author: McNAUGHT, District Judge.

text:
    William H. HEBERT, Plaintiff, v. MASSACHUSETTS TEACHERS ASSOCIATION RETIREMENT PLAN, et als., Defendants.
    Civ. A. No. 84-3465 Me.
    United States District Court, D. Massachusetts.
    Jan. 27, 1986.

      William F. Macauley, Craig & Macauley Professional Corp., Boston, Mass., for plaintiff.
    Robert J. Muldoon, Jr., Sherin & Lodgen, Boston, Mass., for Mass. Teachers Ass’n Retirement Plan.
    James F. O’Brien, Goulston & Storrs, and Walter J. Connelly, Lyne, Woodworth & Evarts, Boston, Mass., for Mass. Teachers Ass’n Retirement Plan Committee.
   OPINION

McNAUGHT, District Judge.

This action came on to be tried without jury. I have heard the evidence, and been favored by counsel with proposed findings of fact and conclusions of law.

The plaintiff, former Massachusetts Teachers Association Executive Director-Treasurer, by way of his amended complaint, sought relief against the Massachusetts Teachers Association (MTA), against the Massachusetts Teachers Association Retirement Plan, and against the Retirement Plan Committee of the Association (RPC). There are three counts in the amended complaint. The claims in counts one and two are ERISA counts (Employee Retirement Income Security Act of 1974), while count three is a pendent state law claim. The court is required to decide (1) whether Doctor Hebert is entitled to receive his retirement benefits in a lump-sum payment; (2) whether the Association and the Committee should be penalized for alleged failure to provide information, in violation of ERISA, and (3) whether the Association should be ordered to perform in accordance with plaintiff’s interpretation of a deferred compensation agreement.

The plaintiff, a former school teacher, was first hired by the Massachusetts Teachers Association in 1959 as an assistant to the Executive Director. After holding a number of positions under written contracts, he, in 1964, became Executive Director himself, and two years later, Executive Director-Treasurer. Each contract contained within its provisions the statement that it superseded any prior employment contract. A contract dated June 17, 1972 specifically provided: “(T)his agreement shall supersede and terminate an existing agreement of employment between the parties dated September 1, 1971, upon the commencement thereof.” Similar words — “supersede and terminate” — were used in contracts dated June 22, 1973, January 23, 1976 and June 20, 1979. On March 25, 1983, Doctor Hebert announced his intention to retire early. His normal retirement date would have been August 14, 1994 (his sixty-fifth birthday). His contract term was to end on June 30,1984, but he distributed a proposed Agreement to the Board (adopted unanimously by them) which provided in part (1) that Hebert would terminate his full-time employment on June 30, 1983; (2) that he would, however, continue to receive his salary until June 30, 1984; (3) that from June 30, 1983 to June 30, 1984 he would perform consulting services “as may from time to time be requested by MTA up to twenty hours a month”; that on June 30, 1984 he would retire "under the best options then available to him” from the MTA retirement plan on September 1, 1984 (Exh. 5) and (4) that “This agreement upon its execution is to supersede the existing employment contract and govern the future relationship between Hebert and MTA”.

On April 22, 1983 Hebert and his deputy (Jerome Landry) issued a memo to the MTA Executive Committee recommending the adoption of an Early Retirement Incentive Plan (ERIP) for managerial employees. On June 3 of that year, the Board voted its implementation. It provided, for eligible persons, election between the Retirement Plan currently in effect, or an Optional Retirement Plan, not yet in existence. This Optional or Alternative Retirement Plan was created by the “Eleventh Amendment to the Plan”, which was adopted by the MTA Board July 9, 1984. On July 29th, 1983 an enrollment form was sent to managerial employees, to be submitted by those persons wishing to enroll. (Doctor Hebert submitted his enrollment form two weeks before his fifty-fifth birthday, which occurred August 14, 1984).

Defendants’ emphasize the chronology of these events, especially in Proposed Findings 44 and 45: “One of the ‘incentives’ which Hebert had proposed in his April 22, 1983 ERIP (Early Retirement Incentive Plan) memorandum was the possibility of electing ‘[t]he Retirement Plan currently in effect; or ... [t]he Optional Retirement Plan.’ Plaintiff's Exhibit 6, Section 2.” Proposed Finding 45, which I adopt, reads: “As of the date of ERIP’s adoption, no ‘Optional Retirement Plan’ existed.” Implementation of ERIP was voted by the Board on June 4, 1983, at which time Doctor Hebert was still a managerial employee.

Section 3.08 of the Plan, as amended by the Eleventh Amendment (adopted July 9, 1984), provided that after July 1, 1983 any FSO member and eligible non-unit member “may elect in writing to have his or her benefits under the Plan determined under such alternative plan provisions”. Section 10.09 (as amended by the Eleventh Amendment) provided that any Alternative Plan Member who terminated employment on or after July 1,1983 could receive a lump sum payment in lieu of monthly retirement benefits payments. Section 3.08, as amended, granted the election to any eligible non-unit member in the employ of the Association on June 30, 1983. It was on July 24, 1984, after the Amendment had been adopted, that Hebert sent a writing stating that he elected to receive his benefits under the Optional Retirement Formula. On September 20th, the plaintiff wrote to the Chairman of the RPC, and stated that he was choosing “the option of cash-out value of my retirement benefit.” Plaintiffs Exhibit 13. Finally, on October 31, 1984, Doctor Hebert filed the complaint in this action.

I find that as of June 30, 1983, the plaintiff “terminated his employment” as MTA Executive Director-Treasurer. Although he was employed by the Association on the 30th of June, from July 1, 1983 to June 30, 1984 Doctor Hebert functioned as a consultant. His chief service in that regard was attendance at an annual meeting of the National Education Association. The evidence disclosed that as of July 1, 1983 he did not have an office at the MTA, no secretary, nor any supervisory authority. He was not an executive, nor an administrator. On October first of that year, he became President and Chairman of the Board of the First Consumer Life Insurance Company, and received an annual salary from that company.

If one accepts the definition of the word “employee” as used in the Plan which became effective in 1967, he would conclude that Doctor Hebert was an employee of the MTA through June 30, 1983, but was not an “employee” after that date. An “employee” was a person scheduled to work at least a thousand hours in a plan year (which began July 1 of a calendar year and terminated the next June 30th). Doctor Hebert was not scheduled to work a thousand hours in 1983-1984. Plaintiff’s Exhibit 1, § 2.04. Employment as of June 30, 1983, however, is critical to Doctor Hebert’s claim to eligibility under the optional formula. He met that critical requirement.

When opening statements were made at trial, plaintiff’s counsel asserted that with respect to proof of entitlement to a lump sum payment of benefits, Dr. Hebert’s bow had three strings. He could recover on the theory of applicability of the early retirement incentive plan, the theory of “provisions in his employment agreements” and, finally, by reason of an “unwritten custom”. There was no evidence with respect to the last on which I could rely; hence, the third theory is discounted altogether.

First: the ERIP theory. The MTA retirement plan was adopted effective April 1, 1967. (Exhibit 1) As stated herein-before, it was amended eleven times before this action was commenced. Under that plan (Article 7), if a person attained the age of fifty-five and had served for ten or more years, he could retire and expect to receive a monthly early retirement benefit. Doctor Hebert and Mr. Landry recommended the early retirement incentive plan, and I find that Doctor Hebert was motivated to make the recommendation partially in the hope that he himself would benefit thereby. He recommended it within a few weeks of his announcement of his planned resignation, and the acceptance of it on April 4th by the Board. The benefits available under ERIP included a cash-out option; hence, when the Board voted to implement ERIP for managerial employees on June 3, 1983, if it had at that time adopted the Eleventh Amendment, and made it applicable to persons then employed, there would have been no doubt of its application to Doctor Hebert’s situation. Doctor Hebert was a non-unit member [not a member of Field Services Organization, Massachusetts Association of Teacher Attorneys, or the Massachusetts Teachers Association Staff Organization (“FSO”, “MATA” and, “MTASO”) ] and a managerial employee on June 3rd. Two modes of eligibility were provided by the Plan as amended — (1) cease employment or retire on or after July 1, 1983 or (2) be in the employ of the Association as a non-unit member on June 30, 1983. This second mode, as enunciated in Section 3.08 as amended by the Eleventh Amendment is the source of plaintiff’s entitlement to the lump sum cash payment. It provided in part that any eligible non-unit member in the employ of the Association on June 30, 1983, could elect in writing to have his or her benefits under the Plan determined under such alternative plan provisions. In July of 1984, then, when Section 3.08 was revised, two time periods for application were defined. For persons hired on or after July 1, 1983 the alternative plan provisions automatically applied. For those who were employed June 30, 1983, the application of the alternative plan provision was optional. The plaintiff, I conclude, fell within the last category, and qualifies under the Early Retirement Incentive Plan for the lump sum payment.

He does not, in my opinion, qualify for lump sum payment of benefits by reason of his employment agreements in and of themselves. The employment agreement of 1979 entitled Hebert, it is true, to fringe benefits available to other executive staff members (including FSO members). On March 3, 1983 the MTA and the FSO agreed (Exhibit 4, Article 15) to a group of benefits which included the “cash-out” option. It was known as the “Alternative Plan”, and this was the plan which was eventually incorporated into the Plan by adoption of the Eleventh Amendment. Doctor Hebert, however, drafted the March 1983 agreement which “upon its execution is to supersede the existing employment contract and govern the future relationship between Hebert and the MTA”. This was the plaintiff’s choice of language. It was he who used the word “supersede”. Webster’s New International Dictionary (2d Ed.1948) offers the definition: “to make void or useless ... to make unnecessary or superfluous..”. The American Heritage Dictionary, College Edition, 1976, similarly offers: “... To take the place of; replace or succeed.. To cause to be set aside or displaced..”. Plaintiff tries to make much of the fact that in prior agreements, the phrase “supersede and terminate” had been used. He argued that this evidenced an intention on his part that the 1979 agreement be “terminated” only where it was inconsistent with the 1983 agreement. This, I cannot accept. He knew the meaning of the word “supersede”. There is no ambiguity, and if there were any, it would have to be resolved against the draftsman of the document.

