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ALF Urges Supreme Court To Review & Reject Expansive View of Product Manufacturers’ Civil Aiding-and-Abetting Liability

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.

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 (PLCAA).  See 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 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.

Issue Areas:

Free Enterprise

Read the Amicus Brief:
Question(s) 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 (here, members of violent Mexican drug cartels) from illegally obtaining and criminally misusing products (here, federally regulated, American-made firearms) that the defendants lawfully produced, marketed, and distributed within the United States.

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.


The petition for a writ of certiorari is pending.


Email ALF Executive Vice President & General Counsel Lawrence Ebner.

Date Originally Posted: May 15, 2024

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