RJR Nabisco, Inc. v. European Community , 195 L. Ed. 2d 476 ( 2016 )

(Slip Opinion) OCTOBER TERM, 2015 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
RJR NABISCO, INC., ET AL. v. EUROPEAN
COMMUNITY ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 15–138. Argued March 21, 2016—Decided June 20, 2016
The Racketeer Influenced and Corrupt Organizations Act (RICO) pro-
hibits 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 prohibi-
tions, §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 mon-
ey-laundering scheme in association with various organized crime
groups. Under the alleged scheme, drug traffickers smuggled narcot-
ics 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 nu-
merous predicate acts of money laundering, material support to for-
eign 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 oc-
curring outside U. S. territory or to foreign enterprises. The Second
2 RJR NABISCO, INC. v. EUROPEAN COMMUNITY
Syllabus
Circuit reinstated the claims, however, concluding that RICO applies
extraterritorially to the same extent as the predicate acts of racket-
eering 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 ex-
traterritorially.
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 ap-
plication. Morrison v. National Australia Bank Ltd., 561 U. S. 247,
255. Morrison and Kiobel v. Royal Dutch Petroleum Co., 569 U. S.
___, reflect a two-step framework for analyzing extraterritoriality is-
sues. First, the Court asks whether the presumption against extra-
territoriality has been rebutted—i.e., whether the statute gives a
clear, affirmative indication that it applies extraterritorially. This
question is asked regardless of whether the particular statute regu-
lates conduct, affords relief, or merely confers jurisdiction. If, and on-
ly if, the statute is not found extraterritorial at step one, the Court
moves to step two, where it examines the statute’s “focus” to deter-
mine whether the case involves a domestic application of the statute.
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 relevant conduct oc-
curred in a foreign country, then the case involves an impermissible
extraterritorial application regardless of whether other conduct oc-
curred in U. S. territory. In the event the statute is found to have
clear extraterritorial effect at step one, then the statute’s scope turns
on the limits Congress has or has not imposed on the statute’s foreign
application, and not on the statute’s “focus.” Pp. 7–10.
2. The presumption against extraterritoriality has been rebutted
with respect to certain applications of RICO’s substantive prohibi-
tions 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 crimi-
nally derived property, §1957(d)(2), the prohibitions against the as-
sassination of Government officials, §§351(i), 1751(k), and the prohi-
bition against hostage taking, §1203(b). Congress has thus given a
clear, affirmative indication that §1962 applies to foreign racketeer-
Cite as: 579 U. S. ____ (2016) 3
Syllabus
ing activity—but only to the extent that the predicates alleged in a
particular case themselves apply extraterritorially. This fact is de-
terminative as to §§1962(b) and (c), which both prohibit the employ-
ment of a pattern of racketeering. But §1962(a), which targets cer-
tain 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 af-
fect this case, it is assumed that respondents have pleaded a domes-
tic investment of racketeering income in violation of §1962(a). It is
also assumed that the extraterritoriality of a violation of RICO’s con-
spiracy provision, §1962(d), tracks that of the RICO provision under-
lying 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 sec-
ond 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 limita-
tion. 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 extra-
territorially in tandem with the underlying predicates, without re-
gard to the locus of the enterprise. Of course, foreign enterprises will
qualify only if they engage in, or significantly affect, commerce direct-
ly 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 extra-
territorial 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 extra-
territorially. 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 pro-
visions, §1964(c)’s private right of action does not overcome the pre-
sumption against extraterritoriality, and thus a private RICO plain-
tiff 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 ap-
plication to §1962’s substantive provisions because §1964(c) does not
4 RJR NABISCO, INC. v. EUROPEAN COMMUNITY
Syllabus
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 oth-
er contexts, allowing recovery for foreign injuries in a civil RICO ac-
tion creates a danger of international friction that militates against
recognizing foreign-injury claims without clear direction from Con-
gress. 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 coun-
tries 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 extrater-
ritoriality to permit extraterritorial suits based on a case-by-case in-
quiry that turns on or looks to the affected sovereign’s consent. Nor
will the Court adopt a double standard that would treat suits by for-
eign sovereigns more favorably than other suits. Pp. 18–22.
