Medical Marijuana, Inc. v. Horn

Oral argument transcript · No. 23-365 · October Term 2024 · argued October 15, 2024 · the respondent won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

• Lisa S. Blatt, Washington, D.C., for the petitioner
• Easha Anand, Stanford, California, for the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument first this morning in Case 23-365, Medical Marijuana versus Horn. Ms. Blatt. ORAL ARGUMENT OF LISA S. BLATT ON BEHALF OF THE PETITIONERS

Lisa S. Blatt: Thank you, and may it please the Court: RICO states that any person injured in his business or property by reason of racketeering can sue therefor and recover threefold the damages he sustains. Because RICO's cause of action excludes personal injuries, RICO excludes damages resulting from personal injuries. The text differentiates the injury from racketeering and the damages sustained from that injury, thus showing that injury and damages are distinct. And the references to damages he sustains shows that damages are the losses suffered as a result of the injury. Damages are not themselves the injury inflicted by the defendant. Official 1 This distinction tracks this Court's recognition that lost wages and medical expenses are classic damages from personal injuries. Respondent's complaint alleges the personal injury of unwanted ingestion of THC and the resulting damages of lost wages. To quote the complaint: "Defendant's behavior caused Plaintiff's physical harm in the ingestion of Dixie, and as a direct result of consuming this product, he was dismissed from his employment." That's a personal injury claim outside civil RICO. Respondent argues that every economic loss is its own RICO injury but not to worry because RICO still bars non-pecuniary damages. But that view conflates injury and damages by treating RICO's exclusion of personal injuries as just excluding a narrow type of damages: pain and suffering and emotional distress. Respondent's rule also leaves the personal exclusion toothless since virtually all personal injuries result in monetary loss. It is utterly implausible that Congress federalized every slip and fall involving RICO predicates. Personal injuries are serious and may support Official 1 state tort -- tort claims, but they are not the stuff of RICO. I welcome questions.

Justice Thomas: What does it mean to be injured, someone to be injured, in his business?

Lisa S. Blatt: The Court in -- in the Clayton Act case of Reiter talked about what -- injury to business, and it was referring to anytime a commercial enterprise suffers any monetary loss, it would be both a right -- a -- a injury to both business and property, a right to carry on business. Now the lower courts pre-RICO under the Clayton Act have also recognized that an employee has a business kind of a right to carry on in his employment, and we haven't contested that. So, in those cases, if you conspired to prevent -- in those cases, they involved encyclopedic salesmen, deprived those people of their right to carry on their profession as a salesman, the -- the lower courts recognized that that was an injury to business. So it's a right to carry on, you know, a profession or your commercial enterprise. Official

Justice Thomas: Can loss of employment ever constitute injury in business?

Lisa S. Blatt: Well, it's -- it certainly does in the Clayton Act. And the example I can think of, the only example that readily comes to mind, in RICO would be the human trafficking cases, where a person is forced to work against their will, and the -- there's an injury in your right to get, you know, the -- the -- the payment for your performed work. So that would be an injury, a direct injury, to one's business. And that human trafficking -- it's hard to see how it would otherwise come up unless you defrauded someone into quitting their job, but, generally, lost wages are pretty standard, prototypical damages from personal injury.

Justice Sotomayor: Ms. Blatt, you're raising an example that leads me to think that what you're really arguing about is proximate cause, meaning -- and not really whether personal injury is recoverable or not. It is under, by your own admission, certain circumstances. And, in your brief, you list a bunch of examples that seem to me quintessential Official 1 personal injuries, but you related them to the business loss and then said those were recoverable.

Lisa S. Blatt: So personal --

Justice Sotomayor: So it doesn't make any sense to me to say a mob can threaten a store owner to take over his business and, if he doesn't, injure him and he can't recover, but if they put a bomb in the place and close it down, they close it down by hitting him or shooting him but then throw a bomb, he can recover for the bomb but not for the injury to himself.

Lisa S. Blatt: So no one in -- under this statute can ever recover for personal injuries, full stop, never ever. If there's an independent infringement --

Justice Sotomayor: But why? Isn't --

Lisa S. Blatt: -- of the right to property --

Justice Sotomayor: -- isn't that an issue or shouldn't it be an issue of proximate cause, which wasn't reached in this case, correct?

Lisa S. Blatt: So -- so, no, and here's why, because a lot of examples, the plaintiff Official 1 will meet a direct and proximate cause, and I can start to give you a million, but they would still be damages resulting from personal injury. Take your -- a shooting where someone is shot and suffers medical expenses and can't work. Direct injury, sure, the lost wages and medical expenses, but, still, it's damages resulting from personal injury, so a proximate cause --

Justice Sotomayor: But, no, there's a whole lot more to RICO than simply damages. There's also the predicate that you have to have a racketeering --

Lisa S. Blatt: For sure.

Justice Sotomayor: -- enterprise. You have to have willful intent. In product liability cases, most of those are negligence or strict liability, so you're not going to have willfulness or intent. And, similarly, you have to show proximate causation, reasonably foreseeable. There's a serious question as to whether you shoot someone not related to the enterprise and you cause damage, but another predicate act occurs that you're going to recover. Official

Lisa S. Blatt: So, in your normal case of any personal injury, you read a -- misread -- a label's -- confuse -- misleading, you're injured, you are -- can't work, you have lost -- lost --

Justice Sotomayor: You're still not --

Lisa S. Blatt: That's --

Justice Sotomayor: -- you're still not answering my question.

Lisa S. Blatt: Well, I guess what -- so two things. You can always have causation, but there's still an independent requirement that you must be injured in your business or property.

Justice Sotomayor: It has to be proximate course -- causation --

Lisa S. Blatt: Yes. And there's --

Justice Sotomayor: -- which is very different.

Lisa S. Blatt: -- plenty of proximate, direct, absolute causation, no ands, ifs, or buts, but it's still just a personal injury action that's outside the scope of RICO.

Justice Jackson: But, Ms. -- Official

Justice Kagan: But you --

Justice Jackson: Oh, go ahead. Go ahead.

Justice Kagan: You started by talking to Justice Thomas about what it means to be injured in your business or property. Now there might be a set of questions there that this Court has not addressed, lower courts have, but you said lower courts have said that to -- to lose a job is to be injured in your business or property.

Lisa S. Blatt: No -- no. Sorry. To lose a job can be both damages or an injury. It depends on the nature of the cause of action. So you always generally, with every personal injury, can have permanent job loss. You can have lost wages. Those are damages.

Justice Kagan: Well, it's also --

Lisa S. Blatt: It is a very rare case --

Justice Kagan: -- it's also a loss when -- you know, it's a -- it's a harm when I lose a job. You know, I've been harmed. I lost my job. And --

Lisa S. Blatt: Yes. When you pay medical expenses, you're harmed as well. Official

Justice Kagan: If you're harmed when you lose a job, then you've been injured in your business, haven't you? I mean, just as -- I -- I guess what I'm saying is the simplest, clearest reading of this statutory language is it doesn't -- it doesn't distinguish by what causes the harm. It just says, if you're harmed in a way that's in your business or property, which has been understood to include being harmed by loss of a job, and that's by reason of a violation of Section 1962, then you're entitled to threefold the damages you would otherwise be --

Lisa S. Blatt: And the problem with that is it's reading the statute just like the Federal Tort Claims Act, the Antiterrorism Act, to say any person injured in his person can recover threefold the damages. And the --

Justice Kagan: Well, it's -- it's not reading the statute the same way as injured in his person because, if -- if all I come in and say is, you know, I suffered emotional distress or I suffered pain and suffering, I would not be entitled to damage -- to threefold damages.

Lisa S. Blatt: So that's an Official 1 infinitesimal, small number of cases that would be excluded.

Justice Kagan: It might be an infinitesimal, small number of cases. I'm just trying to figure out -- like, that's the most normal, natural reading of the statutory language. If you've been -- it doesn't say what you've been injured by. I mean, you have to be injured by the RICO violation. But it doesn't distinguish among different kinds of RICO violations. It just says, if you've been injured by a RICO violation in your business --

Lisa S. Blatt: In your business, right.

Justice Kagan: -- which includes your employment, then you're entitled to threefold damages.

Lisa S. Blatt: And the only way to give the statute its normal meaning of "damages sustained" is to distinguish between the injury. If the Respondent had hit a tree because he was impaired from THC, that would be a classic personal injury action for lost wages and medical expenses. It sounds like you think maybe the Second Circuit is right. The Second Circuit Official 1 seemed to think lost wages are always recoverable, but medical expenses never would be because that results from a physical injury. And, of course, property loss, the most fundamental of all property loss is monetary loss.

