Amicus Curiae Brief — Smith & Wesson Brands, Inc., et al., Petitioners v. Estados Unidos Mexicanos

Supreme Court briefDec 3, 2024

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No. 23-1141

In the

Supreme Court of the United States

_______________

SMITH & WESSON BRANDS, INC., ET AL.,

Petitioners,

ESTADOS UNIDOS MEXICANOS,

Respondent.

_______

On Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

______________

BRIEF OF AMERICAN FREE ENTERPRISE

CHAMBER OF COMMERCE AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

_______________

WILLIAM P. BARR

TORRIDON LAW PLLC

2311 WILSON BLVD,

SUITE 640

ARLINGTON, VA 22201

MICHAEL B. BUSCHBACHER

Counsel of Record

JONATHAN BERRY

JARED M. KELSON

BOYDEN GRAY PLLC

800 CONNECTICUT AVE NW,

SUITE 900

WASHINGTON, DC 20006

(202) 955-0620

mbuschbacher@boydengray.com

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ................................................................ 3

Overextending Proximate Cause Raises Due

Process Concerns .................................................. 3

II.

Foreseeability is a Limitless Standard That

Will Cripple Industry in the United States ........ 7

III. Each Additional Step in a Causal Chain

Allows Sovereigns to Reach Further Beyond

Their Borders ..................................................... 14

CONCLUSION .......................................................... 18

TABLE OF AUTHORITIES

CASES

Page(s)

Alabama v. California,

No. 22O158 (U.S. 2024) ........................................ 15

Anne Arundel Cnty. v. BP P.L.C., No. C-02-CV21-000565 (Md. Cir. Ct. filed Feb. 16, 2021) ......... 8

Anza v. Ideal Steel Supply Corp.,

547 U.S. 451 (2006) ............................................ 5, 6

Associated Gen. Contractors of Cal., Inc. v. Cal.

State Council of Carpenters,

459 U.S. 519 (1983) ................................................ 5

Bank of Am. Corp. v. City of Miami,

581 U.S. 189 (2017) ................................................ 5

Bd. of Cnty. Comm’rs of Boulder Cnty. v. Suncor

Energy (U.S.A.), Inc., No. 2018CV030349

(Colo. Dist. Ct. filed Apr. 17, 2018) ....................... 8

BMW of N. Am., Inc. v. Gore,

517 U.S. 559 (1996) ...................................... 3, 4, 14

Bucks Cnty. v. BP P.L.C., No. 2024-01836-0000

(Pa. Ct. Com. Pl. filed Mar. 25, 2024).................... 7

California v. Exxon Mobil Corp., No. CGC-23609134 (Cal. Super. Ct. filed Sept. 15, 2023) ........ 8

California v. Exxon Mobil Corp., No. CGC24618323

(Cal. Super. Ct. filed Sept. 23, 2024) ................... 10

iii

California v. PepsiCo, Inc., No. 24stcv28450

(Cal. Super. Ct. filed Oct. 29, 2024)....................... 9

Cambridge Literary Props., Ltd. v. W. Goebel

Porzellanfabrik G.m.b.H. & Co. Kg.,

295 F.3d 59 (1st Cir. 2002)..................................... 5

City & Cnty. of Honolulu v. Sunoco LP,

537 P.3d 1173 (Haw. 2023) .................................... 7

City of Annapolis v. B.P. P.L.C., No. C-02-CV21-000250 (Md. Cir. Ct. filed Apr. 26, 2021) ......... 8

City of Charleston v. Brabham Oil Co., No.

2020CP1003975 (S.C. Ct. Com. Pl. filed

Sept. 9, 2020) .......................................................... 8

City of Chicago v. BP p.l.c., No. 2024CH01024

(Ill. Cir. Ct. filed Feb. 20, 2024) ............................. 7

City of Hoboken v. Exxon Mobil Corp., No. HUDL-3179-20 (N.J. Super. Ct. filed Sept. 2, 2020) ..... 8

City of New York v. Exxon Mobil Corp., No.

451071/2021 (N.Y. Sup. Ct. filed Apr. 22, 2021) ... 8

City of Oakland v. BP P.L.C., CGC-17-561370

(Cal. Super. Ct. filed Sept. 19, 2017) ..................... 8

Cnty. of Multnomah v. Exxon Mobil Corp., No.

23-cv-25164 (Or. Cir. Ct. filed June 22, 2023) ...... 8

Cnty. of San Mateo v. Chevron Corp., No.

17CIV03222 (Cal. Super. Ct.

filed July 17, 2017) ................................................. 8

Connecticut v. Exxon Mobil Corp., No. HHDCV-20-6132568-S (Conn. Super. Ct.

filed Sept. 14, 2020) ................................................ 8

Consol. Rail Corp. v. Gottshall,

512 U.S. 532 (1994) ................................................ 3

Ctr. for Biological Diversity v. U.S. Army Corps

of Eng’rs, 941 F.3d 1288 (11th Cir. 2019) ........... 13

Dep’t of Transp. v. Pub. Citizen,

541 U.S. 752 (2004) .............................................. 13

Eagle Cnty. v. Surface Transp. Bd.,

82 F.4th 1152 (D.C. Cir. 2023) ............................. 13

Earth Island Inst. v. Crystal Geyser Water Co.,

No. 20CIV01213 (Cal. Super. Ct.

filed Feb. 26, 2020) ............................................... 10

Estado Libre Asociado de Puerto Rico v. Exxon

Mobil Corp., No. SJ2024CV06512 (P.R. TPI

filed July 15, 2024) ................................................. 7

Ford Cnty. v. Exxon Mobil Corp., No. 2:24-cv-2547

(D. Kan. filed Nov. 27, 2024).................................. 9

In re Fuel Indus. Climate Cases, No. CJC-24005310, 2024 WL 4476614 (Cal. Super. Ct.

