Case 4:02-cv-00023 Document 115 Filed 06/24/2005 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE
WINCHESTER DIVISION

BIRDA TROLLINGER, VIRGINIA BRAVO, KELLY KESSINGER, IDOYNIA McCOY, REGINA LEE, PATRICIA MIMS, LORI WINDHAM, and ALEXANDER HOWLETT, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
TYSON FOODS, INC. a Corporation, JOHN TYSON, ARCHIBALD SCHAFFER III, RICHARD BOND, KENNETH KIMBRO, GREG LEE, KAREN PERCIVAL, AHRAZUE WILT, TIM McCOY
Defendants.

No. 4:02-cv-23
CLASS ACTION JURY DEMANDED R. Allan Edgar, Chief Judge United States Magistrate Judge William B. Mitchell Carter

SECOND AMENDED COMPLAINT
Plaintiffs, Birda Trollinger, Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, and Alexander Howlett, individually and on behalf of all others similarly situated, allege as follows:
I. NATURE OF ACTION 1. This is a class action brought on behalf of all persons legally authorized to be employed in the United States ("U.S.") who have been employed by defendant Tyson Foods, Inc. ("Tyson"), reportedly the world's largest processor and marketer of poultry, as hourly wage earners at eight of its facilities ("the facilities"), which are located in Alabama, Indiana, Missouri, Tennessee, Texas, and Virginia.

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2. The Complaint contends that all such persons have been victimized by a scheme perpetrated both by Tyson and through a conspiracy among its top management to depress the wages paid to its employees by knowingly hiring a workforce substantially comprised of undocumented illegal immigrants for the express purpose of depressing wages (hereafter "the Illegal Immigrant Hiring Scheme").
3. The Illegal Immigrant Hiring Scheme violates the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.c. § 1961 et seq. (hereafter "RICO") and has directly and proximately caused the wages paid to plaintiffs and the class members to be substantially depressed, i.e., below the level of wages Tyson would have to pay for this labor if it were not engaged in the Scheme.1
II. PARTIES AND JURISDICTION 4. All of the named Plaintiffs are U.S. citizens and were legally authorized for employment at all relevant times. They were employed by Tyson as hourly paid workers at its chicken processing plants. Each one is a citizen of the state where he or she was employed by Tyson, as more fully set forth below in ~ 16. 5. Tyson is a corporation organized under the laws of the state of Delaware with its principal place of business in Arkansas. 6. John Tyson is a citizen of Arkansas and is Tyson's Chief Executive Officer. 7. Archibald Schaffer, III is a citizen of Arkansas and is a Senior Vice President of Tyson. 8. Richard Bond is a citizen of Arkansas and is Tyson's Chief Operating Officer. 9. Kenneth Kimbro is a citizen of Arkansas and is Tyson's Senior Vice President for Human Resources. 10. Karen Percival is a citizen of Arkansas and is a Vice President of Tyson. 11. Greg Lee is a citizen of Arkansas and is President of Tyson.

1 Hereafter, this Complaint will cite the statutory sections of RICO as "§ 1961" (or whichever section applies) without the reference to Title 18 ofthe U.S. Code.

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12. Tim McCoy is a citizen of Arkansas and a senior executive in Tyson's Human Resources department overseeing several plants.
13. Ahrazue Wilt is a citizen of Missouri and is Tyson's Human Resources Complex Manager for its Sedalia, Missouri facility.
14. This Court has subject matter jurisdiction over this one-count Complaint pursuant to 28 U.S.c. § 1331 as a federal question and by § 1964(a) of RICO, the statute's jurisdictional provision for civil actions.
15. Venue is proper III this district because one of the facilities is located in Shelbyville, Tennessee, where Plaintiff Birda Trollinger was employed and was victimized by the Illegal Immigrant Hiring Scheme.
III. CLASS ALLEGATIONS 16. This action is brought, and may be maintained, as a class action pursuant to FED. R. Crv. P. 23(b)(3). Plaintiffs bring this action on behalf of themselves and all other persons, legally authorized to be employed in the U.S., who have been employed by Tyson at the facilities as hourly wage earners. Each facility is a large chicken processing plant employing at least several hundred persons. The facilities are located in Ashland, Alabama (where Plaintiff McCoy was employed), Gadsden, Alabama (where Plaintiff Mims was employed), Heflin, Alabama (where Plaintiff Lee was employed), Corydon, Indiana (where Plaintiff Kessinger was employed), Sedalia, Missouri (where Plaintiff Bravo was employed), Shelbyville, Tennessee (where Plaintiff Trollinger was employed), Center, Texas (where Plaintiff Windham was employed), and Glen Allen, Virginia (where Plaintiff Howlett was employed). 17. The Class for whose benefit this action is brought is so numerous that joinder of all Class members is impracticable. The actual number can only be ascertained through discovery of Tyson's books and records.
18. Among the questions of fact and law that are common to the Class are: a. Whether Tyson is engaging in the Illegal Immigrant Hiring Scheme;

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b. Whether the individual defendants have conspired to perpetrate the Illegal Immigrant Hiring Scheme
c. Whether Tyson and the individual defendants are doing so in order to depress its employees' wages;
d. Whether the Illegal Immigrant Hiring Scheme has caused class members' wages to be depressed;
e. Whether the Illegal hnmigrant Hiring Scheme violates the Immigration and Nationality Act and RICO; and
f. Whether Tyson should be enjoined from conducting further racketeering activity and whether the individual defendants should be barred from further association with Tyson.
19. Plaintiffs' claims are typical of those of the Class in that they arise from the damages they have suffered as a result of the Illegal hnmigrant Hiring Scheme. Plaintiffs seek no relief that is antagonistic to or adverse to other Class members.
20. Plaintiffs are committed to the vigorous prosecution of this action, and have retained counsel who are competent in the prosecution of class actions, RICO and complex litigation. Plaintiffs' counsel have prosecuted this case since 2002, successfully obtaining a favorable decision from the Sixth Circuit Court of Appeals, and intend to continue to adequately protect and represent the interests of the Class.
21. Questions of law or fact common to the Class predominate over issues affecting individual Class members. A class action is the only appropriate method for the fair and efficient adjUdication of this controversy for the following reasons, among others:

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a. The individual amounts of damages involved, while not insubstantial, are

generally not large enough to justify individual actions;

b. The costs of individual actions would unreasonably consume the amounts

that would be recovered;

c. Individual actions would unduly burden the judicial system; and

d. Individual actions brought by Class members would create a risk of

inconsistent results and would be unnecessarily duplicative of this

litigation.

22. Plaintiffs anticipate no difficulty in the management of this action because the

evidence proving the Illegal Immigrant Hiring Scheme is ascertainable through discovery, the

identities of the Class members are known to Tyson, and damages can be calculated to a

reasonable certainty through expert testimony.

A. The Illegal Immigrant Hiring Scheme: Tyson Requires Its Hiring Personnel To Be Willfully Blind And Subvert The Law Against Hiring Unauthorized Immigrants 23. The Immigration Reform and Control Act (hereafter "IRCA"), 8 U.S.c. § 1324(a)
et seq., and its accompanying regulations, require employers to verify, under the penalty of perjury, that they have examined documents produced by each employee which establish the employee's authorization for employment in the U.S. Specifically, the employer must verify the documents are "genuine" and "relate" to the person tendering them. 8 C.F.R. § 274a.2(b)(1 )(i)(B)(ii)(A) (hereafter "the verification requirement")
24. Tyson is engaged in a long-term pattern and practice of violating IRCA and § 274 of the Immigration and Nationality Act, 8 U.S.c. § 1324(a)(3)(A), which like IRCA, prohibits the employment of unauthorized immigrants. Tyson does so in every possible way short of outright refusal to comply at all. These subversions are:
a. Signing Employment Eligibility Verification Forms (1-9 forms) in mass quantities, before any documents have been inspected, signing the forms

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more than three days after new hires have been employed, and signing

based upon review of copies of documents presented, not the original documents. 2

b. Prohibiting hiring personnel from taking into account obvious facts which

indicate that documents do not relate to the people tendering them,

particularly the inability to speak English. As Tyson knows, persons who

do not speak English cannot, as a practical matter, be U.S. citizens or

lawful permanent residents. IRCA does not permit employers to engage in

willful blindness to the truth. (This is referred to throughout this

Complaint as the "Willful Blindness Policy.")

c. Rehiring persons whom it previously hired under different names, usually

after a short absence during which they have acquired a new, stolen

identity.

d. Hiring workers who appear decades younger than the pictures that appear

on their stolen identity documents.

e.

Using temporary employment placement services to hire illegal

immigrants and then "loan" them to Tyson for a fee.

f. Giving employees leave to "get good documents" after Tyson has been

informed their employment authorization documents actually belong to

someone else. These employees are then rehired under new identities, but

often retain their seniority level or "points." Tyson supervisors will often

ask these employees, "Who are you this week?"

g. Giving newly hired workers money to obtain housing, food, and other

living supplies (such as bedding and sheets), as well as providing

transportation to and from the Tyson facility, which when coupled with

2 The 1-9 form is the document designed by the federal government to be used in complying with IRCA. 8 C.F.R. § 274a.2(a).

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their inability to speak English, would put any reasonable employer on notice that these workers are not U.S. citizens or lawful permanent residents, as their "documents" indicate, and are therefore presenting stolen documents.
25. The Willful Blindness Policy was implemented by co-conspirator William Jaycox, Tyson's Senior Vice President of Human Resources, in the late 1980's. (However, Mr. Jaycox is not named as a defendant.) The Policy has been approved by all of the other coconspirators and is still in existence today, despite Tyson's sordid history of legal troubles arising from its subversion of IRCA. B. Tyson Uses The Basic Pilot Program As A Fig Leaf To Subvert IRCA
26. Since 1998, Tyson has used the federal government's Basic Pilot program in order to give the appearance of complying with IRCA while the company is actively subverting the law.
27. Basic Pilot, an internet verification program, confirms that government-issued eligibility documents were actually issued and the name of the person to whom they were issued ("the issuee"). However, it does not establish that the person presenting the documents is the issuee. The employer must still comply with its IRCA's verification requirement. Tyson does not do this. Thus, Tyson is abusing Basic Pilot to subvert its IRCA obligations, turning the program into a fig leaf to ward off future raids and enforcement actions.
c. The "Dalia Gutierrez" Workers
28. The result of Tyson's policies of subversion and Willful Blindness is the knowing employment of thousands of illegal immigrants using stolen identity documents. Typical is an illegal worker in Tyson's Corydon, Indiana facility. She entered the U.S. illegally from Mexico and then illegally assumed the name, social security number and birth certificate of a U.S. citizen named Dalia Gutierrez.

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29. "Dalia Gutierrez," knowing of Tyson's noncompliance with the verification requirement and its Willful Blindness Policy, presented her stolen documents to Tyson. Tyson employed her in 2001 after she had "passed" the Basic Pilot program.
30. Thus, pursuant to the Willful Blindness Policy, Tyson's Human Resources manager ignored her inability to speak English and falsely "verified" under oath that her documents "related" to her.
31. Subsequently, Tyson learned from other employees at the facility that "Dalia Gutierrez" was an illegal immigrant. She was "investigated" (pursuant to the company's "protocol" for these inquiries) and "passed" by simply producing another stolen document, a copy of the real Dalia Gutierrez's birth certificate, issued by Starr County, Texas. As indicated, the real Dalia Gutierrez resides in Texas. The fake "Dalia Gutierrez," employed by Tyson, had been illegally using her social security number since her employment in 2001. Accordingly, Tyson's identity "investigation" was a farce designed not to obtain the truth, but to continue to obscure what it did not want to know, i.e., that its employee is an illegal immigrant. "Dalia Gutierrez" remains employed by Tyson.
32. The real Dalia Gutierrez has received bills from a hospital in Corydon, Indiana, . where the illegal Tyson worker sought treatment with her stolen social security number.
33. Tyson has hired hundreds of "Dalia Gutierrez" workers at each of the facilities each year since 1996 in the same manner. In every case, Tyson hiring personnel knew that the workers were unauthorized for employment. However, Tyson hiring personnel employed the workers, pursuant to the Illegal Immigrant Hiring Scheme, established by the individual defendants.
IV. TYSON HARBORS ILLEGAL IMMIGRANTS 34. Numerous Tyson facilities have been raided and/or investigated by federal immigration authorities. Rumors of raids are common. When such rumors spread, Tyson

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supervisors tip off known illegal immigrants and recommend they leave the plant. This is harboring.
35. Tyson rents trailers and other cheap housing units for its illegal workers, typically through front companies. It uses fronts because many landlords refuse to rent housing to Tyson, knowing it will be used to harbor illegal immigrants. This is particularly prevalent in the area of northern Alabama known as "Little Tijuana," where the facilities in that state are located. This is another widespread method ofharboring illegal immigrants.
V. THE RACKETEERING ACTS A. "Knowingly Hiring" Illegal Immigrants
36. In order to perpetrate the Illegal Immigrant Hiring Scheme, Tyson has knowingly hired more than 10 unauthorized, illegal immigrants each year, since the enactment of 8 U.S.C. § 1324(a)(3)(A), in 1996, at each of the facilities. (Tyson may have acquired a few of the facilities after 1996. With respect to those facilities, Plaintiffs allege Tyson began knowingly violating this section as soon as it acquired these facilities.) B. "Harboring" Illegal Immigrants
37. Plaintiffs also allege that Tyson has violated 8 U.S.C. § 1324(a)(1)(A)(iii) by "harboring" unauthorized, illegal immigrants with knowledge or reckless disregard that each entered the U.S. illegally. Tyson's employment of each illegal immigrant constitutes "harboring." Moreover, as indicated, Tyson has shielded illegal immigrants from detection by federal immigration officials by warning them of possible raids and providing them with housing. Each of these acts constitutes "harboring."
38. These two federal crimes are provisions of § 274 of the Immigration and Nationality Act and are made predicate offenses by § 1961(1)(F) of RICO.

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VI. THE RICO ENTERPRISES A. The Temporary Employment Services Enterprises
39. Tyson formed ongoing associations with temporary employment services for the purpose of supplying hourly paid workers to each of the facilities. These workers were both legal and illegal (though mostly illegal). They operated under written contracts with Tyson which provided that the services would insure that the workers were authorized for employment under IRCA. However, pursuant to the Illegal Immigrant Hiring Scheme, Tyson knew this promise would not be kept and that most of the workers hired would be illegal. The illegality of most of the workers was made apparent to Tyson when its senior management personnel reviewed the 1-9 forms and saw they were improperly completed. Additionally, illegal workers made admissions to Tyson supervisors indicating they were unauthorized for employment. At all relevant times, Tyson management knew the workers supplied by the temporary employment services were driving down wages at the facilities below the level Tyson was able to depress them on its own.
40. These relationships with the temporary employment services were in existence for extended periods oftime, typically from 1998-2001, and resulted in the placement of at least 100 workers at each facility per year. (Plaintiffs are unable to be more specific because Tyson has refused to produce the relevant 1-9 forms. Additionally, Plaintiffs have sought an order from this Court to release these documents, which were produced by the services to the grand jury which indicted Tyson for employing illegal immigrants in 2001. The Court has not yet ruled on Plaintiffs' Motion.)
41. At all relevant times, the temporary employment services maintained their own legitimate business operations in their respective states. They were not Tyson's agents. Tyson paid each a fee for each worker supplied to the company. The temporary employment services and Tyson maintained close relationships during the relevant period including regular contact and supervision by Tyson. In some cases, the services opened hiring offices inside Tyson's plants to facilitate the hiring process. Tyson did not charge them rent for the office space.

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42. Tyson reviewed the 1-9 forms completed by the temporary employment services: Tandem Staffing Solutions, Inc., Ready Staffing, Inc. and Outsource International (which supplied workers to the Corydon, IN facility); Labor Pro Temporary Services and USA Staffing, Inc. (which supplied workers to the Glen Allen, VA facility); Oxford Enterprises, Inc. and InStaff Personnel (which supplied workers to the Ashland, AL facility); Kavanaugh Group Temporary and Snelling Personnel Service (which supplied workers to the Center, Texas facility); Tandem Staffing and Outsource International (which supplied workers to the Sedalia, MO facility); and Randstad LTD. (which supplied workers to the Shelbyville, TN facility). Additionally, pursuant to the Willful Blindness Policy, Tyson HR management at each facility knew that most of the workers placed by the services spoke no English and were therefore likely to be unauthorized for employment. Tyson management acquiesced in this illegal hiring.
43. Accordingly, Plaintiffs allege that each of the temporary employment services named in the previous paragraph formed an association-in-fact RICO enterprise, pursuant to § 1961(4), with Tyson for the purpose of recruiting workers for Tyson. Tyson participated in the affairs of each of these association-in-fact enterprises by paying each service fees for what it knew to be a pool of primarily illegal immigrant labor. Despite language to the contrary in the written contracts, which Tyson used in order to distance itself from the illegal hiring, Tyson was the employer of the workers they recruited. Tyson controlled every aspect of their work, and in reality, paid their wages. Tyson also paid each service a fee for its services in procuring lowwage, mostly illegal immigrants.
44. Each of these association-in-fact RICO enterprises affected interstate commerce. Tyson participated in the affairs of each enterprise through a pattern of racketeering activity, knowingly employing and harboring more than 10 illegal immigrants per year. Thus, Tyson is a RICO "person" pursuant to § 1961(3).
45. Plaintiffs were proximately damaged as a direct result of the pattern of racketeering activity perpetrated by Tyson through each of these association-in-fact enterprises

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because this pattern of racketeering activity caused the wages paid by Tyson to them to be depressed below what they would have been in a labor market consisting only of legal workers. B. The Tyson Enterprise
46. The individual defendants have entered into a conspiracy, as detailed above, to carry out the Illegal Immigrant Hiring Scheme. Additionally, each member of the conspiracy has personally agreed to, and has furthered, the conspiracy in some important way on an ongoing basis. Defendants John Tyson and Lee have approved the Willful Blindness Policy and keep it in place. Defendants Percival, Kimbro and Lee set compensation levels for hourly paid workers at the facilities which they know are too low to attract sufficient numbers of legal workers to staff the facilities. Defendants John Tyson, Lee, and Kimbro approve of, and participate in, the association with the temporary employment services and the Hispanic groups (Tyson's relationships with these groups are detailed, infra). Defendant Schaffer oversees the day-to-day relationships with the Hispanic groups and approves the payments to them. Defendant Wilt carries out the Willful Blindness Policy at her facility and rents housing to illegal immigrants. Defendant McCoy enforces the Willful Blindness Policy at several facilities, reviews 1-9 forms which are improperly completed, and then takes no action, thereby ratifying the pattern and practice of 1-9 subversion described above. He also recommended, to a meeting of 200 Tyson Human Resources managers, that they hire illegal workers to depress wages and labor costs.
47. Each ofthese individual defendants is a person pursuant to § 1961(3). Each ofthe individual defendants has personally agreed to the objective of carrying out the Illegal Immigrant Hiring Scheme and that the Scheme would be perpetrated by the members of the conspiracy. In addition, each co-conspirator knew that the Scheme would entail a pattern of racketeering activity, the ongoing employment of thousands of illegal immigrants, as described above. Additionally, each member of the conspiracy agreed that the conspiracy would be undertaken by participating in Tyson's employment practices and policies. Each co-conspirator is in Tyson's management or participating indirectly in the company's management.

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48. All of the conspirators agreed that the Illegal Immigrant Hiring Scheme would be conducted through Tyson, which is an enterprise, pursuant to § 1961(4), affecting interstate commerce. Finally, all of the conspirators agreed to the conspiracy to enrich themselves by enriching Tyson at the expense of Plaintiffs, whose wages they were depressing.
c. The Hispanic Groups Association-in-Fact Enterprise
49. After being indicted for employing illegal immigrants in 2001, Tyson faced a cnSlS in its relations with the Hispanic community, which correctly perceived Tyson was exploiting its Hispanic workers in various ways including the purchase of aliens smuggled to the U.S. from Mexico and Guatemala for work at its facilities and through the use of temporary employment services. Fearful of a Hispanic-led boycott of its products and a recommendation to its membership not to work for Tyson, the company began an aggressive campaign to placate two major Hispanic groups, League of United Latin American Citizens ("LULAC") and National Council of La Raza ("NCLR").
50. Tyson formed long-term partnerships with these groups. Pursuant to the partnerships, Tyson gives them significant sums of money, conducts regular meetings with their leadership and cooperates in areas of common interest.
51. Defendant Schaffer disburses the money to the groups on a periodic basis. He has also directed Tyson managers at the plants to make donations to the groups' local chapters, which they do.
52. The common purposes and goals the groups and Tyson jointly advance are both legitimate and illegitimate. The legitimate purposes are advancing the education and welfare of the Hispanic community in general, and more particularly in the communities where Tyson has processing plants.
53. However, the partnerships with the groups also advance a crucial and illegitimate objective: carrying out the Willful Blindness Policy without the use of alien smuggling or temporary employment services, as requested by the groups. Tyson acceded to these requests.

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Additionally, Tyson has made other adjustments to the Willful Blindness Policy at the behest of the groups.
54. Tyson's partnerships with these groups have been extremely close for the last three years and are ongoing. Meetings have included defendants John Tyson, Kimbro, Schaffer, and Lee. Tyson has hired a full-time liaison, Ana Hart, to maintain and promote the partnerships. She is engaged in daily contact with the leadership of the groups and some of their chapters, particularly the chapters in Northwest Arkansas. Tyson has directed at least three of its employees, including Ms. Hart, to speak for the company, representing its views, in their capacity as chapter members of one of the LULAC chapters.
55. Thus, Tyson, LULAC and NCLR have formed an association-in-fact RICO enterprise pursuant to § 1961(4) in 2001 which has been in continuous existence ever since. This enterprise affects interstate commerce.
56. Tyson participates in the affairs of this enterprise in numerous ways, as described. Most significantly, Plaintiffs allege it participates by carrying out the Willful Blindness Policy, which is essential to the Illegal Immigrant Hiring Scheme, in the way LULAC and NCLR prefer. Thus, the association-in-fact enterprise is responsible for the manner in which the Illegal Immigrant Hiring Scheme has been executed since 2001. (However, the groups are not defendants. )
VII. THE DEFENDANTS HAVE CONSPIRED TO VIOLATE RICO A. The Individual Defendants
57. The individual defendants, John Tyson, Richard Bond, Kenneth Kimbro, Karen Percival, Tim McCoy, and Ahrazue Wilt have violated § 1962(d) of RICO by conspiring to violate § 1962(c) of RICO. Their agreement, as detailed, was and is, to execute the Illegal Immigrant Hiring Scheme. They have all knowingly and willfully entered this conspiracy, agreeing that members of the conspiracy, which also include unnamed individuals conducting hiring at the Tyson facilities, would, pursuant to the policies they had established, hire hundreds

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of illegal immigrants as hourly-paid workers for the purpose of depressing wages. Each coconspirator also agreed that the RICO predicate acts constituting the Illegal Immigrant Hiring Scheme, detailed above, would be committed through Tyson Foods, Inc., a RICO enterprise. As indicated, this racketeering activity is open, ongoing and will not stop without judicial intervention.
58. Each co-conspirator is jointly and severally liable for all of the damages to the Plaintiffs and the amount of money their wages were depressed during the entire class period, which began in 1998 and continues through trial. B. Tyson Foods, Inc.
59. Tyson Foods, Inc., in addition to being the enterprise for the individual defendants detailed above, is also a RICO defendant. It has violated § 1962(c) of RICO by committing a pattern of racketeering activity, the Illegal Immigrant Hiring Scheme, through the temporary employment service association-in-fact enterprises and the Hispanic groups association-in-fact enterprise (Tyson, LULAC and NCLR). As indicated, this racketeering activity is open, ongoing, and will not stop without judicial intervention.
VIII. THE PLAINTIFFS HAVE ALL BEEN DAMAGED BY THE DEFENDANTS THROUGH THE VARIOUS RICO ENTERPRISES
60. As stated, Plaintiffs have been proximately damaged by all the defendants (Tyson and the individual co-conspirator defendants) through the various RICO enterprises by the depression of their wages as a result of the Illegal Immigrant Hiring Scheme. At all relevant times the hourly wages earned by Plaintiffs were depressed below what they would have been had Tyson and the individual defendants not been executing the Illegal Immigrant Hiring Scheme.
IX. PRAYER FOR RELIEF 61. Plaintiffs demand judgment and other relief as follows:
a. Certification of the Class pursuant to FED. R. CIv. P. 23(b)(3);

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b. Judgment in an amount equal to three times the damage caused the putative Class by Tyson's racketeering activity, the Illegal Immigrant Hiring Scheme, pursuant to 18 U.S.C. § 1964(c) against the defendants: Tyson Foods, Inc. and the co-conspirator individual defendants named above;
c. Preliminary and permanent injunctions enjoining Tyson from any further racketeering activity or any further association with the individual defendants; ordering the individual defendants to divest themselves of any stock and other interests they have in Tyson Foods, Inc. and barring them from any further involvement in the poultry industry;
d. Appropriate attorneys' fees, pursuant to 18 U.S.c. § 1964; e. Trial by jury, pursuant to FED. R. CIV. P. 38; and f. For any other relief the Court deems just and proper.

DATED: June 24,2005

Respectfully submitted, BIRDA TROLLINGER, et al., Plaintiffs

s/HOWARD FOSTER Johnson & Bell, Ltd. 55 E. Monroe Street, Suite 4100 Chicago, IL 60603 (312) 372-0770 fosterh@jbltd.com
William G. Colvin (TN BPR # 006733) 1100 SunTrust Bank Bldg. 736 Market Street Chattanooga, TN 37402 (423) 265-2214 bcolvin@swgwlaw.com
Attorneys for the Plaintiffs

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CERTIFICATE OF SERVICE
I hereby certify that on June 24, 2005, a copy of the foregoing, Second Amended Complaint, was filed electronically. Notice of this filing will be sent by operation of the Court's electronic filing system to all parties indicated on the electronic filing receipt. All other parties will be served by regular U.S. mail. Parties may access this filing through the Court's electronic filing system.
sIHoward Foster Howard Foster Pro Hac Vice Johnson & Bell, Ltd. 55 E. Monroe Street Suite 4100 Chicago, IL 60603 (312) 372-0770 Fax: 312-372-9818 fosterh@jbltd.com

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 Case 4:02-cv-00023 Document 182 Filed 10/10/2006 Page 1 of 22

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE
at WINCHESTER

BIRDA TROLLINGER, VIRGINIA

)

BRAVO, KELLY KESSINGER,

)

IDOYNIA MCCOY, REGINA LEE,

)

PATRICIA MIMS, LORI WINDHAM

)

and ALEXANDER HOWLETT,

)

individually and on behalf of all others

)

similarly situated

)

)

Plaintiffs,

)

)

v.

)

)

TYSON FOODS, INC., JOHN TYSON,

)

ARCHIBALD SCHAFFER III, RICHARD, )

BOND, KENNETH KIMBRO, GREG

)

LEE, KAREN PERCIVAL, AHRAZUE

)

WILT and TIM MCCOY,

)

)

Defendants.

)

No. 4:02-CV-23 Chief Judge Curtis L. Collier

MEMORANDUM
Before the Court is Plaintiffs’1 motion for class certification with supporting memorandum
(Plaintiffs’ memorandum), pursuant to Fed. R. Civ. P. 23(b)(3) (Court File Nos. 121, 123).
Defendants2 Tyson Foods, Inc., filed a memorandum in opposition to Plaintiffs’ motion for class
certification (Court File No. 139) and Plaintiffs filed a reply brief (Court File No. 144). For the
following reasons, the Court will GRANT Plaintiffs’ motion for class certification.
1Plaintiffs in this case are Birda Trollinger, Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham and Alexander Howlett. The Court will refer to them in this memorandum as “Plaintiffs” or “named Plaintiffs.”
2There are nine defendants in this case. They are Tyson Foods, Inc., and certain of its officers and employees, namely John Tyson, Archibald Schaffer III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt and Tim McCoy. The Court will refer to them in this memorandum as Tyson or “Defendants.”

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I. RELEVANT BACKGROUND Plaintiffs have brought this lawsuit against Tyson Foods, Inc., one of the largest, if not the
largest, poultry companies in the United States.3 There have been an unusually high number of previous decisions issued in this case: Judgment Granting Summary Judgment and Supporting Memorandum, July 16, 2002, Trollinger v. Tyson Foods, Inc., 214 F. Supp. 2d 840 (E.D. Tenn. 2002) (Court File Nos. 22, 21); Reversal of Summary Judgment, Trollinger v. Tyson Foods, Inc., 370 F.3d 602 (6th Cir. 2004); Order Denying Motion for Summary Judgment and Supporting Memorandum, February 8, 2006 (Court File Nos. 158, 157); Memorandum Elaborating on Bench Ruling Denying Motion for Judgment on the Pleadings, September 18, 2006 (Court File No. 174); Order and Supporting Memorandum Denying Motion to Amend or Correct or to Certify Case for Interlocutory Appeal, September 29, 2006 (Court File Nos. 179, 180).
Plaintiffs filed suit in this case under the Racketeer Influence and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1964 (Court File No. 1). A Second Amended Complaint (“the Complaint”) was filed on June 24, 2005 (Court File No. 115, Second Amended Complaint). In the Complaint Plaintiffs allege Tyson committed acts of racketeering by engaging in a systematic policy of criminality. Specifically, Plaintiffs claim Tyson violated predicate RICO statutes relating to the nation’s law against illegal immigration. Over some fourteen pages of the Complaint, Plaintiffs set out their allegations asserting Tyson harbored and employed illegal aliens in violation of federal law and thereby subverted the federal laws on immigration of aliens, particularly the Immigration
3According to the Complaint, Tyson is “the world’s largest processor and marketer of poultry.” (Court File No. 115, ¶ 1, Complaint).
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Reform and Control Act (“IRCA”), 8 U.S.C. § 1324.4 In 1996, Congress amended RICO and added as predicate offenses those statutes prohibiting
harboring and the knowing employment of illegal immigrants. 18 U.S.C. § 1961(1)(F) (incorporating violations of § 274 of the Immigration and Nationality Act (“INA”)).5 Section 274 of the INA, like IRCA, prohibits the employment of illegal immigrants. RICO has long been understood to be an effort by Congress to authorized private individuals to bring civil suits based upon federal criminal violations.
Plaintiffs, according to the Complaint, are individuals employed by Tyson as some point who are “legally authorized to be employed in the United States” (Court File No. 115, Complaint, ¶ 1). They are paid hourly as unskilled or semi-skilled legally authorized workers, at eight6 chicken processing plants, owned and operated by Tyson. Plaintiffs Second Amended Complaint (“the Complaint”) asserts Tyson depressed Plaintiffs’ wages by knowingly employing a workforce substantially comprised of illegal immigrants (Court File No. 115, ¶ 2). Plaintiffs refer to this as the “Illegal Immigrant Hiring Scheme” (id.). Plaintiffs allege the Illegal Immigrant Hiring Scheme saved Defendant Tyson large sums of money by driving down wages at the chicken processing plants below what wages would be if the Scheme were not in existence and claim this money
4Complaints under RICO premised on violations of the immigration laws similar to those here have been upheld. Williams v. Mohawk Industries, Inc. — F.3d —, No. 04-13740 (11th Cir. Sept. 27, 2006); Trollinger v. Tyson Foods, Inc., 370 F.3d 602 (6th Cir. 2004); Mendoza v. Zirkle Fruit Co., 301 f.3d 1163 (9th Cir. 2002).
5Sec. 274 is codified at 8 U.S.C. § 1324(a). The Complaint alleges violations of 8 U.S.C. §1324(a)(3)(A) and 8 U.S.C. §1324(a)(1)(A)(iii) (Court File No. 115 at ¶¶ 36, 37).
6The Second Amended Complaint lists eight specific Tyson chicken processing plants located in the following United States cities: Ashland, Alabama; Gadsden, Alabama; Corydon, Indiana; Sedalia, Missouri; Shelbyville, Tennessee; Center, Texas; and Glen Allen, Virginia.
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belongs to Plaintiffs (id. at ¶ 60). Plaintiffs assert the Illegal Immigrant Hiring Scheme violates RICO and is “conducted in
direct contravention of the Immigration Reform and Control Act (“IRCA”)” (Court File No. 123 at 2). According to the Complaint Plaintiffs were injured by Tyson’s illegally violating provisions of IRCA. In their memorandum Plaintiffs trace the history and purpose of IRCA. In 1986, Congress enacted IRCA, a comprehensive scheme prohibiting the employment of illegal aliens in the United States. § 101(a)(1), 100 Stat. 3360, 8 U.S.C. § 1324a. “IRCA ‘forcefully’ made combating the employment of illegal aliens central to ‘the policy of immigration law.’” Hoffman Plastic Compounds v. NLRB, 535 U.S. 137, 147 (2002) (citing INS v. National Center for Immigrants' Rights, Inc., 502 U.S. 183, 194 (1991)). It did so by establishing an extensive "employment verification system," § 1324a(a)(1), designed to deny employment to aliens who (a) are not lawfully present in the United States, or (b) are not lawfully authorized to work in the United States, § 1324a(h)(3). Hoffman, 535 U.S. at 147. To enforce the law, “IRCA mandates that employers verify the identity and eligibility of all new hires by examining specified documents before they begin work. § 1324a(b). If an alien applicant is unable to present the required documentation, the unauthorized alien cannot be hired. § 1324a(a)(1).” Id. at 148.
As Plaintiffs’ memorandum points out, in enacting IRCA, Congress was motivated by the effects of illegal immigration on wage levels, particularly in unskilled jobs.
Both houses of Congress explicitly noted that the hiring of undocumented workers adversely affects American employees because alien workers, out of desperation, will work in substandard conditions and for starvation wages. Particularly affected, Congress found, are low-income and low-skilled Americans, including many members of minority groups, who compete most directly with undocumented aliens for jobs. A.P.R.A. Fuel Oil Buyers Group, Inc., 320 N.L.R.B. 408, 413-414 (1995)(citing H.R. Rep. No.
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99-682 Part 1 at 47 (1986) and S. Rep. No. 99-132 at 5 (1986)). See also President’s Memorandum, 60 FR 7885, 7886 (memorandum for the heads of executive departments and agencies outlining and discussing his Administration’s efforts at deterring illegal immigration) (“Employers who hire illegal immigrants not only obtain unfair competitive advantage over law-abiding employers, their unlawful use of illegal immigrants suppresses wages and working conditions for our country's legal workers.”). Further, the United States Supreme Court has recognized the employment of illegal aliens causes wage depression for workers who are legally employed. De Canas v. Bica, 424 U.S. 351, 356-357 (U.S. 1976) (“acceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens; and employment of illegal aliens under such conditions can diminish the effectiveness of labor unions”); Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 892 (1984)(same).
Plaintiffs also allege Tyson “engaged in a long-term pattern and practice of violating [the immigration law].” Plaintiffs refer to this claimed practice as the Willful Blindness Policy (Court File No. 115 at ¶ 24).
Plaintiffs filed the Complaint on behalf of themselves and members of a proposed class. The named Plaintiffs move under Federal Rules of Civil Procedure 23(a) and 23(b)(3) to certify this lawsuit as a class action with a proposed class of “all persons legally authorized to be employed in the United States who have been employed” at the Tyson facilities since April 1998 through the present (“the Class” or “the proposed class”)(Court File No. 115 ¶¶ 1, 16, 17).7
7As Plaintiffs’ motion clarifies, the Class seeks certification for all employees who were employed by Tyson at the eight named facilities. Excluded from the class are temporary workers who worked at Tyson but were hired and paid by temporary employment services.
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II. STANDARD OF REVIEW
Deciding class certification under Fed.R.Civ.P. 23 involves a two step process. “In order
to obtain class certification, plaintiff must first satisfy Rule 23(a)'s requirements of numerosity,
commonality, typicality, and adequacy of representation.” Coleman v. General Motors Acceptance
Corp., 296 F.3d 443, 446 (6th Cir. 2002). Additionally, plaintiff “must demonstrate that the class
fits under one of the three subdivisions of Rule 23(b).” Id. As mentioned above, Plaintiffs seek
class certification under Rule 23(b)(3). Rules 23(a) and 23(b)(3) provide:
Rule 23. Class Actions (a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. (b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:... (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
Fed.R.Civ.P. 23(a), 23(b)(3). A district court enjoys broad discretion in certifying class actions, but
must exercise this discretion within the framework of Rule 23. In re American Med. Sys., Inc., 75
F.3d 1069, 1079 (6th Cir. 1996).
When evaluating whether to certify the class, the district court must take the allegations of
plaintiffs as true, with any doubts resolved in favor of certification. Iron Workers Local Union No.
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17 Ins. Fund v. Philip Morris Co., 29 F.Supp.2d 825, 830 (N.D. Ohio 1998) (citing Cross v. National Trust Life Ins. Co., 553 F.2d 1026, 1029 (6th Cir. 1977)). Although the Court may, and often must, look beyond the bare pleadings in the case, it may not examine the merits of the parties' claims or defenses. Garrish v. United Auto., Aerospace, and Agricultural Implement Workers of America, 149 F.Supp.2d 326, 330 (E.D.Mich. 2001)(citing Eisen v. Carlisle and Jacquelin, 417 U.S. 156 (1974)(“In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met”)(internal quotations omitted)).
The Court is required to conduct a "rigorous analysis" into whether the prerequisites of Rule 23 are met before certifying a class. Sprague v. General Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998); In re American, 75 F.3d at 1079. The plaintiff has the burden of showing that all of the requirements for class certification have been met. Id. For purposes of certifying a class in a class action, mere repetition of the language of governing federal rule is not sufficient; there must be an adequate statement of the basic facts to indicate that each requirement of the rule is fulfilled. Id.
Provision is made in the rule for altering or changing the order certifying the class action so long as that is done prior to final judgment. Fed.R.Civ.P. 23(c)(1)(C).
III. DISCUSSION In considering Plaintiffs’ motion, the Court must assume all of their claims are true. It goes
without saying whether Plaintiffs can prove their claims or not is still an open question. As stated above, subsection (a) of Rule 23 contains four prerequisites which must all be met
before a class can be certified. Once those conditions are satisfied, the party seeking certification
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must also demonstrate that the case falls within at least one of the subcategories of Rule 23(b). Here, Plaintiffs are seeking certification under Fed. R. Civ. Proc. 23(b)(3).
It is not at all clear Tyson contests these prerequisites. As Plaintiffs’ reply brief states, “Defendants do not dispute that numerosity, commonality, typicality and adequacy of representation have all been established, thus conceding Plaintiffs have met their burden with respect to Rule 23(a)(1)-(4).” Defendants’ only challenges to Plaintiffs’ motion are in respect to Rule 23(b)’s requirements of manageability and predominance (Court File No. 144 at 1). Even so, the Court will discuss and examine each of the Rule 23(a) and (b) factors in turn.
A. Requirements of Rule 23(a) 1. The Requirement of Numerosity
The first subdivision of Rule 23(a) requires that the class be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. Proc. 23(a)(1). “The reason for [the impracticability] requirement is obvious. Only when joinder is impracticable is there a need for a class action device.” In re American, 75 F.3d at 1079 (citing 1 Herbert B. Newberg & Alba Conte, Newberg on Class Actions, § 3.01, at 3-4 (3d ed. 1992)).8 There is no strict numerical test for determining impracticability of joinder. Id. (citing Senter v. General Motors Corp., 532 F.2d 511, 523 n. 24 (6th Cir. 1976) (and citations therein)). Rather, “[t]he numerosity requirement requires examination of the specific facts of each case and imposes no absolute limitations.” General Tel. Co. v. EEOC, 446 U.S. 318, 330 (1980). When class size reaches substantial proportions, however, the impracticability
8Since the time In re American was decided, Newberg has published a fourth edition of the treatise, Herbert B. Newberg & Alba Conte, Newberg on Class Actions (4th ed. 2002). The Court will use “Newberg” to short-cite to the fourth edition of the treatise but will not update any previous court’s citations to the third edition (which will be referenced by a parenthetical: “citing Newberg, 3d ed., . . . ”).
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requirement is usually satisfied by the numbers alone. In re American, 75 F.3d at 1079 (citing 1 Newberg, 3d ed., § 3.05, at 3-26).
Before the Court may certify a class pursuant to Rule 23, “the class definition must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class.” 5 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE, ¶ 23.21[1] (3d ed.1998). The identity of class members, moreover, must be ascertainable by reference to objective criteria. Garrish, 149 F. Supp. 2d at 331 (citing Crosby v. Social Security Admin., 796 F.2d 576, 580 (1st Cir.1986)). A precise definition allows the Court to determine who would be entitled to relief, who would be bound by a judgment, and who is entitled to notice of the action. See 5 MOORE'S FEDERAL PRACTICE, ¶ 23.21[3]. In this case, Plaintiffs propose to define the class as “all persons legally authorized to be employed in the United States who have been employed” at the eight Tyson facilities since April 1998 through the present, excluding temporary workers who were hired and paid by temporary employment services (Court File No. 115 ¶¶ 1, 16, 17). The Court finds this class definition is based upon readily ascertainable criteria, as a review of Tyson’s employment records from April 1998 through the present should identify the precise number and names of legally-employed workers. Garrish, 149 F. Supp. 2d at 331 (determining a class defined as “all members of Local 594 who were on GM's active payroll at its Pontiac truck facility on the day the strike began,” except for the “members of Local 594 who were responsible for the events giving rise to this litigation” was readily ascertainable by reference to objective criteria and adequately defined the class under Rule 23).
While there is no fixed minimum number required to establish numerosity, the United States Court of Appeals for the Sixth Circuit (the “Sixth Circuit”) has held a class of 800 suffices. Bacon
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v. Honda of America Mfg., Inc., 370 F.3d 565, 570 (6th Cir. 2004). In the Complaint, Plaintiffs state “[t]he Class for whose benefit this action is brought is so numerous that joinder of all Class members is impracticable. The actual number can only be ascertained through discovery of Tyson’s books and records” (Court File No. 115 at ¶ 17). Plaintiffs’ memorandum states the “Class in this case easily exceeds 800 as there are hundreds of workers at each Plant every day, and the Class consists of eight plants, and spans a period of more than seven years” (Court File No. 123, referencing Exhibit C to Court File No. 123, Galin Dec., ¶ 5). Given the allegations contained within the complaint and the large number of plant workers employed by Defendants spanning more than eight years at this point, the Court is satisfied joinder of all class members is impracticable.
2. The Requirement of Common Questions of Law and Fact Rule 23(a)(2) requires that for certification there must be “questions of law or fact common to the class.” The commonality requirement is interdependent with the impracticability of joinder requirement, and the “tests together form the underlying conceptual basis supporting class actions.” 1 Newberg, § 3.10, at 271. As the Supreme Court explained in Falcon: The class-action was designed as “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Califano v. Yamasaki, 442 U.S. 682, 700-01, 99 S.Ct. 2545, 2557-2558, 61 L.Ed.2d 176. Class relief “is ‘peculiarly appropriate’ when the ‘issues involved are common to the class as a whole’ and when they ‘turn on questions of law applicable in the same manner to each member of the class.[’]” Id. at 701, 99 S.Ct., at 2557. For in such cases, “the class-action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion under Rule 23.” Ibid. Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 155 (1982). The commonality test “is qualitative rather than quantitative, that is, there need be only a single issue common to all members of the class.” In re American ,75 F.3d at 1080 (citing 1 Newberg, 3d ed., § 3.10, at 3-50). See also
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Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir. 1988) ( “mere fact that questions peculiar to each individual member of the class remain after the common questions of the defendant's liability have been resolved does not dictate the conclusion that a class action is impermissible”).
There is an important check on this requirement under Rule 23(b)(3). Subdivision (b)(3) parallels subdivision (a)(2) in that both require that common questions exist, but subdivision (b)(3) contains the more stringent requirement that common issues “predominate” over individual issues. In re American, 75 F.3d at 1084 (citing 1 Newberg, 3d ed., § 3.10, at 3-56); 2 Newberg, § 4.22, at 152-53. Conversely, if the predominance standard is met, the Rule 23(a)(2) prerequisite is necessarily satisfied. The Court finds issues of law and fact common to all members of the proposed class: (1) whether or not Defendants engaged in the Illegal Immigrant Hiring Scheme for financial gain in violation of RICO; and (2) whether the Illegal Immigrant Hiring Scheme wrongfully resulted in a depression of the Class’s wages. Both issues lie at the heart of each Plaintiff’s theory, and resolution of those questions could be dispositive. Therefore, the Court concludes commonality exists.9
3. The Requirement of Typicality Rule 23(a)(3) requires that “claims or defenses of the representative parties [be] typical of the claims or defenses of the class.” Fed.R.Civ.P. 23(a). “Typicality determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct.” In re American, 75 F.3d at 1082. Put another way, “when such a relationship is shown, a plaintiff's injury arises
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from or is directly related to a wrong to a class, and that wrong includes the wrong to the plaintiff.” Id. A plaintiff's claim is “typical” if it “arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory.” Id. (citing 1 Newberg, 3d ed., § 3.13, at 3-76 (footnote omitted)); General Tel. Co., 446 U.S. at 330, 100 S.Ct. at 1706 (“typicality requirement is said to limit the class claims to those fairly encompassed by the named plaintiffs' claims”); Senter, 532 F.2d at 525 n. 31 (“[t]o be typical, a representative's claim need not always involve the same facts or law, provided there is a common element of fact or law”). Where a named plaintiff's proving his own claim would not necessarily prove anyone else's claim, the typicality requirement is not satisfied. Sprague, 133 F.3d at 399. “A necessary consequence of the typicality requirement is that the representative's interests will be aligned with those of the represented group, and in pursuing his own claims, the named plaintiff will also advance the interests of the class members.” In re American, 75 F.3d at 1082. (citing 1 Newberg, 3d ed., § 3.13, at 3-75).
In this case, the named Plaintiffs’ injury is a typical result of Tyson’s alleged conduct, such that the Court may properly attribute a collective nature to the challenged conduct. Specifically, Plaintiffs allege their wages were depressed as a direct result of Tyson’s Illegal Immigrant Hiring Scheme. This injury is typical of the Class and it arises from the same conduct that gives claims to the proposed class members. The Court is convinced that in the named Plaintiffs’ pursuit of their own claims, the named Plaintiffs will also advance the interests of the class members. Thus, the Court finds the named Plaintiffs’ claims are typical of the claims of the Class.
4. The Requirement of Adequacy of representation Rule 23(a)(4) allows certification only if “the representative parties will fairly and adequately
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protect the interests of the class.” Fed.R.Civ.P. 23(a). This prerequisite is essential to due process, because a final judgment in a class action is binding on all class members. Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940); 1 Newberg, § 3.21, at 408. See also Smith v. Babcock, 19 F.3d 257, 264 n. 13 (6th Cir. 1994)(“[n]o class should be certified where the interests of the members are antagonistic, because the preclusive effect of the verdict may deprive unnamed class members of their right to be heard”). In Senter, the Sixth Circuit articulated two criteria for determining adequacy of representation: “1) the representative must have common interests with unnamed members of the class, and 2) it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel.” In re American, 75 F.3d at 1083 (citing Senter, 532 F.2d at 525; Cross, 553 F.2d at 1031 (Rule 23(a)(4) tests “the experience and ability of counsel for the plaintiffs and whether there is any antagonism between the interests of the plaintiffs and other members of the class they seek to represent”); Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. at 2370 n. 13 (“adequacy of representation requirement . . . also raises concerns about the competency of class counsel and conflicts of interest”)). The adequate representation requirement overlaps with the typicality requirement because in the absence of typical claims, the class representative has no incentives to pursue the claims of the other class members. Id.
The Court finds both required criteria are present in this case. First, the named Plaintiffs have a common interest with the Class in being compensated for their alleged injury caused by Tyson’s Illegal Immigrant Hiring Scheme. Second, the Court has no doubt Plaintiffs will vigorously prosecute the interests of the Class through qualified counsel. Plaintiffs’s counsel represents he has the resources necessary to handle class-action litigation and currently represents other Plaintiffs alleging similar RICO violations in other cases pending in sister circuits. The Court has no reason
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to question counsel’s representation. Therefore, the Court finds the named Plaintffs will fairly and adequately protect the interests of the Class.
B. Additional Requirements of Rule 23(b)(3) Rule 23(b)(3) requires the Court to find “that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3). Rule 23(b)(3) employs a four-factor test addressed to the general questions of whether the common questions of law and fact of class members predominate over individual questions of class members, and whether a class action is a superior, fair and efficient method for adjudicating the controversy. Saur v. Snappy Apple Farms, Inc., 203 F.R.D. 281, 288 (W.D. Mich. 2001). The first part of Rule 23(b)(3) is commonly known as the predominance test. 2 Newberg, § 4.23, at 153. The Court will refer to the second part of Rule 23(b)(3) as the "superiority requirement." Defendants claim Plaintiffs have failed to meet their burden with respect to both Rule23(b)(3) requirements. The Court will address both arguments. Factors to consider under the Rule are specifically noted in the Rule. According to Rule 23(b)(3), the matters pertinent to the predominance test include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. The Court will address these four matters in turn.
1. Individual interest in controlling claims
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First, the Court must consider the extent to which the individual class members have a strong interest in individually controlling their claims. Saur, 203 F.R.D. at 289. Defendants’ response did not discuss this factor. Plaintiffs’ Complaint states the “individual amounts of damages involved, while not insubstantial, are generally not large enough to justify individual actions” and the “costs of the individual actions would unreasonably consume the individual amounts that would be recovered” (Court File No. 115, ¶ 21(a)-(b)). In this case, as in Saur, the Court deems the “interest in individual law suits is minimal in that the class mechanism allows class members for a more effective and far reaching remedy than would be available to them on an individual basis.” Saur, 203 F.R.D. at 289. As a result, the Court finds this factor weighs heavily in favor of granting Plaintiffs’ motion for class certification.
2. Extent and nature of other litigation in this matter Second, the Court must consider the extent and nature of any litigation already commenced by or against members of the class. Again, Defendants’ response did not discuss this factor. As in Saur, Plaintiffs and their counsel are “unaware of any other litigation concerning the controversy that has been commenced by any member of the class” (Court File No. 123, p. 23). The Court is also unaware of any other litigation concerning these allegations. Tyson has not brought to the Court’s attention any other such litigation. The Court finds this factor weighs in favor of granting Plaintiffs’ motion for class certification.
3. Desirability of concentrating litigation in this forum Third, the Court must consider the desirability of concentrating this suit in this forum. “In the class action context, the desirability of concentrating claims in a particular forum is relevant only when other class litigation has already been commenced else where.” 2 Newberg, § 4.31, at 268.
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Defendants’ response contains a section entitled “Geographic Considerations” but the section discusses how the eight different plant locations result in “individualized issues of injury and damages.” (Court File No. 139 at 18). The section does not discuss the desirability of concentrating this suit in this forum, nor can the Court identify any other section in Defendants’ response which addresses this factor. This forum is a suitable forum for handling this suit because the Complaint was filed in this district10 and the Court has been handling the case since 2002. As a result of the Court’s involvement in this case, it has gained considerable familiarity with the facts and the applicable law. Also as mentioned above, the Court is unaware of any other litigation concerning these claims in any other jurisdiction. The litigation of this suit here would not pose any significant problems in terms of the Court's docket or attention to other matters. Therefore, the Court finds this factor weighs in favor of granting Plaintiffs’ motion for class certification.
4. Manageability Fourth, the Court is required to consider any difficulties likely to be encountered in the management of this suit. Of the four factors listed in Rule 23(b), manageability is the “most hotly contested and the most frequent ground for holding that a class action is not superior.” 2 Newberg, § 4.32, at 269. It is important to note the rule lists management difficulties as a matter to be considered “when comparing the class action device to other methods of adjudicating the controversy.” Id. (emphasis added). A class action is improper only when “such difficulties make a class action less fair and efficient than some other method, such as individual interventions or consolidation of individual lawsuits.” Id.(citing Reiter v. Sonotone Corp., 442 U.S. 330, 346
10Lead plaintiff Birda Trollinger was employed and “victimized by the Illegal Immigrant Hiring Scheme” at the Shelbyville, Tennessee chicken processing plant, which is located in this district (Court File No. 115, ¶ 15).
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(1979)(antitrust)(allowing consumers to sue for alleged antitrust violations would not result in “administrative chaos, class action harassment, or ‘windfall’ settlements if the district court exercise sound discretion and use the tools available”).
Defendants’ memorandum directly addresses this factor. Tyson contends “Plaintiffs have failed to satisfy the predominance requirement of Rule 23(b)(3). Establishing liability, injury and damages would require detailed, particularized proof of numerous individual issues.”(Court File No. 139 at 7). Defendants’ assert “neither liability nor injury damages can be established on a classwide basis” in this case (id. at 8). Further, Tyson attacks Plaintiffs’ methodology in determining the requisite number of RICO violations. As a result, Defendants assert individual issues relating to liability, injury and (calculation of) damages undermine any efficiencies of proceeding as a class action.
a. Liability “It is particularly important at this point to focus on the task before the court in considering a motion for class certification. The court is not to consider the merits of the claim; . . . . Instead, the court is only to consider whether the type of proof offered by plaintiffs . . . will be of classwide character such that class action treatment of the case will be superior to myriad individual actions." Zuccarini v. Hoechst (In re Cardizem CD Antitrust Litig.), 200 F.R.D. 326, 350 (E.D. Mich. 2001) (citing In re Commercial Tissue Products, 183 F.R.D. 589, 596 (N.D. Fla. 1998)). The relevant inquiry here is whether generalized evidence exists which will prove or disprove Plaintiffs' claims on a simultaneous, class-wide basis. Id. As mentioned above, the Plaintiffs’ claims of Tyson’s liability under the alleged RICO violations pertain to common issues of law and fact. Defendants claim it would be unmanageable
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to prove that it “knowingly” hired 560 illegal immigrants at its facilities (Court File No. 139 at 8-13, 23-24). In its reply brief, Plaintiffs point out they “intend to prove the “knowledge” requirement through Defendants’ use of the ‘Willful Blindness Policy’” (Court File No. 144 at 2) (citing Court File No. 115 at ¶ 24). Plaintiffs allege this policy is “Tyson’s institutionalized, regularized method of knowingly hiring illegal immigrants.” (Court File No. 144 at 2).
Tyson alleges the Plaintiffs’ proposal of identifying illegal workers employed by Defendants’ is unmanageable. The Court is persuaded the combination of methods identified by Plaintiffs’ are sufficient to show litigation in the form of a class action is preferable to any other method of adjudicating this controversy. Improperly completed I-9 forms will be cross-checked against mismatched Social Security names and numbers, Tyson’s own internal identity investigations and third party notifications as outlined in Plaintiffs’ memorandum and reply briefs. Provided the Plaintiffs will only include employees who were terminated by Tyson for using fake or false documentation, the Court finds that Plaintiffs will be able to identify illegal workers in a reasonably reliable and manageable way.
b. Injury and damages calculation Defendants next argue Plaintiffs are unable to prove injury and damages on a class-wide basis. Plaintiffs allege the centralized “Willful Blindness Policy” predominates over any individual issues as to causation and damages. As the Plaintiffs allege the wage rates were depressed for all workers as a result of the RICO violations, the fact that class-wide damages resulted from the RICO violations goes to the merits of Plaintiffs’ claim. Such consideration is improper in the classcertification determination. Defendants’ class-wide damages argument goes to the difficulty and imprecision of
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Case 4:02-cv-00023 Document 182 Filed 10/10/2006 Page 19 of 22
calculating damages on a class-wide basis, alleging individual characteristics of the eight chickenprocessing plants predominate over the common issues of fact and law. Defendants’ expert’s declaration attacks Plaintiffs’ expert’s proposed method of damages calculation of damages because each plaint’s individual characteristics makes their impact on wages “not consistent across time or plants and is difficult to isolate”(Court File No. 139, Attachment 2, ¶96). Similar arguments were made by the defendants in Mendoza v. Zirkle Fruit Co., a case which also involves an alleged hiring scheme of illegal alien employment which resulted in wage depression. Mendoza v. Zirkle Fruit Co., 222 F.R.D. 439, 447 (E.D. Wash. 2004)(“[t]he defendants assert that the impact of the alleged hiring scheme upon the plaintiffs' wages will vary dramatically from employee to employee based upon a number of factors. These include the site at which the employee worked; the type of job he performed; and whether he was paid by the hour or by his productivity”).
At this point, the Court is not concerned with these asserted deficiencies. In ruling on Plaintiffs' class certification motion, the Court need not determine whether or not the expert’s, Professor Borjas’s, damage calculation model can survive a Daubert challenge, whether the underlying data is sufficiently accurate and reliable to adequately support his opinion, or whether Plaintiffs' wage suppression evidence on the whole will be sufficient to withstand a Rule 56 motion. Bert v. AK Steel Corp., 2006 WL 1071872,* 7 (S.D. Ohio April 24, 2006). At the class certification stage, “it is not necessary to identify specific benchmarks or methodology to ascertain the amount of damages.” Zuccarini, 200 F.R.D. at 349. “‘It is sufficient to note at this stage that there are methodologies available, and that Rule 23(c)(1) and (d) allow ample flexibility’ to deal with the individual damages issues that may develop.” Id. (stating “Defendants' complaints that Plaintiffs' methodology and its damage calculations are too imprecise for class certification are to no avail”)
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Case 4:02-cv-00023 Document 182 Filed 10/10/2006 Page 20 of 22
(citing In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 522 (S.D.N.Y. 1996)). See also In re NASDAQ, 169 F.R.D. at 528 (“Courts are generally loath to deny class certification based on speculative problems with case management,” concluding doing so violates the purpose of Rule 23).
At this stage, Plaintiffs are required to establish a “colorable” basis for establishing damages. J.B.D.L. Corp. v. Wyeth-Ayerst Labs., Inc., 225 F.R.D. 208, 219 (S.D. Ohio 2003) (at the class certification stage, the “Court's task is not to determine whether any of [plaintiff’s expert’s methods of proving class-wide impact] are ultimately meritorious but rather whether they are "colorable" and not "fatally flawed"). In Mendoza, the district court stated
the jury will be asked to determine the rates of compensation that various jobs would have merited but for the alleged hiring scheme. Once the jury establishes the rates that should have been paid (if, in fact, the jury finds for plaintiffs), the jury can apply those rates to particular employees. This should not be an insurmountable task if, as seems to be the case, the defendants have records of the hours worked by their employees and the rates at which the employees were paid. Thus, the need for individual damage calculations does not preclude a finding of predominance. Mendoza, 222 F.R.D. 447-48(citing Blackie v. Barrack, 524 F.2d 891, 905 (1975)(“The amount of damages is invariably an individual question and does not defeat class action treatment.”)).11 The Court finds the reasoning in Mendoza persuasive and applicable to the facts in this case. Therefore, the Court concludes the individual damage calculations do not preclude a finding of predominance or manageability. As in Saur, the Court finds “no significant problems associated with the class action mechanism and the use of the mechanism appears likely to achieve economies of time, effort and expense in resolving legal issues of class members.” Saur, 203 F.R.D. at 289. The maintenance of
11Blackie continues to be cited for this provision. Smilow v. Southwestern Bell Mobile Sys., 323 F.3d 32, 40 (1st Cir. 2003).
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Case 4:02-cv-00023 Document 182 Filed 10/10/2006 Page 21 of 22
the class action is likely to delay trial, but not significantly. The Court is convinced the Class will be manageable. Indeed, the inefficiencies presented by a contrary result are massive
Separate proceedings would produce duplicate efforts, unnecessarily increase the costs of litigation, impose an unwarranted burden on this Court and other courts throughout the country, and create the risk of inconsistent results for similarly situated parties. Additionally, the cost associated with individual claims may require claimants with potentially small claim amounts to abandon otherwise valid claims simply because pursuing those claims would not be economical. In re Polypropylene Carpet Antitrust Litig., 178 F.R.D. 603, 625 (N.D. Ga. 1997). Overall, the factors specified in the Rule favor a conclusion that common questions predominate over individual questions and that a class action is a superior, fair and efficient method of adjudication. Therefore, the Court finds the Class qualifies for certification under 23(b)(3).
IV. CLASS MANAGEMENT CONFERENCE Given that the Court has decided the law requires it to grant class certification under Rule
23(b)(3), the Court must direct to class members the best notice of this action and to provide them an opportunity to "opt out." The Court under Rule 23(d) is authorized to make such appropriate orders as will advance the litigation and the best interest of justice. Accordingly, the court will set a Management Conference at 10:00 a.m. on January 29, 2007, in chambers, Room 317, 900 Georgia Avenue, Chattanooga, Tennessee, to discuss the requirement of Rule 23(b)(3) and such other matters as will ensure this case proceeds expeditiously and fairly.
V. CONCLUSION In accordance with this Memorandum, an Order shall enter granting the Motion for Class
Certification (Court File No. 123).
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Case 4:02-cv-00023 Document 182 Filed 10/10/2006 Page 22 of 22 /s/ CURTIS L. COLLIER CHIEF UNITED STATES DISTRICT JUDGE
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE
at WINCHESTER

BIRDA TROLLINGER, VIRGINIA

)

BRAVO, KELLY KESSINGER,

)

IDOYNIA MCCOY, REGINA LEE,

)

PATRICIA MIMS, LORI WINDHAM

)

and ALEXANDER HOWLETT,

)

individually and on behalf of all others

)

similarly situated

)

)

Plaintiffs,

)

)

v.

)

)

TYSON FOODS, INC., JOHN TYSON, )

ARCHIBALD SCHAFFER III, RICHARD )

BOND, KENNETH KIMBRO, GREG

)

LEE, KAREN PERCIVAL, AHRAZUE )

WILT and TIM MCCOY,

)

)

Defendants.

)

No. 4:02-cv-23 Edgar

MEMORANDUM Plaintiffs Birda Tollinger, Robert Martinez, Tabetha Eddings, and Doris Jewell bring this action against defendant Tyson Foods, Inc. (“Tyson”) under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. Plaintiffs are former Tyson employees. They seek to bring this action individually and on behalf of other similarly situated persons. Plaintiffs allege that Tyson engaged in a scheme to reduce labor costs by hiring illegal immigrants to work in Tyson's Shelbyville, Tennessee plant in violation of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1324(a)(1). They further allege that

Tyson's “illegal hiring scheme” involved a pattern of racketeering activity, which served to depress plaintiffs' wages. Plaintiffs seek treble damages and injunctive relief.1
Presently before the Court are two motions: (1) Tyson's motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted (Court File No. 11), and (2) Tyson's motion to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction (Court File No. 9). Tyson contends that plaintiffs lack standing to bring this lawsuit because their alleged injury does not meet RICO's stringent proximate cause requirements. Tyson also argues that plaintiffs cannot establish the elements of a RICO claim and that any such claim is preempted by the National Labor Relations Act, (“NLRA”), 29 U.S.C. § 151 et. seq. For the following reasons, Tyson's motion to dismiss under Fed. R. Civ. P. 12(b)(6) (Court File No. 11) shall be GRANTED, and Tyson's motion to dismiss under Fed. R. Civ. P. 12(b)(1) (Court File No. 9) is DENIED. This case shall be DISMISSED WITH PREJUDICE. I. Background
The following factual findings are made solely for purposes of ruling on the present motions. Tyson is reportedly the world's largest processor and marketer of poultry. (Complaint ¶ 1). Plaintiffs worked as hourly employees at Tyson's facility in Shelbyville, Tennessee, at various times since 1996. (Complaint ¶¶ 6, 39). At all relevant times, plaintiffs were represented by the Retail, Wholesale and Department Store Union, AFL– CIO (“Union”).
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    1	  Also pending before the Court is United States v. Tyson Foods, Inc., et al., No. 4:01–cr–
61, a criminal case in which Tyson is charged with various immigration law violations.
	  

The Union, as plaintiffs' exclusive bargaining representative, negotiated with Tyson about the terms and conditions of plaintiffs' employment. Those terms and conditions of employment were memorialized in a collective bargaining agreement (“CBA”), several provisions of which are relevant to this case. The CBA contains a wage scale, in accordance with which all plaintiffs were paid by Tyson. (1999 CBA, Art. XX). Additionally, the CBA addresses the issue of temporary labor. Pursuant to the CBA's terms, Tyson maintained the right to use temporary labor. The number of temporary employees employed at the Shelbyville plant at any time cannot exceed 200. Tyson cannot not offer overtime work to temporary employees until full-time employees have been offered the work. (CBA, Art. III, ¶ 4).
Plaintiffs allege that Tyson engaged in an illegal hiring scheme in an effort to reduce labor costs as follows. Tyson works with a number of recruiters and temporary employment agencies to identify qualified candidates for unskilled labor positions. (Complaint ¶ 19). Those recruiters and temporary agencies identify illegal immigrants as candidates for such positions. They induce illegal immigrants to work for Tyson by providing transportation to Tyson's facility, housing, and other amenities. (Complaint ¶ 19). Tyson pays the recruiters and temp agencies a fee for each illegal immigrant worker it hires. (Complaint ¶ 20).
Plaintiffs further allege the following details. Tyson requires the recruiters and temp agencies to coach illegal immigrants to deny having been smuggled into the United States and to provide those individuals with verification documents. (Complaint ¶ 22). Plaintiffs allege that most of the illegal immigrants who eventually work for Tyson are recruited in Mexico, smuggled across the border, and transported to Tyson's facilities.

Tyson is allegedly aware that these workers are in this country unlawfully and that their documentation is false. Plaintiffs assert that Tyson's hiring of illegal immigrants served to depress the wages they were paid by Tyson. II. RICO Claim A. Standard of Review
Under Fed. R. Civ. P. 12(b)(6), a complaint shall be dismissed if it fails to state a claim upon which relief can be granted. The purpose of Rule 12(b)(6) is to permit a defendant to test whether, as a matter of law, the plaintiff is entitled to relief even if everything alleged in the complaint is true. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993); Nishiyama v. Dickson County, Tennessee, 814 F.2d 277, 279 (6th Cir.1987). A complaint should only be dismissed under Rule 12(b)(6) if no set of facts supporting the complaint would entitle the plaintiff to relief. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Saglioccolo v. Eagle Ins. Co., 112 F.3d 226, 228 (6th Cir.1997).
To avoid dismissal under Rule 12(b)(6), a complaint must contain direct or inferential allegations comprising all essential, material elements necessary to sustain a claim under a viable legal theory. Lewis v. ACB Business Services, Inc., 135 F.3d 389, 406 (6th Cir.1998). The Court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded allegations of fact as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Factual allegations capable of more than one reasonable inference must be construed in the plaintiff's favor. Saglioccolo, 112 F.3d at 228. The Court may not grant a Rule 12(b)(6) motion to dismiss simply because the Court does not believe the allegations of fact in the complaint. In re Sofamor Danek

Group, Inc., 123 F.3d 394, 400 (6th Cir.1997); Saglioccolo, 112 F.3d at 228–29. The Court does not, however, have to accept mere legal conclusions and unwarranted inferences of fact. Lewis, 135 F.3d at 405; Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir.1998). B. Analysis
In its motion to dismiss for failure to state a claim, Tyson challenges, among other things, the plaintiffs' ability to meet RICO's stringent proximate cause requirement. To sustain a RICO cause of action, the plaintiffs must “plead and prove an actual injury to its business or property ‘by reason of’ a defendant's 1962 transgression.” Pik–Coal Co. v. Big Rivers Elec. Corp., 200 F.3d 884, 889 (6th Cir.2000). Because of the punishment imposed by RICO's treble multiplier, damages must be made on “competent proof, not based upon mere speculation and surmise.” Fleischhauer v. Feltner, 879 F.2d 1290, 1299 (6th Cir.1989).
The Supreme Court has said that RICO, by analogy to the Clayton Act, requires that there be a “direct relation between the injury asserted and the injurious conduct alleged.” Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 268, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992). Thus, even if RICO plaintiffs can provide some evidence to trace their damages to a RICO violator, they cannot recover unless those damages were caused directly by the violator, and not indirectly via some third party. Id. at 268–69, 112 S.Ct. 1311; Pik–Coal Co., 200 F.3d at 889–91; Firestone v. Galbreath, 976 F.2d 279, 285 (6th Cir.1992); Sanders Confectionery Prods., Inc. v. Heller Fin., Inc., 973 F.2d 474, 487 (6th Cir.1992). One rationale for this proposition is that “... the less direct an injury is, the more difficult it becomes to ascertain the amount of a plaintiff's damages attributable to

the violation, as distinct from other, independent, factors.” Holmes, 503 U.S. at 269, 112 S.Ct. 1311.
While plaintiffs contend that they suffered damage, RICO requires that a direct, proximate causal relationship be established between the defendant's actions and the resulting damage. Plaintiffs' RICO case cannot survive this motion to dismiss if it is evident from the pleadings that independent factors exist which had an impact on the plaintiffs' economic loss. In short, the plaintiffs must allege (and ultimately prove) that they directly suffered loss of wages because Tyson employed illegal aliens.
One district court recently considered another “illegal aliens” RICO case. In that case, the court found that plaintiffs failed “to allege a sufficiently nonspeculative financial loss that resulted from defendant's wrongdoing ....” Mendoza v. Zirkle Fruit Co., 2000 WL 33225470 (E.D.Wash. Sept. 27, 2000). The plaintiffs employees alleged that their employer fruit companies had engaged in unlawful schemes to hire illegal aliens resulting in the depression of plaintiffs' wages. The court noted that a “wide range of factors” influenced wages for orchard workers in the Yakima Valley of Eastern Washington. For example, plaintiffs' wages could have been affected by those other employers paid, the availability of workers, the profitability of the defendant's businesses, and other factors that influence any labor market. 2000 WL 33225470, at *10.
That reasoning applies equally to the present case before this Court. Additionally, in the case at bar, another significant factor affects wage rates. The plaintiffs were represented by the Union, which negotiated a collective bargaining agreement on their behalf. The CBA governed plaintiffs' wage rates. As the wage rates were the product of collective bargaining, plaintiffs cannot demonstrate that those rates were ultimately

depressed by the presence of alleged illegal aliens in the work force. In sum, the conclusion that Tyson's hiring of alleged illegal aliens depressed the plaintiffs' wages would require sheer speculation.
As plaintiffs point out, they have alleged that they are direct victims of illegal immigrant hiring. However, this Court need not credit mere legal conclusions and unwarranted inferences of fact. See LRL Props. v. Portage Metro Hous. Auth., 55 F.3d 1097, 1103 (6th Cir.1995). The Court cannot ignore reality and the basic rules of economics. Plaintiffs have made only a conclusory allegation that they have been damaged, and have not backed that allegation up with any assertion as to how that damage has occurred. Additionally, they have not advanced any rationale for connecting the hiring of illegal aliens to wage depression. Tyson's motion to dismiss under Fed. R. Civ. P. 12(b)(6) (Court File No. 11) shall be GRANTED.
In deciding this motion, the Court has considered the relevant collective bargaining agreements between the Union and Tyson. As a technical matter, the existence of these collective bargaining agreements was not pled by the plaintiffs. However, the collective bargaining agreements were properly raised, and have been considered by the Court in connection with, Tyson's Fed. R. Civ. P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Their existence may be judicially noticed, and it may therefore be considered in connection with this Rule 12(b)(6) motion. Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, Civil 2d § 1363. III. Subject Matter Jurisdiction
Tyson argues, in it's Fed. R. Civ. P. 12(b)(1) motion, that plaintiffs' RICO claim is preempted by the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq.,

because it falls within the primary jurisdiction of the National Labor Relations Board (“NLRB” or “Board”) and cannot be entertained by this Court.
There are several issues here which involve whether or not the RICO claim now presented to this Court is preempted by virtue of San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), and its progeny. One of those issues is whether or not Tyson can bear the burden of demonstrating that its conduct in allegedly depressing wages by hiring illegal aliens could be protected or prohibited by the National Labor Relations Act, (“NLRA”), 29 U.S.C. § 151 et. seq. This issue is somewhat murky, and this Court is not prepared to say at this time that it lacks subject matter jurisdiction. Accordingly, Tyson's motion to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction (Court File No. 9) shall be DENIED.
A judgment shall enter.
R. ALLAN EDGAR UNITED STATES DISTRICT JUDGE

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE
at WINCHESTER

BIRDA TROLLINGER, VIRGINIA

)

BRAVO, KELLY KESSINGER,

)

IDOYNIA MCCOY, REGINA LEE,

)

PATRICIA MIMS, LORI WINDHAM

)

and ALEXANDER HOWLETT,

)

individually and on behalf of all others

)

similarly situated

)

)

Plaintiffs,

)

)

v.

)

)

TYSON FOODS, INC., JOHN TYSON, )

ARCHIBALD SCHAFFER III, RICHARD )

BOND, KENNETH KIMBRO, GREG

)

LEE, KAREN PERCIVAL, AHRAZUE

)

WILT and TIM MCCOY,

)

)

Defendants.