Justice Kagan: But I -- I think what --

Lisa S. Blatt: All personal injury actions result in monetary loss except, I guess, a case where there's just exclusively psychological damage. But every slip and fall --

Justice Kagan: Well, I -- I don't know exactly how your rule works because, if you don't read it that normal, straightforward way, then, you know, you -- you get into all these -- you admit in a whole set of hypos that I can do something to you that we would normally classify as a personal injury and you would be entitled to RICO damages.

Lisa S. Blatt: No.

Justice Kagan: So, if I hit you and, as a result of that -- this is your car wash operator example -- there's an assault that's Official 1 usually understood as a personal injury, but, as a result, you decide to do business with the mobster rather than with a legitimate businessman and you say, well, notwithstanding that it was all caused by an assault, which was a personal injury, you are entitled to RICO damages. And I think you could say the same thing here.

Lisa S. Blatt: But that's just not our argument.

Justice Kagan: I mean, you could have -- you could have a -- well, I don't know how you get to the answers of your hypotheticals if that's not your argument.

Lisa S. Blatt: Sure. Whenever you have a robbery where money is taken or an extortion where money is taken or kidnapping where ransom is taken, there are two independent infringements of your legal right. You have a right to not be hit or assaulted or whatever, you know, kidnapped, and you have a right not to have your money taken. And when money is taken, you get your money back under RICO because that's a monetary independent Official 1 loss. You cannot recover for physical --

Justice Kagan: Well, money is taken as a result of the assault. The assault happens, and then you say: Okay, I better do business with you. So, I mean, you're -- you're --

Lisa S. Blatt: But that's why our test --

Justice Kagan: -- it's a -- it's a consequential injury from the assault.

Lisa S. Blatt: Let me give you an example. If you take the money and then shove the person down the stairs, you took the money. You may have shoved the person down the stairs to prevent them from getting your money back, but our test doesn't ask which --

Justice Kagan: But that's not your own hypos. Your own hypos are things like there's an assault, there's a kidnapping, there's a murder. All of those things are personal injuries that don't have any particular economic component. As a result of those things, you lose some business opportunities, and -- and you yourself say you get RICO under that -- you get RICO damages under those hypotheticals. So this Official 1 one --

Lisa S. Blatt: You can --

Justice Kagan: -- looks pretty much like that.

Lisa S. Blatt: No. You can always get RICO damages for independent property violations. And, here, there is just an allege of a right not to have -- not to be induced to consume THC. Our position is no different than the Clayton Act. It's the exact same rule. This Court, in the Truett versus Chrysler Motor Company case, said: No damages resulting from personal injuries. That is our test.

Justice Jackson: But, Ms. Blatt, can I --

Justice Barrett: Ms. Blatt, can I ask you --

Justice Jackson: Go ahead.

Justice Barrett: Ms. Blatt, can I ask you where you get your definition of "legal injury"? I mean, are you looking at just kind of general tort principles? I guess I'm having a hard time figuring out exactly how you look at it and define it. Official

Lisa S. Blatt: Two -- two -- two places. So, when it says, you know, this RJR Nabisco and also just the statute, you can sue and you can sue for a personal injury, that, to me, conjures up the infringement of a right. And in WesternGeco, when the Court talked about an infringement of the patent right, it called it "the injury." In Yegiazaryan, when it talked about what the injury in that case was when trying to decide if there's a domestic injury, it talked about what the racketeering activity directly did to the plaintiff. And so injury as an infringement of a legal right is a -- I think we cite Ballentine, but that is a standard definition of "injury."

Justice Barrett: Where does the "legal" in the "legal right" come from? Are you looking kind of at general principles? You're just looking at the nature of the harm? Does it help you in terms of property or --

Lisa S. Blatt: Oh, I think it's just a question of federal law. I mean, so whether you have an injury to person, property, or business, that's a question of federal law that's informed Official 1 by general tort principles.

Justice Barrett: So are you looking at, like, the Restatement?

Lisa S. Blatt: You could in the Burke case that dealt with whether something was a personal injury on -- sorry, damages on account of personal injury. The Court looked at things like a Dobbs and Restatements, but it was a federal question on whether the damages resulted from the personal injury --

Justice Jackson: Why -- why aren't you looking --

Lisa S. Blatt: -- and whether there was a per -- whether -- whether discrimination under Title VII was, in fact, a personal injury or some other kind of injury. The Court looked at a bunch of state law sources, but it was a federal law question.

Justice Jackson: Ms. Blatt, I -- I'm trying to understand the personal injury that you say was alleged or happened in this case. I did not perceive Mr. Horn to be relying on any sort of personal injury allegation with respect to the RICO count. He Official 1 doesn't say, for example, that he took the THC and that he got ill from it and, as a result of that, he took off from work and then he got fired. He says, instead, just directly, that he -- let me see --

Lisa S. Blatt: Well, I think --

Justice Jackson: -- it alleges a pattern of mail and wire fraud related to your client's alleged fraud about whether the product took -- contained THC. He relied on that, and he got fired as a result. I don't see where personal injury is doing any work in his RICO claim.

Lisa S. Blatt: I think you're correct in the complaint that the allegations we're talking about, where he's talking about physical harm, it's talking about either the -- the allegations that are general. But page 21 of our brief goes into great detail of all the other places in his affidavit and in the RICO case statement --

Justice Jackson: Yeah, but those are in other counts. Those are in the personal injury counts. And I think that matters, right?

Lisa S. Blatt: No, not in the RICO Official 1 statement. The RICO statement, by definition, is the RICO claim.

Justice Jackson: No, no, no. What I'm saying is the question presented in this case, that you've presented, is whether economic harms resulting from personal injuries are injuries to business and property. So I'm trying to understand the allegation of personal injury here from which the business harm results.

Lisa S. Blatt: Yeah, and I guess --

Justice Jackson: He doesn't say: My injury is resulting from a personal injury. He says: I'm injured because I got fired.

Lisa S. Blatt: Well, his entire causation -- and, again, I'm not just quoting from the complaint. His affidavit -- he needs to rely on the consumption or he doesn't have causation. Consumption is personal injury. But this was litigated at the cert stage.

Justice Jackson: But does your test need to rely on the consumption? I mean, suppose there was -- suppose the employer's rule. Official

Lisa S. Blatt: I think you're -- that's fair, you're right.

Justice Jackson: So -- but -- but -- but that's why I'm sort of, with Justice Kagan, trying to understand your rule. So --

Lisa S. Blatt: I think our rule is, if there's no personal injury, we don't need to be here and have this discussion.

Justice Jackson: No, no, no. What I'm asking you -- let me ask you in a hypothetical.

Lisa S. Blatt: Okay.

Justice Jackson: All right? So suppose we have the same basic situation, but the employer's rule is that you can't possess --

Lisa S. Blatt: Mm-hmm.

Justice Jackson: -- THC. Can't have it. And he looks at all of the advertising materials. He understands that your product does not have it based on your advertising materials, and so he buys it and he has it in his locker. I think this is an example --

Lisa S. Blatt: Yeah.

Justice Jackson: -- that the Official 1 Respondents came up with.

Lisa S. Blatt: Yes.

Justice Jackson: And then he's fired --

Lisa S. Blatt: Yes.

Justice Jackson: -- because the -- the -- the employer says: You have it. You're not supposed to have it.

Lisa S. Blatt: Right.

Justice Jackson: Does he have a RICO claim or not under those circumstances?

Lisa S. Blatt: Well, he doesn't have a RICO claim, but it wouldn't be covered by this case because there's no personal injury. It would be no different if he was --

Justice Jackson: No, no, no. You're inserting personal injury. What I'm suggesting --

Lisa S. Blatt: Your example doesn't involve a personal injury. Now, at most -- if I can just answer the direct question. If I was that person's lawyer, I would say: You were injured in your business or property for the purchase price. You paid -- purchase price is a classic RICO Official 1 injury, classic Clayton Act. He's entitled to three times his purchase price.

Justice Jackson: So you're saying he would have a RICO claim in --

Lisa S. Blatt: For purchase price.

Justice Jackson: He would -- okay. So --

Lisa S. Blatt: But lost wages aren't -- he doesn't rely on the law -- he -- and he would fail any kind of causation test if he tried to say: I was fired from the purchase price. He would ultimately fail causation under three of your Supreme Court cases that say there has to be a direct relationship between the conduct that was done to the plaintiff and the lost claim. And there, you had the independent actor of the employer. It would be no different if the employer fired him for being tricked into buying baby powder that, you know, didn't have the requisite -- it might -- he might have an injury, but he just wouldn't have a RICO claim because there would be lack of causation.

