Amicus Curiae Brief — AstraZeneca UK Limited, et al., Petitioners v. Joshua Atchley, et al.

Supreme Court briefMay 21, 2024

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No. 23-9

In the Supreme Court of the United States

ASTRAZENECA UK LIMITED, ET AL., PETITIONERS

JOSHUA ATCHLEY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

ERICA L. ROSS

Assistant to the Solicitor

General

SHARON SWINGLE

JENNIFER L. UTRECHT

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

The Antiterrorism Act of 1990 (ATA), 18 U.S.C. 2331

et seq., authorizes United States nationals “injured * * *

by reason of an act of international terrorism” to recover

treble damages for their injuries. 18 U.S.C. 2333(a). The

Justice Against Sponsors of Terrorism Act, Pub. L. No.

114-222, 130 Stat. 852, amended the ATA to provide that

in an action for “injury arising from an act of international terrorism committed, planned, or authorized by” a

U.S.-designated foreign terrorist organization, “liability

may be asserted as to any person who aids and abets, by

knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.” 18 U.S.C. 2333(d)(2).

Respondents are U.S. nationals who were victims of terrorist attacks in Iraq, and their families. They assert

direct-liability and aiding-and-abetting claims against petitioners, pharmaceutical and medical device companies that

respondents allege supplied goods and payments to the

Iraqi Ministry of Health, which were diverted to fund the

attacks that injured respondents. The district court dismissed the complaint, but the court of appeals reversed.

This Court then decided Twitter, Inc. v. Taamneh, 598 U.S.

471 (2023), in which the Court considered for the first time

the requirements for aiding-and-abetting liability under

the ATA. The questions presented are:

1. Whether the Court should grant certiorari, vacate

the decision of the court of appeals, and remand for further proceedings in light of Taamneh.

2. Whether respondents adequately pleaded proximate causation for direct liability under the ATA.

3. Whether respondents adequately pleaded that a

U.S.-designated foreign terrorist organization “committed, planned, or authorized” the attacks at issue.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statement:

A. Legal framework ............................................................. 1

B. Factual and procedural background .............................. 3

C. This Court’s decision in Taamneh ............................... 10

Discussion .................................................................................... 10

A. This Court should grant, vacate, and remand in

light of Taamneh ........................................................... 11

B. Plenary review is not warranted at this time ............. 21

Conclusion ................................................................................... 23

TABLE OF AUTHORITIES

Cases:

Aetna Cas. & Sur. Co. v. Leahey Const. Co.,

219 F.3d 519 (6th Cir. 2000) ............................................... 13

Boim v. Holy Land Found. for Relief & Dev.,

549 F.3d 685 (7th Cir. 2008), cert. denied,

558 U.S. 981 (2009)................................................................ 2

Flowers v. Mississippi, 579 U.S. 913 (2016) ....................... 11

Halberstam v. Welch,

705 F.2d 472 (D. C. Cir. 1983) .......................................... 2, 9

Kaplan v. Lebanese Canadian Bank, SAL,

999 F.3d 842 (D.C. Cir. 2021) ............................................. 16

Kemper v. Deutsche Bank AG,

911 F.3d 383 (7th Cir. 2018) ........................................... 7, 22

Lawrence v. Chater, 516 U.S. 163 (1996) ....................... 11, 21

Metge v. Baehler, 762 F.2d 621 (8th Cir. 1985),

cert. denied, 474 U.S. 1057, and 474 U.S. 1072

(1986) .................................................................................... 13

Nye & Nissen v. United States,

336 U.S. 613 (1949)........................................................ 12, 13

(III)

Cases—Continued:

Page

Rothstein v. UBS AG, 708 F.3d 82 (2d Cir. 2013) .......... 2, 22

Stutson v. United States, 516 U.S. 193 (1996) .................... 11

Twitter, Inc. v. Taamneh,

598 U.S. 471 (2023)..................................................... 1, 10-18

Statutes:

Antiterrorism Act of 1990, 18 U.S.C. 2331 et seq. ................ 1

18 U.S.C. 2331(1) ............................................................... 2

18 U.S.C. 2333(a) ............................................................... 1

18 U.S.C. 2333(d)(2) ...................................... 3, 7, 9, 12, 20

Justice Against Sponsors of Terrorism Act,

Pub. L. No. 114-222, 130 Stat. 852 ...................................... 3

§ 2(a)(5), 130 Stat. 852 ....................................................... 3

18 U.S.C. 2333 note ........................................................... 3

8 U.S.C. 1189 ...................................................................... 3, 19

18 U.S.C. 2339B ....................................................................... 2

18 U.S.C. 2339B(a)(1) ............................................................ 19

Miscellaneous:

Press Statement, Anthony J. Blinken, Secretary of

State, U.S. Dep’t of State, Revocation of the

Terrorist Designations of Ansarallah (Feb. 12,

2021), https://www.state.gov/revocation-of-theterrorist-designations-of-ansarallah/................................ 20

Bureau of Counterterrorism, U.S. Dep’t of State,

Foreign Terrorist Organizations,

https://www.state.gov/foreign-terroristorganizations/ (last visited May 20, 2024) .......................... 5

Financial Reconstruction in Iraq: Hearings Before

the Senate Banking Subcomm. on International

Trade and Finance of the Senate Comm. on Banking, Housing, and Urban Affairs (2004) ........................... 4

Restatement (Second) of Torts (1970) ................................. 13

In the Supreme Court of the United States

No. 23-9

ASTRAZENECA UK LIMITED, ET AL., PETITIONERS

JOSHUA ATCHLEY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This brief is submitted in response to the Court’s order inviting the Solicitor General to express the views

of the United States. In the view of the United States,

the Court should grant the petition for a writ of certiorari, vacate the judgment of the court of appeals, and

remand for further consideration in light of Twitter,

Inc. v. Taamneh, 598 U.S. 471 (2023).

