Recalibrating after Kiobel: Evaluating the Utility of the Racketeer Influenced and Corrupt Organizations Act ("RICO") in Litigating International Corporate Abuse

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