Kashef v. BNP Paribas SA
1:16-cv-03228
| S.D.N.Y. | Sep 8, 2025Background
- Plaintiffs (Sudanese nationals) sue BNP Paribas under Swiss law (Swiss Code of Obligations Art. 50(1)) alleging the bank knowingly assisted the Government of Sudan in illicit acts that harmed them.
- Court confirmed Swiss substantive law governs liability elements: (1) illicit act by main perpetrator (Sudan); (2) defendants' conscious assistance (knowledge or constructive knowledge); (3) defendant conduct was the natural and adequate cause of plaintiffs' harm.
- Parties briefed two trial issues: applicable burden/standard of proof and admissibility of U.S. DHS asylum/refugee certificates.
- Swiss-law experts agreed civil plaintiff bears the burden and that when circumstantial evidence is required, a reduced standard (“preponderant likelihood”) applies; they disagreed over whether "strict proof/full conviction" or the lower standard governs each element.
- Court adopted a single standard of "preponderant likelihood" for all three elements (following Swiss Federal Supreme Court guidance for cases of evidentiary hardship) and found DHS asylum/refugee certificates admissible under the public-records hearsay exception (Fed. R. Evid. 803(8)).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicable burden/standard of proof under Swiss law | Kashef: all three elements should be proven by "preponderant likelihood" because proof will rely on circumstantial evidence | BNP: two elements (illicit act and knowledge/assistance) require "full conviction/strict proof"; only causation can use lower standard | Court: single standard of "preponderant likelihood" applies to all elements due to evidentiary hardship and to avoid juror confusion |
| Meaning/threshold for "preponderant likelihood" | Kashef: substantial grounds for accuracy; not a fixed percent but >51% | BNP: should be high (argues ~75% as guideline) | Court: adopts Swiss Federal Supreme Court formulation: court must be convinced by compelling reasons and that alternative explanations are not reasonably likely (no fixed percent imposed) |
| Admissibility of DHS asylum/refugee certificates | Kashef: certificates admissible to show plaintiffs were persecuted and to support that Sudan was persecutor; fall within public-records hearsay exception | BNP: admission would cause undue weight/prejudice (Fed. R. Evid. 403) | Court: certificates admissible under Fed. R. Evid. 803(8)(A)(iii); no showing of untrustworthiness; speculat ive undue-weight argument rejected (cautionary instruction available) |
| Evidentiary effect of DHS findings on issue of who persecuted plaintiffs | Kashef: certificates are relevant factual findings from authorized investigation supporting that Sudan persecuted them | BNP: contests weight and potential prejudice but not trustworthiness | Held: admissible and relevant; weight for jury; court may give limiting instruction if needed |
Key Cases Cited
- Kashef v. BNP Paribas, S.A., 442 F. Supp. 3d 809 (S.D.N.Y. 2020) (prior decision establishing Swiss law governs substantive elements)
- Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) (federal courts apply state law to substantive issues in diversity cases)
- Dir., Office of Workers' Comp. Programs v. Greenwich Collieries, 512 U.S. 267 (1994) (burden of proof is substantive law)
- Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941) (federal courts apply forum state choice-of-law rules)
- Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99 (1945) (state law governs burden of proof in diversity cases)
- United States v. Dupree, 706 F.3d 131 (2d Cir. 2013) (district court may give cautionary instruction regarding weight of government records)
- United States v. Noria, 945 F.3d 847 (5th Cir. 2019) (DHS immigration records admissible under public-records hearsay exception)
- United States v. Tobbalba-Mendia, 784 F.3d 652 (9th Cir. 2015) (same)
- United States v. Agustino Hernandez, 14 F.3d 42 (11th Cir. 1994) (same)