)

No. 4:02-cv-23 Edgar

MEMORANDUM Plaintiffs Birda Trollinger, Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, and Alexander Howlett (collectively “Plaintiffs”) bring this action against Tyson Foods, Inc., John Tyson, Archibald Schaffer III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, and Tim McCoy (collectively “Tyson”) alleging violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. (“RICO”). [Court Doc. No. 115, Second Amended Complaint]. Plaintiffs are former Tyson employees. Id. Plaintiffs assert that Tyson engaged in an ongoing scheme to hire illegal immigrants which depressed the wages paid to Plaintiffs below the wages Tyson would have needed to pay Plaintiffs had they not engaged in the allegedly illegal immigrant hiring scheme. Id. Plaintiffs also seek to certify this action as a class action lawsuit; however, this

Case 4:02-cv-00023 Document 157 Filed 02/08/06 Page 1 of 13 PageID #: 213

Court has not yet ruled on Plaintiffs’ class certification motion. [See Court Doc. No. 121]. Tyson moves for summary judgment dismissal of the claims filed against it by Idoynia
McCoy and Regina Lee based on statute of limitations grounds under RICO. [Court Doc. No. 141]. Plaintiffs oppose the motion arguing that the separate accrual rule should apply and Tyson should be liable for the hiring of illegal immigrants occurring within the statute of limitations period. After reviewing the undisputed record, the Court concludes that Tyson’s motion for summary judgment will be DENIED. I. Background
The relevant facts of this narrow motion are clear and undisputed. Plaintiffs filed their first complaint in this action on April 2, 2002. [Court Doc. No. 1]. Plaintiffs designated Idoynia McCoy and Regina Lee as named plaintiffs in the second amended complaint. [Court Doc. No. 115]. Ms. McCoy commenced working at Tyson’s Ashland, Alabama plant in 1977. [Court Doc. No. 143-2, Deposition of Idonyia (sic) McCoy (“McCoy Dep.”), pp. 15-16]. Ms. McCoy left Tyson in 1979 and returned in 1980 where she continued to work until Tyson terminated her in 1998. Id. at pp. 17, 29. Ms. McCoy discovered that Tyson’s alleged illegal immigrant hiring scheme was depressing her wages in 1997. [Court Doc. No. 143-3, Continued Deposition of Idoynia McCoy (“Con’t. McCoy Dep.”), p. 66]. She asserts that Tyson’s illegal immigrant hiring scheme continued until her termination in 1998. McCoy Dep., p. 51, 108-09, 120.
Ms. Lee began working at Tyson’s Heflin, Alabama plant in 1982. [Court Doc. No. 1434, Deposition of Regina Lee (“Lee Dep.”), pp. 42-43]. Ms. Lee left Tyson for some time between 1983 and 1984 and returned to work at Tyson in 1984. Id. at 45-47, 50-51. She worked continuously at Tyson from 1984 to 2004. Id. at 51, 111, 113. Ms. Lee first discovered that her
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wages were being depressed due to Tyson’s alleged hiring of illegal immigrants in 1996 or 1997. Id. at 208; [Court Doc. No. 143-5, Continued Deposition of Regina Lee (“Con’t. Lee Dep.”), p. 135]. Ms. Lee asserts that the alleged wage depression has continued from 1996 until when she terminated her employment with Tyson in 2004. Lee Dep., pp. 171-172; Con’t. Lee Dep., p. 11, 135. II. Standard of Review
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The burden is on the moving party to show conclusively that no genuine issue of material fact exists, and the Court must view the facts and all inferences to be drawn therefrom in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Morris v. Crete Carrier Corp., 105 F.3d 279, 280-81 (6th Cir. 1997); White v. Turfway Park Racing Ass’n, Inc., 909 F.2d 941, 943 (6th Cir. 1990); 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987).
Once the moving party presents evidence sufficient to support a motion under Fed. R. Civ. P. 56, the nonmoving party is not entitled to a trial merely on the basis of allegations. The nonmoving party is required to come forward with some significant probative evidence which makes it necessary to resolve the factual dispute at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); White, 909 F.2d at 943-44; 60 Ivy Street, 822 F.2d at 1435. The moving party is entitled to summary judgment if the nonmoving party fails to make a sufficient showing on an essential element of the nonmoving party’s case with respect to which the nonmoving party has the burden of proof. Celotex, 477 U.S. at 323; Collyer v.
-3-
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Darling, 98 F.3d 211, 220 (6th Cir. 1996). The judge’s function at the point of summary judgment is limited to determining whether
sufficient evidence has been presented to make the issue of fact a proper jury question, and not to weigh the evidence, judge the credibility of the witnesses, and determine the truth of the matter. Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); 60 Ivy Street, 822 F.2d at 1435-36. “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252; see also Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 140 (6th Cir. 1997). If the Court concludes that a fair-minded jury could not return a verdict in favor of the nonmoving party based on the evidence presented, it may enter a summary judgment. Anderson, 477 U.S. at 251-52; University of Cincinnati v. Arkwright Mut. Ins. Co., 51 F.3d 1277, 1280 (6th Cir. 1995); LaPointe v. UAW, Local 600, 8 F.3d 376, 378 (6th Cir. 1993). III. Analysis
Tyson argues that Ms. McCoy’s and Ms. Lee’s claims are barred by the statute of limitations under RICO. Plaintiffs allege that the illegal hiring of immigrants continued until the dates of Ms. Lee’s and Ms. McCoy’s terminations. Thus, they argue, each new illegal immigrant hired within the limitations time period constituted a new injury under RICO for which they may recover under the “separate accrual rule.”
RICO provides that: It shall be unlawful for any person employed by or associated with any
enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of
-4-
Case 4:02-cv-00023 Document 157 Filed 02/08/06 Page 4 of 13 PageID #: 216

unlawful debt. 18 U.S.C. § 1962(c). As the U.S. Supreme Court has noted, ‘“racketeering activity’ is a term of art defined in terms of activity that violates other laws, including more than 50 specifically mentioned federal statutes, which forbid, for example, murder-for-hire, extortion, and various kinds of fraud.” Klehr v. A.O. Smith Corp., 521 U.S. 179, 182, 117 S.Ct. 1984, 1987 (1997). RICO also allows that “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorneys’ fee. . .” 18 U.S.C. § 1964(c). Although RICO itself does not provide a statute of limitations for such claims, the U.S. Supreme Court has held that actions pursuant to 18 U.S.C. § 1964(c), known as civil RICO actions, are subject to a 4-year limitations period. Klehr, 521 U.S. at 182. The Supreme Court borrowed the statute of limitations from the Clayton Act, 15 U.S.C. § 15b, finding it to be analogous to civil RICO claims. Id. at 182, 188-89.
Determining when a civil RICO cause of action accrues has been a source of some confusion, however. The Supreme Court outlined the confusion in Klehr, and in that case, rejected the “last predicate act” rule for accrual of civil RICO claims. 521 U.S. at 186. The “last predicate act” rule provided that “the accrual period shall run from the time when the plaintiff knew or should have known of the last injury or the last predicate act which is part of the same pattern of racketeering activity. The last predicate act need not have resulted in injury to the plaintiff but must be part of the same pattern.” Id. (quoting Keystone Ins. Co. v. Houghton, 863 F.2d 1125, 1130 (3d Cir. 1988)). The Supreme Court declined, however, to indicate which of the three remaining possible accrual rules, the “injury rule”, the “injury and pattern discovery
-5-
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rule”, or the “injury discovery rule”, was the correct accrual rule for civil RICO actions. Klehr, 521 U.S. at 191-93.
In 2000 the Supreme Court eliminated another of the possible civil RICO accrual rules, the “injury discovery and pattern” rule. See Rotella v. Wood, 528 U.S. 549, 120 S.Ct. 1075 (2000). The Court rejected the “injury and pattern discovery rule” as
an extension of the traditional federal accrual rule of injury discovery, and unwarranted by the injury discovery rule’s rationale. Federal courts, to be sure, generally apply a discovery accrual rule when the statute is silent on the issue, as civil RICO is here. . . . But in applying a discovery accrual rule, we have been at pains to explain that discovery of the injury, not discovery of the other elements of a claim, is what starts the clock. Id. at 555, 120 S.Ct. at 1081 (citations omitted). In a recent opinion by the Sixth Circuit, Sims v. Ohio Casualty Ins. Co., the Sixth Circuit relied on Rotella and noted that the 4-year statute of limitations for civil RICO actions “begins to run when a party knew, or through exercise of reasonable diligence should have discovered, that the party was injured by a RICO violation.” 151 Fed. Appx. 433, 435 (6th Cir. 2005)(relying on Rotella, 528 U.S. at 553-55). The Sixth Circuit has also made clear that “plaintiffs need not be aware of every minute fact underlying their RICO claims.” Sims, 151 Fed. Appx. at 436. Thus, the Sixth Circuit applies an “injury discovery” rule. Other Circuit Courts of Appeals have applied the “separate accrual” rule, in addition to the “injury discovery” rule. In Bankers Trust Co. v. Rhoades, the Second Circuit established the separate accrual rule. 859 F.2d 1096 (2d Cir. 1988). In Bankers Trust the Second Circuit provided that: a plaintiff’s action accrues against a defendant for a specific injury on the date that plaintiff discovers or should have discovered that injury. . . . At a later date, when a new and independent injury is incurred from the same violation the
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plaintiff is again ‘injured in his business or property’ and his right to sue for damages from that injury accrues at the time he discovered or should have discovered that injury. The logical end result is that a plaintiff may sue for any injury he discovers or should have discovered within four years of the commencement of his suit, regardless when the RICO violation causing such injury occurred. 859 F.2d at 1103 (citations omitted). The Second Circuit reasoned that because the U.S. Supreme Court determined that the statute of limitations from the Clayton Act was the most appropriate limitations period to apply for civil RICO claims, the Clayton Act should also provide the accrual rule for civil RICO actions. Id. at 1104 (citing Agency Holding Corp. v. Malley-Duff & Assoc., Inc., 483 U.S. 143, 107 S.Ct. 2759, 2764, 2767, 97 L.Ed.2d 121 (1987)). The Court held that civil RICO actions are “subject to a rule of separate accrual.” Bankers Trust Co., 859 F.2d at 1105; see also In re Merrill Lynch Ltd. Partnerships Litigation, 154 F.3d 56, 58-59 (2d Cir. 1998). A “corollary rule” to the separate accrual rule is “that damages may not be recovered for injuries sustained as a result of acts committed outside the limitations period.” Grimmett v. Brown, 75 F.3d 506, 512 (9th Cir. 1996) (quoting State Farm Mut. Auto. Ins. Co. v. Ammann, 828 F.2d 4, 5 (9th Cir. 1987) (concurrence)). A number of other federal Circuit Courts of Appeal recognize the separate accrual rule, including the Fifth, Seventh, Eighth, Ninth, Tenth, and Eleventh. See McCool v. Strata Oil Co., 972 F.2d 1452,1465 (7th Cir. 1992) (citing Granite Falls Bank v. Henrikson, 924 F.2d 150, 154 (8th Cir. 1991), abrogated on other grounds by Rotella v. Wood, 528 U.S. 549, 120 S.Ct. 1075 (2000); Bivens Gardens Office Bldg., Inc. v. Barnett Bank, 906 F.2d 1546, 1554 (11th Cir. 1990), cert. denied, 500 U.S. 910, 111 S.Ct. 1695 (1991), abrogated on other grounds by Rotella v. Wood, 528 U.S. 549; Bath v. Bushkin, Gaims, Gaines & Jonas, 913 F.2d 817, 820 (10th Cir. 1990)), abrogated on other grounds by Rotella, 528 U.S. 549; Grimmett, 75 F.3d at 512; Love v. National Medical Enterprises, 230 F.3d 765,
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775 (5th Cir. 2000); Pilkington v. United Airlines, 112 F.3d 1532, 1535 (11th Cir. 1997). Thus, a majority of the Circuit Courts of Appeal apply the separate accrual rule in civil RICO actions.
A few courts have endeavored to analyze what types of injuries will restart the statute of limitations clock. In Grimmett the Ninth Circuit explained that “‘[T]wo elements characterize an overt act which will restart the statute of limitations: 1) It must be a new and independent act that is not merely a reaffirmation of a previous act; and 2) It must inflict new and accumulating injury on the plaintiff.’” 75 F.3d at 513 (quoting Pace Industries, Inc. v. Three Phoenix Co., 813 F.2d 234, 238 (9th Cir. 1987)). As the Seventh Circuit has noted “[d]ifferent injuries flowing from the same conduct are not usually actionable in separate lawsuits.” McCool, 972 F.2d at 1465 n.10. In addition, “[a] mere recharacterization or continuation of damages into a later period will not serve to extend the statute of limitations for a RICO action.” Pilkington, 112 F.3d at 1537.
In Bingham v. Zolt the Second Circuit determined that the separate accrual rule applied because the alleged injuries involved “a continuing series of fraudulent actions undertaken to divert and conceal assets and income.” 66 F.3d 553, 561 (2d Cir. 1995). The court found that the defendants used a “variety of schemes” and that “each illegal diversion constituted a new and independent legally cognizable injury to the estate.” Id. In Love, the Fifth Circuit determined that the separate accrual rule applied and that each time the plaintiff health insurance company became “obligated to pay a fraudulent (assumed) insurance claim submitted” by the defendants, it suffered an injury. 230 F.3d at 775. However, in Pilkington, a case involving allegations of ongoing harassment, the Eleventh Circuit faced an argument that each act of harassment against a non-union airline pilot following a pilot strike constituted a new and independent injury for
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purposes of civil RICO statute of limitations. 112 F.3d at 1537. The Eleventh Circuit initially noted that RICO did not cover personal injuries and determined that the ongoing harassment occurring within the limitations period did not constitute new and independent injuries, but was merely a continuation of the same injury that had been accumulating prior to the commencement of the statute of limitations period. Id. at 1536-38.
The Sixth Circuit has not specifically held that it applies the separate accrual rule to civil RICO actions. However, at least one other district court in this Circuit has applied the separate accrual rule, without specifically designating the rule as such. See James v. McCoy, 56 F.Supp.2d 919, 932-33 (S.D. Ohio 1998), aff’d 181 F.3d 101 (6th Cir. 1999). In James the district court held that although fraudulent activity that occurred prior to the commencement of the statute of limitations was time-barred, separate fraudulent activity that occurred within the statutory period gave rise to a new RICO claim. Id. at 933. The court held that the plaintiff’s “allegations of activity within the limitations period may give rise to an independent RICO claim, but they do not permit him to recover for the previous conduct which was discovered more than four years before this action was filed.” Id. at 934 (relying on Klehr, 521 U.S. at 190, 117 S.Ct. at 1991).
In applying the Clayton Act’s statute of limitations to civil RICO actions, the Supreme Court noted the similarities between the Clayton Act, 15 U.S.C. § 15b, and civil RICO lawsuits. See Klehr, 521 U.S. at 188-89. In Klehr, the Supreme Court also acknowledged the separate accrual rule without expressly approving it:
Some Circuits have adopted a ‘separate accrual’ rule in civil RICO cases, under which the commission of a separable, new predicate act within a 4-year limitations period permits a plaintiff to recover for the additional damages caused by that act. But, as in the antitrust cases, the plaintiff cannot use an independent,
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new predicate act as a bootstrap to recover for injuries caused by other earlier predicate acts that took place outside the limitations period. 521 U.S. at 190. Within the antitrust context of the Clayton Act, the Sixth Circuit applies a separate accrual rule. For example, in DXS, Inc. v. Siemens Medical Systems, Inc., an antitrust case applying 15 U.S.C. § 15b, the Sixth Circuit found that “an overt act by the defendant is required to restart the statute of limitations and the statute runs from the last overt act.” 100 F.3d 462, 467 (6th Cir. 1996) (citing Peck v. General Motors Corp., 894 F.2d 844, 848-49 (6th Cir. 1990) (per curiam)). In Barnosky Oils, Inc. v. Union Oil Company of California, the Sixth Circuit noted that “[w]hen a continuous antitrust violation is alleged, a cause of action accrues each time a plaintiff is injured by an act of the defendants.” 665 F.2d 74, 81 (6th Cir. 1981). A majority of the Circuit Courts of Appeal have applied the separate accrual rule to civil RICO actions. Further, the Sixth Circuit has applied the separate accrual rule in the analogous antitrust context. At least one other district court in this Circuit appears to have applied the separate accrual rule in the civil RICO context. For these reasons, this Court will apply the separate accrual rule in this action. The question remains whether the separate accrual rule applies in this action. Plaintiffs’ theory is that Tyson engaged in an illegal immigrant hiring scheme in which Tyson allegedly hired illegal aliens which in turn depressed the wages that legal U.S. citizens could earn by working at Tyson. They argue that each time Tyson hired an illegal immigrant, such hiring constituted a new and independent injury causing independent damages. The Court agrees that, based on Plaintiffs’ alleged theory and viewing the facts in the light most favorable to the Plaintiffs, each time Tyson unlawfully hired an illegal immigrant, the Plaintiffs sustained an
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injury to their business. Tyson cites two cases in other jurisdictions in support of its position that the alleged
illegal immigrant hiring scheme constituted one ongoing injury. See Sasser v. Amen, 2001 WL 764953 (N.D. Cal. 2001); Pharr v. Evergreen Gardens, Inc., 2004 WL 42262 (S.D.N.Y. 2004). In Pharr, a civil RICO suit, the district court addressed whether the separate accrual rule applied where plaintiffs alleged that the defendant, a landlord company, sent false monthly rental invoices that contained unlawful and hidden fees. 2004 WL 42262 at *1. The district court determined that the monthly rental checks sent within the statute of limitations period did not constitute new and independent injuries for application of the separate accrual rule. Id. at *2. The court explained:
It is beyond peradventure that the plaintiffs’ injury from the rent checks mailed within the past four years is not ‘a new and independent injury.’ The injury the plaintiffs allegedly suffered due to the rent bills mailed within the four-year statute of limitations is identical to the injury they suffered when the defendants allegedly unlawfully increased the room count. Thus, the fact that defendants continued to mail allegedly unlawful rent bills does not make plaintiffs’ claim timely, as they knew or should have known about the illegal room count more than four years prior to the commencement of this lawsuit. Id. In another civil RICO action, Sasser, the district court addressed an employer’s commission policy that reduced sales consultants’ pay by deducting from their commissions when customers paid late or returned items. 2001 WL 764953 at *6. The parties agreed that the “charge back” policy at issue was implemented around 1986. Id. The court determined that “[b]ecause plaintiffs’ allegations regarding defendants’ compensation and charge back policies seek to hold defendants liable for conduct and representations that began outside of the limitations period and simply continued within the limitations period, these allegations are time-barred.” Id. at *7. As in Pharr, the alleged timely activities in Sasser were “simply the result of defendants’ continued
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implementation of their policies which began outside of the limitations period.” Id. However, the Court finds this case more analogous to the situation in Maddaloni
Jewelers, Inc. v. Rolex Watch U.S.A., Inc., 2003 WL 21507529 (S.D.N.Y. 2003). In Maddaloni Jewelers the plaintiff alleged that defendants began demanding illegal payments from dealers of its products. Id. at *1. When the plaintiff dealer did not comply with the defendants’ demands, other dealers who did comply received preferential treatment. Id. The plaintiff alleged that it began to experience: delays in the receipt of defendants’ products; defendants’ refusal to provide certain products; elimination of support from defendants; and elimination of access to defendants’ customer service department. Id. The plaintiff claimed that it received hundreds of cancelled orders from customers, which caused lost profits. Id. The court determined that:
[c]ontrary to defendants’ argument, not all of [plaintiff’s] causes of action accrued in 1997 when the illegal payments were first demanded. Defendants’ conduct resulted in continuous violations, creating multiple causes of action. . . . Each order that [plaintiff] lost was an injury to a separate business relationship between [plaintiff] and an existing customer, creating a new cause of action. Id. at *3. The court concluded that the plaintiff’s claims for injuries that he discovered or should have discovered within four years prior to the filing of his complaint were timely. Id. at *4. In this case, as in Maddoloni Jewelers, the Plaintiffs allege that each illegal hiring constituted an independent injury that further depressed the Plaintiffs’ wages. Their allegations of illegal hiring are more analogous to each lost Rolex customer in Maddoloni Jewelers than they are to the continued application of an unlawful policy beginning outside of the limitations period. Tyson does not appear to have had an official policy to engage in the hiring of illegal immigrants. Thus, there is no specific date that Plaintiffs can identify as the date that Tyson
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promulgated its illegal hiring scheme. Rather, it appears that each discrete alleged illegal hiring constituted an independent action that caused new injury. Plaintiffs meet the requirements of the separate accrual test that each illegal hiring constitutes a new and independent act that inflicted new and accumulating injury on the Plaintiffs. See Grimmett, 75 F.3d at 513. Plaintiffs have made clear that Ms. McCoy and Ms. Lee are not seeking damages for alleged illegal hiring beyond the four-year limitations period. [Court Doc. No. 146-1, pp.6-7]. Therefore, the Court holds that Ms. McCoy’s and Ms. Lee’s claims for injury from illegal hirings occurring four years prior to the filing of the complaint are not time-barred. The Court expresses no opinion on the merits of Plaintiffs’ substantive claims, however. For these reasons, Tysons’ motion for summary judgment against Ms. McCoy and Ms. Lee will be DENIED. IV. Conclusion
After reviewing the record and the applicable law, the Court concludes that Ms. McCoy’s and Ms. Lee’s claims of alleged illegal hiring falling within the four-year statute of limitations period established for civil RICO claims are timely. Claims of alleged illegal hiring falling outside of the four-year limitations period are barred by the statute of limitations. Tyson’s motion for summary judgment will be DENIED.
A separate order will enter. /s/ R. Allan Edgar R. ALLAN EDGAR
UNITED STATES DISTRICT JUDGE
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE
at WINCHESTER

BIRDA TROLLINGER, VIRGINIA

)

BRAVO, KELLY KESSINGER,

)

IDOYNIA MCCOY, REGINA LEE,

)

PATRICIA MIMS, LORI WINDHAM

)

and ALEXANDER HOWLETT,

)

individually and on behalf of all others

)

similarly situated

)

)

Plaintiffs,

)

)

v.

)

)

TYSON FOODS, INC., JOHN TYSON,

)

ARCHIBALD SCHAFFER III, RICHARD, )

BOND, KENNETH KIMBRO, GREG

)

LEE, KAREN PERCIVAL, AHRAZUE

)

WILT and TIM MCCOY,

)

)

Defendants.

)

No. 4:02-CV-23 Chief Judge Curtis L. Collier

M E M O R A N D U M Before the Court is a motion for judgment on the pleadings filed by Defendants Tyson Foods, Inc., John Tyson,Archibald Schaffer III, RichardBond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, and Tim McCoy (collectively, “De fendants”)(Court File No. 162). Defendants submitted a br ief in support of their motion (Court File No. 163), Plaintiffs Birda Troll inger, Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham and Alexander Howlett ("Plaintiffs") filed a response (Court File No. 165), and Defendants filed a reply brief (Court File No. 166). On August 14, 2006, the Court heard oral arguments on the motion. The motion was very ably argued by counsel for each side. At the conclusion of the arguemnts, based upon the briefs, the

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oral arguments of counsel, and the applicable law, the CourDt ENIED Defendants' motion from the bench. While the Court orally explained the reasoning supporting its decision, the Court stated it would issue a written opinion that would provide further elaboration. This is that written opinion.
I. STANDARD OF REVIEW A motion for judgment on the pleadings under Fed. R. Civ. P. 12(c) is governed by the same
standard applicable to motions to dismiss under Rule 12(b)(6). See Ziegler v. IBP Hog Market, Inc,. 249 F.3d 509, 511-12 (6th Cir. 2001). Accordingly, the Court must construe the complaint in the light most favorable to Plaintiffs, Bloch v. Ri bar, 156 F.3d 673, 677 (6th Cir.1998); In re Unumprovident Corp. Securities Litigation, 396 F.Supp.2d 858, 873 (E.D. Tenn. 2005); State of Ohio ex rel. Fisher v. Louis Trauth Dairy, Inc.,856 F.Supp. 1229, 1232 (S.D.Ohio 1994), accept all of the complaint's factual allegations as true, Bloch, 156 F.3d at 677;Broyde v. Gotham Tower, Inc,. 13 F.3d 994, 996 (6th Cir.1994); In re Unumprovident , 396 F.Supp. 2d at 873, and determ ine whether Plaintiffs undoubtedly can prove no set of facts in support oftheir claims that would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Ziegler, 249 F.3d at 511-12; Coffey v. Chattanooga-Hamilton County Hosp. Auth ., 932 F.Supp. 1023, 1024 (E.D.Tenn.1996).
The Court may not grant such a motion to dismiss based upon a disbelief of a complaint’s factual allegations. Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995) (noting that courts should neither weigh evidence nor evaluate the credibility of witnesses); Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990). The Court must liberally construe the complaint in favor of the party opposing the motion. Miller, 50 F.3d at 377. The complaint, however, must articulate more than
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a bare assertion of legal conclusions.Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988). “[The] complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.” Id. (citations omitted).
In deciding a motion to dismiss, the question is “not whether [the] plaintiff will ultimately prevail but whether the claim ant is entitled to offer evidence to support the claim s.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct . 1683, 1686, 40 L.Ed.2d 90 (1974); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 997, 152 L.Ed.2d 1 (2002).
II. RELEVANT FACTS AND PROCEDURAL HISTORY According to Plaintiffs’ Second Amended Complaint, Plaintiffs are individuals employed
by Tyson at some point who are “legally authorized to be employed in the United States” (Court File No. 115, Plaintiffs Second Amended Complaint, ¶ 1). Plaintiffs contend Tyson developed a “conspiracy among its top management” to depress the wages paid to its employees by “knowingly hiring a workforce substantially com prised of undocumented illegal immigrants for the express purpose of depressing wages” ( id. at ¶ 2). Plaintiffs call this alleged conspiracy the “Il legal Immigrant Hiring Scheme” (id.). Specifically, Plaintiffs allege Defendants “knowingly hired more than 10 unauthorized, illegal immigrants” in violation of 8 U.S.C. § 1324(a)(3)(A) and Defendants “violated 8 U.S.C. § 1324( a)(1)(A)(iii) by ‘harboring’ unauthorized, illegal im migrants with knowledge or reckless disregard that each entered the U.S. illegally”1 (id. at ¶¶ 36, 37). As a result
1Plaintiffs allege the following of Defendants’ actions constitute “harboring:” Defendants’ employment of each illegal im migrant; Defendants’ warning illegal im migrant employees of possible raids and Defendants’ providing illegalmi migrant employees with housing. (Court File No. 115 at ¶ 37).
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of the Illegal Imigrant Hiring Scheme, Plaintiffs claim they have been proximately damaged by the depression of their wages “below what they would have been in a labor market consisting only of legal workers” (id. at ¶¶ 45, 60).
A previous 12(b)(6) motion filed by the Defendants was granted in July 2002. The Court2 dismissed Plaintiffs’ claims because they restedon an attenuated theory of causation that amounted to “sheer speculation.” Trollinger v. Tyson Foods, Inc,. 214 F. Supp. 2d 840, 841 (E.D. Tenn. 2002). Given the number of factors which influence the Plaintiffs’ labor rates, the Court concluded the allegations did not constitute a direct injury under the Suprem e Court’s decision in Holmes v. Securities Investor Protection Corp., 503 U.S. 258 (1992). Id. Plaintiffs appealed that decision to the United States Court of Appeals for the Sixth Circuit (the “Sixth Circuit”).
On appeal, the Sixth Circuit decided the Couret rred in dismissing the case and in the Court’s interpretation of Holmes. First, the panel concluded the com plaint sufficiently alleges a direct injury. Trollinger v. Tyson Foods, Inc. , 370 F.3d 602, 615 (6th Cir. 2004) (“ Tyson I”) (“[t]he complaint alleges that Tyson directly employed the four plaintiffs, that Tyson directly paid themand that Tyson directly injured plaintiffs by paying them less than they otherwise would have paid them but for Tyson's illegal-immigrant-hiring-scheme”). After discussing Defendants’ argument that the labor union determined Plaintiffs’ wages, the Sixth Circuit noted Defendants conceded on appeal “that plaintiffs need not show that Tyson's conduct was the sole cause of their injury in order to establish proximate cause; they need show onyl that the conduct was a substantial cause.”Id. at 620. The Sixth Circuit’s opinion noted “[w]hile Tyson's proximate-cause argument may well carry the day at the summary-judgment stage, it requires more assistance than the complaint alone provides.”
2The Honorable R. Allan Edgar decided the previous motion to dismiss. -4-
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Id. at 619. Therefore, the Sixth Circuit reversed the Court’s dismissal and remanded the case to the
Court3 for further proceedings.4
The decision in Tyson I constitutes the law ofthe case. The law-of-the-case doctrine and the
mandate rule precludes reconsideration of issuesdecided at an earlier stage of the case.See United
States v. Moored, 38 F.3d 1419, 1421- 22 (6th Cir. 1994) (under the law-of-the-case doctrine, a
district court is precluded from revisiting an issue that was expressly or im pliedly decided by an
appellate court). The power of the Court to reacha result inconsistent with a prior decision reached
in the same case is “to be exercised very sparingly, and only under extraordinary conditions.”Craft
v. United States, 233 F.3d 358, 363 - 64 (6th Cir. 2000) (citing General Am. Life Ins. Co. v.
Anderson, 156 F.2d 615, 619 (6th Cir.1946) .
Only if one of three extr aordinary conditions is present is the Court not bound by the
law-of-the-case doctrine:
It is clear that when a case has been remanded by an appellate court, the trial court is bound to "proceed in accordance with the mandate and law of t he case as established by the appellate court." The "al w of the case" doctrine precludes a court from "reconsideration of identical issues." "Issues decided at an early stage of the litigation, either explicitly or by necessaryinference from the disposition, constitute the law of the case."
As we have held, however, this "law of the case" doctrine is "directed to a court' s common sense" and is not an "inexorable com mand." We previously have s tated three reasons to reconsider a ruling: (1 ) where substantially dif ferent evidence is raised on subsequent trial; (2) whe re a subsequent contrary view of the law is decided by the controlling authority; or (3)where a decision is clearly erroneous and
3Subsequent to the Sixth Circuit’s decision, the case was reassigned to the Honorable Curtis L. Collier, Chief United States District Judge.
4On June 24, 2005, Plaintiffs filed the ir Second Amended Complaint, adding several individual defendants but did not change Plaintiffs’ theory of causation. (Court File No. 115 at ¶ 45).
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would work a manifest injustice. McKenzie v. BellSouth Telecommunications, Inc. , 219 F.3d 508, 513 n.3 (6th Cir. 2000) (citing Hanover Ins. Co. v. American Eng'g Co,.105 F.3d 306, 312 (6th Cir.1997) q( uoting Petition of U.S. Steel Corp., 479 F.2d 489, 493 (6th Cir.1973)). In this cas e, neither party alleges there is new or different evidence. Further, neither party argues the Sixth Circuit’s decision inTyson I was clearly erroneous and would work a manifest injustice. Therefore, the only remaining question under the law of the case doctrine is whether there exists a subsequent contrary and controlling view of the case law relied upon by the Sixth Circuit in concludni g the case should not be dismissed for lack of a proximate cause and direct injury on the pleadings.
On June 6, 2006, the Supreme Court issued a decision in Anza v. Ideal Steel Supply Corp., 126 S. Ct. 1991 (2006). Defendants argue the law of the case in Tyson I is no longer applicable in light of the Anza decision. Therefore, Defendants move the Court to ignore the law of the case and grant their motion for judgment on the pleadings in favor of Defendants. In response, Plaintiffs assert the Anza decision is not a contrary or controlling view of the law because Anza can be reconciled with Tyson I. For the reasons set forth below, the Court determines the Supreme Court’s opinion in Anza does not provide a subsequent contrary view of the law decided by controlling authority.
III. DISCUSSION A. Proximate Cause Requirement Post-Anza In Anza, the Supreme Court held a merchant accusing its competitor of gaining an unfair
competitive advantage (in the form of charging lower prices) by failing to charge cash customers
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the state sal es tax and concealing that practice from the state of New York did not allege a
sufficiently direct injury from the fraud to state a claim under RICO. Anza, 126 S. Ct. 1991. In
Anza, the predicate offense involved in the case wasthe mail fraud statute, 18 U.S.C. § 1341. The
Supreme Court held the state, not the m erchant, was the direct victim of the defendant’s alleged
fraud. Id. at 1997. In Anza, the Supreme Court stated “[w]hen a court evaluates a RICO claim for
proximate causation, the central question it must ask is whether the alleged violation led directly to
the plaintiff's injuries.” Id. at 1998. Since the link between the alleged m ail fraud to avoid the
state’s taxes and the plaintif’s competitive injury was too “attenuated,” the plaintif failed to satisfy
RICO’s proximate causation requirement. Id. at 1993.
Defendants’ present motion to dismiss asserts the Anza decision is fatal to Plaintiffs’ claims
in three critical respects:
First, the Supreme Court made it clear that plaintiffs only can recover for injuries that result necessarily from the alleged RICO predicate acts. Accordingly, if the injury alleged might have been caused by the RICO predicate acts - but might have been caused by other factors - the com plaint does not state a claim under RICO. Second, the Court made it clear that RICO’s direct injury requirem ent does more than exclude “derivative” or “passed-on” injuries. Some courts, including the Sixth Circuit on review in this case, had narrowly read the direct injury test this way. The Supreme Court explained that this was incorrect, clarifying that a RICO claim may fail the legal causation standard, “[n]otwithstanding the lack of any appreciable risk of duplicative recoveries.” Id. at 1997. Third, Anza made it clear that courts should dispose of claims at the pleading stage - and not wait until summary judgment. The Supreme Court in Anza held that the claims in that case should have been dismissed for lack of proximate causation on a motion to dismiss.
(Court File No. 163, pp. 1-2). Plaintiffs in their arguments take issue with Defendants’ position and
argue Anza is not inconsistent with Tyson I.
After closely examining the precise language inAnza the Court fails to find the text that says
exactly what Defendants state above. In relation to Defendants’ first point, the Court located the
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following text from the Supreme Court’s position in Anza: Section 1962(c) . . . for bids conducting or participating in the conduct of an enterprise's affairs through a pattern of arcketeering activity. The Court has indicated the compensable injury flowing froma violation of that provision “necessarily is the harm caused by predicate acts suf ficiently related to constitute a pattern, f or the essence of t he violation is the com mission of those acts in connection with the conduct of an enterprise.”
Id. at 1996. In short, the alleged predicate acts, sufficiently related to constitute a pattern, must cause a compensable injury. The com plete quote from Anza on Defendants’ second point states “[n]otwithstanding the lack of any appreciable risk of duplicative recoveries, which is another consideration relevant to the proximate-cause inquiry, . . . , these concerns help to illustrate why Ideal's alleged injury was not the direct result of a RICO violation.” Id. at 1997. In other words, the risk of duplicative recoveries is one of the factors relevant to the proximate-cause inquiry but is not in and of itself dispositive on the inquiry.
Defendants are on firm er ground with r espect to their third point. W hen the facts and circumstances indicate problems with proximate cause similar to those in Anza, the Court should dismiss the case at the pleading stage. Anza reasoned:
The element of proximate causation recognized in Holmes is meant to prevent these types of intricate, unc ertain inquiries from overrunning RICO litigation. It has particular resonance when applied to claim s brought by econom ic competitors, which, if left unchecked, could blur the line between RICO and the antitrust laws. Id. at 1998. Here, it is important to note the Court is not faced with the same concern of Plaintiffs’ RICO claims overlapping with anti-trust laws (as was in Anza). Plaintiffs are not Defendants’ economic competitors. While Defendants’ reading of Anza is certainly plausible, it is not the only or even most plausible reading of Anza. The Court is unable to locate any post-Anza cases which support Defendant’s argument in a case involving similar alleged predicate acts and resulting injury.
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And Defendants have not supplied the Court with any post- Anza cases involving similar alleged
predicate acts and resulting injury which support their argument.
After carefully examining the three reasons argued in support of Defendants’ positionAnza
is contrary, controlling authority which would allo w the Court to ignore the law of the case, the
Court concludes they are not sufficient to convince the Court the law of the case should be ignored.
Therefore, the Court finds Anza can be reconciled with the Sixth Circuit’s opinion in Tyson I. As
a result, the Court cannot and must not ignore the law of the case.
B. Tyson I and Anza’s Similar Proximate Cause Requirements
In their motion to dism iss, Defendants point to a causal weakness between the RICO
predicate offenses and Plaintiffs’ injury. In dsicussing the proximate cause limitations on claimants
in a RICO case, the panel in Tyson I stated:
while a RICO plaintiff and defendant m ay have a direct and not a derivative relationship, the causal link between the injury and the conduct may still be too weak to constitute proximate cause-because it isinsubstantial, unforeseeable, speculative, or illogical, or because of intervening causes.. . . The point of allthis is not just that the distinction between statutory standing and proxim ate cause exists, but that unbundling these distinct concepts has practical signif icance for RICO cases in general and for this case in particular . From a substantive standpoint, a RICO plaintiff who can show a direct injury may still lose the case if the injury does not satisfy other traditional requirements of proximate cause-that the wrongful conduct be a substantial and foreseeable cause and tha t the connection be logical and not speculative.
Id. at 614-15 (emphasis in original). The Tyson I panel further stated “a case with a derivative-
injury problem is better suited to dism issal on the pleadings than a RICO case with a traditional
proximate-cause problem (e.g., a weak or insubstantial causal link, a lack of for eseeability, or a
speculative or illogical theory of damages).” Id. at 615. Tyson I stated mere causal weaknesses,
other than that of a passed-on injury, will “more often be fodder for a summary-judgment motion
-9-
Case 4:02-cv-00023 Document 174 Filed 09/18/06 Page 9 of 12 PageID #: <pageID>

under Rule 56 than a motion to dismiss under Rule 12(b)(6).” Id. In Anza, Justice Kennedy discusses several policy considerations behind the directness
requirement in a RICO case and calls the considerations “underlying premises.” Anza, 126 S. Ct. at 1997. One such premise is the “difficulty that can arise when a court attem pts to ascertain the damages cause by some remote action.” Id. In discussing this difficulty, Justice Kennedy cited Holmes, “the less direct an injury is, the m ore difficult it becom es to ascertain the amount of a plaintiff's damages attributable to the violation, as distinct from other, independent, factors.” Holmes, 503 U.S. at 269. In Tyson I, Judge Sutton discussed three “administrative justifications” for the “directness requirement”:
(1) the “difficult[y]” in “ascertain[ing] th e amount of a[n] [indirect] plainti ff's damages attributable to the violation, as distinct from other, independent factors”; (2) the “complicated rules” courts would beforced to adopt to “apportion[ ] damages among plaintiffs removed at different levels of i njury from the violative acts, to obviate the risk of multiple recoveries”; and (3) the existence of a “directly injured victim[ ]” who “can generally be counted onto vindicate the law” and serve the laws' “general interest in deterring injurious conduct.” Trollinger, 370 F.3d at 613 (citing Holmes, 503 U.S. at 269). The terms used by the Sixth Circuit in Tyson I and the terms used by United States Suprem e Court in Anza are different, but the underlying meaning is the same. C. Complaint Sufficiently Alleges a RICO Predicate Act and Resulting Injury In 1996, Congress added to the list of prohibiteRd ICO activities: "any act which is indictable under the Immigration and Nationality Act, section274 (relating to bringing in and harboring certain aliens) . . . if the act indictable under such s ection of the Act was com mitted for the purpose of financial gain." 18 U.S.C. § 1961(1)(F). In oht er cases throughout the country, plaintiffs invoking this predicate act have alleged employers have brought illegal immigrants into the country to work
-10-
Case 4:02-cv-00023 Document 174 Filed 09/18/06 Page 10 of 12 PageID #: <pageID>

to drive down wages for the legal workers. Bringing in illegal immigrants to lower the company's wage expense would equate to committing the act "for the purpose of financial gain" under RICO.
The Court points out Congress had some purpose in adding 18 U.S.C. § 1961(1)(F) to the list of prohibited RICO activities. As the Court discussed with counsel during the August 14, 2006 hearing on this mot ion, one obvious purpose of RICO was to allow persons injured by the enumerated predicate acts to sue offenders. Rotella v. Wood, 528 U.S. 549, 557 (“[t]he object of civil RICO is not merely to compensate victims but to turn them into prosecutors, private attorneys general dedicated to eliminating racketeering activity”). In examining the RICO predicate offenses alleged in the complaint, the question becomes who is injured by the employment of illegal alien employees. In this case, it seems obvious workers displaced or who have received lower wages are persons injured by the RICO predicate offenses alleged in the second amended complaint. Counsel for Defendants was unable to point to any ot her more logical group that w ould be harm ed economically than legal workers displaced by illegal aliens.
When ruling on a motion to dismiss, the Court must construe the complaint in the light most favorable to Plaintiffs, accept all of the com plaint's factual allegations as true, and deter mine whether Plaintiffs undoubtedly can prove no set of afcts in support of theirclaims that would entitle them to relief. Ziegler, 249 F.3d at 511-12. The Court notes the second amended complaint still alleges
Tyson engaged in a schem e to depress the wages paid to its hourly em ployees by knowingly hiring undocumented illegal immigrants who were willing to work for wages well below those paid in labor m arkets composed of only United States citizens. Assisting Tyson in this scheme was a network of recruiters and temporary employment agencies that would transport the illegal workers to the United States, obtain housing for them and provide them with false identification documents. As a result of the scheme, the com plaint alleges, over half of the workers at 15 of Tyson's facilities are illegal immigrants, allowing Tyson to pay its legal employees
-11-
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wages substantially below the wage levelpaid by other employers of unskilled labor in the areas surrounding the 15 facilities. Palintiffs seek injunctive relief along with treble damages. Trollinger, 370 F.3d at 606-07. Clearly, the second aemnded complaint alleges two RICO predicate offenses and a logical connection between the predicate offenses and resulting harm to Plaintiffs.
IV. CONCLUSION For the reasons stated at the hearing on the oraalrguments in this case, and the reasons stated
above, the Court DENIED the motion for a judgment on the pleadings filed by Defendants Tyson Foods, Inc., John Tyson, Archibald Schaffer III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, and Tim McCoy (Court File No. 162).
/s/ CURTIS L. COLLIER CHIEF UNITED STATES DISTRICT JUDGE
-12Case 4:02-cv-00023 Document 174 Filed 09/18/06 Page 12 of 12 PageID #: <pageID>

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE
at WINCHESTER

BIRDA TROLLINGER, VIRGINIA

)

BRAVO, KELLY KESSINGER,

)

IDOYNIA MCCOY, REGINA LEE,

)

PATRICIA MIMS, LORI WINDHAM

)

and ALEXANDER HOWLETT,

)

individually and on behalf of all others

)

similarly situated

)

)

Plaintiffs,

)

)

v.

)

)

TYSON FOODS, INC., JOHN TYSON,

)

ARCHIBALD SCHAFFER III, RICHARD, )

BOND, KENNETH KIMBRO, GREG

)

LEE, KAREN PERCIVAL, AHRAZUE

)

WILT and TIM MCCOY,

)

)

Defendants.

)

No. 4:02-CV-23 Chief Judge Curtis L. Collier

MEMORANDUM Defendants Tyson Foods, Inc. a nd several named officers or em ployees1 seek an extraordinary action from the Court, that is, they seek to have the Court certify a previous decision for an interlocutory appeal. Such actions on t he part of the district courts are highly disfavored. In seeking this disfavored, extraordinary action, the party making such a request should advance strong factual and legal grounds for the request. Such compelling grounds are absent in this case so the Court will not accede to Tyson’s request. Accordingly, the Court will DENY Defendants’ motion.

1Defendants in this case are Tyson Foods, Inc., John Tyson, Archibald Schaffer III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, and Tim McCoy. For the sake of brevity, the Court in this opni ion will refer to the defendants collectively as Defendants or Tyson.

Case 4:02-cv-00023 Document 179 Filed 09/29/06 Page 1 of 8 PageID #: 227

I. PROCEDURAL HISTORY On September 21, 2006 Tyson filed a “Motion for Am endment of the Court’s Order on
Defendants’ Motion for Judgm ent on the Pleadings to Perm it Interlocutory Appeal” with an accompanying memorandum (Court File No. 175, 176). Defendants’ motion requests the Court to amend its August 16, 2006 bench ruling 2 to include language which would permit Defendants to seek an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
This case was filed on April 2, 2002, over four ye ars ago (Complaint, Court File No. 1). Even though it has been on the Court’s docket for over four years, it is still in the pretrial stage . Upon Defendants’ motion, the case was dismissed previously (Court File No. 22). After review on appeal, the dismissal was reversed on June 7, 2004 (Court File No. 25; Trollinger v. Tyson Foods, Inc., 370 F.3d 602 (6th Cir. 2004)) and the case returne d to this Court’s docket. Tyson filed a second motion for judgment on the pleadings (Court File No. 162) on July 14, 2006. With respect to this motion the Court heard oral arguments on August 14, 2006 and rendered an oral decision from the bench immediately after the arguments (Court File No. 171).
For purposes of this m otion, the Court does not deem it necessary to state any additional facts. In the Memorandum (Court File No. 174)explaining the reasoning supporting its decision on the Defendants’ motion for judgment on the pleadings (the Septem ber memorandum) the Court previously summarized the relevant facts. T he Court will ref er to the facts stated in that memorandum as necessary and will refer interested readers to that memorandum.
2The Court decided the motion for judgment on the pleadings orally from the bench at the conclusion of the August 16, 2006 oral argum ent. Afterward, the Court issued a written memorandum that m erely elaborated on its or al decision on Septem ber 18, 2006. Theref ore, although Defendants’ m otion requests am endment of the Septem ber 18, 2006 “order”, the Defendants actually seek to amend the Court’s August 16, 2006 oral decision from the bench.
2
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As the Court stated earlier, extensive pleadings have been filed in this case and a substantial amount of time has passed since the Plaintiffs3 filed their suit. Because of the age of this case and the continuing burdens placed on the parties both interms of the expenditure of considerable sums and the commitment of extensive efforts in the litigation thus far, it is necessary to ensure this case moves forward expeditiously. However, the Court is not of the opinion delaying this case further to enable Defendants to obtain an advance r uling from the appellate court so as to “avoid a considerable expenditure of resources by the Court and the parties” in further proceedings (Court File No. 176, Defendant's Memorandum of Law in Support of Motion to Amend Order, p. 5) would be a prudent course of action to take. Moreover, for the reasons given in its oral decision, as well as the authority of the recently decided case of Williams v. Mohawk Industries, Inc., --- F.3d ----, No. 04-13740 (11th Cir. Sept. 27, 2006), the Court is not of the opinion Defendants’ effort would be fruitful.
II. STANDARD OF REVIEW As a threshold matter, the Court notes interlocutory appeals in the federal system are
disfavored. See Firestone Tire & Rubber Co. v. Risjord , 449 U.S. 368, 374 (1981); Sinclair v. Schriber, 834 F.2d 103, 105 (6th Cir.1987). W ith certain very limited exceptions, appeals from district courts are restricted to the final judgments of such courts. Sinclair, 834 F.2d at 104. This requirement, often referred to as the final judgment rule, is embodied in statute, 28 U.S.C. § 1291. The fi nal judgment rule reduces the points of error which m ust be reviewed to those that are
3Named plaintiffs in this case are Birda Trlolinger, Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham and Alexander Howlett. For brevity’s sake, the Court will refer to them as “Plaintiffs.”
3
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material to the actual result, and provides efficiency by consolidating all grounds for appeal into a single action. Coming Up v. City and County of San Francisco , 857 F. Supp. 711, 718 (N.D.Cal.1994). Exceptions to this rule exist buttypically require extraordinary circumstances. W. Tenn. Chapter of Assoc. Builders & Contractors, Inc.v. City of Memphis, (In re City of Memphis), 293 F.3d 345, 350 (6th Cir. 2002)(noting “review under § 1292(b) is granted sparingly and only in exceptional cases”); General Acquisition, Inc. v. GenCorp , 23 F.3d 1022, 1026 (6th Cir. 1994) . Moreover, the party seeking an interlocutory appeal has the burden of showing that exceptional circumstances exist warranting an interlocutory appeal. Judicial Watch, Inc. v. National Energy Policy Development Group, 233 F. Supp. 2d 16, 20 (D.D.C. 2002); Coming Up, 857 F. Supp. at 718.
The United States Court of Appeals for the Sixth Circuit ( the “Sixth Circuit”) has repeatedly explained “Congress intended that Section 1292(b) should be sparingly applied.” Cardwell v. Chesapeake & O. R. Co., 504 F.2d 444, 446 (6th Cir. 1974) (citing Kraus v. Board of County Comm'rs, 364 F.2d 919, 922 (6th Cir. 1966)). Section 1292(b) is “to be used onl y in exceptional cases where an intermediate appeal may avoid protracted and expensive litigation and is not intended to open the floodgates to a vast number of appeals from interlocutory orders in ordinary litigation.” Id. The Suprem e Court of the Unite d States (the “Suprem e Court”) in Firestone, in discussing the final judgment rule, enunciated some of the policy reasons for ordinarily disfavoring interlocutory appeals:
4
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This rule, that a party m ust ordinarily raise all claim s of error in a single appeal following final judgment on the merits, serves a number of important purposes. It emphasizes the deference that appellate courtsowe to the trial judge as the individual initially called upon to decide the many questions of law and fact that occur in the course of a trial. Permitting piecemeal appeals would undermine the independence of the district judge, as well as the special role that individual plays in our judicial system. In addition, the rule is in accordance with the sensible policy of “avoid[ing] the obstruction to just claims that would come from permitting the harassment and cost of a succession ofseparate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment.” Firestone, 449 U.S. at 374 (citations om itted). Also, the rule serves the im portant purpose of “promoting efficient judicial administration.” Id. In the first instance, the obligation rests upon thedistrict judge to decide matters before him. Attractive as it may be to refer difficult matters to a higher court for advance decision, such a course of action is contrary to our system of jurisprudence. General Acquisition, 23 F.3d at 1026; Hogan v. Consolidated Rail Corp., 961 F.2d 1021, 1025 (2nd Cir. 1992). Only in clearly delineated circumstances may a district court judge certify decisions for im mediate appeal. General Acquisition, 23 F.3d at 1026-31.
III. DISCUSSION Defendants seek the extraordinary and disfavoredrelief of an interlocutory appeal by asking
the Court to amend its August bench ruling toinclude language which would permit Defendants to seek an appeal pursuant to 28 U.S.C. § 1292(b). Defendants request the Court “amend its 9/18/06 Order to recognize that § 1292(b)’s criteria are met and grant permission for Defendants to petition the Sixth Circuit f or an interlocutory appeal.” In support of its m otion, Defendants filed a memorandum of law, the thrust of which is Defendnats’ contention that an interlocutory appeal “will address a ‘controlling question of law’ about wh ich there is ‘substantial ground for difference of
5
Case 4:02-cv-00023 Document 179 Filed 09/29/06 Page 5 of 8 PageID #: 231

opinion’ and the immediate appeal of which could ‘materially advance the ultimate termination of this litigation.’” (Court File No. 176 at 2).
Section 1292(b) provides in pertinent part as follows: When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order invol ves a controlling question of law as to which there is substantial ground for difference of opinion and that an im mediate appeal f rom the or der may m aterially advance the ultim ate termination of the litigation, he shall so state in writing in such order. Cases applying 28 U.S.C. § 1292(b) have listed three criteria that m ust be satisfied to warrant an interlocutory appeal: (1) does the question involve a controlling issue of law (2) as to which there is a substantial ground for difference of opinion (3)that immediate appeal may materially advance ultimate termination of the litigation. In re Baker & Getty Financial Services, Inc., 954 F.2d 1169, 1172 (6th Cir. 1992). Tyson argues an interlocutory decision fromthe Sixth Circuit would entirely dispose of this case by deciding “whether the chain of causation asserted in this RICO Complaint meets the pleading standard set forthin the recent decision ofAnza v. Ideal Steel Supply Corp,.126 S. Ct. 1991 (2006).” Tyson also quotes fromthe Court’sSeptember Memorandum that Tyson’s reading ofAnza was plausible. In m aking this statement, the Court also stated Tyson’s rea ding was not the only reading nor was it the most plausible reading. Unfortunately for Tyson, the Sixth Circuit has already addressed all of i ts arguments in the Sixth Circuit’s previous decision in the case. 4 The circuit court’s opinion, although issued prior toAnza, presaged that opinion. As the Court noted in its oral decision, the circuit decision addressed each issue considered in Anza and reached the same result as did the Supreme Court.
4Trollinger v. Tyson Foods, Inc., 370 F.3d 602 (6th Cir. 2004). 6
Case 4:02-cv-00023 Document 179 Filed 09/29/06 Page 6 of 8 PageID #: 232

Although the Court did not have the be nefit of the Eleventh Circuit’s recent decision in Williams v. Mohawk, to the extent there may have remained some question regarding the correctness of the circuit court’sTrollinger opinion, those questions should have been extinguished bWy illiams. In Williams, the Eleventh Circuit panel did have the benefit ofAnza. The panel, withAnza in mind, analyzed the exact arguments made by Tyson in this case and rejected those arguments. With the benefit of Anza, the court considered the Trollinger decision and concluded the Sixth Circuit had reached the correct result. In Williams, the court quoted with a pproval the same language from Trollinger this Court quoted in its oral decision. Williams, slip op. at 27. The court concluded its analysis of the proxim ate cause requirement by stating “we join the Sixth and Ninth Circuits in concluding that employees such as the one in this case have alleged sufficient proximate cause to proceed with their RICO claims.” Id. at 27-28.
Notwithstanding the quoted language from this Court’s decision regarding the plausibility of Tyson’s reading of the Anza opinion, the Court, based upon its own analysis as well as t he Eleventh Circuit’s analysis of the same issue, does not think that this issue involves a controlling question of law as to which there is substantial ground for difference of opinion. As stated by the court in Williams, both the Sixth and Eleventh Circuits haveissued opinions adverse to the position advocated by Tyson. This Court took the sam e approach. Defendants have not offered, and the Court has been unable to locate, any decisions that support their position.
Moreover, their request for extraordinary relief also fails the second prong of the standard. Given the length of time this case has been open on the Court’s docket, that in essence Defendants would be asking the Sixth Circuit to reverse its ea rlier decision, and the paucity of authority in support of Defendants’ position, the Court does notese that an interlocutory appeal would materially
7
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advance the ultimate termination of the litigation. In fact, the likelihood is just the opposite would result, that is, substantial delay. As such, granting such a request would fail to prom ote efficient judicial administration. Further, allowing an interlocutory appeal would frustrate the policy behind the final judgment rule by creating “an obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise.” Firestone, 449 U.S. at 374. IV. CONCLUSION
For the above reasons, the C ourt will DENY Defendants’ Motion for Am endment of the Court’s Order on Defendants’ Motion for Judgment on the Pleadings to Permit Interlocutory Appeal (Court File No. 175).
/s/ CURTIS L. COLLIER CHIEF UNITED STATES DISTRICT JUDGE
8 Case 4:02-cv-00023 Document 179 Filed 09/29/06 Page 8 of 8 PageID #: 234

 
 Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

2007 WL 951869 Only the Westlaw citation is currently available.
United States District Court, E.D. Tennessee,
Winchester Division.
Birda TROLLINGER, Virginia Bravo, Kelly Kessinger, Idonynia McCoy, Regina Lee, Patricia Mims, Lori Windham, and Alexander Howlett, individually and on behalf of all others similarly
situated, Plaintiffs, v.
TYSON FOODS, INC., John Tyson, Archibald Schaffer III, Richard Bond, Kenneth Kimbro, Greg
Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Defendants.
No. 4:02–cv–23. | March 28, 2007.
Attorneys and Law Firms
Howard W. Foster, Johnson & Bell, Ltd., Chicago, IL, William G. Colvin, Horton, Maddox & Anderson, PLLC, Thomas Clifton Greenholtz, Chambliss, Bahner & Stophel, P.C., Chattanooga, TN, for Plaintiffs.
Christopher H. Steger, Roger W. Dickson, Travis R. McDonough, Miller & Martin, Chattanooga, TN, Colleen M. Lauerman, Frank R. Volpe, Mark D. Hopson, Thomas C. Green, Sidley, Austin, Brown & Wood, LLP, Washington, DC, for Defendants.
Opinion
MEMORANDUM AND ORDER
WILLIAM B. MITCHELL CARTER, United States Magistrate Judge.
*1 Plaintiffs and defendants have been in disagreement for some time over the plaintiffs’ right under the discovery rules to obtain unredacted copies of the Tyson Board of Directors’ minutes (“Minutes”). Defendants assert that portions of the Minutes are protected by the attorney-client privilege and that most of the Minutes are irrelevant to the issues in this case.
Plaintiffs have moved the Court to conduct an in camera review of the Tyson Board of Directors’ Minutes (Doc. No. 238). Defendants have agreed to the in camera

review and have submitted the Minutes from April 17, 1998 to May 5, 2005. Of the 33 pages in the Minutes which had some material redacted, only 10 pages contain any information relevant to the issues in this case. Of that material, most constitutes a very brief statement that the Directors were informed of or discussed a particular subject. There was almost no elaboration into the facts of the particular subject or into advice given by counsel on the particular subject. Defendants have asserted the attorney-client privilege as to these portions of the Minutes because the Minutes indicate the Directors were briefed about the subject by an attorney. As previously stated, the Minutes generally provide no detail about those briefings. The Court is now faced with the following question: Do these very short references in the Minutes to the fact that an attorney briefed the Directors on a particular subject, without revealing any of the details of that subject or the advice given, merit protection by the attorney-client privilege?
Subject matter jurisdiction in the instant case is based upon 28 U.S.C. § 1331, federal question jurisdiction. Questions of privilege are to be determined by federal common law in federal question cases. Reed v. Baxter, 134 F.3d 351, 355 (6th Cir.1998). See also Fed.R.Evid. 501.
Under federal common law, as interpreted by the Sixth Circuit, the elements of the attorney-client privilege are:
(1) Where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to the purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) unless the protection is waived.
Id., Fausek v. White, 965 F.2d 126, 129 (6th Cir.1992) (citing United States v. Goldfarb, 328 F.2d 280, 281 (6th Cir.1964)). The burden of establishing the attorney-client privilege rests with the person asserting it. United States v. Dakota, 197 F.3d 821, 825 (6th Cir.1999); In re Grand Jury Investigation No. 83–2–35, 723 F.2d 447, 450 (6th Cir.1983), cert. denied, 467 U.S. 1246 (1984). Because the assertion of the attorney-client privilege withholds relevant information to the fact finder, it is narrowly construed and applied only where necessary to achieve its purpose of protecting client communications essential to obtain legal advice. Fisher v. United States, 425 U.S. 391,
1

Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

403 (1976); see also, United States v. Collis, 128 F.3d 313, 320 (6th Cir.1997) (“the [attorney-client] privilege is narrowly construed because it reduces the amount of information discoverable during the course of a lawsuit.”) Consistent with the purpose of the attorney-client privilege and its narrow construction, in order for the privilege to apply, “[t]he communication must involve confidential information furnished by the client. Information learned from other sources is not privileged.” In re Southern Industrial Banking Corp., 35 B.R. 643, 647 (Bankr.E.D. TN 1983) (internal citations omitted). See also, Goldfarb, 328 F.2d at 282 (“Communications made to an attorney in the course of his professional employment by persons other than the client or his agent are not privileged.”)
*2 The attorney-client privilege does not protect “the fact of legal consultation or employment, clients’ identities, attorney’s fees, and the scope and nature of the employment.” Humphreys, Hutcheson & Moseley v. Donovan, 755 F.2d 1211, 1218 (6th Cir.1985); In re Grand Jury Subpoena, 204 F.3d 516, 520 (4th Cir.2000) (“The identity of the client, the amount of the fee, the identification of payment by case name, and the general purpose of the work performed are usually not protected by the attorney-client privilege because such information ordinarily reveals no confidential professional communications between attorney and client”) (internal citations omitted); Leach v. Quality Health Services, 162 F.R.D. 499, 501–02 (E.D.Pa.1995) (the attorney’s name, the client’s name, the general matter being worked on, and the date and time of services rendered are unprotected, but a description of the actual legal services performed is.)
Therefore, I conclude a simple statement in the Minutes that the Directors were briefed by an attorney or discussed a matter raised by an attorney, without more, is not protected by the attorney-client privilege.
Accordingly, it is ORDERED defendants shall not redact in the Minutes references to the fact that the Board of Directors were briefed regarding or discussed any subject concerning the Immigration and Naturalization Service (or INS), a pending trial in Chattanooga, the United States Attorney’s Office for the Eastern District of Tennessee, and the Immigration and Naturalization Act, in the following Minutes:
• August 11, 2000 Minutes at page 3,

• January 12, 2001 Minutes at page 19,
• May 4, 2001 Minutes at page 2,
• November 30, 2001 Minutes at page 6,
• August 2, 2002 Minutes at page 3,
• November 15, 2002 Minutes at page 5,
• February 27, 2003 Minutes at page 2.
The following Minutes require more specific treatment:
January 31, 2002, Exhibit A Only paragraph 1 under the heading “Criminal Investigations” contains any information which might be relevant to this case. Paragraph 1 does not appear to contain confidential client communications and should not be redacted. The rest of Exhibit A may be redacted as it is entirely irrelevant to the issues in this case.
August 3, 2001, at Page 15 The first full sentence of the first paragraph of this page should not be redacted. The remaining portion of this paragraph may be redacted as it contains confidential client communications.
November 17, 2000, at Page 3, the Paragraph Entitled “INS Report” The first full sentence of this paragraph shall not be redacted. Defendants may redact the remaining portion of the paragraph as it contains material revealing confidential client communications.
Unless otherwise specifically indicated in this Memorandum and Order, the defendants may continue to redact those portions of the Minutes already redacted in the documents submitted for in camera review.
*3 SO ORDERED.
	  

2

 
 Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

2007 WL 1091217 United States District Court,
E.D. Tennessee, Winchester Division,
Birda TROLLINGER, Virginia Bravo, Kelly Kessinger, Idoynia Mccoy, Regina Lee, Patricia Mims, Lori Windham and Alexander Howlett, individually and on behalf of all others similarly
situated, Plaintiffs, v.
TYSON FOODS, INC., John Tyson, Archibald Schaffer III, Richard, Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt and Tim
McCoy, Defendants.
No. 4:02-CV-23. | April 10, 2007.
Attorneys and Law Firms
Howard W. Foster, Johnson & Bell, Ltd., Chicago, IL, William G. Colvin, Shumacker, Witt, Gaither & Whitaker, PC, Thomas Clifton Greenholtz, Chambliss, Bahner & Stophel, P.C., Chattanooga, TN, for Plaintiffs.
Christopher H. Steger, Roger W. Dickson, Travis R. McDonough, Miller & Martin, Chattanooga, TN, Colleen M. Lauerman, Frank R. Volpe, Mark D. Hopson, Thomas C. Green, Sidley, Austin, Brown & Wood, Washington, DC, for Defendants.
Opinion
MEMORANDUM
CURTIS L. COLLIER, Chief United States District Judge.
*1 Before the Court are the following motions for summary judgment filed by Plaintiffs Birda Trollinger, Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham and Alexander Howlett (collectively “Plaintiffs”):
1. Plaintiffs’ Motion for Summary Judgment as to all Defendants’ First Affirmative Defense to the Second Amended Complaint (estoppel) (Court File No. 186).

2. Plaintiffs’ Motion for Summary Judgment as to all Defendants’ First Affirmative Defense to the Second Amended Complaint (statute of limitation) (Court File No. 188)1.

1

Defendants concede that summary judgment is

appropriate as to the statute of limitations affirmative

defense. “In light of Judge Edgar’s prior ruling on

defendants’ motion for summary judgment as to two of

the named plaintiffs under a statute of limitations

theory, ... defendants do not dispute that this affirmative

defense is unavailable as to those plaintiffs who were

employed by Tyson during the class period.” (Court

File No. 201, Defendants’ Consolidated Memorandum

in Opposition to Plaintiffs’ Motions For Summary

Judgment (“Def.’s Memo”), at 1, n. 1).

3. Plaintiffs’ Motion for Summary Judgment as to all Defendants’ First Affirmative Defense to the Second Amended Complaint (scope of employment) (Court File No. 190). Plaintiffs filed memorandums in support of their motions (Court File Nos. 187, 189, 191). Defendants Tyson Foods, Inc., John Tyson, Archibald Schaffer III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, and Tim McCoy (collectively, “Defendants” or “Tyson”) filed a consolidated memorandum in opposition to the motions (Court File No. 201).2

2

Discovery in this case is ongoing. The Court recently

held a Management Conference in the case and set

discovery deadlines. Even though discovery is not yet

complete, no party has asked the Court to delay ruling

on these motions pursuant to Fed.R.Civ.P. 56(f).

After carefully considering the arguments of counsel and the applicable law, the Court will GRANT Plaintiffs’ motions for summary judgment on Defendants’ estoppel and statute of limitations affirmative defenses (Court File Nos. 186 and 188) and GRANT IN PART AND DENY IN PART Plaintiffs’ motion for summary judgment on Defendants’ scope of employment affirmative defense (Court File No. 190).

I. PROCEDURAL BACKGROUND 1

Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

This case commenced with Plaintiffs’ complaint filed on April 2, 2002 (Court File No. 1). Subsequently, Plaintiffs filed amended complaints with the latest filed on June 24, 20053 (Court File No. 3, Plaintiffs’ First Amended Complaint; Court File No. 115, Plaintiffs’ Second Amended Complaint). On August 11, 2005, Defendants filed their answers to the Amended Complaint (“Answer”) (Court File Nos. 117, 128-135).

3

The Court will simply refer to the latest filed complaint

as “Complaint.”

In their answers, Defendants assert three affirmative defenses: (1) Plaintiffs’ claims are barred by the doctrine of estoppel; (2) Plaintiffs’ claims are barred by the statute of limitations; and (3) to the extent any wrongdoing or violation of the law was committed by individuals, such wrongdoing or violations of the law were committed by employees acting outside the scope of their employment and was inconsistent with Tyson’s corporate policy.
In their summary judgment motions, Plaintiffs argue they are entitled to summary judgment as to the estoppel affirmative defense because this defense is not available in cases brought pursuant to the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961 et seq., and Defendants have produced no evidence to support that defense. As to the statute of limitations affirmative defense, Plaintiffs claim summary judgment is proper because the “separate accrual rule” precludes application of the statute of limitations. Finally, Plaintiffs argue they are entitled to summary judgment on Defendants’ scope of employment affirmative defense because Defendants have produced no evidence to support that defense, and even if there is some evidence to support such a defense, the individual defendants are not entitled to summary judgment because they are liable for their own individual actions.
*2 Because Defendants do not dispute the second affirmative defense is inapplicable, the Court need not discuss the defense at any length.

II. STANDARD OF REVIEW Summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Initially, the burden is on the moving party to conclusively show no genuine issues of material fact exist, Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir.2003), and the Court must view the evidence and draw all reasonable inferences therefrom in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, (1986). However, the nonmoving party is not entitled to a trial merely on the basis of allegations, but must come forward with some significant probative evidence to support its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment. Id. at 323.
The Court determines whether sufficient evidence has been presented to make the issue of fact a proper jury question, but does not weigh the evidence, judge the credibility of witnesses, or determine the truth of the matter. Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 249 (1986); Weaver v. Shadoan, 340 F.3d 398, 405 (6th Cir.2003). The standard for summary judgment mirrors the standard for directed verdict. Anderson, 477 U.S. at 250. The Court must decide “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. There must be some probative evidence from which the jury could reasonably find for the nonmoving party. If the Court concludes a fair-minded jury could not return a verdict in favor of the nonmoving party based on the evidence presented, it may enter a summary judgment. Id.; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir.1994).
II. ANALYSIS
A. Estoppel Affirmative Defense Plaintiffs argue they are entitled to summary judgment as to Defendants’ estoppel affirmative defense because estoppel “is not available in cases brought pursuant to the Racketeer Influenced and Corrupt Organizations Act (“RICO”),” 18 U.S.C. §§ 1961 et seq. (Court File No. 187, Plaintiff’s Memorandum (“Pl.’s Memo”), at 1-2). Plaintiffs further argue even if the defense were available, Defendants have produced no evidence to support that defense. For the first proposition they rely upon federal Anti-Trust law and South-East Coal Co. v. Consolidation Coal Co., 434 F.2d 767, 784 (6th Cir.1970).
2

Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

*3 Defendants argue (1) Judge Edgar already ruled the estoppel defense is proper, which constitutes the law of the case; and (2) there are genuine issues of material fact in dispute with regard to each element of the estoppel defense. Defendants rely upon the following facts to support their assertion of this affirmative defense: Tyson has a corporate Code of Conduct that mandates compliance with all federal laws; all employees are required to report any known or suspected violations to Tyson; none of the Plaintiffs ever reported any illegal alien employees to Tyson; and Tyson was justified in relying upon Plaintiffs failure to report illegal alien hiring to conclude its workforce was legal.
The Court finds it necessary to determine at the outset whether Defendant’s contention the law of the case has already been established on this issue is accurate. After carefully reviewing Judge Edgar’s opinion, the Court does not agree Judge Edgar ruled that estoppel is a valid defense in RICO actions. Judge Edgar merely addressed whether the defense was pleaded in compliance with Fed.R.Civ.P. 8(c). See Court File No. 84, Memorandum and Order, at pp. 4-6. Judge Edgar did not consider or discuss the legal issues involved nor did he discuss the factual basis for such a defense. Id. In fact, he specifically stated his “decision d[id] not preclude the parties from filing motions for summary judgment under Fed.R.Civ.P. 56 concerning the estoppel defense once there has been discovery.” Id. at 6. Because this issue has not been decided by Judge Edgar or by this Court, the Court is not bound by any earlier ruling and will proceed to address the issue.
There is not much case law addressing the availability of estoppel as an affirmative defense in RICO actions. In fact, the Court only found one case where a Plaintiff contended the defense was not available in RICO actions. See United Power Ass’n., Inc. v. L.K. Comstock & Co., No. 3-89 CIV 766, 1992 WL 402906, *7 (D.Minn. October 27, 1992) (“Plaintiffs argue that these equitable defenses [waiver, laches and estoppel] are not available in an antitrust /RICO action”).4 However, there is ample case law agreeing with Plaintiffs’ position that estoppel is not available as a defense in private antitrust law suits. Teletronics Proprietary, Ltd. v. Medtronic, Inc., 687 F.Supp. 832, 841 (S.D.N.Y.1988) (“ ‘[I]t is highly unlikely that estoppel can be readily allowed to defeat antitrust claims.’ ”) (quoting Bernstein v. Universal Pictures, Inc., 517 F.2d 976, 981 (2d Cir.1975)); Am. Motor Inns, Inc. v. Holiday Inns, Inc., 365 F.Supp. 1073, 1098 (D.N.J.1973) (“The common law defenses of laches,

waiver and estoppel have no application in a federal antitrust action.”), rev’d in part on other grounds by, 521 F.2d 1230 (3rd Cir.1975); South-East Coal Co., 434 F.2d at 784 (noting the estoppel defense might be proper in certain negligence and contract cases but there is no evidence Congress intended it to be a defense in antitrust cases); Int’l Tel. & Tel. Corp. v. Gen. Tel. & Elec. Corp., 296 F.Supp. 920, 926 (D.Haw.1969) (“The doctrines of estoppel and waiver do not in general apply in transactions that are forbidden by statute or that are contrary to public policy.”) (quoting Am. Sur. Co. of New York v. Gold, 375 F.2d 523, 528 (10th Cir.1966)).

4

The Court notes the court in United Power Association,

Inc. rejected Plaintiff’s argument; however, it did not

do so on the merits of the plaintiff’s argument. Rather,

it was because the equitable defenses were so closely

intertwined with other issues the court did not feel

summary judgment was appropriate.

*4 Likewise, there is sufficient case law supporting Plaintiffs’ contention Congress closely patterned RICO after the Clayton and Sherman antitrust acts. See Agency Holding Corp. v. Malley-Duff & Assoc., 483 U.S. 143, 150 (1987) (noting “[e]ven a cursory comparison of the two statutes reveals that the civil action provision of RICO was patterned after the Clayton Act.”); Trollinger v. Tyson Foods, Inc., 370 F.3d 602, 612 (6th Cir.2004) (recognizing Congress modeled RICO’s civil-suit provision on similar language in the antitrust laws (§ 4 of the Clayton Act and § 7 of the Sherman Act)).
Since RICO was closely modeled after the Clayton Act and the Sherman Act, it logically follows the estoppel defense should be precluded from RICO actions, just as it is precluded from antitrust actions. Compare Agency Holding Corp., 483 U.S. at 152 (holding the 4-year statute of limitations for a Clayton Act action is the most appropriate limitations period for RICO actions due to the similarities in purpose and structure between RICO and the Clayton Act and the clear legislative intent to pattern RICO’s civil enforcement provision on the Clayton Act); Trollinger, 370 F.3d at 612 (holding because Congress modeled RICO’s civil suit provision after antitrust laws and antitrust laws require a private plaintiff show proximate cause in order to have standing to sue, RICO civil claims also require proximate cause). Accordingly, the Court will GRANT Plaintiffs’ motion for summary judgment as to Defendants’ first affirmative defense (estoppel) (Court File No. 186).5
3

Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

5

Since the Court finds estoppel is not available as an

affirmative defense in RICO actions, there is no need to

address whether a genuine issue of material fact exists

in this case with respect to such a defense.

B. Statute of Limitation Affirmative Defense Because Defendants concede the statute of limitations affirmative defense is not applicable, the Court will GRANT Plaintiffs’ motion for summary judgment on this issue (Court File No. 188).
C. Scope of Employment Affirmative Defense Plaintiffs allege they are entitled to summary judgment as to the scope of employment affirmative defense because Defendants have produced no evidence to support that defense, and even if there is some evidence to support such a defense, the individual defendants are not entitled to summary judgment because they are liable for their own individual actions. Defendants point to evidence they suggest shows any “wrongdoing was committed by individuals who were acting pursuant to their own agendas and for their own benefit, and were not acting pursuant to any so-called “Willful Blindness Policy.” Def.’s Memo at 6. They also argue to the extent there may have been violations of the law these violations were committed without the knowledge of the corporation and in violation of the corporation’s specific instructions to its employee.
Generally, a corporation may be held liable for the criminal acts of its employees and agents done within the scope of their employment with the intent to benefit the corporation. United States v. Peterson, Nos. 97-4469, 97-4470, 1999 WL 685917, at *12 (6th Cir. Aug. 23, 1999); United States v. Carter, 311 F.2d 934, 941-42 (6th Cir.1963); Cont’l Baking Co. v. United States, 281 F.2d 137, 149 (6th Cir.1960). This general rule applies to RICO actions. See Davis v. Mutual Life Ins. Co. of New York, 6 F.3d 367, 379 (6th Cir.1993) (noting vicarious liability under RICO may be imposed on corporate “persons” on account of the acts of their agents, particularly where the corporation benefitted by those acts).
*5 Based upon the arguments advanced by the parties, the Court is not willing to conclude summary judgment is

appropriate as to Tyson’s scope of employment affirmative defense. It seems to the Court the issue of whether the employees’ actions benefitted Tyson is fact determinative. At this stage of the litigation the Court must assume all the facts stated by Defendants are true. If all the facts as Defendants have stated them are true, it may be that certain acts committed by Tyson employees and agents were outside the scope of their employment. Accordingly, the Court will DENY Plaintiffs’ motion for summary judgment as to Tyson on this issue.
Of course, the Court’s action on this affirmative defense as to Tyson has no application to any individual defendant’s liability or responsibility for their own personal conduct. Defendants appear to argue the individual defendants should not be held liable for the actions of others merely because of their status as officers, employees or agents of Tyson. Defendants’ argument is misplaced, however, since Plaintiffs accuse the individual defendants of violating RICO by conspiring to violate RICO and execute the “Illegal Immigrant Hiring Scheme.” Complaint at ¶ 57. Thus, it is clear Plaintiffs are not attempting to hold the individual defendants liable for the acts of others. Rather, Plaintiffs are alleging the individuals defendants themselves committed the violations. Since individual defendants are liable for their own actions regardless of whether they were acting in the scope of employment, Defendants’ third affirmative defense is inapplicable to the individual defendants. See United States v. Wise, 370 U.S. 405, 416 (1962) (holding “a corporate officer is subject to prosecution under § 1 of the Sherman Act whenever he knowingly participates in [the] ... conspiracy-be he one who authorizes, orders, or helps perpetrate the crime-regardless of whether he is acting in a representative capacity.”); A & M Records, Inc. v. M.V.C. Distrib. Corp., 574 F.2d 312, 315 (6th Cir.1978) (“[A] corporate officer or agent is personally liable for torts committed by him even though he was acting for the benefit of the corporation.”). Thus, the Court will GRANT Plaintiffs’ motion for summary judgment as to Defendants’ third affirmative defense with respect to the individual defendants (Court File No. 190).6

6

The Court notes in responding to Plaintiff’s motion,

Defendants made reference to the fact Judge Edgar had

already held the scope of employment defense was

available, and as such, the law of the case had been

established on this issue. While it is true Judge Edgar

had stated Tyson had a right to defend itself in such a

manner, he never stated the individual defendants had

such a right. See Court File No. 84, Memorandum and

Order, at 13. Therefore, there had been no prior

4

Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

determination as to the availability of the defense to the individual defendants, and accordingly, no “law of the case” on this issue.
III. CONCLUSION For the reasons stated above, the Court will GRANT Plaintiffs’ motions for summary judgment as to

Defendants first and second affirmative defenses (Court File Nos. 186 & 188). However, the Court will GRANT IN PART AND DENY IN PART Plaintiffs’ motion for summary judgment as to Defendants’ third affirmative defense (Court File No. 190).
An Order shall enter.

