Petition for Writ of Certiorari — Medical Marijuana, Inc., et al., Petitioners v. Douglas J. Horn

Supreme Court briefOct 3, 2023

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Text

No.

In the Supreme Court of the United States

MEDICAL MARIJUANA, INC.; DIXIE HOLDINGS, LLC,

AKA DIXIE ELIXIRS; RED DICE HOLDINGS, LLC,

PETITIONERS,

v.

DOUGLAS J. HORN,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ROY A. MURA

SCOTT D. MANCUSO

MURA LAW GROUP, PLLC

930 Rand Bldg.

14 Lafayette Square

Buffalo, NY 14203

Counsel for Medical Marijuana, Inc. and Red Dice

Holdings, LLC

RICHARD E. LERNER

HANOCH SHEPS

MAZZOLA LINDSTROM LLP

1350 Avenue of the

Americas, Second Floor

New York, NY 10019

Counsel for Dixie Holdings, LLC

LISA S. BLATT

Counsel of Record

SARAH M. HARRIS

AARON Z. ROPER

CLAYTON P. PHILLIPS

WILLIAMS & CONNOLLY LLP

680 Maine Avenue SW

Washington, DC 20024

(202) 434-5000

lblatt@wc.com

Counsel for Petitioners

QUESTION PRESENTED

The Racketeer Influenced and Corrupt Organizations Act (RICO) creates a civil treble-damages action for

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

reason of” certain offenses. 18 U.S.C. § 1964(c).

The question presented is:

Whether economic harms resulting from personal

injuries are injuries to “business or property by reason of”

the defendant’s acts for purposes of civil RICO.

(I)

II

PARTIES TO THE PROCEEDING

Petitioners Medical Marijuana, Inc., Dixie Holdings,

LLC, AKA Dixie Elixirs, and Red Dice Holdings, LLC

were appellees in the court of appeals and defendants in

the district court. Dixie Botanicals was also a defendant

in the district court.

Respondent Douglas J. Horn was appellant in the

court of appeals and plaintiff in the district court. Cindy

Harp-Horn was also a plaintiff in the district court.

III

CORPORATE DISCLOSURE STATEMENT

Petitioners Medical Marijuana, Inc. and Dixie

Holdings, LLC, AKA Dixie Elixirs, have no parent

corporations, and no publicly held company owns 10% or

more of their stock.

Petitioner Red Dice Holdings, LLC is wholly owned

by petitioner Medical Marijuana, Inc. No other publicly

held company owns 10% or more of its stock.

IV

STATEMENT OF RELATED PROCEEDINGS

This case arises from the following proceedings:

Horn v. Medical Marijuana, Inc., No. 22-349

(2d Cir. Aug. 22, 2023) (reversing partial

judgment for defendants)

Horn v. Medical Marijuana, Inc., No. 15-cv701 (W.D.N.Y. Jan. 24, 2022) (entering partial

judgment for defendants)

There are no other proceedings in state or federal

trial or appellate courts, or in this Court, directly related

to this case within the meaning of this Court’s Rule

14.1(b)(iii).

V

TABLE OF CONTENTS

Page

OPINIONS BELOW ...........................................................1

JURISDICTION..................................................................2

STATUTORY PROVISION INVOLVED .......................2

STATEMENT ......................................................................2

A.

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

B.

Factual and Procedural Background ..............6

REASONS FOR GRANTING THE PETITION.........11

I.

The Circuits Are Divided 3-2 Over RICO’s

Application to Economic Harms from Personal

Injuries ....................................................................12

II.

The Question Presented Is Important,

Recurring, and Squarely Presented ....................17

III.

The Decision Below Is Incorrect .........................20

CONCLUSION ..................................................................25

VI

TABLE OF AUTHORITIES

Page

Cases:

Anza v. Ideal Steel Supply Corp.,

547 U.S. 451 (2006) ........................................................ 17

Aston v. Johnson & Johnson,

248 F. Supp. 3d 43 (D.D.C. 2017) ................................ 16

Blevins v. Aksut, 849 F.3d 1016 (11th Cir. 2017) ............ 14

Brown v. Ajax Paving Indus., Inc.,

752 F.3d 656 (6th Cir. 2014) ......................................... 12

Comm’r v. Schleier, 515 U.S. 323 (1995) .................... 21, 24

Diaz v. Gates,

420 F.3d 897 (9th Cir. 2005) (en banc) ............ 15, 17, 18

Doe v. Roe, 958 F.2d 763 (7th Cir. 1992)..................... 13, 19

Evans v. City of Chicago,

434 F.3d 916 (7th Cir. 2006) ........... 10, 13, 15, 17, 18, 22

Grogan v. Platt,

835 F.2d 844 (11th Cir. 1988) ..................... 10, 14, 18, 19

Guerrero v. Gates, 442 F.3d 697 (9th Cir. 2006) .............. 15

H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229 (1989) .... 17, 19

Hill v. Tangherlini, 724 F.3d 965 (7th Cir. 2013) ........... 10

Holmes v. Sec. Inv. Prot. Corp.,

503 U.S. 258 (1992) .................................................... 5, 22

Iron Workers Loc. Union No. 17 Ins. Fund v.

Philip Morris Inc.,

23 F. Supp. 2d 771 (N.D. Ohio 1998) ........................... 22

Jackson v. Sedgwick Claims Mgmt. Servs.,

731 F.3d 556 (6th Cir. 2013) (en banc)

.................................................. 3, 10, 12, 13, 16, 17, 19-22

Lerner v. Fleet Bank, N.A.,

318 F.3d 113 (2d Cir. 2003) ............................................. 5

Miller v. York Risk Servs. Grp.,

2013 WL 6442764 (D. Ariz. Dec. 9, 2013) ................... 16

VII

Page

Cases—continued:

Or. Labs.-Emps. Health & Welfare Tr. Fund v.