(b) Section 1964(c) does not provide a clear indication that Con-
gress 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’ argu-
ments 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,
434 U. S. 308, 314–315, this Court has declined to transplant fea-
tures of the Clayton Act’s cause of action into the RICO context
where doing so would be inappropriate. Cf. Sedima, S. P. R. L. v. Im-
rex Co., 473 U. S. 479, 485, 495. There is good reason not to do so
here. Most importantly, RICO lacks the very language that the
Court found critical to its decision in Pfizer, namely, the Clayton Act’s
definition of a “person” who may sue, which “explicitly includes ‘cor-
porations and associations existing under or authorized by . . . the
laws of any foreign country,’ ” 434 U. S., at 313. Congress’s more re-
cent decision to exclude from the antitrust laws’ reach most conduct
that “causes only foreign injury,” F. Hoffmann-La Roche Ltd v. Em-
pagran S. A., 542 U. S. 155, 158, also counsels against importing into
RICO those Clayton Act principles that are at odds with the Court’s
current extraterritoriality doctrine. Pp. 22–27.
(c) Section 1964(c) requires a civil RICO plaintiff to allege and
prove a domestic injury to business or property and does not allow re-
covery for foreign injuries. Respondents waived their domestic injury
Cite as: 579 U. S. ____ (2016) 5
Syllabus
damages claims, so the District Court dismissed them with prejudice.
Their remaining RICO damages claims therefore rest entirely on in-
jury 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, BREY-
ER, 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.
Cite as: 579 U. S. ____ (2016) 1
Opinion of the Court
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, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
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 par­
lance 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 bank­
ruptcy or securities fraud or drug-related activity that is
2 RJR NABISCO, INC. v. EUROPEAN COMMUNITY
Opinion of the Court
“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 Tele-
phone Co., 492 U. S. 229, 239 (1989); see §1961(5) (specify­
ing that a “pattern of racketeering activity” requires at
least two predicates committed within 10 years of each
other).
RICO’s §1962 sets forth four specific prohibitions aimed
at different ways in which a pattern of racketeering activ-
ity may be used to infiltrate, control, or operate “a[n] en­
terprise 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 rack­
eteering activity in an enterprise. Section 1962(b) makes
it unlawful to acquire or maintain an interest in an enter­
prise 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
——————
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 partic­
ipated 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,
Cite as: 579 U. S. ____ (2016) 3
Opinion of the Court
Violations of §1962 are subject to criminal penalties,
§1963(a), and civil proceedings to enforce those prohibi­
tions 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
——————
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 racket­
eering activity or through collection of an unlawful debt to acquire or
maintain, directly or indirectly, any interest in or control of any enter­
prise 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, inter­
state or foreign commerce, to conduct or participate, directly or indi-
rectly, 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.
2 In full, §1964(c) provides:
“Any person injured in his business or property by reason of a viola­
tion 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 crimi­
nally 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.”
4 RJR NABISCO, INC. v. EUROPEAN COMMUNITY
Opinion of the Court
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. Re­
spondents—the European Community and 26 of its mem­
ber 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 survi­
vor) 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 his-
tory 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 organiza­
tions, 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
Cite as: 579 U. S. ____ (2016) 5
Opinion of the Court
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); oper­
ated the enterprise through the pattern of racketeering in
violation of §1962(c); and conspired with other partici­
pants in the scheme in violation of §1962(d).3 These viola­
tions 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 imper­
missibly extraterritorial. 2011 WL 843957, at *7.
——————
3 The complaint also alleges that RJR committed a variety of state-
law torts. Those claims are not before us.
4 At an earlier stage of respondents’ litigation against RJR, the Sec­
ond 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, 546 U. S. 1092 (2006). It is unclear why
respondents subsequently included these alleged injuries in their
present complaint; they do not ask us to disturb or distinguish the
Second Circuit’s holding that such injuries are not cognizable. We
express no opinion on the matter. Cf. Pasquantino v. United States,
544 U. S. 349, 355, n. 1 (2005).
6 RJR NABISCO, INC. v. EUROPEAN COMMUNITY
Opinion of the Court
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 for­
eign 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 re­
hearing en banc, with five judges dissenting. 783 F. 3d
123 (2015).
Cite as: 579 U. S. ____ (2016) 7
Opinion of the Court
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 substan­
tive 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., 550 U. S. 437,
454 (2007). This principle finds expression in 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., 561 U. S. 247, 255 (2010). The ques­
tion is not whether we think “Congress would have wanted”
a statute to apply to foreign conduct “if it had thought
of the situation before the court,” but whether Congress
has affirmatively and unmistakably instructed that the
statute will do so. Id., at 261. “When a statute gives no
clear indication of an extraterritorial application, it has
none.” Id., at 255.
There are several reasons for this presumption. Most
notably, it serves to avoid the international discord that
8 RJR NABISCO, INC. v. EUROPEAN COMMUNITY
Opinion of the Court
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., 499 U. S. 244, 248 (1991) (Ar-
amco); Benz v. Compania Naviera Hidalgo, S. A., 353 U. S.
