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ZAVALA v. WAL-MART STORES

October 7, 2005.

VICTOR ZAVALA; EUNICE GOMEZ; ANTONIO FLORES; OCTAVIO DENISIO; HIPOLITO PALACIOS; CARLOS ALBERTO TELLO; MAXIMILIANO MENDEZ; ARTURO ZAVALA; FILIPE CONDADO; LUIS GUTIERREZ; DANIEL ANTONIO CRUZ; PETR ZEDNEK; TERESA JAROS; JIRI PFAUSER; HANA PFAUSEROVA; PAVEL KUNC; and MARTIN MACAK, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
WAL-MART STORES, INC., Defendant.



The opinion of the court was delivered by: JOSEPH GREENAWAY JR., Judge

OPINION

Plaintiffs are undocumented immigrants who have provided janitorial services at Defendant's retail stores nationwide. By this action, they assert claims against Defendant Wal-Mart Stores, Inc. ("Defendant" or "Wal-Mart"), pursuant to the Racketeer Influenced Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962(c) and (d) (1996); the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 206 and 207 (1996); the Civil Rights Act of 1871 ("section 1985"), 42 U.S.C. § 1985(3) (1996); and common law. Wal-Mart has moved to dismiss the entire complaint, pursuant to Fed.R.Civ.P. 12(b)(6). The motion is granted as to Plaintiffs' RICO and Section 1985 claims, and denied as to Plaintiffs' FLSA and common law claims.

  BACKGROUND

  Defendant Wal-Mart, by its own account, is the nation's largest private employer. (Defendant's Brief dated March 19, 2004 ("Def. Br."), at 2.) The named plaintiffs are undocumented immigrants who worked as janitors in various Wal-Mart retail store locations across the country. The allegations in the revised first amended complaint are accepted (and set forth below) as true for purposes of deciding this motion.*fn1 See FED. R. CIV. P. 12(b)(6); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994).

  I. Law Enforcement Actions Against Wal-Mart

  On October 23, 2003, four months before Plaintiffs filed their amended complaint in this Court, the United States Immigration and Customs Enforcement ("USICE") officers raided Wal-Mart retail stores in 21 states. (Revised Amended Complaint dated October 28, 2004 ("RAC"), at ¶ 2.) Federal agents who conducted these raids as part of "Operation Rollback" arrested hundreds of janitors, including 12 of the named plaintiffs, for alleged immigration violations. (RAC ¶ 2.) Federal agents also raided Defendant's headquarters in Arkansas and seized documents and materials in support of a criminal investigation by the United States Attorney of the Middle District of Pennsylvania.*fn2 (RAC ¶ 2.)

  The janitors arrested as part of Operation Rollback were undocumented immigrants from Mexico, the Czech Republic, Mongolia, Brazil, Uzbekistan, Poland, Russia, Georgia, and Lithuania. (RAC ¶ 2.) The named plaintiffs resided in New Jersey, Texas, Alabama, Florida, Virginia, Michigan, and Connecticut. At least 10 of the immigrants arrested in Arizona and Kentucky were employed directly by Wal-Mart. (RAC ¶ 2.) Others were employed through maintenance contractors. (RAC ¶ 2.)

  Operation Rollback was not the first raid on Wal-Mart stores or on its headquarters. Federal agents raided Wal-Mart stores in St. Louis, Missouri in 1997 and 1998 and arrested janitors who had been working illegally in those stores. (RAC ¶ 42.)

  In addition, on June 7, 2002, the United States raided numerous Wal-Mart stores and filed a Verified Complaint of Forfeiture ("Forfeiture Action"), in the Middle District of Pennsylvania against various contractors. (RAC ¶ 42.) The United States asserted that the contractors committed various criminal offenses — indeed, the very same violations that Wal-Mart allegedly committed in this action. See infra. As a result of these raids, federal agents arrested roughly 80 janitors believed to be undocumented immigrants from Uzbekistan, Georgia, Armenia, Estonia, Russia, Bulgaria, Mongolia, Lithuania, Poland, and the Czech Republic. (RAC ¶ 42.)

