Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30037

DUCOTE JAX HOLDINGS LLC; DAVID L. DUCOTE, Trustee; STEVEN O.

MEDO, JR., Trustee; POYDRAS PARTNERS

Plaintiffs-Appellees

v.

WILLIAM E. BRADLEY

Defendant-Appellant

Appeal from the United States District Court 

for the Eastern District of Louisiana, New Orleans

USDC No. 04-1943

Before HIGGINBOTHAM, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

This is an appeal from a civil RICO judgment with damages awarded in

the amount of $6,432,600, and $74,156.25 in attorneys’ fees. We AFFIRM the

judgment as to liability. Finding that the district court clearly erred in awarding

damages, we REVERSE and RENDER the damages award. We AFFIRM the

award of attorneys’ fees.

United States Court of Appeals

Fifth Circuit

F I L E D

June 19, 2009

Charles R. Fulbruge III

Clerk
No. 08-30037

2

I. BACKGROUND

On July 8, 2004, the plaintiff, Ducote Jax Holdings, L.L.C., filed a

complaint alleging, inter alia, violations of the Racketeer Influenced and Corrupt

Organization Act (RICO). 18 U.S.C. §§ 1961–1968. The original complaint

asserted claims against Bank One, J.P. Morgan Chase, and three Bank One

executives: John B. Ohle, III; Scott D. Deichmann; and Jeffrey T. Conrad. The

complaint alleged that the defendants had induced the plaintiff to participate in

a tax strategy that the IRS subsequently found to be fraudulent. 

Plaintiff alleged that Bank One’s documents and communications

contained false and/or misleading representations, including representations

that no interest or penalties would be assessed by the IRS. The complaint

further alleged that the purportedly independent third parties that reviewed and

advised the plaintiff with respect to the legitimacy of the tax strategies were

solicited and paid by Bank One and were thus substantially compromised and

did not fulfill their fiduciary and good faith obligations to the plaintiff. The

complaint alleged that the defendants failed to advise that the tax shelter was

unregistered and that hundreds of other clients were using this tax strategy.

The complaint also alleged predicate acts of mail and wire fraud in connection

with the RICO claim. In addition to the RICO claims, the complaint asserted

claims for breach of fiduciary duty, fraud, negligent misrepresentation, breach

of contract, civil conspiracy, and unfair trade practices.

With respect to the alleged injury incurred from the defendants’ scheme,

the RICO statement provided that the “Plaintiff has paid exorbitant fees and

commissions on tax strategies for which the Defendants completely

misrepresented the risk and potential return.” The RICO statement further

provided that “Plaintiff has suffered extensive monetary damages consisting of

unexpected tax liability, fees and commissions paid to the Bank One Enterprise,

as well as interest and penalties which the [IRS] will likely seek.” 
No. 08-30037

3

Subsequent to filing suit, the plaintiff became aware of DefendantAppellant William E. Bradley’s involvement with the named defendants through

documents received pursuant to the IRS’s investigation. Plaintiff then filed a

first amended and supplemental complaint adding Bradley as a named

defendant. Plaintiff subsequently filed another amended and supplemental

complaint adding the following three plaintiffs: Poydras Partners, David L.

Ducote (Ducote), trustee of the Ducote Class trust, and Steven O. Medo, Jr.,

trustee of The Chapman Charles Ducote Trust, and the Suzette A. Ducote Trust.

The plaintiffs alleged that Paul Daugerdas, a partner in the Chicago office of the

law firm Jenkens & Gilchrist, devised a tax strategy in which foreign exchange

digital options (“FX Contracts”) were purchased and sold. The purpose of the tax

strategy was to create losses to lessen other tax liability. The plaintiffs alleged

that Defendant John Ohle (Ohle), a Bank One executive, induced them to engage

in this tax strategy by representing that the tax strategies had been vetted by

Jenkens & Gilchrist. The plaintiffs further alleged that the defendants did not

explain that the Jenkens & Gilchrist attorneys who drafted the favorable opinion

letter regarding the tax strategy were approving its own tax strategy. The

plaintiffs alleged that the amount of fees the defendants billed was not based on

the time expended working on the transaction but simply on the amount of the

transaction.

