Petitioners Brief — Ashot Yegiazaryan, aka Ashot Egiazaryan, Petitioner v. Vitaly Ivanovich Smagin, et al.

Supreme Court briefFeb 27, 2023

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22-381 and 22-383

In the

Supreme Court of the United States

ASHOT YEGIAZARYAN, AKA ASHOT EGIAZARYAN,

Petitioner,

VITALY IVANOVICH SMAGIN, et al.,

Respondents.

CMB MONACO, FKA COMPAGNIE

MONÉGASQUE DE BANQUE,

Petitioner,

VITALY IVANOVICH SMAGIN, et al.,

Respondents.

On Writs of Certiorari to the United States

Court of A ppeals for the Ninth Circuit

JOINT BRIEF FOR PETITIONERS

Michael C. Tu

Counsel of Record

Peter J. Brody

Cooley LLP

355 South Grand Avenue,

Suite 900

Los Angeles, CA 90071

(213) 561-3250

mctu@cooley.com

Counsel for Petitioner CMB

Monaco, fka Compagnie

Monégasque de Banque

Vincent Levy

Counsel of Record

Gregory Dubinsky

Kevin D. Benish

Brian T. Goldman

Holwell Shuster

& Goldberg LLP

425 Lexington Avenue

New York, NY 10017

(646) 837-5151

vlevy@hsgllp.com

Counsel for Petitioner

Ashot Yegiazaryan,

aka Ashot Egiazaryan

QUESTION PRESENTED

Whether a foreign plaintiff states a cognizable civil

claim under the Racketeer Influenced and Corrupt Organizations Act when it suffers an injury to intangible

property, and if so, under what circumstances.

PARTIES TO THE PROCEEDING

Petitioners Ashot Yegiazaryan and CMB Monaco,

formerly known as Compagnie Monégasque de

Banque, were defendants in the district court and appellees below. Each filed a petition for certiorari,

which this Court granted and consolidated.

Respondent Vitaly Smagin was the plaintiff in the

district court and appellant below.

The other respondents are the remaining defendants below. They are: Alexis Gaston Thielen, Suren

Yegiazaryan,

Artem

Yegiazaryan,

Stephan

Yegiazaryan, Vitaly Gogokhia, Natalia Dorzortseva,

Murielle Jouniaux, Ratnikov Evgeny Nikolaevich,

Prestige Trust Company, and H. Edward Ryals.

iii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Petitioner

CMB Monaco hereby states that it is a wholly-owned

subsidiary of Mediobanca, S.p.A. No publicly-held entity owns 10% or more of the stock of Mediobanca,

S.p.A.

TABLE OF CONTENTS

Page

QUESTION PRESENTED........................................... i

PARTIES TO THE PROCEEDING ............................ii

CORPORATE DISCLOSURE STATEMENT .......... iii

TABLE OF AUTHORITIES ....................................... vi

INTRODUCTION ........................................................ 1

OPINIONS BELOW .................................................... 3

JURISDICTION .......................................................... 3

STATUTORY PROVISIONS INVOLVED ................. 3

STATEMENT .............................................................. 4

A. Statutory Background ................................... 4

B. Factual Background ....................................... 7

C. Procedural History ......................................... 9

SUMMARY OF ARGUMENT ................................... 14

ARGUMENT.............................................................. 18

Foreign-Domiciled Plaintiffs May Not

Maintain Civil RICO Claims Under

Section 1964(c) Because Their Economic

Injury Is By Definition Suffered Abroad .......... 18

A. Section 1964(c)’s Text And History Show

That It Redresses Only Economic Injury

Suffered Directly By The Plaintiff .............. 19

B. Choice-Of-Law Rules Applicable At The

Time Of RICO’s Enactment Show That A

Section 1964(c) Plaintiff Suffers His

Economic Injury At His Domicile ................ 29

C. This Court’s Decision In RJR Nabisco Does

Not Compel A Contrary Result ................... 38

II.

At A Minimum, And In The Alternative, A

RICO Plaintiff’s Injury Is Economic And Is

Suffered At His Domicile When The Property In

Issue Is A Judgment, Award, Or Debt ............. 40

III. A Bright-Line Plaintiff-Domicile Rule Is

Sensible And Administrable ............................. 47

A. A Plaintiff-Domicile Rule Adheres To

The Court’s Preference For Bright-Line

Rules And The Doctrine Of Prescriptive

Comity .......................................................... 47

B. RICO Was Not Enacted To Function As A

Global Arbitral-Award Enforcement Tool ... 52

C. Foreign-Domiciled Plaintiffs Retain Other

Remedies ...................................................... 55

CONCLUSION .......................................................... 57

TABLE OF AUTHORITIES

Page(s)

Cases

Agency Holding Corp. v. Malley-Duff & Assocs., Inc.,

483 U.S. 143 (1987) .............................. 18, 21, 26, 51

Alabama Great S. R.R. v. Carroll,

11 So. 803 (Ala. 1892) ...................................... 35, 55

Albert Levine Assocs. v. Bertoni & Cotti,

314 F. Supp. 169 (S.D.N.Y. 1970) .......................... 36

American Banana Co. v. United Fruit Co.,

213 U.S. 347 (1909) .......................................... 32, 39

Anza v. Ideal Steel Supply Corp.,

547 U.S. 451 (2006) .................................... 15, 27, 28

Arellano v. McDonough,

143 S. Ct. 543 (2023) .............................................. 19

Armada (Sing.) PTE Ltd. v. Amcol Int’l Corp.,

885 F.3d 1090 (7th Cir. 2018) .................... 13, 37, 43

Associated Gen. Contractors of Cal., Inc. v.

California State Council of Carpenters,

459 U.S. 519 (1983) .......................................... 24, 25

Beck v. Prupis,

529 U.S. 494 (2000) .......................................... 15, 30

Blodgett v. Silberman,

277 U.S. 1 (1928) .............................................. 41, 45

Bragdon v. Abbott,

524 U.S. 624 (1998) ................................................ 23

Cassirer v. Thyssen-Bornemisza Collection Found.,

142 S. Ct. 1502 (2022) ............................................ 31

vii

Cevdet Aksut Ve Ogullari Koll.Sti v. Cavusoglu,

756 F. App’x 119 (3d Cir. 2018) ............................. 51

Chattanooga Foundry & Pipe Works v.

City of Atlanta,

203 U.S. 390 (1906) ................... 14, 21-23, 26, 29, 42

Chicago, R. I. & P. R. Co. v. Sturm,

174 U.S. 710 (1899) ................................................ 46

CMACO Auto. Sys., Inc. v. Wanxiang Am. Corp.,

589 F.3d 235 (6th Cir. 2009) .................................. 37

Commodities & Mins. Enter. Ltd. v. CVG

Ferominera Orinoco, C.A.,

49 F.4th 802 (2d Cir. 2022) .................................... 53

Cox v. Roth,

348 U.S. 207 (1955) ................................................ 31

Curry v. McCanless,

307 U.S. 357 (1939) ................................................ 45

Daimler AG v. Bauman,

571 U.S. 117 (2014) .................................... 19, 48, 56

E.E.O.C. v. Arabian Am. Oil Co.,

499 U.S. 244 (1991) .......................................... 33, 34

Engine Specialties, Inc. v. Bombardier Ltd.,

605 F.2d 1 (1st Cir. 1979) ...................................... 37

F. Hoffmann-La Roche Ltd. v. Empagran S.A.,

542 U.S. 155 (2004) .................................... 49, 50, 55

Field v. Mans,

516 U.S. 59 (1995) .................................................. 31

Graham v. General U.S. Grant Post

No. 2665, V. F. W.,

248 N.E.2d 657 (Ill. 1969) ...................................... 34

viii

Haaksman v. Diamond Offshore (Berm.), Ltd.,

260 S.W.3d 476 (Tex. App. 2008) ........................... 54

Harris v. Balk,

198 U.S. 215 (1905) ................................................ 46

Hartford Fire Ins. Co. v. California,

509 U.S. 764 (1993) .......................................... 33, 48

Hawaii v. Standard Oil Co.,

405 U.S. 251 (1972) ................................................ 26

Hertz Corp v. Friend,

559 U.S. 77 (2010) .................................................. 48

Holmes v. Securities Inv. Prot. Corp.,

503 U.S. 258 (1992) ...............................14, 23-25, 31

Humphrey v. GlaxoSmithKline PLC,

905 F.3d 694 (3d Cir. 2018) ............................. 13, 51

J. McIntyre Mach., Ltd. v. Nicastro,

564 U.S. 873 (2011) ................................................ 32

Jimenez v. Quarterman,

555 U.S. 113 (2009) ................................................ 19

Kamel v. Hill-Rom Co., Inc.,

108 F.3d 799 (7th Cir. 1997) .................................. 37

Kirtland v. Hotchkiss,

100 U.S. 491 (1879) ................................................ 45

Klehr v. A.O. Smith Corp.,

521 U.S. 179 (1997) ................................................ 23

Lamar, Archer & Cofrin, LLP v. Appling,

138 S. Ct. 1752 (2018) ............................................ 25

Lenchyshyn v. Pelko Elec., Inc.,

723 N.Y.S.2d 285 (App. Div. 2001) ........................ 53

Marmon v. Mustang Aviation, Inc.,

430 S.W.2d 182 (Tex. 1968) ................................... 34

Miller Bros. Co. v. Maryland,

347 U.S. 340 (1954) ................................................ 45

Mississippi Band of Choctaw Indians v. Holyfield,

490 U.S. 30 (1989) .................................................. 19

Mitchell v. United States,

88 U.S. 350 (1874) .................................................. 29

Morissette v. United States,

342 U.S. 246 (1952) ................................................ 30

Morrison v. National Austl. Bank Ltd.,

561 U.S. 247 (2010) .......................... 6, 25, 32, 34, 52

Negonsott v. Samuels,

507 U.S. 99 (1993) .................................................. 40

Nestlé USA, Inc. v. Doe,

141 S. Ct. 1931 (2021) ............................................ 48

Nielsen v. Preap,

139 S. Ct. 954 (2019) .............................................. 20

Pasquantino v. United States,

544 U.S. 349 (2005) .......................................... 16, 42

Perkins v. Benguet Consol. Mining Co.,

342 U.S. 437 (1952) ................................................ 56

Pfizer, Inc. v. Government of India,

434 U.S. 308 (1978) .......................................... 24, 38

Reiter v. Sonotone Corp.,

442 U.S. 330 (1979) ................................................ 28

Republic of Argentina v. NML Cap., Ltd.,

573 U.S. 134 (2014) ................................................ 54

Richards v. United States,

369 U.S. 1 (1962) .................................................... 31

RJR Nabisco, Inc. v. European Cmty.,

579 U.S. 325 (2016) ...... 1-7, 12, 18-19, 32, 38-39, 48

Rotella v. Wood,

528 U.S. 549 (2000) ................................................ 51

Russello v. United States,

464 U.S. 16 (1983) ........................................ 4, 27, 28

Sack v. Low,

478 F.2d 360 (2d Cir. 1973) ....................... 15, 35, 36

SCO Grp., Inc. v. International Bus. Machs. Corp.,

879 F.3d 1062 (10th Cir. 2018) .............................. 37

Seaboard Terminals Corp. v. Standard Oil Co.

24 F. Supp. 1018 (S.D.N.Y. 1938) .......................... 36

Sedima, S.P.R.L. v. Imrex Co.,

473 U.S. 479 (1985) .......................................... 27, 28

Shaffer v. Heitner,

433 U.S. 186 (1977) ................................................ 46

Shapiro v. United States,

335 U.S. 1 (1948) .............................................. 15, 25

Sinatra v. National Enquirer, Inc.,

854 F.2d 1191 (9th Cir. 1988) ................................ 37

Slater v. Mexican Nat’l R.R.,

194 U.S. 120 (1904) ................................................ 32

Spector v. Norwegian Cruise Lines Ltd.,

545 U.S. 119 (2005) ................................................ 52

Tafflin v. Levitt,

493 U.S. 455 (1990) ................................................ 36

Texas v. New Jersey,

379 U.S. 674 (1965) .............................. 16, 44, 45, 46

United States v. Turkette,

452 U.S. 576 (1981) ................................................ 28

WesternGeco LLC v. ION Geophysical Corp.,

138 S. Ct. 2129 (2018) ........................................ 6, 48

Weyerhauser Co. v. United States Fish

& Wildlife Serv.,

139 S. Ct. 361 (2018) .............................................. 20

White v. Tennant,

8 S.E. 596 (W. Va. 1888) ........................................ 19

ZF Auto. US, Inc. v. Luxshare, Ltd.,

142 S. Ct. 2078 (2022) ............................................ 48

Statutes

9 U.S.C. 201-208 .................................................... 9, 53

9 U.S.C. 301-07 .......................................................... 53

15 U.S.C. 6a ............................................................... 49

15 U.S.C. 15 ............................................................... 24

18 U.S.C. 1961 ..................................................... 3, 4, 5

18 U.S.C. 1962 ............................................................. 5

18 U.S.C. 1963 ............................................................. 5

18 U.S.C. 1964 ....................................... 3, 4, 10, 12, 18

22 U.S.C. 1650-1650a ................................................ 53

28 U.S.C. 1254 ............................................................. 3

Tenn. Code § 2773 (1858) .......................................... 22

The Anti-Trust (Sherman) Act of July 2, 1890, ch.

647, § 7, 26 Stat. 210 .............................................. 24

xii

Other Authorities

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) ... 20, 25, 30

Convention on the Recognition and Enforcement of

Foreign Arbitral Awards, June 10, 1958,

21 U.S.T. 2519 .......................................................... 9

Convention on the Settlement of Investment

Disputes between States and Nationals of Other

States, Mar. 18, 1965, 575 U.N.T.S. 159 ............... 53

Inter-American Convention on International

Commercial Arbitration, Jan. 30, 1975,

1438 U.N.T.S. 245 .................................................. 53

Internal Revenue Serv., Foreign-Controlled Domestic

Corporations OneSheet, Tax Year 2018 (2022),

<https://tinyurl.com/IRSStatistics>....................... 56

Rules

Fed. R. Civ. P. 12(b)..................................................... 8

Fed. R. Civ. P. 69(a)(2) .............................................. 54

N.Y. C.P.L.R. § 5223.................................................. 54

Articles and Treatises

Aaron D. Simowitz, Siting Intangibles,

48 N.Y.U. J. Int’l L. & Pol. 259 (2015) .................. 45

Antonin Scalia, The Rule of Law as a Law of Rules,

56 U. Chi. L. Rev. 1175 (1989) ............................... 47

Caleb Nelson, The Persistence of General Law,

106 Colum. L. Rev. 503 (2006) ............................... 31

Grant Gilmore, Security Interests in Personal

Property (1965) ................................................. 16, 44

xiii

Herbert F. Goodrich, Handbook on the

Conflict of Laws (1927) .................................... 33, 35

Joseph Story, Commentaries on the Conflict of Laws

(1834) .......................................................... 16, 34, 44

Linda J. Silberman & Aaron D. Simowitz,

Recognition and Enforcement of Foreign

Judgments and Awards: What

Hath Daimler Wrought?, 91 N.Y.U. L. Rev. 344

(2016) ...................................................................... 53

Restatement (First) of Conflicts (1934) .............. 15, 36

Restatement (Fourth) of Foreign Relations Law

(2018) ................................................................ 32, 49

Restatement (Second) of Judgments (1982) ............. 41

Symeon Symeonides, Choice of Law (2016) ....... 31, 36

Legislative History

116 Cong. Rec. 18955 (1970) ..................................... 28

Organized Crime Control: Hearings on S. 30, and

Related Proposals, Before Subcomm. No. 5 of the H.

