Private Attorney General Notes

Both statutes [RICO and Clayton Act] bring to bear the pressure of “private attorneys general” on a serious national problem for which public prosecutorial resources are deemed inadequate;  the mechanism chosen to reach the objective in both the Clayton Act and RICO is the carrot of treble damages.

 

[Agency Holding Corp. v. Malley-Duff & Associates]

[107 S.Ct. 2759, 483 U.S. 143, 151 (1987)]

[bold emphasis added]

 

In rejecting a significantly different focus under RICO, therefore, we are honoring an analogy that Congress itself accepted and relied upon, and one that promotes the objectives of civil RICO as readily as it furthers the objects of the Clayton Act.  Both statutes share a common congressional objective of encouraging civil litigation to supplement Government efforts to deter and penalize the respectively prohibited practices.  The object of civil RICO is thus not merely to compensate victims but to turn them into prosecutors, “private attorneys general,” dedicated to eliminating racketeering activity. 3  Id., at 187 (citing Malley-Duff483 U.S., at 151 ) (civil RICO specifically has a “further purpose [of] encouraging potential private plaintiffs diligently to investigate”).  The provision for treble damages is accordingly justified by the expected benefit of suppressing racketeering activity, an object pursued the sooner the better.

 

[Rotella v. Wood et al., 528 U.S. 549 (2000)]

[bold and underline emphases added]

 

Attorney General, Private

 

The “private attorney general” concept holds that a successful private party plaintiff is entitled to recovery of his legal expenses, including attorney fees, if he has advanced the policy inherent in public interest legislation on behalf of a significant class of persons.  Dasher v. Housing Authority of City of Atlanta, Ga., D.C.Ga., 64 F.R.D. 720, 722.  See also Equal Access to Justice Act.

 

[Black’s Law Dictionary, Sixth Edition]

[bold emphasis added]

 

Private Attorney General

 

A private citizen who commences a lawsuit to enforce a legal right that benefits the community as a whole.

 

West’s Encyclopedia of American Law, edition 2.  Copyright 2008 The Gale Group, Inc.  All rights reserved.

 

http://legal-dictionary.thefreedictionary.com/Private+Attorney+General

 

 

 

Private Attorney General

 

A private attorney general is a private citizen who brings a lawsuit considered to be in the public interest, i.e., benefiting the general public and community as a whole.  The “private attorney general” concept holds that a successful private party plaintiff is entitled to recovery of his legal expenses, including attorney fees, if he has advanced the policy inherent in public interest legislation on behalf of a significant class of persons. — USLegal.com

 

https://definitions.uslegal.com/p/private-attorney-general/

 

 

While Congress can constitutionally authorize no one, in the absence of an actual justiciable controversy, to bring a suit for the judicial determination either of the constitutionality of a statute or the scope of powers conferred by a statute upon government officers, it can constitutionally authorize one of its own officials, such as the Attorney General, to bring a proceeding to prevent another official from acting in violation of his statutory powers; for then an actual controversy exists, and the Attorney General can properly be vested with authority, in such a controversy, to vindicate the interest of the public or the government.  Instead of designating the Attorney General, or some other public officer, to bring such proceedings, Congress can constitutionally enact a statute[25] conferring on any non-official person, or on a designated group of non-official persons, authority to bring a suit to prevent action by an officer in violation of his statutory powers;  for then, in like manner, there is an actual controversy, and there is nothing constitutionally prohibiting Congress from empowering any person, official or not, to institute a proceeding involving such a controversy, even if the sole purpose is to vindicate the public interest.  Such persons, so authorized, are, so to speak, private Attorney Generals.

 

Associated Industries v. Ickes, 134 F.2d 694 (2d Cir. 1943)

http://law.justia.com/cases/federal/appellate-courts/F2/134/694/1479302/

 

 

The “private attorney general” phrase was coined by Judge Jerome Frank in a decision which did not involve an attorney fee at all, but rather a private citizen’s standing to sue for vindication of a public objective. (Associate Industries v. Ickes (2d Cir. 1943) 134 F.2d 694, 704;  Comment (1974) 122 U.Pa.L.Rev. 636, 658.)