138, 147 (1957). But it also reflects the more prosaic
“commonsense notion that Congress generally legislates
with domestic concerns in mind.” Smith v. United States,
507 U. S. 197, 204, n. 5 (1993). We therefore apply the
presumption across the board, “regardless of whether
there is a risk of conflict between the American statute
and a foreign law.” Morrison, supra, at 255.
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. 561 U. S., at 262–265. We
then engaged in a separate inquiry to determine whether
the complaint before us involved a permissible domestic
application of §10(b) because it alleged that some of the
relevant misrepresentations were made in the United
States. At this second step, we considered the “ ‘focus’ of
congressional concern,” asking whether §10(b)’s focus is
“the place where the deception originated” or rather “pur­
chases and sale of securities in the United States.” Id., at
266. We concluded that the statute’s focus is on domestic
securities transactions, and we therefore held that the
statute does not apply to frauds in connection with foreign
securities transactions, even if those frauds involve do­
mestic misrepresentations.
In Kiobel, we considered whether the Alien Tort Statute
(ATS) confers federal-court jurisdiction over causes of
action alleging international-law violations committed
Cite as: 579 U. S. ____ (2016) 9
Opinion of the Court
overseas. We acknowledged that the presumption against
extraterritoriality is “typically” applied to statutes “regu­
lating 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 viola­
tions “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 extraterritori­
ally. 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 extrater­
ritorial, 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 extrater­
ritorial 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
10 RJR NABISCO, INC. v. EUROPEAN COMMUNITY
Opinion of the Court
does not apply extraterritorially: “If §10(b) did apply
abroad, we would not need to determine which transna­
tional frauds it applied to; it would apply to all of them
(barring some other limitation).” 561 U. S., at 267, n. 9.
The scope of an extraterritorial statute thus turns on the
limits Congress has (or has not) imposed on the statute’s
foreign application, and not on the statute’s “focus.”5
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 appli­
cations 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 Gov­
ernment officials, §351(i) (“There is extraterritorial juris­
diction 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
——————
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, 555 U. S. 223, 236–243 (2009).
Cite as: 579 U. S. ____ (2016) 11
Opinion of the Court
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 incor­
poration 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 extraterritorial­
ity 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 extraterritori­
ally—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 extraterri­
torially.” 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 pro­
vides for some extraterritorial application, the presump­
tion against extraterritoriality operates to limit that
——————
6 The foreign killings would, of course, still have to satisfy the relat­
edness and continuity requirements of RICO’s pattern element. See
H. J. Inc. v. Northwestern Bell Telephone Co., 492 U. S. 229 (1989).
12 RJR NABISCO, INC. v. EUROPEAN COMMUNITY
Opinion of the Court
provision to its terms.” Morrison, 561 U. S., at 265. Second,
RICO defines as racketeering activity only acts that are
“indictable” (or, what amounts to the same thing, “charge­
able” or “punishable”) under one of the statutes identified
in §1961(1). If a particular statute does not apply extra-
territorially, then conduct committed abroad is not “in­
dictable” under that statute and so cannot qualify as a
predicate under RICO’s plain terms.
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. Con­
text 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 activ­
ity”—and by extension a “pattern of racketeering activ­
ity”—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 extra­
territorial effect despite lacking an express statement of
Cite as: 579 U. S. ____ (2016) 13
Opinion of the Court
extraterritoriality.
We therefore conclude that RICO applies to some for­
eign 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 extrater­
ritorial. 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 differ­
ence 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., 547 U. S. 451, 461–462 (2006). While we have no
difficulty concluding that this prohibition applies to in­
come derived from foreign patterns of racketeering (within
the limits we have discussed), arguably §1962(a) extends
only to domestic uses of the income. The Second Circuit
did not decide this question because it found that respond­
ents have alleged “a domestic investment of racketeering
proceeds in the form of RJR’s merger in the United States
with Brown & Williamson and investments in other U. S.
operations.” 764 F. 3d, at 138, n. 5. RJR does not dispute
the basic soundness of the Second Circuit’s reasoning, but
it does contest the court’s reading of the complaint. See
Brief for Petitioners 57–58. Because the parties have not
focused on this issue, and because it makes no difference
to our resolution of this case, see infra, at 27, we assume
without deciding that respondents have pleaded a domes­
tic investment of racketeering income in violation of
§1962(a).