Oct. 08, 2024) .......................................................... 7

Hemi Grp., LLC v. City of New York,

559 U.S. 1 (2010) ................................................ 5, 6

Holmes v. Sec. Inv. Prot. Corp.,

503 U.S. 258 (1992) ............................................ 2, 5

Int’l Shoe Co. v. State of Wash., Off. of

Unemployment Comp. & Placement,

326 U.S. 310 (1945) ................................................ 5

Delaware ex rel. Jennings v. B.P. Am. Inc.,

No. N20C-09-097 (Del. Super. Ct.

filed Sept. 10, 2020) ................................................ 8

Kansas v. Colorado,

206 U.S. 46 (1907) ................................................ 14

Petition of Kinsman Transit Co.,

338 F.2d 708 (2d Cir. 1964).................................... 6

Kurns v. R.R. Friction Prods. Corp.,

565 U.S. 625 (2012) .............................................. 14

Lexmark Int’l, Inc. v. Static Control Components,

Inc., 572 U.S. 118 (2014) ........................................ 6

Maine v. BP P.L.C., No. ___

(Me. Super. Ct. filed Nov. 26, 2024) .................... 16

Makah Indian Tribe v. Exxon Mobil Corp.,

No. 23-2-25216-1 (Wash. Super. Ct.

filed Dec. 20, 2023) ................................................. 7

Massachusetts v. Exxon Mobil Corp.,

No. 1984CV03333 (Mass. Super. Ct.

filed Oct. 24, 2019) ................................................. 8

Mayor & City Council of Baltimore v. BP P.L.C.,

No. 24-C-18-4219, 2024 WL 3678699

(Md. Cir. Ct. July 10, 2024) ................................... 7

Mayor & City Council of Baltimore v. PepsiCo,

Inc., No. C-24-CV-24001003 (Md. Cir. Ct.

filed June 20, 2024) .............................................. 10

Minnesota v. Am. Petroleum Inst.,

63 F.4th 703 (8th Cir. 2023) ................................ 15

Minnesota v. Am. Petroleum Inst., No. 62-CV-203837 (Minn. Dist. Ct. filed June 24, 2020) ............ 8

Mun. of San Juan v. Exxon Mobil Corp.,

No. 3:23-cv-1608 (D.P.R. filed Dec. 13, 2023) ....... 8

N.C. Dep’t of Revenue v. The Kimberley Rice

Kaestner 1992 Family Tr., 588 U.S. 262 (2019) .... 3

Native Vill. of Kivalina v. Exxon Mobil Corp.,

663 F. Supp. 2d 863 (N.D. Cal. 2009) .................... 8

New York v. PepsiCo, Inc., No. 814682/2023

(N.Y. Sup. Ct. dismissed Oct. 31, 2024) ................ 9

Nowak v. Tak How Invs., Ltd.,

94 F.3d 708 (1st Cir. 1996)..................................... 5

People of State of California v Gen. Motors Corp.,

No. C06-05755, 2007 WL 2726871 (N.D. Cal.

Sept. 17, 200717, 2007) .......................................... 8

Phillips Petroleum Co. v. Shutts,

472 U.S. 797 (1985) ................................................ 4

Platkin v. Exxon Mobil Corp., No. MER-L001797-22 (N.J. Super. Ct. filed Oct. 18, 2022) .... 8

vii

Rhode Island v. Chevron Corp., No. PC-2018-4716

(R.I. Super. Ct. filed July 2, 2018) ......................... 8

S. Pac. Co. v. Darnell-Taenzer Lumber Co.,

245 U.S. 531 (1918) ................................................ 5

Seven Cnty. Infrastructure Coal. v. Eagle Cnty.,

No. 23-975 (U.S. 2024) ................................... 12, 13

Shoalwater Bay Indian Tribe v. Exxon Mobil Corp.,

No. 23-2-25215-2 (Wash. Super. Ct.

filed Dec. 20, 2023) ................................................. 7

Sierra Club, Inc. v. Exxon Mobil Corp.,

No. CGC24618321 (Cal. Super. Ct.

filed Sept. 23, 2024) .............................................. 10

Sinram v. Penn. R. Co.,

61 F.2d 767 (2d Cir. 1932)...................................... 4

State Farm Mut. Auto. Ins. Co. v. Campbell,

538 U.S. 408 (2003) .......................................... 4, 14

United States v. Curtiss-Wright Exp. Corp.,

299 U.S. 304 (1936) .............................................. 14

World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286 (1980) .......................................... 4, 14

viii

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V .................................................. 1

