Notable Petitions

By Erin Miller
on Mar 11, 2010 at 2:29 pm

Seven different cert. petitions by or against tobacco companies, growing out of a single D.C. Circuit opinion last spring, were filed at the Court last month.Â All concern penalties imposed on the companies under the Racketeer Influenced and Corrupt Organizations Act (RICO).Â Lyle posted earlier on these cases here.

The briefs in all of the petitions follow the jump.

Questions presented among the seven petitions:

1. Whether a group of corporations can constitute an association-in-fact enterprise under RICO.

2. Whether a corporation can be found to have the necessary specific intent to defraud in a RICO case without evidence that any particular individual in the corporation had such specific intent.

3. Whether the fraud statutes, the First Amendment, and due process permit speech to be deemed fraudulent when (a) the speech addressed important public controversies and potential regulation, rather than being designed to deprive consumers of money or property, (b) there was no evidence or finding that the speech was material to a reasonable consumer, (c) the speech constituted opinions regarding ongoing scientific disputes or statements that were undisputedly true under at least one reasonable interpretation, (d) there was no allegation or finding that any individual associated with the defendants said anything he believed to be false or intended to defraud, and (e) much of the speech is subject to immunity under antitrust laws.

4. Whether 18 U.S.C. Â§ 1964(a) of RICO categorically bars a district court from ordering disgorgement of ill-gotten gains as well as other equitable relief, such as smoking cessation and public-education remedies, designed to redress the continuing consequences of RICO violations.

5. Whether federal courts may exercise injunctive jurisdiction under RICO and Article III of the Constitution when there is no statutory “enterprise” and any reasonable likelihood of future violations has been extinguished by, among other things, extensive federal tobacco legislation.

6. Whether a court of appeals is required under the First Amendment to undertake independent appellate review when a district court has found that speech is not constitutionally protected because it is fraudulent.

UPDATE, March 25: Amici filing on behalf of the tobacco companies have focused on one additional question presented in 09-980, which was not originally listed in this post:

7. Whether the traditional presumption against extraterritoriality is relevant 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; and whether the D.C. Circuit properly adopted the “effects” test from antitrust and securities law to determine the extraterritorial limits of RICO.

Title: Philip Morris USA, Inc. v. United States
Docket: 09-976