GA Code § 16-14-6 (2021)
2021 Georgia Code|Title 16 - Crimes and Offenses|Chapter 14 - Racketeer Influenced and Corrupt Organizations|§ 16-14-6. Civil Remedies

  Any superior court may, after making due provisions for the rights of innocent persons, enjoin violations of Code Section 16-14-4 by issuing appropriate orders and judgments, including, but not limited to:   Ordering any defendant to divest himself or herself of any interest in any enterprise, real property, or personal property;   Imposing reasonable restrictions upon the future activities or investments of any defendant, including, but not limited to, prohibiting any defendant from engaging in the same type of endeavor as the enterprise in which he or she was engaged in violation of Code Section 16-14-4;   Ordering the dissolution or reorganization of any enterprise;   Ordering the suspension or revocation of any license, permit, or prior approval granted to any enterprise by any agency of the state; or   Ordering the forfeiture of the charter of a corporation organized under the laws of this state or the revocation of a certificate authorizing a foreign corporation to conduct business within this state upon a finding that the board of directors or a managerial agent acting on behalf of the corporation, in conducting affairs of the corporation, has authorized or engaged in conduct in violation of Code Section 16-14-4 and that, for the prevention of future criminal activity, the public interest requires that the charter of the corporation be forfeited and that the corporation be dissolved or the certificate be revoked.     Any aggrieved person or the state may institute a civil action under subsection (a) of this Code section. In such civil action, relief shall be granted in conformity with the principles that govern the granting of injunctive relief from threatened loss or damage in other civil cases, provided that no showing of special or irreparable damage to the person shall have to be made. Upon the execution of proper bond against damages for an injunction improvidently granted and a showing of immediate danger of significant loss or damage, a temporary restraining order and a preliminary injunction may be issued in any such action before a final determination on the merits.   Any person who is injured by reason of any violation of Code Section 16-14-4 shall have a cause of action for three times the actual damages sustained and, where appropriate, punitive damages. Such person shall also recover attorney's fees in the trial and appellate courts and costs of investigation and litigation reasonably incurred. The defendant or any injured person may demand a trial by jury in any civil action brought pursuant to this Code section.   Any injured person shall have a right or claim to forfeited property or to the proceeds derived therefrom as set forth in Code Section 9-16-16.   A conviction in any criminal proceeding shall estop the defendant in any subsequent civil action or civil forfeiture proceeding under this chapter as to all matters proved in the criminal proceeding.    (Code 1933, § 26-3406, enacted by Ga. L. 1980, p. 405, § 1; Ga. L. 2015, p. 693, § 2-25/HB 233.)   Editor's notes.   - Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure."   Law reviews.   - For article, "The Civil Jurisdiction of State and Magistrate Courts," see 24 Ga. St. B.J. 29 (1987). For article, "A Comprehensive Analysis of Georgia RICO," see 9 Ga. St. U.L. Rev. 537 (1993). For article, "Theories of Stockbroker and Brokerage Firm Liability," see 9 Ga. St. B.J. 12 (2004). For article, "Overcoming Under-Compensation and Under-Deterrence in Intentional Tort Cases: Are Statutory Multiple Damages the Best Remedy?," see 62 Mercer L. Rev. 449 (2011). For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 1 (2015).   JUDICIAL DECISIONS   Constitutionality.    - Trial court's dismissal of the claims against the in personam defendant was reversed because since the equitable remedies allowed by O.C.G.A. § 16-14-6(a) were available to other aggrieved parties as well as to the state, an action for such remedies was uncharacteristic of a criminal matter. As such, such a claim was not unconstitutional. State v. Singh, 291 Ga. 525, 731 S.E.2d 649 (2012).   Legislative purpose not element of cause of action.    - Expression of legislative purpose in enacting O.C.G.A. Ch. 14, T. 16 is not an element of a civil cause of action under RICO. State v. Shearson Lehman Bros., 188 Ga. App. 120, 372 S.E.2d 276 (1988); Reaugh v. Inner Harbour Hosp., 214 Ga. App. 259, 447 S.E.2d 617 (1994).    O.C.G.A. Ch. 14, T. 16 requires the plaintiff to allege an organized crime nexus.  Georgia Gulf Corp. v. Ward, 701 F. Supp. 1556 (N.D. Ga. 1987).   Claim for attorney fees based on bad faith.   - Loan servicer's argument that the borrowers' claim for attorney fees should be dismissed lacked merit because regardless of whether the loan servicer had acted in bad faith, the court could not, at a motion to dismiss stage, rule on whether the loan servicer had been stubbornly litigious or whether it had caused the borrowers unnecessary trouble and expense. Kerfoot v. FNF Servicing, Inc., F. Supp. 2d (M.D. Ga. Oct. 25, 2013).   Subsection (c).    - Authorization of recovery of post-trial attorney fees and costs in O.C.G.A. § 16-14-6(c) does not violate equal protection, due process, or chill the rights of litigants seeking appellate review. Dee v. Sweet, 268 Ga. 346, 489 S.E.2d 823 (1997).   Standing.    - Party indirectly injured by Racketeer Influenced and Corrupt Organizations (RICO), O.C.G.A. § 16-14-1 et seq., offense lacks standing to bring a RICO claim. Morast v. Lance, 631 F. Supp. 474 (N.D. Ga. 1986), aff'd, 807 F.2d 926 (11th Cir. 1987).   National bank vice president, who was discharged for reporting an irregular transaction to the comptroller of the currency, was not entitled to relief under O.C.G.A. Ch. 14, T. 16, since the vice president was not fired because of a refusal to participate in the bank's illegal scheme and, consequently, the vice president's injury did not flow directly from the banking violations. Morast v. Lance, 807 F.2d 926 (11th Cir. 1987).   Forfeiture.    - Trial court properly allowed only individual members of a class to assert their claims against forfeited funds or property because the members were trying to use the property or funds forfeited in the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act, O.C.G.A. § 16-14-1 et seq., proceeding as a recovery "superfund" for their federal class action claims; the members cited no authority supporting the members' contention that a federally certified class in a federal class action case had to be considered to be an "injured person," as that term was used in RICO, O.C.G.A. § 16-14-6(d), in proceedings instituted under a state RICO forfeiture provision. Smith v. Cisco, 316 Ga. App. 871, 730 S.E.2d 583 (2012), cert. denied, No. S12C1922, 2012 Ga. LEXIS 976 (Ga. 2012).    While the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., specifically O.C.G.A. § 16-14-6(d), allows an injured person to intervene and to make a claim to the forfeited property and that claim is superior to that of the state, there is nothing in the statute that gives injured persons the right to dictate to the state which property should be forfeited to the state; thus, nothing in the statute prevents the state from making a "unilateral decision" concerning which property it will pursue in the forfeiture proceedings. Smith v. Cisco, 316 Ga. App. 871, 730 S.E.2d 583 (2012), cert. denied, No. S12C1922, 2012 Ga. LEXIS 976 (Ga. 2012).   Bond.    - Because officers failed to move in the trial court for the state to post a bond under the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., specifically O.C.G.A. § 16-14-6(b), the officers' claim that the trial court erred in not requiring the state to post a bond would not be considered on appeal; the officers did move for the receiver to post a bond, but the trial court had discretion whether or not to require the receiver to give a bond conditioned for the faithful discharge of the trust reposed, O.C.G.A. § 9-8-10, and the trial court did not abuse that discretion. Pittman v. State, 288 Ga. 589, 706 S.E.2d 398 (2011).   Sufficiency of complaint.    - Complaint which alleges that the plaintiff was injured as a result of the defendant having committed at least two similar or interrelated predicate offenses shall survive a motion to dismiss for failure to state a claim. State v. Shearson Lehman Bros., 188 Ga. App. 120, 372 S.E.2d 276 (1988).    