Justice Kagan: And -- and isn't that essentially what's wrong with this case too, is Official 1 what Justice Sotomayor was suggesting?

Lisa S. Blatt: It --

Justice Kagan: I mean, there is a definite causation problem in this case.

Lisa S. Blatt: Absolutely.

Justice Kagan: His -- his -- you know, he buys this thing. He ingests this thing.

Lisa S. Blatt: And someone else fired him.

Justice Kagan: A different person fires him. This is not a good RICO claim for that reason, but it has nothing to do with the reason that you're giving.

Lisa S. Blatt: Oh, no, no, no, no. You can win for more than one reason, Justice Kagan. The Second Circuit held that a --

Justice Kagan: But you're relying on an intuition that your client should win and Ms. Anand should lose. And that intuition may be a very valid one and -- but the -- but the intuition works because there's no proximate cause.

Lisa S. Blatt: But all -- with all --

Justice Kagan: The intuition does not Official 1 work because he hasn't satisfied the business or property requirement because he has. He's been injured in his person or property --

Lisa S. Blatt: No, and with all due respect --

Justice Kagan: -- by reason of a RICO violation.

Lisa S. Blatt: -- with all due respect, every classic slip-and-fall personal injury case, you could talk about causation clearly, but it would still be the lost wages, you're fired because you either can't work because you're permanently disabled, or your employer fires you because you can no longer see or have an arm.

Justice Kagan: Well, maybe there's --

Lisa S. Blatt: You still lose your job, but it's --

Justice Kagan: -- maybe there's also an issue -- I mean, we haven't -- we haven't decided what this "business or property" phrase means. Maybe "business or property" doesn't mean lost wages. But, again, it -- that's a -- that's a second reason why you might win but also a reason that has nothing to do with the Official 1 reason that you're articulating here.

Lisa S. Blatt: Justice Kagan, the Ninth Circuit and the Second Circuit hold, if you have a personal injury, and what the other side reads the statute to say anybody injured in his person, have at it under RICO; just don't assert economic damages. That flips the statute on its head. It doesn't say anything about being injured in your person. And, under their rule, all personal injuries are recoverable under RICO, which is an absurd not just intuitive proposition, but that cannot be within the contemplation --

Justice Kavanaugh: Can I pick up --

Lisa S. Blatt: -- of Congress.

Justice Kavanaugh: -- on Justice Barrett's question? Because I think the other side says that injury, just ordinary meaning, means harm.

Lisa S. Blatt: Mm-hmm.

Justice Kavanaugh: And you say that's wrong based on an idea that "injury" is a term of art, I think --

Lisa S. Blatt: Yes. Official

Justice Kavanaugh: -- in tort law. Can you elaborate on why injury does not equal harm? Because that's --

Lisa S. Blatt: So --

Justice Kavanaugh: -- front and center in their brief.

Lisa S. Blatt: -- so I think injury could mean harm just as it means the -- the legal harm that was invaded. So I don't have a problem with the word "harm." But what it doesn't mean is loss in terms of any damage. And they have no meaning or independent distinction between "injury" and "damages sustained." And I think inherent in that distinction between the injury that -- the injury that you sue over is the type of infringement. And you have to have -- look, everyone agrees at least I think since you've said it twice under Clayton Act and RICO that the cause of action excludes personal injuries. So what does that mean? We think it means what it says. It excludes personal injuries. So that means the damages from personal injuries. They say no, no, no, it includes personal injuries and it includes all Official 1 damages from personal injuries.

Justice Jackson: But why is this a damage from personal injury? That's the part I don't understand. He's not claiming that he got ill because of the product. He's not saying he was personally injured.

Lisa S. Blatt: Was it --

Justice Jackson: He didn't even know --

Lisa S. Blatt: True.

Justice Jackson: -- that he had ingested THC until the testing and the firing.

Lisa S. Blatt: Yeah.

Justice Jackson: Isn't that where his injury comes in?

Lisa S. Blatt: I think -- I mean, this was the -- this was what the other side briefed to the Second Circuit and the Second Circuit didn't decide it. But, if I ate poppyseed bagels and failed a drug test, it's a personal injury. If I took a medicine like doxycycline, which is an antibiotic, and I can't be out in the sun and I lose my job as a lifeguard, it's a personal injury claim.

Justice Jackson: But why are you Official 1 saying that? You can -- I mean, you're just saying that. I'm asking you, you know --

Lisa S. Blatt: Why am I saying it?

Justice Jackson: -- there are -- there are personal injury claims that derive from a person being harmed by -- by the ingestion of the product, right? They're bodily, physically harmed because they have taken this thing. I don't read this claim to be that kind of injury.

Lisa S. Blatt: I --

Justice Jackson: He's not saying that the product itself injured him in any way.

Lisa S. Blatt: I think it is inconsistent with all of tort law to say a bodily invasion is not a personal injury just because you didn't have to go to the hospital or cough.

Justice Jackson: He voluntarily took the product.

Lisa S. Blatt: Well, we all do.

Justice Jackson: He was not invaded. He --

Lisa S. Blatt: We all take products that can be mislabeled. We take them and we either Official 1 get sick or we don't. But we all take products and we claim, yeah, but the label told me I wasn't going to have a side effect --

Justice Gorsuch: Ms. Blatt --

Lisa S. Blatt: -- and I had the side effect.

Justice Gorsuch: -- Ms. Blatt, if I might ask you a different question. You rely heavily on the Clayton Act and -- and the similar language there. I went and looked at the Areeda-Hovenkamp, what they have to say about this.

Lisa S. Blatt: Oh, dear.

Justice Gorsuch: I know. I know. (Laughter.)

Lisa S. Blatt: Okay.

Justice Gorsuch: Yeah. "Oh, dear" is right. They say: "Reiter thus made plain that the business-or-property requirement is virtually always satisfied provided there's some kind of injury that can properly be characterized as economic."

Lisa S. Blatt: Yeah. Well, I don't -- I mean, that's not right. Official

Justice Gorsuch: Okay. So --

Lisa S. Blatt: I would go -- no.

Justice Gorsuch: -- you just disagree with Areeda --

Lisa S. Blatt: Oh, yeah. No, that's definitely wrong.

Justice Gorsuch: Okay. Okay. Okay.

Lisa S. Blatt: Absolutely. And --

Justice Gorsuch: That's all I need to know. Thank you.

Lisa S. Blatt: Yeah. No. Wrong, wrong, wrong. And Reiter, I think, I mean, says anytime a commercial enterprise suffers any monetary loss it's going to be a business or injury. But let's -- look, there are Clayton Act cases after -- any -- any conspiracy to affect drug prices that result in a personal injury would mean treble damages under Clayton Act. That would be a sea change -- a sea change in Clayton Act if you had personal injury recovery for price-fixing.

Justice Gorsuch: So even Homer nods, the great Areeda and Hovenkamp treatise wrong?

Lisa S. Blatt: No, absolutely.

Justice Gorsuch: Okay. Official

Lisa S. Blatt: No, absolutely, because you would -- you would -- that would be, like I said, a sea change under Clayton Act. I mean, it might be a boondoggle for plaintiffs' lawyers, but I think it would freak everyone else out.

Justice Jackson: Ms. Blatt, aren't you estopped from claiming that he has a personal injury here when below you argued or your client argued that he had no personal injury, which is why all the personal injury claims were dismissed?

Lisa S. Blatt: Mm-hmm.

Justice Jackson: I don't understand how you can have it both ways.

Lisa S. Blatt: Sure. On page 113 of the Pet. App., the district court is recognizing that we argued, and the court said, there's no cognizable injury. But, on pages 49 and 50, which I think is pretty bad for the other side, the court is saying but there's clearly a -- this is a classic personal injury claim, which is why he can get lost wages for fraud.

Justice Jackson: I understand. I'm talking about what you argued. Your client Official 1 argued, to get rid of the personal injury claims, that he had no personal injury; the only thing was economic.

Lisa S. Blatt: So -- so --

Justice Jackson: And so now that he's left with the economic, you say no, there is a personal injury and he can't get damages for that.

Lisa S. Blatt: Yeah -- sorry. On pages 49 and 50, it goes through how we, the defendants, are arguing this is a personal injury claim. So we did argue it was a personal injury claim. We claimed what we're talking about before, there's no cognizable personal injury. It's like saying emotional damage, it's not -- it doesn't count because you didn't -- it didn't manifest itself in physical. So I don't think we're estopped. If you want to let that, I guess, I don't know, reverse, you'd have to reverse the rule and then decide if we're estopped, but I don't -- I'm not sure how that would work out if that's what you thought.

Justice Kavanaugh: Do you want to respond to their invocation of the liberal Official 1 construction canon?

