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RJR NABISCO, INC., ET AL. v. EUROPEAN COMMUNITY ET AL. (2016)
United States Supreme Court
RJR NABISCO, INC., ET AL. v. EUROPEAN COMMUNITY ET AL. (2016)
No. 15-138
Argued: March 21, 2016 Decided: June 20, 2016
The Racketeer Influenced and Corrupt Organizations Act (RICO) prohibits certain activities of organized crime groups in relation to an enterprise. RICO makes it a crime to invest income derived from a pattern of racketeering activity in an enterprise "which is engaged in, or the activities of which affect, interstate or foreign commerce," 18 U. S. C. §1962(a); to acquire or maintain an interest in an enterprise through a pattern of racketeering activity, §1962(b); to conduct an enterprise's affairs through a pattern of racketeering activity, §1962(c); and to conspire to violate any of the other three prohibitions, §1962(d). RICO also provides a civil cause of action for "[a]ny person injured in his business or property by reason of a violation" of those prohibitions. §1964(c).
Respondents (the European Community and 26 of its member states) filed suit under RICO, alleging that petitioners (RJR Nabisco and related entities (collectively RJR)) participated in a global money-laundering scheme in association with various organized crime groups. Under the alleged scheme, drug traffickers smuggled narcotics into Europe and sold them for euros that--through transactions involving black-market money brokers, cigarette importers, and wholesalers--were used to pay for large shipments of RJR cigarettes into Europe. The complaint alleged that RJR violated §§1962(a)-(d) by engaging in a pattern of racketeering activity that included numerous predicate acts of money laundering, material support to foreign terrorist organizations, mail fraud, wire fraud, and violations of the Travel Act. The District Court granted RJR's motion to dismiss on the ground that RICO does not apply to racketeering activity occurring outside U. S. territory or to foreign enterprises. The Second Circuit reinstated the claims, however, concluding that RICO applies extraterritorially to the same extent as the predicate acts of racketeering that underlie the alleged RICO violation, and that certain predicates alleged in this case expressly apply extraterritorially. In denying rehearing, the court held further that RICO's civil action does not require a domestic injury, but permits recovery for a foreign injury caused by the violation of a predicate statute that applies extraterritorially.
Held:
1. The law of extraterritoriality provides guidance in determining RICO's reach to events outside the United States. The Court applies a canon of statutory construction known as the presumption against extraterritoriality: Absent clearly expressed congressional intent to the contrary, federal laws will be construed to have only domestic application. Morrison v. National Australia Bank Ltd.,
2. The presumption against extraterritoriality has been rebutted with respect to certain applications of RICO's substantive prohibitions in §1962. Pp. 10-18.
(a) RICO defines racketeering activity to include a number of predicates that plainly apply to at least some foreign conduct, such as the prohibition against engaging in monetary transactions in criminally derived property, §1957(d)(2), the prohibitions against the assassination of Government officials, §§351(i), 1751(k), and the prohibition against hostage taking, §1203(b). Congress has thus given a clear, affirmative indication that §1962 applies to foreign racketeering activity--but only to the extent that the predicates alleged in a particular case themselves apply extraterritorially. This fact is determinative as to §§1962(b) and (c), which both prohibit the employment of a pattern of racketeering. But §1962(a), which targets certain uses of income derived from a pattern of racketeering, arguably extends only to domestic uses of that income. Because the parties have not focused on this issue, and because its resolution does not affect this case, it is assumed that respondents have pleaded a domestic investment of racketeering income in violation of §1962(a). It is also assumed that the extraterritoriality of a violation of RICO's conspiracy provision, §1962(d), tracks that of the RICO provision underlying the alleged conspiracy. Pp. 10-14.
(b) RJR contends that RICO's "focus" is its enterprise element, which gives no clear indication of extraterritorial effect. But focus is considered only when it is necessary to proceed to the inquiry's second step. See Morrison, supra, at 267, n. 9. Here, however, there is a clear indication at step one that at least §§1962(b) and (c) apply to all transnational patterns of racketeering, subject to the stated limitation. A domestic enterprise requirement would lead to difficult line-drawing problems and counterintuitive results, such as excluding from RICO's reach foreign enterprises that operate within the United States. Such troubling consequences reinforce the conclusion that Congress intended the §§1962(b) and (c) prohibitions to apply extraterritorially in tandem with the underlying predicates, without regard to the locus of the enterprise. Of course, foreign enterprises will qualify only if they engage in, or significantly affect, commerce directly involving the United States. Pp. 14-17.
(c) Applying these principles here, respondents' allegations that RJR violated §§1962(b) and (c) do not involve an impermissibly extraterritorial application of RICO. The Court assumes that the alleged pattern of racketeering activity consists entirely of predicate offenses that were either committed in the United States or committed in a foreign country in violation of a predicate statute that applies extraterritorially. The alleged enterprise also has a sufficient tie to U. S. commerce, as its members include U. S. companies and its activities depend on sales of RJR's cigarettes conducted through "the U. S. mails and wires," among other things. Pp. 17-18.
3. Irrespective of any extraterritoriality of §1962's substantive provisions, §1964(c)'s private right of action does not overcome the presumption against extraterritoriality, and thus a private RICO plaintiff must allege and prove a domestic injury. Pp. 18-27.
(a) The Second Circuit reasoned that the presumption against extraterritoriality did not apply to §1964(c) independently of its application to §1962's substantive provisions because §1964(c) does not regulate conduct. But this view was rejected in Kiobel, 569 U. S., at ___, and the logic of that decision requires that the presumption be applied separately to RICO's cause of action even though it has been overcome with respect to RICO's substantive prohibitions. As in other contexts, allowing recovery for foreign injuries in a civil RICO action creates a danger of international friction that militates against recognizing foreign-injury claims without clear direction from Congress. Respondents, in arguing that such concerns are inapplicable here because the plaintiffs are not foreign citizens seeking to bypass their home countries' less generous remedies but are foreign countries themselves, forget that this Court's interpretation of §1964(c)'s injury requirement will necessarily govern suits by nongovernmental plaintiffs. The Court will not forgo the presumption against extraterritoriality to permit extraterritorial suits based on a case-by-case inquiry that turns on or looks to the affected sovereign's consent. Nor will the Court adopt a double standard that would treat suits by foreign sovereigns more favorably than other suits. Pp. 18-22.
