77 F.4th 667
D.C. Cir.2023Background
- 1998 al-Qaeda bombings of U.S. embassies in Kenya and Tanzania killed many victims; plaintiffs are survivors and family members of those victims.
- BNP Paribas (BNPP), a French bank, admitted in U.S. proceedings to evading U.S. sanctions on Sudan by acting as Sudan’s correspondent bank beginning in 1997; Sudan’s Al‑Shamal bank (linked to bin Laden) corresponded with BNPP.
- Plaintiffs sued BNPP alleging a causal chain: BNPP’s sanctions‑evasion supported Sudanese banks (including Al‑Shamal), which funded al‑Qaeda, enabling the embassy bombings.
- Claims included federal common‑law conspiracy and aiding/abetting, aiding/abetting under the Alien Tort Statute (ATS), and statutory claims under the Anti‑Terrorism Act (ATA) (material support and §2332d U.S. person theory).
- The district court dismissed all claims under Rule 12(b)(6); the D.C. Circuit affirmed in full, holding plaintiffs failed to plausibly allege conspiracy, aiding and abetting, ATS jurisdictional/causal requirements, or ATA proximate causation and U.S. person status.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Common‑law conspiracy (Halberstam framework) | BNPP and al‑Qaeda shared a common scheme to evade U.S. sanctions, and the embassy bombings furthered that scheme | BNPP’s goal (banking/profit; evading sanctions) is distinct from al‑Qaeda’s goal (terror/spectacle); no plausible shared scheme or underlying actionable tort | Affirmed dismissal — no plausible common scheme and no underlying actionable tort for sanctions evasion |
| Common‑law aiding and abetting (general awareness; knowing & substantial assistance) | BNPP knowingly and substantially assisted al‑Qaeda by enabling Sudanese banks that banked al‑Qaeda; BNPP was generally aware of its role | BNPP lacked the requisite general awareness/conscious culpable participation and did not provide substantial assistance under Halberstam factors | Affirmed dismissal — plaintiffs failed to plausibly plead general awareness or knowing, substantial assistance |
| ATS aiding and abetting (jurisdiction and mens rea/actus reus) | ATS claim pleaded under customary international law aiding/abetting standards | BNPP is a foreign corporation; Jesner bars ATS suits against foreign corporations; plaintiffs also failed to plead requisite elements | Affirmed dismissal — ATS does not permit suit against foreign corporations like BNPP |
| ATA statutory claims (§2339A material support; §2332d U.S. person & proximate causation) | BNPP materially supported terrorism via transactions for Sudanese banks; BNPP was a U.S. person due to U.S. branches and NY activities | Plaintiffs fail to show funds actually reached or substantially contributed to al‑Qaeda (proximate causation); BNPP is not a U.S. person for §2332d | Affirmed dismissal — failed proximate causation for ATA material‑support claim; BNPP not a U.S. person under §2332d |
Key Cases Cited
- Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983) (establishes common‑law conspiracy and aiding‑and‑abetting framework and six‑factor test)
- Bernhardt v. Islamic Republic of Iran, 47 F.4th 856 (D.C. Cir. 2022) (applies Halberstam to bank conduct and rejects conspiracy/abetting where objectives are orthogonal)
- Owens v. BNP Paribas, S.A., 897 F.3d 266 (D.C. Cir. 2018) (requires plausible allegations that defendant’s transactions substantially contributed to funds actually reaching terrorists for ATA proximate causation)
- Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018) (ATS does not permit suits against foreign corporations)
- Twitter, Inc. v. Taamneh, 143 S. Ct. 1206 (2023) (aiding and abetting requires conscious, culpable participation; Halberstam framework must be adapted to modern contexts)
- Atchley v. AstraZeneca UK Ltd., 22 F.4th 204 (D.C. Cir. 2022) (discusses general awareness standard for aiding and abetting under ATA)
- Kaplan v. Lebanese Canadian Bank, SAL, 999 F.3d 842 (2d Cir. 2021) (general awareness and intermediary‑link principles in terrorism aiding/abetting cases)
- Rothstein v. UBS AG, 708 F.3d 82 (2d Cir. 2013) (when intermediary is a sovereign with legitimate expenditures, plaintiffs must plead additional facts to show substantial contribution to terrorism)