Comm. on the Judiciary, 91st Cong., 2d Sess. 520

(1970) ...................................................................... 24

S. Rep. No. 91-617, 1st. Sess. 79 (1969) .................... 28

IN THE

Supreme Court of the United States

Nos. 22-381 and 22-383

ASHOT YEGIAZARYAN, aka ASHOT EGIAZARYAN

Petitioner,

VITALY IVANOVICH SMAGIN, et al.,

Respondents.

CMB MONACO, FKA COMPAGNIE

MONÉGASQUE DE BANQUE

Petitioner,

VITALY IVANOVICH SMAGIN, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

JOINT BRIEF FOR PETITIONERS

_______

INTRODUCTION

In RJR Nabisco, Inc. v. European Community, this

Court held that, to maintain a private cause of action

under RICO, a plaintiff must “allege and prove a domestic injury.” 579 U.S. 325, 346 (2016) (emphasis in

original). As the plaintiffs there did not allege a domestic injury, however, RJR Nabisco did not consider

“[t]he application” or scope of the “domestic injury”

rule. Id. at 354.

This case picks up where RJR Nabisco left off.

Here, Respondent Smagin alleges that Petitioners violated RICO by interfering with his attempts to collect

on an arbitration award rendered in London, concerning a Russian real-estate transaction between Russian individuals. Although he is a Russian resident

with no alleged connection to the U.S., Smagin contends that he suffered a “domestic” injury because the

foreign arbitration award is unpaid and a U.S. court

recognized that arbitration award and entered judgment against one of the alleged members of the RICO

scheme, petitioner Ashot Yegiazaryan. The district

court dismissed the case for lack of a domestic injury,

but the Ninth Circuit, dividing with the Third and

Seventh Circuits, held that his injuries were domestic.

This Court should reverse. RICO’s text and structure, as well as relevant decisions of this Court, all establish that the private cause of action remedies only

economic injuries, and a plaintiff necessarily suffers

that injury at its residence. Relevant common-law

choice-of-law principles in place at the time of RICO’s

adoption further confirm the point. Moreover, even if

RICO permits consideration of whether there has

been injury to property held by the plaintiff, a foreigndomiciled plaintiff cannot make out the requisite “domestic injury” based on a claim of injury to an award

or judgment, because injuries to intangible property of

this nature are felt at the plaintiff’s domicile. The

Court should therefore reverse.

OPINIONS BELOW

The opinion of the court of appeals (J.A. 1a-17a) reversing the judgment of the district court is reported

at 37 F.4th 562. The memorandum and order of the

district court (J.A. 18a-31a) dismissing the complaint

is unreported but available at 2021 WL 2124254.

JURISDICTION

The district court entered judgment on May 5,

2021. J.A. 18a. Respondent timely noticed an appeal

on May 24, 2021. The court of appeals had jurisdiction

under 28 U.S.C. 1291. That court filed its published

decision on June 10, 2022, and denied rehearing en

banc on July 22, 2022. J.A. 32a. Petitioners timely and

separately petitioned for certiorari on October 20,

2022. This Court granted both petitions on January

13, 2023, and has jurisdiction under 28

U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

The Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. 1961 et seq., is reprinted in full in

an appendix to this brief. Pet. App. 1-30. The most relevant provision, 18 U.S.C. 1964(c), states:

Any person injured in his business or

property by reason of a violation 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

criminally 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.

STATEMENT

A. Statutory Background

1. Enacted in 1970, the Racketeer Influenced and

Corrupt Organizations Act (RICO), 18 U.S.C. 1961 et

seq., targets “organized crime’s infiltration of legitimate enterprises” through racketeering activity, Russello v. United States, 464 U.S. 16, 26 (1983).

The statute “defines ‘racketeering activity’ to encompass dozens of state and federal offenses, known

in RICO parlance as predicates.” RJR Nabisco, 579

U.S. at 329-330; see 18 U.S.C. 1961(1) (defining “rack-

eteering activity” by reference to enumerated predicate offenses). “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.” RJR Nabisco, 579 U.S. at 330 (quoting 18

U.S.C. 1961(5)).

In accordance with its aims of targeting the criminal infiltration of legitimate economic enterprises,

RICO proscribes certain investments of income derived from “pattern[s] of racketeering activity,” 18

U.S.C. 1962(a); the acquisition of interests in an enterprise through “pattern[s] of racketeering activity,”

18 U.S.C. 1962(b); the conduct of an enterprise’s affairs through a “pattern of racketeering activity,” 18

U.S.C. 1962(c); and conspiracy to engage in any of the

foregoing, 18 U.S.C. 1962(d).

To ensure compliance, Congress made violations of

RICO a criminal offense, 18 U.S.C. 1963, and authorized the Attorney General of the United States to initiate civil enforcement proceedings, 18 U.S.C. 1964(b).

Most relevant here, Congress also enacted a private right of action in 18 U.S.C. 1964(c), permitting

“[a]ny person injured in his business or property by

reason of a violation of section 1962” (i.e., RICO’s substantive proscription) to sue for treble damages, costs,

and attorneys’ fees.

2. The Court addressed the extraterritorial reach

of RICO’s substantive and remedial provisions in RJR

Nabisco, 579 U.S. at 325, applying the presumption

against extraterritoriality. Under that presumption,

“[w]hen a statute has no clear indication of an extraterritorial application, it has none.” Morrison v. National Austl. Bank Ltd., 561 U.S. 247, 255 (2010). As

the Court explained, whether or not a statute applies

extraterritorially entails a two-step analytical framework: “At the first step, [courts] ask whether the presumption against extraterritoriality has been rebutted,” and, at the second step, if the presumption has

not been rebutted, courts look to a statute’s “focus” to

determine if a particular case involves a “domestic application.” RJR Nabisco, 579 U.S. at 337; WesternGeco

LLC v. ION Geophysical Corp., 138 S. Ct. 2129, 2136

(2018).

In RJR Nabisco, the Court held that the presumption was rebutted with respect to certain of RICO’s

substantive provisions and underlying predicates, and

that, therefore, RICO’s substantive prohibitions reach

some (but not all) unlawful conduct occurring outside

the United States. 579 U.S. at 338-345.

Next, the Court considered the presumption’s application to Section 1964(c), under which private

plaintiffs can sue. The Court first held that the presumption applied independently to Section 1964(c),

the remedial provision, even though “the presumption

has been overcome with respect to [some of] RICO’s

substantive prohibitions.” RJR Nabisco, 579 U.S. at

346. Then, applying the presumption to Section 1964(c), the Court instructed at the first step that

the presumption was not overcome. Id. at 349-354. At

the second step, the Court held that the “focus” of Section 1964(c) is the plaintiff’s “injury,” id. at 346, and,

therefore, that Section 1964(c) does not provide a private right of action for “injury suffered abroad,” id. at

354.

Instead, to state a private right of action under

RICO and be entitled to a private remedy under Section 1964(c), a “private RICO plaintiff [] must allege

and prove a domestic injury.” RJR Nabisco, 579 U.S.

at 346. As the parties had stipulated that the injuries

in-suit were foreign, the Court declined to address

“[t]he application of this rule” in any particular case.

Id. at 354.

B. Factual Background

This case arises out of the global attempts by a

plaintiff, domiciled in Russia, to collect on an international arbitral award rendered in London stemming

from a Moscow real-estate dispute—and to (mis)use

the United States’ treble-damages regime under

RICO in service of that mission. The facts stated below

are based on the allegations in the complaint, which,

although disputed by petitioners, are assumed true

here given the Rule 12(b) posture.1

1 As is evident given the posture, Petitioners dispute each and

every allegation of the complaint, including without limitation

the claim that there has been a conspiracy or any other sort of

agreement between Ashot and CMB Monaco.

1. Petitioner Ashot Yegiazaryan (“Ashot”) is a former Russian politician and businessperson who, until

2010, lived in Russia. J.A. 5a. He fled Russia after the

Russian government accused him of fraud, and now

resides in California. Ibid. The London Award that is

discussed below was entered against petitioner Ashot.

Petitioner CMB Monaco, formerly Compagnie

Monégasque de Banque (“CMB Monaco”), is a banking

institution located in Monaco. Smagin alleges that

Ashot, through entities under his control, deposited

funds into an account with CMB Monaco, and Smagin

has made (disputed) conspiracy allegations involving

CMB Monaco entirely on that basis. J.A. 20a.

Respondent Vitaly Smagin (“Smagin”) is a Russian

businessman and Russian citizen who has lived in

Russia at all times relevant to this dispute. J.A. 4a.

He was the claimant in the London arbitration, and

the sole plaintiff in the district court.

2. The events leading to the arbitration award and

subsequent enforcement proceedings began in 2003.

At the time, Ashot and Smagin, both based in Russia,

partnered on a Moscow real-estate project called “Europark.” J.A. 27a. After several years, the joint venture collapsed when the pair clashed over the use of

the Europark property as security for a different project to refurbish a Moscow hotel. J.A. 27a-28a.

In 2010, after the project ran aground, Smagin

commenced an arbitration against Ashot in the Lon-

don Court of International Arbitration (“LCIA”), seeking to recoup his claimed investment. J.A. 5a. In 2014,

a three-arbitrator panel awarded Smagin $84 million

(the “London Award”). Ibid.

3. Smagin then launched a worldwide effort to collect on the London Award. Those enforcement efforts

have focused on the alleged proceeds of a $198 million

settlement that Ashot later obtained in an unrelated

arbitration against another Russian businessman,

Suleymon Kerimov (the “Kerimov Award”).

In furtherance of these collection efforts, Smagin

moved to have the London Award recognized as judgments by the courts of Liechtenstein (where many of

Ashot’s assets were allegedly held) and California

(where Ashot resides). The Liechtenstein Princely

Court of Justice recognized the London Award and entered a judgment on February 24, 2016. The U.S. District Court for the Central District of California (Real,

J.) did the same on March 31, 2016, in line with the

Convention on the Recognition and Enforcement of

Foreign Arbitral Awards (New York Convention)

art. IV, June 10, 1958, 21 U.S.T. 2519; see

9 U.S.C. 201-208 (implementing the New York Convention). The parties refer to the latter order recognizing Smagin’s award as the “California Judgment.”

C. Procedural History

1. In his continued effort to collect on the London

Award, Smagin filed the instant case in December

2020 in the United States District Court for the Central District of California. J.A. 18a. Seeking treble

damages under RICO’s private right of action, 18

U.S.C. 1964(c), Smagin’s complaint pleaded two RICO

claims against petitioners Ashot and CMB Monaco, as

well as other individual co-defendants. J.A. 18a-19a.

At base, Smagin accused the defendants of subverting his efforts to collect on the London Award

through a purported pattern of wire fraud and other

RICO predicate racketeering acts. According to the

complaint, Ashot and the co-defendants supposedly

used a “complex web of offshore entities” to conceal the

proceeds of the Kerimov Award abroad and to avoid

using those proceeds to satisfy the London Award.

J.A. 56a. That includes claims that Ashot channeled

the Kerimov Award from Ashot’s London-based attorneys to a trust that he set up in Liechtenstein, the Alpha Trust, and then deposited those funds into an account inaccessible to Smagin. J.A. 57a. Smagin also

claims that Ashot used foreign shell entities in Nevis

and Liechtenstein to mask the ownership structure of

the Alpha Trust. J.A. 56a. These alleged acts occurred

both before and after the London Award was recognized in the California Judgment.

Smagin contends that CMB Monaco participated

in the supposed scheme. But the only facts pleaded are

that the bank (1) accepted a deposit from Alpha Trust

of the proceeds of the Kerimov Award in Monaco, J.A.

57a, (2) received contradictory instructions from

Smagin and from Ashot’s alleged designees (defendants Suren Yegiazaryan, Vitaly Gogokhia, and Natalia Dozortseva) as to the disposition of the assets, J.A.

83a-84a, and (3) refused to immediately transfer the

funds to Smagin in the face of these conflicting instructions, J.A. 84a.2

Smagin also accused the remaining defendants

(who are respondents here) of various supposed misdeeds. This included the claims, for instance, that codefendants Suren Yegiazaryan and Gogokhia filed

sham lawsuits against Ashot in Europe and elsewhere

that would compete with Smagin’s claims for Ashot’s

assets; that co-defendants Dozortseva, Jouniaux,

Thielen, and Stephan Yegiazaryan supposedly

wrongly sought to control the Alpha Trust in Liechtenstein by falsely holding themselves out as trustees

or filing suits to remove Smagin’s appointees; and that

co-defendant Ratnikov sought to intervene in

Smagin’s enforcement actions. J.A. 68a.

2. Ashot and CMB Monaco filed separate motions

to dismiss Smagin’s RICO complaint. Both argued,

among other things, that the claims were barred under this Court’s decision in RJR Nabisco. As noted

2 Smagin characterizes CMB Monaco’s failure to blindly follow

his commands as “fraudulent” and “pretextual,” J.A. 84a, but

omits that CMB Monaco responded to the competing banking instructions by submitting the dispute to the Monégasque courts,

a course of action those courts described as “necessary,” J.A.

210a.

above, RJR Nabisco held that, in light of the presumption against extraterritoriality, a civil RICO suit must

allege a “domestic,” and not a “foreign,” injury in order

to pursue a private remedy under 18 U.S.C. 1964(c).

579 U.S. at 354. Ashot and CMB Monaco argued that

Smagin’s injury—the claimed inability to collect on

the California Judgment—was suffered (if at all) in

Russia, where Smagin is domiciled.

The district court held that Smagin’s injury was

impermissibly foreign. J.A. 31a. “[T]he Court place[d]

great weight on the fact that Smagin is a resident and

citizen of Russia and therefore experiences the loss

from his inability to collect on his judgment in Russia.” J.A. 27a (internal quotation marks omitted). The

district court recognized that the Third and Seventh

Circuits had developed competing tests to conduct

RJR Nabisco’s inquiry into the situs of an injury under Section 1964(c) and concluded that Smagin’s injury was foreign under either approach. J.A. 25a-29a.

Because RJR Nabisco barred foreign injuries like

Smagin’s, the district court held, Smagin could not obtain a remedy under RICO; it thus dismissed all

claims. J.A. 31a.

3. The Ninth Circuit reversed. J.A. 4a. Addressing

only whether Smagin pleaded a domestic injury, the

court (Graber, J.) first held that awards and judgments such as the California Judgment qualify as intangible property. J.A. 10a. The panel also recognized

that the circuits had split over the appropriate legal

test for determining whether RICO claims involving

intangible property result in “domestic” or “foreign”

injuries, with the Seventh Circuit adopting a brightline plaintiff-residency rule and the Third embracing

a multi-factor balancing test. J.A. 14a-16a (citing Armada (Sing.) PTE Ltd. v. Amcol Int’l Corp., 885 F.3d

1090 (7th Cir. 2018) and Humphrey v. GlaxoSmithKline PLC, 905 F.3d 694 (3d Cir. 2018)).