5

 
 Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

2007 WL 1574275 United States District Court,
E.D. Tennessee, Winchester Division.
Birda TROLLINGER, Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham and Alexander Howlett, individually and on behalf of all others similarly
situated Plaintiffs, v.
TYSON FOODS, INC., John Tyson, Archibald Schaffer III, Richard, Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt and Tim
McCoy, Defendants.
No. 4:02-CV-23. | May 29, 2007.
Attorneys and Law Firms
Howard W. Foster, Johnson & Bell, Ltd., Chicago, IL, William G. Colvin, Shumacker, Witt, Gaither & Whitaker, PC, Thomas Clifton Greenholtz, Chambliss, Bahner & Stophel, P.C., Chattanooga, TN, for Plaintiffs.
Christopher H. Steger, Roger W. Dickson, Travis R McDonough, Miller & Martin, Chattanooga, TN, Colleen M. Lauerman, Frank R. Volpe, Mark D. Hopson, Thomas C. Green, Sidley, Austin, Brown & Wood, Washington, DC, for Defendants.
Opinion
MEMORANDUM
CURTIS L. COLLIER, Chief United States District Judge.
*1 Before the Court is Defendants Tyson Foods, Inc., John Tyson, Archibald Schaffer III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, and Tim McCoy’s (collectively, “Defendants” or “Tyson”)’ motion to dismiss (Court File No. 259) filed on March 2, 2007. Plaintiffs Birda Trollinger, Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham and Alexander Howlett (collectively “Plaintiffs”) filed a response (Court File No. 282), and Defendants filed a reply to Plaintiffs’ response

(Court File No. 288). Recently, Plaintiff filed a supplemental brief (Court File No. 307) to inform the Court of the recent decision in Brewer v. Salyer, No. CV F 06-01324, 2007 WL 1454276 (E.D.Cal. May 17, 2007)1, and Defendants, in turn, filed a response to Plaintiffs’ supplemental brief (Court File No. 308). After carefully considering the arguments of counsel and the applicable law, the Court will DENY Defendants’ motion to dismiss (Court File No. 259).

1

The Brewer court addressed a motion to dismiss a

complaint similar to the one in this case, and the motion

was based on similar grounds as the one the defendants

in this case have filed.

I. STANDARD OF REVIEW Although Defendants do not state the theory under which they bring this motion, the Court considers it being brought pursuant to Fed.R.Civ.P. 12(b)(6). A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure requires the Court to construe the complaint in the light most favorable to the plaintiff, Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir.1998); State of Ohio ex rel. Fisher v. Louis Trauth Dairy, Inc., 856 F.Supp. 1229, 1232 (S.D.Ohio 1994), accept all the complaint’s factual allegations as true, Bloch, 156 F.3d at 677; Broyde v. Gotham Tower, Inc., 13 F.3d 994, 996 (6th Cir.1994), and determine whether “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 511-12 (6th Cir.2001); Cameron v. Seitz, 38 F.3d 264, 270 (6th Cir.1994); Broyde, 13 F.3d at 996; Meador v. Cabinet for Human Resources, 902 F.2d 474, 475 (6th Cir.1990), cert. denied, 498 U.S. 867 (1990); Phillips v. Capital Toyota, Inc., No. 1:05-CV-215, 2006 WL 1408688, at *1 (E.D.Tenn. May 22, 2006); Coffey v. Chattanooga-Hamilton County Hosp. Auth., 932 F.Supp. 1023, 1024 (E.D.Tenn.1996). The Court may not grant such a motion to dismiss based upon a disbelief of a complaint’s factual allegations. Miller v. Currie, 50 F.3d 373, 377 (6th Cir.1995) (noting courts should not weigh evidence or evaluate the credibility of witnesses); Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir.1990). The Court must liberally construe the complaint in favor of the party opposing the motion. Miller, 50 F.3d at 377; Louis Trauth Dairy, Inc., 856 F.Supp. at 1232.
1

Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

In deciding a motion to dismiss, the question is “not whether [the] plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002). However, bare assertions of legal conclusions are insufficient. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988). The “complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.” Id. The purpose of a motion pursuant to Fed.R.Civ.P. 12(b)(6) is to allow the defendant to test whether, as a matter of law, the plaintiff is entitled to the legal relief sought even if all the allegations in the complaint are true. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993).

II. RELEVANT FACTS AND PROCEDURAL HISTORY *2 This case commenced when Plaintiffs filed their complaint on April 2, 2002 (Court File No. 1). Subsequently, Plaintiffs filed amended complaints with the latest filed on June 24, 2005 (the Court will simply refer to the latest filed complaint as “Complaint”) (Court File No. 3, Plaintiffs’ First Amended Complaint; Court File No. 115, Plaintiffs’ Second Amended Complaint). In each complaint, Plaintiffs allege a cause of action based upon the civil provisions of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1964.2 Plaintiffs’ RICO cause of action is based upon 18 U.S.C. § 1962(c),3 which makes it unlawful to conduct the affairs of a RICO enterprise through a pattern of racketeering, and § 1962(d)4, which makes it unlawful to conspire to commit a RICO violation. Racketeering activities are defined in 18 U.S.C. § 1961.

2

Section 1964(c), Title 18, United States Code, provides:

“[a]ny person injured in his business or property by

reason of a violation of section 1962 of this chapter

may sue therefor in any appropriate United States

district court and shall recover threefold the damages he

sustains and the cost of the suit, including a reasonable

attorney’s fee, except that no person may rely upon any

conduct that would have been actionable as fraud in the

purchase or sale of securities to establish a violation of

section 1962.”

3

Section 1962(c) provides: “[i]t shall be unlawful for

any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity....”

4

Section 1962(d) provides: “[i]t shall be unlawful for

any person to conspire to violate any of the provisions

of subsection (a), (b), or (c) of this section.”

Plaintiffs rely upon § 1961(1)(F) which defines a racketeering activity as “any act which is indictable under the Immigration and Nationality Act, section 274 (relating to bringing in and harboring certain aliens), section 277 (relating to aiding or assisting certain aliens to enter the United States), or section 278 (relating to importation of alien for immoral purpose) if the act indictable under such section of such Act was committed for the purpose of financial gain.” Specifically, Plaintiffs allege a pattern of racketeering activity consisting of predicate racketeering acts of knowingly hiring 10 illegal aliens, during any 12-month period,5 and illegally harboring illegal aliens.6 Both of these activities are made unlawful by 8 U.S.C. § 1324.

5

Knowingly hiring 10 or more illegal aliens in a

12-month time period is made an offense by 8 U.S.C. §

1324(a)(3)(A)-(B), which provide:

(A) Any person who, during any 12-month period,

knowingly hires for employment at least 10

individuals with actual knowledge that the

individuals are aliens described in subparagraph

(B) shall be fined under Title 18 or imprisoned for

not more than 5 years, or both.

(B) An alien described in this subparagraph is an

alien who-

(i) is an unauthorized alien (as defined in section

1324a(h)(3) of this title), and

(ii) has been brought into the United States in

violation of this subsection.

6

Bringing into the United States, transporting,

encouraging, harboring and other acts of assistance to

illegal aliens is made an offense by 8 U.S.C. §

1324(a)(1)(A), which provides:

Any person who-

(i) knowing that a person is an alien, brings to or

attempts to bring to the United States in any

manner whatsoever such person at a place other

2

Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien; (ii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law; (iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation; (iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law; or (v)(I) engages in any conspiracy to commit any of the preceding acts, or (II) aids or abets the commission of any of the preceding acts, shall be punished as provided in subparagraph (B).

Defendants have filed two previous motions to dismiss or for judgment on the pleadings (Court File Nos. 11, 162).7 The relevant facts in this case were previously summarized by the Court in the Memorandum (Court File No. 174) explaining the Court’s reasoning supporting its decision on the Defendants’ most recent motion for judgment on the pleadings. The Court does not deem it necessary to restate the facts here but will refer to the facts stated in that memorandum as necessary.

7

The Court does not discern anything in this latest

motion to dismiss that was not known at the time the

earlier motions were filed. Plaintiffs’ theory has

remained the same, and there has been no change in the

law. Even though this motion could and should have

been filed earlier, the Court agreed at the Management

Conference to entertain this motion. However, unless

compelling reasons dictate the Court do so, the Court

will not accept any additional motions to dismiss the

complaint or motions on the pleadings as a matter of

law unless it can be clearly established the grounds for

such a motion could not have been known prior to the

Management Conference. In their response, Plaintiffs

contend this motion should not have been brought considering the decision of the Sixth Circuit in Trollinger v. Tyson Foods, Inc., 370 F.3d 602 (6th Cir.2004). According to Plaintiffs, the Trollinger opinion constitutes the law of the case since the issues raised in the present motion were expressly or impliedly decided by the appellate court and absent extraordinary conditions, that decision cannot be disregarded.
In this motion, Defendants seek dismissal of the Complaint because Defendants allege the Complaint fails to allege a necessary RICO predicate act, that is, Defendants “ ‘knowingly hire[d] for employment at least 10 individuals with actual knowledge’ that the individuals are ‘unauthorized’ aliens and that those aliens were ‘brought into the United States in violation [8 U.S.C. § 1324],’ “ and the Complaint fails to allege a viable RICO enterprise (Court File No. 259, Defendants’ Motion to Dismiss (“Def .’s MTD”), at p. 7-8).
III. ANALYSIS
A. The Complaint The proper starting point in the analysis is to examine the allegations contained in the Complaint. Next, the Court must compare those allegations with the requirements of the law as stated above.
The second amended complaint is sixteen pages in length and attempts to set out the essence of Plaintiffs’ claims. The Complaint alleges Defendants “knowingly hir[ed] a workforce substantially comprised of undocumented illegal immigrants for the express purpose of depressing wages.” Compl. at ¶ 2. Beginning on page 5, the Complaint details what Plaintiffs allege Defendants did to subject them to liability. Under the heading “The Illegal Immigrant Hiring Scheme: Tyson Requires Its Hiring Personnel To Be Willfully Blind And Subvert The Law Against Hiring Unauthorized Immigrants,” the Complaint alleges Defendants “engaged in a long-term pattern and practice of violating [the Immigration Reform and Control Act8] and § 274 of the Immigration and Nationality Act, 8. U.S.C. § 1324(a)(3)(A).... “Compl. at ¶ 24. In support of the allegation Defendants engaged in a pattern and practice of violating and subverting the law, the Complaint states Tyson signs Employment Eligibility Verification Forms (I-9 forms) in mass quantities before any documents are inspected, more than three days after new hires have been employed, and based upon a review
3

Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

of copies of documents rather than reviewing the original documents. Id. at ¶ 24(a). The Complaint further alleges Tyson prohibits its employees from taking into account obvious facts which indicate that documents do not relate to the people tendering them; rehires persons whom it previously hired under different names, usually after a short absence; hires workers who appear decades younger than the pictures on their stolen identity documents; uses temporary employment placement services to hire illegal immigrants and then “loan” them to Tyson for a fee; and gives employees leave to “get good documents” after Tyson learns the initial documents submitted by the illegal alien actually belong to someone else; these employees are then rehired under the new identities, but often retain their seniority based upon their initial hire date. Id. at ¶ 24(b)-(f). According to the Complaint, Tyson supervisors often asked those employees, “Who are you this week?” Id. at ¶ 24(f). Plaintiffs also allege Tyson provided new hires with money to obtain housing, food, and other living supplies as well as transportation to and from Tyson facilities. Id. at ¶ 24(g). Plaintiffs allege the described policy was implemented by Tyson’s Senior Vice President of Human Resources in the late 1980’s and has been approved by all Defendants. Id. at ¶ 25.

8

Immigration Reform and Control Act (“IRCA”), 8

U.S.C. § 1324(a) et seq.

*3 In the next section of the Complaint, “Tyson Uses The Basic Pilot Program As A Fig Leaf To Subvert IRCA,” Plaintiffs claim Tyson “has used the federal government’s Basic Pilot Program9 in order to give the appearance of complying with IRCA while the company is actively subverting the law.” Id. at ¶ 26. The Complaint alleges Basic Pilot “does not establish that the person presenting the documents is the issuee.” Id. at ¶ 27. According to the allegations, Tyson does not verify its employees are not illegal aliens. “Thus, Tyson is abusing Basic Pilot to subvert its IRCA obligations, turning the program into a fig leaf to ward off future raids and enforcement actions.” Id.

9

Basic Pilot is a program that allows an employer to

check an employee’s employment authorization.

Following this section, the Complaint details what it says is the story of one illegal alien improperly using the name, social security number and birth certificate of a United States citizen named Dalia Gutierrez. Plaintiffs allege Tyson learned this person was an illegal alien and

conducted an investigation. Compl. at ¶ 31. Following the investigation, Tyson simply accepted another set of documents in the name of Dalia Gutierrez. Id. This section further alleges “Tyson has hired hundreds of ‘Dalia Gutierrez’ workers at each of the facilities each year since 1996 in the same manner. In every case, Tyson’s hiring personnel knew that the workers were unauthorized for employment but still employed the workers, pursuant to the Illegal Immigrant Hiring Scheme, established by the individual defendants.” Id. at ¶ 33.
On page 8 of the Complaint, under the heading “Tyson Harbors Illegal Immigrants,” the Complaint says numerous Tyson facilities have been raided or investigated by federal immigration authorities. Id. at ¶ 34. It goes on to allege when Tyson hears rumors of an impending raid, “Tyson supervisors tip off known illegal immigrants and recommend they leave the plant.” Id. The Complaint also alleges “Tyson rents trailers and other cheap housing units for its illegal workers, typically through front companies. It uses fronts because many landlords refuse to rent housing to Tyson, knowing it will be used to harbor illegal immigrants. This is particularly prevalent in the area of northern Alabama know as ‘Little Tijuana,’ where the facilities in that state are located. This is another widespread method of harboring illegal immigrants.” Id. at ¶ 35.
Following these factual allegations, the Complaint sets out two Racketeering Acts, (1) knowingly hir[ing] more than 10 unauthorized, illegal immigrants each year, since the enactment of § 1324(a)(3)(A), in each facility, and (2) violating § 1324(a)(1)(A)(iii), by harboring unauthorized, illegal immigrants with knowledge or reckless disregard that each illegal immigrant entered the United States illegally. Id. at ¶¶ 36-37. Plaintiffs allege Tyson’s hiring of the illegal aliens constitutes harboring as well as Tyson’s actions in shielding the illegal aliens from detection by federal immigration officials and its actions in providing the illegal aliens with housing. Id. at ¶ 37.
*4 In the next major heading, “The RICO Enterprises,” the Complaint sets out three separate collectives it alleges constitute enterprises under the RICO statute. First, it alleges Tyson’s association with certain temporary employment services constitutes a RICO enterprise. Compl. at ¶¶ 39-45. Second, it alleges the individual defendants entered into a conspiracy to carry out the alleged Illegal Immigrant Hiring Scheme. Id. at ¶¶ 46-48. These individual defendants agreed this scheme would be conducted through Tyson, “which is an enterprise.” Id. at
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Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

¶ 48. Finally, Plaintiffs allege Tyson and certain “Hispanic Groups” formed an association-in-fact RICO enterprise. Id. at ¶¶ 49-56.
B. Tyson’s Motion to Dismiss
1. Mens Rea For A Predicate Hiring Offense Under RICO Tyson argues the Complaint is deficient because it fails to allege a sufficient mens rea. Defendants argue the predicate acts here require a heightened showing of scienter, and Plaintiffs have failed to plead that heightened scienter. Defendants also argue § 1324(a)(3), requires both that a defendant knowingly hire at least 10 individuals with actual knowledge the illegal aliens were unauthorized aliens, and the aliens were brought into the United States in violation of § 1324. In other words, in addition to knowledge the alien was an unauthorized alien, the defendant must also have knowledge the illegal alien had been smuggled into the United States or had evaded lawful entry.
Defendants cite to Commercial Cleaning Servs., LLC v. Colin Serv. Sys., Inc., 271 F.3d 374, 387 (2d Cir.2001) and Sys. Mgmt., Inc. v. Loiselle, 91 F.Supp.2d 401, 408-09 (D.Mass.2000), in support of their argument. In Commercial Cleaning the court held that a complaint was deficient in failing to allege the defendant had actual knowledge that the illegal aliens it hired were brought into the United States in violation of § 1324(a). 271 F.3d at 387. The panel in Commercial Cleaning relied upon Loiselle . The district court in Loiselle concluded that a civil RICO claim premised upon § 1324(a)(3)(B)(ii) requires that a plaintiff allege the defendant had knowledge of how the illegal aliens had been brought into the United States and that the illegal aliens were brought into the United States in violation of this provision. 91 F.Supp.2d at 408-09.
These are the only two cases to adopt this position. Defendants properly brought to the Court’s attention the contrary authority of Williams v. Mohawk Indus., Inc., 314 F.Supp.2d 1333 (N.D.Ga.2004), aff’d in part, rev’d in part and remanded 411 F.3d 1252, cert. granted in part 126 S.Ct. 830, 163 L.Ed.2d 705, miscellaneous rulings 126 S.Ct. 1671, 164 L.Ed.2d 395, cert. dismissed as improvidently granted 126 S.Ct. 2016, 164 L.Ed.2d 776, on remand to 465 F.3d 1277, cert. denied by 127 S.Ct. 1381, 167 L.Ed.2d 174. In that case, the district court applied the liberal pleading standards of Fed.R.Civ.P. 8 to a RICO action involving non-fraud, immigration offenses

as predicate activities, and not heightened pleading requirements of Rule 9(b).
*5 Generally, in federal courts only liberal notice pleading is required. Fed.R.Civ.P. 9(b) provides, “Malice, intent, knowledge and other conditions of mind of a person may be averred generally.” Plaintiffs cite Vector Research, Inc. v. Howard & Howard Attorney’s P. C., 76 F.3d 692, 700 (6th Cir.1996), in which the court reversed the dismissal of the complaint where the district court imposed a heightened pleading standard, requiring “facts” to establish “malice.” See also Hernandez v. Balakian, 480 F.Supp.2d 1198, 2007 WL 926813, at *7 (E.D.Cal. Mar. 27, 2007) (denying the defendants’ motion to dismiss a RICO action due to a suggestion in Mendoza v. Zirkle Fruit Co., 301 F.3d 1163, 1168 (9th Cir.2002) that “the Ninth Circuit will not require the specific pleading mandated by Loiselle with regard to pleading the predicate act set forth in Section 1324(a)(3)” and the requirements of notice pleading).
Except in limited circumstances, Rule 8 dictates the pleading requirements of a complaint. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit et al., 507 U.S. 163, 168 (1993). “Rule 8(a)(2) requires that a complaint include only ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’ “ Id. While Rule 9(b) requires greater particularity in pleading certain actions, RICO actions are not included in Rule 9, and as such, can be pled according to Rule 8 standards. See id. (reversing the Fifth Circuit’s requirement of heightened pleading in cases alleging municipal liability, stating, “the Federal Rules do address in Rule 9(b) the question of the need for greater particularity in pleading certain actions, but do not include among the enumerated actions any reference to complaints alleging municipal liability under [42 U.S.C.] § 1983.”). See also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002) (holding an employment discrimination complaint need not contain specific facts establishing a prima facie case since imposing a heightened pleading standard would conflict with Fed.R.Civ.P. 8(a)(2), which provides a complaint must include only “a short and plain statement of the claim showing that the pleader is entitled to relief”). Under Leatherman and Swierkiewicz, federal courts may not impose more onerous pleading standards than found in the Federal Rules of Civil Procedure. Based upon Leatherman, Swierkiewicz, and the reasoning of Williams, this Court will use the liberal pleading standard of Rule 8(a) and ascertain whether “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Swierkiewicz, 534
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Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

U.S. at 514 (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
By its terms, section 1324(a)(3)(A) requires a defendant to knowingly hire at least 10 individuals with actual knowledge these individuals have been brought into the United States in violation of section 1324(a)(3). As far as the Court can ascertain, no other court has addressed this argument. While courts have held that knowledge of the illegal alien’s status is an essential element of the offenses of harboring and concealing an alien under section 1324(a)(1), United States v. Mack, 112 F.2d 290 (2d Cir.1940), there are few courts that have addressed with any precision the meaning of the language “has been brought into the United States.” Perhaps the most extensive discussion was given in United States v. Yoshida, 303 F.3d 1145, 1151-52 (9th Cir.2002). There, the Ninth Circuit stated, after a detailed analysis of IRCA’s change to 8 U.S.C. § 1324(a)(2), that “[t]he statute itself conclusively indicates that Congress intended a broad definition of bring: brings to or attempts to bring to the United States in any manner whatsoever.” Id. at 1152 (emphasis in original) (internal quotations omitted). Applying this standard, the Yoshida court held that escorting aliens to a commercial airliner, which then transported them to the U.S. and through a port of entry at a U.S. airport, was sufficient to violate the statute. Id.
*6 Defendants argue this language necessarily must be limited to subsection (a)(1)(A)(i) and does not include the prohibitions in the other subsections.10 Assuming Defendants are correct, the question then becomes have Plaintiffs either directly or inferentially alleged Defendants knowingly hired illegal aliens and hired them with actual knowledge the illegal aliens had been brought into the United States “in any manner whatsoever ... at a place other than a designated port of entry or place other than as designated by the Commissioner ....“ § 1324(a)(1)(A)(i). There is no requirement that the Defendant be the one who brought the illegal alien into the United States. Thus, for a plaintiff to plead a violation of the statute prohibiting employment of unauthorized aliens, as a predicate act in a RICO case, the plaintiff must simply allege that the aliens were brought into the United States for the purpose of illegal employment, but there is no requirement that the employer must have brought the aliens into this country. Mohawk Industries, Inc., 314 F.Supp.2d at 1346.

10

Although Defendants focus on section 1324(a)(1)(A)(i),

subsections (a)(1)(A)(ii) through (a)(1)(A)(v) prohibit

other illegal immigration related activities. Defendants

are correct 1324(a)(1)(A)(i), contemplates smuggling. However, § 1324(a)(1)(A)(ii) prohibits transportation of an illegal alien, with knowledge or with reckless disregard of the illegal status of the alien. Section 1324(a)(1)(A)(iii), prohibits concealing, harboring, or shielding from detection, any illegal alien, with knowledge or reckless disregard of the illegal status of the alien. Section 1324(a)(1)(A)(iv), prohibits encouraging or inducing an alien to come to the United States, knowing or in reckless disregard of the fact the illegal alien’s coming to, entry, or residence will be illegal. Section 1324(a)(1)(A)(v) makes it unlawful to conspire or to aid and abet any of the prohibitions of sections 1324(a)(1)(A)(i)-(v).
The Complaint alleges Defendants “engaged in a long-term pattern and practice of violating the IRCA,” hired workers who it previously hired under different names, hired workers who appeared decades younger than the pictures on their identity documents, used temporary employment placement services to hire illegal immigrants, and allowed employees leave to get “get good documents” after Tyson learned the original documents submitted actually belonged to someone else. The Complaint alleges Tyson knowingly hires a workforce substantially comprised of illegal aliens. From these allegations one can only conclude that Tyson hires hundreds of these illegal aliens through the alleged process. These allegations are sufficient to allege Defendants knowingly hired unauthorized aliens.
Since the Court has concluded the Complaint adequately alleges Defendants had knowledge of the illegal status of the illegal aliens, the Court must next consider whether the Complaint, directly or inferentially, alleges Defendants had actual knowledge of a violation of § 1324(a)(1)(A)(i). The Court accepts Defendants’ formulation of actual knowledge as a subjective belief that something is true. (Def.’s MTD at p. 12) (citing United States v. One 1973 Rolls Royce, 43 F.3d 794, 813 (3d Cir.1994)). See also Brody v. Village of Port Chester, et al., No. 00 Civ. 7481, 2007 WL 735022, *6 (S.D.N.Y. Mar. 12, 2007) (stating “actual knowledge refers to a subjective state of mind”) (internal quotations omitted).
Using this formulation, the Court will examine the Complaint to see if it contains allegations, either direct or inferential, that indicates a subjective belief on the part of Defendants it employed illegal aliens that had been brought into the United States illegally. The Court must consider the Complaint as a whole and not limit itself to isolated portions of the Complaint, and the Court must
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Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

endeavor to give meaning to every word of the Complaint. The Court conducts this examination in the context of the commonly understood problem with illegal immigration in the country. With this context, the Court notes the Complaint alleges Defendants have hired “a workforce substantially comprised of undocumented illegal immigrants for the express purpose of depressing wages”; “[p]rohibiting hiring personnel from taking into account obvious facts which indicate that documents do not relate to the people tendering them”; “[r]ehiring persons whom it previously hired under different names, usually after a short absence during which they have acquired a new, stolen identity”; [h]iring workers who appear decades younger than the pictures that appear on their stolen identity documents”; “[u]sing temporary employment placement services to hire illegal immigrants and then ‘loan’ them to Tyson for a fee”; “[g]iving employees leave to ‘get good documents’ after Tyson has been informed their employment authorization documents actually belong to someone else”; “rehiring these employees under new identities but then providing the employees the same seniority as under the old identity”; “Tyson supervisors will often ask these employees, ‘Who are you this week?’ “; “[g]iving newly hired workers money to obtain housing, food, and other living supplies ..., as well as providing transportation to and from the Tyson facility, which, when coupled with their inability to speak English,” should have placed Defendants on notice these workers were not United States citizens nor lawful permanent residents. Complaint at ¶¶ 2, 24(b)(g).
*7 The Complaint goes on to state “[t]he result of Tyson’s policies ... is the knowing employment of thousands of illegal immigrants using stolen identity documents”; “Tyson has hired hundreds of ‘Dalia Gutierrez’ workers at each of the facilities each year since 1996 in the same manner”; “[n]umerous Tyson facilities have been raided and/or investigated by federal immigration authorities”; “[w]hen [rumors of immigration raids] spread, Tyson supervisors tip off known illegal immigrants and recommend they leave the plant”; “Tyson rents trailers and other cheap housing units for its illegal workers, typically through front companies”; and an area in northern Alabama, particularly the area where a Tyson facility is located, is known as ‘Little Tijuana.’ “ The reference to Tijuana is an indication the aliens are from Mexico. Assuming these allegations are true, which the Court must do, one can readily conclude Tyson not only hires large numbers of illegal aliens, but actively seeks them out because it realizes it can pay them much less in wages. The illegal alien population sought out is largely if not entirely from Mexico. Tyson knew some number of

these illegal aliens were not from the areas surrounding its facilities, for that reason it had to obtain housing for them. From raids on its facilities by Immigration authorities Tyson knew the Government was concerned about its hiring practices. From these raids, Tyson would have learned its work force was not made up illegal aliens that overstayed their visas or who were properly admitted into the United States but then violated their immigration status. From the alleged widespread use of fraudulent documents, Tyson knew it was the ultimate destination of large numbers of illegal aliens seeking employment. From the alleged conduct of its supervisors in joking about false identities, warning illegal aliens of raids, and rehiring individuals after their documents had been determined to be false, Tyson knew it had workers that had been brought into the United States illegally. In the context of the present illegal immigration problem in the United States, it is widely, if not universally, known that illegal immigration from Mexico is done in substantial part through smuggling. It is also of note that Tyson’s processing plants are all located in areas where the predominant illegal alien population is from Mexico. This knowledge along with the above allegations satisfies the requirement that the Complaint alleges Defendants had a subjective belief that large numbers of its illegal alien employees had been brought into the United States illegally.
This conclusion is supported by Mohawk Industries, Inc., 465 F.3d at 1283 (in a complaint very similar to the complaint in this case, the court determined the complaint adequately alleged a pattern of racketeering activity made up of knowingly hiring for employment at least 10 illegal aliens with actual knowledge they were illegal aliens during a 12-month period; concealing, harboring and shielding from detection aliens that entered the United States illegally; and encouraging or inducing an alien to come to, enter, or reside in the Untied States knowing that such coming, entry, or residence, would be in violation of the law), and Mendoza v. Zirkle Fruit Co., 301 F.3d 1163, 1168 (9th Cir.2002) (“The complaint [regarding a RICO illegal alien hiring and harboring scheme] alleges that the defendants had knowledge of illegal harboring ‘and/or’ smuggling. Even if knowledge of smuggling were required by the statute, an issue about which we express no opinion, the complaint easily contains this allegation.”).
2. Willful Blindness Policy *8 In an effort to blunt Plaintiffs’ allegation Tyson used the Basic Pilot Program as a subterfuge to violate the law,
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Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

Defendants argued they were obligated to operate as they did to avoid violations of civil statutes and regulations. They cite to certain administrative proceedings to which they were subjected. The Court does not need to devote much time to this. First, Tyson only cites civil statutes and regulations. Here, we are dealing with criminal statutes. To the extent there is a conflict between a criminal and civil statute, obviously the criminal statute prevails. Second, while Defendants argue they operated as they did to avoid civil action by the United States Department of Justice, they also inform the Court they were prosecuted criminally by the Department of Justice. Obviously, their efforts to comply with the civil requirements were not sufficient to persuade the Department of Justice they had not committed the more serious criminal violations. Finally, the Court is aware of no authority that indicates governmental regulation provides immunity to either criminal or civil liability. To the contrary, it is not unusual for defendants to be subjected to civil lawsuits after substantial governmental regulatory oversight. That occurs frequently with respect to civil actions filed against pharmaceutical companies even though their product had been approved by the Federal Food and Drug Administration. The Court sees nothing in the statutes involved in this litigation that suggest compliance with those statutes provides immunity to defendants.
3. Harboring Violation Tyson asserts the Complaint is deficient because it attempts to allege a Harboring Statute violation by claiming Tyson’s unlawful hiring constitutes harboring. Tyson cites to Susnjar v. United States, 27 F.2d 223, 224 (6th Cir.1928) for the proposition harboring means “to clandestinely shelter, succor, and protect improperly admitted aliens.” Additionally, Defendants rely on Zavala v. Wal-Mart Stores, Inc., 393 F.Supp.2d 295, 307 (D.N.J .2005) to argue hiring, without more, does not constitute harboring.
The Court accepts the Susnjar court’s definition of harboring and finds Plaintiffs’ allegations comply with that definition. In addition to alleging Tyson knowingly hired illegal aliens, the Complaint avers Tyson “shielded illegal immigrants from detection by ... warning them of possible raids and providing them with housing.” Compl. at ¶¶ 34-37. Obviously, this alleges more than mere hiring and is sufficient to plead a harboring violation. See Zavala, 393 F.Supp.2d at 307 (noting allegations an employer provided housing and employment may constitute “harboring”).

See also United States v. Zheng, 306 F.3d 1080, 1086 (11th Cir.2002) (noting an employer harbored illegal aliens by providing both housing and employment, which facilitated the aliens’ ability to remain in the United States illegally).
4. RICO Enterprise *9 Defendants argue Plaintiffs have failed to allege a cognizable RICO enterprise. Specifically, Defendants contend RICO requires plaintiffs to allege Tyson conducted a separate enterprise through a pattern of racketeering activity. Defendants argue all three of the enterprises pled by Plaintiffs are insufficient to allege a RICO enterprise.
The concept of an enterprise is central to a RICO violation. First, RICO makes it unlawful for “any person, through a pattern of racketeering activity ... to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.” 18 U.S.C. § 1962(b). Second, RICO makes it “unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity....” 18 U.S.C. § 1962(c). The term enterprise is defined to include “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4).
Thus, in order to have sufficiently alleged an enterprise, the enterprises identified by Plaintiffs must fit the statute’s definition of an enterprise. Furthermore, the defendants must have conducted or participated, directly or indirectly, in the conduct of the enterprise’s affairs. Last, the defendants must have done so through a pattern of racketeering activity. The Court will address Defendants’ arguments as to each alleged enterprise in turn.
a. The Temporary Employment Services Enterprise Defendants argue the first enterprise alleged by Plaintiffs, the “Temp Agency Enterprise”, fails as a matter of law for two reasons. First, Defendants argue the plain language of the statute provides only a group of individuals may be an association-in-fact enterprise.
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Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

Second, Defendants contend Plaintiffs have failed to allege any ongoing organization or structure for this enterprise as required by law.
The United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”) has expressly rejected Defendants’ first argument, albeit in a nonpublished opinion. See United States v. Collins, Nos. 87-1283 to 87-1286, 87-2038 and 87-2072, 1991 WL 23558, *16 (6th Cir. Feb. 26, 1991) (holding corporations can be “individuals associated in fact.”). As noted by the Collins’ court, other circuits have considered Defendants’ interpretation of an association-in-fact enterprise and rejected it. See Williams v. Mohawk, 465 F.3d 1277, 1284 (11th Cir.2006) (holding the plaintiffs’ complaint had sufficiently alleged an association-in-fact between a corporation (Mohawk) and third-party recruiters (temp agencies)); United States v. London, 66 F.3d 1227, 1244 (1st Cir.1995) (rejecting the defendant’s argument an association-in-fact RICO enterprise cannot be comprised of legal entities); United States v. Console, 13 F.3d 641, 652 (3d Cir.1993) (holding an association-in-fact RICO enterprise existed between a law firm and a medical practice), cert. denied, 511 U.S. 1076 (1994); United States v. Blinder, 10 F.3d 1468, 1473 (9th Cir.1993) (holding a group or union consisting solely of corporations or other legal entities can constitute an “associated in fact” enterprise); United States v. Perholtz, 842 F.2d 343, 353 (D.C.Cir.1988) (holding individuals, corporations, and other entities may constitute an association-in-fact).
*10 Most of these decisions rely on the same reasoning, including the fact that “[t]he statute defines ‘enterprise’ as including the various entities specified; the list of entities is not meant to be exhaustive.” Perholtz, 842 F.2d at 353 (emphasis in original). Furthermore, the Supreme Court’s statement that “[t]here is no restriction upon the associations embraced by the definition....”, United States v. Turkette, 452 U.S. 576, 580 (1981), has led courts to reject restrictive definitions of a RICO enterprise. Indeed, Congress has instructed courts to construe RICO “liberally ... to effectuate its remedial purposes.” Pub .L. No. 91-452, § 904(a), 84 Stat. 922, 947 (1970) (reprinted in note following 18 U.S.C. § 1961), quoted in Turkette, 452 U.S. at 587). Accordingly, the Court finds Tyson can be a member of an association-in-fact enterprise.
As to Defendants’ second argument, the Court finds Plaintiffs have sufficiently pled an ongoing organizational structure of this enterprise. An enterprise is proven “by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a

continuing unit.” Turkette, 452 U.S. at 583. Defendants cite United States v. Johnson, 440 F.3d 832, 840 (6th Cir.2006), for the proposition an “enterprise must have a continuity of an informal enterprise.... “ Def.’s MTD at 25. However, a review of the Johnson case reveals Defendants have overstated this requirement. The Johnson court stated in pertinent part:
The hallmark of an enterprise is structure.... [T]here must be some structure, to distinguish an enterprise from a mere conspiracy, but there need not be much. A RICO enterprise is an ongoing structure of persons associated through time, joined in purpose, and organized in a manner amenable to hierarchical or consensual decision-making. The continuity of an informal enterprise and the differentiation among roles can provide the requisite structure to prove the element of enterprise.
440 F.3d at 840 (quoting United States v. Rogers, 89 F.3d 1326, 1337 (7th Cir.1996)).
The Complaint alleges Tyson had on ongoing relationship with temporary employment services whereby the temporary agencies would supply Tyson with mostly illegal workers in exchange for fees ranging from 1998 to 2001. Specifically, Plaintiffs allege: (1) Tyson paid each agency a fee for each worker supplied by the companies; (2) Tyson maintained close relationships with the agencies during the relevant time period, including significant contact and supervision by Tyson; (3) some of the services opened offices inside Tyson’s plants to facilitate the hiring process but Tyson did not charge them rent; (4) Tyson acquiesced in the illegal hiring pursuant to the Willful Blindness Policy; and (5) “Despite language to the contrary in the written contracts, which Tyson used to distance itself from the illegal hiring, ... Tyson [ ] paid each service a fee for its services in procuring low-wage, mostly illegal immigrants.” Compl. at ¶ 43; see also Compl. at ¶¶ 39-42. Despite Defendants’ arguments to the contrary, these allegations provide the necessary continuity and differentiation required to sufficiently plead the ongoing organizational structure for an enterprise. In Mohawk Industries, Inc., for example, the court found similar allegations to be sufficiently pled. See 465 F.3d at 1284 (concluding that an association of Mohawk Industries and “third-party temp
9

Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

agencies/recruiters” supplying mostly illegal immigrants for a fee “sufficiently alleged an enterprise under RICO”).
b. The Hispanic Group Enterprise *11 Defendants also argue the Hispanic Group Enterprise fails as a matter of law for two reasons. First, Defendants contend “there is nothing in the complaint that alleges that Tyson actually is conducting the affairs of any distinct entity or enterprise.” Def.’s MTD at 26. Second, Defendants argue Plaintiffs have not alleged the Hispanic Group Enterprise formed an ongoing organization.
In order to be held responsible under RICO, a defendant must have participated in the scheme and the operation or management of the enterprise itself. Reves v. Ernst & Young, 507 U.S. 170, 185 (1993). “Of course, the word ‘participate’ makes clear that RICO liability is not limited to those with primary responsibility for the enterprise’s affairs, just as the phrase ‘directly or indirectly’ makes clear that RICO liability is not limited to those with a formal position in the enterprise, but some part in directing the enterprises’ affairs is required.” Id. at 179 (emphasis in original).
The Complaint alleges partnerships existed between Tyson and two major Hispanic Groups, League of United Latin American Citizens (“LULAC”) and National Council of La Raza (“NCLR”). The Complaint further alleges Tyson formed long-term partnerships with both LULAC and NCLR whereby the groups requested Tyson to carry out the Willful Blindness Policy, and Tyson acceded to that request. Plaintiffs’ reference to the Willful Blindness Policy incorporates into this section the description of the alleged policy, which was described in paragraphs 23-25 of the complaint. A look at a few examples of how Plaintiffs allege Tyson carried out the Willful Blindness Policy shows they have sufficiently alleged both Tyson’s participation in the enterprise and an ongoing structural organization.
First, Plaintiffs allege pursuant to the Willful Blindness Policy: (1) Tyson signed Employment Eligibility Verification forms (I-9 forms) in mass quantities, before any documents were inspected, more than three days after new hires were employed, and after reviewing copies of the documents presented rather than viewing the original documents; (2) Tyson rehired people under different names, usually after they had taken a short absence and acquired new, stolen identities; (3) Tyson gave employees leave to “get good documents” after Tyson was informed the employees had been using someone else’s identity,

etc. According to the Complaint, the relationships between the two major Hispanic groups was formed in 2001 and has been in continuous existence since that time, resulting in an extremely close relationship between the organization and Tyson. Taking all of these allegations as true, it appears at the direction of the LULAC and NCLR, Tyson carried out a Willful Blindness Policy, rather than smuggling, to ensure illegal aliens would be allowed to find employment. The Court finds Plaintiffs’ allegations are sufficient to survive Defendants’ motion to dismiss.
c. The Tyson Enterprise *12 Defendants move to dismiss the third enterprise alleged by Plaintiffs, the Tyson Enterprise, arguing “the law is clear Tyson Foods cannot be liable for conducting its own affairs through a pattern of racketeering.” Def.’s MTD at 27. Defendants go on to argue this enterprise should be dismissed for the following reasons: (1) Plaintiffs’ allegation that the individual defendants furthered the conspiracy because of their willful blindness to hiring violation is insufficient because Plaintiffs have not pled a hiring violation that is a RICO predicate act and (2) Plaintiffs did not allege the requisite scienter for the individual defendants to be liable for conspiring to conduct the Tyson enterprise through a pattern of racketeering acts.
Defendants’ first statement that Tyson cannot be liable for conducting its own affairs through a pattern of racketeering activity does not provide a ground for dismissing this enterprise. The Court does not read the Complaint as alleging Tyson was conducting its own affairs. Rather, the Complaint alleges the Tyson Enterprise is conducted by the individual defendants, who entered into a conspiracy to carry out the Illegal Immigrant Hiring Scheme. Specifically, the Complaint states the following:
Defendants John Tyson and Lee have approved the Willful Blindness Policy and keep it in place. Defendants Percival, Kimbro, and Lee set compensation levels for hourly paid workers at the facilities which they know are too low to attract sufficient numbers of legal workers to staff the facilities. Defendants John Tyson, Lee, and Kimbro approve of, and participate in, the association with the temporary
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Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

employment services and the Hispanic Groups.... Defendant Schaffer oversees the day-to-day relationships with the Hispanic groups and approves the payments to them. Defendant Wilt carries out the Willful Blindness Policy at her facility and rents housing to illegal immigrants. Defendant McCoy enforces the Willful Blindness Policy at several facilities, reviews I-9 forms which are improperly completed, and then takes no action, thereby ratifying the pattern and practice of I-9 subversion described above. He also recommended, to a meeting of 200 Tyson Human Resources managers, that they hire illegal workers to depress wages and labor costs.
Compl. at ¶ 46. From these allegations, it is clear Plaintiffs are alleging the individual defendants were conducting the affairs of Tyson in a way which violated

RICO. These types of allegations certainly bring this enterprise within the realm of RICO. See Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163 (2001) (noting “an employee who conducts the affairs of a corporation through illegal acts comes within the terms of a statute that forbids any ‘person’ unlawfully to conduct an ‘enterprise’... ).
Since the Court has already held that Plaintiffs have sufficiently pled the predicate acts for a RICO violation, there is no need to address Defendants’ arguments that Plaintiffs did not plead a hiring violation or that the individual defendants did not have the requisite mens rea.
IV. CONCLUSION *13 For the reasons stated above, the Court will DENY Defendants’ motion to dismiss (Court File No. 259).
An Order shall enter.
	  

11

 
 Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

2007 WL 4260817 Only the Westlaw citation is currently available.
United States District Court, E.D. Tennessee,
Winchester Division.
Birda TROLLINGER, Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham and Alexander Howlett, individually and on behalf of all others similarly
situated, Plaintiffs, v.
TYSON FOODS, INC., John Tyson, Archibald Schaffer III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt and Tim McCoy,
Defendants.
No. 4:02–CV–23. | Dec. 3, 2007.
Attorneys and Law Firms
Howard W. Foster, William V. Johnson, Johnson & Bell, Ltd., Chicago, IL, William G. Colvin, Horton, Maddox & Anderson, PLLC, Thomas Clifton Greenholtz, Chambliss, Bahner & Stophel, P.C., Chattanooga, TN, for Plaintiffs.
Christopher H. Steger, Roger W. Dickson, Travis R. McDonough, Miller & Martin, Chattanooga, TN, Colleen M. Lauerman, Frank R. Volpe, Julie G. Koller, Mark D. Hopson, Matthew J. Warren, Thomas C. Green, Sidley, Austin, Brown & Wood, LLP, Washington, DC, for Defendants.
Opinion
MEMORANDUM
CURTIS L. COLLIER, Chief Judge.
*1 Before the Court are Plaintiffs’ Motion to Approve Class Notice (Court File No. 350), Defendants’ Response (Court File No. 370), Plaintiffs’ Reply (Court File No. 372), Defendants’ Motion for a More Definite Class Definition (Court File No. 225), Plaintiffs’ Response (Court File No. 243), and Defendants’ Reply (Court File No. 353). Those filings concern the related issues of the proper scope of the class definition and the appropriate language for the class notice.
Also before the Court are Plaintiffs’ Motion to Compel

Distribution of Class Notice (Court File No. 337), and Defendants’ Response (Court File No. 362).
After reviewing the parties’ submissions, this Court will GRANT in part and will DENY in part Plaintiff’s Motion to Approve Class Notice (Court File No. 350), and will GRANT in part and will DENY in part Defendants’ Motion for a More Definite Class Definition (Court File No. 225). Also, the Court will DENY Defendants’ Motion to Reconsider Class Certification.1 The Court will APPROVE the class notice language provided as Appendix A to the accompanying Order.

1

Defendants move the Court to take action in their

response to Plaintiffs’ motion (Court File No. 370, p.

4), rather than submitting their own motion. However,

Plaintiffs responded to Defendants’ request in their

reply (Court File No. 372, pp. 3–4). The Court sees no

inherent unfairness in considering Defendants’

response as a motion here, and does so for the sake of

judicial economy.

The Court will DENY Plaintiffs’ Motion to Compel Distribution of Class Notice (Court File No. 337). The Court will DENY Defendants’ Motion to Impose Sanctions pursuant to Fed.R.Civ.P. 11 against Plaintiffs for alleged baseless accusations in bad faith (Court File No. 362).2

2

Rather than file a separate motion, as is customary,

Defendants embedded a motion for sanctions in their

Response to the Motion to Compel Distribution of

Class Notice (Court File No. 362). For the sake of

judicial economy, this Court views Defendants’ request

in their response as a motion, and addresses it

accordingly. Since the motion for sanctions is denied,

the Court need not consider whether Defendants

complied with the further requirements for filing such a

motion under Fed.R.Civ.P. 11(c)(1)(A).

I. ISSUES BEFORE THE COURT Plaintiffs Birda Trollinger et al. (“Plaintiffs”) and Defendants Tyson Foods, Inc., et al. (“Defendants”) disagree as to eight primary issues involving class definition, class notice language, and the financial responsibility for distribution of the class notice, as follows:
A. Plaintiffs seek recovery for wage suppression from April 2, 1998 to the present (Plaintiffs’ Second Amended
1

Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

Complaint, Court File No. 115). What is the appropriate date on which to close the class to new Tyson employees?3

3

Defendants’ Memorandum in Support of a More

Definite Class Definition, Court File No. 226, p. 4;

Plaintiffs’ Response to the Motion for a More Definite

Class Definition, Court File No. 243, pp. 3–4;

Defendants’ Reply for a More Definite Class

Definition, Court File No. 353, p. 3.

B. Should the places at which the potential class members worked be classified as “complexes” or “plants”? “Plants” refer only to the “chicken processing plants,” whereas “complexes” include the plants and buildings separate from the production operation, including feed mills, hatcheries, and other buildings and operations .4

4

Defendants’ Memorandum in Support of a More

Definite Class Definition, Court File No. 226, pp. 3–4;

Plaintiffs’ Response to the Motion for a More Definite

Class Definition, Court File 243, p. 2; Defendants’

Reply for a More Definite Class Definition, Court File

No. 353, p. 2; Defendants’ Response to the Motion to

Compel Distribution of Class Notice, Court File No.

362, p. 2, n. 1; Defendants’ Response to the Motion to

Approve Class Notice, Court File No. 370, p. 2.

C. Some of the potential class members may not be able to read or converse in English. How should the class notice address this issue?5

5

Defendants’ Response to the Motion to Approve Class

Notice, Court File Nos. 370, pp. 2–3; Plaintiffs’ Reply

to Approve Class Notice, Court File No. 372, p. 2.

D. Should the definition of the class include a description of the claim?6

6

Defendants’ Memorandum in Support of a More

Definite Class Definition, Court File No. 226, p. 4;

Plaintiffs’ Response to the Motion for a More Definite

Class Definition, Court File No. 243, p. 3; Defendants’

Reply for a More Definite Class Definition, Court File

No. 353, p. 3.

E. Are the methods and proof by which Plaintiffs identify legally-authorized workers, and thus eligible class members, sufficient for the purposes of class definition and notice?7

7

Defendants’ Response to the Motion to Approve Class

Notice, Court File No. 370, p. 4; Plaintiffs’ Reply to

Approve Class Notice, Court File No. 372, pp. 3–4.

F. Should Defendants be compelled to distribute class notice to their current employees?8

8

Plaintiffs’ Memorandum in Support of Compelling

Distribution of Class Notice, Court File Nos. 338, pp.

2–3; Defendants’ Response to the Motion to Compel

Distribution of Class Notice, Court File No. 362, pp.

2–4.

G. Should Defendants be responsible for the costs of distributing class notice to their former employees at the chicken processing plants they no longer own in Ashland and Gadsden, Alabama?9

9

Plaintiffs’ Memorandum in Support of Compelling

Distribution of Class Notice, Court File No. 338, pp.

4–5; Defendants’ Response to the Motion to Compel

Distribution of Class Notice, Court File No. 362, pp.

4–5.

*2 H. Should this Court impose sanctions pursuit to Federal Rule of Civil Procedure 11 against Plaintiffs for submitting allegedly baseless claims?10

10

Defendants’ Response to the Motion to Compel

Distribution of Class Notice, Court File No. 362, pp.

4–7.

The parties agree it is appropriate for Plaintiffs’ counsel to post the class notice and other relevant court documents on its website, for the benefit of class members and potential class members (Defendants’ Response to the Motion to Approve Class Notice, Court File No. 370, p. 4; Plaintiffs’ Reply to Approve Class Notice, Court File No. 372, p. 4, n. 5). Courts have recognized the value of the internet in disseminating information to class members. See Manual for Complex Litigation (Fourth) § 21.311 (2006) (Thomson/West (2006), pp. 385–86). The Court GRANTS Defendants’ motion,11 to which Plaintiffs have consented (Court File Nos. 370, p. 4; 372, p. 4, n. 5), and requires Plaintiffs’ counsel to provide class notice via its website, as provided for in this Court’s class notice (attached as Appendix A).

2

Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

11

As it was not addressed in Plaintiffs’ Motion, Court

File No. 350, the Court considers Defendants’

Response a motion for purposes of granting the

consented posting of relevant class documents on the

Plaintiffs’ counsel’s website.

II. DISCUSSION
A. Class Membership will be closed on the date of the accompanying Court Order. Plaintiffs seek recovery for wage suppression from April 2, 1998 to the present, as the alleged racketeering activities are on-going (Plaintiffs’ Second Amended Complaint, Court File No. 115, ¶ 59). For practical purposes, Plaintiffs suggest the class closes on the date notice is sent (Plaintiffs’ Response to the Motion for a More Definite Class Definition, Court File No. 243, p. 4). Defendants seek to close the class as of October 10, 2006, when this Court certified the class (Defendants’ Reply for a More Definite Class Definition, Court File No. 353, pp. 3–4).
Plaintiffs are concerned potential class members will be excluded by the cut-off date, since the claims allege wage depression which is still on-going (Plaintiffs’ Response to the Motion for a More Definite Class Definition, Court File No. 243, p. 4). Defendants are concerned a vague cut-off date will cause the class to continue to grow even after the notice period has expired (Defendants’ Memorandum in Support of a More Definite Class Definition, Court File No. 226, p. 4).
Pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 23(c)(1)(C), this Court has the authority to alter or amend the class definition before the final judgment. Accord Daffin v. Ford Motor Co., 458 F.3d 549, 554 (6th Cir.2006), citing Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (“Even after the certification order is entered, the judge remains free to modify it in the light of subsequent developments in the litigation. For such an order, particularly during the period before any notice is sent to members of the class, is inherently tentative.”) (internal citation omitted). In doing so, this Court considers the same factors as it did when certifying the class under Fed.R.Civ.P. 23(b)(3), including the interests of the class members, the desirability in collecting the claims within the class, and the difficulties in the management of the class action.
*3 Should the cut-off date be set too early, all parties are prejudiced. Plaintiffs will be unable to fully vindicate the

full scope of the alleged damages suffered by on-going unlawful behavior. Defendants will lose some of the benefit of a class action suit because those excluded may bring another class action suit to vindicate their rights. The Court will lose some of the benefit from judicial economy in dealing with a potential class action suit from those excluded.
A late cut-off date is problematic because class members must have full opportunity to opt-out of the class. See Matsushita Elec. Indus. Co., Ltd. v. Epstein, 516 U.S. 367, 395, 116 S.Ct. 873, 134 L.Ed.2d 6 (1996), citing Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985). Those who gain membership to the class at the end of the cut-off date, should it be too close to trial, would be deprived of their due process rights to opt-out and bring their own actions. See id. The cut-off date must be sufficiently early to afford potential class members a full opportunity to consider the class notice. See id.
In light of the above considerations, the Court sees no benefit in restricting the class to the date of the class certification order. Conversely, allowing the cut-off date to extend to the date Plaintiffs distribute the class notice is too vague, and raises a very practical problem—on the day the notices are distributed, Plaintiffs would have to conduct additional inquiries to determine new class members hired by Tyson on that day.
In light of these concerns, the Court will close class membership on the date of the Court Order accompanying this Memorandum.
B. Only employees at the Tyson chicken processing plants will be eligible for class membership. At different times throughout the litigation, the term “facilities” has been used to identify the places where potential class members worked (e.g. Plaintiffs’ Memorandum in Support of Class Certification, Court File No. 123, p. 1 (identifying the Tyson locations as both “facilities” and “chicken processing plants.”)) Defendants argue “facilities” is too vague, as it could refer to either “chicken processing plants” or “complexes,” which include the chicken processing plants as well as the feed mills, hatcheries, and other buildings and operations located on the complexes (Defendants’ Memorandum in Support of a More Definite Class Definition, Court File No. 226, p. 3). Defendants move the Court to define the class in terms of “chicken processing plants,” and refer to Plaintiffs’ Second Amended Complaint, which reads: “Plaintiffs bring this action on behalf of themselves and all other persons, legally authorized to be employed in the
3

Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

United States, who have been employed by Tyson at the facilities as hourly wage earners. Each facility is a large chicken processing plant employing at least several hundred persons.” (Court File No. 115, ¶ 16). Plaintiffs argue they intended the class to encompass employees from “complexes,” not just “plants,” and move to have the class definition clarified accordingly (Plaintiffs’ Response to the Motion for a More Definite Class Definition, Court File No. 243, p. 2).
*4 As previously stated, this Court has the authority to alter or amend the class definition before the final judgment, pursuant to Fed.R.Civ.P. 23(c)(1)(C). Accord Daffin, 458 F.3d at 554, citing Falcon, 457 U.S. at 160. In doing so, the Court considers whether subsequent developments necessitate a modification and whether a modification would be fair to the litigants. Ideally, litigants would provide the Court with the evidence, likely obtained during discovery, which necessitates a modification of the class definition, including when such information was obtained. Here, such submissions and accompanying evidence could have shed light on the following issues the Court must consider: (1) Did Plaintiffs provide timely notification to the Court of its mistakenly narrow use of the phrase “chicken processing plants”? (2) Did the parties’ conduct during discovery demonstrate an understanding as to the functional scope of the class? If so, did the Plaintiffs and Defendants conduct discovery relating to the “complexes” as a whole, or just the “chicken processing plants”? These questions determine whether a broad or narrow definition of the class is both fair and practical. For example, if the majority of discovery conducted in this case was limited to “chicken processing plants,” the litigation would be unable to proceed under the broader definition of “complexes.” Alternatively, if the discovery encompassed the complexes, or was of a nature so as to be unaffected by the distinction, this Court might allow the broader class definition as it would be the most efficient way to deal with claims predominated by the same facts.
Neither Plaintiffs nor Defendants have spoken on these issues, so the Court must review the record to find facts relevant to whether broadening the class is fair and feasible. On August 24, 2005, Plaintiffs defined their class in terms of “chicken processing plants,” not “complexes” including feed mills, hatcheries, and other buildings and operations (Plaintiffs’ Second Amended Complaint, Court File No. 115, ¶ 16). It is possible Plaintiffs only became aware of their misuse of terminology, if that is indeed what it is, during the discovery period after filing. If that is the case, Plaintiffs were obliged to inform the Court as soon as possible to correct the error. Here, Plaintiffs raised the issue on

February 12, 2007 (Plaintiffs’ Response to the Motion for a More Definite Class Definition, Court File No. 243, p. 2), approximately a year and a half after their Second Amended Complaint, without any indication of when or how they discovered their definition was too narrow. Without evidence to the contrary, the Court assumes Defendants understood Plaintiffs’ complaint as it was clearly written, i.e. the class consisted of “chicken processing plants.” It would be unfair to now alter the definition, enlarging the class (to what extent, neither party has shown or even speculated),12 particularly in light of the scheduled trial on March 3, 2008.

12

Neither party has provided evidence nor even

speculated as to the number of potential class

employees which would be added should the Court

accept a broader definition of “facilities.” The Court

assumes the number is significant, as it has been the

subject of considerable controversy.

*5 Therefore, the Court must accept Plaintiffs’ original plain language in defining their class: only employees at the Tyson chicken processing plants will be eligible for class membership. The Court will GRANT in part Defendants’ Motion for a More Definite Class Definition and define “facilities” as “chicken processing plants” (Court File No. 225).

C. Plaintiffs must include a Spanish translation of the class notice. Litigants agree some accommodation is required to potential class members who lack sufficient competency in English. Plaintiffs wish to address the issue by including the following in the class notice: “Should you require it, you will be contacted by a Spanish-speaker.” (Plaintiffs’ Proposed Notice to Class, Court File No. 350, Exhibit A, p. 5). Defendants argue a “significant number” of the potential class members will require a Spanish notification, so Plaintiffs should mail the notices in English and Spanish (Defendants’ Response to the Motion to Approve Class Notice, Court File No. 370, pp. 2–3). Defendants also claim some potential class members would be unable to converse sufficiently in English or Spanish, and may require another language (id.). As such, Plaintiffs should provide access to translators for such potential class members in the language of their choice (id.).
This Court is charged with “direct[ing] to class members the best notice practicable under the circumstances ...” Fed.R.Civ.P. 23(c)(2)(B). Furthermore, multilingual distribution of class notice is not a novel approach in
4

Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

situations where class members will not be adequately informed by English-only class notices. See, e.g., Montelongo v. Meese, 803 F.2d 1341, 1352 (5th Cir.1986), reh’g denied, 808 F.2d 56 (1986), cert. denied, 481 U.S. 1048, 107 S.Ct. 2179, 95 L.Ed.2d 835 (1987) (“the court required plaintiffs to mail individual notice in English and Spanish to all persons they could reasonably locate ...”); Mendoza v. Zirkle Fruit Co., 222 F.R.D. 439, 442 (E.D.Wash.2004). In determining whether class notice must be distributed in multiple languages to qualify as the “best notice practicable,” this Court would prefer to review evidence and reasoned estimates from both parties relating to the number of potential class members likely to require accommodation in a language other than English; the percentage of such potential class members who would be suitably informed were the notice distributed in Spanish; and, the additional costs imposed by requiring distribution in both English and Spanish. Such information would assist the Court in determining how effective dual-language distribution would be, and whether, in relation to the additional costs imposed, it would be the “best notice practicable.”
Defendants assert “a significant number of potential class members” speak Spanish, and “many authorized workers” speak languages ranging from Vietnamese to Somali (Defendants’ Response to the Motion to Approve Class Notice, Court File No. 370, p. 3). Defendants note “a class member who needs an interpreter will not be able to read through five pages of an English-language class notice in order to discover their [sic] right to an interpreter” (id.). Plaintiffs do not dispute or adopt Defendants’ concerns, but rather explain multilingual distribution can be considered after the content of the notice is finalized (Plaintiffs’ Reply to Approve Class Notice, Court File No. 372, p. 2).
*6 The Court agrees one sentence on the final page of the notice is inadequate to inform class members not fluent in English of the availability of translators (see Defendants’ Response to the Motion to Approve Class Notice, Court File No. 370, p. 3). The Court is faced with a difficulty, however. Potential class members without proficiency in English will be incapable of reading any English sentence informing them of their rights to a translator. Regardless, it is not practicable to include a translation of the notice in every language, nor even to include one sentence in each language to inform a potential class member to call for a translator concerning the contents of the notice. Defendants assert “a significant number of potential class members” will require a Spanish translation (Defendants’ Response to the Motion to Approve Class Notice, Court File No. 370, p. 3). Plaintiffs have not disputed that fact, and Defendants knowledge of the characteristics of their

own employees is more informed than that of the Court. Neither party has argued the cost of including a Spanish translation would make the dissemination of the class notice impracticable.
As such, the Court will DENY in part Plaintiffs’ Motion (Court File No. 350), and require Plaintiffs to include a true and accurate Spanish translation of the class notice.
D. The definition of the class should include a description of the claim. Defendants request the class definition include a description of the claim (Defendants’ Memorandum in Support of a More Definite Class Definition, Court File No. 226, p. 4). Plaintiffs argue such a description “would allow Tyson to determine which hourly employees it believes should be included or excluded from the class based on whether it believes such wages may have been susceptible to wage depression” (Plaintiffs’ Response to the Motion for a More Definite Class Definition, Court File No. 243, p. 3). Plaintiffs’ objection appears to be based upon a misunderstanding of Defendants’ request.
The Manual for Complex Litigation (Fourth) instructs “[t]he class definition should describe the operative claims, issues, or defenses, such as injury resulting from securities fraud or denial of employment on account of race.” § 21.222 (2006) (Thomson/West (2006), p. 337). Fed.R.Civ.P. 23(c)(2)(B) already requires the Court to include “the class claims, issues, or defenses” in the class notice.
Adding a description of the claim to the class definition does not allow Defendants to subjectively determine which employees’ wages were depressed, then unilaterally exclude those employees from the class (see Plaintiffs’ Response to the Motion for a More Definite Class Definition, Court File No. 243, p. 3). Such a determination is precisely the question at issue in this lawsuit, and cannot be decided unilaterally by Defendants due to an addition of language to the class definition describing the nature of the claim. The added language, “who allege that their wages were depressed as a result of Tyson’s alleged knowing hiring of illegal immigrants for the purpose of depressing wages,” defines the class to include employees who allege their wages were depressed, not whose wages necessarily were (see Appendix A). It will take a final decision by the Court or jury to determine whether any given class member’s wages were depressed.
*7 The Court will GRANT in part Defendants’ Motion for a More Definite Class Definition (Court File No. 225)
5

Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

and add a description of the claim to the class definition, as provided in Appendix A.
E. Plaintiffs’ identification of potential class members, those legally authorized to work, is sufficient for the purposes of defining and providing notice to the class. The class definition is limited to those employees “who are legally authorized to work in the United States” (Appendix A). This excludes any employees who would not be legally authorized to work in the United States. This exclusion is fundamental because employees without legal authorization are an alleged proximate cause of the damages sought, i.e. a suppression of wage rates for legally-authorized employees.
Defendants dispute the sufficiency of Plaintiffs’ method of identifying employees who are not legally authorized to work in the United States (Defendants’ Response to the Motion to Approve Class Notice, Court File No. 370, p. 4). Defendants are simply repeating their argument, previously raised when opposing class certification on September 12, 2005 (Court File No. 139, pp. 19–23). Defendants have failed to provide any additional legal or factual basis which might warrant the Court to reconsider its previous decision.
As this Court previously decided in certifying Plaintiffs’ class, “Plaintiffs will be able to identify illegal workers in a reasonably reliable and manageable way.” Trollinger v. Tyson Foods, Inc., 2006 WL 2924938, at *10 (E.D.Tenn. Oct.10, 2006); Court File No. 182, p. 18. In that decision, the Court considered the arguments posed by both parties (Plaintiffs’ Motion for Class Certification, Court File No. 121, pp. 9–10; Defendants’ Response to the Motion for Class Certification, Court File No. 139, pp. 19–23; Plaintiffs’ Reply to Class Certification, Court File No. 144, pp. 2–4) and the analysis of similar factual circumstances in Mendoza v. Zirkle Fruit Co., 222 F.R.D. 439, 442 (E.D.Wash.2004). As previously stated, Defendants have not provided any clear reason why the Court’s prior determination is no longer an accurate depiction of the facts and law involved in this case, and upon review, the Court has not found one.
Therefore, this Court adheres to its prior determination of the sufficiency of Plaintiffs’ identification methods, and declines to exercise its power to amend, alter, or decertify Plaintiffs’ class. See Fed.R.Civ.P. 23(c)(1)(C); accord Daffin, 458 F.3d at 554, citing Falcon, 457 U.S. at 160. The Court will DENY Defendants’ motion (Court File No. 370).13

13

The Court treats Defendants’ request for

reconsideration of the Court’s decision to certify the

class as a motion, as explained in footnote 1.

F. Defendants are not compelled to distribute class notices to their current employees. Plaintiffs seek to have Defendants distribute the class notices to their current employees in conjunction with paycheck distribution (Plaintiffs’ Memorandum in Support of Compelling Distribution of Class Notice, Court File No. 338, pp. 2–3). Many courts have required class notices to be included in periodic mailings or other distributions to reduce the costs of distributing the notices. See, e.g., Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 356 n. 22, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978); In re Nasdaq Market–Makers Antitrust Litig., 169 F.R.D. 493, 515 n. 19 (S.D.N.Y.1996).
*8 Plaintiffs rely on Oppenheimer to support their motion (Plaintiffs’ Motion to Compel Distribution of Class Notice, Court File No. 337, p. 2). Unlike Oppenheimer, however, Defendants’ distribution of paychecks would not provide the “best notice practicable” to inform class members. See Fed.R.Civ.P. 23(c)(2)(B). Defendants use computer-generated, sealed paychecks; class notice could not be inserted into the same envelopes for distribution (Defendants’ Response to the Motion to Compel Distribution of Class Notice, Court File No. 362, p. 3). To the extent it might be possible for Defendants to distribute the class notices as a separate set of papers with the paycheck, this Court is not confident an employee, having just received his or her paycheck, will give adequate attention to a mass-produced hand-out. Class members are more likely to fully consider a class notice received through first-class mail, which is the norm for distribution.
As such, the Court will DENY Plaintiffs’ Motion to Compel Distribution of Class Notice with respect to Tyson Food, Inc.’s current employees (Court File No. 337).14

14

Defendants appear to have consented to assist the class

notification process to some extent. In a letter between

counsel, dated January 23, 2007, Defendants’ counsel

expressed his willingness to have class notice posters

placed at a primary congregation point within each

plant (Court File No. 362, Attachment 1, Letter from

Frank R. Volpe to Howard Foster, January 23, 2007).

The Court agrees this is an appropriate method to

further inform class members, in addition to first-class

6

Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

mailings and internet postings, and hopes the parties can agree to any specifics involved without the need for Court intervention.

G. Defendants are not responsible for the costs of distributing class notice to their former employees at the chicken processing plants in Ashland and Gadsden, Alabama. On or before May 25, 2007, Tyson Foods, Inc. sold poultry complexes in Ashland and Gadsden, Alabama.15 Plaintiffs argue Defendants concealed those sales from Plaintiffs and the Court in bad faith, and thus should bear the costs of distribution to any potential class members associated with those plants (Plaintiffs’ Memorandum in Support of Compelling Distribution of Class Notice, Court File No. 338, pp. 4–5).

15

Tyson Foods, Inc., Press Release: May 25, 2007,

Springdale,

Ark.,

http://www.tyson.com/C

orporate/PressRoom/ViewArticle.aspx? id=2732 (last

visited Nov. 1, 2007).

Plaintiffs argue this Court should impose sanctions on Defendants for needlessly increasing the costs of litigation (id.). Plaintiffs reason, if Defendants had not sold the two plants, Defendants would have been required to distribute class notice to its employees at those plants (id.). Because the plants are no longer under the ownership of Defendants, Plaintiffs are now responsible for the cost of distributing class notice to potential members via first-class mail (id.). Defendants should bear the costs because they knew the plants might be sold at the time they agreed to cooperate with Plaintiffs in disseminating class notice (id.).
Since the Court has already determined Defendants are not responsible for disseminating class notice with paychecks to their current employees, Plaintiffs’ argument is moot; Defendants would not have been responsible for distributing class notice in the plants in Ashland and Gadsden, even if Defendants still owned those plants. Plaintiffs remain responsible for distribution of the class notice via first-class mail to potential class members who worked for Defendants at the Ashland and Gadsden, Alabama chicken processing plants. The Court will DENY Plaintiffs’ Motion to Compel Distribution of Class Notice with respect to former employees of Tyson Foods, Inc. (Court File No. 337).

H. This Court declines to impose sanctions on Plaintiffs for submitting allegedly baseless claims against Defendants. *9 Defendants move this Court to impose sanctions under Fed.R.Civ.P. 11 against Plaintiffs for accusing Tyson Foods, Inc. of misconduct concerning the sale of their Ashland and Gadsden, Alabama, complexes without factual basis; intentionally misquoting case law; demanding sanctions without providing legal authority to do so; and, making factual statements to the Court which are not supported by the record (Defendants’ Response to the Motion to Compel Distribution of Class Notice, Court File No. 362, pp. 4–7).
This Court has the authority to sanction an attorney for advancing a point of view it deems to be frivolous under Fed.R.Civ.P. 11. Mezibov v. Allen, 411 F.3d 712, 718 (6th Cir.2005). Before imposition of sanctions, the Court must give counsel a reasonable opportunity to respond. Fed.R.Civ.P. 11(c).
At the present time, both parties have considerable obligations in connection with this case, and the Court concludes it would not be in the best interest of the class were Plaintiffs’ counsel simultaneously defending itself against potential sanctions. The Court will DENY Defendants’ motion16 for sanctions against Plaintiffs, but there is not need for the Court to remind both parties of the Court’s authority pursuant to Fed.R.Civ.P. 11(c)(1)(B) to impose sanctions on its own initiative.

16

The Court will treat Defendants’ request for sanctions

against Plaintiffs as a motion, even though it was filed

as part of Defendants’ response, as explained in

footnote 2.

As explained throughout this memorandum, the Court is best served by a full appraisal of the law and facts underlying every issue in the motions, responses, and replies. As both parties have conducted rigorous discovery, the parties are in the best position to inform the Court as to the relevant facts associated with their various arguments. Court filings are more than simply assertions of the will of the parties; as Thomas Jefferson said, “a lawyer without books would be like a workman without tools.” The Papers of Thomas Jefferson, vol. 1, p. 24, ed. Julian P. Boyd, et al. (1950).

III. CONCLUSION For the foregoing reasons, the Court will GRANT in part and will DENY in part Plaintiff’s Motion to Approve
7

Trollinger v. Tyson Foods, Inc., Not Reported in F.Supp.2d (2007)

Class Notice (Court File No. 350), and will GRANT in part and will DENY in part Defendants’ Motion for a More Definite Class Definition (Court File No. 225). Also, the Court will DENY Defendants’ Motion to Reconsider Class Certification.17 The Court will APPROVE the class notice language provided as Appendix A to the accompanying Order.

17

The Court will treat Defendants’ request for

reconsideration of the Court’s decision to certification

the class as a motion, as explained in footnote 1.

The Court will DENY Plaintiffs’ Motion to Compel

Distribution of Class Notice (Court File No. 337). The Court will DENY Defendants’ Motion to Impose Sanctions pursuant to Fed.R.Civ.P. 11 against Plaintiffs for alleged baseless accusations in bad faith (Court File No. 362).18

18

The Court considers Defendants’ response as a motion

for the limited issue of sanctions.

An Order shall enter.
	  

8

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE
WINCHESTER DIVISION

BIRDA TROLLINGER, VIRGINIA

)

BRAVO, KELLY KESSINGER,

)

IDOYNIA MCCOY, REGINA LEE,

)

PATRICIA MIMS, LORI WINDHAM

)

and ALEXANDER HOWLETT,

)

individually and on behalf of all others

)

similarly situated

)

)

Plaintiffs,

)

)

v.

)

)

TYSON FOODS, INC., JOHN TYSON,

)

ARCHIBALD SCHAFFER III, RICHARD, )

BOND, KENNETH KIMBRO, GREG

)

LEE, KAREN PERCIVAL, AHRAZUE

)

WILT and TIM MCCOY,

)

)

Defendants.

)

No. 4:02-CV-23 Chief Judge Curtis L. Collier

MEMORANDUM

Before the Court are the motions in limine to exclude the expert testimony of Eric Posner

(Court File No. 411), George Borjas (Court File No. 412), and Michael Cutler (Court File No. 413)

by defendants Tyson Foods, Inc.et al. (“Defendants”). In ruling onDefendants’ motions, the Court

has considered responses fromplaintiffs Birda Trollingeret al. (“Plaintiffs”) (Court File Nos. 437,

436, 435, respectively), and the arguments and testimony at theDaubert hearing on November 7 and

8, and December 13, 2007 ( Court File Nos. 465, 466, 469, 472, 473). Before this Court is also

Defendant’s motion to exclude supplemental materials submitted to correct George Borjas’ analysis

(Court File No. 436), and the subsequent response and reply (Court File Nos. 438, 439).