In 2006, the plaintiffs received $2,850,000 pursuant to a settlement

agreement involving all the defendants except Bradley. With respect to Bradley,

the plaintiffs alleged that he was a member of the conspiracy and that he

accepted $255,000 from the monies plaintiffs paid the defendants. The plaintiffs

claimed that Bradley invested some of the money back in the illegal enterprise

when he wired $46,000 to Ohle and mailed a check for $184,000 to JDC Group,

Inc., an unknown co-conspirator. Bradley kept the remaining $25,000. 
No. 08-30037

4

During the proceedings below, Bradley failed to respond to the plaintiffs’

request for admissions. As a result, the magistrate judge ruled that all the

matters set forth in plaintiffs’ request for admissions were deemed admitted.

The district court affirmed that ruling. 

On May 21, 2007, at the bench trial before the district court, the plaintiffs’

only two witnesses were Ducote and Bradley. Ducote is a named plaintiff in the

capacity of the trustee of the Ducote Class Trust. Ducote testified that Ohle

approached him regarding the tax strategy at issue. Ducote knew that Ohle was

with Bank One. Ducote was told that the tax strategy was “bullet-proof.”

Ducote was the “point person [in the family] responsible for kind of marshaling

this tax strategy.” During the time of the transaction Ducote was not aware that

Bradley had represented to Jenkens & Gilchrist that he was working on this tax

strategy. During the discovery proceedings in this case, Ducote was surprised

to see an invoice for over $30,000 worth of services rendered by Bradley

purporting to be for Wayne Ducote. Wayne Ducote is Ducote’s father and

manager of Ducote Jax Holding, L.L.C. Ducote was also surprised to discover

two other invoices from Bradley purporting to be for services rendered by

Bradley for Ducote and his sister Suzette Ducote. 

Ducote testified that the use of the instant tax strategy resulted in

millions of dollars in losses by the “various family entities.” He testified that the

tax assessment was approximately $3,150,000, and the penalty was

approximately $315,000 (10% of the taxes), and the interest was approximately

$500,000. The fees paid to Jenkens & Gilchrist and Bank One were $1,033,500.

Attorneys’ fees associated with the current litigation totaled $648,181.50.

Ducote testified that the tax assessment had been paid to the IRS, that the

accountants computed a “loss of investment” of $1,500,000, and that he had

received $2,850,000 from the settlement with the other defendants. Ducote
No. 08-30037

5

testified that, excluding the “subjective” figure for loss of investment, his family

entities had lost a little more than $3.9 million. 

The plaintiffs called Bradley to testify. Bradley testified that he had a

personal injury practice in Hammond, Louisiana. Bradley met Ohle at a bar

review course shortly after graduating from law school in 1993. They studied for

the bar together, became close friends, and would see each other periodically.

Bradley remained in contact with Ohle even after Ohle moved from Louisiana

to D.C., and then later to Chicago. Bradley considered Ohle to be a good friend;

however, Bradley testified that they had not talked as much since the start of

this litigation. Although Bradley did not have specific recollection of a

conversation, he believed that Ohle contacted him and told him that an opinion

would be provided and Bradley was to fax it to Jenkens & Gilchrist. Pursuant

to Ohle’s instructions, Bradley sent to Jenkens & Gilchrist three invoices

totaling $112,500, purporting to be services he performed for matters related to

David, Wayne, and Suzette Ducote. Subsequently, Jenkens & Gilchrist wired

$255,000 to Bradley’s bank account. Bradley believed that he called either Ohle

or Paul Daugerdas regarding the $255,000, and was instructed to wire $46,000

to Ohle and write a check for $184,000 to an unknown entity called JDC.

Bradley paid himself the remaining $25,000. Bradley testified he worked less

than ten hours on this matter, could not find a file in his office regarding this

matter, and had “numerous conversations” with Daugerdas and Ohle regarding

this matter. 

