Antitrust Law Daily Wrap Up, RICO NEWS: Doctor claims holding company influenced judge assignment, obstructed justice, (May 11, 2015)

By Greg Hammond, J.D.

Physician Richard B. Fox has filed suit in the federal district court in San Jose, California against HCA Holdings Inc. for violating the Racketeer Influenced and Corrupt Organizations (RICO) Act. Fox asserts that HCA used “improper influence” to cause a judge who received over $3 million of pro bono legal services from HCA’s lead counsel in a different case to preside over that case, which obstructed justice (Fox v. HCA Holdings Inc., May 7, 2015).

In earlier litigation, Fox brought RICO and antitrust claims against HCA, based on HCA’s use of Medicare fraud proceeds to subsidize Fox’s competitors. The district court determined that HCA was immune under the Health Care Quality Improvement Act. Fox appealed to the Ninth Circuit, where Judge Jay S. Bybee later recused himself upon Fox’s finding that Judge Bybee received over $3 million of pro bono legal services from HCA’s lead counsel. A new judge was appointed, but an unpublished decision was entered that was adverse to Dr. Fox, allegedly closely reflecting comments made by Judge Bybee at oral argument.

Fox brought a claim under the RICO Act, asserting that HCA obstructed justice by “intervening through means as yet unknown to improperly steer the assignment of Dr. Fox’s 2010 antitrust/RICO appeal in the Ninth Circuit to a panel presided over by a judge who” accepted over $3 million in pro bono services and over $45,000 in cash from a legal defense fund organized by the head of the antitrust section of HCA’s lead trial counsel. He further claims that but for HCA’s improper influence, the outcome of the appeal would have been favorable to him.

Specifically, Fox asserts that obstruction of justice and mail fraud, which allegedly occurred in the earlier case, constituted a pattern of racketeering activity. He also contends that his antitrust and RICO claims constituted personal property under California law and that HCA’s improper interference injured him in his business and property. As a direct and proximate result of HCA’s activities, Fox alleges that he suffered substantial losses and damages to his property.

Fox is seeking general, special, and treble damages, as well as costs and attorney fees. He additionally requests that the court vacate the earlier decision in Fox’s antitrust/RICO case against HCA.

The case is No. 5:15-cv-02073.

Companies: HCA Holdings Inc.

News: RICO CaliforniaNews