Kashef et al v. BNP Paribas SA et al
OPINION AND ORDER. For the reasons stated above, Defendants motion to dismiss Plaintiffs claims for failure to state a claim under Swiss law is GRANTED IN PART AND DENIED IN PART. This resolves Dkt. No. 65. Discovery in this case was postponed pendin g resolution of the instant motion. Dkt. No. 24. The Court will schedule an initial pretrial conference by subsequent order and provide instructions for submitting a proposed case management plan. So ordered. (Signed by Judge Alison J. Nathan on 2/16/2021) (rjm)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Entesar Osman Kashef, et al.,
OPINION & ORDER
BNP Paribas SA, et al.,
ALISON J. NATHAN, District Judge:
This putative class action is brought on behalf of victims of the Sudanese government’s
campaign of human rights abuses from 1997 to 2009. Plaintiffs bring various state law claims
against Defendant financial institution and its subsidiaries for assisting the Sudanese government
in avoiding U.S. sanctions, which Plaintiffs claim provided the Regime with funding used to
perpetrate the atrocities. The Court previously granted the Defendants’ motion to dismiss in
light of the act of state doctrine and timeliness, but that decision was reversed by the Second
Circuit. Dkt. Nos. 101, 106. Following remand, the Defendants renewed their motion to dismiss
Plaintiffs’ Second Amended Complaint for failure to state a claim. For the reasons described in
this opinion, the motion is granted in part and denied in part.
A. Factual Background
Plaintiffs were victims of horrific human rights abuses undertaken by the Government of
Sudan between 1997 and 2009, including “beatings, maiming, sexual assault, rape, infection with
HIV, loss of property, displacement from their homes, and watching family members be killed.”
Second Amended Complaint (“SAC”), Dkt. No. 49, ¶ 24; see also SAC ¶¶ 30-50 (outlining
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specific abuses suffered by each representative Plaintiff). The Defendants are BNP Paribas S.A.,
a French financial institution, as well as several of its branches and subsidiaries, as well as
individual defendants working for the bank (collectively "BNPP").
Between 1992 and 1997, in response to the Government of Sudan’s human rights abuses
against its own people, the United States government took a series of steps aimed at stemming
the abuses, including formal condemnation, designation as a state sponsor of terrorism, and
eventually economic sanctions. SAC ¶¶ 85-89. In 2002, Congress passed the Sudan Peace Act,
again condemning the ongoing atrocities in the Sudan and requiring the President to implement
additional sanctions. SAC ¶¶ 90-92. Additional legislation and executive orders implemented
further sanctions between 2004 and 2006. SAC ¶¶ 93-97.
Beginning in 1997 and continuing through 2007, BNPP became the primary bank of the
Government of Sudan, through which it accessed U.S. financial markets and circumvented U.S.
sanctions. SAC ¶¶ 102-14. BNPP created several schemes to avoid the sanctions, including
removing information from financial documents identifying that a Sudanese entity was one of
the parties involved in the financial transaction, SAC ¶ 111, and using satellite banks in the
United States through which to funnel money, SAC ¶¶ 112-13. According to the Second
Amended Complaint, Sudan’s access to U.S. financial markets was critical to funding the
government, including its continued atrocities against its people. SAC ¶¶ 115-51.
BNPP’s actions were investigated by numerous state and federal agencies in the United
States, and in 2014, BNPP pled guilty to conspiring to violate the laws of the United States in
connection with circumventing U.S. sanctions on behalf of Sudan, Iran, and Cuba. SAC ¶¶ 19198. BNPP also pled guilty to falsifying business records and conspiracy under New York law.
SAC ¶¶ 199-201.
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B. Procedural Background
The operative complaint alleges twenty state-law claims against Defendants, including
negligence per se, conspiracy to commit battery, aiding and abetting assault, and intentional
infliction of emotional distress. See SAC ¶¶ 247-529. Defendants moved to dismiss the Second
Amended Complaint in its entirety. Dkt. No. 65.
On March 30, 2018, the Court granted Defendants’ Motion to Dismiss. Dkt. No. 101.
