News Release
May 15, 2024
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ALF Urges Supreme Court To Review & Reject Expansive View of Product Manufacturers’ Civil Aiding-and-Abetting Liability
Question Presented:
Whether U.S. manufacturers can be held liable for “social costs” allegedly incurred by a foreign government as a result of its inability to prevent its own citizens from illegally obtaining and criminally misusing products that the defendants lawfully produced, marketed, and distributed within the United States.
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"The First Circuit's expansive and erroneous view of civil aiding-and-abetting liability potentially affects any manufacturer of any product that can be misused for an unlawful purpose."
— Atlantic Legal Foundation
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The Mexican government has sued heavily regulated U.S. firearms manufacturers for $10 billion in damages and sweeping injunctive relief to redress “social costs” that it alleges to have incurred as a result of gun violence in Mexico. According to Mexico’s complaint, filed in Massachusetts federal district court, the defendant manufacturers have knowingly “aided and abetted” Mexican drug cartels, which have smuggled American-made firearms into that country, and “proximately caused” the violence that the drug cartels have perpetrated there.
Case Background
The district court dismissed Mexico’s action based on the broad immunity-from-suit that Congress has afforded to U.S. firearms manufacturers under the Protection of Lawful Commerce in Arms Act,15 U.S.C. § 7903(5)(a)(iii). But a First Circuit panel reversed, holding that the litigation can proceed because Mexico’s allegations are “not implausible.” The firearms manufacturers have filed a certiorari petition in Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, No. 23-1141, seeking Supreme Court review.
ALF has filed an amicus brief supporting the petitioners, especially in view of the broad potential ramifications of the First Circuit’s opinion for manufacturers of any type of product that has been, or can be, criminally misused. The amicus brief was co-authored by ALF Executive Vice President & General Counsel Lawrence Ebner and John Parker Sweeney, a senior partner, and product liability and firearms litigation specialist, at Bradley Arant Boult Cummings LLP.
ALF's Amicus Brief
ALF’s brief focuses on the First Circuit’s expansive, aberrant, and erroneous view of product manufacturers’ civil aiding-and-abetting liability for the criminal conduct of far-removed third-party wrongdoers. In particular the court of appeals opinion conflicts with the teaching of Twitter, Inc. v. Taamneh, 143 S. Ct. 1206 (2023), which is now the Supreme Court’s leading precedent on civil aiding-and-abetting liability. Taamneh holds that neither knowledge of product misuse nor failure to prevent it is enough for aiding-and-abetting liability. Instead, a product manufacturer must engage in “affirmative and culpable misconduct” to help make a third party's wrongful conduct succeed.
The amicus brief also explains that the First Circuit’s expansive view of civil aiding-and-abetting liability, coupled with its convoluted extension of proximate cause, harms the public interest. Unless reversed, the First Circuit’s opinion would open courthouse doors to aiding-and-abetting litigation brought by foreign governments, state or local governments, or even classes of individuals against all sorts of industries and companies that manufacture products that are, or could be, misused for criminal purposes.
The substantial costs of having to defend, or insure against, opportunistic aiding-and-abetting litigation targeting manufacturers of essential or otherwise beneficial products that sometimes are criminally misused would make the products more expensive and/or less available, perhaps even forcing some manufacturers or their product lines entirely out of business. Similarly troubling, manufacturers might curtail development of product safety and other improvements out of fear that they are not being introduced quickly enough to satisfy litigious foreign or domestic governmental officials. This would create a pervasive, pernicious, litigation-driven nightmare that provides no benefit to the American public and that the Supreme Court should not countenance.
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Media Contact: Larry Ebner
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About the Atlantic Legal Foundation
For more than 47 years, the Atlantic Legal Foundation, a national, nonprofit, nonpartisan, public interest law firm, has advocated in the Supreme Court, federal courts of appeals, and state appellate courts for individual liberty, free enterprise, property rights, limited & responsible government, sound science in judicial & regulatory proceedings, and effective education, including parental rights and school choice.
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