Amicus Curiae Brief — Medical Marijuana, Inc., et al., Petitioners v. Douglas J. Horn

Supreme Court briefSep 4, 2024

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No. 23-365

IN THE

Supreme Court of the United States

MEDICAL MARIJUANA, INC., ET AL.,

Petitioners,

DOUGLAS J. HORN,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF OF AMICUS CURIAE

AMERICAN ASSOCIATION FOR JUSTICE

IN SUPPORT OF RESPONDENT

LORI ANDRUS

President

AMERICAN ASSOCIATION

FOR JUSTICE

JEFFREY R. WHITE

Sr. Assoc. Gen. Counsel

777 6th Street NW, #200

Washington, DC 20001

(202) 617-5620

jeffrey.white@justice.org

ROBERT S. PECK

Counsel of Record

CENTER FOR

CONSTITUTIONAL

LITIGATION, P.C.

1901 Connecticut Ave. NW,

Suite 1101

Washington, DC 20009

(202) 944-2874

robert.peck@cclfirm.com

Counsel for Amicus Curiae

September 4, 2024

TABLE OF CONTENTS

TABLE OF CONTENTS ..............................................i

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICUS CURIAE0F ........................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................. 2

ARGUMENT ................................................................ 4

THE PLAIN LANGUAGE OF THE STATUTE

REACHES HORN’S ALLEGED INJURY. .......... 4

A. As with Every Statute, Civil RICO Should Be

Understood by Examining Its Text................. 4

B. By Its Plain Terms, Civil RICO Includes

Horn’s Claim. ................................................... 5

II. PETITIONERS’ ATTEMPT TO RECAST

HORN’S INJURY IS UNAVAILING. ................ 12

A. Petitioners Cannot Redefine Horn’s Claim. . 13

B. Petitioners Conflate Injury with Damages... 15

III. PETITIONERS RAISE A CAUSATION ISSUE

THAT LACKS MERIT. ....................................... 17

IV. CIVIL RICO’S STATUTORY TEXT LEAVES NO

ROOM FOR PETITIONERS’ EXTRA- TEXTUAL

APPROACH OR POLICY ARGUMENTS......... 21

A. As in Sedima, This Court Should Reject an

Invitation to Limit the Scope of Civil RICO

Beyond Its Plain Text. ................................... 21

B. Petitioners Wrongly Suggest That Plaintiffs

Will Use Civil RICO to Avoid an Imaginary

State Hostility to Personal Injury Actions. . 26

CONCLUSION .......................................................... 31

iii

TABLE OF AUTHORITIES

Cases

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

483 U.S. 143 (1987) ................................ 9, 12, 25, 26

Anza v. Ideal Steel Supply Corp.,

547 U.S. 451 (2006) .......................................... 17, 18

Asgrow Seed Co. v. Winterboer,

513 U.S. 179 (1995) .................................................. 8

Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt,

691 S.E.2d 218 (Ga. 2010) ...................................... 30

Beason v. I. E. Miller Servs., Inc.,

441 P.3d 1107 (Okla. 2019) .................................... 30

Brandt v. Pompa,

220 N.E.3d 703 (Ohio 2022) ................................... 30

Caterpillar Inc. v. Williams,

482 U.S. 386 (1987) .......................................... 13, 14

Chickasaw Nation v. United States,

534 U.S. 84 (2001) .................................................... 4

Conn. Nat’l Bank v. Germain,

503 U.S. 249 (1992) .................................................. 4

Consumer Prod. Safety Comm’n v. GTE Sylvania,

Inc., 447 U.S. 102 (1980); ......................................... 5

Dailey v. Quality Sch. Plan, Inc.,

380 F.2d 484 (5th Cir. 1967) ............................ 11, 16

Davis v. Michigan Dept. of Treasury,

489 U.S. 803 (1989) .................................................. 4

Diaz v. Gates,

420 F.3d 897 (9th Cir. 2005) (en banc) .................... 9

Doe v. Roe,

958 F.2d 763 (7th Cir. 1992) ............................ 30, 31

Flint v. Stone Tracy Co.,

220 U.S. 107 (1911) .................................................. 9

Hamilton v. Asbestos Corp.,

998 P.2d 403 (2000) ................................................ 15

Hardt v. Reliance Standard Life Ins. Co.,

560 U.S. 242 (2010) .................................................. 5

Hemi Grp., LLC v. City of New York,

559 U.S. 1 (2010) ........................................ 17, 18, 19

Hilburn v. Enerpipe Ltd.,

442 P.3d 509 (Kan. 2019) ....................................... 30

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

503 U.S. 258 (1992) .................................... 10, 13, 17

Hughes Aircraft Co. v. Jacobson,

525 U.S. 432 (1999). ................................................. 5

In Re: Nat’l Prescription Opiate Litig.,

1:17-md-02804-DAP (N.D. Ohio) ........................... 28

Jackson v. Sedgwick Claims Mgmt. Servs., Inc.,

731 F.3d 556 (6th Cir. 2013) (en banc) .................... 9

Kinzler v. New York Stock Exch.,

62 F.R.D. 196 (S.D.N.Y. 1974) ............................... 11

Kluger v. White,

281 So.2d 1 (Fla. 1973) ........................................... 29

Lamie v. U.S. Trustee,

540 U.S. 526 (2004) .................................................. 5

Lebron v. Gottlieb Mem. Hosp.,

930 N.E.2d 895 (Ill. 2010) ...................................... 30

Lexmark Int’l, Inc. v. Static Control Components,

Inc., 572 U.S. 118 (2014) ............................ 19, 20, 23

Mendoza v. Zirkle Fruit Co.,

301 F.3d 1163 (9th Cir. 2002) ................................ 31

N. Broward Hosp. Dist. v. Kalitan,

219 So. 3d 49 (Fla. 2017) ........................................ 30

Nichols v. Spencer Int’l Press, Inc.,

371 F.2d 332 (7th Cir. 1967) .................................. 11

Oklahoma v. Castro-Huerta,

597 U.S. 629 (2022) .................................................. 5

Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75 (1998) .............................................. 4, 23