STATEMENT

A. Legal Framework

1. The Antiterrorism Act of 1990 (ATA), 18 U.S.C.

2331 et seq., authorizes United States nationals “injured

* * * by reason of an act of international terrorism” to

bring a civil action for treble damages in federal district

court. 18 U.S.C. 2333(a). The ATA defines “ ‘international terrorism’ ” to mean criminal activities that occur

(1)

primarily abroad or transcend national boundaries and

that “appear to be intended” to “intimidate or coerce a

civilian population,” to “influence the policy of a government by intimidation or coercion,” or to “affect the conduct of a government by mass destruction, assassination, or kidnapping.” 18 U.S.C. 2331(1).

2. Following the ATA’s enactment, courts considered whether the statute made persons who aid and

abet terrorists civilly liable. Compare Rothstein v. UBS

AG, 708 F.3d 82, 97 (2d Cir. 2013), with Boim v. Holy

Land Found. for Relief & Dev., 549 F.3d 685, 712 (7th

Cir. 2008) (en banc), cert. denied, 558 U.S. 981 (2009).

The United States expressed the view that the ATA imposes secondary liability on defendants who “knowingly

provide[] substantial assistance to a terrorist organization.” Gov’t C.A. Amicus Br. at 26-27, Boim, supra (No.

05-1815) (Boim Br.); see U.S. Amicus Br. at 8, O’Neill

v. Al Raji Bank, 573 U.S. 954 (2014) (No. 13-318)

(O’Neill Br.).

The United States further stated that ATA aidingand-abetting claims should be evaluated under tort-law

principles, as “summarized in the seminal D.C. Circuit

opinion in Halberstam v. Welch, 705 F.2d 472 (D. C. Cir.

1983).” Boim Br. at 15-16; accord O’Neill Br. at 7-8. In

addition, the United States explained that while “liability can be imposed under Section 2333(a) if common law

tort standards are met even in the absence of a specific

intent by the defendant to assist in acts of international

terrorism[,] * * * the defendant’s intent will normally

be a substantial factor in the analysis.” Boim Br. at 2.

And the United States stated that “[i]n certain factual

situations,” conduct that would violate 18 U.S.C.

2339B—which makes it a crime to “knowingly provide[]

material support to a designated organization”—“would

not support civil tort liability” under the ATA, “such as

where the connection between a defendant’s actions and

the act of international terrorism that harms the victim

is insubstantial.” Boim Br. at 3; see id. at 23, 31.

3. In 2016, Congress enacted the Justice Against

Sponsors of Terrorism Act (JASTA), Pub. L. No. 114222, 130 Stat. 852. JASTA amended the ATA to expressly provide for aiding-and-abetting liability. The

ATA now states that in an action based on “an injury

arising from an act of international terrorism committed, planned, or authorized by an organization” that the

Secretary of State has designated as a foreign terrorist

organization under 8 U.S.C. 1189, “liability may be asserted as to any person who aids and abets, by knowingly providing substantial assistance, or who conspires

with the person who committed such an act of international terrorism.” 18 U.S.C. 2333(d)(2). JASTA further

states that Halberstam, “which has been widely recognized as the leading case regarding Federal civil aiding

and abetting and conspiracy liability, including by [this]

Court * * * , provides the proper legal framework for

how such liability should function in th[is] context.”

§ 2(a)(5), 130 Stat. 852 (18 U.S.C. 2333 note).

B. Factual and Procedural Background

This case arises from terrorist attacks that occurred

in Iraq between 2005 and 2011. Pet. App. 67a. Respondents are “American service members [and] civilians” who were injured in those attacks, as well as their

families. Ibid. Respondents sued petitioners—numerous

pharmaceutical and medical equipment companies—

alleging that petitioners’ interactions with the Iraqi

Ministry of Health (Ministry) and the Ministry’s stateowned import subsidiary, Kimadia, made petitioners

both directly and secondarily liable for the attacks

under the ATA. See id. at 67a-69a & nn.1-2 (listing defendants). The district court dismissed the Third

Amended Complaint (TAC), and the court of appeals reversed. Id. at 66a, 99a.

1. During Saddam Hussein’s regime, the Ministry

and Kimadia operated a government-run healthcare

system. Pet. App. 69a. According to respondents’ complaint, the Ministry and Kimadia were openly plagued

by corruption and profiteering. Ibid. Respondents allege that Kimadia exploited a humanitarian exception to

sanctions against Iraq that allowed the country to sell

some of its oil in order to purchase essential food and

medical supplies for its people. Id. at 9a. In particular,

respondents allege that Kimadia required medical

goods purveyors to provide cash kickbacks or supply

free goods—typically ten percent in excess of the underlying contract quantities—which were then diverted

to the black market and appropriated by corrupt Kimadia employees. Ibid.; see TAC ¶¶ 44-53.

