SUPREME COURT OF THE UNITED STATES
Nos. 22–381 and 22–383
ASHOT YEGIAZARYAN, AKA ASHOT EGIAZARYAN, PETITIONER
22–381v.22–381
VITALY IVANOVICH SMAGIN, ET AL.
CMB MONACO, FKA COMPAGNIE MONEGASQUE DE BANQUE, PETITIONER
22–383v.22–383
VITALY IVANOVICH SMAGIN, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 22, 2023]
Justice Alito, with whom Justice Thomas joins, and with whom Justice Gorsuch joins as to Part I, dissenting.
These are the first cases in which we have been required to decide when injury to intangible property that a civil plaintiff attributes to a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) qualifies as a “domestic injury” and may therefore provide the basis for recovery under 18 U. S. C. §1964(c). See RJR Nabisco, Inc. v. European Community, 579 U. S. 325, 346–354 (2016). This question has divided the lower courts, but the Court’s decision resolves very little. It holds only that ascertaining the site of intangible injuries for purposes of civil RICO requires a court to consult a variety of factors and that two factors it identifies show that respondent has suffered a domestic injury. This analysis offers virtually no guidance to lower courts, and it risks sowing confusion in our extraterritoriality precedents. Rather than take this unhelpful step, I would dismiss the writ of certiorari as improvidently granted.
I
We granted certiorari “to resolve [a] Circuit split” between, on the one hand, the Third and Ninth Circuits, which embrace a totality-based inquiry like the one the Court adopts here, and, on the other hand, the Seventh Circuit, which has held that RICO injuries to intangible property are sited at the plaintiff’s residence. Ante, at 5; compare Humphrey v. GlaxoSmithKline PLC, 905 F. 3d 694, 706–707 (CA3 2018), and 37 F. 4th 562, 567–568 (CA9 2022) (case below), with Armada (Sing.) PTE Ltd. v. Amcol Int’l Corp., 885 F. 3d 1090, 1094–1095 (CA7 2018).[1] The Seventh Circuit’s decision, however, contains little analysis and simply declares that “[i]t is well understood that a party experiences or sustains injuries to its intangible property at its residence.” Id., at 1094; see also Czyzewski v. Jevic Holding Corp., 580 U. S. 451, 471 (2017) (Thomas, J., dissenting) (referring to a dearth of “reasoned opinions … from the courts of appeals” regarding “a novel and important question”). The Third and Ninth Circuits, for their parts, did not coalesce around any common set of factors to guide the civil RICO domestic-injury inquiry for intangible-property claims. See Humphrey, 905 F. 3d, at 706–707; 37 F. 4th, at 567–568. And no court of appeals has even broached the possibility that different categorical rules might be available for different types of intangible property (e.g., perhaps there could be a rule that injuries to trademark rights should be sited in the country that provided the trademark). “[W]e would greatly benefit from the views of additional courts of appeals on this question.” Czyzewski, 580 U. S., at 472 (Thomas, J., dissenting).
Bringing clarity to this area of the law is not an easy task, and I must conclude that the Court falls short. It cites petitioners’ domestic racketeering conduct and the California rights conferred by the California judgment Smagin has obtained to enforce his London arbitral award, but it gives no indication of the relative import of each of these factors. Ante, at 10–11. And while the Court appears to envision a long list of factors that might be relevant to this inquiry, see ante, at 10, it mentions none other than these two. Nor does it say anything about the circumstances that would call for consideration of additional factors, when such factors might outweigh one or both of the ones it mentions, or what these other factors might be.
Of course, under the majority’s all-factors-considered approach, many other features of this very suit could be relevant, such as the history and location of the underlying dispute, where any relevant business relationships were formed, Smagin’s residence, and the existence of the London arbitral award. Are future courts to infer that these matters have no import? It is difficult to come to any other conclusion given that the Court pays them no heed in undertaking what is ostensibly an examination of all relevant “contex[t].” Ante, at 8–10. But it is equally difficult to see why they are irrelevant (especially in light of the Court’s unexplored acknowledgment that “in some sense, … Smagin has felt his economic injury in Russia,” ante, at 10), or what room the Court is leaving for additional factors to be identified if none of these counts. And because the Court sets aside the factors that would favor petitioners, it also provides no guidance on how to weigh competing considerations that do not all point toward the same result.