Ostrofe v. H.S. Crocker Co.,

740 F.2d 739 (9th Cir. 1984) .................................. 11

Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc.,

469 U.S. 189 (1985) .................................................. 8

Reiter v. Sonotone Corp.,

442 U.S. 330 (1979) .................................................. 4

Richards v. United States,

369 U.S. 1 (1962) ...................................................... 5

Rivet v. Regions Bank,

522 U.S. 470 (1998) ................................................ 14

RJR Nabisco v. Eur. Cmty.,

579 U.S. 325 (2016) .................................................. 6

Rotella v. Wood,

528 U.S. 549 (2000) ................................................ 10

Rotkiske v. Klemm,

589 U.S. 8 (2019) ...................................................... 5

SAS Inst., Inc. v. Iancu,

584 U.S. 357 (2018) ................................................ 22

Schindler Elevator Corp. v. United States ex rel. Kirk,

563 U.S. 401 (2011) .................................................. 8

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

473 U.S. 479 (1985) .................... 6, 10, 16, 21, 22, 25

The Fair v. Kohler Die & Specialty Co.,

228 U.S. 22 (1913) .................................................. 13

United States v. Burke,

504 U.S. 229 (1992) ................................................ 16

United States v. Morton,

467 U.S. 822 (1984) .................................................. 4

vii

Vines v. Gen. Outdoor Advert. Co.,

171 F.2d 487 (2d Cir. 1948).................................... 11

W. Virginia Univ. Hosps., Inc. v. Casey,

499 U.S. 83 (1991) .................................................... 5

Wilson v. Johns-Manville Sales Corp.,

684 F.2d 111 (D.C. Cir. 1982) ................................ 15

Yegiazaryan v. Smagin,

599 U.S. 533 (2023) ................................................ 12

Constitutional Provisions

Ariz. Const. art. 2, § 31.............................................. 29

Ark. Const. art. 5, § 32 .............................................. 29

Ky. Const. § 54 ........................................................... 29

N.Y. Const. art. 1, § 16 .............................................. 29

Ohio Const. art. I, § 19a ............................................ 29

Okla. Const. art. 23, § 7............................................ 30

Pa. Const. art. 3, § 18 ................................................ 29

Wyo. Const. art. 10, § 4 ............................................. 29

Statutes & Rules

15 U.S.C. § 15 ............................................................ 10

18 U.S.C. § 1341 .......................................................... 7

viii

18 U.S.C. § 1343 .......................................................... 7

18 U.S.C. § 1957 .......................................................... 7

18 U.S.C. § 1962(d) ...................................................... 7

18 U.S.C. § 1964(c) .............................. 2, 5, 6, 7, 10, 12

Conn. Gen. Stat. § 52-577a(a) ................................... 26

Kan. Stat. Ann. § 60-3303 ......................................... 26

Pub. L. 91-452, § 904(a), 84 Stat. 941 (1970) . 6, 21, 24

Wash. Rev. Code § 7.72.060(2) .................................. 26

26 C.F.R. § 1.104-1(c) (2012) ..................................... 16

Treatises

Restatement (Third) of Torts:

Apportionment of Liability, § B18 cmt. a .............. 27

Other Authorities

Actual Damages, Black's Law Dictionary

(4th ed. 1968) .......................................................... 16

Business, Black’s Law Dictionary (4th ed. 1968) ....... 8

Webster’s Third New Int’l Dictionary (1971) ............. 8

Lee Harris, Tort Reform As Carrot-and-Stick,

46 Harv. J. on Legis. 163 (2009) ............................ 27

Arthur B. LaFrance, Tobacco Litigation:

Smoke, Mirrors and Public Policy,

26 Am. J.L. & Med. 187 (2000) .............................. 28

Catherine M. Sharkey, Unintended Consequences

of Medical Malpractice Damages Caps,

80 N.Y.U. L. Rev. 391 (2005) ................................. 27

Hon. Thomas R. Phillips, The Constitutional Right

to A Remedy, 78 N.Y.U. L. Rev. 1309 (2003) ......... 29

Consumer Financial Prot. Bur., What Was the

National Mortgage Settlement (Sept. 8, 2020),

https://tinyurl.com/v78psk3a ................................. 29

INTEREST OF AMICUS CURIAE 1

The American Association for Justice (“AAJ”) is a

national, voluntary bar association established in

1946 to strengthen the civil justice system, preserve

the right to trial by jury, and protect access to the

courts for those who have been wrongfully injured.

With members in the United States, Canada, and

abroad, AAJ is the world’s largest plaintiff trial bar.

AAJ members primarily represent plaintiffs in personal injury actions, employment rights cases, consumer cases, and other civil actions. Throughout its

78-year history, AAJ has served as a leading advocate

for the right of all Americans to seek legal recourse for

wrongful conduct.

AAJ is concerned that Petitioners have advanced

a theory that would limit the availability of civil RICO

by reading into the statute a rule without textual support. Equally problematic is Petitioners’ failure to appreciate that those seeking compensation often present with multiple injuries. The existence of a preexisting or concurrent injury, however, does not change

the calculus about when a business injury remains

compensable through civil RICO. RICO’s requirement

of an injury to business or property is not altered or

abridged if a plaintiff also has a personal injury that

is not pleaded as a RICO claim. AAJ files this brief to

1 Pursuant to Rule 37.6, amicus affirms that no counsel for any

party authored this brief in whole or in part and no person or

entity, other than amicus, its members, or its counsel has made

a monetary contribution to its preparation or submission.

highlight these concerns, anchored in text, precedent,

and the reality of how injuries occur.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The plain language of 18 U.S.C. § 1964(c), which

provides the operative language for a civil RICO claim,

authorizes a cause of action and remedy to “[a]ny person injured in his business or property by reason of a

violation of section 1962.” It does not exclude from that

cause of action those with qualifying business or property injuries even if they may have suffered a personal

injury from the same nucleus of operative facts as long

as their concurrent personal injury is not part of their

civil RICO claim. Instead, § 1964(c) straightforwardly

provides a cause of action for a qualifying injury, regardless of other claims they may or may not have. Mr.

Horn’s injury plainly qualifies for a civil RICO claim

because it is incontrovertible that he has suffered a

business injury that flowed directly from the predicate

acts’ direct impact on his ability to pursue his profession and continue in this employment.

A plain reading of civil RICO’s text and Congress’s

instruction to read it broadly confirm the propriety of

Horn’s business injury claim. The Petitioners’ actions

comprise precisely the type of misconduct that Congress intended to reach in enacting civil RICO. Congress purposely excluded any text that would exempt

those activities when they may also have caused a personal injury.

At bottom, this case requires this Court to determine a simple issue that it has answered before:

whether the plain language of the statute answers the

question presented. Here, the answer is yes. The text

makes that clear and provides no reason to go beyond

a review of the plain language. Moreover, in the case

of civil RICO, a purely textual approach accords with

legislative intent and the concerns that animated passage of the statute.

Moreover, this Court should reject Petitioners’

conceit, by which they seek to transmogrify Horn’s

claim into a personal injury. Instead, at this stage of

the litigation, it must accept Horn’s well-pleaded allegations as constituting the basis for his claim, for it

meets all the requisite elements of such a cause of action. This Court should also reject Petitioners’ related

attempt to treat Horn’s business injury in the form of

his job loss as “damages,” a label that is insensible and

is asserted only to avoid their civil RICO liability.