Finally, although respondents’ complaint alleges a
14 RJR NABISCO, INC. v. EUROPEAN COMMUNITY
Opinion of the Court
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 in­
quiry 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 statu­
tory “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).” 561 U. S., at 267,
n. 9. The same is true here. RICO—or at least §§1962(b)
and (c)—applies abroad, and so we do not need to deter­
mine which transnational (or wholly foreign) patterns of
racketeering it applies to; it applies to all of them, regard­
less of whether they are connected to a “foreign” or “do­
mestic” enterprise. This rule is, of course, subject to the
important limitation that RICO covers foreign predicate
offenses only to the extent that the underlying predicate
statutes are extraterritorial. But within those bounds, the
Cite as: 579 U. S. ____ (2016) 15
Opinion of the Court
location of the affected enterprise does not impose an
independent constraint.
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 counter­
intuitive 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 corpo­
ration 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 liabil­
ity—both civil and criminal—because the enterprise at
issue is a foreign, not domestic, corporation.
Seeking to avoid this result, RJR offers that any “ ‘emis­
saries’ ” 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 do­
mestic, 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
16 RJR NABISCO, INC. v. EUROPEAN COMMUNITY
Opinion of the Court
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, 533 U. S. 158, 162
(2001).
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 corpora­
tion’s principal place of business for purposes of federal
diversity jurisdiction. See Hertz Corp. v. Friend, 559 U. S.
77 (2010); 28 U. S. C. §1332(c)(1); 2011 WL 843957, at *5–
*6. But this test quickly becomes meaningless if, as RJR
suggests, a corporation with a foreign nerve center can, if
necessary, be pruned into an association-in-fact enterprise
with a domestic nerve center. The nerve center test,
developed with ordinary corporate command structures in
mind, is also ill suited to govern RICO association-in-fact
enterprises, which “need not have a hierarchical structure
or a ‘chain of command.’ ” Boyle v. United States, 556 U. S.
938, 948 (2009). These difficulties are largely avoided if,
as we conclude today, RICO’s extraterritorial effect is
pegged to the extraterritoriality judgments Congress has
made in the predicate statutes, often by providing precise
instructions as to when those statutes apply to foreign
conduct.
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 rein­
force 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
Cite as: 579 U. S. ____ (2016) 17
Opinion of the Court
locus of the enterprise.
Although we find that RICO imposes no domestic enter­
prise requirement, this does not mean that every foreign
enterprise will qualify. Each of RICO’s substantive prohi­
bitions requires proof of an enterprise that is “engaged in,
or the activities of which affect, interstate or foreign com­
merce.” §§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 sus­
tain 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
——————
7 As to §§1962(a) and (d), see supra, at 13–14.
18 RJR NABISCO, INC. v. EUROPEAN COMMUNITY
Opinion of the Court
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 extraterritori­
ally. 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 con­
ducted 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 extra­
territorial 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) inde­
pendently of its application to §1962, reasoning that the
——————
8 We stress that we are addressing only the extraterritoriality ques­
tion. 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.
Cite as: 579 U. S. ____ (2016) 19
Opinion of the Court
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 conclu­
sion 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 prohibi­
tions. “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, 542 U. S. 692, 727 (2004). Thus, as we have
observed in other contexts, providing a private civil remedy
for foreign conduct creates a potential for international
friction beyond that presented by merely applying U. S.
substantive law to that foreign conduct. See, e.g., Kiobel,
supra, at ___ (slip op., at 6) (“Each of th[e] decisions”
involved in defining a cause of action based on “conduct
within the territory of another sovereign” “carries with it
significant foreign policy implications”).
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. sub­
stantive law on such things as banning price fixing.
F. Hoffmann-La Roche Ltd v. Empagran S. A., 542 U. S.
20 RJR NABISCO, INC. v. EUROPEAN COMMUNITY
Opinion of the Court
155, 167 (2004). Numerous foreign countries—including
some respondents in this case—advised us in Empagran
that “to apply [U. S.] remedies would unjustifiably permit
their citizens to bypass their own less generous remedial
schemes, thereby upsetting a balance of competing consid­
erations that their own domestic antitrust laws embody.”
Ibid.9
We received similar warnings in Morrison, where
France, a respondent here, informed us that “most foreign
countries proscribe securities fraud” but “have made very
——————
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 enforce­
ment 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., 542 U. S. 155, 164 (2004); see also Hartford Fire Ins. Co. v.
California, 509 U. S. 764, 814–815 (1993) (Scalia, J., dissenting) (dis­
cussing the two canons). As the foregoing discussion makes clear,
considerations relevant to one rule are often relevant to the other.
Cite as: 579 U. S. ____ (2016) 21
Opinion of the Court
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 Repub­
lic 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 dan­
ger 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, 561
U. S., at 255, where such a risk is evident, the need to
enforce the presumption is at its apex.