(b) Section 1964(c) does not provide a clear indication that Congress intended to provide a private right of action for injuries suffered outside of the United States. It provides a cause of action to "[a]ny person injured in his business or property" by a violation of §1962, but neither the word "any" nor the reference to injury to "business or property" indicates extraterritorial application. Respondents' arguments to the contrary are unpersuasive. In particular, while they are correct that RICO's private right of action was modeled after §4 of the Clayton Act, which allows recovery for injuries suffered abroad as a result of antitrust violations, see Pfizer Inc. v. Government of India,
(c) Section 1964(c) requires a civil RICO plaintiff to allege and prove a domestic injury to business or property and does not allow recovery for foreign injuries. Respondents waived their domestic injury damages claims, so the District Court dismissed them with prejudice. Their remaining RICO damages claims therefore rest entirely on injury suffered abroad and must be dismissed. P. 27.
764 F. 3d 129, reversed and remanded.
Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy and Thomas, JJ., joined, and in which Ginsburg, Breyer, and Kagan, JJ., joined as to Parts I, II, and III. Ginsburg, J., filed an opinion concurring in part, dissenting in part, and dissenting from the judgment, in which Breyer and Kagan, JJ., joined. Breyer, J., filed an opinion concurring in part, dissenting in part, and dissenting from the judgment. Sotomayor, J., took no part in the consideration or decision of the case.
Opinion of the Court
579 U. S. ____ (2016)
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
No. 15-138
RJR NABISCO, INC., et al., PETITIONERS v.
EUROPEAN COMMUNITY, et al.
on writ of certiorari to the united states court of appeals for the second circuit
[June 20, 2016]
Justice Alito delivered the opinion of the Court.
The Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. §§1961-1968, created four new criminal offenses involving the activities of organized criminal groups in relation to an enterprise. §§1962(a)-(d). RICO also created a new civil cause of action for "[a]ny person injured in his business or property by reason of a violation" of those prohibitions. §1964(c). We are asked to decide whether RICO applies extraterritorially--that is, to events occurring and injuries suffered outside the United States.
I
A
RICO is founded on the concept of racketeering activity. The statute defines "racketeering activity" to encompass dozens of state and federal offenses, known in RICO parlance as predicates. These predicates include any act "indictable" under specified federal statutes, §§1961(1)(B)-(C), (E)-(G), as well as certain crimes "chargeable" under state law, §1961(1)(A), and any offense involving bankruptcy or securities fraud or drug-related activity that is "punishable" under federal law, §1961(1)(D). A predicate offense implicates RICO when it is part of a "pattern of racketeering activity"--a series of related predicates that together demonstrate the existence or threat of continued criminal activity. H. J. Inc. v. Northwestern Bell Telephone Co.,
RICO's §1962 sets forth four specific prohibitions aimed at different ways in which a pattern of racketeering activity may be used to infiltrate, control, or operate "a[n] enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce." These prohibitions can be summarized as follows. Section 1962(a) makes it unlawful to invest income derived from a pattern of racketeering activity in an enterprise. Section 1962(b) makes it unlawful to acquire or maintain an interest in an enterprise through a pattern of racketeering activity. Section 1962(c) makes it unlawful for a person employed by or associated with an enterprise to conduct the enterprise's affairs through a pattern of racketeering activity. Finally, §1962(d) makes it unlawful to conspire to violate any of the other three prohibitions.1
Violations of §1962 are subject to criminal penalties, §1963(a), and civil proceedings to enforce those prohibitions may be brought by the Attorney General, §§1964(a)-(b). Separately, RICO creates a private civil cause of action that allows "[a]ny person injured in his business or property by reason of a violation of section 1962" to sue in federal district court and recover treble damages, costs, and attorney's fees. §1964(c).2
B
This case arises from allegations that petitioners--RJR Nabisco and numerous related entities (collectively RJR)--participated in a global money-laundering scheme in association with various organized crime groups. Respondents--the European Community and 26 of its member states--first sued RJR in the Eastern District of New York in 2000, alleging that RJR had violated RICO. Over the past 16 years, the resulting litigation (spread over at least three separate actions, with this case the lone survivor) has seen multiple complaints and multiple trips up and down the federal court system. See 2011 WL 843957, *1-*2 (EDNY, Mar. 8, 2011) (tracing the procedural history through the District Court's dismissal of the present complaint). In the interest of brevity, we confine our discussion to the operative complaint and its journey to this Court.
Greatly simplified, the complaint alleges a scheme in which Colombian and Russian drug traffickers smuggled narcotics into Europe and sold the drugs for euros that--through a series of transactions involving black-market money brokers, cigarette importers, and wholesalers--were used to pay for large shipments of RJR cigarettes into Europe. In other variations of this scheme, RJR allegedly dealt directly with drug traffickers and money launderers in South America and sold cigarettes to Iraq in violation of international sanctions. RJR is also said to have acquired Brown & Williamson Tobacco Corporation for the purpose of expanding these illegal activities.
The complaint alleges that RJR engaged in a pattern of racketeering activity consisting of numerous acts of money laundering, material support to foreign terrorist organizations, mail fraud, wire fraud, and violations of the Travel Act. RJR, in concert with the other participants in the scheme, allegedly formed an association in fact that was engaged in interstate and foreign commerce, and therefore constituted a RICO enterprise that the complaint dubs the "RJR Money-Laundering Enterprise." App. to Pet. for Cert. 238a, Complaint ¶158; see §1961(4) (defining an enterprise to include "any union or group of individuals associated in fact although not a legal entity").
Putting these pieces together, the complaint alleges that RJR violated each of RICO's prohibitions. RJR allegedly used income derived from the pattern of racketeering to invest in, acquire an interest in, and operate the RJR Money-Laundering Enterprise in violation of §1962(a); acquired and maintained control of the enterprise through the pattern of racketeering in violation of §1962(b); operated the enterprise through the pattern of racketeering in violation of §1962(c); and conspired with other participants in the scheme in violation of §1962(d).3 These violations allegedly harmed respondents in various ways, including through competitive harm to their state-owned cigarette businesses, lost tax revenue from black-market cigarette sales, harm to European financial institutions, currency instability, and increased law enforcement costs.4
RJR moved to dismiss the complaint, arguing that RICO does not apply to racketeering activity occurring outside U. S. territory or to foreign enterprises. The District Court agreed and dismissed the RICO claims as impermissibly extraterritorial. 2011 WL 843957, at *7.
