UNITED STATES DISTRICT COURT

IN THE EASTERN DISTRICT OF MICHIGAN

CLIFTON E. JACKSON and Case No.: 2009-11529

CHRISTOPHER M. SCHARNITZKE, Judge David M. Lawson

Plaintiffs, on behalf of themselves and 

 other persons similarly situated

SEDGWICK CLAIMS MANAGEMENT 

SERVICES, INC, and COCA COLA

ENTERPRISES, INC, foreign corporations,

and DR. PAUL DROUILLARD, 

Jointly and Severally, 

Defendants.

______________________________________________________________________________ 

MARSHALL LASSER P25573 

MARSHALL LASSER PC

Attorney for plaintiffs

po box 2579 

Southfield MI 48037

248-647-7722

mlasserlaw@aol.com

ddtalon@gmail.com

Thomas W. Cranmer P25252

Matthew F. Leitman P48999

Miller Canifield Paddock & Stone, P.L.C.

840 West Long Lake Road, Ste. 200

Troy, MI 48098

248-879-200

cranmer@millercanfield.com

leitman@millercanfield.com

BUTZEL LONG

By: Daniel B. Tukel P34978

Lynn A. Sheehy P38162

Katherine D. Goudie P62806

Attorneys for Defendant Dr. Drouillard

150 W. Jefferson, Ste. 100

Detroit, MI 48226

313-225-7000

tukel@butzel.com

sheehy@butzel.com

goudie@butzel.com

Kathleen H. Klaus P67207

Maddin, Hauser, Wartell , Roth

 & Heller, P.C.

Attorney for Sedgwick 

28400 Northwestern Hwy., 3rd Fl

Southfield, MI 48034

248-354-4030

khk@maddinhauser.com

PLAINTIFFS’ MOTION FOR LEAVE TO FILE REPLY TO COCA COLA’S REPLY

BRIEF 

PROOF OF SERVICE

The undersigned certifies that this instrument, together with all referenced attachments was

served on all parties to this case and/or their attorneys of record at their respective addresses

as disclosed by the pleadings on August 11, 2009 by the following method(s): 

[] U.S. Mail [] Fax [] Hand Delivered 

[] Federal Express [] UPS

[X] Other: ELECTRONICALLY EMAILED

 /s/Delilah D. Talon 

Signature of Serve

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Motion

 Plaintiffs move under LR 7.1 for leave to file a brief reply to Coca Cola’s reply.

Brief

The court may dispose of Coca Cola’s motion in one of three ways: (1) deny it; (2) grant the

motion, dismiss Coca Cola and certify under Rule 54(b) that the judgment is a final order, or (3)

grant the motion and dismiss Coca Cola but not certify the dismissal as a final order under Rule

54(b).

The court should not dismiss Coca Cola for the reasons stated by plaintiffs in their response

to Coca Cola’s motion, and because dismissal options (2) and (3) are impractical.

Options (2) and (3) are impractical because 

• discovery against Sedgwick will deeply involve Coca Cola, through depositions of

Coca Cola employees who dealt with Sedgwick employees and the workers

compensation defense attorneys, and through discovery of Coca Cola documents

and emails pertaining to the workers compensation cases (none of which plaintiffs

possess - these documents and emails are in the exclusive possession of Coca Cola);

Coca Cola and its attorneys will be up to their elbows in the defense of this case just

as if Coca Cola had not been dismissed - they will be preparing responses to

discovery requests, prepping witnesses for depositions, filing motions, and doing

what lawyers do when they know their client may be brought back into the litigation.

• Evidence of fraud disclosed in that discovery may result in renewed claims against

Coca Cola by the present plaintiffs, or by other workers whom discovery has

disclosed were defrauded by Coca Cola. The present plaintiffs would then move to

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set aside the dismissal of their claims against Coca Cola, and new plaintiffs would

sue Coca Cola.

• If this court certifies the dismissal of Coca Cola as a final judgment, plaintiffs will

appeal while the case continues against Sedgwick; if depositions of Coca Cola

employees and Coca Cola emails and documents reveals evidence of fraud by Coca

Cola - evidence in the exclusive possession of Coca Cola - plaintiffs will present this

newly discovered evidence to this the court and or to the court of appeals while the

appeal is pending in that court and it is highly likely that court would reverse the

dismissal or would remand the case to this court for reconsideration of the dismissal

in light of the newly discovered evidence. What a mess! What a waste of judicial

resources!

• Depositions of Coca Cola employees taken while the case continues against

Sedgwick only may have to be redone if and when Coca Cola is brought back into

this suit, to be fully useable by plaintiffs at trial.

On practical grounds, this court should deny Coca Cola’s motion. Legal grounds direct

denial, as stated in plaintiffs’ response.