Horn has not claimed personal injuries from ingestion

of Petitioners’ product; nor is his business injury derivative of a personal injury so as to break the chain of

causation. Moreover, this Court’s precedents support

treating Horn’s loss of employment as a direct injury

that flows from the identified predicate acts that make

this a legitimate civil RICO claim.

To the extent that Petitioners invite this Court to

superimpose additional limits upon the statutory language and assert policy justifications for doing so, they

have petitioned the wrong branch of government. Our

constitutional system assigns Congress with the policymaking function in our government. As this Court

has recognized, its role is to follow the policy Congress

has prescribed. There is no room for judicial amendment of statutory language, regardless of the rationale

behind it. Therefore, this Court should affirm the Second Circuit’s decision.

ARGUMENT

THE PLAIN LANGUAGE OF THE STATUTE

REACHES HORN’S ALLEGED INJURY.

A. As with Every Statute, Civil RICO

Should Be Understood by Examining Its

Text.

This case requires nothing more than a straightforward application of the statutory text. When embarking on the interpretative task, the “starting point

must be the language employed by Congress.” Reiter

v. Sonotone Corp., 442 U.S. 330, 337 (1979). To that

end, the words of a statute are read “in their context

and with a view to their place in the overall statutory

scheme.” Davis v. Michigan Dept. of Treasury, 489

U.S. 803, 809 (1989) (citing United States v. Morton, 467 U.S. 822, 828 (1984)). This Court sometimes

describes that task as an effort to discern legislative

intent. See, e.g., Chickasaw Nation v. United States,

534 U.S. 84, 94 (2001). Still, “it is ultimately the provisions of our laws rather than the principal concerns

of our legislators by which we are governed.”

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.

75, 79 (1998).

Because “courts must presume that a legislature

says in a statute what it means and means in a statute

what it says there,” Conn. Nat’l Bank v. Germain, 503

U.S. 249, 253–54 (1992), it follows that a statute’s “legislative purpose is expressed by the ordinary meaning

of the words used.” Richards v. United States, 369 U.S.

1, 9 (1962). Put differently, the text supplies the best

evidence of legislative intent. W. Virginia Univ.

Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991); see also

Oklahoma v. Castro-Huerta, 597 U.S. 629, 642 (2022)

(“[T]he text of a law controls over purported legislative

intentions unmoored from any statutory text.”); Lamie

v. U.S. Trustee, 540 U.S. 526, 534 (2004) (“The starting

point in discerning congressional intent . . . is the existing statutory text”) (citing Hughes Aircraft Co. v.

Jacobson, 525 U.S. 432, 438 (1999)).

Where, as here, the text is clear, this Court “must

enforce plain and unambiguous statutory language according to its terms,” Hardt v. Reliance Standard Life

Ins. Co., 560 U.S. 242, 251 (2010), which “must ordinarily be regarded as conclusive.” Consumer Prod.

Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102,

108 (1980); see also Rotkiske v. Klemm, 589 U.S. 8, 13

(2019) (“If the words of a statute are unambiguous,

this first step of the interpretive inquiry is our last.”).

An application of these principles leads inexorably to

the conclusion that Horn’s claim fits within the ambit

of civil RICO.

B. By Its Plain Terms, Civil RICO Includes

Horn’s Claim.

The plain language of 18 U.S.C. § 1964(c) provides

a cause of action and remedy to “[a]ny person injured

in his business or property by reason of a violation of

section 1962.” No party questions that the statutory

text establishes a cause of action and remedy for injuries to a person’s business or property. And no party

questions this Court’s reading of those words to hold,

by implication from its exclusion, that the enactment

necessarily “cabin[ed] RICO’s private cause of action

to particular kinds of injury—excluding, for example,

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

U.S. 325, 350 (2016).

The text of § 1964(c) constitutes a broad authorization for causes of action that arise from injury to

business or property, sufficient to confer standing to

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

Inc., 473 U.S. 479, 496 (1985). It “is to be read broadly”

with an eye toward “effectuat[ing] its remedial purposes.” Id. at 497, 498 (quoting Pub. L. 91-452,

§ 904(a), 84 Stat. 941, 947 (1970)).

Horn’s allegations fit comfortably within 18

U.S.C. § 1964(c). The statutory language, requiring a

business or property injury by reason of predicate acts,

were fully met. Consider the underlying facts. Horn

was seriously injured in an accident in February 2012.

Pet. App. 4a. He has made no claims related to these

injuries or this incident, which are accurately described as personal injuries.

After a period of healing and rehabilitation, Horn

was able to return to work as a truck driver, his profession of twenty-nine years, while making use of various types of relief from the lingering pain he suffered.

Pet. App. 2a, 4a; JA 3–4, 60, 68. He understood that

his job, hauling “high-value, high-risk loads such as

‘expedited food, pharmaceuticals and liquid chemicals,’” required him to be tested for drug use periodically, and that a positive test would disqualify him

from continuing in his profession under rules promulgated by the United States Department of Transportation. BIO 5; Pet. App. 5a.

Seven months after his accident, Horn happened

upon an advertisement for Dixie X, a cannabidiol

(CBD) product offered by Petitioners that promised

significant pain relief while containing “0% THC”

(Delta-9-tetrahydrocannabinol). Pet. App. 4a. Horn

diligently researched the product and separately received assurances from Dixie’s customer-service representatives that Dixie X did not contain THC. Id. at

5a. He subsequently failed his employer’s random

drug test and a subsequent test, resulting in his firing.

Id. at 5a. His “termination cost him current and future

wages, as well as his insurance and pension benefits.”

Id. at 10a. Suspecting that Dixie X was the culprit, he

purchased more Dixie X and sent it to an independent

laboratory for testing, which confirmed the product

contained THC. Id. at 6a.

Horn’s subsequent lawsuit contained allegations

under civil RICO that relevantly focused on allegations of mail and wire fraud, 18 U.S.C. §§ 1341, 1343,

and other unlawful activities, 18 U.S.C. § 1957, which

are predicate acts under RICO, 18 U.S.C. § 1962(d).

See Pet. App. 6a. His alleged injury, the loss of his job

and ability to continue to engage in his profession, was

a business injury that qualifies for the relief that civil

RICO establishes.

As required by the text of 18 U.S.C. § 1964(c), he

alleged: (1) a business injury; (2) by reason of; and (3)

a qualifying predicate act. That was all he was required to do to survive Petitioners’ opposition, as the

court below held. See Pet. App. 7a–8a.

The Second Circuit devoted considerable space to

explaining why Horn’s injury qualified as a business

injury, a holding that Petitioners do not contest here.

Still, it is useful to explain briefly why there is no error

in that holding, as it undermines the distinction that

Petitioners seek to draw here.

Civil RICO does not define what constitutes a

“business injury.” When Congress does not supply a

definition, this Court considers the statutory term’s

ordinary meaning, Schindler Elevator Corp. v. United

States ex rel. Kirk, 563 U.S. 401, 407 (2011), because it

is fair to “assum[e] that the ordinary meaning of that

language accurately expresses the legislative purpose.” Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469

U.S. 189, 194 (1985); see also Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995).