In March 2003, the United States and a coalition of

armed forces invaded Iraq and removed Saddam Hussein from power. Pet. App. 9a, 68a. After the fall of the

regime, the United States, other coalition members, and

Iraqi military forces worked to rebuild Iraq while also

engaging in years of armed conflict against various insurgent forces. Id. at 68a. During that time, the United

States invested billions of dollars to ensure political and

security conditions conducive to establishing a healthy

democracy, including by rebuilding Iraq’s healthcare

system. See, e.g., C.A. App. 661-664, 666-668, 674, 699.

The United States also encouraged private investment

in those reconstruction efforts. E.g., Financial Reconstruction in Iraq: Hearings Before the Senate Banking

Subcomm. on International Trade and Finance of the

Senate Comm. on Banking, Housing, and Urban Affairs (2004) (Statement of Earl Anthony Wayne, Ass’t

Sec’y, Bureau of Econ. & Bus. Affairs, U.S. Dep’t of

State).

2. a. Before the resumption of full sovereign authority by the Iraqis, the United States tried unsuccessfully to abolish Kimadia and replace it with a marketbased procurement system for the Ministry. Pet. App.

10a; TAC ¶ 48. Instead, in early 2004, the Sadrist

Trend—a political party aligned with Muqtada al-Sadr,

a Shiite religious leader who opposed U.S. involvement

in Iraq—began assuming key positions throughout the

Ministry bureaucracy and purging employees disloyal

to the group. Pet. App. 10a-11a; TAC ¶¶ 59, 63, 66. After Iraq’s first post-Saddam parliamentary election in

January 2005, the Sadrists officially assumed control

over several ministries, including the Ministry of

Health. Pet. App. 11a; TAC ¶¶ 68-71.

According to respondents’ complaint, even before

the U.S. invasion of Iraq, Muqtada al-Sadr worked with

Hezbollah’s “chief terrorist mastermind, Imad Mugniyeh,” to establish, train, and arm the insurgent group

Jaysh al-Mahdi, which acted as a militia for the

Sadrists. Pet. App. 9a (citation omitted); see TAC ¶ 56.

Hezbollah has been a designated foreign terrorist organization since 1997. TAC ¶ 363; see Bureau of Counterterrorism, U.S. Dep’t of State, Foreign Terrorist Organizations, https://www.state.gov/foreign-terroristorganizations/ (listing “Hizballah”). Jaysh al-Mahdi has

never been so designated.

Respondents allege that Jaysh al-Mahdi exploited

the Sadrists’ electoral success and co-opted the Ministry for Jaysh al-Mahdi’s operations. Pet. App. 11a.

Among other things, respondents allege that Jaysh al-

Mahdi used Ministry hospitals as terrorist bases, used

Ministry ambulances to transport Jaysh al-Mahdi

“death squads” across Baghdad, and used the Ministry’s Facilities Protection Service to torture and kill

Muqtada al-Sadr’s enemies. Ibid. (citation omitted); see

TAC ¶¶ 3, 85-89, 103.

b. As noted above, petitioners are pharmaceutical

and medical equipment companies. Pet. App. 67a. Respondents allege that between 2004 and 2013, “[i]n an

effort to grow their market share in Iraq,” TAC ¶ 115,

petitioners engaged in corrupt transactions with the

Ministry that indirectly provided financial support to

Jaysh al-Mahdi. See Pet. App. 11a-12a. First, petitioners allegedly “made cash bribes (called ‘commissions’)”

to Ministry officials to obtain Kimadia contracts. Id. at

12a; see TAC ¶ 142. These bribes were “standard practice for companies dealing” with the Ministry, TAC

¶ 142, and they were “typically 20% of any contract

price,” Pet. App. 12a. Respondents allege that Jaysh alMahdi benefited from these payments because Ministry

officials “themselves had to kick back a percentage of

their earnings to Sadr and Jaysh al-Mahdi as the price

of keeping their lucrative positions in government.”

TAC ¶ 144.

Second, petitioners’ contracts with Kimadia to import prescription drugs and medical devices often included an obligation to donate “[f ]ree goods” in addition

to those provided by the contract. Pet. App. 12a; see

TAC ¶¶ 116-141. Respondents allege that petitioners

knew or recklessly disregarded that, as during the Saddam regime, those goods did not “serve any legitimate

charitable or medicinal purpose.” TAC ¶ 137. Instead,

the free goods “were structurally designed to disappear

from inventory” and be resold on the “black market.”

TAC ¶¶ 137-138. Respondents further allege that petitioners knew or recklessly disregarded that the payments and free goods helped fund Jaysh al-Mahdi’s terrorist attacks, including against Americans. See, e.g.,

Pet. App. 13a; TAC ¶¶ 10, 180.

3. In October 2017, respondents sued petitioners under the ATA, alleging that petitioners are directly and

secondarily liable for more than 300 Jaysh al-Mahdi attacks that caused respondents’ injuries. See Pet. App.

90a; TAC ¶¶ 3181-3221. Respondents also assert statelaw claims based on the same conduct. TAC ¶¶ 32223254.

The district court dismissed the complaint. Pet. App.

