United States District Court, District of Columbia
D. BATES UNITED STATES DISTRICT JUDGE
in this case are victims and family members of victims of the
1998 terrorist bombings of the U.S. embassies in Kenya and
Tanzania, which killed 224 people and injured thousands more.
The attacks were perpetrated by al Qaeda, with the assistance
of the Republic of Sudan, which provided al Qaeda with safe
harbor, as well as financial, military, and intelligence
assistance throughout the 1990s. See generally 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 obtained judgment against
Sudan for its role in the terrorist bombings, in protracted
litigation that began in 2001. 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). Earlier this year, the D.C. Circuit affirmed these
judgments against Sudan in most respects, but vacated all
punitive damages awards. See Owens v. Republic of
Sudan, 864 F.3d 751, 769 (D.C. Cir. 2017). Plaintiffs
now bring suit against defendant banks BNP Paribas, S.A.
(BNPP) and Al Shamal Islamic Bank under the civil liability
provision of the Anti-Terrorism Act (ATA), 18 U.S.C. §
2333, the Alien Tort Statute (ATS), 28 U.S.C. §1350, and
various common law torts, for allegedly conspiring with
Sudan, Sudanese banks, and al Qaeda to defeat U.S. sanctions
against Sudan. BNPP has moved to dismiss all of
plaintiffs' claims. See Def.'s Mot. to
Dismiss [ECF No. 13] at 1. For the reasons described below,
BNPP's motion will be granted and the complaint will be
following facts are drawn from plaintiffs' complaint.
Plaintiffs are U.S. citizens or foreign national employees or
contractors of the U.S. government who were killed or injured
in the 1998 embassy bombings, or their immediate family
members. Compl. [ECF No. 1] ¶ 31. Plaintiffs were
awarded judgments against Sudan for its role in the bombings
in prior litigation in this Court. Id. ¶¶
32, 85. The defendants are two banks, BNPP and Al Shamal.
BNPP is a multinational bank, incorporated under the laws of
France, and headquartered in Paris, France. Id.
¶ 18. During the time period relevant to the complaint,
BNPP operated affiliates, branch offices, and subsidiaries in
the U.S. Id. Al Shamal is a Sudanese bank
established in 1990, funded in part through a $50 million
capital contribution from Osama Bin Laden. Id.
¶ 154. Al Shamal allegedly maintained bank accounts for
al Qaeda, and provided financial and material support to al
Qaeda prior to, and after, the 1998 embassy bombings.
Id. ¶ 69.
complaint alleges a conspiracy among BNPP, Sudan, Sudanese
banks (including Al Shamal), and al Qaeda to defeat the
economic sanctions imposed by the U.S. on Sudan in November
1997. The complaint alleges that BNPP provided access to the
U.S. financial system to Sudan, Sudanese banks, and their
agents, who in turn provided material support to al Qaeda
which it used to carry out the terrorist attacks on the U.S.
embassies. Id. ¶¶ 1-2. According to the
complaint, the embassy bombings were carried out, in part, to
defeat U.S. sanctions against Sudan. Id.
¶¶ 12, 108.
Sudan, al Qaeda, and the Embassy Bombings
1991, Sudan invited al Qaeda-an international terrorist
network founded and led by Osama bin Laden-to establish
operations in Sudan. Id. ¶ 126. Sudan and al
Qaeda allegedly formed a mutually beneficial relationship.
For its part, Sudan provided al Qaeda with safe harbor, the
ability to operate with impunity, and access to the U.S.
financial system. Sudan also provided military and
intelligence assistance to al Qaeda and an airliner to
transport weapons, and facilitated travel for members of al
Qaeda by providing Sudanese passports, Sudanese citizenship,
and unregulated passage over the Sudan-Kenya border.
Id. ¶¶ 126, 134-36, 138, 140, 144, 151;
see Owens, 864 F.3d at 782-83. In return, al Qaeda
agreed to support the government in its war in southern Sudan
against Christians, and invested in Sudan's economy and
infrastructure, for example, by building roads, a major
highway, and an airport. Id. ¶¶ 126-127,
137; see Owens, 826 F.Supp.2d at 140.