The Second Circuit reinstated the RICO claims. It concluded that, "with respect to a number of offenses that constitute predicates for RICO liability and are alleged in this case, Congress has clearly manifested an intent that they apply extraterritorially." 764 F. 3d 129, 133 (2014). "By incorporating these statutes into RICO as predicate racketeering acts," the court reasoned, "Congress has clearly communicated its intention that RICO apply to extraterritorial conduct to the extent that extraterritorial violations of these statutes serve as the basis for RICO liability." Id., at 137. Turning to the predicates alleged in the complaint, the Second Circuit found that they passed muster. The court concluded that the money laundering and material support of terrorism statutes expressly apply extraterritorially in the circumstances alleged in the complaint. Id., at 139-140. The court held that the mail fraud, wire fraud, and Travel Act statutes do not apply extraterritorially. Id., at 141. But it concluded that the complaint states domestic violations of those predicates because it "allege[s] conduct in the United States that satisfies every essential element" of those offenses. Id., at 142.
RJR sought rehearing, arguing (among other things) that RICO's civil cause of action requires a plaintiff to allege a domestic injury, even if a domestic pattern of racketeering or a domestic enterprise is not necessary to make out a violation of RICO's substantive prohibitions. The panel denied rehearing and issued a supplemental opinion holding that RICO does not require a domestic injury. 764 F. 3d 149 (CA2 2014) (per curiam). If a foreign injury was caused by the violation of a predicate statute that applies extraterritorially, the court concluded, then the plaintiff may seek recovery for that injury under RICO. Id., at 151. The Second Circuit later denied rehearing en banc, with five judges dissenting. 783 F. 3d 123 (2015).
The lower courts have come to different conclusions regarding RICO's extraterritorial application. Compare 764 F. 3d 129 (case below) (holding that RICO may apply extraterritorially) with United States v. Chao Fan Xu, 706 F. 3d 965, 974-975 (CA9 2013) (holding that RICO does not apply extraterritorially; collecting cases). Because of this conflict and the importance of the issue, we granted certiorari. 576 U. S. ___ (2015).
II
The question of RICO's extraterritorial application really involves two questions. First, do RICO's substantive prohibitions, contained in §1962, apply to conduct that occurs in foreign countries? Second, does RICO's private right of action, contained in §1964(c), apply to injuries that are suffered in foreign countries? We consider each of these questions in turn. To guide our inquiry, we begin by reviewing the law of extraterritoriality.
It is a basic premise of our legal system that, in general, "United States law governs domestically but does not rule the world." Microsoft Corp. v. AT&T Corp.,
There are several reasons for this presumption. Most notably, it serves to avoid the international discord that can result when U. S. law is applied to conduct in foreign countries. See, e.g., Kiobel v. Royal Dutch Petroleum Co., 569 U. S. ___, ___-___ (2013) (slip op., at 4-5); EEOC v. Arabian American Oil Co.,
Twice in the past six years we have considered whether a federal statute applies extraterritorially. In Morrison, we addressed the question whether §10(b) of the Securities Exchange Act of 1934 applies to misrepresentations made in connection with the purchase or sale of securities traded only on foreign exchanges. We first examined whether §10(b) gives any clear indication of extraterritorial effect, and found that it does not.
In Kiobel, we considered whether the Alien Tort Statute (ATS) confers federal-court jurisdiction over causes of action alleging international-law violations committed overseas. We acknowledged that the presumption against extraterritoriality is "typically" applied to statutes "regulating conduct," but we concluded that the principles supporting the presumption should "similarly constrain courts considering causes of action that may be brought under the ATS." 569 U. S., at ___ (slip op., at 5). We applied the presumption and held that the ATS lacks any clear indication that it extended to the foreign violations alleged in that case. Id., at ___-___ (slip op., at 7-14). Because "all the relevant conduct" regarding those violations "took place outside the United States," id., at ___ (slip op., at 14), we did not need to determine, as we did in Morrison, the statute's "focus."
Morrison and Kiobel reflect a two-step framework for analyzing extraterritoriality issues. At the first step, we ask whether the presumption against extraterritoriality has been rebutted--that is, whether the statute gives a clear, affirmative indication that it applies extraterritorially. We must ask this question regardless of whether the statute in question regulates conduct, affords relief, or merely confers jurisdiction. If the statute is not extraterritorial, then at the second step we determine whether the case involves a domestic application of the statute, and we do this by looking to the statute's "focus." If the conduct relevant to the statute's focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U. S. territory.
What if we find at step one that a statute clearly does have extraterritorial effect? Neither Morrison nor Kiobel involved such a finding. But we addressed this issue in Morrison, explaining that it was necessary to consider §10(b)'s "focus" only because we found that the statute does not apply extraterritorially: "If §10(b) did apply abroad, we would not need to determine which transnational frauds it applied to; it would apply to all of them (barring some other limitation)."
III
With these guiding principles in mind, we first consider whether RICO's substantive prohibitions in §1962 may apply to foreign conduct. Unlike in Morrison and Kiobel, we find that the presumption against extraterritoriality has been rebutted--but only with respect to certain applications of the statute.
A
The most obvious textual clue is that RICO defines racketeering activity to include a number of predicates that plainly apply to at least some foreign conduct. These predicates include the prohibition against engaging in monetary transactions in criminally derived property, which expressly applies, when "the defendant is a United States person," to offenses that "tak[e] place outside the United States." 18 U. S. C. §1957(d)(2). Other examples include the prohibitions against the assassination of Government officials, §351(i) ("There is extraterritorial jurisdiction over the conduct prohibited by this section"); §1751(k) (same), and the prohibition against hostage taking, which applies to conduct that "occurred outside the United States" if either the hostage or the offender is a U. S. national, if the offender is found in the United States, or if the hostage taking is done to compel action by the U. S. Government, §1203(b). At least one predicate--the prohibition against "kill[ing] a national of the United States, while such national is outside the United States"--applies only to conduct occurring outside the United States. §2332(a).