68a-96a. On direct liability, the court explained that the

“ATA’s ‘by reason of ’ language demands a showing of

proximate causation.” Id. at 85a (citation omitted). The

court determined that even if petitioners “were aware”

that their bribes to the Ministry would be appropriated

by Jaysh al-Mahdi, the Ministry’s involvement defeats

a finding of proximate causation because the Ministry is

a sovereign government agency that “did not ‘exist

solely to perform terrorist attacks.’ ” Id. at 87a-88a, 95a

(quoting Kemper v. Deutsche Bank AG, 911 F.3d 383,

392 (7th Cir. 2018)).

The district court next held that respondents’ aidingand-abetting claims should also be dismissed. Pet. App.

89a-96a. The court first focused on the requirement

that a designated foreign terrorist organization “committed, planned, or authorized” the attacks in question.

Id. at 89a-90a (quoting 18 U.S.C. 2333(d)(2)). The court

explained that Jaysh al-Mahdi—which has never been

so designated—“carried out” the attacks. Id. at 90a.

And while “Hezbollah-affiliated individuals were [directly] involved in 22 out of the 300-plus attacks at

issue,” the court found that for more than 300 other attacks, respondents’ allegations suggest that Hezbollah

offered only “general support,” not that it “ ‘planned’ or

‘authorized’ ” the attacks. Id. at 90a-91a (citation omitted).

The district court further determined that “[e]ven if ”

respondents adequately alleged the involvement of a

designated foreign terrorist organization, their allegations still would not suffice for aiding-and-abetting liability. Pet. App. 93a. The court concluded that petitioners’ alleged provision of “general [financial] support” to

Jaysh al-Mahdi “through their contracts with the

Ministry”—actions petitioners took without any “desire” to help Jaysh al-Mahdi commit terrorist attacks—

could not be considered the knowing provision of substantial assistance to the attacks that injured respondents. Id. at 94a-95a.

4. The court of appeals reversed. Pet. App. 1a-66a.

On direct liability, the court of appeals held that respondents adequately pleaded proximate causation by

alleging that petitioners’ alleged support to Jaysh alMahdi was a “substantial factor” in causing respondents’ injuries and that those injuries were “reasonably

foreseeable or anticipated natural consequences of [petitioners’] assistance.” Pet. App. 43a, 45a (citation and

internal quotation marks omitted). In the court’s view,

petitioners’ efforts to frame the Ministry as an independent intermediary that breaks the causal chain “rest

on an untenably skeptical reading of the complaint,”

which alleges that the Ministry “had been overtaken by

terrorists.” Id. at 44a-45a.

With respect to secondary liability, the court of appeals held that respondents “plausibly allege that Hezbollah both planned and authorized the attacks.” Pet.

App. 23a. The court determined that the complaint’s

“detail[ed]” allegations that Hezbollah provided “weaponry, training, and knowledge to Jaysh al-Mahdi with

the intent of harming Americans in Iraq constitute a

‘plan.’ ” Id. at 25a. And “allegations that Hezbollah exerted religious, personal, and operational authority

over Jaysh al-Mahdi show that it ‘authorized’ the attacks as well.” Id. at 26a.

The court of appeals further held that respondents

adequately alleged that petitioners “ ‘aid[ed] and

abet[ted], by knowingly providing substantial assistance’ to ‘act[s] of international terrorism.’ ” Pet. App.

27a (quoting 18 U.S.C. 2333(d)(2)) (brackets in original).

The court applied the three-part test described in Halberstam. Ibid.; see 705 F.2d at 477. The court explained

that there was no dispute as to the first element—that

wrongful acts caused respondents’ injuries. Pet. App.

28a. As to the second element—whether respondents

were “generally aware” of their role “as part of an overall illegal or tortious activity,” Halberstam, 705 F.2d at

477—the court determined that “the corrupt provision

of free goods and cash bribes to” Jaysh al-Mahdi, a

known terrorist group, “supports the inference that [petitioners] were generally aware of their role in activity

foreseeably lending support to acts of international terrorism.” Pet. App. 31a.

Turning to the third element of knowing and substantial assistance, the court of appeals stated that because petitioners did not “argue that their provision of

cash and free goods was in any way accidental, * * * the

assistance was given knowingly.” Pet. App. 32a. The

court then addressed the “six ‘substantial assistance’

factors” identified in Halberstam. Ibid. The court determined that, on balance, those factors supported a

finding of substantial assistance. The court found that

the “nature of the act assisted,” the “ ‘amount and kind

of assistance,’ ” petitioners’ “state of mind,” and the

“duration” of their assistance supported a finding of

substantial assistance; that petitioners’ lack of “ ‘presence at the time of the tortious conduct’ ” counseled

against such a finding; and that the relationship between petitioners and “the principal tortfeasors” supported neither party. Id. at 32a-37a (capitalization, citation, and emphasis omitted).

C. This Court’s Decision In Taamneh

More than two months after the D.C. Circuit denied

petitioners’ petition for rehearing en banc, see Pet. App.

1a, this Court decided Twitter, Inc. v. Taamneh, 598

U.S. 471 (2023). In Taamneh, victims of a terrorist attack carried out by ISIS sued Facebook, Twitter, and

Google (which owns YouTube), alleging that the socialmedia companies knew that ISIS used their services to

recruit new terrorists and raise funds for terrorism but

failed to take sufficient actions to stop ISIS from doing

so. See id. at 478-482. Considering the scope of ATA

liability for the first time, this Court held that the plaintiffs’ allegations failed to state a claim that the companies aided and abetted the relevant terrorist attack. Id.

at 478, 497-507. In so holding, Taamneh provided significant guidance on how the common-law factors articulated in Halberstam apply under the ATA.

