10 December 2018 - Article
(New York Law Journal, October 15, 2015 Edition)
On Oct. 1, 2015, the U.S. Supreme Court granted certiorari to the Second Circuit's decision in European Community v. RJR Nabisco, 764 F.3d 129 (2d Cir. 2014), rehearing en banc denied, 783 F.3d 123 (2d Cir. 2015), which held that RICO applies extraterritorially, but only to the extent that a RICO claim is based on predicate acts that apply extraterritorially. In taking this case, the Supreme Court is poised to determine not only whether RICO has any extraterritorial reach, but also how courts should determine whether a given multinational fact pattern, with certain parties and events in the United States and other parties and events in foreign countries, is a domestic RICO claim, an improper extraterritorial RICO claim, or (if it agrees with the Second Circuit that RICO has some extraterritorial reach) a proper extraterritorial RICO claim. Because these issues have split the circuits, the Supreme Court's intervention is welcome, and will hopefully bring clarity and predictability to practitioners.
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