Plaintiff nonetheless is entitled to have his retirement benefits calculated in a single lump sum payable as of October 1, 1984, as determined. He exercised his election of the cash-out option by submitting a proper written document.

Two further matters with respect to the first count. Plaintiff has asserted that the defendant Retirement Plan Committee through its agents and employees has acknowledged liability for a lump sum payment [by reason of an alleged adoptive admission under Rule 801(d)(2)(B) and a vicarious binding admission of an employee under Rule 801(d)(2)(D) of the Rules of Evidence]. I do not find liability on such a basis. The evidence was admitted for consideration under the rules cited, but I am not persuaded that plaintiff should prevail on the factual issues. At page 28 of his proposed findings of fact, plaintiff argues that “The Committee told Hebert he was eligible for a lump sum payment in its memorandum of February, 1984 (Exhibit 2). In two separate letters, dated September 21, 1984 and January 21, 1985, the Committee’s own actuary conceded his eligibility..Wrong. Only the Retirement Plan Committee had the right to determine eligibility. The Committee at no time communicated such a decision. The actuary calculated plaintiff's benefits based on the hypothesis that Hebert was eligible. This was not a determination of eligibility or an authorized statement to that effect. Rule 801(d)(2)(C) is inapplicable. The recipient of the letters from the actuary was not a member of or an employee of the Retirement Plan Committee, nor did she have any power to determine eligibility.

Finally, I decline the request of defendants to find that there was any removal on August 18, 1984 of the features of ERIP from the Plan, despite an apparent concession by Hebert, on the stand, to the effect that he was “informed” that the cash-out option was repealed. It was “reconsidered”, but not repealed.

Count Two sets forth the claim under 29 U.S.C. § 1132 which provides that a plan administrator who fails or refuses to comply with a request for information which the administrator is required to furnish may be liable (in the discretion of the court) in an amount of up to $100 a day. In this case the Retirement Plan Committee is the Plan Administrator. (Article 14.-01).

On September 27, 1984 plaintiff sent a letter to the Association’s Executive Director demanding “legal opinions respecting my rights”, and an actuarial report defining benefits along with a demand that certain action be taken. He had, by letter dated September 20th, said he wished to exercise the option of cash-out value of his benefit. On October 19th, the RPC Chairman acknowledged receipt of the September 20th letter and wrote to plaintiff that the Committee was studying the plan as it applied to his case. I conclude that this was most reasonable conduct since the Committee was not scheduled to meet until November and especially since 29 U.S.C. § 1133 provided that notice should be given in writing to one whose claim for benefits has been denied setting forth in simple terms the reason for the denial. When the September 27th letter was written, the claim had not been denied. Since the $100 a day penalty is punitive in nature, it certainly should not be imposed in this case. The facts do not disclose a basis for the mposition of punishment. On-January 4, 1985 it was agreed that the actuarial information Hebert had requested would be sent to him. In the opinion of the Court, this count should not have been brought. The request that was made for information wasn’t even directed to the Committee. It was sent to the Executive Director of the Association.

Count Three: Defendants concede that the Association was obliged by reason of a 1972 “Deferred Compensation” agreement to pay for Hebert’s benefit the annual portion of his term insurance “until such time as Hebert elects to withdraw the benefits under the plan.” (Exhibit 5) The March 25, 1983 agreement continued in force the pertinent provision of the 1972 deferred compensation agreement. That provided in part, as amended, that “If the employment of the Executive ... shall terminate prior to his Retirement date ... the amount to which (he) shall be entitled, upon termination (which date is June 30, 1984) shall be an amount equal to what the cash surrender value of said Policy would have been at the Date of Termination plus the then value of all accumulated dividends and other amounts had the Policy been kept in full force until the date of termination of employment.” Hebert’s employment terminated prior to his retirement date; hence plaintiff, I conclude, is entitled to either the cash surrender value or actual ownership of the policies maintained by the Association. Such an election should have been made by the plaintiff on June 30, 1984. The Association is not required to continue to pay the policy premiums.

Plaintiff may submit a form of judgment within twenty-one (21) days. Within seven (7)days thereafter, defendant may indicate their assent to the entry of such judgment in writing, or submit their proposed form of judgment.


source: Caselaw Access Project

author: CARRIGAN, District Judge.

license: Public Domain

text:
    Colleen Faye WALKUSCH, Plaintiff, v. BOARD OF COUNTY COMMISSIONERS for and on Behalf of LARIMER COUNTY, COLORADO, Defendant.
    Civ. A. No. 85-C-1001.
    United States District Court, D. Colorado.
    Jan. 27, 1986.
    Russell H. Nichols, Loveland, Colo., for plaintiff.
    Cathy S. Harris, Hall and Evans, Denver, Colo., for defendant.
   ORDER

CARRIGAN, District Judge.

Plaintiff in her amended complaint has asserted three claims for relief against the District Attorney and two Deputy District Attorneys of the Eighth Judicial District of Colorado. Two of the claims are brought under 42 U.S.C. § 1983 (1982) for deprivation of civil rights. The third is a pendent state claim for outrageous conduct. Defendants have moved to dismiss the first two claims on the ground that they are immune from liability. They have moved to dismiss the pendent state claim on the ground that this court has no jurisdiction to hear it. Federal jurisdiction is based on 28 U.S.C. § 1331 (1982). The parties have briefed the issues, and oral argument would not assist in resolving them.

The facts in this case are largely undisputed, and seen in a light most favorable to the plaintiff reveal the following. On March 1, 1984, the plaintiff received a summons and complaint from a Fort Collins police officer charging her with misdemeanor theft after she had been accused by a store detective while shopping. On March 2, an attorney entered an appearance for the plaintiff, and on March 15, the plaintiff entered a plea of not guilty. On or about March 20, 1984, the defendant Rottersman moved to dismiss the case pursuant to Colo.R.Crim.P. 48(a) because she had determined that the value of the items in question was over $200, and therefore the crime could be charged as a class IV felony under Colo.Rev.Stat. § 18-4-401(2)(c) (1973). Defendants gave no notice to the plaintiff of their intention to seek dismissal of the case, and at a hearing on March 23, of which the plaintiff had no notice, the case was dismissed. .

On April 2, 1984, the defendant Roselle filed a felony theft charge against the plaintiff in the state district court. Roselle-requested an arrest warrant for the plaintiff at the time the new case was filed, and a warrant was issued the same day. On April 12, 1984, the plaintiff was arrested at or near her place of employment. She was taken first to the Larimer County Detention Center and then to the Larimer County Courthouse. Later that same day she was released from custody on a personal recognizance bond.

Sometime later, the defendants learned that the items in question had been on sale and that their value based on the special sale price was less than $200. Accordingly, the defendants sought dismissal of the felony case and it was dismissed on June 27, 1984. Meanwhile, a new summons and complaint was issued on June 24, again charging the plaintiff with misdemeanor theft. That case was ultimately dismissed for violation of the plaintiffs statutory right to speedy trial. This action was commenced on April 10, 1985.

In her First Claim for Relief, the plaintiff alleges that the dismissal of the original misdemeanor charge without notice to her, and the filing of the felony charge, amounted to a violation of her right to assistance of counsel guaranteed by the sixth amendment to the United States Constitution. In her Second Claim for Relief, she alleges that the dismissal of the initial misdemean- or charge coupled with the pre-planned filing of a felony charge deprived her of her sixth amendment right to a speedy trial. I find and conclude for the reasons below set forth that these claims must be dismissed because the defendants enjoy an absolute immunity from suit.

Section 1983 contains no express grant of immunity from liability for violation of its strictures. However, the statute must be read against a common law background of official immunity. Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). “Because of the need to preserve a prosecutor’s independent decision-making and to prevent undue deflection of attention from public duties, prosecutors have long enjoyed absolute immunity at common law for performing certain quasi-judicial functions.” Higgs v. District Court, 713 P.2d 840, 850 IX Brief Times Reporter 1648, 1653 (December 2, 1985). The Supreme Court recognized an absolute immunity for prosecutors in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). “Prosecutors, like judges, must exercise discretionary judgment on the basis of evidence developed in the course of a formal criminal proceeding, and the functional similarity of their duties in such instances accounts for the characterization of prosecutorial immunity as ‘quasi-judicial.’ ” Higgs at 850, citing lmbler.

Prosecutors, however, are not entitled to absolute immunity from liability for all actions taken in pursuing a criminal prosecution.

“[A] prosecutor receives absolute immunity only when he acts as an “advocate,” that is, in his role as a participant in the judicial phase of the criminal process. When a prosecutor acts in any other capacity, the rationale for absolute immunity dissolves and the prosecutor receives only the lesser, qualified immunity.” Gray v. Bell, 712 F.2d 490, 499 (D.C.Cir.1983), cert. denied [465 U.S. 1100], 104 S.Ct. 1593 [80 L.Ed.2d 125] (1984).

To determine whether a prosecutor is acting as an advocate or in some other capacity, a functional test is used. Higgs at 850-51, Gray at 500-02; Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir.1980), cert. denied, Rashkind v. Marrero, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981); Hampton v. City of Chicago, 484 F.2d 602 (7th Cir.1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974); Robi-chaud v. Ronan, 351 F.2d 533 (9th Cir.1965).

While there are a number of factors that may be considered in determining the role in which a prosecutor is functioning while performing the challenged conduct, this case requires no such analysis. The conduct complained of is that of dismissing a case and refiling a second case. This is clearly advocatory, and not administrative or investigatory. See Higgs at 850-51. The conduct complained of here is virtually identical to that complained of in Imbler, where the Supreme Court held that a prosecutor is absolutely immune from liability for actions taken “in initiating a prosecution and in presenting the State’s case.” 424 U.S. at 431, 96 S.Ct. at 995. See also, Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (Agency officials entitled to absolute immunity from suits arising out of “[t]he decision to initiate administrative proceedings” and “the presentation of evidence on the record in the course of an adjudication.” Id. at 515, 98 S.Ct. at 2915). Dismissal of a case is likewise purely within the realm of a prosecutor’s advocatory functions.