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 pre­
scriptive 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
22 RJR NABISCO, INC. v. EUROPEAN COMMUNITY
Opinion of the Court
injury requirement will necessarily govern suits by non­
governmental 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, 542 U. S., at 168. Respond­
ents suggest that we should be reluctant to permit a for­
eign corporation to be sued in the courts of this country for
events occurring abroad if the nation of incorporation
objects, but that we should discard those reservations
when a foreign state sues a U. S. entity in this country
under U. S. law—instead of in its own courts and under its
own laws—for conduct committed on its own soil. We
refuse to adopt this double standard. “After all, in the
law, what is sauce for the goose is normally sauce for the
gander.” Heffernan v. City of Paterson, 578 U. S. ___, ___
(2016) (slip op., at 6).
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 extrater­
ritoriality. 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, per­
sonal injuries—Congress signaled that the civil remedy is
not coextensive with §1962’s substantive prohibitions.
Cite as: 579 U. S. ____ (2016) 23
Opinion of the Court
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 applica­
tion than §1962, and in any event does not support extra­
territoriality.
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., 473 U. S. 479 (1985),
that the “compensable injury” addressed by §1964(c) “nec­
essarily is the harm caused by predicate acts sufficiently
related to constitute a pattern,” id., at 497, the Court of
Appeals held that a RICO plaintiff may sue for foreign
injury that was caused by the violation of a predicate
statute that applies extraterritorially, just as a substan­
tive RICO violation may be based on extraterritorial pred­
icates. 764 F. 3d, at 151. JUSTICE GINSBURG advances the
same theory. See post, at 4–5 (opinion concurring in part
and dissenting in part). This reasoning has surface ap­
peal, but it fails to appreciate that the presumption
against extraterritoriality must be applied separately to
both RICO’s substantive prohibitions and its private right
of action. See supra, at 18–22. It is not enough to say that
a private right of action must reach abroad because the
underlying law governs conduct in foreign countries.
Something more is needed, and here it is absent.10
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.’ ”
——————
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., 473 U. S. 479, 483–484 (1985). Re­
spondents correctly do not contend that this fact is controlling here, as
the Sedima Court did not address the foreign-injury issue.
24 RJR NABISCO, INC. v. EUROPEAN COMMUNITY
Opinion of the Court
Brief for Respondents 41 (quoting Sosa, 542 U. S., at 706–
707). But the rule respondents invoke actually provides
that a court will ordinarily “apply foreign law to determine
the tortfeasor’s liability” to “a plaintiff injured in a foreign
country.” Id., at 706 (emphasis added). Respondents’
argument might have force if they sought to sue RJR for
violations of their own laws and to invoke federal diversity
jurisdiction as a basis for proceeding in U. S. courts. See
U. S. Const., Art. III, §2, cl. 1 (“The judicial Power [of the
United States] shall extend . . . to Controversies . . . be­
tween a State, or the Citizens thereof, and foreign
States”); 28 U. S. C. §1332(a)(4) (“The district courts shall
have original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75,000
. . . and is between . . . a foreign state . . . as plaintiff and
citizens of a State or of different States”). The question
here, however, is not “whether a federal court has jurisdic­
tion to entertain a cause of action provided by foreign or
even international law. The question is instead whether
the court has authority to recognize a cause of action
under U. S. law” for injury suffered overseas. Kiobel,
supra, at ___ (slip op., at 8) (emphasis added). As to that
question, the relevant background principle is the pre­
sumption against extraterritoriality, not the “traditional
rule” respondents cite.
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, 503 U. S. 258, 267–268
(1992), which we have held allows recovery for injuries
suffered abroad as a result of antitrust violations, see
Pfizer Inc. v. Government of India, 434 U. S. 308, 314–315
(1978). It follows, respondents and JUSTICE GINSBURG
contend, that §1964(c) likewise allows plaintiffs to sue for
injuries suffered in foreign countries. We disagree. Al-
though we have often looked to the Clayton Act for guid­
Cite as: 579 U. S. ____ (2016) 25
Opinion of the Court
ance in construing §1964(c), we have not treated the two
statutes as interchangeable. We have declined to trans­
plant features of the Clayton Act’s cause of action into the
RICO context where doing so would be inappropriate. For
example, in Sedima we held that a RICO plaintiff need not
allege a special “racketeering injury,” rejecting a require­
ment that some lower courts had adopted by “[a]nalog[y]”
to the “antitrust injury” required under the Clayton Act.
