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RJR Nabisco, Inc. v. The European Community - Post-Decision SCOTUScast

SCOTUScast 7-12-16 featuring Cory Andrews
Cory L. Andrews July 12, 2016

On June 20, 2016, the Supreme Court decided RJR Nabisco, Inc. v. The European Community. The European Community and 26 of its member states sued RJR Nabisco (RJR) in the U.S. District Court for the Eastern District of New York, alleging that RJR conducted a global money-laundering enterprise in violation of several laws, including the Racketeer Influenced and Corrupt Organizations Act (RICO), a federal statute. The alleged RICO enterprise involved the importation of illegal drugs into European countries by Colombian and Russian criminal organizations, with RJR helping to launder their drug money through a cigarette import-purchase scheme. Applying a presumption against extraterritorial application of federal law, the district court dismissed The European Community’s civil RICO claim. The U.S. Court of Appeals for the Second Circuit vacated that judgment and reinstated the RICO claim, however, concluding that various alleged predicates for RICO liability had been intended by Congress to apply extraterritorially, and that other offenses asserted sufficiently important domestic activity to come within RICO’s coverage. RJR subsequently obtained a writ of certiorari from the U.S. Supreme Court on the following question: whether, or to what extent, RICO applies extraterritorially.  

By a vote of 4-3, the Supreme Court reversed the judgment of the Second Circuit and remanded the case. Justice Alito delivered the opinion of the Court, which determined that the question of RICO’s extraterritorial application really divides into two questions: (1) Do RICO’s substantive prohibitions, contained in §1962, apply to conduct that occurs in foreign countries? (2) Does RICO’s private right of action, contained in §1964(c), apply to injuries that are suffered in foreign countries? On the first question, the Court held that under the facts asserted in this case, RICO’s prohibitions did apply extraterritorially. On the second question, however, the Court held that §1964(c)’s private right of action did not overcome the presumption against extraterritoriality, and thus a private RICO plaintiff must allege and prove a domestic injury. Because in this case an earlier stipulation had resulted in waiver and dismissal of respondents’ domestic claims, the Court explained, their remaining RICO damages claims rest entirely on injury suffered abroad and must be dismissed.

Justice Alito’s majority opinion was joined in full by the Chief Justice and Justices Kennedy and Thomas, and as to Parts I, II, and III by Justices Ginsburg, Breyer, and Kagan. Justice Ginsburg filed an opinion concurring in part, dissenting in part, and dissenting from the judgment, in which Justices Breyer and Kagan joined. Justice Breyer filed an opinion concurring in part, dissenting in part, and dissenting from the judgment. Justice Sotomayor took no part in the consideration or decision of the case.

To discuss the case, we have Cory L. Andrews, who is senior litigation counsel for the Washington Legal Foundation.

RJR Nabisco, Inc. v. The European Community - Post-Argument SCOTUScast

SCOTUScast 4-20-16 featuring Richard A. Samp
Richard A. Samp April 20, 2016

On March 21, 2016, the Supreme Court heard oral argument in RJR Nabisco, Inc. v. The European Community. The European Community and 26 of its member states sued RJR Nabisco (RJR) in the U.S. District Court for the Eastern District of New York, alleging that RJR conducted a global money-laundering enterprise in violation of several laws, including the Racketeer Influenced and Corrupt Organizations Act (RICO), a federal statute. The alleged RICO enterprise involved the importation of illegal drugs into European countries by Colombian and Russian criminal organizations, with RJR helping to launder their drug money through a cigarette import-purchase scheme. Applying a presumption against extraterritorial application of federal law, the district court dismissed The European Community’s civil RICO claim. The U.S. Court of Appeals for the Second Circuit vacated that judgment and reinstated the RICO claim, however, concluding that various alleged predicates for RICO liability had been intended by Congress to apply extraterritorially and that other offenses asserted sufficiently important domestic activity to come within RICO’s coverage.

The U.S. Supreme Court granted RJR’s subsequent petition for writ of certiorari on the following question: whether, or to what extent, RICO applies extraterritorially.