  This action is also not the first time that a Wal-Mart contractor is alleged to have participated in immigration-related offenses. (RAC ¶ 43.) On June 4, 2001, one of Wal-Mart's maintenance contractors pled guilty in federal court to charges that she had harbored illegal aliens and committed related offenses. The contractor received a 7 month sentence and was fined $2,000. (RAC ¶ 43.) At that time, a spokesperson for Wal-Mart denied having any knowledge of the company's use of undocumented labor. (RAC ¶ 43.)

  Plaintiffs allege that, based on this history, Wal-Mart was aware that it was, and has been, employing unlawfully, hundreds of undocumented immigrants for janitorial positions, notwithstanding its frequent and nationwide use of maintenance contractors. (RAC ¶ 41.) Because of this alleged pattern of conduct, Wal-Mart has been under investigation by federal law enforcement authorities for over five years. (RAC ¶ 42.)

  II. The Alleged Criminal Enterprise

  Plaintiffs allege that they were harmed by an ongoing "exploitative criminal enterprise" (herein the "Wal-Mart Enterprise") comprised of Wal-Mart and its various maintenance contractors, acting as Wal-Mart's co-conspirators or agents. (RAC ¶¶ 1, 36, 40.) Plaintiffs claim that the Wal-Mart Enterprise systematically employed, harbored, and trafficked in the labor of immigrants, aided and abetted violation of the immigration laws, failed to pay their wages and overtime and benefits as required, and concealed their profits and practices from detection. (RAC ¶¶ 1, 36, 57.) More specifically, the Wal-Mart Enterprise operated as follows: participants in the Wal-Mart Enterprise violated the immigration laws to secure workers who could be exploited easily based on their undocumented status. It targeted, encouraged, harbored, trafficked, and employed undocumented aliens, specifically because they were a vulnerable population. (RAC ¶¶ 36, 39, 46, 47.) The Wal-Mart Enterprise exploited them in any number of ways — by obligating them to work in excess of the statutory maximum number of hours, every day of the week, denying them of lawful pay and benefits under the FLSA, as well as time for sick leave, meals or breaks, and paying them in cash without withholding payroll taxes. (RAC ¶ 41). The Wal-Mart Enterprise also easily could, and did, hide them from law enforcement authorities, by threatening them with deportation or locking them into the stores for the duration of their shifts. (RAC ¶ 41.)

  Plaintiffs allege that, regardless of whether the janitors were hired directly by Wal-Mart or by a contractor, the terms of employment were illegal, and the same. (RAC ¶ 41.) Plaintiffs further allege that the Wal-Mart Enterprise used the mails and wire in order to operate the scheme, and concealed and prolonged the existence of the enterprise by money laundering. (RAC ¶ 41.)

  STANDARD OF REVIEW

  On a motion to dismiss, pursuant to Rule 12(b)(6), the court is required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the non-moving party. See Oshiver, 38 F.3d at 1384. The question is whether the claimant can prove any set of facts consistent with his or her allegations that will entitle him or her to relief, not whether that person will ultimately prevail. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). While a court will accept well-pled allegations as true for the purposes of the motion, it will not accept unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of actual allegations. See Miree v. DeKalb, 433 U.S. 25, 27 n. 2 (1977). Moreover, the claimant must set forth sufficient information to outline the elements of his claims or to permit inferences to be drawn that these elements exist. See FED. R. CIV. P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

  In deciding a Rule 12(b)(6) motion, the court may consider the allegations of the complaint, as well as documents attached to or specifically referenced in the complaint, and matters of public record. See Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 259 (3d Cir. 1998); see also 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1357 (3d ed. 2004). "Plaintiffs cannot prevent a court from looking at the texts of the document on which its claim is based by failing to attach or explicitly cite them." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

  DISCUSSION

  Defendant Wal-Mart has moved to dismiss the complaint in its entirety. There are five counts to the complaint, which seek relief pursuant to: (1) RICO, 18 U.S.C. § 1962(c) (Count 1); (2) RICO conspiracy, 18 U.S.C. § 1962(d) (Count 2); (3) 42 U.S.C. § 1985(3) (Count 3); (4) FLSA, 29 U.S.C. §§ 206 and 207 (Count 4); and (5) common law false imprisonment (Count 5). For the reasons set forth below, this Court grants Defendant's motion with respect to Counts 1, 2, and 3, and denies the motion with respect to Counts 4 and 5.

