Extraterritorial Application of State RICO Statutes
November 13, 2025
Over the past decade, the U.S. Supreme Court has twice addressed the extraterritorial application of the federal RICO statute. In RJR Nabisco, Inc. v. European Community (2016), the Court held that RICO’s criminal provisions apply extraterritorially to the same extent as the predicate acts on which RICO charges are based, whereas RICO’s civil cause of action applies only when there is injury to business or property in the United States. In Yegiazaryan v. Smagin (2023), the Court further addressed civil RICO’s domestic injury requirement, adopting a “contextual approach” that looks not just at where the injury was felt but also at where the conduct causing the injury occurred.
More than 30 states have adopted state RICO laws. As I have explained before, the geographic scope of state statutes is a question of state law. Some states have their own presumptions against extraterritoriality (which are not necessarily identical to the federal presumption), while other states do not. As a result, the reach of a state RICO statute can be broader, narrower, or just different from its federal counterpart.
In Ferguson v. The Republic of Trinidad & Tobago, Florida’s Third District Court of Appeal addressed the extraterritorial application of Florida’s civil RICO statute. The decision mirrors the U.S. Supreme Court’s approach, holding that the state statute applied because domestic injury was established. But the court made two fundamental mistakes. First, it followed federal cases applying the federal presumption against extraterritoriality despite the fact that the Florida Supreme Court has declined to adopt a presumption against extraterritoriality. Second, it adopted a domestic injury requirement, like the one in the federal statute, despite the fact that the Florida statute omits the language on which the federal requirement is based. The state court reached the right conclusion in the end. But it should have been easier for the court to get there.
An Expensive Airport
In 1996, Trinidad and Tobago decided to build a new airport in Port of Spain. Steve Ferguson, a citizen of Trinidad and Tobago and then-chairman of the national gas company, became involved in awarding the contracts to build the airport. He arranged for the government to retain a Florida consultant who recommended inflated bids from companies that paid kickbacks to Ferguson.
In 2004, Trinidad and Tobago sued Ferguson and more than 40 other defendants under Florida’s RICO statute and for common law fraud. All but three of the defendants settled or were dismissed. After a month-long trial, a jury found these three liable, assessing damages of more than $32 million. After trebling this amount (as Florida’s RICO statute provides) and adding prejudgment interest, the trial court entered judgment against the defendants for more than $131 million.
The Majority
Writing for the appellate panel, Judge Fleur Lobree addressed only whether Trinidad and Tobago suffered a domestic injury, reasoning that Ferguson had not preserved any other issues for appeal. “Florida’s Civil RICO Act is patterned after its federal counterpart,” she explained, “so Florida courts look to federal cases for guidance.”
Federal civil RICO claims require a showing of “domestic injury,” and the U.S. Supreme Court uses a contextual approach that examines all the circumstances, so the Florida District Court of Appeals did the same. Much of the racketeering activity had occurred in Florida. After recounting the facts in some detail, Judge Lobree concluded “that a domestic injury occurred in Florida where, over multiple years, wrongful acts and plans were devised, initiated, and carried out through acts and communications initiated in and directed towards Florida.”
The Concurrence
Judge Thomas Logue wrote a long concurring opinion to address a broader set of questions. Noting that the extraterritorial application of Florida’s civil RICO statute was a question of “first impression,” he undertook a full analysis of the presumption against extraterritoriality.
Judge Logue began by noting that, “like Congress, Florida’s sovereign powers allow it to legislate extraterritorially, provided its action is not preempted by federal law and does not run afoul of federal Constitutional limitations.” But, he continued, Florida also has a presumption against extraterritoriality. Judge Logue applied RJR Nabisco’s “two-step framework” for the federal presumption against extraterritoriality to Florida’s civil RICO statute, concluding that it contains “no express indication that it is intended to apply extraterritorially” and, therefore, “that the Florida Civil RICO statute, like its federal counterpart, does not apply to claims that rest entirely on injury suffered abroad.”
From this point on, Judge Logue’s analysis was similar to Judge Lobree’s. He followed the U.S. Supreme Court’s contextual approach for determining domestic injury. He noted the defendants’ extensive conduct in Florida and that Trinidad and Tobago had paid for part of the project with a letter of credit from a Miami bank. “The letter of credit was an asset of Trinidad and Tobago located in Miami and depleted in part by the conspiracy,” he observed.
Does Florida Even Have a Presumption Against Extraterritoriality?