We agree with the Second Circuit that Congress's incorporation of these (and other) extraterritorial predicates into RICO gives a clear, affirmative indication that §1962 applies to foreign racketeering activity--but only to the extent that the predicates alleged in a particular case themselves apply extraterritorially. Put another way, a pattern of racketeering activity may include or consist of offenses committed abroad in violation of a predicate statute for which the presumption against extraterritoriality has been overcome. To give a simple (albeit grim) example, a violation of §1962 could be premised on a pattern of killings of Americans abroad in violation of §2332(a)--a predicate that all agree applies extraterritorially--whether or not any domestic predicates are also alleged.6
We emphasize the important limitation that foreign conduct must violate "a predicate statute that manifests an unmistakable congressional intent to apply extraterritorially." 764 F. 3d, at 136. Although a number of RICO predicates have extraterritorial effect, many do not. The inclusion of some extraterritorial predicates does not mean that all RICO predicates extend to foreign conduct. This is apparent for two reasons. First, "when a statute provides for some extraterritorial application, the presumption against extraterritoriality operates to limit that provision to its terms." Morrison,
RJR resists the conclusion that RICO's incorporation of extraterritorial predicates gives RICO commensurate extraterritorial effect. It points out that "RICO itself" does not refer to extraterritorial application; only the underlying predicate statutes do. Brief for Petitioners 42. RJR thus argues that Congress could have intended to capture only domestic applications of extraterritorial predicates, and that any predicates that apply only abroad could have been "incorporated . . . solely for when such offenses are part of a broader pattern whose overall locus is domestic." Id., at 43.
The presumption against extraterritoriality does not require us to adopt such a constricted interpretation. While the presumption can be overcome only by a clear indication of extraterritorial effect, an express statement of extraterritoriality is not essential. "Assuredly context can be consulted as well." Morrison, supra, at 265. Context is dispositive here. Congress has not expressly said that §1962(c) applies to patterns of racketeering activity in foreign countries, but it has defined "racketeering activity"--and by extension a "pattern of racketeering activity"--to encompass violations of predicate statutes that do expressly apply extraterritorially. Short of an explicit declaration, it is hard to imagine how Congress could have more clearly indicated that it intended RICO to have (some) extraterritorial effect. This unique structure makes RICO the rare statute that clearly evidences extraterritorial effect despite lacking an express statement of extraterritoriality.
We therefore conclude that RICO applies to some foreign racketeering activity. A violation of §1962 may be based on a pattern of racketeering that includes predicate offenses committed abroad, provided that each of those offenses violates a predicate statute that is itself extraterritorial. This fact is determinative as to §1962(b) and §1962(c), both of which prohibit the employment of a pattern of racketeering. Although they differ as to the end for which the pattern is employed--to acquire or maintain control of an enterprise under subsection (b), or to conduct an enterprise's affairs under subsection (c)--this difference is immaterial for extraterritoriality purposes.
Section 1962(a) presents a thornier question. Unlike subsections (b) and (c), subsection (a) targets certain uses of income derived from a pattern of racketeering, not the use of the pattern itself. Cf. Anza v. Ideal Steel Supply Corp.,
Finally, although respondents' complaint alleges a violation of RICO's conspiracy provision, §1962(d), the parties' briefs do not address whether this provision should be treated differently from the provision (§1962(a), (b), or (c)) that a defendant allegedly conspired to violate. We therefore decline to reach this issue, and assume without deciding that §1962(d)'s extraterritoriality tracks that of the provision underlying the alleged conspiracy.
B
RJR contends that, even if RICO may apply to foreign patterns of racketeering, the statute does not apply to foreign enterprises. Invoking Morrison's discussion of the Exchange Act's "focus," RJR says that the "focus" of RICO is the enterprise being corrupted--not the pattern of racketeering--and that RICO's enterprise element gives no clear indication of extraterritorial effect. Accordingly, RJR reasons, RICO requires a domestic enterprise.
This argument misunderstands Morrison. As explained above, supra, at 9-10, only at the second step of the inquiry do we consider a statute's "focus." Here, however, there is a clear indication at step one that RICO applies extraterritorially. We therefore do not proceed to the "focus" step. The Morrison Court's discussion of the statutory "focus" made this clear, stating that "[i]f §10(b) did apply abroad, we would not need to determine which transnational frauds it applied to; it would apply to all of them (barring some other limitation)."
It is easy to see why Congress did not limit RICO to domestic enterprises. A domestic enterprise requirement would lead to difficult line-drawing problems and counterintuitive results. It would exclude from RICO's reach foreign enterprises--whether corporations, crime rings, other associations, or individuals--that operate within the United States. Imagine, for example, that a foreign corporation has operations in the United States and that one of the corporation's managers in the United States conducts its U. S. affairs through a pattern of extortion and mail fraud. Such domestic conduct would seem to fall well within what Congress meant to capture in enacting RICO. Congress, after all, does not usually exempt foreigners acting in the United States from U. S. legal requirements. See 764 F. 3d, at 138 ("Surely the presumption against extraterritorial application of United States laws does not command giving foreigners carte blanche to violate the laws of the United States in the United States"). Yet RJR's theory would insulate this scheme from RICO liability--both civil and criminal--because the enterprise at issue is a foreign, not domestic, corporation.
Seeking to avoid this result, RJR offers that any " 'emissaries' " a foreign enterprise sends to the United States--such as our hypothetical U. S.-based corporate manager--could be carved off and considered a "distinct domestic enterprise" under an association-in-fact theory. Brief for Petitioners 40. RJR's willingness to gerrymander the enterprise to get around its proposed domestic enterprise requirement is telling. It suggests that RJR is not really concerned about whether an enterprise is foreign or domestic, but whether the relevant conduct occurred here or abroad. And if that is the concern, then it is the pattern of racketeering activity that matters, not the enterprise. Even spotting RJR its "domestic emissary" theory, this approach would lead to strange gaps in RICO's coverage. If a foreign enterprise sent only a single "emissary" to engage in racketeering in the United States, there could be no RICO liability because a single person cannot be both the RICO enterprise and the RICO defendant. Cedric Kushner Promotions, Ltd. v. King,
RJR also offers no satisfactory way of determining whether an enterprise is foreign or domestic. Like the District Court, RJR maintains that courts can apply the "nerve center" test that we use to determine a corporation's principal place of business for purposes of federal diversity jurisdiction. See Hertz Corp. v. Friend,
The practical problems we have identified with RJR's proposed domestic enterprise requirement are not, by themselves, cause to reject it. Our point in reciting these troubling consequences of RJR's theory is simply to reinforce our conclusion, based on RICO's text and context, that Congress intended the prohibitions in 18 U. S. C. §§1962(b) and (c) to apply extraterritorially in tandem with the underlying predicates, without regard to the locus of the enterprise.