OTHER AUTHORITIES

Crime Data Explorer!++(* ,)#"* ' .(( ( * /($')) )"% )"%

+)&$*+**

........................ 10, 11

Cybercrime, U.S. Dep’t of State, https://perma.cc/

9X8B-B6ZW (last accessed Dec. 2, 2024). ........... 12

David A. Dana, Public Nuisance Law When

Politics Fails, 83 Ohio St. L.J. 61 (2022) ............. 15

Edward N. Lorenz, The Essence of Chaos (1993) ....... 1

FBI, 2023 Internet Crime Report (2024) ................... 12

',"*-"$$$, ),*,%

+')0!++(* ()%

$*+**

....................................... 11

Gartner, Press Release, Gartner Says Worldwide

PC Shipments Increased 0.3% in Fourth

Quarter of 2023 But Declined 14.8% for the

Year (Jan. 10, 2024) ............................................. 12

George L. Priest, The Deep Contradiction Between

Product Liability and Market Share Liability,

Yale L. & Econ. Rsch. Paper

(drft. Sept. 18, 2024)............................................. 16

George L. Priest, Market Share Liability in

Personal Injury and Public Nuisance

Litigation: An Economic Analysis,

18 Sup. Ct. Econ. Rev. 109 (2010) ....................... 16

The Home Depot, Inc., Annual Report

(Form 10-K) (Mar. 13, 2024) ................................ 11

Jeff Segura, Father’s Day Gift Gude, Home Depot

!++(* ()%

$*+**

....................................... 11

Lord Francis Bacon, The Maxims of the Law,

Regula I, in 14 The Works of Francis Bacon 189

(James Spedding et al. eds., 1900) ........................ 3

Louisville Slugger Museum & Factory Continues

Father’s Day Tradition of Free Admission for

Dads, WDRB (June 14, 2019) .............................. 11

Motor Vehicle Safety Data, Bureau of Transp.

Statistics, U.S. Dep’t of Transp. .......................... 10

Ray Bradbury, A Sound of Thunder (1952) ............... 1

Roger Pielke Jr., Weather Attribution Alchemy,

Am. Enter. Inst. (Oct. 8, 2024) .............................. 9

Stephen Singer, Maine Sues Energy Companies,

Saying They Failed to Warn About Climate

Change, Portland Press Herald

(Nov. 26, 2024) ...................................................... 16

T.S. Eliot, The Love Song of J. Alfred

Prufrock (1915) ....................................................... 2

INTEREST OF AMICUS CURIAE1

Formed in 2022, the American Free Enterprise

Chamber of Commerce (“AmFree”) is a 501(c)(6)

organization

that

represents

hard-working

entrepreneurs and businesses across the U.S.

economy. AmFree’s members are vitally interested in

U.S energy security and the continued viability of our

commercial republic. Shortly after its founding,

AmFree launched the Center for Legal Action (“CLA”)

to represent these interests in court. CLA is

spearheaded by two-time former U.S. Attorney

General Bill Barr.

AmFree submits this brief because the decision

below is not just wrong, but would also have a

crippling effect on American industry and would

dilute the constitutional requirement that “No person

shall … be deprived of life, liberty, or property,

without due process of law.” U.S. Const. amend. V.

SUMMARY OF ARGUMENT

Can the flutter of a butterfly’s wing result in a

natural disaster on another continent? Edward N.

Lorenz, The Essence of Chaos 179 (1993). Or if the

butterfly dies, does its demise change the

development of the English language? Or the outcome

of a presidential election? Cf. Ray Bradbury, A Sound

of Thunder (1952). These are interesting questions for

philosophers, science fiction writers, and poets to

ponder. And while we may then wonderlike

1 No party’s counsel authored this brief in whole or in part, and

no person or entity other than amicus or its counsel made a

monetary contribution intended to fund its preparation or

submission.

Prufrock—“Do I dare / Disturb the universe? …. Do I

dare to eat a peach?” T.S. Eliot, The Love Song of J.

Alfred Prufrock (1915)—no one actually lives that

way. And, until recently, no one would expect to find

such “butterfly effect” theories invading the forensic

inquiries of judges and juries: “‘for want of a nail, a

kingdom was lost’ is a commentary on fate, not the

statement of a major cause of action against a

blacksmith.” Holmes v. Sec. Inv. Prot. Corp., 503 U.S.

258, 287 (1992) (Scalia, J., concurring in the

judgment).

Mexico begs to differ. It fears its kingdom will be

lost—not for want of a nail—but for want of draconian

gun laws in its neighbor to the north. And so it comes

before this Court, asking it to all but erase the

traditional causation requirements of tort law. The

result would be chaos. That this Court must resolve

whether gun sales in the United States—in whatever

form—are the proximate cause of cartel violence in

Mexico is alarming evidence that such litigation is out

of control.

Amicus writes to underscore three points. First,

overextending proximate cause is incompatible with

due process. This Court has repeatedly reiterated the

close causal nexus necessary for liability and should

reaffirm that now.

Second, foreseeability is an unbounded and

unwieldy standard that hangs the sword of unlimited

liability over the head of all American businesses

(except for judgment-proof fly-by-night enterprises).

