Kashef v. BNP Paribas S.A., 925 F.3d 53

Background

Plaintiffs are alleged Sudanese victims of atrocities (genocide, mass rape, torture) who sued BNP Paribas (BNPP) in SDNY under New York tort law, asserting primary and secondary liability claims based on BNPP’s admitted evasion of U.S. sanctions on Sudan.
BNPP pled guilty in 2015 to federal and New York state offenses for conspiring to violate U.S. sanctions and falsifying records, admitted wide-ranging conduct to evade detection, and paid large fines.
The Second Amended Complaint alleges BNPP knowingly provided Sudan access to U.S. financial markets, funding the regime and militias that committed the alleged atrocities. Plaintiffs assert negligence per se, intentional and negligent infliction of emotional distress, and conspiracy/aiding-and-abetting claims among others.
The district court dismissed most claims under the act of state doctrine (concluding U.S. courts could not inquire into conduct tied to foreign sovereign acts) and, alternatively, dismissed certain adult plaintiffs’ intentional tort claims as time-barred under New York law.
The Second Circuit vacated and remanded, holding the district court misapplied the act of state doctrine and erred on timeliness for adult plaintiffs; it found adjudication would not require treating the alleged atrocities as valid official acts and that jus cogens norms (e.g., prohibition on genocide/torture) preclude act-of-state deference.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether act of state doctrine bars Plaintiffs’ tort claims	Act of state does not apply because the court need only determine whether atrocities occurred and whether BNPP’s conduct caused or aided them	Act of state bars adjudication because adjudication would implicate or require inquiry into the motives/acts of the Sudanese government	Reversed: act of state inapplicable—court need not declare foreign acts valid; atrocities are not "official acts" entitled to deference and cannot be treated as valid because they violate jus cogens norms
Whether alleged Sudanese atrocities constitute "official acts" triggering deference	Atrocities are unlawful under Sudanese and international law and so cannot be "official acts"	BNPP contends the causal chain requires treating or examining Sudan’s conduct as sovereign acts	Held: No evidence of formal sovereign authorization; atrocities violate Sudanese law, so they are not official acts for act-of-state purposes
Whether violations of jus cogens (e.g., genocide) can be the basis for act-of-state deference	Plaintiffs: jus cogens norms preclude treating such acts as valid sovereign acts; courts cannot deem them valid	BNPP: urges deference to foreign sovereign acts as implicated by causal chain	Held: Violations of jus cogens cannot supply a rule of decision; act of state cannot shield such conduct
Timeliness of Adult Plaintiffs’ claims under New York law	Claims timely under CPLR § 215(8)(a) because criminal prosecution of BNPP was commenced and civil suit brought within one year of conviction/sentencing	§ 215 inapplicable; district court applied one-year limitations and held claims time-barred	Held: § 215(8)(a) applies; adult plaintiffs’ claims are timely because the criminal action against BNPP satisfies the statute’s prerequisites

Key Cases Cited

W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., 493 U.S. 400 (act of state doctrine applies only when court must declare invalid an official act of a foreign sovereign)
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (act of state doctrine applied to formal expropriation decree)
Filartiga v. Pena-Irala, 630 F.2d 876 (recognizing domestic courts may adjudicate foreign human-rights violations)
Abdullahi v. Pfizer, Inc., 562 F.3d 163 (jus cogens norms cannot be treated as valid state acts; highest status in international law)
Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (jus cogens norms and their effect on act-of-state analysis)
Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard for plausible claims)