Former employee's Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., claim, alleging the former employer was defrauding customers and engaging in racial discrimination, failed because there was no evidence the employee was injured by the commission of any predicate acts, and despite the employee's apparent argument to the contrary, racial discrimination was not listed under former paragraph (9) of O.C.G.A. § 16-14-3 as a predicate act. Giles v. BellSouth Telecomms., Inc., F.3d (11th Cir. 2013)(Unpublished).    Trial court properly ruled that the basis for treble damages under RICO had not been proved as only the principal damage award supported by the record was the $5,960.63 amount reflected in the check attached to the complaint and the complaint otherwise did not break down an award by claim. Stewart Ausband Enters. v. Holden, 349 Ga. App. 295, 826 S.E.2d 138 (2019).   Preponderance of evidence required.    - In a civil action under the Georgia RICO Act, O.C.G.A. § 16-14-1 et seq., given the similarities in the purpose and language of the federal and Georgia RICO statutes, together with the General Assembly's mandate to liberally construe the Act to effectuate its remedial purposes, under O.C.G.A. § 16-14-2(b), the applicable standard of proof in state civil RICO actions was held to be a preponderance of the evidence; thus, the Supreme Court of Georgia overruled Simpson Consulting, Inc. v. Barclays Bank PLC, 227 Ga. App. 648 (490 S.E.2d 184) (1997), and those other cases holding to the contrary, specifically, Blanton v. Bank of America, 256 Ga. App. 103 (2002), In re Copelan, 250 Ga. App. 856 (2001), and Tronitec, Inc. v. Shealy, 249 Ga. App. 442 (2001). Williams Gen. Corp. v. Stone, 279 Ga. 428, 614 S.E.2d 758 (2005).    Trial court erred in a bifurcated suit asserting a claim of illegal insurance sales under the Georgia Racketeer Influenced and Corrupt Organizations Act (Georgia RICO), O.C.G.A. § 16-14-1 et seq., by instructing the jury that the suing passenger of a cab was required to prove the asserted Georgia RICO claims against two cab companies by clear and convincing evidence as the proper standard of proof to have been applied was a preponderance of the evidence. Am. Ass'n of Cab Cos. v. Parham, 291 Ga. App. 33, 661 S.E.2d 161 (2008), cert. denied, No. S08C1409, 2008 Ga. LEXIS 690, cert. granted, No. S08G1410, No. S08C1409, 2008 Ga. LEXIS cert. granted, No. S08G1410, 2008 Ga. LEXIS 728 (Ga. 2008).   Preclusion.    - When victims of a fraudulent scheme who sued the perpetrator of the fraud under the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., had previously unsuccessfully sued the perpetrator for fraud and related claims, judgment n.o.v. was properly entered in favor of the perpetrator because the victims' claim was barred by res judicata and collateral estoppel, as it should have been raised in their previous suits against the perpetrator, which involved the same parties and the same subject matter. Austin v. Cohen, 268 Ga. App. 650, 602 S.E.2d 146 (2004).   Remedy at law does not preclude injunctive relief.    - Even if the plaintiff had a remedy at law in the form of money damages for breach of contract, a preliminary injunction was proper when issued in accordance with O.C.G.A. § 16-14-6. Cotton, Inc. v. Phil-Dan Trucking, Inc., 270 Ga. 95, 507 S.E.2d 730 (1998).   Proof required for treble damages.    - In an action based on a violation of O.C.G.A. § 16-10-20, prohibiting the making of false statements, even though plaintiff had to show the defendants' criminal acts injured plaintiff to recover treble damages, plaintiff's inability to show that plaintiff was actually misled by the false statements was not fatal. Maddox v. Southern Eng'g Co., 216 Ga. App. 6, 453 S.E.2d 70 (1994).   Attorney fees.    - In light of the practical difficulties required in allocating attorney fees to specific claims in Racketeer Influenced and Corrupt Organizations Act (RICO), O.C.G.A. § 16-14-1 et seq., cases, it will not be required unless the unsuccessful claims and those not receiving awards of attorney fees are distinctly different claims for relief, based on different facts and legal theories. Dee v. Sweet, 218 Ga. App. 18, 460 S.E.2d 110 (1995).    Damages award of $1.00 was sufficient to justify the award of attorney fees. Dee v. Sweet, 218 Ga. App. 18, 460 S.E.2d 110 (1995).    Prevailing plaintiffs in a RICO action could recover attorney fees and costs related to the investigation and litigation of actions necessary to collect on the RICO judgment they were awarded. Dee v. Sweet, 268 Ga. 346, 489 S.E.2d 823 (1997).    