Kashef v. BNP Paribas SA

Background

Approximately 20 named plaintiffs, described in the opinion as lawful residents of the United States who fled Sudan, sued BNP Paribas SA and affiliated entities. They alleged that the defendants aided and abetted the Government of Sudan’s genocidal acts between 1997 and 2011 and were liable under Article 50(1) of the Swiss Code of Obligations, which provides for secondary liability of an accomplice.

The court adopted earlier rulings that Swiss law governed the defendants’ liability. Under Article 50(1), the plaintiffs had to prove that Sudan committed an unlawful act, that BNP Paribas consciously assisted Sudan while knowing or having reason to know that it was contributing to an unlawful act, and that the assistance naturally and adequately caused the plaintiffs’ injuries.

Summary-Judgment Rulings

The court denied summary judgment on the plaintiffs’ secondary-liability claims. It rejected the defendants’ argument that they could not be liable because Sudan, the alleged primary wrongdoer, could not be sued as a tortfeasor. The court stated that the Second Circuit had already held that Sudan’s genocidal acts violated fundamental rules of international law and that BNP Paribas could be sued for aiding and abetting those acts.

The court also rejected the defendants’ argument that the plaintiffs had not shown BNP Paribas itself committed an unlawful act or directly injured them. The relevant question under Article 50(1) was whether BNP Paribas consciously assisted Sudan and knew or should have known that it was contributing to Sudan’s unlawful acts. The court relied in part on BNP Paribas’s admissions in a separate federal criminal prosecution that its employees recognized the bank’s central role in providing Sudanese financial institutions access to the U.S. financial system despite Sudan’s terrorism and human-rights abuses. The court found material factual disputes concerning the bank’s knowledge and assistance.

The court separately denied summary judgment on causation. The plaintiffs offered evidence that BNP Paribas used techniques to evade U.S. sanctions, including modifying payment messages to omit references to Sudan, and funneled $22.2 billion in U.S. dollars to Sudan. The court found factual disputes over whether BNP Paribas’s financing and access to Western financial markets contributed to the timing, manner, and scale of the abuses, and whether it was reasonable and foreseeable to hold BNP Paribas responsible for at least some of the injuries. The court held that a jury would have to decide those causation questions.

Statute of Limitations

The court denied summary judgment on timeliness. It followed the Second Circuit’s earlier holding that New York Civil Practice Law and Rules § 215(8)(a) applied and allowed the plaintiffs one year from the end of the criminal case against BNP Paribas to bring their civil claims. BNP Paribas’s criminal judgment was entered on May 1, 2015, and the lawsuit was filed on April 29, 2016. The court also rejected the defendants’ argument that a 15-year limitations period under Sudanese law should govern.

Other Dispositions

The parties agreed that BNP Paribas S.A. New York Branch had no role in the alleged conduct. The court therefore dismissed that entity from the lawsuit. The other BNP Paribas entities remained defendants, and the court stated that factual issues concerning the movement of funds and methods used to evade sanctions made them proper defendants jointly and severally.

The court held that punitive damages were unavailable under Swiss law and struck the plaintiffs’ punitive-damages claims. It denied the defendants’ request to strike the property-damage allegations because the plaintiffs had described lost lands, homes, mills, livestock, vehicles, and personal items, along with their use, size, and approximate values.

Conclusion and Remaining Matters

The court denied the defendants’ motion for summary judgment except as to dismissing BNP Paribas S.A. New York Branch and striking the punitive-damages claims. Various motions to seal remained open. The court denied the plaintiffs’ motions at ECF Nos. 489 and 490 as academic in light of the pending sealing motions. The plaintiffs’ class-certification motion and the remaining sealing issues were scheduled for later proceedings.