Opposition Brief — Philip Morris USA Inc. v. United States

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Nos. 09-978 & 03-994; MAY 25 233

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IN THE ae 7

Supreme Court of the Anited States

UNITED STATES OF AMERICA,

Petitioner,

PHILIP Morris USA INC.

(f/k/a Philip Morris, Inc.), ET AL.,

Respondents.

TOBACCO-FREE KIDS ACTION FUND, ET AL.,

Petitioners,

Vv.

PHILIP MORRIS USA INC.

(f/k/a Philip Morris, Inc.), ET AL.,

Respondents.

On Petitions For Writs Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

BRIEF IN OPPOSITION

MICHAEL A. CARVIN MIGUEL A. ESTRADA

Counsel of Record Counsel of Record

ROBERT F. MCDERMOTT, JR. AMIRC.TAYRANI

JONES DAY GIBSON, DUNN & CRUTCHER LLP

51 Louisiana Avenue, N.W. 1950 Connecticut Avenue, N.W.

Washington, D.C. 20001 Washington, D.C. 20036

(202) 879-3939 (202) 955-8500

macarvin@jonesday.com mestrada@gibsondunn.com

Counsel for Respondent F ~ Counsel for Respondent

Reynolds Tobacco Company Philip Morris USA Inc.

[Additional Counsel Listed on Inside Cover/

MICHAEL B. MINTON

Counsel of Record

BRUCE D. RYDER

JASON A. WHEELER

THOMPSON COBURN LLP

One US Bank Plaza

St. Louis, MO 63101

(314) 552-6000

mminton@thompsoncoburn.com

ROBERT A. LONG, JR.

JONATHAN L. MARCUS

MARK W. MOSIER

COVINGTON & BURLING LLP

1201 Pennsylvania Ave., N.W.

Washington, D.C. 20004

(202) 662-6000

Counsel for Respondent

Loridlard Tobacco Company

DOUGLAS G. SMITH, P.C.

Counsel of Record

RENEE D. SMITH

KIRKLAND & ELLIS LLP

300 N. LaSalle

Chicago, IL 60654

(312) 862-2000

douglas.smith@kirkland.com

Counsel for Respondent Brown &

Williamson Holdings, Inc.

Guy MILLER STRUVE

Counsel of Record

CHARLES S. DUGGAN

DAVIS POLK & WARDWELL

LLP

450 Lexington Avenue

New York, New York 10017

(212) 450-4192

guy.struve@davispolk.com

Counsel for Respondent

Altria Group, Inc.

QUESTION PRESENTED

Whether the court of appeals correctly held that

disgorgement and other backward-looking remedies

are unavailable under 18 U.S.C. § 1964(a), which au-

thorizes district courts to issue only “appropriate or-

ders” that “prevent and restrain” violations of the

Racketeer Influenced and Corrupt Organizations

Act.

RULE 29.6 STATEMENT

Pursuant to this Court’s Rule 29.6, undersigned

counse! state that:

Philip Morris USA Inc. is a wholly owned sub-

sidiary of Altria Group, Inc. Altria Group, Inc. is the

only publicly held company that owns 10% or more of

Philip Morris USA Inc.’s stock.

Altria Group, Inc. has no parent company, and

no publicly held company owns 10% or more of its

stock.

R.J. Reynolds Tobacco Company is directly and

wholly owned by R.J. Reynolds Tobacco Holdings,

Inc. (a Delaware corporation). R.J. Reynolds Tobacco

Holdings, Inc. is a direct, wholly owned subsidiary of

Reynolds American, Inc., a publicly traded corpora-

tion. Brown & Williamson Holdings, Inc. owns more

than 10% of the common stock of Reynolds American,

Inc.

Brown & Williamson Holdings, Inc. is an indi-

rect, wholly owned subsidiary of British American

Tobacco p.l.c., and no other publicly held company

owns 10% or more of its stock.

Lorillard Tobacco Company is a wholly owned

subsidiary of Lorillard, Inc. Lorillard, Inc. is the only

publicly held company that owns 10% or more of Lor-

illard Tobacco Company’s stock.

ill

TABLE OF CONTENTS

Page

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CR EWMPU BOMBA ITY oo cc cn ccrccccccnsscensnccconescesscseoscenssneoess 1

sc aralicanoieuieoacas mueuvindnbhemavenawnsedes 1

STATUTORY PROVISIONS INVOLVED ................. 1

UNE 5. 0c cca cost plslonas oi acisnaamumarataawensbonecononeos 2

REASONS FOR DENYING THE PETITIONG.......... 9

I. THE COURT OF APPEALS’

INTERPRETATION OF SECTION 1964(a) IS

CONSISTENT WITH TrIs COURTS

gt, EET SA GE LIA i ee 10

A. The Text Of Section 1964(a) And

RICO’s Comprehensive Remedial

Framework Exclude Disgorgement

And Other Backward-Looking

EE ES Ser EASES Oe 10

B. This Court’s Precedent Confirms

That Backward-Looking Remedies

Are Unavailable Under Section

| Iain SERIES aa nae = ee ee 18

Il. THE QUESTIONS PRESENTED Do Not

IMPLICATE A CIRCUIT SPLIT................0cccceecee 23

III]. THE D.C. CiRCUIT’S REMEDIAL FIOLDING

HAS LIMITED IMPORTANCE OUTSIDE

THIS UNPRECEDENTED LITIGATION ............... 27

aed hos Bahr sc dinaiind. Sane crayabrontnaneomconeses 31

Fe EE HAE EI is evitiapsvesicaccspaticuasnenteaionrss la

TABLE OF AUTHORITIES

Page(s)

CASES

Agency Holding Corp. v. Malley-Duff &

Assocs., 483 U.S. 143 (1967) ..................... ee

Albemarle Paper Co. v. Moody,

422 UB. SG Certs ceressncsss., Bistheci 0

CFTC v. Wilshire Inv. Mgmt. Co.,

531 FB TAS Ce Rete ar sos essvccc ccc s.ccecc000.2. 20

Chauffeurs, Teamsters & Helpers, Local

No. 391 v. Terry, 494 U.S. 558 (1990 12

Cooper Indus., Inc. v. Aviall Servs., Inc.,

BAS Ua Re ec vceycces0c0.000.00. 17

FDA v. Brown & Williamson Tobacco

Corp. 528 U5, Batt We eatuaaesdcnsescscccvccssccssccsees. 13

Ford Motor Co. v. United States.

405 U.S. S68 (aire cess ae |

Great-West Life & Annuity Ins. Co. v.