473 U. S., at 485, 495.
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 recov­
ery 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.’ ” 434
U. S., at 313; see 15 U. S. C. §12.11 RICO lacks the lan­
guage that the Pfizer Court found critical. See 18 U. S. C.
§1961(3).12 To the extent that the Pfizer Court cited other
——————
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 434 U. S., at 315 (expressing concern that “persons doing business
both in this country and abroad might be tempted to enter into anti­
competitive conspiracies affecting American consumers in the expecta­
tion that the illegal profits they could safely extort abroad would offset
any liability to plaintiffs at home”), as respondents themselves contend,
see Brief for Respondents 44 (“[T]his Court clearly recognized in Pfizer
that Section 4 extends to foreign injuries”). The Court also permitted
an antitrust plaintiff to sue for foreign injuries in Continental Ore Co.
v. Union Carbide & Carbon Corp., 370 U. S. 690 (1962), but the Court’s
discussion in that case focused on the extraterritoriality of the underly­
ing antitrust prohibitions, not the Clayton Act’s private right of action,
see id., at 704–705, and so sheds little light on the interpretive question
now before us.
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
26 RJR NABISCO, INC. v. EUROPEAN COMMUNITY
Opinion of the Court
factors that might apply to §1964(c), they were not suffi­
cient in themselves to show that the provision has extra­
territorial effect. For example, the Pfizer Court, writing
before we honed our extraterritoriality jurisprudence in
Morrison and Kiobel, reasoned that Congress “[c]learly . . .
did not intend to make the [Clayton Act’s] treble-damages
remedy available only to consumers in our own country”
because “the antitrust laws extend to trade ‘with foreign
nations’ as well as among the several States of the Union.”
434 U. S., at 313–314. But we have emphatically rejected
reliance on such language, holding that “ ‘even statutes . . .
that expressly refer to “foreign commerce” do not apply
abroad.’ ” Morrison, 561 U. S., at 262–263. This reasoning
also fails to distinguish between extending substantive
antitrust law to foreign conduct and extending a private
right of action to foreign injuries, two separate issues that,
as we have explained, raise distinct extraterritoriality
problems. See supra, at 18–22. Finally, the Pfizer Court
expressed concern that it would “defeat th[e] purposes” of
the antitrust laws if a defendant could “escape full liability
for his illegal actions.” 434 U. S., at 314. But this justifi­
cation was merely an attempt to “divin[e] what Congress
would have wanted” had it considered the question of
extraterritoriality—an approach we eschewed in Morrison.
561 U. S., at 261. Given all this, and in particular the fact
that RICO lacks the language that Pfizer found integral to
its decision, we decline to extend this aspect of our Clayton
Act jurisprudence to RICO’s cause of action.
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’ extraterri­
torial effect and to exclude from their reach most conduct
that “causes only foreign injury.” Empagran, 542 U. S., at
——————
language that the Pfizer Court found to support foreign-injury suits
under the Clayton Act.
Cite as: 579 U. S. ____ (2016) 27
Opinion of the Court
158 (describing Foreign Trade Antitrust Improvements
Act of 1982); see also id., at 169–171, 173–174 (discussing
how the applicability of the antitrust laws to foreign inju­
ries may depend on whether suit is brought by the Gov­
ernment or by private plaintiffs). Although this later
enactment obviously does not limit §1964(c)’s scope by its
own force, it does counsel against importing into RICO
those Clayton Act principles that are at odds with our
current extraterritoriality doctrine.
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 applica­
tion 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 there­
fore rest entirely on injury suffered abroad and must be
dismissed.13
——————
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,
28 RJR NABISCO, INC. v. EUROPEAN COMMUNITY
Opinion of the Court
* * *
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.
——————
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.
Cite as: 579 U. S. ____ (2016) 1
Opinion of GINSBURG, J.
SUPREME COURT OF THE UNITED STATES
_________________
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 Or-
ganizations 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, 464
U. S. 16, 26 (1983). RICO accordingly proscribes various
ways in which an “enterprise,” §1961(4), might be con-
trolled, operated, or funded by a “pattern of racketeering
activity,” §1961(1), (5). See §1962.1 RICO builds on predi-
cate statutes, many of them applicable extraterritorially.
App. to Brief for United States as Amicus Curiae 27a–33a.
Congress not only armed the United States with authority
to initiate criminal and civil proceedings to enforce RICO,
§§1963, 1964(b), Congress also created in §1964(c) a pri-
vate right of action for “[a]ny person injured in his busi-
ness or property by reason of a violation of [RICO’s sub-
——————
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).
2 RJR NABISCO, INC. v. EUROPEAN COMMUNITY
Opinion of GINSBURG, J.
stantive provision].”