For the following reasons, the Court willGRANT Defendants’ motion to exclude the expert

opinion of Eric Posner (Court File No. 411); willDENY Defendants’ motion to exclude the expert

testimony of Michael Cutler concerning E nglish proficiency (Court File No. 413); 1 will DENY Defendants’ motion to exclude George Borjas’ supplem ental material (Court File No. 436) ; will GRANT IN PART Defendants’ motion to exclude Ge orge Borjas’ testim ony as it pertains specifically to the amount of damages suffered by Plaintiffs; and, will DENY IN PARTDefendants’ motion to exclude George Borjas’ testimony as it pertains to the general effects of the employment of illegal immigrants on the wages of authorized employees, and to Tyson’s market power (Court File No. 412).
I. FACTS This case has a lengthy history with this Court. A complete recitation of the allegations in
this case is set out in the Court’s Memorandum of May 29, 2007 accompanying its order denying Defendants’ motion to dismiss (Court File No. 309).
In summary, Plaintiffs allege Defendants we re willfully blind to the hiring of illegal immigrants, in violation of the Immigration Reform and Control Act (“IRCA”) and the Immigration and Nationality Ac t, 8 U.S.C. § 1324(a) (Court F ile No. 115, pp. 5-9). Plaintiffs also allege Defendants knowingly hired illegal im migrants and harbored them, in violation of 8 U.S.C. § 1324(a)(3)(A), and utilized a criminal conspiracy in doing so, violating the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961(1)(F) (Court File No. 115, pp. 9-15).
This litigation and the theories espoused by Plaintiffs are novel uses of RICO. Plaintiffs, citizens of the United States or otherwise authorized to work in the United States, allege Defendants
1The Court does not have occasion to address the full scope of Defendants’ omtion to exclude because Plaintiffs withdrew Michael Cutler’s declaration, rendering the corresponding portions of Defendants’ motion moot.
2

were involved in a scheme to knowingly hire illegal aliens to work at their facilities. According to Plaintiffs, Defendants broke the law and assisted illegal aliens in breaking the law to increase their profits. Allegedly, because Defendants hired and harbored illegal aliens, Defendants were able to pay less than the going market wage, and thus decrease their costs. Plaintiffs, as legal employees of Tyson, allege this depressed their wages. Plani tiffs indicate that no other case on this theory has yet reached trial. Because of the novelty of this litigation, many of Plaintiffs’ theories are untested in law.
With the trial date now approaching, the parties have exchanged discovery and prospective witness lists. Defendants challenged the admissibility of testimony from Plaintiffs’ three experts, Eric Posner (“Posner”) (Court File No. 411), Michael Cutler (“Cutler”) (Court File No. 413), and George Borjas (“Borjas”) (Court File No. 412). The parties agreedthe admissibility of Eric Posner’s testimony could be decided solely upon the documents submitted to the Court (Court File No. 418). A Daubert hearing was held to determine the admissibility of the testimony of Michael Cutler and George Borjas on November 7 and 8, 2007, and December 13, 2007 (Court File Nos. 465, 466, 469).
II. STANDARD OF REVIEW In determining whether to allow expert testimony, a court must analyze the testimony under
a two-prong test. First, a court must determine whether the principles and methodology, as well as the input or facts used by that methodology, are reliable. Federal Rule of Evidence (“Fed. R. Evid.”) 702; Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 595 (1993). Second, a court must determine whether the expert testimony is relevant. Fed. R. Evid. 403; Daubert, 509 U.S. at 595. A trial court has substantial leeway in making these determinations. Kumho Tire Co., LTD.
3

v. Carmichael, 526 U.S. 137, 138, 141 (1999). A. Reliability The reliability of an expert’s testimony is aquestion of whether the principles, methodology,
and underlying factual bases a re scientifically valid, i.e. conform to the principles of scientific inquiry, discussed below. Daubert, 509 U.S. at 595. Reliability is not based upon whe ther the conclusions drawn by the expert ultimately turn out to be correct. Id. at 595.
There are three components of any expert testimony a court must determine are sufficiently reliable to allow the testimony.2 First, the principles and methodology must be reliable. Second, the input or facts used by the methodology to formulate a conclusion must be reliable. Third, the expert must have properly applied the methodology to the case’s facts to arrive at a conclusion.See id. at 593-595. For example, a statistician’s testimony would only be reliable if (1) the mathematical formulas and computer programs used to synthesize the data were reliable, (2) the data itself was collected in a reliable manner or taken from a reliable source, and (3) the data was analyzed by the computer programs in a reliable way, e.g. the computer technicians double-checked their work, and the statistician’s conclusions were reliably based upon the results.
In making these determinations, case law has provided a non-exclusive list of fa ctors to consider. Not every factor will be relevant in every situation, and courts are free to consider other factors relevant in determining the reliability of the expert testimony in any given case. Id. These non-exclusive factors are as follows:
1. The theory or method can be tested, potentially falsified, or refuted. Id. at 593.
2 The Supreme Court has equated “reliable” with “scientifically valid,” i.e. arrived at using the methods and procedures of science. Id. at 590.
4

2. The theory or method has been subjected to peer review and publication. New theories can still be admissible, but where there has been an opportunity for comment from the scientific community, flaws in the methodology are more likely to be exposed. Id.
3. A court should consider the known or potential error rate, and existence or maintenance of standards controlling the technique’s operation. Id. at 594.
4. Methodology which has gained widespread acceptance in the relevant scientifi c community is likely to be more credible than methodology which is not generally accepted. Id.
5. A court should consider more carefully testimony based upon procedures or methodology which was developed expressly for the purposes of litigation. Testimony prepared expressly for litigation is more likely to contain bias than te stimony which grows out of independent resea rch. Fed. R. Evid. 702 advisory committee’s note (2000); Johnson v. Manitowoc Boom Trucks, Inc,. 484 F.3d 426, 430 (6th Cir. 2007). “I f the proffered expert testimony is not based on independent research, the party proffering it must come forward with other objective,verifiable evidence that the testimony is based on “scientifically valid principles.” Johnson, 484 F.3d at 430, citing Daubert v. Merrell Dow Pharm. (“Daubert II”), 43 F.3d 1311, 1318 (9th Cir. 1995).
6. A court should consider whether the “analytical gap between the evidence presented and the inferences to be drawn on the ultimate issue” is “too wide.” General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997),citing Turpin v. Merrell Dow Pharmaceuticals, Inc.9, 59 F.2d 1349, 1360 (6th Cir. 1992), cert. denied, 506 U.S. 826 (1992). A court must consider whether the expert is justified in extrapolating from an accepted premise to an unfounded conclusion. Fed. R. Evid. 702 advisory committee’s note (2000). Even where the m ethods are acceptable in the abstract, a court m ust determine whether they have been applied to the specifics of the case in an acceptable way.
5

7. The expert must adequately account for obvious alternative explanations. Fed. R. Evid. 702 advisory committee’s note (2000); Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997); Claar v. Burlington N.R.R. , 29 F.3d 499, 502 (9th Cir. 1994) . An expert need only consider the m ost obvious and potential ly influential alternatives; he need not consider every potential minor or speculative cause. Ambrosini v. Labarraque, 101 F.3d 129, 140-41 (D.C. Cir. 1996).
8. The expert must conduct himself in the courtroom with the same level of intellectual rigor used by an expert in the relevant field outside of litigation. Kumho, 526 U.S. at 152; see Sheehan, 104 F.3d at 942.
9. The expert must be operating withina credible scientific or technical field, which is known to reach reliable results for the type of opinion the exper t would give. Kumho, 526 U.S. at 151 (giving astrology and necrom ancy as examples for unreliable fields of “expertise”); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1208 (6th Cir. 1988)(preD- aubert)(rejecting clinical ecology as a reliable science). Even where the field of expertise is credible, the expert’s field of expertise may not be reliable for the question at issue.
10. “If the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reachedw, hy that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” Thomas v. City of Chattanooga, 398 F.3d 426, 432 (6th Cir. 2005), citing Fed. R. Evid. 702 advisory committee’s note (2000). A court cannot simply take the expert’s word he isreliably basing his conclusions on experience. Fed. R. Evid. 702 advisory committee’s note (2000); Thomas, 398 F.3d at 432; United States v. Jones, 107 F.3d 1147, 1160-61 (6th Cir. 1997). However, experience testim ony can be permitted even
6

though the finder of fact may not believe everything in the testimony. First Tennessee Bank Nat. Assoc. v. Barreto, 268 F.3d 319, 333 (6th Cir. 2001).
11. When an expert changes the factual input or refines the methodology, thus altering the results of the test in favor of its patron, the test can be rendered unreliable. See Nilavar v. Mercy Health System-Western Ohio, 244 Fed. App’x 690, 697 (6th Cir. 2007).
12. A court can c onsider the expert’s cred entials and knowledge of the espoused field. However, an expert need not have total knowledge of a specific field to qualify, and a lack of knowledge of certain aspects of the field may comment on the credibility of the expert, rather than the admissibility of his testimony. Davis v. Combustion Engineering, Inc., 742 F.2d 916, 919-920 (6th Cir. 1984) (permitting an employment expert, with no knowledge of the legal requirements of the Age Discrimination in Employment Act, to testify whether there were factors, other than age, in the plaintiff’s employment file to lead to dismissal).
B. Relevancy The expert testimony must also be relevant to the claimto be admissible. Fed. R. Evid. 702 requires the expert testimony to “assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 403 requires the Court to exclude testimony where “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of unduedelay, waste of time, or needless presentation of cumulative evidence.” See Daubert, 509 U.S. at 595. In m aking this determination, a court considers the greater influence an expert’s testimony may have over a jury, due to his credentials and authoritative demeanor, in comparison to a layperson, and evaluates possible unfair prejudice accordingly. Daubert, 509 U.S. at 595.
7

A court must also consider the rules barring hearsay, and only admit expert opinions based upon otherwise inadm issible hearsay if the facts or data qualifying as hearsay are “of a type reasonably relied upon by the experts in the particularfields in forming opinions or inferences upon the subject.” Fed. R. Evid. 703; Daubert, 509 U.S. at 595.
III. DISCUSSION As the Court understands the objections, there is no challenge to the qualifications of any of
the three expert witnesses. Each expert appeasrto be extremely well-qualified and enjoys eminence among his peers. The objections instead focus on t he reliability and relevance of the experts’ expected testimony.
A. Testimony of Eric Posner Deciding Defendants’ objection to Eric Posner’s testim ony is sim ple. According to Plaintiffs, Posner’s testimony will “help the jury understand why this case has been brought by private citizens, why the U.S. Government is unable to enforce all immigration violations, and that Congress has encouraged lawsuits such as this one” (Court File No. 437, p. 1). Plaintif fs argue Posner’s legal testimony is necessary because a cvi il action under RICO is a specialized area of law, and jurors “will be confused, wondering why this case is being brought by private parties and not by the U.S. government . . .” (id., p. 1; accord pp. 3-4). Posner’s testimony is not relevant because it will not “assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702. His testimony is a thinly-veiled attempt to instruct the jury on matters of law. At a trial, there is only one expert in the law: the trial judge. It is the “sole function of the trial judge to instruct the jury.” United States v. Zipkin, 729
8

F.2d 384, 387 (6th Cir. 1984). The C ourt will instruct the jury as to the relevant law, and is confident the jury will be capable offollowing the Court’s instructions. See id. (“The judge (or the jury as instructed by the judge) can determine equally well the law.”) (citation omitted).
Plaintiffs wish to have Posner testify “there has been a rapid increase in illegal immigration, the U.S. government’s agencies are understaffed, and their enforcement of immigration law is lax and inadequate to address the problem” (Court File No. 437, p. 4). Such testimony would not assist the jury in understanding the evidence or making a factual determination. See Fed. R. Evid. 702. It is not relevant to the issues which will be presented at trial.
Finally, Plaintiffs are incorrect in asserting Posner’s testimony, helping “the average juror [to] understand the role of and need for private enforcement of the immigration laws,” functions similarly to the expert testimony in Champion v. Outlook Nashville, Inc. Cf. Court File No. 437, p. 5, to 380 F.3d 893, 908 (6th Cir. 2004). InChampion, an expert in police officer training procedures was permitted to testify as to the training police foficers receive in determining the appropriate level of force to be used in given situations. 380 F .3d at 908. The factual issue before the jury was whether the amount of force used against the plaintiff was reasonable. Id. Thus, educating the jury on whether the officers at trial followed accepted police procedure was r elevant to, although not dispositive of, whether the f orce they used was reasonable. See id. Here, Posner’s prepared testimony is his opinion of the desirability of private enforcement. This is a policy judgment that will not be helpful to the jury.
For the foregoing reasons, this Court will GRANT Defendants’ m otion to exclude the testimony of Eric Posner (Court File No. 411).
B. Testimony of Michael Cutler
9

1. Scope Prior to the Daubert hearing, Michael Cutler provided hisexpert report and declaration. At the Daubert hearing, he also recounted the testim ony he would give at trial. The expert report includes Cutler’s opinion, ba sed on his thirty years of experience as an Im migration and Naturalization (“INS”) agent, that an alien who has lived in the United States for several years will generally have a basic understanding of the English language (Court File No. 413, Exhibit 1, pp. 4, 7). The report also includes a brief, general discussion of the use of false identification documents by illegal immigrants to secure employment in the United States (id., pp. 3-4). Cutler’s declaration explains a m ethodology he has devised from his experience in the field which allows him to determine, based upon certain factors, whether a porspective employee is legally authorized to work in the United States by viewing the identification documents he or she presented (id., Exhibit 2, ¶ 3). Cutler then applies this m ethodology to records f rom 497 employees of Tyson Foods, Inc. (“Tyson”) and determines 91 were or were likely to be illegal immigrants when hired (id., ¶ 6). Plaintiffs have withdrawn Cutler’s declaration and his testimony discussing his declaration (Court File Nos. 435, p. 4; 465, p. 6; 455, p. 1; 473, p. 5; 467, p.8). Cutler’s remaining testimony pertains to the subject m atter of his expert repor t, dealing with im migrants’ proficiency in the English language (Court File No. 413, Exhibit 1). Defendant’s omtion to exclude Cutler’s testimony relating to his declaration is thus rendered moot (Court File No. 413), and the Court will consider only whether Cutler’s testimony, relating to English-language proficiency, is admissible.
2. Admissibility Although the Daubert standard was created in the context of scientific testim ony, the underlying considerations are applicable to testim ony based on experience, rather than data
10

scrutinized according to the formal scientific method. See Fed. R. Evid. 702 advisory committee’s note (2000); Thomas, 398 F.3d at 432. In considering whether Cutler can reliably testify as to his experiences concerning English proficiency, the Court must determine whether Cutler has sufficient experience in a relevant field, andwhether that experience, when applied to these facts, is sufficient to support Cutle r’s conclusion. See Kumho, 526 U.S. at 150; Fed. R. Evid. 702 advisory committee’s note (2000); Thomas, 398 F.3d at 432; Barreto, 268 F.3d at 335; Jones, 107 F.3d at 1160-61.
The Court determ ines Cutler has sufficient experience i n the field of im migration to formulate reliable opinions on the m atter. Cutler worked as an INS agen t, in various capacities relating to immigration, from 1971 to 2002 (Court FileNo. 413, Exhibit 1, pp. 2-3). He has testified numerous times in Congressional hearings concerning the enforcem ent and adm inistration of immigration laws (id., p. 3). The Court finds such experien ce sufficient to allow Cutler to of fer experience-based opinions on various aspects of hiring immigrants. See Kumho, 526 U.S. at 153.
The Court also concludes Cutler adequately explained how his experience led to his conclusion that job applicants without a basic understanding of English are not likely to be authorized to work in the United States. Fed. R. Evid. 702 advisory com mittee’s note (2000); Thomas, 398 F.3d at 432; Barreto, 268 F.3d at 335; Jones, 107 F.3d at 1160-61. Cutler explained, because illegal immigrants use fake documents to fabricate employment authorization, surrounding circumstances, most notably an inability to speak English, can be helpf ul in determining whether the documents are likely to be f orgeries (see Court File No. 465, pp. 41, 44, 47). Cutler’s supervisors had instructed him on the use of English proficiency as a potential indicator of a lack of authorization to work in the United States ( id. at pp. 38-40). C utler verified this notion in his
11

investigations and in his discussions with fellow agents ( id. at p. 40). 3 Although such informal discussions between agents do not produce the same rigorous opportunity for falsification provided by more formal scientific publication, testimony based on experience does not always fall into the neatly-drawn parameters of scie ntific testimony. See Kumho, 526 U.S. at 150. Such inform al discussions with others in the immigration field provide some evidence of peer review, acceptance in the field, and use of the standard outside of litigation. Fed. R. Evid. 702 advisory committee’s note (2000); Daubert, 509 U.S. at 593, 594; Johnson, 484 F.3d at 430.
Defendants argue Cutler’s limited testimony will not help a jury to understand the evidence, because Cutler cannot testify as to how Tyson hum an resource employees were trained and what questions they asked applicants (Court File No. 472, pp. 3-4). However, Cutler’s testimony need not prove Plaintiffs’ case, but only assist the jury in considering the evidence. See Fed. R. Evid. 702. A jury is unlikely to have substantial experience in the field of i mmigration, and Cutler’s testimony explaining immigration documentation, fraudulent practices, and the likelihood ofEnglish proficiency among some immigrants could be helpful to a jury e(.g., Court File No. 465, pp. 30-44). Such testimony provides context, background, and comparison for the jury to better com prehend other evidence as it is presented.
This Court is satisfied, in light of Cutler’s qualifications and experiences, he can reliably
3Defendants argue Cutler’s testimony is inadmissible because it is based upon hearsay (Court File No. 472, p. 4). Fed. R. Evid. 703 expressly permits an expert to rely on facts which may not be admissible into evidence where those facts are of the type reasonably relied upon by experts in that field. Although Cutler’s instruction from supervisors and discussions with fellow agents may constitute inadmissible hearsay if of fered solely by Cutler, training and discussion of field experience is a type of information one would reasonably rely upon when working as an INS agent in the field of illegal immigration, and is an appropriate factual consideration particularly when in combination with Cutler’s thirty years of personal experience in the field.
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testify to the English proficiency opinions and related matters in his expert report. Accordingly, the Court will DENY Defendants’ motion to exclude Cutler’s testimony concerning English proficiency (Court File No. 413).
C. Motion to Exclude Borjas’ Supplement Material The more difficult inquiry concerns the proposed testimony of Dr. George Borjas. Borjas is one of the, if not the, m ost preeminent scholars studying the effe cts of im migration on employment in the United States. According to bothsides, there is very little scholarly work in this area. To the extent there is any, Borjas is the author of much of it. Before considering the adm issibility of Borjas’ testim ony, the Court m ust address Defendants’ motion to exclude the updated version ofexhibit 1 of Borjas’ expert report (Court File No. 436). In light of the following discussion, the Court willDENY Defendants’ motion to exclude the updated exhibit, and will consider both in its review of Borjas’ expert report. Borjas’ original report had an exhibit consitsing of a graph comparing Tyson’s hourly wages to wages fromrelated industries and occupations(Court File No. 412, Exhibit A). This exhibit will be referred to as “Exhibit 1 ( original).” De fendants’ economic expert, Dr. Henry S. Farber (“Farber”)4 criticized Exhibit 1 (original) because, while the chart included Tyson’s straight hourly wage rate, the “hourly wage rate” for the relatdeindustries and occupations was calculated by taking people’s yearly salaries and dividing by the number of hours they worked (see Court File No. 412, Exhibit E, p. 10). This is pr oblematic because this calculation factors in overtim e and monetary bonuses in the hour ly wages for com parable industries and occupations, while Tyson’s straight
4The Court understands Farber’s testim ony to be offered solely to underm ine Borjas’ expected testimony, and is not offered as an expertpresenting his own, independent analysis of the data.
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hourly wage does not (id.). In response to this criticism, Borjas prepared an updated Exhibit 1 (“Exhibit 1 (updated)”),
using straight hourly wage rates for the related industries and occupations (see Court File No. 436, Exhibit B, p. 97). Plaintiffs revealed Exhibit 1 u(pdated) to Defendants for the first time at Farber’s deposition (see id.).
Defendants move the Court to exclude Exhib it 1 (updated) because they clai m they were unfairly surprised by the document and were unable to address it (Court File No. 436, p. 3). This Court conducted a Daubert hearing for two days on Novem ber 7 and 8, and another day on December 13, 2007 (Court File Nos. 465, 466, 469). Defendants were aware of and had access to Exhibit 1 (updated) at Farber’s deposition on May 29, 2007 ( see Court File No. 436, Exhibit B). Defendants had ample time to consider and address the updated version of the exhibit. Although the Court does not condone the practice of surprising opposition by revealing new documents at a deposition or hearing, the Court has given both sides leeway in this regard.5
For the foregoing reasons, the Court will DENY Defendants’ motion to exclude Exhibit 1 (updated) (Court File No. 436). Because Exhibit 1 (original) contains inform ation distinct from
5Defendants unveiled a new exhibit at the Daubert hearing when exam ining its expert, Farber. See Farber’s Testimony at the Daubert hearing on November 8, 2007, Court File No. 466, pp. 72-73, where the following exchange occurred:
THE COURT: And the reason for not providing [this new exhibit] to the plaintiffs when it was prepared? MR. GREEN [Defendants]: Your Honor, I don't -- I can't articulate a precise reason why I failed to do that. It was-- If that was a deficient gesture on my part, I apologize. I did not think to send a copy in the mail to Mr. Foster. But he -THE COURT: Mr. Johnson, how much of a surprise is this? MR. JOHNSON [Plaintiffs]: Total.
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Exhibit 1 (updated) yet still independently relevant to Borjas’ report,6 the Court will consider both
exhibits in reviewing Borjas’ report.
D. Testimony of George Borjas
George Borjas was called to testify as to both causation and damages suffered as a result of
Defendants’ alleged violations (Court File No. 434). As follows, the Court wilGl RANT IN PART
Defendants’ motion to exclude George Borjas’ testimony as it pertains specifically to the amount
of damages suffered by Plaintiffs, and will DENY IN PART Defendants’ motion to exclude Borjas’
testimony as it pertains to the general effects ofthe employment of illegal immigrants on the wages
of authorized employees, and to Tyson’s market power.
1. Damages
Borjas’ damage calculations are based on estimates from Cutler’s declaration of the number
of unauthorized employees at Tyson (Court FileNo. 412, Exhibit A, pp. 3-4, 21, 24-28). Plaintiffs’
have withdrawn Cutler’s declaration (Court File Nos. 435, p. 4; 465, pp. 6, 75, 77; 455, pp. 1-2; 467,
p. 8). Thus, Borjas’ damage calculations are no longer based on evidence before the Court. Since
Borjas’ damage calculations no longer have a factual basis in this case (Court File No. 466, p. 65),
they are neither reliable nor relevant. See Fed. R. Evid. 702. The Court will GRANT IN PART
Defendants’ motion to exclude George Borjas’ testimony with regard to his damage calculations.
6Exhibit 1 (original) contains a calculated hourly wage based on statewide and Public Use Microdata Area (“PUMA”) data (see Court File No. 412, Exhibit A). PUMA data is not statewide, but restricted to specific regions within the same state (Court File No. 412, Exhibit A, p. 9, n.8). Exhibit 1 (updated) addresses Farber’s criticism of comparing straight hourly wages to Bor jas’ calculated hourly wage by using the straight hourlywages for both Tyson and the statewide averages (see Court File No. 466, p. 199). However, Borjas was unable to obt ain PUMA straight hourly wages, so there is no PUMA data in Exhibit 1 (updated). Because PUMA data is region-specific within a state, rather than encompassing the entire state, the PUMA data is less likely to be, or less heavily, distorted by disparities in wages among more and less prosperous regions within the state.
15

2. General Causation Although Borjas’ damage calculations are notadmissible, the methodology by which Borjas calculates these damages (Court File No. 412, Exhibit A, pp. 4-7, 14-28), in conjunction with his vast scholarship in economics dealing with immigration (id., pp. 29-48), demonstrates Borjas’ ability to testify generally concerning the ef fect of illegal im migration on the wages of authorized employees. The Court will DENY IN PART Defendants’ mot ion to exclude George Borjas’ testimony as it pertains to the general effects ofthe employment of illegal immigrants on the wages of authorized employees.
3. Tyson’s Market Power The Court must determine whether Borjas can testify to his opinion Tyson facilities have market power and are thus able to set wages below the going m arket wage in their loc al labor markets (see Court File No. 412, Exhibit A, pp. 7-14). Inaccordance with the discussion below, this Court will DENY IN PART Defendants’ motion to exclude George Borjas’ testimony concerning Tyson’s market power.
a. Relevancy Borjas’ testimony asserting Tyson has market power is relevant (Court File No. 412, Exhibit A, p. 8). An average juror is unlikely to have considerable experience in economic analysis of the effects of illegal i mmigration on wages. Borjas’ testim ony discusses the wages Tyson pays in comparison to some other firms, and provides oneexplanation for why Tyson’s wages appear below the comparable market rate (see Court File No. 412, Exhibit A, pp. 7-11; 436, Exhibit B, p. 97). As such, Borjas’ testimony would “assist the trier of fact to understand the evidence or to determine a fact in issue.” See Fed. R. Evid. 702.
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b. Reliability Borjas has utilized data from reliable sources to compare Tyson’s wages with wages paid by firms for jobs and in geographic locations similar to Tyson’s (Court File No. 412, Exhibit A, pp. 8-10). Defendants have made numerous criticisms, through their expert, Farber, of Borjas’ analysis and conclusion. Ultimately, Borjas asserts the data he has presented does show Tyson has market power, whereas Farber asserts it does not. This isthe classic “battle of the experts,” and it is up to the jury, not the Court, to weigh the credibility of each expert’s opinion. See Phillips v. Cohen, 400 F.3d 388, 399 (6th Cir. 2005). Borjas’ analysis is novelly applied, as he readily admits: “the existing academic literature has not generally examined the impact of immigration-induced labor supply shifts on the wage level of a specific firm” (Court File No. 412, Exhibit A, p. 7). However, Borjas analysis is based upon the application of his vast scholarship in the field and basic, universally-accepted economi c principles to data collected from reliable sources. To the extent Defendants, through Farber, argue Borjas’ application of these principles at the firm level undermine the accuracy or credibility of his conclusion, it is the role of the jury to make that factual determination. See Phillips, 400 F.3d at 399. Defendants argue the data Borjas has used in his analysis is not adequately comparable to the nature of the jobs at the Tyson facilities and the specific geographic locations from which the Tyson facilities draw their workers (Court File No. 472, pp. 9-10). A jury may agree that the limitations of the data render Borjas’ conclusions unconvincing. At theDaubert stage, Borjas has collected the most relevant wage data available and, informed by his expertise in immigration and economics, has drawn conclusions as to how that data should be interpreted. See Joiner, 522 U.S.
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at 146. Defendants’ opportunity to argue how and towhat extent Borjas’ analysis and conclusions are incorrect is provided through cross-examination and the presentation of the ir own expert and evidence at trial. See Phillips, 400 F.3d at 399.
This Court is the gatekeeper to assure its trilas are not flooded with “junk science,” i.e. expert testimony that equates to little more than unreliably-based, advocacy-propelled conclusions. See Kumho, 526 U.S. at 137 (citing Daubert, 509 U.S. at 589). Here, a foremost expert in the field of economics and immigration analyzed data and determ ined that data, although not perfe ct in its specificity, was sufficient to m ake certain, reas oned conclusions as to Tyson’s m arket power. Beyond that, the Court has no place in making factual determinations as to which expert’s opinion is more credible; the jury is entrusted with that task. See Phillips, 400 F.3d at 399.
IV. CONCLUSION In accordance with the foregoing analysis, this Court will GRANT Defendants’ motion to
exclude the expert opinion of Eric Posner (Court File No. 411); willDENY Defendants’ motion to exclude the expert testimony of Michael Cutler concerning Englishproficiency (Court File No. 413); will DENY Defendants’ motion to exclude George Borjas’ supplemental material (Court File No. 436); will GRANT IN PART Defendants’ motion to exclude George Borjas’ testim ony as it pertains specifically to the amount of damages suffered by Plaintiffs; and, will DENY IN PART Defendants’ motion to exclude George Borjas’ testimony as it pertains to the general effects of the employment of illegal immigrants on the wages of authorized employees, and to Tyson’s market power (Court File No. 412).
An order shall enter.
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/s/ CURTIS L. COLLIER CHIEF UNITED STATES DISTRICT JUDGE
19

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE
WINCHESTER DIVISION

BIRDA TROLLINGER, VIRGINIA

)

BRAVO, KELLY KESSINGER,

)

IDOYNIA MCCOY, REGINA LEE,

)

PATRICIA MIMS, LORI WINDHAM

)

and ALEXANDER HOWLETT,

)

individually and on behalf of all others

)

similarly situated

)

)

Plaintiffs,

)

)

v.

)

)

TYSON FOODS, INC., JOHN TYSON,

)

ARCHIBALD SCHAFFER III, RICHARD, )

BOND, KENNETH KIMBRO, GREG

)

LEE, KAREN PERCIVAL, AHRAZUE

)

WILT and TIM MCCOY,

)

)

Defendants.

)

No. 4:02-CV-23 Chief Judge Curtis L. Collier

MEMORANDUM

In this lengthy, vigorously contested civi l case, defendants Tyson Foods, Inc. et al.

(“Defendants”) have moved for summary judgment (Court File No. 449).1 After considering the

filings of the parties and the applicable law, for the following reasons the Court will GRANT

Defendant’s motion.

I. FACTS This case has a long history with this Court. It was initially filed on April 2, 2002.
(Complaint, Court File No. 1). The case was dismissed for failure to state a claimon July 16, 2002
1The following motions are also pending:Court File Nos. 316, 347, 449, 488, 491, 495, 496, 502-8, 510-20, 522.

(Court File No. 22). Upon appeal,this dismissal was reversed by the United States Court of Appeals for the Sixth Circuit and the case was remanded to this Court (Court File Nos. 25, 26). Trollinger v. Tyson Foods, Inc. , 370 F.3d 602 (6th Cir. 2004). This C ourt denied Defendants’ Motion for Judgment on the Pleadings (Cour t File Nos. 162, 174 ) on Septem ber 18, 2006. On October 10, 2006, the Court granted the Motion to Certify Class opflaintiffs Birda Trollinger et al. (“Plaintiffs”) (Court File Nos. 121, 183). On May 29, 2007 the Court deni ed Defendants’ second Motion to Dismiss (Court File Nos. 259, 310)
Plaintiffs bring this action under the civi l provisions of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.§§ 1962, 1964. Plaintiffs area class of current and former employees at several chicken processing pl ants of Tyson Foods , Inc. (“Tyson”) who are authorized to work in the United States (Cour t File No. 460, Appendix A). Pl aintiffs allege Defendants were members of a conspiracy to knowingly bring illegal immigrants into the United States and employ them in violation of 8 U.S.C. § 1324(a)(3)(A).This alleged conspiracy involved prolonged efforts to harbor and conceal these illegal immigrants from detection by the proper authorities, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). Plaintiffs allege, by hiring and harboring illegal immigrants, Defendants were thus able to pay less than the going market wage to their employees. As a result, Plaintiffs, as legally-auht orized employees, were paid less than they should have been as a result of Defendants’ use of illegal alien labor. Plaintiffs seek to recover damages in the amount of triple the difference between their artificially-depressed wages and the competitive market wages Plaintiffs should have been paid,as provided by 18 U.S.C. § 1964(c) (Court File No. 115, p. 16).
2

II. STANDARD OF REVIEW Summary judgment is proper when “the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no ge nuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party must demonstrate no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003). That is, the m oving party must provide the grounds upon which it seeks summary judgment, but does not need to provide affidavits or other materials to negate the non-moving party’s claims. Celotex, 477 U.S. at 323. The Court views the evidence, including all reasonable i nferences, in the light m ost favorable to the non-movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis Inc. , 253 F.3d 900, 907 (6th Cir. 2001). However, the non-movant is not entitled to a trial based solely on its allegations, and m ust submit significant probative evidence to support its claims. Celotex, 477 U.S. at 324; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The moving party is entitled to summary judgment if the non-movant fails to make a sufficient showing on an essential elem ent for which it bears the burden of proof. Celotex, 477 U.S. at 323. In short, if the Court concludes a fair-m inded jury could not return a verdict in favor of the non-movant based on the record, the Court may enter summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986);Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).
3

III. APPLICATION A. Applicable Law Plaintiffs bring their claims under RICO. RICO itself does notcontain specific substantive
offenses, but rather adopts substantive offenses fr om other statutes as predicate offenses. Thus, Plaintiffs must satisfy all the elements under RICO, which deals with the organizational structure by and manner in which the predicate offenses were violated, as well as the elements required by the predicate offenses. Here, Plaintiffs have alleged violations of 18 U.S.C. § 1962(c) , for conducting or managing a RICO enterprise, and 18 U.S.C. § 1962(d), for conspiring to commit a 1962(c) offense. These RICO offenses are pred icated upon immigration violations, 8 U.S.C. § 1324(a)(1)(A)(iii), (a)(3)(A).
1. RICO Offenses To prove a violation of 18 U.S.C. § 1962(c), Palintiffs must show Defendants (1) conducted or participated in (2) the activities of an enterprsie (3) through a pattern (4) of racketeering activity. See, e.g., Reves v. Ernst & Young, 507 U.S. 170, 177 (1993). To prove a violation of 18 U.S.C. § 1962(d), Plaintiffs must show (1)a conspiracy (2) with the purposeof violating 18 U.S.C. § 1962(c). See, e.g., Beck v. Prupis, 529 U.S. 494, 506 (2000). As a civil RICO action, Plaintiffs also need to prove (1) a requisite injury to “business or property,” and (2) that the injury was “by reason of” the predicate RICO violation. 18 U.S.C. § 1964 (c); see, e.g., id. at 505-06.
2. Predicate Immigration Offenses To support their RICO claims, Plaintiffs have alleged Defendants committed two types of predicate offenses. First, Plaintiffs allege Defendants, during a twelve-month period, knowingly hired at least ten individuals with actual knowledgethose individuals were unauthorized to work in
4

the United States and were brought into the country for purposes of illegal employment. 8 U.S.C.
§ 1324(a)(3)(A).2 Second, Plaintiffs allege Defendants knowingly, or with reckless disregard of the
2This statement of the law warrants som e discussion, be cause the “actual knowledge” requirement, 8 U.S.C. § 1324(a)(3)(A), is self-referential, and thus has been identified as “difficult to interpret.” See Hernandez v. Balakian, 480 F. Supp. 2d 1198, 1204 (E.D. Cal. 2007); accord Zavala v. W al-Mart Stores, Inc. , 393 F. Supp. 2d 295, 309 (D.N.J. 2005); accord System Management, Inc. v. Loiselle , 91 F. Supp. 2d 401, 408 (D. Mass. 2000). The relevant statutory provisions are as follows:
8 U.S.C. § 1324(a)(3)(A): “Any person who, dur ing any 12-month period, knowingly hires f or employment at least 10 individuals with actual knowledge that the individuals are aliens described in subparagraph (B) shall be fined under Title 18 or imprisoned for not more than 5 years, or both.”
8 U.S.C. § 1324(a)(3)(B): “An alien described in this subparagraph is an alien who-(i) is an unauthorized alien (as defined in section 1324a(h)(3) of this title), and (ii) has been brought into the United States in violation of this subsection.”
8 U.S.C. § 1324a(h)(3): “Definition of unauthorized alien As used in this section, the term“unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so em ployed by t his chapter or by the Attorney General.”
Thus, § 1324(a)(3)(A) requires a showing of “actual knowledge that theindividuals are aliens,” and refers to § 1324(a)(3)(B) to define “aliens.” The definition in § 1324(a)(3)(B) is two-fold. First, an “alien” is an “ unauthorized alien” which, as defined in § 1324a(h)(3), is an alien not lawfully admitted for permanent residence or to be employed as such. Second, the “alien” must have been brought into the United States in violation of § 1324(a)(3)(A), thus referring back to the original subsection.
This Court, joining t he other district courts which have addressed this issue, interprets § 1324(a)(3)(A) to require a plaintiff to show thedefendant knew the individual was unauthorized to work in the United States and knew the individual was brought into the United States illegally for the purposes of illegal employment. See Hernandez, 480 F. Supp. 2d at 1204;Zavala, 393 F. Supp. 2d at 309; Loiselle, 91 F. Supp. 2d at 408. Requiring knowledge, not onl y that the individual is unauthorized, but that he or she was brought in illegally, conform s with the clear language of § 1324(a)(3)(B), which requires the “alien” be “brought into the United States,” and conforms with the purpose of the statute, which provides penalties for “bringing in and harboring certain aliens.” See 8 U.S.C. § 1324.
Furthermore, RICO expressly includes offenses under 8 U.S.C. § 1324 as predicate offenses, but
5

fact, harbored or concealed illegal aliens. 8 U.S.C. § 1324(a)(1)(A)(iii). B. Defendants’ Motion for Summary Judgment Defendants make six arguments to support their motion for summary judgment: (1) there is no evidence of illegal hiring; (2) there is no evidence of damages; (3) there is no evidence the damages were proximately caused by the RICO violations; (4) there is no evidence Defendants’ had “actual knowledge ” pursuant to 8 U.S.C. §
1324(a)(3)(A); (5) there is no evidence of dam ages or a pattern of harboring for the 8 U.S.C. §
1324(a)(1)(A)(iii) offense; and, (6) there is no evidence of a racketeering enterprise (Court File No. 450). As previously stated, Plaintiffs must provide sufficient evidence to support their claims on
each material element of both the predicate offenses and the RICO claim s. Thus, each of Defendants’ arguments, if shown to be correct, independently warrants sum mary judgment. The Court considers these arguments in turn.
1. Evidence of Illegal Hiring with Requisite Knowledge Plaintiffs must provide evidence, during a twelve-month period, Defendants knowingly hired at least ten individuals with actual knowledge those individuals were unauthorized to work in the United States and were brought into the country for purposes of illegal employment. See 8 U.S.C.
does not include those under 8 U.S.C. § 1324a.See 18 U.S.C. § 1961(1)(F);accord Hernandez, 480 F. Supp. 2d at 1204; Zavala, 393 F. Supp. 2d at 309; Loiselle, 91 F. Supp. 2d at 408. If the Court were to only require Plaintiffs to prove knowledge that the individual was not authorized to work in the United States, 8 U.S.C. § 1324 would dupli cate the scope of 8 U.S.C. § 1324a (“Unlawful employment of aliens”), and thus open a backdoor to RICO for § 1324a-type claims.
6

§ 1324(a)(3)(A). To carry their burden of proof under this offense, one would expect Plaintiffs to first present
evidence of the illegal status of the workers. This could be established, among other ways, by the testimony of the illegal aliens them selves, their co-workers, their associates, those who secured employment for them at the Tyson facilities, or their supervisors or managers. It could also be established by admissible government records, such as records of deportati ons or other official action establishing the employees in question were illegal aliens.
Once sufficient employees were shown to be illegal aliens, Plaintiffs would then have to show Defendants hired the illegal aliens knowingly. To establish this, one would expect Plaintiffs to present either testimonial or documentary evidence of Defendants’ knowledge that at the tim e these illegal aliens were hired, Defendants knew they were illegal aliens.
Plaintiffs have chosen not to present evidenceone would typically expect. Rather, Plaintiffs have selected a non-traditional approach. Unfortunately for Plaintiffs, their chosen path falls short of the evidence required by 8 U.S.C. § 1324(a)(3)(A).
In an ef fort to present suf ficient evidence concerning the presence of illegal aliens and Defendants’ alleged knowledge of their presence,Plaintiffs offer only (a) class counsel’s unfounded determination some employees are illegal aliens, (b) an excerpt rfom the transcript of the testimony of a witness at a previous criminal trial, and (c) various Tyson written personnel communications (Court File No. 467, pp. 5-8).3
3Plaintiffs previously argued two additional sources of evidence. First, they offered the declaration of Michael Cutl er, a former Immigration and Naturalization Service (“INS”) agent. However, Plaintiffs withdrew the decl aration of Michael Cutler, which stated 91 out of the 497 employee records he reviewed appeared to belong to unauthorized workers (Court File No. 467, p. 8). Second, Plaintiffs intended tooffer certain immigration files from the Department of Homeland
7

a. Class Counsel’s Analysis
Class counsel seeks to i ntroduce their own conclusion that 91 of 497 sam pled Tyson
employees are not authorized to work in the United States (Court File No.467, p. 5). This evidence
is insufficient to avoid summary judgment because class counsel’s conclusions are not probative
evidence which would support Plaintiffs’ claim, but rather mere allegation without factual basis.4
Class counsel’s reasoning is as follows: Michael Cutler concluded in his expert report that an alien
who has lived in the United States for several years will generally have a basic understanding of the
English language (Court File No. 413, Exhibit 1, pp. 4, 7) . Ext rapolating from Mr. Cutler’s
testimony, Plaintiffs conclude every one of the 497paplicants who did not complete their application
in English, where that applicant claim ed to be a “U.S. citizen” or “Lawful Perm anent Resident
Alien,” “should be suspected of using false or fraudulent documents” (Court File No. 467, p. 5).
Further extrapolating, Plaintiffs then conclude all these 91 applicants who are suspected of using
security (“DHS”), but failed to secure those files.Plaintiffs served a subpoena on the DHS to obtain the immigration files of the 91 individuals Mr. Cutler identif ied as potentially illegal in his withdrawn declaration (Court File No. 482, p. 1). When the DHS did not comply, Plaintiffs filed a motion to enforce the subpoena in the District Court of t he District of Colum bia, which was denied. Trollinger et al. v. Tyson Foods, Inc. , No. 1:07-MC-341, Docket Entry on 1/11/2008 (D.D.C.). Plaintiffs moved to continue the trial date until that ruling could be decided on appeal (Court File No. 482). This Court denied the motion for continuance, because Plaintiffs failed to show good cause why they had waited to rqeuest the documents until September 24, 2007 (see Court File No. 493).
4Before class counsel sought to provide its own conclusions as to the legality of certain Tyson employees, Plaintiffs felt this m atter required an expert. Plaint iffs planned to have an immigration expert, Mr. Cutler, testify as to thleegality of certain Tyson employees based upon their employee records (Court File No. 413, Exhibit 2) . The two m ajor differences between class counsel’s conclusions here and those formerly asserted by Mr. Cutler, are (1) Mr. Cutler has expert experience in the field of illegal immigration, and (2) in arriving at his conclusions, Mr. Cutler relied on more factors than just whether the applicant completed the employment application in English (id.). On their own accord, Plaintiffs withdrew Mr. Cutler’s declaration, which c ontained his conclusions (Court File No. 467, p. 8).
8

false or fraudulent documents are illegal immigrants (id.).
Class counsel’s conclusion lacks factual support. First, Mr. Cutler’s testimony only states
aliens who have been in the United States for several years generally have an understanding of
English; it does not support the conclusion that a ll applicants who do not have sufficient English
proficiency to, or choose not to, fill out t he employment application forms in English are illegal
(Court File No. 413, Exhibit 1, pp. 4, 7). Second, even granting Plaintiffs’ assumption that all non-
English applications raise valid suspicion of the applicants being unauthorized, that does not lead
to class counsel’s conclusion that all of the suspicious applicants are illegal (Court File No. 467, p.
5). Class counsel’s unfounded conclusions provideno factual support for Plaintiffs’ burden to show employees at Tyson were illegal aliens.5
b. Mr. Copeland’s Trial Testimony and Tyson Personnel Communications
In an attempt to prove Tyson had at least ten illgeal immigrants working at each ofits plants,
and had actual knowledge those employees were unauthorized to work in the United States and were
brought into the country for purposes of illegal employment, Plaintiffs have cited the testimony of Mr. Copeland, Tysons’ ethicist,6 and several letters and e-mails sent to or circulated among Tyson’s human resource employees (Court File No. 467, p. 7)7. In considering whether Plaintiffs’ evidence
5Furthermore, class counsel’s conclusions fail to address t he “actual knowledge” requirements, which are material elements of 8 U.S.C. § 1324(a)(3)(A).
6Plaintiffs do not clearly identify “Mr. Copeland.” The Court assumes from context it is Dr. John Copeland, Tyson’s former executive vice president of ethics, food safety and environmental compliance.
7Plaintiffs argue “Tyson is not entitled to sum mary judgment based on spe culation that particular workers are actually legal” (Court FileNo. 467, p. 6). In fact, Plaintiffs have the burden to put forth sufficient evidence to satisfy the esse ntial elements of their claim, not Defendants to disprove them. See Celotex, 477 U.S. at 323. Plaintiffs are not entitled to a trial based upon mere
9

is sufficient to withstand summary judgment, the Court considers (1) whether the evidence is sufficient to establish Plaintiffs’ burden of proof, see Celotex, 477 U.S. at 322, and (2) whether the evidence is admissible. Federal Rule of CivilProcedure (“Fed. R. Civ. P.”) 56(e)(1) (“A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated.”) In presenting evidence to avoid summary judgment, Plaintiffs cannot rely on hearsay in affidavits or testimony, unless Plaintiffs show such hearsay to be admissible under an exception to the hearsay rule. Alpert v. United States, 481 F.3d 404, 409 (6th Cir. 2007) (citing U.S. Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1189 (6th Cir. 1997)) (“[E]vidence subm itted in opposition to a m otion for summary judgment must be admissible. Hearsay evidence. . .must be disregarded.”)
i. Mr. Copeland’s Trial Testimony Plaintiffs allege “Tyson’s own ethicist conducted an investigation of thousands of workers Tyson investigated for using fake documents to obtain employment. He concludedthat none of them were legal” (Court File No. 467, p. 7) (emphasis in original). To support this allegation, Plaintiffs cite an excerpt of Mr. Copeland’s trial testimony which does not support that allegation (id., Exhibit B, p. 3093). In the excerpt, Mr. Copeland testifies that another person told him of an unidentified e-mail which claimed some Tyson employees were using the same identification numbers as some people in Texas ( id., p. 3092). That person told Mr. Copeland this m eant either the Tyson employees were using the identification num bers of the Texa ns, or the Texans were using the identification numbers of the Tyson em ployees (id., p. 3093). Then, in response to the question “from that e-mail that you have observed in the court here and your own knowledge, are you aware
speculation that particular workers are illegal. See id. at 324. 10

of a single instance when the Tyson teammember was the real person,” Mr. Copeland answered “I am not no” (id.). Plaintiffs provide no explanation how, from this exchange, Plaintiffs draw the conclusion Mr. Copeland investigated and identified thousands of illegal employees (see id., p. 7). If Plaintiffs have the evidence to support such a statement, they have not provided it to this Court.
At the summary judgment stage, Plaintiffs must “submit significant probative evidence to support” the essential elements of their claims. See Celotex, 477 U.S. at 324; McLean, 224 F.3d at 800. The Court cannot merely assume Plaintiffs have evidence; Plaintiffs must produce it. See id. The Court can only evaluate the sufficiency of theevidence put before it. In evaluating the contents of the excerpt fromMr. Copeland’s testimony,8 this Court finds no evidence which meets the factual and legal requirements of 8 U.S.C. § 1324(a)(3)(A) and the applicable federal rules.
First, Plaintiffs must offer admissible evidence to satisfy their burden in opposing a motion for summary judgment. See U.S. Structures , 130 F.3d at 1189. In t he cited portion of Mr. Copeland’s testimony, Mr. Copeland affirms he is not “aware of a single instance when the Tyson team member was the real person” based upon an unidentified e-mail he observed in court and his own knowledge (Court File No. 467, Exhibit B, p. 3093). As a threshold matter for admissibility, Mr. Copeland must have “personal knowledge” of thematter to which he is testifying. Federal Rule of Evidence (“Fed. R. Evid.”) 602; Fed. R. Civ. P.56(e)(1). The excerpt of the testimony provides no indication of the basis of Mr. Copeland’s knowledge, and Plaintiffs provide none.
This is particularly problem atic because the remainder of Mr. Copeland’ s excerpted
8The Court reviewed the entire exhibit B, despite Plaint iffs having only cited a sm aller portion of it. The rem ainder of the provided testimony does not cure the e videntiary defects described in the following analysis, nor does it porvide any additional evidence which would not be rendered inadmissible or irrelevant.
11

testimony indicates Mr. Copeland’s knowledge is based entirely or largely upon what he was told by other people (see Court File No. 467, Exhibit B, pp.2957-58, 3092, 3094, 3095). This appears to be hearsay, which is generally not admissible evidence. See Fed. R. Civ. P. 56(e)(1). Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). To render admissible Mr. Copeland’s testimony concerning what other people told him and any “knowledge” he had based upon the statements of others, Plaintiffs need to present evidence as to why that testim ony would be admissible - likely either by arguing the statement s are not hearsay because they were admissions by a party-opponent, under Fed. R. Evid. 801d()(2), or are otherwise an exception to the hearsay rule, under Fed. R. Evid. 803, 804. Plaintiffs have made no attempt to do so.9
Even if Mr. Copeland’s testimony were admissible and provided proof of the presence of unauthorized employees at one or m ore Tyson facilities, Plaintiffs’ burden requires proof that Defendants knowingly hired at least ten individuals with actual knowledge those individuals were unauthorized to work in the United States and were brought into the country for purposes of illegal employment. See 8 U.S.C. § 1324(a)(3)(A). Plaintiffs’ cited excerpt does not establish Defendants had knowledge the individuals were illegal when they were hired, or had knowledge that they were brought into this country for the purposes of illegal employment.
9This Court has no basis upon which to view these sta tements as anything other than inadmissible hearsay. Fed. R. Evid. 801(d)(2)(D) permits statements offered against a party when the statement was made “by the party's agent or servant concerning a matter within the scope ofthe agency or employment, made during the existence ofthe relationship.” To the extent some of these statements might constitute such an admission, Plaintiffs have not identified who these speakers were or established whether any of the speakers in Mr. Copeland’s testimony were authorized to make statements on behalf of any of the Defendants. Without more, Plaintiffs’ asserted evidence is inadmissible as hearsay.
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Even assuming such knowledge could be inferred, Mr. Copeland’s generalizations do not establish the requirement under 8 U.S.C. § 1324(a)(3)(A) of “at least 10” illegal im migrants. In drafting 8 U.S.C. § 1324(a)(3)(A), Congress e xpressly required a showing of “at least 10 individuals” who were unauthorized to work in the Uinted States. In other subsections of the statute, a defendant is guilty f or a violation involving only one illegal im migrant. See 8 U.S.C. §§ 1324(a)(1)(A)(i-iv), (a)(2). Congress could have drafted 8 U.S.C. § 1324(a)(3)(A) to only require a showing of one illegal immigrant; instead, the statute requires involvement of at least 10 illegal immigrants. Although the Court does not read the statute to require a witness expressly to testify that there were at least ten illegal immigrants, the testimony must make it clear there were at least ten. Because Mr. Copeland’s statem ent does not provide a basis from whi ch to infer how many illegal immigrants were employed at which Tyson facilities during what time periods, a reasonable jury would have no basis to infer from Mr. C opeland’s testimony the presence of a t least ten unauthorized employees (see Court File No. 467, Exhibit B, p. 3093).
In conclusion, Plaintiffs havefailed to establish what personal knowledge Mr. Copeland had. Furthermore, Mr. Copeland’s statem ent does not allege Defendants had the actual knowledge required under 8 U.S.C. § 1324(a)(3)(A). Also, without m ore, Mr. Copeland’s statem ent is too general to prove Tyson had at least ten illegal immigrants working at any given Tyson facility. Mr. Copeland’s testimony provides no evidentiary grounds upon which Plainiftfs can satisfy their burden of proof under 8 U.S.C. § 1324(a)(3)(A) to avoid summary judgment.
ii. Tyson Personnel Communications Plaintiffs have also provided various e-mails and letters sent to or distributed among Tyson human resource personnel relating to their investigation of em ployees (Court File No. 467, p. 7).
13

These communications detail situations where employees were accused or suspected of securing

their employment with false identification papers or information (Court File No. 467, Exhibit H).

The first situation involved a Gerardo Pimentel in 2004. The wifeof a non-Tyson employee

called and informed Tyson her husband was the real Gerardo. The Gerardo working at Tyson was

called in and questioned. He admitted to having “bad papers” and quit. Two people accompanying

him also quit for other reasons, although the Tysonnivestigator suspected they might be quitting for

fear they too would be investigated (id., discovery numbers TYS065803-4).

The second situation involved Jesse Alvarez and Jesusita Garza in 2001, where a healthcare

provider processed claims for individuals by those names in Texas, while they were also listed as

Tyson team members in Sedalia, Missouri. Jesse admitted his or her documents were false, and was

terminated. Jesusita asserted her documents were valid, and Tyson requested she resolve the matter

with the social security office. She did not return to work agai

n (id., discovery numbers

TYS007534, 064664).

The third situation involved a Gilberto Olvarez, Jr. in 2001. This man was listed on a health

plan through the Tyson Shelbyville, Tennessee plant and through a Perdue health plan in Monterey,

Tennessee, 120 m iles away. The evidence does not state the results of the investigat ion (id.,

discovery number TYS007530).

The fourth situation involved twenty-five em ployees at the Tyson plant in Cum ming,

Georgia in 2001. Texas healthcare providers processed claims for these twenty-five people while

twenty-five Tyson workers with the sam e names and social security numbers were at work in

Cumming, Georgia. The e-mail states the Texas healthcare providers sent documents proving their

patients were the “real” pe ople to whom the identities belonged, but the e-m ails do not specify

14

whether that was shown to be the case orwhat became of the twenty-five employees (id., discovery number TF12 088294-5).
The fifth situation involved a Wilfredo Munera-Torres in 2004. The Plaintiffs provide a letter Wilfredo sent to Tyson, i nforming Tyson someone was using his social security num ber, because the Internal Revenue Service (“IRS”) accused him of not reporting earnings from Tyson, where he had not been working. There is no inform ation on how the m atter was resolved ( id., discovery number TYS066631)
The sixth situation involved a MarianellaEnriquez during 1997 and 1998, at the Springdale, Arizona facility. The IRS wrote a letter to Tyson, informing them Marianella had contacted them concerning the appearance of Tyson wages on her txarecords which she claimed she had not earned. These wages were actually from Maria Nela Nino, who appears to have been using the same social security number as Marianella. The IRS asked Tyson for information on how to proceed, because its “employment documentation appears to be valid.” There is no further information on how the matter was resolved (id., discovery number TF12 114943).
The seventh situation involved a Alyan Sandoz Maldonado in 2003. He admitted his real name was Jose Domingo Juan, and that his documentation had been false (id., discovery number TYS065273).
The eighth situation involved a George LuuieAguirre, Jr. in 2001. Tyson received a report he was on the healthcare policy of another company. He admitted to using his brother’s papers, and was terminated (id., discovery numbers TYS064667-8).
The ninth situation involved Marie Bartolomei, Antonio Parrilla, and Nilda Martinez. Marie and Nilda admitted to using false documents, and Antonio denied it. The e-mail implied the former
15

two should be terminated. The latter was providedan opportunity to bring his documents in to prove his claim. There is no further information on how the matter was resolved (id., discovery number TYS065288).
The tenth situation involved a Mr. Casas in 2004at the Sedalia, Missouri plant. A healthcare identity issue arose. Mr. Casas admitted to using a false social security card and was terminated (id., discovery number TYS022969).
The eleventh situation involved an Edgardo Sanchez in 2004. A m an called in to report Edgardo was using fake papers. When questioned, Edgardo admitted the papers he submitted were fake, but claimed his real papers had been sent away for renewal. He was suspended for three days, and the drafter of the e-m ail was asking for permission to terminate him (id., discovery number TYS065826).
These e-mails and letters suffer from the same deficiencies as Mr. Copeland’s testimony. The majority of the e-mails are statements made by one person concerning what another person said. Again, Plaintiffs have failed to provide any ba sis or argument for why these statem ents are not inadmissible hearsay. Even assuming the evidence is admissible, Plaintiffs must prove at least ten illegal aliens were employed at any given plant. Only one of these cited documents deals with at least ten individuals ( id., discovery num ber TF12 088294). That e-m ail refers to twenty-five employees at the Tyson plant in Cum ming, Georgia in 2001 who were at wo rk while health care claims were processed under the same names and social security numbers in Texas (id.). There is no indication whether the Tyson employees or individuals in Texas were the legitim ately-named people; whether, if the Tyson employees were illegal aliens, whether they were f ired or retained; whether, if illegal aliens, Tyson had actual knowledge the individuals were unauthorize d to work
16

in the United States when they were hired or retianed; or whether, if illegal aliens, Tyson had actual knowledge the individuals were brought into th e United States f or the purposes of illegal employment when they were hired or retained. See 8 U.S.C. § 1324(a)(3)(A). Plaintiffs’ cited correspondence does not satisfy their burden of proof on summary judgment.
c. Evidence Aliens Were Brought into the United States As previously stated, Plaintiffs m ust provide sufficient evidence to support the predicate offense, i.e. during a twelve-month period, Defendants knowingly hired at least ten individuals with actual knowledge those individuals were unauthorizedto work in the United States and were brought into the country for purposes of illegalemployment. 8 U.S.C. § 1324(a)(3)(A);Hernandez, 480 F. Supp. 2d at 1204; Zavala, 393 F. Supp. 2d at 309; Loiselle, 91 F. Supp. 2d at 408. Thus, as an independent, material element of the predicate offense, Plaintiffs must provide evidence Defendants had actual knowledge these individuals were “brought” into the United States illegally f or the purposes of illegal employment. Id. Plaintiffs have made no effort to demonstrate such knowledge. Neither the testimony of Mr. Cutler, the excerpts of Mr. Copeland, nor the documentary evidence even allude to this requirement.
d. Conclusion To establish a RICO claim predicated on 8 U.S.C. § 1324(a)(3)(A), Plaintiffs must provide sufficient probative evidence of the material elements of that predicate offense. As such, Plaintiffs must provide sufficient evidence to show Tyson had at least ten illegal aliens employed at each of its facilities, and that Defendants had a ctual knowledge each facility em ployed at least ten individuals who were unauthorized to work in the United States and were brought into the country
17

for purposes of illegal employment.10 See 8 U.S.C. § 1324(a)(3)(A). Plaintiffs have failed to do s1o1.
As a result, the Court willGRANT Defendants’ motion for summary judgment on Plaintiffs’ RICO
claims predicated on 8 U.S.C. § 1324(a)(3)(A) (Court File No. 449).
2. Evidence of Harboring and Concealing
Plaintiffs also assert as a RICO predicate offense that Defendants have violated 8 U.S.C. §
1324(a)(1)(A)(iii), by conduct which “knowing or in reckless disregard of the fact that an alien has
come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields
from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place,
including any building or any means of transportation.” The term “harbor” has been interpreted as
“conduct tending substantially to facilitate an aliens' remaining in the United States illegally.” See
10Plaintiffs dedicate a considerable am ount of their Response to arguing their “willful blindness” theory is suffi cient to establish Defendants had actual knowledge at least ten of their employees were unauthorized to work in the Un ited States and were brought into the country for purposes of illegal employment (Court File No. 467,pp. 16-24). The statute at issue requires “actual knowledge,” 8 U.S.C. § 1324(a)(3)(A), whereas the five cases Plaintiffs cited as authority for the sufficiency of a showing of “willful blindness” d eal with statutes that require only “knowledge” (Court File No. 467, p. 17). “Actual knowledge,” requiring subjective belief that something is true, is a higher standard than “knowledge,” which canbe shown by willful blindness, a subjective belief that it is highly probable that something is true. United States v. One 1973 Rolls Royce, 43 F.3d 794, 813 (3d Cir. 1994). Indeed, one of Plaintiffs’ cited cases expressly recognizes this distinction in dealing with a statute that did not require “actual knowledge.” See Mester Mfg. Co. v. I.N.S., 879 F.2d 561, 567 (9th Cir. 1989) (“Mester had constr uctive knowledge, even if no Mester employee had actual specific knowledge of the employee's unauthorized status.”) This distinction between “actual knowledge” and “knowledge” is well-established. See, e.g., United States v. Caseer, 399 F.3d 828, 841 (6th Cir. 2005) (distinguishing “act ual” and “constructive” knowledge). Thus, Plaintiffs’ theory of “willful blindness,” wit hout more, does not satisfy the “actual knowledge” requirement under 8 U.S.C. § 1324(a)(3)(A).
11This is particularly evident when one consiedrs, to support their entire claimunder 8 U.S.C. § 1324(a)(3)(A), Plaintiffs would need to provide evidence of at least ten illegal employees at each of Tyson’s eight facilities at issue here for each of the twelve-month intervals over the nine-year period of the alleged violations (see Approved Class Notice, Court File No. 460, Appendix A). This would require a showing of 720 illegal employees.
18

Susnjar v. United States, 27 F.2d 223, 224 (6th Cir. 1928);United States v. Varkonyi, 645 F.2d 453, 459 (5th Cir. 1981); United States v. Lopez, 521 F.2d 437, 441 (2d Cir. 1975); United States v. Belevin-Ramales, 458 F. Supp. 2d 409, 410-11 (E.D. Ky. 2006). Thus, Plaintiffs m ust provide admissible evidence such that a reasonable jury co uld find Defendants (1) committed actions to substantially facilitate an alien remaining in this country illegally and (2) did so with knowledge or a reckless disregard of the fact that the alien illegally entered or remained in the United States.
Plaintiffs allege Tyson harbor ed or concealed illegal im migrants working at the Tyson facilities by providing short-termand long-termhousing, and warning unauthorized employees prior to inspections by the INS (Court File No. 467, pp. 24-25). Plaintiffs fail to provide adm issible evidence sufficient to support their claim s Tyson provides housing to illegal im migrants, but Plaintiffs provide one declaration of a form er employee of Tyson at the Corydon, Indiana plant which supports their claim Tyson warned employees of INS inspections.
a. Short-term Housing Plaintiffs allege Tyson provided short-term housing to immigrants, with knowledge they were illegal, to facilitate their continued presence in the United States illegally. Plaintiffs support this claim with the following exhibits: First, Virginia Bravo, a legally-authorized Tyson em ployee, testifies she sought and was denied housing from a Mrs. Ahrazue because shewas not an illegal immigrant (Court File No. 467, Exhibit UU, pp. 125-131). Ms. Bravo’s testimony does not establish a foundation to show Tyson was behind this, nor have Plaintiffs provided a reason why Ms. Bravo’s testimony as to what Mrs. Ahrazhue said to another person would not be excluded as hearsay. Second, Idonyia McCoy testifies Tyson was providing housing to illegal aliens. However,
19

her testimony provides no admissible factual basis for how she knew certain Hispanic workers were illegal, or on what basis she believed Tyson provided certain individuals housing (Id., Exhibit VV, pp. 73-74).
Third, Jacqueline E. Terrell drove Hispanic workers to motels and apartment complexes (id., Exhibit EE, p. 1). Ms. Terrell testifies many of these workers did not have photo identification when they were given their physicals and drug tests,from which she presumes they were illegal (id.). She asserts Tyson gave the Hispanic workers money for obtaining housing, butprovides no explanation of the basis for this assertion (id.). A bald assertion provides noevidentiary support and there is no indication what personal knowledge Ms. Terrell had. The Court does not know whether Ms. Terrell has personal knowledge sufficient to support this assertion, Fed. R. Evid. 602, or whether the basis of her knowledge is admissible evidence, e.g. Fed.R. Evid. 801. As a result, Mr. Terrell’s testimony lends no support to Plaintiffs’ claim.
Fourth, Donna Sanford, a form er human resource employee at Tyson’s Shelbyville, Tennessee facility from 1989-1998, testifies, “if asked, I directed Hispanic workers to local trailer parks where they could find housing” (id., Exhibit WW, discovery number T-001504). This does not support Plaintiffs’ claim , as Ms. Sanford doe s not state whether Tyson t old her to do so, or whether the Hispanic workers were illegal aliens.
Fifth, Plaintiffs provide an exhibit labeledwith the heading “Hispanic Recruiting,” marked confidential, and bearing a discovery tag (id., Exhibit XX). Plaintiffsstate it is the amounts “Tyson paid Alabama motels to house “Hispanic workers”” (Court File No. 467, p. 25). Frankly, this Court has no idea what this document is or fromwhere itcame. Plaintiffs claimit is the money Tyson paid to house Hispanic workers. Even if properly identified and deemed admissible, Plaintiffs provide
20

no proof those workers were illegal aliens, and thus this evidence provides no support for Plaintiffs’ claim.
Sixth, a Mr. Brunton testifies he drove some Hispanic Tyson employees to a trailer park on a few occasions ( id., Exhibit B, pp. 2618-19). He asse rts no knowledge that the Hispanic employees were illegal aliens, nor does he provide a basis to infer it.
None of Plaintiffs’ cited exhibits shows Tyson provided short-term housing to illegal immigrants.
b. Long-term Housing Plaintiffs allege Tyson assisted illegal immigrants in obtaining long-term housing, citing a news article stating Tyson launched a homeownership initiative for team members in conjunction with Freddie Mac ( id., Exhibit YY), and an exhibit appearing to be a bullet -point summary of Tyson’s “Assisted Housing Program” (id., Exhibit ZZ). Nowhere in eitherof these exhibits is there any indication the recipients or intended beneficiaries were or would have been illegal immigrants.
c. Concealing Illegal Immigrants during INS Inspections Plaintiffs allege Tyson concealed illegal employees by informing them when it learned the government might inspect the facility (id., p. 25). Plaintiffs support this claim with the following exhibits: First, Lori Windham, a former-Tyson employee from 1997 to 2003, testifies there was a rumor the INS were going to inspect the plant on tehnext day. The next day, Ms. Windham testifies the plant was “noticeably emptier than normal” as many of the Hispanic workers did not come to work (id., Exhibit AAA, p. 1). A reasonable jury might be able to infer the Hispanic workers did not return to work due to the INS rumor. However, Ms. Windham provides no factual basis to infer
21

Tyson informed them of the potential inspection. Second, Patricia Mims, an hourly worker at the Gadsden, Alabama facility from 1992-2000,
testifies, if Tyson knew of INS inspections in advance, they would provide a green van to remove some of the illegal aliens from the premises (id., Exhibit BBB, p. 1). Again, she provides no factual basis for this knowledge - the Court does not know whether Ms. Mim s has personal knowledge sufficient to support this assertion, Fed. R. Evid. 602, or whether t he basis of her knowledge is admissible evidence, e.g. Fed. R. Evid. 801. As a result, Mr. Mims’ testimony lends no support to Plaintiffs’ claim.
Third, Tracie G. Garrett testifies many illegal workers left the plant when an INS agent came to Tyson (id., Exhibit CCC). Ms. Garrett does not imply Tyson informed the illegal workers of the presence of the INS.
Finally, Kelly Kessinger, a former second-shift, hourly employee at the Corydon, Indiana facility from 2002-2004, testifies on a number of occasions, management at Tyson would selectively inform certain illegal workers ofimpending INS inspections (id., Exhibit CC, discovery number T0050).12 Ms. Kessinger personally observed Ruth Burell, a Tyson supervisor, walking around the plant before INS inspections with Dalia (the translator) and informing certain illegal aliens about the upcoming inspection (id., discovery number T-0051). These individuals then would meet with Michelle Erp in the Human Resources office (id.). The illegal aliens who were informed by Ms. Burell were then absent f rom the Tyson facility during the INS inspection ( id.). Ms. Kessinger estimates at least fifty illegal workers would be informed in this manner, then subsequently absent
12Plaintiffs incorrectly cited the Kessinger Declaration as Exhibit BB ( id., p. 25). It is Exhibit CC.
22

(id.). d. Conclusion
As previously discussed, Plaintiffs must provide admissible evidence such that a reasonable jury could find Defendants (1) committed actions to substantially facilitate an alien remaining in the United States illegally and (2) did so with knowledge oar reckless disregard of the fact that the alien illegally entered or remained in the United States. See 8 U.S.C. § 1324(a)(1)(A)(iii); Susnjar, 27 F.2d at 224; Belevin-Ramales, 458 F. Supp. 2d at 410-11. Ms. Kessinger testified she personally observed a Tyson supervisor inform certain illegal alien employees of impending INS inspections at the Corydon, Indiana facility, and that those same employees were not present for work during those inspections (Court File No. 467, Exhibit CC, pp. 1-2). See Fed. R. Evid. 602. Ms. Kessinger does not provide an explicit basis for her assertion the employees were unauthorized; however, a reasonable jury could infer that from the fact a Tyson supervisor warned certain workers of an INS inspection and those workers did not return to work for the inspection.
Thus, Plaintiffs have provided evidence sufficient to allow a reasonable jury to conclude Ms. Burell, a Tyson supervisor, and Ms. Erp, a Tyson Hum an Resources em ployee, informed unauthorized employees of INS inspections in order to conceal them from detection by the government. This creates a m aterial factual dispute in the predicate offense under 8 U.S.C. § 1324(a)(1)(A)(iii), and thus makes summary judgment inappropriate on this element of Plaintiffs’ claim concerning the Corydon, Indiana facility. However, Plaintiffs have failed to provide admissible evidence of harboring or concealing illegal aliens at the other Tyson facilities, and have provided no basis to infer Ms. Kessinger’s observations were part of a pattern reenacted at every Tyson facility. As such, the Court will GRANT Defendants’ motion for summary judgment on
23

Plaintiffs’ RICO claims predicated on 8 U.S.C. § 1324(a)(1)(A)(iii) in relation to the Tyson facilities in Ashland, Alabama; Center, Texas; Gadsden, Alabama; Glen Allen, Virginia; Heflin, Alabama; Sedalia, Missouri; and Shelbyville, Tennessee (Court File No. 449).
3. Injury and Causation Having established sufficient evidence to avoid summary judgment for their RICO claim predicated on 8 U.S.C. § 1324(a)( 1)(A)(iii) violations at the Tyson plant in Corydon, Indiana, Plaintiffs must satisfy the special requirements for a civil RICO claim , pursuant to 18 U.S.C. § 1964(c). Plaintiffs must provide evidence to support (a) an injury to their business or property (b) by reason of the com mission of the predicate offe nse. The latter requirement is based upon the common-law foundations of proximate cause. Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 126 S. Ct. 1991, 1996 (2006).
a. Injury Plaintiffs assert their wages were depressed. This is a valid injury under 18 U.S.C. § 1964(c). As the United States Court of Appeals forthe Sixth Circuit held in this very case, “direct employees who receive too little [in wages]” assert a direct injury.Trollinger v. Tyson Foods, Inc., 370 F.3d 602, 616 (6th Cir. 2004) (“Trollinger”); accord Williams v. Mohawk Indus., Inc,. 465 F.3d 1277, 1286 (11th Cir. 2006).
b. Causation To avoid summary judgment, Plaintiffs must provide evidence to establish a direct causal relation between their claim ed injury, i.e. lost wages, and the predicate offense conduct, i.e. concealing illegal immigrants in the Tyson facilities from INS inspections. See Anza, 126 S. Ct. at 1996; Trollinger, 370 F.3d at 622. To do so, Palintiffs are faced with a two-part causal chain, and
24

must provide sufficient evidence to establish each link, as follows: Tyson concealed illegal

immigrants from government authorities by warning them of INS inspections, (1) which enabled

Tyson to retain illegal employees , (2) which enabled Tyson to pay wages lower than the going

market rate (the injury alleged by Plaintiffs). The Court consider s both causal links, m aking all

reasonable inferences in favor of Plaintiffs. See Matsushita, 475 U.S. at 587; Eliadis, 253 F.3d at

907.

i. Retaining Unauthorized Labor

According to Ms. Kessinger’s testim ony, a Tyson supervisor and her translator warned

unauthorized employees of impending INS investigations at the Corydon, Indiana facility, allowing

them to avoid detection (Court File No. 467, Exhibit CC, discovery num

bers T-0050-51).

According to her testimony, some fifty illegal alien workers were warned and avoided detection.

Ms. Kessinger also testified these workers would retrun to work after the INS investigation was over

(id.). Based upon Tyson warning the unauthorized workers and permitting them to return to work

after the INS investigation, a reasonable jury could infer from this testimony that, at the Corydon,

Indiana facility, Tyson was doing so to retain these unauthorized individuals for employment (see

id., discovery number T-0051). Thus, Plaintiffs haveprovided a sufficient evidentiary basis to show

Tyson was able to retain illegal em ployees at the Corydon, Indiana facility by warni ng them of

impending INS investigations.

ii. Lower-than-market Wages

To meet their burden at this causal link, Plaitniffs must show both that (a) Tyson was actually

paying wages lower than the going market wage at the Corydon, Indiana facility, and (b) Tyson was

able to do so because it was retaining its illegal em ployees through a pattern of concealm ent, in

25

violation of the predicate offense, 8 U.S.C. § 1324(a)(1)(A)(iii). As part of Dr. Borjas’ analysis of Tyson’s market power, he collected and compared wage rates at the Tyson f acilities and at other employers he determined were similar with respect to geography and the type of employment they offered (Court File No. 412, Exhi bit A, pp. 7-14) . If a reasonable jury accepts Dr. Borjas’ conclusions, that data would show the Corydon, Indiana facility was paying lower than the market wage.13
Plaintiffs must also provide evidence of a direct causal link between Tyson’s lower wages and Tyson’s retention of some illegal employees at the Corydon, Indiana facility. Even if a jury accepts Plaintiffs’ arguments that their wages were depressed and Tyson retained unauthorized employees, that is not a sufficient basis for the jury to determine one caused the other - only that both occurred. Plaintiffs’ expert, Dr. Borjas, could testify generally that the employment of illegal immigrants can cause a decrease in the wages paid to em ployees (Court Fi le No. 500, p. 16). However, this is meaningless if Plaintiffs cannot provide evidence that retention of unauthorized employees caused the depression of wagesin this case. Without such evidence, Plaintiffs’ causation argument is purely speculative. See Trollinger, 370 F.3d at 614, 620.
Plaintiffs have filed to provide suffic ient evidence to support this direct causal link. 14
13This Court has already determined the credibility of Dr. Borjas’ conclusions is an issue of r the jury to determine in its capacity as the trier of fact (Court File No. 500, pp. 17-18).
14At the motion-to-dismiss phase, the Sixth Circuit court discussed the prospective burden of proof for causation at the summary-judgment phase. Trollinger, 370 F.3d at 619. These concerns have gone unanswered.
There are many fact-driven questions here - e.g., Tyson' s ability to influe nce the labor market in Shelbyville and the other cities whereTyson has a plant, the effect that the hiring practices of other businesses in Shelbyville and the other areas have on Tyson's ability to depress wages, and the efect of Tyson's alleged smuggling and employment of illegal aliens
26

Plaintiffs’ causation argument is wholly speculative and fails to account for critical issues which
fundamentally affect their causation burden of proof. As one example, Plaintiffs have provided no
evidence as to the percentage ofillegal aliens in the workof rce. Whether Tyson’s retention ofillegal
aliens directly caused the losses alleged by Plaintiffs is critically dependent upon the percentage of
illegal aliens in Tyson’s workforce.15 If the f ifty illegal aliens constituted a m ajority of the
workforce, it is more plausible their presence hada significant impact on the wages of legal workers.
If the f ifty illegal aliens constituted only a sm all minority of that workf orce, their presence is
unlikely to have had any real effect.
As another example, Plaintiffs have not provdied evidence to demonstrate whether the illegal
on the local union - and the speculativeness of our answers to all of them counsels against resolving the dispute as a matter of law at this early stage in the case.
It remains possible that plaintiffs may prove the following allegations in their complaint: (1) that Tyson hired sufficient numbers of illegal aliens to impact the legal employees' wages; (2) that each additional illegal worker hired into the bargaining unit by Tyson has a measurable impact on the bargained-for wage-scale; (3) that the illegal immigrants allegedly brought into this country through Tyson's efforts allowed Tyson not to compete with other businesses for unskilled labor; and (4) that Tysons' legal workers did not “choose” to remain at Tyson for less money than other businesses offered, but had no choice in the matter given the hiring needs of the other businesses in the area and the inf lux of illegal immigrants at Tyson's facilities. While Tyson's proximate-cause argument may well carry the day at the summary-judgment stage, it requires more assistance than the complaint alone provides.
Id.
15The lack of evidence as to what percentage ofTyson’s workforce was comprised of illegal aliens is not only relevant to the more general issueof whether this factor directly lowered Plaintiffs’ wages to some degree, but also fundam ental to any determ ination of what portion of the wage depression was actually caused by the retention ofillegal aliens. In determining damages, the Court would need to determine what portion ofthe wage depression was caused by the presence ofillegal aliens, and then discount that by onyl considering the effect of theportion of those illegal aliens who were able to be retained due to Tyson’s concealment efforts. This requires the kind of highly speculative damage calculations which implicate fundamental causation concerns, as specifically recognized by the Supreme Court in Anza. 126 S. Ct. at 1998.
27

aliens were members of the local union. The presence of a union could severely distort the causal
link between Tyson’s retention ofillegal aliens and Plaintiffs’ injury, due to the union’s potentially
pivotal role in negotiating wages with Tyson.16 If the illegal aliens were not members of the local
union, but they made up only a small percentage of the workforce, then their numbers should have
little impact upon the union’s bargaining power and levreage, and Tyson’s perception of that power.
If their numbers are large, howe ver, and they are not members of the union, this should have a
deleterious impact upon the union’s bargaining powerand leverage, and Tyson’s perception of that
power.
As a third example, Plaintiffs have provided no evidence as to the length of time the illegal
workers had been at Tyson. The longer they had been in Tyson’s epmloyment, the more likely their
presence impacted wages.
Ultimately, Plaintiffs’ speculative chain of causation is plagued by the possibility of
intervening causes, which Plaintiffs have not addressed. See Trollinger, 370 F.3d at 614, 619. If
the jury accepts Plaintiffs’ claim that Tyson paid less than the going-market wage, Plaintiffs have
provided no evidence the retention ofillegal alien employees permitted Tyson to do so. Tyson may
16The Sixth Circuit, in ruling in this case, stated “the union’s role in negotiating wages may well prove to attenuate the chain of causation to the breaking point.” Trollinger, 370 F.3d at 619. Plaintiffs have not accounted for the potential causal distortion of the collective-bargained, wage negotiations between a Tyson facility and the union. This is of significant causal concern, because the wages are not set directly by Tyson, but are a result of wage negotiations with union representatives (Court File No. 450, p. 7). These negotiations occur several years prior to the negotiated wages taking effect, and are generally negotiated in four-year blocksid(., p. 6). Plaintiffs have provided no evidence of how authorized employees’ wages were depressed in spite of union representation, or to what extent this represen tation did, or did not, mitigate the wage depression Plaintiffs allege occurred due to Tyson’s concealing and retaining unauthorized workers. Without evidence, this Court cannot, and a reasonable jurycould not, simply assume the union had no effect on the causation elements of Plaintiffs’ wage depression.
28

have been able to pay lower wages because people were willing to work for Tyson for a lower wage due to Tyson providing better benefits, more job security, or a more convenient location; or, because the worker’s union was out-negotiated when wages were set, or pursued other interests at the negotiation more rigorously than the hourly wage rate . Plaintiffs have made no effort to address these potentially-material intervening causes, and there are likely others. Cf. Anza, 126 S. Ct. at 1997 (discussing the problems that arise when causation is too remote and speculative, lacking casespecific evidence).
iii. Conclusion Plaintiffs have failed to provide any direct evidence Tyson’s concealment and retention of illegal employees depressed their wages, a s required pursuant to 18 U.S.C. § 1964(c). The only causation evidence Plaintiffs have provided is generalized speculation, without the specific factual basis needed to tie the theory to this case. See Trollinger, 370 F.3d at 619-620. As such, this Court will GRANT Defendants’ motion for summary judgment on Plaintiffs’ RICO claims predicated on 8 U.S.C. § 1324(a)(1)(A)(iii) in relation to the Tyson facility in Corydon, Indiana (Court File No. 449).17
17Plaintiffs’ RICO claims predicated on 8 U.S.C. § 1324(a)(3)(A) and § 1324(a)(1)(A)(iii) at the other Tyson facilities would also be appropriately dismissed based upon Plaintiffs’ failure to establish direct causation, had those claims not been dismissed on other grounds.
29

IV. CONCLUSION18 Plaintiffs alleged RICO offenses predicated on two im migration offenses - 8 U.S.C. §
1324(a)(3)(A), (a)(1)(A)(iii). Plaintiffs failed to produce evidence to demonstrate the presence of at least ten unauthorized em ployees at any given Tyson f acility, and thus f ailed to satisfy their burden of proof under 8 U.S.C. § 1324(a)(3)(A). Plaintiffs failed to dem onstrate Tyson wa s harboring or concealing illegal aliens at its facilities in Ashland, Alabama; Center, Texas; Gadsden, Alabama; Glen Allen, Virginia; Heflin, Alabama; Sedalia, Missouri; and Shelbyville, Tennessee. Plaintiffs submitted the declaration ofMs. Kessinger,which provided a basis of r a jury to find Tyson was concealing unauthorized employees at its Corydon, Indiana facility. However, Plaintiffs failed to provide evidence to show Tyson’s violationsof 8 U.S.C. § 1324(a)(1)(A)(iii) proximately caused their injuries. As a result, this Court willGRANT Defendants’ motion for summary judgment, and DISMISS Plaintiffs’ claims with prejudice.
An Order shall enter.
/s/ CURTIS L. COLLIER CHIEF UNITED STATES DISTRICT JUDGE
18Because Plaintiffs failed to provide sufficient evidence to oppose Defendants’ motion for summary judgment, as explained above, this Cour t does not have oc casion to consider whether Plaintiffs satisfied their burden as to the requirem ents of their RICO offe nses under 18 U.S.C. § 1963(c), (d).
30

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE
WINCHESTER DIVISION

BIRDA TROLLINGER, VIRGINIA

)

BRAVO, KELLY KESSINGER,

)

IDOYNIA MCCOY, REGINA LEE,

)

PATRICIA MIMS, LORI WINDHAM

)

and ALEXANDER HOWLETT,

)

individually and on behalf of all others

)

similarly situated

)

)

Plaintiffs,

)

)

v.