After Bradley testified, the defense called David Lukinovich. Lukinovich

was a certified tax attorney who had performed a substantial amount of work

over the past ten years for the Ducote family entities. Lukinovich set up a

number of trusts for the Ducotes. Lukinovich first heard about the instant tax

strategy from John Ohle, but he did not become involved in the marketing and

facilitating of the strategy. Lukinovich received calls from various clients that
No. 08-30037

 However, Bradley testified that he “had some [conversations] with Lukinovich.” 1

 This challenge is raised with respect to all the theories of liability found by the

2

district court: RICO, breach of fiduciary duty, negligent misrepresentation, fraud and civil

6

Ohle was meeting with them to talk about various strategies. Lukinovich met

with clients and was paid money from Bank One for work related to those

meetings. He estimated that he made “in the 50,000 dollar range.” Although

Lukinovich did not have a specific memory, he was sure he advised Ducote

regarding the risks involved with the strategy because there was not an “IRS

code section on it or some other type of IRS guidance.” In other words, the IRS

had not approved the strategy. In Lukinovich’s opinion, the strategy was not

fraudulent. Lukinovich had no idea that Bradley was involved. 

1

After post-trial briefing, the district court issued its findings of fact and

conclusions of law. Relying on the deemed admissions and evidence from the

bench trial, the district court found that Bradley is liable to the plaintiffs for

violations of the civil RICO statute, 18 U.S.C. §1962(a),(c) & (d), and, under

Louisiana law, breach of fiduciary duty; negligent misrepresentation; fraud; and

civil conspiracy. The court presented alternative damage awards under either

federal or state law: $6,432,600 plus costs and reasonable attorney fees for the

RICO violations; or in the alternative, $2,144,200 for the state claims of breach

of fiduciary duty, negligent misrepresentation, fraud, and civil conspiracy. 

Pursuant to the civil RICO statute, the plaintiffs filed an application for

an award of attorneys’ fees and court costs. The district court ordered that

plaintiffs were entitled to $74,145.25 in attorneys’ fees from Bradley. Bradley

now appeals both the judgment and the attorneys’ fees.

II. ANALYSIS

A. SUFFICIENCY OF EVIDENCE

Bradley contends that the district court clearly erred in finding that the

named plaintiffs suffered all the damages awarded. “When a judgment after a 2
No. 08-30037

conspiracy.

 The amount of damages shown by the plaintiffs is discussed infra at II. D. 3

7

bench trial is on appeal, we review the findings of fact for clear error and the

legal issues de novo. Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 375 (5th

Cir. 2000). Under the clearly erroneous standard, we will reverse only if we

have a definite and firm conviction that a mistake has been committed.” Id. The

district court’s determination of damages is an issue of fact and thus reviewed

for clear error. Id. at 379. If the credibility of a witness is a factor in the district

court's decision, “[t]he burden of showing that the findings of the district court

are clearly erroneous is heavier” because “due regard shall be given to the

opportunity of the trial court to judge of the credibility of the witnesses.” Id. at

375 (quotations omitted). 

Bradley argues that the plaintiffs did not show that the losses were only

incurred by the named plaintiffs—as opposed to other Ducote family members

or entities not named as plaintiffs. We agree that the testimony and documents

presented by the plaintiffs at the very brief bench trial did not demonstrate that

the damages alleged were suffered by the named plaintiffs. Nonetheless, the

deemed admissions, which Bradley does not expressly challenge on appeal, are

sufficient to demonstrate that the named plaintiffs were injured by Bradley’s

conduct. Without setting forth all the deemed admissions, we quote request for 3

admission numbers 2, 6, 8, and 12 as follows: 

[No. 2] Please admit that you have conducted substantial

business in this Eastern District of Louisiana, that the violations

complained of by Plaintiffs occurred in this District, that you

transact or have transacted your affairs in this District, and that

your conduct, upon which this action is founded, was directed at and

intended to injure Plaintiffs in this, the Eastern District of

Louisiana. 
No. 08-30037

8

[No. 6] Please admit that you entered into various

arrangements with other defendants named in this lawsuit to

market, promote and opine regarding certain tax strategies to high

net-worth individuals and business entities, such as and including

the Plaintiffs herein in order to generate exorbitant fees by

misrepresentations and advice that you and the other Defendants

knew or should have known were improper and illegal.

[No. 8] Please admit that you knew that the tax strategy that

was marketed to the Plaintiffs herein was similar to prior strategies

found abusive by the IRS and that, as a result, it would be intensely

scrutinized and likely regarded as a sham by the tax authorities.

