Supreme Court Orders Reconsideration of Iraq Terror Support Ruling

The US Supreme Court on Monday said an appeals court must take another look at whether victims of terror attacks in Iraq can move forward with their Anti-Terrorism Act suit against drugmakers.

Plaintiffs claim the group of drugmakers violated the ATA by financially supporting an Iraqi group that was responsible for attacks between 2005 and 2011.

The drugmakers challenged the US Court of Appeals for the D.C. Circuit’s ruling allowing the case to proceed. The Supreme Court’s order grants their petition, vacates the order, and remands it to the appeals court.

The drugmakers are 21 companies from five corporate families—AstraZeneca PLC, GE Healthcare Technologies Inc., Johnson & Johnson, Pfizer Inc., and Roche Holding AG.

A panel for the D.C. Circuit ruled in 2022 that the plaintiffs had adequately accused the companies of assisting the terrorist group Jaysh al-Mahdi by selling their drugs to and bribing officials in the Iraqi Ministry of Health when the terrorist group controlled the ministry and used it as a base for attacks. The full appeals court backed that decision in 2023.

The drugmakers’ petition said the appeals court should reconsider the decision in light of the Supreme Court’s 2023 opinion in Twitter Inc. v. Taamneh.

In Twitter, the Supreme Court rejected ATA liability where no allegations suggested that defendants culpably associated themselves with an attack, participated in it as something they wished to bring about, or sought by their action to make it succeed, the companies said. But the D.C. Circuit never applied that test, they said.

The government supported the drugmakers’ argument. The Twitter decision “clarified the standard for aiding-and-abetting liability under the ATA ways that may bear on the court of appeals’ analysis,” the government’s brief said.

The plaintiffs argued that a remand wasn’t necessary, asserting in their brief in opposition that Twitter “confirmed that centuries-old common law principles govern aiding-abetting claims” under the ATA.

Courts “look for culpable conduct before finding aiding and abetting; here, the D.C. Circuit concluded petitioners’ knowing bribes to terrorists were culpable enough,” the plaintiffs said.

Kellogg, Hansen, Todd, Figel & Frederick PLLC represents the plaintiffs.

Covington & Burling LLP; Davis Polk & Wardwell LLP; Arnold & Porter Kaye Scholer LLP; Paul, Weiss, Rifkind, Wharton & Garrison LLP; Williams & Connolly LLP; and Wilmer Cutler Pickering Hale & Dorr LLP variously represent the companies.

The case is AstraZeneca UK Ltd. v. Atchley, U.S., No. 23-9, 6/24/24.