What the Second Circuit Did and Didn't Tell Us About RICO's Reach

Orrick, Herrington & Sutcliffe LLP

On Oct. 30, 2017, the Second Circuit issued its opinion in Bascuñán v. Elsaca, becoming the first court of appeals to address the requirement that a private claim under the Racketeer Influenced and Corrupt Organizations Act must be based on a “domestic” injury to the plaintiff’s business or property. That requirement emerged with little explanation of its meaning from the U.S. Supreme Court’s 2016 decision in RJR Nabisco, and in the 16 months since that decision was issued, district courts have failed to reach a consensus as to how the geographic location of an injury should be determined in RICO cases having cross-border facts. The Second Circuit’s decision addresses the issue with two main holdings.

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