Lisa S. Blatt: Yes, a couple responses. I mean, liberal construction in light of its remedial purposes, but the one thing all nine of you should agree on, its remedial purposes did not extend to personal injuries. You've already said that twice, in the Clayton Act and in RJR Nabisco. It doesn't extend to remediate personal injury. Second of all, I think it's a tie-breaker. We -- their -- their serious reading of the statute inserts the word "injured in its person" to read just like the Antiterrorism Act. And, finally, I think it does run up against the constitutional principle of federalism, that their view does cannibalize all of state tort law. Every -- every slip and fall from a mislabel now is a RICO case. So I think, I mean, that should be -- the Court -- I mean, one more thing I'll try on that, the Court last cited that clause in 1985. I mean, it hasn't relied on it since and says you shouldn't use it to put RICO in contexts that Congress, you know, didn't want or couldn't Official 1 have contemplated. And, here, it is just so -- would be so striking to think that RICO remedied personal injuries.

Chief Justice Roberts: Thank you, counsel. Justice Thomas, anything?

Lisa S. Blatt: Oh.

Chief Justice Roberts: Justice Alito?

Justice Alito: Well, you say that under RICO, injury is "the invasion of a legal right." So how would we go about determining whether something is a legal right for this -- this purpose?

Lisa S. Blatt: So, first, you look at the complaint. I think property's pretty easy because the Court has already said any monetary loss is a property loss. So, I mean, you could quibble about whether loss of consortium, if state law defines that as a property loss. And then injury is also, I think, pretty easy because that involves the body.

Justice Alito: Well, what authorities would we look at?

Lisa S. Blatt: Oh. Look at the Official 1 complaint. Look at state law general tort principles. Again, that Burke case --

Justice Alito: General tort principles?

Lisa S. Blatt: Yeah. What Burke said is -- which I like because it -- I think it works -- is that are the damages -- what are the damages seeking to redress? Are the damages redressing a -- something that happened to the body, are they redressing stolen property, or are they redressing a right to carry on in your business?

Justice Alito: All right. Thank you.

Chief Justice Roberts: Justice Sotomayor?

Justice Sotomayor: Ms. Blatt, you rely a lot on WesternGeco. You mentioned it a few minutes ago.

Lisa S. Blatt: Yeah.

Justice Sotomayor: But you ignore its language where they differentiate a patent case where the legal right is the right not to be infringed and where you feel the economic loss is different. And we said there that the Patent Act Official 1 was different from civil RICO because the question in civil RICO is where the plaintiff feels the injury, in other words, where he suffers the economic harm that the damages compensate. So why should we think -- in -- in -- in Sedima, we were very, very clear that RICO doesn't rely on state law -- state tort law concepts. We said that explicitly. What we said was that RICO complicates injuries to have been caused by predicate acts. That's our --

Lisa S. Blatt: Yeah.

Justice Sotomayor: -- and we explicitly -- explicitly say: Not otherwise an injury cognizable under state tort law.

Lisa S. Blatt: But that's even better for me because our position is you shouldn't -- you can't get recovery that's -- that's caused by personal injury, which I think this case is. But, on RJR Nabisco -- sorry, the WesternGeco citing RJR Nabisco, I didn't --

Justice Sotomayor: But that goes back to what Justice Jackson and -- and what I tried earlier and Justice Kagan point out: You're trying to say there's a difference between the Official 1 two. But we've made very clear in WesternGeco there isn't. Injury is where you feel the harm. Now the question is: What's the harm?

Lisa S. Blatt: Yegiazaryan said the opposite. Yeah.

Justice Sotomayor: And, as Justice Jackson said, the harm is not ingesting the drugs. That's the personal injury. The harm is from being fired. And whether there's a connection between the predicate acts and that harm --

Lisa S. Blatt: So --

Justice Sotomayor: -- is a question of proximate cause, not a question of personal injury.

Lisa S. Blatt: -- Yegiazaryan is the most recent case where you said the injury was -- the inability to collect the California judgment was a domestic injury. You did not say it was the injury where all the effects were felt, which were a million different places --

Justice Sotomayor: But that has nothing to do with the language of RICO -- of RICO, which says --

Lisa S. Blatt: It was the language of Official 1 RICO.

Justice Sotomayor: -- compensable injuries are the harms caused by predicate acts. And that's what we said in WesternGeco.

Lisa S. Blatt: Yeah. So --

Justice Sotomayor: It's where you feel the harm.

Lisa S. Blatt: -- Yegiazaryan quotes that exact same language, and I think it's -- it begs the question about what is the harm talking about. Is it the harm that's the legal invasion of the right, or is it the damages at the end of the day?

Justice Sotomayor: Thank you, counsel.

Chief Justice Roberts: Justice Kagan? Justice Gorsuch? Justice Kavanaugh? Justice Barrett? Justice Jackson?

Justice Jackson: Can I just ask you about a hypo? Because I'm still trying to understand your rule. You seem to be suggesting that the mere existence of physical harm renders any Official 1 business injury not compensable. Is that -- is that the -- do I have the sum total of your --

Lisa S. Blatt: No.

Justice Jackson: No? Okay.

Lisa S. Blatt: Because you just said --

Justice Jackson: So what is your rule?

Lisa S. Blatt: -- you just -- because you just said it's any personal injury renders the damages not recoverable. Obviously, if you have a business injury, a property injury, you can recover damages.

Justice Jackson: Even if you have a physical injury too?

Lisa S. Blatt: Absolutely, because that's the example of a robbery. If you are thrown down a flight of stairs and they take your wallet, you have two injuries. You fell down the stairs and you lost your wallet.

Justice Jackson: Okay.

Lisa S. Blatt: You've got -- so you have a property injury --

Justice Jackson: Okay.

Lisa S. Blatt: -- and a personal Official 1 injury --

Justice Jackson: And --

Lisa S. Blatt: -- two independent invasions.

Justice Jackson: -- and so, here, you say he took the drugs and that was an injury. And he says: I was also fired. Why isn't that two injuries too?

Lisa S. Blatt: Because every -- you would -- because -- because that conflates damages. Every personal injury, you could say I slip and fell --

Justice Jackson: But this is -- imagine that this is not damages in the following sense, all right? If we have a case in which he takes the drugs --

Lisa S. Blatt: Mm-hmm.

Justice Jackson: -- and, as a result of taking the drugs, he has to go to the hospital, and, as a result of being in the hospital, he can't work.

Lisa S. Blatt: Mm-hmm.

Justice Jackson: And then he's fired.

Lisa S. Blatt: Right.

Justice Jackson: I kind of understand Official 1 the argument you're making. But, in this situation, he takes the drugs and there is no harm --

Lisa S. Blatt: Okay.

Justice Jackson: -- to him from taking the drugs.

Lisa S. Blatt: Let me leave you with one more example. He goes to the hospital and he loses his sight and he can't drive anymore, so he gets fired. He still has a loss of employment. It is a damage.

Justice Jackson: I understand. But that's not this case. Nothing happened to him as a result of taking the drugs. Instead, what happened to him, I think -- and this is -- maybe I'm just not understanding.

Lisa S. Blatt: Well, he failed a drug test. It changed his -- well, allegedly, it had THC in it. I think it's the same thing as if you took something and had an allergic reaction. It's a physical, chemical, bodily invasion. He didn't want -- he didn't want THC and he took it. It's like taking cocaine. That's a -- to me, that's a physical injury -- Official

Justice Jackson: Thank you.

Lisa S. Blatt: -- whether or not you hit something.

Chief Justice Roberts: Thank you, counsel. Ms. Anand. ORAL ARGUMENT OF EASHA ANAND ON BEHALF OF THE RESPONDENT

Easha Anand: Mr. Chief Justice, and may it please the Court: I want to address two quick points. The first is about the "damages sustained" locution in Section 1964(c). That means compensatory damages. We know that from the rest of the U.S. Code, the syntax of the sentence, and the plain meaning of the word "damages." So rest of the U.S. Code, that locution, "damages sustained," appears some three dozen times in the U.S. Code. It always means compensatory damages. So we point you to the example of 18 U.S.C. 2255, where victims of crime choose between liquidated damages and damages sustained. You can't choose between liquidated damages and harm. Those have to be Official 1 two measures of compensation. Syntax of the rest of the sentence. The sentence says: "Recover the damages sustained." If it meant harm, you would expect it to say "recover for the damages sustained." You recover for harm. You don't recover the harm. But, if it means compensatory damages, that's a perfectly sensible sentence. And, finally, the plain meaning of "damages." Every dictionary will tell you damages is a measure of compensation, including the treatise that Petitioners cite at page 15 of their opening brief. So, absent that textual hook, the other problem with Petitioners' rule is they still have not told you how to distinguish the human trafficking case from this case. Here are some of the things I heard my friend say: Look at the Restatement. Well, we think the relevant Restatement principle is Section 525, the fraudulent misrepresentation tort. That's the only state law tort that survived to trial, right? It's not a product liability claim. It's an economic tort, fraudulent Official 1 misrepresentation. She said: Look to a legal right. Well, Sedima tells us that the legal right protected by RICO is the right not to be harmed by reason of the predicate acts. She said: Look at whether money was taken. This isn't a forfeiture or a unjust enrichment statute, right? It's not worded that way. She said: Look to directness. As Justice Kagan explained, that's a proximate cause problem. We recognize we have a heavy burden on remand, but that's not the argument before you. And she said: Look at what is trying to be redressed. Here, we're trying to redress the loss of income from being fired. I welcome the Court's questions.

