Here’s Hoping 2.0 | Drug & Device Law

Last July we published a “Here’s Hoping” post that maybe the terrible decision in Atchley v. AstraZeneca UK Ltd., 22 F.4th 204 (D.C. Cir. 2022), allowing drug companies to be sued for purportedly “aiding and abetting” international terrorists (see our takedown of Atchley here), would fall in light of the Supreme Court’s then very recent Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023), decision.  As we argued in Here’s Hoping, the broad version of aiding and abetting in Atchley was “not anywhere near” the tougher standard adopted in Taemneh that requires:  (1) “conscious, voluntary, and culpable participation” in (2) a specific “ act of international terrorism.”  Id. at 493, 495.

We thus opined in Here’s Hoping that Taamneh should result in a “GVR” – Supreme Court lingo for granting certiorari, vacating Atchley in light of Taamneh, and remanding for the District of Columbia Circuit to get it right next time.  But who are we?  We’re nobody in particular, just some blogging defense hacks.

But the Solicitor General of the United States is not nobody.  Sometimes called the “Tenth Justice” for having such a close relationship with the Court, the Solicitor General argues for the federal government in almost every Supreme Court case involving the United States, and even has an office in the in the Supreme Court building.  In Atchley, the Court asked the Solicitor General for the views of the United States.

Last month, the Solicitor General agreed with us about Atchley, filing an amicus curiae (friend of the court) brief supporting the defendants’ request to grant, vacate and remand.

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).

Brief for the United States as Amicus Curiae, in AstraZeneca UK Ltd. v. Atchley, No. 23-9 (filed May, 2024).

Taamneh satisfied the usual standard for GVR because it occurred “after the decision under review” and “change[d] or clarifie[d] the governing legal principles in a way that could possibly alter” the decision in Atchley.  Amicus brief at 11 (citation and quotation marks omitted).

Taamneh emphasized the common law’s recognition of “the need to cabin aiding-and-abetting liability to cases of truly culpable conduct,” and thus to avoid “sweep[ing] in innocent bystanders as well as those who gave only tangential assistance”. . . .   [The statute’s] require[s that] . . . a defendant “consciously and culpably participate[d] in a wrongful act so as to help make it succeed.”

Id. at 12 (quoting Taamneh, other citations and quotation marks omitted).

Contrary to Taamneh, the Atchley plaintiffs alleged only “general” assistance through extorted bribes without a “definable nexus” to the particular acts of terrorism “that injured respondents.”  Id. at 14.

To the extent respondents’ theory would hold petitioners liable for all or a broad swath of . . .  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.

Id. at 15.  Thus, Atchley “made similar errors” to what the Court identified in Taamneh.  Id. at 16.  Atchley’s “focus[] on petitioners’ general awareness” was “incorrect.”  Id. at 16-17.  Therefore:

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?”

Id. at 18 (quoting Taamneh).  Moreover, the District of Columbia Circuit erred in other ways, such as equating the terrorist group that allegedly received the bribes with a different group – which was also essential to plaintiffs’ claims because the statute was only directed at the second group.  Id. at 20.

Thus, we’re even more hopeful than before that Atchley will be vacated and that the anti-terrorism statute involved will not be misdirected against legitimate pharmaceutical companies, rather than actual terrorists and their supporters, simply because a judgment would be easier to collect.