Entire industries that supply the necessities of

everyday life and sustain the economy could easily fall

victim to the same proximate-cause analysis.

Third, each additional step in a causal chain

allows foreign sovereigns to reach further beyond

their borders and act as de facto policymakers in the

United States. Nuisance litigation based on

attenuated causation has already frayed the

relationship between the several States of the union,

and adding foreign sovereigns to the mix will only

make matters worse.

***

Francis Bacon was right: In jure non remota

causa, sed proxima spectator. Lord Francis Bacon, The

Maxims of the Law, Regula I, in 14 The Works of

Francis Bacon 189 (James Spedding et al. eds., 1900).

ARGUMENT

OVEREXTENDING PROXIMATE CAUSE RAISES

DUE PROCESS CONCERNS

Overextending

proximate

cause

all

“foreseeable” consequences of the sale of lawful goods

would raise significant constitutional concerns under

the Due Process Clause. One of the “elementary

notions of fairness enshrined in our constitutional

jurisprudence” is “that a person receive fair notice not

only of the conduct that will subject him to

punishment, but also of the severity of the penalty

that a State may impose.” BMW of N. Am., Inc. v.

Gore, 517 U.S. 559, 574 (1996); see also N.C. Dep’t of

Revenue v. The Kimberley Rice Kaestner 1992 Family

Tr., 588 U.S. 262, 268 (2019). This Court has

explained

that

“[c]onditioning

liability

foreseeability … is hardly a condition at all” because

a “broad enough view” guarantees that anything “may

be foreseen.” Consol. Rail Corp. v. Gottshall, 512 U.S.

532, 552–53 (1994). Extending liability to all possible

downstream effects is thus antithetical to that core

due-process protection. See also Sinram v. Penn. R.

Co., 61 F.2d 767, 771 (2d Cir. 1932) (“[F]or we are not

bound to take thought for all that the morrow may

bring, even when we should foresee it.”).

That each petitioner is “a large corporation

rather than an impecunious individual does not

diminish its entitlement to fair notice” of potential

liability. BMW of N. Am., Inc., 517 U.S. at 585; cf.

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S.

408, 427 (2003) (“The wealth of a defendant cannot

justify an otherwise unconstitutional punitive

damages

award.”).

Weakening

causation

requirements creates a risk of liability not for “the

conduct that harmed the plaintiff,” but rather for

“being an unsavory individual or business.” State

Farm, 538 U.S. at 423. The Constitution tolerates no

such thing.

This Court has made similar observations in the

context of personal jurisdiction, which “represents a

restriction on judicial power … as a matter of

individual liberty.” Phillips Petroleum Co. v. Shutts,

472 U.S. 797, 807 (1985) (quoting Ins. Corp. of Ireland

v. Compagnie des Bauxites de Guinee, 456 U.S. 694,

702 (1982)). This Court explained that “‘foreseeability’

alone” has “never been a sufficient benchmark” to

satisfy the requirements of due process. World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286, 295

(1980). This Court’s observations about personal

jurisdiction are particularly relevant here because

multiple courts, including the First Circuit, view

proximate cause as a material consideration when

weighing the minimum contacts necessary for

personal jurisdiction under International Shoe Co. v.

State of Washington, Office of Unemployment

Compensation & Placement, 326 U.S. 310 (1945). See

Nowak v. Tak How Invs., Ltd., 94 F.3d 708, 713–16

(1st Cir. 1996); see also Cambridge Literary Props.,

Ltd. v. W. Goebel Porzellanfabrik G.m.b.H. & Co. Kg.,

295 F.3d 59, 65 (1st Cir. 2002).

This Court has repeatedly articulated a cabined

and common-sense understanding of proximate cause,

which is consistent with these due process concerns.

In 1918, this Court observed that “[t]he general

tendency of the law, in regard to damages at least, is

not to go beyond the first step.” S. Pac. Co. v. DarnellTaenzer Lumber Co., 245 U.S. 531, 533 (1918). The

Court has reiterated that standard as applicable to

the Interstate Commerce Act,2 the Clayton Act,3 the

Racketeer Influenced and Corrupt Organizations

Act, 4 and the Fair Housing Act. 5 The Court has

further emphasized that proximate cause requires a

“direct relation between the injury asserted and the

injurious conduct alleged.” Holmes, 503 U.S. at 268.

Subsequent harms that are “purely contingent” on an

intervening step are “too remote.” Id. at 271; Hemi

Grp., LLC v. City of New York, 559 U.S. 1, 12 (2010).

In other words, “other, independent, factors” break

the causal chain. Holmes, 503 U.S. at 269; see also

2 S. Pac. Co., 245 U.S. at 533.

3 Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of

Carpenters, 459 U.S. 519, 521, 535-37 (1983).

4 Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 458–61 (2006);

Holmes, 503 U.S. at 267–68.

5 Bank

(2017).

of Am. Corp. v. City of Miami, 581 U.S. 189, 202–03

Hemi Grp., 559 U.S. at 11 (“separate actions carried

out by separate parties”); Anza, 547 U.S. at 458

(“distinct” actions by the same party).

