OTLA Trial Lawyer Winter 2022

54 Trial Lawyer • Winter 2022 Under Oregon’s RICO act, a “pattern of racketeering activity” exists when there are multiple predicate acts that are related to each other and the claimed enterprise, even if the enterprise consists of a single real estate transaction. Willms v. AmeriTitle, Inc., 314 Or App 687 (2021); Shorr, J. The plaintiffs were represented by Kathryn Clarke and Zachary Hostetter. The plaintiffs, a couple, engaged a real estate transaction for which AmeriTitle was the escrow. As part of that transaction, AmeriTitle made fraudulent statements regarding the receipt of escrow payments, knowingly provided a false sworn statement and fraudulently obtained the plaintiffs’ signatures on the necessary documents. The plaintiffs sued under Oregon’s RICO act, alleging a “pattern of racketeering activity.” AmeriTitle moved for directed verdict at trial, arguing there could be no such pattern because there was only one escrow transaction. The court denied the motion, and a jury found for the plaintiffs. The Court of Appeals affirmed, explaining that the plaintiffs had identified three separate acts of racketeering activity, and this was enough to form a pattern under Oregon’s version of RICO, because the act requires only two predicate acts, and those acts can have the same two victims. While “isolated incidents” are insufficient to form a “pattern” under Oregon’s RICO act, that phrase does not require proof of continuity of the incidents or any particular temporal element. Rather, it describes the relationship between or among the predicate acts, including their nexus to the same enterprise. The court held in this case there were more than two predicate acts with the same victims that were not isolated in occurrence, as they were related to each other and had a nexus to the claimed enterprise. In reaching this holding, the court rejected two decisions from the District of Oregon that had adopted the position AmeriTitle advocated for in this case because they “read[] into the term ‘isolated incidents’ a temporal element that our Supreme Court has rejected.” ORS 659A.403, which prohibits age discrimination, protects the right of persons between 18 and 20 years of age to buy guns in cases where no other statute limits that right. Dalbeck v. Bi-Mart Corp., 315 Or App 129 (2021); Lagesen, J. The plaintiffs were represented by Max Whittington. Bi-Mart refused to sell the plaintiff a hunting rifle because she was 18 years old. She sued for age discrimination under ORS 659A.403. Bi-Mart moved for summary judgment, which the court granted, reasoning the statute does not protect persons between the ages of 18 and 20 and, alternatively, that there is an implied exception for issues of public safety like guns. The Court of Appeals reversed, explaining ORS 659A.403 prohibits age discrimination against those who have reached the age of majority (18) absent explicit authorization by law for any differential treatment. Because no statute authorizes differential treatment of persons between the ages of 18 and 20 when it comes to purchasing a hunting rifle, the trial court erred in dismissing the case. Judge Kamins concurred, noting Bi-Mart’s contention that its policy comes not from animus toward young people, but to fill the void of legislative inaction in addressing gun violence, and that while ORS 659A.403, prohibits companies from restricting firearm sales to teenagers, the Legislature might not have intended that result. UIM insurer’s PIP benefits payment was proper offset decided in post-judgment proceedings and properly excluded as evidence at trial; insurer properly within “safe harbor” protections from fee liability by limiting dispute to amount of damages. Koenig v. State Farm Mut. Auto. Ins. Co., 315 Or App 28 (2021), DeVore, J. Willard Merkel represented the plaintiff. Claim for violation of veteran’s preference in public employment statute, based on failure to be interviewed for job, accrues when plaintiff learns plaintiff was not interviewed, not when plaintiff learns plaintiff was not hired. Sellers v. Judicial Dept., 315 Or App 276 (2021); per curium. The plaintiff was represented by Sean Riddell. Unlike federal law, Oregon law does not authorize a court to dismiss a plaintiff ’s claim based on the plaintiff ’s pre-litigation destruction of evidence. Markstrom v. Guard Publishing Co., 315 Or App 309 (2021); Armstrong, J.. The plaintiff was represented by Matt Malmsheimer and Christopher Lundberg. Cody Hoesly specializes in appeals, financial fraud and commercial cases. He contributes to OTLA Guardians at the Sustaining Member level. Hoesly is a partner with Larkins Vacura Kayser LLP, 121 SWMorrison St., Ste. 700, Portland, OR 97204. He can be reached at 503-2224424 or choesly@lvklaw.com. Lisa T. Hunt specializes in appeals and full-scale trial and motions support for plaintiff attorneys. Recent practice areas include class actions, Oregon’s wage and hour law, product and premises liability, personal and business injury, and UIM. She can be reached at the Law Office of Lisa T. Hunt, LLC, 503-515-8501 or lthunt@lthuntlaw.com. Nadia Dahab specializes in appeals, civil rights, and general civil and class action litigation. She contributes to OTLA Guardians at the Guardians Club level. Dahab is a shareholder at Sugerman Dahab, 707 SWWashington St., Ste. 600, Portland, OR 97205. She can be reached at nadia@sugermandahab.com or 503228-6474. Sheets Continued from p 53