Knudson, 534 U.S. 204 (2002) ...0..00 oe. 16, 29

Holmes v. Sec. Investor Prot. Corp.,

503 U.S. Barer ee oc sccccess. ceases 14

Jett v. Dallas Indep. Sch. Dist.,

491 U.S. 701 (1989)......... a ..16

Leocal v. Ashcroft,

543 U.S. © Che ceens.....-...... ee eo

Lorillard Tobacco Co. v. Reilly,

SSS UB, Bie cere vcccsneevercesccsesees. 7

Meghrig v. KFC Western, Inc.,

Re os Mee ie icsevcivatacecesomninns 6, 21, 22.23

Mertens v. Hewitt Assocs.,

I EF ie ee I densics sistaretecuvintuaceilardarveedaian 11

Middlesex County Sewerage Auth. v. Nat'l

Sea Clammers Ass’n, 453 U.S. 1 (1981) .....0.0...... 22

Mitchell v. Robert DeMario Jewelry, Inc.,

Roe ee Ch) |) ee eeenreennn 2, 16, 20, 26, 30

Natl R.R. Passenger Corp. v. Nat'l Ass’n

of R.R. Passengers,

ae Gee Ie i iccdisneccsenevadnttbaniadinemasccedcceamncs 17

Nw. Airlines v. Transp. Workers Union of

FR. , Ge See TE aisha 16

Porter v. Warner Holding Co.,

328 U.S. 395 (1946)............ 2, 10, 17, 18, 19, 26, 30

Respass v. Commonwealth,

115 S.W. 1131 Gy. 1909).............. hauecvepaaeiinionl 19

Reves v. Ernst & Young,

Be Oe rato ertinnticcaiianvemaensintsccessscecniwets 14

Richard v. Hoechst Celanese Chem.

Group, Inc., 355 F.3d 345

Cn ee ae ccdeute 25

Switchmen’s Union of N. Am. v. Natl

Mediation Bd..,

ee EF Se IR sieves sbliidacssintmcnvecdovunveanemsuntocs 16

Texas Indus., Inc. v. Radcliff Materials,

Rane, SE Ty Be re Ca i tikewiitkvactite cece etesnsivracescrneicenss 14

Tull v. United States,

| SOR. Se te Se. 7) er remnne |

United States v. Bajakajian,

a sais wersliesnomaehehinl 31

United States v. Carson,

62 F.3d 1175 (2d Cir. 1905) «..sc0sccvccsscvescesssees- 24, 28

United States v. Lane Labs-USA Inc.,

ry bas Th” ee. Sr 27

United States v. Philip Morris Inc.,

116 F. Supp. 2d 131 (D.D.C. 2000)...........00000000.. 5

United States v. Philip Morris USA Inc.,

ee eh oe cacabeduminennemmeide 7

United States v. Philip Morris USA Inc.,

396 F.3d 1190 (D.C. Cir.), cert. denied,

TR GE E> Siecle PO eee 2

Unite d States v. Rx Depot, Inc.,

BSS FSG TOG CGE Cae, BG) eric cnicr even ccoscccecsesns, 27

United States v. Standard Oil Co. of Cai.,

ee ne Gu vapse kine 30

United States v. Turkette,

Lk ae Rees Soap amet Ne 20

STATUTES

Family Smoking Prevention and Tobacco

Control Act, Pub. L. No. 111-31, 123

Stat. 1776 (oume ZZ, ZU0D)......-...0c0cccccceseeeesee. 13, 31

Rn ee A alias sicdcaisaiiinintices oheeecebbunlecneorcnane epeiiicanmiae 14

a GI isi thuichetesmasncoinncounonndadvmceana nen eawuieiied 14

Be ae ID vst ysersaesnioyndauseosithuenintoedaciescacanbel 26

Be de Oe RE echcoateavndesceeccanicancactioaiincondusionbbaaions 4

NID eicciceresunaiencatenicaeniesensectsatbiia 4,10, 11

Vil

2 ae Ese % |) Rae nenerem rerun meen eae nee ae se, 17

OF AA BE iesinicccinnicmmnindontiboinaunedlicin 4

ee es > NI ix Sones encode aysereer emlevimereee 1

es ee ee IIE eiresosda vitivenrcisecceonersunaseciean 4

Oe Ue 0 I isderisetcomennmminenaninioe 4

Be ee eT irri riscieervavetarcartaernnn 21, 23

ee Wr i dctintinesnstcccasacasscenisteussucseseussoreieee 23

OTHER AUTHORITIES

Administrative Office of the United

States Courts, 2008 Annual Report of

NE Cop criedossedcroceevaseeuceceacueeee 28

Restatement (First) of Restitution (1937) ................ 29

ee DO ET CE ciccetemiincradiecciintraeenwe 19

Webster’s New International Dictionary

NED aiesncssdcicass'evnoneseccaselesoaies no ae ae 11

World Bank, World Development Indica-

tors Database, at http://siteresources.

worldbank.org/DATASTATISTICS/

RII MIE vesiccadotsaiceedicr ces coe 28

67 Fed. Reg. 12,090 (Mar. 18, 2002)............00...e. 15

BRIEF IN OPPOSITION

Respondents Philip Morris USA Inc. (“PM USA”),

R.J. Reynolds Tobacco Company, Lorillard Tobacco

Company, Brewn & Williamson Holdings, Inc., and

Altria Group, Inc. respectfully submit this brief in

opposition to the petitions for writs of certiorari filed

by the United States and by the Tobacco-Free Kids

Action Fund et al. (“intervenors”).

OPINIONS BELOW

The court of appeals’ opinions are reported at 566

F.3d 1095 (U.S. Pet. App. la) and 396 F.3d 1190

(U.S. Pet. App. 99a). The opinions of the United

States District Court for the District of Columbia are

reported at 449 F. Supp. 2d 1 (U.S. Pet. App. 258a;

Defs.’ Pet. App. 101a), 321 F. Supp. 2d 72 (U.S. Pet.

App. 177a), and 116 F. Supp. 2d 131 (U.S. Pet. App.

196a).

JURISDICTION

The court of appeals filed its final opinion on

May 22, 2009. It denied respondents’ timely peti-

tions for rehearing or rehearing en banc, and a re-

lated suggestion of mootness, on September 22, 2009.

On December 11 and 15, 2009, the Chief Justice ex-

tended the time for the government and intervenors

to file petitions for writs of certiorari to and includ-

ing February 19, 2010. Nos. 09A572, 09A573. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

The Racketeer Influenced and Corrupt Organiza-

tions Act (“RICO”), 18 U.S.C. §§ 1961-1968, is set

forth in full in the appendix to PM USA’s petition for

a writ of certioram (No. 09-976). Sections 1963 and

1964 of RICO are reproduced in the appendix to this

brief in opposition.

