Owens v. Bnp Paribas S.A.
235 F. Supp. 3d 85
D.D.C.2017Background
- Plaintiffs are U.S. nationals (and survivors/estates) injured in the 1998 U.S. embassy bombings in Nairobi and Dar es Salaam; they previously obtained judgments against Sudan for its role.
- Plaintiffs sued BNP Paribas S.A. and two subsidiaries under 18 U.S.C. § 2333 (the ATA) and state tort law, alleging the banks processed dollar transactions for Sudan and circumvented U.S. sanctions, enabling Sudan (and through it al Qaeda/Hezbollah) to fund the bombings.
- BNPP entered a 2014 guilty plea for sanctions-related violations (IEEPA/TWEA) for concealment of U.S.-dollar transactions from 2002–2012; plaintiffs allege related misconduct beginning as early as 1997.
- Plaintiffs asserted theories of aiding-and-abetting and primary liability via material-support provisions (18 U.S.C. §§ 2339A/B/C); defendants moved to dismiss for failure to plead causation, secondary liability not available, and statute-of-limitations defense.
- The court addressed (1) whether § 2333 permits civil aiding-and-abetting liability, and (2) the required causation standard under § 2333 — finding statutory interpretation and pleading shortcomings fatal to plaintiffs’ ATA claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2333 provides civil aiding-and-abetting liability | § 2333 should be read to allow secondary liability consistent with tort principles and legislative history | Silence in the statute means no civil aiding-and-abetting; Central Bank principles control | § 2333 does not provide civil aiding-and-abetting liability (dismissed) |
| Required scienter for ATA civil claims based on material-support statutes | Treble damages notwithstanding, a reckless/foreseeable standard suffices; foreseeability of terrorism from dealings with Sudan is enough | Plaintiffs must plead specific intent/knowledge required by underlying material-support statutes (2339A/B) | Plaintiffs failed to plead the requisite mens rea for §§ 2339A/B; boilerplate conclusory allegations insufficient |
| Causation standard under § 2333 (“by reason of”) | Use a looser foreseeability standard (harm must be a reasonably foreseeable result) | “By reason of” requires proximate cause as courts have long construed that phrase | § 2333 requires proximate causation; plaintiffs failed to allege a sufficiently direct causal link between BNPP’s conduct and the bombings |
| Application of post-2002 material-support statute (§ 2339C) to 1998 attacks | Plaintiffs contended § 2339C theories support liability | § 2339C was enacted in 2002 and cannot apply retroactively to 1998 conduct | Claims predicated on § 2339C are dismissed as inapplicable to 1998 events |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard requires plausible factual allegations)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must show plausibility)
- Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (statutory silence precludes implied civil aiding-and-abetting liability)
- Holmes v. Securities Inv’r Prot. Corp., 503 U.S. 258 ("by reason of" construed to require proximate cause)
- Rothstein v. UBS AG, 708 F.3d 82 (2d Cir.) (ATA does not incorporate civil aiding-and-abetting; proximate-cause application)
- Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685 (7th Cir.) (en banc) (addressing material-support and secondary-liability questions)
- CSX Transp., Inc. v. McBride, 564 U.S. 685 (causation language may vary by statute; not dispositive for "by reason of")
- Holder v. Humanitarian Law Project, 561 U.S. 1 (material-support statutory interpretation; fungibility/taint reasoning)