December 2nd, 2014

The President’s executive order has two parts, and neither is any worse than the current regime of non-enforcement of our immigration laws. Part one is allowing five million illegal immigrants, typically the parents of children who were born here and are thus considered American citizens (though I dispute that). They have been assured they will not be deported as long as they do not commit crimes here. This is referred to as “prosecutorial discretion,” the choice by the executive branch of the government to deport those it considers more of a threat than others. This is often done when there are insufficient prosecutors or courts to adjudicate all of the violations in a given year. Someone has to choose which cases to prosecute. President Obama has told us how his administration will make the choices. Serial felons get deported first. This is no big deal. The next president can change course and deport this group of illegals if he or she wants to. Congress can also appropriate more money to deport more illegals, and perhaps the backlog will diminish, forcing the President to unprotect some of the five million.

The second part of the order is granting social security numbers to the five million so they can work legally. No law explicitly allows the President to do this. Prior Presidents (Reagan and Bush) have done it for smaller groups of illegals. In the absence of any court decision forbidding the President from doing it, it probably is within his plethora of executive powers. We would be better off if Presidents adhered strictly to their delegated powers, but they don’t. Unless a federal court has standing to decide whether this is an illegal act and enjoins it, and any such order would likely reach the Supreme Court, the executive order cannot be stopped. The Republicans are not going to impeach the President over this, and according to news reports they will not shut down the government to force the president to back down, a type of political extortion. So the President will have his way.

Neither of these two executive actions is a change from the status quo, which is deplorable. But as anyone who follows immigration law enforcement knows, the administration has not deported illegal aliens unless they have committed subsequent felonies once in this country. Its claims to the contrary are bogus and rely on counting the capture of border-crossers deportations. We have 11-15 million illegals and Congress will not appropriate enough money to deport all of them. It should, but it does not and never offers a good reason why it does not. Deporting the illegal population is simply not a congressional priority. Until it is, and has not been since the Eisenhower administration, most of those people just go on living and working here. They claim to live “in the shadows” of American society. This is laughable. If the government really wanted them gone, it would appropriate enough money to get the job done in one fiscal year. But by not doing that we make a policy choice that is basically what the President has decreed.

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November 5th, 2014

After the 2012 presidential election the consensus was that Hispanics would block vote for liberalized immigration thereby threatening the future of the Republican party. The results of yesterday’s elections prove this was wrong. As everyone knows the Senate passed a vast liberalization of immigration in June 2013, the House refused to take it up, and no immigration bill was approved. Yet the Republican share of the Hispanic vote yesterday rose from 27% in 2012 to about 35%. This tells us two essential things about this issue. One, that Hispanics don’t fixate on it, and two, the rest of the country generally favors the current Republican emphasis on enforcement rather than liberalization.

No Republican in the country ran, as far as I can tell, on a platform of “immigration reform,” the euphemism for liberalization of legal immigration and amnesty for illegals. Rather, after last summer’s border crisis, Republicans ran away from that view and emphasized the need to enforce the border (though that too is a euphemism) and against amnesty. The most vocal candidate was Scott Brown in New Hampshire, who made it his top issue, and almost won. Perhaps his narrow defeat can be interpreted as a precursor of yet another shift back toward amnesty in Congress. But, anyone who watched that race carefully will realize by emphasizing enforcement as his top domestic issue when he was way behind, and coming very close to winning, it was a net plus for him.

Oregon, a blue state, voted 2-1 against a law giving drivers’ licenses to illegal immigrants. Many other congressional candidates in Republican districts made immigration enforcement a marquee issue and won. It’s hard to deny that the political tide has shifted to enforcement rather than more immigration or amnesty.

If Republicans want to pass something on immigration in the next two years, they will likely spend more money on the problem, which is against their stated principles. Hiring more border guards is actually not the best way to enforce the border. The Border Patrol favors less interference in how it does its job. The administration had issued regulations limiting the agents’ discretion in arresting border crossers and minors. They may enact mandatory e-verify for all employers, which is positive. They may also eliminate certain types of legal immigration such as the visa lottery and the right to sponsor distant relatives for immigrant visas.