[No. 12] Please admit that you did no work for the $112,500.00

fee you billed to Jenkins & Gilchrist with regard to any matters

relating to Ducote Jax Holdings, LLC, Wayne C. Ducote, David L.

Ducote, and/or Suzette A. Ducote. 

Although the requests for admissions could have been drafted more

precisely, we are persuaded that the deemed admissions encompass conduct

rendering Bradley liable to the named plaintiffs. The district court’s finding

does not leave us with a definite and firm conviction that a mistake has been

made. Bradley thus has failed to demonstrate clear error.

B. FRAUD

Bradley next argues that the district court erred in finding that the

plaintiffs were the victims of fraud. Bradley asserts that the evidence shows

that Ducote was not induced by fraudulent claims but instead by the fact that

Bank One, a fiscally conservative institution, and the national prestigious law

firm of Jenkens & Gilchrist were endorsing the tax strategy. Bradley points to

testimony from Ducote that tends to support this assertion. However, Ducote

also testified, among other things, that he relied on misrepresentations that the

strategy was “bullet proof.” The district court, however, was free to credit

Ducote’s testimony as to what induced him to agree to use this tax strategy.

Bradley has not shown this finding clearly erroneous.
No. 08-30037

 Request for admission number 6 is quoted supra at II. A. Request for admission 4

number 7 provided as follows: “Please admit that you colluded with other of the defendants

named in the instant lawsuit in order to assist in inducing Plaintiffs to engage in tax

strategies.” 

9

C. RICO CLAIMS

Bradley next contends that the district court erred in finding that the

requirements to establish a civil RICO violation were met. “RICO creates a civil

cause of action for ‘[a]ny person injured in his business or property by reason of

a violation of section 1962.’” Brown v. Protective Life Ins. Co., 353 F.3d 405, 407

(5th Cir. 2003) (quoting 18 U.S.C. § 1964(c)). “To state a RICO claim under §

1962, there must be: (1) a person who engages in (2) a pattern of racketeering

activity (3) connected to the acquisition, establishment, conduct, or control of an

enterprise.” Id. (internal quotation marks and citation omitted). “A pattern of

racketeering activity requires two or more predicate acts and a demonstration

that the racketeering predicates are related and amount to or pose a threat of

continued criminal activity.” Id. 

We are persuaded that Bradley’s deemed admissions and the trial

testimony support those three elements. The district court found that Bradley

was a person and the enterprise was an association-in-fact with the other named

defendants. The district court found that Bradley entered into various

arrangements with other defendants to market, promote, and opine on certain

tax strategies to high net-worth individuals and business entities, including the

instant plaintiffs, to generate exorbitant fees by giving false and misleading

advice that Bradley knew or should have know were improper and illegal. The

deemed admission numbers 6 and 7 support the district court’s findings. 

4

The district court also found that Bradley engaged in a pattern of wrongful

conduct through numerous predicate acts of mail and wire fraud. The district
No. 08-30037

 Request for admission number 5 provided as follows: “Please admit that your acts 5

and conduct described in Plaintiff’s Third Amended and Supplemental Complaint directly or

indirectly used the means of interstate commerce, including the mails and telephones.”

10

court relied on deemed admission number 5 and trial testimony. At trial, 5

Bradley testified that he used the telephone to make a call to determine what he

was supposed to do with the $255,000 that had been wired to his bank account.

Bradley admitted to wiring $46,000 to Ohle and to using the fax machine to send

a tax opinion to the law firm. Bradley also admitted to writing $25,000 worth

of checks to himself for less than 10 hours of billable work. 

With respect to the substantive element of § 1962, the district court found

that Bradley violated § 1962(a), (c), and (d). This Court has:

reduced those subsections to their simplest terms to mean that: (a)

a person who has received income from a pattern of racketeering

activity cannot invest that income in an enterprise; . . . (c) a person

who is employed by or associated with an enterprise cannot conduct

the affairs of the enterprise through a pattern of racketeering

activity; and (d) a person cannot conspire to violate subsections (a),

(b), or (c). 

St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 439 (5th Cir. 2000).