STATEMENT

This is not the first time that petitioners’ ques-

tions presented have come before the Court in this

case. In 2005, the Court declined to review the D.C.

Circuit’s interlocutory decision that the government

cannot obtain disgorgement and other backward-

looking remedies under Section 1964(a) of RICO—a

provision limited to relief that “preventis] and re-

strain[s]” RICO violations. United States v. Philip

Morris USA Inc., 396 F.3d 1190 (D.C. Cir.), cert. de-

nied, 546 U.S. 960 (2005) (U.S. Pet. App. 99a).

The D.C. Circuit reaffirmed that decision last

year (U.S. Pet. App. la), and the government, joined

by intervenors, now seeks for a second time this

Court’s review of that holding. But petitioners iden-

tify no developments in the law of RICO that call

into question the court of appeals’ holding or this

Court’s decision to deny review. As in 2005, it re-

mains the case that the government pursues dis-

gorgement under Section 1964(a) only exceptionally

rarely, that no appellate court has ever adopted peti-

tioners’ sweeping argument that the provision au-

thorizes purely backward-looking remedies, and that

every court of appeals that has addressed the argu-

ment has rejected it.

Indeed, in the forty years since RICO was en-

acted, only three courts of appeals have addressed

the potential availability of disgorgement under the

narrow language of Section 1964(a). Not a single one

of those circuits has agreed with the government’s

argument here: that Porter v. Warner Holding Co.,

328 U.S. 395 (1946), and Mitchell v. Robert DeMario

Jewelry, Inc., 361 U.S. 288 (1960), require that dis-

gorgement be broadly available under RICO. In-

stead, as intervenors concede, all three circuits to

consider the question have concluded that “any

§ 1964(a) remedy must address future illegal acts.”

Int. Pet. 17 (emphases in original).

No circuit has adopted the government’s argu-

ments under Porter and Mitchell for good reason:

the text and structure of RICO plainly provide that

disgorgement and other backward-looking relief can-

not be awarded under Section 1964(a). The avail-

ability of such relief would not only nullify Section

1964(a)’s “prevent and restrain” language but also

circumvent RICO’s comprehensive remedial frame-

work. As the court of appeals explained, other provi-

sions of RICO provide mechanisms for separating an

alleged racketeer from its ill-gotten gains, but those

provisions impose procedural protections—including

trial by jury—that are inapplicable under Section

1964(a). The government seeks to circumvent those

procedural requirements here by obtaining in a Sec-

tion 1964(a) action tried before a single district court

judge a punitive order forfeiting $280 billion of de-

fendants’ past profits.

Accordingly, as it has done once before, the Court

should deny review because the questions presented

do not implicate a conflict with the precedent of this

Court or other courts and have limited significance

outside the “unique” context of this case. Int. Pet.

15.

1. On the same day in 1999 that it announced

the termination of a grand jury investigation of de-

fendants without seeking an indictment, the gov-

ernment filed this suit against the major domestic

tobacco companies and two industry organizations.

The government brought claims under the Medical

Care Recovery Act, 42 U.S.C. § 2651(a), and Medi-

care Secondary Payer statute, id. § 1395y(b)(2), seek-

ing billions of dollars in damages for smoking-related

health-care costs.

The government also alleged that defendants had

violated RICO by forming an “associated in fact” en-

terprise that undertook a decades-long campaign to

mislead the American public about the health effects

and addictiveness of smoking. In framing its RICO

claim, the government did not invoke any of the pro-

visions that explicitly authorize monetary relief for

past RICO violations, including RICO’s criminal for-

feiture provision (18 U.S.C. § 1963(a))—which re-

quires a jury trial and proof beyond a reasonable

doubt—or its civil treble-damages provision (id.

§ 1964(c)}—which requires a jury trial and proof of a

nonremote injury proximately caused by the defen-

dant’s conduct.

The government instead brought suit under Sec-

tion 1964(a) of RICO. That provision—which pro-

vides for trial before a single district court judge and

does not require proof beyond a reasonable doubt or

a showing of proximate cause—grants district courts

jurisdiction to issue only “appropriate orders” that

“prevent and restrain” RICO violations. 18 U.S.C.

§ 1964(a) (emphasis added). The government did not

limit itself, however, to seeking equitable remedies

aimed at preventing and restraining future RICO

violations. The government sought both sweeping

injunctive relief and the purported “disgorgement” of

$280 billion in past profits that defendants had

earned from cigarette sales since 1971, the year after

RICO was enacted.

The district court eventually dismissed the gov-

ernment’s statutory claims for the recovery of health-

care costs (United States v. Philip Morris Inc., 116 F.

Supp. 2d 131, 135 (D.D.C. 2000)), but denied defen-

danis’ motion to dismiss the RICO disgorgement

claim, and their subsequent motion for summary

judgment, on the ground that “disgorgement is a

permissible remedy under Section 1964(a).” U.S.

Pet. App. 183a n.7.

2. The district court certified its summary judg-

ment ruling on the disgorgement claim for interlocu-

tory appeal to the D.C. Circuit.

The D.C. Circuit reversed. The court of appeals

held that “the language of § 1964(a) and the compre-

hensive remedial scheme of RICO preclude dis-

gorgement as a possible remedy in this case.” U.S.

Pet. App. 110a. The court explained that jurisdiction

under Section 1964(a) to “prevent and restrain”

RICO violations “is limited to forward-looking reme-

dies that are aimed at future violations.” Jd. at 113a.

The meaning of the “prevent and restrain” limita-

tion, the court continued, is confirmed by the fact

that the three remedies explicitly mentioned in Sec-

tion 1964(a)—divestiture, injunctions “restrict[ing]

... future activities,” and dissolution—‘are all aimed

at separating the RICO criminal from the enterprise

so that he cannot commit violations in the future.”

Id. (emphasis in original). In contrast with these ex-

amples, “[dlisgorgement ... is a quintessentially

backward-looking remedy focused on remedying the

effects of past conduct to restore the status quo,” and

is therefore unavailable under Section 1964{a). Id.

at 113a-14a.

In reaching this conclusion, the D.C. Circuit re-

jected the government’s argument that Sec-

tion 1964(a) is “a plenary grant of equitable jurisdic-

U.S. Pet. App. 114a. The court of appeals ex-

tion.”

plained that the government’s open-ended reading of

the statute “not only nullifies the plain meaning of

the terms [‘prevent’ and ‘restrain’] and violates our

canon of statutory construction that we should strive

to give meaning to every word, but also neglects Su-

preme Court precedent.” Jd. (citations omitted). The

court specifically relied on Meghrig v. KFC Western,

Inc., 516 U.S. 479 (1996), where this “Court held that

compensation for past environmental cleanup was

ruled out by the plain language of the Resource Con-

servation and Recovery Act which authorized actions

‘to restrain’ persons who were improperly disposing

of hazardous waste.” U.S. Pet. App. 114a. “If ‘re-

strain’ is only aimed at future actions,” the court rea-

soned, ““prevent’ is even more so.” Id.

