For decades, U.S. courts have applied a multi-factor balancing test to determine whether the Racketeer Influenced and Corrupt Organizations Act applies outside U.S territory. However, in the wake of the U.S. Supreme Court’s recent reaffirmance of the “presumption against extraterritoriality” in Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869 (2010), lower courts have begun to re-examine the question of RICO’s extraterritorial application. A pair of 2nd Circuit opinions have cited Morrison to curtail the extraterritorial application of RICO, but a number of ambiguities remain, and it remains unclear whether the 2nd Circuit’s approach will be adopted widely by other federal courts.
The scope of civil RICO liability is quite broad, and RICO may impose treble-damages liability for overseas conduct that is not actionable (or if actionable, would not trigger treble damages) under the law of the place where it occurs. Accordingly, the scope of RICO’s application to overseas conduct is of interest to a wide range of companies operating outside of the United States.
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