Filed: Aug. 20, 2014
Latest Update: Mar. 02, 2020
Summary: 11-2475-cv European Community v. RJR Nabisco 11-2475-cv European Community v. RJR Nabisco UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011 (Petition for Rehearing Submitted: May 7, 2014 Petition for Rehearing Decided: August 20, 2014) Docket No. 11–2475–cv EUROPEAN COMMUNITY, acting on its own behalf and on behalf of the Member States it has power to represent, KINGDOM OF BELGIUM, REPUBLIC OF FINLAND, FRENCH REPUBLIC, HELLENIC REPUBLIC, FEDERAL REPUBLIC OF GERMANY, ITALIAN
Summary: 11-2475-cv European Community v. RJR Nabisco 11-2475-cv European Community v. RJR Nabisco UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011 (Petition for Rehearing Submitted: May 7, 2014 Petition for Rehearing Decided: August 20, 2014) Docket No. 11–2475–cv EUROPEAN COMMUNITY, acting on its own behalf and on behalf of the Member States it has power to represent, KINGDOM OF BELGIUM, REPUBLIC OF FINLAND, FRENCH REPUBLIC, HELLENIC REPUBLIC, FEDERAL REPUBLIC OF GERMANY, ITALIAN ..
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11‐2475‐cv
European Community v. RJR Nabisco
11‐2475‐cv
European Community v. RJR Nabisco
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2011
(Petition for Rehearing Submitted: May 7, 2014
Petition for Rehearing Decided: August 20, 2014)
Docket No. 11–2475–cv
EUROPEAN COMMUNITY, acting on its own behalf
and on behalf of the Member States it has power to
represent, KINGDOM OF BELGIUM, REPUBLIC OF
FINLAND, FRENCH REPUBLIC, HELLENIC
REPUBLIC, FEDERAL REPUBLIC OF GERMANY,
ITALIAN REPUBLIC, GRAND DUCHY OF
LUXEMBOURG, KINGDOM OF THE
NETHERLANDS, PORTUGUESE REPUBLIC,
KINGDOM OF SPAIN, individually, KINGDOM OF
DENMARK, CZECH REPUBLIC, REPUBLIC OF
LITHUANIA, REPUBLIC OF SLOVENIA, REPUBLIC
OF MALTA, REPUBLIC OF HUNGARY, REPUBLIC
OF IRELAND, REPUBLIC OF ESTONIA, REPUBLIC
OF BULGARIA, REPUBLIC OF LATVIA, REPUBLIC
OF POLAND, REPUBLIC OF AUSTRIA, KINGDOM
OF SWEDEN, REPUBLIC OF CYPRUS, SLOVAK
REPUBLIC, and ROMANIA,
Plaintiffs–Appellants,
v.
RJR NABISCO, INC., R.J. REYNOLDS TOBACCO
COMPANY, R.J. REYNOLDS TOBACCO
INTERNATIONAL, INC., RJR ACQUISITION CORP.,
f/k/a NABISCO GROUP HOLDINGS CORP., RJR
NABISCO HOLDINGS CORP., R.J. REYNOLDS
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11‐2475‐cv
European Community v. RJR Nabisco
TOBACCO HOLDINGS, INC., NABISCO GROUP
HOLDINGS CORP., R.J. REYNOLDS GLOBAL
PRODUCTS, INC., REYNOLDS AMERICAN INC., R.J.
REYNOLDS TOBACCO COMPANY, a North Carolina
Corporation,
Defendants–Appellees.
Before: LEVAL, SACK, and HALL, Circuit Judges.
The defendants–appellees sought panel and en
banc rehearing of this Courtʹs decision (Leval, Judge)
vacating the judgment of the United States District
Court for the Eastern District of New York (Garaufis,
Judge) dismissing the complaint against them. The
defendants–appellees urge us to affirm on the ground
that the plaintiffs were required to allege domestic
injuries for each of the statutory violations pled in their
complaint. The panel concludes that this argument is
without merit, and the petition for panel rehearing is
therefore
DENIED.
JOHN J. HALLORAN, JR., Speiser, Krause,
Nolan & Granito, New York, N.Y. (Kevin
A. Malone, Carlos A. Acevedo, Krupnick
Campbell Malone Buser Slama Hancock
Liberman & McKee, P.A., Fort Lauderdale,
Fla., on the brief), for Plaintiffs‐Appellants.
GREGORY G. KATSAS, Jones Day,
Washington, D.C. (David M. Cooper, Mark
R. Seiden, Jones Day, New York, N.Y., on
the brief), for Defendants‐Appellees.
LEWIS S. YELIN, Attorney, Appellate Staff,
Civil Division, Department of Justice,
Washington, D.C. (Harold Hongju Koh,
Legal Advisor, Department of State,
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11‐2475‐cv
European Community v. RJR Nabisco
Washington, D.C.; Tony West, Assistant
Attorney General, Civil Division,
Department of Justice, Washington, D.C.;
Loretta E. Lynch, United States Attorney
for the Eastern District of New York, New
York, N.Y.; Douglas N. Letter, Attorney,
Appellate Staff, Civil Division, Department
of Justice, Washington, D.C., on the brief), for
Amicus Curiae United States of America in
support of neither party.
