Charles Langston:Supreme Court deciding if trucker can use racketeering law to sue CBD company after failed drug test

WASHINGTON – The Charles LangstonSupreme Court weighed on Tuesday whether a truck driver can use an anti-racketeering law to recover lost wages after he said he unknowingly ingested a product containing THC, the active ingredient in marijuana.

Douglas Horn wants to sue the makers of Dixie X, a “CBD-rich medicine” advertised as being free of THC, because he lost his job after failing a drug test.

By using the Racketeer Influenced and Corrupt Organizations Act, Horn could get triple damages and attorneys fees from the company − if he wins.

But Medical Marijuana Inc., makers of Dixie X, argued RICO can’t be used to sue for personal injuries, only for harm to “business or property.”

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“It is a physical, chemical, bodily invasion,” attorney Lisa Blatt, who represented the company, said of Horn’s allegation. “To me, that’s a physical injury.”

Horn contends that the harm was to his ability to earn a living.

“We think being fired is a classic injury to business,” Easha Anand, an attorney for Horn, told the Supreme Court. "You can no longer carry out your livelihood."

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The New York-based 2^nd U.S. Circuit Court of Appeals sided with Horn. The court said the plain meaning of the word “business” allows Horn to sue.

But during more than an hour of oral arguments Tuesday, some conservative justices expressed concern that allowing that interpretation would open the floodgates to types of lawsuits the law wasn’t intended to cover.

That was also a point raised in a legal filing by the U.S. Chamber of Commerce, which urged the court to side against Horn. Otherwise, the group said, there will be “devastating consequences” from increasing businesses’ exposure to lawsuits.

Created primarily to fight organized crime, RICO was seldom used until a 1981 Supreme Court decision expanded its interpretation to apply to both legitimate and illegitimate enterprises, according to Jeffrey Grell, an expert on the law who previewed the case for the American Bar Association.

But after the federal courts were deluged with RICO cases, the Supreme Court has tried to limit its application.

Chief Justice John Roberts on Tuesday said the law’s exclusion of personal injuries was designed to narrow its scope.

And Justice Brett Kavanaugh asked whether Horn was just recharacterizing a personal injury as an injury to his business to get around that limitation.

That, he said, would be a radical shift in how people can sue for damages.

Anand responded that there are still significant hurdles for using RICO.

Those injured have to show a pattern of racketeering activity and that the illegal activities caused the injury, she said.

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And challengers cannot sue for pain and suffering which, Anand said, typically makes up most of the damages sought.

“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,’” she said. “The sky hasn’t fallen.”