Even if I were to rule that the defendants are only entitled to qualified immunity, I would have to grant summary judgment in their favor. In order to overcome a motion for summary judgment on the basis of a qualified immunity, a plaintiff in a § 1983 case must show that the constitutional rights for violation of which she is seeking redress were clearly established at the time of the alleged deprivation. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). While the right to counsel and the right to speedy trial are clear, plaintiff has proffered no case to suggest that the actions taken by the defendants clearly violated these provisions, and my own research has found none.

The sole remaining claim in this case is a pendent state claim. Under United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), I have only very limited power to exercise jurisdiction over pendent state claims in the absence of any cognizable federal claims. The circumstances that would warrant such an exercise of pendent jurisdiction are not present here, and therefore the Third Claim for Relief will be dismissed without prejudice.

Accordingly, it is ordered that the defendants’ motion to dismiss is granted. The plaintiff’s First and Second Claims for Relief are dismissed with prejudice. The Third Claim for Relief is dismissed without prejudice. The complaint and action in this case are dismissed. Each party shall bear his or her own costs.


author: BARBOUR, District Judge.

text:
    Samuel B. TINGLE, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. J84-0635(B).
    United States District Court, S.D. Mississippi, Jackson Division.
    Jan. 27, 1986.
    Alice Dale Goodsell, Jackson, Miss., for plaintiff.
    George Phillips, U.S. Atty., L.A. Smith, III, Asst. U.S. Atty., Jackson, Miss., for defendant.
   ORDER

BARBOUR, District Judge.

This matter is before the Court on the Report and Recommendation of the United States Magistrate to affirm the final decision of the Secretary of Health and Human Services denying Plaintiff’s claim for disability benefits under the Social Security Act. Plaintiff has filed an objection to the Report and Recommendation, alleging that the Dictionary of Occupational Titles was incorrectly used in this matter to describe the exertional capacities required for Plaintiff's past relevant work.

Plaintiff filed his application for disability benefits on July 26, 1983, alleging disability due to pulmonary disease. The Administrative Law Judge, after hearing, found that the Plaintiff was unable to pursue his past relevant work, that he had the residual functional capacity to perform a wide range of sedentary work, but that he did not have any acquired work skills which would be transferrable to other work and that he was therefore disabled under the relevant provisions of the Social Security Act. The Appeals Council reviewed this decision on its own motion and concluded that Plaintiff was not disabled. This conclusion was based upon a finding that Plaintiff’s past work as manager of a Western Union Telegraph office was sedentary in nature and involved only light work and that Plaintiff’s impairment thus did not prevent performance of his past relevant work. Because the Appeals Council found that Plaintiff could perform his past relevant work, it did not reach the question of whether or not Plaintiff could perform other types of gainful employment. The AU found that Plaintiff does not have any acquired work skills which are transferable to other work and that considering his residual functional capacity, age, education and work experience, Plaintiff was “disabled” under the applicable regulations.

As noted by the magistrate in his report and recommendation, the parties agree that Plaintiff has a severe impairment, but can perform sedentary work. The contested issue is whether Plaintiff’s past relevant work is sedentary in nature and therefore within his residual functional capacity to engage in sedentary occupations. The record shows that Plaintiff was employed as manager of a Western Union telegraph office with supervisory responsibility for approximately 150 agents throughout the State of Mississippi and that he was required to travel extensively by automobile. The Appeals Council classified Plaintiffs occupation as that of manager of a telegraph office. It also found that this occupation is described as sedentary in nature in the Dictionary of Occupational Titles (Dictionary). While Plaintiff does not dispute the description of the occupation, he alleges that his job is not classified and that the description is inapplicable.

As noted in DeLoatche v. Heckler, 715 F.2d 148, 151 (4th Cir.1983), the Secretary may rely upon the general job categories of the Dictionary as presumptively applicable to a claimant’s prior work, but a claimant may overcome the presumption by demonstrating that his duties were not those envisioned by the framers of the Secretary’s category. While the magistrate viewed the issue as whether or not the occupation of manager of a telegraph office is sedentary in nature, the real issue is whether Plaintiff’s occupation was correctly classified as that of “manager of telegraph office” in the first instance.

The record before this Court does not contain any information concerning the basis for the determination that Plaintiff’s former work fit within the occupational category of “manager of a telegraph office.” There is ample evidence in the record to show that Plaintiff worked as both a field supervisor and manager of a local telegraph office. In his supervisory capacity, Plaintiff was required to travel 1500 to 2000 miles per month and frequently worked overtime. There is a question of fact as to whether the category “manager of a telegraph office” was framed to in-elude these duties. As noted in Valencia v. Heckler, 751 F.2d 1082, 1086 (9th Cir.1985), every occupation consists of numerous tasks, each involving different levels of physical exertion, and it is contrary to the letter and the spirit of the Social Security Act to classify an applicant’s “past relevant work” according to the least demanding function of his past occupation. If Plaintiff’s former occupation was incorrectly categorized, then the description applicable to that category is irrelevant to the determination of the exertional capacities required in Plaintiff’s former occupation.

This matter is therefore remanded to the Secretary for determination as to whether Plaintiff’s former work was correctly categorized as that of “manager of a telegraph office.” If it is found that Plaintiff’s work included duties not included in the description of this category, then the Secretary should further determine whether Plaintiff’s former work was in fact sedentary in nature and thus within his residual functional capacity.


author: HADEN, Chief Judge.

text:
    Herman TACKETT, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. 84-3245.
    United States District Court, S.D. West Virginia, Huntington Division.
    Jan. 27, 1986.

      Bernard L. Spaulding, Grubb & Spauld-ing, Logan, W.Va., for plaintiff.
    Gary Pullin, Asst. U.S. Atty., Charleston, W.Va., for defendant.
   MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

This is an action under 42 U.S.C. § 405(g) to review the final decision of the Secretary of Health and Human Services denying Plaintiffs application for a period of disability and disability insurance benefits. The case is presently pending before the Court on cross motions of the parties for summary judgment.

Plaintiff was born on December 5, 1946, has a ninth grade education, and has past relevant work experience as a coal miner and assembly line worker in an automobile plant. He first filed an application for a period of disability and disability insurance benefits on July 17,1981, alleging disability commencing August 28, 1980, due to back and right leg impairments. The application was denied on initial consideration on August 28,1981, and Plaintiff failed to pursue it further. He filed a second application on April 20, 1982, again alleging disability commencing August 28, 1980, due to back and right leg impairments. The application was denied initially and on reconsideration and Plaintiff then requested a hearing before an administrative law judge (ALJ). The AU considered the case de novo and in a decision dated April 26, 1983, determined that Plaintiff was entitled to a closed period of disability from August 28, 1980, to September 1, 1982. Disagreeing with the finding of the ALJ that his disability ceased on September 1, 1982, Plaintiff requested review by the Appeals Council. The request was granted, however, on April 13,1984, the Appeals Council issued a decision denying benefits altogether. Plaintiff instituted this action on May 10, 1984.

The Court’s function on review is limited to a determination of whether the Secretary’s findings are supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is

“evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is ‘substantial evidence.’ ”

Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir.1972).

Plaintiff alleges disability due to residuals from two back injuries. Briefly, the evidence shows that he injured his back while working in the mines on August 28, 1980. An examination of his back by Francisco C. Valentin, M.D., on October 17, 1980, showed marked paravertebral muscle spasms with some limitation of flexion, pain on hyperextension and rotation, and marked tenderness along the lumbosacral area bilaterally. Straight leg raising was positive at 50° on the right and 60° on the left. An x-ray of the lumbosacral spine was within normal limits. Dr. Valentin’s diagnostic impression was acute lumbar myositis. Plaintiff’s symptoms continued despite conservative treatment by Dr. Valentin and he was hospitalized on January 11, 1981. A lumbar myelogram showed a defect at the L-5, S-l area and a lumbar laminectomy with excision of a huge ruptured disc at the “5-1” level was performed on January 21, 1981.

Plaintiff was seen by Diane E. Shafer, M.D., on March 4, 1981, for worker’s compensation purposes. Dr. Shafer opined that Plaintiff remained disabled and estimated that he would be able to return to work in about two months.

In a letter dated July 27,1981, Dr. Valentin reported that he had continued to see Plaintiff for complaints of back and leg pain following his surgery. An examination on April 6,1981, showed severe muscle spasms along the back area, pain with flex-ion and hyperextension, and positive straight leg raising at 45° bilaterally. When seen on May 18, June 1, and June 17, 1981, Plaintiff had a moderate amount of back and leg pain. He received an intra-thecal injection on June 17, 1981, and was somewhat improved on July 8, 1981. Dr. Valentin stated that Plaintiff remained totally disabled.

On October 15,1981, Dr. Valentin reported that Plaintiff had returned to work on September 11, 1981, but had reinjured his back on October 14, 1981, when attempting to lift some timbers. An examination of his back on the date of the injury showed limited motion with pain on hyperextension, paravertebral muscle spasms, and tenderness along the back area. Straight leg raising was positive at 35 to 40° on the right and 60° on the left with a positive Laseque sign. There was also weakness of the toe extensor and ankle jerk on the right side.

Plaintiff was hospitalized on October 15, 1981, and underwent a second myelogram. The myelogram showed a defect at the L-5, S-l interspace suggesting a rehemiation of the lumbar disc. He was treated with physical therapy and a variety of medications and was discharged on November 5, 1981.

Dr. Shafer saw Plaintiff a second time for worker’s compensation purposes on November 24, 1981. She again opined that he was disabled.

Plaintiff was hospitalized on January 31, 1982, and underwent another lumbar lami-nectomy with excision of a huge ruptured disc at the “6-1” level. When seen by Dr. Valentin on March 24, 1982, he had less pain but a tingling sensation was noted along the right leg. On May 6, 1982, Dr. Valentin opined that Plaintiff remained totally disabled.

The last medical report in the record concerning Plaintiff’s back impairment is from James C. Owen, M.D., who examined Plaintiff on September 2, 1982, at the request of the Secretary. Dr. Owen’s examination showed a good range of motion with no redness or swelling of the joints. Plaintiff walked with a limp off his left foot and appeared somewhat weaker on his right thigh. He could squat with the help of his arms, had great difficulty toe walking, but could heel walk easily. Sensation was decreased bilaterally in the superior laterial thigh. Straight leg raising was negative bilaterally at 90° in the sitting position but positive at 30° in the supine position. Reflexes were 2+ bilaterally symmetrical at the ankles and knees. X-rays of the lumbo-sacral spine were essentially negative. Dr. Owen’s diagnoses included status post lam-inectomy with continued probable root compression pain.