U.S. designated Sudan as a state sponsor of terrorism in
1993, and has maintained that designation ever since. Compl.
¶ 131. A 1993 report by the U.S. State Department noted
that Sudan actively harbored international terrorist groups
and maintained relations with a wide range of Islamic
extremists. Id. ¶ 132. Also in 1993, Bin Laden
ordered an al Qaeda operative to Nairobi, Kenya to survey
U.S. targets, including the U.S. embassy. Id. ¶
133. The Sudanese intelligence service facilitated the
transport of al Qaeda operatives and funds from Sudan to a
terrorist cell operating in Nairobi. Id. ¶ 134.
Al Qaeda was present in Sudan in 1997 and 1998 leading up to
the embassy bombings and, according to the complaint, the
support that al Qaeda received from Sudan and the access
Sudan provided to its banking system was integral to al
Qaeda's plan to carry out the attacks. Id.
¶ 152. On August 7, 1998, al Qaeda attacked the U.S.
embassies in Kenya and Tanzania, killing 224 people and
injuring thousands more. Id. ¶ 118.
U.S. Sanctions Against Sudan and BNPP
to the terrorist bombings of the U.S. embassies, but as a
result of Sudan's designation as a state sponsor of
terrorism, the U.S. imposed various sanctions against the
Sudanese government in the early 1990s. In 1997, the U.S.
government imposed 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 U.S. Treasury
Department's Office of Foreign Assets Control (OFAC).
Id. ¶¶ 5, 103, 105. As a result of these
sanctions, virtually all trade and investment activities
involving the U.S. financial system, including the processing
of U.S. dollar transactions through the U.S., were prohibited
as to Sudan, its agencies, or instrumentalities. Id.
complaint alleges that BNPP did not comply with the U.S.
sanctions regime against Sudan and that, had it done so, al
Qaeda would not have been able to receive the assistance from
Sudan necessary to carry out the 1998 embassy bombings. In
July 2014, BNPP pled guilty in federal court to one count of
conspiring to violate the International Emergency Economic
Powers Act (IEEPA) and the Trading with the Enemy Act (TWEA).
Compl. ¶ 86; see 50 U.S.C. §
1705.BNPP admitted to violating U.S. sanctions
imposed on Sudan (as well as on Cuba and Iran) by conducting
and concealing U.S. dollar-denominated transactions on behalf
of sanctioned entities associated with those countries.
See Compl. ¶ 86; see also BNPP Plea
Agreement Statement of Facts (SOF) [ECF No. 13-2]
¶¶ 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. SOF ¶¶ 14,
after the imposition of U.S. sanctions in 1997, BNPP agreed
to become the sole correspondent bank in Europe for
Sudan's central bank, which then directed all major
Sudanese commercial banks 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. Compl. ¶ 87; SOF ¶ 19. This
included Al Shamal, which held an account at United European
Bank, a subsidiary of BNPP. Compl. ¶ 26. In November
1997, BNPP established relationships with unaffiliated
regional satellite banks located throughout Africa, Europe,
and the Middle East. Id. ¶ 107; SOF ¶ 23.
BNPP used these relationships to facilitate U.S. dollar
payments for sanctioned Sudanese banks, essentially using the
regional satellite banks as clearinghouses to disguise
transactions with sanctioned entities. Compl. ¶¶
107, 194. BNPP directed its employees to omit any references
to Sudan in U.S. dollar payment messages, in order to
disguise the source of the transactions from U.S.
authorities. Id. ¶¶ 182, 188, 190.
allege that BNPP's conduct violated: (1) the ATA, 18
U.S.C. §§ 2339A, 2339C and 2332d, entitling those
plaintiffs who are U.S. citizens to damages under section
2333, see Compl. ¶¶ 293-318 (Counts V and
VI); (2) the law of nations, thus entitling those plaintiffs
who are not U.S. citizens to damages under the ATS,
id. ¶¶ 255-292 (Counts III and IV); (3)
common law principles of conspiracy and aiding and abetting
various torts, id. ¶¶ 226-254 (Counts I
and II); and (4) constituted a fraudulent conveyance that
interfered with plaintiffs' ability to collect on the
judgment they obtained against Sudan from prior litigation,
id. ¶¶ 327-340 (Count VIII).