Expressly parting with the Seventh Circuit, the

Ninth Circuit purported to apply a multi-factor balancing test modeled on the Third Circuit’s analysis,

J.A. 16a, but the Ninth Circuit focused on the defendant’s residence and conduct, J.A. 10a-11a. Specifically, unlike the Third Circuit, the Ninth Circuit centered on the conduct of one defendant (Ashot) as the

touchstone of its analysis. Ibid. Because Smagin had

confirmed the London Award in California (Ashot’s

domicile), and because Ashot’s alleged misconduct occurred in California, the Ninth Circuit held that

Smagin had alleged a permissible domestic injury under RICO and therefore had a civil RICO remedy (assuming he stated a RICO claim) against both U.S. and

foreign defendants.

The Ninth Circuit denied CMB Monaco’s motion to

rehear the case en banc (a motion that Ashot joined by

separate filing). J.A. 32a. Petitioners Ashot and CMB

Monaco then each filed petitions for certiorari.

This Court granted both petitions on January 13,

2023, and consolidated the two cases. Petitioners now

submit this joint brief in the consolidated cases.

SUMMARY OF ARGUMENT

I. The plain text and ordinary canons of constructions instruct that a plaintiff is “injured in” property

at the plaintiff’s domicile, without regard to whether

the plaintiff may allege to possess property elsewhere.

A. Beginning with the text, Section 1964(c) redresses only economic injury suffered by the “person”

of the plaintiff—not injury “to” property. The word “injured” modifies the “person” empowered to bring suit,

not the “property.” And RICO’s private cause of action

covers only injuries “in” the person’s “business or

property,” not injury “to” property. This is significant:

In Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U.S. 390 (1906), the Court construed the

same statutory phrase—“injured in his business or

property”—in the Sherman Act, and explained that, in

contrast to a statute speaking of injury “to” property,

when a statute speaks of a person injured “in” business or property, “[w]e do not go behind the person of

the sufferer.” Id. at 398-399 (emphases added). Therefore, a person suffers “injury in” property at his domicile.

It is significant that Congress modeled Section 1964(c) on the private right of action in the antitrust laws. See Holmes v. Securities Inv. Prot. Corp.,

503 U.S. 258, 267 (1992). Thus, the Court should “assume [Congress] intended” the words in RICO’s private right of action “to have the same meaning that

courts had already given them” in the context of the

antitrust laws. Id. at 268; see also Shapiro v. United

States, 335 U.S. 1, 16 (1948). As the private-right-ofaction contained in the antitrust laws remedies solely

economic injury, so must RICO’s private right of action: it protects economic injury (in the case of RICO,

caused by the criminal infiltration of legitimate enterprises). And the legislative history is in accord. Anza

v. Ideal Steel Supply Corp., 547 U.S. 451, 473 (2006)

(Thomas, J., concurring in part and dissenting in

part).

B. Common-law principles governing the situs of

injury corroborate what the text makes clear. At the

“time of RICO’s enactment in 1970,” see Beck v.

Prupis, 529 U.S. 494, 500-501 (2000), courts had occasion to consider where an economic injury was suffered when they applied common-law, conflict-of-law

principles. Under the then-predominant common-law

rule, an economic injury is “deemed to be suffered

where its economic impact is felt, normally the plaintiff’s residence.” Sack v. Low, 478 F.2d 360, 366 (2d

Cir. 1973) (Friendly, J.); Restatement (First) of Conflicts § 377 (1934). This rule accords with the statutory text and, given the overlap between common-law

conflicts principles and the presumption against extraterritoriality, it makes particular sense to follow it

here.

II. Although it is irrelevant that a plaintiff may

claim to hold property that itself was “injured,” in the

alternative, the plaintiff-domicile rule should con-

tinue to apply where the plaintiff alleges injury in intangible property, such as awards or judgments

(which are indisputably “intangible” in nature).

Respondent complains only that defendants allegedly deprived him of collection rights on an arbitral

award entered in England that was later rendered

into judgments by courts in Liechtenstein and the

United States. The only claimed injury, therefore, is

non-payment of a debt—i.e., the loss of cash—which is

a classic “economic injury.” See Pasquantino v. United

States, 544 U.S. 349, 355-356 (2005).

As a result, Chattanooga Foundry’s observations

remain fully apt, and the common-law conflict rules

remain instructive, regardless of the situs of the underlying award. In any event, “movable or personal

property is looked on, in law, as having no situs of location of its own but as following the law of the

owner’s domicile.” Grant Gilmore, Security Interests

In Personal Property 600 (1965) (discussing the “mobilia sequuntur personam” rule); see also Joseph

Story, Commentaries on the Conflict of Laws § 376

(1834) (“[T]he right and disposition of moveables is to

be governed by the law of the domicil of the owner.”).

Decisions of this Court likewise adhere to “the old concept [that] intangible personal property is found at the

domicile of its owner.” Texas v. New Jersey, 379 U.S.

674, 680-681 & n.10 (1965). So too here.

III. A domicile-of-the-plaintiff rule is also most administrable and sensible.

A. When it comes to matters affecting the foreign

relations of the United States, the Court has expressed a preference for clear rules. Principles of prescriptive comity require the same interpretation,

which the plaintiff-domicile rule satisfies.

B. There is zero reason to believe that Congress intended for RICO to turbocharge judgment- and awardenforcement proceedings. Arbitral awards entered

abroad may easily be turned into judgments in the

United States, as Smagin has done here. Congress

plainly did not have judgment-avoidance claims in

mind when it passed RICO.

C. Finally, a domicile-of-the-plaintiff rule does not

mean that foreign plaintiffs are without any remedy.

A foreign-domiciled plaintiff may proceed if the foreign jurisdiction where he resides enacted a regime

similar to RICO, or if he transacts business through

U.S.-incorporated subsidiaries. Regardless, the foreign-domiciled plaintiff retains ample common-law

and other remedies addressing injuries to property.

ARGUMENT

Foreign-Domiciled Plaintiffs May Not Maintain Civil RICO Claims Under Section 1964(c)

Because Their Economic Injury Is By Definition Suffered Abroad

RICO’s private cause of action, 18 U.S.C. 1964(c),

provides that only “person[s] injured in [their] business or property by reason of a violation of” RICO may

bring suit. As this Court has instructed, even though

RICO’s “substantive prohibitions” may “govern[] conduct in foreign countries,” RICO’s private cause of action does not authorize suit “for injuries suffered outside of the United States.” RJR Nabisco, Inc. v. European Cmty., 579 U.S. 325, 349-350 (2016). The question here is whether there has been a “domestic” rather than a “foreign” injury.

The answer to that question is clear: the injury occurs at the domicile of the plaintiff. That is the plain

import of RICO’s text and history—as clarified by this

Court’s decisions. First, RICO’s private cause of action

solely “remed[ies] economic injury.” Agency Holding

Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 151

(1987). Second, economic injury is suffered by the

plaintiff at the plaintiff’s domicile.3 Thus, for purposes

3 For natural persons, “domicile is established by physical pres-

ence in a place in connection with a certain state of mind con-

of Section 1964(c), a RICO plaintiff who is domiciled

abroad does not suffer a domestic injury. See RJR

Nabisco, 579 U.S. at 362 (Ginsburg, J., concurring in

part and dissenting in part) (reading the Court’s holding that Section 1964(c) requires a domestic injury to

mean that “foreign parties * * * would have no RICO

remedy”).

A. Section 1964(c)’s Text And History Show

That It Redresses Only Economic Injury

Suffered Directly By The Plaintiff

1. “As with any question of statutory interpretation, [the] analysis begins with the plain language of

the statute.” Jimenez v. Quarterman, 555 U.S. 113,

118 (2009); Arellano v. McDonough, 143 S. Ct. 543,

548 (2023) (“Start with the text.”). The statutory text

instructs that the cognizable injury giving rise to a

private suit under Section 1964(c) is an economic injury suffered by the plaintiff personally, not an injury

to the plaintiff’s business or property.

Section 1964(c) permits “[a]ny person injured in

his business or property” because of a violation of Section 1962 (RICO’s substantive provisions) to sue for

cerning one’s intent to remain there.” Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989); e.g., White v.

Tennant, 8 S.E. 596, 597 (W. Va. 1888). This case does not raise

the question of where a foreign corporation is domiciled, but the

Court in other contexts has recognized a corporation’s place of

incorporation and principal place of business as “equivalent” to

domicile. Daimler AG v. Bauman, 571 U.S. 117, 137 (2014).

treble damages. The text makes clear two points about

the “injury” redressed by Section 1964(c): (1) the “injury” is to the plaintiff, not to property; and (2) the “injury” must be an economic one.

First, by its plain text, Section 1964(c) redresses

harm suffered by the plaintiff, not harm to property.

The “person” empowered to bring suit is the subject of

Section 1964(c), and the qualifier “injured” narrows

the category of “persons” who have private rights of

action—only injured persons may sue; the word “injured” does not modify the word “property.” See Weyerhauser Co. v. United States Fish & Wildlife Serv., 139

S. Ct. 361, 368 (2018) (“Adjectives modify nouns—they

pick out a subset of a category that possesses a certain

quality.”). Logically, the injury giving rise to a lawsuit

under RICO must be felt by—and follow—the person

bringing the suit. See Nielsen v. Preap, 139 S. Ct. 954,

965 (2019) (“[W]ords are to be given the meaning that

proper grammar and usage would assign them.”)

(quoting Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts 140-143 (2012)

(Scalia & Garner)).

Second, RICO’s cause of action redresses only economic injuries. Section 1964(c) provides that only injuries “in” the putative plaintiff’s “business or property” provide a basis for suit. This means only certain

injuries suffered by the plaintiff qualify. Moreover,

the use of the word “in” to modify the words “business

or property” (as compared to “to”) is key. That textual

phrasing again emphasizes that the statute’s focus is

on the injured person, not the person’s property. And

the text covers only economic injuries—i.e., injuries in

“business or property”—suffered by the plaintiff personally.

Put together, Section 1964(c)’s text instructs that

the harm it redresses is an economic injury suffered

by the plaintiff, not a distinct injury to business or

property. That is the teaching of several opinions of

this Court.

In Agency Holding, the Court held that the Sherman Act’s limitation period applied to private RICO

claims; it reached that result, in part, because “[b]oth

RICO and the Clayton Act are designed to remedy economic injury.” 483 U.S. at 151 (emphasis added); see

also ibid. (“[B]oth statutes aim to compensate the

same type of injury.”) (emphasis added); id. at 169

(Scalia, J., concurring) (equating “civil actions under

RICO” with common-law “actions for economic injury”).

What is more, over a century ago, Justice Holmes,

writing for the Court, construed identical language in

the Sherman Act in Chattanooga Foundry & Pipe

Works v. City of Atlanta, 203 U.S. 390 (1906), and that

decision confirms that Section 1964(c) covers only economic losses suffered by the plaintiff in his person.

Chattanooga Foundry construed the relevant statutory phrase of Section 1964(c)—“injured in his business or property”—but in the context of the Sherman

Act (which, as discussed infra at pp. 23-25, is significant). In Chattanooga Foundry, the Court chiefly addressed whether the plaintiff’s antitrust claim for injuries suffered “in his business or property” was subject to a state limitation period for “‘actions for injuries

to personal or real property.’” Id. at 398 (quoting Tenn.

Code § 2773 (1858)) (emphases added). The Court held

that particular statute of limitations did not apply because “there is a sufficiently clear distinction between

injuries to property and ‘injured in his business or

property.’” Id. at 398-399 (emphases added).

As the Court saw it, when a statute speaks of injury “to” property, as did the Tennessee limitation period, the harm at issue is done to the “object [which is]

capable of injury” itself—i.e., the property. Chattanooga Foundry, 203 U.S. at 399 (emphasis added). But

when a statute speaks of a person being injured “in”

business or property, Justice Holmes explained, “[w]e

do not go behind the person of the sufferer.” Ibid. (emphasis added). That is because “[a] man is injured in

his property when his property is diminished” and

“[h]e would not be said to have suffered an injury to

his property unless the harm fell upon some object

more definite and less ideal than his total wealth.”

Ibid. (emphases added); see also id. at 396-397.

In other words, as the Court recognized over a century ago, whereas injury “to” property focuses on the

property itself, injury to a person “in his property” focuses solely upon the economic losses felt by the “person of the sufferer”; specifically, the statute provides

redress for loss of “money of the plaintiff,” a loss which

is felt solely by “the person.” Chattanooga Foundry

203 U.S. at 399 (emphasis added).

The plain text, in sum, shows that Section 1964(c)

remedies solely economic injuries felt by the plaintiff.

Thus, to identify the situs of the injury, the Court

should look to the plaintiff, and “stop there.” Chattanooga Foundry, 203 U.S. at 397, 399.

2. The conclusion that Section 1964(c) redresses

only economic injury suffered by the plaintiff finds

further support in Congress’s decision to model

RICO’s private cause of action on the private right of

action for enforcing the antitrust laws—and thus to

import the Court’s gloss on it. See Bragdon v. Abbott,

524 U.S. 624, 645 (1998) (“[R]epetition of the same

language in a new statute indicates, as a general matter, the intent to incorporate its * * * judicial interpretations as well.”). That background again instructs

that the relevant “injury” for RICO purposes is an economic injury to the plaintiff, which is traditionally

considered to be felt at his domicile. RICO does not

remedy injuries “to” property felt wherever the property happens to be (to the extent it can be located).

Congress indeed “modeled § 1964(c)” in substantial

part on the “civil-action provision of the federal antitrust laws, § 4 of the Clayton Act,” which Congress in

turn modeled on Section 7 of the Sherman Act.

Holmes v. Securities Inv. Prot. Corp., 503 U.S. 258,

267 (1992) (discussing RICO); Klehr v. A.O. Smith

Corp., 521 U.S. 179, 189 (1997) (“As the Court has explained, Congress consciously patterned civil RICO after the Clayton Act.”); Associated Gen. Contractors of

Cal., Inc. v. California State Council of Carpenters,

459 U.S. 519, 530 (1983) (“The critical statutory language [in the Clayton Act] was originally enacted in

1890 as § 7 of the Sherman Act.”) (citing The AntiTrust (Sherman) Act of July 2, 1890, ch. 647, § 7, 26

Stat. 210 (repealed 1955)); see also Organized Crime

Control: Hearings on S. 30, and Related Proposals, Before Subcomm. No. 5 of the H. Comm. on the Judiciary,

91st Cong., 2d Sess. 520 (1970) (statement of Rep.

Steiger) (explaining that Section 1964(c) is “similar to

the private damage remedy found in the anti-trust

laws”).4

And, as this Court has previously instructed, “[w]e

may fairly credit the 91st Congress, which enacted

RICO, with knowing the interpretation federal courts

had given the words earlier Congresses had used first

in § 7 of the Sherman Act, and later in the Clayton

Act’s § 4.” Holmes, 503 U.S. at 268. Thus, it must be

“presum[ed]” that Congress “adopted * * * the judicial

gloss” that this Court had placed upon the provision.

