Kashef v. BNP Paribas SA

Background

The plaintiffs brought a proposed class action on behalf of people who suffered human-rights abuses by the Government of Sudan between 1997 and 2009, including beatings, maiming, sexual assault, rape, HIV infection, property loss, displacement, and the killing of family members. They asserted 20 state-law claims against BNP Paribas S.A., its branches and subsidiaries, and individual bank defendants. The claims alleged that BNP Paribas assisted Sudan in evading United States sanctions and accessing United States financial markets, helping fund the Sudanese government’s military and its abuses.

The complaint alleged that BNP Paribas used methods such as removing Sudan-related information from transaction documents and routing money through other banks. In 2014, BNP Paribas pleaded guilty to conspiring to violate United States laws concerning sanctions on Sudan, Iran, and Cuba, and also pleaded guilty under New York law to falsifying business records and conspiracy.

The court had previously dismissed the claims, but the Second Circuit reversed that decision, concluding that the claims were not barred by the act-of-state doctrine and were not untimely. In an earlier related proceeding, this court determined that Swiss law governed the plaintiffs’ claims. The parties then presented expert testimony and briefing about whether the complaint stated claims under Swiss law.

Swiss-law standard

The court focused on Article 50.1 of the Swiss Code of Obligations, which provides for secondary tort liability when multiple people jointly cause harm as instigators, perpetrators, or accomplices. The parties’ experts agreed that an Article 50.1 claim requires: (1) a main perpetrator committed an unlawful act; (2) the accomplice consciously assisted the perpetrator and knew or should have known that the assistance contributed to an unlawful act; and (3) the accomplice’s culpable cooperation was the natural and adequate cause of the plaintiff’s harm.

The court credited the plaintiffs’ expert’s interpretation of Swiss law over the defendants’ expert’s interpretation. It held that an accomplice may be liable under Article 50.1 even when the assistance was not intended to cause the harm, so long as the accomplice consciously cooperated and knew or should have known, using reasonable care, that the assistance would contribute to unlawful conduct. The court rejected the defendants’ proposed requirements that the assistance be willful, immediate, or substantial because the defendants’ expert did not support those requirements with Swiss legal authority.

Primary-liability claims

The court dismissed the plaintiffs’ claims for negligence per se, outrageous conduct causing emotional distress, and negligent infliction of emotional distress. The court explained that these claims involved primary tort liability under Article 41 of the Swiss Code of Obligations, while the plaintiffs did not argue in their supplemental briefing that Article 41 applied to their claims. The dismissal was for failure to state a claim under Swiss law.

Secondary-liability claims

The court held that the complaint plausibly alleged the first Article 50.1 element because the parties stipulated that the Sudanese government had committed the underlying unlawful acts. The court treated the Sudanese government as the main perpetrator and its genocide and human-rights violations as the relevant unlawful acts.

As to the second element, the court concluded that the plaintiffs plausibly alleged that BNP Paribas knew or should have known about Sudan’s human-rights abuses, the United States sanctions, and the connection between Sudan’s oil industry and the abuses. The allegations included widespread reporting, United States condemnation and sanctions, alleged internal BNP Paribas communications describing the situation as a “human catastrophe,” and alleged efforts to conceal transactions involving Sudan. These allegations were sufficient at the pleading stage to support an inference that BNP Paribas was at least negligent about its contribution to Sudan’s conduct.

As to the third element, the court explained that “natural” causation under Swiss law resembles but-for causation, while “adequate” causation resembles proximate cause. The court held that the plaintiffs plausibly alleged both. They alleged that BNP Paribas’s financial services helped Sudan access United States financial markets, generate oil revenues, equip and mobilize armed forces, and carry out more frequent or larger-scale abuses. The court concluded that a jury could reasonably find BNP Paribas’s conduct to have directly contributed to at least some of the plaintiffs’ injuries.

The court rejected the defendants’ arguments that the causal chain was too remote and that decisions involving other banks or service providers required dismissal. It distinguished those decisions because the complaint here alleged that BNP Paribas directly transacted with the Sudanese government, which itself perpetrated the abuses, and that the transactions were made in violation of sanctions intended in part to prevent those abuses.

Disposition

Judge Alison J. Nathan granted in part and denied in part the defendants’ motion to dismiss for failure to state a claim under Swiss law. The claims that survived were conspiracy to commit battery; aiding and abetting battery; conspiracy to commit battery in the performance of a public duty or authority; aiding and abetting that battery; conspiracy to commit assault; aiding and abetting assault; conspiracy to commit false arrest and false imprisonment; aiding and abetting false arrest and false imprisonment; conspiracy to commit conversion; aiding and abetting conversion; conspiracy to commit wrongful death; and aiding and abetting wrongful death caused by intentional murder. The court stated that the ruling resolved the motion and that it would later schedule an initial pretrial conference.