Although we find that RICO imposes no domestic enterprise requirement, this does not mean that every foreign enterprise will qualify. Each of RICO's substantive prohibitions requires proof of an enterprise that is "engaged in, or the activities of which affect, interstate or foreign commerce." §§1962(a), (b), (c). We do not take this reference to "foreign commerce" to mean literally all commerce occurring abroad. Rather, a RICO enterprise must engage in, or affect in some significant way, commerce directly involving the United States--e.g., commerce between the United States and a foreign country. Enterprises whose activities lack that anchor to U. S. commerce cannot sustain a RICO violation.
C
Applying these principles, we agree with the Second Circuit that the complaint does not allege impermissibly extraterritorial violations of §§1962(b) and (c).7
The alleged pattern of racketeering activity consists of five basic predicates: (1) money laundering, (2) material support of foreign terrorist organizations, (3) mail fraud, (4) wire fraud, and (5) violations of the Travel Act. The Second Circuit observed that the relevant provisions of the money laundering and material support of terrorism statutes expressly provide for extraterritorial application in certain circumstances, and it concluded that those circumstances are alleged to be present here. 764 F. 3d, at 139-140. The court found that the fraud statutes and the Travel Act do not contain the clear indication needed to overcome the presumption against extraterritoriality. But it held that the complaint alleges domestic violations of those statutes because it "allege[s] conduct in the United States that satisfies every essential element of the mail fraud, wire fraud, and Travel Act claims." Id., at 142.
RJR does not dispute these characterizations of the alleged predicates. We therefore assume without deciding that the alleged pattern of racketeering activity consists entirely of predicate offenses that were either committed in the United States or committed in a foreign country in violation of a predicate statute that applies extraterritorially. The alleged enterprise also has a sufficient tie to U. S. commerce, as its members include U. S. companies, and its activities depend on sales of RJR's cigarettes conducted through "the U. S. mails and wires," among other things. App. to Pet. for Cert. 186a, Complaint ¶96. On these premises, respondents' allegations that RJR violated §§1962(b) and (c) do not involve an impermissibly extraterritorial application of RICO.8
IV
We now turn to RICO's private right of action, on which respondents' lawsuit rests. Section 1964(c) allows "[a]ny person injured in his business or property by reason of a violation of section 1962" to sue for treble damages, costs, and attorney's fees. Irrespective of any extraterritorial application of §1962, we conclude that §1964(c) does not overcome the presumption against extraterritoriality. A private RICO plaintiff therefore must allege and prove a domestic injury to its business or property.
A
The Second Circuit thought that the presumption against extraterritoriality did not apply to §1964(c) independently of its application to §1962, reasoning that the presumption "is primarily concerned with the question of what conduct falls within a statute's purview." 764 F. 3d, at 151. We rejected that view in Kiobel, holding that the presumption "constrain[s] courts considering causes of action" under the ATS, a " 'strictly jurisdictional' " statute that "does not directly regulate conduct or afford relief." 569 U. S., at ___ (slip op., at 5). We reached this conclusion even though the underlying substantive law consisted of well-established norms of international law, which by definition apply beyond this country's borders. See id., at ___-___ (slip op., at 5-7).
The same logic requires that we separately apply the presumption against extraterritoriality to RICO's cause of action despite our conclusion that the presumption has been overcome with respect to RICO's substantive prohibitions. "The creation of a private right of action raises issues beyond the mere consideration whether underlying primary conduct should be allowed or not, entailing, for example, a decision to permit enforcement without the check imposed by prosecutorial discretion." Sosa v. Alvarez-Machain,
Consider antitrust. In that context, we have observed that "[t]he application . . . of American private treble-damages remedies to anticompetitive conduct taking place abroad has generated considerable controversy" in other nations, even when those nations agree with U. S. substantive law on such things as banning price fixing. F. Hoffmann-La Roche Ltd v. Empagran S. A.,
We received similar warnings in Morrison, where France, a respondent here, informed us that "most foreign countries proscribe securities fraud" but "have made very different choices with respect to the best way to implement that proscription," such as "prefer[ring] 'state actions, not private ones' for the enforcement of law." Brief for Republic of France as Amicus Curiae, O. T. 2009, No. 08-1191, p. 20; see id., at 23 ("Even when foreign countries permit private rights of action for securities fraud, they often have different schemes" for litigating them and "may approve of different measures of damages"). Allowing foreign investors to pursue private suits in the United States, we were told, "would upset that delicate balance and offend the sovereign interests of foreign nations." Id., at 26.
Allowing recovery for foreign injuries in a civil RICO action, including treble damages, presents the same danger of international friction. See Brief for United States as Amicus Curiae 31-34. This is not to say that friction would necessarily result in every case, or that Congress would violate international law by permitting such suits. It is to say only that there is a potential for international controversy that militates against recognizing foreign-injury claims without clear direction from Congress. Although "a risk of conflict between the American statute and a foreign law" is not a prerequisite for applying the presumption against extraterritoriality, Morrison,
Respondents urge that concerns about international friction are inapplicable in this case because here the plaintiffs are not foreign citizens seeking to bypass their home countries' less generous remedies but rather the foreign countries themselves. Brief for Respondents 52-53. Respondents assure us that they "are satisfied that the[ir] complaint . . . comports with limitations on prescriptive jurisdiction under international law and respects the dignity of foreign sovereigns." Ibid. Even assuming that this is true, however, our interpretation of §1964(c)'s injury requirement will necessarily govern suits by nongovernmental plaintiffs that are not so sensitive to foreign sovereigns' dignity. We reject the notion that we should forgo the presumption against extraterritoriality and instead permit extraterritorial suits based on a case-by-case inquiry that turns on or looks to the consent of the affected sovereign. See Morrison, supra, at 261 ("Rather than guess anew in each case, we apply the presumption in all cases"); cf. Empagran,
B
Nothing in §1964(c) provides a clear indication that Congress intended to create a private right of action for injuries suffered outside of the United States. The statute provides a cause of action to "[a]ny person injured in his business or property" by a violation of §1962. §1964(c). The word "any" ordinarily connotes breadth, but it is insufficient to displace the presumption against extraterritoriality. See Kiobel, 569 U. S., at ___ (slip op., at 7). The statute's reference to injury to "business or property" also does not indicate extraterritorial application. If anything, by cabining RICO's private cause of action to particular kinds of injury--excluding, for example, personal injuries--Congress signaled that the civil remedy is not coextensive with §1962's substantive prohibitions. The rest of §1964(c) places a limit on RICO plaintiffs' ability to rely on securities fraud to make out a claim. This too suggests that §1964(c) is narrower in its application than §1962, and in any event does not support extraterritoriality.