Associated Gen. Contractors of Cal., Inc., 459 U.S. at

4 Like the remedial provision at issue here, the federal antitrust

laws currently authorize a “person” to sue when “injured in his

business or property.” 15 U.S.C. 15 (Section 4 of the Clayton Act).

That was always so; “Section 7 of the Sherman Act was repealed

in 1955 as redundant” of Section 4 of the Clayton Act. Pfizer, Inc.

v. Government of India, 434 U.S. 308, 311 n.8 (1978).

534 (discussing Congress’s decision to model the Clayton Act on the Sherman Act); see also Lamar, Archer

& Cofrin, LLP v. Appling, 138 S. Ct. 1752, 1762 (2018)

(“When Congress use[s] the materially same language

* * * it presumptively [is] aware of the longstanding

judicial interpretation [of the phrase] and intend[s] for

[it] to retain its established meaning.”); Scalia & Garner 323 (“[W]hen a statute uses the very same terminology as an earlier statute * * * it is reasonable to believe that the terminology bears a consistent meaning.”).

In that light, “[i]n adopting the language used in

the earlier act, Congress [in enacting RICO] ‘must be

considered to have adopted’” Chattanooga Foundry’s

construction of the Sherman Act’s remedial provision

as capturing solely economic injury to the person—rather than injury to property—“and made [that] a part

of the [RICO] enactment.” Shapiro v. United States,

335 U.S. 1, 16 (1948) (citation omitted). Congress

“used the same words” in Section 1964(c) as previously appeared in the antitrust laws, “and we can only

assume [Congress] intended them to have the same

meaning that courts had already given them.”

Holmes, 503 U.S. at 268.5

5 In RJR Nabisco, the Court declined to “import[] into RICO [cer-

tain antitrust] principles that are at odds with our current extraterritoriality doctrine.” 579 U.S. at 354. Nothing in Chattanooga

Foundry or Reiter, however, is inconsistent with the Court’s “extraterritoriality jurisprudence” as “honed * * * in Morrison and

Kiobel.” RJR Nabisco, 579 U.S. at 353; see also Part III.A, infra.

The Court’s construction of RICO’s private cause of

action as reaching “economic injury,” Agency Holding,

483 U.S. at 151, is thus consistent with the statute’s

origin. By the same token, the Court continues to interpret the private cause of action in the antitrust

laws to remedy economic injuries. Thus, in Hawaii v.

Standard Oil Co., the question was whether the state

of Hawaii could invoke the Clayton Act’s private right

of action. 405 U.S. 251 (1972). The Court held that it

could, but only if it suffered an injury “to its [own]

commercial interests,” because “the words ‘business or

property’ * * * refer to commercial interests or enterprises.” Id. at 264. The State of Hawaii could not seek

“damages for other injuries.” Ibid.

Further, it makes good sense to conclude that

RICO’s private cause of action was enacted to and does

remedy similar injuries as the antitrust laws, as this

Court has already instructed. See Agency Holding,

483 U.S. at 151 (“[B]oth statutes aim to compensate

the same type of injury.”). The antitrust laws proscribe anticompetitive activity and grant a private

remedy for economic injuries suffered by reason of a

violation. See Chattanooga Foundry, 203 U.S. at 396

(antitrust plaintiff “was [i]njured in its property, at

least, if not in its business of furnishing water, by being led to pay more than the worth of the pipe. A person whose property is diminished by a payment of

money wrongfully induced is injured in his property.”).

Considering RICO’s purpose of addressing the

criminal “infiltration of legitimate enterprises,” Russello, 464 U.S. at 28, as well as Section 1964(c)’s

origin, it is logical to conclude that, just like the private remedy codified in the federal antitrust laws,

RICO’s private remedy in Section 1964(c) was also

meant to redress solely economic injuries, such as loss

of profit, inflicted upon legitimate enterprises by patterns of racketeering activities. Indeed, “[t]he Court

unanimously recognized in Sedima that one reason—

and, for the dissent, the principal reason—Congress

enacted RICO was to protect businesses against competitive injury from organized crime.” Anza v. Ideal

Steel Supply Corp., 547 U.S. 451, 473 (2006) (Thomas,

J., concurring in part and dissenting in part) (emphasis added) (citing Sedima, S.P.R.L. v. Imrex Co., 473

U.S. 479 (1985)).

3. RICO’s legislative history—which the Court has

repeatedly cited in construing RICO—is in accord:

RICO’s private right is meant to remedy economic injuries to commercial activities.

Summarizing the record in Anza, Justice Thomas

explained that the private right of action was designed

to protect “competitive injury to a business” caused by

organized crime. 547 U.S. at 474 (Thomas, J., concurring in part and dissenting in part). For example, Senator Roman Hruska, “[t]he sponsor of a Senate precursor to RICO,” noted that ‘“the evil to be curbed is the

unfair competitive advantage inherent in the large

amount of illicit income available to organized crime.”

Id. at 473 (cleaned up; quoting legislative record);

Sedima, 473 U.S. at 514 (Marshall, J., dissenting)

(same). Senator Hruska repeated much the same

point when “adding a provision for a civil remedy in a

subsequently proposed bill”: RICO “‘creates civil remedies for the honest businessman who has been damaged by unfair competition from the racketeer businessman.’” Anza, 547 U.S. at 473 (Thomas, J., concurring in part and dissenting in part) (quoting legislative record).

RICO’s legislative record is replete with like statements, from Senate Reports extolling RICO as a

means to protect “the economic well-being of the Nation,” Russello, 464 U.S. at 27-28 (quoting S. Rep. No.

91-617, 1st. Sess. 79 (1969)), to individual remarks

confirming that RICO was designed to “remove [the]

corrupting influence from the channels of commerce,”

id. at 28 (quoting 116 Cong. Rec. 18955 (1970) (statement of Sen. McClellan)); see also United States v.

Turkette, 452 U.S. 576, 592 n.14 (1981) (citing various

legislative remarks and reports on how RICO is “designed to inhibit the infiltration of legitimate business

by organized crime”).

In short, when Congress enacted RICO’s private

remedial provision, Congress plainly intended to give

a right of action to plaintiffs suffering economic injury.

That being so, a Section 1964(c) injury necessarily

occurs where the plaintiff is. Accord Reiter v. Sonotone

Corp., 442 U.S. 330, 339 (1979) (“A consumer whose

money has been diminished by reason of an antitrust

violation has been injured ‘in his . . . property.’”). In

the law, the location of the plaintiff has traditionally

been understood to be his domicile. See Part I.B, infra;

Mitchell v. United States, 88 U.S. 350, 352 (1874)

(“The place where a person lives is taken to be his

domicile.”). Thus, under Section 1964(c), there is no

occasion to look “behind” the person of the plaintiff to

the location of the person’s property to determine

where an asserted injury occurred. Chattanooga

Foundry, 203 U.S. at 399. The Court should simply

look to where the plaintiff is domiciled. Under this

simple rule, foreign-domiciled plaintiffs cannot sue for

injuries in property under Section 1964(c), because

their economic losses are necessarily suffered abroad.

B. Choice-Of-Law Rules Applicable At The

Time Of RICO’s Enactment Show That A

Section 1964(c) Plaintiff Suffers His Economic Injury At His Domicile

The statute, history, and decisional law are clear:

a Section 1964(c) plaintiff can sue to remedy only an

economic injury. See Part I.A, supra. Given that predicate, the Court should also look to common-law principles governing the situs of injury to confirm where

the plaintiff’s economic injury is suffered. Specifically,

it should look to the prevailing choice-of-law rules that

were in operation at the time of RICO’s (and the Sherman Act’s) enactment. Those common-law principles

corroborate what the text makes clear: Civil RICO

plaintiffs are “injured in” their “property”—i.e., suffer

an economic injury in relation to property—at their

domicile. Thus, a foreign-domiciled plaintiff injured in

his property cannot suffer a “domestic” injury for purposes of Section 1964(c).

1. To begin, this Court has instructed that RICO

should be construed in light of the “settled meaning at

common law” of its statutory terms at the “time of

RICO’s enactment in 1970.” See Beck v. Prupis, 529

U.S. 494, 500-501 (2000). Thus, it is appropriate in addressing the statutory question of where a plaintiff

has been injured for purposes of Section 1964(c) to

consider the background of the common law as of

1970.

This approach reflects the longstanding canon of

interpretation that “when Congress uses language

with a settled meaning at common law, Congress ‘presumably knows and adopts the cluster of ideas that

were attached to each borrowed word in the body of

learning from which it was taken and the meaning its

use will convey to the judicial mind unless otherwise

instructed.” Beck, 529 U.S. at 500-501 (quoting Morissette v. United States, 342 U.S. 246, 263 (1952)); see

Scalia & Garner 320-321 (discussing canon of imputed

common-law meaning).

In line with that approach, this Court regularly

has applied common-law concepts when interpreting

RICO. See, e.g., Beck, 529 U.S. at 500 (interpreting

statutory term “conspiracy” by reference to common

law); Holmes, 503 U.S. at 267-268 (interpreting “by

reason of” in Section 1964 by reference to common law

of proximate causation).6

2. The concept of an “injury” and the question of its

situs are well-parsed in the common law. For purposes

of the question in this case—where a Section 1964(c)

“injury” occurs—the common law of conflicts is most

instructive. In that context, courts frequently had occasion to consider where an “injury” was suffered in

applying “choice-of-law rule[s],” which are “a means of

selecting which jurisdiction’s law governs the determination of liability.” Cassirer v. Thyssen-Bornemisza

Collection Found., 142 S. Ct. 1502, 1507 (2022).7

At the time of RICO’s enactment and for more than

a century prior, in cases sounding in fraud or other

torts like RICO’s predicates, “[t]he general conflict-oflaws rule, followed by a vast majority of the States,

[wa]s to apply the law of the place of injury to the substantive rights of the parties.” E.g., Richards v. United

States, 369 U.S. 1, 11-12, (1962) (footnote omitted); see

6 Outside of RICO, “[e]xamples of this phenomenon are legion.”

Caleb Nelson, The Persistence of General Law, 106 Colum. L.

Rev. 503, 521 & n.98 (2006) (collecting cases); see, e.g., Field v.

Mans, 516 U.S. 59, 70-71 (1995) (construing the term “fraud” in

the Bankruptcy Code); Cox v. Roth, 348 U.S. 207, 210 (1955) (interpreting Jones Act while considering “general law” in 43

states).

7 Choice-of-law rules fall within the broader field of conflict of

laws, Symeon Symeonides, Choice of Law 1 (2016), but in the

context of this case they are referred to interchangeably.

also J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873,

904 n.11 (2011) (Ginsburg, J., dissenting) (“[T]he location of injury continues to hold sway in choice-of-law

analysis.”). Up to and after RICO’s enactment, application of choice-of-law rules in the mine-run tort case

thus required common-law courts to resolve precisely

the question that RJR Nabisco left open and that this

case raises—where a plaintiff is injured—making

common-law conflicts rules directly in-point.

Consideration of the common law of conflicts is also

conceptually appropriate here in light of its kinship

with the presumption against extraterritoriality,

which is historically rooted in the conflict of laws.

American Banana Co. v. United Fruit Co., 213 U.S.

347, 356 (1909) (citing conflicts authorities, including

Slater v. Mexican Nat’l R.R., 194 U.S. 120, 126 (1904));

Restatement (Fourth) of Foreign Relations Law § 404

note 1 (2018). The presumption against extraterritoriality is a means for ascertaining how broadly an act of

Congress sweeps, what conduct it regulates, and in

what circumstances it prescribes a remedy. See RJR

Nabisco, 579 U.S. at 346. In doing so, the presumption

helps determine the geographic scope of U.S. federal

law and whether a plaintiff is “entitle[d] * * * to relief”

under it. Morrison v. National Austl. Bank Ltd., 561

U.S. 247, 254 (2010).

Choice-of-law principles traverse much the same

ground as the presumption against extraterritoriality,

albeit in the context of the common law (rather than

statute). Similar to the question addressed by the presumption against extraterritoriality, choice-of-law

rules address which jurisdiction “determines the existence of the plaintiff’s [common-law] claim.” Herbert

F. Goodrich, Handbook on the Conflict of Laws 191

(1927) (Goodrich) (“[T]he tort is complete only when

the harm takes place, and it is the law of the state

where this happens that determines the existence of

the plaintiff’s claim.”).

Moreover, both the presumption against extraterritoriality and the common law of conflicts are firmly

based on shared notions of territoriality and respect

for the authority of sovereign states to regulate within

their own borders. Both operate as a means of recognizing and respecting the sovereign authority of other

nations.8 Thus, the presumption ensures that, unless

Congress expressly states, U.S. law will not prescribe

remedies to persons beyond our borders. This is borne

out of the “longstanding principle of American law

‘that legislation of Congress, unless a contrary intent

8 Compare E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244, 248

(1991) (Aramco) (“In applying this rule of construction, we look

to see whether language in the [relevant Act] gives any indication

of a congressional purpose to extend its coverage beyond places

over which the United States has sovereignty or has some measure of legislative control.”) (citation omitted; brackets in original), with Hartford Fire Ins. Co. v. California, 509 U.S. 764, 817

(1993) (Scalia, J., dissenting) (judicial consideration of “the respect sovereign nations afford each other by limiting the reach of

their laws * * * is a traditional component of choice-of-law theory”).

appears, is meant to apply only within the territorial

jurisdiction of the United States.’” Morrison, 561 U.S.

at 255 (quoting Aramco, 499 U.S. at 248). Traditional

choice-of-law rules, in much the same way, are based

on the premise that no state’s laws can apply outside

of its own territory, since that would be “wholly incompatible with the equality and exclusiveness of the sovereignty of any nation.” Joseph Story, Commentaries

on the Conflict of Laws § 20 (1834) (Story).

In that light, in addressing the location of the

plaintiff’s injury for RICO purposes—a question that

addresses whether Section 1964(c) is being applied domestically, as it must be—it makes eminent sense not

just to presume that Congress enacted the statute

against the background of then-applicable conflict-oflaw rules, but also that Congress considered that

those common-law conflict rules would help determine

when RICO’s private remedy is actionable. Indeed,

around the time RICO was enacted, courts used exactly this approach to interpret the situs of an “injury”

prescribed by statute in other contexts, and construed

those statutes as limited to plaintiffs suffering instate injuries. E.g., Graham v. General U.S. Grant

Post No. 2665, V. F. W., 248 N.E.2d 657, 659 (Ill. 1969)

(construing state dram-shop act using traditional

choice-of-law rules); Marmon v. Mustang Aviation,

Inc., 430 S.W.2d 182, 187 (Tex. 1968) (same, regarding

wrongful-death statute).