Finally, the court of appeals reasoned that

“[plermitting disgorgement under § 1964(a)

would ... thwart Congress’ intent in creating RICO’s

elaborate remedial scheme.” U.S. Pet. App. 119a.

“The disgorgement requested here is similar in effect

to the relief mandated under the criminal forfeiture

provision, § 1963(a), without requiring the inconven-

ience of meeting the additional procedural safe-

guards that attend criminal charges,” and would

permit the government to “collect sums paralleling—

perhaps exactly—the damages available to individ-

ual victims under § 1964(c).” Jd. at 118a. The gov-

ernment’s disgorgement request therefore “raise[d]

issues of duplicative recovery of exactly the sort that

. constitute[] a basis for refusing to infer a cause

of action not specified by the statute.” Jd. at 118a-

19a.

Judge Williams joined the opinion of the court of

appeals in full. He wrote separately to highlight the

shortcomings in the remedial approach——suggested

by some appellate courts but never applied by any of

those courts—that would permit a limited form of

disgorgement restricted to ill-gotten gains that re-

main available to fund future RICO violations. U.S.

Pet. App. 122a-23a. Judge Tatel dissented, adopting

the government’s expansive reading of Section

1964(a). Jd. at 135a. The D.C. Circuit denied the

government’s petition for rehearing en banc without

opinion.

The government then filed a petition for a writ of

certiorari, asking this Court to decide “[w]hether the

district court’s equitable jurisdiction to issue ‘appro-

priate orders’ to ‘prevent and restrain’ violations of

[RICO] encompasses the remedial authority to order

disgorgement of illegally-obtained proceeds.” Pet. i

(No. 05-92). This Court denied review. United

States v. Philip Morris USA Inc., 546 U.S. 960

(2005).

3. After a nine-month bench trial, the district

court ruled that defendants had violated RICO by

associating together to form a racketeering enter-

prise and committing predicate acts of mail and wire

fraud in the form of false statements about the

health risks and addictiveness of smoking. The dis-

trict court also ruled that defendants were likely to

commit further RICO violations in the future—even

though the “landmark” Master Settlement Agree-

ment (“MSA”) between the States and the tobacco

industry had already prohibited defendants from

jointly engaging in the decades-old conduct that

formed the basis for the government’s suit. Lorillard

Tobacco Co. v. Reilly, 533 U.S. 525, 533 (2001).

With input from intervenors—who were permit-

ted to participate in the case solely on remedial is-

sues—the district court crafted a series of sweeping

injunctions to “prevent and restrain” future RICO

violations by defendants. Among other things, those

injunctions require defendants to remove “light” and

“low tar” descriptors from the packages and brand

names of their cigarettes, to comply with new and

burdensome document disclosure obligations well

beyond those already imposed by the MSA, and gen-

erally to obey the law by refraining “from engaging

in any act of racketeering ... relating in any way to

the manufacturing, marketing, promotion, health

consequences or sale of cigarettes.” U.S. Pet. App.

39 1a.

Based on the D.C. Circuit’s decision identifying

the limits of Section 1964(a), however, the district

court rejected petitioners’ request that it order de-

fendants to fund a smoking-cessation program and

nationwide public education campaign because those

remedies were not “aimed at preventing and re-

straining future RICO violations.” U.S. Pet. App

392a, 399a.

4. On appeal from the final judgment, the D.C.

Circuit affirmed in all significant respects.

The court of appeals reiterated its “denial of |pe-

titioners’] request for disgorgement,” which the court

“affirm(ed}) as the law of the case.” U.S. Pet. App.

90a. It also upheld the district court’s refusal to or-

der defendants to fund a smoking-cessation program

and public education campaign. Jd. at 92a. The

court explained that programs to reduce cigarette

sales do not “prevent and restrain” violations of

RICO because “[fluture cigarette sales, even to ad-

dicted smokers, are not by themselves RICO viola-

tions.” Id. “The proposed remedies,” the court con-

tinued, “attempt to prevent and restrain future ef

fects of past RICO violations, not future RICO viola-

tions[;] therefore they are outside the district court’s

authority under section 1964(a).” Jd. (emphasis

added).

The court added that, even if the proposed smok-

ing-cessation program and public education cam-

paign “would eliminate Defendants’ incentive to

market their products fraudulently by shrinking De-

fendants’ customer base,” such “general deterrence

remedies [are] aimed ... wide of the statutorily-

ordained mark.” U.S. Pet. App. 93a, 94a. Section

1964(a) authorizes “injunctions to prevent and re-

strain fraudulent statements about smoking and

health and addiction,” the court concluded, “not to

prevent Defendants from marketing and selling their

products at all.” Jd. at 94a.

REASONS FOR DENYING THE PETITIONS

As was the case when this Court denied review

in 2005, none of the traditional criteria for certiorari

is met here. The D.C. Circuit’s remedial decision is

fully consistent with this Court’s decisions, which re-

quire courts to analyze the text and structure of each

statute, because the plain text and structure of RICO

plainly preclude disgorgement and other backward-

looking remedies. The courts of appeals that have

examined the text and structure of RICO have

unanimously rejected the government's broad sub

mission here and agreed with the decision below that

Section 1964(a) addresses only future RICO viola

tions. And, any disagreement between the decision

below and decisions suggesting that a limited form of

RICO disgorgement might be available under some

circumstances, if tailored to address future RICO vio-

lations, is purely academic because petitioners ex-

phcitly reject the limitations on disgorgement im

posed by the Second and Fifth Circuits. Fin.s.ly, as

shown by the fact that this issue has produced a

mere three appellate decisions in four decades, the

questions presented by petitioners have limited

jurisprudential implications outside the “unique

facts” of this case (Int. Pet. 26), and any remaining

significance those issues might have even in this case

has been overtaken by the recent enactment of com-

prehensive federal tobacco legislation.

I. THE COURT OF APPEALS’ INTERPRETATION

OF SECTION 1964(a) IS CONSISTENT WITH

THIS COURT’S PRECEDENT.

