Kashef v. BNP Paribas SA

Background

The court held a status conference on April 9, 2025, concerning the class-member questionnaire, the plaintiffs to be selected for trial, and the parties’ cross-motions in limine. A motion in limine asks the court to decide before trial whether particular evidence or arguments may be presented to the jury.

The court denied defendants’ motion to adjourn the trial. Jury selection remained scheduled for September 8, 2025, at 10:00 a.m., with a final pretrial conference scheduled for September 3, 2025. The court directed the parties to propose a schedule for pretrial briefing on expert testimony and other trial matters.

The September trial was scheduled to include Abulgasim Abdalla, Entesar Osman Kashef, and Turjuman Adam, with alternates identified for each plaintiff. If a selected plaintiff settled, a designated alternate would take that plaintiff’s place.

Questionnaires and Class Membership

The court ruled that class-member questionnaire answers would not have evidentiary value, even if given under oath, and that no docket numbers would be assigned to the answers because class members were not parties. Failing to complete a questionnaire by the July 1, 2025 deadline could affect a class member’s share of a settlement. However, a class member who had not opted out would remain a member of the class for settlement and trial. The court also stated that questionnaire answers could have the status of admissions.

Criminal Guilty Pleas and Collateral Estoppel

Plaintiffs sought to prevent defendants from introducing evidence, testimony, or argument inconsistent with BNP Paribas’s guilty pleas, convictions, and related documents from federal and New York state criminal cases. Defendants sought to exclude those materials as irrelevant or unfairly prejudicial.

The court stated that the criminal-case materials were theoretically relevant, more probative than unfairly prejudicial, and would have preclusive effect under collateral estoppel. Collateral estoppel, also called issue preclusion, can prevent a party from relitigating an issue that was already litigated and necessarily decided in an earlier case. The court did not make those rulings final; it reserved its final decision until plaintiffs submitted the specific evidence they intended to offer at trial.

The court said Swiss law governed defendants’ liability in tort, but Swiss law did not govern the preclusive effect of the criminal convictions. Federal preclusion law governed the effect of the federal conviction, and New York preclusion law governed the effect of the state convictions.

Under the Swiss-law theory described in the opinion, plaintiffs must prove that Sudan committed unlawful acts, BNP Paribas knowingly or consciously assisted Sudan, BNP Paribas knew or should have known that its conduct contributed to those acts, and that the assistance caused plaintiffs’ injuries. The court stated that the criminal proceedings and the civil case likely involved identical issues, depending on the evidence plaintiffs actually offered. It also stated that the other requirements for collateral estoppel were likely met: the issues were actually litigated, BNP Paribas had a full and fair opportunity to litigate, and the matters reflected in the plea agreements, factual statements, and court proceedings were necessary to the criminal judgments.

The court further found that applying collateral estoppel would not be unfair. It noted that plaintiffs could not have intervened in the criminal prosecutions, that BNP Paribas had strong incentives to litigate those cases given the $9 billion penalty, and that there were no inconsistent judgments or new procedural opportunities in the civil case that had not been available in the criminal proceedings.

Admissibility of Specific Evidence

The court concluded that the facts, admissions, and rulings plaintiffs proposed to use in proving their Swiss-law claims were relevant and that their probative value outweighed the risk of unfair prejudice. The court stated that the evidence concerned BNP Paribas’s admitted assistance to Sudan and was also relevant to causation.

The court granted the branch of defendants’ motion seeking to exclude evidence of BNP Paribas’s civil regulatory settlements under Federal Rule of Evidence 408. The court reserved decision on whether collateral estoppel would apply to the guilty plea itself, rather than only to facts, admissions, and rulings. The court emphasized that its rulings on the criminal-case materials were tentative and would be made definitively after reviewing plaintiffs’ offers of proof.

Disposition

The court denied defendants’ motion to adjourn the trial and granted the branch of defendants’ motion seeking to exclude civil regulatory settlements. It made tentative rulings concerning the relevance, admissibility, and possible preclusive effect of BNP Paribas’s criminal guilty pleas and related materials, reserving final decisions pending plaintiffs’ specific offers of proof. The court also set the next status conference for June 26, 2025, and directed the Clerk to terminate the listed docket entries.