Ofisi v. Bnp Paribas S.A., Civil Action No. 2015-2010

Background

Plaintiffs (victims of the 1998 East Africa embassy bombings) sued BNP Paribas, S.A. (BNPP), alleging it conspired with Sudan and others to defeat U.S. sanctions and thereby aided al Qaeda, asserting claims under the Anti-Terrorism Act (ATA), the Alien Tort Statute (ATS), and common law torts.
The court previously dismissed the ATA, ATS, and common-law claims in a September 29, 2017 memorandum opinion; plaintiffs moved for reconsideration or, alternatively, leave to amend.
Plaintiffs relied on allegations that BNPP acted as correspondent bank for Sudan, processed U.S. dollar transactions that circumvented sanctions, and thus knew or should have known funds would support terrorism.
Plaintiffs argued the court should apply Halberstam v. Welch conspiracy/aiding-and-abetting standards to find secondary liability; they also asserted BNPP met the ATA scienter and proximate-cause requirements.
The court construed the motion as a Rule 54(b) request for reconsideration, reviewed whether the prior decision contained clear error, and considered plaintiffs’ separate request for leave to amend (which lacked a proposed amended complaint).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Applicability of secondary (vicarious) liability under ATA §2333	BNPP can be held secondarily liable (conspiracy/aiding-and-abetting) under Halberstam-style standards	ATA (as applicable) does not provide for secondary liability; statutory silence means no secondary liability	Court held no secondary liability under §2333 for pre‑2001 injuries; dismissal affirmed (followed circuit/district precedent)
ATA scienter and proximate causation (§2339A theory)	BNPP’s sanction‑evasion role made the embassy attacks a knowing or intentional (or at least foreseeable) result of its conduct	Allegations are insufficient to show BNPP knew funds would be used by terrorists or that BNPP directly funded terrorists; foreseeability and generalized knowledge of a sponsor state are inadequate	Court held plaintiffs failed to plead the required "knowing or intending" scienter and proximate causal link; ATA claims dismissed
ATS aiding-and-abetting standard	Halberstam (common-law) should govern secondary liability analysis	ATS secondary-liability is governed by customary international law standards (as in Exxon Mobil); Halberstam is a common-law authority and plaintiffs previously said international law applied	Court applied international-law aiding-and-abetting standard (knowledge and substantial assistance) and found plaintiffs’ allegations insufficient; ATS dismissal affirmed
Leave to amend complaint	Plaintiffs sought leave to amend to cure pleading defects	BNPP opposed; court required a proposed amended complaint and particularized motion under Rule 15	Court denied leave because plaintiffs failed to submit a proposed amended complaint or articulate specific pleading amendments

Key Cases Cited

Cobell v. Jewell, 802 F.3d 12 (D.C. Cir.) (procedural standards for motions to alter judgments)
Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983) (defining common-law standards for conspiracy and aiding-and-abetting liability)
Rothstein v. UBS AG, 708 F.3d 82 (2d Cir.) (secondary liability and proximate causation under ATA)
Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685 (7th Cir.) (statutory silence precludes secondary liability under ATA)
Doe v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir.) (ATS secondary-liability governed by customary international law; knowledge standard for aiding and abetting)
Owens v. BNP Paribas, S.A., 235 F. Supp. 3d 85 (D.D.C.) (recent district-court decision rejecting ATA secondary liability and analyzing proximate cause in similar facts)
Siegel v. SEC, 592 F.3d 147 (D.C. Cir.) (discussion of proximate-cause principles referenced for ATA "by reason of" causation)
Burnett v. Al Baraka Inv. & Dev. Corp., 274 F. Supp. 2d 86 (D.D.C.) (prior analysis of proximate cause under §2333)