Bradley contends that the district court erred in finding that he violated

§ 1962(a) because there was no evidence at trial that any of the money he

distributed was invested into any enterprise. The district court found that

plaintiffs were injured by Bradley’s use or investment of racketeering proceeds

into the RICO enterprise by Bradley’s wiring of the money ($46,000 to Ohle and

$184,000 to JDC Group), which permitted the defendants to fraudulently obtain

money from the plaintiffs for work they did not do. Bradley does not dispute

that he sent these monies. “[T]his Circuit’s precedent dictates that a plaintiff

need prove only that illegally derived funds flowed into the enterprise.” St. Paul

Mercury Ins., 224 F.3d at 442 (internal quotation marks and citation omitted).
No. 08-30037

 Without argument or citation, Bradley alleges that “[t]here was no showing that a 6

criminal enterprise existed separate and apart from any alleged acts of racketeering.” Having

failed to sufficiently brief this claim, Bradley has abandoned it. Yohey v. Collins, 985 F.2d 222,

224–25 (5th Cir. 1993). Nonetheless, it appears that the separate-and-apart requirement is

met because Bradley, as the RICO “person” who committed the predicate acts, is distinct from

the enterprise. See St. Paul Mercury Ins., 224 F.3d at 446–47.

11

Bradley’s act of sending money to at least one person (Ohle) in the enterprise

meets that requirement.

Bradley also claims that “[t]here is no evidence that he acquired or

maintained an interest in anything.” However, acquiring or maintaining an

interest in the enterprise is an element of § 1962(b). The district court expressly

found that Bradley violated § 1962(a), (c), & (d), but not § 1962(b). This

contention is meritless.6

D. AMOUNT OF DAMAGES

Bradley contends that the district court erred by finding that Bradley’s

violations of § 1962(c) & (d) caused the plaintiffs’ tax assessment of $3,146,300.

Thus, he argues that the court erred in including that amount in the damages

award. Absent an error of law, we review the district court’s determination of

damages, a factual finding, for clear error. Cleere Drilling Co. v. Dominion

Exploration & Production, Inc., 351 F.3d 642, 645 (5th Cir. 2003). As we have

explained, clear error exists when, “the reviewing court upon examination of the

entire evidence is left with the definite and firm conviction that a mistake has

been committed.” Justiss Oil Co. v. Kerr-McGee Refining Corp. 75 F.3d 1057,

1062 (5th Cir. 1996). 

Based on the findings that Bradley violated § 1962(c) & (d), the district

court awarded the following damages: $3,146,300, the amount assessed as

income tax; $314,630, the tax penalty; $499,770, the interest on the tax

assessment; and $1,033,500, the fees of the attorneys, accountants and advisors.

These damages totalled $4,994,200. After deducting $2,850,000, the amount
No. 08-30037

 We note that the plaintiffs-appellees do not challenge on appeal the district court’s 7

calculations of damages.

12

that the plaintiffs received in exchange for settling their claims against all the

other defendants, the damages totalled $2,144,200. Pursuant to the RICO 7

statute, the district court then trebled the damages for a total of $6,432,600. 

See 18 U.S.C. § 1964(c). 

Bradley concedes that the tax strategy could have caused the tax penalty

and interest. Nonetheless, he argues that there is no evidence that the strategy

caused the assessment of income taxes and thus the taxes should not be included

as damages. In response, the plaintiffs rely on Ducote’s testimony during the

bench trial. The plaintiffs contend that Ducote testified that, had he not

participated in the instant tax strategy, he would have employed another tax

management or deferral strategy and therefore would not have incurred a tax

liability of over three million dollars. More specifically, in his testimony, Ducote

referred to a “103 exchange, which is a deferral [in] the Internal Revenue Code,

or ways to accelerate depreciation or other things of that nature.” However,

Ducote never explained how it would lessen, much less how it would eliminate

all tax liability. This is not surprising in light of Ducote’s admission that he

“frankly . . . did not fully and completely understand all aspects” of the tax

strategy that was actually implemented. When questioned with respect to his

capacity as a trustee, he answered that he was “not exactly clear” with respect

to the roles of the various entities and trust “other than the trust mixture was

a component of the Jenkens’ transaction.” Additionally, during oral argument

before this Court, the plaintiffs’ counsel first appeared to admit that the

plaintiffs would have had to pay at least some taxes. Counsel subsequently

admitted that they did not address this issue in the district court and that she

did not “understand the tax sheltering aspect of it.” When further pressed as to

what alternative strategy or shelter the plaintiffs would have utilized and how
No. 08-30037

 The sisters did not appeal the tax assessment. See Streber v. C.I.R., 138 F.3d 216, 8

217 n.3 (5th Cir. 1998). They did appeal the penalties for negligence and substantial

understatement, but this Court reversed the penalties. Id. at 219–23.

