Kashef v. BNP Paribas SA, No. 16-cv-3228 (SDNY February 16, 2021) [click for opinion]
The plaintiffs in this case were alleged victims of horrific human rights abuses by the Sudanese government between 1997 and 2009, including “beatings, mutilation, sexual assault, rape, HIV infection, loss of property, evictions from their homes and family monitoring”. Members killed. ”The defendants included BNP Paribas SA, a French financial institution, and several of its branches and subsidiaries, as well as individual defendants who work for the bank (collectively“ BNPP ”).
At the time of these human rights violations, BNPP became the main bank of the Sudanese government. Through various avenues including removing information from financial documents that identify Sudanese identities involved in financial transactions and / or using satellite banks in the United States to smuggle money, BNPP has avoided and avoided U.S. sanctions against Sudan Giving Sudan critical access to the US financial markets funds the government in its atrocities against its people. In 2014, BNPP pleaded guilty to evasion of US sanctions, forgery of business records, and conspiracy.
In the plaintiffs’ civil lawsuit against BNPP, twenty public claims were asserted, including negligence per se, conspiracy to commit bodily harm, aiding and abetting bodily harm and willful infliction of emotional stress. The District Court initially dismissed the lawsuit, ruling that the State Doctrine Act and applicable statute of limitations precluded plaintiffs’ claims. The second circle has been reversed.
While in custody, the District Court ordered supplemental disclosure of the remaining claims that were not addressed in the court’s original opinion, including whether the plaintiffs’ claims were subject to New York, Sudanese or Swiss law. In a subsequent expert opinion and ruling, the court found that Swiss law was applicable to the claims. The parties then carried out an expert research into the meaning of Swiss law and submitted a supplementary briefing on the question of whether the plaintiffs had asserted a claim under Swiss law.
Both parties agreed that Art. 50 Para. 1 of the Swiss Code of Obligations is the operative provision of Swiss law, which states that “if two or more people have caused damage together, be it as instigators, perpetrators or accomplices, they The aggrieved person is jointly and severally liable. “Since this article only applied to secondary tort liability, the court dismissed the lawsuits relating to independent tort of negligence per se, outrageous conduct causing emotional distress, and negligent infliction of emotional distress for failure to allege Rejected a claim under Swiss law.
The experts of the parties also agreed that the prerequisites for asserting a claim under Article 50 paragraph 1 are that (1) a main perpetrator has committed an unlawful act, (2) the accomplice consciously helped and knew the perpetrator or should have known that he was involved in a tort, and (3) their culpable participation was the natural and reasonable cause of the damage or loss to the plaintiff.
For element (1), the parties stipulated that the main culprit was the Sudanese government and the illegal acts were the genocide it had committed. For element (2), the court first found that the culpable mindset required is that an accomplice must only act negligently in relation to his involvement in tort, and found that plausors had plausibly asserted that BNPP was at least negligent was because of his contribution to the illegal behavior of the Sudanese regime. Specifically, plaintiffs alleged that BNPP knew, or should have known, that the Sudanese regime is campaigning against human rights abuses, that it is massively enriching the regime by giving it access to US dollars to sell its oil that the profits from the Relationship with military funding, that the military committed atrocities to get more oil, that its aid to the regime violated US sanctions, and that some of these sanctions were imposed to prevent the regime’s atrocities.
Finally, for Element (3), the plaintiffs had to prove that BNPP was the natural and reasonable cause of the damage. The court found that in order to determine that BNPP was the “natural cause” of the harm, all they had to do was argue that the human rights violations “would not have occurred at the same time or in the same manner or magnitude without the alleged conduct. “The court found that the plaintiffs had reasonably alleged that the deaths, rapes, assaults, evictions and other cases of illicit behavior would not have occurred with the same magnitude or frequency if BNPP had not provided financial services to the Sudanese regime The complaint alleged that the BNPP’s role as the “de facto central bank” of the Sudanese government directly fueled the atrocities by helping the regime avoid US sanctions and generating massive revenues from oil sales, which enabled it to Equip and mobilize forces that carried out ethnic cleansing.
The court also found that plausors had plausibly alleged that BNPP’s actions were the “reasonable cause” of the damage, a concept that is similar to the obvious cause under US common law. Here, a jury found that the provision of illegal financial services by BNPP to the Sudanese regime can reasonably be assumed to have caused at least part of the damage for the plaintiffs directly. Assuming the facts alleged to be true, they showed that each subsequent link in the chain of events was the natural and predictable outcome of the former and that BNPP knew, or should have known, that the profits it helped make would flow into the genocide, but that it could make those profits for the regime (make a cut for itself) in part because of the genocide.
For these reasons, the court finally found that all elements of Article 50 paragraph 1 of secondary tort liability under Swiss law are met. The court therefore denied the defendant’s motion to dismiss the secondary tort claims, but granted it with regard to the primary tort claims.
Farah Chalisa of the Chicago office contributed to this round-up.
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