)

)

TYSON FOODS, INC., JOHN TYSON,

)

ARCHIBALD SCHAFFER III, RICHARD )

BOND, KENNETH KIMBRO, GREG

)

LEE, KAREN PERCIVAL, AHRAZUE

)

WILT and TIM MCCOY,

)

)

Defendants.

)

No. 4:02-CV-23 Chief Judge Curtis L. Collier

AMENDED MEMORANDUM1

Plaintiffs Birda Trollinger, etal., (“Plaintiffs”) brought thislawsuit against defendant Tyson

Foods, Inc. et al., (“Defendants”) under the civil porvisions of the Racketeer Influenced and Corrupt

Organizations Act (“RICO”). Plaintiffs proceeded under a somewhat novel and untested theory of

liability based upon their claims Defendants employed illegal aliens at their facilities.

After years of litigation, the Court, on February 13, 2008, granted Defendants’ motion for

1The previous Memorandum (Court File No. 549), accompanying the Order (Court File No. 550), inadvertently used the wrong nam e to identify Christopher Ca rpenter, a form er Tyson employee who supplied a declaration in support of Plaintiffs’ motion to reconsider (Court File No. 535). In order to avoid any confusion which may result, the Court issues this Amended Memorandum, which replaces the previous Memorandum. The Court’s Order of April 22, 2008 is unaffected (Court File No. 550), and no substantive c hanges to the previous Mem orandum are intended.

summary judgment, and issued judgment against all claims of Plaintiffs (Court File No. 534). On February 28, 2008, Plaintiffs m oved for reconsid eration, but only as to the Tys on Foods, Inc. (“Tyson”) facility in Corydon, Indiana from 1999 to 2000, based upon evidence Plaintiffs alleged was newly-discovered and rectified the deficiencies in their case upon which sum mary judgment was granted (Court File No. 535). On March 3, 2008, Plaintiffs filed a motion to add additional evidence to their motion for reconsideration as it pertained to the Corydon f acility from 2000 to 2005 (Court File No. 543). On April 18, 2008, Plaintiffs filed another m otion to add additional evidence for the Corydon facility from 1999-2000 (Court File No. 548).
For the following reasons, the Court will DENY Plaintiffs’ motions for reconsideration (Court File Nos. 535, 543, 548).
I. FACTS The full facts of this case canbe found in this Court’s memorandum accompanying its order
granting summary judgment (Court File No. 533) . Som e additional facts are provided here specifically relevant to Plaintiffs’ motions.
According to the Scheduling Order, the parties made their initial discovery disclosures on September 17, 2004 (Court File No. 32, p. 2). At th at time, discovery was set to end on May 10, 2006, with a trial date set for Novem ber 7, 2006 (see id.). This deadline, as m ost if not all other deadlines in this case, was extended multiple times (see, e.g., Court File Nos. 263, 267, 272, 281, 418). In the First Management Order, the parties represented they would complete all discovery by July 30, 2007 (Court File No. 241, p. 7). Thus, from the time between their initial disclosures and
2

the close of discovery,2 the parties had three years, three months, and thirteen days. Within ten days3 after this Court dismissed Plaintiffs’ claim (Court File No. 534; February
13, 2008), Plaintiffs filed a motion for this Court to reconsider that judgment pursuant to Fed. R.
Civ. P. 59(e) based on evidence Plaintiffs asserted is newly discovered (Court File Nos. 535, 536;
February 28, 2008). Plaintiffs provided a declaration from Christopher Carpenter, a former hourly-
paid, line worker at the Tyson pl ant in Corydon, Indiana (Court File No. 536, Exhibit B). Mr.
Carpenter asserts a Tyson supervisor, “Miguel,” was “bringing in” 100-200 Spanish-speaking,
Hispanic workers every two weeks to work at Tyson ( id., p. 1). These workers would first be
employed through Tandem Staffing (a temporary employment agency) (id.). Miguel would then
offer the employees “fake papers,” including social security numbers, for the price of $1,800 (id.).
This cost could be paid at a rate of $100 per paycheck ( id., p. 2). Mr . Carpenter’s knowledge is
derived from having overheard Miguel discussing thisinformation with the Hispanic employees and with Miguel’s colleagues (id., pp. 1-2).4
Fifty days after the summary judgment decision and thirty-five days after their initial motion
for reconsideration, Plaintiffs filed a m otion to supplement their first motion for reconsideration
2As previously stated, the parties were given numerous time extensions for discovery. Some of these extensions were in the f orm of time extensions for specific types of discovery, som e of which extended beyond the date provided. For the sake of the Court’s analysis here, however, it is sufficient to note that, at the earliest, discovery ended on July 30, 2007 (Court File No. 241, p. 7).
3As calculated pursuant to Fed. R. Civ. P. 6(a). 4Plaintiffs assert this knowledge, based upon overhearing what someone else said, is not hearsay due to Federal Rules of Evidence 801(d)(2 )(D) (“A statement is not hearsay if . . . [t]he statement [is] offered against a party and is . . . a s tatement by t he party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.”) For the sake of its analysis hree, the Court assumes Plaintiffs are correct and Mr. Carpenter’s testimony would not be inadmissible hearsay.
3

(Court File No. 543; April 3, 2008), submitting an affidavit from Kimorie Yates, a former hourlypaid employee at the Corydon plant (id., Exhibit A).5 Ms. Yates asserts she was present at several meetings where Tyson human resource employees would speak with illegal-alien workers in Spanish of upcoming audits by the Immigration and Naturalization Service (“INS”) of Tyson’s paperwork and I-9 forms (id., pp. 1-2). The human resource workers would then provide new identities and paperwork for the illegal workers (id., p. 2). Ms. Yates asserts there were thirty toiffty illegal aliens present at each meeting, and these meetings were held “a couple times a year from2000-2005” (id.). Ms. Yates also asserts an illegal worker named “Hector” confessed to her he was “shipped” from Mexico to work at the Corydon facility i(d., p. 3). Finally, Ms. Yates asserts that, at any given time, there were about 100 illegal aliens worknig on the floor of the Corydon facilityi(d.). Ms. Yates does not state the specific basis for this estimate (id.).
Sixty-five days after summary judgment, Plaintiffs filed another motion to supplement their motion for reconsideration (Court File No. 548). The motion seeks to add the declaration of Jerry Chism, a former hourly-paid employee from the Corydon plant (id., Exhibit A). Mr. Chismasserts he lived in an apartment building with Hispanic Tyson workers who informed him they were not legally in the United States and that a Tyson supervisor had provided themwith fake identification documents (id.).
5The declaration filed by Plaintiffs with the Coutrappears to have been truncated at the entry numbered seven, and continues at entry eight on the next page (see Court File No. 543, Exhibit A). Also, entry nine is illegible. Regardless, as is evidentrfom the analysis below, the contents ofthese omissions would not alter the Court’s determination here.
4

II. STANDARD OF REVIEW A. Reconsideration of a judgment Federal Rule of Civil Procedure(“Fed. R. Civ. P.”) 58(e) authorzi es a court to alter or amend
a judgment upon motion of a party no later than ten days after the judgment. The Rule does not specifically state upon what grounds such amendment is appropriate, but courts have, as follows: (1) to correct a clear error of law; (2) to acocunt for newly-discovered evidence; (3) to accommodate an intervening change in controlling law; or, (4) to otherwise prevent m anifest injustice. CGH Transport, Inc. v. Quebecor World, Inc. , 2008 WL 116385, *5 (6th Cir. January 8, 2008) (citing GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999);accord Collison v. Int’l Chem. Workers Union, Local 217, 34 F.3d 233, 236 (4th Cir. 1994); McClendon v. B & H Freight Servs., Inc., 910 F. Supp. 364, 365 (E.D. Tenn. 1995);Teel v. Darnell, 2008 WL 1751532, *1 (E.D. Tenn. April 14, 2008).
Motions for reconsideration or to alter or amend a judgment are rarely granted. “In practice, because of t he narrow purposes for which they are intended, Rule 59(e) m otions typically are denied.” 11 Charles Alan Wright, et al., Federal Practiceand Procedure Civil 2d § 2810.1;see also Ruscavage v. Zuratt, 831 F. Supp. 417, 418 (E.D. Pa. 1993) (noting Rule 59(e) motions “should be granted sparingly because of the interests in finality and conservation of judicial resources”).
To amend or alter a judgment for newly-discovered evidence, the evidence must have been previously unavailable. GenCorp, 178 F.3d at 834. Where such evidence existed at the time of the order or judgment being challenged, amendment is only appropriate where moving counsel made a diligent yet unsuccessful effort to discover the evidence.Javetz v. Board of Control, Gran Valley State Univ., 903 F.Supp. 1181, 1191 (W.D. Mich. 1995) (citing Buell v. Security Gen. Life Ins. Co,.
5

987 F.2d 1467, 1472 (10th Cir. 1993),cert. denied, 510 U.S. 916 (1993));McClendon, 910 F. Supp. at 365. It is the burden of the moving party to demonstrate this diligent yet unsuccessful effort was made. See CGH, 2008 WL 116385, at *6.
As an axiomatic requirement, the newly-discovered evidence must be such that an alteration or amendment of the judgment is appropriate. See Television Reception Corp. v. Dunbar,426 F.2d 174, 180-81 (6th Cir. 1970). Where the newly-discovered evidence could not lead to an alteration or amendment of the challenged Court order, the previous order need not be disturbed. See id.
In exercising its discretion as to whether amendment is proper, a court must balance the need to uphold the integrity of pretrial schedules and procedures, the need to uphold the finality of decisions made, and the need to render just decisions on the basis of all the pertinent facts. Javetz, 903 F.Supp. at 174 (citingLavespere v. Niagara Mach. & Tool Works., Inc,.910 F.2d 167, 174 (5th Cir. 1990), cert. denied, 510 U.S. 859 (1993)).
B. Summary judgment In considering (a nd reconsidering) a summary judgment motion, a court m ust view the evidence, and all reasonable inferences, in the light most favorable to non-m oving parties. See Mitsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis Inc. , 253 F.3d 900, 907 (6th Cir. 2001) . Essentially, a court m ay enter summary judgment when a fair-minded jury could not return a verdict in favor of the non-moving party based on the evidence before it.Anderson v. Liberty Lobby, Inc,. 477 U.S. 242, 251-52 (1986); Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).
6

III. DISCUSSION Amendment of the Court’s summary judgment decision (Court File No. 534) is not
appropriate. Plaintiffs’ motions fail to demonstrate the new evidence offered was diligently sought, and even if it had been, the new evidence providedoes not address the causation deficiencies which also led to the grant of summary judgment.
A. Previous judgment and applicable law The applicable law is more thoroughly discussed in this Court’s previous decision (Court File No. 534, pp. 4-6). Brief ly restated, Plaintiffs filed a civil RICO action, predicated on two immigration offenses (id.). Most relevant here, to avoid summary judgment, Plaintiffs were required to provide evidence such that a reasonable jury, based upon that evidence, could find Plaintiffs (1) established the necessary elem ents of the predicate offenses for their RICO claim s, and (2) established the causation requirem ent for civil RICO cla ims, i.e. established a direct, proxim ate causal link between Defendants’ alleged behavior and Plaintiffs’ injury ( id., pp. 4-6, 24-25). Plaintiffs failed to do either (see id., pp. 23-24, 29 n.17). B. Amendment of judgment is unwarranted Plaintiffs filed a timely motion for reconsideration, based upon the declaration of Christopher Carpenter, and motions to supplement their previous motion, based upon the declarations of Kimorie Yates and Jerry Chism, long after the ten-day period provided by Fed. R. Civ.P. 59(e) expired. The Court addresses each of these filings.
1. Declaration of Christopher Carpenter This Court previously granted summary judgment, determining Plaintiffs did not provide sufficient evidence to support, within a twelve-month period, Defendants knowingly hired at least
7

ten individuals with actual knowledge those indivi duals were both unauthorized t o work in the United States and were brought into the countryfor purposes of illegal employment, as required by 8 U.S.C. § 1324(a)(3)(A) (Court File No. 534, p. 6).
Plaintiffs now present the declaration of Mr. Carpenter, who asserts a person named Miguel, an employee of Tyson, was bringing 100-200 illegal workers to work at Tyson every two weeks (see Court File No. 536, Exhibit B). To justify reconsideration, Plaintiffs must show (i) the new evidence was previously unavailable, and remained undiscovered despite diligent efforts to the contrary, and (ii) the new evidence, if it had b een timely presented and thus considered in the Court’s initial ruling, would have resulted in a dneial of Defendants’ motion for summary judgment. See GenCorp, 178 F.3d at 834; Javetz, 903 F.Supp. at 1191 (citing Buell, 987 F.2d at 1472); CGH, 2008 WL 116385, at *6; Dunbar, 426 F.2d at 180-81. In considering these issues, the Court also considers the value of upholding the integrity of pretrial schedules and procedures, upholding the finality of decisions made, and rendering just decisions on the basis ofall the pertinent facts. Javetz, 903 F.Supp. at 174 (citing Lavespere, 910 F.2d at 174).
a. Not “newly discovered” evidence through “diligent effort” According to Plaintiffs, Mr. Carpenter contacted them on February 6, 2008, after receiving the class action notice (Court File No. 536, p. 2). Sum mary judgment was granted on Plaintiffs’ claims on February 13, 2008 (Court File No. 534). Forthe sake of analysis here, the Court assumes seven days was inadequate time for Plaintiffs to fully elicit Mr. Carpenter’s testimony and provide the details to the Court for consideration prior to the issuance of its summary judgment order. For the Cour t to reconsider its judgm ent, Plaintiffs m ust demonstrate Mr. Carpenter’s declaration is newly-discovered evidence which eluded Plaintif fs’ earlier, diligent, albeit
8

unsuccessful, efforts to obtain it. See Javetz, 903 F.Supp. at 174. Plaintiffs have not demonstrated
any effort on t heir part to contact Mr. Carpen ter prior to Mr. Carpenter voluntarily contacting
Plaintiffs on his own initiative after viewing the class notice (CourtFile No. 536, p. 2). There is no
indication Mr. Carpenter was unable to be located prior to that time.6
From the specificity of the allegations in the complaint it appeared Plaintiffs had witnesses
such as Mr. Carpenter available atthe time of the filing of the complaint or that such witnesses could
be readily obtained. In litigating a lawsuit such asthis it would be expected Plaintifs would engage
in efforts to locate and interview witnesses in Tyson facilities and the locations surrounding those
facilities. With allegations of wide-spread and company-wide practices of employing illegal aliens
in the complaint, it would be expected that, to prove the allegations, resources would have to be
devoted to seeking out witnesses to support those allegations at trial. It would not be unexpected
to hire private detectives or advertise ofr terminated or disgruntled Tyson workers that could provide
6Plaintiffs cite Dunbar, 426 F.2d at 180-81, f or the propositi on that “it is an abuse of discretion to deny a motion for reconsideration under Fed. R. Civ. P. 59(e) based upon new evidence presented in an affidavit where the new evidence ‘would probably produce a different result’ and is not ‘m erely cumulative or im peaching’” (Court File No. 536, pp. 2, 4). The Dunbar court reversed the denial of a motion for reconsideration of the district court’s decision at a bench trial. 426 F.2d at 180. Plaintiffs’ sum mary of the case is m isleading, and their reliance upon it is misplaced.
The circumstances of that case are readily dis tinguishable from the case here. F irst, the plaintiff, seeking reconsideration, provided the court with detailed evidence of its diligent efforts to secure a material witness - including inquiry at his last-known address, personal searches as to his whereabouts, and the hiring of a detective agenc y to locate him. Id. Those strategies were unsuccessful prior to trial, but the witness eventually became aware of the search and contact ed plaintiff’s counsel. Id. Here, Plaintiffs give no reason, in the over three years of discovery, why they could not have contacted Mr. Carpenter (see Court File No. 536, p. 3).
Second, in Dunbar, the late information was in directopposition to the factual findings made by the district judge in the bench trial, and would have probably altered the outcome. 426 F.2d at 180. Here, as di scussed below, Plaintiffs’ evidence, even if believed by a jury at trial, does not correct all the deficiencies in Plaintiffs’ case, and tuhs summary judgment would still be appropriate.
9

information. Plaintiffs chose not to pursue that route. Planitiffs argue whistle-blowers are dificult to find
and did not emerge here until after the class notice was distributed (Court File No. 536, p. 3). Put another way, Plaintiffs argue, due to the size of the class, they were unable to contact every class member to ascertain whether that class member might have information which would permit him or her to serve as a witness at trial (see id.). While that may be true, that argument does not satisfy the requirement Plaintiffs demonstrate they made diligent efforts to inform class members of their need for witnesses, or to question any significant portion of those members in seeking out relevant testimony, during a discovery period that spanned over three years. Nor does it explain why they chose to pursue this course of action that is, as t hey acknowledge, risky at best instead of taking steps that were more likely to lead to this evidence.
The inadequacy of Plaintiffs’ efforts to make diligent efforts to develop evidence to support their allegations is further demonstrated because, as Defendants point out, Plaintiffs did not depose any temporary agency employee or human resource employee from the Corydon facility (Court File No. 537, pp. 4-5). This is hardly a sign of diligence in obtaining evidence, since the entire claim now asserted by Plaintiffs for reconsideration is based upon the actions of a temporary agency and human resource personnel of the Corydon facility.
Plaintiffs have failed to make any showing they diligently pursued the evidence they now present, or indeed any evidence similar to it, as required under Fed. R. Civ. P. 59(e). If they had done so, the Court would have then c onsidered various interests weighing for and against the reconsideration of its judgm ent, such as: upholding the integrity of pretrial s chedules and procedures, upholding the finality of its decisions, and rendering just decisions on the basis of all
10

the pertinent facts. Javetz, 903 F.Supp. at 174. These factors weigh against reconsideration here. Plaintiffs are not only asking for erconsideration of this Court’s judgment, they are ultimately asking to start the entire litigation process again. Plaintiffs move the Court to redefine the class action to include only employees at the Corydon facility from1999-20057 (Court File No. 536, p. 5). Because this development is based upon new evidence (see id., p. 1),8 Defendants would no doubt seek, and would be granted, an opportunity to depose M r. Carpenter and the individual m entioned in his declaration, and to conduct further discovery as necessary to prepare their case in light of this new evidence. Plaintiffs also wish to use their exper,tDr. George Borjas, to calculate the damages of this smaller class (Court File No. 536, p. 5). The admissibility of Dr. Borjas’ applied methodology for estimating determinate damages was not expresslyruled on previously because the specific damage estimate he had calculated was based upon an unreliable, and ultimately non-existent, estimate of the number of Tyson employees who were employed in violation of the predicate statutes at issue in this case (see Court File No. 500, p. 15). The Court could not rule now on the admissibility of this new damage calculation without providing Defendants, and Defendants’ expert, an opportunity to address it at the Daubert stage, particularly because one significant, previously-disputed issue involved the reliability of Dr. Borjas’ damage estimate in state and regional data sets, as opposed to the nationwide data sets normally utilized in this sub-branch of economics (see Court File No. 412, Exhibit E, pp. 3, 6-7).
7The period from 1999 to 2005 also includes the tim e period covered by the declaration included in Plaintiffs’ motion to amend their motion to reconsider based upon Ms. Yates’ testimony, as addressed below (Court File No. 543).
8Plaintiffs’ characterization of this evidence as“new” is questionable. Defendants assert Mr. Carpenter is not a newly-discovered witness (C ourt File No. 537, p. 4). The Court assumes Mr. Carpenter’s testimony is new for the purposes of the analysis here.
11

Reconsideration of the summary judgment decision would cause a resetting of the litigation
to the beginning. It is difficult to im agine a case where the value of upholding the finality of
decisions and upholding the integrity of pretrial shcedules and procedures would weigh more heavily
against reconsideration. See Javetz, 903 F. Supp. at 174. Plaintiffs were given extensive amounts
of discovery and very generous leeway in conducting that discovery. Plaintiffs’ lack of diligence
in pursuing the evidence they now (mistakenly) assert would adequately support their allegations
forecloses any possibility of granting them the relief they seek.
One final point regarding Plaintiffs diligence bears mention. Plaintiffs state they did not
distribute the class notice until January 3, 2008, onemonth after the Court approved the class notice
(Court File No. 540, pp. 3-5). They suggest they were delayed because the Court was dilatory in
approving the notice. However, at no tim e prior to this point did Plaintiffs inform the Court that
they were relying upon class notice to passivelyobtain witnesses upon which their entire case would
hinge.9 The C ourt was under the im pression Plaintiffs would utilize discovery - the traditional
9Plaintiffs’ only communication to this Court objecting to the timeliness of the approval of the class notice language was, as Plaintiffs ponit out (Court File No. 540, p. 2), on October 25, 2007, in their motion to continue the Daubert hearing and trial dates. Plaintiffs invested three sentences to what now appears to be a cornerstone of their current motion for reconsideration, as follows:
Moreover, the trial date of March 3, 2008 shouldbe continued because the Court has not yet approved the Plaintiffs’ proposed notice to the class. The notice and opt-out pr ocedure cannot be completed in time for trial on March 3, 2008. (Plaintiffs suggest the trial date be coordinated with approval of the proposed class notice.)
(Court File No. 421, p. 2).
The Court sees no mention of a need for passive discovery through the issuance of the class notice. Furtherm ore, the notice procedure was com pleted prior to the scheduled trial and the summary judgment order. Based upon Plaintiffs’distribution of the class notice on January 3, 2008, one month after the Court approved the notice language, class members had forty-one days to optout of the class prior to the Court issuing its order dismissing the case.
12

method used to obtain evidence to substantiate one’s claim. That impression seemed particularly warranted here, where Plaintiffs were privy toextremely prolonged, and very generous, discovery.
As previously stated, Plaintiffs have failed todemonstrate any diligenteffort in obtaining Mr. Carpenter’s testimony, the newly-discovered evidence in question. As such, this Court willDENY Plaintiffs’ motion for reconsideration (Court File No. 535).
b. No change in the judgment As previously stated, Plaintiffs’ m otion for reconsideration fails to satisfy the diligence requirement pursuant to Fed. R. Civ. P. 59(e) andits accompanying case law. Plaintiffs also fail to satisfy the second requirement of Fed. R. Civ. P. 59(e), i.e. the newly-discovered evidence would have altered the judgment. See Dunbar, 426 F.2d at 180-81.10 Even if the Court had been provided Mr. Carpenter’s testimony to consider when reviewing Defendants’ summary judgment motion, the Court would still have granted sum mary judgment. Plaintiffs assert Mr. Carpenter’s testim ony sufficiently satisfies the summary judgment standard for its predicate offense pursuant to 18 U.S.C. § 1964. However, whether it does is immaterial, because Mr. Carpenter’s testimony does nothing to address Plaintiffs’ fundam ental failure in establishing the causation requirem ent in their civil RICO action. See 18 U.S.C. § 1964; Beck v. Prupis, 529 U.S. 494, 505-06 (2000). This Court addressed these causation deficiencies in its summary judgment memorandum (Court File No. 533,
10The United States Court of Appeals for the Sixth Circuit inDunbar determined the newlydiscovered evidence in its case “would probably produce a different result.” 426 F.2d at 180 (emphasis added). The Court here states a stronger proposition - i.e. the evidence would have produced a different result - because unlike the Court of Appeals in Dunbar, which had to remand the district court’s decision so the newly-discovered evidence could be considered, this Court can review its previous order granting summary judgment and determine Plaintiffs’ newly-discovered evidence would not have affected its decision.
13

pp. 24-29),11 and these deficiencies still remain. 2. Declaration of Kimorie Yates
Plaintiffs provide the declaration of M s. Yates in a m otion to am end their m otion for reconsideration (Court File No. 543). Ms. Yates saserts she was present for several meetings where Tyson human resource employees at the Corydon facility supplied illegal aliens with false identities (Court File No. 543, Exhibit A).
Although Plaintiffs label the motion as one to amend or revise their previous memorandum in support of reconsideration (Court File No. 543), the m otion puts forth new and indepe ndent evidence, in the form of a declaration by Ms. Yates, to argue for reconsideration. Therefore, this Court views Plaintiffs’ motion to amend for what it is - a second motion for reconsideration.
Fed. R. Civ. P. 59(e) permits a party to move a court to alter or amend its judgment “no later than 10 days after the entry of the judgment.” Plaintiffs filed their second motion fifty days after the Court’s decision. Therefore, this Court wilDl ENY Plaintiffs’ second motion for reconsideration because it was not filed within the ten days required by Fed. R. Civ. P. 59(e) (Court File No. 543).
Even if Plaintiffs had filed this m otion within ten days of sum mary judgment, the Court would have denied the m otion on the sam e grounds as it denies Plaintiffs’ first m otion for reconsideration, as above. Plaintiffs have failed to demonstrate diligence in pursuing Ms. Yates as a witness, and have failed to overcome the causation deficiencies still present in their claim.
3. Declaration of Jerry Chism Mr. Chism asserts several illegal aliens inofrmed him a Tyson supervisor provided them with
11Although the Court had already dismissed Plaintiffs’ RICO claim predicated on 8 U.S.C. § 1324(a)(3)(A) prior to the causation analysis, theCourt acknowledged that dismissal of that claim would have also been proper based upon causation deficiencies (Court File No. 533, p. 29 n. 17).
14

false identities (Court File No. 548, Exhibit A). Lkie the motion containing Ms. Yates’ declaration, this motion to amend puts forth new and independent evidence to argue for reconsideration; it is a separate motion to reconsi der. The Court received this m otion sixty-five days after sum mary judgment - well beyond the ten days afforded to Plaitniffs to file such a motion. Thus, the Court will DENY Plaintiffs’ third m otion for reconsi deration because it was not filed within the ten days required by Fed. R. Civ. P. 59(e) (Court File No. 543).
Furthermore, as with the motions supported by the declarations of Mr. Carpenter and Ms. Yates, Plaintiffs have failed to demonstrate diligence in pursuing Mr. Chismas a witness, and have failed to overcome the causation deficiencies still present in their claim. Even ifPlaintiffs had timely filed this motion, it would be denied on those grounds.
VI. CONCLUSION For the foregoing reasons, this Court will DENY Plaintiffs’ motions for reconsideration
(Court File Nos. 535, 543, 548). An Order shall enter.
/s/ CURTIS L. COLLIER CHIEF UNITED STATES DISTRICT JUDGE
15

 
 KMG,PHV
Live Database U.S. District Court − Eastern District of Tennessee (Winchester)
CIVIL DOCKET FOR CASE #: 4:02−cv−00023

Trollinger, et al v. Tyson Foods, Inc. Assigned to: District Judge Curtis L Collier Referred to: Magistrate Judge William B Carter Demand: $0 related Case: 4:01−cr−00061
Case in other court: U.S Court of Appeals, 08−05643
02−06020
USDC/EDTN Criminal #, 4:01−cr−61 Cause: 18:1961 Racketeering (RICO) Act
Plaintiff

Date Filed: 04/02/2002 Date Terminated: 02/13/2008 Jury Demand: Both Nature of Suit: 470 Racketeer/Corrupt Organization Jurisdiction: Federal Question

Birda Trollinger

represented by Andrew M Volk Hagens Berman LLP 1301 Fifth Avenue Suite 2900 Seattle, WA 98101 206−623−7292 Email: andrew@hagens−berman.com TERMINATED: 03/01/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Howard W Foster Johnson &Bell, Ltd. 33 East Monroe Street Suite 2700 Chicago, IL 60603−5404 312−726−1600 Fax: 866−470−5738 Email: hfoster@fosterpc.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Steve W Berman Hagens Berman Sobol Shapiro LLP (Seattle) 1918 Eighth Avenue Suite 3300 Seattle, WA 98101 206−623−7292 Fax: 206−623−0594 Email: steve@hbsslaw.com TERMINATED: 03/01/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case 4:02-cv-00023

Doc <docnum>

William G Colvin William G. Colvin PLLC 801 Broad Street Suite 428 Chattanooga, TN 37402 423−265−8804 Fax: 423−267−5915 Email: bcolvin@cavett−abbott.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Filed <datefiled> Page 1 of 51

William V Johnson Johnson &Bell, Ltd. 33 East Monroe Street Suite 2700 Chicago, IL 60603−5404 312−372−0770 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tom Greenholtz Chambliss, Bahner &Stophel, PC Two Union Square Suite 1000 Tallan Building Chattanooga, TN 37402−2500 423−756−3000 Fax: 423−508−1256 Email: tgreenholtz@cbslawfirm.com ATTORNEY TO BE NOTICED

Plaintiff Robert Martinez

represented by Andrew M Volk (See above for address) TERMINATED: 03/01/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Howard W Foster (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Steve W Berman (See above for address) TERMINATED: 03/01/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William G Colvin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William V Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tom Greenholtz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Tabetha Eddings

represented by Howard W Foster (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case 4:02-cv-00023

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Steve W Berman (See above for address) TERMINATED: 03/01/2005 LEAD ATTORNEY
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ATTORNEY TO BE NOTICED

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William V Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tom Greenholtz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Doris Jewell

represented by Andrew M Volk (See above for address) TERMINATED: 03/01/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff Virginia Bravo

represented by William V Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff Kelly Kessinger
Case 4:02-cv-00023

represented by William V Johnson (See above for address)
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LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff Idoynia McCoy

represented by William V Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff Regina Lee

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Plaintiff
Alexander Howlett individually and on behalf of all others similarly situated

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V. Defendant Tyson Foods, Inc.

represented by Christopher H Steger Miller &Martin, PLLC (Chattanooga) 832 Georgia Avenue 1000 Volunteer Building Chattanooga, TN 37402 423−756−6600 Email: csteger@millermartin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen M Lauerman Sidley, Austin, Brown &Wood 1501 K Street, N.W. Washington, DC 20005−1401 202−736−8000 Fax: 202−736−8711 Email: clauerman@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank R Volpe Sidley, Austin, Brown &Wood, LLP 1501 K Street NW Washington, DC 20005 202−736−8000 Email: fvolpe@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie G. Koller Sidley, Austin, LLP 1501 K Street, N.W. Washington, DC 20005 202−736−8000 Fax: 202−736−8711 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark D Hopson Sidley Austin, LLP 1501 K Street NW Washington, DC 20005 202−736−8188 Fax: 202−736−8711 Email: mhopson@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew J. Warren Sidley, Austin, LLP 1501 K Street, N.W. Washington, DC 20005 202−736−8996 Fax: 202−736−8711 Email: mjwarren@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger W Dickson Miller &Martin, PLLC (Chattanooga)
Case 4:02-cv-00023 Doc <docnum> Filed <datefiled> Page 5 of 51

Defendant John Tyson

832 Georgia Avenue 1000 Volunteer Building Chattanooga, TN 37402 423−756−6600 Email: rdickson@millermartin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas C Green Sidley, Austin, Brown &Wood, LLP 1501 K Street NW Washington, DC 20005 202−736−8000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
C Celeste Creswell Miller &Martin, PLLC (Chattanooga) 832 Georgia Avenue 1000 Volunteer Building Chattanooga, TN 37402 423−756−6600 Fax: 423−785−8480 Email: ccreswell@millermartin.com ATTORNEY TO BE NOTICED
Travis R McDonough Miller &Martin, PLLC (Chattanooga) 832 Georgia Avenue 1000 Volunteer Building Chattanooga, TN 37402 423−756−6600 Fax: 423−785−8480 Email: Tmcdonough@millermartin.com ATTORNEY TO BE NOTICED
represented by Colleen M Lauerman (See above for address) LEAD ATTORNEY
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Travis R McDonough (See above for address) ATTORNEY TO BE NOTICED

Defendant Archibald Schaffer, III

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Defendant Richard Bond

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Travis R McDonough (See above for address) ATTORNEY TO BE NOTICED

Defendant Kenneth Kimbro

represented by Colleen M Lauerman (See above for address) LEAD ATTORNEY

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Defendant Greg Lee

represented by Colleen M Lauerman (See above for address) LEAD ATTORNEY

Frank R Volpe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie G. Koller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew J. Warren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

C Celeste Creswell (See above for address) ATTORNEY TO BE NOTICED

Roger W Dickson (See above for address) ATTORNEY TO BE NOTICED

Case 4:02-cv-00023 Doc <docnum> Filed <datefiled> Page 8 of 51

Travis R McDonough (See above for address) ATTORNEY TO BE NOTICED

Defendant Karen Percival

represented by Colleen M Lauerman (See above for address) LEAD ATTORNEY

Frank R Volpe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie G. Koller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew J. Warren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

C Celeste Creswell (See above for address) ATTORNEY TO BE NOTICED

Roger W Dickson (See above for address) ATTORNEY TO BE NOTICED

Travis R McDonough (See above for address) ATTORNEY TO BE NOTICED

Defendant Ahrazue Wilt

represented by Colleen M Lauerman (See above for address) LEAD ATTORNEY

Frank R Volpe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie G. Koller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew J. Warren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

C Celeste Creswell (See above for address) ATTORNEY TO BE NOTICED

Roger W Dickson (See above for address) ATTORNEY TO BE NOTICED

Case 4:02-cv-00023 Doc <docnum> Filed <datefiled> Page 9 of 51

Defendant Tim McCoy
Interested Party United States Department of Justice

Travis R McDonough (See above for address) ATTORNEY TO BE NOTICED
represented by Colleen M Lauerman (See above for address) LEAD ATTORNEY
Frank R Volpe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie G. Koller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew J. Warren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
C Celeste Creswell (See above for address) ATTORNEY TO BE NOTICED
Roger W Dickson (See above for address) ATTORNEY TO BE NOTICED
Travis R McDonough (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/02/2002 04/02/2002 04/03/2002 04/10/2002 04/10/2002 04/19/2002 04/25/2002 04/25/2002

# Docket Text
1 COMPLAINT (Summons(es) issued); jury demand, Magistrate Judge Powers designated (JGM) (Entered: 04/03/2002)
FILING FEE PAID on 4/2/02 in the amount of $ 150.00, receipt # 00836. (JGM) (Entered: 04/03/2002)
REMARK − contacted Mr. McMahan's office about Mr. Berman, Mr. Volk and Mr. Foster complying w/Rule 83.5 (JGM) (Entered: 04/03/2002)
2 RETURN OF SERVICE unexecuted as to defendant Tyson Foods, Inc. due to amended complaint filed prior to service (JGM) (Entered: 04/10/2002)
3 FIRST AMENDED COMPLAINT [1−1]; jury demand (JGM) (Entered: 04/10/2002)
4 AFFIDAVIT OF SERVICE executed upon defendant Tyson Foods, Inc. on 4/12/02 via process server (JGM) (Entered: 04/23/2002)
5 MOTION by plaintiffs for attorney Howard W. Foster to appear pro hac vice w/cert of good standing from USDC/NDIL attched (JGM) (Entered: 04/26/2002)
RECEIPT #00850 in the amt of $60.00 for phv fee of Howard W. Foster (JGM) Modified on 05/24/2002 (Entered: 04/26/2002)

Case 4:02-cv-00023 Doc <docnum> Filed <datefiled> Page 10 of 51

05/02/2002

7 JOINT STIPULATION to extend time to answer or otherwise respond to pltf's complaint on or before 5/22/02 (JGM) Modified on 05/06/2002 (Entered: 05/06/2002)

05/03/2002

6 ORDER by Mag Judge John Y. Powers granting motion for attorney Howard W. Foster to appear pro hac vice w/cert of good standing from USDC/NDIL attched [5−1] (cc: all counsel) (JGM) (Entered: 05/03/2002)

05/22/2002

8 MOTION by plaintiffs for attorney Andrew M. Volk &Steve W Berman to appear pro hac vice w/cert of good standing from USDC/EDWA &USDC/WDWA attched (JGM) (Entered: 05/24/2002)

05/22/2002

RECEIPT no. 00871 in the amt of $120.00 for phv fee of Andrew M. Volk &Steve W. Berman (JGM) (Entered: 05/24/2002)

05/24/2002

9 MOTION by defendant to dismiss for lack of subject matter jurisdiction C/S (JGM) Modified on 06/03/2002 (Entered: 06/03/2002)

05/24/2002

10 MEMORANDUM IN SUPPORT by defendant of motion to dismiss for lack of subject matter jurisdiction [9−1] C/S (JGM) (Entered: 06/03/2002)

05/24/2002

11 MOTION by defendant to dismiss for failure to state a claim C/S (JGM) (Entered: 06/03/2002)

05/24/2002

12 MEMORANDUM IN SUPPORT by defendant of motion to dismiss for failure to state a claim [11−1] C/S (JGM) (Entered: 06/03/2002)

05/24/2002

13 CERTIFICATE OF CORPORATE INTEREST by defendant C/S (JGM) (Entered: 06/03/2002)

05/24/2002

14 AFFIDAVIT of Timothy J. McCoy w/Contracts attched (JGM) (Entered: 06/03/2002)

06/04/2002

15 ORDER by Mag Judge John Y. Powers granting motion for attorney Andrew M. Volk &Steve W Berman to appear pro hac vice [8−1] (cc: all counsel) (JGM) (Entered: 06/04/2002)

06/04/2002

16 AGREED ORDER by Honorable R Allan Edgar extending time to answer or otherwise respond to pltf's complaint (cc: all counsel) (JGM) (Entered: 06/04/2002)

06/10/2002

17 MEMORANDUM IN OPPOSITION by plaintiffs to motion to dismiss for lack of subject matter jurisdiction [9−1] C/S (JGM) (Entered: 06/10/2002)

06/10/2002

18 RESPONSE by plaintiffs to motion to dismiss for failure to state a claim [11−1] C/S (JGM) (Entered: 06/14/2002)

06/13/2002

REMARK. File #2 begins with pleading #19. (TJG) (Entered: 06/19/2002)

06/14/2002

19 REPLY IN SUPPORT by defendant Tyson Foods, Inc. re [11−1], re [9−1] C/S (TJG) (Entered: 06/17/2002)

06/17/2002

20 REPLY by defendant to response to motion to dismiss for failure to state a claim [11−1] C/S (JGM) (Entered: 06/24/2002)

07/16/2002

21 MEMORANDUM by Honorable R Allan Edgar (cc: all counsel) (JGM) (Entered: 07/16/2002)

07/16/2002

22 JUDGMENT by Honorable R Allan Edgar granting motion to dismiss for failure to state a claim [11−1], denying motion to dismiss for lack of subject matter jurisdiction [9−1] dismissing case with prejudice (cc: all counsel) OB 31 Pg 29 (JGM) (Entered: 07/16/2002)

08/09/2002

23 NOTICE OF APPEAL by plaintiff from Dist. Court decision [22−2] (cc: all counsel) (JGM) (Entered: 08/12/2002)

08/09/2002

APPEAL FEE RECEIVED re [23−1] fee in amount of $ 105.00 ( Receipt # 00909) (JGM) (Entered: 08/12/2002)

08/15/2002

TRANSMISSION FORM − forwarding copy of notice of appeal, document appealed, and updated docket entries to USCA: [23−1] (cc: all counsel) (JGM) (Entered: 08/15/2002)

Case 4:02-cv-00023 Doc <docnum> Filed <datefiled> Page 11 of 51

09/04/2002

NOTIFICATION by Circuit Court of Appellate Docket Number 02−6020 (JGM) (Entered: 09/06/2002)

09/06/2002

24 TRANSCRIPT Order by plaintiff Birda Trollinger, plaintiff Robert Martinez, plaintiff Tabetha Eddings, plaintiff Doris Jewell for dates: no hearings (JGM) (Entered: 09/06/2002)

06/07/2004

25 USCA JUDGMENT as to 23 Notice of Appeal filed by Birda Trollinger, Tabetha Eddings, Robert Martinez, Doris Jewell JGM, ) (Entered: 07/02/2004)

07/02/2004

26 MANDATE of USCA as to 23 Notice of Appeal filed by Birda Trollinger, Tabetha Eddings, Robert Martinez, Doris Jewell. Judgment of the district court is REVERSED and the case is REMANDED for further proceedings consistent with the opinion of this court (JGM, ) (Entered: 07/02/2004)

07/02/2004

27 NOTICE of Scheduling Conference set for Monday, September 13, 2004 at 04:30 PM before Honorable R Allan Edgar in Chattanooga. (JGM, ) (Entered: 07/02/2004)

07/30/2004

28 DEMAND for Trial by Jury by Tabetha Eddings, Doris Jewell, Robert Martinez, Birda Trollinger. (JGM, ) (Entered: 08/06/2004)

08/06/2004

29 AGREE ORDER OF SUBSTITUTION OF COUNSEL. It is ORDERED that William G. Colvin and Shumacker Witt Gaither &Whitaker are substitution of counsel for Plaintiffs, in the place of John D. McMahan, the McMahan Law Fir,. Signed by Judge R Allan Edgar on 8/6/04. (KFB, ) (Entered: 08/09/2004)

08/24/2004

30 REPORT of Rule 26(f) Planning Meeting. (McDonough, Travis) (Entered: 08/24/2004)

09/08/2004

31 ANSWER to Amended Complaint by Tyson Foods, Inc.(McDonough, Travis) (Entered: 09/08/2004)

09/13/2004

33 AGREED STIPULATED PROTECTIVE ORDER, Signed by Judge R Allan Edgar on 9/13/04. (KFB, ) (Entered: 09/17/2004)

09/15/2004

32 SCHEDULING ORDER: Jury Trial set for 11/7/2006 09:30 AM in Third Floor Courtroom before Honorable R Allan Edgar (in Chatta). Final Pretrial Conference set for 11/1/2006 10:00 AM in Third Floor Chambers (in Chatta) before Honorable R Allan Edgar. Discovery due by 5/10/2006. Joinder of Parties due by 1/14/2005. Motions due by 5/26/2006.Signed by Judge R Allan Edgar on 9/15/04. (KFB, ) (Entered: 09/15/2004)

09/17/2004

34 MOTION for Leave to Appear pro hac vice by Tyson Foods, Inc. for Frank R. Volpe. Certificate of Good Standing from another District Court requested. U.S. Court of Appeals certicate attached. (JGM, ) (Entered: 09/22/2004)

09/17/2004

RECEIPT #01256 in the amount of $60.00 for phv fee of Frank R. Volpe. (JGM, ) Modified on 9/27/2004 (JGM, ). (Entered: 09/22/2004)

09/27/2004

35 ORDER granting 34 Motion for Leave to Appear pro hac vice for Frank R. Volpe. Signed by Judge R Allan Edgar on DateFiled. (JGM, ) (Entered: 09/27/2004)

09/29/2004

36 MOTION to Strike 31 Answer to Complaint by Tabetha Eddings, Doris Jewell, Robert Martinez, Birda Trollinger. (Greenholtz, Thomas) (Entered: 09/29/2004)

09/29/2004

37 MEMORANDUM in Support of Motion re 36 MOTION to Strike 31 Answer to Complaint filed by Tabetha Eddings, Doris Jewell, Robert Martinez, Birda Trollinger. (Greenholtz, Thomas) (Entered: 09/29/2004)

10/15/2004

38 RESPONSE to Motion re 36 MOTION to Strike 31 Answer to Complaint filed by Tyson Foods, Inc.. (McDonough, Travis) (Entered: 10/15/2004)

10/19/2004

RESPONSE to Motion re 36 MOTION to Strike 31 Answer to Complaint 31 filed by Tabetha Eddings, Doris Jewell, Robert Martinez, Birda Trollinger. (Foster, Howard)(Document not signed. Resubmitted as 40 ) Modified on 10/21/2004 (JGM, ). (Entered: 10/19/2004)

10/19/2004

40 REPLY to Response to Motion re 36 MOTION to Strike 31 Answer to Complaint 36 filed by Tabetha Eddings, Doris Jewell, Robert Martinez, Birda Trollinger.

Case 4:02-cv-00023 Doc <docnum> Filed <datefiled> Page 12 of 51

10/26/2004 11/16/2004 11/16/2004 11/17/2004 11/19/2004
11/22/2004 11/22/2004 11/22/2004 12/21/2004 12/21/2004
12/22/2004 12/23/2004 12/23/2004
01/05/2005 01/06/2005
01/07/2005 01/11/2005

(Foster, Howard) (Entered: 10/21/2004)
41 MOTION For Instruction Regarding Spoliation of Documents by Tyson Foods, Inc.. (McDonough, Travis) (Entered: 10/26/2004)
42 MOTION to Amend/Correct 31 Answer to Complaint by Tyson Foods, Inc.. (Volpe, Frank) (Entered: 11/16/2004)
43 Amended ANSWER to Complaint by Tyson Foods, Inc..(Volpe, Frank) (Entered: 11/16/2004)
44 MOTION to Amend/Correct Motion for Leave to File an Amended Answer by Tyson Foods, Inc.. (Attachments: # 1 Amended Answer)(McDonough, Travis) (Entered: 11/17/2004)
48 ORDER on 41 Motion regarding spoliation of documents. Tyson shall maintain the records at issue for thirty days from the date of this order. After thirty days Tyson may dispose of the records as it sees fit . Signed by Judge William B Carter on DateFiled. (JGM, ) (Entered: 11/23/2004)
45 NOTICE of Hearing on Motion 36 MOTION to Strike 31 Answer to Complaint: Motion Hearing set for 12/3/2004 09:00 AM in Courtroom 1 before Magistrate William B Carter. (TJG, ) (Entered: 11/22/2004)
46 NOTICE of Hearing on Motion 41 MOTION For Instruction Regarding Spoliation of Documents: Motion Hearing set for 12/3/2004 09:00 AM in Courtroom 1 before Magistrate William B Carter. (TJG, ) (Entered: 11/22/2004)
47 NOTICE of Hearing on Motion 44 MOTION to Amend/Correct Motion for Leave to File an Amended Answer: Motion Hearing set for 12/3/2004 09:00 AM in Courtroom 1 before Magistrate William B Carter. (TJG, ) (Entered: 11/22/2004)
49 First MOTION to Compel by Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 12/21/2004)
50 MEMORANDUM in Support of Motion re 49 First MOTION to Compel filed by Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Errata C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Foster, Howard) (Entered: 12/21/2004)
51 NOTICE of Hearing on Motion 49 First MOTION to Compel: Motion Hearing set for 1/7/2005 09:00 AM in Magistrate Judge Courtroom − First Floor before Magistrate William B Carter. (AWH, ) (Entered: 12/22/2004)
52 First MOTION to Continue /Alter Scheduling Order by Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 12/23/2004)
53 MEMORANDUM in Support of Motion re 52 First MOTION to Continue /Alter Scheduling Order filed by Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 2(A) − part 1# 4 Exhibit 2(A) − part 2# 5 Exhibit 2(B)# 6 Exhibit 2(C)# 7 Exhibit 2(D)# 8 Exhibit 2(E)# 9 Exhibit 2(F))(Foster, Howard) (Entered: 12/23/2004)
54 Agreed Proposed Order Granting Defendant's Motion for Leave to File Amended Answer by Tyson Foods, Inc.. (McDonough, Travis) (Entered: 01/05/2005)
55 ORDER withdrawing 36 Motion to Strike affirmative defenses, granting 42 Motion to file an amended answer, granting 44 Motion to Amend/Correct motion to file an amended answer . Signed by Judge William B Carter on 1/6/05. (JGM, ) (Entered: 01/06/2005)
56 RESPONSE to Motion re 49 First MOTION to Compel and Motion to Alter the Scheduling Order filed by Tyson Foods, Inc.. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8)(McDonough, Travis) (Entered: 01/07/2005)
57 Tyson's Amended ANSWER to Complaint by Tyson Foods, Inc..(McDonough, Travis) (Entered: 01/11/2005)

Case 4:02-cv-00023 Doc <docnum> Filed <datefiled> Page 13 of 51

01/11/2005

58 MOTION for Discovery To Deem Tyson's Untimely Consolidated Response to Pltf's Motion to Compel and Motion to Alter the Scheduling Order as Waived by Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 01/11/2005)

01/11/2005

59 MEMORANDUM in Support of Motion re 58 MOTION for Discovery To Deem Tyson's Untimely Consolidated Response to Pltf's Motion to Compel and Motion to Alter the Scheduling Order as Waived filed by Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Foster, Howard) (Entered: 01/11/2005)

01/11/2005

60 REPLY to Response to Motion re 49 First MOTION to Compel filed by Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Foster, Howard) (Entered: 01/11/2005)

01/13/2005

61 RESPONSE to Motion re 58 MOTION for Discovery To Deem Tyson's Untimely Consolidated Response to Pltf's Motion to Compel and Motion to Alter the Scheduling Order as Waived filed by Tyson Foods, Inc.. (McDonough, Travis) (Entered: 01/13/2005)

01/14/2005

62 MOTION to Strike 57 Answer to Complaint D's Amended Ans to P's 1st Amended Complaint by Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 01/14/2005)

01/14/2005

63 MEMORANDUM in Support of Motion re 62 MOTION to Strike 57 Answer to Complaint D's Amended Ans to P's 1st Amended Complaint filed by Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 01/14/2005)

01/18/2005

64 ORDER reserving ruling on 49 Motion to Compel. A status conference will be held on 1/31/05 at 9:00 a.m. before Magistrate Judge Carter to discuss the status of document production in this case. Denying 58 Motion for Discovery . Signed by Judge William B Carter on 1/18/05. (JGM, ) (Entered: 01/19/2005)

01/18/2005

Set/Reset Hearings: Status Conference set for 1/31/2005 09:00 AM before Magistrate Judge Carter. (JGM, ) (Entered: 01/19/2005)

01/20/2005

65 MOTION for Leave to Appear pro hac vice for Colleen M. Lauerman . (Attachments: # 1 Certificate of Good Standing from District of Columbia Court of Appeals)(JGM, ) (Entered: 01/27/2005)

01/24/2005

RECEIPT #01317 in the amt of $60.00 for phv fee of Colleen M. Lauerman. (JGM, ) (Entered: 01/27/2005)

02/03/2005

66 RESPONSE to Motion re 62 MOTION to Strike 57 Answer to Complaint D's Amended Ans to P's 1st Amended Complaint filed by Tyson Foods, Inc.. (McDonough, Travis) (Entered: 02/03/2005)

02/04/2005

67 ORDER denying 65 Motion for Leave to Appear pro hac vice by Colleen M. Lauerman. Signed by Judge William B Carter on 2/4/05. (JGM, ) (Entered: 02/07/2005)

02/07/2005

68 REPLY to Response to Motion re 62 MOTION to Strike 57 Answer to Complaint D's Amended Ans to P's 1st Amended Complaint (To Strike Tyson's Affirmative Defenses) filed by Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 02/07/2005)

02/22/2005

69 Second MOTION to Compel Tyson to Comply with Plaintiffs' Second and Third Request for Production of Documents and Notice of Depositions by Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 02/22/2005)

02/22/2005

70 MEMORANDUM in Support of Motion re 69 Second MOTION to Compel Tyson to Comply with Plaintiffs' Second and Third Request for Production of Documents and Notice of Depositions filed by Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Attachments: # 1 Exhibit A.1# 2 Exhibit A.2# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G# 9 Exhibit H# 10 Exhibit I# 11 Exhibit J)(Foster, Howard) (Entered: 02/22/2005)

Case 4:02-cv-00023 Doc <docnum> Filed <datefiled> Page 14 of 51

02/23/2005 02/23/2005 02/23/2005 02/23/2005 02/24/2005
02/25/2005 02/25/2005
03/01/2005 03/04/2005 03/09/2005 03/09/2005 03/10/2005 03/10/2005 03/14/2005
03/16/2005
03/17/2005
03/18/2005

71 SUPPLEMENT to Motion to Alter the Scheduling Order and Motion to Reconsider by Birda Trollinger. (Colvin, William) (Entered: 02/23/2005)
72 MEMORANDUM in Support of Motion re 52 First MOTION to Continue /Alter Scheduling Order filed by Birda Trollinger. (Attachments: # 1 Exhibit Scheduling Order# 2 Exhibit Order)(Colvin, William) (Entered: 02/23/2005)
73 AFFIDAVIT of William G. Colvin by Birda Trollinger. (Colvin, William) Modified on 2/23/2005 to link affidavit to the motion #52.(TJG, ). (Entered: 02/23/2005)
74 SUBPOENA Returned Executed as to John MacCoon on 02/18/2005 (Attachments: # 1 Exhibit)(Colvin, William) (Entered: 02/23/2005)
75 NOTICE of Hearing on Motion 69 Second MOTION to Compel Tyson to Comply with Plaintiffs' Second and Third Request for Production of Documents and Notice of Depositions: Motion Hearing set for 2/28/2005 02:00 PM before Magistrate William B Carter. (GRE, ) (Entered: 02/24/2005)
76 MOTION to Withdraw as Attorney Counsel For Plaintiffs by Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Volk, Andrew) (Entered: 02/25/2005)
77 RESPONSE in Opposition re 69 Second MOTION to Compel Tyson to Comply with Plaintiffs' Second and Third Request for Production of Documents and Notice of Depositions filed by Tyson Foods, Inc.. (Attachments: # 1 # 2)(McDonough, Travis) (Entered: 02/25/2005)
78 ORDER granting 76 Motion to Withdraw as Attorney. Attorney Steve W Berman and Andrew M Volk terminated . Signed by Judge William B Carter on 3/1/05. (AWH, ) (Entered: 03/02/2005)
79 Agreed Proposed Order re Plaintiff's Motion to Compel by Birda Trollinger. (Colvin, William) (Entered: 03/04/2005)
80 CERTIFICATE OF GOOD STANDING from the District of Columbia as to Atty Colleen M. Lauerman, counsel for deft Tyson Foods, Inc.. (TJG, ) (Entered: 03/10/2005)
81 ORDER GRANTING # 65 MOTION for Atty Lauerman to Appear pro hac vice, WITHDRAWING # 67 previous order on Motion for Leave to AppearSigned by Judge William B Carter on 3/09/05. (TJG, ) (Entered: 03/10/2005)
82 ORDER granting 52 Motion to Alter or Amend the Scheduling Order; granting # 69 pla's Motion to Compel, and setting a status conference for 3/28/05 at 2pm. Signed by Judge William B Carter on 3/10/05. (TJG, ) (Entered: 03/10/2005)
Set Hearing: Status Conference set for 3/28/2005 02:00 PM before Magistrate William B Carter. (TJG, ) (Entered: 03/10/2005)
83 MOTION for Leave to Appear Pro Hac Vice for Matthew Galin by Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. $60.00 fee to be submitted (Attachments: # 1 Certificate of Good Standing)(Foster, Howard). Modified 3/14/05 (JGM) (Entered: 03/14/2005)
84 MEMORANDUM AND ORDER that the pla's Rule 12(f) motion is GRANTED IN PART and DENIED IN PART. The Court RESERVES ruling on the pla's motion to strike the fourth affirmative defense. Accordingly, the pla's Rule 12(f) motion to strike deft Tyson's fifth affirmative defense is DENIED. Signed by Judge R Allan Edgar on 3/16/05. (TJG, ) (Entered: 03/16/2005)
85 Second MOTION for Leave to Appear Pro Hac Vice /Matthew Galin −resubmitted by Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Attachments: # 1 Certificate of Good Standing# 2 Receipt for fee)(Foster, Howard) (Entered: 03/17/2005)
RECEIPT #01349 in the amt of $60.00 for phv fee of Matthew Galin. (JGM, ) (Entered: 03/18/2005)

Case 4:02-cv-00023 Doc <docnum> Filed <datefiled> Page 15 of 51

03/18/2005 04/06/2005 04/07/2005 04/12/2005 04/15/2005 04/18/2005 04/18/2005 04/19/2005 04/19/2005
04/25/2005
04/26/2005 04/26/2005 04/26/2005
04/28/2005
05/05/2005 05/06/2005 05/09/2005

86 ORDER granting 83 and 85 Motions for Attorney Matthew Galin Leave to Appear pro hac vice as counsel for plaintiffs. Signed by Judge William B Carter on 3/18/05. (TJG, ) (Entered: 03/18/2005)
87 Proposed Pretrial Order by Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Colvin, William) (Entered: 04/06/2005)
88 ORDER: Status Conference set for 4/11/2005 11:00 AM in Magistrate Judge Courtroom − First Floor before Magistrate William B Carter.Signed by Judge William B Carter on 4/07/05. (TFC, ) (Entered: 04/08/2005)
89 MOTION to Withdraw Affirmative Defense and Motion for Leave to File Second Amended Answer by Tyson Foods, Inc.. (McDonough, Travis) (Entered: 04/12/2005)
90 ORDER that the Court directs the plas to file by Wed. 4/20/05, a motion and brief to extend dates; the deft shall have seven days to respond to the motion. Signed by Judge William B Carter on 4/15/05. (TJG, ) (Entered: 04/15/2005)
93 MOTION for Leave to Appear pro hac vice for Atty. Mark D. Hopson by Tyson Foods, Inc.. (Attachments: # 1 Supplement pro hac vice fee R#22709)(TFC, ) (Entered: 04/22/2005)
94 MOTION for Leave to Appear pro hac vice for Atty. Thomas C. Green by Tyson Foods, Inc.. (Attachments: # 1 Supplement pro hac vice fee R#22709)(TFC, ) (Entered: 04/22/2005)
91 MOTION for Discovery Rule 16(b) Mot to Alter Scheduling Order by Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Attachments: # 1 Text of Proposed Order)(Foster, Howard) (Entered: 04/19/2005)
92 MEMORANDUM in Support of Motion re 91 MOTION for Discovery Rule 16(b) Mot to Alter Scheduling Order filed by Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Foster, Howard) (Entered: 04/19/2005)
95 ORDER granting 93 Motion for Atty Hopson Leave to Appear pro hac vice, granting 94 Motion for Atty Green Leave to Appear pro hac vice as counsel for deft Tyson. Signed by Judge William B Carter on 4/25/2005. (TJG, ) (Entered: 04/25/2005)
96 ORDER granting # 89 the deft's Motion to Withdraw 89 MOTION to Withdraw Affirmative Defense and Motion for Leave to File Second Amended Answer. Signed by Judge R Allan Edgar on 4/26/2005. (TJG, ) (Entered: 04/26/2005)
97 RESPONSE in Opposition re 91 MOTION for Discovery Rule 16(b) Mot to Alter Scheduling Order filed by Tyson Foods, Inc.. (McDonough, Travis) (Entered: 04/26/2005)
ORDER granting motions for Attys Mark Hopson and Thomas Green to appear pro hac vice for the dft re 93 94 Signed by Judge William B Carter on 4/25/05. (AWH, ) Modified on 4/27/2005; order disabled due to the fact that the order has already been docketed. (see CF #95) (AWH, ). (Entered: 04/27/2005)
98 ORDER granting in part the plas' motion to dismiss 9 ; the scheduling order is AMENDED AND MODIFIED; plas shall file their amended complaint on or before 6/24/05; plas to file their motion for class certification on or before 8/5/05. Signed by Judge R Allan Edgar on 4/28/05. (AWH, ) (Entered: 04/28/2005)
MOTION for Protective Order by Tyson Foods, Inc.. (Attachments: # 1 Exhibit A)(Lauerman, Colleen) . Document deleted due to not being signed/will be resubmitting. Modified on 5/6/2005 (JGM, ). (Entered: 05/05/2005)
99 NOTICE by Tyson Foods, Inc. Notice of Rule 37 Conference (McDonough, Travis) (Entered: 05/06/2005)
100 MOTION for Protective Order by Tyson Foods, Inc.. (McDonough, Travis) (Entered: 05/09/2005)

Case 4:02-cv-00023 Doc <docnum> Filed <datefiled> Page 16 of 51

05/09/2005

101 NOTICE by Tyson Foods, Inc. of Rule 37 Conference (McDonough, Travis) (Entered: 05/09/2005)

05/12/2005

102 RESPONSE in Opposition re MOTION for Protective Order, 100 MOTION for Protective Order filed by Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Affidavit Declaration)(Foster, Howard) (Entered: 05/12/2005)

05/13/2005

103 MOTION for Sanctions For Order Regulating Deposition Conduct by Defendants' Counsel and for Discovery Sanctions Against Defendant and Its Counsel of Record by Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Attachments: # 1 Exhibit A.1# 2 Exhibit A.2# 3 Exhibit B.1# 4 Exhibit B.2)(Foster, Howard) (Entered: 05/13/2005)

05/17/2005

104 NOTICE of Hearing on Motion 100 MOTION for Protective Order: Motion Hearing set for 5/27/2005 09:00 AM in Magistrate Judge Courtroom − First Floor before Magistrate William B Carter. (TFC, ) (Entered: 05/17/2005)

05/17/2005

105 NOTICE of Hearing on Motion 103 MOTION for Sanctions For Order Regulating Deposition Conduct by Defendants' Counsel and for Discovery Sanctions Against Defendant and Its Counsel of Record: Motion Hearing set for 5/27/2005 09:00 AM in Magistrate Judge Courtroom − First Floor before Magistrate William B Carter. (TFC, ) (Entered: 05/17/2005)

05/19/2005

106 REPLY to Response to Motion re 100 MOTION for Protective Order filed by Tyson Foods, Inc.. (Attachments: # 1 # 2 # 3)(McDonough, Travis) (Entered: 05/19/2005)

05/20/2005

107 MEMORANDUM in Support of Motion re 100 MOTION for Protective Order (Supplemental Brief) filed by Tyson Foods, Inc.. (Attachments: # 1)(McDonough, Travis) (Entered: 05/20/2005)

05/23/2005

108 Response in Opposition to Motion re 100 MOTION for Protective Order filed by Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Declaration)(Foster, Howard) Modified on 5/23/2005 to correct title in text.(AWH, ). (Entered: 05/23/2005)

05/25/2005

109 RESPONSE to Motion re 103 MOTION for Sanctions For Order Regulating Deposition Conduct by Defendants' Counsel and for Discovery Sanctions Against Defendant and Its Counsel of Record filed by Tyson Foods, Inc.. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17)(McDonough, Travis) (Entered: 05/25/2005)

06/06/2005

110 ORDER granting in part and denying in part 100 the Motion for Protective Order, and granting in part and denying in part 103 Motion for Sanctions; the Court RESERVES ruling on deft's motion for protective order as it applied to pla's deposing John Tyson, Greg Lee and Ken Kimbro. Signed by Judge William B Carter on 6/6/2005. (TJG, ) (Entered: 06/06/2005)

06/10/2005

111 MOTION to Take Deposition from Ken Kimbro, Greg Lee and John Tyson by Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 06/10/2005)

06/16/2005

112 NOTICE of Hearing on Motion to take deposition 111 Motion Hearing set for 6/24/2005 09:00 AM in Magistrate Judge Courtroom − First Floor before Magistrate William B Carter. (AWH, ) (Entered: 06/16/2005)

06/22/2005

113 RESPONSE to Motion re 111 MOTION to Take Deposition from Ken Kimbro, Greg Lee and John Tyson filed by Tyson Foods, Inc.. (McDonough, Travis) (Entered: 06/22/2005)

06/22/2005 114 Letter from William G. Colvin (TFC, ) (Entered: 06/23/2005)

06/24/2005

115 AMENDED COMPLAINT Second against all defendants all defendants., filed by Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell.(Foster, Howard) (Entered: 06/24/2005)

07/08/2005

Summons Issued pursuant to Second Amended Complaint as to John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival,

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07/08/2005 07/14/2005 07/27/2005
08/01/2005 08/05/2005 08/05/2005 08/05/2005
08/05/2005
08/09/2005 08/09/2005 08/11/2005 08/11/2005 08/11/2005 08/11/2005 08/11/2005 08/11/2005 08/11/2005

Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (JGM, ) (Entered: 07/08/2005)
116 ORDER denying motions as moot 100 107 111 . Signed by Judge William B Carter on 7/08/05. (TFC, ) (Entered: 07/11/2005)
117 ANSWER to Amended Complaint by Tyson Foods, Inc..(McDonough, Travis) (Entered: 07/14/2005)
118 MOTION to Take Deposition from Kessinger and McCoy by Tyson Foods, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J)(Lauerman, Colleen) (Entered: 07/27/2005)
119 NOTICE by Tyson Foods, Inc. re 118 MOTION to Take Deposition from Kessinger and McCoy Withdrawal of Motion (Attachments: # 1 Exhibit A)(Lauerman, Colleen) (Entered: 08/01/2005)
120 Agreed Proposed Order Extending Time for Defendants to Answer Second Amended Complaint by Tyson Foods, Inc.. (McDonough, Travis) (Entered: 08/05/2005)
121 MOTION to Certify Class by Birda Trollinger. Responses due by 8/15/2005 (Foster, Howard) (Entered: 08/05/2005)
MEMORANDUM in Support of Motion re 121 MOTION to Certify Class filed by Birda Trollinger. (Attachments: # 1 Affidavit Declaration# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C.1# 5 Exhibit C.2# 6 Exhibit D# 7 Exhibit E# 8 Exhibit F# 9 Exhibit G# 10 Exhibit H# 11 Exhibit I# 12 Exhibit J)(Foster, Howard) Modified on 8/8/2005 document being disabled due to document being filed twice. (AWH, ). (Entered: 08/05/2005)
123 MEMORANDUM in Support of Motion re 121 MOTION to Certify Class filed by Birda Trollinger. (Attachments: # 1 Affidavit Declaration# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C.1# 5 Exhibit C.2# 6 Exhibit D# 7 Exhibit E# 8 Exhibit F# 9 Exhibit G# 10 Exhibit H# 11 Exhibit I# 12 Exhibit J)(Foster, Howard) Modified on 8/8/2005 (REPLACES CF # 122) (AWH, ). (Entered: 08/05/2005)
124 AGREED ORDER extending time for dfts to answer second amended complaint until 8/11/05.Signed by Judge William B Carter on 8/9/05. (AWH, ) (Entered: 08/09/2005)
125 Agreed Proposed Order Extending Time for Defendants to File Opposition to Class Certification and for Plaintiffs' Response by Tyson Foods, Inc.. (McDonough, Travis) (Entered: 08/09/2005)
126 MOTION for Discovery For An Order Regulating Deposition Conduct By Defendant's Counsel by Birda Trollinger. (Attachments: # 1 Exhibit A# 2 Affidavit Declaration)(Foster, Howard) (Entered: 08/11/2005)
127 AGREED ORDER extending time for dfts to file opposition to class certification and for plaintiffs' response, up to and including 9/28/05. 121 Signed by Judge William B Carter on 8/11/05. (AWH, ) (Entered: 08/11/2005)
128 ANSWER to Amended Complaint (Second) by John Tyson.(McDonough, Travis) (Entered: 08/11/2005)
129 ANSWER to Amended Complaint (Second) by Archibald Schaffer, III.(McDonough, Travis) (Entered: 08/11/2005)
130 ANSWER to Amended Complaint (Second) by Richard Bond.(McDonough, Travis) (Entered: 08/11/2005)
131 ANSWER to Amended Complaint (Second) by Kenneth Kimbro.(McDonough, Travis) (Entered: 08/11/2005)
132 ANSWER to Amended Complaint (Second) by Greg Lee.(McDonough, Travis) (Entered: 08/11/2005)

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08/11/2005 08/11/2005 08/11/2005 08/12/2005 08/19/2005
08/22/2005 09/12/2005 09/12/2005 09/20/2005 09/20/2005 09/20/2005
09/28/2005 10/03/2005
10/05/2005 10/06/2005

133 ANSWER to Amended Complaint (Second) by Karen Percival.(McDonough, Travis) (Entered: 08/11/2005)
134 ANSWER to Amended Complaint (Second) by Ahrazue Wilt.(McDonough, Travis) (Entered: 08/11/2005)
135 ANSWER to Amended Complaint (Second) by Tim McCoy.(McDonough, Travis) (Entered: 08/11/2005)
136 NOTICE of Hearing on Motion 126 MOTION for Discovery For An Order Regulating Deposition Conduct By Defendant's Counsel: Motion Hearing set for 8/26/2005 09:00 AM in Magistrate Judge Courtroom − First Floor before Magistrate William B Carter. (AWH, ) (Entered: 08/12/2005)
137 RESPONSE to Motion re 126 MOTION for Discovery For An Order Regulating Deposition Conduct By Defendant's Counsel and Motion to Strike filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A Deposition Excerpt of Regina Lee# 2 Exhibit B Deposition Excerpt of Kelly Kessinger# 3 Affidavit C Affidavit of Travis McDonough# 4 Exhibit D Letter)(Dickson, Roger) (Entered: 08/19/2005)
138 REPLY to Response to Motion re 126 MOTION for Discovery For An Order Regulating Deposition Conduct By Defendant's Counsel filed by Birda Trollinger. (Foster, Howard) (Entered: 08/22/2005)
139 RESPONSE in Opposition re 121 MOTION to Certify Class filed by Tyson Foods, Inc.. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11)(McDonough, Travis) (Entered: 09/12/2005)
140 EXHIBITS LOCATED IN CLERK'S OFFICE (SEE CF # 139) (AWH, ) (Entered: 09/15/2005)
141 MOTION for Summary Judgment of claims of Idoynia McCoy and Regina Lee by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Lauerman, Colleen) (Entered: 09/20/2005)
142 MEMORANDUM in Support of Motion re 141 MOTION for Summary Judgment of claims of Idoynia McCoy and Regina Lee filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Lauerman, Colleen) (Entered: 09/20/2005)
143 STATEMENT OF UNDISPUTED FACTS re 141 MOTION for Summary Judgment of claims of Idoynia McCoy and Regina Lee Statement of Undisputed Facts filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Lauerman, Colleen) Modified on 9/23/2005 (AWH, ). (DOCUMENT INCORRECTLY NAMED) (Entered: 09/20/2005)
144 REPLY to Response to Motion re 121 MOTION to Certify Class filed by Birda Trollinger. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Foster, Howard) (Entered: 09/28/2005)
145 MOTION for Sanctions Pursuant to Federal Rule of Civil Procedure 11 by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I)(Volpe, Frank) (Entered: 10/03/2005)
146 RESPONSE to Motion re 141 MOTION for Summary Judgment of claims of Idoynia McCoy and Regina Lee filed by Birda Trollinger. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Foster, Howard) (Entered: 10/05/2005)
147 ORDER denying 126 the pla's Motion for Discovery. Signed by Judge William B Carter on 10/6/05. (TJG, ) (Entered: 10/06/2005)

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10/11/2005 10/17/2005
10/18/2005 10/18/2005 10/20/2005 10/25/2005 10/25/2005
12/22/2005
01/09/2006 02/08/2006 02/08/2006 04/11/2006 04/17/2006 04/17/2006 06/02/2006

