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staff reporter Now that a jury has acquitted Tyson Foods Inc. of criminal violations of immigration law, federal prosecutors can no longer insist, as they had throughout the trial, that the food processing giant forfeit some $24 million that it allegedly saved by hiring illegal aliens. But the acquittal hasn’t persuaded Howard W. Foster, a shareholder in Chicago’s Johnson & Bell, that Tyson is blameless. He intends to try to make the company pay for its alleged wrongdoing through a new type of civil claim that has been examined by only a few courts, with mixed results. The jury’s verdict on March 26 came at the end of a seven-week trial in a Chattanooga, Tenn., federal courthouse. U.S. v. Tyson Foods Inc., No. 4:01-cr-61. Foster represents four former Tyson employees who claim that their wages, and the wages of a whole class of Tyson employees similarly situated, were driven down by Tyson’s alleged scheme. Trollinger v. Tyson Foods, No. 4:02-cv-23. The new cause of action relies on a 1996 change in federal law that brought immigration crimes within the ambit of the Racketeer Influenced and Corrupt Organizations Act (RICO). Earlier ruling U.S. District Judge R. Allan, who presided over Tyson’s criminal trial, threw out Foster’s lawsuit last July. He ruled that even if it were true that Tyson conspired with temporary agencies to smuggle illegal aliens into the country and employ them in its plants, the claim by Foster’s clients that the scheme depressed their wages was “sheer speculation” that failed to take into account the wide range of other factors that affect wage levels. Two months after Allan’s ruling, the 9th U.S. Circuit Court of Appeals rejected his reasoning in a different case in a decision involving agricultural workers in Washington state, according to Foster. In Mendoza v. Zirkle Fruit Co., 301 F.3d 1163, the 9th Circuit said that the claim “[t]hat wages would be lower if, as alleged, the growers relied on a work force consisting largely of undocumented workers, is a claim at least plausible enough to survive a motion to dismiss.” In 2001, the 2d Circuit allowed a janitorial service to proceed with a RICO suit against a competitor that had allegedly reaped a competitive advantage by hiring lower-paid undocumented aliens. Commercial Cleaning Servs. v. Colin Serv. Sys. Inc., 271 F.3d 374. Foster hopes that the 6th Circuit will look to those cases as it considers his appeal of Allan’s ruling. He said a decision from the court is probably months away. If the 6th Circuit reverses Allan, Foster said, he will be free to pursue his case against Tyson despite last week’s acquittal. While Tyson is not guilty “beyond a reasonable doubt,” he said, the question still remains whether it is liable “more likely than not.” Tyson’s attorneys insist that there is no evidence that the company is guilty of wrongdoing. Mark D. Hopson, a partner in the Washington office of Chicago’s Sidley Austin Brown & Wood, who represents Tyson in both the criminal and civil cases, said that Tyson’s acquittal is the result of compelling evidence of “the vigor and consistency with which Tyson sought to uphold the law.” He noted that Tyson volunteered to participate in a government-sponsored program to use computers to check job applicants’ eligibility. The company voluntarily disclosed problems and suggested setting up a sting operation that could have implicated employees, he said. Finally, he said, jurors learned that Tyson fully cooperated with federal prosecutors after an undercover operation caught a few rogue managers who accepted temporary workers despite having reason to doubt their eligibility for work. Hopson’s partner, Frank Volpe, also of Sidley’s D.C. office, said that prosecutors retreated from their initial demand that Tyson forfeit $130 million when Tyson presented evidence that it had not profited by hiring temporary workers. During a battle of experts outside of the courtroom, the government ultimately dropped its demand to $24 million, but Tyson rightly insisted that it owed nothing, Volpe said. That same expert evidence will prove that Tyson owes nothing to Foster’s clients, he predicted. Young’s e-mail address is <a href=”mailto:[email protected][email protected] .

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