3. At the time of RICO’s enactment, and for many

years before, courts reasoned for conflicts purposes

that a wrongful act was “deemed to have been committed where the injury of which the plaintiff complains

was inflicted, not where the defendant’s acts were

done.” Goodrich, 191 & n.8 (collecting authority) (emphasis added); see, e.g., Alabama Great S. R.R. v. Carroll, 11 So. 803, 806 (Ala. 1892) (“The fact which created the right to sue,–the injury,–without which confessedly no action would lie anywhere, transpired in

the state of Mississippi * * * and whether a cause of

action arose and existed at all, or not, must in all reason be determined by [Mississippi] law.”). And when

it came to economic injuries inflicted by tort—which,

as noted above, are the only injuries cognizable under

Section 1964(c)—courts held that a plaintiff’s injury is

suffered at the plaintiff’s domicile, such that the law

of that jurisdiction (rather than another) governed.

Judge Friendly’s decision for the Second Circuit in

Sack v. Low, rendered just three years after RICO’s

enactment, is illustrative of the then-prevailing rule.

478 F.2d 360 (2d Cir. 1973). In deciding which jurisdiction’s law governed a securities-fraud claim, Judge

Friendly explained that “a cause of action for fraud

arises where the loss is sustained and that loss from

fraud is deemed to be suffered where its economic impact is felt, normally the plaintiff’s residence.” Id. at

366. This rule was in line with “the weight of authority

in other jurisdictions, which generally adopts the view

of the First Restatement of Conflicts.” Ibid; see also

Tafflin v. Levitt, 493 U.S. 455, 465 (1990) (“[M]any

RICO cases involve * * * fraud.”).

As Judge Friendly noted, Sack, 478 F.2d at 365,

the First Restatement of Conflicts indeed considered

that a fraud plaintiff suffered an economic loss at the

plaintiff’s domicile. It explained that “[w]hen a person

sustains loss by fraud, the place of wrong is where the

loss is sustained, not where fraudulent representations are made.” Restatement (First) of Conflicts § 377

note 4 (1934). For instance, if “A, in state X, owns

shares in the M company” and “B, in state Y, fraudulently persuades A not to sell the shares” and “the

value of the shares falls,” then “the place of wrong is

X”—i.e., plaintiff’s (A’s) domicile. Id. § 377 note 4 illus.

6; id. § 378 (“Law Governing Plaintiff’s Injury”); see

also Sack, 478 F.2d at 366 (collecting cases). This

“place of injury” rule has also historically applied

when siting economic harms in other contexts. E.g.,

Albert Levine Assocs. v. Bertoni & Cotti, 314 F. Supp.

169, 171 (S.D.N.Y. 1970) (siting venue in Clayton Act);

Seaboard Terminals Corp. v. Standard Oil Co., 24 F.

Supp. 1018 (S.D.N.Y. 1938), aff’d, 104 F.2d 659 (2d

Cir. 1939).

The First Restatement was adopted “in virtually

all States in the United States”; it “dominated American conflicts law for more than a generation and continued to command a majority of states as late as 1979

in tort conflicts.” Symeon Symeonides, Choice of Law

60 (2016).

And, even today (as the Seventh Circuit recognized

in Armada (Singapore) PTE Ltd. v. Amcol Int’l Corp.,

885 F.3d 1090, 1094-1095 (7th Cir. 2018)), it still reflects the rule applied by many courts to consider

which law remedies economic injuries. E.g., Kamel v.

Hill-Rom Co., Inc., 108 F.3d 799, 805 (7th Cir. 1997)

(“The place of injury was clearly Saudi Arabia, where

Kamel’s business would suffer as a result of HillRom’s conduct.”); SCO Grp., Inc. v. International Bus.

Machs. Corp., 879 F.3d 1062, 1081 (10th Cir. 2018)

(“Moreover, SCO’s headquarters and principal place of

business is in Utah, so that is where it suffered the

alleged injury.”); CMACO Auto. Sys., Inc. v. Wanxiang

Am. Corp., 589 F.3d 235, 247 (6th Cir. 2009) ( “[T]he

economic injury suffered by [the plaintiff] was clearly

felt at its corporate headquarters.”); Sinatra v. National Enquirer, Inc., 854 F.2d 1191, 1202 (9th Cir.

1988) (“The harm suffered by Sinatra was economic,

and thus felt by him at his domicile and the headquarters of his business.”); Engine Specialties, Inc. v. Bombardier Ltd., 605 F.2d 1, 19 (1st Cir. 1979) (“The place

of injury is where plaintiff suffered the harm * * * at

its place of business, Pennsylvania.”).

In sum, at the time of RICO’s enactment, the common-law rules governing the situs of economic injuries

suffered by tort plaintiffs squarely placed those at the

plaintiff’s domicile. It therefore follows that foreigndomiciled plaintiffs suffer their economic injuries

abroad and cannot allege or prove the requisite domestic injury to proceed under Section 1964(c).

C. This Court’s Decision In RJR Nabisco

Does Not Compel A Contrary Result

Respondent has asserted that a footnote in RJR

Nabisco is inconsistent with the textual conclusion

that a Section 1964(c) injury occurs at the plaintiff’s

domicile. Br. in Opp. at 11 (citing 579 U.S. at 353

n.12). That is wrong, putting aside that the question

of where an injury occurs was plainly left open by RJR

Nabisco.

The footnote at issue appears within the Court’s

analysis of the application of the presumption against

extraterritoriality to Section 1964(c) and, specifically,

where the Court rejects the argument that “§ 1964(c)

[should] cover foreign injuries just because the Clayton Act does so.” 579 U.S. at 352. The Court explained

that it had read the Clayton Act as applying extraterritorially because “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.”’” Ibid. (quoting Pfizer v. Government of India, 434 U.S. 308, 313 (1978)). The Court

stated the same result should not obtain when considering RICO’s scope in part because RICO’s definition

of the word ‘person’ lacked “the language that the

Pfizer Court found critical.” Id. at 352-353.

The footnote Respondent seizes upon accompanies

that limited observation, and in the footnote the Court

was stating only that the absence of “explicit foreign-

oriented language [in RICO’s definition of ‘person’]

that the Pfizer Court found to support foreign-injury

suits under the Clayton Act” did not, in and of itself,

“mean that foreign plaintiffs may not sue under

RICO.” Id. at 353 n.12. In other words, the footnote

conveyed only that the lack of “foreign-oriented language” does not rule out RICO claims by foreign plaintiffs; it did not hold by inverse, as Respondent suggests, that such claims were ruled in. Cf. American

Banana, 213 U.S. at 357 (“Words having universal

scope, such as ‘every contract in restraint of trade,’

‘every person who shall monopolize,’ etc., will be

taken, as a matter of course, to mean only everyone

subject to such legislation, not all that the legislator

subsequently may be able to catch.”).

The Court did not resolve in that footnote the question presented here—of how to sort domestic from foreign injuries. It could not have, given that the Court

expressly stated it did “not concern [itself] with that

question,” RJR Nabisco, 579 U.S. at 354, and the

Court did not respond to the separate opinion’s observation that, given the Court’s reading of Section 1964(c), “foreign parties” will “have no RICO remedy,” id. at 362 (Ginsburg, J., concurring in part and

dissenting in part). That separate observation was accurate.

It is the Court’s “task * * * to give effect to the will

of Congress, and where its will has been expressed in

reasonably plain terms, that language must ordinarily be regarded as conclusive.” Negonsott v. Samuels,

507 U.S. 99, 104 (1993). This case asks the straightforward question of where the “injury” referenced in

Section 1964(c) is suffered, and under what circumstances that “injury” is either “foreign” or “domestic.”

The statutory text and common-law principles together provide the answer: the injury is suffered at the

domicile of the person bringing suit—not where property is located, and not at the defendant’s domicile.

II.

At A Minimum, And In The Alternative, A

RICO Plaintiff’s Injury Is Economic And Is

Suffered At His Domicile When The Property

In Issue Is A Judgment, Award, Or Debt

As noted, the text and background of Section 1964(c) point to the injured plaintiff’s domicile as

the location of the injury regardless of whether the

plaintiff may claim to hold individual items of personal or real property in the United States. In other

words, for purposes of determining the situs of the injury that is the basis of a RICO claim, the location of

the plaintiff is all that matters. But, if the Court considers that a plaintiff’s claim of injury to a particular

item of property and its location are relevant to determining where the plaintiff’s RICO injury was suffered, then the Court should still conclude that where

an intangible judgment, award, or debt is in issue, a

civil RICO plaintiff suffers an economic injury at his

domicile. As a result, a foreign-domiciled plaintiff (like

Smagin in this case) has no private right to sue in that

context.

A. As is clear, the species of injury at issue here—

a plaintiff allegedly thwarted in his efforts to collect

on a judgment—corroborates the conclusion flowing

more generally from the text and history of Section 1964(c): such a plaintiff complains of an economic

injury, which (to the extent it is cognizable under

RICO) is suffered by the plaintiff at his domicile.

On the facts alleged here, Respondent Smagin

complains only that defendants deprived him of his

collection rights on an arbitral award entered in England and then rendered into both a Liechtenstein

judgment and a U.S. judgment. J.A. 5a; see also J.A.

79a-80a (alleging that defendants’ actions “prevent[ed], hinder[ed], and delay[ed] Plaintiff’s ability to

collect on the assets of the Alpha Trust” and further

asserting, by way of a quotation to an order of the Central District of California in the confirmation proceeding, that such collection was “pursuant to the current

and forthcoming orders of the Liechtenstein Court or

th[e] [California federal] Court”) (emphasis added).

The only injury in issue, therefore, is non-payment—

i.e., loss of cash. Restatement (Second) of Judgments

§ 18 cmt. c (1982) (“A judgment for the plaintiff awarding him a sum of money creates a debt in that amount

in his favor.”); Blodgett v. Silberman, 277 U.S. 1, 12

(1928) (right to receive payment is “a chose in action,

and an intangible”).

Equally clear, tortious non-payment of a debt, if actionable, causes an “economic injury” upon the

wronged person—the wrong is the tortious “deprivation” of an “entitlement to collect.” See Pasquantino v.

United States, 544 U.S. 349, 355-356 (2005) (discussing wire-fraud statute). Indeed, the Court has explained, when a defendant carries out a “scheme to deprive a victim of his entitlement to money” or other

right to be paid under a debt, such as by “conceal[ing]

his assets when settling debts with his creditors,” that

defendant’s (fraudulent) conduct “inflict[s] an economic injury” cognizable under the common law of

torts. Id. at 356.

In this context, Justice Holmes’s observations construing the Sherman Act remain fully apt to describe

Smagin’s claimed injury: As Smagin’s complaint relates to his overall wealth only, “[h]e would not” and

cannot “be said to have suffered an injury” in the

United States “unless the harm fell upon some object

more definite and less ideal than his total wealth.”

Chattanooga Foundry, 203 U.S. at 399. But that has

not occurred. Smagin claims a diminution of his overall wealth due to non-payment of a debt, an injury that

affects Smagin’s wallet. Had Smagin successfully collected on the award or any judgment, the money

would have accrued to him in Russia, and not where

the judgment is or was collected upon. Russia is also

where the loss is now felt.

So, to the extent a plaintiff’s claim of injury “to”

(rather than “in”) his property is relevant, at least

when the claimed property injury is the inability to

collect an award, judgment, or other debt, the injury

is felt by the plaintiff alone at the plaintiff’s domicile.

B. As a result, if the Court considers that a plaintiff’s claim of injury “to” property is relevant, then the

conclusion still follows, in accord with Section 1964(c)’s text and history, that Smagin is complaining about an economic injury felt at his domicile.

The common-law conflict rules cited above continue to

instruct that the plaintiff’s injury is felt at the plaintiff’s domicile (see Part I.B, supra), as does the common-sense notion that the injury is to the plaintiff’s

overall wealth. There has been no concrete injury to

any particular property—just the non-receipt of

money—and so there is no occasion to consider where

the plaintiff’s property is located.9

In any event, to the extent the location of property

is deemed relevant (as the court below considered, see

J.A. 10a), Smagin’s claim, which concerns intangible

property, is still barred. See Armada, 885 F.3d at

1094-1095 (“[A] party experiences or sustains injuries

to its intangible property at its residence.”). That is

because the authorities governing the location of intangible property point to the plaintiff’s domicile, par-

9 Smagin does not plead that he has been injured in his “busi-

ness,” or that he has any (let alone significant) business activities

in the United States.

ticularly when the claimed injury is an inability to collect on a judgment or debt. The Court need look no

further than Joseph Story’s synthesis when considering the topic: “the rule is, that personal property, including debts, has no locality, but follows * * * the law

of the domicil of the owner.” Story § 410; see also id.

§ 376 (describing same rule as the “general doctrine”).10

Given that intangible property has no situs, many

decisions of this Court have embraced the doctrine articulated by Story and thus adhered to “a variation of

the old concept of ‘mobilia sequuntur personam,’ according to which intangible personal property is found

at the domicile of its owner.” See Texas v. New Jersey,

379 U.S. 674, 680-681 & n.10 (1965) (“[T]he right and

power to escheat [a] debt should be accorded to the

State of the creditor’s last known address.”). As this

Court explained in 1928, “the maxim ‘mobilia sequunter [sic] personam’”—generally locating intangible property at the domicile of its owner—“is so fixed

in the common law of this country and England, in so

far as it relates to intangible property, including

choses in action, * * * and is so fully sustained by cases

10 What is now understood as “intangible property” is encom-

passed by the common-law concept of “personal property.” See

Story § 375 (providing definition). See also Gilmore, Security Interests in Personal Property 600 (“[M]ovable or personal property

is looked on, in law, as having no situs of location of its own but

as following the law of the owner’s domicile.”).

in this and other courts, that it must be treated as settled.” Blodgett, 277 U.S. at 9-10 (“[I]ntangible personalty has * * * a situs at the domicile of its owner.”).11

As regards debts in particular, the Court observed

even before the Sherman Act’s enactment that a “debt,

although a species of intangible property, may, for

purposes of taxation, if not for all others, be regarded

as situated at the domicile of the creditor.” Kirtland v.

Hotchkiss, 100 U.S. 491, 498 (1879) (“The debt is property in [the creditor’s] hands constituting a portion of

his wealth.”). This is a particularly apt analogy given

the allegation of injury here. Taxation is imposed on

income at the location where the creditor is to be paid.

Smagin’s injury is the very converse of this: he claims

he did not receive a sum of money on account of a debt.

So, as the common law instructs, the asset is located

where the creditor is domiciled, not (as the Ninth Circuit believed) where the debtor is located.

Indeed “a debt is property of the creditor, not of the

debtor,” Texas, 379 U.S. at 681, and, in this case,

11 See also Miller Bros. Co. v. Maryland, 347 U.S. 340, 345 n.9

(1954) (listing “cases deal[ing] with intangible property and apply[ing] the maxim mobilia sequuntur personam”); Curry v.

McCanless, 307 U.S. 357, 365-366 (1939) (intangibles “are but relationships between persons, natural or corporate,” and “as

sources of actual or potential wealth * * * they cannot be dissociated from the persons from whose relationships they are derived”); Aaron D. Simowitz, Siting Intangibles, 48 N.Y.U. J. Int’l

L. & Pol. 259, 272-279 (2015) (discussing the development of the

mobilia rule between the nineteenth and early twentieth centuries).