In addressing this question, the Second Circuit

followed this Court’s recent decision in BP P.L.C. v.

Mayor & City Council of Baltimore, 141 S. Ct. 1532,

1537 (2021) (citation omitted), for its guidance that it

should “apply the ordinary meaning of its terms at the

time of their adoption.” Pet. App. 8a. It noted that contemporaneous to § 1964(c)’s codification, the dictionary definition of business “embraced concepts like ‘employment, occupation, or profession engaged in for

gain or livelihood,’ and ‘commercial or industrial establishment or enterprise.’” Id. at 9a (quoting Business, Black’s Law Dictionary (4th ed. 1968)).

The Second Circuit also consulted a standard dictionary to find that it included “commercial or mercantile activity customarily engaged in as a means of livelihood and typically involving some independence of

judgment and power of decision,” and as “a commercial

or industrial enterprise.” Id. at 9a−10a (quoting Webster’s Third New Int’l Dictionary 302 (1971) (cleaned

up)). The court also found comfort in this Court’s explanation of the Tariff Act of 1909 that business is a

“very comprehensive term and embraces everything

about which a person can be employed.” Id. at 9a

(quoting Flint v. Stone Tracy Co., 220 U.S. 107, 171

(1911) (cleaned up)).

Judges generally agree. For example, in the Ninth

Circuit, one judge explained that the “distinction between ‘business’ and employment is so tenuous and

uncertain that it is hard to see why we should attribute to Congress a purpose of making it, especially

since they did not make it expressly.” Diaz v. Gates,

420 F.3d 897, 906 (9th Cir. 2005) (en banc) (Kleinfeld,

J., concurring).

Although Petitioners interpose a Sixth Circuit decision to assert a different analysis, the case is inapposite. In Jackson v. Sedgwick Claims Mgmt. Servs.,

Inc., 731 F.3d 556 (6th Cir. 2013) (en banc), cited in

Pet. Br. 25, 35, the “plaintiffs claim[ed] that they were

legally entitled to receive certain benefits mandated

by statute as a consequence of their personal injuries,

and that they received less than they were entitled to

under that system because of the defendants’ racketeering conduct.” 731 F.3d at 566. Plainly, the RICO violations that constituted the predicate acts were a response to the personal injury, not to any independent

actions that caused the RICO-qualifying injury, as

here.

Further support can be found in our antitrust

laws, which are relevant because Congress patterned

“RICO’s civil enforcement provision on the Clayton

Act.” Agency Holding Corp. v. Malley-Duff & Assocs.,

Inc., 483 U.S. 143, 152 (1987); see also Holmes v. Sec.

Inv. Prot. Corp., 503 U.S. 258, 267 (1992) (“Congress

modeled § 1964(c) on the civil-action provision of the

federal antitrust laws.”). Indeed, Holmes further cemented the connection when it quoted “§ 4 of the Clayton Act . . . [which] reads in relevant part that

any person who shall be injured in his

business or property by reason of anything forbidden in the antitrust laws

may sue therefor ... and shall recover

threefold the damages by him sustained,

and the cost of suit, including a reasonable attorney’s fee.

Id. (quoting 15 U.S.C. § 15).

That provision authorizes the recovery of treble

damages by any person who is injured in his “business” or “property” by reason of anything forbidden by

the antitrust laws. Civil RICO authorizes the recovery

of treble damages by any person who is injured in his

“business” or “property” by reason of certain predicate

acts. 18 U.S.C. § 1964(c). Both statutes therefore contain identical remedies for injuries to business or property. And “[b]oth statutes share a common congressional objective of encouraging civil litigation to supplement Government efforts to deter and penalize the

respectively prohibited practices.” Rotella v. Wood,

528 U.S. 549, 557 (2000); cf. Sedima, 473 U.S. at 498

(emphasizing that RICO’s “‘remedial purposes’ are nowhere more evident than in the provision of a private

right of action”).

Because civil RICO was modeled on the Clayton

Act, harm that it treats as a business injury consti-

tutes injury under civil RICO as well. Thus, it is significant that “[l]oss of employment may be an injury to

business or property within the meaning of Section 4

of the Clayton Act.” Kinzler v. New York Stock Exch.,

62 F.R.D. 196, 200 (S.D.N.Y. 1974). Cases applying

that approach are legion. See, e.g., Ostrofe v. H.S.

Crocker Co., 740 F.2d 739, 744 (9th Cir. 1984), cert.

dismissed at request of parties, 469 U.S. 1200 (1985)

(holding that an employee subjected to retaliatory discharge for refusing to cooperate with a price-fixing

conspiracy in violation of the Sherman Act has standing under § 4 of the Clayton Act); Dailey v. Quality

Sch. Plan, Inc., 380 F.2d 484, 487 (5th Cir. 1967) (holding that “agreements among supposed competitors not

to employ each other’s employees not only restrict freedom to enter into employment relationships, but may

also, depending upon the circumstances, impair full

and free competition in the supply of a service or commodity to the public”); Nichols v. Spencer Int’l Press,

Inc., 371 F.2d 332, 336 (7th Cir. 1967) (holding a former sales supervisor of an acquired corporation had a

qualifying business injury from loss of employment in

connection with an alleged conspiracy to restrain interstate commerce); Vines v. Gen. Outdoor Advert. Co.,

171 F.2d 487, 491 (2d Cir. 1948) (holding a sales employee could have valid Clayton Act claim if he could

show that defendant deprived him of an opportunity

to earn by shifting a potential customer to another

firm pursuant to an agreement that violated the antitrust laws).

The bottom line is that loss of employment can be

a business injury under the Clayton Act. It then follows, a fortiori, that loss of employment can also be a

business injury for purposes of civil RICO.

II. PETITIONERS’ ATTEMPT TO RECAST

HORN’S INJURY IS UNAVAILING.

Petitioners seek to avoid the straightforward application of 18 U.S.C. § 1964(c) by transmogrifying

Horn’s injury into the personal-injury category and

thus outside the coverage of civil RICO. They assert

that Horn’s injury was the “unwitting ingestion of

THC.” Pet. Br. 14; see also id. at 20 (calling Horn’s

ingesting “an unwanted substance (THC)” a “quintessential personal injury”). It accuses Horn of “semantic

legerdemain” and “repackag[ing] a tort case” as a civil

RICO case. Id. at 14. It further asserts that because

“where the injury arose,” is what counts, it treats

Horn’s job loss as though it were damages suffered

from the ingestion. Id. at 16 (quoting Yegiazaryan v.

Smagin, 599 U.S. 533, 545 (2023)).

This Court should reject Petitioners’ conceit for

two essential reasons. First, Horn made no civil RICO

claim for any injury to his body from ingestion of THC.