Justice Thomas: Is the loss of income from being fired an injury in business?

Easha Anand: Yes, Your Honor. And I believe my friend on the other side conceded that. She said inability to carry on one's Official 1 livelihood is an injury to business.

Justice Thomas: And is -- what's the difference between injury and damages?

Easha Anand: So injury is the harm. Damages is how you compensate for that harm. And, again, I think that's a perfectly sensible reading of the statute.

Justice Thomas: So, if the harm is a loss of income, aren't you collapsing or conflating the two?

Easha Anand: So it's true that we use the term "lost wages" as shorthand for both. But, in one case, you are losing your source of income. Lost wages is the measure of compensation you need to make yourself whole. And, again, that "damages" definition, damages is compensation, that's the definition that every legal dictionary or treatise articulates.

Justice Thomas: Okay. So just walk me through factually what is the injury here.

Easha Anand: So the injury here is we were fired. That's the injury to our business. Now, as a measure of compensation for that, the damages we claim are an amount equal Official 1 to the salary we would have made and the other economic benefits we would have gotten had we remained employed.

Justice Thomas: But Medical Marijuana did not fire you.

Easha Anand: So, again, Your Honor, we accept that on remand we will have to meet the kind of heavy factual burden of showing proximate cause, but that's the home for the problem Your Honor is articulating: how direct is the link between the predicate acts and what happened here. And, in this case, you know, our argument is we acted in reasonable reliance on Medical Marijuana's misrepresentations -- that's a classic, right, Restatement 525, the pecuniary loss occasioned as a result of relying on a fraudulent misrepresentation, is usually actionable. We think we can prove proximate cause, but, again, that's a question for remand, not for this Court.

Chief Justice Roberts: Counsel, I understood the business-or-property limitation as having been intended to be a significant Official 1 limitation on the reach of RICO. Your friend said that your position would make every slip and fall a RICO violation. Why isn't that the case?

Easha Anand: So two reasons, Your Honor. The first is sort of empirical. We can look at, for instance, the evidence from the Ninth Circuit, which has had this rule for 20 years, and, as we explain in our -- in our brief, you actually see fewer civil RICO complaints than you'd expect. And that's because the "injured in his business or property" requirement is still doing something really important, which is fencing out any claim that the harm I suffered is pain and suffering or emotional distress. Those are the sort of lion's share of recoveries in most of these tort cases, right? This is the reason that plaintiffs' lawyers bring these cases, are for those massive recoveries. The second -- sorry. Does that --

Chief Justice Roberts: No, no, go -- go ahead.

Easha Anand: The sort of second point Official 1 I'll -- I'll make on that front is, you know, RICO has a number of guardrails. In your average slip-and-fall case, you're not going to be able to prove a predicate act, let alone a pattern of predicate acts, let alone a pattern carried on through a racketeering enterprise.

Chief Justice Roberts: Well, but, I mean, those guardrails are addressing different things. I mean, the business-or-property requirement is pretty central to the heart of RICO and what separates it from all these other cases. So I'm not sure it's very responsive to say, oh, don't worry about that basic, fundamental question because there are all these other more subsidiary ones that are going to take care of the problem.

Easha Anand: So I think that's -- I think that's right, that it's still -- it's doing meaningful work because, again, it fences out the sort of pain and suffering, emotional distress, the kind of lion's share of the recoveries. You know, as Justice Gorsuch noted and as lower courts have kind of grappled with, it Official 1 turns out that Congress maybe wasn't doing quite as much work as it wanted to with this guardrail. We know that from the antitrust context, where it's virtually always satisfied. But, as this Court has said time and --

Chief Justice Roberts: You -- by "this guardrail," you mean the business-or-property restriction?

Easha Anand: Yes. As Justice Gorsuch noted, in the antitrust context, it's virtually always satisfied. And what this Court has said time and again, right, that's Sedima, that's Bridge, that's Turkette, Congress may have written the statute too broadly, but that's a problem for Congress to have its say.

Justice Kavanaugh: Do you agree that the statute excludes damages for personal injuries?

Easha Anand: So, yes, I agree that if the injury you suffered is an injury to your body, you can't claim damages for that.

Justice Kavanaugh: And I think what the other side is saying, that the damages for personal injuries are usually including lost wages and medical expenses and that what you're Official 1 doing, even though you just admitted that the statute excludes damages for personal injuries, is taking lost wages and medical expenses and saying, oh, well, we can get around that limitation that the Chief Justice referred to by characterizing the lost wages or medical expenses as separate injuries to your business or property. That's the concern. I'm curious, your response.

Easha Anand: So I do think lost wages are an injury to business. And my friend on the other side said --

Justice Kavanaugh: But they're also damages for the personal injury --

Easha Anand: So yes --

Justice Kavanaugh: -- in some of these cases.

Easha Anand: So --

Justice Kavanaugh: And the question is whether -- I think the question and the problem here that we have to figure out is, when you characterize them, if they are damages from personal injury, can you just recharacterize them as injury to business or property and get around, as the Chief Justice's point, the Official 1 limitation that Congress at least thought was important?

Easha Anand: So I think that -- when Congress wants to exclude something that is intertwined with a personal injury, it knows how to do so, right? It can exclude -- there's lots of statutes, we give examples in our brief, where it says you cannot recover damages on account of a personal injury. That is, if there's a personal injury intertwined with the business injury or in the chain of causation leading up to the business injury, you are out of luck. Congress didn't do that here. Congress just said find an injury to business -- and we think being fired is a classic injury to business; you can no longer carry out your livelihood -- and that's all you need to get to --

Justice Kavanaugh: But that would mean, I think you're saying -- okay -- I think you're saying yes, the damages from personal injuries can be characterized as injuries to business or property. Therefore, you can just bring them under RICO. That would mean that Official 1 every state tort personal injury suit in which you're seeking lost wages or medical expenses can be now brought on -- under RICO and seek treble damages. And I would think the federalism canon, among several others, would kick in there and say, well, that would be a dramatic, really radical shift in how tort suits are -- are brought throughout the United States, and we would expect a clearer indication from Congress.

Easha Anand: Sure, Your Honor. So two responses on that front. The first is I think it's a mistake to think that most state garden-variety torts can form the basis of a RICO claim. There's a reason that why most product liability cases are brought in strict liability or negligence. There's a reason why the pattern --

Justice Kavanaugh: There are going to be a lot of false advertising kind of cases, inadequate warning cases that can easily be made into a RICO predicate than can, under your theory, be brought in federal court under RICO for treble damages and then -- you know, you've seen it in the amicus briefs, I'm just raising Official 1 what's there -- class actions and MDLs, where you have the treble damages. And that's a dramatic -- I'm not saying it's right or wrong, but I think it's a dramatic shift -- and the Ninth Circuit doesn't have exactly the rule you're asking for, so I don't think the Ninth Circuit's actually a good answer to the Chief Justice -- a dramatic shift in how tort suits are prosecuted, which may be good, may not be good. I'm not sure Congress really put that into this statute.

Easha Anand: Sure. So just on the federalism canon point, I'll note that if Your Honor is right that every state false advertising case actually can be actionable as intentional fraud committed through a racketeering enterprise, that means that under criminal RICO -- remember, does not have an injured in his business or property requirement -- those are prosecutable with a 20-year sentence. And so, if Congress did not have any federalism concerns with subjecting the garden-variety state tortfeasor to criminal -- federal criminal liability, I think it's hard to say the federalism canon kicks in when they're Official 1 subjected to civil liability.

Justice Kavanaugh: Well, they -- they didn't -- I -- I think the lack of the language in the criminal RICO provision shows that they were more concerned about federalizing the civil RICO side because, there, they did have the limitation, injured in your business or property, not injured in your person.