  I. Count 1 — RICO Enterprise Claim

  Plaintiffs allege that Wal-Mart and its contractors formed an unlawful "Wal-Mart Enterprise," in the form of an association-in-fact, for "the purpose of profiting from a systematic violation of immigration and labor, wage and hour laws and other laws." (RAC ¶ 64.) Plaintiffs assert that the members of the Wal-Mart Enterprise conducted the affairs of the enterprise "by employing, harboring, and trafficking in the labor of the plaintiff immigrants, failing to pay their wages and overtime and benefits as required by federal and state law, and concealing their profits and practices from detection." (RAC ¶ 36.) More specifically, they allege that Wal-Mart and its maintenance contractors engaged in, or aided and abetted, various racketeering activities, including: harboring, transporting, and encouraging undocumented aliens; conspiring to commit these immigration law violations; committing these immigration law violations for financial gain; involuntary servitude; money laundering; and mail and wire fraud. (RAC ¶ 67.) These activities are alleged to constitute a "pattern of racketeering" within the meaning of RICO, and since 1996 and continuing to the present, "were related to each other by virtue of" common participants, victims, method of commission, and purpose. (RAC ¶ 68.) The alleged result of these activities has been to deny Plaintiffs the protection of wage and hour laws and other laws in order to "enrich Wal-Mart" at Plaintiffs' expense. (RAC ¶ 68.)

  Wal-Mart argues that Plaintiffs lack standing to assert a RICO enterprise claim in Count 1 of the complaint, since the injuries were not caused proximately by the alleged RICO activities and because the plaintiffs were not harmed by, but in fact benefitted from, the alleged racketeering activity.*fn3 Wal-Mart further contends that Plaintiffs' RICO claim also fails because they failed to plead a "separate and distinct" enterprise, Wal-Mart's "operation or management" of the enterprise, and "viable predicate offenses," each of which are necessary for a RICO claim to survive. (Def. Br. at 4.)

  For the reasons set forth below, this Court concludes that Plaintiffs have not alleged two underlying predicate acts sufficient to state a RICO claim. Accordingly, this Court need not address each of Wal-Mart's bases in support of dismissal of this claim at this time. Wal-Mart's motion to dismiss Count 1 shall be granted, and Count 1 shall be dismissed without prejudice. Because this Court cannot conclude that amendment would be futile, Plaintiffs shall have the opportunity to amend Count 1, if they so choose, within 45 days of the entry of this Opinion.

  A. Relevant Law

  It is unlawful "for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce." 18 U.S.C. § 1962(b); see also Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir. 2004) (stating that, to plead a RICO claim, a plaintiff must allege: (1) conduct; (2) of an enterprise; (3) through a pattern; (4) of racketeering activity).

  A "person" is "any individual or entity capable of holding a legal or beneficial interest in property." See 18 U.S.C. § 1961(3). An "enterprise" includes "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4).

  A "pattern of racketeering activity" requires "at least two acts of racketeering activity," as defined at 18 U.S.C. § 1961(1).*fn4 See 18 U.S.C. § 1961(5). "Racketeering activity" includes any act which is indictable under 18 U.S.C. § 1341 (mail fraud); 18 U.S.C. § 1343 (wire fraud); 18 U.S.C. § 1956 (money laundering); and 18 U.S.C. §§ 1581-1588 (peonage and slavery). See 18 U.S.C. § 1961(1)(B). It also encompasses "any act which is indictable under the Immigration and Nationality Act, section 274 (relating to bringing in and harboring certain aliens), section 277 (relating to aiding or assisting certain aliens to enter the United States), or section 278 (relating to importation of alien for immoral purpose) if the act indictable under such section of such Act was committed for the purpose of financial gain." See 18 U.S.C. § 1961(1)(F).