The United States elected to bring this action

under 18 U.S.C. § 1964(a), which authorizes only

“appropriate orders” that “prevent and restrain”

RICO violations. Applying the interpretive princi-

ples established by this Court in Porter, Mitchell,

and Meghrig, the court of appeals correctly held that

the plain language of Section 1964(a)—as well as

RICO’s comprehensive remedial framework—limit

the “appropriate” relief under that provision to for

ward-looking remedies that “prevent and restrain”

future RICO violations.

A. The Text Of Section 1964(a) And

RICO’s Comprehensive Remedial

Framework Exclude Disgorgement

And Other Backward-Looking

Remedies.

This Court explained in Porter that, “/u/nless

otherwise provided by statute, all the inherent equi-

table powers of the District Court are available.” 328

U.S. at 398 (emphasis added). Disgorgement and

other backward-looking remedies are unavailable

under Section 1964(a) because the text and structure

of RICO unambiguously provide otherwise.

1. The government contends that Section

1964(a) is a “plenary grant of equitable jurisdiction.”

U.S. Pet. 13. In fact, Section 1964(a) grants district

courts jurisdiction only “to prevent and restrain vio-

lations of [RICO] by issuing appropriate orders.” 18

U.S.C. § 1964(a). Because a court cannot “prevent

and restrain” what has already occurred, jurisdiction

under Section 1964(a) is necessarily “limited to for-

ward-looking remedies that are aimed at future vio-

lations” of RICO. U.S. Pet. App. 113a (emphasis

added); see also Webster’s New International Diction-

ary 1960, 2125 (2d ed. 1955) (defining “prevent” and

“restrain,” respectively, as “forestall” and “hold

back”). Construing Section 1964(a) to authorize

remedies intended to redress past violations of RICO

would nullify the words “prevent and restrain,” and

violate the canon of construction requiring courts to

“give effect to every word of a statute wherever pos-

sible.” Leocal v. Ashcroft, 543 U.S. 1, 12 (2004); see

also Mertens v. Hewitt Assocs., 508 U.S. 248, 258 &

n.8 (1993) (statutory language limiting remedies

“must mean something” and cannot be rendered “su-

perfluous”) (emphasis in original). Thus, there is no

basis for the government’s extraordinary notion that

granting district courts the power to “prevent and

restrain” violations somehow vests them with pre-

cisely the same remedial power they would possess if

the statute stated that courts may impose the “full

range of equitable remedies.”

The court of appeals’ reading of the “prevent and

restrain” limitation is confirmed by the fact that each

of the remedies specifically enumerated in Sec-

tion 1964(a) is directed at future RICO violations.

The section lists three examples of remedies that are

“appropriate” to “prevent and restrain” RICO viola-

tions: divestiture, reasonable restrictions on future

activities, and dissolution. 18 U.S.C. § 1964(a)

Each of these remedies is designed to “prevent future

violations” by directly regulating “future conduct” or

“separating the criminal from the RICO enterprise”

itseif. U.S. Pet. App. 117a. For example, divesti-

ture—a forced sale of assets where, unlike disgorge-

ment, the defendant is permitted to keep the pro-

ceeds—effectuates going-forward structural changes

that preclude the defendant from using the divested

enterprise to commit future violations.

Disgorgement is a very different remedy. Unlike

divestiture, restrictions on future activities, and dis-

solution, disgorgement of ill-gotten gains “is a quin-

tessentially backward-looking remedy focused on

remedying the effects of past conduct.” U.S. Pet.

App. 113a (emphasis added). This Court’s own dis-

cussions of “disgorgement” confirm its backward-

looking nature: The Court has repeatedly recognized

that “disgorgement of improper profits ... is a rem-

edy only for restitution,” and is therefore “limited to

restoring the status quo and ordering the return of

that which rightfully belongs to the |victim].” Tull v.

United States, 481 U.S. 412, 424 (1987) (internal

quotation marks omitted); see also Chauffeurs,

Teamsters & Helpers, Local No. 391 v. Terry, 494

U.S. 558, 570 (1990) (disgorgement is “restitution-

ary’). Because it is designed to “restor[e] the status

quo,” disgorgement “is measured by the amount of

prior unlawful gains and is awarded without respect

to whether the defendant will act unlawfully in the

future. Thus it is both aimed at and measured by

past conduct.” US. Pet. App. 114a (emphasis in

original).

The smoking-cessation program and public edu-

cation campaign proposed by petitioners also fall

outside the narrow jurisdictional scope of Section

1964(a). Those proposed remedies are avowedly de-

signed to “redress the ongoing effects of .. . violations

of RICO” that occurred in the “past” (U.S. Pet. 14, 19

(emphasis added)), not to “prevent and restrain”

RICO violations that might occur in the future. In-

deed, the smoking-cessation program and public edu-

cation campaign are not directed at defendants’ fu-

ture behavior (much less their RICO violations), but

solely at future consumer behavior and, just like dis-

gorgement, are “awarded without respect to whether

the defendant(s] will act unlawfully in the future.”

U.S. Pet. App. 114a.

The government has no serious argument to re-

but these points, and intervenors fare no better with

their concededly “unusual contention” that addicted

smokers are “ill-gotten assets” that the proposed

remedies will “divest” from defendants. Int. Pet. i,

10. Even if human beings could be deemed “assets”

that can be disposed of by judicial decree—a proposi-

tion unknown in American law since the ratification

of the Thirteenth Amendment—the only thing that

this proposed remedy could “prevent and restrain” is

future cigarette sales, which “are not by themselves

RICO violations.” U.S. Pet. App. 92a. To the con-

trary, the continued, legal sale of cigarettes is ex-

pressly contemplated by federal law—as Congress

recently reaffirmed. See FDA v. Brown & William-

son Tobacco Corp., 529 U.S. 120, 139 (2000); see also

Family Smoking Prevention and Tobacco Control Act

(“FDA Act”), Pub. L. No. 111-31, § 907(d)(3), 123

Stat. 1776, 1803 (June 22, 2009) (prohibiting the

FDA from “banning all cigarettes”). Approving peti-

tioners’ proposed remedies would thus transform

Section 1964(a) from a statute targeting future RJCO

violations into an open-ended authorization to pro-

scribe future lawful conduct.

2. This Court’s interpretations of the Sherman

and Clayton Acts remove any conceivable ambiguity

as to whether disgorgement and other forward-

looking remedies “prevent and restrain” RICO viola-

tions within the meaning of Section 1964(a). The

Sherman and Clayton Acts authorize courts to order

remedies that “prevent and restrain” antitrust viola-

tions (15 U.S.C. §§ 4, 25), and served as the model for

RICO’s similarly worded remedial provision. See

Agency Holding Corp. v. Malley-Duff & Assocs., 483

U.S. 143, 151-52 (1987).

