A battle between Metro-East attorneys who used to pack a punch as a mighty class action team is heating up in federal court. Caused the firm to pass a motion made by Tillery changing the origination date of a case captioned Berger v. Xerox;
Stephen Tillery filed a motion asking U.S. District Judge David Herndon to dismiss a lawsuit former partner Rex Carr filed against him that accuses Tillery and others of violating the federal racketeering statute (RICO) as well as civil conspiracy.
Tillery also is asking Herndon sanction Carr.
Carr filed suit April 25, alleging he has been cheated out of class action legal fees and also $10 million from an IBM Personal Pension Plan lawsuit.
In addition to Tillery, Carr names former partners Douglas Sprong and Steven Katz as defendants.
Tillery argues that Carr's suit is nothing more than a contract dispute between former law partners and also notes this is Carr's seventh "of a parade of lawsuits."
Tillery claims the other suits filed by Carr were all in state courts and were voluntarily dismissed by Carr, two over his objection.
"Dissatisfied with the previous outcomes, Plaintiff now repackages the same tired allegations as a purported federal racketeering claim," Tillery's motion states.
"...Carr transmogrifies his previous state contract and tort claims into accusations that Defendants committed federal crimes by not paying him the amount of fees to which he claims to be entitled," Tillery wrote.
He claims Carr's allegations and claims are without merit and should be dismissed on multiple independent grounds.
Tillery claims Carr is barred by res judicata because Illinois state courts have dismissed with prejudice suits Carr filed with the same allegations.
He also claims Carr has violated the "one refiling" rule in Illinois because he has voluntarily dismissed claims arising from the same allegations numerous times.
Tillery also argues that Carr does not state a valid claim under RICO.
"Even taking all of Carr's allegations of fact as true for the purposes of the motion to dismiss, he cannot establish a 'pattern' of repeated acts of criminal racketeering, amounting to or posing a threat of long term criminal activity, that is an essential element of any Rico claim," the motion states.
Tillery adds Carr has failed to allege a single instance of criminal racketeering that could "predicate" a RICO claim.
He also argues that sanctions should be placed against Carr because he continues to file lawsuits against him over allegations that have been dismissed several times with prejudice.
Tillery also argues that Carr has filed meritless motions for liens in cases that Tillery is currently litigating, all having been dismissed.
He also points out that the Seventh Circuit of Appeals recently imposed sanctions against Carr.
The motion states, "In its sanctions order, the Seventh Circuit remarked (in dicta) that this very suit was an 'attempt to bootstrap the dispute into federal court.'"
Tillery is represented by Adam Proujansky of Washington D.C., Bob Sprague of Belleville and Aaron Zigler of St. Louis.
In the suit against Tillery, Carr claims he has been deprived of a portion of $5,842,274.36 in attorneys' fees paid by IBM in settlement of Cooper v. IBM, a St. Clair County case. He says it is a "sham" that the court entered an order on April 2 to hold his share of fees that had been deposited into a "phony" escrow account.
The suit claims that some time after the firm Carr Korein Tillery dissolved on March 10, 2003, Tillery entered into a conspiracy to fraudulently deprive him of his rightful share of fees generated from class action cases, including Dunn v. BOC, Miller v. Hutchins, Berger v. Xerox and Prather v. Pfizer.
Representing himself, Carr seeks $20 million in compensatory damages and $20 million in punitive damages from Tillery.
Carr claims Tillery engaged in "secret dealings" with other members of the firm, including Steven Katz and Douglas Sprong, to exclude him for the purpose of enhancing their share of fees.
According to the complaint, Carr and the partners agreed on Oct. 7, 2003, that Carr Korein Tillery would continue for the purpose of winding up the partnership's affairs and receiving fees from cases assigned to each dissolving member of the firm.
Carr claims that from 1988 through March 10, 2003, he and Tillery were members of various partnerships including Carr Korein Tillery LLC.
According to Carr, beginning on June 14, 2001, until April 21, 2004, members of the firm entered into agreements which required the parties to act in the "utmost good faith and honesty in all dealings between them."
Carr claims to further the conspiracy Tilley performed, among other things, the following overt acts:
Passed a motion declaring Carr had retired;
Passed a motion declaring Carr had violated a covenant of good faith by dissolving the firm rather than retiring;
Entered into a "Memorandum of Understanding" for the purpose of inducing Carr to believe that fees in five cases would be recalculated to allocate Carr his share of the fees; and
Induced the Madison County Circuit Court to wrongfully take jurisdiction of the dispute between the parties while knowing the court did not have jurisdiction which resulted in the reversal of all the courts orders.