The Court determined that the Act of State Doctrine barred Plaintiffs claims sounding in
secondary liability, negligence per se, intentional infliction of emotional distress, and negligent
infliction of emotional distress. Id. at 9-10. The Court dismissed the remaining claims because
they were either time-barred or because Plaintiffs had failed to state a claim. Id. at 15. Plaintiffs
appealed. Dkt. No. 103.
The Second Circuit reversed the Court’s decision, holding that Plaintiffs’ claims were not
barred by the Act of State Doctrine nor were they untimely. Dkt. No. 106. This Court then
ordered supplemental briefing on the remaining claims in Defendants’ Motion to Dismiss that
were not addressed in the Court’s original opinion, including the issue of whether New York,
Sudanese, or Swiss Law applies to Plaintiffs’ claims. Dkt. No. 115.
In a prior Opinion & Order, this Court held that Swiss Law applies to Plaintiffs’ claims.
Dkt. No. 151. The parties then conducted expert discovery on the meaning of Swiss law and
submitted supplemental briefing on the issue of whether Plaintiffs had stated a claim under Swiss
Law. Dkt. No. 155.
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For the reasons explained below, the Court adopts Plaintiffs’ expert’s descriptions of the
applicable Swiss law and determines that the Second Amended Complaint sufficiently states a
claim for relief for all of Plaintiff’s claims except those sounding in primary tort liability.
A. Summary of the Swiss Law Applicable to this Case
Pursuant to Federal Rule of Civil Procedure 44.1, the parties provided the Court
testimony of experts in Swiss Law on the question of whether the complaint should be dismissed.
Plaintiffs’ expert is Franz Werro, a tenured Professor of Law at the University of Fribourg and
Georgetown University Law Center and President of the Council of the Swiss Institute of
Comparative Law. See Werro Dec., Dkt. No. 174. Defendants have retained Vito Roberto, a
Swiss lawyer and Professor at the University of St. Gall in Switzerland. See Roberto Dec., Dkt
No. 169. Both experts have considerable experience and expertise in the area of Swiss tort law.
The parties’ experts agree that the operative provision of Swiss Law in this case is Article
50.1 of the Swiss Code of Obligations. See Dkt. No. 172 at 7-8, Defendant’s Supplemental Brief
(“Def. Supp.”); Dkt. No. 173 at 5, Plaintiff’s Supplemental Brief in Opposition (“Pl. Opp.”).
Article 50.1 provides for secondary tort liability. The article requires that: “Where two or more
persons have together caused damage, whether as instigator, perpetrator or accomplice, they are
jointly and severally liable to the person suffering damage.” Roberto Dec. ¶ 13 (quoting the
Swiss Code of Obligations, Art 50.1). The parties also agree that the Second Amended
Complaint alleges that BNPP is an “accomplice” and not a “perpetrator” as those terms are used
in the article. Def. Supp. at 8.
The parties’ experts also agree on the basic elements required to establish a claim under
Article 50.1. They are: “(1) a main perpetrator committed an illicit act, (2) the accomplice
consciously assisted the perpetrator and knew or should have known that he was contributing to
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an illicit act, and (3) their culpable cooperation was the natural and adequate cause of the
plaintiff’s harm or loss.” Roberto Reply Dec., Dkt. No. 170 ¶ 6.
B. Plaintiffs’ Primary Liability Tort Law Claims
A number of Plaintiffs’ claims in the Second Amended Complaint sound in primary tort
liability. The parties’ experts agree that Article 50.1 provides for secondary tort liability, as
explained above, and that the provision in Swiss Law for primary tort liability is Article 41 of the
Swiss Code of Obligations, which states that “[a]ny person who unlawfully causes damage to
another, whether willfully or negligently, is obliged to provide compensation.” Roberto Dec. ¶
13 (quoting the Swiss Code of Obligations, Article 41). However, in their supplemental briefing,
Plaintiffs do not claim that Article 41 applies to any of the claims in their Second Amended
Complaint. See Pl. Opp. at 5. Therefore, Plaintiffs’ claims alleging the independent torts of
negligence per se, outrageous conduct causing emotional distress, and negligent infliction of
emotional distress are dismissed for failure to state a claim under Swiss Law.