But I see no indication Republicans will take on birthright citizenship, the bizarre rule, never enacted by Congress, that anyone born in this country, whether here legally or not, is a citizen. This rule has just persisted through a century of inertia since a Supreme Court decision in 1898 involving a legal immigrant. This rule desperately needs to be changed.

In short, the election has taken us in the right direction. On immigration, we are probably back to where we were in the 1980′s. When the President issues his executive order giving work permits to millions of illegals in the coming days, the Republicans will have to face what to do in response. This will be an unprecedented exercise of executive power and thumb in the eye to the majority that favors enforcement. Republicans could overturn the executive order by statute. the President would then veto the law. The battle will be whether that veto is overridden. There is a real chance now that it will be. If that happens Republicans might then find the courage to do some positive things to enforce the law.

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October 1st, 2014

The Second Circuit has broken new ground in holding an enterprise is unnecessary in RICO conspiracy claims. In City of New York v. Bello it reinstated New York City’s civil RICO case against an internet cigarette distributor for illegally failing to pay the City tax on cigarettes. The case is brought against the owners of the distributor personally, and evidence revealed two of the owners were not actually employed by the business the city named as the RICO enterprise. Ordinarily, this would make it impossible for the City to satisfy the requirement that these defendants be participating in the affairs of the enterprise, as the Supreme Court interpreted 1962(c) of RICO in its famous ‘s Reves decision.

But Reves dealt with claims under section 1962(c) of RICO not 1962(d), a conspiracy to violate 1962. Three other Circuits have held a modified Reves requement applies in conspiracy claims. But three years ago the Second circuit rejected that proposition in a criminal RICO case. Now it has rejected it in civil cases.

The implications of this decision for RICO plaintiffs is tremendous. Alleging that a RICO defendant is participating in the affairs of an enterprise has always been a big hurdle in civil cases. Generations of RICO lawyers have tried, unsuccessfully, to get their cases off the ground because they cannot allege a corporation participated in the affairs of an enterprise. They have alleged the enterprise was the corporation plus its employees, or subsidiaries, or agents- all to no avail. Has it ended, in the words of T.S. Eliot, not with a bang but a whimper? No enterprise was even needed?

There will likely a petition for certiorari to the Supreme Court to review this decision. And if not this one, then the next Second circuit opinion reaching the same, very expansionist conclusion. The Supreme Court will accept the case, as it is always hyper-cautious about expanding RICO. This will likely be decided in the next year or two.

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September 2nd, 2014

For months the President has been threatening to issue some type of mass amnesty for millions of illegal immigrants by decree. He has no authority to give people in the country illegally work permits or social security numbers, but he did just that for hundreds of thousands of young illegals two years ago to boost his standing with Hispanics during his re-election. It worked. Now with a midterm election looming, the pressure from his political base for a much broader program of legalization, perhaps for everyone in the country illegally, was expected.

But there was a backlash from conservatives and immigration restrictionists that grew loud enough that the President reversed course. Last week he announced he needed more time to think about immigration. It appears there will be no decree before the November mid-term election. He probably perceived any such action would do more harm than good to his political interests. If Republicans win control of the Senate in November he may decide not to proceed with any immigration decree. A provocative decree would likely lead to impeachment hearings in the House and possible retaliation against Obama nominees in the Senate. It just might be a bridge too far and cause too much harm to other things the President needs from Congress.

If the Senate stays Democratic, then we will probably see a more modest amnesty decree than what had been speculated about. The most intense pressure from immigration enthusiasts is for a halt to deportations. (And the administration has overstated the number of deportations by counting removals by the Border Control, which was never done historically.) This could occur, or perhaps a halt to all deportations except violent felons. Issuing work permits and social security numbers to millions of illegal immigrants will be very controversial. It seems Republicans have found their voice on immigration for the moment. They passed a bill in late July to modify the law allowing requiring hearings before deporting minors from Central America. They are also demanding stronger border enforcement and no longer talk of “immigration reform” or legal status for illegals. The summner border crisis, and reports of ISIS terrorists entering the country through Mexico have scared the public.

The more concerned the public is about the border the less likely the President is to act on his own (lawlessly). The tide of events seems to be moving in favor of common sense on immigration.

