In re Attorney General Subpoena re Terminix International USVI, LLC

67 V.I. 70
Procedural entryThis page is a short order in In re Attorney General Subpoena re Terminix International USVI, LLC. Read the opinion of the Court — 67 V.I. 60
Superior Court of The Virgin Islands·Decided August 23, 2016·No. Case No. SX-16-MC-059·Published

Opinion

WILLOCKS, Administrative Judge

MEMORANDUM OPINION

(August 23, 2016)

THIS MATTER comes before the Court on Terminix International USVI, LLC’s (hereinafter, “Terminix”) petition to quash subpoena or, in the alternative, to adjudicate petitioner’s objections thereto, hied on August 9, 2016 (hereinafter, “Petition”). On August 12, 2016, the U.S. Virgin Islands Department of Justice (hereinafter, “Department of Justice”) hied a memorandum in opposition to Terminix’s Petition (hereinafter, “Opposition”).

BACKGROUND

Terminix is a pest control company organized under the laws of the U.S. Virgin Islands with its principal place of business located in St. Croix, U.S. Virgin Islands. In re Terminix International USVI, LLC, 67 V.I. 60, 61 (Super. Ct. 2016). Terminix began operating in the U.S. Virgin Islands on April 1, 2012. Id. On April 28, 2016, the U.S. Virgin Islands Attorney General’s Office (hereinafter, “Attorney General”) issued a subpoena duces tecum to Terminix (hereinafter, “Original Subpoena”). Id. The Original Subpoena, issued pursuant to Title 14, Section 612(a) of the Virgin Islands Code, included a list of instructions, special instructions, definitions and documents and information to be provided. Id. at 61-62. After being served with the Original Subpoena, Terminix responded with its objections and refused to provide any documents to the Attorney General. Id. at 63-64. In response, the Department of Justice hied a petition for enforcement. Id. at 64. On July 16, 2016, the Court entered a memorandum opinion and order denying the Department of Justice’s petition for enforcement. Id. at 69.

On July 19, 2016, the Attorney General issued another subpoena duces tecum to Terminix (hereinafter, “Revised Subpoena”). (Pet., p. 1.) The Revised Subpoena similarly included a list of instructions, special instructions, dehnitions and documents and information to be provided. (Pet., Exhibit 1.) The Revised Subpoena stated that Terminix is “suspected to have engaged in, or be engaging in, conduct constituting a [72]*72civil violation of the Criminally Influenced and Corrupt Organizations Act, 14 V.I.C. § 605, in connection with [Terminix’s] conduct to mislead and deceive consumers by misrepresenting and concealing material facts about the dangers and illegality of applying methyl bromide, a restricted-use pesticide, in residential and other unauthorized units in the United States Virgin Islands in violation of Title 14, chapter 41, Virgin Islands Code, relating to fraud and false statements.” (Id.)

In response to being served with the Revised Subpoena, on August 9, 2016, Terminix responded with its objections (hereinafter, “Objections”) and filed this instant Petition. (Pet., Exhibit 2.) In light of its Objections and this Petition before the Court, Terminix did not provide any documents to the Attorney General. (Id.)

DISCUSSION

In its Petition, Terminix argued that the Revised Subpoena failed to overcome the jurisdictional defects and the notice defects under the Criminally Influenced and Corrupt Organizations Act. (Pet., p. 2.) Thus, “[biased upon [the Attorney General’s] failure to make a credible claim that [Terminix’s] alleged conduct falls within [the Criminally Influenced and Corrupt Organizations Act’s] purpose or scope, and further based upon [the Attorney General’s] issuance of a revised Subpoena that fails to address [Terminix’s] previously filed Objections in good faith and to thereby limit the scope of the revised Subpoena,” Terminix requested the Court to quash the Revised Subpoena, or in the alternative, adjudicate its Objections. (Id., p. 1-2.) Terminix also requested the Court to hear oral arguments in this matter. (Id., p. 2.) In its Opposition, the Department of Justice argued that there are no jurisdictional defects nor notice defects in the Revised Subpoena and addressed some of the objections raised by Terminix in its Objections. (Opp., p. 4-5.) The Department of Justice requested the Court to deny Terminix’s Petition and instead, order Terminix to fully comply with the Revised Subpoena. (Id., p. 8.)

A. CICO’s Scope

The Criminally Influenced and Corrupt Organizations Act, Title 14 V.I.C. § 600 et seq.1 (hereinafter, “CICO”) defines “criminal activity” [73]*73as “engaging in, attempting to engage in, conspiring to engage in, or soliciting, coercing, or intimidating another person to engage in the crimes, offenses, violations or the prohibited conduct as variously described in the laws governing this jurisdiction including any Federal criminal law, the violation of which is a felony and, in addition, those crimes, offenses, violations or prohibited conduct as found in the Virgin Islands Code” as enumerated under Section 604(e). Title 14 V.I.C. § 604(e). Section 612 enables the Attorney General to conduct investigations to determine whether a CICO violation has occurred and if civil and/or criminal proceedings should be commenced. Title 14 V.I.C. § 612. Here, the Revised Subpoena indicated that Terminix is “suspected to have engaged in, or be engaging in, conduct constituting a civil violation of the Criminally Influenced and Corrupt Organizations Act, 14 V.I.C. § 605, in connection with [its] conduct to mislead and deceive consumers by misrepresenting and concealing material facts about the dangers and illegality of applying methyl bromide, a restricted-use pesticide, in . . . United States Virgin Islands in violation of Title 14, chapter 41, Virgin Islands Code, relating to fraud and false statement.” (Pet., Exhibit 1.) Title 14, chapter 41 of the Virgin Islands Code, relating to fraud and false statement, is one of the crimes specifically enumerated under Section 604(e). See Title 14 V.I.C. § 604(e)(16). Thus, in this instance where the Attorney General suspects Terminix’s conduct constitutes a criminal activity that falls within the scope of CICO — namely, fraud and false statement, the Court finds that the Attorney General is authorized to investigate under Section 612 to “determine whether a CICO violation has occurred.”

B. CICO’s Notice Requirement

The Court previously explained in In re Terminix International USVI, LLC, 67 V.I. at 67,

Any subpoena issued by the Attorney General under Section 612(a) is required to contain, inter alia, “the nature of the conduct constituting the suspected violation that is under investigation and the provision of law applicable to it.” Title 14V.I.C.§ 612(c). In other words, when the Attorney General issues a subpoena for the production of documents under Section 612, the subpoenaed party should be adequately informed of the pending investigation and the nature of the conduct un[74]*74der investigation for suspected violation of CICO. To deprive the party being investigated of such information would be unfair.

As noted above, the Revised Subpoena clearly stated that it is investigating Terminix in connection with “[its] conduct to mislead and deceive consumers by misrepresenting and concealing material facts about the dangers and illegality of applying methyl bromide, a restricted-use pesticide, in . . . United States Virgin Islands in violation of Title 14, chapter 41, Virgin Islands Code, relating to fraud and false statement.” (Revised Subpoena, p.

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In re Attorney General Subpoena re Terminix International USVI, LLC, 67 V.I. 70 (visuper 2016).

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In re Attorney General Subpoena re: Terminix International USVI, LLC
67 V.I. 60 (Superior Court of The Virgin Islands, 2016)