C. Plaintiff’s Secondary Tort Law Claims
That leaves the Defendants’ motion to dismiss Plaintiffs’ remaining claims for failure to
state a claim under Swiss Law. As a preliminary matter, in determining the applicable legal
standard, the Court generally found Professor Werro’s testimony on the requirements of Article
50.1 to be credible and more accurate than Professor Roberto’s. Professor Werro has written
extensively on Article 50.1 and has been cited by the Swiss Supreme Court on this precise
provision. Werro Dec. ¶ 10. His authority has been recognized by other courts in this district.
See Mastercard Intern. Inc. v. FIFA, 464 F. Supp. 2d 246, 303 (Judge Preska found Professor
Werro’s conclusions “to be the most persuasive and informative,” and called him “eminently
qualified” and adopted his opinions and conclusions “in their entirety.”). Though Professor
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Roberto is a respected scholar and generally qualified to opine on matters of Swiss Tort Law, for
the reasons explained in this section, the Court did not find his descriptions of the legal
requirements of Article 50.1 to be persuasive.
The Court instead primarily adopts Professor Werro’s description of the elements and
applies them to the claims in Plaintiffs’ Second Amended Complaint. To survive Defendants’
motion to dismiss, Plaintiffs must “state a claim for relief that is plausible on its face” under
Swiss law. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim achieves “facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). When considering a motion to dismiss for failure to state a claim, “a court must
accept as true all of the [factual] allegations contained in [the] complaint.” Iqbal, 556 U.S. at
678, 129 S.Ct. 1937.
1. Element One
The first element of an Article 50.1 claim is that a “main perpetrator commit an illicit
act.” Roberto Reply Dec. ¶ 6. The parties stipulate that this element is satisfied here. See Def.
Supp. at 8. The main perpetrator is the Sudanese government and the illicit acts are the atrocious
genocide and human rights violations it perpetrated for over a decade beginning in the early
1990s. See SAC ¶ 4.
2. Element Two
The Second Element of Article 50.1 requires that “the accomplice consciously assisted
the perpetrator and knew or should have known that he was contributing to an illicit act.”
Roberto Reply Dec. ¶ 6.
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The Court first determines the meaning of this standard under Swiss Law. While the
parties’ experts agree on this definition of the element, they provide varying interpretations of
the culpable mental state required by it. Professor Werro argues Article 50.1 requires that the
accomplice either knew or should have known both that it was providing assistance and that the
assistance was contributing to an illicit act. Werro Dec. ¶ 33. The accomplice need not desire or
intend the assistance, nor need there be an express agreement. Id. Thus, as Professor Werro
explains, “conscious assistance” includes various “culpable states of mind,” including not only
intentionality but also knowledge, recklessness and negligence. Id. Professor Roberto,
however, disagrees with this interpretation. He asserts that “conscious” assistance means
cooperating “intentionally” and “deliberately.” Roberto Dec. ¶ 27. Therefore, negligence,
recklessness, or even “[m]ere knowledge” do not “establish joint liability” under his view. Id.1
He also claims that that the accomplice’s participation must be either “willful or immediate” and
must also be “substantial.” Id. at ¶ 59.
The Court determines that Professor Werro’s position that an accomplice need only be
negligent as to its cooperation in tort is the accurate description of how the Swiss Supreme Court
has interpreted Article 50.1. In contrast, Professor Roberto’s interpretations of the Swiss case
law in the record are flawed. For his interpretation that “conscious assistance” means
cooperating “intentionally or deliberately,” Professor Roberto cites to what the experts refer to as
“the Locksmith case.” In the Locksmith case, the Swiss Supreme Court said – according to
Professor Roberto’s own English translation – that an accomplice must have “cooperated
deliberately” under Article 50.1. Dkt. No. 169, Def. Exhibit 5. But as Professor Werro explains
Moreover, while the act of assistance must be intentional or deliberate, according to Professor Roberto the
accomplice need only be negligent as to the “loss or damage that occurred,” in that the accomplice either knew “or
should have known that the collective conduct could lead to such loss or damage.” Roberto Dec. ¶ 30-31.