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August 4th, 2014

The children trying to cross the U.S. -Mexico are not refugees.  That is they are not fleeing oppression due to their race, religion, nationality or membership in a “social group,” the criteria for refugee status under the Immigration and Nationality Act (INA) and our refugee treaty obligations.  They are being sent here by their parents who are already here and paid smugglers to bring them to the border and  surrender them to Border Control agents.  (Previously smugglers had to actually cross the border.  Their task has been shortened.)

The parents are taking the the chance the children won’t be returned.  But the risk of that grows smaller by the day.  They are hoping and expecting the President will issue a decree which allows them and millions of other illegal aliens to remain here without fear of deportation and possibly also be authorized for employment.  This loose talk of executive action on immigration has set off the current crisis.

The expectation of such a decree by the President is hardly wild speculation.  Two years ago he did the same thing for the benefit of young illegals who had been brought over by their parents before they were 18.  It was called “deferred action” and basically lets them live here for the rest of their lives without being deported and to be allowed to work without a social security number.  The President had no legal authority to do that.  He called it “prosecutorial discretion,” the right of the executive branch to choose the worst offenders among a group too big to deport immediately.  But discretion is one thing; issuing official government documents conferring the right to live and work here is something else.  He went beyond his legal authority to enforce the INA.  He changed it.

No consequences for that lawless decree followed.  Neither the President nor the Director of the Department of Homeland Security, in charge of deportations, was called to account by Congress much less impeached, and Congress did not act to undo what the President decreed.  So more would-be illegal immigrants have rightly concluded that the next Presidential decree of amnesty might cover them or their children.  The President has been hinting he will have to “act” on immigration because the House will not do as he wishes and enact “comprehensive immigration reform.”  Most Americans probably paid no attention to those statements since May.  But he was not speaking to most Americans.  He was speaking to that part of his political base that is here illegally.   And the message was received.  They promptly enlisted smugglers to bring over their children.  We have been invaded/inundated ever since.

President Obama cannot say we will let them all stay indefinitely.  The public is not in favor of an open border.  So he says we will be “compassionate,” give every child an asylum hearing (to which they are not entitled because nobody believes they fall into one the refugee categories identified above), and then release them to relatives here.  Notice he did not say relatives who are here legally.  So the upshot is the illegal children will be turned over to their illegal parents, fail to show up for their asylum hearings and live out their lives here.  They don’t really need any presidential decree.  The Obama DHS will generally not deport illegal immigrants unless they commit a felony after their arrival.  But if a decree is issued, they might even be able to legally work in this country, something the INA does not allow.  And if that is not forthcoming, they will end up working illegally.

For the most part the children who have made it here will never be sent back.  The President has accomplished what his well-chosen words about “action” were calculated to accomplish.

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July 2nd, 2014

Yesterday the new House Majority Leader, Kevin McCarthy, informed the President the House would not take up immigration this year.  This means the Senate immigration bill passed last year will not become law, and no other immigration bill will pass in this Congress.  The threat that the House would pass some sort of immigration bill and go to conference with the Senate is over.  The nation will not have more liberalized immigration laws for now.  And with the economy cooling off again, case for more immigration looks weaker all the time.  The last House Majority leader, Eric Cantor, was defeated in his primary by a Republican who criticized his apparent support for “immigration reform,” a euphemism for legalizing every illegal immigrant in the country and doubling the number of legal immigrants over time.  It would seem the voters in Cantor’s district just did not note like that type of “reform” and didn’t accept his denials that he was secretly for mass legalization.

The flood of illegal alien children, something like a children’s crusade, now going on all across the Southwest border is not a coincidence.  It was timed to persuade Republicans to “do something” about immigration this year.  The people orchestrating the crusade were hoping the House would be shamed into some type of mass legalization bill.  But the defeat of Cantor ended the discussion and the images of children coming over without their children gives the impression that Central America knows we cannot and will not enforce our immigration laws.

It seems to be impossible to summarily deport any one who enters the country illegally.  Everyone gets an asylum hearing.  But there are no genuine asylees from Central America.  The people flooding our country now are economic refugees seeking better lives and drug dealers plying their trade.  Nobody comes from Mexico as a genuine refugee, one being persecuted because of race, religion, nationality or membership in a social group.  So the administration should declare this the emergency that it is and return all the children to the Mexicans without hearings.  Any genuine asylees can reapply once they get back at the U.S. Embassy in Mexico City.