 After the verdict, Tracy agreed to a settlement.

9

13

much tax relief it would have provided, counsel never specifically answered the

question except to point to Ducote’s above testimony, which we conclude falls far

short of demonstrating that their tax assessment (in excess of $3 million) would

have been alleviated or entirely eliminated.

In a somewhat analogous case, this Court affirmed an award of damages

that “represented the difference between the amount of money the [plaintiffs]

would have paid the IRS had the attorneys advised them correctly and the

amount they eventually had to pay.” Streber v. Hunter, 221 F.3d 701, 717 (5th

Cir. 2000). In that case, two sisters, Tracy and Terry Streber, brought suit

against lawyers who had given them advice that ultimately resulted in a tax

penalties and interest. The jury found that the lawyers committed legal 8

malpractice, breached the plaintiffs’ fiduciary duties, and violated the Texas

Deceptive Trade Practices Act. The jury awarded over $2 million in actual

damages, and the “most significant award of actual damages by the jury was in

the form of ‘interest differential.’” Streber, 221 F.3d at 734. Interest differential 9

is “the difference between the interest earned by Terry from the [money

constituting the eventual tax assessment] while she had it and the interest

charged by the IRS.” Id. Pursuant to state law, the damages had to be proven

with reasonable certainty. We noted that Terry testified to the “exact amount

of interest she earned on her investments, and to the exact amount charged by

the IRS.” Id. Also, two other witnesses, a certified public account and Terry’s

investment advisor, testified regarding the interest differential. We found that

Terry had proven her damages with reasonable certainty because “the testimony

told the jury exactly how much interest Terry had earned on the [tax
No. 08-30037

 The district court also awarded the same amount of damages ($2,144,200) to the

10

plaintiffs based on its findings that Bradley was liable for breach of fiduciary duty, negligent

misrepresentation, fraud and civil conspiracy under Louisiana state law. However, the district

court presented the federal RICO damages and the Louisiana state law damages as alternative

awards. The plaintiffs elected the RICO damages. In any event, the plaintiffs would not be

entitled to the damages under Louisiana law because the district court calculated the two

damage awards in identical fashion except that the RICO damages were trebled.

14

assessment] and exactly how much interest the IRS charged her for holding on

to it.” Id. 

Although Streber involved state law, it informs our decision. Here, like

Streber, the damages “represented the difference between the amount of money

the [plaintiffs] would have paid the IRS had the attorneys advised them correctly

and the amount they eventually had to pay.” Streber, 221 F.3d at 717. In

contrast, as previously set forth, the plaintiffs failed to explain which alternative

tax strategy they would have used, much less precisely how such an alternative

vehicle would have eliminated or alleviated their tax assessment. In view of the

plaintiffs’ complete failure to prove an alternative tax strategy and calculate how

it would relieve them of their entire tax assessment, we are left with the definite

and firm conviction that a mistake has been made. Cf. Rogers v. McDorman, 521

F.3d 381, 395–97 (5th Cir. 2008) (affirming a take-nothing RICO judgment based

on failure to prove damages). After the tax assessment is subtracted from the

amount of damages, the net liability is zero because the district court credited

the $2,850,000 the plaintiffs received from the other defendants’ settlement

agreement. More specifically, the district court found that Bradley was liable to

the plaintiffs for $2,144,200, after crediting the amount of money the plaintiffs

received from the other defendants’ settlement agreement. Thus, once the 10

amount of the tax assessment, $3,146,300, is subtracted from the $2,144,200

damage award, the plaintiffs are left with no damages flowing from the § 1962(c)

& (d) violations. The plaintiffs “had a full opportunity to establish [their] claim

for . . . damages; however, having failed to do so, [they] may not retry [their]
No. 08-30037

 Accord Northeast Women’s Center v. McMonage, 889 F.2d 466, 471-75 (3d Cir. 1989)

11

(holding that it is not permissible for a trial court to make a reduction in the attorneys’ fees

based solely on the amount of damages obtained in a civil RICO case).

