RJR Nabisco, Inc. v. European Community (15-138)

argument 15-138

RJR Nabisco, Inc. v. European Community

Supreme Court of the United States 58 min 4 speakers 8 chapters transcribed 7 days ago official recording ↗

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What is the central dispute in RJR Nabisco v. the European Community?

John G. Roberts 0:00

We'll hear argument next in case fifteen one hundred thirty eight, RJR Nabisco versus the European Community. Mr. Katzis?

Unknown 0:08

Mr Chief Justice, and may it please the Court, the Second Circuit extended civil RICO uh to claims involving foreign injuries, foreign enterprises and foreign patterns of racketeering. Its holding is wrong for two reasons. First, RICO's private civil cause of action does not provide redress for foreign injuries. And second, RICO's substantive prohibitions do not reach the infiltration and corruption of foreign enterprises. As to the first point, Respondents have now abandoned any allegation of domestic injury. That is fatal to their case uh because section nineteen sixty four C, the private right of action in RICO, is limited to domestic injuries. Two related and mutually is the statute is related the statute doesn't say domestic injury, does it?

Unknown 1:08

The statute statute says injury Justice Ginsburg by application of the presumption against extraterritoriality Um injury is the focus of section nineteen sixty four C. and therefore injury is limited to domestic application, absent a clear indication to the contrary. That is a straightforward application This Court's decision in Morrison, which says you identify the focus of the provision before you And you limit it to domestic application unless Congress says otherwise. Then you are making a distinction between RICO when the government is using it as a prosecutorial tool and RICO. Yes, we are making a distinction between Section nineteen sixty two which is the underlying criminal prohibition and section nineteen sixty four C

Unknown 2:09

which is the private civil right of action. different provisions and statutes can have different foci, as Morrison itself made clear. in separately analyzing section thirty Section ten B of the thirty four Securities Act. And and here the difference between the substantive prohibition and the private right of action Um is Clear from this court's private right of action jurisprudence over the last thirty or forty years, which make clear that the decision to prohibit certain underlying conduct is fundamentally different from the decision to provide a private right of action for violation of substantive law. That's why Section nineteen sixty four C has a different focus. You don't automatically assume that because Congress criminalized the conduct, it intended for the private right of action to follow along to the same extent.

Anthony M. Kennedy 3:09

Mr. Kutzis, can I ask a question that uh this is a an analytical question, not necessarily at all an argument that your result is wrong. But I I guess I'm confused by what you said now and what you say in the briefs that this is a matter of looking to the focus of the statute. Because my understanding of Morrison is that this whole focus inquiry came in at the second step of the analysis. In other words, once the court had decided that the presumption against extraterritoriality had not been rebutted, then there was an additional argument that had been made like, oh well this really does involve domestic conduct. And so the Court used this focus test to decide whether it was the domestic conduct or the

Anthony M. Kennedy 3:52

uh uh extraterritorial conduct that was the focus of the statute. But that doesn't seem to answer the question whether the presumption is rebutted at all and it doesn't seem to answer the question that I think you're trying to get at and is an important question. as to whether we look at that presumption question um section by section or for the statute as a whole. I think the

Unknown 4:18

the rule that emerges for Morrison is that what what has to be domestic is the statutory focus. Mor Morrison is Section ten B and there were two choices. There's the element of deception and there's the element of the securities transaction. And it's foreign transaction, domestic deception. And the court says no no clear indication. Congress can obviously provide for or prohibit extra territorial application if they do that clearly. If they don't do that clearly and and the presumption is going to operate Um you have to figure out whether the focus of the statute is one element or the other.