DISCUSSION

The United States condemns in the strongest terms

the terrorist acts that caused respondents’ injuries and

sympathizes with the profound loss respondents have

suffered. The court of appeals’ decision, however, was

rendered without the benefit of this Court’s guidance in

Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023). That intervening decision clarified the standard for aiding-andabetting liability under the ATA in ways that may bear

on the court of appeals’ analysis. Consistent with its

usual practice, this Court should therefore grant the petition for a writ of certiorari, vacate the judgment below, and remand for further proceedings in light of

Taamneh. In the view of the United States, the other

questions presented in the petition for a writ of certiorari do not warrant this Court’s plenary review at this

time.

A. THIS COURT SHOULD GRANT, VACATE, AND REMAND IN LIGHT OF TAAMNEH

1. This Court routinely grants certiorari, vacates

the decision below, and remands (GVRs) the case when

“intervening developments * * * reveal a reasonable

probability that the decision below rests upon a premise

that the lower court would reject if given the opportunity for further consideration.” Lawrence v. Chater,

516 U.S. 163, 167 (1996) (per curiam); see Stutson v.

United States, 516 U.S. 193, 196 (1996) (per curiam).

Most relevant here, a GVR is appropriate when this

Court issues a decision “after the decision under review” that “change[s] or clarifie[s] the governing legal

principles in a way that could possibly alter the [lower

court’s] decision.” Flowers v. Mississippi, 579 U.S. 913,

913 (2016) (Alito J., dissenting). The Court need not be

certain that the court of appeals will reach a different

result on remand. Rather, “[i]t is precisely because of

uncertainty” regarding the effect of a legal development “that [this Court] GVR[s].” Lawrence, 516 U.S. at

172; see id. at 174.

2. This case satisfies the criteria for a GVR in light

of Taamneh. While Taamneh reaffirmed the general

common-law principles that have long governed aidingand-abetting claims, see 598 U.S. at 493-494, it clarified

those principles’ application to ATA claims in ways that

could affect the court of appeals’ view of this case.

a. Taamneh emphasized the common law’s recognition of “the need to cabin aiding-and-abetting liability

to cases of truly culpable conduct,” 598 U.S. at 489, and

thus to avoid “sweep[ing] in innocent bystanders as well

as those who gave only tangential assistance,” id. at 488.

The Court explained that the ATA’s requirement that a

secondary defendant “knowingly provide[] substantial

assistance” to an act of international terrorism “rest[s]

on the same conceptual core that has animated aidingand-abetting liability” under the common law: that secondary liability is appropriate where a defendant “consciously and culpably ‘participate[d]’ in a wrongful act

so as to help ‘make it succeed.’ ” Id. at 493, 506 (citation

omitted; second set of brackets in original) (quoting 18

U.S.C. 2333(d)(2) and Nye & Nissen v. United States,

336 U.S. 613, 619 (1949)).

Applying that standard, this Court unanimously held

that the complaint in Taamneh fell “far short” of plausibly alleging an aiding-and-abetting claim under the

ATA. 598 U.S. at 505. The Ninth Circuit had held that

the plaintiffs plausibly stated an aiding-and-abetting

claim because the social-media companies were generally aware that ISIS made use of their platforms to aid

in its recruitment and expansion and the companies did

not take sufficient steps to prevent that use. Ibid. But

this Court observed that the plaintiffs had not alleged

that the defendants’ social-media platforms were used

to plan the specific act of international terrorism on

which the plaintiffs based their claims of injury. And

the Court further explained that the defendants’

general awareness that members of ISIS relied upon

those platforms for recruitment and fundraising, in

much the same way millions of other people used the

platforms, did not establish that the social-media companies “consciously, voluntarily, [or] culpably participate[d]” in the attack. Ibid.; id. at 498 (“None of [plaintiffs’] allegations suggest that defendants culpably ‘assoc[iated themselves] with’ the Reina attack, ‘participate[d] in it as something that [they] wishe[d] to bring

about,’ or sought ‘by [their] action to make it succeed.’ ”)

(quoting Nye & Nissen, 336 U.S. at 619) (first alteration

added); see generally id. at 497-505.

b. In so holding, this Court explained that the Ninth

Circuit’s contrary determination rested on several errors regarding the knowing-and-substantial-assistance

analysis. Taamneh, 598 U.S. at 503-506. Although the

conduct alleged in this case, and the court of appeals’

analysis, differ in a number of respects from Taamneh,

this Court’s guidance could affect the outcome of respondents’ aiding-and-abetting claims in several ways.

i. Taamneh explained that the Ninth Circuit erred

in “fram[ing] the issue of substantial assistance as turning on [the social-media platforms’] assistance to ISIS’s

activities in general,” rather than the specific attack

that injured the plaintiffs. 598 U.S. at 503. Aiding-andabetting liability requires some nexus between the alleged assistance and the specific tort in question. Id. at

494-496; see, e.g., Metge v. Baehler, 762 F.2d 621, 624

(8th Cir. 1985), cert. denied, 474 U.S. 1057, and 474 U.S.