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in response, in this precise paragraph of the Locksmith case, the court was in fact citing his own
scholarly work, and he is confident that the court was not referring to intentional conduct. The
confusion, he argues, comes from Professor Roberto’s mistranslation of that language. Professor
Roberto translates “les auteurs doivent avoir coopéré consciemment,” to “the tortfeasors must
have cooperated deliberately.” Werro Dec. ¶ 25. But the proper translation of “consciemment”
is actually “consciously,” which Professor Werro explains includes unintentional conduct.
Werro Dec. ¶ 60.
Aside from whether his translation is accurate, Professor Roberto’s selective quotation to
the words “cooperating deliberately” for his proposition that intentionality is required under
Article 50.1 is problematic. The remainder of that paragraph of the opinion suggests that
negligence is sufficient: “each perpetrator must have known or been capable of knowing, when
exercising due care, that the others were involved in the harmful act” and that Article 50.1
requires that “[e]ither all of the perpetrators sought that the damage should occur (intent), or they
have at least considered that the damage may occur (recklessness), or they could have prevented
it had they had paid due attention to the circumstances (negligence).” Id. (emphasis added).
In addition to the Locksmith case, another case provided by Defendants, the “Shooting
Contest Case,” is demonstrably incompatible with Professor Roberto’s contention that
negligence is insufficient. In that case, the innkeeper of a hotel was found liable under Article
50.1 when inebriated soldiers organized a shooting contest in the hotel garden and a nearby guest
was struck in the eye by a stray bullet. Dkt. No. 169, Def. Exhibit 23. The Court held him liable
despite a finding that the innkeeper may not have even known about the contest, reasoning that
“[f]or there to be conscious collaboration, it is not necessary for the participants to consult with
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each other,” instead “[i]t is sufficient that they should recognize that their actions or their
omissions are the cause of the damage that occurs subsequently.” Id. (emphasis added).
The Court also declines to adopt Professor Roberto’s view that an accomplice’s
participation must be either “willful or immediate,” as well as “substantial.” Roberto Dec. ¶ 59.
Professor Roberto does not cite to any case law or even a secondary source for this proposition.
In response to this criticism in Professor Werro’s testimony, Professor Roberto admits in his
reply that these “requirements” are not elements articulated by the Swiss courts, but are instead
his own interpretation of the law as he believes it should be applied based on his analysis of the
cases. Roberto Reply Dec. ¶ 25 (“My Supplemental Declaration presents the willfulness and
substantiality or immediateness and substantiality requirements as descriptions of the elements . .
. these elements demonstrate how art. 50 section 1 CO should be applied.”).
The Court therefore finds Professor Werro’s descriptions of Article 50.1 and the
surrounding case law to be coherent, credible, and supported by Swiss case law. In contrast,
Professor Roberto’s interpretation is unsupported by, and at times inconsistent with, those cases.
The Court adopts Professor Werro’s view that Article 50.1 allows liability if an accomplice
“intentionally or unintentionally assists the illicit act of the perpetrator who himself is also at
fault.” Werro Dec. ¶ 33. And the Court agrees that, as applied to this case, Plaintiffs must
“allege, at a minimum, that BNPP consciously cooperated with the Sudanese government by
providing financial support and that it knew or should have known, had it exercised due care,
that its support would contribute to the Sudanese government’s violation of human rights.”
Werro Dec. ¶ 35.
Next, the Court applies this standard to the facts alleged in the Second Amended
Complaint. Plaintiffs have plausibly alleged that BNPP was, at the very least, negligent as to its
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contribution to the Sudanese regime’s tortious conduct. First, the Second Amended Complaint
contains sufficient facts showing BNPP was well aware (or at least should have been aware) of
the horrific events in Sudan, and that it knew that the country had been sanctioned by the U.S. at
least in part for that reason. Plaintiffs allege that, beginning in the late 1990s, there was
widespread, contemporaneous reporting in the international media and world governments on the
human rights abuses being perpetrated by the Sudanese regime. SAC ¶¶ 153-169. They allege
it was also well known at the time that the atrocities were being committed in pursuit of
developing oil rich lands against the inhabitants there. Indeed, Plaintiffs allege that a number of
other Western companies doing business Sudan – in particular in the financial and oil industries
– were chastised by the international media and their home governments to the point where they
were forced to withdraw from Sudan because of public pressure. SAC ¶¶ 170-190.