148 NOTICE of Hearing on Motion for sanctions 145 Motion Hearing set for 10/21/2005 09:00 AM in Magistrate Judge Courtroom − First Floor before Magistrate William B Carter. (AWH, ) (Entered: 10/12/2005)
149 RESPONSE to Motion re 145 MOTION for Sanctions Pursuant to Federal Rule of Civil Procedure 11 filed by Birda Trollinger. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N# 15 Affidavit Howard Foster Declaration)(Foster, Howard) (Entered: 10/17/2005)
150 REPLY to Response to Motion re 141 MOTION for Summary Judgment of claims of Idoynia McCoy and Regina Lee filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (McDonough, Travis) (Entered: 10/18/2005)
151 ORDER re 148 Notice of Hearing is CANCELLED for motion for Rule 11 Sanctions on 10/21/05 (see CF#145). Signed by Judge William B Carter on 10/18/05. (AWH, ) (Entered: 10/19/2005)
152 LOCAL RULE 7.1(d) SUPPLEMENTAL BRIEF to 141 MOTION for Summary Judgment of claims of Idoynia McCoy and Regina Lee by Regina Lee, Idoynia McCoy filed by Regina Lee, Idoynia McCoy. (Attachments: # 1 Exhibit A − Sur−Resp Brief)(Foster, Howard) (Entered: 10/20/2005)
153 ORDER that the plaintiffs' motion for leave to file a sur−response brief is GRANTED re 152 ; Signed by Judge R Allan Edgar on 10/25/05. (AWH, ) (Entered: 10/25/2005)
154 MEMORANDUM AND ORDER: DENYING 145 MOTION for Sanctions Pursuant to Federal Rule of Civil Procedure 11 filed by Tyson Foods, Inc., John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, and Tim McCoy. Signed by Judge R Allan Edgar on 10/25/05. (KFB, ) (Entered: 10/25/2005)
155 Joint MOTION to Vacate Scheduling Order and for Scheduling Conference by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell, Tyson Foods, Inc.. (McDonough, Travis) (Entered: 12/22/2005)
156 NOTICE of Change of Address by Howard W Foster (Foster, Howard) (Entered: 01/09/2006)
157 MEMORANDUM w/order to follow. Signed by Judge R Allan Edgar on 2/8/06. (AWH, ) (Entered: 02/09/2006)
158 ORDER denying 141 Motion for Summary Judgment . Signed by Judge R Allan Edgar on 2/8/06. (AWH, ) (Entered: 02/09/2006)
159 ORDER REASSIGNING CASE. Case reassigned to Judge Curtis L Collier for all further proceedings. Judge R Allan Edgar no longer assigned to caseSigned by Judge Curtis L Collier on 4/11/06. (AWH, ) (Entered: 04/11/2006)
160 ORDER granting 155 Joint Motion to Vacate 32 Scheduling Order. Scheduling conf will be held at 10am on 6/30/2006. Signed by Judge Curtis L Collier on 4/17/06. (TJG, ) (Entered: 04/17/2006)
Set Hearing: Scheduling Conference is set for 6/30/2006 at 10:00 AM in Chambers, Room 317, before Honorable Curtis L Collier. (TJG, ) (Entered: 04/17/2006)
161 NOTICE of RESETTING of Hearing: Scheduling Conference RESET for 6/27/2006 09:00 AM in Room 317, U.S. Courthouse, 900 Georgia Avenue, Chattanooga, Tennessee before U.S. District Curtis L. Collier.(AWH, ) (Entered: 06/05/2006)

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06/27/2006 07/14/2006 07/14/2006
07/24/2006
07/28/2006
08/04/2006
08/07/2006
08/07/2006 08/14/2006 08/15/2006 08/15/2006
08/17/2006
08/23/2006 08/24/2006 09/18/2006 09/21/2006

Minute Entry for proceedings held before Judge Curtis L Collier : Scheduling Conference held on 6/27/2006. (CHP, ) (Entered: 07/05/2006)
162 MOTION for Judgment on the Pleadings by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (McDonough, Travis) (Entered: 07/14/2006)
163 MEMORANDUM in Support of Motion re 162 MOTION for Judgment on the Pleadings filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (McDonough, Travis) (Entered: 07/14/2006)
164 SCHEDULING ORDER: Dispositive Motions due no later tan 7/14/2006; Plaintiffs response brief is due by 7/28/06 and defendants reply brief is due by 8/4/06.Signed by Judge Curtis L Collier on 7/24/06. (AWH, ) (Entered: 07/25/2006)
165 RESPONSE to Motion re 162 MOTION for Judgment on the Pleadings filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger. (Attachments: # 1 Exhibit)(Foster, Howard) (Entered: 07/28/2006)
166 MEMORANDUM in Support of Motion re 162 MOTION for Judgment on the Pleadings filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (McDonough, Travis) (Entered: 08/04/2006)
167 ORDER that a hearing in this case had been scheduled for 10:00am on Monday, 8/14/06 before United States District Judge Curtis L. Collier, third floor courtroom located in the J. Solomon Federal Bldg, 900 Georgia Avenue, Chattanooga, TN.Signed by Judge Curtis L Collier on 8/7/06. (AWH, ) (Entered: 08/07/2006)
Set Deadlines/Hearings: HEARING set for 8/14/2006 10:00 AM in Third Floor Courtroom before Honorable Curtis L Collier. (AWH, ) (Entered: 08/07/2006)
171 Minute Entry for proceedings held before Judge Curtis L Collier : Motion Hearing held on 8/14/2006 re 162 MOTION for Judgment on the Pleadings filed by defendants. (Court Reporter Elizabeth Coffey.) (CHP, ) (Entered: 08/18/2006)
168 MOTION to Compel by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger. (Attachments: # 1 Text of Proposed Order)(Foster, Howard) (Entered: 08/15/2006)
169 MEMORANDUM in Support of Motion re 168 MOTION to Compel filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger. (Foster, Howard) (Entered: 08/15/2006)
170 SUPPLEMENT to 169 Memorandum in Support of Motion by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger. (Attachments: # 1)(Foster, Howard) (Entered: 08/17/2006)
172 NOTICE of Hearing on Motion 168 MOTION to Compel: Motion Hearing set for 9/1/2006 09:00 AM in Magistrate Judge Courtroom − First Floor before Magistrate William B Carter. (AWH, ) (Entered: 08/23/2006)
173 TRANSCRIPT of Proceedings held on 8/14/06 before Judge Honorable Curtis L. Collier. Court Reporter: Elizabeth B. Coffey. (AWH, ) (Entered: 08/25/2006)
174 MEMORANDUM (ORDER) denying 162 Motion for Judgment on the Pleadings . Signed by Judge Curtis L Collier on 9/18/06. (AWH, ) (Entered: 09/18/2006)
175 MOTION to Amend/Revise 174 Order on Motion for Judgment on the Pleadings by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Dickson, Roger) (Entered: 09/21/2006)

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09/21/2006
09/21/2006
09/21/2006
09/29/2006 09/29/2006 10/10/2006 10/10/2006 10/10/2006
10/10/2006 10/12/2006 10/12/2006 10/13/2006 10/13/2006 10/13/2006 10/13/2006 10/13/2006 10/13/2006

176 MEMORANDUM in Support of Motion re 175 MOTION to Amend/Revise 174 Order on Motion for Judgment on the Pleadings filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Dickson, Roger) (Entered: 09/21/2006)
177 SUPPLEMENT to 175 MOTION to Amend/Revise 174 Order on Motion for Judgment on the Pleadings CERTIFICATE OF SERVICE by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Dickson, Roger) (Entered: 09/21/2006)
178 SUPPLEMENT to 176 Memorandum in Support of Motion, CERTIFICATE OF SERVICE by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Dickson, Roger) (Entered: 09/21/2006)
179 MEMORANDUM in support of the following order. Signed by Judge Curtis L Collier on 9/29/2006. (TJG, ) (Entered: 09/29/2006)
180 ORDER denying 175 Motion to Amend/Correct. Signed by Judge Curtis L Collier on 9/29/2006. (TJG, ) (Entered: 09/29/2006)
181 AGREED ORDER denying motion to compel without prejudice as moot 168 . Signed by Judge Curtis L Collier on 10/6/06. (AWH, ) (Entered: 10/10/2006)
182 MEMORANDUM w/order to follow; Signed by Judge Curtis L Collier on 10/10/06. (AWH, ) (Entered: 10/10/2006)
183 ORDER granting 121 Motion to Certify Class. The Court ORDERS the parties to appear at 10:00am on 1/29/07, in chambers, Room 317, 900 Georgia Ave, Chattanooga, Tn. for a Management Conference to discuss notice to the class, selection of class counsel, and other pertinent matters.. Signed by Judge Curtis L Collier on 10/10/06. (AWH, ) (Entered: 10/10/2006)
Set Deadlines/Hearings: Management Conference set for 1/29/2007 10:00 AM in chambers, Room 317, 900 Georgia Ave, Chattanooga, TN, before Honorable Curtis L Collier. (AWH, ) (Entered: 10/10/2006)
184 MOTION to Compel by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Lori Windham, Birda Trollinger. (Attachments: # 1 Text of Proposed Order)(Foster, Howard) (Entered: 10/12/2006)
185 MEMORANDUM in Support of Motion re 184 MOTION to Compel filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Lori Windham, Birda Trollinger. (Foster, Howard) (Entered: 10/12/2006)
186 MOTION for Summary Judgment by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Lori Windham, Birda Trollinger. (Foster, Howard) (Entered: 10/13/2006)
187 MEMORANDUM in Support of Motion re 186 MOTION for Summary Judgment filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Lori Windham, Birda Trollinger. (Foster, Howard) (Entered: 10/13/2006)
188 MOTION for Summary Judgment by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Lori Windham, Birda Trollinger. (Foster, Howard) (Entered: 10/13/2006)
189 MEMORANDUM in Support of Motion re 188 MOTION for Summary Judgment filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Lori Windham, Birda Trollinger. (Foster, Howard) (Entered: 10/13/2006)
190 MOTION for Summary Judgment as to Defendants' Third Affirmative Defense by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Lori Windham, Birda Trollinger. (Foster, Howard) (Entered: 10/13/2006)
191 MEMORANDUM in Support of Motion re 190 MOTION for Summary Judgment as to Defendants' Third Affirmative Defense filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Lori Windham, Birda Trollinger. (Foster,

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10/26/2006 10/30/2006 10/31/2006 10/31/2006 10/31/2006
11/02/2006 11/03/2006
11/06/2006 11/06/2006 11/10/2006
11/17/2006

Howard) (Entered: 10/13/2006)
192 Oral MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motion to Compel Defendants to Comply With Their Tenth Request for Production, by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (McDonough, Travis) (Entered: 10/26/2006)
193 RESPONSE in Opposition re 184 MOTION to Compel Defendants to Comply With Plaintiffs' Tenth Request for Production filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Lauerman, Colleen) (Entered: 10/30/2006)
194 ORDER granting 192 Motion for Extension of Time to File Response/Reply re 192 Oral MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motion to Compel Defendants to Comply With Their Tenth Request for Production, Responses due by 10/30/2006 Signed by Judge William B Carter on 10/31/06. (PCS) (Entered: 10/31/2006)
MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motions for Summary Judgment, by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (McDonough, Travis) Modified on 10/31/2006 (DJH, ). (Incorrect document filed−−atty has refiled see #196) (Entered: 10/31/2006)
196 MOTION for Extension of Time to File Response/Reply as to 190 MOTION for Summary Judgment as to Defendants' Third Affirmative Defense, 186 MOTION for Summary Judgment, 188 MOTION for Summary Judgment As To All Defendants' Second Affirmative Defense To The Second Amended Complaint, by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Text of Proposed Order Modifying Briefing Schedule for Plaintiffs' Motions for Summary Judgment)(McDonough, Travis) (Entered: 10/31/2006)
197 NOTICE of Hearing on Motion 184 MOTION to Compel: Motion Hearing set for 11/9/2006 09:00 AM in Magistrate Judge Courtroom − First Floor before Magistrate William B Carter. (AWH, ) (Entered: 11/02/2006)
198 Second MOTION for Extension of Time to File Response/Reply as to 190 MOTION for Summary Judgment as to Defendants' Third Affirmative Defense, 186 MOTION for Summary Judgment, 189 Memorandum in Support of Motion, 191 Memorandum in Support of Motion, 187 Memorandum in Support of Motion, 188 MOTION for Summary Judgment by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (McDonough, Travis) (Entered: 11/03/2006)
199 ORDER granting motions for extension of time to respond to plaintiffs' motions for summary judgment. 196 198 Signed by Judge Curtis L Collier on 11/6/06. (AWH, ) (Entered: 11/06/2006)
200 BRIEF by Birda Trollinger. (Foster, Howard) (Entered: 11/06/2006)
201 RESPONSE in Opposition re 186 MOTION for Summary Judgment, 190 MOTION for Summary Judgment as to Defendants' Third Affirmative Defense, 188 MOTION for Summary Judgment filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N# 15 Exhibit O# 16 Exhibit P# 17 Exhibit Q)(McDonough, Travis) (Entered: 11/10/2006)
202 MEMORANDUM in Support of Motion re 198 Second MOTION for Extension of Time to File Response/Reply as to 190 MOTION for Summary Judgment as to Defendants' Third Affirmative Defense, 186 MOTION for Summary Judgment, 189 Memorandum in Support of Motion, 191 Memorandum in Sup of their Motions for

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Summary Judgment As To All Defendants' Affirmative Defenses To The Second Amended Complaint filed by Birda Trollinger. (Foster, Howard) (Entered: 11/17/2006)

11/27/2006

203 MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motion to Compel Defendants to Comply With Their Tenth Request for Production by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (McDonough, Travis) (Entered: 11/27/2006)

11/28/2006

204 MOTION for Discovery by Birda Trollinger. (Foster, Howard) (Entered: 11/28/2006)

11/30/2006

205 MOTION for Discovery to Comply with Request for Production by Birda Trollinger. (Foster, Howard) (Entered: 11/30/2006)

11/30/2006

206 MEMORANDUM in Support of Motion re 205 MOTION for Discovery to Comply with Request for Production filed by Birda Trollinger. (Foster, Howard) (Entered: 11/30/2006)

11/30/2006

207 ORDER re 203 MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motion to Compel Defendants to Comply With Their Tenth Request for Production filed by Archibald Schaffer, III, Ahrazue Wilt, Kenneth Kimbro, Richard Bond, Karen Percival, Tim McCoy, John Tyson, Greg Lee, Tyson Foods, Inc. The Court ORDERS that Defendants shall have until Friday, December 8, 2006, to file and serve a supplemental response to the Motion.Signed by Judge William B Carter on 11/30/06. CORRECTED DOCKET ENTRY(is not to be sealed as previously docketed) (Entered: 12/04/2006)

12/08/2006

208 RESPONSE in Opposition re 184 MOTION to Compel Defendants' Supplemental Brief filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Lauerman, Colleen) (Entered: 12/08/2006)

12/11/2006

209 RESPONSE to Motion re 205 MOTION for Discovery to Comply with Request for Production of Computer Hard Drive filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 12/11/2006)

12/12/2006

210 RESPONSE in Opposition re 204 MOTION for Discovery filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A)(Lauerman, Colleen) (Entered: 12/12/2006)

12/13/2006

211 REPLY to Response to Motion re 204 MOTION for Discovery re Motion for 10 Additional Deps filed by Birda Trollinger. (Foster, Howard) (Entered: 12/13/2006)

12/21/2006

212 PROPOSED PRETRIAL ORDER Proposed Agreed Order Regarding Motion for Leave to Take Additional Depositions by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Lauerman, Colleen) (Entered: 12/21/2006)

12/26/2006

213 MOTION for Discovery to Overrule Tyson's Objections by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 12/26/2006)

12/26/2006

214 MEMORANDUM in Support of Motion re 213 MOTION for Discovery to Overrule Tyson's Objections filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 12/26/2006)

12/27/2006

215 ORDER that all attorneys who are to be actively involved in this case be present in person for the management conference to be held on 1/29/07.Signed by Judge Curtis L Collier on 12/27/06. (AWH, ) (Entered: 12/27/2006)

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12/29/2006 01/08/2007
01/16/2007 01/16/2007 01/16/2007
01/16/2007 01/16/2007
01/18/2007 01/22/2007 01/23/2007 01/23/2007 01/24/2007 01/24/2007 01/26/2007

216 NOTICE of Hearing on Motion 213 MOTION for Discovery to Overrule Tyson's Objections : Motion Hearing set for 1/12/2007 9:00 AM before Magistrate William B Carter. (PCS) (Entered: 12/29/2006)
217 AGREED ORDER to 205 MOTION for Discovery to Comply with Request for Production by Plaintiffs (11th Request) by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (McDonough, Travis) Modified on 1/16/2007 to correct text(AWH, ). (Entered: 01/08/2007)
218 AGREED ORDER to 213 MOTION for Discovery to Overrule Tyson's Objections by Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (McDonough, Travis) Modified on 1/16/2007 to correct text (AWH, ). (Entered: 01/16/2007)
219 MOTION for Discovery Sanctions and to Deem Objections by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 01/16/2007)
220 MEMORANDUM in Support of Motion re 219 MOTION for Discovery Sanctions and to Deem Objections filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 01/16/2007)
221 MOTION for Discovery to Overrule Tyson's Cut−Off Date and their Motion for Sanctions by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 01/16/2007)
222 MEMORANDUM in Support of Motion re 221 MOTION for Discovery to Overrule Tyson's Cut−Off Date and their Motion for Sanctions filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 01/16/2007)
223 AGREED ORDER that the Plaintiff's Non−Dispositive Motion to Overrule is rescheduled for January 26, 2007, at 9:00 a.m. Signed by Judge William B Carter on 1/18/07. (PCS) (Entered: 01/19/2007)
224 AGREED ORDER striking 205 Motion for Discovery. It is ORDERED that the Plaintiff's Motion to Compel is stricken without prejudice. Signed by Judge William B Carter on 1/22/07. (PCS) (Entered: 01/22/2007)
225 MOTION for More Definite Statement for More Definite Class Definition by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Lauerman, Colleen) (Entered: 01/23/2007)
226 MEMORANDUM in Support of Motion re 225 MOTION for More Definite Statement for More Definite Class Definition filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Lauerman, Colleen) (Entered: 01/23/2007)
227 MOTION to Compel by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 01/24/2007)
228 MEMORANDUM in Support of Motion re 227 MOTION to Compel filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 01/24/2007)
229 RESPONSE in Opposition re 221 MOTION for Discovery to Overrule Tyson's Cut−Off Date and their Motion for Sanctions filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A)(Lauerman,

Case 4:02-cv-00023 Doc <docnum> Filed <datefiled> Page 25 of 51

Colleen) (Entered: 01/26/2007)

01/26/2007

230 RESPONSE in Opposition re 219 MOTION for Discovery Sanctions and to Deem Objections filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A)(Lauerman, Colleen) (Entered: 01/26/2007)

01/29/2007

231 AGREED ORDER re 216 Notice of Hearing on Motion. It is hereby ORDERED that the Plaintiff's Non−Dispositive Motion to Overrule is rescheduled for January 26, 2007, at 9:00 a.m. Signed by Judge William B Carter on 1/29/07. (PCS) (Entered: 01/29/2007)

01/29/2007

232 AGREED ORDER REGARDING PLAINTIFFS' MOTION FOR LEAVE TO TAKE TEN ADDITIONAL DEPOSITIONS granting 204 Motion for Discovery. It is hereby ORDERED that Plaintiffs are permitted to take the 30(b)(6) depositions noticed on November 27, 2006.Signed by Judge William B Carter on 1/29/07. (PCS) (Entered: 01/29/2007)

01/29/2007

233 Minute Entry for proceedings held before Judge Curtis L Collier : Management Conference held on 1/29/2007. Dates set out in minutes. Order to follow. (Court Reporter Elizabeth Coffey.) (CHP, ) (Entered: 01/30/2007)

01/30/2007

234 SUPPLEMENT to 219 MOTION for Discovery Sanctions and to Deem Objections by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (McDonough, Travis) (Entered: 01/30/2007)

01/31/2007

235 ORDER striking 219 Motion to Deem Objections to Plaintiff's Eleventh Request for Production of Documents Waived and for Discovery Sanctions. Signed by Judge William B Carter on 1/31/07. (PCS) (Entered: 02/01/2007)

02/02/2007

236 MOTION for Discovery For 25 Additional Interrogatoris by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 02/02/2007)

02/02/2007

237 MEMORANDUM in Support of Motion re 236 MOTION for Discovery For 25 Additional Interrogatoris filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 02/02/2007)

02/02/2007

238 MOTION for Discovery to Conduct In Camera Review of Board of Directors' Meetings by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 02/02/2007)

02/02/2007

239 MEMORANDUM in Support of Motion re 238 MOTION for Discovery to Conduct In Camera Review of Board of Directors' Meetings filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 02/02/2007)

02/09/2007

240 RESPONSE in Opposition re 227 MOTION to Compel filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G)(Lauerman, Colleen) (Entered: 02/09/2007)

02/09/2007

241 FIRST MANAGEMENT ORDER:Jury Trial set for 3/3/2008 at 9:00 AM in Third Floor Courtroom before Honorable Curtis L Collier.Final Pretrial Conference set for 2/22/2008 at 2:00 PM before Honorable Curtis L Collier.Daubert Hearing set for 10/15/2007 at 10:00 AM before Honorable Curtis L Collier. All other dates and deadlines are set forth in FIRST MANAGEMENT ORDER.Signed by Judge Curtis L Collier on 2/9/2007. (BJL, ) (Entered: 02/09/2007)

02/09/2007

242 NOTICE of Hearing on Motion 238 and MOTION for Discovery to Conduct In Camera Review of Board of Directors' Meetings, 236 MOTION for Discovery For

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02/12/2007
02/14/2007 02/14/2007 02/14/2007 02/16/2007 02/16/2007 02/16/2007
02/16/2007
02/20/2007 02/22/2007 02/22/2007
02/23/2007
02/23/2007

25 Additional Interrogatoris : Motion Hearing set for 2/28/2007 at 09:30 AM in Magistrate Judge Courtroom − First Floor before Magistrate William B Carter. (TJG, ) (Entered: 02/09/2007)
243 RESPONSE to Motion re 225 MOTION for More Definite Statement for More Definite Class Definition filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Colvin, William) (Entered: 02/12/2007)
244 RESPONSE to Motion re 238 MOTION for Discovery to Conduct In Camera Review of Board of Directors' Meetings filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tyson Foods, Inc.. (Dickson, Roger) (Entered: 02/14/2007)
245 PRETRIAL DISCLOSURE by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc..(Dickson, Roger) (Entered: 02/14/2007)
246 MOTION to Amend/Revise First Management Order by Birda Trollinger. (Colvin, William) (Entered: 02/14/2007)
247 REPLY to Response to Motion re 227 MOTION to Compel filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 02/16/2007)
248 NOTICE by United States Department of Justice of its potential participation under 28 U.S.C. Section 517 (Anderson, M) (Entered: 02/16/2007)
249 RESPONSE in Opposition re 236 MOTION for Discovery For 25 Additional Interrogatoris filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Lauerman, Colleen) (Entered: 02/16/2007)
250 AGREED ORDER REGARDING THE PROTOCOL FOR IMAGING AND INSPECTION OF THE INDIVIDUAL DEFENDANTS' COMPUTER HARD DRIVES PURSUANT TO PLAINTIFFS' MOTION TO COMPEL THEIR TENTH REQUEST FOR PRODUCTION 184 .Signed by Judge William B Carter on 2/16/07. (Attachments: # 1 # 2) (PCS) (Entered: 02/16/2007)
251 MEMORANDUM in Support of Motion re 238 MOTION for Discovery to Conduct In Camera Review of Board of Directors' Meetings filed by Birda Trollinger. (Colvin, William) (Entered: 02/20/2007)
252 MOTION for Protective Order by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Lauerman, Colleen) (Entered: 02/22/2007)
253 MEMORANDUM in Support of Motion re 252 MOTION for Protective Order filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Lauerman, Colleen) (Entered: 02/22/2007)
254 MODIFIED NOTICE of HEARING on Motion 238 MOTION for Discovery to Conduct In Camera Review of Board of Directors' Meetings, 236 MOTION for Discovery For 25 Additional Interrogatoris : Motion Hearing IS RESCHEDULED for 3/6/2007 11:00 AM (EST) in Chattanooga before Magistrate William B Carter. (PCS) (Entered: 02/23/2007)
255 REPLY to Response to Motion re 236 MOTION for Discovery For 25 Additional Interrogatoris filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 02/23/2007)

Case 4:02-cv-00023 Doc <docnum> Filed <datefiled> Page 27 of 51

02/26/2007

256 MOTION to Continue the Date for Plaintiffs' Damage Expert Disclosure until 30 Days after Plaintiffs' Motion to Compel is Decided. by Birda Trollinger. (Colvin, William) (Entered: 02/26/2007)

02/26/2007

257 MEMORANDUM in Support of Motion re 256 MOTION to Continue the Date for Plaintiffs' Damage Expert Disclosure until 30 Days after Plaintiffs' Motion to Compel is Decided. filed by Birda Trollinger. (Colvin, William) (Entered: 02/26/2007)

03/01/2007

258 RESPONSE in Opposition re 252 MOTION for Protective Order filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 03/01/2007)

03/02/2007

259 MOTION to Dismiss by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N# 15 Exhibit O)(Lauerman, Colleen) (Entered: 03/02/2007)

03/02/2007

260 MOTION for Leave to File Excess Pages Regarding Motion to Dismiss by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Lauerman, Colleen) (Entered: 03/02/2007)

03/02/2007

261 MOTION to Stay Discovery by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Lauerman, Colleen) (Entered: 03/02/2007)

03/02/2007

262 MEMORANDUM in Support of Motion re 261 MOTION to Stay Discovery filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Lauerman, Colleen) (Entered: 03/02/2007)

03/05/2007

263 ORDER granting motion to alter the deadlines for expert disclosures 246 ; Plaintiffs' initial expert disclosure is due on 3/15/07 and defendants' initial expert disclosures are due on 4/16/07. (AWH, ) (Entered: 03/05/2007)

03/05/2007

264 ORDER granting defendants' motion to exceed the page limit. 260 (AWH, ) (Entered: 03/05/2007)

03/05/2007

265 NOTICE by United States Department of Justice re 227 MOTION to Compel Statement of Interest (Beane, Eric) (Entered: 03/05/2007)

03/06/2007

266 RESPONSE in Opposition re 227 MOTION to Compel filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 03/06/2007)

03/07/2007

267 ORDER granting 256 Motion to Continue the date for plaintiffs' disclosure of their damage expert for 30 days after an oreder is entered on plaintifs' motion to compel. (AWH, ) (Entered: 03/07/2007)

03/09/2007

268 RESPONSE in Opposition re 261 MOTION to Stay Discovery filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 03/09/2007)

03/09/2007

269 MEMORANDUM in Support of Motion re 252 MOTION for Protective Order filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (McDonough, Travis) (Entered: 03/09/2007)

03/09/2007

270 ORDER denying defendants' motion to stay of discovery 261 (AWH, ) (Entered: 03/09/2007)

03/13/2007

271 RESPONSE in Opposition re 227 MOTION to Compel Supplemental Response filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg

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Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Lauerman, Colleen) (Entered: 03/13/2007)

03/14/2007

277 TRANSCRIPT of Proceedings held on 1/29/07 for a Management Conference before Judge Honorable Curtis Collier. Court Reporter: Elizabeth Coffey. (AWH, ) Modified on 3/21/2007 to state that Transcript is located in the Clerk's office on the shelf in a supplemental file (AWH, ). (Entered: 03/21/2007)

03/15/2007

272 ORDER granting 236 Motion for Discovery. The Court is of the opinion that Plaintiffs' motion should be GRANTED as modified as below. Accordingly, it is hereby ORDERED that Plaintiffs shall be allowed to submit a total of fifty (50) interrogatories to the Defendants, which total is to include the interrogatories already pending. Accordingly, Defendants will respond to the outstanding interrogatories, and Plaintiffs shall have the right to submit additional interrogatories, up to a total of fifty (50). Signed by Judge William B Carter on 3/15/07. (PCS) (Entered: 03/15/2007)

03/15/2007

273 MOTION for Extension of Time to Complete Discovery re Computer Imaging Protocol by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 03/15/2007)

03/16/2007

274 RESPONSE to Motion re 273 MOTION for Extension of Time to Complete Discovery re Computer Imaging Protocol filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Lauerman, Colleen) (Entered: 03/16/2007)

03/16/2007

275 MOTION for Discovery to Compel I−9 Forms by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 03/16/2007)

03/16/2007

276 MEMORANDUM in Support of Motion re 275 MOTION for Discovery to Compel I−9 Forms filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 03/16/2007)

03/22/2007

278 MOTION for Hearing re 259 MOTION to Dismiss by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (McDonough, Travis) (Entered: 03/22/2007)

03/28/2007

279 NOTICE of Hearing on Motion 275 MOTION for Discovery to Compel I−9 Forms : Motion Hearing set for 4/5/2007 9:00 AM before Magistrate William B Carter. (PCS) (Entered: 03/28/2007)

03/28/2007

280 MEMORANDUM AND ORDER re 238 MOTION for Discovery to Conduct In Camera Review of Board of Directors' Meetings filed by Regina Lee, Idoynia McCoy, Doris Jewell, Robert Martinez, Tabetha Eddings, Virginia Bravo, Birda Trollinger, Alexander Howlett, Kelly Kessinger, Patricia Mims, Lori Windham. Signed by Judge William B Carter on 3/28/07. (PCS) (Entered: 03/28/2007)

03/28/2007

281 ORDER granting 273 Motion for Extension of Time to Complete Discovery. Defendants do not oppose the ORDER except that defendants ask for a twenty−one (21) day extension as opposed to a fourteen (14) day extension. For good cause shown, the February 16, 2007 Order is AMENDED as follows: 1)All pending and future deadlines are extended by twenty−one (21) days; 2)Oklahoma Digital Forensic Professionals may produce electronic copies of any "hits" to Tyson in addition to the mandatory production of paper copies; 3)The parties may jointly modify the search terms as necessary to effectively execute the Imaging Protocol. Signed by Judge William B Carter on 3/28/07. (PCS) (Entered: 03/28/2007)

03/30/2007

282 RESPONSE in Opposition re 259 MOTION to Dismiss filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 03/30/2007)

03/30/2007

283 RESPONSE to Motion re 275 MOTION for Discovery to Compel I−9 Forms filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee,

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04/04/2007 04/05/2007 04/05/2007 04/05/2007 04/06/2007 04/10/2007 04/10/2007 04/23/2007 04/23/2007 04/23/2007 04/25/2007 04/25/2007 04/26/2007

Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Lauerman, Colleen) (Entered: 03/30/2007)
284 NOTICE of Hearing on Motion to compel and the motion to dismiss 227 259 : Motion Hearing set for 4/24/2007 02:00 PM in Third Floor Courtroom before Honorable Curtis L Collier. (AWH, ) (Entered: 04/04/2007)
285 MOTION for Hearing re 275 MOTION for Discovery to Compel I−9 Forms, 259 MOTION to Dismiss by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (McDonough, Travis)** Attorney called and will refile motion today due to incorrect reference contained in docket entry. (Entered: 04/05/2007)
286 MOTION for Hearing re 227 MOTION to Compel, 259 MOTION to Dismiss by Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.(McDonough, Travis) Modified on 4/10/2007 to disable incorrect document. Attorney refiled document (see cf# 87 ). (BJL, ) (Entered: 04/05/2007)
287 MOTION for Hearing re 227 MOTION to Compel, 259 MOTION to Dismiss by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (McDonough, Travis) (Entered: 04/05/2007)
288 REPLY to Response to Motion re 259 MOTION to Dismiss filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A)(Lauerman, Colleen) (Entered: 04/06/2007)
289 MEMORANDUM with Order to follow. Signed by Judge Curtis L Collier on 4/10/2007. (BJL ) (Entered: 04/10/2007)
290 ORDER granting 186 Motion for Summary Judgment; granting 188 Motion for Summary Judgment; granting in part and denying in part 190 Motion for Summary Judgment. (Reasons stated in the accompanying memorandum−see cf# 289 ). Signed by Judge Curtis L Collier on 4/10/2007. (BJL ) (Entered: 04/10/2007)
291 MOTION for Discovery in Camera Review by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 04/23/2007)
292 MEMORANDUM in Support of Motion re 291 MOTION for Discovery in Camera Review filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 04/23/2007)
293 MEMORANDUM in Support of Motion re 291 MOTION for Discovery in Camera Review Exhibts to Memorandum filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 04/23/2007)
294 MOTION for Discovery TO EXTEND THE TIME FOR SEEKING IMAGING by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 04/25/2007)
295 MEMORANDUM in Support of Motion re 294 MOTION for Discovery TO EXTEND THE TIME FOR SEEKING IMAGING BRIEF IN SUPPORT filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 04/25/2007)
296 NOTICE of Hearing on Motion 291 MOTION for Discovery in Camera Review : Motion Hearing set for 5/4/2007 9:00 AM before Magistrate William B Carter. (PCS) (Entered: 04/26/2007)

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04/26/2007 04/30/2007 05/03/2007
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05/18/2007
05/21/2007
05/29/2007 05/29/2007

297 NOTICE of Hearing on Motion 294 MOTION for Discovery TO EXTEND THE TIME FOR SEEKING IMAGING : Motion Hearing set for 5/4/2007 9:00 AM before Magistrate William B Carter. (PCS) (Entered: 04/26/2007)
298 Minute Entry for proceedings held before Judge Curtis L Collier : Motion Hearing held on 4/30/2007 re 227 MOTION to Compel filed by plaintiffs and 259 MOTION to Dismiss filed by defendants. (Court Reporter Elizabeth Coffey.) (CHP, ) (Entered: 05/01/2007)
299 RESPONSE to Motion re 291 MOTION for Discovery in Camera Review filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Lauerman, Colleen) (Entered: 05/03/2007)
300 ORDER granting as set forth herein 291 Motion for Discovery; granting 294 Motion for Discovery. Signed by Judge William B Carter on 5/4/07. (PCS) (Entered: 05/04/2007)
301 TRANSCRIPT of motions hearing held on 4/30/07 before Honorable Judge Curtis Collier. Court Reporter: Elizabeth Coffey. (AWH, ) (Entered: 05/11/2007)
302 ORDER denying 221 Motion for Sanctions.Signed by Judge William B Carter on 5/14/07. (PCS) (Entered: 05/14/2007)
303 ORDER granting 252 the deft's motion for Protective Order. Signed by Judge William B Carter on 05/16/07. (TJG, ) (Entered: 05/16/2007)
304 MOTION for Leave to Appear Pro Hac Vice William V. Johnson ( Filing fee $ 60 receipt number 743347.) by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 05/16/2007)
305 ORDER granting 304 Motion for Leave to Appear Pro Hac Vice as to Atty William V. Johnson. Signed by Judge William B Carter on 5/17/07. (PCS) (Entered: 05/17/2007)
306 LOCAL RULE 7.1(d) SUPPLEMENTAL BRIEF to 259 MOTION to Dismiss by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 05/18/2007)
307 LOCAL RULE 7.1(d) SUPPLEMENTAL BRIEF to 259 MOTION to Dismiss by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 05/18/2007)
308 RESPONSE TO LOCAL RULE 7.1(d) SUPPLEMENTAL BRIEF to 306 Local Rule 7.1(d) Supplemental Brief, Local Rule 7.1(d) Supplemental Brief by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc. filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A)(Lauerman, Colleen) (Entered: 05/21/2007)
309 MEMORANDUM with ORDER to follow; Signed by Judge Curtis L Collier on 5/29/2007. (BJL ) (Entered: 05/29/2007)
310 ORDER denying 259 Motion to Dismiss. For the reasons stated in the accompanying 309 memorandum, the COURT DENIES Defandants' motion to dismiss. Signed by Judge Curtis L Collier on 5/29/2007. (BJL ) (Entered:

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05/30/2007 05/31/2007 06/18/2007
06/20/2007 06/22/2007 06/25/2007 06/25/2007 06/28/2007 06/28/2007 07/02/2007 07/06/2007 07/06/2007 07/06/2007
07/13/2007

05/29/2007)
311 STATUS REPORT of Defendants on the Forensic Protocol by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (McDonough, Travis) (Entered: 05/30/2007)
312 MOTION for Sanctions by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Attachments: # 1 Exhibit A−F)(Foster, Howard) (Entered: 05/31/2007)
313 RESPONSE in Opposition re 312 MOTION for Sanctions filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6)(Lauerman, Colleen) (Entered: 06/18/2007)
314 NOTICE of Hearing on Motion 312 MOTION for Sanctions : Motion Hearing set for 7/13/2007 9:00 AM before Magistrate William B Carter. (PCS) (Entered: 06/20/2007)
315 REPLY to Response to Motion re 312 MOTION for Sanctions filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 06/22/2007)
316 MOTION for Summary Judgment −− Partial by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 06/25/2007)
317 MEMORANDUM in Support of Motion re 316 MOTION for Summary Judgment −− Partial filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 06/25/2007)
318 MOTION for Leave to Appear Pro Hac Vice for Julie Koller. (Attachments: # 1 Certificate of Good Standing# 2 Receipt)(SAC, ) (Entered: 06/29/2007)
319 MOTION for Leave to Appear Pro Hac Vice for Matthew Warren. (Attachments: # 1 Certificate of Good Standing# 2 Receipt)(SAC, ) (Entered: 06/29/2007)
320 ORDER granting 318 Motion for Leave to Appear Pro Hac Vice as to Atty Julie Gurley Koller; granting 319 Motion for Leave to Appear Pro Hac Vice as to Atty Matthew J. Warren. Signed by Judge William B Carter on 7/2/07. (PCS) (Entered: 07/02/2007)
321 STATUS REPORT JOINT STATEMENT RE MEDIATION by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 07/06/2007)
322 PRETRIAL MEMORANDUM by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 07/06/2007)
323 ORDER concerns discovery obtained from the individual defendant's personal computers. See the Order of May 5, 2007. Defendants shall provide the required information to the Court by filing it in the Court record and to the plaintiffs on or before Friday, July 13, 2007. Plaintiffs shall have up to and including Monday, July 23, 2007, to respond. Signed by Judge William B Carter on 7/6/07. (PCS) (Entered: 07/09/2007)
324 RESPONSE in Opposition re 316 MOTION for Summary Judgment −− Partial filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments:

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07/13/2007 07/13/2007
07/13/2007 07/16/2007 07/19/2007
07/20/2007 07/20/2007 07/20/2007
07/23/2007 07/23/2007 07/24/2007 07/25/2007
07/27/2007

# 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Lauerman, Colleen) (Entered: 07/13/2007)
325 MOTION for Discovery Leave to Take Additional Deps and Issue Five Additional Interrogatories by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 07/13/2007)
326 MEMORANDUM in Support of Motion re 325 MOTION for Discovery Leave to Take Additional Deps and Issue Five Additional Interrogatories filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 07/13/2007)
327 SUPPLEMENT Report to Court Pursuant to July 6, 2007 Order by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Lauerman, Colleen) (Entered: 07/13/2007)
328 ORDER denying 312 Motion for Sanctions. Signed by Judge William B Carter on 7/16/07. (PCS) (Entered: 07/16/2007)
329 MOTION for Extension of Time to File Response/Reply as to 324 Response in Opposition to Motion, 316 MOTION for Summary Judgment −− Partial by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 07/19/2007)
330 ORDER granting motion for an extension of time to file a reply to defendants response to plaintiffs' motion for summary judgment. 329 Responses due by 8/3/2007. Signed by Judge Curtis L Collier on 7/20/07. (AWH, ) (Entered: 07/20/2007)
331 SUPPLEMENT Declaration Requested by Court at July 13, 2007 Hearing by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Lauerman, Colleen) (Entered: 07/20/2007)
332 RESPONSE to Motion re 325 MOTION for Discovery Leave to Take Additional Deps and Issue Five Additional Interrogatories filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A)(Lauerman, Colleen) (Entered: 07/20/2007)
333 AGREED ORDER granting 325 Motion for Discovery. Signed by Judge William B Carter on 7/23/07. (PCS) (Entered: 07/23/2007)
334 MOTION to Continue Daubert Hearing and Extend Time for Defendants' Expert Disclosures by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A)(McDonough, Travis) (Entered: 07/23/2007)
335 MOTION for Leave to File REBUTTAL EXPERT REPORT ON DAMAGES by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 07/24/2007)
336 REPLY to Response to Motion re 316 MOTION for Summary Judgment −− Partial filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Attachments: # 1 Exhibit Exhibits A − H)(Foster, Howard) (Entered: 07/25/2007)
337 MOTION to Compel Tyson to Distribute Class Notice by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 07/27/2007)

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07/27/2007

338 MEMORANDUM in Support of Motion re 337 MOTION to Compel Tyson to Distribute Class Notice filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 07/27/2007)

07/30/2007

339 MOTION to Compel USCIS to Comply with Subpoena by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 07/30/2007)

07/30/2007

340 MEMORANDUM in Support of Motion re 339 MOTION to Compel USCIS to Comply with Subpoena filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 07/30/2007)

07/30/2007

341 NOTICE of Hearing on Motion 335 MOTION for Leave to File REBUTTAL EXPERT REPORT ON DAMAGES : Motion Hearing set for 8/10/2007 09:00 AM in Magistrate Judge Courtroom − First Floor before Magistrate William B Carter. (Attachments: # 1 Exhibit A−copy of motion)(AWH, ) (Entered: 07/30/2007)

07/30/2007

342 MOTION to Compel John Tyson to Answer Interrogatory One by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 07/30/2007)

07/30/2007

343 MEMORANDUM in Support of Motion re 342 MOTION to Compel John Tyson to Answer Interrogatory One filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 07/30/2007)

07/31/2007

344 RESPONSE in Opposition re 225 MOTION for More Definite Statement for More Definite Class Definition filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 07/31/2007)

07/31/2007

345 NOTICE of Hearing on Motion to compel 342 : Motion Hearing set for 8/10/2007 09:00 AM in Magistrate Judge Courtroom − First Floor before Magistrate William B Carter. (Attachments: # 1 Exhibit A)(AWH, ) (Entered: 07/31/2007)

07/31/2007

346 STATUS REPORT −− JOINT by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell, Tyson Foods, Inc.. (Foster, Howard) (Entered: 07/31/2007)

08/06/2007

347 MOTION for Leave to File Surreply to Plaintiffs' Motion for Partial Summary Judgment by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Lauerman, Colleen) (Entered: 08/06/2007)

08/06/2007

348 RESPONSE in Opposition re 316 MOTION for Summary Judgment −− Partial Surreply filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Lauerman, Colleen) (Entered: 08/06/2007)

08/06/2007

349 RESPONSE in Opposition re 335 MOTION for Leave to File REBUTTAL EXPERT REPORT ON DAMAGES filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Lauerman, Colleen) (Entered: 08/06/2007)

08/08/2007

350 MOTION for Discovery to Approve Class Notice by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell.

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(Foster, Howard) (Entered: 08/08/2007)

08/08/2007

351 RESPONSE in Opposition re 347 MOTION for Leave to File Surreply to Plaintiffs' Motion for Partial Summary Judgment filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 08/08/2007)

08/09/2007

352 RESPONSE in Opposition re 342 MOTION to Compel John Tyson to Answer Interrogatory One filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Lauerman, Colleen) (Entered: 08/09/2007)

08/10/2007

353 REPLY to Response to Motion re 225 MOTION for More Definite Statement for More Definite Class Definition filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A)(Lauerman, Colleen) (Entered: 08/10/2007)

08/10/2007

354 NOTICE by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell re 342 MOTION to Compel John Tyson to Answer Interrogatory One (Foster, Howard) (Entered: 08/10/2007)

08/10/2007

355 NOTICE by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell re 339 MOTION to Compel USCIS to Comply with Subpoena (Foster, Howard) (Entered: 08/10/2007)

08/10/2007

356 NOTICE by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell re 335 MOTION for Leave to File REBUTTAL EXPERT REPORT ON DAMAGES (Foster, Howard) (Entered: 08/10/2007)

08/10/2007

357 ORDER denying as moot 275 Motion for Discovery as the issues raised by motion have been resolved. Signed by Judge William B Carter on 8/10/2007. (BJL ) (Entered: 08/13/2007)

08/10/2007

358 Order DENYING 342 MOTION to Compel. Hearing on plaintiff's motion to compel set for 8/23/2007 02:00 PM in chambers, Room 102, U.S. Courthouse, 900 Georgia Avenue, Chattanooga, Tennessee before Magistrate William B Carter.Signed by Judge William B Carter on 8/10/2007. (BJL ) (Entered: 08/13/2007)

08/13/2007

Copies of 357 and 358 Orders along with the NEFs were sent vial U.S. Mail to Attorneys Thomas C. Green, Mark D. Hopson, and William V. Johnson. (BJL ) (Entered: 08/13/2007)

08/14/2007

359 MOTION to Compel John Tyson to Answer Interrogatory No. 1 by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 08/14/2007)

08/14/2007

360 MEMORANDUM in Support of Motion re 359 MOTION to Compel John Tyson to Answer Interrogatory No. 1 filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 08/14/2007)

08/15/2007

361 ORDER granting 334 Motion to Continue. It is further ORDERED (1)the Daubert hearing originally scheduled for Octobber 15−17, 2007 is RESCHEDULED for November 6−8, 2007 and (2)the defendants' expert disclosures deadline is EXTENDED from August 21, 2007 to September 11, 2007.Signed by Judge William B Carter on 8/15/07. (PCS) (Entered: 08/15/2007)

08/15/2007

362 RESPONSE in Opposition re 337 MOTION to Compel Tyson to Distribute Class Notice filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth

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08/15/2007 08/16/2007 08/16/2007
08/17/2007 08/17/2007 08/17/2007 08/20/2007 08/27/2007 08/28/2007
08/31/2007 09/07/2007

Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Lauerman, Colleen) (Entered: 08/15/2007)
363 TRANSCRIPT of Motion Hearings held on August 10, 2007 before Judge William B. Carter. Court Reporter: Elizabeth B. Coffey. (BJL ) (Entered: 08/16/2007)
364 RESPONSE in Opposition re 359 MOTION to Compel John Tyson to Answer Interrogatory No. 1 filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Lauerman, Colleen) (Entered: 08/16/2007)
365 NOTICE: Hearing on Plaintiffs' non−dispositive 359 Motion to Compel Defendant John Tyson to Answer Interrogatory One is set for, Thursday, 8/23/2007 02:00 PM in Courtroom 1A before Magistrate William B Carter. (BJL )* Notices have been mailed to Attorneys Thomas C. Green, Mark D. Hopson, and William V. Johnson along with copies of the letter and order ( citing local rule 5.2) which states that this Court requires Attorneys to be registered with CM/ECF. (Entered: 08/16/2007)
366 MOTION to Compel Tyson to Distibute Class Notice and to Impose Fee Shifting Sanctions by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 08/17/2007)
367 MEMORANDUM in Support of Motion re 366 MOTION to Compel Tyson to Distibute Class Notice and to Impose Fee Shifting Sanctions filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 08/17/2007)
368 MEMORANDUM AND ORDER. This memorandum and order concerns five documents which defendants submitted for an in camera review by the undersigned Magistrate Judge to determine whether the documents are protected by the attorney−client privilege or the work product doctrine.Signed by Judge William B Carter on 8/17/07. (PCS) (Entered: 08/20/2007)
369 REPLY to Response to Motion re 359 MOTION to Compel John Tyson to Answer Interrogatory No. 1 filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 08/20/2007)
370 RESPONSE in Opposition re 350 MOTION for Discovery to Approve Class Notice filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit 1: Defendants' Proposed Class Notice)(Warren, Matthew) (Entered: 08/27/2007)
371 ORDER granting in part and denying in part 359 Motion to Compel defendant John Tyson to answer Interrogatory One. Mr. Tyson shall answer Interrogatory One, but the cut−off date for information to be provided pursuant to Interrogatory One remains October 10, 2006. Further, as was ordered at the August 23, 2007 hearing, Mr. Tyson shall provide the plaintiffs with his answer to Interrogatory One on or before September 7, 2007. Signed by Judge William B Carter on 8/28/07. (PCS) (Entered: 08/28/2007)
372 REPLY to Response to Motion re 350 MOTION for Discovery to Approve Class Notice filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 08/31/2007)
373 MOTION for Discovery Extend Deadline for Depositions by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) Modified on 9/11/2007 (DISABLED DOCUMENT DUE TO DUPLICATE FILING−SEE COURT FILE #374) (Entered: 09/07/2007)

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09/07/2007 09/11/2007 09/11/2007 09/12/2007 09/13/2007 09/24/2007 09/24/2007 09/25/2007 09/26/2007
09/26/2007
09/26/2007 09/27/2007 09/28/2007

374 MOTION for Discovery Extend Deadline for Depositions by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 09/07/2007)
375 NOTICE of Hearing on Motion 374 MOTION for Discovery Extend Deadline for Depositions : Motion Hearing set for 9/28/2007 9:00 AM before Magistrate William B Carter. (PCS) (Entered: 09/11/2007)
376 MOTION to Compel Answers to Requests for Admission or to Deem Requests Admitted by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Warren, Matthew) (Entered: 09/11/2007)
377 NOTICE of Hearing on Motion 376 MOTION to Compel Answers to Requests for Admission or to Deem Requests Admitted : Motion Hearing set for 9/28/2007 9:00 AM before Magistrate William B Carter. (PCS) (Entered: 09/12/2007)
378 AGREED ORDER TO EXTEND TIME FOR DEFENDANTS' EXPERT DISCLOSURES granting 374 Motion for Discovery. It is ORDERED that the deadline for Defendants' expert disclosures is EXTENDED from September 11, 2007 to September 20, 2007. Signed by Judge William B Carter on 9/13/07. (PCS) (Entered: 09/13/2007)
379 MOTION for Scheduling Conference by Birda Trollinger. (Colvin, William) (Entered: 09/24/2007)
380 MEMORANDUM in Support of Motion re 379 MOTION for Scheduling Conference filed by Birda Trollinger. (Colvin, William) (Entered: 09/24/2007)
381 RESPONSE in Opposition re 376 MOTION to Compel Answers to Requests for Admission or to Deem Requests Admitted filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings. (Foster, Howard) (Entered: 09/25/2007)
382 ORDER; The parties are to file Daubert briefs by 10/15/07; If either party desires to respond to the opposing side's brief, response briefs are due by 10/26/07. The Court hereby puts the parties ON NOTICE, any Daubert challenges which are not asserted in advance of or during the Daubert hearing will be WAIVED and denied if raised during the trial of this case. Signed by Judge Curtis L Collier on 9/26/07. (AWH, ) (Entered: 09/26/2007)
383 MOTION to Compel Plaintiffs to Answer Completely Their Second Set of Interrogatories to Plaintiffs, by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5, Part 1# 6 Exhibit 5, Part 2# 7 Exhibit 5, Part 3# 8 Exhibit 6# 9 Exhibit 7# 10 Exhibit 8# 11 Exhibit 9# 12 Exhibit 10)(McDonough, Travis) (Entered: 09/26/2007)
384 MEMORANDUM in Support of Motion re 383 MOTION to Compel Plaintiffs to Answer Completely Their Second Set of Interrogatories to Plaintiffs, filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (McDonough, Travis) (Entered: 09/26/2007)
385 NOTICE of Hearing on Motion 383 MOTION to Compel Plaintiffs to Answer Completely Their Second Set of Interrogatories to Plaintiffs, : Motion Hearing set for 10/12/2007 9:00 AM before Magistrate William B Carter. (PCS) (Entered: 09/27/2007)
386 MOTION for Extension of Time to File Dispositive Motions, by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (McDonough, Travis) (Entered: 09/28/2007)

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09/28/2007 09/28/2007 09/28/2007 09/28/2007 10/02/2007 10/02/2007 10/02/2007 10/05/2007 10/08/2007 10/08/2007 10/09/2007 10/09/2007

387 MOTION for Discovery Compel Defendants to Answer Int 1 from 14th Set of Interrogatories by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 09/28/2007)
388 MEMORANDUM in Support of Motion re 387 MOTION for Discovery Compel Defendants to Answer Int 1 from 14th Set of Interrogatories filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 09/28/2007)
389 MOTION to Compel Defendants to Produce Documents from Req 5 from Twenty−First Request for Production by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 09/28/2007)
390 MEMORANDUM in Support of Motion re 389 MOTION to Compel Defendants to Produce Documents from Req 5 from Twenty−First Request for Production filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 09/28/2007)
391 ORDER re 376 MOTION to Compel Answers to Requests for Admission or to Deem Requests Admitted filed by Archibald Schaffer, III, Ahrazue Wilt, Kenneth Kimbro, Richard Bond, Karen Percival, Tim McCoy, John Tyson, Greg Lee, Tyson Foods, Inc. Signed by Judge William B Carter on 10/2/07. (PCS) (Entered: 10/02/2007)
392 ORDER granting 386 Motion for Extension of Time to File Dispositive Motions. The deadline for all dispositive motions is extended from 11/2/07 to 11/16/07. Signed by Judge Curtis L Collier on 10/2/07. (AWH, ) (Entered: 10/02/2007)
393 AGREED ORDER re 374 MOTION for Discovery Extend Deadline for Depositions filed by Regina Lee, Idoynia McCoy, Doris Jewell, Robert Martinez, Tabetha Eddings, Virginia Bravo, Birda Trollinger, Alexander Howlett, Kelly Kessinger, Patricia Mims, Lori Windham. Signed by Judge William B Carter on 10/2/07. (PCS) (Entered: 10/02/2007)
394 RESPONSE in Opposition re 383 MOTION to Compel Plaintiffs to Answer Completely Their Second Set of Interrogatories to Plaintiffs, filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 10/05/2007)
395 MOTION for Extension of Time to Complete Discovery by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 10/08/2007)
396 MEMORANDUM in Support of Motion re 395 MOTION for Extension of Time to Complete Discovery filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 10/08/2007)
397 MOTION for Sanctions by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 10/09/2007)
398 MEMORANDUM in Support of Motion re 397 MOTION for Sanctions filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Attachments: # 1 Exhibit Exhibit A)(Foster, Howard) (Entered: 10/09/2007)

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10/12/2007 10/15/2007 10/15/2007 10/15/2007 10/15/2007
10/15/2007 10/15/2007
10/16/2007 10/16/2007 10/17/2007 10/17/2007

399 RESPONSE to Motion re 387 MOTION for Discovery Compel Defendants to Answer Int 1 from 14th Set of Interrogatories filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Lauerman, Colleen) (Entered: 10/12/2007)
400 RESPONSE to Motion re 395 MOTION for Extension of Time to Complete Discovery filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Lauerman, Colleen) (Entered: 10/15/2007)
401 NOTICE by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Tim McCoy, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell re 382 Order, No Daubert Challenge (Foster, Howard) (Entered: 10/15/2007)
402 MOTION in Limine to Exclude the Legal Opinion of Eric Posner by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Warren, Matthew) Modified on 10/19/2007 (AWH, ). (document filed incorrectly, disabled, see cf # 411) (Entered: 10/15/2007)
403 MOTION in Limine to Exclude the Testimony of George Borjas by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N# 15 Exhibit O)(Warren, Matthew) Modified on 10/19/2007 (AWH, ).(DOCUMENT FILED INCORRECTLY, DISABLED, SEE CF # 412) (Entered: 10/15/2007)
404 MOTION for Leave to File Excess Pages for Memorandum in Law in Support of Defendants' Motion to Exclude the Testimony of Michael Cutler by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Warren, Matthew) (Entered: 10/15/2007)
405 MOTION in Limine to Exclude the Testimony of Michael Cutler by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12)(Warren, Matthew) Modified on 10/19/2007 (AWH, ).(DOCUMENT FILED INCORRECTLY, DISABLED, SEE CF # 413) (Entered: 10/15/2007)
406 NOTICE by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell re 387 MOTION for Discovery Compel Defendants to Answer Int 1 from 14th Set of Interrogatories Withdraw Motion (Foster, Howard) (Entered: 10/16/2007)
407 NOTICE by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell re 389 MOTION to Compel Defendants to Produce Documents from Req 5 from Twenty−First Request for Production Withdraw Motion (Foster, Howard) Modified on 10/17/2007 (document incorrectly filed, disabled)(AWH, ). (Entered: 10/16/2007)
408 NOTICE by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell re 389 MOTION to Compel Defendants to Produce Documents from Req 5 from Twenty−First Request for Production Withdraw Motion (Foster, Howard) (Entered: 10/17/2007)
409 RESPONSE in Opposition re 397 MOTION for Sanctions filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A)(Lauerman, Colleen) (Entered: 10/17/2007)

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10/18/2007 10/18/2007
10/18/2007
10/18/2007
10/23/2007 10/24/2007 10/24/2007 10/24/2007 10/24/2007 10/25/2007 10/25/2007 10/25/2007 10/26/2007 10/26/2007

410 ORDER granting defendants' motion for leave to file excess pages. 404 . Signed by Judge Curtis L Collier on 10/18/07. (AWH, ) (Entered: 10/18/2007)
411 MOTION in Limine to Exclude the Legal Opinion of Eric Posner by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Warren, Matthew) Modified on 10/19/2007 (AWH, ).(REPLACES CF # 402, FILED STAMPED DATE OF 10/15/07 IS PROTECTED) (Entered: 10/18/2007)
412 MOTION in Limine to Exclude the Testimony of George Borjas by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N# 15 Exhibit O)(Warren, Matthew) Modified on 10/19/2007 (AWH, ).(DOUCMENT REPLACES CF # 403, FILED STAMPED DATE OF 10/15/07 IS PROTECTED) (Entered: 10/18/2007)
413 MOTION in Limine to Exclude the Testimony of Michael Cutler by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12)(Warren, Matthew) Modified on 10/19/2007 (AWH, ).(REPLACES CF # 405, FILED STAMPED DATE OF 10/15/07 IS PROTECTED) (Entered: 10/18/2007)
414 ORDER granting in part and denying in part 397 Motion for Sanctions. Signed by Judge William B Carter on 10/23/07. (PCS) (Entered: 10/23/2007)
415 ORDER granting 383 Motion to Compel. Signed by Judge William B Carter on 10/24/07. (PCS) (Entered: 10/24/2007)
416 MOTION to Amend/Revise Daubert Hearing Dates by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Dickson, Roger) (Entered: 10/24/2007)
417 MOTION to Compel Tyson to Answer 16th Rogs by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 10/24/2007)
420 ORDER granting 395 Motion for Extension of Time to Complete Discovery Signed by Judge William B Carter on 10/24/07. (PCS) (Entered: 10/25/2007)
418 AGREED ORDER MODIFYING DAUBERT HEARING DATES; Daubert Hearing is rescheduled for 11/7 and 11/8/07. The Court also ORDERS that it will consider defendants' motion to Exclude the Legal Opinion of Eric Posner without oral argument during the Daubert hearing.Signed by Judge Curtis L Collier on 10/25/07. (AWH, ) (Entered: 10/25/2007)
419 MOTION for Sanctions by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Lauerman, Colleen) (Entered: 10/25/2007)
421 MOTION to Continue Daubert Hearing and Trial Date by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Attachments: # 1 Exhibit 1−5)(Foster, Howard) (Entered: 10/25/2007)
422 MOTION to Vacate Daubert Briefing Schedule by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 10/26/2007)
423 NOTICE of Hearing on Motion to Compel 417 ; Motion Hearing set for 11/8/2007 09:00 AM before Magistrate William B Carter. (AWH, ) (Entered: 10/26/2007)

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10/26/2007

424 RESPONSE in Opposition re 421 MOTION to Continue Daubert Hearing and Trial Date filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Lauerman, Colleen) (Entered: 10/26/2007)

10/26/2007

425 MOTION for Protective Order by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A)(Lauerman, Colleen) (Entered: 10/26/2007)

10/26/2007

426 RESPONSE in Opposition re 422 MOTION to Vacate Daubert Briefing Schedule filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Lauerman, Colleen) (Entered: 10/26/2007)

10/26/2007

427 ORDER re 420 Order on Motion for Extension of Time to Complete Discovery. The incorrect order (Doc. No. 420) entered on October 24, 2007, is hereby VACATED. An appropriate order for the Plaintiffs' motin (Doc. No. 395) shall be entered. Signed by Judge William B Carter on 10/26/07. (PCS) (Entered: 10/26/2007)

10/26/2007

428 ORDER re 400 Response to Motion filed by Archibald Schaffer, III, Ahrazue Wilt, Kenneth Kimbro, Richard Bond, Karen Percival, Tim McCoy, John Tyson, Greg Lee, Tyson Foods, Inc., 396 Memorandum in Support of Motion, filed by Regina Lee, Idoynia McCoy, Doris Jewell, Robert Martinez, Tabetha Eddings, Virginia Bravo, Birda Trollinger, Alexander Howlett, Kelly Kessinger, Patricia Mims, Lori Windham, 395 MOTION for Extension of Time to Complete Discovery filed by Regina Lee, Idoynia McCoy, Doris Jewell, Robert Martinez, Tabetha Eddings, Virginia Bravo, Birda Trollinger, Alexander Howlett, Kelly Kessinger, Patricia Mims, Lori Windham Signed by Judge William B Carter on 10/26/07. (PCS) (Entered: 10/26/2007)

10/29/2007

429 REPLY to Response to Motion re 422 MOTION to Vacate Daubert Briefing Schedule filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 10/29/2007)

10/29/2007

430 NOTICE of Hearing on Motion 425 MOTION for Protective Order : Motion Hearing set for 11/8/2007 9:00 AM before Magistrate William B Carter. (PCS) (Entered: 10/29/2007)

10/30/2007

431 MEMORANDUM w/order to follow. Signed by Judge Curtis L Collier on 10/30/07. (AWH, ) (Entered: 10/30/2007)

10/30/2007

432 ORDER denying plaintiff's motions to continue the Daubert hearing and trial and denying motion to vacate the Daubert briefing schedule 421 422 . Signed by Judge Curtis L Collier on 10/30/07. (AWH, ) (Entered: 10/30/2007)

10/31/2007

433 RESPONSE in Opposition re 425 MOTION for Protective Order filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 10/31/2007)

11/01/2007

434 RESPONSE in Opposition re 412 MOTION in Limine to Exclude the Testimony of George Borjas filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Foster, Howard) (Entered: 11/01/2007)

11/01/2007

435 RESPONSE in Opposition re 413 MOTION in Limine to Exclude the Testimony of Michael Cutler filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 11/01/2007)

11/01/2007

436 MOTION to Strike to Preclude Untimely Supplemental Material to Correct Expert Methodology by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc..

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11/02/2007 11/02/2007 11/05/2007 11/05/2007 11/07/2007 11/07/2007 11/08/2007 11/13/2007 11/13/2007 11/13/2007 11/14/2007 11/14/2007 11/16/2007

(Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Lauerman, Colleen) (Entered: 11/01/2007)
437 RESPONSE in Opposition re 411 MOTION in Limine to Exclude the Legal Opinion of Eric Posner filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 11/02/2007)
438 RESPONSE in Opposition re 436 MOTION to Strike to Preclude Untimely Supplemental Material to Correct Expert Methodology filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 11/02/2007)
439 REPLY to Response to Motion re 436 MOTION to Strike to Preclude Untimely Supplemental Material to Correct Expert Methodology filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Warren, Matthew) (Entered: 11/05/2007)
440 MOTION to Quash by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Warren, Matthew) (Entered: 11/05/2007)
441 RESPONSE in Opposition re 419 MOTION for Sanctions filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 11/07/2007)
442 Minute Entry for proceedings held before Judge Curtis L Collier : DAUBERT HEARING held on 11/7/2007. (Court Reporter Elizabeth Coffey.) (CHP, ) (Entered: 11/09/2007)
443 Minute Entry for proceedings held before Judge Curtis L Collier : DAUBERT HEARING held on 11/8/2007. (Court Reporter Elizabeth Coffey.) (CHP, ) (Entered: 11/09/2007)
444 RESPONSE in Opposition re 440 MOTION to Quash filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 11/13/2007)
445 RESPONSE in Opposition re 417 MOTION to Compel Tyson to Answer 16th Rogs filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Warren, Matthew) (Entered: 11/13/2007)
446 REPLY to Response to Motion re 419 MOTION for Sanctions filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Warren, Matthew) (Entered: 11/13/2007)
447 TRANSCRIPT of Proceedings (Daubert Hearing Excerpt of Proceedings Direct Examination of Michael W. Cutler) held on 11/7/07 before Honorable Judge Curtis L. Collier. Court Reporter: Elizabeth Coffey. (Located on the shelf in the Clerk's Office ) (AWH, ) (Entered: 11/16/2007)
448 TRANSCRIPT of Proceedings (Daubert Hearing Excerpt of Proceedings Testimony of Comechalla Youngblood)held on 11/7/07 before Judge Honorable Curtis L. Collier. Court Reporter: Elizabeth Coffey. (Located on the shelf in the Clerk's Office) (AWH, ) Modified on 11/16/2007 (AWH, ). (Entered: 11/16/2007)
449 MOTION for Summary Judgment by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Warren, Matthew) (Entered: 11/16/2007)

Case 4:02-cv-00023 Doc <docnum> Filed <datefiled> Page 42 of 51

11/16/2007

450 MEMORANDUM in Support of Motion re 449 MOTION for Summary Judgment filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Warren, Matthew) (Entered: 11/16/2007)

11/16/2007

451 AFFIDAVIT in Support re 449 MOTION for Summary Judgment filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A (Report of George Borjas)# 2 Exhibit B (Declaration of Michael Cutler)# 3 Exhibit C (Borjas Deposition Excerpts)# 4 Exhibit D (Carbajal Deposition Excerpts)# 5 Exhibit E (Cutler Deposition Excerpts)# 6 Exhibit F (Gutierrez Deposition Excerpts)# 7 Exhibit G (Hart Deposition Excerpts)# 8 Exhibit H (Kamasaki Deposition Excerpts)# 9 Exhibit I (Kulyabin Deposition Excerpts)# 10 Exhibit J (Lee Deposition Excerpts)# 11 Exhibit K (Schaffer Deposition Excerpts)# 12 Exhibit L (Soto Deposition Excerpts)# 13 Exhibit M (Wilkes Deposition Excerpts)# 14 Exhibit N (Cutler Daubert Hearing Testimony)# 15 Exhibit O (Youngblood Daubert hearing testimony)# 16 Exhibit P (July Johnson Declaration)# 17 Exhibit Q (Nagel Declaration)# 18 Exhibit R (November Johnson Declaration)# 19 Exhibit S (Serrano Declaration)# 20 Exhibit T (Revised Answer to 2nd Interrogatories)# 21 Exhibit U (Response to 2nd Requests for Admission)# 22 Exhibit V (Form I−9)# 23 Exhibit W (I−9 Document Review Bulletin)# 24 Exhibit X (Handbook for Employers)# 25 Exhibit Y (Employer Brochure)# 26 Exhibit Z (OSC Update)# 27 Exhibit AA (DHS actual knowledge FAQ)# 28 Exhibit BB (Census Table 6: Language Spoken at Home and Ability to Speak English by Nativity)# 29 Exhibit CC (Estimates of the Legal Permanent Resident Population)# 30 Exhibit DD (Visa Office Report Table XVIII)# 31 Exhibit EE (May 2004 GAO Report)# 32 Exhibit FF (Workforce Home Benefit press release)# 33 Exhibit GG (Workforce Home Benefit Program description)# 34 Exhibit HH (Guides for Lawful Permanent Residents)# 35 Exhibit II (Shelbyville Collective Bargaining Agreement)# 36 Exhibit JJ (Sample Identity Investigation Report)# 37 Exhibit KK (NCLR Website))(Warren, Matthew) (Entered: 11/16/2007)

11/19/2007

452 ORDER granting plaintiff's motion to compel; Defendants shall provide their answer on or before 11/23/07 417 ; denying defendants' motion for Protective Order 425 . Signed by Judge William B Carter on 11/20/07. (AWH, ) (Entered: 11/20/2007)

11/21/2007

453 ORDER Denying 440 Motion to Quash Subpoena. Since the subpoena was filed in the District Court of Columbia, this court lacks jurisdiction to quash the motion. Signed by Judge Curtis L Collier on 11/21/2007. (BJL ) (Entered: 11/21/2007)

11/26/2007

454 LOCAL RULE 7.1(d) SUPPLEMENTAL BRIEF to 413 MOTION in Limine to Exclude the Testimony of Michael Cutler by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc. filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Lauerman, Colleen) (Entered: 11/26/2007)

11/30/2007

455 RESPONSE in Opposition re 413 MOTION in Limine to Exclude the Testimony of Michael Cutler filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 11/30/2007)

11/30/2007

456 MOTION for Leave to File Brief In Excess of 25 Pages by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 11/30/2007)

11/30/2007

457 MEMORANDUM in Support of Motion re 456 MOTION for Leave to File Brief In Excess of 25 Pages filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 11/30/2007)

12/03/2007

458 MEMORANDUM w/order to follow. Signed by District Judge Curtis L Collier on 12/3/07. (AWH, ) (Entered: 12/03/2007)

Case 4:02-cv-00023 Doc <docnum> Filed <datefiled> Page 43 of 51

12/03/2007

459 Joint MOTION for Extension of Time to File Jury Instructions by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Text of Proposed Order to Extend Time for Submission of Jury Instructions)(Creswell, C) (Entered: 12/03/2007)

12/03/2007

460 ORDER granting in part and denying in part 225 Motion for More Definite Statement; denying 337 Motion to Compel; granting in part and denying in part 350 Motion for Discovery; The Court DENIES defendants' Motion to Reconsider Class Certification (CF #370); The Court DENIES defendants' Motion to Impose Sanctions (CF # 362). Signed by District Judge Curtis L Collier on 12/3/07. (AWH, ) (Entered: 12/04/2007)

12/03/2007

461 ORDER denying plaintiffs' Motion for leave to exceed page limit. 456 Signed by District Judge Curtis L Collier on 12/3/07. (AWH, ) (Entered: 12/04/2007)

12/04/2007

462 AGREED ORDER granting motion for extension of time to file Jury Instructions. 459 ; Deadline for submission of jury instructions is 12/5/07. Signed by District Judge Curtis L Collier on 12/4/07. (AWH, ) Modified on 12/4/2007 to add text (AWH, ). (Entered: 12/04/2007)

12/05/2007

463 Proposed Jury Instructions by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 12/05/2007)

12/05/2007

464 Proposed Jury Instructions by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Warren, Matthew) (Entered: 12/05/2007)

12/05/2007

465 TRANSCRIPT of Daubert Hearing Volume 1, held on 11/7/07 before Judge Curtis Collier. Court Reporter: Elizabeth Coffey. (AWH, ) Modified on 12/6/2007 (AWH, ).(LOCATED ON THE SHELF IN THE CLERK'S OFFICE) (Main Document 465 replaced on 7/12/2011) (JLM, ). (Entered: 12/06/2007)

12/05/2007

466 TRANSCRIPT of Daubert Hearing Volume II held on 11/8/07 before Judge Curtis Collier. Court Reporter: Elizabeth Coffey. (LOCATED ON THE SHELF IN THE CLERK'S OFFICE) (AWH, ) (Main Document 466 replaced on 7/12/2011) (JLM, ). (Entered: 12/06/2007)

12/06/2007

467 RESPONSE in Opposition re 449 MOTION for Summary Judgment filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Attachments: # 1 Affidavit Howard W. Foster, # 2 Exhibit A through E, # 3 Exhibit F through L, # 4 Exhibit M through N, # 5 Exhibit O through S, # 6 Exhibit T through W, # 7 Exhibit X through GG, # 8 Exhibit HH through NN, # 9 Exhibit OO through SS, # 10 Exhibit TT through DDD)(Foster, Howard) (Entered: 12/06/2007)

12/13/2007

469 TRANSCRIPT of Daubert Hearing, Volume III of III held on 12/13/07 before Judge Curtis L. Collier. Court Reporter: Elizabeth Coffey. (Located in the Clerk's Office on the shelf) (AWH, ) (Main Document 469 replaced on 7/12/2011) (JLM, ). (Entered: 12/18/2007)

12/13/2007

470 Minute Entry for proceedings held before District Judge Curtis L Collier: DAUBERT HEARING continued and concluded on 12/13/2007. (Court Reporter Elizabeth Coffey.) (CHP, ) (Entered: 12/19/2007)

12/13/2007

471 CLERK'S WITNESS/EXHIBIT LIST from Daubert Hearing. (CHP, ) (Entered: 12/19/2007)

12/17/2007

468 REPLY to Response to Motion re 449 MOTION for Summary Judgment filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22

Case 4:02-cv-00023 Doc <docnum> Filed <datefiled> Page 44 of 51

12/21/2007
12/24/2007
01/03/2008 01/03/2008 01/03/2008 01/03/2008 01/03/2008 01/03/2008 01/10/2008 01/14/2008 01/14/2008 01/16/2008 01/16/2008 01/16/2008

Exhibit 22, # 23 Exhibit 23)(Warren, Matthew) (Entered: 12/17/2007)
472 SUPPLEMENT to 413 MOTION in Limine to Exclude the Testimony of Michael Cutler, 412 MOTION in Limine to Exclude the Testimony of George Borjas Defendants' Post−Hearing Evidentiary Summary by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Appendix)(Lauerman, Colleen) (Entered: 12/21/2007)
473 RESPONSE in Opposition re 413 MOTION in Limine to Exclude the Testimony of Michael Cutler, 412 MOTION in Limine to Exclude the Testimony of George Borjas filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 12/24/2007)
474 NOTICE by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Birda Trollinger, Robert Martinez Regarding Court Room Technology (Foster, Howard) (Entered: 01/03/2008)
475 WITNESS LIST by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 01/03/2008)
476 EXHIBIT LIST by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell.. (Foster, Howard) (Entered: 01/03/2008)
477 NOTICE by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell Regarding Deposition Designation (Foster, Howard) (Entered: 01/03/2008)
478 EXHIBIT LIST by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc... (Warren, Matthew) (Entered: 01/03/2008)
479 WITNESS LIST AND DEPOSITION DESIGNATIONS by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Warren, Matthew) (Entered: 01/03/2008)
480 MOTION for Extension of Time to File by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 01/10/2008)
481 NOTICE by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc. Notice of Filing (Attachments: # 1 Exhibit A)(Lauerman, Colleen) (Entered: 01/14/2008)
482 MOTION to Continue Trial by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 01/14/2008)
483 RESPONSE in Opposition re 482 MOTION to Continue Trial filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Warren, Matthew) (Entered: 01/16/2008)
484 RESPONSE in Opposition re 480 MOTION for Extension of Time to File filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A)(Lauerman, Colleen) (Entered: 01/16/2008)
485 REPLY to Response to Motion re 482 MOTION to Continue Trial filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 01/16/2008)

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01/17/2008 01/17/2008 01/22/2008 01/22/2008 01/22/2008 01/23/2008 01/23/2008 01/23/2008 01/23/2008 01/23/2008
01/23/2008
01/25/2008 01/25/2008 01/28/2008

486 RESPONSE in Opposition re 482 MOTION to Continue Trial and Opposition to Supplemental Motion for Jury Instruction filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Lauerman, Colleen) (Entered: 01/17/2008)
487 RESPONSE re 479 Witness List filed by Archibald Schaffer, III, Ahrazue Wilt, Kenneth Kimbro, Richard Bond, Karen Percival, Tim McCoy, John Tyson, Greg Lee, Tyson Foods, Inc.. (Foster, Howard) (Entered: 01/17/2008)
488 MOTION to Decertify the Class by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Warren, Matthew) (Entered: 01/22/2008)
489 RESPONSE re 476 Exhibit List filed by Regina Lee, Idoynia McCoy, Doris Jewell, Robert Martinez, Tabetha Eddings, Virginia Bravo, Birda Trollinger, Alexander Howlett, Kelly Kessinger, Patricia Mims, Lori Windham. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Warren, Matthew) (Entered: 01/22/2008)
490 RESPONSE to Plaintiffs' Deposition and Trial Testimony Designations and Defendants' Counterdesignations. (Warren, Matthew) (Entered: 01/23/2008)
491 MOTION to Strike Plaintiffs' Revised Exhibit List by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Lauerman, Colleen) (Entered: 01/23/2008)
492 RESPONSE in Opposition re 488 MOTION to Decertify the Class filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 01/23/2008)
493 MEMORANDUM AND ORDER granting in part and denying in part plaintiffs' motion for an extension of time to object to exhibits as follows; the Court EXTENDS the deadline for objections to exhibits until 1/25/08 480 and denying plaintiffs' motion to continue the trial date. 482 Signed by District Judge Curtis L Collier on 1/23/08. (AWH, ) (Entered: 01/23/2008)
494 RESPONSE in Opposition re 491 MOTION to Strike Plaintiffs' Revised Exhibit List filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 01/23/2008)
495 MOTION for Leave to File Revised Witness and Exhibit Lists by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Attachments: # 1 Exhibit Plaintiffs' Revised Witness List, # 2 Exhibit Revised Exhibit List)(Foster, Howard) Modified on 2/13/2008 (document disabled, see cf # 496)(AWH, ). (Entered: 01/23/2008)
496 MOTION for Leave to File Revised Witness and Exhibits Lists (CORRECTED) by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Attachments: # 1 Exhibit Revised Witness List, # 2 Exhibit Revised Exhibit List)(Foster, Howard) Modified on 2/13/2008 (AWH, ).(replaces cf #495) (Entered: 01/23/2008)
497 REPLY to Response to Motion re 488 MOTION to Decertify the Class filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Warren, Matthew) (Entered: 01/25/2008)
498 RESPONSE re 489 Response, 478 Exhibit List filed by Archibald Schaffer, III, Ahrazue Wilt, Kenneth Kimbro, Richard Bond, Karen Percival, Tim McCoy, John Tyson, Greg Lee, Tyson Foods, Inc.. (Foster, Howard) (Entered: 01/25/2008)
499 NOTICE by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc. re 491