The evidence shows that Plaintiff also suffers from mild chronic obstructive pulmonary disease and category 1 simple pneumoconiosis. The evidence does not include any ventilatory function studies.

The ALJ found that Plaintiff’s impairments were status post two lumbar lami-nectomies, degenerative changes in the lumbosacral spine, and chronic pulmonary disease. He found that Plaintiff’s work from September 11, 1981, to October 14, 1981, represented an unsuccessful work attempt and was not substantial gainful activity. The AU determined that Plaintiff was disabled from August 28, 1980, through September 1, 1982, but that beginning on September 2, 1982, he had the residual functional capacity to perform light work activity restricted to a clean environment. See 20 C.F.R. § 404.1567(b). Concluding that Plaintiff’s environmental restrictions would not prevent him from performing a significant number of jobs at the light work level, the ALJ then applied Rule 202.17 of Table No. 2, Appendix 2, Subpart P, 20 C.F.R. Part 404 to direct a finding of “not disabled”.

In reversing the ALJ’s decision, the Appeals Council first determined that consideration of the issue of disability for the period of August 28, 1980, through August 28, 1981, was precluded by the doctrine of res judicata, that the record contained no new and material evidence with respect to that period, and that the ALJ’s finding of disability during that period constituted an error of law. See 20 C.F.R. § 404.970(a)(2). The Appeals Council found that Plaintiff’s work from September 11, 1981, to October 14, 1981, was not an unsuccessful work attempt “but a genuine attempt to return to a normal life”, and that the attempt was interrupted by an exacerbation of Plaintiff’s back impairment “because he tried to perform work which was above his residual functional capacity.” Finally, the Appeals Council agreed with the ALJ’s finding of “not disabled” for the period subsequent to September 1, 1982.

After a review of the record, the Court finds that the final decision of the Secretary is not supported by substantial evidence. The decision is reversed in part and remanded in part for further proceedings.

Generally, a district court lacks jurisdiction under 42 U.S.C. § 405(g) to review a decision by the Secretary refusing to reopen a claim, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), or applying administrative res judicata as a bar to it, Teague v. Califano, 560 F.2d 615 (4th Cir.1977). However, if the claim has nevertheless been reconsidered on the merits at any administrative level and has thus in fact been reopened by the Secretary, the final decision of the Secretary denying the claim is subject to judicial review despite the expressed basis for the denial. Farley v. Califano, 599 F.2d 606 (4th Cir.1979); McGowen v. Harris, 666 F.2d 60 (4th Cir.1981).

It is clear that Plaintiff’s claim of disability for the period of August 28, 1980, through August 28, 1981, was reopened by the AU. Furthermore, such action by the AU did not constitute an error of law. Pursuant to the Secretary’s regulations, a prior determination may be reopened within twelve months of the date of the notice of the initial determination for any reason and within four years of the date of the notice of the initial determination for good cause. 20 C.F.R. § 404.988(a), (b) (emphasis added). Good cause includes the submission of new and material evidence. 20 C.F.R. § 404.989(a)(1). In this case, notice of the initial determination denying Plaintiff’s first application was dated September 2, 1981, and Plaintiff’s second application was filed on April 20, 1982, well within the twelve month period for reopening for any reason. Thus, Plaintiff was not required to show good cause as a condition for reopening his prior claim and the Appeals Council simply proceeded under the wrong standard.

Concerning Plaintiff’s return to work from September 11, 1981, to October 14, 1981, the Court notes that because this may have been “a genuine attempt to return to a normal life” does not mean that it was successful. Furthermore, it is obvious that Plaintiff reinjured his back by performing work which was above his residual functional capacity. The implication that this injury would not have occurred at some lesser level of work than that at which he was working, however, is mere speculation and is not supported by any substantial evidence in the record.

Both the Appeals Council and the AU agreed that following his second back injury Plaintiff was disabled through September 1, 1982. Therefore, the April 26, 1983, decision of the AU is reinstated insofar as it found Plaintiff disabled from August 28, 1980, to September 1, 1982, and the Secretary is directed to award benefits accordingly. However, the case must be remanded for further proceedings on the issue of Plaintiff’s ability to work subsequent to September 1, 1982, and the Court makes the following findings in this regard.

First, the Secretary's regulations define light work as work involving, among other things, a good deal of walking or standing, or sitting most of the time with some pushing and pulling of arm or leg controls. 20 C.F.R. § 404.1567(b). Contrary to the statement of the Appeals Council, Dr. Owen’s examination does not support a finding that Plaintiff can perform a full range of light work. In particular, Dr. Owen reported that Plaintiff walked with a limp off his left foot and was somewhat weaker on his right thigh, was able to squat only with the use of his arms, and had great difficulty toe walking. Furthermore, the Appeals Council found that Plaintiff was unable to perform work involving prolonged sitting. Therefore, the Court remands this case for reconsideration of Plaintiff’s residual functional capacity and for specific findings on his ability to sit, stand, walk, lift, etc. Such findings should, of course, be related to medical evidence in the record.

Second, this case must be remanded for reconsideration on the issue of pain. The proper standard for evaluating pain and other symptoms is now provided for under Section 3(a)(1) of the Social Security Disability Benefits Reform Act of 1984. Essentially, the statute requires medical evidence of a condition that could reasonably produce the pain alleged and not objective evidence of the pain or its degree. In this regard, the Court notes Dr. Owen’s diagnosis of status post laminectomy with continued probable root compression pain. The Appeals Council found that Plaintiffs complaints of pain were not credible, however, the standard under which this finding was made was never identified. The AU’s finding that “[t]he objective medical evidence of record precludes the according of credibility to the claimant’s allegations of pain and discomfort” is obviously improper under the statute.

Finally, on remand the Secretary should determine the necessity of eliciting expert vocational testimony due to the presence of nonexertional impairments. Although it is not entirely clear from his decision, the ALJ apparently found that Plaintiff’s pulmonary disease constituted both an exertional and nonexertional impairment. The Appeals Council made no findings on this issue. In any event, the Secretary is reminded that the presence of nonexertional impairments precludes reliance on the grid rules in Appendix 2 to direct a finding of “not disabled” and instead requires the testimony of a vocational expert. See Grant v. Schweiker, 699 F.2d 189 (4th Cir.1983).

In accordance with the opinions expressed herein, Defendant’s motion for summary judgment is denied, Plaintiff’s motion for summary judgment is granted to the extent that it requests a finding of disability for the period of August 28, 1980, to September 1, 1982, and the case is remanded for further proceedings on the issue of Plaintiff’s disability subsequent to September 1, 1982.

The Clerk is directed to retire this action to the Court’s inactive docket while on remand and to send a certified copy of this Memorandum Opinion and Order to counsel of record.

      . Although not in its final decision, the Appeals Council itself considered Plaintiff’s claim of disability during this period. In the October 27, 1983, letter to Plaintiff notifying him that his request for review had been granted, the Appeals Council found that Plaintiff had the residual functional capacity to perform a full range of sedentary work as of July 27, 1981. That finding, however, is not supported by substantial evidence and is in fact contradicted in the April 13, 1984, decision of the Appeals Council (Plaintiff unable to perform work involving prolonged sitting). The doctrine of res judicata was never mentioned in this letter.

      . It is noted that while Dr. Owen examined Plaintiff at the request of the Secretary, he gave no opinion on Plaintiffs ability to work.


author: MILLS, District Judge:

text:
    FLEET MANAGEMENT SYSTEMS, INC., d/b/a Logistic Systems, Plaintiff, v. ARCHER-DANIELS-MIDLAND CO., INC., and Nims Associates, Inc., Defendants.
    No. 83-3060.
    United States District Court, C.D. Illinois, Springfield Division.
    Jan. 28, 1986.

      R. Gerald Barris, Springfield, Ill., Richard M. Zinner, Boston, Mass., for plaintiff.
    David L. Johnson, Whitley, Fuller, Suter, Hopp, Barr & McCarthy, P.C., Decatur, Ill., F. Whitten Peters, Washington, D.C., for defendants.
   ORDER

MILLS, District Judge:

The cardinal issue: RICO.

This matter is before the Court upon Defendant’s motion to dismiss Count VI of Plaintiff’s amended complaint, which alleges that Defendants have engaged in a “pattern of racketeering activity” in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq. Fleet Management Systems, Inc., d/b/a Logistics Systems (Logistics) charges that Archer-Daniels-Midland Co., Inc. (ADM), and NIMS Associates, Inc., (NIMS), violated 18 U.S.C. §§ 1964(c) and (d), as well as state common law and federal copyright law, when they participated in a scheme to fraudulently misappropriate and market a computer program that Logistics had licensed to ADM.

Also before the Court is Defendant’s motion for partial summary judgment as to Count V of Plaintiff’s complaint in which Logistics charges that Defendants’ scheme to misappropriate the computer program violates the provisions of the Massachusetts Unfair Competition Statute, M.G.L.A., ch. 93A, § 2.

Facts

The property allegedly misappropriated by the Defendants is a computerized truck routing system called “CompuMap”. The system allows a user to readily determine the most efficient route between any two of over 9,400 points in the United States and Canada (Complaint ¶ 4). The Compu-Map system itself consists of a data base and a computer program by which the data base is accessed in order to provide the route information desired by the operator. (Complaint, Exhibit A)

According to Logistics’ complaint, the CompuMap system is a highly innovative solution to the problem of routing in the trucking industry. In an effort to restrict access to the proprietary aspects of the system, Logistics requires each of its customers to sign a license agreement. Pursuant to this agreement, each customer agrees to take all steps necessary to maintain the confidentiality of the system; and that if requested by Logistics, the customer will immediately destroy all physical aspects of the system and purge all other media from its computers. (Complaint, ¶ 7, and Exhibit B)

In October of 1980, Logistics and ADM entered into a licensing agreement granting ADM a nontransferrable license to use the CompuMap program in its computer system. Logistics then installed the system on ADM’s computer. Apparently the system did not satisfy ADM, and on December 7, 1981, a Mr. Crotinger (manager of Transportation Systems at ADM) sent a letter to Logistics cancelling the license agreement. In response to this letter, Ms. Broderick of Logistics wrote to Mr. Cro-tinger a letter specifying the following requirements for cancelling the contract:

1. Please purge all Software (programs and data) from your computer.
2. Please return all material, whether in hard copy, cards, disk, tape or other storage media to Logistics Systems.
3. Please send a written notarized confirmation signed by a duly authorized representative of your company, certifying that steps 1 and 2 above have been taken, that no other copies of any of the materials exist, and that the material you have forwarded constitutes everything that was in your possession.