The decision below analogized to Lexmark

International, Inc. v. Static Control Components, Inc.,

572 U.S. 118 (2014), where this Court considered a

false advertising claim under the Lanham Act.

Pet.App.317a. This Court first reaffirmed that an

alleged harm is “‘too remote’” if it “is purely derivative

of ‘misfortunes visited upon a third person by the

defendant’s acts.’” Lexmark, 572 U.S. at 133 (quoting

Holmes, 503 U.S. at 268–69). Then, this Court

observed both that Congress had specifically provided

for recovery by commercial entities for the deception

of their consumers and “that under common-law

principles, a plaintiff can be directly injured by a

misrepresentation even where a third party … relied

on it.” Id. at 133 (cleaned up). This Court thus held

plaintiffs “ordinarily must show economic or

reputational injury flowing directly from the

deception wrought by the defendant’s advertising,”

which “occurs when deception of consumers causes

them to withhold trade from the plaintiff.” Id.

(emphasis added).

Mexico comes nowhere close to that standard

here, making no allegation (let alone a plausible

allegation) that petitioners manipulated or deceived

the multiple intervening actors between gun sales in

the United States and cartel violence in Mexico.

“[T]here must be a terminus somewhere, short of

eternity, at which the second party becomes

responsible in lieu of the first.” Petition of Kinsman

Transit Co., 338 F.2d 708, 722 (2d Cir. 1964)

(Friendly, J.) (cleaned up). The unwavering theme of

these cases is that proximate cause requires a “direct”

injury—i.e., “the first step” from the allegedly harmful

conduct.

II. FORESEEABILITY IS A LIMITLESS STANDARD

THAT WILL CRIPPLE INDUSTRY IN THE UNITED

STATES

The implications of overextending proximate

cause cannot be understated. Every industry would be

susceptible to claims for catastrophic damages no

matter how far removed the allegedly harmful

conduct.

State and local governments have already sued

the fossil fuel industry for damages based on an

attenuated theory of increased harms from climate

change. See, e.g., City & Cnty. of Honolulu v. Sunoco

LP, 537 P.3d 1173, 1184 (Haw. 2023), petition for cert.

pending, Nos. 23-947, 23-952 (U.S.). Climate litigation

has become a cottage industry, with an everincreasing number of state and local governments

joining the fray. See, e.g., In re Fuel Indus. Climate

Cases, No. CJC-24-005310 (Cal. Super. Ct. Oct. 08,

2024); Estado Libre Asociado de Puerto Rico v. Exxon

Mobil Corp., No. SJ2024CV06512 (P.R. TPI filed July

15, 2024); Mayor & City Council of Baltimore v. BP

P.L.C., No. 24-C-18-4219, 2024 WL 3678699 (Md. Cir.

Ct. July 10, 2024); Bucks Cnty. v. BP P.L.C., No. 202401836-0000 (Pa. Ct. Com. Pl. filed Mar. 25, 2024);

Shoalwater Bay Indian Tribe v. Exxon Mobil Corp.,

No. 23-2-25215-2 (Wash. Super. Ct. filed Dec. 20,

2023); Makah Indian Tribe v. Exxon Mobil Corp., No.

23-2-25216-1 (Wash. Super. Ct. filed Dec. 20, 2023);

City of Chicago v. BP p.l.c., No. 2024CH01024 (Ill. Cir.

Ct. filed Feb. 20, 2024); Mun. of San Juan v. Exxon

Mobil Corp., No. 3:23-cv-1608 (D.P.R. filed Dec. 13,

2023); California v. Exxon Mobil Corp., No. CGC-23609134 (Cal. Super. Ct. filed Sept. 15, 2023); Cnty. of

Multnomah v. Exxon Mobil Corp., No. 23-cv-25164

(Or. Cir. Ct. filed June 22, 2023); Platkin v. Exxon

Mobil Corp., No. MER-L-001797-22 (N.J. Super. Ct.

filed Oct. 18, 2022); City of Annapolis v. B.P. P.L.C.,

No. C-02-CV-21-000250 (Md. Cir. Ct. filed Apr. 26,

2021); City of New York v. Exxon Mobil Corp., No.

451071/2021 (N.Y. Sup. Ct. filed Apr. 22, 2021); Anne

Arundel Cnty. v. BP P.L.C., No. C-02-CV-21-000565

(Md. Cir. Ct. filed Feb. 16, 2021); Connecticut v. Exxon

Mobil Corp., No. HHD-CV-20-6132568-S (Conn.

Super. Ct. filed Sept. 14, 2020); Delaware ex rel.

Jennings v. B.P. Am. Inc., No. N20C-09-097 (Del.

Super. Ct. filed Sept. 10, 2020); City of Charleston v.

Brabham Oil Co., No. 2020CP1003975 (S.C. Ct. Com.

Pl. filed Sept. 9, 2020); City of Hoboken v. Exxon Mobil

Corp., No. HUD-L-3179-20 (N.J. Super. Ct. filed Sept.

2, 2020); Minnesota v. Am. Petroleum Inst., No. 62-CV20-3837 (Minn. Dist. Ct. filed June 24, 2020);

Massachusetts v. Exxon Mobil Corp., No.