Case 4:02-cv-00023 Doc <docnum> Filed <datefiled> Page 46 of 51

MOTION to Strike Plaintiffs' Revised Exhibit List Notice of Withdrawal of Motion to Strike Revised Exhibit List (Attachments: # 1 Exhibit A)(Warren, Matthew) (Entered: 01/28/2008)

01/31/2008

500 MEMORANDUM w/order to follow. Signed by District Judge Curtis L Collier on 1/31/08. (AWH, ) (Entered: 01/31/2008)

01/31/2008

501 ORDER granting defendants' motion to exclude the expert opinion of Eric Posner 411 ; granting in part and denying in part defendants' motion to exclude George Borjas' testimony 412 ; denying defendants'motion to exclude the expert testimony of Michael Cutler 413 ; denying defendants' motion to exclude George Borjas's supplemental material 436 . Signed by District Judge Curtis L Collier on 1/31/08. (AWH, ) (Entered: 01/31/2008)

02/04/2008

502 MOTION for Reconsideration re 500 Memorandum &Opinion Reconsideration of Daubert Ruling With Regard To George Borjas by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Lauerman, Colleen) (Entered: 02/04/2008)

02/04/2008

503 MOTION in Limine to Exclude Evidence of Tyson's Prior Acquittal by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 02/04/2008)

02/04/2008

504 MOTION in Limine to Exclude Defendants' Estoppel and Other Common Law Defenses by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 02/04/2008)

02/04/2008

505 MOTION in Limine to Exclude Defendants' Economic Necessity Defense by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 02/04/2008)

02/04/2008

506 MOTION in Limine to Exclude Defendants' Undisclosed Witnesses by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 02/04/2008)

02/04/2008

507 MOTION in Limine to Exclude Certain Undisclosed Expert Opinions by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 02/04/2008)

02/04/2008

508 MOTION in Limine to Exclude Defendants from Introducing Evidence Regarding Civil Anti−Discrimination by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 02/04/2008)

02/04/2008

509 NOTICE by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell Courtroom Technology Statement (Foster, Howard) (Entered: 02/04/2008)

02/04/2008

510 MOTION in Limine to Exclude Testimony From and Other References to The 2003 Trial by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Warren, Matthew) (Entered: 02/04/2008)

02/04/2008

511 MOTION in Limine to Exclude Evidence Relating to Temporary Employees by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Warren, Matthew) (Entered: 02/04/2008)

02/04/2008

512 MOTION in Limine to Exclude Speculation as to Any Person's Immigration Status by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee,

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02/04/2008 02/04/2008 02/04/2008 02/04/2008 02/04/2008 02/04/2008 02/04/2008 02/04/2008 02/05/2008
02/06/2008 02/07/2008

Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Warren, Matthew) (Entered: 02/04/2008)
513 MOTION in Limine to Exclude Evidence of Conduct Outside the Class Period and Conduct at Non−Class Plants by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit 1)(Warren, Matthew) (Entered: 02/04/2008)
514 MOTION in Limine to Exclude Reading of the Trial Testimony of Maria Johanson by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Warren, Matthew) (Entered: 02/04/2008)
515 MOTION in Limine to Exclude Evidence Relating to Alleged Unauthorized Workers Not Identified By Plaintiffs During Discovery by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Warren, Matthew) (Entered: 02/04/2008)
516 MOTION in Limine to Exclude Evidence Regarding Tyson's Lobbying Efforts by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Warren, Matthew) (Entered: 02/04/2008)
517 MOTION in Limine to Exclude Documents Relating to Identity Investigations and "No Match" Letters by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit 1)(Warren, Matthew) (Entered: 02/04/2008)
518 MOTION in Limine to Preclude Plaintiffs From Calling As Witnesses Individuals Who Were Not Previously Disclosed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit 1)(Warren, Matthew) (Entered: 02/04/2008)
519 MOTION in Limine to Exclude Evidence Relating to Immigration Violations By and Immigration Status of Tyson Employees Prior to Their Hiring By Tyson by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Warren, Matthew) (Entered: 02/04/2008)
520 MOTION in Limine to Exclude Evidence of Errors on I−9 Forms by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Warren, Matthew) (Entered: 02/04/2008)
521 RESPONSE in Opposition re 502 MOTION for Reconsideration re 500 Memorandum &Opinion Reconsideration of Daubert Ruling With Regard To George Borjas MOTION for Reconsideration re 500 Memorandum &Opinion Reconsideration of Daubert Ruling With Regard To George Borjas filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 02/05/2008)
522 MOTION to Amend/Revise 496 MOTION for Leave to File Revised Witness and Exhibits Lists (CORRECTED) MOTION for Leave to File Revised Witness and Exhibits Lists (CORRECTED) by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 02/06/2008)
523 REPLY to Response to Motion re 502 MOTION for Reconsideration re 500 Memorandum &Opinion Reconsideration of Daubert Ruling With Regard To George Borjas MOTION for Reconsideration re 500 Memorandum &Opinion Reconsideration of Daubert Ruling With Regard To George Borjas filed by John

Case 4:02-cv-00023 Doc <docnum> Filed <datefiled> Page 48 of 51

Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Lauerman, Colleen) (Entered: 02/07/2008)

02/07/2008

524 RESPONSE in Opposition re 519 MOTION in Limine to Exclude Evidence Relating to Immigration Violations By and Immigration Status of Tyson Employees Prior to Their Hiring By Tyson filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 02/07/2008)

02/07/2008

525 RESPONSE in Opposition re 519 MOTION in Limine to Exclude Evidence Relating to Immigration Violations By and Immigration Status of Tyson Employees Prior to Their Hiring By Tyson filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 02/07/2008)

02/08/2008

526 RESPONSE to Motion re 517 MOTION in Limine to Exclude Documents Relating to Identity Investigations and "No Match" Letters filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) Modified on 2/12/2008 to disabled document, see cf # 527(AWH, ). (Entered: 02/08/2008)

02/08/2008

527 RESPONSE to Motion re 517 MOTION in Limine to Exclude Documents Relating to Identity Investigations and "No Match" Letters filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) Modified on 2/12/2008 (AWH, ).(replaces cf # 526) (Entered: 02/08/2008)

02/12/2008

528 RESPONSE in Opposition re 516 MOTION in Limine to Exclude Evidence Regarding Tyson's Lobbying Efforts filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 02/12/2008)

02/12/2008

529 RESPONSE in Opposition re 518 MOTION in Limine to Preclude Plaintiffs From Calling As Witnesses Individuals Who Were Not Previously Disclosed filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 02/12/2008)

02/12/2008

530 NOTICE by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc. of Defendants' Objections to New Exhibits on Plaintiffs' Revised Exhibit List and Defendants' Counterdesignations (Warren, Matthew) (Entered: 02/12/2008)

02/12/2008

531 NOTICE by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc. of Withdrawal of Julie Gurley Koller (Warren, Matthew) (Entered: 02/12/2008)

02/13/2008

532 NOTICE of Hearing: Pretrial Conference set for 2/22/2008 02:00 PM in the Judge's chamber before District Judge Curtis L Collier. (AWH, ) (Entered: 02/13/2008)

02/13/2008

533 MEMORANDUM with Judgment Order to follow. Signed by District Judge Curtis L Collier on 2/13/2008. (BJL ) (Entered: 02/13/2008)

02/13/2008

534 JUDGMENT ORDER in favor of Tyson Foods, Inc. et al. against Birda Trollinger, et al. 449 Motion for Summary Judgment is GRANTED. The Court DISMISSES the claim of plaintiffs Birda Trollinger, et al. WITH PREJUDICE. Signed by District Judge Curtis L Collier on 2/13/2008. See Memorandum −cf# 533 .(BJL ) (Entered: 02/13/2008)

02/13/2008

Copies of the 533 Memorandum and 534 Judgment Order along with NEFs were mailed to Attorneys Thomas C. Green and William V. Johnson. (BJL ) (Entered:

Case 4:02-cv-00023 Doc <docnum> Filed <datefiled> Page 49 of 51

02/28/2008 02/28/2008 03/14/2008 03/14/2008 03/14/2008 03/20/2008 03/25/2008 03/28/2008 04/03/2008 04/07/2008 04/10/2008 04/15/2008
04/17/2008
04/18/2008

02/13/2008)
535 MOTION for Reconsideration by Lori Windham. (Foster, Howard) (Entered: 02/28/2008)
536 MEMORANDUM in Support of Motion re 535 MOTION for Reconsideration filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 02/28/2008)
537 RESPONSE in Opposition re 535 MOTION for Reconsideration filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Warren, Matthew) (Entered: 03/14/2008)
538 MOTION for Sanctions by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Warren, Matthew) (Entered: 03/14/2008)
539 BILL OF COSTS by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc..Bill of costs DDL set for 4/16/2008. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Warren, Matthew) (Entered: 03/14/2008)
540 REPLY to Response to Motion re 535 MOTION for Reconsideration filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 03/20/2008)
541 MOTION for Extension of Time to File Response/Reply to Bill of Costs and To File Bill of Costs by Birda Trollinger. (Colvin, William) (Entered: 03/25/2008)
542 RESPONSE in Opposition re 538 MOTION for Sanctions filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 03/28/2008)
543 MOTION to Amend/Revise 536 Memorandum in Support of Motion, for Reconsideration by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 04/03/2008)
544 MOTION for Extension of Time to File Response/Reply by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Warren, Matthew) (Entered: 04/07/2008)
545 REPLY to Response to Motion re 538 MOTION for Sanctions filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Warren, Matthew) (Entered: 04/10/2008)
546 RESPONSE in Opposition re 543 MOTION to Amend/Revise 536 Memorandum in Support of Motion, for Reconsideration MOTION to Amend/Revise 536 Memorandum in Support of Motion, for Reconsideration filed by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc.. (Warren, Matthew) (Entered: 04/15/2008)
547 REPLY to Response to Motion re 543 MOTION to Amend/Revise 536 Memorandum in Support of Motion, for Reconsideration MOTION to Amend/Revise 536 Memorandum in Support of Motion, for Reconsideration filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 04/17/2008)
548 MOTION to Amend/Revise 536 Memorandum in Support of Motion, SECOND by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha

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04/22/2008 04/22/2008 05/01/2008
05/02/2008 05/05/2008 05/12/2008
05/22/2008
06/30/2008 06/30/2008 07/08/2008 07/09/2008 10/20/2008 10/27/2008
10/31/2008

Eddings, Doris Jewell. (Foster, Howard) (Entered: 04/18/2008)
549 MEMORANDUM w/order to follow. Signed by District Judge Curtis L Collier on 4/22/08. (AWH, ) (Entered: 04/22/2008)
550 ORDER denying motion for Reconsideration 535 ; denying motions to amend 543 548 . Signed by District Judge Curtis L Collier on 4/22/08. (AWH, ) (Entered: 04/22/2008)
551 OBJECTION 539 Bill of Costs, filed by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. (Foster, Howard) (Entered: 05/01/2008)
552 AMENDED MEMORANDUM (SEE CF #'S 549 AND 550) Signed by District Judge Curtis L Collier on 5/2/08. (AWH, ) (Entered: 05/02/2008)
Order (cf # 552) mailed to Attorneys Thomas Green and William Johnson on 5/5/08. (AWH, ) (Entered: 05/05/2008)
553 NOTICE by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc. re 539 Bill of Costs, Reply in Support of Bill of Costs (Warren, Matthew) (Entered: 05/12/2008)
554 NOTICE OF APPEAL as to 550 Order on Motion for Reconsideration, Order on Motion to Amend/Correct, 534 Judgment, Terminate Motions,, by Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham, Alexander Howlett, Birda Trollinger, Robert Martinez, Tabetha Eddings, Doris Jewell. Filing fee $ 455, receipt number 06490000000000951630. (Foster, Howard) (Entered: 05/22/2008)
555 ORDER of USCA as to 23 Notice of Appeal (Case No. 08−5786) (AWH, ) (Entered: 07/01/2008)
USCA Case Number 08−5643 for 554 Notice of Appeal. Case Mgr is Cheryl Borkowski. (AWH, ) (Entered: 07/01/2008)
556 ORDER the assessment of costs in this matter shall be STAYED pending completion of the appellate process. Signed by District Judge Curtis L Collier on 7/8/2008. (CHP, ) (Entered: 07/09/2008)
Order staying assessment of costs sent by U.S. Mail to Attorneys Thomas Green and William Johnson. (CHP, ) (Entered: 07/09/2008)
557 ORDER of USCA as to 554 ; It is ORDERED that the case is dismissed pursuant to 42(b), Federal Rules of Appellate Procedure. (AWH, ) (Entered: 10/21/2008)
558 NOTICE by John Tyson, Archibald Schaffer, III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, Tim McCoy, Tyson Foods, Inc. re 539 Bill of Costs, 538 MOTION for Sanctions Notice of Withdrawal of Bill of Costs and Motion for Sanctions (Warren, Matthew) (Entered: 10/27/2008)
559 FINDINGS OF THE CLERK; The Court hereby finds the Bill of Costs and Objections in this action to be moot., Patricia L. McNutt, Clerk. (AWH, ) (Entered: 10/31/2008)

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CASREF, CLOSED
U.S. District Court (Live Database) Eastern District of Tennessee (Winchester) CRIMINAL DOCKET FOR CASE #: 4:01-cr-00061 All Defendants

Case title: USA v. Tyson Foods, Inc, et al

Date Filed: 12/11/2001 Date Terminated: 05/12/2003

Assigned to: Honorable R Allan Edgar
Defendant Tyson Food, Inc. (1) TERMINATED: 03/27/2003

represented by Christopher H Steger Miller & Martin 832 Georgia Avenue Suite 1000 Volunteer Building Chattanooga, TN 37402-2289 423-756-6600 Email: csteger@millermartin.com TERMINATED: 03/27/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Frank R Volpe Sidley, Austin, Brown & Wood, LLP 1501 K Street NW Washington, DC 20005 202-736-8000 Email: fvolpe@sidley.com TERMINATED: 03/27/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Mark D Hopson Sidley Austin, LLP 1501 K Street NW Washington, DC 20005 202-736-8188 Fax: 202-736-8711 Email: mhopson@sidley.com TERMINATED: 03/27/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

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Pending Counts
None
Highest Offense Level (Opening)
None
Terminated Counts
18:371.F CONSPIRACY TO DEFRAUD THE UNITED STATES (1)
18:371.F CONSPIRACY TO DEFRAUD THE UNITED STATES (2)
8:1324.F BRINGING IN AND HARBORING ALIENS AND 18:2 AID AND ABET (3-12)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (13)
8:1324.F BRINGING IN AND HARBORING ALIENS AND 18:2 AID AND ABET (14-15)
8:1324.F BRINGING IN AND HARBORING ALIENS AND 18:2 AID AND ABET (16-18)
8:1324.F BRINGING IN AND HARBORING ALIENS AND 18:2 AID AND ABET (19-20)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID

Thomas C Green Sidley, Austin, Brown & Wood, LLP 1501 K Street NW Washington, DC 20005 202-736-8000 TERMINATED: 03/27/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained Disposition
Disposition
Found not guilty
Dismissed
Dismissed
Dismissed
Dismissed

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AND ABET (21-22) 18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (23) 18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (24-26) 18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (27-31) 18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (32-36)
Highest Offense Level (Terminated) Felony
Complaints None
Assigned to: Honorable R Allan Edgar
Defendant Robert Hash (2) TERMINATED: 03/27/2003
Pending Counts None
Highest Offense Level (Opening) None

Dismissed
Dismissed
Dismissed
Disposition
represented by P K Holmes, III Warner, Smith & Harris, PLC P O Box 1626 Fort Smith, AR 72902-1626 501-782-6041 TERMINATED: 03/27/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained Disposition

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Terminated Counts
18:371.F CONSPIRACY TO DEFRAUD THE UNITED STATES (1)
18:371.F CONSPIRACY TO DEFRAUD THE UNITED STATES (2)
8:1324.F BRINGING IN AND HARBORING ALIENS AND 18:2 AID AND ABET (3-12)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (13)
8:1324.F BRINGING IN AND HARBORING ALIENS AND 18:2 AID AND ABET (14-15)
8:1324.F BRINGING IN AND HARBORING ALIENS AND 18:2 AID AND ABET (16-18)
8:1324.F BRINGING IN AND HARBORING ALIENS AND 18:2 AID AND ABET (19-20)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (21-22)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (23)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (24-26)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (27-31)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET

Disposition
Dismissed Dismissed Dismissed Dismissed Dismissed Dismissed Dismissed Dismissed
Dismissed

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(32-36) Highest Offense Level (Terminated) Felony Complaints None Assigned to: Honorable R Allan Edgar Defendant Gerald Lankford (3) TERMINATED: 03/27/2003
Pending Counts None Highest Offense Level (Opening) None Terminated Counts 18:371.F CONSPIRACY TO DEFRAUD THE UNITED STATES (1) 18:371.F CONSPIRACY TO DEFRAUD THE UNITED STATES

Disposition
represented by Paul L Knight O'Connor & Hannan, LLP 1666 K Street NW Suite 500 Washington, DC 20006-2803 202-887-1428 TERMINATED: 03/27/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Robert M Adler O'Connor & Hannan, LLP 1666 K Street NW Suite 500 Washington, DC 20006-2803 202-887-1428 TERMINATED: 03/27/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Disposition
Disposition

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(2)
8:1324.F BRINGING IN AND HARBORING ALIENS AND 18:2 AID AND ABET (3-12)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (13)
8:1324.F BRINGING IN AND HARBORING ALIENS AND 18:2 AID AND ABET (14-15)
8:1324.F BRINGING IN AND HARBORING ALIENS AND 18:2 AID AND ABET (16-18)
8:1324.F BRINGING IN AND HARBORING ALIENS AND 18:2 AID AND ABET (19-20)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (21-22)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (23)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (24-26)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (27-31)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (32-36)
Highest Offense Level (Terminated)
Felony

Dismissed Dismissed Dismissed
Dismissed Dismissed Dismissed Dismissed
Dismissed

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Complaints None
Assigned to: Honorable R Allan Edgar
Defendant Keith Snyder (4) TERMINATED: 03/27/2003
Pending Counts None
Highest Offense Level (Opening) None
Terminated Counts 18:371.F CONSPIRACY TO DEFRAUD THE UNITED STATES (1) 18:371.F CONSPIRACY TO DEFRAUD THE UNITED STATES (2) 8:1324.F BRINGING IN AND HARBORING ALIENS AND 18:2 AID AND ABET (3-12) 18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (13) 8:1324.F BRINGING IN AND HARBORING ALIENS AND 18:2 AID AND ABET (14-15)
8:1324.F BRINGING IN AND HARBORING ALIENS AND 18:2 AID AND ABET

Disposition
represented by Kenneth R Shemin Shemin & Hendren, PLLC P O Box 9030 Fayetteville, AR 72703-0018 479-973-4442 TERMINATED: 03/27/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained Disposition
Disposition Dismissed
Found not guilty
Dismissed
Dismissed
Dismissed
Dismissed

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(16-18) 8:1324.F BRINGING IN AND HARBORING ALIENS AND 18:2 AID AND ABET (19-20) 18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (21-22) 18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (23) 18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (24-26) 18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (27-31) 18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (32-36)
Highest Offense Level (Terminated) Felony
Complaints None
Assigned to: Honorable R Allan Edgar
Defendant Truley Ponder (5) TERMINATED: 05/12/2003

Dismissed
Dismissed
Dismissed
Dismissed
Dismissed
Dismissed
Disposition
represented by Aubrey B Harwell, Jr Neal & Harwell 150 Fourth Avenue North Suite 2000 First Union Tower Nashville, TN 37219 615-244-1713 TERMINATED: 05/12/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

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Pending Counts
18:371.F CONSPIRACY TO DEFRAUD THE UNITED STATES (1)
Highest Offense Level (Opening)
Felony
Terminated Counts
18:371.F CONSPIRACY TO DEFRAUD THE UNITED STATES (2)
8:1324.F BRINGING IN AND HARBORING ALIENS AND 18:2 AID AND ABET (3-12)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (13)
8:1324.F BRINGING IN AND HARBORING ALIENS AND 18:2 AID AND ABET (14-20)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (21-23)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (24-26)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (27-31)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (32-36)
Highest Offense Level (Terminated)
Felony

Disposition Deft placed on probation for a term of one year. Fine: $3,000.00 Special Assessment: $100.00
Disposition Dismissed Dismissed
Dismissed
Dismissed
Dismissed
Dismissed
Dismissed
Dismissed

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Complaints None
Assigned to: Honorable R Allan Edgar
Defendant Spencer Mabe (6) TERMINATED: 05/12/2003
Pending Counts 18:371.F CONSPIRACY TO DEFRAUD THE UNITED STATES (1)
Highest Offense Level (Opening) Felony
Terminated Counts 18:371.F CONSPIRACY TO DEFRAUD THE UNITED STATES (2) 8:1324.F BRINGING IN AND HARBORING ALIENS AND 18:2 AID AND ABET (3-12) 18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (13) 8:1324.F BRINGING IN AND HARBORING ALIENS AND 18:2 AID AND ABET (14-20) 18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID

Disposition
represented by W Thomas Dillard Ritchie, Dillard & Davies, P.C. P O Box 1126 Knoxville, TN 37901-1126 865-637-0661 Fax: 865-524-4623 Email: dillard@rddlawfirm.com TERMINATED: 05/12/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained Disposition Deft placed on probation for one year. Fine: $2,000.00 Special Assessment: $100.00
Disposition Dismissed
Dismissed
Dismissed
Dismissed

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AND ABET (21-23) 18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (24-26) 18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (27-31) 18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (32-36)
Highest Offense Level (Terminated) Felony
Complaints None
Assigned to: Honorable R Allan Edgar
Defendant Jimmy Rowland (7) TERMINATED: 01/15/2003
Pending Counts None
Highest Offense Level (Opening) None
Terminated Counts 18:371.F CONSPIRACY TO

Dismissed
Dismissed
Dismissed
Dismissed
Disposition
represented by Douglas A Trant 900 South Gay Street Suite 1502 Riverview Tower Knoxville, TN 37902-1810 865-525-7980 Fax: 865-525-7986 Email: dtrant@bellsouth.net TERMINATED: 01/15/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained Disposition
Disposition

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DEFRAUD THE UNITED STATES (1-2)
8:1324.F BRINGING IN AND HARBORING ALIENS AND 18:2 AID AND ABET (3-12)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (13)
8:1324.F BRINGING IN AND HARBORING ALIENS AND 18:2 AID AND ABET (14-20)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (21-23)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (24-26)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (27-31)
18:1546.F FRAUD AND MISUSE OF VISAS/PERMITS AND 18:2 AID AND ABET (32-36)
Highest Offense Level (Terminated)
Felony
Complaints
None

Dismissed Dismissed Dismissed Dismissed Dismissed Dismissed Dismissed Dismissed
Disposition

Plaintiff UNITED STATES OF AMERICA

represented by John P MacCoon U S Department of Justice Office of U S Attorney 1110 Market Street Suite 301 Chattanooga, TN 37402

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Date Filed 12/11/2001
12/11/2001

423-752-5140 Email: john.maccoon@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew T Morris U S Department of Justice (Knox USAO) Office of U S Attorney 800 Market Street Suite 211 Knoxville, TN 37902 865-545-4167 Email: matt.morris@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie D Thacker U S Department of Justice Criminal Division/Child Exploitation 1400 New York Avenue NW Suite 600 Washington, DC 20005 202-514-9144 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tammy O Combs U S Department of Justice Office of U S Attorney 1110 Market Street Suite 301 Chattanooga, TN 37402 423-752-5140 Email: tammy.combs@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

#

Docket Text

1 ORDER by Mag Judge William B. Carter sealing case (cc: all counsel) (DJH) (Entered: 12/18/2001)

2 SEALED INDICTMENT by USA counts filed against Tyson Food, Inc. (1) count(s) 1-2, 3-12, 13, 14-20, 21-36, Robert Hash (2) count(s) 1-2, 312, 13, 14-20, 21-36, Gerald Lankford (3) count(s) 1-2, 3-12, 13, 14-20, 21-36, Keith Snyder (4) count(s) 1-2, 3-12, 13, 14-20, 21-36, Truley Ponder (5) count(s) 1-2, 3-12, 13, 14-20, 21-36, Spencer Mabe (6) count (s) 1-2, 3-12, 13, 14-20, 21-36, Jimmy Rowland (7) count(s) 1-2, 3-12, 13, 14-20, 21-36 (SEALED) (Entered: 12/18/2001)

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12/11/2001 12/11/2001 12/11/2001 12/11/2001 12/11/2001 12/11/2001 12/11/2001 12/17/2001 01/04/2002 01/10/2002 01/11/2002 01/24/2002
01/24/2002

SUMMONS issued as to Tyson Food, Inc. ; arraignment set for 1:30 1/24/02 for Tyson Food, Inc. (SEALED) (Entered: 12/18/2001)
WARRANT FOR ARREST issued for Robert Hash by Clerk (SEALED) (Entered: 12/18/2001)
WARRANT FOR ARREST issued for Gerald Lankford by Clerk (SEALED) (Entered: 12/18/2001)
WARRANT FOR ARREST issued for Keith Snyder by Clerk (SEALED) (Entered: 12/18/2001)
WARRANT FOR ARREST issued for Truley Ponder by Clerk (SEALED) (Entered: 12/18/2001)
WARRANT FOR ARREST issued for Spencer Mabe by Clerk (SEALED) (Entered: 12/18/2001)
WARRANT FOR ARREST issued for Jimmy Rowland by Clerk (SEALED) (Entered: 12/18/2001)
3 SUMMONS executed on 12/17/01 as to Tyson Food, Inc. (SEALED) (Entered: 01/03/2002)
4 CRIMINAL MOTION for attorney P.K. Holmes III to appear pro hac vice C/S (SEALED) (Entered: 01/18/2002)
154 Memorandum of the United States in advance of pretrial conference C/S (GRE) (Entered: 01/13/2003)
5 ORDER by Mag Judge William B. Carter granting motion for attorney P.K. Holmes III to appear pro hac vice [4-1] (cc: all counsel) (SEALED) (Entered: 01/18/2002)
6 CTRM MINUTES: before Mag Judge William B. Carter initial appearance of Tyson Food, Inc. ; Attorney Mark Hopson, Christopher H Steger present; , dft Tyson Food, Inc. arraigned; not guilty to counts 1-36 plea entered; Attorney present; , ; pretrial conference set for 1:00 1/13/03 for Tyson Food, Inc. ; pretrial motions set for 11/8/02 for Tyson Food, Inc. ; jury trial set for 9:30 2/4/03 for Tyson Food, Inc. ; plea negotiation cutoff date set for 12/6/02 for Tyson Food, Inc. Those Present: AUSA John MacCoon, Tammy Combs, Matthew Morris, Stephanie Thacker; Atty Mark Hopson and Chris Steger; PTSO Danny Haimelin and David Shields; CD Pam Scott and Russell Eslinger; CR Shannan Andrews. (GRE) (Entered: 01/25/2002)
7 CTRM MINUTES: before Mag Judge William B. Carter initial appearance of Robert Hash ; Attorney P K Holmes III present; , dft Robert Hash arraigned; not guilty to counts 1-36 plea entered; Attorney present; , ; pretrial conference set for 1:00 1/13/03 for Robert Hash ; pretrial motions set for 11/8/02 for Robert Hash ; jury trial set for 9:30 2/4/03 for Robert Hash ; plea negotiation cutoff date set for 12/6/02 for Robert Hash , $100,000 O/R Bond set for Robert Hash. Those Present: AUSA: John MacCoon, Tammy Combs, Matthew Morris, Stephanie

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01/24/2002 01/24/2002 01/24/2002 01/24/2002

Thacker; Atty P.K. Holmes III; PTSO Danny Haimelin and David Shields; CD Pam Scott and Russell Eslinger; CR Shannan Andrews. (GRE) (Entered: 01/25/2002)
8 CTRM MINUTES: before Mag Judge William B. Carter initial appearance of Gerald Lankford ; Attorney Robert M Adler, Paul L Knight present; , dft Gerald Lankford arraigned; not guilty to counts 1-36 plea entered; Attorney present; , ; pretrial conference set for 1:00 1/13/03 for Gerald Lankford ; pretrial motions set for 11/8/02 for Gerald Lankford ; jury trial set for 9:30 2/4/03 for Gerald Lankford ; plea negotiation cutoff date set for 12/6/02 for Gerald Lankford , $100,000 O/R Bond set for Gerald Lankford Others Present: AUSA John MacCoon, Tammy Combs, Matthew Morris, Stephanie Thacker; PTSO Danny Haimelin and David Shields; CD Pam Scott and Russell Eslinger; CR Shannan Andrews. (GRE) (Entered: 01/25/2002)
9 CTRM MINUTES: before Mag Judge William B. Carter initial appearance of Keith Snyder ; Attorney Kenneth R Shemin present; , dft Keith Snyder arraigned; not guilty to counts 1-36 plea entered; Attorney present; , crsched. ; pretrial conference set for 1:00 1/13/03 for Keith Snyder ; pretrial motions set for 11/8/02 for Keith Snyder ; jury trial set for 9:30 2/4/03 for Keith Snyder ; plea negotiation cutoff date set for 12/6/02 for Keith Snyder , $100,000 O/R Bond set for Keith Snyder. Others Present: AUSA: John MacCoon, Tammy Combs, Matthe Morris, Stephanie Thacker; PTSO Danny HAimelin and David Shields; CD Pam Scott and Russell Eslinger; CR Shannan Andrews. (GRE) (Entered: 01/25/2002)
10 CTRM MINUTES: before Mag Judge William B. Carter initial appearance of Truley Ponder ; Attorney Aubrey B Harwell Jr present; , dft Truley Ponder arraigned; not guilty to counts 1-36 plea entered; Attorney present; , ; pretrial conference set for 1:00 1/13/03 for Truley Ponder ; pretrial motions set for 11/8/02 for Truley Ponder ; jury trial set for 9:30 2/4/03 for Truley Ponder ; plea negotiation cutoff date set for 12/6/02 for Truley Ponder , $100,000 Bond set for Truley Ponder. Others Present: AUSA John MacCoon, Tammy Combs, Matthew Morris, Stephanie Thacker; PTSO Danny HAimelin and David Shields; CD Pam Scott and Russell Eslinger; CR Shannan Andrews. (GRE) (Entered: 01/25/2002)
11 CTRM MINUTES: before Mag Judge William B. Carter initial appearance of Spencer Mabe ; Attorney W Thomas Dillard present; , dft Spencer Mabe arraigned; not guilty to counts 1-36 plea entered; Attorney present; , ; pretrial conference set for 1:00 1/13/03 for Spencer Mabe ; pretrial motions set for 11/8/02 for Spencer Mabe ; jury trial set for 9:30 2/4/03 for Spencer Mabe ; plea negotiation cutoff date set for 12/6/02 for Spencer Mabe , $100,000 O/R Bond set for Spencer Mabe. Others Present: AUSA John MacCoon, Tammy Combs, Matthew Morris, Stephanie Thacker; PTSO Danny Haimelin and David Shields; CD Pam Scott and Russell Eslinger; CR Shannan Andrews. (GRE) (Entered: 01/25/2002)

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01/24/2002
01/24/2002 01/24/2002 01/24/2002 01/24/2002 01/24/2002 01/24/2002 01/24/2002 01/24/2002 01/24/2002 01/24/2002 01/24/2002 01/24/2002

12 CTRM MINUTES: before Mag Judge William B. Carter initial appearance of Jimmy Rowland ; Attorney Douglas A Trant present; , dft Jimmy Rowland arraigned; not guilty to counts 1-36 plea entered; Attorney present; , ; pretrial conference set for 1:00 1/13/03 for Jimmy Rowland ; pretrial motions set for 11/8/02 for Jimmy Rowland ; jury trial set for 9:30 2/4/03 for Jimmy Rowland ; plea negotiation cutoff date set for 12/6/02 for Jimmy Rowland , $100,000 O/R Bond set for Jimmy Rowland. Others Present: AUSA John MacCoon, Tammy Combs, Matthew Morris, Stephanie Thacker; PTSO Danny Haimelin and David Shields; CD Pam Scott and Russell Eslinger; CR Shannan Andrews. (GRE) (Entered: 01/25/2002)
13 MOTION for attorney Robert M. Adler and Paul L. Knight to appear pro hac vice C/S (GRE) (Entered: 01/25/2002)
14 ORDER by Honorable R Allan Edgar granting motion for attorney Robert M. Adler and Paul L. Knight to appear pro hac vice [13-1] (cc: all counsel) (GRE) (Entered: 01/25/2002)
RECEIPT for pro hac vice. Atty Robert M. Adler and Atty Paul L. Knight. Check for $120.00. Firm: O'Connor & Hannan, 1666 K Strret NW, Washington, D.C. 20006. (GRE) (Entered: 01/25/2002)
15 ORDER ON DISCOVERY AND SCHEDULING (cc: all counsel) (GRE) (Entered: 01/25/2002)
16 MEMORANDUM AND ORDER ARRAIGNEMT ON INDICTMENT: by Mag Judge William B. Carter (cc: all counsel) (DJH) (Entered: 01/29/2002)
17 APPEARANCE BOND Posted by Keith Snyder ( $100,000/O.R.) (DJH) (Entered: 01/29/2002)
18 ORDER SETTING CONDITIONS OF RELEASE for Keith Snyder by Mag Judge William B. Carter (cc: all counsel) (DJH) (Entered: 01/29/2002)
19 APPEARANCE BOND Posted by Truley Ponder ( $100,000/O.R.) (DJH) (Entered: 01/29/2002)
20 ORDER SETTING CONDITIONS OF RELEASE for Truley Ponder by Mag Judge William B. Carter (cc: all counsel) (DJH) (Entered: 01/29/2002)
21 APPEARANCE BOND Posted by Gerald Lankford ( $100,000/O.R.) (DJH) (Entered: 01/29/2002)
22 ORDER SETTING CONDITIONS OF RELEASE for Gerald Lankford by Mag Judge William B. Carter (cc: all counsel) (DJH) (Entered: 01/29/2002)
23 APPEARANCE BOND Posted by Jimmy Rowland ( $100,000/O.R.) (DJH) (Entered: 01/29/2002)

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01/24/2002 01/24/2002 01/24/2002 01/24/2002 01/24/2002 01/28/2002
01/29/2002 01/30/2002 01/31/2002 02/01/2002 02/01/2002 02/08/2002 02/11/2002

24 ORDER SETTING CONDITIONS OF RELEASE for Jimmy Rowland by Mag Judge William B. Carter (cc: all counsel) (DJH) (Entered: 01/29/2002)
25 APPEARANCE BOND Posted by Spencer Mabe ( $100,000/O.R.) (DJH) (Entered: 01/29/2002)
26 ORDER SETTING CONDITIONS OF RELEASE for Spencer Mabe by Mag Judge William B. Carter (cc: all counsel) (DJH) (Entered: 01/29/2002)
27 APPEARANCE BOND Posted by Robert Hash ( $100,000/O.R.) (DJH) (Entered: 01/29/2002)
28 ORDER SETTING CONDITIONS OF RELEASE for Robert Hash by Mag Judge William B. Carter (cc: all counsel) (DJH) (Entered: 01/29/2002)
29 SCHEDULING ORDER by Honorable R Allan Edgar ; pretrial conference set for 1:00 1/13/03 for Tyson Food, Inc., for Robert Hash, for Gerald Lankford, for Keith Snyder, for Truley Ponder, for Spencer Mabe, for Jimmy Rowland ; pretrial motions set for 11/8/02 for Tyson Food, Inc., for Robert Hash, for Gerald Lankford, for Keith Snyder, for Truley Ponder, for Spencer Mabe, for Jimmy Rowland ; jury trial set for 9:30 2/4/03 Tyson Food, Inc., for Robert Hash, for Gerald Lankford, for Keith Snyder, for Truley Ponder, for Spencer Mabe, for Rowland ; plea negotiation cutoff date set for 12/6/02 for Tyson Food, Inc., for Robert Hash, for Gerald Lankford, for Keith Snyder, for Truley Ponder, for Spencer Mabe, for Rowland (cc: all counsel) (DJH) (Entered: 01/29/2002)
30 (ORIGINAL) TRANSCRIPT of initial appearance/arraignment held on 1/24/2002 before USMJ William B. Mitchell Carter CR: Shannan Andrews (DJH) (Entered: 01/29/2002)
31 MOTION to change venue of case to be held at Winchester by Jimmy Rowland C/S (DJH) (Entered: 01/31/2002)
32 NOTICE TO THE COURT OF APPARENT VIOLATIONS OF LOCAL RULE 83.2 (b) by plaintiff USA C/S (DJH) (Entered: 02/01/2002)
33 ORDER by Honorable R Allan Edgar granting motion for attorney P.K. Holmes III to appear pro hac vice [4-1] (cc: all counsel) (DJH) (Entered: 02/01/2002)
RECEIPT----Rec'd from atty P.K. Holmes, III for pro hac vice in the amount of $60.00 (DJH) (Entered: 02/01/2002)
34 RESPONSE TO NOTICE OF APPARENT VIOLATIONS REGARDING LOCAL RULE 83.2(b) by defendant Tyson Food, Inc. C/S (DJH) (Entered: 02/14/2002)
35 REPLY by plaintiff USA regarding [34-1] C/S (DJH) (Entered: 02/14/2002)

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03/01/2002
03/01/2002 03/22/2002 04/02/2002
04/12/2002 04/23/2002 04/25/2002 04/29/2002
05/01/2002 05/06/2002 05/07/2002 05/17/2002 05/17/2002 05/20/2002

36 JOINT MOTION to conduct this trial in the Winchester Division by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe, Jimmy Rowland C/S (DJH) (Entered: 03/05/2002)
37 NOTICE OF FILING by Spencer Mabe C/S (DJH) (Entered: 03/05/2002)
38 RESPONSE by plaintiff USA to motion to conduct this trial in the Winchester Division [36-1], motion to change venue of case to be held at Winchester [31-1] C/S (DJH) (Entered: 03/22/2002)
39 MEMORANDUM AND ORDER: by Honorable R Allan Edgar denying motion to conduct this trial in the Winchester Division [36-1], denying motion to change venue of case to be held at Winchester [31-1] (cc: all counsel) (DJH) (Entered: 04/02/2002)
40 MOTION for pretrial production of subpoenaed documents pursuant to rule 17(c), FRCP by USA as to Tyson Food, Inc. C/S (DJH) (Entered: 04/15/2002)
41 MOTION for attorney Thomas C. Green, Mark D. Hopson, and Frank R. Volpe to appear pro hac vice by Tyson Food, Inc. C/S (DJH) Modified on 05/03/2002 (Entered: 04/26/2002)
PRO HAC VICE FILING FEE PAID on 4/25/02 in the amount of $ 180.00, receipt # 19260. (DJH) (Entered: 04/26/2002)
42 ORDER by Mag Judge William B. Carter granting motion for attorney Thomas C. Green, Mark D. Hopson, and Frank R. to appear pro hac vice [42-1] (cc: all counsel) (DJH) Modified on 05/03/2002 (Entered: 04/29/2002)
43 MEMORANDUM by defendant Tyson Food, Inc. in opposition to [40-1] C/S (DJH) Modified on 05/03/2002 (Entered: 05/02/2002)
44 REPLY by plaintiff USA regarding [43-1] C/S (SEALED) Modified on 05/10/2002 (Entered: 05/06/2002)
45 MOTION to extend discovery deadline as to certain documentary evidence by USA as to Tyson Food, Inc. C/S (DJH) (Entered: 05/10/2002)
46 SUPPLEMENT TO THE UNITED STATES' MOTION TO EXTEND DISCOVERY DEADLINE AS TO CERTAIN DOCUMENTARY EVIDENCE by plaintiff USA C/S (DJH) (Entered: 05/20/2002)
47 MEMORANDUM by defendant Tyson Food, Inc., defendant Robert Hash, defendant Gerald Lankford, defendant Truley Ponder, defendant Spencer Mabe in opposition to [45-1] C/S (DJH) (Entered: 05/20/2002)
48 ORDER by Honorable R Allan Edgar granting motion to extend discovery deadline as to certain documentary evidence: ORDERED that the Discovery and Scheduling Order in this case be hereby amended to

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05/22/2002 05/22/2002 05/24/2002
07/01/2002 08/26/2002 08/26/2002 09/04/2002 09/12/2002 09/12/2002 09/17/2002 09/20/2002
10/04/2002

provide that the United States shall disclose the report of the Social Security Admin. to defense counsel no later than July 30, 2002, and all other items covered by the Discovery and Scheduling Order shall be disclosed on or before May 22, 2002, unless amended by further Order of the Court. (cc: all counsel) (DJH) (Entered: 05/20/2002)
49 MEMORANDUM: by Honorable R Allan Edgar (cc: all counsel) (DJH) (Entered: 05/22/2002)
50 ORDER by Honorable R Allan Edgar granting motion for pretrial production of subpoenaed documents pursuant to 17(c), FRCP [40-1] (cc: all counsel) (DJH) (Entered: 05/22/2002)
51 ORDER by Honorable R Allan Edgar granting motion to extend discovery deadline as to certain documentary evidence: The government shall produce the documents to the defendants on or before September 30, 2002. (cc: all counsel) (DJH) (Entered: 05/24/2002)
Documents delivered to Clerk's office pursuant to the Court Order dated May 22, 2002. Documents labeled TF16-000001 through TF16-003645. Documents placed in vault. (GRE) (Entered: 07/01/2002)
52 MOTION to compel production of documents by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe C/S (GRE) Modified on 08/29/2002 (Entered: 08/29/2002)
53 MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe in support of [52-1] C/S (GRE) (Entered: 08/29/2002)
54 REPLY of the United States to defendant's motion to compel production of records by USA regarding [52-1] C/S (GRE) (Entered: 09/10/2002)
55 REPLY by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe to response to motion to compel production of documents [52-1] C/S (GRE) (Entered: 09/17/2002)
File #2 begins with C.F. #55 (GRE) (Entered: 09/17/2002)
56 REPLY by USA regarding [55-1] C/S (GRE) (Entered: 09/19/2002)
57 ORDER by Honorable R Allan Edgar ; in-court hearing on motion by defendants to compel production of documents is set for 9:30 10/4/02 for Tyson Food, Inc., for Robert Hash, for Gerald Lankford, for Keith Snyder, for Truley Ponder, for Spencer Mabe (cc: all counsel) (GRE) (Entered: 09/20/2002)
58 CTRM MINUTES: before Honorable R Allan Edgar, hearing on motion to compel production of documents held as to Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe, Jimmy Rowland. Motion to compel documents taken under advisement by court. Present: John MacCoon & Matt Morris, AUSA; P.K. Holmes, Robert Adler, Douglas Trant, def counsel; CR: Shannan Andrews; CD: Kelli Brown. (KFB) (Entered: 10/04/2002)

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10/04/2002 10/08/2002 10/09/2002 10/11/2002 10/17/2002
10/17/2002 10/17/2002
10/17/2002 10/22/2002 10/22/2002 10/23/2002
10/25/2002 10/29/2002 10/29/2002

59 ADDENDUM TO THE UNITED STATES' REPLY TO DEFENDANTS' MOTION TO COMPEL by plaintiff USA C/S (DJH) (Entered: 10/07/2002)
60 RESPONSE by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe regarding [59-1] C/S (GRE) (Entered: 10/09/2002)
61 TRANSCRIPT of Motion Hearing held on 10/9/02 before District Judge R. Allan Edgar CR: Shannan Andrews (GRE) (Entered: 10/21/2002)
62 RESPONSE by USA regarding [60-1] C/S (GRE) (Entered: 10/21/2002)
63 MOTION to dismiss count(s) as to Tyson Food, Inc. (1) count(s) 13, 2136, Robert Hash (2) count(s) 13, 21-36, Gerald Lankford (3) count(s) 13, 21-36, Keith Snyder (4) count(s) 13, 21-36, Truley Ponder (5) count(s) 13, 21-36, Spencer Mabe (6) count(s) 13, 21-36 by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe C/S (GRE) (Entered: 10/21/2002)
64 MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe in support of [63-1] C/S (GRE) (Entered: 10/21/2002)
65 ORDER by Honorable R Allan Edgar. It is ORDERED that the motion to compel production of documents [Court File No. 52] is GRANTED IN PART and DENIED IN PART. The government shall disclose the SSA initial analysis as soon as practicable. The government also shall disclose the BPI system log if and when it becomes available from the INS. (cc: all counsel) (GRE) (Entered: 10/21/2002)
66 MEMORANDUM by Honorable R Allan Edgar [65] (cc: all counsel) (GRE) (Entered: 10/21/2002)
67 MOTION for a bill of particulars by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe C/S (GRE) (Entered: 10/23/2002)
68 MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe in support of [67-1] C/S (GRE) (Entered: 10/23/2002)
69 NOTICE of Filing Exhibits to Memorandum in Support of Defendant's Motion for a Bill of Particulars by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe C/S (GRE) (Entered: 10/29/2002)
70 RESPONSE by USA regarding [63-1] C/S (GRE) (Entered: 10/29/2002)
71 MOTION to strike surplusage in the indictment by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe C/S (GRE) (Entered: 11/04/2002)
72 MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford,

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11/01/2002 11/01/2002 11/05/2002 11/05/2002 11/07/2002 11/07/2002
11/07/2002 11/08/2002
11/08/2002 11/08/2002
11/08/2002 11/08/2002

Keith Snyder, Truley Ponder, Spencer Mabe in support of [71-1] C/S (GRE) (Entered: 11/04/2002)
73 RESPONSE by USA regarding [67-1] C/S (GRE) (Entered: 11/04/2002)
74 REPLY IN SUPPORT by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe regarding [63-1] C/S (GRE) (Entered: 11/04/2002)
75 RESPONSE by USA regarding [74-1] C/S (GRE) (Entered: 11/12/2002)
76 RESPONSE by USA regarding [71-1] C/S (GRE) (Entered: 11/12/2002)
77 SUPPLEMENT by USA regarding [75-1] C/S (GRE) (Entered: 11/12/2002)
78 MOTION to dismiss count(s) as to Tyson Food, Inc. (1) count(s) 1, Robert Hash (2) count(s) 1, Gerald Lankford (3) count(s) 1, Keith Snyder (4) count(s) 1, Truley Ponder (5) count(s) 1, Spencer Mabe (6) count(s) 1 by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe C/S (GRE) (Entered: 11/12/2002)
79 MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe in support of [78-1] C/S (GRE) (Entered: 11/12/2002)
80 MOTION to dismiss count(s) as to Tyson Food, Inc. (1) count(s) 2, Robert Hash (2) count(s) 2, Gerald Lankford (3) count(s) 2, Keith Snyder (4) count(s) 2, Truley Ponder (5) count(s) 2, Spencer Mabe (6) count(s) 2 by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe C/S (GRE) (Entered: 11/13/2002)
81 MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe in support of [80-1] C/S (GRE) (Entered: 11/13/2002)
82 MOTION to dismiss Klein Conspiracy Charge count(s) as to Tyson Food, Inc. (1) count(s) 2, Robert Hash (2) count(s) 2, Gerald Lankford (3) count(s) 2, Keith Snyder (4) count(s) 2, Truley Ponder (5) count(s) 2, Spencer Mabe (6) count(s) 2 by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe C/S (GRE) (Entered: 11/13/2002)
83 MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe in support of [82-1] C/S (GRE) (Entered: 11/13/2002)
84 MOTION to dismiss count(s) as to Tyson Food, Inc. (1) count(s) 3-12, 14-20, Robert Hash (2) count(s) 3-12, 14-20, Gerald Lankford (3) count (s) 3-12, 14-20, Keith Snyder (4) count(s) 3-12, 14-20, Truley Ponder (5) count(s) 3-12, 14-20, Spencer Mabe (6) count(s) 3-12, 14-20 by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe C/S (GRE) (Entered: 11/13/2002)

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11/08/2002 11/08/2002 11/08/2002 11/13/2002 11/13/2002 11/14/2002 11/14/2002
11/15/2002 11/18/2002 11/19/2002 11/19/2002 11/19/2002 11/19/2002

85 MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe in support of [84-1] C/S (GRE) (Entered: 11/13/2002)
86 MOTION to Dismiss Based on Deprivation of Critical Evidence by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe C/S (GRE) Modified on 11/13/2002 (Entered: 11/13/2002)
87 MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe in support of [86-1] C/S (GRE) (Entered: 11/13/2002)
88 REPLY IN SUPPORT OF MOTION FOR A BILL OF PARTICULARS by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe regarding [67-1] C/S (GRE) (Entered: 11/15/2002)
89 REPLY of the Individual Defendants to the Government's Response to Defendant's Motion for a Bill of Particulars Regarding Forfeiture by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe C/S (GRE) (Entered: 11/15/2002)
90 RESPONSE by USA to the Individual Defendants' Reply Regarding Defendant's Motion for Bill of Particulars Regarding Forfeiture. C/S (GRE) (Entered: 11/15/2002)
91 RESPONSE to Government's Supplement to its Response to Reply in Support of Motion to Dismiss Counts Charging Document Offenses (Counts 13, 21-36) by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe C/S (GRE) (Entered: 11/15/2002)
92 REPLY to the Response of the United States to Defendant's Motion to Strike Surplusage in the Indictment by USA regarding [76-1] C/S (GRE) (Entered: 11/19/2002)
93 RESPONSE to Tyson Foods' Reply in Support of Motion for Bill of Particulars by USA C/S (GRE) (Entered: 11/19/2002)
94 RESPONSE to Defendants' Motion to Dismiss Based on Deprivation of Critical Evidence by USA C/S (GRE) (Entered: 11/19/2002)
95 RESPONSE to Defendants' Motion to Dismiss Klein Conspiracy Charge (Count Two) by USA C/S (GRE) (Entered: 11/19/2002)
96 RESPONSE by USA regarding [84-1] (Defendants' motion to dismiss counts charging defendants with bringing illegal aliens to the United States and transporting illegal aliens (counts 3-12 & 14-20)) C/S (GRE) (Entered: 11/19/2002)
97 RESPONSE of the United States to Defendants' Motion to Dismiss Count Two [80-1] C/S (GRE) (Entered: 11/19/2002)

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11/19/2002 11/27/2002
11/27/2002
11/29/2002
11/29/2002
12/02/2002 12/02/2002 12/02/2002 12/02/2002 12/04/2002

98 RESPONSE by USA to Defendants' Motion to Dismiss Count One [78-1] C/S (GRE) (Entered: 11/19/2002)
99 REPLY IN SUPPORT by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe to response to motion to dismiss Klein Conspiracy Charge count(s) as to Tyson Food, Inc. (1) count(s) 2, Robert Hash (2) count(s) 2, Gerald Lankford (3) count (s) 2, Keith Snyder (4) count(s) 2, Truley Ponder (5) count(s) 2, Spencer Mabe (6) count(s) 2 [82-1] C/S (GRE) (Entered: 12/03/2002)
100 REPLY IN SUPPORT by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe to response to motion to dismiss count(s) as to Tyson Food, Inc. (1) count(s) 3-12, 1420, Robert Hash (2) count(s) 3-12, 14-20, Gerald Lankford (3) count(s) 3-12, 14-20, Keith Snyder (4) count(s) 3-12, 14-20, Truley Ponder (5) count(s) 3-12, 14-20, Spencer Mabe (6) count(s) 3-12, 14-20 [84-1] C/S (GRE) (Entered: 12/03/2002)
101 REPLY by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe to response to motion to dismiss count(s) as to Tyson Food, Inc. (1) count(s) 2, Robert Hash (2) count(s) 2, Gerald Lankford (3) count(s) 2, Keith Snyder (4) count(s) 2, Truley Ponder (5) count(s) 2, Spencer Mabe (6) count(s) 2 [80-1] C/S (GRE) (Entered: 12/03/2002)
102 REPLY by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe to response to motion to dismiss count(s) as to Tyson Food, Inc. (1) count(s) 1, Robert Hash (2) count(s) 1, Gerald Lankford (3) count(s) 1, Keith Snyder (4) count(s) 1, Truley Ponder (5) count(s) 1, Spencer Mabe (6) count(s) 1 [78-1] C/S (GRE) (Entered: 12/03/2002)
103 REPLY by Gerald Lankford to response to motion to Dismiss Based on Deprivation of Critical Evidence [86-1] C/S (GRE) (Entered: 12/03/2002)
104 REPLY by Tyson Food, Inc., Keith Snyder, Truley Ponder, Spencer Mabe to response to motion to Dismiss Based on Deprivation of Critical Evidence [86-1] C/S (GRE) (Entered: 12/03/2002)
105 RESPONSE of the United States to Defendants' Reply in Support of Motion to Dismiss Klein Conspiracy Charge (Count 2). (GRE) (Entered: 12/05/2002)
106 REPLY Brief of Defendant Robert Hash to Response of the United States to Defendants' Motion to Dismiss Based on Deprivation of Critical Evidence (GRE) (Entered: 12/05/2002)
107 NOTICE of filing corrected exhibit C to reply of defendant Gerald Lankford to response of the United States to defendants' motion to dismiss based on deprivation of critical evidence by Gerald Lankford C/S (GRE) (Entered: 12/05/2002)

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12/06/2002 12/06/2002 12/09/2002 12/11/2002 12/12/2002 12/13/2002 12/13/2002
12/13/2002 12/16/2002 12/17/2002 12/18/2002 12/18/2002
12/20/2002 12/20/2002

108 MOTION for status conference with the court by USA as C/S (GRE) (Entered: 12/10/2002)
109 RESPONSE by USA regarding [104-1] Reply in Support of Motion to Dismiss Based on Deprivation of Critical Evidence C/S (GRE) (Entered: 12/10/2002)
110 SUPPLEMENT to Motion for Status Conference with the Court by USA C/S (GRE) (Entered: 12/10/2002)
111 MOTION to preclude expert testimony or, in the alternative, compel compliance with Rule 16(b)(1)(C) by USA (GRE) (Entered: 12/16/2002)
112 NOTICE of additional matter to be brought to the court's attention for status conference by USA C/S (GRE) (Entered: 12/16/2002)
113 RESPONSE by Tyson Food, Inc., Truley Ponder, Spencer Mabe, Keith Snyder regarding notice of additional matter to be brought to the court's attention for status conference [112-1] C/S (GRE) (Entered: 12/16/2002)
114 MOTION to compel production of original tapes by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe. Attachment: Certification in Support of Motion to Compel Production of Original Tapes. C/S (GRE) Modified on 12/17/2002 (Entered: 12/16/2002)
115 MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe in support of [114-1] C/S (GRE) (Entered: 12/16/2002)
116 SUPPLEMENT to Notice of Additional Matter for Status Conference by USA C/S (GRE) (Entered: 12/17/2002)
117 RESPONSE by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe regarding [111-1] Government's Motion to Preclude Expert Testimony. C/S (GRE) (Entered: 12/18/2002)
118 REPLY to Defendant's Response to the Government's Motion to Preclude Expert Testimony by USA [117-1] C/S (GRE) (Entered: 12/18/2002)
119 ORDER by Honorable R Allan Edgar granting motion for status conference with the court [108-1] granting motion to compel production of original tapes [114-1] denying motion to preclude expert testimony or, in the alternative, compel compliance with Rule 16(b)(1)(C) [111-1] (cc: all counsel) (GRE) (Entered: 12/19/2002)
120 DEFENDANTS' RESPONSE to the Government's Sur-Reply on the Motion to Dismiss Based on Deprivation of Critical Evidence (GRE) (Entered: 12/27/2002)
121 Defendants' Supplemental MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe in support of motion to dismiss based on deprivation of critical evidence C/S (GRE) (Entered: 12/27/2002)

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12/30/2002 12/30/2002
12/30/2002 12/30/2002
01/02/2003 01/02/2003 01/03/2003 01/06/2003 01/06/2003 01/06/2003 01/06/2003 01/06/2003
01/06/2003

122 MOTION in limine to exclude speculation as to any person's immigration status by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe C/S (GRE) (Entered: 01/02/2003)
123 MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe in support of motion in limine to exclude speculation as to any person's immigration status [1221] C/S (GRE) (Entered: 01/02/2003)
124 MOTION in limine to exclude evidence regarding alleged mistreatment of workers by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe C/S (GRE) (Entered: 01/02/2003)
125 MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe in support of motion in limine to exclude evidence regarding alleged mistreatment of workers. [124-1] C/S (GRE) (Entered: 01/02/2003)
126 RESPONSE by plaintiff USA to motion in limine to exclude evidence regarding alleged mistreatment of workers [124-1] C/S (DJH) (Entered: 01/03/2003)
127 RESPONSE by plaintiff USA to motion in limine to exclude speculation as to any person's immigration status [122-1] C/S (DJH) (Entered: 01/03/2003)
128 MOTION in limine to preclude the playing at trial of certain portions of accidentally recorded private conversations of agents by USA Mabe, Jimmy Rowland C/S (GRE) (Entered: 01/03/2003)
129 MOTION in limine to preclude evidence regarding initial manual Social Security Administration analysis by USA C/S (GRE) (Entered: 01/09/2003)
130 MEMORANDUM by USA in support of United States' motion in limine to preclude evidence regarding initial manual Social Security Administration analysis [129-1] C/S (GRE) (Entered: 01/09/2003)
131 MOTION in limine to preclude evidence regarding asylum by USA C/S (GRE) (Entered: 01/09/2003)
132 MEMORANDUM by USA in support of of United States' motion in limine regarding asylum [131-1] C/S (GRE) (Entered: 01/09/2003)
133 MOTION in limine to exclude evidence or argument relating to the death of former defendant Jimmy Rowland by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe C/S (GRE) (Entered: 01/09/2003)
134 MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe in support of defendants' motion to exclude evidence or argument relating to the death of former defendant Jimmy Rowland [133-1] C/S (GRE) (Entered: 01/09/2003)

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01/06/2003 01/06/2003 01/06/2003 01/06/2003
01/06/2003 01/06/2003 01/06/2003 01/06/2003 01/06/2003 01/07/2003 01/07/2003 01/07/2003

135 MOTION in limine to exclude forfeiture evidence from trial by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe C/S (GRE) (Entered: 01/09/2003)
136 MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe in support of defendants' motion in limine to exclude forfeiture evidence from trial [135-1] C/S (GRE) (Entered: 01/09/2003)
137 MOTION in limine to exclude allegations of "cost savings" offered as evidence of forfeitable "proceeds" by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe C/S (GRE) (Entered: 01/09/2003)
138 MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe in support of defendants' motion in limine to exclude allegations of "cost savings" offered as evidence of forfeitable "proceeds" [137-1] C/S (GRE) (Entered: 01/09/2003)
139 Exhibits to defendants' motion in limine to exclude allegations of "cost savings" offered as evidence of forfeitable "proceeds" by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe C/S (GRE) (Entered: 01/09/2003)
140 MOTION in limine to exclude the expert report supporting the government's forfeiture theory under Daubert by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe C/S (GRE) (Entered: 01/09/2003)
141 MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe in support of motion in limine to exclude the expert report supporting the government's forfeiture theory under Daubert [140-1] C/S (GRE) (Entered: 01/09/2003)
142 MOTION in limine to exclude hearsay statements made by Jimmy Rowland by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe C/S (GRE) (Entered: 01/09/2003)
143 MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe in support of defendants' motion in limine to exclude hearsay statements made by Jimmy Rowland [142-1] C/S (GRE) (Entered: 01/09/2003)
144 MOTION in limine to exclude government's use of grand jury transcripts by Robert Hash C/S (GRE) (Entered: 01/09/2003)
145 MEMORANDUM by Robert Hash in support of motion in limine to exclude government's use of grand jury transcripts [144-1] C/S (GRE) (Entered: 01/09/2003)
146 MOTION to admit out of state counsel pro hac vice for deft Keith Snyder C/S (GRE) (Entered: 01/09/2003)

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01/07/2003 01/08/2003 01/08/2003 01/09/2003 01/09/2003 01/10/2003
01/10/2003 01/10/2003 01/10/2003 01/10/2003 01/13/2003 01/13/2003 01/13/2003

RECEIPT 20110 for $120.00 for 2 PHVs (GRE) (Entered: 01/09/2003)
147 MOTION in limine to exclude certain grand jury testimony offered as corporate admissions but violative of defendant's sixth amendment right to confront and cross-examine by Truley Ponder C/S (GRE) (Entered: 01/09/2003)
148 Defendants' joint memorandum in advance of January 13, 2003, pretrial conference by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe C/S (GRE) (Entered: 01/09/2003)
147 ...MEMORANDUM by Truley Ponder in support of [147-1] C/S (GRE) (Entered: 01/09/2003)
149 REPLY by defendants in support of motion in limine to exclude evidence regarding alleged of workers [124-1] C/S (AR) (Entered: 01/10/2003)
150 MEMORANDUM AND ORDER: by Honorable R Allan Edgar denying motion to strike surplusage in the indictment [71-1] denying motion for a bill of particulars [67-1] denying motion to dismiss count(s) as to Tyson Food, Inc. (1) count(s) 1, Robert Hash (2) count(s) 1, Gerald Lankford (3) count(s) 1, Keith Snyder (4) count(s) 1, Truley Ponder (5) count(s) 1, Spencer Mabe (6) count(s) 1 [78-1] denying motion to dismiss count(s) as to Tyson Food, Inc. (1) count(s) 2, Robert Hash (2) count(s) 2, Gerald Lankford (3) count(s) 2, Keith Snyder (4) count(s) 2, Truley Ponder (5) count(s) 2, Spencer Mabe (6) count(s) 2 [80-1] denying motion to dismiss Klein Conspiracy Charge count(s) as to Tyson Food, Inc. (1) count(s) 2, Robert Hash (2) count(s) 2, Gerald Lankford (3) count(s) 2, Keith Snyder (4) count(s) 2, Truley Ponder (5) count(s) 2, Spencer Mabe (6) count(s) 2 [82-1] (cc: all counsel) (GRE) (Entered: 01/13/2003)
151 RESPONSE by USA regarding defendants' motion in limine to exclude the expert report supporting the government's forfeiture theory under Daubert [140-1] C/S (GRE) (Entered: 01/13/2003)
152 RESPONSE by USA regarding defendants' motion in limine to exclude hearsay statements made by Jimmy Rowland [142-1] C/S (GRE) (Entered: 01/13/2003)
153 RESPONSE by USA regarding defendants' motion in limine to exclude forfeiture evidence from trial [135-1] C/S (GRE) (Entered: 01/13/2003)
155 RESPONSE by USA regarding motion in limine to prclude allegations of "cost savings" offered as evidence of forfeitable "proceeds" [137-1] C/S (GRE) (Entered: 01/13/2003)
156 ORDER by Mag Judge William B. Carter granting motion to admit out of state counsel pro hac vice [146-1] (GRE) (Entered: 01/14/2003)
160 MOTION in limine to exclude government's use of grand jury transcripts by Spencer Mabe C/S (GRE) (Entered: 01/15/2003)
161 MEMORANDUM by Spencer Mabe in support of defendant Spencer Mabe's motion in limine to exclude government's use of grand jury

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01/13/2003
01/14/2003
01/14/2003 01/14/2003 01/15/2003 01/15/2003 01/15/2003 01/16/2003

transcripts [160-1] C/S (GRE) (Entered: 01/15/2003)
170 CTRM MINUTES: before Honorable R Allan Edgar, Final Pretrial Conference held. Jury Trial to begin on 2/4/03 @ 9:30 (8weeks). Govt motion to dismiss deft Jimmy Rowland-GRANTED, proposed order to be submitted. CR: Shannan Andrews CD: Kelli Brown AUSA: John MacCoon, Tammy Combs, Matt Morris & Guy Blackwell; ATTY: Mark Hopson, Roger Dickson, Tom Dillard, Aubrey Harwell, Kenneth Shemin, Paul Knight, Robert Adler, P.K. Holmes, Frank Volpe, Tom Green. (SEALED) (Entered: 01/23/2003)
157 MEMORANDUM AND ORDER: by Honorable R Allan Edgar denying in part and granting in part motion to dismiss count(s) as to Tyson Food, Inc. (1) count(s) 13, 21-36, Robert Hash (2) count(s) 13, 21-36, Gerald Lankford (3) count(s) 13, 21-36, Keith Snyder (4) count(s) 13, 21-36, Truley Ponder (5) count(s) 13, 21-36, Spencer Mabe (6) count(s) 13, 2136 [63-1] dismissing counts as to Tyson Food, Inc. (1) count(s) 13, 24 26 , 32 -36 . Dismissed , Robert Hash (2) count(s) 13, 24 -26 , 32 -36 . Dismissed , Gerald Lankford (3) count(s) 13, 24 -26 , 32 -36 . Dismissed , Keith Snyder (4) count(s) 13, 24 -26 , 32 -36 . Dismissed , Truley Ponder (5) count(s) 13, 24 -26 , 32 -36 . Dismissed , Spencer Mabe (6) count(s) 13, 24 -26 , 32 -36 . Dismissed , Jimmy Rowland (7) count(s) 13, 24 -26 , 32 -36 . Dismissed denying motion to dismiss count (s) as to Tyson Food, Inc. (1) count(s) 3-12, 14-20, Robert Hash (2) count (s) 3-12, 14-20, Gerald Lankford (3) count(s) 3-12, 14-20, Keith Snyder (4) count(s) 3-12, 14-20, Truley Ponder (5) count(s) 3-12, 14-20, Spencer Mabe (6) count(s) 3-12, 14-20 [84-1] (cc: all counsel) (GRE) (Entered: 01/14/2003)
158 MOTION to dismiss defendant(s) by USA as to Jimmy Rowland C/S (GRE) (Entered: 01/14/2003)
159 TRANSCRIPT of Final Pre-trial Conference held on 1/13/03 before Judge R. Allan Edgar CR: Shannan Andrews (GRE) (Entered: 01/14/2003)
162 ORDER by Honorable R Allan Edgar granting motion to dismiss defendant(s) [158-1] case dismissed as to Jimmy Rowland (7) count(s) 12, 3 -12 , 13 , 14 -20 , 21 -23 , 24 -26 , 27 -31 . Dismissed (cc: all counsel) (GRE) (Entered: 01/15/2003)
163 FINAL PRETRIAL ORDER by Honorable R Allan Edgar (cc: all counsel) (GRE) (Entered: 01/15/2003)
164 MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder, Truley Ponder, Spencer Mabe in opposition of the United States motion in limine to preclude the playing at trial of certain portions of accidentally recorded private conversations of agents [128-1] C/S (GRE) (Entered: 01/15/2003)
165 MEMORANDUM, OPINION AND ORDER: by Honorable R Allan Edgar granting motion in limine to exclude evidence or argument relating to the death of former defendant Jimmy Rowland [133-1] granting

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01/17/2003 01/17/2003 01/17/2003
01/17/2003 01/17/2003
01/17/2003 01/17/2003 01/17/2003 01/21/2003 01/21/2003 01/21/2003

motion in limine to exclude hearsay statements made by Jimmy Rowland [142-1] denying motion in limine to exclude evidence regarding alleged mistreatment of workers [124-1] granting motion in limine to preclude evidence regarding asylum [131-1]; reserving ruling on defendants' motion in limine to exclude speculation as to any persons' immigration status [122-1]; reserving ruling on motion in limine by the United States to preclude playing at trial certain portions of accidentally recorded private conversations of agents [128-1]; reserving ruling on motion in limine by the United States to preclude evidence regarding initial Social Security Administration analysis [129-1]. (GRE) (Entered: 01/16/2003)
166 DEFENDANTS' REPLY in support of motion in limine to exclude allegations of "cost savings" offered as evidence of forfeitable "proceeds" C/S (GRE) (Entered: 01/21/2003)
167 DEFENDANTS' REPLY in support of motion in limine to exclude expert report supporting the government's forfeiture theory under Daubert. C/S (GRE) (Entered: 01/21/2003)
171 CTRM MINUTES: before Honorable R Allan Edgar, guilty plea entered by Truley Ponder to ct 1 , plea agreement reserved for defendant Truley Ponder , ; sentencing hearing set for 1:00 5/12/03 for Truley Ponder CR: Shannan Andrews CD: Kelli Brown AUSA: John MacCoon & Guy Blackwell ATTY: Aubrey Harwell PTSO: Mary Ann Zwicknagel. deft remained on bond. (SEALED) (Entered: 01/23/2003)
172 PLEA AGREEMENT as to Truley Ponder (SEALED) (Entered: 01/23/2003)
173 CTRM MINUTES: before Honorable R Allan Edgar, guilty plea entered by Spencer Mabe to ct 1 , plea agreement reserved for defendant Spencer Mabe , ; sentencing hearing set for 5/12/03 for Spencer Mabe CR: Shannan Andrews CD: Kelli Brown AUSA: Guy Blackwell ATTY: Thomas Dillard PTSO: Mary Ann Zwicknagel. Deft remained on bond. (SEALED) (Entered: 01/23/2003)
174 PLEA AGREEMENT as to Spencer Mabe (SEALED) (Entered: 01/23/2003)
175 FACTUAL BASIS as to defendant Truley Ponder (SEALED) (Entered: 01/23/2003)
176 FACTUAL BASIS as to defendant Spencer Mabe (SEALED) (Entered: 01/23/2003)
168 TRANSCRIPT of rearraignment of deft Truley Ponder held on 1/17/03 before Judge R. Allan Edgar CR: Shannan Andrews (GRE) (Entered: 01/21/2003)
169 TRANSCRIPT of rearraignment of deft Spencer Mabe held on 1/17/03 before Judge R. Allan Edgar CR: Shannan Andrews (GRE) (Entered: 01/21/2003)
177 NOTICE of stipulation under oath regarding Tyson Foods' corporate

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01/21/2003 01/22/2003 01/22/2003 01/22/2003 01/23/2003 01/24/2003
01/24/2003 01/27/2003 01/27/2003 01/28/2003
01/28/2003 01/28/2003
01/29/2003 01/29/2003

Business records by USA C/S (GRE) (Entered: 01/24/2003)
178 MOTION for admission to practice pro hac vice by Atty Matthew C. Carter as to deft Robert Hash C/S (GRE) Modified on 01/24/2003 (Entered: 01/24/2003)
179 PROPOSED JURY INSTRUCTIONS by USA C/S (GRE) (Entered: 01/24/2003)
180 JURY INSTRUCTION regarding forefeiture by USA C/S (GRE) (Entered: 01/24/2003)
181 DEFENDANTS' PROPOSED JURY INSTRUCTIONS (GRE) (Entered: 01/24/2003)
182 MOTION to admit out of state counsel pro hac vice by Atty Jat T. Jorgensen as to deft Tyson Food, Inc. C/S (GRE) (Entered: 01/24/2003)
183 REPLY to defendants' opposition to the United States' motion in limine to preclude the playing at trial of certain portions of accidentally recorded private conversations of agents by USA C/S (GRE) (Entered: 01/24/2003)
184 SUPPLEMENTAL MEMORANDUM by plaintiff USA in opposition to [140-1] C/S (DJH) (Entered: 01/27/2003)
185 MOTION for hearing pursuant to rule 104, Federal Rules of Evidence by USA as to Tyson Food, Inc. C/S (DJH) (Entered: 01/27/2003)
RECEIPT # 20175 in amount of $60.00 for PHV as to Atty Matthew Carter. (GRE) (Entered: 01/30/2003)
186 ORDER by Mag Judge William B. Carter granting motion to admit out of state counsel pro hac vice by Atty Jat T. Jorgensen [182-1]: A Certificate of Good standing has been provided from the Clerk of the United States for the District of Utah. (cc: all counsel) (DJH) (Entered: 01/28/2003)
187 MEMORANDUM AND ORDER: by Honorable R Allan Edgar denying motion to Dismiss Based on Deprivation of Critical Evidence [86-1] (cc: all counsel) (DJH) (Entered: 01/28/2003)
188 DEFENDANTS' RESPONSE to the "Notice of Stipulation Under Oath Regarding Tyson Foods' Corporate Business Records" by Tyson Food, Inc., Gerald Lankford, Robert Hash, Keith Snyder C/S (GRE) (Entered: 01/30/2003)
189 REPLY of the United States to Defendants' Response to the "Notice of Stipulation Under Oath Regarding Tyson Foods' Corporate Business Records" by USA C/S (GRE) (Entered: 01/30/2003)
190 NOTICE of Filing Original Affidavit of Bryan Riley by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder. (Affidavit Attached) C/S (GRE) (Entered: 01/30/2003)

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01/30/2003 02/03/2003 02/03/2003 02/03/2003 02/04/2003
02/04/2003 02/04/2003
02/05/2003 02/06/2003
02/06/2003 02/06/2003