Invoking this right, respondents, the European Com-
munity and 26 member states, filed suit against petition-
ers, 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, includ-
ing 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 pur-
poses, 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., 561 U. S. 247,
255 (2010). So recognizing, the Court employs a presump-
tion that “ ‘legislation . . . is meant to apply only within the
territorial jurisdiction of the United States.’ ” Ibid. (quot-
ing EEOC v. Arabian American Oil Co., 499 U. S. 244, 248
(1991) (Aramco)). But when a statute demonstrates Con-
gress’ “affirmative inten[t]” that the law should apply
beyond the borders of the United States, as numerous
RICO predicate statutes do, the presumption is rebutted,
and the law applies extraterritorially to the extent Con-
gress prescribed. See Morrison, 561 U. S., at 255 (quoting
Aramco, 499 U. S., at 248). The presumption, in short,
Cite as: 579 U. S. ____ (2016) 3
Opinion of GINSBURG, J.
aims to distinguish instances in which Congress con-
sciously designed a statute to reach beyond U. S. borders,
from those in which nothing plainly signals that Congress
directed extraterritorial application.
In this case, the Court properly holds that Congress
signaled its “affirmative inten[t],” Morrison, 561 U. S., at
255, that RICO, in many instances, should apply extrater-
ritorially. See ante, at 10–18; App. to Brief for United
States as Amicus Curiae 27a–33a. As the Court relates,
see ante, at 10–14, Congress deliberately included within
RICO’s compass predicate federal offenses that manifestly
reach conduct occurring abroad. See, e.g., §§1956–1957
(money laundering); §2339B (material support to foreign
terrorist organizations). Accordingly, the Court concludes,
when the predicate crimes underlying invocation of §1962
thrust extraterritorially, so too does §1962. I agree with
that conclusion.
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 sub-
sections (b) and (c), all agree, encompasses foreign inju-
ries. 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 (specify-
ing 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.
4 RJR NABISCO, INC. v. EUROPEAN COMMUNITY
Opinion of GINSBURG, J.
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 ad-
dressing RICO, linking, not separating, prohibited activi-
ties and authorized remedies. See Sedima, S. P. R. L. v.
Imrex Co., 473 U. S. 479, 495 (1985) (“If the defendant
engages in a pattern of racketeering activity in a manner
forbidden by [§1962], and the racketeering activities injure
the plaintiff in his business or property, the plaintiff has a
claim under §1964(c).”); ibid. (refusing to require a “dis-
tinct ‘racketeering injury’ ” for private RICO actions under
§1964(c) where §1962 imposes no such requirement).2
To reiterate, a §1964(c) right of action may be main-
tained 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, 264 U. S. 375, 392 (1924). RICO’s private right
of action, it cannot be gainsaid, expressly incorporates
§1962, whose extraterritoriality, the Court recognizes, is
coextensive with the underlying predicate offenses
——————
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.”).
Cite as: 579 U. S. ____ (2016) 5
Opinion of GINSBURG, J.
charged. See ante, at 10–18. See also ante, at 12 (“[I]t is
hard to imagine how Congress could have more clearly
indicated that it intended RICO to have (some) extraterri-
torial effect.”). The sole additional condition §1964(c)
imposes on access to relief is an injury to one’s “business
or property.” Nothing in that condition should change the
extraterritoriality assessment. In agreement with the
Second Circuit, I would hold that “[i]f an injury abroad
was proximately caused by the violation of a statute which
Congress intended should apply to injurious conduct
performed abroad, [there is] no reason to import a domes-
tic injury requirement simply because the victim sought
redress through the RICO statute.” 764 F. 3d 149, 151
(2014).
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 there-
for.” See Klehr v. A. O. Smith Corp., 521 U. S. 179, 189–
190 (1997); Holmes v. Securities Investor Protection Corpo-
ration, 503 U. S. 258, 267–268 (1992); Sedima, 473 U. S.,
at 485, 489. Clayton Act §4, the Court has held, provides
a remedy for injuries both foreign and domestic. Pfizer
Inc. v. Government of India, 434 U. S. 308, 313–314 (1978)
(“Congress did not intend to make the [Clayton Act’s]
treble-damages remedy available only to consumers in our
own country.”); Continental Ore Co. v. Union Carbide &
Carbon Corp., 370 U. S. 690, 707–708 (1962) (allowing
recovery in Clayton Act §4 suit for injuries in Canada).