Philip Morris Inc., 185 F.3d 957 (9th Cir. 1999) ...... 22

Pilkington v. United Airlines,

112 F.3d 1532 (11th Cir. 1997) ..................................... 14

Reiter v. Sonotone Corp., 442 U.S. 330 (1979) ........... 21, 24

RJR Nabisco, Inc. v. Eur. Cmty.,

579 U.S. 325 (2016) .......................... 2, 5, 6, 18, 20, 21, 23

Russello v. United States, 464 U.S. 16 (1983).................... 4

Ryder v. Hyles, 27 F.4th 1253 (7th Cir. 2022) ................. 13

Ryder v. Hyles,

2021 WL 7285358 (N.D. Ill. July 29, 2021) ................. 16

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

473 U.S. 479 (1985) .............................................. 5, 17, 18

Spadaro v. City of Miramar,

855 F. Supp. 2d 1317 (S.D. Fla. 2012) ......................... 15

United States v. Burke, 504 U.S. 229 (1992) .................... 21

Yegiazaryan v. Smagin, 599 U.S. 533 (2023) .................. 23

Statutes and Rule:

18 U.S.C.

§ 1961 ................................................................................. 5

§ 1962 ................................................................................. 5

§ 1963 ................................................................................. 5

§ 1964 ................................................. 2, 5, 9, 10, 12, 14, 21

§ 1965 ............................................................................... 19

21 U.S.C. § 802 (2012) ........................................................... 7

21 U.S.C. § 802 (2018) ........................................................... 7

28 U.S.C. § 1254 ..................................................................... 2

VIII

Page

Statutes and Rule—continued:

Organized Crime Control Act of 1970,

Pub. L. No. 91-452, 84 Stat. 922 .................................... 5

Federal Rule of Civil Procedure 54 .................................. 10

Other Authorities:

116 Cong. Rec. 25,190 (1970) ................................................ 5

Diane Adam, Wegmans to Start Carrying cbdMD

CBD Products, Winsight Grocery Bus.

(Oct. 3, 2022), https://tinyurl.com/2wx3ey6m .............. 6

Admin. Off. of the U.S. Cts., U.S. District

Courts—Civil Cases Filed, by Nature of Suit

tbl. 4.4 (2022), https://tinyurl.com/bd8pc86p ............. 18

Brent A. Bauer, M.D., What Are the Benefits of

CBD—and Is It Safe to Use?, Mayo Clinic,

https://tinyurl.com/yc7h87z5 .......................................... 6

Black’s Law Dictionary (Rev. 4th ed. 1968).................... 21

Current Circuit Splits: Criminal Matters,

2 Seton Hall Cir. Rev. 261 (2005) ................................ 16

Dr. Richard A. Friedman, Opinion, Is CBD

Helpful, or Just Hype?, N.Y. Times,

Dec. 26, 2018 ..................................................................... 6

Grand View Research, Cannabidiol Market Size,

Shares & Trends Analysis Report (2023),

https://tinyurl.com/hc4x2v6p ......................................... 7

Peter Grinspoon, M.D., Cannabidiol (CBD):

What We Know and What We Don’t,

Harv. Health Publ’g (Sept. 24, 2021),

https://tinyurl.com/mr376e7t ..................................... 6, 7

Alena Hall & Robby Brumberg, CBD Statistics,

Data and Use, Forbes (Sept. 7, 2023),

https://tinyurl.com/3kzxju7f ........................................... 6

IX

Page

Other Authorities—continued:

Eric Lloyd, Comment, Making Civil RICO

“Suave”: Congress Must Act to Ensure

Consistent Judicial Interpretations of the

Racketeer Influenced and Corrupt

Organizations Act,

47 Santa Clara L. Rev. 123 (2007) ............................... 16

Joel W. Mohrman et al., Recent Developments in

Business Litigation,

42 Tort Trial & Ins. Prac. L.J. 327 (2007) .................. 16

Nicholas L. Nybo, Note, A Three Ring

Circus: The Exploitation of Civil RICO, How

Treble Damages Caused It, and Whether Rule

11 Can Remedy the Abuse,

18 Roger Williams U. L. Rev. 19 (2013) ..................... 18

Angelica Peebles & Lauren Hirsch, Kroger to Sell

CBD Products in Nearly 1,000 Stores, CNBC,

June 11, 2019 .................................................................... 6

Jacob Poorman, Comment, Exercising the

Passive Virtues in Interpreting Civil RICO

“Business or Property,”

75 U. Chi. L. Rev. 1773 (2008) ..................................... 16

Jed S. Rakoff et al., RICO: Civil and Criminal

Law and Strategy § 1.07 (Jan. 2023 update) ............. 16

Reid J. Schar, 12 Bus. & Com. Litig. Fed. Cts.

§ 126:35 (5th ed. Nov. 2022 update) ............................ 16

TRAC Reports, Anti-Racketeering Civil Suits

Jump in 2018 (Oct. 30, 2018),

https://tinyurl.com/3akvkcvu ....................................... 19

Patrick Wackerly, Comment, Personal Versus

Property Harm and Civil RICO Standing,

73 U. Chi. L. Rev. 1513 (2006) ..................................... 16

X

Page

Other Authorities—continued:

Alex Williams, Why Is CBD Everywhere?,

N.Y. Times, Oct. 27, 2018 ............................................... 6

Sean Williams, 9 Major Retailers that Are Selling

CBD Products, Motley Fool (June 3, 2019),

https://tinyurl.com/yury2zrf........................................... 6

World Health Org. Expert Comm. on Drug

Dependence, Cannabidiol (CBD) (2018),

https://tinyurl.com/3u3xuka5 ......................................... 7

In the Supreme Court of the United States

MEDICAL MARIJUANA, INC.; DIXIE HOLDINGS, LLC

AKA DIXIE ELIXIRS; RED DICE HOLDINGS, LLC,

PETITIONERS,

v.

DOUGLAS J. HORN,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Petitioners Medical Marijuana, Inc., Dixie Holdings,

LLC, AKA Dixie Elixirs, and Red Dice Holdings, LLC

respectfully petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Second Circuit in this case.

OPINIONS BELOW

The court of appeals’ opinion is reported at 80 F.4th

130. Pet.App.1a-22a. The district court’s opinion dismissing the civil RICO claim is unreported but available at

2021 WL 4173195. Pet.App.36a-59a.

(1)

2

JURISDICTION

The amended judgment of the court of appeals was

entered on August 22, 2023. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

18 U.S.C. § 1964(c) provides in relevant part:

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 ….

STATEMENT

In the decision below, the Second Circuit held that

plaintiffs bringing civil suits under the Racketeer Influenced and Corrupt Organizations (RICO) Act can recover

for economic harms arising from personal injuries—here,

a garden-variety products-liability claim. In so doing, the

court widened an intractable and acknowledged 3-2 split

over the breadth of RICO’s civil cause of action. RICO

permits a plaintiff “injured in his business or property by

reason of” the defendant’s racketeering activity to sue for

treble damages and attorneys’ fees. 18 U.S.C. § 1964(c).

That “business or property” requirement “exclud[es] …

personal injuries.” RJR Nabisco, Inc. v. Eur. Cmty., 579

U.S. 325, 350 (2016). But the circuits are divided on

whether economic damages arising from personal injuries—like lost wages or medical expenses—support civil

RICO liability. Only this Court can resolve that split, and

this case is the ideal vehicle for doing so.

3

In the Sixth, Seventh, and Eleventh Circuits, civil

RICO’s “business or property” requirement firmly excludes economic harms arising from personal injuries.

Plaintiffs cannot replead personal-injury lawsuits as treble-damages RICO claims by focusing on the economic

consequences of their injuries. As the en banc Sixth Circuit has warned, permitting such lawsuits would deprive

RICO’s “business or property” requirement of “restrictive significance.” Jackson v. Sedgwick Claims Mgmt.