 

per curiam opinion of the federal Supreme Court then superimposed Judge Frank’s metaphor — without crediting the author — upon the award of an attorney fee authorized by a federal statute. (Newman v. Piggie Park Enterprises (1968) 390 U.S. 400, 402 [19 L.Ed. 2d 1263, 1265-1266, 88 S.Ct. 964];  see also Bradley v. Richmond School Board (1974) 416 U.S. 696, 719 [40 L.Ed.2d 476, 492-493, 94 S.Ct. 2006].)

 

 

Judge Frank’s apt metaphor attracted appellate opinion writers, for it soon left its restricted statutory mooring and drifted into wider waters, bobbing up in a variety of civil rights and public interest decisions and legal commentaries.  (See Fowler v. Schwarzwalder (8th Cir. 1974) 498 F.2d 143, 145;  Lee v. Southern Home Sites Corp. (5th Cir. 1971) 444 F.2d 143, 147-148;  La Raza Unida v. Volpe (N.D.Cal. 1972) 57 F.R.D. 94, 98-102;  Dawson, op. cit., 88 Harv. L.Rev. p. 849 et seq.;  Nussbaum, Attorney’s Fees in Public Interest Litigation (1973) 48 N.Y.U. L.Rev. 301, 318 et seq.;  Notes (1973) 24 Hastings L.J. 933;  Comment (1974) 122 U.Pa.L.Rev. 636, 655 et seq.)

 

Because the per curiam opinion in Piggie Park, supra, did not credit the author, Judge Frank’s unwitting paternity seems to have been overlooked.

 

Of such stuff are rules of law made.

 

County of Inyo v. City of Los Angeles, 78 Cal.App.3d 82 (1978)

http://law.justia.com/cases/california/court-of-appeal/3d/78/82.html

 

 

The term private attorney general was coined by Judge Jerome Frank in the context of a challenge to a private persons standing to bring a lawsuit to vindicate the public interest.  (County of Inyo v. City of Los Angeles (1978) 78 Cal.App.3d 82, 88, fn. 1, citing Associated Industries v. Ickes (2d Cir. 1943) 134 F.2d 694, 704.)  It is meant to convey the concept that a private citizen may stand in the shoes of the Attorney General, not in the sense of an attorney representing a party in court, but in the sense of a government official advancing the public interest in a lawsuit.  Indeed, in most instances, a private attorney general is a private citizen represented by counsel in court.

 

http://www.fearnotlaw.com/wsnkb/articles/altmann_v_cityofagourahillscity_council-24093.html

 

Altmann v. City of Agoura Hills City Council

Court of Appeal of the State of California

Second Appellate District, Division Four

 

 

 

Note:  The following California State statutes were recently amended by voter approval of Proposition 64.  We leave these provisions here, for comparative historical purposes.

 

Private Attorney General statutes,

California Business and Professions Code

 

Section 17204.  Actions for any relief pursuant to this chapter shall be prosecuted exclusively in a court of competent jurisdiction by the Attorney General or any district attorney or by any county counsel authorized by agreement with the district attorney in actions involving violation of a county ordinance, or any city attorney of a city, or city and county, having a population in excess of 750,000, and, with the consent of the district attorney, by a city prosecutor in any city having a full-time city prosecutor or, with the consent of the district attorney, by a city attorney in any city and county in the name of the people of the State of California upon their own complaint or upon the complaint of any board, officer, person, corporation or association or by any person acting for the interests of itself, its members or the general public.

 

[bold emphasis added]

 

Section 17535.  Any person, corporation, firm, partnership, joint stock company, or any other association or organization which violates or proposes to violate this chapter may be enjoined by any court of competent jurisdiction.

 

The court may make such orders or judgments, including the appointment of a receiver, as may be necessary to prevent the use or employment by any person, corporation, firm, partnership, joint stock company, or any other association or organization of any practices which violate this chapter, or which may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of any practice in this chapter declared to be unlawful.

 

Actions for injunction under this section may be prosecuted by the Attorney General or any district attorney, county counsel, city attorney, or city prosecutor in this state in the name of the people of the State of California upon their own complaint or upon the complaint of any board, officer, person, corporation or association or by any person acting for the interests of itself, its members or the general public.

 

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