PER CURIAM:
In their petition for panel and en banc rehearing,
the defendants–appellees (collectively, ʺRJRʺ) contend,
among other things, that the Racketeer Influenced and
Corrupt Organizations (RICO) statute, 18 U.S.C. § 1961
et seq., requires private plaintiffs to allege a domestic
injury, and that this requirement offers an independent
basis upon which to dismiss the complaints in this
action to the extent that they fail to allege such injuries.
We conclude that RICO imposes no such requirement.
The petition for panel rehearing is therefore denied.
DISCUSSION
The RICO statute allows ʺ[a]ny person injured in
his business or property by reason of a violation of [18
U.S.C. §] 1962ʺ to sue for and recover treble damages
and attorneysʹ fees. 18 U.S.C. § 1964(c). RJR argues
that, regardless of whether the conduct giving rise to
this injury may be extraterritorial, the injury itself must
be domestic. See Pet. for Rehʹg 2, 12. We are not
persuaded.
RJR urges us to infer from a paragraph added on
rehearing to this Courtʹs decision in Norex Petroleum Ltd.
v. Access Industries, Inc., 631 F.3d 29 (2d Cir. 2010) (per
curiam), a holding that § 1964(c), which forms the basis
for the plaintiffsʹ claim here, requires allegation of a
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11‐2475‐cv
European Community v. RJR Nabisco
domestic injury. But that added language did no more
than confirm that Norex dealt only with private causes
of action, and that we had no occasion to decide
whether RICO could reach extraterritorial conduct
ʺwhen enforced by the government pursuant to Sections
1962, 1963 or 1964(a) and (b).ʺ Id. at 33. Nowhere in
Norex did we consider or decide whether § 1964(c)
requires a domestic injury. We see no reason to
construe RICO to include such a requirement.
To establish a compensable injury under
§ 1964(c), a private plaintiff must show that (1) the
defendant ʺengage[d] in a pattern of racketeering
activity in a manner forbidden byʺ § 1962, and (2) that
these ʺracketeering activitiesʺ were the proximate cause
of some injury to the plaintiffʹs business or property.
Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 495 (1985);
Holmes v. Secs. Investor Prot. Corp., 503 U.S. 258, 268
(1992).
The Supreme Court has stated unequivocally that
ʺthe compensable injuryʺ addressed by § 1964(c)
ʺnecessarily is the harm caused by predicate acts
sufficiently related to constitute a pattern.ʺ Sedima, 473
U.S. at 497; accord Anza v. Ideal Steel Supply Corp., 547
U.S. 451, 457 (2006). ʺIf the defendant engages in a
pattern of racketeering activity in a manner forbidden
by [§ 1962(a)–(c)], and the racketeering activities injure
the plaintiff in his business or property, the plaintiff has
a claim under § 1964(c).ʺ Sedima, 473 U.S. at 495.
Although we have distinguished Sedima when deciding
that a plaintiff pursuing a cause of action for a violation
of § 1962(a) must plead an ʺinjury from the defendantsʹ
investment of racketeering income in an enterprise,ʺ
Ouaknine v. MacFarlane, 897 F.2d 75, 83 (2d Cir. 1990),
the Supreme Courtʹs conclusion that RICOʹs remedial
provisions are addressed to violations of RICO
predicates still stands when applied to §§ 1962(b), (c)
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11‐2475‐cv
European Community v. RJR Nabisco
and conspiracies to commit violations of those sections
charged under § 1962(d).1
The Sedima courtʹs conclusion that § 1964(c)ʹs
injury requirement focuses on RICOʹs predicates
dovetails with the extraterritoriality analysis set forth in
the panel opinion in this case. Just as ʺthe
extraterritorial application of RICO [is] coextensive with
the extraterritorial application of the relevant predicate
statutes,ʺ Am. Slip Op. at 16:18–19, we look to the
relevant predicate statute to determine whether the
injury caused by a violation thereof must be domestic.
If an injury abroad was proximately caused by the
violation of a statute which Congress intended should
apply to injurious conduct performed abroad, we see no
reason to import a domestic injury requirement simply
because the victim sought redress through the RICO
statute. This conclusion is consistent both with
ʺCongressʹ self‐consciously expansive language and
overall approach,ʺ as well as ʺits express admonition
that RICO is to ʹbe liberally construed to effectuate its
remedial purposes.ʹʺ Sedima, 473 U.S. at 498 (quoting
Pub. L. No. 91–452, § 904(a), 84 Stat. 922, 947 (1970)).
The presumption against extraterritoriality, which is
primarily concerned with the question of what conduct
Simultaneously with the filing of this opinion, we have
1
amended the original panel opinion in this case to reflect the
fact that the plaintiffs have pled a domestic investment with
respect to their claims under § 1962(a). As discussed in the
panel opinion, the plaintiffs have also alleged that RJR
engaged in conduct in the United States satisfying every
essential element of each RICO predicate statute that does
not apply extraterritorially. Under the circumstances, we see
no reason why the plaintiffs should further be required to
plead that the injury they suffered from the alleged domestic
investment occurred in the United States.
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11‐2475‐cv
European Community v. RJR Nabisco
falls within a statuteʹs purview, does not require a
different result. See, e.g., Morrison v. Natʹl Australia Bank
Ltd., 561 U.S. 247, 254 (2010) (referring to the question of
a statuteʹs extraterritorial application as a question of
ʺwhat conduct [the statute] reachesʺ).
On the facts of this case, we conclude that the
plaintiffs are not required to plead that their alleged
injuries actually occurred in the United States.
The petition for panel rehearing is therefore
DENIED.
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