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Owens v. BNP Paribas S.A.

United States District Court, District of Columbia

January 27, 2017

JAMES OWENS, et al., Plaintiffs,
v.
BNP PARIBAS S.A., et al., Defendants.

          MEMORANDUM OPINION

          JOHN D. BATES United States District Judge.

         Plaintiffs in this case are victims and family members of victims of the 1998 terrorist bombings of the U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, which killed over two hundred people and injured thousands more. The attacks were carried out by al Qaeda, with the assistance of the Republic of Sudan, which provided safe harbor to al Qaeda throughout the mid-1990s, as well as financial, military, and intelligence assistance. See Owens v. Republic of Sudan, 826 F.Supp.2d 128 (D.D.C. 2011) (detailing findings of fact and conclusions of law as to Iran's and Sudan's liability for the bombings). Plaintiffs have already sought and won judgment against Iran and Sudan for their roles in the bombings, in a lengthy litigation that began in 2001 and was subsequently expanded into multiple cases against Iran and Sudan. See Owens v. Republic of Sudan, 174 F.Supp.3d 242, 250-53 (D.D.C. 2016) (discussing the history of plaintiffs' litigation against Sudan); Mem. Op. of March 28, 2014, at 3, Owens v. Republic of Sudan, No. 01-cv-2244(JDB) (D.D.C. Mar. 28, 2014) [ECF No. 300] (awarding damages to plaintiffs); Khaliq v. Republic of Sudan, 33 F.Supp.3d 29, 32 (D.D.C. 2014) (same). They now bring suit against defendant banks BNP Paribas, S.A., BNP North America, Inc., and BNP Paribas Suisse, S.A. (collectively, “BNPP”) under the civil liability provision of the Anti-Terrorism Act (“ATA”), 18 U.S.C. § 2333, and various states' tort laws, for allegedly aiding and abetting Sudan's role in the bombings. BNPP has moved to dismiss, Mot. to Dismiss [ECF No. 17], and plaintiffs have filed a motion for summary judgment [ECF No. 22]. The Court has jurisdiction under 28 U.S.C. §§ 1331, 1367, and 18 U.S.C. § 2333(a). For the reasons discussed herein, defendants' motion will be granted, and plaintiffs' motion for summary judgment will be denied.[1]

         I. BACKGROUND

         The following facts are taken from [12] plaintiffs' amended complaint. The plaintiffs in this case are all U.S. nationals injured in the 1998 embassy bombings, or the estates, heirs, or survivors of U.S. nationals who died as a result of the bombings. Am. Compl. ¶¶ 22-26. Plaintiffs were awarded judgments against Sudan for its role in the bombings in a previous litigation. Am. Compl. ¶¶ 24, 27. The defendants are banks who, according to the complaint, circumvented U.S. sanctions imposed on Sudanese banks and financial institutions by processing financial transactions for these sanctioned entities, thereby enabling Sudan, al Qaeda, and Hezbollah to obtain funds needed to carry out the embassy attacks. Am. Compl. ¶¶ 15-16. All three defendant banks conduct business in the United States or have operations here. BNP Paribas Suisse and BNP North America are both wholly owned subsidiaries of BNP Paribas. Am. Compl. ¶¶ 29-40.

         A. Sudan, al Qaeda, and the Embassy Bombings

         Sudan was designated as a state-sponsor of terrorism in 1993, and has maintained that designation ever since. Am. Compl. ¶ 47. In 1993, a report produced by the U.S. Department of State noted that Sudan actively harbored international terrorist groups, had close ties to Iran, and frequently provided meeting locations, transit points, and safe havens for “Iran-backed extremist groups.” Am. Compl. ¶ 61. At some point in the early 1990s, Sudan invited al Qaeda, then led by Osama bin Laden, to relocate from Afghanistan to Sudan, and al Qaeda eventually did so. Am. Compl. ¶ 104. Al Qaeda is an international terrorist network founded by bin Laden in the late 1980s, dedicated to ridding Muslim countries of any Western presence or influence and committed to using violence to accomplish that end. Am. Compl. ¶ 100. In 1992, bin Laden issued a fatwa against the United States, which allowed for the murder of civilians in order to compel the United States to leave the Middle East. Am. Compl. ¶ 104.