The Second Circuit did not identify anything in §1964(c) that shows that the statute reaches foreign injuries. Instead, the court reasoned that §1964(c)'s extraterritorial effect flows directly from that of §1962. Citing our holding in Sedima, S. P. R. L. v. Imrex Co.,
Respondents contend that background legal principles allow them to sue for foreign injuries, invoking what they call the " 'traditional rule' that 'a plaintiff injured in a foreign country' could bring suit 'in American courts.' " Brief for Respondents 41 (quoting Sosa,
Respondents and Justice Ginsburg point out that RICO's private right of action was modeled after §4 of the Clayton Act, 15 U. S. C. §15; see Holmes v. Securities Investor Protection Corporation,
There is good reason not to interpret §1964(c) to cover foreign injuries just because the Clayton Act does so. When we held in Pfizer that the Clayton Act allows recovery for foreign injuries, we relied first and foremost on the fact that the Clayton Act's definition of "person"--which in turn defines who may sue under that Act--"explicitly includes 'corporations and associations existing under or authorized by . . . the laws of any foreign country.' "
Underscoring our reluctance to read §1964(c) as broadly as we have read the Clayton Act is Congress's more recent decision to define precisely the antitrust laws' extraterritorial effect and to exclude from their reach most conduct that "causes only foreign injury." Empagran,
C
Section 1964(c) requires a civil RICO plaintiff to allege and prove a domestic injury to business or property and does not allow recovery for foreign injuries. The application of this rule in any given case will not always be self-evident, as disputes may arise as to whether a particular alleged injury is "foreign" or "domestic." But we need not concern ourselves with that question in this case. As this case was being briefed before this Court, respondents filed a stipulation in the District Court waiving their damages claims for domestic injuries. The District Court accepted this waiver and dismissed those claims with prejudice. Respondents' remaining RICO damages claims therefore rest entirely on injury suffered abroad and must be dismissed.13
* * *
The judgment of the United States Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
Justice Sotomayor took no part in the consideration or decision of this case.
Opinion of Ginsburg, J.
579 U. S. ____ (2016)
No. 15-138
RJR NABISCO, INC., et al., PETITIONERS v. EUROPEAN COMMUNITY, et al.
on writ of certiorari to the united states court of appeals for the second circuit
[June 20, 2016]
Justice Ginsburg, with whom Justice Breyer and Justice Kagan join, concurring in Parts I, II, and III and dissenting from Part IV and from the judgment.
In enacting the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. §1961 et seq., Congress sought to provide a new tool to combat "organized crime and its economic roots." Russello v. United States,
Invoking this right, respondents, the European Community and 26 member states, filed suit against petitioners, RJR Nabisco, Inc., and related entities. Alleging that petitioners orchestrated from their U. S. headquarters a complex money-laundering scheme in violation of RICO, respondents sought to recover for various injuries, including losses sustained by financial institutions and lost opportunities to collect duties. See ante, at 4-7. Denying respondents a remedy under RICO, the Court today reads into §1964(c) a domestic-injury requirement for suits by private plaintiffs nowhere indicated in the statute's text. Correctly, the Court imposes no such restriction on the United States when it initiates a civil suit under §1964(b). Unsupported by RICO's text, inconsistent with its purposes, and unnecessary to protect the comity interests the Court emphasizes, the domestic-injury requirement for private suits replaces Congress' prescription with one of the Court's own invention. Because the Court has no authority so to amend RICO, I dissent.
I
As the Court recounts, ante, at 7, "Congress ordinarily legislates with respect to domestic, not foreign, matters." Morrison v. National Australia Bank Ltd.,
In this case, the Court properly holds that Congress signaled its "affirmative inten[t]," Morrison,
I disagree, however, that the private right of action authorized by §1964(c) requires a domestic injury to a person's business or property and does not allow recovery for foreign injuries. One cannot extract such a limitation from the text of §1964(c), which affords a right of action to "[a]ny person injured in his business or property by reason of a violation of section 1962." Section 1962, at least subsections (b) and (c), all agree, encompasses foreign injuries. How can §1964(c) exclude them when, by its express terms, §1964(c) is triggered by "a violation of section 1962"? To the extent RICO reaches injury abroad when the Government is the suitor pursuant to §1962 (specifying prohibited activities) and §1963 (criminal penalties) or §1964(b) (civil remedies), to that same extent, I would hold, RICO reaches extraterritorial injury when, pursuant to §1964(c), the suitor is a private plaintiff.
II
A
I would not distinguish, as the Court does, between the extraterritorial compass of a private right of action and that of the underlying proscribed conduct. See ante, at 18-22, 23, 26. Instead, I would adhere to precedent addressing RICO, linking, not separating, prohibited activities and authorized remedies. See Sedima, S. P. R. L. v. Imrex Co.,
To reiterate, a §1964(c) right of action may be maintained by "[a]ny person injured in his business or property by reason of a violation of section 1962" (emphasis added). "[I]ncorporating one statute . . . into another," the Court has long understood, "serves to bring into the latter all that is fairly covered by the reference." Panama R. Co. v. Johnson,
What §1964(c)'s text conveys is confirmed by its history. As this Court has repeatedly observed, Congress modeled §1964(c) on §4 of the Clayton Act, 15 U. S. C. §15, the private civil-action provision of the federal antitrust laws, which employs nearly identical language: "[A]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor." See Klehr v. A. O. Smith Corp.,
"The similarity of language in [the two statutes] is, of course, a strong indication that [they] should be interpreted pari passu," Northcross v. Board of Ed. of Memphis City Schools,
This very case illustrates why pinning a domestic-injury requirement onto §1964(c) makes little sense. All defendants are U. S. corporations, headquartered in the United States, charged with a pattern of racketeering activity directed and managed from the United States, involving conduct occurring in the United States. In particular, according to the complaint, defendants received in the United States funds known to them to have been generated by illegal narcotics trafficking and terrorist activity, conduct violative of §1956(a)(2); traveled using the facilities of interstate commerce in furtherance of unlawful activity, in violation of §1952; provided material support to foreign terrorist organizations "in the United States and elsewhere," in violation of §2339B; and used U. S. mails and wires in furtherance of a "scheme or artifice to defraud," in violation of §§1341 and 1343. App. to Pet. for Cert. 238a-250a. In short, this case has the United States written all over it.