Easha Anand: So maybe two -- two more responses let me try to -- to Your Honor's hypothetical. The first is the word "injured," if it doesn't mean harm, my friend on the other side haven't -- hasn't told you what else it might mean. And --

Justice Kavanaugh: Well, the Restatement -- I'm sorry to interrupt.

Easha Anand: Oh, please.

Justice Kavanaugh: But your -- your brief starts with injured equals harmed.

Easha Anand: Yeah.

Justice Kavanaugh: It's right on page 1, like, fifth line, and that's the linchpin of your argument, which I think, as a matter of ordinary meaning, yes, but, as a matter of tort Official 1 law, the Restatement makes very clear, like Restatement 7 says injury and harm contrasted.

Easha Anand: That's right.

Justice Kavanaugh: They're two -- they're two different concepts and have been for years and decades and centuries in tort law. Injury and harm are two very different concepts.

Easha Anand: So that's right, injury can mean invasion of a legal right, but, here, that's trivially true, right? That's the square holding of Sedima. In Sedima, someone tried to come to this Court and say, look, it can't just be an injury meaning you were harmed by the predicate acts. There's got to be some sort of racketeering injury. That's the legal right being invaded. And this Court said, "The compensable injury necessarily is the harm caused by the predicate acts." So we're happy with a definition that says invasion of a legal right, but Sedima tells you what that legal right is, and it is harm caused by the predicate acts. The right that RICO protects is the right not to be harmed by the predicate acts. And so I think whether you say injury Official 1 just means harm, period, or it means an invasion of a legal right, there's no way on the text of the statute to somehow distinguish between the human trafficking and kidnapping hypotheticals and I --

Justice Kavanaugh: Just to close it out, you're okay if we say injury is the invasion of legal right?

Easha Anand: We're -- we are completely okay with that so long as you accept that Sedima tells you what that legal right looks like.

Justice Gorsuch: Ms. Anand, just a couple quick questions. First, in your dialogue with Justice Kavanaugh, there was some discussion of lost wages and medical expenses. Do you think medical expenses are recoverable as well as lost wages under business and property?

Easha Anand: So I happen to think yes, and I think that follows from Rotella and Reiter. But we don't particularly have a dog in that fight because that's under the property branch and not the business branch. So I'm happy to explain why I think Official 1 the answer is yes. Reiter seems to say --

Justice Gorsuch: Briefly, but I -- I -- I -- it seems to me you're telling me we don't need to decide that question in this case, is your top-line answer.

Easha Anand: Top-line answer is you don't need to decide that question. The way you know that is the Second Circuit, Pet. App. 18a, Judge Moore's dissent in Jackson, all these jurists who have accepted our rule have reserved the question of medical expenses --

Justice Gorsuch: Okay.

Easha Anand: -- as just a separate question.

Justice Gorsuch: And would you -- would you encourage us to do so here?

Easha Anand: No, I would not encourage you do so.

Justice Gorsuch: You encourage us to decide it, of course. Okay. So, briefly, give me your best shot at it.

Easha Anand: So -- okay. So -- so, on the precedent piece, Reiter/Clayton Act context says economic expenditure equals injury.

Justice Gorsuch: Okay. Official

Easha Anand: And Rotella Petitioners seem to accept at Reply Brief page 8, right? This is the case doctors wrongly impose psychiatric confinement and then bill someone for it, and Petitioners seem to accept that that bill counts as a harm to property.

Justice Gorsuch: Okay. All right. And the second question: There was an extensive dialogue about the car wash hypothetical and the kidnapping hypothetical, and if I understood Ms. Blatt, her argument -- it goes something like this: that there are two injuries, however characterized, whether as a harm or invasion of a legal right. One is -- you -- the assault or the kidnapping. The other is the act of extortion. And only the latter is recoverable, and it isn't a causation question so much as the nature of the injury in those two cases. Your best response?

Easha Anand: I think, under that framework, we also have two injuries, right? There's the bodily invasion, the sort of undetected consumption of THC --

Justice Gorsuch: No, no, the --

Easha Anand: -- and then the firing. Official

Justice Gorsuch: Deal -- I understand that, but deal with the hypotheticals if you will.

Easha Anand: So I --

Justice Gorsuch: You both -- you both go back and forth forever on these hypotheticals, and they're very interesting ones, so --

Easha Anand: Sure. So I -- I agree the car wash owner gets to recover, and I would say that is because the only thing you're looking at in the "injured in his business or property" requirement is, was the person harmed in his business? And the answer is yes. Now there are other parts of the statute that take care of how direct is the connection between the predicate offense and the injury to business. That's the "by reason of" language. That's a proximate cause test.

Justice Gorsuch: So the assault, if I understand it -- your answer if I -- see if this is right. I just want to understand it.

Easha Anand: Sure.

Justice Gorsuch: That the assault in -- in the car wash hypothetical and the Official 1 kid -- act of kidnapping in the kidnapping hypothetical may or may not be recoverable depending upon whether they're proximately related to the extortion acts in both cases?

Easha Anand: I think that's right. So the -- the only part that's recoverable is the money or business part. And the only --

Justice Gorsuch: The extortion.

Easha Anand: Right.

Justice Gorsuch: The extortion part that I paid money --

Easha Anand: Or -- or the ransom in the kidnapping hypothetical.

Justice Gorsuch: And the ransom. Right.

Easha Anand: And the only question is, are those proximately caused by the RICO predicate of the kidnapping or the extortion?

Justice Gorsuch: Thank you.

Easha Anand: And, you know, I -- I think, in those cases, right, the causal connection may be tighter, but, again, right, that's, again, classic proximate cause. Congress connected predicate act with injury to business and property using the phrase "by Official 1 reason of."

Justice Gorsuch: Got it.

Easha Anand: It anticipated some link to the cause.

Justice Kavanaugh: Can I ask one --

Justice Alito: If we --

Justice Barrett: Ms. Anand --

Chief Justice Roberts: Justice Alito?

Justice Alito: If we agree with your reasoning but reserve the question of the coverage of medical expenses, would there at -- in a later case, be a principled basis for drawing that distinction, or would we be effectively deciding that by agreeing with your reasoning?

Easha Anand: So, again, I think the answer is that those count, but I can tell you what lower courts have sort of said to distinguish those. There's been kind of two explanations. One is that Reiter's "all money counts as property" definition doesn't map on cleanly to civil RICO. And the other is that there's sort of a common law principle that mitigation measures don't -- count. And so, if you're Official 1 trying to mitigate your pain and suffering through medical expenses, that wouldn't count. Now, again, I'm not -- I -- we have no dog in that fight. I don't know whether those are right or wrong. And, again, I think Rotella kind of already crosses that bridge, but I think you can reserve the question here.

Justice Alito: One other question. There's been talk about proximate cause. I assume you believe on remand you can show that the injury here, the lost wages, were proximately caused. Could you explain why?

Easha Anand: Sure, Your Honor. So I think our -- the -- the two best points for us. The first is how the Restatement provision talks about fraudulent misrepresentation, and it says: Any pecuniary loss occasioned by reasonable reliance on the misrepresentation is usually recoverable. And so we think, here, that's exactly what happened. In reasonable reliance on Petitioners' misrepresentation, we took this drug. The foreseeable consequence is that we got fired. The second is a sort of factual point. Official 1 Remember, it's not just about general misrepresentations on YouTube and on the website. Ms. Harp-Horn called Customer Service, says: I'm a trucker. Can you promise me this doesn't have THC? And they say: Yes. Now, again, we know we're going to have a heavy burden on remand. This Court's cases have said that proximate cause is not just a common law concept, but you layer on top of that specific civil RICO directness requirements.

Justice Alito: Is this a jury question?

Easha Anand: The question of proximate cause? We think there are factual issues embedded in the proximate cause question.

Justice Alito: What percentage of --

Easha Anand: But, again -- apologies.

Justice Alito: What percentage of RICO cases go to trial?

Easha Anand: I don't know the answer to that off the top of my head, Justice Alito. I -- I will say that on this point, Petitioners' proximate cause arguments at summary judgment related primarily to Official 1 Ms. Harp-Horn and not to Mr. Horn. So, in other words, had they made the argument that Justice Kagan articulated, we don't know how the district court would have ruled. They did not make that argument.

Justice Alito: Thank you.

Justice Barrett: Ms. Anand, it seems to me -- and -- and, you know, I just would like to get your take on this -- that Medical Marijuana has litigated this case differently than it was framed below and differently than the circuits that are on its side of the split in this definition of "injury." You know, the Second Circuit said: Well, if personal injury is the derivative of the property damage, it doesn't count. As you said and as Justice Kagan said when she was going back and forth with Ms. Blatt, proximate cause seems a natural home for this. I mean, what do you think? I mean, can you point to developed ideas in the courts of appeals about how to define this injury? This idea of looking to a federal definition of in it, looking to Restatements, I mean, in your Official 1 view, are there circuits that are actually doing that?

