RJR Nabisco, Inc. v. European Cmty., 579 U.S. ___ (2016)


Concurrence (Breyer)




No. 15?138



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 foreign, and all the relevant conduct occurred abroad). See, e.g., Morrison v. National Australia Bank Ltd., 561 U.?S. 247 , n.?11 (2010) (Stevens, J., concurring in judgment). 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 (opinion concurring in part, dissenting in part, and dissenting 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 racketeering 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 ?comprehensiv[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.