By a letter dated January 29, 1982, in which Mr. Crotinger’s signature was notarized, ADM responded as follows:

1. All CompuMap software has been purged from our computer.
2. All hard copy material that we have accumulated has been boxed up and returned to you UPS.
3. This letter has been notarized, thereby complying with your third requirement.

The letter further stated, “I am unable to send you our disk packs containing certain files relating to CompuMap; however, I certify with the notarized letter that all files have been purged.”

The gravamen of Logistics’ complaint is that ADM did not purge all information relating to CompuMap from its systems, and that ADM, in conjunction with NIMS, proceeded to use the system’s information to market a truck routing system as the “NAI route system.”

In support of its RICO claim, Logistics contends that the Defendants committed several acts of mail and wire fraud, and that the following such acts constitute a “pattern of racketeering activity” under 18 U.S.C. § 1962(c):

1. On September 25, 1980, Mr. Crotinger of ADM mailed to Logistics a letter and the original executed license agreement. (Complaint, Exhibits B and C.) Fraudulent representations in this correspondence include those provisions of the license agreement regarding ADM’s intended use of the materials; and representations that Mr. Nims, to whom a copy of the correspondence was mailed, was an ADM employee. (Complaint, ¶¶ 15, 16, 50, and 51.)

2. Also on September 25, 1980, Mr. Cro-tinger of ADM mailed to NIMS a copy of his letter to Logistics and the executed license agreement, in furtherance of a conspiracy between ADM and NIMS to obtain Logistics’ CompuMap system under false pretense and to defraud Logistics. (Complaint, ¶ 51.)

3. On June 25, 1981, Mr. Hainline of ADM mailed to Logistics a certification that the CompuMap source code had been purged from ADM’s computer. As alleged in the Complaint, this certification was a fraudulent misrepresentation in furtherance of “defendants’ illegal and fraudulent taking of the CompuMap system in a manner otherwise than as permitted by Logistics.” (Complaint, 111118, 54, 55, 56, Ex. E.)

4. On December 7, 1981, Mr. Crotinger of ADM mailed a letter to Logistics cancel-ling the license agreement, allegedly because the CompuMap system “does not fit into our overall application structure adequately enough.” In said letter, ADM represents that “we have taken the system out of production.” (Complaint, ¶ 19, Ex. F.) Clearly, this letter was mailed in furtherance of Defendants’ scheme to defraud Logistics.

5. On January 29, 1982, Mr. Crotinger of ADM mailed a letter to Logistics in which he gave sworn notarized certification that all CompuMap software and disk files had been purged from ADM’s computer and that all hard copy material accumulated by ADM had been boxed up and returned to Logistics. These certifications are alleged in the complaint to be false and fraudulent misrepresentations, which were made to defraud Logistics. (Complaint, ¶¶ 21, 54, 55, 56, Ex. H.)

6. In or around August 1982, Mr. Rush-ton of NIMS had a series of telephone calls with Tri-State, a customer of Logistics, in which it is alleged that Mr. Rushton falsely represented himself to be a representative of NIMS and stated that he was interested in buying the CompuMap data base from Tri-State. (Complaint, ¶ 22.)

7. In November 1982, NIMS mailed promotional literature marketing its “NAI route system” to Ryder Systems, Inc. (a customer of Logistics) and to 1800-2100 other potential customers. (Complaint, 1124, Ex. I.)

8. Mr. Winters of NIMS and Mr. Cro-tinger of ADM jointly engaged in a nationwide telephone campaign during 1982 to market the NIMS routing system.

According to Logistics, these allegations satisfy the RICO “pattern” requirement in that at least eight separate instances of mail or wire fraud have been charged spanning a period of more than two years. Conversely, ADM, citing Northern Trust Bank/O’Hare v. Inryco, Inc., 615 F.Supp. 828 (N.D.Ill.1985) contends that even assuming Plaintiff has validly stated eight instances of mail or wire fraud, these cannot constitute a pattern because a pattern requires at least two fraudulent schemes, and the predicate acts are all in furtherance of a single alleged scheme — the scheme to misappropriate Plaintiff’s Com-puMap system.

The issue as joined, therefore, is whether a “pattern” requires more than one fraudulent scheme, regardless of the number of acts necessary to achieve the objective of that scheme and, if so, whether more than one scheme is involved in the case at bar.

“PATTERN OF RACKETEERING ACTIVITY”

I.

Section 1964(c) grants a private right of action to any person “injured in his business or property by reason of a violation of section 1962.” Section 1962, in turn, makes it unlawful to invest, in an enterprise engaged in interstate commerce, funds “derived from a pattern of racketeering activity,” to acquire or operate an interest in any such enterprise through “a pattern of racketeering activity,” or to conduct or participate in the conduct of that enterprise “through a pattern of racketeering activity.” Section 1961 defines “racketeering activity” to mean any of numerous acts “chargeable” or “indictable” under enumerated state and federal laws, including the federal mail and wire fraud statutes. Section 1961(5) further states that “a pattern” of racketeering activity requires proof of at least two acts of racketeering within ten years.

Since the initial passage of the RICO statute, federal courts have been highly concerned with the expansive potential of the plain wording of the statute, which at first glance would appear to allow a federal cause of action in any case involving two or more related acts “indictable” under state and federal law. Legislative history clearly indicates what. Congress had in mind when it enacted RICO: to halt the infiltration of legitimate business by organized crime. The problem Congress had was to word the statute so that it could achieve this goal without it being “void for vagueness” or overbroad in its application. See, e.g., United States v. Aleman, 609 F.2d 298, 302-06 (7th Cir.1979) (responding to such arguments against RICO as enacted).

Apparently, the “pattern of racketeering activity” requirement of the statute solved the vagueness problem. But in doing so, it covered activity that many courts could not believe was intended by Congress. The ABA Report on civil RICO explains that:

[i]n an attempt to insure the constitutionality of the statute, Congress made the central proscription of the statute the use of a “pattern of racketeering activities” in connection with an “enterprise,” rather than merely outlawing membership in the Mafia, La Cosa Nostra, or other organized criminal syndicates. “Racketeering” was defined to embrace a potpourri of federal and state criminal offenses deemed to be the type of criminal activities frequently engaged in by mobsters, racketeers and other traditional members of “organized crime”. The “pattern” element of the statute was designed to limit its application to planned, ongoing, continuing crime as opposed to sporadic, unrelated, isolated criminal episodes. The “enterprise” element, when coupled with the “pattern” requirement, was intended by the Congress to keep the reach of RICO focused directly on traditional organized crime and comparable ongoing criminal activities carried out in a structured, organized environment. The reach of the statute beyond traditional mobster and racketeer activity and comparable ongoing structured criminal enterprises, was intended to be incidental, and only to the extent necessary to maintain the constitutionality of a statute aimed primarily at organized crime.” ABA Report, at 71-72.

See Sedima v. Imrex Co., — U.S.-, -, 105 S.Ct. 3275, 3289, 87 L.Ed.2d 346 (Powell, J., dissenting).

The ABA Report makes it clear that RICO is intended to target organized crime, and not legitimate business. The wording of the statute, however, makes it possible for those involved in ordinary commercial disputes to file a racketeering charge against respected businessmen in federal court merely by alleging two acts of fraud involving the wires or mails. The reason for this is clear: the plain meaning of the statute in this circuit has traditionally been that any two acts of “racketeering activity” (such as mail and wire fraud) occurring within ten years of each other could constitute a “pattern of racketeering activity”, so long as the acts are connected by some common scheme, plan, or motive. See United States v. Starnes, 644 F.2d 673, 677-78 (7th Cir.1981); United States v. Weatherspoon, 581 F.2d 595, 601-02 (7th Cir.1978).

A further problem is the presence of mail and wire fraud violations in the statute. This is probably the single most significant reason for RICO’s broad sweep because in recent years, the Courts of Appeal have “tolerated an extraordinary expansion of mail and wire fraud statutes to permit federal prosecutions for conduct that some had thought was subject only to state criminal and civil law.” United States v. Weiss, 752 F.2d 777, 791 (2d Cir.1985) (Newman, J., dissenting). For instance, cases such as United States v. George, 477 F.2d 508, 511 (7th Cir.1973), have held that a mail fraud violation requires only: (1) a scheme to defraud, and (2) use of the mails in furtherance of that scheme. The potential effects of reading two related mail or wire fraud violations as forming a “pattern” on our federal system are staggering and can lead to some totally unforeseeable results.

One result has been that litigators, lured by the prospect of treble damages, are now turning to federal court in garden-variety fraud claims that would in the past have proceeded in state court. The fact that RICO requires two mailing or phone calls hardly poses much of a problem in even the most simple fraud case. In Sedima v. Imrex Co., Inc., — U.S.-, 105 S.Ct. 3292, 3293, 87 L.Ed.2d 361 (1985), Justice Marshall’s dissenting opinion envisions the federalization of broad areas of state common law of frauds and a displacement of important areas of federal securities law by a continued expansive reading of the RICO statute. See, e.g., Ray v. Karris, 780 F.2d 636 (7th Cir.1985) (Plaintiff alleges both securities fraud and RICO violations). In addition, the broad sweep of the statute’s language has allowed it to be used more often against businesses with no ties to organized crime than against mobsters who were the intended target of the statute. As pointed out by Justice Marshall, the dislocations caused by such an expansive reading of the civil RICO provision are not just theoretical:

In practice, this provision frequently has been invoked against legitimate businesses in ordinary commercial settings. As the Court recognizes, the ABA Task Force that studied civil RICO found that 40% of the reported cases involved securities fraud, 37% involved common-law fraud in a commercial or business setting. Many a prudent defendant, facing ruinous exposure, will decide to settle even a case with no merit. It is thus not surprising that civil RICO has been used for extortive purposes, giving rise to the very evils that it was designed to combat. Report of the Ad Hoc Civil RICO Task Force of the ABA Section of Corporation, Banking and Business Law 69 (1985) (hereinafter cited as ABA Report).
Only 9% of all civil RICO cases have involved allegations of criminal activity normally associated with professional criminals. The central purpose that Congress sought to promote through civil RICO is now a mere footnote.