Easha Anand: So I don't think so, Your Honor, and I think you can see that in the question presented, which asks: When economic harm results from a personal injury, is it actionable? Right? So the -- the question presented seems to contemplate this sort of chain-of-causation test, which, as we're sort of talking about, I think proximate cause and not some sort of per se rule about what the links are should count. I don't see that there's a body of case law doing something different in the -- in the -- in the lower courts.

Justice Barrett: So, in your view, Medical Marijuana's theory of the case is kind of novel?

Easha Anand: I think Medical Marijuana's theory of the case is novel, although I guess I -- I would say again I'm not sure I understand it. That is, I'm not sure I understand where they're asking you to look to find the legal right. Official 1 It's not civil RICO because Sedima tells us we can't do that. I don't think it's state tort law because it would be a little bit strange to have a list of predicates that includes trafficking in nuclear weapons and counterfeit phonograph records and say, look at the Restatement. And if you look at the Restatement in this case, the only state tort law claim that's still live in our case, fraudulent misrepresentation, looks economic and not personal. So I'm not positive what their test is, but I agree that it is not something that we've seen in the lower courts.

Justice Barrett: I share your confusion.

Justice Jackson: Ms. Anand, did your client suffer a personal injury that caused his firing and lost wages?

Easha Anand: So we think that he did not suffer any harm to his person. And we are not here challenging the district court's ruling that we cannot even bring a products liability claim because we did not suffer harm. Official 1 Does that answer your question? So, in other words --

Justice Jackson: Yeah, I mean, I think so. I guess I'm -- I'm still struggling with the question presented in this case --

Easha Anand: Yeah.

Justice Jackson: -- which assumes that sort of connection, that there's a personal injury from which economic damages result. And I don't see a personal injury, and maybe I'm just looking it in a peculiar way.

Easha Anand: Well, so we -- we vociferously argued at the brief-in-opposition stage that this is an improper vehicle to grant cert because we did not think there was a personal injury here. Or, at the very least, the personal injury here is so strange, right, the personal injury that only gets discovered after the economic injury, that it would be a strange case to connect those overall.

Justice Jackson: And, in fact, below, they argued there was no personal injury --

Easha Anand: That's right.

Justice Jackson: -- in seeking to dismiss all of the personal injury claims, Official 1 correct?

Easha Anand: That's exactly right. And none of those claims are proceeding to trial. So they successfully argued for dismissal of those claims.

Justice Gorsuch: Well, why wouldn't there be a -- a personal injury, though? Just -- you -- there's a failure to warn that this product contains ingredients that your -- your -- your client didn't know about and should have known about and had a right to know about. I would have thought that that would have been kind of a classic personal injury.

Easha Anand: So two responses, Your Honor. The first is --

Justice Gorsuch: I mean, perhaps -- perhaps that's what you argued below. I don't know.

Easha Anand: That is what -- so I was going to say the strange thing about how this case comes to you, right, is --

Justice Gorsuch: No, I understand. But this is -- this -- that was your theory below? Official

Easha Anand: That -- that was our theory below --

Justice Gorsuch: Yeah.

Easha Anand: -- that we should be able to bring a state law products liability claim. Opposing counsel said: No, you can't. District court sided with them.

Justice Gorsuch: Got it. Got it. Thank you.

Easha Anand: It's what the -- the only other thing I'll say is, kind of going back to a hypothetical earlier, we just don't think that ingestion is particularly critical to our case. In other words, we would bring exactly the same case, we would allege exactly the same predicate acts, the same measure of compensation, the same sort of theory of harm, if the -- if Medical Marijuana's product had been found in a locker and we'd been fired as a result.

Chief Justice Roberts: Thank you, counsel. A big part of your answer in your dialogue with Justice Scalia to why this -- why we shouldn't worry about the expansion of RICO that your -- your friend suggests might follow Official 1 is that you have to show proximate cause. And I -- I don't quite remember your formulation. I'm sure it was carefully guarded. But you -- you -- you suggested that that was going to be hard to do, right? And -- and -- tell me again why that is.

Easha Anand: So -- so I said we would have a heavy factual burden to carry on remand.

Chief Justice Roberts: That sounds hard.

Easha Anand: But I think that if we can prove that, in fact, you know, there was reasonable reliance on this misrepresentation and, more specifically, that Ms. Harp-Horn called Customer Service, said, you know, I'm a trucker, promise me this doesn't have zero percent THC, I think that satisfies proximate cause even under this Court's more restrictive test. But we accept we're going to have to prove those things up.

Chief Justice Roberts: Well, what's so hard about that? In other words, if you're concerned about the reach of your argument and your answer is, don't worry, we have to show Official 1 proximate cause, that seems like a pretty normal proximate cause argument.

Easha Anand: So -- so apologies. My answer isn't just proximate cause. It's also you have to show RICO predicates, right? Most products liability are --

Chief Justice Roberts: Yeah, fraud, mail fraud.

Easha Anand: -- strict liability, right?

Chief Justice Roberts: Right.

Easha Anand: But, again, that's intentional. And there's a reason why most people bring products liability claims under strict liability or negligence. You're also going to have to prove a pattern, right, continuity and relatedness. You have to prove -- the enterprise requirement. And I think, most importantly, again, the mine-run of cases, the big chunk of recovery is pain and suffering or economic distress, and you cannot get those in -- under civil RICO, right? Those are not injuries to business or property. And I think that that's -- Official

Chief Justice Roberts: Well, again, you're talking about these other guardrails, not to worry about the fact that you're diluting the business-or-property requirement.

Easha Anand: So I guess I disagree that we're diluting the business-or-property requirement. We think that lost employment is a classic business injury. Now the relationship between the lost employment and the predicate acts, you know, Congress put "by reason of" in there. It didn't put a more stringent test. It didn't say, you know, in the course of the predicate act you have to injure a business or property. It didn't -- you know, it didn't have a motive or a targeting requirement. And we think that the plain import of that, as this Court has held in Holmes and from there on, is, if you have a predicate act, you have a loss of livelihood, and the -- the work to do is to connect those with the proximate cause requirement.

Chief Justice Roberts: Thank you. Justice Thomas? Justice Alito? Official

Justice Alito: Well, just out of curiosity, why do you think you're going to face a -- a heavy burden on remand to show foreseeability? Wouldn't you argue that a company that advertises its product as being completely free of THC, not just that it has only such an infinitesimal amount that it's not going to get people high, but it is completely free of THC, is appealing to a category of potential customers who, for some reason, want to make sure that they don't ingest even a tiny, tiny amount of -- of THC? And when someone who purchases the product then suffers the consequences of having a very small amount of THC in that person's system, that is an entirely foreseeable result?

Easha Anand: So I agree, Justice Alito.

Justice Alito: Yeah.

Easha Anand: I was just responding to Justice Kagan's point that, in many cases, the intervening act of a third party does cut off the chain of custody --

Justice Alito: Yeah, I know.

Easha Anand: -- but for exactly the reason -- Official

Justice Alito: You're -- you're trying to tell us that the proximate -- among other things, you have other arguments, but the proximate cause requirement is going to do some of the work that some of us might fear will be needed if we agree with your interpretation of "injury to business or property." I get it. But I'm not sure why they're -- why your case is a -- is a good example of that.

Easha Anand: Sure. I think that's right. I was responding only to Justice Kagan's concern about the third-party actor, but, you know, we agree, we think we're going to meet the proximate cause test. I -- I just want to say so my bottom-line position here is defendants have come to this Court for decades and said the sky is going to fall if you interpret RICO the way its text literally says it should be interpreted. The sky hasn't fallen. This Court has, time after time, including unanimously in Bridge, said, you know, Congress probably wrote a statute that's a little too broad in some ways, but here we are. And it should stay the course here. Official 1 That's my fundamental position.

Justice Alito: Well, I think you're -- are you overstating your argument? If we look back at everything that the Court has done in civil RICO cases, I -- I -- I certainly don't think the Court has consistently applied the -- the liberal construction policy or just relied on the plain language of the statute. RICO is a -- RICO is a tough thing to deal with.

Easha Anand: I think that's right, but I think that's because of things in the statute, like the enterprise requirement, right? It's not just someone commits a predicate act; they have to use an enterprise to do it or fund an enterprise through doing so. It's because the predicate acts often require sort of higher degrees of proof. There's lots of reasons in the text why RICO --

Justice Alito: All right.