In the nearly 100 years since the antitrust laws

were enacted, no court has ever interpreted the

Sherman Act or Clayton Act to permit civil dis-

gorgement. This reflects the longstanding principle

that the antitrust laws’ express remedies cannot be

supplemented by implied equitable remedies. See

Texas Indus., Inc. v. Radcliff Materials, Inc., 451

U.S. 630, 646 (1981). In light of that clear limitation

on courts’ remedial authority under the antitrust

laws, it is inconceivable that Congress would have

used the same “prevent and restrain” formulation in

Section 1964(a) if it had intended to authorize dis-

gorgement. See Holmes v. Sec. Investor Prot. Corp.,

1 Petitioners’ reliance on RICO’s “liberal-construction man-

date” is misplaced. U.S. Pet. 18. This Court has made clear

that “RICO’s ‘liberal construction’ clause ... is not an invitation

to apply RICO to new purposes that Congress never intended.”

Reves v. Ernst & Young, 507 U.S. 170, 183 (1993). Notwith-

standing that clause, the “purposes Congress had in mind”

when it enacted RICO “must be gleaned from the statute

through the normal means of interpretation.” 7d. at 184.

503 U.S. 258, 268 (1992) (courts “may fairly credit

the 9lst Congress, which enacted RICO, with know-

ing the interpretation federal courts had given the

words earlier Congresses had used” in the antitrust

laws).

Petitioners nevertheless invoke this Court’s anti-

trust decision in Ford Motor Co. v. United States, 405

U.S. 562 (1972), to support their expansive reading

of Section 1964(a). Int. Pet. 24-25; see also U.S. Pet.

20. That case, however, considered the availability

of divestiture, a forward-looking remedy explicitly

authorized under Section 1964(a). Ford Motor Co.,

405 U.S. at 565. The case did not consider disgorge-

ment or any other backward-looking remedy.

Far more pertinent is the government’s decision,

while litigating this case, not to pursue “disgorge-

ment of illegal profits” in its antitrust litigation

against Microsoft Corporation because it considered

the remedy “not available” under the antitrust laws.

67 Fed. Reg. 12,090, 12,135 (Mar. 18, 2002). The

government explained that, in a suit seeking equita-

ble relief under a statutory provision designed to

“prevent and restrain” violations, “the goals of the

remedy... are to enjoin the unlawful conduct /and/

prevent its recurrence.” Id. (emphasis added). Dis-

gorgement and other backward-looking remedies, the

government reasoned, are therefore “not available.”

Id.; see also Br. for the United States as Amicus Cu-

riae at 25, Scheidler v. NOW, 547 U.S. 9 (2006) (Nos.

04-1244 & 04-1352) (the Sherman Act and Sec-

tion 1964(a) are “parallel in ... critical respects,” in-

cluding that “both confer on courts ‘jurisdiction’ to

prevent and restrain violations”).

3. Moreover, the “presumption that a remedy

was deliberately omitted from a statute is strongest

when,” as in RICO, “Congress has enacted a compre-

hensive legislative scheme including an integrated

system of procedures for enforcement.” Nw. Airlines

v. Transp. Workers Union of Am., 451 U.S. 77, 97

(1981).2 Congress manifestly did not “entrust[} to

an equity court the enforcement of’ RICO, guided

only by “the historic power of equity to provide com-

plete relief” (Mitchell, 361 U.S. at 291, 292), but in-

stead set forth a comprehensive framework of appro-

priate remedies available in specific circumstances.

RICO expressly provides two mechanisms for re-

covering the ill-gotten gains of alleged racketeers—

both of which impose procedural requirements, in-

cluding trial by jury, that are inapplicable to truly

equitable suits under Section 1964(a). First, Sec-

tion 1963(a) expressly authorizes the government to

forfeit ill-gotten proceeds in a criminal proceeding.

Second, persons who have been injured by racketeer-

ing activities may bring a civil treble-damages action

under Section 1964(c).

The government bypassed both of those provi-

sions when it filed suit under Section 1964(a). It

2 See also Great-West Life & Annuity Ins. Co. v. Knudson, 534

U.S. 204, 209 (2002) (a “carefully crafted and detailed enforce-

ment scheme provides strong evidence that Congress did not

intend to authorize other remedies that it simply forgot to in-

corporate expressly”) (emphasis in original; internal quotation

marks omitted); Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701,

732 (1989) (“Whatever the limits of the judicial power to imply

or create remedies, it has long been the law that such power

should not be exercised in the face of an express decision by

Congress concerning the scope of remedies available under a

particular statute.”); Switchmen’s Union of N. Am. v. Nat'l Me-

diation Bd., 320 U.S. 297, 301 (1943) (“the specification of one

remedy normally excludes another”).

then sought to use that narrow equitable provision to

forfeit $280 billion in defendants’ past profits—four

times the domestic defendants’ current market capi-

talization—by proving its case to a single district

court judge (and successfully urging the D.C. Circuit

to apply only cursory appellate review to the district

court’s findings of fact (see U.S. Pet. App. 49a)).

Thus, petitioners’ boundless interpretation of the

remedies available under Section 1964(a) would not

only add unauthorized remedies, but also affirma-

tively “subsume” the “other remedies” explicitly cre-

ated by RICO, thereby undermining the statute’s

carefully crafted remedial framework. Nat’ R.R.

Passenger Corp. v. Nat'l Ass’n of R.R. Passengers, 414

U.S. 453, 458 (1974). If disgorgement were available

under Section 1964(a) without meeting the proce-

dural requirements applicable under Sections

1963(a) and 1964(c), the government would have lit-

tle reason to seek to recover an alleged racketeer’s

ill-gotten gains under a provision other than Section

1964(a). As the Court has noted, “[t]here is no rea-

son why Congress would bother to specify conditions

under which a person may bring a... claim, and at

the same time allow [identical] actions absent those

conditions.” Cooper Indus., Inc. v. Avtall Servs., Inc.,

543 U.S. 157, 166 (2004).

Indeed, if the government were correct that Sec-

tion 1964(a) is a “plenary grant of equitable jurisdic-

tion” (U.S. Pet. 13), there would have been no need

for Congress to have enacted that provision at all be-

cause Section 1964{a) would not impose any restric-

tions on courts’ “inherent equitable powers.” Porter,

328 U.S. at 398. Under the government’s limitless

conception of courts’ equitable authority, RICO’s gen-

eral authorization in 18 U.S.C. § 1964(b) for the gov-

ernment to “institute proceedings” seeking equitable

relief would itself constitute a “plenary grant of equi-

table jurisdiction.” The government’s argument that

Section 1964(a) does the same thing as Section

1964(b)—instead of serving as a dimit on equitable

remedies—strips Section 1964(a) of all meaning.

