Racketeering Claims Cast

Leah Beth Ward, Yakima Herald-Republic (Wash.), Dec. 27, 2005

A Chicago lawyer who has described Yakima as “overrun with Mexicans” and “smothered by endless taco joints” will argue an unusual immigration case against executives of Zirkle Fruit Co. in a trial set to start in two weeks.

Howard Foster, who pioneered the use of a racketeering statute in immigration cases, will try to show in federal court here that Zirkle management purposely hired thousands of undocumented workers in order to depress wages and keep down costs. As many as 20,000 legal workers in the Yakima Valley were injured as a result, he argues.

If Foster wins at trial, the jury would decide in a second phase if legal workers—who have class-action status in the case—are entitled to damages and how much.

Those damages would be tripled under the federal racketeering statute. Each class member would receive a check for back pay based on hours worked from November 1999 to the present.

In his complaint, Foster states that owner William Zirkle and top executives William Wangler and Gary Hudson conspired to hire thousands of illegal immigrants for orchard and warehouse work at Selah-based Zirkle Fruit in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). Zirkle Fruit, the business, is not a defendant.

Also named is Selective Employment, a temporary job placement company used by Zirkle Fruit.

A settlement hearing is scheduled for Wednesday but both sides said in recent telephone interviews that they are not close to a compromise. U.S. District Court Judge Fred Van Sickle of Spokane will preside over the Jan. 9 trial in federal district court in Yakima.

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Cheering on the plaintiffs is Mark Krikorian, executive director of the Center for Immigration Studies, a Washington, D.C.-based nonprofit group, which seeks “fewer immigrants but a warmer welcome for those admitted.”

Krikorian said absent a federal government solution to illegal immigration, litigation against employers like Zirkle is a way to enforce the law.

“It will be a big step forward if the defendants in this case lose because it will put the fear of God into businesses that trial lawyers are coming after them,” Krikorian said.

He also called litigation like Foster’s “the courtroom version of the Minuteman project,” the volunteer group of civilians that has gained prominence lately for watching the borders for suspicious activity.

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This month, a federal judge dismissed a case filed by an Idaho county government against several local employers who allegedly conspired to hire illegal workers. Canyon County, about 30 miles from Boise, retained Foster to recover taxpayer money that officials said was spent because of the workers’ increased demand for social services.

U.S. District Court Judge Edward Lodge said the county had no standing because expenses associated with the illegal population—medical care, schools and jails—are simply part of the obligation and cost of government.

But Foster has won district and appeals court challenges in a case against a Georgia carpet company. His clients, former hourly employees, said their wages were driven down when the employer, Mohawk Industries, hired illegal workers.

Mohawk appealed to the U.S. Supreme Court, which has agreed to hear the case sometime next year. Its ruling could resolve competing decisions from different appeals courts.

Foster points out that the 9th Circuit Court of Appeals, based in San Francisco, ordered the Zirkle case to proceed after a lower court judge dismissed it.

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