Smagin remains in control of the London Award and

any judgments that might be based on it. It makes no

sense to consider that the London Award (and hence

the injury) is located wherever Smagin happens to

have the London Award recognized as a judgment,

particularly because Smagin may have it recognized

with ease almost anywhere in the world, see pp. 5354, infra. California and Liechtenstein courts have already recognized the London Award, and Smagin can

pursue enforcement proceedings in these and many

other places. It makes all the sense in the world, and

accords with the common law, to conclude that when

a creditor is not paid on a debt, he is injured at his

domicile. Chicago, R. I. & P. R. Co. v. Sturm, 174 U.S.

710, 717 (1899) (“[D]ebts, as such, have no locus or situs, but accompany the creditor everywhere, and authorize a demand upon the debtor everywhere.”).12

12 For enforcement purposes, “it has been held that a State may

allow an unpaid creditor to garnish a debt owing to his debtor

wherever the person owing that debt is found.” Texas, 379 U.S.

at 681 n.12 (citing Harris v. Balk, 198 U.S. 215 (1905)). This reflects that the “unpaid creditor,” when proceeding directly

against his debtor’s debtor (the “garnishee”), may proceed

against him at the source and assert jurisdiction where the garnishee is located. That has nothing to do with where the creditor

is injured. See Harris, 198 U.S. at 222 (“[I]f the garnishee be

found in that state, and process be personally served upon him

therein, we think the court thereby acquires jurisdiction over

him, and can garnish the debt due from him to the debtor of the

plaintiff, and condemn it, provided the garnishee could himself

be sued by his creditor in that state.”); see also Shaffer v. Heitner,

Although RICO’s private-remedial provision

points to the plaintiff’s domicile without regard to the

specific property that the plaintiff may own and its location, in the alternative the same rule governs when

the plaintiff claims injury to intangible property—

and, in particular, awards, judgments, or debts. There

again, the injury being nonpayment of a sum due to

the plaintiff, the plaintiff suffers the injury at his domicile (both because the plaintiff’s loss is economic and

because the plaintiff’s property, which is a judgment,

is best considered as situated at his domicile). The foreign-domiciled plaintiff, therefore, lacks a basis to proceed with a private RICO suit under Section 1964(c).

III.

A Bright-Line Plaintiff-Domicile Rule Is Sensible And Administrable

A. A Plaintiff-Domicile Rule Adheres To The

Court’s Preference For Bright-Line Rules

And The Doctrine Of Prescriptive Comity

A bright-line, plaintiff-domicile rule adheres to

this Court’s preference for clear rules in matters affecting the foreign relations of the United States, and

the doctrine of prescriptive comity.

433 U.S. 186, 209 (1977) (“[I]n cases such as Harris and this one,

the only role played by the property is to provide the basis for

bringing the defendant into court.”).

Recent decisions of this Court affecting the foreign

affairs of the United States indeed follow the trend of

applying bright-line rules. E.g., ZF Auto. US, Inc. v.

Luxshare, Ltd., 142 S. Ct. 2078 (2022); Daimler AG v.

Bauman, 571 U.S. 117 (2014). The Court’s extraterritoriality decisions are no exception. See, e.g., Nestlé

USA, Inc. v. Doe, 141 S. Ct. 1931, 1933 (2021); RJR

Nabisco, 579 U.S. at 340. And it makes good sense to

apply a clear, bright-line rule here, not just because

“[s]imple * * * rules * * * promote greater predictability.” Hertz Corp v. Friend, 559 U.S. 77, 94-95 (2010);

see also Antonin Scalia, The Rule of Law as a Law of

Rules, 56 U. Chi. L. Rev. 1175 (1989).

A bright-line, domicile-of-the-plaintiff rule also

aligns with the doctrine of prescriptive comity, which

addresses “the respect sovereign nations afford each

other by limiting the reach of their laws.” Hartford

Fire Ins. Co. v. California, 509 U.S. 764, 817 (1993)

(Scalia, J., dissenting); see also WesternGeco LLC v.

ION Geophysical Corp., 138 S. Ct. 2129, 2143 (2018)

(Gorsuch, J., dissenting) (“[P]rinciples of comity counsel against an interpretation of our patent laws that

would interfere so dramatically with the rights of

other nations to regulate their own economies.”).13

13 Under the doctrine of prescriptive comity, which operates as a

rule of statutory construction separate from the presumption

against extraterritoriality, “this Court ordinarily construes am-

Consider the Court’s decision in F. Hoffmann-La

Roche Ltd. v. Empagran S.A., 542 U.S. 155, 165

(2004), where the Court invoked prescriptive comity

to categorically carve out of the reach of the antitrust

laws injuries suffered abroad independently of any injury suffered here. The Court was interpreting the

Foreign Trade Antitrust Improvements Act (FTAIA),

15 U.S.C. 6a, an act that refined the geographic scope

of U.S. antitrust law. The Court considered the text of

the statute, policy considerations underlying it, and

the extent to which “America’s antitrust policies,” specifically the treble-damages remedy embodied in

them, “commend[ed] themselves to other nations.” 542

U.S. at 163-169. Concluding that proceeding “case by

case” would be “too complex to prove workable,” id. at

168, the Court held that the Sherman Act’s private

right of action, as limited by the FTAIA, categorically

does not apply to “independent” foreign injuries. Id. at

165-166, 175.14

The Court’s reasoning in Empagran and that decision’s application of the doctrine of prescriptive comity

further support a bright-line domicile-of-the-plaintiff

biguous statutes to avoid unreasonable interference with the sovereign authority of other nations.” F. Hoffmann-La Roche Ltd. v.

Empagran S.A., 542 U.S. 155, 164 (2004) (collecting cases); see

also Restatement (Fourth) of Foreign Relations Law § 405 (2018).

14 The Court was addressing “anticompetitive price-fixing activ-

ity that is in significant part foreign, that causes some domestic

antitrust injury, and that independently causes separate foreign

injury.” Id. at 158.

rule in this case. Empagran limited the FTAIA’s application in recognition of the fact that, while nations

may agree that certain conduct should be regulated,

“they disagree dramatically about appropriate remedies” such as “American private treble-damages remedies”—basically the same remedy that Respondent

now seeks to deploy in furtherance of his award-enforcement efforts. 542 U.S. at 167. The Court drew a

sharp distinction between government enforcement of

the federal antitrust laws, and private enforcement

through a private cause of action incentivized by a treble-damages bounty. Id. at 170-171. It emphasized

that the United States should not impose its own

views of enforcement-by-private-action on foreign jurisdictions where a foreign injury is felt. Id. at 166.

And, in that light, it limited the remedy by bright-line

rule.

Much the same may be said here. This case concerns the enforcement of RICO by way of a private

remedy where a foreign-domiciled plaintiff is injured

in his overall wealth, and leaves to the side government enforcement of RICO’s primary obligations that,

per RJR Nabisco, will apply to some extraterritorial

conduct. The primary means of enforcing RICO’s proscriptions—by way of criminal prosecution and civil

enforcement proceedings brought by the Attorney

General—remain intact. Meanwhile, as regards private treble-damages suits, a bright-line domicile-ofthe-plaintiff rule reflects deference to other nations in

accord with principles of comity. Foreign jurisdictions

remain fully able to adopt civil remedies like RICO’s

private right of action. In the meantime, foreign-domiciled plaintiffs are not dragooned into service as private attorneys general for enforcement of U.S. law.

See Agency Holding, 483 U.S. at 151 (“Both RICO and

the Clayton Act * * * bring to bear the pressure of ‘private attorneys general’ on a serious national problem

for which public prosecutorial resources are deemed

inadequate.”); Rotella v. Wood, 528 U.S. 549, 557

(2000) (“The object of civil RICO is * * * not merely to

compensate victims but to turn them into prosecutors

* * * dedicated to eliminating racketeering activity.”).

Empagran’s rejection of a multifactor balancing

test that would have required “case-by-case” adjudications is also instructive here. Consider the experience

of the Courts of Appeals following RJR Nabisco that

applied a multi-factor test when considering the question this case presents. The court below purported to

apply the Third Circuit’s multi-part balancing test

first devised in Humphrey v. GlaxoSmithKline PLC,

905 F.3d 694 (3d Cir. 2018). But the court below

reached precisely the opposite result as the Third Circuit on indistinguishable facts. Both the decision below and the Third Circuit’s Cavusoglu case concerned

a foreign-located plaintiff alleging interference with a

U.S. judgment, and on those facts the two circuits

reached opposite conclusions. Compare J.A. 10a (domestic injury), with Cevdet Aksut Ve Ogullari Koll.Sti

v. Cavusoglu, 756 F. App’x 119, 123-124 (3d Cir. 2018)

(foreign injury); cf. Agency Holding, 483 U.S. at 150

(“[A] uniform statute of limitations [for civil RICO] is

required to avoid intolerable ‘uncertainty and timeconsuming litigation.’”) (citation omitted).

Respondent will no doubt argue that some domestic activity or property ought to be enough, “[b]ut the

presumption against extraterritorial application

would be a craven watchdog indeed if it retreated to

its kennel whenever some domestic activity is involved

in the case.” Morrison, 561 U.S. at 266 (emphasis in

original). The Court already held in RJR Nabisco that

the private civil remedy in RICO covers only domestic

injuries, and Congress remains free to revise Section 1964(c)’s geographic scope if it desires. Such “fine

tuning of legislation” is “better left to Congress.” Spector v. Norwegian Cruise Lines Ltd., 545 U.S. 119, 158

(2005) (Scalia, J., dissenting). “To attempt it through

the process of case-by-case adjudication is a recipe for

endless litigation and confusion.” Ibid.

B. RICO Was Not Enacted To Function As A

Global Arbitral-Award Enforcement Tool

There is no reason to believe that, when Congress

enacted RICO, it intended to make the United States

a “Shangri–La of [enforcement] litigation for lawyers

representing those allegedly cheated” of payments

due on foreign arbitration awards and judgments.

Morrison, 561 U.S. at 270. Yet, that is what a judgment affirming the decision below will condone.

Owing to multiple international treaties to which

the United States is a party,15 arbitral awards entered

abroad may easily be converted into judgments here.

Commodities & Mins. Enter. Ltd. v. CVG Ferominera

Orinoco, C.A., 49 F.4th 802, 814 (2d Cir. 2022) (“[C]onfirmation of an arbitration award is a summary proceeding that merely makes what is already a final arbitration award a judgment of the court.”) (cleaned up;

citation omitted). Similarly, U.S. jurisdictions permit

swift recognition of a foreign-country judgment, some

without requiring any jurisdictional “nexus” between

the judgment and the defendant or its property—in

other words, a foreign-judgment creditor may have little difficulty turning a foreign-court judgment into a

U.S. judgment, even if the parties have no connection

to the United States. See Linda J. Silberman & Aaron

D. Simowitz, Recognition and Enforcement of Foreign

Judgments and Awards: What Hath Daimler

Wrought?, 91 N.Y.U. L. Rev. 344, 352-359 (2016).16

15 See 9 U.S.C. 201-208 (implementing New York Convention);

9 U.S.C. 301-07 (implementing Inter-American Convention on

International Commercial Arbitration, Jan. 30, 1975, 1438

U.N.T.S. 245); 22 U.S.C. 1650-1650a (implementing Convention

on the Settlement of Investment Disputes between States and

Nationals of Other States, March 18, 1965, 575 U.N.T.S. 159).

16 See also, e.g., Lenchyshyn v. Pelko Elec., Inc., 723 N.Y.S.2d 285,

286 (App. Div. 2001) (“We hold that the judgment debtor need

not be subject to personal jurisdiction in New York before the

judgment creditor may obtain recognition and enforcement of the

Recognition of a foreign judgment or award here

should not be enough to permit the foreign judgmentor award-creditor to claim injury under RICO for nonpayment. Said differently, whether a foreign plaintiff

suffered a RICO injury should not turn on the possibility of enforcing foreign arbitral awards (or foreign

court judgments) in U.S. courts. The plaintiff may be

permitted to obtain discovery in support of enforcement of a foreign award or judgment, and may have a

panoply of other tools under state law to assist it in

collecting on an arbitral-award-turned-judgment (or

on a foreign judgment recognized here).17 But that

does not mean the failure to pay the foreign arbitral

award or judgment, once converted into a U.S. judgment, is transformed into an injury giving rise to an

action for treble damages under RICO, even if the failure to pay may be accompanied by allegedly unlawful

activities.

Quite simply, it makes no sense to conclude that

Congress intended to arm foreign-domiciled awardcreditors with treble-damages private remedies upon

their having a foreign arbitral award recognized by a

foreign country money judgment.”); Haaksman v. Diamond Offshore (Berm.), Ltd., 260 S.W.3d 476, 480-481 (Tex. App. 2008) (no

property and no constitutional exercise of in personam jurisdiction required to recognize foreign-money judgment).

17 Fed. R. Civ. P. 69(a)(2); e.g., N.Y. C.P.L.R. § 5223 (McKinney

2023); see also Republic of Argentina v. NML Cap., Ltd., 573 U.S.

134, 138 (2014) (“The rules governing discovery in post-judgment

execution proceedings are quite permissive.”).

U.S. court, and upon the making of allegations in a

complaint stating that the judgment-debtor, in concert with alleged sham entities created by him to “hide

assets,” misrepresented the source of assets, and did

so by using U.S. wires (which is standard-fare for U.S.

dollar transactions). The RICO private remedy is

meant to redress economic harm felt by reason of the

criminal infiltration of legitimate enterprises, not allegedly fraudulent nonpayment of a judgment, or allegedly fraudulent conveyances.

C. Foreign-Domiciled Plaintiffs Retain Other

Remedies

A domicile-of-the-plaintiff rule for determining

where the Section 1964(c) injury is felt does not mean

foreign plaintiffs are without any remedy or protection for (intangible) property—just that they may not

invoke RICO’s treble-damages private right of action,

at least absent further direction by Congress.

Of course, as earlier noted, nothing stands in the

way of the foreign jurisdiction where the plaintiff is

domiciled to itself enact a regime like RICO. But that

should be up to the foreign jurisdiction. Cf. Empagran,

542 U.S. at 168 (citing the briefs of foreign government urging that “a decision permitting independently injured foreign plaintiffs to pursue private

treble-damages remedies would undermine foreign

nations’ own antitrust enforcement policies”); Alabama Great, 11 So. at 807 (“[F]or an injury inflicted

elsewhere than in Alabama our statute gives no right

of recovery, and the aggrieved party must look to the

local law to ascertain what his rights are.”).

In any event, a foreign plaintiff conducting substantial business activities in the United States and

injured by a violation of RICO will generally have a

basis to proceed under RICO, as it will generally conduct business here through a U.S.-incorporated entity

that will itself suffer a “domestic” injury. See, e.g., Internal Revenue Serv., Foreign-Controlled Domestic

Corporations, Tax Year 2018 (2022), <https://tinyurl.com/IRSStatistics> (reporting nearly “130,000

returns of active domestic corporations controlled by a

foreign entity” for Tax Year 2018). It may also be that,

in certain circumstances, a plaintiff conducting substantial U.S. business on an unincorporated basis will

be able to proceed here as well.18

And, beyond RICO, the foreign-domiciled plaintiff

will always be able to press claims in U.S. court sounding in the common law to remedy injuries to their

property rights, including for fraud, fraudulent conveyance, conversion, trespass, trespass to chattels, et

cetera. Foreign-domiciled plaintiffs, in short, retain

ample remedies to protect their rights, but they will

not be private attorneys general enforcing RICO.