B
The Court nevertheless deems a domestic-injury requirement for private RICO plaintiffs necessary to avoid international friction. See ante, at 20-22. When the United States considers whether to initiate a prosecution or civil suit, the Court observes, it will take foreign-policy considerations into account, but private parties will not. It is far from clear, however, that the Court's blanket rule would ordinarily work to ward off international discord. Invoking the presumption against extraterritoriality as a bar to any private suit for injuries to business or property abroad, this case suggests, might spark, rather than quell, international strife. Making such litigation available to domestic but not foreign plaintiffs is hardly solicitous of international comity or respectful of foreign interests. Cf. Pfizer,
RICO's definitional provisions exclude "[e]ntirely foreign activity." 783 F. 3d 123, 143 (Lynch, J., dissenting from denial of rehearing en banc). Thus no suit under RICO would lie for injuries resulting from "[a] pattern of murders of Italian citizens committed by members of an Italian organized crime group in Italy." Ibid. That is so because "murder is a RICO predicate only when it is 'chargeable under state law' or indictable under specific federal statutes." Ibid. (citing §1961(1)(A), (G)).
To the extent extraterritorial application of RICO could give rise to comity concerns not present in this case, those concerns can be met through doctrines that serve to block litigation in U. S. courts of cases more appropriately brought elsewhere. Where an alternative, more appropriate forum is available, the doctrine of forum non conveniens enables U. S. courts to refuse jurisdiction. See Piper Aircraft Co. v. Reyno,
* * *
The Court hems in RICO out of concern about establishing a "double standard." Ante, at 22. But today's decision does exactly that. U. S. defendants commercially engaged here and abroad would be answerable civilly to U. S. victims of their criminal activities, but foreign parties similarly injured would have no RICO remedy. " 'Sauce for the goose' " should indeed serve the gander as well. See ibid. (quoting Heffernan v. City of Paterson, 578 U. S. ___, ___ (2016) (slip op., at 6)). I would resist reading into §1964(c) a domestic-injury requirement Congress did not prescribe. Instead, I would affirm the Second Circuit's sound judgment:
"To establish a compensable injury under §1964(c), a private plaintiff must show that (1) the defendant 'engage[d] in a pattern of racketeering activity in a manner forbidden by' §1962, and (2) that these 'racketeering activities' were the proximate cause of some injury to the plaintiff's business or property." 764 F. 3d, at 151 (quoting Sedima,
Because the Court overturns that judgment, I dissent.
Opinion of Breyer, J.
579 U. S. ____ (2016)
No. 15-138
RJR NABISCO, INC., et al., PETITIONERS v. EUROPEAN COMMUNITY, et al.
on writ of certiorari to the united states court of appeals for the second circuit
[June 20, 2016]
Justice Breyer, concurring in part, dissenting in part, and dissenting from the judgment.
I join Parts I through III of the Court's opinion. But I do not join Part IV. The Court there holds that the private right of action provision in the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. §1964(c), has no extraterritorial application. Like Justice Ginsburg, I believe that it does.
In saying this, I note that this case does not involve the kind of purely foreign facts that create what we have sometimes called "foreign-cubed" litigation (i.e., cases where the plaintiffs are foreign, the defendants are foreign, and all the relevant conduct occurred abroad). See, e.g., Morrison v. National Australia Bank Ltd.,
Unlike the Court, I cannot accept as controlling the Government's argument as amicus curiae that "[a]llowing recovery for foreign injuries in a civil RICO action . . . presents the . . . danger of international friction." Ante, at 21. The Government does not provide examples, nor apparently has it consulted with foreign governments on the matter. See Tr. of Oral Arg. 26 ("[T]o my knowledge, [the Government] didn't have those consultations" with foreign states concerning this case). By way of contrast, the European Community and 26 of its member states tell us "that the complaint in this case, which alleges that American corporations engaged in a pattern of racketeering activity that caused injury to respondents' businesses and property, comports with limitations on prescriptive jurisdiction under international law and respects the dignity of foreign sovereigns." Brief for Respondents 52-53; see also Tr. of Oral Arg. 31 (calling the European Union's "vett[ing] exercise" concerning this case "comprehensiv[e]"). In these circumstances, and for the reasons given by Justice Ginsburg, see ante, at 7-8, I would not place controlling weight on the Government's contrary view.
Consequently, I join Justice Ginsburg's opinion.
FOOTNOTES
Footnote 1
In full, 18 U. S. C. §1962 provides:
"(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. A purchase of securities on the open market for purposes of investment, and without the intention of controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection if the securities of the issuer held by the purchaser, the members of his immediate family, and his or their accomplices in any pattern or racketeering activity or the collection of an unlawful debt after such purchase do not amount in the aggregate to one percent of the outstanding securities of any one class, and do not confer, either in law or in fact, the power to elect one or more directors of the issuer.
"(b) It shall be 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.
"(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.
"(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section."
The attentive reader will notice that these prohibitions concern not only patterns of racketeering activity but also the collection of unlawful debt. As is typical in our RICO cases, we have no occasion here to address this aspect of the statute.
Footnote 2
In full, §1964(c) provides:
"Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee, except that no person may rely upon any conduct that would have been actionable as fraud in the purchase or sale of securities to establish a violation of section 1962. The exception contained in the preceding sentence does not apply to an action against any person that is criminally convicted in connection with the fraud, in which case the statute of limitations shall start to run on the date on which the conviction becomes final."
Footnote 3
The complaint also alleges that RJR committed a variety of state-law torts. Those claims are not before us.
Footnote 4
At an earlier stage of respondents' litigation against RJR, the Second Circuit "held that the revenue rule barred the foreign sovereigns' civil claims for recovery of lost tax revenue and law enforcement costs." European Community v. RJR Nabisco, Inc., 424 F. 3d 175, 178 (2005) (Sotomayor, J.), cert. denied,
Footnote 5
Because a finding of extraterritoriality at step one will obviate step two's "focus" inquiry, it will usually be preferable for courts to proceed in the sequence that we have set forth. But we do not mean to preclude courts from starting at step two in appropriate cases. Cf. Pearson v. Callahan,
Footnote 6
The foreign killings would, of course, still have to satisfy the relatedness and continuity requirements of RICO's pattern element. See H. J. Inc. v. Northwestern Bell Telephone Co.,
Footnote 7
As to §§1962(a) and (d), see supra, at 13-14.