Moreover, Plaintiffs allege that the United States government had taken an open and clear
stance condemning the Sudanese regime’s atrocities at this point and had specifically recognized
the link between the Sudanese government’s oil industry and its perpetration of violence. SAC
¶¶ 83-100. To that end, Congress passed legislation and two Presidents issued a series of
executive orders aiming to cut off all assistance and aid to the Sudanese government, in
particular it’s most critical industry – oil. Id. An Executive Order announcing the sanctions
explicitly recognized that the “policies and actions of the Government of Sudan . . . violate
human rights, in particular with respect to the conflict in Darfur.” SAC ¶ 111. Most
importantly, Plaintiffs allege that internal communications at BNPP will show that senior
officials expressly recognized the human rights abuses in Sudan, referring to it as a “human
catastrophe.” SAC ¶ 184. Thus, based on the information that was allegedly available to BNPP
at the time as an entity doing business in Sudan, Plaintiffs have sufficiently alleged that BNPP
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either knew or at the very least should have known that the Sudanese government was engaging
in a campaign of human rights abuses that was linked to its oil industry and that the U.S.
Sanctions that Defendant was violating were imposed at least in part for the purpose of
preventing the Regime’s ability to continue that campaign.
To demonstrate negligence even further, Plaintiffs have also plausibly alleged that BNPP
actively sought to hide its business activity in Sudan, suggesting that BNPP was in fact aware of
the human rights atrocities going on there and that its financial assistance was contributing to
those atrocities in violation of U.S. sanctions. According to the Second Amended Complaint,
BNPP used “deceptive procedures and transaction structures” to avoid detection by the U.S.
government, such as omitting references to Sudanese entities in its transactions and using
unaffiliated banks. SAC ¶¶ 111-112. Plaintiffs also point to alleged internal communications at
BNPP where senior officials acknowledge that they were violating U.S. sanctions (a fact BNPP
also pled guilty to in U.S. Court, SAC ¶ 17), referred to their activity in Sudan as a “dirty little
secret,” and acknowledged that their provision of financial services “played a pivotal part in the
support of the Sudanese government which . . . refuses the United Nations intervention in
Darfur.” SAC ¶ 183-189.
The Court therefore agrees with Plaintiffs that, assuming these factual allegations are
true, it is at least plausible that BNPP knew or should have known: that the Sudanese regime
was engaged in a campaign of human rights abuses, that it was massively enriching the Regime
by providing it access to U.S. dollars to sell its oil, that the profits from the relationship were
being used to fund the military, that the military was committing atrocities in pursuit of obtaining
more oil (which BNPP again would then allegedly help the Regime sell as part of their profitable
business relationship), that its assistance to the Regime was in violation of U.S. sanctions, and
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that those sanctions had been imposed in part to prevent the Regime’s atrocities. Plaintiffs have
therefore plausibly alleged that BNPP was at least negligent under Swiss law as to its
contribution to tortious conduct.
3. Element Three
The third element of an Article 50.1 claims is that the accomplice’s “culpable cooperation
was the natural and adequate cause of the plaintiff’s harm or loss.” Roberto Reply Dec. ¶ 6. The
parties’ experts agree that the concepts of “natural” and “adequate” cause are similar to the
concepts of “but for” and “proximate” cause in United States tort law. Werro Dec. ¶ 27; Roberto
Reply Dec. ¶ 29.
a. Natural Causation
Professor Werro describes “natural cause” as the requirement that “[a] natural causal link
exists where the harm would not have occurred at the same time or in the same way or
magnitude without the conduct alleged.” Werro Dec ¶ 47. Professor Roberto does not address
the issue of natural cause as it pertains to this case in his testimony, but Defendants argue in their
motion to dismiss that “Plaintiffs likely haven’t even satisfied the requirement of pleading but for
causation” because “Sudan was committing human rights violations before and after the period
in which the BNPP Defendants were violating U.S. sanctions.” Def. Supp. at 20. Defendants
point to no authority from either the Swiss or United States courts for their proposition that an
accomplice is not a “but for” cause if the primary tortfeasor was still able to commit some torts
against the plaintiff without the help of the accomplice. To the contrary, under Professor
Werro’s uncontested definition, Plaintiff’s need only allege that the human rights abuses “would
not have occurred at the same time or in the same way or magnitude without the conduct
alleged” in order to satisfy natural causation. Werro Dec. ¶ 47; Roberto Reply Dec. ¶ (noting
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that he and Mr. Werro’s testimony differ with regard to their understanding of adequate
causation but not disputing natural causation).
