action suit alleges RICO enterprise in Avery v. State Farm

Bethany Krajelis Sep. 26, 2012, 2:29pm




Three plaintiffs from Avery v. State Farm have filed a new class action lawsuit, claiming that the insurance company acted as the hub of an enterprise designed to defraud millions of policyholders out of a $1 billion judgment.

Mark Hale, Todd Shadle and Carly Vickers Morse, all of whom live out-of-state and were class members to the unsuccessful 1997 class action suit against State Farm, brought their complaint in May in the U.S. District Court for the Southern District of Illinois.

The trio's lawsuit, which remains pending, names State Farm; William Shepherd, an attorney at the insurance company; Ed Murnane, president of the Illinois Civil Justice League; and Justice Lloyd Karmeier's campaign committee, Citizens for Karmeier, as defendants.

On Wednesday, Chief Judge David Herndon dismissed Citizens for Karmeier as a defendant.

The plaintiffs filed notice to voluntarily dismiss the committee, acknowledging in the footnote of a motion filed last week that Citizens for Karmeier should be dismissed because it dissolved as a political association several years ago.

In their class action suit that seeks damages, the plaintiffs claim that State Farm and the other defendants violated the Racketeer Influenced and Corrupt Organizations Act (RICO).

From 2003 to the present, they claim that the defendants created a RICO enterprise "to enable State Farm to evade payment of a $1.05 billion judgment affirmed in favor of approximately 4.7 million State Farm policyholders by the Illinois Appellate Court."

The defendants' scheme, the lawsuit asserts, was implemented in two phases, the first of which involved recruiting, financing and electing a candidate to the Supreme Court who would vote to overturn the billion dollar judgment once elected.

They achieved their first goal, the complaint states, when Karmeier beat out Gordon Maag in the 2004 race for the Supreme Court and nine months later, voted in favor of overturning the judgment against State Farm.

According to the lawsuit, the defendants then turned to the second phase of their scheme.

This, the suit states, occurred in 2005 and 2011, when State Farm used the U.S. mail to file misrepresentations to the Supreme Court.

In 2005, the plaintiffs asked the justices to vacate their decision overturning the billion dollar judgment, claiming that Karmeier should have recused himself from the case based on $350,000 in campaign donations he received from State Farm employees.

The court refused and last year, a group of attorneys petitioned the justices to vacate their decision because State Farm "deliberately lied and misled this court."

In their 2011 petition, which was also unsuccessful, the attorneys claimed an investigation revealed that Karmeier's campaign committee actually received more than $3 million in support from State Farm.

They came to that figure by including $1 million that State Farm allegedly funneled to Karmeier through the U.S. Chamber of Commerce and by treating the ICJL and its political action committee, JUSTPAC, as components of Karmeier's campaign.

The Madison County Record is owned by the Chamber's Institute for Legal Reform.

The plaintiffs contend that when State Farm responded to the 2005 and 2011 filings, the company misrepresented its role in Karmeier's campaign, as well Murnane and Shepherd's involvement.

"To carry out and conceal this elaborate and covert scheme, defendants created and conducted a continuing pattern and practice of activity through an association-in-fact Enterprise consisting of" the ICJL, the ICJL's executive committee led by Shepherd, JUSTPAC and the Chamber of Commerce, the suit asserts.

Although these groups were not named as defendants, the plaintiffs claim that they acted as State Farm's "vehicle" to recruit Karmeier, direct his campaign and ensure it was well-funded.

"Led by Murnane and Shepherd, the ICJL and its executive committee were the 'glue' that held together the many pieces of State Farm's judicial campaign contribution network," the complaint alleges.

From its inception, the complaint contends, class members in Avery v. State Farm "were the targets of and ultimate victims of the racketeering acts and the RICO enterprise -- stripped of hundreds or even thousands of dollars each, seized of a class-wide judgment totaling $1.05 billion which compensated them for their losses --- as a proximate result of defendants' actions and the actions of the enterprise participants."

The three plaintiffs filed their lawsuit on behalf of all of the class members of Avery v. State Farm, which consisted of about 4.7 million State Farm policyholders.

The original class action suit was brought in Williamson County and accused the insurance company of providing inferior parts for vehicle repairs.

Jurors there sided with the plaintiffs and Williamson County Circuit Judge John Speroni entered a judgment of slightly more than $1 billion against State Farm.

The Fifth District Appellate Court affirmed and in 2005, the Supreme Court reversed, overturning Speroni's judgment.

According to the plaintiffs' suit, typical damage to an individual class member in Avery v. State Farm ranged from several hundred dollars to $2,500.

They asked the federal court in their new class action complaint to award class members three times their actual damages on one or both of their RICO claims, as well as attorneys' fees and litigation costs and expenses.

Tennessee attorney W. Gordon Ball, who serves on the plaintiffs' legal team, said his clients' RICO suit is very simple: "Shepherd, State Farm and Murnane used the Illinois Civil Justice League as an enterprise to basically buy an Illinois Supreme Court justice."

Saying that the Avery v. State Farm case "does have a life of its own," Ball said the fate of his clients' complaint now rests in the hands of Herndon, who will eventually have to rule on the defendants' motions to dismiss.

In addition to Ball, the plaintiffs are represented by Tennessee attorney Charles Barrett and Louisiana attorney Patrick Pendley.

Shepherd filed a motion to dismiss in July, offering several reasons for dismissal.

One reason, Shepherd's motion states, is that federal district courts don't have jurisdiction to review final civil judgments of state courts.

"Plaintiffs' claims are 'inextricably intertwined' with the Illinois Supreme Court decision in Avery and would impermissibly require this Court to review that decision and hold that it was improperly reached," Shepherd's motion contends.

Shepherd also claims that the plaintiffs failed to state a claim and bring it in a timely manner.

According to his motion to dismiss, the plaintiffs' RICO claims accrued in either 2005, when the Illinois Supreme Court vacated the judgment, or in 2006, when the U.S. Supreme Court denied the plaintiff's petition for certiorari.

As such, Shepherd asserts that the plaintiffs' claims were time barred in either 2009 or 2010.

State Farm made similar arguments in its motion to dismiss.

Phil Supple, a spokesman for State Farm, noted that both the Illinois and U.S. supreme courts have refused the plaintiffs' previous attempts to reopen Avery v. State Farm.

"We feel confident in our legal position in court," he said, adding that State Farm has until mid-October to respond to the plaintiffs' opposition to the motions to dismiss.

Murnane, president of the ICJL, said the lawsuit "doesn't seem to be any different from those that have already been rejected by several courts," but declined to comment any further on the suit.

He was served with the complaint this month and said this week that attorneys at Sidley Austin in Chicago will represent him in the matter.

Court records show that Chicago attorneys Joseph Cancila Jr., J. Timothy Eaton and James Gaughan, as well as Edwardsville attorney Patrick Cloud, represent State Farm.

Belleville attorneys Russell Scott and Laura Oberkfell represent Shepherd and St. Louis attorney Tony Martin represented the now-dismissed Citizens for Karmeier.

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