18 In that regard, compare Perkins v. Benguet Consol. Mining Co.,

342 U.S. 437, 448-449 (1952) (foreign corporation constitutionally subject to general personal jurisdiction in certain circumstances); see also Daimler, 571 U.S. at 139 n.19.

CONCLUSION

The judgment of the Ninth Circuit should be reversed, with direction to remand to the district court

for entry of judgment in defendants’ favor.

Respectfully submitted,

MICHAEL C. TU

Counsel of Record

PETER J. BRODY

COOLEY LLP

355 South Grand Ave.

Suite 900

Los Angeles, CA 90071

(213) 561-3250

mctu@cooley.com

VINCENT LEVY

Counsel of Record

GREGORY DUBINSKY

KEVIN D. BENISH

BRIAN T. GOLDMAN

HOLWELL SHUSTER

& GOLDBERG LLP

425 Lexington Avenue

New York, NY 10017

(646) 837-5120

vlevy@hsgllp.com

Counsel for Petitioner

CMB Monaco, fka

Compagnie Monégasque de Banque

Counsel for Petitioner

Ashot Yegiazaryan,

aka Ashot

Egiazaryan

February 27, 2023

APPENDIX

TABLE OF CONTENTS

Page

APPENDIX A — RELEVANT STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 1

A STATUTORY

Appendix A —Appendix

RELEVANT

PROVISIONS

18 U.S.C.A. § 1961

Effective: June 25, 2022

As used in this chapter-(1) “racketeering activity” means (A) any act or

threat involving murder, kidnapping, gambling,

arson, robbery, bribery, extortion, dealing

in obscene matter, or dealing in a controlled

substance or listed chemical (as defined in

section 102 of the Controlled Substances

Act), which is chargeable under State law and

punishable by imprisonment for more than one

year; (B) any act which is indictable under any

of the following provisions of title 18, United

States Code: Section 201 (relating to bribery),

section 224 (relating to sports bribery), sections

471, 472, and 473 (relating to counterfeiting),

section 659 (relating to theft from interstate

shipment) if the act indictable under section

659 is felonious, section 664 (relating to

embezzlement from pension and welfare funds),

sections 891-894 (relating to extortionate

credit transactions), section 932 (relating to

straw purchasing), section 933 (relating to

trafficking in firearms), section 1028 (relating

to fraud and related activity in connection with

identification documents), section 1029 (relating

Appendix A

to fraud and related activity in connection with

access devices), section 1084 (relating to the

transmission of gambling information), section

1341 (relating to mail fraud), section 1343

(relating to wire fraud), section 1344 (relating

to financial institution fraud), section 1351

(relating to fraud in foreign labor contracting),

section 1425 (relating to the procurement

of citizenship or nationalization unlawfully),

section 1426 (relating to the reproduction of

naturalization or citizenship papers), section

1427 (relating to the sale of naturalization or

citizenship papers), sections 1461-1465 (relating

to obscene matter), section 1503 (relating to

obstruction of justice), section 1510 (relating to

obstruction of criminal investigations), section

1511 (relating to the obstruction of State or

local law enforcement), section 1512 (relating

to tampering with a witness, victim, or an

informant), section 1513 (relating to retaliating

against a witness, victim, or an informant),

section 1542 (relating to false statement in

application and use of passport), section 1543

(relating to forgery or false use of passport),

section 1544 (relating to misuse of passport),

section 1546 (relating to fraud and misuse of

visas, permits, and other documents), sections

1581-1592 (relating to peonage, slavery, and

traffickingin persons).,1 sections 1831 and 1832

(relating to economic espionage and theft of trade

1. So in original.

Appendix A

secrets), section 1951 (relating to interference

with commerce, robbery, or extortion), section

1952 (relating to racketeering), section 1953

(relating to interstate transportation of

wagering paraphernalia), section 1954 (relating

to unlawful welfare fund payments), section

1955 (relating to the prohibition of illegal

gambling businesses), section 1956 (relating

to the laundering of monetary instruments),

section 1957 (relating to engaging in monetary

transactions in property derived from specified

unlawful activity), section 1958 (relating

to use of interstate commerce facilities in

the commission of murder-for-hire), section

1960 (relating to illegal money transmitters),

sections 2251, 2251A, 2252, and 2260 (relating

to sexual exploitation of children), sections 2312

and 2313 (relating to interstate transportation

of stolen motor vehicles), sections 2314 and 2315

(relating to interstate transportation of stolen

property), section 2318 (relating to trafficking

in counterfeit labels for phonorecords, computer

programs or computer program documentation

or packaging and copies of motion pictures or

other audiovisual works), section 2319 (relating

to criminal infringement of a copyright),

section 2319A (relating to unauthorized fixation

of and trafficking in sound recordings and

music videos of live musical performances),

section 2320 (relating to trafficking in goods

or services bearing counterfeit marks), section

2321 (relating to trafficking in certain motor

Appendix A

vehicles or motor vehicle parts), sections 23412346 (relating to trafficking in contraband

cigarettes), sections 2421-24 (relating to white

slave traffic), sections 175-178 (relating to

biological weapons), sections 229-229F (relating

to chemical weapons), section 831 (relating to

nuclear materials), (C) any act which is indictable

under title 29, United States Code, section 186

(dealing with restrictions on payments and

loans to labor organizations) or section 501(c)

(relating to embezzlement from union funds),

(D) any offense involving fraud connected with

a case under title 11 (except a case under section

157 of this title), fraud in the sale of securities,

or the felonious manufacture, importation,

receiving, concealment, buying, selling, or

otherwise dealing in a controlled substance

or listed chemical (as defined in section 102

of the Controlled Substances Act), punishable

under any law of the United States, (E) any

act which is indictable under the Currency and

Foreign Transactions Reporting Act, (F) any

act which is indictable under the Immigration

and Nationality Act, section 274 (relating to

bringing in and harboring certain aliens),

section 277 (relating to aiding or assisting

certain aliens to enter the United States), or

section 278 (relating to importation of alien for

immoral purpose) if the act indictable under

such section of such Act was committed for the

purpose of financial gain, or (G) any act that is

indictable under any provision listed in section

2332b(g)(5)(B);

Appendix A

(2) “State” means any State of the United States,

the District of Columbia, the Commonwealth of

Puerto Rico, any territory or possession of the

United States, any political subdivision, or any

department, agency, or instrumentality thereof;

(3) “person” includes any individual or entity

capable of holding a legal or beneficial interest

in property;

(4) “enterprise” includes any individual,

partnership, corporation, association, or

other legal entity, and any union or group of

individuals associated in fact although not a

legal entity;

(5) “pattern of racketeering activity” requires

at least two acts of racketeering activity, one

of which occurred after the effective date of

this chapter and the last of which occurred

within ten years (excluding any period of

imprisonment) after the commission of a prior

act of racketeering activity;

(6) “unlawful debt” means a debt (A) incurred

or contracted in gambling activity which was

in violation of the law of the United States, a

State or political subdivision thereof, or which

is unenforceable under State or Federal law

in whole or in part as to principal or interest

because of the laws relating to usury, and

(B) which was incurred in connection with

Appendix A

the business of gambling in violation of the

law of the United States, a State or political

subdivision thereof, or the business of lending

money or a thing of value at a rate usurious

under State or Federal law, where the usurious

rate is at least twice the enforceable rate;

(7) “racketeering investigator” means any

attorney or investigator so designated by the

Attorney General and charged with the duty of

enforcing or carrying into effect this chapter;

(8) “racketeering investigation” means any

inqui r y conducted by any racketeer ing

investigator for the purpose of ascertaining

whether any person has been involved in any

violation of this chapter or of any final order,

judgment, or decree of any court of the United

States, duly entered in any case or proceeding

arising under this chapter;

(9) “documentary material” includes any book,

paper, document, record, recording, or other

material; and

(10) “Attorney General” includes the Attorney

General of the United States, the Deputy

Attorney General of the United States, the

Associate Attorney General of the United

States, any Assistant Attorney General of

the United States, or any employee of the

Department of Justice or any employee of any

Appendix A

department or agency of the United States so

designated by the Attorney General to carry out

the powers conferred on the Attorney General

by this chapter. Any department or agency so

designated may use in investigations authorized

by this chapter either the investigative

provisions of this chapter or the investigative

power of such department or agency otherwise

conferred by law.

18 U.S.C.A. § 1962

§ 1962. Prohibited activities

(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 participated 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, 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

Appendix A

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

racketeering activity or through collection of an unlawful

debt to acquire or maintain, directly or indirectly, any

interest in or control of any enterprise which is engaged

in, or the activities of which affect, interstate or foreign

commerce.

associated with any enterprise engaged in, or the activities

of which affect, interstate or foreign commerce, to conduct

or participate, directly or indirectly, 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.

18 U.S.C.A. § 1963

§ 1963. Criminal penalties

Effective: December 1, 2009

(a) Whoever violates any provision of section 1962 of this

chapter shall be fined under this title or imprisoned not

more than 20 years (or for life if the violation is based on

a racketeering activity for which the maximum penalty

Appendix A

includes life imprisonment), or both, and shall forfeit to the

United States, irrespective of any provision of State law-(1) any interest the person has acquired or

maintained in violation of section 1962;

(2) any-(A) interest in;

(B) security of;

(D) property or contractual right

of any kind affording a source of

influence over;

any enterprise which the person has

established, operated, controlled,

conducted, or participated in the

conduct of, in violation of section 1962;

and

(3) any property constituting, or derived from,

any proceeds which the person obtained,

directly or indirectly, from racketeering

activity or unlawful debt collection in violation

of section 1962.

The court, in imposing sentence on such person shall order,

in addition to any other sentence imposed pursuant to

Appendix A

this section, that the person forfeit to the United States

all property described in this subsection. In lieu of a fine

otherwise authorized by this section, a defendant who

derives profits or other proceeds from an offense may

be fined not more than twice the gross profits or other

proceeds.

(b) Property subject to criminal forfeiture under this

section includes-(1) real property, including things growing on,

affixed to, and found in land; and

(2) tangible and intangible personal property,

including rights, privileges, interests, claims,

and securities.

in subsection (a) vests in the United States upon the

commission of the act giving rise to forfeiture under

this section. Any such property that is subsequently

transferred to a person other than the defendant may be

the subject of a special verdict of forfeiture and thereafter

shall be ordered forfeited to the United States, unless

the transferee establishes in a hearing pursuant to

subsection (l) that he is a bona fide purchaser for value of

such property who at the time of purchase was reasonably

without cause to believe that the property was subject to

forfeiture under this section.

(d)(1) Upon application of the United States, the court

may enter a restraining order or injunction, require the

Appendix A

execution of a satisfactory performance bond, or take

any other action to preserve the availability of property

described in subsection (a) for forfeiture under this

section-(A) upon the filing of an indictment or information

charging a violation of section 1962 of this

chapter and alleging thatthe property with

respect to which the order is sought would, in

the event of conviction, be subject to forfeiture

under this section; or

(B) prior to the filing of such an indictment

or information, if, after notice to persons

appearing to have an interest in the property

and opportunity for a hearing, the court

determines that-(i) there is a substantial probability

that the United States will prevail on

the issue of forfeiture and that failure

to enter the order will result in the

property being destroyed, removed

from the jurisdiction of the court,

or otherwise made unavailable for

forfeiture; and

(ii) the need to preserve the availability

of the property through the entry of

the requested order outweighs the

hardship on any party against whom

the order is to be entered:

Appendix A

Provided, however, That an order entered pursuant to

subparagraph (B) shall be effective for not more than

ninety days, unless extended by the court for good cause

shown or unless an indictment or information described

in subparagraph (A) has been filed.

(2) A temporary restraining order under this subsection

may be entered upon application of the United States

without notice or opportunity for a hearing when an

information or indictment has not yet been filed with

respect to the property, if the United States demonstrates

that there is probable cause to believe that the property

with respect to which the order is sought would, in

the event of conviction, be subject to forfeiture under

this section and that provision of notice will jeopardize

the availability of the property for forfeiture. Such a

temporary order shall expire not more than fourteen days

after the date on which it is entered, unless extended for

good cause shown or unless the party against whom it is

entered consents to an extension for a longer period. A

hearing requested concerning an order entered under this

paragraph shall be held at the earliest possible time, and

prior to the expiration of the temporary order.

(3) The court may receive and consider, at a hearing held

pursuant to this subsection, evidence and information

that would be inadmissible under the Federal Rules of

Evidence.

(e) Upon conviction of a person under this section, the

court shall enter a judgment of forfeiture of the property

to the United States and shall also authorize the Attorney

Appendix A

General to seize all property ordered forfeited upon such

terms and conditions as the court shall deem proper.

Following the entry of an order declaring the property

forfeited, the court may, upon application of the United

States, enter such appropriate restraining orders

or injunctions, require the execution of satisfactory

performance bonds, appoint receivers, conservators,

appraisers, accountants, or trustees, or take any other

action to protect the interest of the United States in the

property ordered forfeited. Any income accruing to, or

derived from, an enterprise or an interest in an enterprise

which has been ordered forfeited under this section may

be used to offset ordinary and necessary expenses to

the enterprise which are required by law, or which are

necessary to protect the interests of the United States

or third parties.

(f) Following the seizure of property ordered forfeited

under this section, the Attorney General shall direct

the disposition of the property by sale or any other

commercially feasible means, making due provision for

the rights of any innocent persons. Any property right or

interest not exercisable by, or transferable for value to,

the United States shall expire and shall not revert to the

defendant, nor shall the defendant or any person acting

in concert with or on behalf of the defendant be eligible

to purchase forfeited property at any sale held by the

United States. Upon application of a person, other than the

defendant or a person acting in concert with or on behalf

of the defendant, the court may restrain or stay the sale or

disposition of the property pending the conclusion of any

appeal of the criminal case giving rise to the forfeiture, if

Appendix A

the applicant demonstrates that proceeding with the sale

or disposition of the property will result in irreparable

injury, harm or loss to him. Notwithstanding 31 U.S.C.

3302(b), the proceeds of any sale or other disposition of

property forfeited under this section and any moneys

forfeited shall be used to pay all proper expenses for the

forfeiture and the sale, including expenses of seizure,

maintenance and custody of the property pending its

disposition, advertising and court costs. The Attorney

General shall deposit in the Treasury any amounts of

such proceeds or moneys remaining after the payment

of such expenses.