1984CV03333 (Mass. Super. Ct. filed Oct. 24, 2019);

Rhode Island v. Chevron Corp., No. PC-2018-4716

(R.I. Super. Ct. filed July 2, 2018); Bd. of Cnty.

Comm’rs of Boulder Cnty. v. Suncor Energy (U.S.A.),

Inc., No. 2018CV030349 (Colo. Dist. Ct. filed Apr. 17,

2018); City of Oakland v. BP P.L.C., CGC-17-561370

(Cal. Super. Ct. filed Sept. 19, 2017); Cnty. of San

Mateo v. Chevron Corp., No. 17CIV03222 (Cal. Super.

Ct. filed July 17, 2017); Native Vill. of Kivalina v.

Exxon Mobil Corp., 663 F. Supp. 2d 863 (N.D. Cal.

2009), dismissal aff’d, 696 F.3d 849 (9th Cir. 2012);

People of State of California v Gen. Motors Corp., No.

C06-05755, 2007 WL 2726871 (N.D. Cal. Sept. 17,

200717, 2007). To the extent these cases claim

damages for alleged climate harms, they rest on

highly speculative and tenuous causal chains. See,

e.g., Roger Pielke Jr., Weather Attribution Alchemy,

Am. Enter. Inst. (Oct. 8, 2024), https://perma.cc/

WVL2-YPQF.

Similar lawsuits have also been filed against

companies that manufacture or sell plastic products,

seeking damages and injunctive relief for pollution by

third parties. See, e.g., New York v. PepsiCo, Inc., No.

814682/2023 (N.Y. Sup. Ct. dismissed Oct. 31, 2024),

Doc. No. 36. In a recent decision dismissing claims by

New York, the court was emphatic:

While I can think of no reasonable person

who does not believe in the imperatives of

recycling and being better stewards of our

environment, this does not give rise to

phantom assertions of liability that do

nothing to solve the problem that exists. This

is a purely legislative or executive function to

ameliorate and the judicial system should not

be burdened with predatory lawsuits that

seek to impose punishment while searching

for a crime. Plaintiff’s proposed use of the

judicial system to punish select purported

offenders for what she believes to be a

righteous cause risks transforming the

judiciary into an arm of the legislature, or at

the very least a passive partner in expanding

duties that strain the bedrock of wellestablished law for policy purposes.

Id., Doc. No. 36, at 18–19. But the lawsuits keep

coming. See, e.g., Ford Cnty. v. Exxon Mobil Corp., No.

2:24-cv-2547 (D. Kan. filed Nov. 27, 2024); California

v. PepsiCo, Inc., No. 24stcv28450 (Cal. Super. Ct. filed

Oct. 29, 2024); California v. Exxon Mobil Corp., No.

CGC24618323 (Cal. Super. Ct. filed Sept. 23, 2024);

Mayor & City Council of Baltimore v. PepsiCo, Inc.,

No. C-24-CV-24001003 (Md. Cir. Ct. filed June 20,

2024). Even non-governmental organizations have

joined the litigation. See, e.g., Sierra Club, Inc. v.

Exxon Mobil Corp., No. CGC24618321 (Cal. Super. Ct.

filed Sept. 23, 2024); Earth Island Inst. v. Crystal

Geyser Water Co., No. 20CIV01213 (Cal. Super. Ct.

filed Feb. 26, 2020)..

Who’s next? According to the U.S. Department of

Transportation, there were 5,930,496 motor vehicle

crashes in the United States in 2022. Motor Vehicle

Safety Data, Bureau of Transp. Statistics, U.S. Dep’t

Transp.,

https://www.bts.gov/content/motorvehicle-safety-data (last accessed Dec. 2, 2024) (Table

2-17). It is thus entirely foreseeable that non-defective

vehicles will be involved in accidents, including as a

result of driver error, recklessness, and the influence

of drugs or alcohol. It is also entirely foreseeable that

some cars will be used in shootings and robberies. The

decision below would designate the entire automobile

industry as a proximate cause of these harms.

According to the Federal Bureau of Investigation

(“FBI”), “blunt object[s]” like baseball bats, clubs, and

hammers are the seventh-most common weapons in

violent offenses in the United States. Crime Data

Explorer,

FBI,

https://cde.ucr.cjis.gov/LATEST/

webapp/#/pages/explorer/crime/crime-trend

(last

accessed Dec. 2, 2024) (tbl. “All Violent Offenses

Offense Characteristics: Type of Weapon Involved By

Offense”). With nearly a quarter-million violent

crimes committed with blunt objects over the last 5

years, id., it would be hard to argue that Louisville

Slugger—which puts 1.8 million baseball bats into

interstate commerce every year, Frequently Asked

Questions, Louisville Slugger Museum & Factory,

https://perma.cc/4MRX-XFUM (last accessed Dec. 2,

2024)—does not know that at least some of their bats

will be used for violent purposes. By the same token,

Home Depot sells $12.1 billion worth of tools every

year. The Home Depot, Inc., Annual Report (Form 10K), at 51 (Mar. 13, 2024), https://perma.cc/S4CKUBB3. This extensive revenue, representing a full 8%

of the company’s net sales, id., includes commerce in

hand tools like hammers, wrenches, flashlights, and

crowbars.