“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, 412 U. S. 427, 428 (1973) (per curiam), and I see
6 RJR NABISCO, INC. v. EUROPEAN COMMUNITY
Opinion of GINSBURG, J.
no contradictory indication here.3 Indeed, when the Court
has addressed gaps in §1964(c), it has aligned the RICO
private right of action with the private right afforded by
Clayton Act §4. See, e.g., Klehr, 521 U. S., at 188–189
(adopting for private RICO actions Clayton Act §4’s ac-
crual rule—that a claim accrues when a defendant commits
an act that injures a plaintiff ’s business—rather than
criminal RICO’s “most recent, predicate act” rule); Holmes,
503 U. S., at 268 (requiring private plaintiffs under
§1964(c), like private plaintiffs under Clayton Act §4, to
show proximate cause); Agency Holding Corp. v. Malley-
Duff & Associates, Inc., 483 U. S. 143, 155–156 (1987)
(applying to §1964(c) actions Clayton Act §4’s shorter
statute of limitations instead of “catchall” federal statute
of limitations applicable to RICO criminal prosecutions).
This very case illustrates why pinning a domestic-injury
requirement onto §1964(c) makes little sense. All defend-
ants are U. S. corporations, headquartered in the United
States, charged with a pattern of racketeering activity
directed and managed from the United States, involving
——————
3 TheCourt 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.”).
Cite as: 579 U. S. ____ (2016) 7
Opinion of GINSBURG, J.
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 gener-
ated by illegal narcotics trafficking and terrorist activity,
conduct violative of §1956(a)(2); traveled using the facili-
ties 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 de-
fraud,” 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 re-
quirement 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, 434 U. S., at 318–319 (“[A] foreign nation is gener-
ally entitled to prosecute any civil claim in the courts of
the United States upon the same basis as a domestic
corporation or individual might do. To deny him this
privilege would manifest a want of comity and friendly
feeling.” (internal quotation marks omitted)).
RICO’s definitional provisions exclude “[e]ntirely foreign
8 RJR NABISCO, INC. v. EUROPEAN COMMUNITY
Opinion of GINSBURG, J.
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 mur-
ders of Italian citizens committed by members of an Ital-
ian 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 appropri-
ate forum is available, the doctrine of forum non conven-
iens enables U. S. courts to refuse jurisdiction. See Piper
Aircraft Co. v. Reyno, 454 U. S. 235 (1981) (dismissing
wrongful-death action arising out of air crash in Scotland
involving only Scottish victims); Restatement (Second) of
Conflict of Laws §84 (1969). Due process constraints on
the exercise of general personal jurisdiction shelter foreign
corporations from suit in the United States based on
conduct abroad unless the corporation’s “affiliations with
the [forum] in which suit is brought are so constant and
pervasive ‘as to render it essentially at home [there].’ ”
Daimler AG v. Bauman, 571 U. S. ___, ___–___ (2014) (slip
op., at 2–3) (quoting Goodyear Dunlop Tires Operations,
S. A. v. Brown, 564 U. S. 915, 919 (2011); alterations
omitted). These controls provide a check against civil
RICO litigation with little or no connection to the United
States.
* * *
The Court hems in RICO out of concern about establish-
ing 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.
Cite as: 579 U. S. ____ (2016) 9
Opinion of GINSBURG, J.
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 ‘en-
gage[d] in a pattern of racketeering activity in a man-
ner forbidden by’ §1962, and (2) that these ‘racketeer-
ing activities’ were the proximate cause of some injury
to the plaintiff ’s business or property.” 764 F. 3d, at
151 (quoting Sedima, 473 U. S., at 495; Holmes, 503
U. S., at 268)).
Because the Court overturns that judgment, I dissent.
Cite as: 579 U. S. ____ (2016) 1
Opinion of BREYER, J.
SUPREME COURT OF THE UNITED STATES
_________________
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 for-
eign, and all the relevant conduct occurred abroad). See,
e.g., Morrison v. National Australia Bank Ltd., 561 U. S.
247, 283, n. 11 (2010) (Stevens, J., concurring in judg-
ment). Rather, it has been argued that the statute at
issue does not extend to such a case. See 18 U. S. C.
§1961(1) (limiting qualifying RICO predicates to those
that are, e.g., “chargeable” under state law, or “indictable”
or “punishable” under federal law); Tr. of Oral Arg. 32, 33–
34 (respondents conceding that all of the relevant RICO
predicates require some kind of connection to the United
States). And, as JUSTICE GINSBURG points out, “this case
has the United States written all over it.” Ante, at 7 (opin-
ion concurring in part, dissenting in part, and dissenting
2 RJR NABISCO, INC. v. EUROPEAN COMMUNITY
Opinion of BREYER, J.
from judgment).
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 racketeer-
ing 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 “compre-
hensiv[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.