105 S.Ct. at 3295.

In an attempt to halt the expansive march of the statute, numerous federal courts focused on elements other than the “pattern” requirement. For instance, many courts held that a civil RICO plaintiff must allege a special “racketeering injury” distinct from the injury that naturally flows from the predicate acts themselves. See, e.g., Alexander Grant & Co. v. Tiffany Industries, Inc., 742 F.2d 408 (8th Cir.1984). Other courts held that it must be alleged that the defendant has already been criminally convicted of the predicate acts of mail and wire fraud, or of a RICO violation. See Sedima; S.P.R.L. v. Imrex Co., Inc., 741 F.2d 482 (2d Cir.1984), rev’d, — U.S. -, 105 S.Ct. 3275, 87 L.Ed.2d 346.

These approaches, however, were expressly held improper by the Supreme Court in Sedima, as they went far beyond the clear wording and legislative history of the statute. In so holding, the high court recognized the concerns underlying these courts of appeals decisions:

Underlying the Court of Appeals’ holding was its distress at the “extraordinary, if not outrageous”, uses to which civil RICO has been put. 741 F.2d, at 487. Instead of being used against mobsters and organized criminals, it has become a tool for everyday fraud cases brought against “respected and legitimate ‘enterprises’.” Ibid. Yet Congress wanted to reach both “legitimate” and “illegitimate” enterprises. United States v. Turkette, [452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981)], supra. The former enjoy neither an inherent incapacity for criminal activity nor immunity from its consequences. The fact that § 1964(c) is used against respected businesses allegedly engaged in a pattern of specifically identified criminal conduct is hardly a sufficient reason for assuming that the provision is being misconstrued. Nor does it reveal the “ambiguity” discovered by the court below. “[T]he fact that RICO has been applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.” Haroco, Inc. v. American National Bank & Trust Co. of Chicago [747 F.2d 384 (7th Cir.1984) ], supra, at 398.

105 S.Ct. at 3287. Thus, the Supreme Court spoke broadly in rejecting the remedies adopted by the lower court in Sedima, stating that the breadth of RICO’s language is a defect “inherent in the statute as written, and its correction must lie with Congress.” Id.

With the rejection of lower court decisions attempting to narrow the statute, RICO is becoming the vehicle for a federal cause of action in common law fraud cases, possible triple damages and attorney’s fees, and a method by which legitimate businessmen are being labeled “racketeers”. The Supreme Court, however, did not rule out the possibility of narrowing the statute; rather, it did not believe “that the amorphous standing requirement imposed by the Second Circuit effectively responds to those problems ...” Id. at 3287. And, as pointed out by the majority opinion in Sedima, it is clear that “in its private civil version, RICO is evolving into something quite different from the original conception of its enactors.” Id.

II

The fundamental question, then, is whether the apparently unambiguous language of the statute can (and should) be read in a manner consistent with this clear legislative history. In United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), the Supreme Court noted that in construing the scope of a statute, its language, if unambiguous, must be regarded as conclusive “in the absence of ‘a clearly expressed legislative intent to the contrary.’ ” Id. at 580, 101 S.Ct. at 2527, (quoting Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980)).

In view of the definitional problems associated with a statute aimed solely at organized crime, this Court believes that the “pattern” requirement — though arguably unambiguous on its face — should be defined consistent with Congressional intent.

A pattern requirement that is properly developed to comport with Congressional intent is clearly the best approach in light of Sedima’s message. As previously noted, the Supreme Court in Sedima was well aware of the fact that although the statute should be “liberally construed to effectuate its remedial purposes,” 105 S.Ct. at 3286, the statute has been used to reach cases well beyond what Congress intended. In the Court’s view:

The “extraordinary uses to which civil RICO has been put appear to be primarily the result of the breadth of the predicate offenses, in particular the inclusion of wire, mail, and securities fraud, and the failure of Congress and the courts to develop a meaningful concept of “pattern”.

105 S.Ct. at 3287. This statement provides a clear invitation to define the “pattern” requirement consistent with legislative intent. Congress has unequivocally mandated that mail and wire fraud be included as predicate offenses; this cannot be altered. The concept of “a pattern of racketeering activity”, however, can and should be read narrowly to confine its reach to the type of conduct Congress had in mind.

Ill

The legislative history gives some indication as to how the “pattern” requirement should be interpreted. It is initially clear that the presence of the predicate acts is only a threshold inquiry. Something more is required for a “pattern” to be proved. Footnote 14 of the majority opinion in Sedi-ma bears out this view:

As many commentators have pointed out, the definition of a “pattern of racketeering activity” differs from the other provisions in § 1961 in that it states that a pattern “requires at least two acts of racketeering activity,” § 1961(5) (emphasis added), not that it “means” two such acts. The implication is that while two acts are necessary, they may not be sufficient. Indeed, in common parlance two of anything do not generally form a “pattern.” The legislative history supports the view that two isolated acts of racketeering activity do not constitute a pattern. As the Senate Report explained: “The target of [RICO] is thus not sporadic activity. The infiltration of legitimate business normally requires more than one ‘racketeering activity’ and the threat of continuing activity to be effective. It is this factor of continuity plus relationship which combines to produce a pattern.” S.Rep. No. 91-617, p. 158 (1969) (emphasis added). Similarly, the sponsor of the Senate bill, after quoting this portion of the Report, pointed out to his colleagues that “[t]he term ‘pattern’ itself requires the showing of a relationship ... So, therefore, proof of two acts of racketeering activity, without more, does not establish a pattern ...” 116 Cong.Rec. 18940 (1970) (statement of Sen. McClellan). See also id., at 35193 (statement of Rep. Poff) (RICO “not aimed at the isolated offender”); House Hearings, at 665. Significantly, in defining “pattern” in a later provision of the same bill, Congress was more enlightening: “criminal conduct forms a pattern if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” 18 U.S.C. § 3575(e). This language may be useful in interpreting other sections of the Act. Cf. Ian-nelli v. United States, 420 U.S. 770, 789, 95 S.Ct. 1284, 1295, 43 L.Ed.2d 616 (1975).

In addition, the ABA Report states that “[t]he ‘pattern’ element of the statute was designed to limit its application to planned, ongoing, continuing crime as opposed to sporadic, unrelated, isolated criminal episodes.” ABA Report, at 72. As explained by the Senate Report, the bill was not aimed at sporadic activity; rather, “the infiltration of legitimate business normally requires more than one ‘racketeering activity’ and the threat of continuing activity to be effective. It is this factor of continuity plus relationship which combines to produce a pattern.” S.Rep. No. 91-617, p. 158 (1969) (emphasis added).

The ABA Report suggests that to effectuate this legislative intent, “pattern” should be interpreted as requiring that (i) the racketeering acts be related to each other, (ii) they be part of some common scheme, and (iii) some sort of continuity between the acts or a threat of continuing criminal activity be shown. ABA Report, at 193-208. Judge Powell’s dissenting opinion in Sedima concurs in this view and argues persuasively that “by construing ‘pattern’ to focus on the manner in which the crime was perpetrated, courts could go a long way toward limiting the reach of the statute to its intended target — organized crime.” Sedima, 105 S.Ct. at 3290 (Powell, J., dissenting).

Despite footnote 14 of Sedima and clear legislative indications that a “pattern” requires something more than two acts of racketeering activity, many courts continue to hold that Sedima’,s broad language mandates the conclusion that any two related acts can constitute a pattern. For instance, in R.A.G.S Couture, Inc. v. Hyatt, 774 F.2d 1350, 1355 (5th Cir.1985), the Fifth Circuit rejected defendant’s argument that two related acts of mail fraud were not sufficient to constitute a “pattern of racketeering activity.” Stating that “the broad language of the statute and the Sedima decision provide us with clear guidance,” the Court held that because the alleged acts of mail fraud were related, Plaintiffs complaint stated a civil RICO claim. Similarly, in Conan Properties, Inc. v. Mattel, Inc., 619 F.Supp. 1167 (S.D.N.Y.1985), a New York district court held that:

Although it is true that “two isolated acts of racketeering activity do not constitute a pattern,” Sedima; S.P.R.L. v. Imrex Co., 105 S.Ct. 3275, 3285 n. 14 (1985), when two acts which relate to each other and arise out of the same scheme are alleged, the requirement of pleading a “pattern of racketeering activity has been met.

619 F.Supp. at 1170. See also Systems Research, Inc. v. Random, Inc., 614 F.Supp. 494, 497 (N.D.Ill.1985). These cases all rely on what is perceived to be the unambiguous meaning of the words “pattern of racketeering activity” and Sedi-ma’s, broad language.

At least two courts, however, have reached a different result. In Northern Trust Bank/O’Hare, N.A. v. Inryco, Inc., 615 F.Supp. 828 (N.D.Il;.1985), it is persuasively argued that the term “pattern”:

connotes similarity, hence the cases’ proper emphasis on relatedness of the constituent acts. But “pattern” also connotes a multiplicity of events: Surely the continuity inherent in the term presumes repeated criminal activity, not merely acts to carry out the same criminal activity. It places a real strain on the language to speak of a single fraudulent effort, implemented by several fraudulent acts, as a “pattern of racketeering activity”.

In Northern Trust, the Court dismissed Plaintiff’s RICO claim because although it alleged two acts of mail fraud in furtherance of a construction kickback scheme— Inryco’s mailing the subcontract to Century and Century’s mailing a kickback check to Ranke — the two specified acts involved only one kickback scheme. The Court further noted that even if the three additional kickback payments were also mail fraud violations, “they still implemented the same fraudulent scheme as the first two mailings — and the single scheme does not appear to represent the necessary “pattern of racketeering activity.” 615 F.Supp. at 833.