Instead, he made a claim for job loss, a well-accepted

business injury, that flowed directly from Petitioners’

misrepresentation of the chemical content of its product and the resultant destruction of Horn’s professional standing and his employment. That is a purely

economic injury of the kind that RICO is designed to

remedy. Agency Holding, 483 U.S. at 151.

Second, in making the argument, Petitioners conflate injury with damages. They treat Horn’s job loss

as the damage, but it is indisputably an injury that

warrants the award of damages.

A. Petitioners

Claim.

Cannot

Redefine

Horn’s

Petitioners assert that Horn’s injury is not what

he pleaded as the basis for his civil RICO claim but

something else—the ingestion of an unwanted substance. Pet. Br. 20. In redefining the complained-of injury, Petitioners seek to put the cause of action outside

of civil RICO’s reach. One problem with Petitioners’

approach is that a plaintiff is the “master of the claim,”

Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987),

or as it is sometimes put, “master of the complaint.”

Holmes, 503 U.S. at 831; see also The Fair v. Kohler

Die & Specialty Co., 228 U.S. 22, 25 (1913) (Holmes,

J.) (“Of course, the party who brings a suit is master

to decide what law he will rely upon.”). A plaintiff’s

authority over the complaint and its claims means

that the plaintiff chooses what causes of action to

bring and which to allow to lie fallow. Caterpillar, 482

U.S. at 398–99.

Just as “he or she may avoid federal jurisdiction

by exclusive reliance on state law,” id. at 392, he or

she may avoid and choose the claims to be made in order to litigate a cause of action under a particular federal law. And, just as a “defendant cannot, merely by

injecting a federal question into an action that asserts

what is plainly a state-law claim, transform the action

into one arising under federal law, thereby selecting

the forum in which the claim shall be litigated,” id. at

399, Petitioners cannot recast Horn’s injury to render

it an ineligible personal injury. As Caterpillar observed, rather than be the master of the complaint,

“[i]f a defendant could do so, the plaintiff would be

master of nothing.” Id.

It is possible that Petitioners might seek to justify

their own attempt at “semantic legerdemain” by casting Horn’s allegations as a form of artful pleading. The

artful pleading doctrine applies when a plaintiff purposely avoids a necessary and unavoidable federal

question to defeat removal. Rivet v. Regions Bank, 522

U.S. 470, 475 (1998). It does not apply here. It is not

as though Horn has failed to disclose necessary facts.

It is not as though Horn’s injury in the form of loss of

his profession and employment does not stand as an

independent injury. Instead, the claim made by Petitioners is that there are different allegations Horn

might have made that would have foreclosed pleading

a civil RICO claim. This Court rejected a substantially

similar argument in Caterpillar and should do so here

as well.

In Caterpillar, this Court found that the defendant had

impermissibly attempt[ed] to create the

prerequisites to removal by ignoring the

set of facts (i.e., the individual employment contracts) presented by respondents, along with their legal characterization of those facts, and arguing that

there are different facts respondents

might have alleged that would have constituted a federal claim.

Caterpillar, 482 U.S. at 397. It concluded that the

“‘artful pleading’ doctrine cannot be invoked in such

circumstances.” Id. (footnote omitted).

While, as amicus has demonstrated, the loss of

employment equally meets the requirements of civil

RICO and the Clayton Act’s business-injury requirement, see supra Part I.B., the ingestion of an unwanted substance as an injury can be eschewed and

may not cause a cognizable injury until it manifests in

some harmful way. See, e.g., Wilson v. Johns-Manville

Sales Corp., 684 F.2d 111, 112 (D.C. Cir. 1982) (holding that ingestion of asbestos particles is not actionable until each separate and distinct disease it caused

becomes manifest); Hamilton v. Asbestos Corp., 998

P.2d 403, 409 (2000) (holding that for latent diseases,

such as asbestos-related diseases, the cause of action

does not accrue until the occurrence of a disability or

proves symptomatic).

Petitioners’ preferred claim based on ingesting an

unwanted substance caused no illness in Horn or provided no distinct and sufficiently ripe injury of its own,

rendering it not an actionable injury. Horn’s loss of

employment, however, was an actionable direct injury.

B. Petitioners Conflate Injury with Damages.

Although Petitioners accuse Horn of conflating injury with damages, it is Petitioners who do so. Pet. Br.

23 (saying that Horn “confuses the operative injury

with the ensuing damages”). In their unanchored

view, Horn’s loss of employment constitutes damages

because it results in the loss of past and future wages.

Id. Damages, however, have a clear meaning. When

RICO was enacted in 1970, Black’s Law Dictionary defined “actual damages” as “the amount awarded to a

complainant in compensation for his actual and real

loss or injury” and as “[s]ynonymous with ‘compensatory damages.’” Actual Damages, Black's Law Dictionary (4th ed. 1968). Consistently with that definition,

the Internal Revenue Service has long defined “damages” as “an amount received (other than workers’

compensation) through prosecution of a legal suit or

action, or through a settlement agreement entered

into in lieu of prosecution.” 26 C.F.R. § 1.104-1(c)

(2012); see also United States v. Burke, 504 U.S. 229,

253 (1992) (citing the 1991 version of the regulation,

which defined damages the same way although specifying that it was for a “legal suit or action based upon

tort or tort type rights”) (quoting 26 CFR § 1.104-1(c)

(1991)) (emphasis added by court).

Loss of employment is a cognizable injury. See,

e.g., Dailey, 380 F.2d at 487, and cases cited supra pp.

14−15. The damages that flow from that injury depend

on proof of current and future wages, the amount of

which are intended to compensate the plaintiff. Those

damages will vary depending on the job loss and the

length of time that applies. The loss itself is not the

damage. In Sedima, this Court made clear that Petitioners’ formulation fails. It held that the compensable

injury “necessarily is the harm caused by predicate

acts.” 473 U.S. at 497. Here, the harm or injury is the

loss of employment, which was caused by Petitioners’

false representations about the THC content of their

product. It is then Petitioners, rather than Horn, who

has engaged in what Petitioners assert is “semantic

legerdemain” and “repackag[ing].” See Pet. Br. 14.

By conflating the injury and damage, Petitioners

seem to instead raise an issue of causation, that is,

whether the predicate acts are sufficiently part of the

causal chain to satisfy RICO’s proximate cause requirement. That, however, is a separate question, answered in the next section of this brief.

III. PETITIONERS RAISE A CAUSATION ISSUE

THAT LACKS MERIT.

Petitioners make the assertion that the “conduct

directly responsible for [Horn’s] harm” was his employer’s decision to fire him, not petitioners’ alleged

mislabeling of a CBD supplement.” Pet. Br. 31 (suggesting the issue is similar to what this Court addressed in Hemi Group, LLC v. City of New York, 559

U.S. 1, 11 (2010)). Somewhat differently, but still connected to the causation issue, the district court ruled

that Horn’s lost earnings “flow[] from, and [are] derivative of, a personal injury,” bodily absorption of THC,

although it used that determination to question

whether a recoverable business injury existed. Pet.