Owens v. BNP Paribas, S.A.
this year, this Court decided a case brought by a different
group of plaintiffs who are victims of the 1998 embassy
bombings against BNPP and two of its subsidiaries. Owens
v. BNP Paribas S.A., 235 F.Supp.3d 85 (D.D.C. 2017).
Plaintiffs in that case made allegations similar to
plaintiffs here, and asserted claims under the civil
liability provision of the ATA and various state tort laws.
This Court dismissed those claims based on plaintiffs'
failure to plead the required elements to state a civil
liability claim under the ATA. See id. at 98-100.
The Owens plaintiffs have appealed this Court's
judgment to the D.C. Circuit. See Owens v. BNP Paribas
S.A., No. 17-7037 (D.C. Cir. appeal docketed Feb. 28,
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)). A plaintiff must plead “factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. A complaint that “‘pleads facts that
are merely consistent with a defendant's
liability'” falls short of showing plausible
entitlement to relief. Atherton v. D.C. Office of the
Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (quoting
Iqbal, 556 U.S. at 678). The Court must take all
allegations in the complaint as true, and draw all reasonable
inferences in the plaintiffs' favor. See
Aktieselskabet AF 21. Nov. 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 (citation and internal quotation marks omitted).
The Court need not accept legal conclusions or inferences
drawn by the plaintiff which are unsupported by facts alleged
in the complaint. Food & Water Watch, Inc. v.
Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015).
DISCUSSION A. SUBJECT MATTER JURISDICTION
initially argues that the Court lacks subject matter
jurisdiction over plaintiffs' ATA and ATS claims because
plaintiffs have failed to individually allege their
nationalities. Def.'s Mot. to Dismiss at 11. The ATS and
the ATA establish subject matter jurisdiction for certain
plaintiffs. Ali v. Rumsfeld, 649 F.3d 762, 775 (D.C.
Cir. 2011); Gill v. Arab Bank, PLC, 893 F.Supp.2d
474, 495 (E.D.N.Y. 2012). The ATS provides that “[t]he
district courts shall have original jurisdiction of any civil
action by an alien for a tort only, committed in
violation of the law of nations or a treaty of the United
States.” 28 U.S.C. § 1350 (emphasis added).
Conversely, the ATA provides that “[a]ny national
of the United States injured in his or her person . . .
may sue therefor in any appropriate district court of the
United States . . . .” 18 U.S.C. § 2333(a)
(emphasis added). The term “national of the United
States” means (a) a citizen of the U.S., or (b) a
person who, though not a citizen, owes permanent allegiance
to the U.S. 18 U.S.C. § 2331(2); 8 U.S.C. §
complaint alleges that lead plaintiff Mary Ofisi is a Kenyan
national, Compl. ¶ 29; thus, she is an
“alien” as required to bring a claim under the
ATS. The complaint does not specify the individual
nationalities for the remaining 566 named plaintiffs; rather,
it alleges that “[e]ach of the other named plaintiffs
are either United States citizens or foreign national
employees or contractors of the United States Government who
were killed or injured in the 1998 East African Embassy
Attacks, or their immediate family members.”
Id. ¶ 31. The question is whether, as BNPP
argues, this is insufficient.
argument must be considered in the context of Rule 8's
requirement that the complaint provide “a short and
plain statement of the grounds for the court's
jurisdiction.” Fed.R.Civ.P. 8(a)(1). In assessing
whether a complaint sufficiently alleges subject matter
jurisdiction, the Court accepts as true the complaint's
allegations, see Iqbal, 556 U.S. at 678, and
liberally construes the pleadings such that the plaintiff
benefits from all inferences derived from the facts alleged,
Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir.