The President does not look or sound particularly distressed about the situation.  He says they should stop coming over, but then sends buses to take them to shelters rather than to the border.  He sees them not as lawbreakers and future welfare cases but as future Democratic voters sponsors of their parents when the influx fades from the news.  If these children were the offspring of evangelical Christians crossing the Canadian border illegally, the administration would militarize the border and local school officials would be furious.  Immigration changes the country, and the message we have been sending for at least twenty years to Central America is welcome.

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June 5th, 2014

The time to pass immigration legislation this year is running out.  In a few weeks the House will go on summer recess.  When it returns after Labor Day it will be in re-election mode and unwilling to pass anything controversial.  So any chance for enactment of a big immigration bill is now slim and fades more with each passing legislative day.  So far the opponents of the Senate bill, which liberalizes immigration more than any reform since 1965, have kept it off the House floor.  Every time Speaker Boehner makes a statement about immigration he betrays his orientation to do what the Chamber of Commerce wants, that is to pass the Senate bill, and gets slapped down by Republicans opposed to the bill.

Sen. Charles Schumer has ominously said that if the House does not pass his type of immigration bill soon, again meaning the Senate bill, “the President will have to act on his own.”  President Obama is being heavily criticized for executive actions which exceed his statutory authority in several areas including granting dozens of waivers to the health care law, the Guantanamo Bay prisoner exchange, the E.P.A. rule on greenhouse gas emissions, and of course, immigration.  Recall the President unilaterally granted work permits to “DREAMers” (young illegal immigrants) two years ago as a political ploy to boost Hispanic turnout for his re-election.  It worked, but Congress had rejected that change in the Immigration and Nationality Act in 2008.  So arguably, Congress could have started the impeachment process if it believed such an action was a “high crime or misdemeanor.”  That phrase is not defined in the Constitution but basically means any offense deemed serious enough to consider removal from office.  Arrogating the power to the change the law to the President from Congress should be an impeachable offense if it’s a very big power grab and occurs over and over again.

If the President does what Sen. Schumer wants and declares that D.H.S. will issue work permits for all illegal immigrants in the country, that would be an arrogation of Executive power on a scale not seen since the Civil War.  It would make the 2012 act seem trivial by comparison, as it affected under a million people.  The House would be justifiably enraged and there would be many calls for impeachment.  It would also be seen as a brazenly political ploy to boost Hispanic turnout for the November midterm elections, which don’t appear to be going the President’s way.

There never was a a broad national demand for the Senate immigration bill.  Immigration comes in fourth or fifth in surveys of national priorities.  So the House’s refusal to pass an immigration law this year reflects the national mood and is not a purely partisan rebuke to the President.  But granting amnesty by fiat, i.e., changing the law in a major way, would be.

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May 1st, 2014

The “extraterritorial” application of federal statutes has been a big issue since the Supreme Court’s Morrison decision four years ago.  Morrison rejected the attempt to apply U.S. Securities law to the purchase by a American citizen of securities on the Australian stock exchange.  The Court reaffirmed the long-standing presumption against the application of American law to conduct occurring abroad.  But this has been difficult to apply to RICO cases with foreign elements- as many illegal schemes sprawl through foreign holding companies, banks and co-conspirators.

At what point does a RICO case become “extraterritorial?”  Some district judges have looked at the RICO enterprise and decided it was the key element.  Others have drawn the line at the locus of the racketeering activity, believing that was the point of the law.  The Second Circuit muddied the inquiry with its Norex decsion three years ago holding that complicated case involving control of the Russian oil industry was extraterritorial because it had “slim contacts” with the U.S.  The slimness of the contacts were not ascribed to either the enterprise or the racketeering activity, and the opinion was too short to lend much guidance in future cases.

Last week the Second Circuit decided European Community v. RJR Nabisco, which clarifies what makes a RICO case extraterritorial.  It’s the location of the racketeering acts, not the enterprise.  There the European Community is  alleging RJR Nabisco “orchestrated a global money laundering scheme from the U.S. by sending employees and communications abroad.”  Since these schemes were committed in the U.S., they are not considered extraterritorial even though they are alleged to have been directed at foreign entities.  This has significant implications for future RICO cases involving foreign plaintiffs.  Many frauds are committed by Americans using mails and wires for the purpose of defrauding foreign businesses or people.  Under this decision, those cases are not extraterritorial and can be heard in U.S. courts.  (RICO cases can also be brought in state courts.)  The extraterritoriality problem only arises when a plaintiff wants to use RICO to sue for damages committed abroad.  So the European Community can proceed with its massive RICO suit in New York.

