In Terror Case, DC Circ. Must Weigh Justices' Twitter Ruling
On Nov. 19, the U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument in AstraZeneca UK Ltd. v. Atchley, a case which is likely to have a significant impact on actions brought under the Anti-Terrorism Act and Justice Against Sponsors of Terrorism Act.
AstraZeneca follows the U.S. Supreme Court's 2023 opinion in Twitter Inc. v. Taamneh, which reframed and refocused the aiding and abetting inquiry regarding the defendant's assistance to an underlying terror attack, and held that a defendant must commit some act showing "conscious, voluntary, and culpable participation in another's wrongdoing" so as to help make the attack succeed.[1]
How courts interpret Taamneh's guidance will have a significant impact on numerous new claims, and likely future claims, arising from the Oct. 7, 2023, Hamas attack on Israel and the subsequent Gaza war, as well as civil violence in Latin America.[2]
There is a trend in ATA and JASTA cases — which are often politically charged — to have a very low standard for imposing culpability. The high court's Taamneh decision signals disapproval of this approach. This is significant for charities, financial institutions and multinationals.
Path to Remand
In AstraZeneca, U.S. nationals who were victims of terrorist attacks in Iraq and their families asserted ATA direct liability and aiding-and-abetting claims against AstraZeneca and other pharmaceutical and medical device companies, because they allegedly supplied goods and payments in a corrupt manner to the Iraqi Ministry of Health.
The goods and payments were then allegedly diverted to a terrorist organization to ultimately fund the attacks. The U.S. District Court for the District of Columbia dismissed, and the D.C. Circuit reversed; the defendants then turned to the Supreme Court.
While the defendants were preparing their petition for certiorari, the Supreme Court decided Taamneh and articulated a conceptual core for the aiding-and-abetting test, boiling it down to a single inquiry: "Did the defendant consciously, voluntarily, and culpably participate in or support the relevant wrongdoing?"
To help it determine whether to grant the petition, the Supreme Court invited the solicitor general to provide her views, marking the first time the federal government weighed in on the post-Taamneh ATA/JASTA aiding-and-abetting standard.[3] The solicitor general's brief identified several errors in the D.C. Circuit's opinion where it deviated from the inquiry articulated in Taamneh.
First, the D.C. Circuit "focuse[d] on petitioners' alleged assistance to [the terrorist group] in general, rather than the [specific] terrorist attacks that injured respondents." In other words, it failed to "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."[4]
Second, the D.C. Circuit separated the "knowing" and "substantial assistance" elements instead of considering them together, and then watered down the knowing element by focusing on "petitioners' general awareness of the relationship between their actions and a terrorist organization's overall scheme," not on "whether petitioners consciously, voluntarily, and culpably participated in that scheme."[5]
Third, the D.C. Circuit's mechanical application of six substantial assistance factors contradicted Taamneh.[6] Those factors, derived from the D.C. Circuit's 1983 ruling in Halberstam v. Welch,[7] are not requirements in themselves, but an "informative example" meant 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."[8] A mechanical application of the factors fails this analysis.
In June, the Supreme Court responded by summarily granting the petition for certiorari, vacating the underlying judgment and remanding the case to the D.C. Circuit.[9]
Briefing Before the D.C. Circuit
Since remand, the parties and amici have filed multiple briefs. The dispute now centers on whether the plaintiffs must show that the defendants intended to facilitate the attacks that injured them, and the nexus between the defendants' actions and those attacks.