One might additionally think that the nature of the intangible property itself could be relevant under the majority’s approach, such as whether the property is a debt, a stock, a trademark, etc. In these cases, however, the relationship between the California judgment Smagin has obtained and the underlying arbitral award that that judgment confirmed is uncertain, so the precise property at issue is another aspect of this suit that is shrouded in confusion. Smagin acknowledged at oral argument that even though he has obtained multiple judgments confirming the arbitral award, he can collect on only one. See Tr. of Oral Arg. 49. There is thus at least some relevant relationship between the California judgment and the London arbitral award—the latter of which is not “domestic” in any way—but the Court does not address this point, either.
Even with respect to the two factors it focuses on, the Court engenders confusion. It offers no hint which of the two might be more important (should they point in different directions), whether either or both are necessary, or whether either is sufficient. And the Court acknowledges that there was also substantial foreign conduct in these cases, but writes that off because it was “ ‘initiated in and directed towards’ ” the United States. Ante, at 10. Once more, I am unsure of the origin or scope of this rule. If domestic conduct is “initiated in” a foreign nation, does that make it foreign? What exactly does it mean to direct conduct “towards” the United States? All in all, were I a lower-court judge, I would struggle to apply today’s decision to any set of facts other than the precise combination present here. In my view, it is not worth our deciding a case when we provoke so many more questions than we provide answers. That is especially so now that the lower courts must additionally decide whether and how today’s cryptic decision binds them, rather than continuing to think through unencumbered when intangible-property injuries are the basis of a domestic application of civil RICO.
II
It is not just that we are contributing little by deciding these cases, however; we are also risking significant harm, particularly to the uniformity of our case law. A thrust of our international-comity jurisprudence is that we should not lightly give foreign plaintiffs access to U. S. remedial schemes that are far more generous than those available in their home nations. See RJR Nabisco, 579 U. S., at 347–348; F. Hoffmann-La Roche Ltd v. Empagran S. A., 542 U. S. 155, 166–167 (2004). In light of RICO’s unusually plaintiff-friendly remedies, that concern applies in spades here. See RJR Nabisco, 579 U. S., at 348. But in today’s decision, the Court countenances that the plaintiff’s residence may play no role at all in the civil RICO extraterritoriality inquiry. The Court justifies this result with the assertion that favoring U. S. plaintiffs’ access to American courts over that of foreign plaintiffs “runs its own risks of generating international discord,” ante, at 13, a concern that the Court directly rejected in RJR Nabisco, see 579 U. S., at 361 (Ginsburg, J., dissenting in relevant part).
Additionally, we have placed a premium on workability in our extraterritorial-application cases. The Court acknowledges that a bright-line rule would be preferable here, but essentially shrugs: RICO is too “nuanced” for that. Ante, at 10, 13. Our cases do not let us off the hook so easily. Compare Morrison v. National Australia Bank Ltd., 561 U. S. 247, 258–259 (2010) (“There is no more damning indictment of the [Second Circuit’s] ‘conduct’ and ‘effects’ tests than the Second Circuit’s own declaration that ‘the presence or absence of any single factor which was considered significant in other cases … is not necessarily dispositive in future cases’ ”), with ante, at 10 (“[N]o set of factors can capture the relevant considerations for all cases”).
Perhaps there is a reason why RICO justifies these departures from our customary rules, but I have no confidence in reaching that conclusion now (let alone sub silentio). RJR Nabisco was relatively recent, and there have been only a small number of court of appeals decisions implementing it, and even fewer with respect to intangible property. Moreover, unlike in our typical extraterritoriality case, we have received no input here from the sovereign states our rules will affect, including the U. S. Government. RJR Nabisco, 579 U. S., at 348; Morrison, 561 U. S., at 269; F. Hoffmann-La Roche, 542 U. S., at 167–168. *** The only rule of law that the Court announces today is that there is no rule, and despite offering such minimal guidance regarding how to site a RICO injury, the Court nonetheless manages to sow confusion regarding our broader law of extraterritoriality. Respectfully, the most we could contribute to this issue at this juncture is to stay away from it. I would dismiss the writ of certiorari as improvidently granted.
- ↑ The Second Circuit has adopted a bright-line rule that RICO injuries to tangible property are sited at the location of the property. Bascuñán v. Elsaca, 874 F. 3d 806, 818–824 (2017). The Second Circuit’s holding is not implicated in this split, nor did that court offer any analysis of intangible property relevant to these cases.