The FBI also reports that men commit nearly

70% of violent crimes. Crime Data Explorer, FBI,

supra (Table “All Violent Offenses Offender vs. Victim

Demographics: Sex”). Despite this publicly available

information—from an official source—Louisville

Slugger and Home Depot take no precautions to

ensure their dangerous weapons aren’t sold,

distributed, or gifted to these disproportionately

dangerous users. Even worse, Louisville Slugger and

Home Depot actively market their goods to that

demographic. See, e.g., Louisville Slugger Museum &

Factory Continues Father’s Day Tradition of Free

Admission for Dads, WDRB (June 14, 2019),

https://perma.cc/YP7L-PV9F; Jeff Segura, Father’s

Day Gift Gude, Home Depot, https://perma.cc/5DP2MMAD (last accessed Dec. 2, 2024). Louisville Slugger

and Home Depot can’t escape the decision below,

either.

According to the U.S. Department of State,

cybercrime has created annual domestic damages of

as much as $4 billion. Cybercrime, U.S. Dep’t of State,

https://perma.cc/9X8B-B6ZW (last accessed Dec. 2,

2024). The top 6 computer manufacturers—Lenovo,

HP, Dell, Apple, Asus, and Acer—combine to capture

85.9% of the global market in personal computers.

Gartner, Press Release, Gartner Says Worldwide PC

Shipments Increased 0.3% in Fourth Quarter of 2023

But Declined 14.8% for the Year 2–3 tbl. 3 (Jan. 10,

2024), https://perma.cc/T5JV-6FYU. At least some of

those machines would foreseeably be used in the

hundreds of thousands, if not millions, of cybercrimes

committed every year in the United States. FBI, 2023

Internet Crime Report (2024), https://perma.cc/E5UYS36B. Yet, despite that severity of this issue, these

companies appear to be making no serious effort to

prevent their products from reaching the hands of

potential criminals.

The list goes on and on. There is no principle to

the decision below that would limit liability to guns.

With an unbounded conception of “proximate cause,”

plaintiffs could make allegations similar to Mexico’s

that each respective defendant should have created a

system to “supervise” downstream sales (¶ 264),

enforce background checks on (primary and)

secondary sales (¶¶ 245, 369b), and create “anti-theft

measures” to mitigate the harms from stolen goods

(¶ 269). Pet.App.83a–84a, 89a–90a, 132a.

This Court has before it similar questions about

foreseeability and proximate causation that for

decades have bedeviled federal actions subject to

environmental

review

under

the

National

Environmental Policy Act (“NEPA”). See Seven Cnty.

Infrastructure Coal. v. Eagle Cnty., No. 23-975 (U.S.

2024). In the NEPA context, lower courts have

wrestled with how to apply this Court’s holding that

agencies need only to consider environmental effects

when the agency is the “legally relevant ‘cause’ of the

effect.” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752,

770 (2004). Given the tendency of many lower courts

to, instead, apply “a particularly unyielding variation

of ‘but for’ causation,” id. at 767, plaintiffs—limited

only by their imaginations—have used NEPA to

transform

every

federal

agency

into

“environmental-policy czar,” Ctr. for Biological

Diversity v. U.S. Army Corps of Eng’rs, 941 F.3d 1288,

1299 (11th Cir. 2019); see also Brief of U.S. Senators

John Barrasso et al. as Amici Curiae in Support of

Petitioners at 2, 18–22, Eagle Cnty., No. 23-975 (U.S.

Sept. 4, 2024).

The result is the far-too-typical D.C. Circuit

opinion under review that faults a federal agency for

failing to consider the effect of a rail line in Utah on

environmental justice communities in Louisiana.

Eagle Cnty. v. Surface Transp. Bd., 82 F.4th 1152,

1177–80 (D.C. Cir. 2023). The continuous application

of such an unbounded view of what constitutes a

“legally relevant ‘cause,’” Pub. Citizen, 541 U.S. at

770, imposes immeasurable uncertainty on any

project subject to any sort of federal approval, which

must survive the gauntlet of NEPA and subsequent

judicial review. Extensive NEPA reviews—and the

uncertainty of litigation—have delayed projects for

years (if not indefinitely), led to hundreds of millions

of dollars in increased costs for individual projects,

and caused investors to avoid interstate ventures

altogether. Brief of the Interstate Natural Gas Ass’n

of America et al. as Amici Curiae in Support of

Petitioners at 11–13, Eagle Cnty., No. 23-975 (U.S.

Sept. 4, 2024).

Mexico is attempting to use litigation in the

United States to resolve its own domestic issues or

otherwise circumvent negotiation with the President

over a matter of foreign affairs. Cf. United States v.

Curtiss-Wright Exp. Corp., 299 U.S. 304, 319 (1936)

(“The President is the sole organ of the nation in its

external relations, and its sole representative with

foreign nations.”). If Mexico succeeds (or if States and

local governments similarly prevail) in expanding

proximate cause, it will take little time for other

plaintiffs to come knocking, with no end in sight. The

result of overextending proximate cause would be

devastating.

