Opinion of the Court
of some sort is necessary to justify punishment of a secondary actor,” lest mostly passive actors like banks become liable for all of their customers’ crimes by virtue of carrying out routine transactions. Monsen v. Consolidated Dressed Beef Co., 579 F. 2d 793, 799 (CA3 1978). And others have suggested that “inaction cannot create liability as an aider and abettor” absent a duty to act. Zoelsch, 824 F. 2d, at 36; see also Woodward, 522 F. 2d, at 96.
In articulating those limits, courts simultaneously began to crystalize the framework for aiding and abetting that Halberstam identified and applied. See, e.g., Monsen, 579 F. 2d, at 799 (stating a similar three-part test).[1] As in Halberstam, that framework generally required what the text of §2333(d)(2) demands: that the defendant have given knowing and substantial assistance to the primary tortfeasor. See, e.g., Monsen, 579 F. 2d, at 799; Landy, 486 F. 2d, at 162–163. Notably, courts often viewed those twin requirements as working in tandem, with a lesser showing of one demanding a greater showing of the other. E.g., Woodward, 522 F. 2d, at 97; Woods v. Barnette Bank of Ft. Lauderdale, 765 F. 2d 1004, 1010 (CA11 1985). In other words, less substantial assistance required more scienter before a court could infer conscious and culpable assistance. See Woodward, 522 F. 2d, at 97. And, vice versa, if the assistance were direct and extraordinary, then a court might more readily infer conscious participation in the underlying tort. See ibid. In moving back and forth between all these guideposts, the courts thus largely tracked the same distinctions drawn above to ensure that liability fell only on
- ↑ Others, however, have wondered whether any of these “elaborate discussions of the aiding and abetting standard … ‘have added anything except unnecessary detail’ ” to the formulation set forth by Judge Learned Hand in United States v. Peoni, 100 F. 2d 401 (CA2 1938), and adopted by this Court in Nye & Nissen v. United States, 336 U. S. 613 (1949). SEC v. Apuzzo, 689 F. 3d 204, 212, n. 9 (CA2 2012) (quoting IIT, an Int’l Inv. Trust v. Cornfeld, 619 F. 2d 909, 922 (CA2 1980)).