Plaintiffs have adequately alleged that the deaths, rapes, assaults, displacements, and
other instances of tortious conduct would not have occurred in the same magnitude or frequency
if BNPP had not provided the Sudanese regime with financial services. The Second Amended
Complaint explains that BNPP’s role as the Sudanese government’s “de facto central bank”
directly fueled the atrocities: BNPP helped the Regime subvert its ban from U.S. financial
markets, which generated massive revenues in oil sales that allowed the Regime to “equip and
mobilize armed forces,” which then “committed ethnic cleansing in oil regions to obtain and sell
more oil.” Pl. Opp. at 18. In short, Plaintiffs’ allege that BNPP was a core piece of the “oilgenocide nexus as its chief financier.” Id. at 19.
Though Defendants argue that “it cannot be presumed the funds accessed by Sudan
through the BNPP Defendants’ financial services were actually used for the attacks that injured
plaintiffs,” Def. Supp. at 19, that is in fact precisely what Plaintiffs here allege. Plaintiffs claim
that the revenue generated for the Sudanese government by BNPP’s assistance exceeded its
entire military budget, leading to a massive increase in military expenditures (ten times what it
had been prior to the Sudanese government’s partnership with BNPP), which is why the
Regime’s “attacks on civilian populations . . . occurred with greater frequency and velocity after
BNPP agreed to partner with” it. SAC ¶ 103, 120. Plaintiffs also allege that the government of
Sudan used its newfound access to U.S. financial markets provided by BNPP to import
sophisticated weapons from major arms suppliers in China, Russia, Ukraine, Iran and Belarus.
Id. at ¶¶ 127-128. At this stage, those allegations are sufficient to demonstrate a factual causal
link between BNPP and the increase in human rights abuses.
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b. Adequate Causation
The parties’ experts agree on the fundamental definition of adequate cause. Professor
Werro explains that “[a]n adequate causal link exists when the wrongdoer’s conduct was
capable, in the ordinary course of events and common experience, of leading to the kind of result
that occurred.” Werro Dec. ¶ 48. According to Professor Roberto, “an act is an adequate cause
for a loss or damage if, based on the usual course of events and common experience, it can fairly
be considered the cause of the kind of loss or damage that occurred.” Roberto Dec. ¶ 38. In
other words, the ultimate question of adequate cause is similar to that of proximate cause in
United States common law, which is whether it is reasonable to consider this person’s conduct
the cause of the result that occurred. See CSX Transp., Inc. v. McBride, 564 U.S. 685, 692, 131
S. Ct. 2630, 2637, 180 L. Ed. 2d 637 (2011) (“The term ‘proximate cause’ is shorthand for a
concept: Injuries have countless causes, and not all should give rise to legal liability.”). Thus,
also like proximate cause, the requirement of adequate cause works as a limit on legal liability in
an otherwise infinite chain of but-for causal effects. See Roberto Dec. ¶ 36. According to
Professor Roberto’s (uncontested) translation of a Swiss Federal Supreme court case, “the
answer to the question of adequacy is therefore based on a value judgment” in which the court
decides whether a result “can reasonably be attributed the liable party.” Id.
However, the experts disagree on how a court is to make this value judgment. Professor
Werro argues that the test is whether the result was “objectively foreseeable.” Werro Dec. ¶ 50.2
Professor Roberto argues that adequate cause “requires more than just foreseeability,” as the
contribution must also be “substantial,” Roberto Dec. ¶¶ 31, 39. Again, Professor Roberto
Professor Werro cites only to a criminal law case for this proposition, which is not binding in the civil context.
