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Toyota Motor Sales USA Inc. has moved to dismiss recent racketeering conspiracy allegations brought against the automaker on the grounds that the plaintiff, a former in-house attorney, has failed to establish the existence of an enterprise or that he was injured by the alleged conduct. In fact, Toyota argued, plaintiff Dimitrios Biller filed his RICO claims as a “collateral attack” against his former employer following a series of adverse rulings in a related case. The company filed its motion to dismiss on Monday in federal court in Los Angeles. “Biller and his consulting company misapply RICO by dressing up an employment dispute — properly brought, if at all, under state law — as a racketeering scheme,” Toyota says in its motion. “The RICO Act was never intended to control state law contract disputes.” Biller was national managing counsel in the legal services group in charge of Toyota’s rollover crash litigation program from 2003 until his resignation in 2007. In a suit filed on July 24, he claimed that the auto manufacturer hid or destroyed electronic evidence in numerous rollover suits that he felt he was “ethically and legally obligated to turn over.” He named Toyota Motor Sales USA, which is located in Torrance, Calif.; its parent, Toyota Motor Corp.; and several in-house attorneys, including Christopher Reynolds, the general counsel of the legal services group of Toyota Motor Sales, and former general counsel Dian Ogilvie. Biller says in his complaint that Toyota engaged in “criminal acts.” “For years, Defendants Toyota Motor Corporation, its United States subsidiaries, and key Toyota executives, have conspired, and continue to conspire, to unlawfully withhold evidence from plaintiffs and obstruct justice in lawsuits throughout the United States against Toyota,” Biller’s complaint says. “Many of the plaintiffs in these lawsuits sustained catastrophic and fatal injuries in rollover accidents involving Toyota vehicles.” The suit threatens to reopen personal injury suits against Toyota brought on behalf of victims of rollover accidents. In September, the judge rejected Toyota’s motion to seal Biller’s lawsuit, saying that would be “futile” given widespread press reports about his claims. Biller has since filed an amended complaint, adding claims of defamation against Toyota, which, in a recent press release, denied the allegations while making “intentionally false and defamatory statements regarding Biller personally, his professional reputation and credibility.” In its motion to dismiss, Toyota says that Biller and his consulting firm, LDT Consulting, both plaintiffs in the action, have failed to identify a racketeering enterprise or assert claims that either has been harmed. Both elements are required to state a claim under the RICO Act. “Plaintiffs have not alleged any facts in support of their allegation that Defendants have gained any income as a result of racketeering activities, let alone that such income caused Plaintiffs’ injury,” Toyota says in its motion. The RICO Act does not award damages for emotional distress, personal injury, job loss or harm to one’s reputation, the motion continues. In addition, it says that its efforts to protect its confidential information do not rise to the level of racketeering. Toyota also notes that Biller filed his lawsuit following a number of rulings in a separate action that Toyota filed against him in November 2008. The automaker sought an injunction preventing Biller from disclosing confidential information about his employer’s litigation practices. Biller claimed that such restrictions prevented him from earning a living. Los Angeles Co., Calif., Superior Court Judge John L. Segal granted a preliminary injunction against Biller on Sept. 25 and referred him to the State Bar of California for investigation of his conduct. Biller’s lawyer, Jeffrey Allen, a partner at Allen + Wohrle in Santa Monica, Calif., did not return a call for comment. In addition to the RICO claims, Biller has sued Toyota for wrongful termination and intentional infliction of emotional distress. A former partner at Pillsbury Winthrop Shaw Pittman, Biller said that he suffered a mental breakdown and was forced to resign after Toyota forced him to withhold evidence in the rollover cases. He received a $3.7 million severance. Toyota has filed a motion to arbitrate the employment claims. A hearing on the motion to dismiss and the arbitration motion is scheduled for Nov. 9. Meanwhile, in separate legal proceedings in Texas, a hearing on a temporary restraining order was called off after Toyota reached an agreement on Oct. 7 with rollover plaintiffs over four boxes of documents that Biller provided to the court. Those plaintiffs had filed emergency motions to examine the boxes and asked to depose Biller “before he lapses into an emotional state that is not conducive to sworn testimony,” according to court documents. A lawyer for the plaintiffs, E. Todd Tracy, of the Tracy Law Firm in Dallas, said that the agreement would allow the court to hear what Biller has to say about the documents in a closed hearing. Also, the documents have received added protection and are now housed at a document services firm. “I don’t want Toyota to touch the documents,” Tracy said. A Tracy did not return an e-mail requesting comment. Texas Lawyer contributed to this story.

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