This approach was applied one month later in Morgan v. Bank of Waukegan, 615 F.Supp. 836 (N.D.Ill.1985), where it was similarly held that a single plot to divest investors of their initial cash investment and their home (put up as security for loans for the venture) did not satisfy the “pattern” requirement even where numerous acts of mail and wire fraud committed over a four-year period were alleged in the complaint. The Court held that only if the complained-of acts could somehow be said “to represent repeated criminal activity, not merely repeated acts to carry out the same criminal activity” would the “pattern” requirement be met. 615 F.Supp. at 838. In apparent concurrence with the Northern Trust and Morgan approach is Lipin Enterprises, Inc. v. Lee, 625 F.Supp. 1098 (N.D.Ill.1985). In that case, it was held that a list of twelve alleged acts of mail and wire fraud were insufficient to establish a pattern. The Court continued:

Plaintiff must allege ... more than isolated predicate acts or sporadic activity to show that the affairs of an enterprise were conducted through a pattern of racketeering activity... Citing the legislative history of RICO, the Supreme Court recently stressed the factors of “continuity plus relationship” in a RICO “pattern” ...

Id. at p. 1100.

Clearly rejecting this last approach, however, is Trak Microcomputer Corp. v. Wearne Brothers, 628 F.Supp. 1089 (N.D. 111.1985). In Trak, Plaintiffs charged the Defendants with at least two acts of mail and wire fraud in furtherance of a scheme to defraud the Plaintiffs and illegally obtain microcomputer technology from them. Citing Northern Trust, the Defendants argued that because only one scheme was involved, the Plaintiffs failed to allege a “pattern of racketeering activity”. Trak rejected Defendants’ argument and held as follows:

This court agrees with Judge Shadur’s analysis of RICO and Sedima insofar as it states that more than a mere counting of racketeering activity is necessary to determine whether a pattern of racketeering activity has been stated. The criminal acts must demonstrate both a continuity and a relationship. However, this court does not agree with the suggestion that a pattern of racketeering activity cannot be established with respect to a single fraudulent scheme.
In determining the meaning of a pattern of racketeering activity, this court is bound to the language of the RICO statute. That act defines what a racketeering activity is. The act does not suggest that a pattern of racketeering activity means a pattern of fraulent schemes; it merely requires a pattern of racketeering activity. Sedima does not compel a contrary interpretation. Nothing in the language of Sedima suggests that in order to find a pattern of racketeering activity, a pattern of fraudulent schemes must be pled. Rather, Sedima only requires that the racketeering activity be continuous and related.
This court finds that the plaintiffs have alleged a pattern of racketeering activity. Plaintiffs allege that the defendants engaged in numerous acts of racketeering activity which were continuous over an identified period of time and which were related to one another in furtherance of the alleged fraudulent scheme. These allegations satisfy the continuity plus relationship standard of Sedima.

Id. at p. 14-15.

It is this Court’s view that Sedima, the language of the statute, and its legislative history not only allows, but indeed compels the conclusion that a “pattern” requires at least two criminal episodes by a racketeering enterprise that are somehow related by “the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” Sedima, 105 S.Ct. at 3285 n. 14 (quoting 18 U.S.C. § 3575(e)). More is clearly required that a relationship between predicate acts themselves: there must be two or more criminal episodes through which the enterprise achieves its illegal goal. As stated by the ABA Report, the “continuity plus relationship” test articulated in footnote 14 of Sedima requires in addition to a relationship between the predicate acts “some sort of continuity between the acts or a threat of continuing criminal activity...” ABA Report, at 193-208. The obvious purpose of the continuity plus relationship formulation is to narrow the “pattern” concept to reach RICO’s intended goal — enterprises which utilize similar methods of operation and participants and whose victims are harmed in similar manners by the operation of the particular racket. It is this kind of a continuous, ongoing enterprise that poses the “threat of continuing criminal activity” and it is this kind of enterprise that civil RICO has as its primary target.

An isolated criminal episode, though accomplished through a number of fraudulent acts, does not evidence such a threat of continuing criminal activity. Nor does it evidence that an organized criminal enterprise is involved in the scheme. The reading of the “pattern” requirement in Northern Trust — which requires proof of at least two criminal episodes — provides the required evidence that an organized pattern of criminal activity is involved.

In the case sub judice, Plaintiff alleges that Defendants have committed a number of mail and wire fraud violations in furtherance of a scheme to obtain Plaintiff’s “CompuMap” computer information and market it under a different name. These specified acts alone, however, fail to establish the required “pattern of racketeering activity” because only one criminal episode is involved — the alleged scheme to illegally market Plaintiff’s computer program under a different name. It can be seen that Plaintiff’s allegations do not give rise to any inference that a criminal enterprise is involved in the alleged fraud. Similarly, a threat of ongoing criminal activity is not apparent from the allegation of this one scheme. Therefore, even assuming the truth of Plaintiff’s allegations, as we must for the purposes of this motion, the allegations cannot establish the required “pattern of racketeering activity.” (This, of course, does not mean that Plaintiffs are without a remedy. Plaintiffs are free to pursue a variety of remedies under state law.)

In adopting the above construction of the RICO statute, this Court is mindful of this recent statement by our Court of Appeals in Ray v. Karris, 780 F.2d 636 (7th Cir.1985):

It is important to reemphasize the commitment of this court to a broad and literal reading of RICO in accord with Congressional intent and the dictates of the Supreme Court and our past decisions ...

Id., at p. 645. As previously articulated, it is believed that the construction of the “pattern” requirement adopted by this Court does comport with both the literal wording of the statute, the Supreme Court’s decision in Sedima, and the clear intent of Congress. Moreover, under this construction, traditional state law claims are not federalized, federal remedial schemes are not inevitably displaced or su-perceded, and ordinary commercial disputes are not transformed into racketeering cases.

It is therefore ordered that Defendant’s motion to dismiss Count VI of Plaintiff’s complaint is ALLOWED.

MASSACHUSETTS LAW vs. ILLINOIS LAW

Plaintiffs next contend that Defendant’s scheme to misappropriate and market Plaintiff’s CompuMap system constitutes unfair and deceptive acts and practices as defined by § 2 of the Massachusetts Unfair Competition Statute, M.G.L.A. Ch. 93A, § 2. ADM, on the other hand, argues that the Massachusetts statute is inapplicable since an Illinois court would apply Illinois law to this case; and further, that even if Massachusetts law is applicable, it is exempt from liability under the statute’s interstate commerce exception, M.G.L.A. Ch. 93A, § 3 (West 1984).

I.

In diversity, a federal court must look to the law of forum in which it sits, Erie R. Co. v. Tompkins, 304 U.S. 64, 71-80, 58 S.Ct. 817, 818-23, 82 L.Ed. 1188 (1938), including the rules governing choice of law. Klaxon Co. v. Stentor Elec. Mfg., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941).

Plaintiff’s initial argument is that the parties agreed, in section 12(F) of the license agreement, that Massachusetts law would govern any contractual disputes. Section 12(F) of the agreement states that “this agreement shall be governed by the laws of the Commonwealth of Massachusetts,” and section 12(J) provides: “The provisions of [section] ... 12 shall survive any termination of this Agreement.” Plaintiff contends that the breadth of this language and the explicit statement of its continuing effect make it clear that Massachusetts law should govern any post-termination dispute arising out of the contract, including the present action.

Under Illinois law, contractual choice-of-law clauses are generally given effect when the dispute involves contractual rights and duties. Carter v. Catamore Co., Inc., 571 F.Supp. 94, 95 (N.D.Ill.1983). For instance, the Restatement (Second) of Conflict of Laws § 187(2), which is applied by Illinois courts, see Hofeld v. Nationwide Life Insurance Co., 59 Ill.2d 522, 529, 322 N.E.2d 454 (1975), provides for the application of the

law of the state chosen by the parties to govern their contractual rights and duties ... unless either (a) the chosen state has no substantial relationship to the parties or the transaction ... or (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue. .. (Emphasis added.)

While the contract provision contained in section 12(F) of the lease agreement clearly governs the parties’ contractual rights and duties, it is not so clear that it should apply to an action sounding in tort, such as an action under the Massachusetts statute.

Plaintiff argues that the contract provision should apply because its Chapter 93A claim is grounded more in contract than in tort. Plaintiff contends, inter alia, that its Chapter 93A claim pertains principally to misrepresentations involving the license agreement, and to breach of contract. Therefore, Plaintiff argues, section 12(F) of the agreement should require the application of Massachusetts law, and thus, the application of the Massachusetts statute.

The approach urged by Plaintiff was expressly rejected by a Massachusetts district court in Computer Systems Engineering, Inc. v. Oantel Corp., 571 F.Supp. 1365, 1370-71 (D.Mass.1983). In Oantel, the court explained that claims of unfair or deceptive acts or practices under Chapter 93A may be founded on acts that are associated with breach of contract, tort, or both — or neither. See e.g., Slaney v. Westwood Auto, Inc., 366 Mass. 688, 704, 322 N.E.2d 768, 779 (1975) (noting that a § 9, M.G.L.A. ch. 93A action is “neither wholly tortious nor wholly contractual in nature, and is not subject to the traditional limitations of preexisting causes of action, such as tort for fraud and deceit”). Nonetheless, the Court held that all Chapter 93A claims should be treated as torts for choice-of-law purposes, regardless of the conduct underlying that claim. The Court, noting the lack of precedent directly in point, explained its rationale as follows:

One might argue that the answer should depend on whether contract-like or instead tort-like elements of the ch. 93A claim predominate on the facts of the particular case... I believe it likely that Massachusetts courts will adopt a rule that ch. 93A claims, and especially those for multiple damages, though sometimes associated with breach of contract, are nevertheless on the whole more closely analogous to tort. Thus, for choice of law purposes, ch. 93A claims should be treated uniformly, rather than on a case-by-case basis, in the same way as tort claims. This conclusion is supported also by the fact that the stated and apparent objectives of the legislature in enacting ch. 93A are more compatible with tort than contract theory.

571 F.Supp. at 1370-71. (Emphasis added.) This Court agrees that Massachusetts would probably follow the Oantel approach.