App. 41a. Either view, however, lacks merit.

Civil RICO requires “some direct relation between

the injury asserted and the injurious conduct alleged.”

Holmes, 503 U.S. at 268. The connection here satisfies

that proximate-cause requirement. It is not attenuated or speculative in the sense that this Court identified in Anza v. Ideal Steel Supply Corp., 547 U.S. 451,

459 (2006). Nor is it remote in the way that this Court

found disqualifying in Hemi Group.

In Anza, an entrepreneur sued a competitor under

civil RICO, alleging that the competitor’s failure to

pay sales taxes and its fraudulent sales tax reports allowed it to undercut the plaintiff’s prices and create a

competitive advantage. This Court, however, found

that the fraud was committed against the State, which

lost sales tax revenue, while the harm suffered by the

RICO plaintiff, consisting of lost sales, which was indirect and speculative because of the difficulty of ascertaining which losses were attributable to the competitor’s decreased prices and the extent to which the

competitor reduced its prices because of its sales tax

savings. Id. at 458–59. This Court also suggested that

the plaintiff’s lost sales “could have resulted from factors other than petitioners’ alleged acts of fraud.” Id.

at 459. It was these “discontinuit[ies] between the

RICO violation and the asserted injury” that doomed

the cause of action. Id.

Unlike in Anza, Petitioners’ fraud was committed

against Horn, not a third party, and there was no discontinuity between it and his business injury.

Horn’s injury is also not too remote as was the case

in Hemi Group. There, New York City sued an online

cigarette retailer for lost tax revenue. Under the City’s

tax scheme, residents who purchased cigarettes were

responsible for paying tax for the possession of cigarettes, rather than for the purchase. The seller, Hemi,

was only responsible under federal law for filing reports with the State of New York that provided information about the customers it served. New York City

charged that Hemi’s failure to file those reports with

the State were predicate offenses that made the City’s

tax collection efforts impossible. 559 U.S. at 5–7.

This Court disagreed and found the City could not

satisfy RICO’s causation requirement because the

causal chain required the inclusion of actions too remote and attenuated to provide a direct effect. As in

Anza, New York City’s fraud claim was on behalf of a

third party, the State, which is where the customer information reports were to be filed. Id. at 11. The unavailability of the reports, which the City intended to

use to track down tax truants, enabled a fourth party,

cigarette purchasers, to avoid the tax. Id. Essentially,

too many others were involved to make treat causation

as direct. This Court noted that an additional consideration was whether there was a better party to sue,

which in this case it found was the State, which had

its own cigarette tax that was being evaded. Id. at 12.

The State’s interest was more direct.

Here, no better plaintiff exists for the harm caused

than Horn. Did Petitioners’ false claims cause Horn’s

job loss? The answer, at least at this stage of the litigation, is unquestionably “yes”. Horn took every logical step to assure himself that Petitioners were providing truthful information about the contents of their

product. Their false representation on that led him to

use it and, had its representation been truthful, would

not have affected his ability to continue in his job. Its

falsity, however, caused him to fail the drug test that

resulted in loss of his job.

The causal chain here fits well within the type discussed and approved by this Court in Lexmark International, Inc. v. Static Control Components, Inc., 572

U.S. 118 (2014). In that case, Static Control sued

Lexmark for a deceptive practice under the Lanham

Act because Lexmark told its customers to return, ra-

ther than sell ink cartridges after use in order to prevent competitors from enticing customers to purchase

from them by refilling empty cartridges and offering

them for sale. Static Control, however, was neither a

customer of nor a competitor with Lexmark. Instead,

it made a component part, a computer chip, that allowed competitors to render the refurbished cartridges

useable. If the competitors could not obtain the used

cartridges, then Static Control’s sales would dry up.

Because its causal connection was seemingly far down

the stream of commerce, Lexmark asserted that Static

Control’s effect was too remote. Id. at 120–23.

This Court recognized that the Lanham Act, like

civil RICO here, had direct causation requirements,

but held they were met even though the injury was not

a literal “first step” in the causal chain. Id. at 139 (citations omitted). What counted was that liability in

that case aligned with statutory purposes and that

there was no “discontinuity” between the wrongful

conduct and the injury. Id. at 140. That finding of continuity was informed by the existence of “something

very close to a 1:1 relationship” between the false advertising at issue (the requirement to return cartridges) in that case and the harm it caused to Static

Control’s business (thinning out its customers). Id. at

139. Every cartridge returned to Lexmark under its

false requirement became unavailable for the computer chip that Static Control manufactured. And no

intervening third party was better situated to sue.

That same type of connection exists here between

the false advertising that constituted Petitioners’

predicate acts and Horn’s job loss, for there is no discontinuity, no third party involved, and close to a 1:1

relationship between the false advertising and Horn’s

injury. Proximate cause, at least at this stage of the

litigation, is satisfied.

IV. CIVIL RICO’S STATUTORY TEXT LEAVES

NO ROOM FOR PETITIONERS’ EXTRATEXTUAL

APPROACH

POLICY

ARGUMENTS.

A. As in Sedima, This Court Should Reject

an Invitation to Limit the Scope of Civil

RICO Beyond Its Plain Text.

Petitioners assert that affirming the Second Circuit in this case will result in an expansion of civil

RICO lawsuits that Congress never intended to encourage. Pet. Br. 14 (speculating that “innumerable

plaintiffs could repackage innumerable state tort

cases” if the Second Circuit is affirmed). Petitioners

demonstrate no basis in text or otherwise to assign

that intention to Congress. Instead, “RICO is to be

read broadly.” Sedima, 473 U.S. at 497. Congress “selfconsciously [chose] expansive language.” Id. And to

make that purpose abundantly clear, it included an

“express admonition that RICO is to ‘be liberally construed to effectuate its remedial purposes.’” Id. (quoting § 904(a), 84 Stat. at 947).

Petitioners’ plea that this Court rewrite the statute mirrors a similar entreaty rejected in Sedima.

There, this Court spurned the circuit court’s atextual

attempt to confine the reach of civil RICO for the same

reason Petitioners argue here; that is, to avoid a proliferation of civil RICO litigation. Id. at 488–90. In

Sedima, it was the Second Circuit that expressed its

“distress at the ‘extraordinary, if not outrageous,’ uses

to which civil RICO has been put.” Id. at 499. This

Court reacted to that characterization by saying the

uses were consistent with the congressional design,

which established the “breadth of the predicate offenses, in particular the inclusion of wire, mail, and

securities fraud.” Id. at 500.