B. This Court’s Precedent Confirms

That Backward-Looking Remedies

Are Unavailable Under’ Section

1964(a).

Petitioners stake their case for this Court’s re-

view on a purported conflict between the decision be-

low and this Court’s decisions in Porter and Mitchell.

Far from conflicting with the court of appeals’ hold-

ing, however, Porter and Mitchell underscore that

disgorgement is not available because RICO’s text

and structure plainly “provide[ |)” otherwise. Porter,

328 U.S. at 398. Indeed, RICO constitutes a “clear

and valid legislative command” to the contrary. Z/d.

1. In Porter, the Court held that the government

could seek restitution of rents collected by a landlord

in excess of the price ceilings established under the

Emergency Price Control Act (““EPCA”), a statute

with a fundamentally different text and structure

from RICO. 328 U.S. at 402. EPCA broadly author-

ized the government to “make application to the ap-

propriate court for an order enjoining [prohibited]

acts or practices, or for an order enforcing compli-

ance with such provision,” and granted courts juris-

diction to issue “a permanent or temporary injunc-

tion, restraining order, or other order” when a “per-

son has engaged or is about to engage in” a violation

of the statute. Jd. at 397 (emphases added).

This Court explained that, “{uJnless a statute in

so many words, or by a necessary and inescapable

inference, restricts the court’s jurisdiction in equity,

the full scope of that jurisdiction is to be recognized

and applied.” Porter, 328 U.S. at 398. The Court

found no such “restrict[ion]” in EPCA because a stat-

ute authorizing an “other order” for past violations—

in addition to prospective injunctive relief—plainly

encompasses retrospective remedies. Jd. at 399. The

Court emphasized that the restitutionary relief

available under EPCA was “consistent with and dif-

ferled) greatly from the damages and penalties”

available under other provisions of the statute (id. at

402), and that the “legislative background of [EPCA]

confirm[ed]” its “conclusion” regarding the availabil-

ity of restitution. Jd. at 400.

None of the rationales on which the Court relied

in Porter to uphold a restitutionary remedy under

EPCA is applicable to RICO. RICO does, “in so many

words,” explicitly restrict courts’ equitable jurisdic-

tion to those remedies that “prevent and restrain”

future RICO violations, and therefore affirmatively

excludes disgorgement and other backward-looking

remedies. Moreover, RICO’s comprehensive reme-

dial framework provides other explicit mechanisms

under Sections 1963(a) and 1964(c) for separating a

racketeer from its ill-gotten gains. Finally, the legis-

lative history of Section 1964(a) makes clear that

this carefully crafted set of remedies is not to be sup-

plemented with implied remedies that are unrelated

to the statutory objective of “prevent{ing] and re-

strainling]” future RICO violations. See S. Rep. No.

91-617, at 81 n.11 (1969) (“[Tlhe remedy in equity is

purely preventative. The chancellor does not punish

the defendant for what he has done.”) (quoting Res-

pass v. Commonwealth, 115 S.W. 1131, 1132 (Ky.

1909)) (emphasis added).

The language and structure of the Fair Labor

Standards Act (“FLSA”) construed in Mitchell pro-

vide an even starker contrast to RICO. The Court

held in Mitchell that an equitable order reimbursing

employees for lost wages was an available remedy

under a statute that granted courts “jurisdiction for

cause shown, to restrain violations” of a provision

prohibiting discharge in retaliation for the disclosure

of minimum-wage and overtime violations. 361 U.S.

at 296. Although the FLSA lacked some of the broad

remedial language of EPCA—such as its open-ended

authorization to issue “other order[s]”—the Court

concluded that the FLSA lacked any textual guide-

posts suggesting a limitation of equitable remedies.

As the Court saw the issue, the statute was “silent”

one way or the other. See Albemarle Paper Co. v.

Moody, 422 U.S. 405, 416 (1975) (in Mitchell, “this

Court held, in the face of a silent statute, that dis-

trict courts enjoyed the ‘historic power of equity’ to

award lost wages”).3

3 Petitioners repeatedly cite United States v. Turkette, 452

U.S. 576 (1981), and imply that the Court’s decision in that

criminal RICO action somehow addressed the issue in this case.

U.S. Pet. 13, 14, 19, 22, 28, 29, 31; Int. Pet. 4, 15, 20, 22, 23.

But the only question presented in Turkette was “whether the

term ‘enterprise’ as used in RICO encompasses both legitimate

and illegitimate enterprises.” Turkette, 452 U.S. at 578. In re-

solving that liability question, the Court noted that the lower

court had believed that the remedies collectively provided by

Sections 1964(a) and 1964(c)}—‘“divestiture, dissolution, reor-

ganization, restrictions on future activities by violators of

RICO, and treble damages”—would have utility only with re-

spect to legitimate enterprises. Jd. at 585. The Court dis-

agreed, holding that the enumerated remedies could be useful

regardless of whether the enterprise was ostensibly legitimate

or admittedly criminal. /d. Needless to say, the Court’s conclu-

sion that the remedies expressly identified in Section 1964 do

not preclude the application of RICO to legitimate enterprises

2. The court of appeals’ interpretation of Section

1964(a)—and its application of Porter and Mitchell—

are confirmed by this Court’s decision in Meghrig,

which construed a statute with a comprehensive and

carefully circumscribed set of remedies analogous to

RICO’s remedial framework.

In Meghrig, the Court unanimously held that the

Resource Conservation and Recovery Act (““RCRA”)—

“a comprehensive environmental statute that gov-

erns the treatment, storage, and disposal of solid and

hazardous waste”’—does not confer jurisdiction to or-

der “equitable restitution” for past cleanup costs.

516 U.S. at 482, 483. In its citizen-suit provision,

RCRA grants district courts authority “to restrain

any person who has contributed or who is contribut-

ing to the past or present handling, storage, treat-

ment, transportation, or disposal of any solid or haz-

ardous waste ... , to order such person to take such

other action as may be necessary, or both.” Id. at 484

(quoting 42 U.S.C. § 6972(a)) (emphases in Meghrig).

The Court explained that “[nleither remedy”—“a

mandatory injunction ... order[ing] a responsible

party to ‘take action” or “a prohibitory injunction ...

‘restrain[ing]’ a responsible party from further violat-

ing RCRA”—‘“contemplates the award of past

cleanup costs.”. Meghrig, 516 U.S. at 484. The

Court’s reading of the plain language of RCRA was

confirmed by “a comparison between the relief avail-

able under” RCRA and the relief available under

[Footnote continued from previous page]

hardly supports the notion that the Court has endorsed dis-

gorgement or other remedies not listed in Section 1964.