However, it is unnecessary for us to adopt that approach per se because under either approach, Plaintiff’s Chapter 93A claim in this case is most closely analogous to a tort claim. While breach of the leasing agreement may be involved, the gravamen of Plaintiff’s complaint is the wrongful misappropriation and marketing of Plaintiff’s computer program. It may very well constitute breach of the agreement to fraudulently misappropriate Plaintiff’s computer program; however, a claim under the statute — as opposed to a simple contract claim — imposes tort-like duties upon those engaging in business dealings, and involves special remedies such as double or triple damages. Thus, Plaintiff’s claim of unfair competition is more properly viewed as a tort claim than a contract action.

Because Plaintiffs Chapter 93A claim is primarily tortious in nature, the contract provision specifying Massachusetts law does not control the choice of law issue. The present dispute is not over provisions of the contract, nor does it involve contractual rights and duties. Plaintiffs have cited no cases, and we have found none, to suggest that a contractual choice of law provision can govern an unfair competition claim sounding in tort. On the other hand, a Delaware court, in Data General Corp. v. Digital Computer Controls, Inc., 357 A.2d 105 (Del.Ch.1975), considered the identical issue and dismissed as irrelevant a contract provision stating that the contracts were governed by Massachusetts law:

[T]he law of New Jersey, the place where the wrongful act of making ... an improper use by defendant of plaintiff’s trade secrets applies in determining the nature and extent of the relief to be granted plaintiff, and the fact that plaintiff has had its contract forms drawn so as to call for application of the law of Massachusetts in matters involving them is irrelevant, (emphasis added)

For the reasons stated above, this Court agrees with the court in Data General that such a contract provision is irrelevant to an unfair competition claim. Ergo, the provision in the leasing agreement specifying Massachusetts law does not govern the choice of law question.

II.

Because the contract provision does not control the issue of applicable law, the issue is whether, under Illinois choice of law principles, Illinois or Massachusetts law should apply to the facts of this case. In tort, Illinois — following the Restatement (Second) of Conflicts of Law — applies the law of the state with the most significant relationship to the transaction at issue. In-gersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593, 595 (1970). In determining which state has the most significant relationship to the transaction, the Illinois Supreme Court has disavowed any mechanical approach to the problem, preferring instead to weigh the “interests and public policies of [each contact state] as they relate to” each transaction in issue. Mitchell v. United Asbestos Corp., 100 Ill.App.3d 485, 55 Ill.Dec. 375, 380, 426 N.E.2d 350, 355 (1981). See also In re Air Crash Disaster Near Chicago, Illinois, 644 F.2d 594, 610-11 (7th Cir.1981).

Both Massachusetts and Illinois have significant contacts to the alleged misappropriation of Plaintiff’s “CompuMap” computer program. Logistics is incorporated and has its sole place of business in Massachusetts. In addition, Logistics entered into and signed the lease agreement in Massachusetts, and prepared and shipped the computer equipment from its Massachusetts offices. On the other hand, the alleged wrongful acts themselves occurred in Illinois, where ADM has its principal offices, and where ADM allegedly did not purge the information relating to the “CompuMap” program from its computers.

ADM argues that although Illinois conflict-of-laws analysis has become more flexible in recent years, the locus of the Defendant’s conduct remains the most important factor — especially in cases involving alleged misappropriation of trade secrets or proprietary information. See, e.g., Data Cash Systems, Inc. v. JS & A Group, Inc., 480 F.Supp. 1063, 1071 (N.D.Ill.1979), aff'd 628 F.2d 1038 (7th Cir.1980). In Data Cash, the Court held that:

In unfair competition cases, the principal location of the Defendant’s conduct is the contact that usually is given the greatest weight in determining the state which has the most significant relationship. Restatement (Second) of Conflict of Laws § 145, comment f (1971).

Other decisions applying Illinois choice-of-law doctrine to misappropriation claims have similarly held that such claims should be governed by the law of the state where the alleged wrong was committed or the benefit was obtained by the Defendant. See, e.g., Board of Trade v. Dow Jones & Co., 108 Ill.App.3d 681, 64 Ill.Dec. 275, 281, 439 N.E.2d 526, 532 (1982), aff'd 98 Ill.2d 109, 74 Ill.Dec. 582, 456 N.E.2d 84 (1983); Mergenthaler Linotype Co. v. Leonard Storch Enterprises, Inc., 66 Ill.App.3d 789, 23 Ill.Dec. 352, 362-63, 383 N.E.2d 1379, 1389-90 (1st Dist.1978); Crown Industries, Inc. v. Kawneer Co., 335 F.Supp. 749, 761 (N.D.Ill.1971).

It is true that the locus of the Defendant’s alleged conduct is an important contact under Illinois’ current “interest analysis” approach. It is, however, not necessarily controlling. Illinois has clearly rejected a sti’ict application of the traditional doctrine of lex loci delicti, under which the rights and liabilities of the parties are determined by the law of the state where the injury occurred. Ingersoll v. Klein, 46 Ill.2d at 46, 262 N.E.2d 593. In rejecting the lex loci delicti doctrine, the Illinois Supreme Court criticized it as ignoring “the interest which jurisdictions other than where the tort occurred may have in the resolution of particular issues.” Id.

Illinois’ current “interest analysis” approach focuses on the contacts listed in sections 6 and 145 of the Restatement:

Sections 6 and 145 of the Restatement (Restatement (Second) of Conflict of Laws §§ 6, 145 (1971)), provide as follows:
“§ 6. Choice-of-Law Principles.
(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g)ease in the determination and application of the law to be applied.
* * * * # #
§ 145. The General Principle
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue.” (Emphasis added.)

In analyzing these factors, Illinois requires more than a mere counting of contacts to . determine which state has the “most significant relationship” to the transaction. Rather, what is required is “a consideration of the interests and public policies of potentially concerned states and a regard as to the manner and extent of such policies as they relate to the transaction in issue.” Mitchell v. United Asbestos Corp., supra, 55 Ill.Dec. at 380-81, 426 N.E.2d at 355-56 (citing Johnson v. Spider Staging Corp., 87 Wash.2d 577, 582, 555 P.2d 997, 1001 (1976)). This approach is based on the principle that “[cjontacts obtain significance only to the extent they relate to the policies and purposes sought to be vindicated by the conflicting laws.” Id.

Under § 145 of the Restatement, the first two contacts with the transaction — (a) the place where the injury occurred, and (b) the place where the conduct causing the injury occurred — took place in Illinois. Factor (e), the domicile and place of business of the parties, points to both Illinois and Massachusetts. The last factor, the place where the parties’ relationship is centered, likewise occurs in both states. In issue is the relative importance of those contacts in light of principles espoused by § 6 of the Restatement.

Those contacts and the state interests evoked by them indicate that both Illinois and Massachusetts have an interest in the resolution of the alleged wrongful conduct in this case. Moreover, both jurisdictions’ interests are significant. Under part (c) of § 6, Massachusetts clearly has an interest in seeing that corporations within its borders are adequately compensated for tor-tious injuries. This interest, although based on fewer contacts, cannot for this reason alone be automatically deemed less significant. On the other hand, Illinois has a strong interest in controlling the conduct of those who take action within its borders, and an interest in affording the protection of its laws to its domiciliaries. The fact that the alleged wrongful conduct itself occurred in Illinois gives Illinois a significant relationship to the transaction in issue.

An evaluation of the contacts reveals that both Illinois and Massachusetts have an interest in the resolution of the issue in this case. And the basic policies behind the law of unfair competition in Illinois and Massachusetts are the same. The difference, however, lies in the fact that the essence of Plaintiff’s complaint is the misappropriation itself — which took place in Illinois. Because of this fact, Illinois has a strong interest in seeing that such conduct occurring within its jurisdiction is met with an appropriate remedy. Further, Massachusetts’ interest in insuring adequate compensation for corporations within its borders is protected by Illinois’ strong interest in remedying and preventing deceptive business practices.

Under the Restatement approach, therefore, Illinois has the “most significant relationship” to the instant transaction, and Illinois law should be applied to Plaintiffs unfair competition claim.

Although Illinois law would otherwise govern Plaintiff’s unfair competition claim, Count V of Plaintiff’s complaint does not allege a violation , of Illinois law; instead, it is brought solely pursuant to the provisions of § 2 of the Massachusetts Unfair Competition Statute. There being no factual disputes material to the choice of law question, Defendant’s motion for partial summary judgment as to Count V will therefore be allowed.

In accordance with the foregoing, it is ORDERED that Defendant’s motion for partial summary judgment as to Count V of Plaintiff’s complaint is ALLOWED. It is further ORDERED that Defendant’s motion to dismiss Count VI is ALLOWED.

      . RICO was Title IX of the Organized Crime Control Act of 1970, Pub.L. 91-452, whose stated purpose was "to seek the eradication of organized crime in the United States ... by establishing new penal provisions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.”

      . For example, imagine a midwest college student who decides he is going to make some money selling his old automobile by turning back the odometer to 10,000 miles and states that it has been driven only to classes and back during the past year. In reality, however, the car has well over 100,000 miles on it and was just recently driven through the Florida Everglades by some of the college football team. This student then calls his friend, informing him of the deal, and sends him a follow-up letter. Under the current reading of the statute, these two acts of fraud — which are related to each other by this student’s scheme — could constitute a "pattern of racketeering activity” and subject the student to prosecution as a mobster.
      Such a result is patently absurd. Although the student has committed a crime, he certainly is not involved in the kind of ongoing criminal enterprise that characterizes mob activity. Although the statute’s language arguably applies to the foregoing example, Congress certainly did not intend that result.

      . A further problem is that there is nothing comparable in civil RICO suits to the restraint on the institution of criminal suits exercised by government prosecutorial discretion. For instance, the United State’s Attorney’s Manual § 9-43-120 (Feb. 16, 1984) states that only where a scheme is directed at a "class of people or the general public” and includes "a substantial pattern of conduct,” will "serious consideration be given to mail fraud prosecution.” In all other cases, "the parties should be left to settle their differences by civil or criminal litigation in the state courts." Sedima, 105 S.Ct. at 3294 (Marshall, J., dissenting).