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We recently posted on the analysis of the extraterritoriality
issue stemming from Morrison but applied to RICO claims (
here). In that case, involving Chevron and the proceeings
pending in the Southern District of New York, the District Court
here determined that the Second Circuit's decision in
Norex Petroleum Ltd. v Access Indus., Inc., 631
F.3d 29 (2d Cir. 2010), did not determine that RICO claims (18
U.S.C. sec. 1962(c)) could never apply to cases where some
of the conduct occurred outside the U.S.; that indeed the matters
giving rise to the initial and significant RICO prosecutions
included matters with substantial non-U.S. contacts; and that the
key issues in that case led to the conclusion that RICO did apply
to certain of the claims presented there.
In
Aluminum Bahrain B.S.C. v. Alcoa, Inc., et al., Civil
Action No. 8-299 (W.D. Pa. 2012), the District Court similarly
analyzed claims under RICO. Even though this particular had
"previously acknowledged that the Morrison decision has been
understood to preclude extraterritorial application of RICO, the
Court here concluded that the allegations before it were not
"essentially foreign" and came to a different result.
The allegations here included that Alcoa, in and from the U.S.
controlled the Autrailian affiliate alleged to have been the
principal wrongdoer (alleged bribes to senior officials of Alba and
the Government of Bahrain). The complaint identified each of the
members of the allegedly criminal enterprise as domestic U.S.
persons or entities. Numerous other U.S. contacts are alleged and
mentioned in the Court's decision.
Of the Second Circuit's decision in Norex, the
District Court here said:
At first blush, the analogy is
appealing. In Norex, the plaintiff was
foreign, complaining of a conspiracy involving a foreign industry.
Yet further analysis reveals the analogy wanting. In Norex, the court focused
its analysis on determining whether a Morrison assessment
should be done under the guise of subject matter jurisdiction or a
failure to state a claim. Deciding on the latter, the court
provided little commentary on what quality and quantity of contacts
would qualify an enterprise as "domestic" under Morrison rather than
"foreign."
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