News & Decisions

In Keller v. Central Bank of Nigeria, 2002 U.S. App. LEXIS 660 (6th Cir. 2002), the United States Court of Appeals for the Sixth Circuit held, in vacating the decision of the District Court for the Northern District of Ohio, that a claim under the Racketeer Influenced and Corrupt Organizations Act of 1970 ("RICO") could not be maintained against a foreign sovereign. One of the elements that must be established under RICO is that the defendant engaged in "racketeering activity." The RICO statute defines "racketeering activity" as acts which are "chargeable," "indictable" or "punishable" under various state and federal statutes. 18 U.S.C. §1961(1). Thus, in the Sixth Circuit, we argued that because the Foreign Sovereign Immunities Act conferred immunity upon a foreign sovereign from criminal prosecution in the United States courts, a foreign sovereign could not be charged, indicted or punished with a crime. Therefore, we further argued, that a RICO claim could not be maintained against a foreign sovereign because the element of "racketeering activity" could not be proven. The Sixth Circuit adopted this position in ordering that the RICO claim be dismissed.

The decision of the Sixth Circuit in Keller is significant because it is the first decision by an appellate court to hold that foreign sovereigns are immune from civil RICO claims. The only other appellate court to address this issue, the Tenth Circuit in Southway v. Central Bank of Nigeria, 198 F.3d 1210 (10th Cir. 1999), reached the opposite conclusion. The Sixth Circuit expressly rejected the Southway decision in this regard.