To discuss the case, we have Richard A. Samp, who is Chief Counsel at Washington Legal Foundation.

Corporate Inversions: Tax Dodge, or Symptom of the Tax Code? - Podcast

Administrative Law & Regulation Practice Group Podcast
Mihir A. Desai, Stephen E. Shay January 29, 2016

Corporate inversions are transactions, such as mergers or acquisitions, that involve a U.S. and foreign headquartered firm and result in the newly formed firm being headquartered outside the U.S. As a result, it can legally lower its U.S. taxes and enjoy parity with its foreign based competitors. Noting the resulting erosion to the U.S. tax base, critics argue that absent Congressional action the U.S. Treasury has a responsibility to fully utilize its existing authorities to combat this practice. But others are concerned that attempting to do so without addressing the underlying problems with the U.S. tax code will create even greater harm to the U.S. economy. Stephen Shay, Senior Lecturer on Law at the Harvard Law School and until recently the Deputy Assistant Secretary of the Treasury for International Tax Affairs and Mihir Desai, who holds appointments at both the Harvard Business School and Law School, provided perspectives from legal and economic vantage points.

Featuring:

  • Prof. Mihir A. Desai, Mizuho Financial Group Professor of Finance, Harvard Business School and Professor of Law, Harvard Law School
  • Prof. Stephen E. Shay, Senior Lecturer on Law, Harvard Law School

Who Defines International Law? - Event Video

2014 National Lawyers Convention
John Bellinger, Ryan Goodman, Michael W. Lewis, Deborah Pearlstein, John C. Yoo, Carlos T. Bea, John O. McGinnis November 17, 2014

This panel will consider the process for determining the content of international law, including the Law of Armed Conflict and International Humanitarian Law.  The International Committee of the Red Cross and other committees established by multilateral human rights conventions are often thought to enjoy a special competence in this process.  Should they?  The panel will discuss these questions, including the debate between the ICRC and the U.S. on counterterrorism measures and the legality of bulk surveillance for national security purposes.

The Federalist Society's International & National Security Law Practice Group presented this panel on "Who Defines International Law?" on Friday, November 14, during the 2014 National Lawyers Convention.

Featuring:

  • Hon. John B. Bellinger, III, Partner, Arnold & Porter LLP, former Legal Adviser to the Department of State, former Senior Associate Counsel to the President, and former Legal Adviser to the National Security Council
  • Prof. Ryan Goodman, Anne and Joel Ehrenkranz Professor of Law, New York University School of Law 
  • Prof. Michael W. Lewis, Ella A. and Ernest H. Fisher Professor of Law, Ohio Northern University
  • Prof. Deborah Pearlstein, Yeshiva University, Benjamin N. Cardozo School of Law
  • Prof. John Choon Yoo, Emanuel S. Heller Professor of Law, University of California, Berkeley School of Law
  • Moderator: Hon. Carlos T. Bea, U.S. Court of Appeals for the 9th Circuit
  • Introduction: Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University School of Law

Mayflower Hotel
Washington, DC

How Free Should Trade Be? - Event Audio/Video

International Law Weekend 2014
Celeste Drake, John O. McGinnis, Grover Joseph Rees III, Matthew R.A. Heiman November 04, 2014

The panel of experts will focus on international trade and what limits, if any, should be applied. Likely topics to be addressed will include Presidential fast-track trade negotiation authority, the benefits and burdens of free trade, whether trade is an effective tool of foreign policy (e.g. binding countries together, sanctions), and multilateral versus global trade deals. The panelists are expected to have differing points of view, and we expect a lively discussion.

The Federalist Society co-sponsored this panel from the International Law Weekend 2014 held at Fordham University School of Law on October 25, 2014.

Featuring:

  • Ms. Celeste Drake, Trade and Globalization Policy Specialist, AFL-CIO
  • Prof. John McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University School of Law
  • Hon. Grover Joseph Rees, Former U.S. Ambassador to East Timor
  • Moderator: Mr. Matthew Heiman, Vice President and Chief Compliance & Ethics Officer, Tyco International Ltd.

October 25, 2014
Fordham University School of Law