Easha Anand: -- is challenging.

Justice Alito: Thank you.

Chief Justice Roberts: Justice Sotomayor? Justice Kagan? Official 1 Justice Kavanaugh?

Justice Kavanaugh: A couple questions. The -- the larger issue afoot from the amicus briefs, of course, is the class action MDL, that state tort suits are going to be converted into civil RICO because you can get treble damages, and this is going to be a bit of a change. On that, one thing you've stressed is proximate cause. When -- of course, in those types of suits -- and you can respond whether you think that's correct or not, that factual prediction. But, in those kinds of suits, of course, getting past the motion to dismiss, getting past summary judgment is the key. When would proximate cause be resolved?

Easha Anand: So I think some of those can be resolved early on, right? In most cases, it's not going to be the case that firing is the obvious consequence of whatever mislabeling happened, right? And so I think fairly early on --

Justice Kavanaugh: But you're saying in this case --

Easha Anand: Well, because of what Official 1 Justice Alito explained, right? The only reason to market this as having zero percent THC, right --

Justice Kavanaugh: Mm-hmm.

Easha Anand: -- there are a couple reasons you might market it. You can say no psychoactive effect for the person who's worried about that, but the emphasis on zero percent THC, that's for someone who's either worried about their employer or about federal law. Like, the particular misrepresentation here is intimately tethered to the business harm that occurred, right? And that won't be the case in every kind of, you know, average -- or product mislabeling.

Justice Kavanaugh: What about the factual prediction? Do you want to say anything about that? Because the amicus briefs really are quite aggressive on that. And you could say yes, but that's good, or you can say no, that's not going to happen. And, if it's the latter, I'd like to hear why.

Easha Anand: Right. So I think we have two data points for why this is unlikely to Official 1 happen. The first is sort of the Ninth Circuit, as I explained. The second is, right, there are lots of products liability cases -- think the washing machine that floods your home, right -- where there's no personal injury anywhere in the ambit, right? It's all property damage. You see those cases. You see lots of those cases in state court. You don't see them being brought as civil RICO. That's not because of Petitioners' rule. Petitioners' rule has nothing to do with the oven that burns the house or the washing machine that floods the basement. That's all the other aspects of RICO are keeping that case out. So I think, you know, those are the two data points I can give you. You know, the -- and just the other thing I would say is I do think that the other guardrails do some work in fencing out those cases. I think that's why you don't see those cases being brought. And, again, as a kind of incentive matter, ruling out all pain and suffering and emotional distress means it isn't proper.

Justice Kavanaugh: Well, you've said that umpteen times, which I -- and I understand Official 1 why you've said it.

Easha Anand: Yes.

Justice Kavanaugh: But lost wages and medical expenses are a huge part of personal injury tort suits, the damages.

Easha Anand: I think we -- I think that's right. My friend on the other side and I disagree on exactly what -- what fraction, but, you know, the Chamber of Commerce study that we cite in our brief says the lion's share of the recovery --

Justice Kavanaugh: Mm-hmm.

Easha Anand: -- are these sort of non-pecuniary intangible harms. And I think that's correct, right? Medical expenses, you may see insurance companies bringing these suits, although I think, under Petitioners' theory, insurance companies can still sue for medical expenses, is I think what they told you in the brief. But, in the sort of average case, the big incentives, I think that's why you're not seeing -- I don't know the reason you're not seeing these cases in the Ninth Circuit or in the products liability that don't result in bodily injury contexts, but Official 1 you're not. And I think that should give you some solace. My fallback position is just Congress wrote this statute to just ask about an injury to business or property. That may have been profoundly unwise. It may have been profoundly unwise to use mail and wire fraud as predicate offenses.

Justice Kavanaugh: And the federalism canon doesn't kick in at all you said. I just want to make I had that answer nailed down.

Easha Anand: I don't think the federalism canon kicks in because Petitioners have not been able to give you any definition that's tenable on the plain text of the statute, which is where the canon would kick in as a tie break, if at all.

Justice Kavanaugh: Thank you.

Chief Justice Roberts: Justice Barrett?

Justice Barrett: No.

Chief Justice Roberts: Justice Jackson?

Justice Jackson: And I just wanted to let you finish the discussion of whether or not Official 1 this statute is overly broad. I mean, I -- it gives me some solace that we have actual text from Congress directing courts to liberally construe the provisions of RICO to effectuate its purposes. So it seems as though Congress contemplated that this was going to have a pretty broad sweep and that we should allow it to do that.

Easha Anand: I think that's right. It's very rare Congress writes a liberal construction canon into the text of the statute. And I think that the ill that Congress was targeting is one that's sort of hard to pin down and define, right? We've talked a little bit about the wire and mail fraud predicates, which I think are -- I think sort of what is causing this Court some heartburn is the fact that mail and wire fraud are among the predicate offenses, and those seem to map onto a lot of state tort law claims but that the --

Justice Jackson: And it seems as though some of the concern is, you know, are we expanding beyond what the text says here and would it be a sea change that actually brings in Official 1 a lot of things that weren't intended to be covered, or is Ms. Blatt asking us to narrow down what the text says and make business and -- or property, you know, narrower? I kind of see it as the latter, but can you just speak to that as the final word here?

Easha Anand: So I agree it would be the latter. "Injury to business or property" means injury to business or property, whether that's harm or legal harm. It just means that you are harmed in your ability to earn a livelihood. Now, again, I think that Congress used that language and used the liberal construction provision and put things like mail and wire fraud in the predicate -- in the list of predicate offenses because they wanted the statute to sweep quite broadly. And I think that this Court should just enforce the text as it was written.

Justice Jackson: Thank you.

Chief Justice Roberts: Thank you, counsel. Rebuttal, Ms. Blatt? Official 1 REBUTTAL ARGUMENT OF LISA S. BLATT ON BEHALF OF THE PETITIONERS

Lisa S. Blatt: Thank you, and may it please the Court: Let's just start with the text. I don't think there's a response to the fact that the other side is reading this as any person injured in his person, business, or property can recover three times the economic damages. So they're adding the word "injury," a personal injury, to the injury requirement, and they're adding the economic restriction to the damages. It completely flips this statute on its head. And this is the way the Clayton Act has been read since eternity, that personal injuries are not recoverable. On the consequences, we cite, I think on page 27, this case, Hopp. It involves a boxer. And that's a case where the district court just ignored the Ninth Circuit, and that's why there's not consequences, is because district courts aren't crazy, and when they see a personal injury action, they're just not citing Diaz and they're preventing personal injury cases from going forward. Official 1 The Ninth Circuit also has some language that says lost wages may not be recoverable. So it's a little bit quirky. In terms of the lion's share, that mega-study is just dealing with gargantuan mega-hits. It doesn't matter if pain and suffering is 60 percent or 20 percent; 99.99999 percent of all personal injury cases come in under their rule. All they're doing is excluding a narrow type of damages. So any personal injury comes in as long as there's an economic damage. In terms of proximate cause, proximate cause, we think there is no proximate cause, but that's not the problem. You have a case before you that will be a legal rule where there is proximate cause in all personal injury actions resulting in medical expenses and lost wages. There's direct cause. You don't even need proximate cause. It's but proximate, direct, what have you. Yet only our rule will exclude it. There will be proximate cause when you have a slip and fall and lose your job, either lose wages or you can't work because you lose your ability to use your hands or eyesight. Official 1 In terms of the other thing about, oh, RICO's a big deal, on 107, 108, and 76, 77a, two sales were the RICO predicate act and three ads. That's what it took to state a mail and wire fraud: two sales in -- 10-year period. That is not that complicated. Justice Barrett, in terms of the shifting position, I do think we came up with WesternGeco at the merits stage, but both the Sixth, Seventh, and the Eleventh Circuit do talk about damages in recovery for personal injury. So I think we refined it here, but we certainly got it from those cases. The district court itself held this is a personal injury action and there's lost wages damages. The other thing I will say is we took your language from that -- Chrysler Motor case that said damages resulting from personal injury, so we stole it straight from your language because we figured we can't go wrong if we just stick with the Clayton Act rule. In terms of medical expenses, I -- I'm sorry, I don't see how you can carve out medical expenses. That's the biggest loss of property to say that what the -- the court below did, it Official 1 just said, well, personal injury damages would be excluded, but lost wages will be recoverable because that's an injury to business. Well, all lost wages could be categorized as injury to business when they're just damages. To be sure, you can have a lost property damage or a lost property injury. You can have damages or injury to both. It just depends on what the nature of the cause of action is. And I think that's it. Thank you.

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:14 a.m., the case was submitted.)