The decision also clarified that certain RICO predicate acts can be the basis of RICO claims if those laws provide for extraterritorial application.  The federal money laundering statute is one such law, which by its own terms applies abroad.  So that part of the European Community’s case can proceed even though the illegal conduct occurred abroad.  This is consistent with Morrison because it recognized some laws are written to expressly apply to extraterritorial conduct.

The decision basically supersedes the confusing Norex opinion, which raised more questions than it answered.  But European Community only applies in the Second Circuit.   Federal judges elsewhere are not bound by it.  Yet in the absence of other competing appellate decisions applying a different take on extraterritoriality, this should be persuasive to federal district judges, more so than the slew of contradictory district court opinions out there.  So for now, this is the leading case on extraterritoriality, and it favors many RICO plaintiffs.


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April 3rd, 2014

Pleading causation in a Complaint used to be an afterthought.  A lawyer would say that the defendant committed acts which violated some statutory or common law and the plaintiff was injured by them.  No elaboration of causation was needed.  Defendants could not move to dismiss a complaint because the allegation of causation was too vague or unsupported.  There were some exceptions to this in RICO cases, such as where the complaint describes a party that was more “directly” injured by the violation than the plaintiff.  In Holmes v. S.I.P.C. (1992) the plaintiff, the Securities Investor Protection Corp. (SIPC) , the federal agency that reimburses brokerage account holders when a broker goes bankrupt and accounts are lost, sued Robert Holmes for securities fraud (then a RICO violation).  SIPC’s theory of causation was that the fraud was exposed, Holmes’ company’s stock plunged in value and several brokerage firms heavily invested in the stock went bankrupt.  Then SIPC had to make good on its insurance policies to the account holders.  It did so, and then sued Mr. Holmes for reimbursement.

The Supreme Court held that SIPC’s RICO complaint did not describe a “direct” injury caused by Holmes.  Holmes may have committed securities fraud, but that only directly injured the the purchasers of the manipulated securities and the account holders who were wiped out, both of whom had already filed suits against him.  SIPC’s injury was “derivative” of the injury to those people and therefore not compensable under RICO.  This would have been true in ordinary tort law under long-established principles.  So the Court did nothing dramatic.  It simply applied those principles, which had already been applied in antitrust law, to RICO.

But what followed was years of confusion.  Many defendants cite Holmes in motions to dismiss in cases where the complaint does not describe an injury where there is a more “directly” injured party.  They have tried to apply the directness requirement to all sorts of cases, like ordinary fraud, where the supposedly directly injured party is the U.S. government or a state.  The government has only been injured in the theoretical sense that its laws against fraud have been violated.  But if that is really a direct injury that defeats the plaintiff’s right to sue, then what fraud case could ever be brought?

In Anza v. Ideal Steel Co. (2006) the Court held New York State was directly injured when a taxpayer made false tax filings.  New York had a monetary claim against the tax cheat.  So the tax cheat’s business competitor, another steel retailer, did not.  That sounds like Holmes, and one can see why the Court did’t wan to open the courthouse doors so that businesses can sue rivals for unfair competition based on tax cheating.

Now the Supreme Court has given us more guidance on how much a plaintiff needs to say to allege causation.  In Lexmark Int’l., Inc. v. Static Control Components (March 25, 2014) , a rare unanimous decision,  it said this in footnote 6: “But like any other element of a cause of action, it [causation] must be adequately alleged at the pleading stage in order for the case to proceed.  Ashcroft v. Iqbal.”  Ashcroft v. Iqbal, as all litigators know, is a famous case that requires the allegations of a complaint to be facially plausible.  But in that case it was the allegations of illegal conduct that were the problem, not causation.  Now the Court has told us the causation allegations must be “plausible” too.

That may not sound terribly significant, but it is.  If, for example, you are a plaintiff trying to bring a claim involving illegal pricing, the bare allegation that the price you paid was fixed, might not be plausible.  Can a firm with a tiny market share plausibly “fix” the price for anything at a supracompetetiive level?  Economics tells us no.  A firm that does so will lose all of its sales.  At least in a normally functioning market such as is described in economic textbooks.