  B. Sufficiency of Allegations of Predicate Acts

  In order to state a claim for relief under RICO, Plaintiffs must allege that Wal-Mart engaged in at least two underlying predicate acts of racketeering, as enumerated in the statute. See 18 U.S.C. § 1961. Plaintiffs allege that Defendant engaged in the following predicate acts:
(1) transporting undocumented aliens, 8 U.S.C. § 1324(a)(1)(A)(ii);
(2) harboring undocumented aliens, 8 U.S.C. § 1324(a)(1)(A)(iii);
(3) encouraging undocumented aliens to reside in the United States, 8 U.S.C. § 1324(a)(1)(A)(iv);
(4) conspiring to transport, harbor, and encourage illegal aliens to reside in the United States, 8 U.S.C. § 1324(a)(1)(A)(v)(I);
(5) aiding and abetting the transportation, harboring and encouraging of illegal aliens to reside in the United States, 8 U.S.C. § 1324(a)(1)(A)(v)(II);
(6) committing the above offenses for financial gain, 8 U.S.C. § 1324(a)(1)(B)(i);*fn5
(7) engaging in a pattern and practice of hiring and employing illegal aliens, 8 U.S.C. § 1324(a)(3)(A); (8) involuntary servitude, 18 U.S.C. § 1584;
(9) money laundering of the proceeds of the criminal acts, 18 U.S.C. §§ 1956(a)(1)(A)(i); 1956(a)(1)(B)(i), 1956(a)(1)(B)(ii), 1956(a)(3)(A), 1956(a)(3)(B), and 1956(a)(3)(C); and
(10) mail and wire fraud, 18 U.S.C. §§ 1341 and 1343.
(RAC ¶ 37.) Because Plaintiffs' allegations do not support the existence of at least two predicate acts to support a substantive RICO claim under § 1962(c), Wal-Mart's motion to dismiss the RICO claim is granted, and Plaintiffs' RICO enterprise claim is dismissed without prejudice.

  1. Immigration Predicate Acts

  Plaintiffs assert that the "parties who make up the Wal-Mart Enterprise participated in its affairs" by committing various immigration-related predicate acts, including transporting, harboring, and encouraging Plaintiffs, aliens who are unlawfully present in the United States, as well as by conspiring to commit, and aiding and abetting, these predicate acts. (RAC ¶ 37.) More specifically, Plaintiffs allege that maintenance contractors transported, harbored, and encouraged Plaintiffs, and that Wal-Mart, with knowledge of Plaintiffs' unlawful status, "condoned" and "aided and abetted" these activities. (RAC ¶ 44.) The allegations that Wal-Mart, as part of the Wal-Mart Enterprise, engaged in, aided and abetted,*fn6 or conspired*fn7 to commit, these immigration predicate acts are insufficient to state a claim against Wal-Mart. The allegations that Wal-Mart also committed the predicate act of hiring ten or more employees who were brought illegally into the United States are also deficient. This Court addresses the deficiencies of each of these predicate acts below.

  a. Transporting

  Violation of the prohibition against transporting requires proof that: (1) the alien was unlawfully present in the United States; (2) the defendant knew or recklessly disregarded the fact that the alien was in violation of the law; (3) the defendant knowingly transported or moved, or attempted to transport or move, the illegal alien "by means of transportation or otherwise"; and (4) the transporting or moving was done in furtherance of the alien's illegal presence in the United States. See 8 U.S.C. § 1324(a)(1)(A)(ii); United States v. Romero-Cruz, 201 F.3d 374, 378 (5th Cir. 2000); United States v. Diaz, 936 F.2d 786, 788 (5th Cir. 1991).

  Based on a review of the complaint, it appears that Plaintiffs have not alleged sufficient facts from which this Court could infer that Wal-Mart violated the prohibition against transporting. Although Plaintiffs appear to have alleged sufficient facts concerning the first two elements of the offense of transporting (RAC ¶¶ 2, 3, 4, 40, 42, 44), their allegations with respect to the third and fourth elements fall short. More specifically, the allegations of transporting of attempted transporting of aliens unlawfully present in the United States, in furtherance of their illegal presence, are insufficient, if not altogether absent. The allegation that most closely approximates an assertion of transporting states:
Upon [Plaintiff Kunc's] arrival he was met by a Wal-Mart contractor named Patrick (last name unknown) who transported Kunc to suburban Virginia where he was lodged and put to work at Wal-Mart. Wal-Mart management knew that Kunc was an alien without work authorization, yet, consistent with the aims of and tactics employed by the Enterprise, Wal-Mart continued to employ Kunc as a janitor in its stores. On information and belief, this contractor and many others operating in the Wal-Mart Enterprise, encouraged, assisted and facilitated the entry and transport of many other undocumented foreign nationals to the United States and employment in Wal-Mart.
(RAC ¶ 44.) Based on these allegations, this Court cannot conclude that Plaintiffs have stated a claim of unlawful transporting against Wal-Mart.

