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• BAT v. USA: PETITION FOR REHEARING (PDF) 

On June 24, 2010, the same day the petition was conferenced, this Court issued its opinion in Morrison v. National Australia Bank Ltd., No. 08-1191. As explained below, Morrison thoroughly invalidates the reasoning on which the D.C. Circuit based its holding in this case – namely, that the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. (RICO), reaches BATCo’s conduct outside the United States under the so-called “effects” test. Accordingly, the Court should grant rehearing, vacate the order denying certiorari, and enter a GVR order so that the D.C. Circuit may consider Morrison’s impact in the first instance. . . . BATCo’s certiorari petition presented the following questions:

1. Whether the D.C. Circuit correctly held * * * that the traditional presumption against extraterritoriality is completely irrelevant to determining whether Congress intends a statute to reach the wholly foreign conduct of a foreign corporation, if such foreign conduct is alleged to have had a direct and substantial effect within the United States.

2. Whether the D.C. Circuit, in concluding that * * * RICO[] regulates petitioner’s wholly foreign conduct, improperly (a) ignored the presumption against extraterritoriality and affirmative evidence that Congress never intended RICO to apply extraterritorially; (b) borrowed from federal securities and antitrust cases the ill-suited “effects” test as a measure of RICO’s extraterritorial reach; (c) approved a watered- down version of that test that conflicts with the test used by other circuits; and (d) relied on the U.S. “effects” of the U.S. conduct of other codefendants and of the “overall” alleged RICO scheme. . . .

CONCLUSION

The Court should grant the petition for rehearing, vacate the order denying certiorari, and enter an order that grants the petition for certiorari, vacates the portion of the D.C. Circuit’s decision that concerns the extraterritorial reach of RICO, and remands for consideration of Morrison.

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