This controversy is highlighted in the defendants' recent filing asserting that "[u]nder Taamneh, lack of intent to support the wrongdoing — i.e., terrorism — carries significant weight against liability,"[10] and "attack-specific links are required, absent pervasive, systemic, and culpable aid."[11]
For their part, the plaintiffs now argue that active "claims require neither terroristic intent nor a direct nexus between each fungible dollar given and each individual attack committed," adding that "[i]f the Act is to mean anything, it must mean at least that companies cannot bribe terrorists they know are murdering Americans down the street."[12]
The plaintiffs tease out additional theories from Taamneh. They argue that:
- The bribes entailed affirmative conduct done under unusual — i.e., corrupt — circumstances that give rise to culpability, unlike YouTube and Twitter in Taamneh, who passively let their algorithms run in the same way for all users;
- Knowledge, not intent, is enough for liability where there is affirmative conduct that is both wrong (bribe-giving) and substantial (tens of millions dollars); and
- A nexus was pled because "a terrorist funder culpably participates in the foreseeable attacks its resources help finance," or, in the alternative, because their bribes were so massive they were pervasively and systemically involved with the terrorists such that they are liable for acts the terrorists committed.[13]
The defendants respond that:
- The plaintiffs have not pled any support for terror, but an intent to obtain corrupt contracts;
- There is no link between the defendants and any specific attack;
- Unusual conduct "is relevant only insofar as it supports an inference that the defendant consciously and culpably participated in the underlying tort;"
- "Allegations of even deliberate commercial bribery do not support any inference of conscious and culpable participation in terrorism;" and
- "There is nothing about money or medical goods that inherently demonstrates conscious, culpable participation in terrorism."[14]
Three amicus briefs, one filed by legal scholars, another by a consortium of NGOs, and another by the U.S. Chamber of Commerce, are also worthy of note on this significant issue. Professor Stephen Vladeck, on behalf of 10 legal scholars, argues that the defendants' argument that the statute requires proof that "defendants intended to facilitate specific acts of international terrorism" effectively reads secondary liability out of the ATA, contrary to Taamneh.[15]
The Charity & Security Network, a resource center for nonprofits, argues that the plaintiffs' theories holding defendants liable for providing funds and medical equipment to a nondesignated or nonsanctioned ministry would open the door for similar allegations against NGOs providing services in similarly positioned fragile states, and frustrate U.S. foreign policy decisions.[16]
The Chamber of Commerce brief argues, among other things, that Taamneh adopted a far more demanding standard by requiring that:
- The knowing and substantial assistance elements be considered in tandem and inversely, such that a less substantial assistance requires more scienter to infer conscious and culpable assistance;
- JASTA's requirement of knowing provision of substantial assistance be separate from, and more demanding than, the "general awareness" element of a JASTA aiding-and-abetting claim; and
- Courts consider the six Halberstam factors, not as disparate and unrelated considerations, but as tools to capture the essence of aiding and abetting, which is the participation in another's wrongdoing that is both significant and culpable enough to justify attributing the principal wrongdoing to the aider and abettor.[17]
How the D. C. Circuit Construes Taamneh
It will be significant to see how a respected appellate court construes Taamneh, as this is likely to have an impact on how other courts are likely to apply it.
Lower courts have tended to be sympathetic to ATA and JASTA plaintiffs, and to have imposed vague and general standards that often threaten liability for entities and institutions that are performing their normal functions.
Whether courts will make these entities de facto guarantors or only impose liability for those entities that purposefully support terrorism will drive patterns of litigation in this important area in the future.
Jon Gryskiewicz is a partner and Alexander Bedrosyan is an associate at Lewis Baach Kaufmann Middlemiss PLLC.
Chair Eric Lewis and managing partner Aisha Bembry contributed to this article.
[1] Twitter Inc. v. Taamneh, 598 U.S. at 493.
[2] See, e.g., Complaint, Lavi v. UNRWA USA Nat'l Comm. Inc., No. 1:24-cv-00312-RGA (D. Del. Mar. 8, 2024); Complaint, Parizer v. AJP Educ. Found. Inc., No. 1:24-cv-00724-RDA-IDD (E.D. Va. May 1, 2024); Stansell v. Revolutionary Armed Forces of Colombia (FARC), No. 16-mc-00405 (LGS) (SN), 2022 WL 2530359 (S.D.N.Y. March 29, 2022).
[3] Br. for U.S. as Amicus Curiae, AstraZeneca UK Ltd. v. Atchley, No. 23-9 (U.S. May 21, 2024), https://www.supremecourt.gov/DocketPDF/23/23-9/310318/20240521145908974_23-9%20AstraZeneca.pdf.
[4] Id. at 14.
[5] Id. at 15-17.
[6] See Halberstam v. Welch, 705 F.2d 472, 483-84 (D.C. Cir. 1983).
[7] 705 F.2d 472 (D.C. Cir. 1983).
[8] Brief for U.S., supra note 3, at 17.
[9] AstraZeneca UK Ltd. v. Atchley, 144 S. Ct. 2675 (2024).
[10] Suppl. Reply Br. for Defendants-Appellees at 4, Atchley v. AstraZeneca UK Ltd., No. 20-7077 (D.C. Cir. Sept. 16, 2024), 2024 WL 4215488 (internal quotations omitted).
[11] Id. at 13.
[12] Suppl. Reply Br. For Plaintiffs-Appellants, supra note 10, at 2 (Sept. 16, 2024), 2024 WL 4215486.
[13] See id. at 3-11; Pls.' Suppl. Br., supra note 10, at 9-15 (Aug. 26, 2024), 2024 WL 3949634.
[14] Defs.' Suppl. Reply Br., supra note 10, at 3-10.
[15] Suppl. Br. of Law Professors as Amici Curiae in Support of Plaintiffs-Appellants, supra note 10, at 3 (Sept. 9, 2024), 2024 WL 4182932.
[16] Corrected Br. of Amicus Curiae Charity & Security Network in Support of Defendants-Appellees, supra note 10, at 10-17 (Sept. 5, 2024), 2024 WL 4110488.
[17] Br. of the Chamber of Commerce of the U.S.A. as Amicus Curiae in Support of Defendants-Appellees, supra note 10, at 5-10 (Sept. 3, 2024), 2024 WL 4041154.