Footnote 8
We stress that we are addressing only the extraterritoriality question. We have not been asked to decide, and therefore do not decide, whether the complaint satisfies any other requirements of RICO, or whether the complaint in fact makes out violations of the relevant predicate statutes.
Footnote 9
See Brief for Governments of Federal Republic of Germany et al. as Amici Curiae, O. T. 2003, No. 03-724, p. 11 (identifying "controversial features of the U. S. legal system," including treble damages, extensive discovery, jury trials, class actions, contingency fees, and punitive damages); id., at 15 ("Private plaintiffs rarely exercise the type of self-restraint or demonstrate the requisite sensitivity to the concerns of foreign governments that mark actions brought by the United States government"); Brief for United Kingdom et al. as Amici Curiae, O. T. 2003, No. 03-724, p. 13 ("No other country has adopted the United States' unique 'bounty hunter' approach that permits a private plaintiff to 'recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee.' . . . Expanding the jurisdiction of this generous United States private claim system could skew enforcement and increase international business risks. It makes United States courts the forum of choice without regard to whose laws are applied, where the injuries occurred or even if there is any connection to the court except the ability to get in personam jurisdiction over the defendants"); see also Brief for Government of Canada as Amicus Curiae, O. T. 2003, No. 03-724, p. 14 ("[T]he attractiveness of the [U. S.] treble damages remedy would supersede the national policy decision by Canada that civil recovery by Canadian citizens for injuries resulting from anti-competitive behavior in Canada should be limited to actual damages"). Empagran concerned not the presumption against extraterritoriality per se, but the related rule that we construe statutes to avoid unreasonable interference with other nations' sovereign authority where possible. See F. Hoffmann-La Roche Ltd v. Empagran S. A.,
Footnote 10
Respondents note that Sedima itself involved an injury suffered by a Belgian corporation in Belgium. Brief for Respondents 45-46; see Sedima, S. P. R. L. v. Imrex Co.,
Footnote 11
Pfizer most directly concerned whether a foreign government is a "person" that may be a Clayton Act plaintiff. But it is clear that the Court's decision more broadly concerned recovery for foreign injuries, see
Footnote 12
This does not mean that foreign plaintiffs may not sue under RICO. The point is that RICO does not include the explicit foreign-oriented language that the Pfizer Court found to support foreign-injury suits under the Clayton Act.
Footnote 13
In respondents' letter notifying this Court of the waiver of their domestic-injury damages claims, respondents state that "[n]othing in the stipulation will affect respondents' claims for equitable relief, including claims for equitable relief under state common law that are not at issue in this case before this Court." Letter from David C. Frederick, Counsel for Respondents, to Scott S. Harris, Clerk of Court (Feb. 29, 2016). Although the letter mentions only state-law claims for equitable relief, Count 5 of respondents' complaint seeks equitable relief under RICO. App. to Pet. for Cert. 260a-262a, Complaint ¶¶181-188. This Court has never decided whether equitable relief is available to private RICO plaintiffs, the parties have not litigated that question here, and we express no opinion on the issue today. We note, however, that any claim for equitable relief under RICO based on foreign injuries is necessarily foreclosed by our holding that §1964(c)'s cause of action requires a domestic injury to business or property. It is unclear whether respondents intend to seek equitable relief under RICO based on domestic injuries, and it may prove unnecessary to decide whether §1964(c) (or respondents' stipulation) permits such relief in light of respondents' state-law claims. We leave it to the lower courts to determine, if necessary, the status and availability of any such claims.
FOOTNOTES
Footnote 1
The Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. §1961 et seq., makes it unlawful "to . . . invest" in an enterprise income derived from a pattern of racketeering activity, §1962(a), "to acquire or maintain" an interest in an enterprise through a pattern of racketeering activity, §1962(b), "to conduct or participate . . . in the conduct" of an enterprise through a pattern of racketeering activity, §1962(c), or "to conspire" to violate any of those provisions, §1962(d).
Footnote 2
Insisting that the presumption against extraterritoriality should "apply to §1964(c) independently of its application to §1962," ante, at 18-19, the Court cites Kiobel v. Royal Dutch Petroleum Co., 569 U. S. ___ (2013). That decision will not bear the weight the Court would place on it. As the Court comprehends, the statute there at issue, the Alien Tort Statute, 28 U. S. C. §1350, is a spare jurisdictional grant that itself does not "regulate conduct or afford relief." Kiobel, 569 U. S., at ___ (slip op., at 5). With no grounding for extraterritorial application in the statute, Kiobel held, courts have no warrant to fashion, on their own initiative, claims for relief that operate extraterritorially. See ibid. ("[T]he question is not what Congress has done but instead what courts may do.").
Footnote 3
The Court asserts that "[t]here is good reason not to interpret §1964(c) to cover foreign injuries just because the Clayton Act does." Ante, at 25. The Clayton Act's definition of "person," 15 U. S. C. §12, the Court observes, "explicitly includes 'corporations and associations existing under or authorized by . . . the laws of any foreign country.' " Ante, at 25 (some internal quotation marks omitted). RICO, the Court stresses, lacks this "critical" language. Ibid. The Court's point is underwhelming. RICO's definition of "persons" is hardly confining: "any individual or entity capable of holding a legal or beneficial interest in property." 18 U. S. C. §1961(3). Moreover, there is little doubt that Congress anticipated §1964(c) plaintiffs like the suitors here. See 147 Cong. Rec. 20676, 20710 (2001) (remarks of Sen. Kerry) ("Since some of the money-laundering conducted in the world today also defrauds foreign governments, it would be hostile to the intent of [the USA PATRIOT Act, which added as RICO predicates additional money laundering offenses,] for us to interject into the statute any rule of construction of legislative language which would in any way limit our foreign allies access to our courts to battle against money laundering.").
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RJR NABISCO, INC., ET AL. v. EUROPEAN COMMUNITY ET AL., (2016)
No. 15-138
Argued: March 21, 2016
Decided: June 20, 2016
Court: United States Supreme Court
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