Plain language of O.C.G.A. § 16-14-6(c) makes it clear that the statutory award of attorneys' fees represents a separate and distinct interest awarded to compensate each injured plaintiff individually. Darden v. Ford Consumer Fin. Co., 200 F.3d 753 (11th Cir. 2000).    Each plaintiff's share of the attorneys' fees recoverable under Georgia's RICO statute, O.C.G.A. § 16-14-1 et seq., may not be aggregated to satisfy the amount-in-controversy requirement because under Georgia law each individual plaintiff has a separate and distinct statutory right or claim to recover those attorneys' fees, and Georgia law provides that those fees are to compensate the injured plaintiff. Darden v. Ford Consumer Fin. Co., 200 F.3d 753 (11th Cir. 2000).    Arbitration agreements' class action waiver was valid and enforceable because the arbitration agreements expressly permitted the borrower/plaintiff and the other consumers to recover attorneys' fees and expenses "if allowed by statute or applicable law" and such relief was available under the applicable law, Georgia's Racketeering Influenced and Corrupt Organizations Act, specifically O.C.G.A. § 16-14-6(c). Jenkins v. First Am. Cash Advance of Ga., LLC, 400 F.3d 868 (11th Cir. 2005), cert. denied, 546 U.S. 1214, 126 S. Ct. 1457, 164 L. Ed. 2d 132 (2006).   Exhaustion of administrative remedies.    - Allegation of Insurance Code violations does not transform a civil RICO complaint into a cause of action which must be pursued exclusively through administrative channels, particularly when numerous other predicate acts are alleged in the complaint including fraud. Provident Indem. Life Ins. Co. v. James, 234 Ga. App. 403, 506 S.E.2d 892 (1998).   Bankruptcy.   - State racketeering action against the family of a debtor based on a property transfer to avoid debt collection was not property of a bankruptcy estate because a trustee stood in the shoes of the debtor, who could not have asserted the action against the family due to a role as a coconspirator. Johnson v. Flatau (In re Stewart), 329 Bankr. 910 (Bankr. M.D. Ga. 2005), aff'd, 339 Bankr. 524 (M.D. Ga. 2006).   Automatic stay did not prohibit a state racketeering action brought against the family of a debtor relating to the transfer of property to avoid debt collection because a judgment against the family would not have been in effect a judgment against the estate; the family was not entitled to indemnity from the estate. Johnson v. Flatau (In re Stewart), 329 Bankr. 910 (Bankr. M.D. Ga. 2005), aff'd, 339 Bankr. 524 (M.D. Ga. 2006).   Treble damages and attorneys fees awarded.    - Internet service provider's success on both the provider's federal and state RICO claims each independently mandated the trebling of the provider's damages, including the provider's attorneys fees, under 18 U.S.C. § 1964(c) and O.C.G.A. § 16-14-6(c), respectively, against an individual who had stolen Internet accounts in order to engage in unlawful spamming and spoofing activities. Earthlink, Inc. v. Carmack, F. Supp. 2d (N.D. Ga. May 7, 2003).   Estoppel to contest liability following criminal conviction.    - Trial court erred in denying an investor's motion for partial summary judgment as to the business person's liability on the investor's civil Georgia Racketeer Influenced and Corrupt Organization Act (RICO), O.C.G.A. § 16-14-1 et seq., claim against the business person because the business person's criminal conviction estopped the business person from contesting civil liability pursuant to RICO, O.C.G.A. § 16-14-6(c). Cox v. Mayan Lagoon Estates Ltd., 319 Ga. App. 101, 734 S.E.2d 883 (2012).    Cited in Doxie v. Ford Motor Credit Co., 603 F. Supp. 624 (S.D. Ga. 1984); Johnson v. Fleet Fin., Inc., 785 F. Supp. 1003 (S.D. Ga. 1992); Blalock v. Anneewakee, Inc., 206 Ga. App. 676, 426 S.E.2d 165 (1992); Dale v. Comcast Corp., 498 F.3d 1216 (11th Cir. 2007); Cisco v. State, 285 Ga. 656, 680 S.E.2d 831 (2009); Austin v. Bank of Am., N.A., 293 Ga. 42, 743 S.E.2d 399 (2013); Nugent v. Myles, 350 Ga. App. 442, 829 S.E.2d 623 (2019); Star Residential, LLC v. Hernandez, 354 Ga. App. 629, 841 S.E.2d 392 (2020).   RESEARCH REFERENCES   ALR.   - Construction and application of Racketeer Influenced and Corrupt Organizations Act (RICO) nationwide service of process provision, 18 U.S.C.A. § 1965, 65 A.L.R. Fed. 2d 21.   Construction and Application of Federal Racketeer and Corrupt Organization Act's (RICO) Remedial Provision, 18 U.S.C.A. § 1964(a), 23 A.L.R. Fed. 3d 6.