RJR Nabisco, Inc. v. European Community

RICO reaches some racketeering activity in foreign countries, but to seek a civil remedy under RICO, a plaintiff must prove domestic injury to business or property.  Absent clearly expressed Congressional intent to the contrary, federal statutes are construed to have only domestic application.  In analyzing a statute’s reach, the court first asks whether the statute gives a clear affirmative indication it is to apply outside the US.  If the answer is yes, the statute’s scope turns on any limits that Congress has or has not imposed on its foreign application.  If the answer is no, the court asks whether the conduct which is the statute’s focus occurred in the US, if so the statute applies; if not, it does not.  This test is applied separately to a statute’s substantive provisions banning conduct and its procedural provisions granting a private remedy.  Thus, RICO’s substantive section 18 USC 1962(b) and (c) (at least, and maybe (a) and (d)) clearly indicate that foreign application was intended because some of the predicate acts giving rise to RICO liability are violations of other statutes that apply outside the US, such as hostage-taking (18 USC 1203).  So, in this case, RJR’s alleged foreign conduct in conspiring to launder drug money into cigarette purchases might be the basis of a RICO prosecution.  However, the same analysis of RICO’s private right of action section (18 USC 1964) yields the opposite result.  Its wording does not give any clear indication of an intent that it apply outside the US.  And its focus is on injury to the plaintiff’s business or property.  Hence, that injury must occur within the US for the plaintiff to have a RICO claim.  Here, the plaintiffs waived any assertion they suffered domestic injury.  Their reliance on injury suffered outside the US stated no RICO claim.

United States Supreme Court (Alito, J.; Ginsburg, Breyer, & Kagan, JJ., concurring in part, dissenting in part, and dissenting from the judgment); June 20, 2016; 2016 WL 3369423


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