James Owens v. BNP Paribas, S.A.
897 F.3d 266
D.C. Cir.2018Background
- In 1998 al Qaeda bombed U.S. embassies in Nairobi and Dar es Salaam; many U.S. nationals were killed or injured.
- Plaintiffs (victims, estates, heirs) previously obtained default judgments against Sudan for supporting al Qaeda and now sued BNP Paribas (BNPP) under the Anti‑Terrorism Act (ATA), alleging BNPP processed funds for Sudan that were routed to al Qaeda.
- BNPP pleaded guilty in 2014 to evading U.S. sanctions and moving billions of dollars through the U.S. financial system; most pleaded facts about conduct occurring after 1998, but BNPP stipulated it became a correspondent bank for Sudanese banks by 1997 and developed “satellite bank” relationships.
- Plaintiffs allege BNPP violated 18 U.S.C. §§ 2339A/2339B (material support statutes) and that their injuries were caused “by reason of” BNPP’s conduct; they also asserted aiding‑and‑abetting and conspiracy theories.
- District court dismissed for failure to state a claim; the D.C. Circuit affirms, holding plaintiffs failed to plausibly plead proximate causation for primary liability and that pre‑JASTA § 2333 did not permit civil aiding‑and‑abetting or conspiracy liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs plausibly alleged BNPP proximately caused their injuries under ATA § 2333 | BNPP processed U.S. dollars for Sudan starting in 1997 and thus substantially contributed to funds that went to al Qaeda and caused the bombings | BNPP’s pleaded conduct either occurred after 1998 or is too attenuated; plaintiffs lack nonconclusory facts showing funds BNPP processed went to al Qaeda or were necessary for the attacks | Dismissed: plaintiffs failed to plausibly allege proximate causation; inferred pre‑1998 transactions were insufficient to show BNPP was a substantial factor |
| Whether pre‑JASTA § 2333 incorporates civil aiding‑and‑abetting liability | § 2333’s text and purpose permit secondary liability for those who substantially assisted terrorist acts | Central Bank and statutory silence counsel against reading aiding‑and‑abetting into § 2333 absent explicit congressional language | Dismissed: pre‑JASTA § 2333 does not authorize aiding‑and‑abetting or conspiracy liability; Congress later added those remedies in JASTA (not retroactive) |
| Whether legislative history or later JASTA amendment proves aiding‑and‑abetting always existed under § 2333 | JASTA’s passage reflects Congress’s longstanding intent to reach aiders and abettors under the ATA | JASTA is an explicit change; one cannot read Congress’s later amendment as proof prior inclusion when the statute was silent | Rejected: JASTA effect confirms Congress must speak explicitly; amendment does not show pre‑existing aiding‑and‑abetting liability |
| Whether plaintiffs pleaded requisite scienter for §§ 2339A/2339B (material support) | BNPP admitted knowing evasion of sanctions and use of satellite banks, implying knowledge that funds would support terrorism | Plaintiffs failed to plead nonconclusory facts tying BNPP’s conduct to al Qaeda’s funding or specific knowledge of terrorist end‑use | Court did not decide merits of material‑support scienter because proximate causation failure was dispositive |
Key Cases Cited
- Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994) (statutory silence precludes importing civil aiding‑and‑abetting liability)
- Rothstein v. UBS AG, 708 F.3d 82 (2d Cir. 2013) (bank’s conversion of funds for a state sponsor of terrorism did not establish proximate cause for attacks absent facts tying funds to terrorists)
- Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685 (7th Cir. 2008) (discussing secondary liability and material support in terrorism context)
- Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983) (standard for civil aiding‑and‑abetting: knowing, substantial assistance and general awareness of role)
- Owens v. Republic of Sudan, 864 F.3d 751 (D.C. Cir. 2017) (interpretation of ATA’s "by reason of" proximate‑cause requirement)
- Linde v. Arab Bank, PLC, 882 F.3d 314 (2d Cir. 2018) (treating material‑support allegations as potentially constituting acts of international terrorism)
- In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 118 (2d Cir. 2013) (proximate causation requires showing that funds actually aided the attacks)