(g) With respect to property ordered forfeited under this

section, the Attorney General is authorized to-(1) grant petitions for mitigation or remission of

forfeiture, restore forfeited property to victims

of a violation of this chapter, or take any other

action to protect the rights of innocent persons

which is in the interest of justice and which

is not inconsistent with the provisions of this

chapter;

(2) compromise claims arising under this

section;

(3) award compensation to persons providing

information resulting in a forfeiture under this

section;

Appendix A

(4) direct the disposition by the United States

of all property ordered forfeited under this

section by public sale or any other commercially

feasible means, making due provision for the

rights of innocent persons; and

(5) take appropriate measures necessary to

safeguard and maintain property ordered

forfeited under this section pending its

disposition.

(h) The Attorney General may promulgate regulations

with respect to-(1) making reasonable efforts to provide notice

to persons who may have an interest in property

ordered forfeited under this section;

(2) granting petitions for remission or mitigation

of forfeiture;

(3) the restitution of property to victims of an

offense petitioning for remission or mitigation

of forfeiture under this chapter;

(4) the disposition by the United States of

forfeited property by public sale or other

commercially feasible means;

(5) the maintenance and safekeeping of any

property forfeited under this section pending

its disposition; and

Appendix A

(6) the compromise of claims arising under this

chapter.

Pending the promulgation of such regulations, all

provisions of law relating to the disposition of property,

or the proceeds from the sale thereof, or the remission

or mitigation of forfeitures for violation of the customs

laws, and the compromise of claims and the award of

compensation to informers in respect of such forfeitures

shall apply to forfeitures incurred, or alleged to have been

incurred, under the provisions of this section, insofar as

applicable and not inconsistent with the provisions hereof.

Such duties as are imposed upon the Customs Service or

any person with respect to the disposition of property

under the customs law shall be performed under this

chapter by the Attorney General.

(i) Except as provided in subsection (l), no party claiming

an interest in property subject to forfeiture under this

section may-(1) intervene in a trial or appeal of a criminal

case involving the forfeiture of such property

under this section; or

(2) commence an action at law or equity against

the United States concerning the validity of

his alleged interest in the property subsequent

to the filing of an indictment or information

alleg ing that the property is subject to

forfeiture under this section.

Appendix A

(j) The district courts of the United States shall have

jurisdiction to enter orders as provided in this section

without regard to the location of any property which may

be subject to forfeiture under this section or which has

been ordered forfeited under this section.

(k) In order to facilitate the identification or location of

property declared forfeited and to facilitate the disposition

of petitions for remission or mitigation of forfeiture, after

the entry of an order declaring property forfeited to the

United States the court may, upon application of the

United States, order that the testimony of any witness

relating to the property forfeited be taken by deposition

and that any designated book, paper, document, record,

recording, or other material not privileged be produced at

the same time and place, in the same manner as provided

for the taking of depositions under Rule 15 of the Federal

Rules of Criminal Procedure.

(l)(1) Following the entry of an order of forfeiture under

this section, the United States shall publish notice of

the order and of its intent to dispose of the property in

such manner as the Attorney General may direct. The

Government may also, to the extent practicable, provide

direct written notice to any person known to have alleged

an interest in the property that is the subject of the order

of forfeiture as a substitute for published notice as to those

persons so notified.

(2) Any person, other than the defendant, asserting a legal

interest in property which has been ordered forfeited to

the United States pursuant to this section may, within

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thirty days of the final publication of notice or his receipt

of notice under paragraph (1), whichever is earlier, petition

the court for a hearing to adjudicate the validity of his

alleged interest in the property. The hearing shall be held

before the court alone, without a jury.

(3) The petition shall be signed by the petitioner under

penalty of perjury and shall set forth the nature and

extent of the petitioner’s right, title, or interest in the

property, the time and circumstances of the petitioner’s

acquisition of the right, title, or interest in the property,

any additional facts supporting the petitioner’s claim, and

the relief sought.

(4) The hearing on the petition shall, to the extent

practicable and consistent with the interests of justice,

be held within thirty days of the filing of the petition. The

court may consolidate the hearing on the petition with a

hearing on any other petition filed by a person other than

the defendant under this subsection.

(5) At the hearing, the petitioner may testify and present

evidence and witnesses on his own behalf, and crossexamine witnesses who appear at the hearing. The United

States may present evidence and witnesses in rebuttal

and in defense of its claim to the property and crossexamine witnesses who appear at the hearing. In addition

to testimony and evidence presented at the hearing, the

court shall consider the relevant portions of the record of

the criminal case which resulted in the order of forfeiture.

Appendix A

(6) If, after the hearing, the court determines that the

petitioner has established by a preponderance of the

evidence that-(A) the petitioner has a legal right, title, or

interest in the property, and such right, title, or

interest renders the order of forfeiture invalid

in whole or in part because the right, title, or

interest was vested in the petitioner rather than

the defendant or was superior to any right, title,

or interest of the defendant at the time of the

commission of the acts which gave rise to the

forfeiture of the property under this section; or

(B) the petitioner is a bona fide purchaser

for value of the right, title, or interest in the

property and was at the time of purchase

reasonably without cause to believe that the

property was subject to forfeiture under this

section;

the court shall amend the order of forfeiture in accordance

with its determination.

(7) Following the court’s disposition of all petitions

filed under this subsection, or if no such petitions are

filed following the expiration of the period provided in

paragraph (2) for the filing of such petitions, the United

States shall have clear title to property that is the subject

of the order of forfeiture and may warrant good title to

any subsequent purchaser or transferee.

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(m) If any of the property described in subsection (a), as

a result of any act or omission of the defendant-(1) cannot be located upon the exercise of due

diligence;

(2) has been transferred or sold to, or deposited

with, a third party;

(3) has been placed beyond the jurisdiction of

the court;

(4) has been substantially diminished in value;

(5) has been commingled with other property

which cannot be divided without difficulty;

the court shall order the forfeiture of any other property

of the defendant up to the value of any property described

in paragraphs (1) through (5).

18 U.S.C.A. § 1964

§ 1964. Civil remedies

(a) The district courts of the United States shall have

jurisdiction to prevent and restrain violations of section

1962 of this chapter by issuing appropriate orders,

including, but not limited to: ordering any person to

divest himself of any interest, direct or indirect, in any

enterprise; imposing reasonable restrictions on the future

Appendix A

activities or investments of any person, including, but not

limited to, prohibiting any person from engaging in the

same type of endeavor as the enterprise engaged in, the

activities of which affect interstate or foreign commerce;

or ordering dissolution or reorganization of any enterprise,

making due provision for the rights of innocent persons.

(b) The Attorney General may institute proceedings

under this section. Pending final determination thereof,

the court may at any time enter such restraining orders

or prohibitions, or take such other actions, including the

acceptance of satisfactory performance bonds, as it shall

deem proper.

reason of a violation 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 criminally

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.

(d) A final judgment or decree rendered in favor of the

United States in any criminal proceeding brought by the

United States under this chapter shall estop the defendant

from denying the essential allegations of the criminal

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offense in any subsequent civil proceeding brought by

the United States.

18 U.S.C.A. § 1965

§ 1965. Venue and process

(a) Any civil action or proceeding under this chapter

against any person may be instituted in the district court

of the United States for any district in which such person

resides, is found, has an agent, or transacts his affairs.

(b) In any action under section 1964 of this chapter in any

district court of the United States in which it is shown that

the ends of justice require that other parties residing in

any other district be brought before the court, the court

may cause such parties to be summoned, and process for

that purpose may be served in any judicial district of the

United States by the marshal thereof.

by the United States under this chapter in the district

court of the United States for any judicial district,

subpenas issued by such court to compel the attendance

of witnesses may be served in any other judicial district,

except that in any civil action or proceeding no such

subpena shall be issued for service upon any individual

who resides in another district at a place more than one

hundred miles from the place at which such court is held

without approval given by a judge of such court upon a

showing of good cause.

Appendix A

(d) All other process in any action or proceeding under

this chapter may be served on any person in any judicial

district in which such person resides, is found, has an

agent, or transacts his affairs.

18 U.S.C.A. § 1966

§ 1966. Expedition of actions

In any civil action instituted under this chapter by the

United States in any district court of the United States,

the Attorney General may file with the clerk of such

court a certificate stating that in his opinion the case is

of general public importance. A copy of that certificate

shall be furnished immediately by such clerk to the chief

judge or in his absence to the presiding district judge of

the district in which such action is pending. Upon receipt

of such copy, such judge shall designate immediately a

judge of that district to hear and determine action.

18 U.S.C.A. § 1967

§ 1967. Evidence

In any proceeding ancillary to or in any civil action

instituted by the United States under this chapter the

proceedings may be open or closed to the public at the

discretion of the court after consideration of the rights of

affected persons.

Appendix A

18 U.S.C.A. § 1968

§ 1968. Civil investigative demand

(a) Whenever the Attorney General has reason to

believe that any person or enterprise may be in

possession, custody, or control of any documentary

materials relevant to a racketeering investigation,

he may, prior to the institution of a civil or criminal

proceeding thereon, issue in writing, and cause to be

served upon such person, a civil investigative demand

requiring such person to produce such material for

examination.

(b) Each such demand shall-(1) state the nature of the conduct constituting

the alleged racketeering violation which is

under investigation and the provision of law

applicable thereto;

(2) describe the class or classes of documentary

material produced thereunder w ith such

definiteness and certainty as to permit such

material to be fairly identified;

(3) state that the demand is returnable forthwith

or prescribe a return date which will provide

a reasonable period of time within which the

material so demanded may be assembled and

made available for inspection and copying or

reproduction; and

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(4) identify the custodian to whom such material

shall be made available.

to be unreasonable if contained in a subpena

duces tecum issued by a court of the United

States in aid of a grand jury investigation of

such alleged racketeering violation; or

(2) require the production of any documentary

evidence which would be privileged from

disclosure if demanded by a subpena duces

tecum issued by a court of the United States in

aid of a grand jury investigation of such alleged

racketeering violation.

(d) Service of any such demand or any petition filed

under this section may be made upon a person by-(1) delivering a duly executed copy thereof to

any partner, executive officer, managing agent,

or general agent thereof, or to any agent thereof

authorized by appointment or by law to receive

service of process on behalf of such person, or

upon any individual person;

(2) delivering a duly executed copy thereof to

the principal office or place of business of the

person to be served; or

Appendix A

(3) depositing such copy in the United States

mail, by registered or certified mail duly

addressed to such person at its principaloffice

or place of business.

(e) A verified return by the individual serving any such

demand or petition setting forth the manner of such

service shall beprima facie proof of such service. In the

case of service by registered or certified mail, such return

shall be accompanied by the return post office receipt of

delivery of such demand.

(f)(1) The Attorney General shall designate a racketeering

investigator to serve as racketeer document custodian,

and suchadditional racketeering investigators as he shall

determine from time to time to be necessary to serve as

deputies to such officer.

(2) Any person upon whom any demand issued under this

section has been duly served shall make such material

available forinspection and copying or reproduction to

the custodian designated therein at the principal place

of business of such person, or at such other place as such

custodian and such person thereafter may agree and

prescribe in writing or as the court may direct,pursuant

to this section on the return date specified in such demand,

or on such later date as such custodian may prescribe

in writing. Such person may upon written agreement

between such person and the custodian substitute for

copies of all or any part of such material originals thereof.

Appendix A

(3) The custodian to whom any documentary material is so

delivered shall take physical possession thereof, and shall

be responsible for the use made thereof and for the return

thereof pursuant to this chapter. The custodian may

cause the preparation of such copies of such documentary

material as may be required for official use under

regulations which shall be promulgated by the Attorney

General. While in the possession of the custodian, no

material so produced shall be available for examination,

without the consent of the person who produced such

material, by any individual other than the Attorney

General. Under such reasonable terms and conditions

as the Attorney General shall prescribe, documentary

material while in the possession of the custodian shall

be available for examination by the person who produced

such material or any duly authorized representatives of

such person.

(4) Whenever any attorney has been designated to appear

on behalf of the United States before any court or grand

jury in any case or proceeding involving any alleged

violation of this chapter, the custodian may deliver to such

attorney such documentary material in the possession of

the custodian as such attorney determines to be required

for use in the presentation of such case or proceeding on

behalf of the United States. Upon the conclusion of any

such case or proceeding, such attorney shall return to the

custodian any documentary material so withdrawn which

has not passed into the control of such court or grand jury

through the introduction thereof into the record of such

case or proceeding.

Appendix A

(5) Upon the completion of-(i) the racketeering investigation for which any

documentary material was produced under this

chapter, and

(ii) any case or proceeding arising from such

investigation,

the custodian shall return to the person who produced

such material all such material other than copies thereof

made by the Attorney General pursuant to this subsection

which has not passed into the control of any court or grand

jury through the introduction thereof into the record of

such case or proceeding.

(6) When any documentary material has been produced by

any person under this section for use in any racketeering

investigation, and no such case or proceeding arising

therefrom has been instituted within a reasonable time

after completion of the examination and analysis of all

evidence assembled in the course of such investigation,

such person shall be entitled, upon written demand

made upon the Attorney General, to the return of all

documentary material other than copies thereof made

pursuant to this subsection so produced by such person.

(7) In the event of the death, disability, or separation from

service of the custodian of any documentary material

produced under any demand issued under this section

or the official relief of such custodian from responsibility

for the custody and control of such material, the Attorney

General shall promptly--

Appendix A

(i) designate another racketeering investigator

to serve as custodian thereof, and

(ii) transmit notice in writing to the person who

produced such material as to the identity and

address of the successor so designated.

Any successor so designated shall have with regard to

such materials all duties and responsibilities imposed by

this section upon his predecessor in office with regard

thereto, except that he shall not be held responsible

for any default or dereliction which occurred before his

designation as custodian.

(g) Whenever any person fails to comply with any civil

investigative demand duly served upon him under this

section or whenever satisfactory copying or reproduction

of any such material cannot be done and such person

refuses to surrender such material, the Attorney General

may file, in the district court of the United States for any

judicial district in which such person resides, is found, or

transacts business, and serve upon such person a petition

for an order of such court for the enforcement of this

section, except that if such person transacts business in

more than one such district such petition shall be filed in

the district in which such person maintains his principal

place of business, or in such other district in which such

person transacts business as may be agreed upon by the

parties to such petition.

(h) Within twenty days after the service of any such

demand upon any person, or at any time before the

Appendix A

return date specified in the demand, whichever period

is shorter, such person may file, in the district court of

the United States for the judicial district within which

such person resides, is found, or transacts business, and

serve upon such custodian a petition for an order of such

court modifying or setting aside such demand. The time

allowed for compliance with the demand in whole or in

part as deemed proper and ordered by the court shall

not run during the pendency of such petition in the court.

Such petition shall specify each ground upon which the

petitioner relies in seeking such relief, and may be based

upon any failure of such demand to comply with the

provisions of this section or upon any constitutional or

other legal right or privilege of such person.

(i) At any time during which any custodian is in custody

or control of any documentary material delivered by any

person in compliance with any such demand, such person

may file, in the district court of the United States for the

judicial district within which the office of such custodian

is situated, and serve upon such custodian a petition for

an order of such court requiring the performance by such

custodian of any duty imposed upon him by this section.

(j) Whenever any petition is filed in any district court

of the United States under this section, such court shall

have jurisdiction to hear and determine the matter so

presented, and to enter such order or orders as may be

required to carry into effect the provisions of this section.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.