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We’ve already written at some length about the appellate decision in Atchley v. AstraZeneca UK Ltd., 22 F.4th 204 (D.C. Cir. 2022), which we considered a wrong-headed application of the Anti-Terrorism Act of 1992 (“ATA”), 18 U.S.C. §2333 – seeking recovery, not from any terrorist or terrorist affiliate, but rather against major pharmaceutical companies.  We won’t go into the allegations again, but in one sentence, the claim is:  that the Iraqi government’s health department was overrun by terrorists, and because the terrorists allegedly made money demanding prescription drugs as bribes and reselling the drugs for a profit, the various pharmaceutical defendants were liable “sponsoring” terrorism and for “aiding and abetting” simply because they transacted with the health department of government of Iraq (a United States ally at the time).

Anyway, a couple of months ago the United States Supreme Court decided Twitter, Inc. v. Taamneh, 143 S. Ct. 1206 (2023) (“Taamneh”), and Gonzalez v. Google LLC, 143 S. Ct. 1191 (2023).  While these decisions didn’t turn into the expected §230 immunity showdown some had expected, see Gonzalez, 143 S. Ct. at 1192 (“plaintiffs’ complaint − independent of §230 − states little if any claim for relief”), Taamneh did address the concept of aiding and abetting in the ATA context.

As we discussed before, the District of Columbia Circuit systematically dumbed down the intent requirements for ATA aiding and abetting.  Here are a couple of quotes from its Atchley opinion:

If the defendant knowingly − and not innocently or inadvertently − gave assistance, directly or indirectly, and if that assistance was substantial, then the “knowing and substantial assistance” element of aiding and abetting is sufficiently established.  Defendants do not argue that their provision of cash and free goods was in any way accidental, so the assistance was given knowingly.

22 F.4th at 222 (citation omitted).

This factor favors aiding-and-abetting liability because defendants’ assistance was knowingly provided with a general awareness that it supported the terrorist acts of a notoriously violent terrorist organization that had overrun the Ministry of Health.

Id. at 223 (citation omitted).

That’s not anywhere near what the Supreme Court held was necessary in Taamneh.  Rather, aiding and abetting requires:

that the defendant consciously and culpably participated in a wrongful act so as to help “make it succeed. . . .  The phrase “aids and abets” in [ATA], as elsewhere, refers to a conscious, voluntary, and culpable participation in another’s wrongdoing.

143 S. Ct. at 1221 (citations and quotation marks omitted).  Further, ATA “aiding and abetting” must support a specific terrorist act , not a terrorist generally:

[A]iding and abetting is inherently a rule of secondary liability for specific wrongful acts. . . .  [T]he defendant must aid and abet a tortious act. . . .  Thus, it is not enough, as plaintiffs contend, that a defendant have given substantial assistance to a transcendent “enterprise” separate from and floating above all the actionable wrongs that constitute it.  Rather, a defendant must have aided and abetted (by knowingly providing substantial assistance) another person in the commission of the actionable wrong − here, an act of international terrorism.

Id. at 1223-24,

When we first read Taamneh, we immediately remembered the aforesaid Atchley decision and thought, “stick a fork in it, it’s done.”  Not surprisingly, so did the defendants in Atchley.  Late last month they filed this petition for certiorari with the Supreme Court.  Procedurally, that took us a bit by surprise, as we didn’t know that there was any appeal still pending – but there was.  According to the petition (at p.1), rehearing en banc was only denied in February 2023, more than a year after the panel decision was handed down, and in April the defendants received a Supreme Court extension of time to file until July 2, 2023.  So the petition is unquestionably timely.

From our perspective, it is also unquestionably meritorious in light of Taamneh.  Indeed, the primary relief that the defendants seek is what Supreme Court aficionados call a “GVR” – that certiorari be granted (the “G”) in Atchley, and that the District of Columbia Circuit’s decision be summarily vacated (“V”) and remanded (“R”).  Petition at 12-16.  Petitioners only request that kind of relief when they can point to a recent Supreme Court decision that is directly on point.  We share the petitioners’ view that Taamneh is such a case, and their description of this litigation is spot on:

The decision below greenlit a sprawling lawsuit that seeks to recast sales of life-saving medicine and medical equipment to the Iraqi government − sales the U.S. government encouraged − as aiding and abetting terrorism, and even terrorism itself. . . .  [R]espondents have not sued [the terrorists]; they instead sued petitioners, 21 of the world’s largest pharmaceutical and medical-device companies, under [ATA]. . . .  But as this Court recently confirmed in Twitter, Inc. v. Taamneh, 143 S. Ct. 1206 (2023), the ATA does not make global companies indemnitors for every attack whenever those companies have some alleged connection to the perpetrators.

Petition at 2-3.

We observed in our prior post how the District of Columbia Circuit’s decision “systematically put its thumb on the scale, emphasizing foreseeability factors and discounting those that involved actual intent to further terrorism.”  The Petition makes the same argument – that “the D.C. Circuit downplayed petitioners’ undisputed lack of intent to support terrorism,” the exact error that the Supreme Court corrected in TaamnehPetition at 4.

The petition presents four grounds for requesting GVR:

  • “The D.C. Circuit . . . erred by asking whether petitioners allegedly provided substantial assistance to [terrorists] generally, without focusing on aid to the specific attacks that injured respondents.
  • Taamneh cautioned against a “rigid[] focus[] on” the “facts” or “exact phraseology” of [a prior decision]. . . .  Here too, the D.C. Circuit ticked through [that decision’s] six factors without asking that big-picture question.. . . .  The decision below thus sidestepped the fundamental inquiry.
  • “[T]he statute directs “a single inquiry” considering knowledge and substantiality “in tandem” “to capture conscious and culpable conduct”. . . .  The D.C. Circuit [likewise, treat[ed] knowledge and substantiality as separate, distinct inquiries rather than asking whether those elements, in tandem, showed the requisite culpability.
  • Taamneh clarified the ATA’s knowledge requirement . . . [as] asking if the defendant “calculated and intended to produce” the tort or acted “with the intent of facilitating” its commission. . . .  In analyzing petitioners’ “[s]tate of mind” for purposes of substantial assistance, [Atchley] the court asked only whether petitioners allegedly acted “with a general awareness” of supporting terrorist acts.”

Petition at 13-16 (citations and quotation marks omitted).

The petition raises some other issues in the alternative:  (1) reliance on an indirect and attenuated chain of causation instead of the ATA’s express “by reason of” requirement; and (2) ignoring the statutory limitation to terrorist acts carried out by entities specially designated as foreign terrorist organizations by the Secretary of State, and (3) Atchley’s expansive liability punishes private actions taken in support of United States foreign policy goals.  Id. at 16-26 (relying on 18 U.S.C. §§2333(a), 2333(d)(2)).  While these additional grounds are also meritorious, indeed compelling, we think that they should win for the reasons we have already discussed – that Taamneh blew Atchley’s rationale to smithereens.

In our prior post, we described the Atchley decision as “perverse,” unprecedented, “ignoring the obvious,” “absurd,” and “directly contrary to American foreign policy interests.”  We still think so.  Hopefully, the United States Supreme Court will do something about it.