  Furthering an illegal presence, for purposes of stating the predicate act of transporting, involves more than transporting the undocumented worker to his or her place of employment. See, e.g., System Mgmt., Inc. v. Loiselle, 91 F.Supp. 2d 401, 411 (D. Mass. 2000); United States v. Moreno-Duque, 718 F.Supp. 254, 258-59 (D. Vt. 1989) (both stating that allegations of merely transporting aliens to work is insufficient for purposes of stating a claim of transporting); see also United States v. Chavez-Palacios, 30 F.3d 1290, 1294 (10th Cir. 1994) (stating that "mere transportation of an illegal alien is, without more, insufficient as a matter of law to support a conviction under this statute"). Here, even if this Court assumes the truth of Plaintiffs' allegations, namely, that Wal-Mart hired Plaintiffs, with knowledge or reckless disregard for their unlawful immigration status, they are insufficient to support the claim that Wal-Mart transported aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii).

  Furthermore, Plaintiffs also have not alleged sufficient facts that reasonably suggest that Wal-Mart conspired to further an alien's illegal presence or aided and abetted that illegal presence. See 8 U.S.C. § 1324(a)(1)(A)(v)(I). According to the allegations related to Plaintiff Kunc, a Wal-Mart contractor "and many others . . . assisted and facilitated" the transport of undocumented workers and their employment at Wal-Mart stores. (RAC ¶ 44.) However, based on a review of the pleadings, it is unclear how Wal-Mart conspired to transport and further the illegal presence of aliens.

  In addition, for purposes of alleging a claim of aiding and abetting, Plaintiffs must allege facts regarding Wal-Mart's participation in the offense, i.e., what "affirmative conduct" it undertook to "aid the venture." Romero-Cruz, 201 F.3d at 378; 8 U.S.C. § 1324(a)(1)(v)(II).*fn8 In Romero-Cruz, the court affirmed the defendant's convictions for transporting illegal aliens, because there was evidence that the defendant had engaged in "affirmative conduct designed to aid in the venture of transporting the aliens further north." 201 F.3d at 379. In Romero-Cruz, the trial evidence indicated that the defendant had driven a pickup truck to a motel, "conversed with a group of aliens after they signaled to him, and directed them to lie down in the truck . . . [and] retained control of the truck until [another person] arrived . . . [and] talked with someone in [a] blue car before climbing into the passenger cab of the truck." Id.

  By contrast, in this case, Plaintiffs have not alleged sufficient facts to state a claim that Wal-Mart conspired to commit, or aided and abetted, this particular predicate act. In their opposition brief, Plaintiffs argue, in conclusory fashion, that "Wal-Mart . . . aided and abetted [immigration predicates]" (Pl. Br. at 28), but they do not allege facts in the complaint to show that Wal-Mart conspired to commit unlawful acts of transporting, or what affirmative steps or aid Wal-Mart provided to the unlawful transporting of aliens.

  Accordingly, Plaintiffs cannot rely upon transporting, conspiring to transport, or aiding and abetting the transport of, undocumented workers as one of the predicate acts constituting a pattern of racketeering necessary to state a RICO claim.

  b. Harboring

  Plaintiffs also have not alleged sufficient facts to support the predicate acts of harboring, conspiracy to harbor, or aiding and abetting the harboring of, undocumented aliens. The predicate act of harboring requires a showing that the defendant: (1) knows or recklessly disregards the fact that an alien is illegally in this country; and (2) conceals, harbors, or shields, or attempts to conceal, harbor or shield, the alien from detection. See 8 U.S.C. § 1324(a)(1)(A)(iii).

  Where, as here, the statute does not define certain of its terms, courts rely on the ordinary definitions of those terms. See, e.g., United States v. Zheng, 306 F.3d 1080, 1085 (11th Cir. 2002) (stating that terms of a criminal statute that are not defined statutorily are ascribed their ordinary or natural meaning, and relying on dictionaries and "common sense" to interpret undefined terms); United States v. Yoshida, 303 F.3d 1145, 1151 (9th Cir. 2002) ("In the absence [of a statutory definition], we construe a statutory term in accordance with its ordinary or natural meaning.") (quoting FDIC v. Meyer, 510 U.S. 471, 476 (1994)). Thus, to "harbor" is to "give shelter or refuge to" or "to be the home or habitat of"; to "conceal" is "to prevent disclosure or recognition of" or "to place out of sight"; and to "shield" is to "protect with or as if with a shield" or "provide with a protective cover or shelter" or "to cut off from observation" or "hide." See Merriam-Webster On-Line Dictionary, http://www.merriamwebster.com. None of the allegations sufficiently allege these acts.