1072 (1986); Aetna Cas. & Sur. Co. v. Leahey Const. Co.,

219 F.3d 519, 537 (6th Cir. 2000); Restatement (Second)

of Torts § 876 cmt. d (1970). And because the “twin requirements” of knowing and substantial assistance

“work[] in tandem, with a lesser showing of one

demanding a greater showing of the other,” Taamneh,

598 U.S. at 491-492, the “plaintiffs’ failure to allege any

definable nexus” between the social-media companies’

“assistance” and the relevant attack, “at minimum[,]

drastically increase[d] their burden to show that defendants somehow consciously and culpably assisted

the attack.” Id. at 503; see id. at 506.

Like the Ninth Circuit’s decision in Taamneh, the

decision below at times focuses on petitioners’ alleged

assistance to Jaysh al-Mahdi in general, rather than the

terrorist attacks that injured respondents. See, e.g.,

Pet. App. 32a, 33a, 39a-40a. To be sure, the D.C. Circuit

stated that knowingly providing “[s]ubstantial assistance to the ultimate deed” suffices for liability. id. at

39a; see Br. in Opp. 17. But the court did not undertake

to trace a “definable nexus” between the funds and medical goods petitioners supplied to the Ministry, on the

one hand, and the attacks that injured respondents, on

the other. Taamneh, 598 U.S. at 503. As this Court

noted in Taamneh, that does not necessarily defeat secondary liability: “more remote support can still constitute aiding and abetting in the right case.” Id. at 496.

But to the extent respondents have not alleged a close

nexus between petitioners’ aid and any particular attack, Taamneh requires a greater showing of “culpable

participation through intentional aid that substantially

furthered the tort.” Id. at 506. Ruling before Taamneh,

the court of appeals did not expressly apply a standard

that assessed whether petitioners’ actions entailed “culpable participation.” Ibid.

Similarly, Taamneh acknowledged that a secondary

defendant could be liable for all of a group’s terrorist

attacks, but only where—as in Halberstam—the secondary defendant’s participation in an overall course of

conduct was so “pervasive, systemic, and culpable” as to

form a “near-common enterprise.” 598 U.S. at 502. To

the extent respondents’ theory would hold petitioners

liable for all or a broad swath of Jaysh al-Mahdi’s acts

of international terrorism during the relevant period,

the court of appeals did not address whether respondents’ allegations meet the demanding standard that

Taamneh subsequently articulated.1

ii. Taamneh also faulted the Ninth Circuit for “separat[ing] the ‘knowing and ‘substantial [assistance]’

subelements” and “analyz[ing] the ‘knowing’ subelement as a carbon copy” of general awareness. 598 U.S.

at 503-504 (citation omitted). Instead, the knowing and

substantial assistance components “ ‘should be considered relative to one another’ as part of a single inquiry

designed to capture conscious and culpable conduct.”

Id. at 504 (citation omitted). The “ ‘knowing’ ” requirement is “designed to capture the defendants’ state of

mind with respect to their actions and the tortious conduct (even if not always the particular terrorist act), not

Respondents suggest (Br. in Opp. 17-18) that the court of appeals applied the correct nexus standard because “Jaysh al-Mahdi’s

attacks on respondents were the foreseeable result of petitioners’

funding.” That misunderstands the role of foreseeability under the

common law and the ATA, as explained in Taamneh. “As Halberstam makes clear, people who aid and abet a tort can be held

liable for other torts that were ‘a foreseeable risk’ of the intended

tort.” Taamneh, 598 U.S. at 496 (emphasis added; citation omitted).

Thus, in Halberstam, the defendant could be held liable for her partner’s killing of a burglary victim, which was a foreseeable consequence of the series of burglaries she aided and abetted. Id. at 487,

495-496. The foreseeability of an attack is not a substitute for finding that the secondary defendant aided and abetted that attack (or

a number of attacks) by providing knowing and substantial assistance.

the same general awareness that defines Halberstam’s

second element.” Ibid.

The court of appeals here made similar errors. The

court stated that if petitioners “ ‘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.” Pet. App.

32a (quoting Kaplan v. Lebanese Canadian Bank, SAL,

999 F.3d 842, 864 (D.C. Cir. 2021)). And because petitioners did not “argue that their provision of cash and

free goods was in any way accidental,” the court determined that “the assistance was given knowingly.” Ibid.

The court of appeals addressed knowledge a second

time, when it turned to “weigh[ing] [Halberstam’s] six

‘substantial assistance’ factors.” Pet. App. 32a. One of

those factors is the defendant’s “state of mind”; the

court determined that “[t]his factor favors aiding-andabetting liability because [petitioners’] 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 34a (capitalization and emphasis omitted). That determination rested on the court’s conclusion that respondents adequately alleged that petitioners “would have been aware” of news reports of Jaysh

al-Mahdi’s infiltration of the Ministry, which made it

plausible that petitioners were “generally aware” that

the “free goods and cash bribes” they gave to Ministry

officials could be put to terrorist ends. Id. at 30a-31a.

Taamneh makes clear that this approach—which focuses on petitioners’ general awareness of the relationship between their actions and a terrorist organization’s

overall scheme, and not specifically on the central

question whether petitioners consciously, voluntarily,

and culpably participated in that scheme—is “incorrect.” 598 U.S. at 504. Instead, the appropriate inquiry

is whether petitioners’ payments to the Ministry were

“significant and culpable enough to justify attributing”

to them several hundred terrorist attacks committed after Jaysh al-Mahdi appropriated those funds. Ibid.