III. EACH ADDITIONAL STEP IN A CAUSAL CHAIN

ALLOWS SOVEREIGNS TO REACH FURTHER

BEYOND THEIR BORDERS

In our federal system, no State “can legislate for,

or impose its own policy upon the other.” Kansas v.

Colorado, 206 U.S. 46, 95 (1907); see also State Farm,

538 U.S. at 422 (“[E]ach State may make its own

reasoned judgment about what conduct is permitted

or proscribed within its borders.”); BMW of N. Am.,

Inc., 517 U.S. at 571–73 (“[I]t is clear that no single

State could … impose its own policy choice on

neighboring States.”); cf. World-Wide Volkswagen

Corp., 444 U.S. at 294 (explaining “the Due Process

Clause” can be “an instrument of interstate

federalism”).

Nevertheless, each additional step allowed in a

causal chain increases the ability of a State to use

litigation to reach across its borders and impose its

preferences on its neighbors. Cf. Kurns v. R.R.

Friction Prods. Corp., 565 U.S. 625, 637 (2012) (“[T]he

obligation to pay compensation can be, indeed is

designed to be, a potent method of governing conduct

and controlling policy.” (quoting San Diego Bldg.

Trades Council v. Garmon, 359 U.S. 236, 247 (1959)));

Minnesota v. Am. Petroleum Inst., 63 F.4th 703, 719

(8th Cir. 2023) (Stras, J., concurring) (“[T]he state’s

attempt to set national energy policy through its own

consumer-protection laws would ‘effectively override

… the policy choices made by’ the federal government

and other states.” (quoting Int’l Paper Co. v. Ouellette,

479 U.S. 481, 495 (1987))). That’s the point. Suits like

this one, claims by state and local governments

against energy companies and plastic manufacturers,

and many others aim to use tort law to obtain policy

change beyond what can be achieved through the

political process. See David A. Dana, Public Nuisance

Law When Politics Fails, 83 Ohio St. L.J. 61 (2022).

Attenuated causation also requires broader relief to

remedy—such as public nuisance claims that demand

damages based on global conduct and require

equitable relief of an international scope to abate—

only makes matters worse.

It is thus unsurprising that overextending

proximate cause is fraying the relationship between

the States. Indeed, States have increasingly used

nuisance litigation to try and force their policy

preferences on their neighbors or otherwise try and

obtain what they cannot achieve through Congress.

Recently, nineteen States filed a motion for leave

to bring an original action in this Court against

California, Connecticut, Minnesota, New Jersey, and

Rhode Island. Alabama v. California, No. 22O158

(U.S. 2024). The defendant States there have sued

major energy companies for damages and injunctive

relief related to harms allegedly attributable to

climate change caused by emissions from use of their

products. The motion claimed those efforts, which

seek damages for global conduct and corresponding

equitable remedies, violate horizontal federalism.

Maine recently joined the defendant States in suing

major energy companies for alleged climate harms,

further deepening the divide. See Maine v. BP P.L.C.,

No. ___, (Me. Super. Ct. filed Nov. 26, 2024),

https://perma.cc/9NGM-9N23; see also Stephen

Singer, Maine Sues Energy Companies, Saying They

Failed to Warn About Climate Change, Portland Press

Herald (Nov. 26, 2024), https://perma.cc/VG9CJNUH.

The decision below adds foreign sovereigns to the

mix. Mexico is seeking to impose joint and several

liability on each petitioner for cartel violence in

Mexico, and to ban all sales of disfavored guns, as

necessary to remedy its alleged harms. That would

inevitably extend Mexico’s preferred gun policy into

the United States. Worse still, Mexico is seeking to

draw billions of dollars from the U.S. economy—

enough to entirely bankrupt firearm manufactures—

to fund its own domestic, governmental operations

like paying for a police force, all without showing

direct causation to specific sales. Petitioners will

presumably be liable based on their alleged market

share, then jointly liable for any remaining balance.

That’s an attempt to tax on American companies and

consumers to fund the Mexican government, see

generally George L. Priest, The Deep Contradiction

Between Product Liability and Market Share

Liability, Yale L. & Econ. Rsch. Paper (drft. Sept. 18,

2024),

available

https://ssrn.com/abstract=

4960609; George L. Priest, Market Share Liability in

Personal Injury and Public Nuisance Litigation: An

Economic Analysis, 18 Sup. Ct. Econ. Rev. 109 (2010),

something Mexico would otherwise have no

jurisdiction to pursue.

To accomplish these goals, Mexico sought out a

favorable forum with favorable state law. It is no

wonder that twenty-six other states and the Arizona

Legislature filed an amicus brief asking this Court to

reverse the decision below, decrying the expansion of

proximate cause and Mexico’s attempt to export its

policy to the United States. See Brief for the State of

Montana, 25 Other States, and the Arizona

Legislature as Amicus Curiae in Support of Petitioner

and Reversal, No. 23-1141 (U.S. May 21, 2024).

***

It doesn’t have to be this way. All of these

problems can be avoided by applying the standard for

proximate cause that has worked for the last century,

if not longer.

CONCLUSION

This Court should reverse.

Respectfully submitted,