Consistent with that ruling, this Court should reject the current invitation to revise the statute to limit

its reach. Petitioners’ “[p]olicy arguments are properly

addressed to Congress, not this Court,” because “[i]t is

Congress’s job to enact policy and it is this Court’s job

to follow the policy Congress has prescribed.” SAS

Inst., Inc. v. Iancu, 584 U.S. 357, 368 (2018).

Because Horn has pleaded a qualifying business

injury, the loss of his employment, based on properly

pleaded predicate acts, and sought a remedy addressed solely to that injury, Congress’s prescribed

policy here is clear: civil RICO supplies a cause of action and a remedy. No language indicates a congressional purpose to withdraw eligibility for a civil RICO

lawsuit if the business injury was somehow tangentially related to an earlier personal injury that manifested itself at the same time as Horn’s business injury. Cf. Pet. App. 3a (“[N]othing in § 1964(c)’s text, or

RICO’s structure or history, supports an amorphous

RICO standing rule that bars plaintiffs from suing

simply because their otherwise recoverable economic

losses happen to have been connected to or flowed from

a non-recoverable personal injury”).

After all, this Court has admonished litigants that

“it cannot limit a cause of action that Congress has

created merely because ‘prudence’ dictates.’” Lexmark,

572 U.S. at 128. Nor can it engage in the fundamentally legislative act of limiting a statute’s reach when

there exists “no justification in the statutory language” or the Court’s precedents for such a limitation.

Oncale, 523 U.S. at 79.

Notably, Horn’s claimed injury is not about an adverse bodily reaction to the CBD product he purchased. If it were, that certainly would be a personal

injury. His claim is that by misrepresenting the content of their product, Petitioners foreseeably and directly injured him in his profession and his employment. By including an ingredient that they calculatedly declared was 100-percent absent, they lured Horn

into purchasing and using the product so that, when

drug tested, he would lose his profession and his job,

thereby creating a cognizable business injury. They

fully understood that it would be used by those who

faced adverse consequences for ingesting any amount

of THC and would be attracted to their product because of the false claim that it was 100-pecent THCfree.

Even if, arguendo, there were some relationship

between Petitioners’ identified personal injury (ingesting an unwanted substance) and Horn’s legitimate

business injury, civil RICO contains no language that

would exclude the business injury from its ambit

simply because that injury emerges from a common

nucleus of operative facts. In fact, the statute contains

no language that excludes a business injury for a

plaintiff who has either a preexisting or concurrent

personal injury.

Consider this scenario that unquestionably fits

Congress’s vision for civil RICO. Imagine persons engaged in a protection racket rough up a restaurant

owner for failing to pay his tribute. The owner is

knocked out. While unconscious and because he could

not attend to the ovens, they catch fire and burn the

restaurant down. Even if the owner awakes in time to

avoid being killed in the fire, he would have a personal

injury from the beating, which would have a causal

link to the business and property injuries that put the

store out of business. Yet, Congress’s clear and explicit

intention that RICO “be liberally construed to effectuate its remedial purposes,” § 904(a), 84 Stat. at 947,

supports the owner’s civil RICO claim for the consequential damages of his loss of business and property,

even if he cannot make a civil RICO claim for his personal injuries that precipitated the RICO injury. The

personal injuries he suffered do not cancel out his civil

RICO claims, even though it might be asserted that

the nature of his injury was a contributing cause of his

subsequent business and property loss.

The connection between Petitioners’ view of a personal injury and Horn’s business injury is actually

more attenuated than the hypothetical just described.

Horn’s business injury flows directly from Petitioners’

misrepresentation of its product’s THC content. Without it, Horn’s employment would have remained unaffected. The ingestion of THC, undiscovered until after

he lost his job, is, if anything, a separate injury, even

if had not yet accrued, that is, at best, concurrent with

his business injury.

The inescapable conclusion is that, by its terms,

civil RICO still straightforwardly provides a cause of

action for the qualifying business and property injuries, both in the hypothetical and under the facts of

Horn’s allegations. Horn’s business injury plainly

qualifies, regardless of whether he also suffered a personal injury, because the statute was “designed to

remedy economic injury” resulting from predicate

acts. Agency Holding, 483 U.S. at 151.

In Sedima, this Court was asked to require a criminal conviction as a prerequisite to a civil RICO action.

Instead, it held that the “language of RICO gives no

obvious indication that a civil action can proceed only

after a criminal conviction.” 473 U.S. at 488. By the

same token, its text gives no obvious indication that a

civil action for a business injury cannot proceed if it

was preceded by or occurred concurrently with a personal injury that forms no part of the prayed-for RICO

damages.

Horn meets the elements for a civil RICO claim.

Sedima confirms that “the statute requires no more

than this.” Id. at 497; see also id. at 480 (“Where the

plaintiff alleges each element of the violation, the compensable injury necessarily is the harm caused by

predicate acts sufficiently related to constitute a pattern, for the essence of the violation is the commission

of those acts in connection with the conduct of an enterprise.”).

B. Petitioners Wrongly Suggest That

Plaintiffs Will Use Civil RICO to Avoid an

Imaginary State Hostility to Personal

Injury Actions.

Petitioners wrongly invoke various state laws,

claiming that “States do not universally welcome personal-injury lawsuits,” Pet. Br. 30, as additional reasons to cabin RICO lawsuits, suggesting that RICO

would provide a basis for suit that no longer exists or

is otherwise limited under state law. That assertion

makes no sense.

Petitioners point to the existence of statutes of repose in products liability cases because they limit

causes of action after a fixed period of time as a prime

example of why plaintiffs would prefer RICO. Pet. Br.

30. However, statutes of repose applicable to products

cases are lengthier than the statutes of limitations applicable in civil RICO. Typically, a statute of repose

places a time limit based on a legislative judgment

about the “useful life” of a product. See, e.g., Kan. Stat.

Ann. § 60-3303 (establishing a “useful life ten-year

statute of repose,” with exceptions for latent diseases

and manufacturer warranties that go beyond ten

years); Conn. Gen. Stat. § 52-577a(a) (establishing a

ten-year statute of repose unless the product had a

longer useful life); Wash. Rev. Code § 7.72.060(2) (creating a presumption that a product has a useful life of

twelve years). In contrast to those decade-long or

longer time periods, this Court has applied the Clayton Act’s four-year statute of limitations to civil RICO

actions. Agency Holding, 483 U.S. at 156. RICO’s

shorter statute of limitations provides no rational basis to believe statutes of repose would encourage plaintiffs to avoid state tort law as too limiting.

Similarly unavailing is Petitioners’ claim that

some states have limited joint and several liability.