Again, it is unclear to what extent the court of appeals’

analysis and conclusion are consistent with that standard.

iii. Finally, Taamneh explained that the Ninth Circuit focused too intensely on comparing the facts alleged in that case to the components of Halberstam’s

legal framework. Taamneh, 598 U.S. at 503-504. The

Court observed that the ATA cites Halberstam approvingly as an informative example of how to analyze

claims that a defendant aided and abetted an act of terrorism. Id. at 485-486. But that general approval does

not require courts to “hew tightly to the precise formulations that Halberstam used.” Id. at 493. Instead,

Halberstam is “by its own terms a common-law case and

provided its elements and factors as a way to synthesize

the common-law approach to aiding and abetting.” Ibid.

The “point” of the Halberstam “factors is to help courts

capture the essence of aiding and abetting: participation in another’s wrongdoing that is both significant and

culpable enough to justify attributing the principal

wrongdoing to the aider and abettor.” Id. at 504.

Like the Ninth Circuit in Taamneh, the court of appeals here largely analyzed the substantial-assistance

factors “as a sequence of disparate, unrelated considerations.” Taamneh, 598 U.S. at 504. And, as in Taamneh,

the court’s analysis focused “primarily on the value of ”

petitioners’ alleged aid to Jaysh al-Mahdi, “rather than

whether [petitioners] culpably associated themselves

with” Jaysh al-Mahdi’s (or Hezbollah’s) actions. Ibid.;

see Pet. App. 37a (focusing on the importance of petitioners’ alleged support to Jaysh al-Mahdi’s development). A GVR is thus appropriate to ensure that the

court of appeals has not “elided the fundamental question of aiding-and-abetting liability: Did [petitioners]

consciously, voluntarily, and culpably participate in or

support the relevant wrongdoing?” Taamneh, 598 U.S.

at 505.

3. Respondents’ remaining arguments against a

GVR are unpersuasive.

a. Respondents contend (Br. in Opp. 13-14) that a

GVR is not warranted because Taamneh “all-butexpressly endorsed liability” under the circumstances

here. Specifically, respondents point out that this Court

distinguished between a secondary defendant’s “passive nonfeasance” and “active malfeasance,” id. at 13

(citation omitted), and the Court acknowledged that, in

an appropriate case, conscious and culpable participation in terrorist activities could be inferred when a business provided routine services in an “unusual” way,

Taamneh, 598 U.S. at 502; see U.S. Amicus Br. at 22-23

n.1, Taamneh, supra (No. 21-1496) (stating that “atypical business transactions” are relevant to whether a

court may infer knowing and substantial assistance).

Taamneh observed that where defendants offer unusual assistance that is “more direct, active, and substantial,” plaintiffs “might be able to establish liability with

a lesser showing of scienter.” 598 U.S. at 502.

To be sure, respondents allege affirmative, atypical

transactions that, they maintain, distinguish this case

from Taamneh. Critically, however, Taamneh did not

approve imposing liability whenever a plaintiff can

identify an atypical transaction with an organization

that affiliates with terrorists. See 598 U.S. at 502 (declining to “consider every iteration on this theme”).

And additional aspects of respondents’ theory of liability may complicate the question whether it is appropriate to draw an inference of conscious and culpable participation from the transactions at issue here.

Most notably, respondents do not allege that petitioners “direct[ly] channel[ed]” resources to a designated foreign terrorist organization. U.S. Amicus Br.

at 34, Tammneh, supra (No. 21-1496); see Br. in Opp.

18 (relying on this portion of the government’s brief ).

Rather, petitioners allegedly provided cash bribes and

excess goods to Ministry officials, generally pursuant to

standard conditions and express contracts with the

Ministry in the service of the Ministry’s legitimate programs. See, e.g., Pet. App. 88a; TAC ¶¶ 120, 142. Respondents allege that a portion of the bribes was then

paid to Jaysh al-Mahdi as part of a religious tax, TAC

¶ 144, and that the free goods were misappropriated by

Jaysh al-Mahdi agents within the Ministry who sold the

goods on the black market to fund Jaysh al-Mahdi’s operations, TAC ¶¶ 107, 128.

Assuming, as the court of appeals did, that petitioners were aware that the Ministry operated as a proxy

for Jaysh al-Mahdi and that Jaysh al-Mahdi regularly

misappropriated Ministry funds to violent ends, Jaysh

al-Mahdi is not—and has never been—designated as a

foreign terrorist organization under 8 U.S.C. 1189. 2

The Secretary of State’s decision whether to designate a group

as a foreign terrorist organization has significant consequences, including criminal penalties for those who provide “material support

or resources” to that organization. 18 U.S.C. 2339B(a)(1). The U.S.

government generally does not comment on the reasoning under2

Respondents’ theory of liability therefore depends upon

allegations that Hezbollah planned or authorized the relevant attacks. Under respondents’ theory, petitioners

are secondarily liable because they transacted with the

Ministry, which served as a proxy for Jaysh al-Mahdi,

which in turn served as a proxy for Hezbollah. Taamneh

provides that the ultimate question is whether the totality of these circumstances—including the extent of petitioners’ alleged knowledge about Hezbollah’s reliance on

Jaysh al-Mahdi’s use of Ministry resources to engage in

acts of international terrorism jointly committed,

planned, or authorized by Hezbollah—is sufficient to

show that respondents consciously, voluntarily, and culpably participated in such attacks. A GVR is appropriate

to determine whether respondents’ pleading meets that

standard.3

pinning any decision whether to designate a particular group, but a

variety of policy considerations can inform that determination, including diplomatic considerations about broader regional relationships and the need to engage diplomatically with a group, as well as

concerns that a designation will inhibit private investment in regions

experiencing humanitarian crises. Cf. Press Statement, Anthony J.