  It is difficult to determine which allegations address concealment or shielding.*fn9 The relevant allegations concerning harboring however, relate to the facts surrounding the conviction of a former Wal-Mart contractor (RAC ¶ 43), and to Plaintiff Kunc, who was "lodged" and then "put to work" by another Wal-Mart contractor. (RAC ¶ 44.)

  These allegations are insufficient. For example, providing housing and employment may constitute "harboring" for "financial gain," but this is not what has been alleged against Wal-Mart. Zheng, 306 F.3d at 1083 (involving undocumented aliens who lived in the defendant's house, without paying rent, and worked at the defendant's restaurant six days a week, twelve hours a day). Harboring also might be alleged where, in addition to employing undocumented aliens, a store owner, for example, also provides a back room of the store as a residence. See United States v. Singh, 261 F.3d 530, 533 (5th Cir. 2001). Here, however, Plaintiffs allege that Wal-Mart hired, and continued to employ, Kunc, despite its knowledge that Kunc was not authorized to work in the United States, not that Wal-Mart harbored illegal aliens. A contractor's "lodging" of an undocumented worker and "putting him to work" falls short of alleging that Wal-Mart sheltered undocumented aliens for the purposes of concealing them and avoiding their detection by immigration authorities. While this Court might infer from the allegations in the complaint that Wal-Mart recklessly disregarded the illegal status of Plaintiffs when it employed them as janitorial or maintenance workers at their various retail locations, it is unclear what alleged conduct by Wal-Mart might constitute the concealing, harboring or shielding of illegal aliens from detection.

  Setting aside the insufficiency of the allegations concerning whether Wal-Mart was involved directly in harboring Kunc, or other plaintiffs in this action, it also is unclear how Wal-Mart aided and abetted acts of harboring. At most, Plaintiffs have alleged that Wal-Mart "continued" its association with its maintenance contractors and its employment of undocumented workers as janitors in its stores. (RAC ¶ 43.) In sum, these allegations are insufficient to state a claim of harboring, conspiracy to harbor, or aiding and abetting harboring.

  c. Encouraging

  To state an encouraging claim, a plaintiff must allege that: (1) the defendant encouraged or induced an alien to come to, or remain in, the United States; and (2) while knowing or recklessly disregarding the fact that coming to, or remaining in, the United States would be, or is, unlawful. See 8 U.S.C. § 1324(a)(1)(A)(iv). Various acts may amount to encouraging. For example, providing aliens with information at an airport about their departure for the United States, concealing the baggage check claims of the aliens, and leading them to the boarding gate for departure to the United States, taken together, has been sufficient to prove unlawful encouraging under § 1324(a)(1)(A)(iv). Yoshida, 303 F.3d at 1150-51. Encouraging may also consist of taking actions to "convince the illegal alien to come to this country or to stay in this country." United States v. Oloyede, 982 F.2d 133, 137 (4th Cir. 1992).*fn10

  In this case, Plaintiffs allege that "contractors who supplied janitorial labor to Wal-Mart encouraged foreign nationals to enter the United States through promises of employment placed in various media outlets." (RAC ¶ 44.) Plaintiffs further allege:
[P]laintiff Kunc was encouraged to enter the United States to work illegally through media advertisements run in his native Czech Republic in February 2003 that promised employment in the United States for a fee of $1,500. When Kunc responded to the ad, a Wal-Mart contractor instructed him to fly to Washington, D.C. . . . On information and belief, this contractor and many others operating in the Wal-Mart Enterprise, encouraged, assisted and facilitated the entry and transport of many other undocumented foreign nationals to the United States and employment in Wal-Mart. . . .
(RAC ¶ 44.) These allegations implicate a particular Wal-Mart contractor, but do not state a claim against Wal-Mart for encouraging, conspiracy to encourage, or aiding and abetting the encouraging of illegal aliens. See 8 U.S.C. § 1324(a)(1)(A)(v)(I)-(II). As alleged, Wal-Mart hired undocumented workers to fill its ...

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