Five years ago, I published an article on presumptions against extraterritoriality in state law, and classified Florida as a state that had declined to adopt a presumption against extraterritoriality. In a 1967 case, Burns v. Rozen, a Florida district court of appeals had embraced a presumption against extraterritoriality. But in 1984, the Florida Supreme Court approvingly noted that the lower court had retreated from Burns in a case involving Florida’s fish trap statute and then went on to construe that statute without applying a presumption against extraterritoriality. In 2000, the Florida Supreme Court interpreted a different state statute to apply extraterritorially with no mention of a presumption.
Since I published the article in 2020, the Florida Supreme Court has once cited the U.S. Supreme Court’s decision in Morrison v. National Australia Bank (2010), parenthetically quoting its line that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none.” But that case did not involve the extraterritorial application of a state statute. Rather, the Florida Supreme Court held that Florida’s statute on executing judgments allows state courts to order defendants over whom they have personal jurisdiction to turnover assets located outside the United States.
In asserting that Florida has a presumption against extraterritoriality like the federal presumption, Judge Logue relied on Burns—the case noted above that the Florida Supreme Court seems to have disapproved—as well as a 2014 district court of appeals case following federal decisions that had declined to apply U.S. labor laws to foreign-flagged cruise ships. Neither of these cases applied the two-step framework that the U.S. Supreme Court currently uses (which originated with Morrison in 2010). And, of course, neither is a decision of the Florida Supreme Court.
It is, perhaps, presumptuous of me to disagree with a state court judge on questions of state law (though I have done so before). But I don’t think Judge Logue’s concurring opinion establishes that Florida has a presumption against extraterritorial application of state law. Perhaps this is one reason why the two other members of the panel were reluctant to address the extraterritorial application of Florida’s civil RICO statute more generally.
Mirroring Federal RICO?
Recall that that the majority’s reasoning was more straightforward: Florida’s RICO statute is patterned after the federal RICO statute and so should be interpreted the same way. This is indeed what the Florida Supreme Court has done in criminal RICO cases like Gross v. State (2000). In Gross, the court noted “[t]he ‘enterprise’ and ‘pattern of racketeering activity’ elements of [Florida] RICO are almost identical to the Federal RICO provisions.”
The problem with applying this principle to Florida’s civil RICO statute is that its provisions are not “almost identical” to the federal provisions. The federal RICO statute’s civil cause of action, 18 U.S.C. § 1964(c), provides: “Any person injured in his business or property by reason of a violation of [RICO’s criminal provisions] may sue therefor in any appropriate United States district court and shall recover threefold the damages” (emphasis added). In RJR Nabisco, the Supreme Court relied on this language as the basis for its “domestic injury” requirement. “Section 1964(c) requires a civil RICO plaintiff to allege and prove a domestic injury to business or property and does not allow recovery for foreign injuries,” the Court wrote.
Florida’s civil cause of action for RICO violations, by contrast, omits the phrase “in his business or property” on which RJR Nabisco relied. Florida Statute § 772.104(1) provides: “Any person who proves by clear and convincing evidence that he or she has been injured by reason of any violation of the provisions of § 772.103 shall have a cause of action for threefold the actual damages sustained.” If Florida had a presumption against extraterritoriality, one might conclude that “injured” must mean “injured in the United States.” But, as explained above, the Florida Supreme Court has not adopted such a presumption.
Both the majority and the concurring opinion concluded that Trinidad and Tobago needed to establish “domestic injury” under Florida’s civil RICO statute because the U.S. Supreme Court has imposed such a requirement for civil RICO claims under the federal statute. But I find it hard to understand why this should be so, given the differences in the language of the statutes and the differences in approaches to statutory interpretation.
Conclusion
The Florida district court of appeal was certainly correct to affirm the judgment of liability. Ferguson and his co-defendants engaged in racketeering activity in Florida, and Trinidad and Tobago was injured as a result. That is all the text of Florida’s statute requires. It should have been unnecessary, therefore, to determine whether Trinidad and Tobago suffered injury in Florida.
In the United States, state law regulates many of the same things that federal law does. Racketeering activity is just one example. But state court judges need not automatically follow the decisions of the U.S. Supreme Court. State statutes are sometimes written differently than their federal counterparts, and state courts sometimes apply different rules of interpretation. Florida’s civil RICO statute looks like one instance where a little more judicial independence might have been appropriate.