Pet. Br. 30. Petitioners presume that plaintiffs would

rather utilize that common-law doctrine through

RICO than bring a state tort action. Yet, if that were

true, there would be existing evidence of that phenomenon today. The shift in state statutes away from pure

joint and several liability took place in the 1980s and

early 1990s. See Restatement (Third) of Torts: Apportionment of Liability, § B18 cmt. a, reporters’ note at

170–71. Surely, if Petitioners’ speculation were valid,

there would be empirical support for their assertion—

but there is none.

Petitioners also claim that some states have abrogated the collateral source rule and a few cap “all damages in personal-injury cases.” Pet. Br. 30. These types

of limitations, to the extent they still exist, date back

to the mid-1970s. See Catherine M. Sharkey, Unintended Consequences of Medical Malpractice Damages

Caps, 80 N.Y.U. L. Rev. 391, 393 (2005) (describing the

1975 California damage cap as the “progenitor” of

these laws). Most state legislative limits, whether

through change to the collateral source rule or limiting

damages with a cap, apply only to medical-malpractice

cases. See Lee Harris, Tort Reform As Carrot-andStick, 46 Harv. J. on Legis. 163 (2009). It is difficult to

imagine that category of lawsuit’s overlap with a civil

RICO case.

Yet, the existence of limitations in some states

hardly provides a reason for plaintiffs to seek to shift

their claims to RICO. If any incentive existed, it would

be because of the availability of treble damages

through RICO. Plaintiffs would always prefer treble

damages to a single award, even without other limitations. Because there has been no rush to opt for treble

damages, this argument should receive no traction.

Still, Petitioners ignore the substantial evidence

that the States display solicitude, rather than hostility, to personal injury actions. Take, for example, the

increasing State use of tort cases against harmful industries while wearing their parens patriae hat to vindicate their residents’ personal injuries. They have

brought important actions over misrepresentations for

tobacco products, 2 opioids, 3 toxic mortgages and foreclosures, 4 and other products. The States plainly do

not disfavor tort lawsuits.

2 The States’ Master Tobacco Settlement “was the result of nearly

two years of litigation brought by forty-six state Attorneys General . . . for the health care injury inflicted by tobacco consumption.” Arthur B. LaFrance, Tobacco Litigation: Smoke, Mirrors

and Public Policy, 26 Am. J.L. & Med. 187, 188 (2000) (footnote

omitted).

3 See In Re: Nat’l Prescription Opiate Litig., 1:17-md-02804-DAP

(N.D. Ohio).

4 Lawsuits over robo-signed foreclosure documents were settled

by the nation’s largest mortgage servicers with forty-nine state

Attorneys General, the District of Columbia, and the federal government in February 2012. Consumer Financial Prot. Bur., What

Footnote continued on next page.

Moreover, the vast majority of states have explicit

constitutional provisions that recognize access to the

courts and a right to a remedy, putting a constitutional imprimatur on assuring that injured persons

can seek redress through the courts. As the then-Chief

Justice of Texas wrote,

Of all the rights guaranteed by state constitutions but absent from the federal

Bill of Rights, the right to a remedy

through open access to the courts may be

the most important. The remedy clause

. . . appears in the constitutions of forty

states.

Hon. Thomas R. Phillips, The Constitutional Right to

A Remedy, 78 N.Y.U. L. Rev. 1309 (2003).

Some states have construed these provisions to

protect access and/or remedies available at common

law unless an adequate quid pro quo provides a reasonable substitute. 5 In addition, five states have explicit constitutional provisions prohibiting limitations

on damages. 6 Other state constitutions prohibit damage caps in wrongful death cases. 7 State supreme

Was the National Mortgage Settlement (Sept. 8, 2020), https://tinyurl.com/v78psk3a.

5 See, e.g., Kluger v. White, 281 So.2d 1, 4 (Fla. 1973).

6 Ariz. Const. art. 2, § 31; Ark. Const. art. 5, § 32; Ky. Const. § 54;

Pa. Const. art. 3, § 18; Wyo. Const. art. 10, § 4.

7 N.Y. Const. art. 1, § 16; Ohio Const. art. I, § 19a; Okla. Const.

Footnote continued on next page.

courts also have held a variety of damage limits unconstitutional, either on their face 8 or as applied. 9

Petitioners’ claims about state treatment of personal injury cases have no basis in the real world and

cannot justify limiting the reach of civil RICO. Nor do

Petitioners’ claims about tort cases suggest that they

can be reconfigured into RICO cases. To give one example, Petitioners flag a fact pattern where “loss of

consortium, loss of guidance, mental anguish, and

pain and suffering” provide the pecuniary injury that

allows a tort claim to be “refashioned into supposed

injuries to business or property.” Pet. Br. 25-26. Petitioner bases that speculation on Doe v. Roe, 958 F.2d

763, 770 (7th Cir. 1992), cited at Pet. Br. 26, in which

the plaintiff brought a civil RICO action in which “she

art. 23, § 7.

8 See, e.g., Hilburn v. Enerpipe Ltd., 442 P.3d 509 (Kan. 2019)

(holding damage cap violated right to trial by jury); Beason v. I.

E. Miller Servs., Inc., 441 P.3d 1107 (Okla. 2019) (declaring cap

on noneconomic damages in personal-injury cases an unconstitutional special law under the state constitution); N. Broward

Hosp. Dist. v. Kalitan, 219 So. 3d 49 (Fla. 2017) (holding damage

cap violated state equal protection guarantee); Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010)

(holding cap violated jury-trial right); Lebron v. Gottlieb Mem.

Hosp., 930 N.E.2d 895 (Ill. 2010) (holding cap violated separation

of powers).

9 Brandt v. Pompa, 220 N.E.3d 703 (Ohio 2022) (holding statutory

cap’s exemption for catastrophic physical injuries had to be extended to catastrophic psychological injuries as a matter of due

process).

alleges that her divorce attorney defrauded her into

having sexual relations with him in lieu of payment

for his legal services.” 958 F.2d at 765. The Seventh

Circuit had no difficulty finding that her alleged property injuries, “loss of earnings, her purchase of a security system and her employment of a new attorney,”

were “plainly derivatives of her emotional distress—

and therefore reflect personal injuries which are not

compensable under RICO.” Id. at 770.

Affirming the Second Circuit in Horn’s case would

not change the result in Doe. The costs to Doe that she

alleged as property injuries were actions she took herself, not in reliance on her lawyer’s misrepresentations. See id. at 769. Horn, on the other hand, relied

upon Petitioners’ portrayal of their product with a sufficiently direct consequence of losing his employment,

not by his choice, but because the misrepresentation

doomed his continued employment. Horn had a “legal

entitlement to business relations unhampered by

schemes prohibited by the RICO predicate statutes.”

Mendoza v. Zirkle Fruit Co., 301 F.3d 1163, 1168 n.4

(9th Cir. 2002). Petitioners violated that promise, and

RICO provides the appropriate remedy

CONCLUSION

For the foregoing reasons, this Court should affirm the decision of the Second Circuit in this case.