CERCLA, which “expressly permits” the recovery of

past cleanup costs. Jd. at 484, 485. “Congress thus

demonstrated in CERCLA that it knew how to pro-

vide for the recovery of cleanup costs, and that the

language used to define the remedies under RCRA

does not provide that remedy.” Jd. at 485.

The Court also explicitly rejected the govern-

ment’s reliance on Porter to read a remedy of “equi-

table restitution” into RCRA’s comprehensive reme-

dial framework and made clear that Porter does not

reach nearly as far as the government supposes.

Meghrig, 516 U.S. at 487. As it does here, the gov-

ernment argued in Meghrig that, under Porter, “dis-

trict courts retain inherent authority to award any

equitable remedy that is not expressly taken away

from them by Congress.” /d. The Court found the

government’s reliance on Porter to be misplaced be-

cause “the limited remedies described in [RCRA\],

along with the stark differences between the lan-

guage of that section and the cost recovery provisions

of CERCLA, amply demonstrate that Congress did

not intend” for courts to find an implied remedy for

equitable restitution in RCRA. Jd. It is an “elemen-

tal canon of statutory construction” that, “where

Congress has provided ‘elaborate enforcement provi-

sions’ for remedying the violation of a federal statute,

. ‘it cannot be assumed that Congress intended to

authorize by implication additional judicial reme-

dies.” Jd. at 487-88 (quoting Middlesex County Sew-

erage Auth. v. Nat'l Sea Clammers Ass’n, 453 U.S. 1,

14 (1981)).

While the government has now, by dint of neces-

sity, come around to the view that RCRA possesses

several “distinctive forward-looking features” absent

from RICO (U.S. Pet. 26), the reasons for confining

Section 1964(a) to forward-looking relief are at least

as strong as the reasons for imposing similar reme

dial limitations on RCRA. Like the language of

RCRA, the language of Section 1964(a) limits the

available remedies to forward-looking relief; those

temporal restrictions are doubly apparent in RICO,

which requires that relief both “prevent” and “re-

strain” future violations Moreover, like RCRA,

RICO provides a comprehensive remedial framework

that would be dramatically undermined by the avail-

ability of disgorgement. And, just as CERCLA dem

onstrates that Congress knows how to order back

ward-looking environmental remedies when it wants

to, the availability of backward-looking monetary

awards in the same statute—Sections 1963(a) and

1964(c) of RICO—even more compellingly highlights

the absence of any comparable authorizing language

in Section 1964(a).4

Il. THE QUESTIONS PRESENTED DO NO!

IMPLICATE A CIRCUIT SPLIT.

The government contends—in a cursory, two-

paragraph argument—-that the decision below con-

flicts with decisions of the Second and Fifth Circuits.

U.S. Pet. 26-27. As was the case when this Court

denied the government’s petition for certioram in

2005, however, no published appellate decision has

ever upheld a disgorgement remedy under Section

1964(a). Nor has any circuit ever endorsed the

' In fact, RCRA possesses several indicia of the availability of

backward-looking relief that are absent from RICO, including

its broad authorization to require polluters “to take such other

action as may be necessary” (42 U.S.C. § 6972(a)) and its sav-

ings clause explicitly “preserving remedies under statutory and

common law.” Meghrig, 516 U.S. at 487 (citing 42 U.S.C

§ 6972(f

sweeping proposition advanced by petitioners that

purely backward-looking remedies are available un-

der Section 1964(a). To the contrary, the Second,

Fifth, and D.C. Circuits—the only circuits to have

addressed the issue—all agree that Section 1964(a)

is limited to forward-looking remedies. Any dis-

agreement among those courts as to the precise con-

tours of these remedies is purely academic and does

not warrant this Court’s review because petitioners

acknowledge that the relief they seek is not available

in any of these circuits.

A. In United States v. Carson, 52 F.3d 1173 (2d

Cir. 1995), cert. denied, 516 U.S. 1122 (1996), the

Second Circuit vacated a disgorgement award issued

against a former union leader under Section 1964(a).

Id. at 1182. The court explained that “the jumsdic-

tional powers in § 1964(a) serve the goal of foreclos-

ing future violations, and do not afford broader re-

dress,” and that the court therefore could “not see

how it serves any civil RICO purpose to order dis-

gorgement of gains ill-gotten long ago by a retiree.”

Id. (emphasis added). The Second Circuit further

emphasized that “disgorgement of all ill-gotten gains

may not be justified simply on the ground that what-

ever hurts a civil RICO violator necessarily serves to

‘prevent and restrain’ future RICO violations.” IZd.

“If this were adequate justification,” the court ex-

plained, “the phrase ‘prevent and restrain’ would

read ‘prevent, restrain and discourage,’ and would

allow any remedy that inflicts pain.” /d.

Although the Second Circuit held out the possi-

bility that a disgorgement award might be reinstated

on remand if “there {was} a finding that the gains

(were] being used to fund or promote the illegal con-

duct, or constitute capital available for that purpose”

(Carson, 52 F.3d at 1182), neither the Second Circuit

nor any other circuit has ever upheld a disgorgement

award on that ground. In fact, in the fifteen years

since Carson, no Second Circuit decision has so much

as addressed the issue.

In Richard v. Hoechst Celanese Chemical Group,

Inc., 355 F.3d 345 (5th Cir. 2003), cert. denied, 543

U.S. 917 (2004), the Fifth Circuit rejected a dis-

gorgement claim under Section 1964(a) because the

defendants had ceased production of the defective

products that were the basis for the plaintiffs suit.

Id. at 355. The court explained that the proposed

disgorgement was “impermissible under § 1964(a)”

because the se:tion’s “equitable remedies are avail-

able only to prevent ongoing and future conduct.” Jd.

The court acknowledged that the Second Circuit in

Carson had envisioned circumstances in which dis-

gorgement might be available under Section 1964(a),

but, like the Second Circuit, had no occasion to apply

that reasoning because no facts warranted it. Id. at

354.

There is accordingly no circuit split on the ques-

tions presented by petitioners. As the D.C. Circuit

emphasized, no circuit has adopted petitioners’ posi-

tion that Section 1964(a) authorizes purely back-

ward-looking remedies targeting a defendant’s ill-

gotten gains or the ongoing effects of past RICO vio-

lations. See U.S. Pet. App. 92a (“Even those courts

that would allow some version of disgorgement under

section 1964(a) recognize that the statute is limited

to preventing future violations and does not extend

to future effects flowing from past violations.”). In-

deed, far from embracing Carson and Richard, peti-

tioners explicitly reject “the limitations on disgorge-

ment identified in” those decisions. U.S. Pet. 26-27: