278 F. Supp. 3d 84
D.D.C.2017Background
- Plaintiffs are U.S. and foreign-national victims (and family members) of the 1998 U.S. embassy bombings in Kenya and Tanzania; they previously obtained judgments against Sudan for its role in the attacks.
- Plaintiffs sued BNP Paribas S.A. (BNPP) and Al Shamal Islamic Bank alleging a conspiracy with Sudan and al Qaeda to evade U.S. sanctions, enabling financing that supported the bombings.
- BNPP is a French multinational; the complaint alleges it processed U.S.-dollar transactions for Sudanese banks (including via a European subsidiary) and concealed Sudan references in payment messages; BNPP later pled guilty (2014) to sanctions violations for conduct from 2002–2012.
- Plaintiffs asserted claims under the Anti-Terrorism Act (ATA), the Alien Tort Statute (ATS), and common law theories (conspiracy, aiding-and-abetting, fraudulent conveyance/tortious interference), plus punitive damages.
- The court found plaintiffs’ allegations linking BNPP to al Qaeda or to funds used for the 1998 attacks were conclusory or primarily post-dated the attacks, and BNPP was not properly served (or appeared) for Al Shamal.
- Holding: the court dismissed all claims against BNPP for failure to state viable ATA, ATS, and common-law claims; claims against Al Shamal were dismissed without prejudice for lack of service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subject-matter jurisdiction under ATA/ATS (nationality) | Complaint alleges plaintiffs are U.S. citizens or foreign nationals tied to U.S. government employment — sufficient | BNPP: complaint fails to plead individual nationalities | Court: liberal pleading sufficed to allege jurisdictional facts; proceed to merits |
| Whether §2333 (ATA) permits secondary (aiding/abetting) liability and required scienter/causation | Plaintiffs: ATA supports recovery for those who aided terrorism and BNPP’s sanction-evasion was a proximate cause | BNPP: pre-JASTA ATA provides no civil aiding-and-abetting; proximate cause lacking; §2332d doesn’t reach foreign bank | Court: no civil aiding-and-abetting under the pre-2016 ATA; proximate-cause standard applies; dismissed ATA claims for failure to plead requisite scienter and proximate causation; §2332d inapplicable because BNPP not a “United States person” |
| ATS: whether plaintiffs pleaded primary international-law violations (and secondary liability) | Plaintiffs: embassy bombings satisfy crimes against humanity and infringement of ambassadors’ rights; BNPP aided and abetted | BNPP: norms not applicable or plaintiffs fail to plead necessary link and mens rea | Court: primary norms (crimes against humanity; infringement of ambassadors’ rights) plausibly alleged, but aiding-and-abetting under customary international law not pleaded (actus reus and mens rea absent); ATS claims dismissed |
| Common-law conspiracy/aiding-and-abetting and tortious interference/fraudulent conveyance | Plaintiffs: BNPP conspired with Sudan/Al Shamal to defeat sanctions, thereby enabling attacks and frustrating collection on Sudan judgment | BNPP: complaint lacks allegations BNPP knowingly joined a scheme to support terrorism or caused collection impairment; tort theories unsuitable | Court: dismissed conspiracy and aiding-and-abetting (no plausible agreement/knowledge/ substantial assistance); tortious-interference/fraudulent-conveyance claims dismissed (no cognizable commercial expectancy; fraudulent-conveyance claim conceded) |
Key Cases Cited
- Owens v. Republic of Sudan, 826 F. Supp. 2d 128 (D.D.C.) (district court factual findings regarding Sudan and al Qaeda’s role in the embassy bombings)
- Owens v. BNP Paribas S.A., 235 F. Supp. 3d 85 (D.D.C. 2017) (court’s prior ruling that pre-JASTA ATA does not provide civil aiding-and-abetting; proximate-cause analysis)
- Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685 (7th Cir. 2008) (interpretation of scienter requirement under ATA; en banc decision referenced re: aiding liability)
- Sosa v. Alvarez-Machain, 542 U.S. 692 (Sup. Ct.) (limits on ATS causes of action; requirement that international norms be specific, universal, and obligatory)
- Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (Sup. Ct.) (presumption against extraterritorial application of ATS)
- Exxon Mobil Corp. v. Allapattah Services, 654 F.3d 11 (D.C. Cir.) (standards for aiding-and-abetting liability under customary international law)