Blinken, Secretary of State, U.S. Dep’t of State, Revocation of the

Terrorist Designations of Ansarallah (Feb. 12, 2021),

https://www.state.gov/revocation-of-the-terrorist-designations-ofansarallah/. The ATA’s imposition of secondary liability only for

acts of international terrorism that are “committed, planned, or authorized” by a designated foreign terrorist organization, 18 U.S.C.

2333(d)(2), preserves the federal government’s ability to effectively

promote these foreign policy priorities.

Respondents suggest (Br. in Opp. 14) that in Taamneh, the

United States “explicitly support[ed] respondents’ claims here.”

But the portion of the government’s brief that respondents cite

states only that “courts have found [the] knowing-and-substantial

assistance requirement more easily met where defendants engaged

in transactions outside the regular course of business.” U.S. Amicus

b. Respondents briefly contend (Br. in Opp. 23) that

a GVR will not change the outcome of the litigation because their complaint also includes direct-liability

claims. But petitioners reasonably assert (Pet. 17) that

if their actions lacked a sufficiently close nexus to support aiding-and-abetting liability, respondents necessarily will be unable to demonstrate the proximate causation required for direct liability. In any event, as petitioners point out (Reply Br. 6), this Court may in some

circumstances GVR when an intervening decision affects fewer than all claims.

c. Finally, respondents suggest that the “equities of

the case” counsel against a GVR, on the theory that “the

delay and further cost entailed in a remand are not justified by the potential benefits of further consideration.” Br. in Opp. 24 (quoting Lawrence, 516 U.S. at

168). But as already discussed, there is a reasonable

possibility that a remand will affect the court of appeals’

decision. And while further delay in this long-pending

case is unfortunate, the court of appeals may seek to

minimize any delay on remand.

B. PLENARY REVIEW IS NOT WARRANTED AT THIS

TIME

Petitioners urge (Pet. 16) that “[i]f this Court does

not [GVR],” it should grant certiorari on two other

questions presented. No further review of those questions is warranted.

Br. at 22, Taamneh, supra (No. 21-1496); cf. Tr. of Oral Arg. at 81,

Taamneh, supra (No. 21-1496) (government counsel acknowledging

that the relevant allegations in this case suggest a “degree of culpability,” without “necessarily saying” whether the decision below was

“right or wrong”). In any event, the government’s statements in

Taamneh were made without the benefit of this Court’s subsequent

decision in that case.

1. Focusing on respondents’ direct-liability claims,

petitioners urge (Pet. i (Question 2), 17-20) this Court

to decide whether respondents adequately allege that

petitioners’ dealings with Jaysh al-Mahdi proximately

caused respondents’ injuries. Specifically, petitioners

contend that proximate causation requires “a direct

link” between a defendant’s actions and the attack that

causes the plaintiff ’s injuries, and they assert that other

courts of appeals have held that a defendant’s transactions with foreign states—including state sponsors of

terrorism—break the chain of causation. Pet. 17-18 (citing Rothstein v. UBS AG, 708 F.3d 82, 97 (2d Cir. 2013);

Kemper v. Deutsche Bank AG, 911 F.3d 383, 393 (7th

Cir. 2018)).

No further review of that issue is warranted at this

time. The decision below articulates generally accepted

legal principles governing causation in the context of

the particular and unusual allegations in this case—

namely, that the Ministry was controlled by Jaysh alMahdi. See Pet. App. 41a-48a. The court of appeals’

fact-specific determination does not create a division

with other courts of appeals.

2. With respect to aiding-and-abetting liability, petitioners urge (Pet. i (Question 3), 20-23) review of the

question whether respondents plausibly allege that

Hezbollah planned or authorized the attacks at issue.

In support, petitioners rely on other courts’ holdings

that “[a] designated organization’s general support or

encouragement to the attackers does not suffice.” Pet.

20; see Pet. 21-22 (citing cases).

Here, however, petitioners “acknowledge” that Hezbollah worked closely with Jaysh al-Mahdi to plan and

commit 22 of the attacks at issue. Pet. App. 20a; see

Reply Br. 10 n.1. And as to the other attacks, the court

of appeals determined that respondents’ complaint “describes in detail” Hezbollah’s alleged “deep and far

reaching” coordination with and support for Jaysh alMahdi during the relevant period. Pet. App. 23a, 25a.

The court’s determination that those allegations are

sufficient to plausibly allege that Hezbollah “planned”

or “authorized” the attacks that injured respondents

does not conflict with the decision of any other court of

appeals: The allegations as pled could be taken to

amount to more than a “designated organization’s general support or encouragement to the attackers.” Pet.

20. And the court’s consideration, on remand, of the

aiding-and-abetting claim in light of Taamneh could obviate the need for further review of this issue. The third

question presented thus does not warrant this Court’s

plenary review at this time.

CONCLUSION

The petition for a writ of certiorari should be

granted, the court of appeals’ judgment vacated, and

the case remanded for further consideration in light of

Taamneh.

Respectfully submitted.