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Publication Date

Summer 2012

Abstract

This analysis seeks to explore the unexamined question of whether the Racketeer Influenced and Corrupt Organizations Act (“RICO” or “The Act”) could one day become a useful surrogate for the Alien Tort Statute (“ATS”) in litigating international corporate abuses. Decades after the ATS became a robust tool for bringing claims for international violations in U.S. courts, the U.S. Court of Appeals for the Second Circuit recently ruled in Kiobel v. Royal Dutch Petroleum Co. that corporations cannot be held liable for torts in violation of the law of nations under the ATS.Rulings by the D.C Circuit and the Seventh Circuit quickly breathed new life into the debate, and the circuit split is now destined for resolution by the Supreme Court. Although the final outcome is still unknown, Kiobel’s reverberations are already apparent. With corporations potentially immune from the reach of the ATS, the search has begun for vehicles by which to sustain momentum in litigating international corporate abuses. Litigators have highlighted RICO as one potential alternative. Although originally structured as a domestic device to combat organized crime, over the past decade RICO has been deployed increasingly often in litigation concerning international corporate abuse. This Note seeks to explore the question of whether RICO is truly a useful tool for this realm of litigation. I have been unable to find any work that addresses this issue specifically. Commentators have addressed the best manner in which to shapevRICO claims as an adjunct to ATS litigation,vbut never in isolation,vand never in a manner that tackles post-Kiobel implications. As I explain in this Note, Kiobel has added increased urgency to the search for other strategies. Commentators have also addressed RICO’s applicability to domestic corporations, and RICO’s use in casting a web of liability across peripheral actors—both of which I draw upon in my analysis. None of these assessments, however, considers RICO’s utility in litigating against such entities for actions committed abroad, an issue especially worthy of exploration given the recent developments in ATS litigation. This Note builds on work conducted by Beth Stephens concerning the Alien Tort Statute. It also draws upon the work of Chimene Keitner in helping to establish the context for why, given the complicated choice of law debate that surrounds ATS litigation, the push toward RICO has some understandable appeal.10 I use work by G. Robert Blakey, Professor of Law at Notre Dame Law School and expert on RICO, to provide the foundations for my assessment regarding the evolution of RICO’s domestic application. Finally, from a practical perspective, this piece also builds upon the litigating tactics that were deployed in two well-known ATS cases: Bowoto v. Chevron Texaco Corp. and Wiwa v. Royal Dutch Petroleum Co. In both instances, the litigators supplemented their ATS claims with RICO claims, providing the backdrop upon which my analysis regarding RICO’s extraterritorial obstacles is formed. I conclude that intuitions regarding RICO’s utility in this realm have proven largely misguided. A thorough analysis of RICO’s structure, evolution in domestic case law, and burgeoning use in cases concerning international activity reveals that despite RICO’s appeal, it is a limited tool for litigating against corporate abuse abroad. Although RICO offers several structural and remedial options that are helpful to litigators—particularly for plaintiffs who have alleged economic claims, such as injury to business or property—RICO’s disadvantages outweigh these benefits. RICO provides a generally narrow set of remedial options, is hamstrung by a more onerous test of extraterritorial jurisdiction than that of its ATS counterpart, and—based on the trajectory of domestic case law—will likely be of limited help in avoiding the complicated choice of law issues which remain a part of ATS litigation. These findings will remain true regardless of the way in which Kiobel may be resolved by the Supreme Court. As a result, RICO claims are best used, if at all, as an adjunct tactic to ATS litigation, rather than as the primary thrust of legal strategy.

Acknowledgements

I would like to thank Jenny Martinez and Allen Weiner for helpful guidance.

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