Servs., 731 F.3d 556, 565 (6th Cir. 2013) (en banc).

In open conflict, the Second Circuit below joined the

Ninth Circuit in greenlighting civil RICO claims for economic harms that flow from personal injuries. In those

circuits, so long as the plaintiff’s harm, standing alone, can

be characterized as one to “business or property,” it is irrelevant how that harm came about. Medical expenses

and lost wages can satisfy RICO’s injury to “business or

property” requirement, despite flowing entirely from personal injuries. In the decision below, the Second Circuit

let respondent’s products-liability claim proceed under

RICO because he lost his job after using a legal consumerwellness product that allegedly caused him to fail a workplace drug test. Though the Second Circuit accepted that

respondent’s harm “flow[ed] from a personal injury”—

“unwitting ingestion” of a drug—the court held that respondent’s lost job was “an injury to his business” no matter how it arose. Pet.App.7a-8a n.2, 11a.

Commentators and courts—including the Second

Circuit below—recognize this glaring split. Indeed, the

Sixth and Ninth Circuits have issued warring en banc

opinions on the question presented, and the Second Circuit expressly rejected other circuits’ approach. Only this

Court’s intervention can resolve the divide.

4

The question presented is critically important. RICO

is a frequently litigated federal statute that imposes treble damages and attorneys’ fees. The Second and Ninth

Circuits’ any-economic-injury-counts rule now governs

two of the most popular fora for RICO litigation, New

York and California. And RICO’s expansive venue rules

invite other plaintiffs to file in those circuits. Workplace

negligence can cause physical injuries leading to doctors’

bills. Defective products can cause health problems that

cost wages or jobs. If quintessential personal injuries

count as injuries to “business or property” just because

economic damage inevitably results, Congress’ careful

limitation on civil RICO claims would be toothless.

This case cleanly tees that circuit split up for resolution. Applying the Sixth, Seventh, and Eleventh Circuits’

rule barring RICO recovery for economic harms from

personal injuries, the district court dismissed the RICO

claim. But the Second Circuit joined the Ninth in permitting recovery for such harms and reinstated the claim. As

the district court observed, this case turns on a “narrow,

dispositive,” and “discrete question of statutory interpretation” that requires “little analysis of the underlying

facts.” Pet.App.29a, 31a. Had respondent sued in the

Sixth, Seventh, or Eleventh Circuits, his RICO claim

would have been dismissed. Instead, petitioners face a

federal trial with treble damages and attorneys’ fees on

the line. This arbitrariness is intolerable, especially for a

federal law as important as RICO.

A. Statutory Background

In 1970, Congress enacted RICO to combat “organized crime and its economic roots.” Russello v. United

States, 464 U.S. 16, 26 (1983). As RICO’s statutory findings explained, “organized crime in the United States

[was] a highly sophisticated, diversified, and widespread”

5

problem. Organized Crime Control Act of 1970, Pub. L.

No. 91-452, 84 Stat. 922, 922.

Congress’ solution was to attach hefty civil and criminal penalties to “racketeering activity,” which RICO defines to “encompass dozens of state and federal offenses,”

including mail and wire fraud. See RJR Nabisco, 579 U.S.

at 329-30; 18 U.S.C. § 1961(1). RICO specifically prohibits

four racketeering-related offenses like “receiv[ing] any

income … from a pattern of racketeering activity” or

“participat[ing] … in the conduct of [an] enterprise’s affairs through a pattern of racketeering activity.” 18

U.S.C. § 1962(a)-(d). Those acts are federal felonies punishable by up to 20 years in prison. Id. § 1963(a).

RICO also creates a civil cause of action for private

plaintiffs to recoup treble damages and attorneys’ fees

from wrongdoers. Id. § 1964(c). But that “civil remedy is

not coextensive” with RICO’s criminal provision. RJR

Nabisco, 579 U.S. at 350. Congress crafted RICO’s civil

provision to “extirpat[e] the baneful influence of organized crime in our economic life.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 488 (1985) (quoting 116 Cong. Rec.

25,190 (1970)). Thus, only plaintiffs “injured in [their]

business or property by reason of a violation of section

1962” may sue civilly. 18 U.S.C. § 1964(c). Though courts

sometimes refer to that requirement as “RICO standing,”

it is simply an element of civil RICO claims. Lerner v.

Fleet Bank, N.A., 318 F.3d 113, 129-30 (2d Cir. 2003).

Recognizing that Congress did not impose boundless

liability, this Court has cautioned against giving RICO an

overly “expansive reading.” Holmes v. Sec. Inv. Prot.

Corp., 503 U.S. 258, 266 (1992). Thus, the Court held that

a RICO plaintiff’s injury must have been proximately

caused by—i.e., “by reason of”—the defendant’s RICO violation. Id. at 268. And, of particular relevance here, this

6

Court has recognized that the phrase “business or property” “cabin[s] RICO’s private cause of action to particular kinds of injury—excluding, for example, personal injuries.” RJR Nabisco, 579 U.S. at 350.

B. Factual and Procedural Background

1. Hemp-based CBD, or cannabidiol, oil is a lawful,

“wildly popular” wellness product—so popular that some

have dubbed it the “new avocado toast.” Dr. Richard A.

Friedman, Opinion, Is CBD Helpful, or Just Hype?, N.Y.

Times, Dec. 26, 2018; Alex Williams, Why Is CBD Everywhere?, N.Y. Times, Oct. 27, 2018; see Pet.App.82a. To

date, 60% of U.S. adults have used a CBD product. Alena

Hall & Robby Brumberg, CBD Statistics, Data and Use,

Forbes (Sept. 7, 2023), https://tinyurl.com/3kzxju7f.

National chains from Kroger and Wegmans to CVS,

Walgreens, and Rite Aid sell myriad CBD products.1

CBD features in everything from oil-based supplements

to fizzy drinks to CBD-enhanced sports bras. Consumers

use CBD “for a wide variety of health issues,” including

epilepsy, insomnia, and anxiety as well as joint and muscle

pain and inflammation. Peter Grinspoon, M.D., Cannabidiol (CBD): What We Know and What We Don’t, Harv.

Health Publ’g (Sept. 24, 2021), https://tinyurl.com

/mr376e7t; see Brent A. Bauer, M.D., What Are the Benefits of CBD—and Is It Safe to Use?, Mayo Clinic,

https://tinyurl.com/yc7h87z5. That popularity has driven

the CBD industry to an estimated $6.4 billion market in

Diane Adam, Wegmans to Start Carrying cbdMD CBD Products,

Winsight Grocery Bus. (Oct. 3, 2022), https://tinyurl.com/2wx3ey6m;

Angelica Peebles & Lauren Hirsch, Kroger to Sell CBD Products in

Nearly 1,000 Stores, CNBC, June 11, 2019; Sean Williams, 9 Major

Retailers that Are Selling CBD Products, Motley Fool (June 3, 2019),

https://tinyurl.com/yury2zrf.

1

7

2022 and 16% projected annual growth. Grand View Research, Cannabidiol Market Size, Shares & Trends Analysis Report (2023), https://tinyurl.com/hc4x2v6p.

To state the obvious, CBD products are also quite different from marijuana, which is a prohibited substance

under federal law. Many CBD products, including the one

at issue here, come from hemp. While hemp and marijuana derive from the same plant, cannabis sativa, hemp has

been engineered to contain “low concentrations of THC,”

the psychoactive agent in marijuana. Pet.App.81a-82a (citation omitted). Put simply, “CBD does not cause a

‘high,’” Grinspoon, supra, and “exhibits no effects indicative of any abuse or dependence potential,” World Health

Org. Expert Comm. on Drug Dependence, Cannabidiol

(CBD) 5 (2018), https://tinyurl.com/3u3xuka5. Recognizing that distinction, Congress has long exempted portions

of the cannabis plant with low quantities of THC, like the

stalk of the mature plant, from federal law’s definition of

marijuana. 21 U.S.C. § 802(16) (2012). And in 2018, Congress removed hemp from the federal definition of marijuana entirely. 21 U.S.C. § 802(16)(B)(i) (2018).

This case involves a hemp-based CBD supplement

called Dixie X. Petitioner Red Dice Holdings LLC—a

joint venture of petitioners Medical Marijuana, Inc. and

Dixie Holdings LLC—manufactured Dixie X. Despite the

name, Medical Marijuana, Inc. sells only hemp-based

products fully compliant with federal drug laws, not marijuana. Accordingly, Dixie X was manufactured from mature hemp stalk and was therefore legally distributed under federal law even before Congress in 2018 entirely removed hemp from the federal definition of marijuana. See

Pet.App.73a-74a; 21 U.S.C. § 802(16) (2012).

Petitioners created Dixie X using a complex extraction and distillation process. Pet.App.83a. Petitioners

8

took medicinal hemp and distilled it to remove impurities—including any remaining THC—leaving a pure CBD

concentrate. Pet.App.83a. Petitioners then infused that

concentrate into an extract that users typically dissolve

under their tongue, which petitioners sold under the Dixie

X trademark. See Pet.App.83a.

2. Respondent Douglas Horn experienced chronic

pain and inflammation after a car accident. Pet.App.84a.

Unsatisfied with prescription medication, Horn began investigating natural remedies. Pet.App.4a.

As a commercial truck driver, Horn knew that he

faced random drug tests at work and could lose his job for

using marijuana. Pet.App.5a. Horn alleges that he first

learned of Dixie X from a magazine article around September 2012. Pet.App.4a. That article described Dixie

X’s “non-psychoactive” nature and “medicinal benefit[s].”

Pet.App.85a. The article also described Dixie X’s “proprietary extraction process,” which yielded “0% THC” and

complied with “federal guidelines for THC, which is

0.3%.” Pet.App.84a-85a. Horn alleges that he confirmed

that Dixie X did not contain THC by watching YouTube

videos, reading an online FAQ page, and having his wife

call a 1-800 number. Pet.App.85a-87a.

Later in September 2012, Horn allegedly bought and

used Dixie X. Pet.App.87a. In October 2012, he was selected for a routine drug test at work; he tested positive

for THC, and his employer fired him. Pet.App.87a.

3. Horn and his wife sued petitioners in federal court,

alleging nine causes of action. All centered around a falseadvertising theory whereby the Horns were allegedly

misled into thinking that Dixie X was THC-free, that

Dixie X in fact contained THC, and that Horn’s unwitting

consumption of THC cost him his job. Pet.App.2a-3a.

9

Eight claims arose under New York law: deceptive business practices, fraudulent inducement, strict products liability, breach of contract, breach of warranty, unjust enrichment, negligence, and negligent infliction of emotional

distress. Pet.App.87a-88a. The lone federal claim was a

civil RICO claim under 18 U.S.C. § 1964(c). Pet.App.88a.

In April 2019, Horn withdrew three of his state-law

claims, and the district court dismissed most of the remaining claims on summary judgment. Pet.App.95a,

113a. First, any damages Horn’s wife suffered were “too

attenuated” from any wrongful conduct, so the court dismissed all of her claims. Pet.App.105a, 111a, 113a. As to

Horn, the district court granted summary judgment to

petitioners on four of the state-law claims, holding that

Horn could not prove those claims as a matter of New

York law. Pet.App.96a-100a, 111a-113a. That left two

claims: Horn’s state-law fraudulent-inducement claim

and his civil RICO claim. Pet.App.113a.

The court later granted petitioners summary judgment on the RICO claim, agreeing with petitioners that

Horn’s RICO claim sought recovery for a personal injury—unwitting consumption of THC—and thus failed as

a matter of law. Pet.App.39a, 46a. The court defined

Horn’s injury as “the bodily invasion that [he] suffered

when he unwittingly ingested THC.” Pet.App.42a. Any

financial harm Horn suffered from his lost employment

derived from that “personal injury.” Pet.App.42a. That

was a problem, the court held, because RICO permits recovery only for injuries to “business or property”—not

“personal injuries.” Pet.App.39a-40a (citations omitted).

Following precedent from the Sixth, Seventh, and

Eleventh Circuits, the court held that “lost earnings or

wages are not recoverable” in a civil RICO suit “if they

flow from a personal injury.” Pet.App.41a-42a (citing

10

Jackson, 731 F.3d at 565-66; Evans v. City of Chicago, 434

F.3d 916, 926-27 (7th Cir. 2006), overruled on other

grounds by Hill v. Tangherlini, 724 F.3d 965, 967 n.1 (7th

Cir. 2013); and Grogan v. Platt, 835 F.2d 844, 848 (11th

Cir. 1988)). Here, because the only “connect[ion]” between Horn’s substantive RICO allegations and his financial harm was “a personal injury,” his RICO claim failed

as a matter of law. Pet.App.42a, 46a.

At Horn’s request, the district court entered partial

final judgment on the RICO claim under Federal Rule of

Civil Procedure 54(b) to permit an immediate appeal.

Pet.App.26a-27a. As the court explained, this “narrow,

dispositive,” and “discrete question of statutory interpretation” “would demand little analysis of the underlying

facts,” making immediate appeal appropriate.

Pet.App.29a, 31a.

4. The Second Circuit reversed. Horn did not contest

the district court’s holding that RICO excludes economic

harms resulting from personal injury, but argued that his

injury did not fall into that category. C.A. Horn Br. 911. The Second Circuit declined to address that contention, instead deciding only the “logically antecedent legal

question” of “whether § 1964(c) bars a plaintiff from suing

for injuries to business or property simply because they

flow from, or are derivative of, a personal injury.”

Pet.App.8a n.2. The Second Circuit rejected any such bar,

weighing in on an acknowledged circuit split.

The court recognized that “the en banc Sixth Circuit,”

along with the Seventh and Eleventh Circuits, “denies

RICO standing to any plaintiff whose pecuniary loss

‘flows from or is derivative of,’ an antecedent personal injury.” Pet.App.11a-12a & n.5 (citation omitted). But the

Second Circuit declared itself “not persuaded,” dismissing those decisions as “backwards.” Pet.App.12a n.5, 13a.

11

Instead, the Second Circuit sided with “the en banc

Ninth Circuit” and held that civil RICO permits recovery

for injuries that “flow from, or are derivative of, a personal injury.” Pet.App.11a, 13a. In the Second Circuit’s

view, “the phrase ‘business or property’ focuses on the nature of the harm, not the source of the harm.”

Pet.App.15a. The court therefore found “no basis” to bar

recovery when “there is an antecedent personal injury.”

Pet.App.18a-19a. Because Horn suffered an economic injury when he “lost his job,” the Second Circuit held, Horn

could state a RICO claim even though his harm resulted

solely from his personal injury. Pet.App.10a-11a.

REASONS FOR GRANTING THE PETITION

This petition is the ideal vehicle for resolving an entrenched, well-recognized 3-2 circuit split over whether

RICO’s civil cause of action covers economic harms arising from personal injuries. Three circuits hold that civil

RICO’s “business or property” requirement excludes

such harms, permitting recovery only for direct injuries

to business or property. But two circuits hold that civil

RICO reaches any economic harms to someone’s business

or property, even if those harms stem from personal injuries. Those circuits thus let plaintiffs seek treble damages

for lost wages, medical expenses, and myriad other harms

flowing from personal injuries. The Second Circuit below

and many other circuits have acknowledged this split, yet

remain divided in opposing camps after multiple en banc

proceedings. Only this Court can break the logjam.

The question presented is important, recurring, and

squarely presented. The Second Circuit reinstated respondent’s RICO claim exclusively based on its holding

that civil RICO applies to economic harms arising from

12

personal injuries. Two of the largest fora for RICO litigation—the Second and Ninth Circuits—now apply an expansive view of RICO-recoverable injuries, allowing

countless claims that three other circuits reject. This

Court should grant certiorari to restore uniformity to this

frequently litigated federal statute.

I.

The Circuits Are Divided 3-2 Over RICO’s Application to

Economic Harms from Personal Injuries

Three circuits hold that RICO’s “business or property” requirement bars suits for economic harms that

arise from personal injuries. Two circuits hold the opposite and allow such RICO claims. Absent this Court’s intervention, the split will persist indefinitely and produce

grossly disparate consequences based on geography.

1. The Sixth, Seventh, and Eleventh Circuits hold

that RICO’s civil cause of action does not encompass economic harms arising from personal injuries.

The Sixth Circuit resolved this issue en banc and held

that “both personal injuries and pecuniary losses flowing

from those personal injuries fail to confer relief under

§ 1964(c).” Jackson, 731 F.3d at 565-66; accord Brown v.

Ajax Paving Indus., Inc., 752 F.3d 656, 657 (6th Cir.

2014). The Sixth Circuit “exclud[es] damages ‘arising directly out of ’ a personal injury” to give “restrictive significance [to] the phrase ‘business or property.’” Jackson,

731 F.3d at 565. Because “personal injuries often lead to

monetary damages,” a contrary rule would let plaintiffs

recast personal injuries as economic harms and plead

around RICO’s “business or property” requirement. Id.

Thus, the en banc Sixth Circuit dismissed RICO

claims based on work-related injuries where the plaintiffs’

employer allegedly committed fraud to deny workers’

13

compensation benefits for those injuries. Id. at 558.

Though the workers sued for lost wages and medical expenses, those economic harms “merely reflect[ed] the pecuniary losses associated with the personal injury” and

were not actionable under civil RICO. Id. at 566.

The Seventh Circuit follows the same rule: “The

terms ‘business or property’ are, of course, words of limitation which preclude recovery for personal injuries and

the pecuniary losses incurred therefrom.” Doe v. Roe, 958

F.2d 763, 767 (7th Cir. 1992); accord Ryder v. Hyles, 27

F.4th 1253, 1257 (7th Cir. 2022); Evans, 434 F.3d at 92526. “Most personal injuries … will entail some pecuniary

consequences,” that court explained. Doe, 958 F.2d at 770.

Thus, treating “the economic aspects of such injuries …

as injuries to ‘business or property’” would evade RICO’s

limitation on qualifying injuries. Id.

Applying that rule, the Seventh Circuit rejected a

civil RICO claim against a sexual harasser who caused the

plaintiff severe “emotional distress.” Id. Though the

plaintiff sued for economic damages—“loss of earnings,”

the cost of a security system, and attorneys’ fees—those

harms were “plainly derivatives of her emotional distress”

and thus “personal injuries which are not compensable

under RICO.” Id. Likewise, the Seventh Circuit denied

civil RICO recovery for “malicious prosecution and false

imprisonment”—“traditional tort claims which result in a

personal injury.” Evans, 434 F.3d at 927. While that

plaintiff focused his claim on “[t]he loss of income as a result of being unable to pursue employment opportunities

while allegedly falsely imprisoned,” that lost income was

“an indirect, or secondary effect, of the personal injuries.”

Id. at 926-27. So the lost income was not “a cognizable

injury to ‘business or property’” under RICO. Id. at 927.

14

The Eleventh Circuit also precludes “recovery for the

economic aspects of personal injuries.” Grogan, 835 F.2d

at 845; accord Blevins v. Aksut, 849 F.3d 1016, 1021 (11th

Cir. 2017); Pilkington v. United Airlines, 112 F.3d 1532,

1536 (11th Cir. 1997). As that court has explained, “the

ordinary meaning of the phrase ‘injured in his business or

property’ excludes personal injuries, including the pecuniary losses therefrom.” Grogan, 835 F.2d at 847. Had

Congress wanted to cover all financial losses, Congress

“could have enacted a statute referring to injury generally, without any restrictive language.” Id. (citation omitted). Instead, Congress limited civil RICO’s reach to injuries in “business or property.” Id. at 846.

The Eleventh Circuit has thus deemed claims for severe harassment that led to a leave of absence from work

“not cognizable under RICO.” Pilkington, 112 F.3d at

1536. That court likewise rejected civil RICO claims for

murder even when the plaintiffs targeted the “real economic consequences” to the victims’ families, like lost income. Grogan, 835 F.3d at 846. Those “pecuniary aspects

of personal injury losses” are “nonrecoverable under

RICO.” Id. at 848.