191 ORDER by Honorable R Allan Edgar granting motion for admission to practice pro hac vice by Atty Matthew C. Carter [178-1] (cc: all counsel) (GRE) (Entered: 01/31/2003)
192 MOTION to quash subpoenas by USA C/S (GRE) (Entered: 02/04/2003)
193 MOTION to compel production of confidential informant files and administrative files of confidential informants by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder C/S (GRE) (Entered: 02/04/2003)
194 MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder in support of motion to compel production of confidential informant files and administrative files of confidential informants [193-1] C/S (GRE) (Entered: 02/04/2003)
195 MEMORANDUM, OPINION AND ORDER: by Honorable R Allan Edgar denying motion in limine to exclude allegations of "cost savings" offered as evidence of forfeitable "proceeds" [137-1] denying motion in limine to exclude forfeiture evidence from trial [135-1] reserves ruling on the motion in limine to exclude the expert report supporting the government's forfeiture theory under Daubert [140-1] (cc: all counsel) (GRE) (Entered: 02/04/2003)
196 RESPONSE by USA regarding defendants' motion to compel production of confidential informant files and administrative files of confidential informants [193-1] C/S (GRE) (Entered: 02/04/2003)
197 CTRM MINUTES: before Honorable R Allan Edgar, 1st day of jury trial began. jurors selected & sworn. CR: Shannan Andrews CD: Kelli Brown AUSA: John MacCoon, Guy Blackwell, Matt Morris, Tammy Combs. ATTY: Tom Green, Mark Hopson, Roger Dickson, Frank Volpe, P.K. Holmes, Mattew Carter, Robert Adler, Paul Knight, Kenneth Shemin & Jennifer Hendren. Defts Robert Hash, Gerald Lankford & Keith Snyder remained on bond. (KFB) (Entered: 02/05/2003)
198 CTRM MINUTES: before Honorable R Allan Edgar, 2nd day of jury trial. Trial continued to 2/6/03. CR: Shannan Andrews CD: Kelli Brown. (KFB) (Entered: 02/05/2003)
199 CTRM MINUTES: before Honorable R Allan Edgar, 3rd day of jury trial. witnesses sworn & testimony given. Trial to resume Friday, 2/7/03 @ 9:00. CR: Shannan Andrews & Kim Nixon CD: Kelli Brown AUSA: John MacCoon, Matt Morris & Guy Blackwell. Atty Tom Green, Mark Hopson, P.K. Holmes, Kenneth Shemin, Jennifer Hendren, Matthew Carter, Robert Adler & Paul Knight. (KFB) (Entered: 02/06/2003)
200 Defendant Tyson Foods' trial memorandum #2: Admissibility of IRS Agent as "summary witness" by Tyson Food, Inc. C/S (GRE) (Entered: 02/06/2003)
201 MOTION requesting the court to designate special agent Greg Pierce an essential person under Fed. R. Evid. 615 subpart (3) by USA C/S (GRE)

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02/06/2003
02/07/2003
02/07/2003 02/10/2003 02/10/2003 02/10/2003 02/10/2003 02/10/2003 02/10/2003 02/10/2003 02/10/2003
02/11/2003
02/11/2003

(Entered: 02/06/2003)
202 MEMORANDUM by USA in support of United States' motion requesting the court to designate Special Agent Greg Pierce an essential person under Fed. R. Evid. 615 subpart (3) [201-1] C/S (GRE) (Entered: 02/06/2003)
203 CTRM MINUTES: before Honorable R Allan Edgar, 4th day of jury trial. Witnesses sworn & exhibits admitted. Trial to resume Tuesday, 2/11/03. CR: Shannan Andrews & Kim Nixon CD: Kelli Brown AUSA: John MacCoon, Morris & Guy Blackwell ATTY: Tom Green, Roger Dickson, Mark Hopson, Robert Adler, P.K. Holmes, Matthew Carter, Kenneth Shemin, Jennifer Hendren & Paul Knight. (KFB) (Entered: 02/07/2003)
204 RESPONSE by plaintiff USA regarding motion to compel [193-1] C/S (DMC) (Entered: 02/07/2003)
205 TRANSCRIPT of second day of trial (Morning) held on 2/5/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 02/10/2003)
206 TRANSCRIPT of second day of trial (afternoon) held on 2/5/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 02/10/2003)
207 TRANSCRIPT of third day of trial (morning) held on 2/6/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 02/10/2003)
208 TRANSCRIPT of third day of trial (afternoon) held on 2/6/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 02/10/2003)
209 TRANSCRIPT of fourth day of trial held on 2/7/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 02/10/2003)
210 TRANSCRIPT of fourth day of trial (afternoon) held on 2/7/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 02/10/2003)
211 Government's Brief Regarding the Admission of Statements of Alienage C/S (GRE) (Entered: 02/10/2003)
213 Defendants' Reply Memorandum in Support of Defendants' Motion to Compel Production of Confidential Informant Files and Administrative Files of Confidential Informants by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder C/S (GRE) (Entered: 02/12/2003)
212 CTRM MINUTES: before Honorable R Allan Edgar, 5th day of jury trial. Witnesses sworn & testimony given. Trial continued to 2/12/03 @ 9:00. CR: Shannan Andrews & Kim Nixon CD: Kelli Brown AUSA: John MacCoon, Guy Blackwell & Matt Morris ATTY: Tom Green, Roger Dickson, Mark Hopson, Frank Volpe, P.K. Holmes, Matt Carter, Robert Adler, Paul Knight, Kenneth Shemin & Jennifer Hendren. (KFB) (Entered: 02/11/2003)
214 TRIAL MEMORANDUM #3: Admissibility of alleged misconduct on the part of Miguel Nolasco by Tyson Food, Inc. C/S (GRE) (Entered:

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02/11/2003 02/12/2003
02/12/2003 02/12/2003 02/13/2003 02/13/2003 02/13/2003 02/13/2003 02/14/2003
02/18/2003
02/18/2003

02/12/2003)
215 MOTION to exclude hearsay evidence relating to Tyson's Sedalia, Missouri facility by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder C/S (GRE) (Entered: 02/12/2003)
216 MEMORANDUM, OPINION AND ORDER: by Honorable R Allan Edgar denying motion to compel production of confidential informant files and administrative files of confidential informants [193-1] granting motion to quash subpoenas [192-1] (cc: all counsel) (GRE) (Entered: 02/12/2003)
217 CTRM MINUTES: before Honorable R Allan Edgar, 6th day of jury trial. Trial continued until 2/13/03 @ 9:30. CR: Shannan Andrews & Kim Nixon CD: Kelli Brown. (KFB) Modified on 02/13/2003 (Entered: 02/12/2003)
218 DEFENDANT'S TRIAL MEMORANDUM regarding the casual hearsay statements of alleged aliens by Tyson Food, Inc. C/S (GRE) (Entered: 02/12/2003)
219 CTRM MINUTES: before Honorable R Allan Edgar, 7th day of jury trial. Witnesses sworn & exhibits entered. Trial cont until 2/14/03 @ 9:00. CR: Shannan Andrews & Kim Nixon; CD: Kelli Brown (KFB) (Entered: 02/13/2003)
220 Defendant Lankford's opposition to Government's Brief regarding the admission of statements of alienage C/S (GRE) (Entered: 02/14/2003)
221 MOTION to admit out of state counsel pro hac vice by Tyson Food, Inc. C/S (GRE) (Entered: 02/14/2003)
RECEIPT #20267 for $60.00 (PHV fee for Atty Griffith Lowell Green) (GRE) (Entered: 02/14/2003)
222 CTRM MINUTES: before Honorable R Allan Edgar, 8th day of jury trial. Witnesses sworn & exhibits admitted. Trial continued until Tuesday, February 18, 2003 @ 10:00. CR: Shannan Andrews, Kim Nixon & Elizabeth Coffey. CD: Kelli Brown AUSA: John MacCoon, Guy Blackwell & Matt Morris ATTY: Tom Green, Mark Hopson, Roger Dickson, P.K. Holmes, Matthew Carter, Robert Adler, Paul Knight, Kenneth Shemin & Jennifer Hendren. (KFB) (Entered: 02/14/2003)
223 CTRM MINUTES: before Honorable R Allan Edgar, day 9 of jury trial. Testimony given, witnesses sworn & exhibits admitted. CR Shannan Andrews & Kim Nixon CD: Kelli Brown AUSA: John MacCoon, Guy Blackwell & Matt Morris ATTY: Tom Green, Mark Hopson, Roger Dickson, P.K. Holmes, Mattthew Carter, Robert Adler, Paul Knight, Kenneth Shemin & Jennifer Hendren. (KFB) (Entered: 02/18/2003)
224 ORDER by Honorable R Allan Edgar granting motion to admit out of state counsel pro hac vice (Atty Griffith Lowell Green) [221-1] (cc: all counsel) (GRE) (Entered: 02/18/2003)

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02/19/2003
02/20/2003 02/21/2003 02/25/2003 03/04/2003
03/04/2003 03/05/2003 03/05/2003 03/06/2003 03/07/2003 03/07/2003

225 CTRM MINUTES: before Honorable R Allan Edgar, day 10 of jury trial. Testimony given & exhibits admitted. Trial continued until 2/20/03 @ 9:00. CR: Shannan Andrews & Kim Nixon CD: Kelli Brown AUSA: John MacCoon, Guy Blackwell & Matt Morris ATTY: Tom Green, Roger Dickson, Mark Hopson, P.K. Holmes, Matthew Carter, Robert Adler, Paul Knight, Kenneth Shemin & Jennifer Hendren. (KFB) (Entered: 02/19/2003)
226 CTRM MINUTES: before Honorable R Allan Edgar, day 11 of jury trial. Testimony & exhibits admitted. Trial continued until 2/21/03 @ 9:00. CR: Shannan Andrews & Kim Nixon, CD: Kelli Brown (KFB) (Entered: 02/20/2003)
227 CTRM MINUTES: before Honorable R Allan Edgar, day 12 of jury trial. Witnesses sworn & exhibits admitted. Trial continued to Tuesday, March 4, 2003 @ 9:00. CR: Shannan Andrews & Kim Nixon CD: Kelli Brown Interprtr: Margaret Redd, sworn (KFB) (Entered: 02/21/2003)
231 SUBPOENA executed as to Dr. Lana Beavers (GRE) (Entered: 03/06/2003)
228 CTRM MINUTES: before Honorable R Allan Edgar, day 13 of jury trial not held due to jury members not present due to illness. Juror #256 dismissed due to illness of family member. Trial adjourned until 3/5/03 @ 9:00. CR: Shannan Andrews & CD: Kelli Brown AUSA: John MacCoon, Guy Blackwell ATTY: Tom Green, Roger Dickson, Mark Hopson, P.K. Holmes, Matthew Carter, Robert Adler, Paul Knight, Kenneth Shemin & Jennifer Hendren. (KFB) (Entered: 03/05/2003)
232 SUPPLEMENTAL PROPOSED JURY INSTRUCTIONS by USA C/S (GRE) (Entered: 03/06/2003)
229 CTRM MINUTES: before Honorable R Allan Edgar, day 14 of jury trial. Evidence presented & witnesses sworn. Trial cont'd to 3/6/03 @ 9:00. CR: Shannan Andrews & Kim Nixon CD: Kelli Brown. (KFB) (Entered: 03/06/2003)
233 TRIAL MEMORANDUM regarding instructions on count one by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder C/S (GRE) (Entered: 03/06/2003)
230 CTRM MINUTES: before Honorable R Allan Edgar, day 15 of jury trial. Exhibits admitted & witnesses sworn. Trial cont'd to 3/7/03 @ 9:00. CR: Shannan Andrews & Kim Nixon CD: Kelli Brown. (KFB) (Entered: 03/06/2003)
234 CTRM MINUTES: before Honorable R Allan Edgar, 16th day of jury trial. Witnesses sworn & testimony given. Trial to continue on 3/11/03 @ 9:00. CR: Shannan Andrews & Kim Nixon CD: Kelli Brown (KFB) Modified on 03/12/2003 (Entered: 03/07/2003)
235 MOTION to dismiss conspiracy to aid and abet alleged in count 1 by USA as to Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith

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03/07/2003 03/10/2003 03/10/2003 03/11/2003 03/12/2003 03/12/2003
03/13/2003
03/14/2003 03/14/2003 03/17/2003 03/17/2003 03/18/2003 03/19/2003 03/19/2003

Snyder C/S (GRE) (Entered: 03/07/2003)
237 SUPPLEMENTAL TRIAL MEMORANDUM Regarding Instructions on Count One by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder C/S (GRE) (Entered: 03/11/2003)
238 MOTION for reconsideration of Court's evidentiary ruling on admissibility of documentay evidence by USA C/S (GRE) (Entered: 03/11/2003)
239 MOTION to exclude tape evidence disclosed by defendant Keith Snyder by USA C/S (GRE) (Entered: 03/11/2003)
236 CTRM MINUTES: before Honorable R Allan Edgar, 17th day of trial. Witnesses sworn & exhibits admitted. Trial continued until 3/12/03 @ 9:00. (KFB) Modified on 03/12/2003 (Entered: 03/11/2003)
240 CTRM MINUTES: before Honorable R Allan Edgar, 18th day of trial. Witnesses sworn & testimony given. Trial continued until 3/13/03 @ 9:00. (KFB) Modified on 03/12/2003 (Entered: 03/12/2003)
241 PROPOSED CHANGES TO THE COURT"S DRAFT JURY INSTRUCTION ON COUNT ONE: CONSPIRACY by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder C/S (GRE) (Entered: 03/13/2003)
242 CTRM MINUTES: before Honorable R Allan Edgar, 19th day of trial. Witnesses sworn & exhibits admitted. Govt concluded case. Motion hearing held. Trial continued to 3/14/03 @ 9:00. (KFB) Modified on 03/14/2003 (Entered: 03/13/2003)
243 CTRM MINUTES: before Honorable R Allan Edgar, introduction of evidence for defense began. Witnesses sworn & exhbits admitted. Trial continued to Tuesday, 3/18/03 @ 9:00. (KFB) (Entered: 03/14/2003)
244 ORDER by Honorable R Allan Edgar granting motion to dismiss conspiracy to aid and abet alleged in count 1 [235-1] as to all defendants (cc: all counsel) (GRE) (Entered: 03/14/2003)
245 MEMORANDUM of law in support of motion for judgment of acquttal as to counts 3-12 and 14-20 by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder in support of C/S (GRE) (Entered: 03/18/2003)
247 RESPONSE to motion to exclude tape evidence by Keith Snyder regarding [239-1] C/S (GRE) (Entered: 03/18/2003)
246 CTRM MINUTES: before Honorable R Allan Edgar, 21st day of trial. Witnesses sworn & testimony given. Trial cont'd to 3/19/03 @ 9:00. (KFB) (Entered: 03/18/2003)
248 CTRM MINUTES: before Honorable R Allan Edgar, 22nd day of trial. Witnesse sworn & exhibits admitted. Trial cont'd to 3/20/03 @ 9:00. (KFB) (Entered: 03/19/2003)
249 Memorandum concerning the interchangeability of charging as principal

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03/19/2003 03/20/2003
03/20/2003 03/20/2003 03/20/2003 03/20/2003 03/21/2003 03/21/2003 03/21/2003 03/21/2003 03/21/2003 03/21/2003 03/21/2003
03/21/2003

and accessory by USA C/S (GRE) (Entered: 03/19/2003)
250 MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder in support of motions of acquittal on counts 16-18 & 21-22 C/S (GRE) (Entered: 03/20/2003)
251 RESPONSE to the Government's memorandum concerning the interchangeability of charging as principal and accessory by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder C/S (GRE) (Entered: 03/20/2003)
252 Defefndant's supplemental memorandum in support of motions for judgment of acquittal based on alienage by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder C/S (GRE) (Entered: 03/20/2003)
253 CTRM MINUTES: before Honorable R Allan Edgar, 23rd day of trial. Witnesses sworn & exhibits admitted. Trial cont'd to 3/21/03 @ 9:00. (KFB) (Entered: 03/20/2003)
254 RESPONSE to defendants' motions for judgments of acquittal by USA C/S (GRE) (Entered: 03/20/2003)
255 TRIAL MEMORANDUM regarding admissibility for prior conviction by Tyson Food, Inc. C/S (GRE) (Entered: 03/21/2003)
256 MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder in support of defendants' motion to strike forfeiture claim. C/S (GRE) (Entered: 03/21/2003)
257 REPLY to the government's factual assertions on the issue of alienage by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder C/S (GRE) (Entered: 03/21/2003)
258 CTRM MINUTES: before Honorable R Allan Edgar, 24th day of trial. Defense concludes case. Trial continued to Tuesday, 3/25/03 @ 9:00. (KFB) (Entered: 03/21/2003)
259 United States' amended summary of evidence regarding alienage for individuals listed on the indictment C/S (GRE) (Entered: 03/24/2003)
260 MOTION to reconsider rule 29 ruling and submit counts to jury for verdict by USA C/S (GRE) (Entered: 03/24/2003)
261 MEMORANDUM by USA in support of motion to vacate and reserve rule 29 ruling [260-1] C/S (GRE) (Entered: 03/24/2003)
262 MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder in support of defendants' motion for judgment of acquital on count one as to the alleged conspiracy to cause illegal aliens to be brought to the United States to be transported C/S (GRE) (Entered: 03/24/2003)
263 United States' argument regarding the court's proposed jury instruction on corporate liability C/S (GRE) (Entered: 03/24/2003)

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03/21/2003
03/24/2003 03/24/2003
03/25/2003 03/25/2003
03/26/2003
03/26/2003 03/26/2003 03/26/2003 03/26/2003 03/26/2003 03/27/2003 03/27/2003

264 ORDER by Honorable R Allan Edgar dismissing counts as to Tyson Food, Inc. (1) count(s) 3-12, 14 -15 , 19 -20 , 23 . Dismissed , Robert Hash (2) count(s) 3-12, 14 -15 , 19 -20 , 23 . Dismissed , Gerald Lankford (3) count(s) 3-12, 14 -15 , 19 -20 , 23 . Dismissed , Keith Snyder (4) count(s) 3-12, 14 -15 , 19 -20 , 23 . Dismissed , dismissing counts as to Robert Hash (2) count(s) 16-18, 21 -22 . Dismissed , dismissing counts as to Keith Snyder (4) count(s) 1, 27 -31 . Dismissed (cc: all counsel) (GRE) (Entered: 03/24/2003)
265 MOTION to exclude the government's untimely restatement of its foreiture theory by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder C/S (GRE) (Entered: 03/24/2003)
266 MEMORANDUM by Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder in support of motion to exclude the government's untimely restatement of its forfeiture statement [265-1] C/S (GRE) (Entered: 03/24/2003)
267 RESPONSE by USA regarding motion to exclude the government's untimely restatement of its forfeiture theory [265-1] C/S (GRE) (Entered: 03/25/2003)
268 CTRM MINUTES: before Honorable R Allan Edgar, 25th day of trial. Rebuttal evidence. Motion for acquittal by deft -DENIED. Charge conference held. Closing arguments held. Jury charged. 3 alternates dismissed after charge read by court. Jury deliberated for 20 minutes then dismissed for the evening. Deliberations to continue on 3/26/03 @ 9:00. (KFB) (Entered: 03/28/2003)
269 CTRM MINUTES: before Honorable R Allan Edgar finding , Tyson Food, Inc. (1) count(s) 1, 2, 27-31, 16-18, 21-22, Robert Hash (2) count (s) 1, 2, 27-31, Gerald Lankford (3) count(s) 1, 2, 27-31, 16-18, Keith Snyder (4) count(s) 2 not guilty CR: Shannan Andrews CD: Kelli Brown AUSA: John MacCoon, Guy Blackwell, Matt Morris; ATTY: Tom Green, Mark Hopson, Roger Dickson, P.K. Holmes, Matthew Carter, Robert Adler, Paul Knight, Ken Shemin, Jennifer Hendren. (KFB) (Entered: 03/28/2003)
270 JURY TRIAL EXHIBIT/WITNESS LIST (KFB) (Entered: 03/28/2003)
271 VERDICT as to Tyson Food, Inc. (KFB) (Entered: 03/28/2003)
272 VERDICT as to Keith Snyder (KFB) (Entered: 03/28/2003)
273 VERDICT as to Robert Hash (KFB) (Entered: 03/28/2003)
274 VERDICT as to Gerald Lankford (KFB) (Entered: 03/28/2003)
275 EXHIBIT WITHDRAWAL by USA (KFB) (Entered: 03/28/2003)
276 ORDER by Honorable R Allan Edgar for judgment of acquittal as to Tyson Food, Inc., Robert Hash, Gerald Lankford, Keith Snyder. Defendants having been found not guilty, IT IS ORDERED that they are acquitted, discharged, and any bond be exonerated. (cc: all counsel)

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03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003

(GRE) (Entered: 03/28/2003)
277 TRANSCRIPT of 5th day of trial (AM session) held on 2/11/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 03/31/2003)
278 TRANSCRIPT of 5th day of trial (PM session) held on 2/11/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 03/31/2003)
279 TRANSCRIPT of 6th day of trial (AM session) held on 2/12/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 03/31/2003)
280 TRANSCRIPT of 6th day of trial (PM session) held on 2/12/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 03/31/2003)
282 TRANSCRIPT of 7th day of trial (AM session) held on 2/13/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 03/31/2003)
283 TRANSCRIPT of 7th day of trial (PM session) held on 3/13/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 03/31/2003)
284 TRANSCRIPT of 8th day of trial (AM session) held on 2/14/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 03/31/2003)
285 TRANSCRIPT of 8th day of trial (PM session) held on 2/14/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 03/31/2003)
286 TRANSCRIPT of 9th day of trial (AM session) held on 2/18/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/01/2003)
287 TRANSCRIPT of 9th day of trial (PM session) held on 2/18/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/01/2003)
288 TRANSCRIPT of 10th day of trial (AM session) held on 2/19/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/01/2003)
289 TRANSCRIPT of 10th day of trial (PM session) held on 2/19/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/01/2003)
290 TRANSCRIPT of 11th day of trial (AM session) held on 2/20/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/01/2003)
291 TRANSCRIPT of 11th day of trial (PM session) held on 3/20/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/01/2003)
292 TRANSCRIPT of 12th day of trial (AM session) held on 2/21/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/01/2003)
293 TRANSCRIPT of 12th day of trial held on 2/21/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/01/2003)
294 TRANSCRIPT of 13th day of trial held on 3/4/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)
295 TRANSCRIPT of 14th day of trial (AM session) held on 3/5/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)

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03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003

296 TRANSCRIPT of 14th day of trial (PM session) held on 3/5/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)
297 TRANSCRIPT of 15th day of trial (AM session) held on 3/6/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)
298 TRANSCRIPT of 15th day of trial (PM session) held on 3/6/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)
299 TRANSCRIPT of 16th day of trial (AM session) held on 3/7/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)
300 TRANSCRIPT of 16th day (PM session) held on 3/7/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)
301 TRANSCRIPT of 7th day of trial (AM session) held on 3/11/03 before Judge Edgar CR: Shanann Andrews (GRE) (Entered: 04/02/2003)
302 TRANSCRIPT of 17th day of trial (PM session) held on 3/11/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)
303 TRANSCRIPT of 18th day of trial (AM session) held on 3/12/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)
304 TRANSCRIPT of 18th day of trial (PM session) held on 3/12/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)
305 TRANSCRIPT of 19th day of trial (AM session) held on 3/28/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)
306 TRANSCRIPT of 19th day of trial (PM session) held on 3/13/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)
307 TRANSCRIPT of 20th day of trial (AM session) held on 3/14/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)
308 TRANSCRIPT of 20th day of trial (PM session) held on 3/14/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)
309 TRANSCRIPT of 21st day of trial (AM session) held on 3/18/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)
310 TRANSCRIPT of 21st day of trial (PM session) held on 3/18/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)
311 TRANSCRIPT of 22nd day of trial (AM session) held on 3/19/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)
312 TRANSCRIPT of 22nd day of trial (PM session) held on 3/19/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)
313 TRANSCRIPT of 23rd day of trial (AM session) held on 3/20/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)
314 TRANSCRIPT of 23rd day of trial (PM session) held on 3/20/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)

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03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/28/2003 03/31/2003 03/31/2003 04/24/2003 05/08/2003 05/12/2003
05/12/2003
05/12/2003 05/12/2003 05/12/2003

315 TRANSCRIPT of 24th day of trial (AM session) held on 3/28/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)
316 TRANSCRIPT of 24th day of trial (PM session) held on 3/21/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)
317 TRANSCRIPT of 25th day of trial (AM session) held on 3/25/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)
318 TRANSCRIPT of 25th day of trial (PM session) held on 3/25/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)
319 TRANSCRIPT of 26th day of trial (PM session) held on 3/26/03 before Judge Edgar CR: Shannan Andrews (GRE) (Entered: 04/02/2003)
281 EXHIBIT WITHDRAWAL by Tyson Food, Inc. (KFB) (Entered: 03/31/2003)
320 MOTION for downward departure by USA as to Spencer Mabe C/S (GRE) (Entered: 04/02/2003)
321 MOTION for downward departure by USA as to Truley Ponder C/S (GRE) (Entered: 04/28/2003)
322 Sentencing Memorandum by Spencer Mabe C/S (GRE) (Entered: 05/12/2003)
323 CTRM MINUTES: before Honorable R Allan Edgar guilty plea entered by defendant Truley Ponder , sentencing hearing held on 5/12/03 , sentencing Truley Ponder (5) count(s) 1. Deft placed on probation for a term of one year. Fine: $3,000.00 Special Assessment: $100.00 , dismissing counts as to Truley Ponder (5) count(s) 2, 3 -12 , 14 -20 , 21 23 , 27 -31 . Dismissed , terminating party Truley Ponder CR: Shannan Andrews CD: Kelli Brown AUSA: John MacCoon and Guy Blackwell ATTY: Aubrey Harwell, Jr. USPO: Gary Turney (GRE) (Entered: 05/13/2003)
324 CTRM MINUTES: before Honorable R Allan Edgar guilty plea entered by defendant Spencer Mabe , sentencing hearing held on 5/12/03 , sentencing Spencer Mabe (6) count(s) 1. Deft placed on probation for one year. Fine: $2,000.00 Special Assessment: $100.00 , dismissing counts as to Spencer Mabe (6) count(s) 2, 3 -12 , 14 -20 , 21 -23 , 27 -31 . Dismissed , terminating party Spencer Mabe , case terminated CR: Shannan Andrews CD: Kelli Brown AUSA: John MacCoon and Guy Blackwell ATTY: Tom Dillard USPO: Gary Turney (GRE) (Entered: 05/13/2003)
325 MOTION to dismiss all remaining counts by USA as to Spencer Mabe C/S (GRE) (Entered: 05/13/2003)
326 MOTION to dismiss all remaining counts by USA as to Truley Ponder C/S (GRE) (Entered: 05/13/2003)
327 ORDER by Honorable R Allan Edgar granting motion to dismiss all

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 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0165P (6th Cir.) File Name: 04a0165p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

BIRDA TROLLINGER; ROBERT X

MARTINEZ; TABETHA

-

EDDINGS and DORIS JEWELL, -

Plaintiffs-Appellants, -
>

,

v.

-

-

TYSON FOODS, INC.,

-

Defendant-Appellee. -

N

No. 02-6020

Appeal from the United States District Court for the Eastern District of Tennessee at Winchester. No. 02-00023—R. Allan Edgar, Chief District Judge.

Argued: December 11, 2003

Decided and Filed: June 3, 2004

Before: BATCHELDER and SUTTON, Circuit Judges; BELL, Chief District Judge.*

*
The Honorable Robert Holmes Bell, Chief United States District Judge for the Western District of Michigan, sitting by designation.
1

2 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
_________________
COUNSEL
ARGUED: Howard W. Foster, JOHNSON & BELL, Chicago, Illinois, for Appellants. Virginia A. Seitz, SIDLEY, AUSTIN, BROWN & WOOD, Washington, D.C., for Appellee. ON BRIEF: Howard W. Foster, JOHNSON & BELL, Chicago, Illinois, for Appellants. Virginia A. Seitz, Mark D. Hopson, Griffith L. Green, SIDLEY, AUSTIN, BROWN & WOOD, Washington, D.C., Christopher H. Steger, MILLER & MARTIN, Chattanooga, Tennessee, for Appellee.
_________________
OPINION _________________
SUTTON, Circuit Judge. At issue in this case is an application of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., to a wage-related dispute between Tyson Foods, Inc. and four of its employees. On behalf of themselves and a putative class of similarly-situated workers, the four employees allege that Tyson violated RICO by engaging in a scheme with several employment agencies to depress the wages of Tyson’s hourly employees by hiring illegal immigrants.
Soon after the action was filed, Tyson moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction, arguing that the National Labor Relations Act preempts the employees’ RICO claims under the labor-preemption doctrine articulated in San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959). Tyson also moved to dismiss the complaint under Rule 12(b)(6) for failure to state a claim, arguing (1) that plaintiffs lack statutory standing under RICO to pursue this case because any injury they suffered was derivative of an injury

No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 3
to their union, which served as plaintiffs’ exclusive representative in negotiating wages, and (2) that Tyson’s alleged misconduct did not proximately cause an injury to plaintiffs. The district court granted the Rule 12(b)(6) motion, denied the Rule 12(b)(1) motion, and dismissed the case with prejudice. Because we reject the application of Garmon preemption in this context and because we cannot say at this early stage in the case that the allegations in the complaint are insufficient as a matter of law to establish statutory standing, we reverse the district court’s judgment.
I.
One of the nation’s largest poultry processors, Tyson Foods, Inc. employs more than 120,000 workers. Tyson’s headquarters are in Springdale, Arkansas, and it has processing plants throughout the country. One of Tyson’s plants is located in Shelbyville, Tennessee, a town of 15,000 people in middle Tennessee, approximately 50 miles southeast of Nashville.
In December 2001, a federal grand jury returned a 36-count indictment against Tyson and several individuals. In general, the indictment charged Tyson and the individuals with conspiring to smuggle illegal aliens into the United States across its southern border and employing them at 15 of Tyson’s processing plants in nine different States. In addition to a conspiracy to violate the immigration laws in violation of 18 U.S.C. § 371, the indictment charged the defendants with causing illegal aliens to be brought into the country, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2; causing illegal aliens to be transported, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (a)(1)(B)(i), and 18 U.S.C. § 2; causing the use of illegal documents, in violation of 18 U.S.C. §§ 1546(b) and 2; and causing the possession of fraudulent documents by illegal aliens, in violation of 18 U.S.C. §§ 1546(a) and 2.

4 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
In April 2002, soon after the indictment was filed, Birda Trollinger, Robert Martinez, Tabetha Eddings and Doris Jewell—former hourly workers at Tyson’s Shelbyville facility who were legally employed by Tyson—filed this civil RICO action against Tyson based on some of the same allegedly illegal activities underlying the criminal indictment. The amended complaint alleges that Tyson engaged in a scheme to depress the wages paid to its hourly employees by knowingly hiring undocumented illegal immigrants who were willing to work for wages well below those paid in labor markets composed of only United States citizens. Assisting Tyson in this scheme was a network of recruiters and temporary employment agencies that would transport the illegal workers to the United States, obtain housing for them and provide them with false identification documents. As a result of the scheme, the complaint alleges, over half of the workers at 15 of Tyson’s facilities are illegal immigrants, allowing Tyson to pay its legal employees wages substantially below the wage level paid by other employers of unskilled labor in the areas surrounding the 15 facilities. Plaintiffs seek injunctive relief along with treble damages.
On May 24, 2002, Tyson moved to dismiss the complaint on two grounds, each hinging in part on the role of a union in negotiating employee wages. Tyson first moved to dismiss under Rule 12(b)(6) for failure to state a claim, arguing that the employees could not satisfy RICO’s statutory-standing or proximate-cause requirements, see Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258 (1992), because the union negotiated and agreed to the wage scale contained in the collective bargaining agreement and because this intervening factor made any damages to the employees speculative. If anyone has a RICO claim, Tyson argued, it would be the union, not the employees. Tyson also moved to dismiss the complaint under Rule 12(b)(1) for lack of subject-matter jurisdiction, arguing that the employees’ RICO claims fall within the primary (and exclusive) jurisdiction of the National Labor Relations Board under San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959). Attached to

No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 5
Tyson’s Rule 12(b)(1) motion were two collective bargaining agreements between Tyson and the Retail, Wholesale and Department Store Union, AFL-CIO establishing the terms and conditions of employment for Tyson’s hourly workers at the Shelbyville plant.
On July 16, 2002, the district court granted Tyson’s Rule 12(b)(6) motion, denied the Rule 12(b)(1) motion and dismissed the action with prejudice. Plaintiffs failed to state a claim, the district court held, because they could not establish “a ‘direct relation between the injury asserted and the injurious conduct alleged.’” D. Ct. Op. at 5 (quoting Holmes, 503 U.S. at 268). “As the wage rates were the product of collective bargaining,” the court explained, “plaintiffs cannot demonstrate that those rates were ultimately depressed by the presence of alleged illegal aliens in the work force.” Id. at 6. The court further reasoned that “plaintiffs’ wages could have been affected by [the wages] other employers paid, the availability of workers, the profitability of the defendant’s businesses, and other factors that influence any labor market,” and thus “the conclusion that Tyson’s hiring of alleged illegal aliens depressed the plaintiffs’ wages would require sheer speculation.” Id.
Having granted the Rule 12(b)(6) motion, the court denied the Rule 12(b)(1) motion. In its view, the question whether the National Labor Relations Act preempted plaintiffs’ RICO claims was “somewhat murky” and the court was “not prepared to say at [that] time that it lack[ed] subject matter jurisdiction.” D. Ct. Op. at 7.
In dismissing plaintiffs’ complaint for failure to state a claim, the district court acknowledged that it had relied on the existence of the union and the collective bargaining agreements negotiated by the union, even though plaintiffs had not specifically mentioned these facts in their complaint. Yet this omission posed no obstacle to dismissing the case, the court held, because the collective bargaining agreements were “properly raised” and “considered” in connection with

6 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
Tyson’s Rule 12(b)(1) motion and because “[t]heir existence may be judicially noticed” in connection with Tyson’s Rule 12(b)(6) motion. D. Ct. Op. at 7.
Plaintiffs appeal the judgment, which we review de novo. See Rossborough Mfg. Co. v. Trimble, 301 F.3d 482, 489 (6th Cir. 2002).
II.
We begin, as we must, by asking whether the district court had jurisdiction to hear this case. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101 (1998). Plaintiffs allege that Tyson violated a federal law (RICO), which customarily gives rise to federal-question jurisdiction under 28 U.S.C. § 1331. Invoking the doctrine of “Garmon preemption,” however, Tyson argues that the National Labor Relations Act “preempts” plaintiffs’ wage-related RICO claims and that as a result the district court lacked subjectmatter jurisdiction to hear them. We disagree.
The use of the term “preemption” in this setting, as an initial observation, has a dissonant ring to it. To say that federal courts lack jurisdiction to hear a claim under one federal act (RICO) because it is “preempted” by another federal act (the National Labor Relations Act) is not a natural use of the term “preemption.” As federal courts generally use the term, preemption does not describe the effect of one federal law upon another; it refers to the supremacy of federal law over state law when Congress, acting within its enumerated powers, intends one to displace the other. See U.S. Const. art. VI, cl. 2 (“[T]he Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws or any State to the Contrary notwithstanding.”). Preemption, moreover, does not normally concern the subject-matter jurisdiction of a court to hear a claim, which is what is relevant to the resolution of a Rule 12(b)(1) motion. Rather, the doctrine generally concerns the

No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 7
merits of the claim itself—namely, whether it is viable and which sovereign’s law will govern its resolution. That is why litigants typically invoke preemption as a defense to state-law claims asserted in state or federal court, not as a jurisdictional defect.
As these observations suggest, Garmon is more than a preemption doctrine. “When an activity is arguably subject to § 7 or § 8 of the [National Labor Relations] Act,” Garmon holds that “the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.” Garmon, 359 U.S. at 245. Sections 7 and 8 of the National Labor Relations Act protect certain labor practices (such as organizing or joining a labor union, bargaining collectively, and engaging in concerted activity, or refraining from engaging in any of these activities) and prohibit certain others (such as interfering with a protected activity or coercing employees to join a union). In establishing the Garmon doctrine, two concerns motivated the Supreme Court: (1) “the expressed congressional desire for uniformity in the nation’s labor policy” and (2) the desire “to make use of the Board’s expertise in the area of labor relations.” Northwestern Ohio Adm’r, Inc. v. Walcher & Fox, Inc., 270 F.3d 1018, 1027 (6th Cir. 2001).
Garmon is more than a traditional preemption doctrine, then, because when properly invoked it tells us not just what law applies (federal law, not state law) but who applies it (the National Labor Relations Board, not the state courts or federal district courts). See Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 199–200 & n.29 (1978) (distinguishing between the “constitutional” component of the Garmon doctrine (rooted in “[c]onsiderations of federal supremacy”) and the “primary jurisdiction” component of the Garmon doctrine (rooted in the exclusive competence of an expert federal agency)); id. (distinguishing between the administrative law doctrine of “primary jurisdiction” (which is a matter of abstention) and

8 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
Garmon’s use of the term (which has jurisdictional consequences)).
“As a general rule,” Garmon establishes that “federal courts do not have jurisdiction over activity which is ‘arguably subject to § 7 or § 8 of the [NLRA],’ and they ‘must defer to the exclusive competence of the National Labor Relations Board.’” Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 83 (1982) (quoting Garmon, 359 U.S. at 245) (emphasis added). Under the doctrine, as a result, a federal district court does not have jurisdiction to determine whether an employer violates the NLRA by refusing to make contributions to a pension plan during contract negotiations, which is arguably an unfair labor practice. Laborers Health & Welfare Trust Fund v. Advanced Lightweight Concrete Co., 484 U.S. 539, 543 n.4, 549 (1988). Nor does a federal district court have jurisdiction to review a claim by employees that their union violated the NLRA by charging agency fees for nonrepresentational purposes, which also is arguably an unfair labor practice. Communications Workers of Am. v. Beck, 487 U.S. 735, 742–43 (1988); see also Breininger v. Sheet Metal Workers Int’l Ass’n Local Union No. 6, 493 U.S. 67, 74 (1989); Storey v. Local 327, Int’l Bhd. of Teamsters, 759 F.2d 517, 520 (6th Cir. 1985) (when Garmon applies, “neither state nor federal courts have subject matter jurisdiction”); id. at 522 (“Though state interference . . . was involved in Garmon, the Supreme Court made it clear that pre-emption applies to federal district courts as well.”).
Like many “general” rules, however, this one contains exceptions, the most important of which is that “federal courts may decide labor law questions that emerge as collateral issues in suits brought under independent federal remedies.” Connell Constr. Co. v. Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616, 626 (1975). Connell, for example, held that federal courts may decide labor-law questions that emerge as collateral issues in federal antitrust lawsuits even though such questions would normally fall within the exclusive jurisdiction of the NLRB under Garmon and even

No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 9
though state antitrust laws are nonetheless preempted under the same circumstances. Id. at 626, 635–36; see Beck, 487 U.S. at 743–44 (holding that a federal district court may decide whether an activity is an unfair labor practice under the NLRA when the matter is raised as a defense to a claim under an independent federal remedy over which the federal district courts do have jurisdiction); Kaiser Steel, 455 U.S. at 86 (same); Hardeman, 401 U.S. at 237–39 (holding that Congress “referred claims under the [Labor-Management Reporting and Disclosures Act], not to the NLRB, but to the federal courts,” even when the conduct at issue is also an arguably unfair labor practice); Serrano v. Jones & Laughlin Steel Co., 790 F.2d 1279, 1288 (6th Cir. 1986) (“Federal courts have jurisdiction under section 301 of the [LaborManagement Relations Act] over suits to enforce collective bargaining agreements . . . even when the employer’s conduct is arguably covered by section 7 or 8 [of the NLRA].”).
This exception to the Garmon doctrine for independent federal remedies takes its instruction from a cardinal principle of statutory construction: “When there are two [federal] acts upon the same subject, the rule is to give effect to both.” United States v. Borden Co., 308 U.S. 188, 198 (1939). “[A]bsent an intolerable conflict between the two statutes,” the Supreme Court has long been “unwilling to read the [later Act] as repealing any part of the [former Act].” Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 566–67 (1987); see, e.g., id. at 564 (“The fact that an injury otherwise compensable under the [Federal Employers’ Liability Act] was caused by conduct that may have been subject to arbitration under the [Railway Labor Act] does not deprive an employee of his opportunity to bring an FELA action for damages.”); Morton v. Mancari, 417 U.S. 535, 549–50 (1974).
Consistent with this principle of construction, federal district courts may enforce congressional remedies created by a different federal statute so long as the statute does not conflict with §§ 7 or 8 of the NLRA and so long as litigants

10 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
do not “circumvent the primary jurisdiction of the NLRB simply by casting statutory claims [under §§ 7 or 8 of the NLRA] as violations of [an independent federal law].” Beck, 487 U.S. at 743–44. The Supreme Court’s decision in Advanced Lightweight Concrete illustrates the distinction. Trustees of a pension plan filed a lawsuit under ERISA, alleging that the NLRA obligated an employer to make certain pension-plan contributions. The Court concluded that the employer’s failure to make post-contract contributions would be illegal, if at all, only by virtue of the NLRA because ERISA did not require the contributions at issue and because the NLRA arguably did. The exception to Garmon for independent federal remedies, the Supreme Court held, did not apply and accordingly the district court lacked jurisdiction over the case. 484 U.S. at 543 n.4, 549.
As applied to RICO and to the NLRA, these principles indicate that Garmon does not preclude federal courts from adjudicating a RICO action based upon conduct that is arguably protected or prohibited by the NLRA if under the circumstances (1) RICO operates as an independent federal remedy and (2) the labor questions in the case amount to no more than collateral issues. This test, it seems to us, will infrequently preclude a federal court from hearing RICO claims involving labor-related issues, and only two circumstances immediately come to mind in which a federal RICO claim would fail this test and in which Garmon would apply.
First, when a RICO action depends upon a predicate state law violation and the state law itself is preempted under Garmon, a federal RICO action will not lie because a statelaw-dependent remedy is not an independent federal remedy. See Baker v. IBP, Inc., 357 F.3d 685, 689 (7th Cir. 2004) (“If the predicates are state offenses that themselves would be preempted by Garmon, then invoking those laws indirectly through RICO” is still barred by Garmon.); see also 18 U.S.C. § 1961(1) (defining “racketeering activity” to include “any act or threat involving murder, kidnapping,

No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 11
gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance . . . , which is chargeable under State law and punishable by imprisonment for more than one year”). A RICO claim that depends on a Garmon-preempted state law would implicate Garmon’s concern for uniformity in the nation’s labor policy every bit as much as a pure-Garmon-preempted-state-law claim.
Second, when a RICO action depends upon a federal-law predicate offense and a violation of that predicate law may be found only if the defendant’s conduct violates the NLRA, the federal district courts lack jurisdiction under Garmon because the NLRA issues in the case would be anything but collateral. A litigant may not “cast[] statutory claims” under the NLRA as violations of RICO, and a claim that depends entirely upon the ability to prosecute and prove a violation of the NLRA would represent nothing more than an NLRA claim masquerading as a RICO one. See Tamburello v. Comm-Tract Corp., 67 F.3d 973, 979 (1st Cir. 1995) (“Because plaintiff’s claim hinges upon a determination of whether an unfair labor practice has occurred, we conclude that his RICO claims are subject to the primary jurisdiction of the NLRB.”); Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 662 (7th Cir. 1992) (holding that the NLRA preempts a RICO claim when “the underlying conduct of the plaintiffs’ RICO claim is wrongful only by virtue of the labor laws”).
Measured by these requirements, Tyson’s argument that the district court lacked jurisdiction over this claim falls short. Even assuming for the sake of argument that hiring illegal aliens for the purpose of depressing employee wages is arguably protected or prohibited by the NLRA, Garmon poses no obstacle to the RICO claims in this case or to the district court’s jurisdiction in this case.
For one, plaintiffs do not rely upon any state law predicates, let alone any Garmon-preempted state law predicates, so Tyson has no basis for invoking Garmon on that ground. For

12 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
another, plaintiffs do not need to prove a violation of the NLRA in order to establish violations of the federal-law predicate upon which they rely—§ 274 of the Immigration and Nationality Act (codified at 8 U.S.C. § 1324). See 18 U.S.C. § 1961(1)(F) (making “any act indictable under . . . section 274 (relating to bringing in and harboring certain aliens)” a RICO predicate act if “committed for the purpose of financial gain”).
Congress added § 274 to RICO’s list of predicate offenses in 1996, see Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 433, 110 Stat. 214, and the provision makes it a crime to hire more than ten illegal aliens in any one-year period “with actual knowledge that the individuals are [illegal] aliens.” 8 U.S.C. § 1324(a)(3)(A). It is difficult to see the relevance to this claim, let alone the necessity, of plaintiffs’ proving that hiring illegal aliens is protected or prohibited conduct under the NLRA. If this activity amounted to protected conduct, the NLRA might provide a defense on the merits of the RICO claim for Tyson, but that would be a collateral issue well within the federal courts’ competence to decide. If the activity amounted to prohibited conduct, plaintiffs’ union could bring a complaint before the National Labor Relations Board under the NLRA, but that does not alter the fact that plaintiffs may independently prove a violation of the INA as incorporated by RICO without raising a single NLRA issue and without requiring the district court to interpret the NLRA. In the absence of a federal cause of action that requires the district court in the first instance to interpret the NLRA, it is difficult to see how Garmon is implicated in general or how the primary-jurisdiction concern that amplifies this aspect of the Garmon doctrine is implicated in particular. Garmon, in short, does not reach the RICO claims in this case.
In so holding, we are in good company, as this result accords with a recent decision by the Seventh Circuit involving a RICO claim based on the same alleged predicate offense and based on comparable factual allegations. See

No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 13
Baker, 357 F.3d at 688–90. “When the predicate offenses of a particular claim under RICO are federal crimes other than transgressions of the labor laws,” Baker holds, “no dispute falls within the [NLRB’s] primary jurisdiction, even if labor relations turn out to be implicated in some other fashion.” Id. at 689.
III.
While the district court had jurisdiction to hear this case, it remains to be seen whether the complaint states a claim upon which relief may be granted. The district court answered that question in the negative and dismissed the case for lack of statutory standing because, in its view, plaintiffs neither alleged a sufficiently direct injury nor advanced a sufficiently plausible theory of damages. At this early stage of the case, we disagree.
A.
RICO’s civil-suit provision grants “[a]ny person injured in his business or property by reason of a violation of” RICO’s substantive provisions the right to “sue [] in any appropriate United States district court” and to “recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee.” 18 U.S.C. § 1964(c). Because Congress modeled this provision on similar language in the antitrust laws (§ 4 of the Clayton Act and § 7 the Sherman Act) and because the antitrust laws have been interpreted to require that a private plaintiff show proximate cause in order to have standing to sue, RICO civil claims also require proximate cause. See Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 267–68 (1992); see Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985) (A RICO plaintiff “[1] only has standing if, and [2] can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation.”).

14 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
Like the antitrust laws, RICO’s civil-suit provision imposes two distinct but overlapping limitations on claimants— standing and proximate cause. Standing poses a threshold question involving constitutional, prudential and (as in this case) statutory limitations on who may sue, regardless of the merits of that person’s claim. See Allen v. Wright, 468 U.S. 737, 750–51 (1984) (“In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.”) (quotation omitted). Proximate cause poses a merits question involving common-law and prudential limitations on the consequences for which the law will hold a defendant accountable, regardless of the plaintiff’s standing to sue. See Holmes, 503 U.S. at 268.
To illustrate the difference between the two limitations, consider a plaintiff who files a negligence claim. It would be odd to say that the plaintiff lacks standing because of an intervening cause or because the harm to the plaintiff was not reasonably foreseeable; the plaintiff may lose on the merits as a matter of law for lack of proximate cause, but the injured plaintiff would have the right to file a lawsuit. If, by contrast, the same plaintiff is a shareholder of a corporation and wants to sue the corporation’s accountant for negligence because the accountant’s conduct destroyed the value of the plaintiff’s stock, it would not be odd at all to say that the plaintiff lacks standing, regardless of the merits of the dispute; the injury would be derivative of the injury suffered by the corporation, and the plaintiff would have no right even to file a lawsuit. See Gaff v. FDIC, 814 F.2d 311, 317 (6th Cir. 1987) (“[A] shareholder does not have standing to bring a direct cause of action under federal law when the only damage alleged is the diminution in the value of the corporate shares.”).
But the two concepts overlap and that is particularly true in the context of civil RICO claims. As a general matter, they overlap because a plaintiff who lacks standing to vindicate a derivative injury also will be unable to show proximate cause. And as a matter of RICO law, the two concepts overlap

No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 15
because they both grow out of the “by reason of” limitation in RICO—namely, the requirement that claimants establish that their injury was “by reason of” a RICO predicate act violation. The “by reason of” limitation, in other words, bundles together a variety of “judicial tools,” some of which are traditionally employed to decide causation questions and some of which are employed to decide standing questions. Holmes, 503 U.S. at 268 (“Here we use ‘proximate cause’ to label generically the judicial tools used to limit a person’s responsibility for the consequences of that person’s own acts. At bottom, the notion of proximate cause reflects ideas of what justice demands, or of what is administratively possible and convenient.”) (quotation omitted); see Associated Gen. Contractors, Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 532–33 (1983) (“Congress simply assumed that antitrust damages litigation would be subject to constraints comparable to well-accepted common-law rules applied in comparable litigation” including “doctrines such as foreseeability and proximate cause, directness of injury, certainty of damages, and privity of contract.”); Desiano v. Warner-Lambert Co., 326 F.3d 339, 346, 348 (2d Cir. 2003) (Calabresi, J.) (noting that RICO’s “directness” requirement, which is more stringent than that imposed under most States’ proximate-cause jurisprudence, is a matter of statutory standing, but that RICO also incorporates traditional proximate cause requirements like foreseeability).
On one side of the ledger, the Supreme Court’s decision in Holmes represents a classic statutory-standing case. The Court held that the Securities Investor Protection Corporation (SIPC) could not sue Robert Holmes, Jr. under RICO for losses it suffered as a result of Holmes’ stock-manipulation scheme because the harm visited upon the SIPC was merely derivative of an injury to two broker-dealers, who not only could have sued Holmes but did sue him. Holmes, 503 U.S. at 271–73; id. at 274 (“We hold not that RICO cannot serve to right the conspirators’ wrongs, but merely that the nonpurchasing customers, or SIPC in their stead, are not the proper plaintiffs.”). “[A] plaintiff who complain[s] of harm

16 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
flowing merely from the misfortunes visited upon a third person by the defendant’s acts,” the Court reasoned, “generally . . . stand[s] at too remote a distance to recover.” Id. at 268–69. The Court then offered three administrative justifications for this “directness” requirement: (1) the “difficult[y]” in “ascertain[ing] the amount of a[n] [indirect] plaintiff’s damages attributable to the violation, as distinct from other, independent factors”; (2) the “complicated rules” courts would be forced to adopt to “apportion[] damages among plaintiffs removed at different levels of injury from the violative acts, to obviate the risk of multiple recoveries”; and (3) the existence of a “directly injured victim[]” who “can generally be counted on to vindicate the law” and serve the law’s “general interest in deterring injurious conduct.” Id. at 269.
Holmes follows a course marked by a long line of Supreme Court cases denying antitrust standing to plaintiffs who suffer derivative or “passed-on” injuries. See, e.g., Ill. Brick Co. v. Illinois, 431 U.S. 720, 729 (1977) (holding that an indirect purchaser lacked standing under the antitrust laws to sue for overcharges passed on to them by intermediaries); Associated Gen. Contractors, 459 U.S. at 540–42 (holding that a union lacked standing to sue for injuries passed on to it by intermediaries).
This Court has hewed to the same path before Holmes and since in denying RICO standing to parties who suffer derivative or passed-on injuries. As we explained in County of Oakland v. City of Detroit, 866 F.2d 839, 851 (6th Cir. 1989), a case involving antitrust and RICO claims, “[t]he doctrine of privity of contract . . . was in its heyday in 1890,” when Congress enacted the Sherman Act, and the Supreme Court “stated a truth with which lawyers practicing in 1890 would have been totally comfortable when it said that ‘[t]he general tendency of the law, in regard to damages at least, is not to go beyond the first step.” Id. at 851 (quoting S. Pac. Co. v. Darnell-Taenzer Lumber Co., 245 U.S. 531, 533 (1918) (Holmes, J.)); see also Perry v. Am. Tobacco Co., Inc.,

No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 17
324 F.3d 845, 849 (6th Cir. 2003) (holding that policy holders lacked standing under RICO to sue tobacco companies for increased costs of insurance passed on to them as a result of the increased costs of treating smoking-related illnesses); PikCoal Co. v. Big Rivers Elec. Corp., 200 F.3d 884, 890–91 (6th Cir. 2000) (holding that a plaintiff who did not have a direct contractual relationship with the defendant and who suffered injuries derivative of those realized by intermediate parties lacked standing to sue under RICO); Firestone v. Galbreath, 976 F.2d 279, 285 (6th Cir. 1992) (holding that beneficiaries of an estate lacked standing under RICO to sue for an injury derivative of the estate’s injury); Sanders Confectionery Prods., Inc. v. Heller Fin., Inc., 973 F.2d 474, 487 (6th Cir. 1992) (holding that a RICO plaintiff alleging destruction of the value of his stock lacks standing because his injury is derivative of the corporation’s injury); County of Oakland, 866 F.2d at 850–51 (holding that under the antitrust laws and RICO counties who purchased water directly from the defendant, not the municipalities and consumers who purchased water from the counties, were the proper parties to bring suit); Warren v. Mfrs. Nat’l Bank, 759 F.2d 542, 544 (6th Cir. 1985) (“In his capacity as a shareholder . . . , any injury [plaintiff] incurred was actually one sustained by the corporation. . . . [D]iminution in value of the corporate assets is an insufficient direct harm to give the shareholder standing to sue [under RICO] in his own right.”) (quotation omitted).
On the other side of the ledger, RICO not only imposes a statutory standing limitation on claimants who seek recovery for derivative or indirect injuries, but it also incorporates other traditional proximate-cause limitations on claimants. See Perry, 324 F.3d at 850 (“Though foreseeability is an element of the proximate cause analysis, it is distinct from the requirement of direct injury.”); Desiano, 326 F.3d at 348 (noting that RICO incorporates a directness requirement that is more stringent than most States require and that RICO also incorporates foreseeability). Accordingly, while a RICO plaintiff and defendant may have a direct and not a derivative relationship, the causal link between the injury and the

18 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
conduct may still be too weak to constitute proximate cause—because it is insubstantial, unforeseeable, speculative, or illogical, or because of intervening causes. See Perry, 324 F.3d at 850; Fleischhauer v. Feltner, 879 F.2d 1290, 1299 (6th Cir. 1989) (RICO plaintiffs must “set out a reasonable and principled basis of recovery” that is “not based on mere speculation and surmise”).
The point of all this is not just that the distinction between statutory standing and proximate cause exists, but that unbundling these distinct concepts has practical significance for RICO cases in general and for this case in particular. From a substantive standpoint, a RICO plaintiff who can show a direct injury may still lose the case if the injury does not satisfy other traditional requirements of proximate cause—that the wrongful conduct be a substantial and foreseeable cause and that the connection be logical and not speculative.
From a procedural standpoint, a RICO case with a derivative-injury problem is better suited to dismissal on the pleadings than a RICO case with a traditional proximatecause problem (e.g., a weak or insubstantial causal link, a lack of foreseeability, or a speculative or illogical theory of damages). Under the familiar rules of notice pleading in federal courts, a complaint should include merely “a short and plain statement of the claim,” Fed. R. Civ. P. 8(a)(2), and a district court may dismiss a complaint for failure to state a claim “‘only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations,’” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). Under these standards for pleading and dismissing cases, a court often finds no need to look beyond the face of the complaint in order to determine that the plaintiff lacks standing because the injury was passed on by another party that had a more direct relationship with the defendant. But since “we presume that general allegations embrace those specific facts . . . necessary to support the claim,” other causal

No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 19
weaknesses will more often be fodder for a summaryjudgment motion under Rule 56 than a motion to dismiss under Rule 12(b)(6). NOW v. Scheidler, 510 U.S. 249, 256 (1994) (quotation omitted).
B.
With these principles in mind, we turn first to Tyson’s argument that this is a statutory-standing (or derivative injury) case. If anyone suffered a direct injury in connection with this alleged illegal-hiring scheme, the argument goes, it was the union, not the employees. See Tyson Br. at 22 (“[A]n injury to the bargaining power of a union is no more a direct injury to its members’ wages than an injury to a corporation is an injury to a shareholder, or an injury to an estate is an injury to its beneficiary, or an injury to an insured’s customer is an injury to an insurer.”) (citations omitted). Limiting ourselves to the allegations contained in the complaint, however, we cannot agree that plaintiffs’ alleged injury is exclusively derivative.
The complaint alleges that Tyson directly employed the four plaintiffs, that Tyson directly paid them and that Tyson directly injured plaintiffs by paying them less than they otherwise would have paid them but for Tyson’s illegalimmigrant-hiring-scheme. Am. Compl. ¶¶ 36, 38. At the motion-to-dismiss stage, we presume that these general factual allegations embrace the specific facts needed to prove the claim. See Desiano, 326 F.3d at 350–51.
In a Rule 12(b)(6) setting, this analysis ordinarily would end the matter with respect to Tyson’s indirect/derivative injury defense if not for the company’s additional arguments (1) that a third party—a union—was involved in determining the wages plaintiffs received and (2) that the union’s injury is more direct than the plaintiffs’ injury. Plaintiffs, in response, argue that we should pay no attention to this additional party behind the curtain because the amended complaint does not directly mention the existence of a union.

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In its analysis, the district court accounted for the presence of a union, and properly so in our opinion. While the amended complaint does not directly mention the presence of a union by name, it specifically incorporates the criminal indictment against Tyson (and indeed attached the indictment to the complaint). That indictment specifically mentions the union (a unit of the Retail, Wholesale, and Department Store Union, AFL-CIO) and says that the union represents the workers at the Shelbyville plant, an allegation that necessarily encompasses the further fact that under the NLRA the union serves as the employees’ exclusive bargaining representative concerning wages, see 29 U.S.C. § 159(a). In view of these allegations in the complaint and in view of the fact that the collective bargaining agreement was properly before the district court with respect to the Rule 12(b)(1) motion, see, e.g., Nichols v. Muskingum Coll., 318 F.3d 674, 677 (2003), the district court properly considered the existence of the union (and the collective bargaining agreement) in ruling on Tyson’s Rule 12(b)(6) motion.
Even accounting for the collective bargaining agreement and the union’s role in negotiating it, however, this complaint does not describe an injury that can be characterized as exclusively derivative. The fact that the union negotiated plaintiffs’ wages does not alter the more critical fact that Tyson directly employed and directly paid plaintiffs. The union served as plaintiffs’ agent for bargaining purposes, not as their employer. The direct employment relationship between Tyson and plaintiffs distinguishes this dispute from the Holmes line of cases, where the plaintiffs had no relationship with the defendants except through intermediaries. See Holmes, 503 U.S. at 270–74 (SIPC–customers–brokers–tortfeasor); Perry, 324 F.3d at 849 (policy holders–insurance company–smokers–tortfeasors); Pik-Coal Co., 200 F.3d at 890–91 (coal broker–coal company–tortfeasor); Firestone, 976 F.2d at 285 (beneficiaries–estate–tortfeasors); Sanders Confectionery Prods., Inc., 973 F.2d at 487 (stockholder–corporation–tortfeasor).

No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 21
This view of the employment relationship—even one involving a union—also remains faithful to the privity-ofcontract roots of the direct-injury requirement. See County of Oakland, 866 F.2d at 851 (“The generation of which Senator Sherman[, sponsor of the Sherman Act,] . . . [was a] member[] would have been unsympathetic to the view that [a supplier] could be sued for damages . . . by any entity with which [the supplier] did not have a direct contractual relationship.”). While indirect purchasers lack standing under RICO and the antitrust laws to sue for overcharges passed on to them by middlemen, see Holmes, 503 U.S. at 268–69; Ill. Brick, 431 U.S. at 729, direct purchasers do have standing. And if “direct purchasers” who pay too much “obviously assert a direct injury,” County of Oakland, 866 F.2d at 851, so do direct employees who receive too little.
Traditional labor law principles point in the same direction. Tyson’s argument—that the real injury is to the union—would suggest that only a union may sue an employer for breach of a collective bargaining agreement. If a union and not the employee is the directly injured party when it comes to a lawsuit concerning wage-related violations of RICO, then presumably the union and not the employee is the directly injured party when it comes to a lawsuit concerning wage-related violations of a collective bargaining agreement—a type of lawsuit that not only implicates the union’s exclusive role in negotiating collective bargaining agreements, but one that Congress expressly gave the union the right to bring when it enacted § 301 of the LaborManagement Relation Act. 29 U.S.C. § 185(a) (“Suits for violations of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this [Act], or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.”); id. § 185(b) (“Any such labor organization may sue or be sued as an entity and in behalf of

22 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
the employees whom it represents in the courts of the United States.”).
Yet the Supreme Court and this Court have held that an employee may sue for breach of a collective bargaining agreement without the union. See Groves v. Ring Screw Works, 498 U.S. 168, 173 (1990) (“Section 301 contemplates suits by and against individual employees as well as between unions and employers; and contrary to earlier indications § 301 suits encompass those seeking to vindicate uniquely personal rights of employees such as wages.”) (quotation omitted); Smith v. Evening News Ass’n, 371 U.S. 195, 200 (1962) (holding that an employee may sue for breach of a collective bargaining agreement without the union); Anderson v. AT&T Corp., 147 F.3d 467, 474 (6th Cir. 1998) (same); see also Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Hoosier Cardinal Corp., 383 U.S. 696, 699 (1966). Cf. Vaca v. Sipes, 386 U.S. 171, 186 (1967) (an employee may be contractually bound to involve the union).
If an employee has statutory standing to vindicate a wrong within the heartland of the union’s domain (a violation of a collective bargaining agreement), it follows that an employee has statutory standing to vindicate a wrong outside of the union’s domain (a violation of RICO). Indeed, until Congress enacted § 301 of the LMRA in 1947 (twelve years after it enacted the NLRA), unions had no standing to bring many types of lawsuits. That task fell upon individual employees because unincorporated associations like unions generally were not recognized as permissible litigants at common law. See Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 510 (1962) (“A principal motive behind the creation of federal jurisdiction in this field [under § 301] was the belief that the courts of many States could provide only imperfect relief because of rules of local law which made suits against labor organizations difficult or impossible, by reason of their status as unincorporated associations.”); Textile Workers Union of Am. v. Lincoln Mills, 353 U.S. 448, 454 (1957) (one purpose of § 301 was to “‘provide for suits by unions as legal entities

No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 23
and against unions as legal entities in the Federal courts’”) (quoting S. Rep. No. 80-105, at 16 (1947)).
The Supreme Court’s decision in Associated General Contractors bolsters this analysis. Several unions sued a multiemployer trade association alleging that the association coerced general contractors and landowners into giving construction business to non-union firms, which caused unionized contractors to lose business, which in turn harmed the unions. An eight-justice majority concluded that the union lacked standing under the antitrust laws in large part because it did not suffer a direct injury. One justice dissented, arguing that the union’s injury was sufficiently direct. Most important for present purposes, however, was that all nine justices seemed to agree that the injury to the employees/union members (lost wages) was both distinct from and more direct than the injury to the union (lost union dues and diminished power). See 459 U.S. at 541 n.46 (“[I]f the Union contends that revenues from dues payments declined because its members lost jobs or wages because their unionized employers lost business . . . [t]hat harm [] is even more indirect than the already indirect injury to its members.”); id. at 551 (Marshall, J., dissenting) (recognizing that the injury to the unionized contracting firms (“lost profits”) and the injury to the union-member-employees of those firms (“lost wages”) were distinct from the injury to the union (“lost union dues”)).
As Associated General Contractors suggests, injuries to employees differ in kind and degree from injuries to their union—a difference that causes one to wonder exactly what a union could recover in this setting. The union could not sue for depressed wages because it does not receive wages; it negotiates them. Nor does it make a difference that the union perhaps could sue in an associational capacity on behalf of the employees—an issue we address below—because that would still be a lawsuit to recover for a direct injury to the employees, not the union. Nor is this a case in which the union’s property or funds were mishandled. See Adams-

24 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
Lundy v. Ass’n of Prof’l Flight Attendants, 844 F.2d 245, 250 (5th Cir. 1988) (holding that a RICO action by union members was properly dismissed where “[a]ny financial improprieties occurred with union funds and directly injured solely the union”).
All of this strongly suggests that the administrative and double-recovery concerns highlighted in Holmes pose no obstacle here—and indeed would pose a greater obstacle if we required the union to sue for some injury to it instead of allowing the employees to sue for an injury to them. Damages to the employees (the difference between what they earned and what they would have earned) would be more easily ascertained than damages to the union (the value of lost bargaining power? lost influence? lost dues?). See Holmes, 503 U.S. at 269. And a lawsuit by the employees presents no problem of apportioning damages among plaintiffs removed at different levels, as the union has not sued and it is unclear what the union could recover if it did sue. See id. In view of these realities, the law cannot count on a more “directly injured victim[]” to “vindicate the law as [a] private attorney[] general” because, unlike Holmes where the directly injured broker-dealers could sue and did sue, the union has not sued and it is not clear that the union could sue. Id. at 269–70.
C.
Tyson next argues that plaintiffs have failed to show proximate cause because the “chain of reasoning” in support of their claim “is largely speculative.” Tyson Br. at 23. In Tyson’s view, plaintiffs’ case hinges on four speculative premises: (1) that “there were sufficient illegal aliens in the workforce to affect the Union’s leverage and lower the wage scale that the Union negotiated”; (2) that “the Union would have used any increased bargaining power to obtain increased wages, rather than to address other issues . . . unrelated to wages”; (3) that “Tyson is able to compete for unskilled labor with other businesses . . . that are not affected by the presence of illegal immigrants in the workforce”; and (4) that

No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 25
“plaintiffs chose not to obtain unskilled laborer positions at the other businesses in the region offering higher wages.” Id. In the face of these attenuated links in the chain of causation, Tyson asserts, plaintiffs cannot show proximate cause.
Tyson may be right—but we cannot say so at this preliminary stage in the proceeding. Given the unadorned allegations in the complaint, given the requirement that we must assume plaintiffs will be able to prove them and given the absence of any discovery (or expert reports) thus far, Tyson’s argument requires us to do as much speculating as plaintiffs’ multi-link chain of causation allegedly requires us to do. There are many fact-driven questions here—e.g., Tyson’s ability to influence the labor market in Shelbyville and the other cities where Tyson has a plant, the effect that the hiring practices of other businesses in Shelbyville and the other areas have on Tyson’s ability to depress wages, and the effect of Tyson’s alleged smuggling and employment of illegal aliens on the local union—and the speculativeness of our answers to all of them counsels against resolving the dispute as a matter of law at this early stage in the case.
It remains possible that plaintiffs may prove the following allegations in their complaint: (1) that Tyson hired sufficient numbers of illegal aliens to impact the legal employees’ wages; (2) that each additional illegal worker hired into the bargaining unit by Tyson has a measurable impact on the bargained-for wage-scale; (3) that the illegal immigrants allegedly brought into this country through Tyson’s efforts allowed Tyson not to compete with other businesses for unskilled labor; and (4) that Tyson’s legal workers did not “choose” to remain at Tyson for less money than other businesses offered, but had no choice in the matter given the hiring needs of the other businesses in the area and the influx of illegal immigrants at Tyson’s facilities. While Tyson’s proximate-cause argument may well carry the day at the summary-judgment stage, it requires more assistance than the complaint alone provides.

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One other circuit has reached the same result on somewhat similar facts. In Mendoza v. Zirkle Fruit Co., 301 F.3d 1163 (9th Cir. 2002), legally-authorized apple workers sued several growers under RICO alleging violations of the immigration laws. The district court dismissed the complaint in Mendoza for lack of proximate cause—a decision relied upon by the lower court in this case. In reversing, the Ninth Circuit held that the suit was not one for a derivative or passed-on harm and that other alleged weaknesses in the chain of causation were matters for summary judgment, not dismissal on the pleadings. See id. at 1171. As the Ninth Circuit put it: “[I]t is inappropriate at this stage to substitute speculation for the complaint’s allegations of causation . . . . [T]he workers must be allowed to make their case through presentation of evidence, including experts who will testify about the labor market, the geographic market, and the effect of the illegal scheme.” Id. True, Mendoza did not involve a union; and although we have already held that the existence of a union does not transform this dispute into a derivative-injury case, the union’s role in negotiating wages may well prove to attenuate the chain of causation to the breaking point. But since we know nothing about those negotiations and indeed barely know that a collective bargaining agreement exists, the Mendoza analysis cannot be relegated to the sideline on this ground alone.
One other point deserves mention. The district court stated that a RICO case “cannot survive . . . if it is evident from the pleadings that independent factors exist which had an impact on plaintiffs’ economic loss.” D. Ct. Op. at 5. And one of the reasons the district court gave for dismissing this case was that “plaintiffs’ wages could have been affected by [the wages] other employers paid, the availability of workers, the profitability of the defendant’s businesses, and other factors that influence any labor market,” and thus “the conclusion that Tyson’s hiring of alleged illegal aliens depressed the plaintiffs’ wages would require sheer speculation.” Id. at 6. On appeal, Tyson concedes that plaintiffs need not show that Tyson’s conduct was the sole cause of their injury in order to

No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 27
establish proximate cause; they need show only that the conduct was a substantial cause. See Schwartz v. Sun Co., 276 F.3d 900, 904 (6th Cir. 2002) (“Where there is evidence, as in this case, which tends to show that [plaintiff’s] losses were a result of [defendant’s] conduct, as well as evidence which tends to show that his losses were attributable to other factors, it is normally up to the trier of fact to decide which is the case.”); Cox v. Admin. United States Steel & Carnegie, 17 F.3d 1386, 1399 (11th Cir. 1994) (“A proximate cause is not [] the same thing as a sole cause. Instead, a factor is a proximate cause if it is a substantial factor in the sequence of responsible causation.”) (quotation omitted); id. (holding that union members had standing to bring RICO claims for reduced compensation under collective bargaining agreement). That determination will require some evidence in this case. In the meantime, plaintiffs have met the requirements for defeating a motion to dismiss on proximatecause grounds.
D.
Quite apart from the questions raised in this case regarding Garmon preemption, statutory standing and proximate cause, Tyson separately argues that the case was properly dismissed because the NLRA gives the union the exclusive right to prosecute it or at a minimum requires the union’s participation. The union, Tyson correctly observes, is the employees’ exclusive bargaining representative, and § 9(a) of the NLRA makes the union the “exclusive representative[] of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.” 29 U.S.C. § 159(a). Without the entity exclusively responsible for negotiating wages at the wheel, Tyson asserts, this case may not proceed.
A recent Seventh Circuit decision provides some support for this view. While holding that Garmon does not “preempt” lost-wage claims like these, Baker v. IBP suggests that § 9 of

28 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
the NLRA effectively does. Because a suit like this one “is at its core about the adequacy of [] wages,” and because the union’s representation under § 9 of the NLRA “is supposed to be ‘exclusive’ with respect to wages,” the Seventh Circuit intimated, the suit may not proceed without the union. 357 F.3d at 690. “Individual workers,” the court explained, “may step into the union’s shoes only if it has violated its duty of fair representation.” Id. at 690–91 (citing Vaca v. Sipes, 386 U.S. 171, 186 (1967)). And since the complaint in that case did not “name the union as a party” and did not “contend that the union neglected its duty to represent the employees’ interests with respect to wages,” it should be dismissed. Id. at 691. Indeed, “[w]ithout the union as a party,” the court explained, “the litigants could not settle [the] suit for higher hourly pay (or back pay)” because “that would be a real refusal on [the company’s] part to bargain with its union [in violation of the NLRA].” Id.
As an initial matter, Tyson did not argue in the district court, in its appellate briefs or at oral argument that the union is an indispensable party to this lawsuit. See Fed. R. Civ. P. 19. Relying on Baker, Tyson instead raised the issue in a supplemental filing after oral argument. “Whether the Union should be joined,” however, “is . . . a matter for the District Court in the first instance,” EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1096 (6th Cir. 1974), and we leave it to the district court to address the issue on remand should the parties or the district court wish to pursue it. To the extent Tyson is relying on Baker to suggest that the union is not only a necessary party, but also the only party that may pursue these RICO claims, that issue also has not yet been properly joined by the parties.
Nor is it clear to us that Baker’s suggestion is correct. The principle that an employee must involve the union in a lawsuit, by suing it or otherwise alleging that it violated its duty of fair representation, comes from (1) § 301 of the LMRA (which addresses lawsuits to enforce collective bargaining agreements) and (2) the particular terms of

No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 29
collective bargaining agreements (which in many cases contain an exclusive grievance procedure). As we have already noted, § 301 does not necessarily require the union’s involvement in lawsuits involving wage provisions of a collective bargaining agreement. See Office & Prof’l Employees Int’l Union, Local 2 v. FDIC, 962 F.2d 63, 66 (D.C. Cir. 1992) (R. Ginsburg, J.) (“[W]hen a claim derives from a collective bargaining agreement—an arrangement negotiated by a union and to which it is a signatory—the labor organization is an appropriate party (although not the only appropriate party) to vindicate employees’ rights.”). Only when a collective bargaining agreement includes an exclusive contractual remedy must an employee involve the union in a lawsuit, and even then only if the employee fails to exhaust the contractual grievance process. That was the holding of Vaca v. Sipes, 386 U.S. 171 (1967), the one case cited by the Seventh Circuit in support of its § 9 holding.
In contrast, this case involves a damages lawsuit for violations of RICO, not a lawsuit for breach of a collective bargaining agreement that contains an exclusive contractual remedy. To the extent the pertinent collective bargaining agreements would require the participation of the union in a dispute of this sort, no one has argued it. So far, the dispute in this case has been about whether the district court should have noted the mere existence of the agreements and what the existence of those agreements means under Garmon and RICO, not what the agreements actually require.
The historical context in which these statutes were enacted also suggests that when Congress made unions the exclusive representative of employees for purposes of collective bargaining, it did not mean to establish unions as the exclusive representative of employees for purposes of all wage-related litigation. Section 9(a) was enacted in 1935, see Pub. L. No. 74-198, 49 Stat. 453, 449 (1935), at a time when unions (as unincorporated associations) could not sue in many courts. Not until 1947, when Congress enacted § 301 of the LMRA, did unions have standing to enforce collective

30 Trollinger, et al. v. Tyson Foods, Inc. No. 02-6020
bargaining agreements. See Pub. L. No. 80-101, 61 Stat. 136, 156–57 (1947). In view of this statutory history, we fail to see how Congress could have intended unions to be employees’ “exclusive representatives” in all wage-related litigation. Indeed, if only one of the two—the union or the employees—were allowed to bring this suit, it likely would have to be the employees, not the union. See Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 282 (1986) (associational standing is inappropriate when “‘the relief sought . . . make[s] the individual participation of each injured party indispensable to proper resolution of the cause’”) (quoting Warth v. Seldin, 422 U.S. 490, 511 (1975)); id. at 287 (union had associational standing because it was not seeking damages on behalf of its members, just the resolution of “a pure question of law”).
IV.
Plaintiffs still face a number of obstacles in this lawsuit. The case may not survive a summary-judgment motion if the economic and other factual premises of plaintiffs’ claim reveal a causal relationship that is too weak or too attenuated. Nor do we express an opinion as to whether the case may proceed as a class action. The district court did not have an opportunity to address that issue because it first ruled on the merits of the motion to dismiss. And, finally, we do not express an opinion as to whether plaintiffs can show that Tyson and its co-conspirators constituted an “enterprise” within the meaning of RICO. See 18 U.S.C. § 1962(c). In Baker, the Seventh Circuit concluded that a similar conspiracy did not satisfy the enterprise requirement, 357 F.3d at 691–92, but since the district court did not reach that issue below, the resolution of this question also should await a summary-judgment motion. In this appeal, we hold only that the district court had subject-matter jurisdiction over the dispute and that the case should not have been dismissed on the pleadings.

No. 02-6020 Trollinger, et al. v. Tyson Foods, Inc. 31
For the foregoing reasons, we reverse the district court’s judgment and remand the case for further proceedings consistent with this opinion.