Coca Cola Argues for Preemption 

Coca Cola states in I and II of its reply that the Michigan legislature’s decision not to allow

suits against insurers who fraudulently deny workers compensation claims prevents plaintiffs from

bringing RICO claims that Coca Cola and its adjuster Sedgwick fraudulently denied their workers

compensation claims. This is an argument for preemption. Coca Cola does not use the word

“preemption” but the only federal authority Coca Cola cited is Danielson v Burnside-Ott Aviation

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Training Center, Inc, 941 F 2d 1220, 1229, which held that a fraud claim brought under RICO was

preempted by another federal statute. (The Danielson court was not sure whether to use the word

“preempt” but said that word fit the issue before it.)

Danielson is not relevant. Danielson involved the Service Contract Act (SCA), a federal

statute. The court held Congress had decided the SCA provided an exclusive remedy for plaintiffs.

Congress has made so such decision here. It has not decided Michigan’s Workers Disability

Compensation Act is plaintiffs’ exclusive remedy.

Moreover, Brown disposes of Coke’s argument. Brown is the only case on point. Brown

is the only decision on the issue involved here. Brown and Brown alone addresses whether a

workers compensation claimant may sue self-insured employers and their adjusters under RICO for

fraudulent denial of workers compensation benefits. Although Brown involved McCarran-Ferguson

reverse preemption, Brown’s reasons sweep away Coca Cola’s arguments. The court of appeals held

the WDCA is not “comprehensive” and “exclusive,” and does not prevent the bringing of a RICO

claim for fraudulent denial of benefits: 

 ...we note that RICO is also saved from reverse preemption under the

McCarran-Ferguson Act because RICO would not ‘invalidate, impair or impede’ the

WDCA. RICO would not invalidate or supersede the WDCA because RICO would

not “render [the WDCA] ineffective” given that those subject to these laws can

comply with both simultaneously. See Humana, 525 US at 307, 119 Sc. Ct. 710....

The question remains whether RICO would “impair” the WDCA. In construing the

term “impair,” the Supreme Court explained that “[w]hen federal law does not

directly conflict with state regulation, and when application of the federal law would

not frustrate any declared state policy or interfere with a State’s administrative

regime, the McCarran-Ferguson Act does not preclude its application.” Id, at 310,

119 S Ct 710.

The WDCA bars and imposes sanctions on the denial of benefits to which

employees are legally entitled. MICH. COMP LAWS §§418.631, 418.801. A RICO

claim here would also act to punish the improper denial of benefits if done as part of

a pattern of racketeering activity. “To the extent that the [state] law prohibited

practices also prohibited under federal law,” the federal law does not “frustrate a goal

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of [the state] law.” Humana [Inc v Forsyth, 525 US 299, 119 S Ct 710, 142 L Ed 2d

753 (1999)], 525 US at 310-11, 119 S Ct 710 (internal quotation marks omitted).

Moreover, the federal interest in protecting individuals against a pattern of

racketeering activity based on fraud is “perfectly compatible” with the state interest

in providing a certain remedy for employees who have suffered workplace injuries.

Id, at 311, 119 S Ct 710. 

****

....the WDCA provision regarding sanctions for failure to pay benefits does not

appear to contemplate the fraudulent denial of workers compensation benefits. 

Brown noted that the State of Michigan had not filed an amicus brief at any time in the five

years Brown v Cassens has been pending in the federal courts. Significantly, the State declined to

file a brief in support of the Brown defendants’ for certiorari for review of their claim that the

McCarran-Ferguson Act reverse preempted the plaintiffs’ RICO suit. (Plaintiffs’ reply brief misstated the Supreme Court case number; it is 08-1375; the clerk can verify Michigan has not filed in

support of the petition.) 

The RICO Act is to be constructed liberally, in favor of plaintiffs, to effectuate its remedial

intent. 

In a portion of the statute that remains uncodified, Congress directed that RICO

“shall be liberally interpreted to effectuate its remedial purposes.” Section 401(a)

of Pub. L. No 91-452, 84 Stat. 947, 18 USC 1961 note.

Civil Rico, by Smith and Reed, Lexis-Nexis, para. Section 1.02, page 1-8.

Liberal construction shall be applied with special vigor to section 1964 of RICO, which

provides for the civil remedy sought by this suit: “... if Congress’ liberal-construction mandate is to

be applied anywhere, it is in §1964, where RICO’s remedial purposes are most evident.” Sedima,

SPRL v Imrex Co, 473 US 479 at 491 n. 10, 105 S Ct 3275 at 3283 n. 10, 87 L Ed 2d at 360 (1985)

Coca Cola’s motion should be denied.

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/s/ Marshall Lasser 

Marshall Lasser PC, by 

Marshall Lasser P25573

po box 2579

Southfield MI 48307

(248) 647 7722

mlasserlaw@aol.com

ddtalon@gmail.com

Dated: August 11, 2009

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