2. In direct conflict, the Second and Ninth Circuits

allow civil RICO claims for collateral economic consequences of personal injuries.

The Second Circuit adopted that rule in the decision

below. The court “agree[d]” that civil RICO “excludes recovery for personal injuries.” Pet.App.13a. But the Second Circuit declared itself “not persuaded” by the Sixth,

Seventh, and Eleventh Circuit’s position and “reject[ed]

the antecedent-personal-injury bar.” Pet.App.13a. In the

Second Circuit’s view, “§ 1964(c) does not bar a plaintiff

15

from suing for injuries to business or property simply because those injuries flow from, or are derivative of, an antecedent personal injury.” Pet.App.22a.

The en banc Ninth Circuit has likewise held that

plaintiffs may recover for damage to a “property interest

valid under state law” even where that harm “result[s]

from a personal injury.” Diaz v. Gates, 420 F.3d 897, 900

(9th Cir. 2005) (en banc); accord Guerrero v. Gates, 442

F.3d 697, 707-08 (9th Cir. 2006). In the Ninth Circuit’s

view, “the personal injury” is “separate” from the subsequent “property injury.” Diaz, 420 F.3d at 902. Thus, the

en banc Ninth Circuit held that a plaintiff who suffered

“the personal injury of false imprisonment” stated a cognizable RICO injury. Id. That false imprisonment led to

the “property injury of interference with current or prospective contractual relations” because the plaintiff could

not work from jail, so the plaintiff could sue under RICO

for that “claimed financial loss.” Id. at 900-02.

3. The circuits widely recognize the conflict. The Second Circuit below cataloged the extant 3-1 split and

aligned itself with the Ninth Circuit, calling other circuits’

holdings “backwards.” Pet.App.11a-13a & n.5. The Seventh Circuit recognizes that its position “is at odds with

that of the United States Court of Appeals for the Ninth

Circuit.” Evans, 434 F.3d at 930 n.26. And the Ninth Circuit has rejected the Eleventh Circuit’s reasoning as

“flawed.” Diaz, 420 F.3d at 902; see id. at 908 (Gould, J.,

dissenting) (“[T]he majority creates a split with the Eleventh Circuit … and the Seventh Circuit.”). Lower courts

have repeatedly noted this unambiguous split too.2

E.g., Spadaro v. City of Miramar, 855 F. Supp. 2d 1317, 1353 n.30

(S.D. Fla. 2012) (“The Circuit Courts of Appeals are divided on this

2

16

Likewise, legions of commentators acknowledge that

the “circuits are currently split as to whether civil RICO

grants standing to those who have suffered a property

harm derived from a personal injury.” Patrick Wackerly,

Comment, Personal Versus Property Harm and Civil

RICO Standing, 73 U. Chi. L. Rev. 1513, 1513 (2006).3 Indeed, as Judge Rakoff has observed, the Seventh and

Ninth Circuits “addressed the same issue and reached a

different conclusion” on materially identical facts. Jed S.

Rakoff et al., RICO: Civil and Criminal Law and Strategy § 1.07[4] (Jan. 2023 update).4 Plaintiffs sued police officers for false imprisonment because they missed out on

issue.”); Aston v. Johnson & Johnson, 248 F. Supp. 3d 43, 50 & n.4

(D.D.C. 2017) (following “majority position” instead of the “unpersuasive,” “more expansive view of ‘business or property’ taken by the

Ninth Circuit”); Ryder v. Hyles, 2021 WL 7285358, at *3 (N.D. Ill.

July 29, 2021) (contrasting Seventh and Ninth Circuit precedent);

Miller v. York Risk Servs. Grp., 2013 WL 6442764, at *4 (D. Ariz. Dec.

9, 2013) (“[C]oncerns … discussed in the Sixth Circuit’s majority opinion [in] Jackson … do not find support under Ninth Circuit law.”).

Accord Jacob Poorman, Comment, Exercising the Passive Virtues

in Interpreting Civil RICO “Business or Property,” 75 U. Chi. L.

Rev. 1773, 1777 n.24 (2008) (“The circuits are divided … as to what

constitutes an excludable ‘personal injury.’”); Eric Lloyd, Comment,

Making Civil RICO “Suave”: Congress Must Act to Ensure Consistent Judicial Interpretations of the Racketeer Influenced and Corrupt Organizations Act, 47 Santa Clara L. Rev. 123, 124 (2007) (observing the “split between the Ninth Circuit and the Seventh and

Eleventh Circuits”); Current Circuit Splits: Criminal Matters, 2 Seton Hall Cir. Rev. 261, 265-66 (2005) (question presented on list of

“current circuit splits”).

3

Accord Reid J. Schar, 12 Bus. & Com. Litig. Fed. Cts. § 126:35 (5th

ed. Nov. 2022 update) (The Seventh Circuit “expressly disagreed with

the Ninth Circuit[.]”); Joel W. Mohrman et al., Recent Developments

in Business Litigation, 42 Tort Trial & Ins. Prac. L.J. 327, 350 (2007)

(“On similar facts, the Seventh Circuit reached a different result.”).

4

17

job opportunities while in jail. In the Ninth Circuit, the

plaintiff had a viable RICO claim. Diaz, 420 F.3d at 902.

In the Seventh Circuit, he did not. Evans, 434 F.3d at 926.

The circuit split is deeply entrenched, with no hope of

abating. Two circuits—the Sixth and the Ninth—have

gone en banc on the question presented and came out opposite ways. Jackson, 731 F.3d at 565-66; Diaz, 420 F.3d

at 900. Other circuits have hewed to their position after

considering cases on the other side. The Seventh Circuit

has rejected the Ninth Circuit’s acceptance of harms flowing from personal injuries as a “mischaracterization of the

RICO statute.” Evans, 434 F.3d at 930 n.26. Conversely,

the Second Circuit below rejected the Sixth, Seventh, and

Eleventh Circuit’s views as “backwards” and “not persua[sive].” Pet.App.11a-13a & n.5. Only this Court can

cure the conflict and restore uniformity to civil RICO, one

of the most widely litigated federal statutes.

II. The Question Presented Is Important, Recurring, and

Squarely Presented

1. Whether civil RICO applies to economic harms

arising from personal injuries is a question of exceptional

importance. Despite Congress’ “relatively narrow focus

upon ‘organized crime,’” H.J. Inc. v. Nw. Bell Tel. Co., 492

U.S. 229, 255 (1989) (Scalia, J., concurring in the judgment), RICO has “evolv[ed] into something quite different from the original conception of its enactors.” Sedima,

473 U.S. at 500. Today, “the majority of civil RICO cases”

have “no apparent connection to organized crime.” Anza

v. Ideal Steel Supply Corp., 547 U.S. 451, 472 (2006)

(Thomas, J., concurring in part). “[T]he prospect of treble

damages and attorney’s fees” offers plaintiffs a “strong

incentive” to replead claims that might have been brought

under other statutes or state law as federal RICO claims.

18

Sedima, 473 U.S. at 504 (Marshall, J., dissenting). As one

commentator puts it, civil RICO litigation is “a three-ring

circus.” Nicholas L. Nybo, Note, A Three Ring Circus: The Exploitation of Civil RICO, How Treble Damages Caused It, and Whether Rule 11 Can Remedy the

Abuse, 18 Roger Williams U. L. Rev. 19 (2013).

In the last five years, plaintiffs filed over 6,500 new

RICO cases. See Admin. Off. of the U.S. Cts., U.S. District Courts—Civil Cases Filed, by Nature of Suit tbl. 4.4

(2022), https://tinyurl.com/bd8pc86p. Any defendant that

arguably violates any of “dozens of state and federal offenses” faces potential treble-damages liability in federal

court. See RJR Nabisco, 579 U.S. at 330.

Permitting RICO claims for the economic harms of

personal injuries risks eliminating an otherwise critical

limitation on RICO’s scope. Virtually all personal injuries

produce some “monetary losses.” Evans, 434 F.3d at 927.

Thus, the Second and Ninth Circuits’ rule “opens the

RICO door to any plaintiff’s lawyer savvy enough to include an allegation that other wrongs lead” to monetary

harm, converting countless state-law personal-injury

claims into federal treble-damages claims. Diaz, 420 F.3d

at 914 (Gould, J., dissenting). Here, for example, Horn

has attempted to replead a products-liability claim that

failed under New York law into a federal RICO claim.

The universe of potential personal-injury-related

claims that could transform into RICO claims is vast, giving plaintiffs in two massively populous circuits—the Second and Ninth—every spur to creativity. As the cases underlying the circuit split illustrate, the question presented

has already recurred prolifically in lawsuits against defendants from bank robbers, Grogan, 835 F.2d at 845, to

19

divorce attorneys, Doe, 958 F.2d at 765, to soft-drink manufacturers, Jackson, 731 F.3d at 558. District courts in

the Ninth Circuit—including the Central and Northern

Districts of California—are already national leaders in

RICO filings. TRAC Reports, Anti-Racketeering Civil

Suits Jump in 2018 (Oct. 30, 2018), https://tinyurl.com

/3akvkcvu. Now that the expansive-liability camp includes the Second Circuit—where the Southern District

of New York already draws an enormous volume of RICO

claims, see id.—civil RICO claims will proliferate further.

Civil RICO’s expansive venue provision also invites

forum shopping. Plaintiffs can file RICO suits in any district where a defendant “resides, is found, has an agent,

or transacts his affairs.” 18 U.S.C. § 1965(a). Courts can

join other defendants with no connection to the forum

when “the ends of justice” so require. Id. § 1965(b). Given

the number of companies that do some business in the

Second or Ninth Circuits, those circuits’ plaintiff-friendly

rule risks becoming the nationwide norm.

Given RICO’s breadth and the frequency with which

plaintiffs pursue civil RICO claims, “clarity and predictability in RICO’s civil applications are particularly important.” H.J. Inc., 492 U.S. at 255 (Scalia, J., concurring

in the judgment). That concern is especially salient here,

where the issue is frequently case dispositive. Because

the question presented goes to whether the plaintiff has

stated an element of the cause of action, complaints that

would be dismissed in the Sixth, Seventh, and Eleventh

Circuits will proceed in the Second and Ninth.5

5

E.g., Grogan, 835 F.2d at 845, 848 (affirming dismissal “for failure

to state an injury to business or property” without “reach[ing] the

defendant’s other arguments”); Doe, 958 F.2d at 765, 767 (affirming

20

2. This case is the ideal vehicle to resolve the circuit

split. Following the Sixth, Seventh, and Eleventh Circuits’ rule, the district court dismissed Horn’s RICO

claim. Pet.App.41a-42a. The Second Circuit reversed

solely on the ground that harms resulting from personal

injuries are actionable. Pet.App.3a. In doing so, the Second Circuit waded right into the circuit split and expressly

sidestepped Horn’s narrower argument that his harm did

not flow from a personal injury. Pet.App.7a-8a n.2.

As the district court observed, “the underlying factual

record is largely irrelevant” to the question presented,

which is a “narrow, dispositive,” and “discrete question of

statutory interpretation.” Pet.App.29a, 31a. This case

therefore cleanly presents the question of whether civil

RICO applies to economic harms arising from personal injuries without any factual baggage. In the Sixth, Seventh,

and Eleventh Circuits, Horn’s civil RICO claim would

have been dismissed—as it was when the district court applied those circuits’ law. But because Horn sued in the

Second Circuit, petitioners now face potential treble damages and attorneys’ fees. This Court should grant certiorari to correct that stark, arbitrary disparity.

III. The Decision Below Is Incorrect

As this Court has recognized, RICO’s civil cause of

action does not apply to personal injuries because such

plaintiffs are not injured in their “business or property.”

RJR Nabisco, 579 U.S. at 350. Plaintiffs cannot evade

dismissal “on the grounds that [Doe’s complaint] did not allege an injury to ‘business or property’” because “RICO cannot encompass

such a claim”); Jackson, 731 F.3d at 562-63 (affirming dismissal because “plaintiffs ha[d] failed to allege that they were injured in their

business or property” and “declin[ing] to reach … other arguments

in support of the district court’s judgment” (cleaned up)).

21

that statutory limitation by seeking recovery for economic

harms that flow from personal injuries.

1. Civil RICO requires that the plaintiff be “injured

in his business or property by reason of” the defendant’s

racketeering activity. 18 U.S.C. § 1964(c). An “injury” is

a “wrong or damage done to another, either in his person,

rights, reputation, or property.” Black’s Law Dictionary

924 (Rev. 4th ed. 1968). “Business” includes “means of

material being and livelihood.” Id. at 248. And “property”

is an “exclusive right” “guaranteed and protected by the

government.” Id. at 1382. As this Court has noted in the

context of the Clayton Act, the phrase “business or property” is thus “restrictive.” Reiter v. Sonotone Corp., 442

U.S. 330, 338 (1979). That language necessarily excludes

“particular kinds of injur[ies],” including “personal injuries.” RJR Nabisco, 579 U.S. at 350; see Pet.App.13a.

Personal injuries are the antithesis of injuries to business or property. A “personal injury” is a “hurt or damage done to a man’s person … as distinguished from an

injury to his property or reputation.” Black’s Law, supra,

at 925. “[C]ommon law tort law” helps elucidate the scope

of “a ‘personal injury.’” United States v. Burke, 504 U.S.

