Page:Abitron Austria GmbH v. Hetronic International, Inc..pdf/30

8 Court’s precedents command, the majority now requires a third step: an assessment of whether the “conduct relevant to the focus” occurred domestically, even when the focus of the statute is not conduct. Making matters even more confusing, the majority skips over the middle step of this new framework, concluding that it is unnecessary to discern the focus of the Lanham Act because “the conduct relevant to any potential focus” that “the parties have proffered” must be “use in commerce,” since that is conduct mentioned in the statute. Ibid. In other words, under the Court’s unprecedented three-step framework, no statute can reach relevant conduct abroad, no matter the true object of the statute’s solicitude.

The Court’s novel approach transforms the traditional inquiry at step two into a conduct-only test, in direct conflict with this Court’s jurisprudence. The Court has expressly recognized that a statute’s “focus” can be “conduct,” “parties,” or “interests” that Congress sought to protect or regulate. WesternGeco LLC, 585 U. S., at ___ (slip op., at 8) (internal quotation marks omitted); see also Morrison, 561 U. S., at 266 (“the focus of the Exchange Act is not upon the place where the deception originated”). After all, not every federal statute subject to an extraterritoriality analysis “directly regulate[s] conduct.” Kiobel, 569 U. S., at 116.

Because precedent does not support the Court’s recitation of the extraterritoriality framework, the majority retreats to a distorted reading of the Court’s past decisions. The majority relies on RJR Nabisco, see, but that case does not support the majority’s course. The Court in RJR Nabisco noted that the Racketeer Influenced and Corrupt Organizations Act’s civil suit provision requires an “injury