2004). “‘At the pleading stage, general factual
allegations of injury resulting from the defendant's
conduct may suffice.'” Attias v. Carefirst,
Inc., 865 F.3d 620, 625-26 (D.C. Cir. 2017) (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
light of these authorities, the Court is satisfied that the
complaint's allegation-that all of the named plaintiffs
are “either U.S. citizens or foreign national employees
or contractors of the United States
government”-provides a short and plain statement of the
court's jurisdiction, which is all that is required under
Rule 8. Granting plaintiffs the benefit of liberal
construction, the Court infers that the U.S. citizen
plaintiffs are asserting claims under the ATA, while the
other plaintiffs are asserting claims under the ATS. The
Court will therefore move forward and evaluate whether
plaintiffs have plausibly alleged the other elements required
to state those claims.
moves to dismiss the U.S. citizen plaintiffs' ATA claims
for failure to state a claim. See Def.'s Mot. to
Dismiss at 12-31. 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.” On its face, the ATA
appears to require: (1) injury to a U.S. national, (2) an act
of international terrorism, and (3) causation. Section 2333
does not contain an express intent element, but courts have
concluded that the statute requires some kind of deliberate
misconduct by the defendant, i.e., more than mere
negligence, although “deliberate disregard of the
interests of others” may be sufficient. Boim v.
Holy Land Found. for Relief & Dev., 549 F.3d 685,
692-93 (7th Cir. 2008) (en banc) (citation and internal
quotation marks omitted); see also Gill, 893
F.Supp.2d at 503; 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).
intent required under § 2333 is complicated by the
meaning of “international terrorism, ” which is
defined as activities that, inter alia,
“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 jurisdiction of the United States or
of any State.” 18 U.S.C. § 2331(1)(A). Section
2333 thus incorporates a range of state and federal crimes
that may constitute “acts of international
terrorism” if a plaintiff can show both that
the defendant committed the criminal violation and
that the crime satisfies the additional elements listed
above, i.e., injury to a U.S. national and
causation. In other words, “while section 2333 itself
requires at least reckless conduct, plaintiffs will also have
to show varying levels of scienter depending on the
underlying criminal violation alleged as constituting the
requisite ‘act of international terrorism.'”
Owens, 235 F.Supp.3d at 90-91; see also,
e.g., Gill, 893 F.Supp.2d at 504;
Goldberg, 660 F.Supp.2d at 427-28.
allege that BNPP violated three criminal provisions of the
ATA: 18 U.S.C. §§ 2332d, 2339A, and 2339C. Section
2339A(a) makes it a crime to “provide[ ] material
support or resources [to terrorists] . . . knowing or
intending that they are to be used in preparation for, or in
carrying out, a violation of” various criminal statutes
that prohibit, for example, the extraterritorial killing of a
U.S. national (§ 2332(a)) or the extraterritorial
bombing of a place of public use or a government facility
(§ 2332f(a)(1)). Section 2339C(a)(1) makes it a crime to
“by any means, directly or indirectly, unlawfully and
willfully provide[ ] or collect[ ] funds . . . with the
knowledge that such funds are to be used” to carry out
an act intended to cause death or serious bodily injury,
where “the purpose of such act, by its nature or
context, is to intimidate a population, or to compel a
government or an international organization to do or to
abstain from doing any act.” Finally, § 2332d(a)
makes is a crime for any “United States person, knowing
or having reasonable cause to know that a country is
designated under section 6(j) of the Export Administration
Act of 1979 . . . as a country supporting international
terrorism, ” to “engage in a financial
transaction with the government of that country.”
Before proceeding any further, the Court will dismiss
plaintiffs' claim for primary liability based on
BNPP's alleged violation of § 2339C because that
statute was enacted in 2002, four years after the relevant
conduct in this case leading up to the embassy bombings.