229, 234 (1992) (citation omitted). Under tort law, the

“typical recovery in a personal injury case” includes “(a)

medical expenses, (b) lost wages, and (c) pain, suffering,

and emotional distress.” Comm’r v. Schleier, 515 U.S.

323, 329 (1995). Economic damages resulting from personal injuries, like medical expenses or the lost wages at

issue here, are therefore part of the personal injury—not

injuries to “business or property” covered by civil RICO.

Any other reading would deprive RICO’s “business or

property” requirement of “restrictive significance.” Jackson, 731 F.3d at 565. “[P]ersonal injuries often lead to

22

monetary damages.” Id. “[L]oss of consortium, loss of

security and peace, wrongful death and similar claims

sounding in tort” all produce “monetary losses.” Evans,

434 F.3d at 927.

If plaintiffs suffering any monetary harm can sue under civil RICO, Congress’ choice to limit the statute to

“business or property” injuries would be virtually meaningless. Countless state-law tort claims could be repleaded as federal treble-damages actions. Peanut allergy sufferers could bring RICO suits against food manufacturers for medical expenses if food labels fail to disclose that products were manufactured in a facility that

also processes peanuts. A company could use RICO

against a hot-air-balloon manufacturer if the manufacturer’s shoddy labor practices cause the balloon to crash,

injuring the company’s CEO and harming the company’s

bottom line. Customers could lob RICO claims against

casinos if the slippery casino floor causes customers to

break bones in a slip and fall, with the customer asserting

lost-wages damages for missed work.

RICO’s provenance confirms that civil RICO is not a

supercharged state tort statute. Congress “modeled”

RICO’s civil cause of action, including its “business or

property” requirement, “on the civil-action provision of

the federal antitrust laws, § 4 of the Clayton Act.”

Holmes, 503 U.S. at 267. The Clayton Act naturally focuses on direct economic injuries. Thus, in the antitrust

context, courts on both sides of the split recognize that

economic aspects of personal injuries, like medical expenses, are not “injur[ies] to business or property.” E.g.,

Or. Labs.-Emps. Health & Welfare Tr. Fund v. Philip

Morris Inc., 185 F.3d 957, 964 (9th Cir. 1999); Iron Workers Loc. Union No. 17 Ins. Fund v. Philip Morris Inc., 23

23

F. Supp. 2d 771, 785 (N.D. Ohio 1998). There is no basis

for reading that same language differently in RICO.

2. The Second Circuit’s contrary conclusion is unpersuasive. The Second Circuit started from the presumption that RICO’s exclusion of personal injuries is “implicit,” so that exclusion should be interpreted narrowly.

Pet.App.3a, 12a-13a, 15a, 17a-18a, 22a. But RICO’s “business or property” requirement appears center stage in

the text. Civil RICO expressly permits recovery only by

plaintiffs who have suffered “business or property” injuries. That language does not permit recovery for any

other kind of injury, including personal ones, as this Court

has observed. RJR Nabisco, 579 U.S. at 350. RICO’s

“business or property” requirement deserves a fair reading, just like any other statutory provision.

The Second Circuit reasoned that “business” includes

“employment,” so Horn’s lost job was “an injury ‘in his

business’” no matter how it arose. Pet.App.10a-11a. Because “the phrase ‘business or property’ focuses on the

nature of the harm, not the source of the harm,” the court

deemed it irrelevant that Horn lost his job due to the personal injury of unwittingly ingesting THC. Pet.App.15a.

But RICO is not indifferent to the source of the harm.

To decide whether a plaintiff has suffered a qualifying injury, courts do not look at “the injury … in isolation.”

Yegiazaryan v. Smagin, 599 U.S. 533, 545 (2023). They

examine “the circumstances surrounding the injury,” including how it “arose.” Id. Economic harms from personal injuries are part of the personal injury and thus not

injuries to “business or property” covered by RICO.

The Second Circuit claimed that its approach left

RICO’s “business or property” limitation with “restrictive

24

significance” because injuries like “mental anguish” and

“pain and suffering” cannot be recast as injuries to “business or property.” Pet.App.21a (citation omitted). But

the Second Circuit’s reasoning offers no basis for that

line-drawing. Personal-injury plaintiffs routinely recover

economic damages, i.e., money, for mental anguish or pain

and suffering, just as they recover economic damages for

lost wages or medical expenses. Schleier, 515 U.S. at 329.

“Money, of course, is a form of property.” Reiter, 442 U.S.

at 338. If the “nature of the harm” is all that matters, as

the Second Circuit thought, Pet.App.15a (emphasis omitted), then pain and suffering should equally be an injury

to “property” recoverable under RICO. Yet that would

nullify RICO’s “business or property” limitation, as the

Second Circuit seemingly recognized. Pet.App.21a.

Even spotting the Second Circuit’s premise that pain,

suffering, and the like are distinguishable from other aspects of personal injuries, virtually all personal injuries

have some economic aspect. If “mental anguish” requires

a day off work or “pain and suffering” leads to a doctor’s

office copay, those economic consequences would be injuries to business or property in the Second Circuit.

The Second Circuit found “significant” that RICO

limits liability by requiring that the plaintiff’s harm be “by

reason of” the defendant’s acts, i.e., that there be “proximate cause.” Pet.App.14a (citations omitted). In the Second Circuit’s view, excluding the economic harms of personal injuries “coopts that judgment” by “imposing a

more restrictive attenuation principle” in personal-injury

cases. Pet.App.14a. But the fact that RICO also imposes

a proximate-causation requirement cannot justify rendering the “business or property” requirement toothless.

25

The Second Circuit also worried that excluding economic harms flowing from personal injuries would prevent recovery for classic RICO predicate acts like murder

and kidnapping. Pet.App.16a-17a. But Congress purposefully limited RICO’s civil cause of action to injuries in

“business or property.” Murder and kidnapping are prosecutable under criminal RICO, which has no business or

property limitation. But Congress cast RICO’s civil net

more narrowly, focusing on only racketeering activity’s

direct economic harm. What the Second Circuit viewed as

a bug is a central feature of civil RICO’s more limited text.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

ROY A. MURA

SCOTT D. MANCUSO

MURA LAW GROUP, PLLC

14 Lafayette Square

930 Rand Bldg.

Buffalo, NY 14203

Counsel for Medical Marijuana, Inc. and Red Dice Holdings, LLC

RICHARD E. LERNER

HANOCH SHEPS

MAZZOLA LINDSTROM LLP

1350 Avenue of the

Americas, Second Floor

New York, NY 10019

Counsel for Dixie Holdings, LLC

OCTOBER 3, 2023

LISA S. BLATT

Counsel of Record

SARAH M. HARRIS

AARON Z. ROPER

CLAYTON P. PHILLIPS

WILLIAMS & CONNOLLY LLP

680 Maine Avenue SW

Washington, DC 20024

(202) 434-5000

lblatt@wc.com

Counsel for Petitioners

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.

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