I predict Lexmark’s footnote 6 will soon become famous.  RICO plaintiffs must take note.


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March 5th, 2014

After years of pre-trial decisions and appeals from a preliminary injunction Judge Lewis Kaplan of the Southern District of New York  entered a final judgment in favor of Chevron Corp. and against Steven Donziger, a Harvard law school graduate yesterday in the nation’s most high-profile RICO case.  The 500 page opinion goes into painstaking detail about the evidence Chevron produced in its long-running effort to stop Donziger from enforcing the $9 billion judgment he obtained from an Ecuadoran court against Chevron for polluting the environment in a region of that Central American nation known as Lago Agrio during many years of oil drilling.  Mr. Donziger began representing Ecuadorans with grievances against Chevron and its subsidiary Texaco shortly after he graduated from law school in 1991 with incredible tenacity.

The case began as a class action in New York, was transferred to Ecuador at Chevron’s request, attracted hundreds of millions of dollars in investor financing and resulted in one of the largest judgments against an American corporation in history- $14 billion.  The Ecuadoran Supreme Court later reduced it to $9 billion, and conceivably it could have been enforced against Chevron’s assets all over the world.  Now it cannot be.  Judge Kaplan has found that Donziger procured the judgment from various illegal schemes including bribing the Ecuadoran judge, ghostwriting an expert report and extortionate tactics tactics designed to coerce Chevron to pay a vast amount of money, far in excess of any actual damages suffered by his Ecuadoran clients.

From a RICO perspective, the case was a stretch.  It seemed like most of the illegal conduct occurred in Ecuador making the claim extraterritorial.  But Judge Kaplan thinks otherwise, and his analysis of this important issue focuses on the place where the illegal schemes were “hatched” (the U.S.) rather than where they were carried out.  This is an important development in the extraterritoriality issue, which is confusing judges across the country.  Another problem was that the major RICO violations, trying to extort money from Chevron, were not accomplished.  Chevron did not settle the case or actually lose any money from efforts to enforce the judgment (all unsuccessful to date).  Rather, the damages it suffered were in the tremendous attorneys’ fees it had to expend in defending the suit.  This was attempted extortion, and it was upheld as a pattern of racketeering activity (along with the false mailings and wires that were also used to execute it) to support a RICO claim.  The implications for this judgment are significant in RICO.  Many corporations are subjected to long-running schemes to coerce settlements or the recognition of a labor union.  They have to pay millions in attorneys’ fees to fend off these efforts.  Now, there is a RICO precedent for turning the tables on the plaintiffs’ lawyers.  (Another such case is now progressing in the District of Columbia against the lawyers who filed and then lost  a massive high-profile suit against the corporation that runs the Barnum and Bailey Circus which I have blogged about).

Another significant aspect of this RICO case is the remedy sought, an injunction against Donziger from taking any steps to enforce the $9 billion judgment against Chevron in this country.  There has always been doubt as to whether RICO’s civil remedies include the power to enter an injunction against the loser.  Judge Kaplan decided it does, and that was the primary relief Chevron was seeking.  It did not seek or get a money judgment against Donziger.  Presumably it realized Donziger does not have anywhere near the amount of money it was seeking in damages, and so it dropped any money damages claims.  But the relief it obtained, a permanent injunction against him from taking steps to enforce the judgment means Chevron will never have to pay the $9 billion.  Technically, the injunction cannot stop Donziger’s affiliates from taking steps to enforce it in other countries where Chevron does business, but Chevron is fighting it in those nations too. This decision will likely help Chevron persuade judges everywhere that the judgment was ilegally procured and should not be enforced.

Donziger will certainly appeal to the Second Circuit.  He will probably lose on all issues.  Although the RICO claim was a stretch, a respected district judge has used RICO liberally, which is his prerogative.  Congress specifically intended the law to be “liberally construed.”  Most district judges construe it strictly and grudgingly.  But the appellate courts have been more generous, and I find nothing here that is so out of line as to be reversible.  Donziger’s conduct was so appalling that he invited the Judge to push RICO to its limits.  It is decisions like this that create new paths for future RICO cases.

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