 Section 1964(c) provides that “[a]ny person injured in his business or property by reason 12

of a violation ofsection 1962 of this chapter . . . shall recover threefold the damages he sustains and

the cost of the suit, including a reasonable attorney’s fee . . . .”

 The Clayton Act provides that “any person who shall be injured in his business or 13

property by reason of anything forbidden in the antitrust laws may sue therefor . . . and shall

recover threefold the damages by him sustained, and the cost of suit, including a reasonable

attorney’s fee.” 15 U.S.C. § 15(a).

15

claim[s] for these damages.” Great Pines Water Co., v. Liqui-Box Corp., 203 F.3d

920, 925 (5th Cir. 2000). The damages award of $6,432,600 is therefore

reversed. 

E. ATTORNEYS’ FEES

Finally, Bradley requests this Court to reduce or eliminate the award of

attorneys’ fees “if the net damages for Civil RICO violations is reduced to

nothing.” Because Bradley offers no argument or precedent in support of his

request, he has effectively abandoned this claim. Yohey, 985 F.2d at 224–25.

Nonetheless, even if we considered the claim properly before us, we would affirm

the award of attorneys’ fees. This Court has rejected a rule that the award of

attorneys’ fees should be proportional to the damage award in a civil RICO case.

R.M. Perez & Assoc., Inc. v. Welch, 960 F.2d 534, 542 (5th Cir. 1992). Further, 11

we recognize that the instant attorneys’ fees provision, 18 U.S.C. § 1964(c),12

tracks the attorneys’ fee provision of the Clayton Act, 15 U.S.C. § 15(a), which 13

involves antitrust actions. Thus, this Court’s precedent interpreting the

essentially identical provision in the Clayton Act is instructive, if not controlling.

 While interpreting the antitrust attorneys’ fee provision, we explained that “the

actual recovery of compensatory damages [is] irrelevant to the recoverability of

attorneys’ fees.” Sciambra v. Graham News Co., 892 F.2d 411, 415-16 (5th Cir.

1990). We held that to recover attorneys’ fees, a plaintiff must demonstrate
No. 08-30037

16

proof of a violation of antitrust laws and proof of injury. Id. at 415. Although

the plaintiff was awarded $0 in compensatory damages, because this Court

found an antitrust violation and the fact of damage, we affirmed the reasonable

award of attorneys’ fees. Id. at 414–16. 

Here, the district court awarded the plaintiffs $74,156.25 in attorney’s

fees. Bradley does not (and cannot credibly) dispute that the RICO violations

caused the tax interest and penalty, resulting in damages to the plaintiffs in the

amount of $814,400. Also, Bradley’s admitted actions in faxing the fraudulent

invoice regarding the amount of work he had done for the plaintiffs certainly

caused the plaintiffs monetary damages. However, after the other defendants’

settlement ($2,850,000) is credited against the unchallenged damages found by

the district court, there is nothing left to award. In other words, the plaintiffs

did prove that they suffered damages—it is just that the other defendants’

settlement precludes a double recovery from Bradley under the district court’s

calculations. Bradley has failed to show that the attorneys’ fee award was

unreasonable. We are persuaded that because the plaintiffs have established

RICO violations and proof of injury, they are entitled to the amount of attorneys’

fees in the amount of $74,156.25. 

III. CONCLUSION

For the above reasons, the portion of the district court’s judgment finding

Bradley violated § 1962(a), (c) & (d) of the civil RICO statute and also finding

Bradley liable for breach of fiduciary duty, negligent misrepresentation, fraud

and civil conspiracy under Louisiana state law is AFFIRMED. Nonetheless, we

REVERSE the portion of the district court’s judgment awarding the plaintiffs

$6,432,600 in civil RICO damages, and, in light of the rule against double

recovery, RENDER judgment that the plaintiffs take nothing with respect to

damages under the RICO claim. Additionally, the award of attorneys’ fees in the

amount of $74,156.25 is AFFIRMED.
No. 08-30037

17

AFFIRMED in part; REVERSED in part.