See Terrorist Bombings Convention Implementation Act
of 2002, Pub. L. No. 107-197, § 202, 116 Stat. 721, 724;
Owens, 235 F.Supp.3d at 98 (dismissing civil claim
against BNPP premised on § 2339C for same reason);
see also Boim, 549 F.3d at 691 (holding civil
liability may not be imposed under § 2333 because
defendant did not render material support to terrorist group
between the effective date of § 2339A and
parties have raised several issues of statutory
interpretation related to plaintiffs' remaining claims
under § 2339A and § 2332d. The first two
issues-whether § 2333 provides for aiding and abetting
liability and what standard of causation applies-are ones
that the Court recently resolved in Owens, 235
F.Supp.3d at 91-97. Hence, the Court will incorporate that
portion of the Owens opinion here and only briefly
summarize those issues below. The third- whether BNPP is a
“United States person” for purposes of §
2332d-was not raised in Owens and will thus be
addressed fully below.
Aiding and Abetting Liability
parties dispute whether section 2333 of the ATA permits
secondary liability claims for aiding and abetting.
See Mot. to Dismiss at 26-29; Pls.' Opp'n
[ECF No. 19] at 23-25. The Court decided this issue in
Owens where, after surveying the relevant case law,
it concluded that the prior version of the ATA that is
applicable to plaintiffs' claims in this case does not
provide for civil aiding and abetting liability under §
2333. See 235 F.Supp.3d at 91-95. Plaintiffs argue
here that the Court should follow an earlier decision by a
court in this district, see Wultz, 755 F.Supp.2d at
56-57,  that recognized aiding and abetting
liability under the ATA, instead of decisions from the Second
and Seventh Circuits going the other way. This Court already
considered and rejected this argument in Owens, 235
F.Supp.3d at 93. Thus, to the extent that plaintiffs' ATA
claims are based on an aiding and abetting theory, they will
parties also dispute the applicable causation standard.
Section 2333(a) requires that a plaintiff be injured
“by reason of” an act of international terrorism.
The parties agree that the “by reason of”
language requires plaintiffs to show that BNPP's conduct
proximately caused the attacks, but they appear to disagree
about what that means. See Def.'s Mot. to
Dismiss at 13-14; Pls.' Opp'n at 28-30. This Court
also resolved this issue in Owens, concluding that
§ 2333 requires a showing of proximate cause as that
“term is typically defined.” 235 F.Supp.3d at 97
(citing Burnett, 274 F.Supp.2d at 105
(“Proximate cause is defined as a test of whether the
injury is the natural and probable consequence of the
negligent or wrongful act and ought to have been foreseen in
light of the circumstances.” (internal quotations
omitted))); see Siegel v. SEC, 592 F.3d 147, 159
(D.C. Cir. 2010) (“[P]roximate causation . . . is
normally understood to require a direct relation
between conduct alleged and injury asserted.” (citation
and internal quotation marks omitted)). That is the standard
that the Court will apply to plaintiffs' ATA claims here.
United States Person Under § 2332d
final issue of statutory interpretation concerns whether BNPP
qualifies as a “United States person” under
§ 2332d. BNPP argues that it does not and that
plaintiffs' claim founded on BNPP's alleged violation
of this statute should therefore be dismissed. Def's.
Mot. to Dismiss at 30-31.
2332d defines “United States person” to mean a:
“(A) United States citizen or national; (B) permanent
resident alien; (C) juridical person organized under the laws of
the United States; or (D) any person in the United
States.” Notwithstanding the complaint's conclusory
allegations that BNPP is a “United States person”
within the meaning of § 2332d, see Compl.
¶¶ 98, 312, the complaint acknowledges that BNPP is
“a French multinational bank, incorporated under
the laws of France, and headquartered in Paris, France,
” id. ¶ 18 (emphasis added). Hence, BNPP
clearly does not qualify as a “juridical person
organized under the laws of the United
States.” 18 U.S.C. § 2332d(b)(2)(C) (emphasis
added); see also Abecassis v. Wyatt, 785 F.Supp.2d
614, 648 (S.D. Tex. 2011) (finding liability under §
2332d “does not extend to [two companies] because they
are foreign entities”); United States v.
Chalmers, 474 F.Supp.2d 555, 565-66 (S.D.N.Y. 2007)
(dismissing criminal charges under § 2332d against a