         Sudan and al Qaeda allegedly formed a mutually beneficial relationship, in which Sudan provided protection and safe harbor from Western intelligence, and a place for al Qaeda militants to stay, train, and raise funds through various businesses set up in Sudan, and al Qaeda manufactured or provided weapons and other equipment for Sudanese security forces and invested in Sudan's economy and infrastructure. Am. Compl. ¶ 104. Members of Sudan's ruling political party, the National Islamic Front, also organized travel documents and provided economic aid to al Qaeda while it was operating in Sudan. Am. Compl. ¶ 104. Al Qaeda was present in Sudan in 1997 and 1998 leading up to the embassy bombings, and according to the complaint, received significant financial support from Sudan that enabled al Qaeda to plan and carry out the bombings. Al Qaeda also received financial support from Hezbollah, an Iran-backed terrorist group based in Lebanon that was likewise present in Sudan at the time with the Sudanese government's blessing. Am. Compl. ¶¶ 70, 101, 103.

         B. U.S. Sanctions Against Sudan and BNPP

         Prior to the embassy bombings, but as a result of Sudan's designation as a state-sponsor of terrorism, the United States imposed various sanctions against the Sudanese government in the early 1990s. These sanctions included restrictions on U.S. foreign assistance to Sudan, a ban on defense exports and sales, and other financial restrictions. Am. Compl. ¶ 62. In 1997, however, the United States went further, imposing a complete trade embargo on Sudan due to Sudan's continued support for terrorism, which made it unlawful to export goods and services, including financial services, to Sudan without a license from the Treasury Department's Office of Foreign Assets Control (“OFAC”). Am. Compl. ¶¶ 63-66. All U.S. banks and financial institutions were prohibited from processing financial transactions for the government of Sudan, its agencies, instrumentalities, and controlled entities. Am. Compl. ¶ 66. In addition, by January 1998, all of Sudan's national and major commercial banks were designated Specially Designated Nationals (“SDNs”) by OFAC.[2] Am. Compl. ¶¶ 67-68.

         The complaint alleges that BNPP did not comply with the U.S. sanctions regime against Sudan, and that had it done so, al Qaeda and Hezbollah would not have been able to receive the assistance from Sudan necessary to carry out the embassy bombings. In July 2014, BNPP pled guilty to one count of conspiring to violate the International Emergency Economic Powers Act (“IEEPA”) and the Trading with the Enemy Act (“TWEA”), see 50 U.S.C. § 1705.[3] Am. Compl. ¶¶ 73, 75. BNPP admitted to violating U.S. sanctions imposed on Sudan, Cuba, and Iran by conducting and concealing U.S. dollar-denominated transactions on behalf of sanctioned entities associated with those countries. See Am. Compl. ¶ 77; see also BNPP Plea Agreement Statement of Facts (“SOF”) [ECF No. 22-7] ¶¶ 14-16. BNPP stipulated in its plea agreement that this conspiracy took place between 2002 and 2012, based on banking relationships BNPP had established with Sudanese financial institutions as early as 1997. Am. Compl. ¶ 76; SOF ¶¶ 14, 17. Shortly after the imposition of U.S. sanctions in 1997, BNPP agreed to become the sole correspondent bank in Europe for a major Sudanese government bank, which then directed all major commercial banks in Sudan to use BNPP as their primary correspondent bank in Europe. As a result, most major Sudanese banks eventually held U.S. dollar-denominated accounts with BNPP. Am. Compl. ¶ 82; SOF ¶ 19. BNPP had also established relationships with unaffiliated regional satellite banks, located in Africa, Europe, and the Middle East. Am. Compl. ¶ 88; SOF ¶ 23. BNPP eventually used its relationships with these regional satellite banks to facilitate U.S. dollar payments for sanctioned Sudanese banks, using the banks as clearing houses to disguise the transactions with sanctioned entities. BNPP executives also directed BNPP employees to omit any references to Sudan in U.S. dollar payment messages, again to disguise the source of the transaction. Am. Compl. ¶¶ 90-91.

