Problem 9 Kantu Electronics is a Hong Kong company that manufacturers computer chips. Its customers are primarily U.S. high tech companies. Those companies buy Kantu’s chips and integrate them into their systems. The process of integration takes place in the U.S. at the factories of Kantu’s customers. There are only 5 companies, including Kantu, that manufacture the specific chips that Kantu manufacturers. Therefore, there are 5 companies that make up the relevant product market for the production of these chips. They are all located in China, but they all compete in the U.S. market. Kantu’s main office and production facilities are in Shenzhen, China. It manufactures its chips there and transports them to the Port of Hong Kong. The products are then taken by a vessel of Kantu’s selection to the Port of Los Angeles. From there, the chips are taken by rail to Kantu, U.S. which is a wholly owned subsidiary of Kantu located in Memphis, Tennessee. From there the chips are taken by trucks to the customers’ locations where they are integrated into Kantu’s customers’ end products. Memphis is the site of Kantu, U.S. because it is in the heartland of the United States. Its overland trucking is some of the best in the nation because of the number of truck terminals that are primarily on the south and southwest sides of Memphis. If necessary, the chips are shipped by air via Federal Express which has its headquarters and primary air shipping operations in Memphis. In addition, because of the development of the tech industry in Memphis and the corporate headquarters that are located there, many of Kantu’s chips are integrated into final products by Kanti’s Memphis customers which fully integrated products are then sold to Memphis tech companies and corporate headquarters in the Memphis area. Because competition among chip manufacturers has become quite intense, Kantu had a meeting in Hong Kong with its competitors. At that meeting, all of the competitors agreed to price their chips at the same price and that they would, thereafter compete on other attributes of competition, such as speed of manufacturing, delivery times, and service of the warranties that they provide customers, and the response time for servicing any warranty complaints by customers. Assume that there are no antitrust, antitrust conspiracy, or price fixing laws in China.1 In the United States, the Sherman Act prohibits monopolization, attempts to monopolize, antitrust conspiracies, and anti-competitive price fixing, etc.2 The Department of Justice is considering filing in the Western District of Tennessee a RICO action against Kantu arising out of the price fixing and conspiracy to fix prices. The Western District of Tennessee is the jurisdiction that handles federal cases in the Memphis area. You are the primary research attorney for the U.S. Attorney in the Western District of Tennessee. U.S. Attorney General Jeff Sessions invites you to Washington to a meeting with the U.S. Attorney for the Western District to discuss this potential action. He asks you for the issues that you see with respect to this contemplated RICO action. What do you tell him? If, on the other hand, you were one of Kantu’s U.S. customers, would you be able to bring a civil RICO action against Kantu in the Western District? 1 Many of the Chinese major industries are what is known as SOEs (State Owned Enterprises) and, therefore, because of the government control of the companies, antitrust is not a problem. 2 15 U.S.C. §§ 1 et seq. Tuesday, 3 April: Continuing our journey through the world of Criminal Law as it affects business, we have discussed organizational criminal liability as a predicate for our further study of substantive crimes that are related to business activities. One of those crimes is the Racketeer Influenced and Corrupt Organizations Act (RICO).1 We will not only deal with the substantive and procedural aspects of that Act, but we will use our exploration of RICO to again address the extraterritorial application of U.S. civil and criminal statutes and personal jurisdiction. It should be kept in mind that RICO has both criminal and civil dimensions. We will, however, focus on the criminal dimensions of RICO. Required Readings: 1. Text: P. 703. 2. RJR Nabisco, Inc. v. European Community, 136 S.Ct. 2090 (2016). 3. Problem 9. Non-Required Readings: 1. Allstate Insurance Co., et al., v. Nazarov, et al., 2015 WL 5774459 (E. D. N.Y. Sept. 30, 2015) (civil RICO case predicated on an insurance fraud scheme). 2. Compare, Melanson v. U.S. Forensic, LLC, et al., 183 F.Supp.3d 376 (E.D.N.Y. 2016) (National Flood Insurance Program preempted RICO claims predicated on the claims handling process under a federal flood insurance policy). 3. Odom v. Microsoft Corp., 486 F.3d 541 (9th Cir.), cert. denied 126 S.Ct. 464 2007) (RICO enterprise need not have any particular organizational structure). 4. State v. LG Electronics, Inc., 186 Wash.2d 169 (2016), cert. denied 137 S.Ct. 648 (2017) (use of the term “purposeful contacts”). 5. Noll v. American Biltrite, Inc., 395 P.3d 1021 (Wash. 2017) (in an asbestosis case, the manufacturer did not purposely avail itself of the privilege of doing business in the State of Washington). 6. Petition for a Writ of Certiorari in Align Corporation, Ltd. v. Boustred, et al., 2017 WL 7208133 (Colo. Nov. 13, 2017) (as republished), 2018 WL 1168241 (Feb. 27, 2018) (use of the term fractured opinions relating to personal jurisdiction). 7. Dylan Bensinger, et al., Racketeer Influenced and Corrupt Organizations, 53 American Criminal Law Review 1673 (2016). 8. Note, Daniel K. Peacock, RICO’s Extraterritorial Application: From Morrison to RJR Nabisco, 65 Drake Law Review 555 (2017). 9. Leading Cases, Racketeer Influenced and Corrupt Organizations Act – Extraterritoriality – RJR Nabisco, Inc. v. European Community, 130 Harvard Law Review 487 (2016). 1 18 U.S.C. §§ 1961-1968. 10. Allan Ides, Simona Grossi, The Purposeful Availment Trap, 7 Federal Courts Law Review 118 (2013). 11. Henry S. Noyes, The Persistent Problem of Purposeful Availment, 45 Connecticut Law Review 41 (2012).
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