         Plaintiffs allege that these sanctions violations arose out of a conspiracy between BNPP and Sudan to move large amounts of money through the U.S. financial system on behalf of al Qaeda and Hezbollah, and that this money was necessary to the planning and perpetration of the U.S. embassy bombings. Plaintiffs allege that BNPP knew that in processing funds for Sudan, some of that money would end up with al Qaeda, and that BNPP therefore intended to provide material support to al Qaeda and Hezbollah in violation of U.S. criminal laws, including 18 U.S.C. §§ 2339A, 2339B, and 2339C, which constituted acts of international terrorism as defined in 18 U.S.C. § 2331(1). Am. Compl. ¶¶ 107, 110, 111, 118, 120, 123, 126, 128-29. Finally, plaintiffs allege that BNPP's actions aided and abetted al Qaeda's acts of international terrorism. Am. Compl. ¶ 130.

         II. DISCUSSION

         To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This requires a plaintiff to plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Court must take all allegations in the complaint as true, and draw all reasonable inferences in the plaintiffs' favor. See Aktieselskabet AF 21. November 2001 v. Fame Jeans, Inc., 525 F.3d 8, 15 (D.C. Cir. 2008). However, “labels and conclusions, ” “a formulaic recitation of the elements of a cause of action, ” or “naked assertion[s] devoid of further factual enhancement, ” do not satisfy the pleading standard. Iqbal, 556 U.S. at 678 (internal quotation marks omitted). The Court need not accept legal conclusions or inferences drawn by the plaintiff where those inferences are unsupported by facts alleged in the complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

         Here, defendants raise three principal arguments as to why plaintiffs' complaint fails to state a claim and should be dismissed under Federal Rule of Civil Procedure 12(b)(6). They argue that: (1) the complaint fails to adequately allege that defendants caused plaintiffs' injuries; (2) plaintiffs' claims are premised on theories of secondary liability not cognizable under § 2333; and (3) plaintiffs' claims are time-barred. See Mot. to Dismiss [ECF No. 17] at 9. Only the first two arguments will be reached here.

         A. Civil Liability Under the ATA

         Before discussing the arguments raised in defendants' motion to dismiss, it is necessary to first briefly outline the statutory framework of the ATA's civil liability provision. 18 U.S.C. § 2333(a) provides that “[a]ny national of the United States injured in his or her person . . . by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold . . . damages.” Thus, on its face, the ATA appears to require three things: (1) injury to a U.S. national, (2) an act of international terrorism, and (3) causation. The statute does not contain an express intent requirement, but courts that have explicitly addressed intent under § 2333 have concluded that the statute requires some kind of deliberate misconduct by the defendant, i.e., something more than mere negligence, in light of the treble damages provision; however, “deliberate disregard of the interests of others, ” i.e., recklessness, may be sufficient. Boim v. Holy Land Foundation for Relief and Development (“Boim III”), 549 F.3d 685, 692-93 (7th Cir. 2008) (en banc) (internal quotation marks omitted); see also Gill v. Arab Bank, PLC, 893 F.Supp.2d 474, 503 (E.D.N.Y. 2012); Wultz v. Islamic Republic of Iran, 755 F.Supp.2d 1, 42 (D.D.C. 2010); Goldberg v. UBS AG, 660 F.Supp.2d 410, 428 (E.D.N.Y. 2009).

         Discerning the intent element required by the statute becomes complicated by the meaning of “international terrorism, ” which is described in a lengthy definition as activities that:

(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the ...

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