Werro Dec. ¶ 50, ¶ 48 n. 49. However, he maintains that the civil courts nonetheless adhere to this framework, and
Professor Roberto appears to agree that the concept of foreseeability is one aspect of the determination, though as
explained above, he argues more is required.
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provides no citations to support his claim that a conduct must be a “substantial” contribution to
the harm in order to be an adequate cause, and instead this appears to be his own interpretation of
when the Swiss courts have found liability based on his reading of those cases. Professor Werro,
who the Court determines to be credible, denies that the Swiss courts demand that an act be
“substantial” in order to constitute adequate cause. Werro Dec. ¶ 49. The Court therefore
determines, based on the experts reports, that a finding of adequate cause under Swiss tort law
requires determining whether it would be “reasonable” to hold BNPP responsible for causing at
least some of human rights abuses in Sudan, which includes looking at the factor of whether
those atrocities were foreseeable to BNPP at the time.
In applying this standard to the instant case, the Court notes that this type of factintensive inquiry is not usually resolved on a motion to dismiss for failure to state a claim. In
U.S. courts, the similar issue of proximate cause “generally remains an issue of fact for the jury,”
Am. Tissue, Inc. v. Donaldson, Lufkin & Jenrette Sec. Corp., 351 F. Supp. 2d 79, 91 (S.D.N.Y.
2004) (citing Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 840-41 (1996)), and thus is not
decided at the pleadings stage “unless only one conclusion may be drawn from the established
facts and the question of legal cause may be decided as a matter of law.” Johnson v. Bryco
Arms, 304 F. Supp. 2d 383, 395 (E.D.N.Y. 2004). A plaintiff need only plausibly allege facts
from which a jury could find that the defendant’s conduct should reasonably be considered a
cause of the subsequent harm.
See, e.g., In re Barclays Liquidity Cross & High Frequency
Trading Litig., 390 F. Supp. 3d 432, 450 (S.D.N.Y. 2019) (“Plaintiffs plausibly allege that the
Exchanges’ alleged misconduct was a proximate cause of the economic loss they suffered by
trading in the manipulated securities markets” because “the zone of foreseeable risk created by
the Exchanges’ allegedly manipulative scheme included the risk that investors trading on the
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Exchanges’ platforms would be victimized by the very products and services that the scheme
allegedly concealed.”). Nonetheless, a court may dismiss a compliant for failure to allege
proximate clause if those allegations are wholly conclusory or if the set of facts alleged, even if
true, are “too attenuated to satisfy the proximate cause requirement,” or if the “chain of causation
. . . is far too long to constitute proximate cause” or “rest[s] on mere conjecture” or “depend[s]
on the intervention of multiple parties.” MF Glob. Holdings Ltd. v. PricewaterhouseCoopers
LLP, 43 F. Supp. 3d 309, 314-15 (S.D.N.Y. 2014). See also In re Aluminum Warehousing
Antitrust Litig., 833 F.3d 151, 163 (2d Cir. 2016) (affirming dismissal where plaintiffs had not
alleged that defendant “proximately cause[d] the claimed injury . . . because [plaintiffs’] alleged
injuries are too remote.”). Here too, the Court will not dismiss Plaintiffs’ claim for lack of
adequate cause unless the facts alleged demonstrate a causal link that is far too attenuated or
remote to be considered reasonable.
The Court determines that Plaintiffs have plausibly alleged adequate cause, meaning that,
assuming those allegations to be true, a jury could find that BNPP’s provision of illegal financial
services to the Sudanese regime can be reasonably considered to have directly resulted in at least
some of the harm done to Plaintiffs. To be sure, Defendants correctly point out that the causal
chain between BNPP conducting transactions for Sudan and the acts of murder, rape, assault,
battery, displacement, and other horrendous acts of violence perpetrated on Plaintiffs has
multiple links: BNPP provided the Sudanese government with a means to evade U.S. sanctions
so it could access U.S. financial markets, in turn this allowed the Sudanese regime to generate
significant profits from its oil industry, which permitted them to mobilize and equip armed forces
that the Regime then directed to commit violent atrocities to secure more oil. SAC ¶¶ 101-135.
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However, it is not just the mere number of links in the chain that determines whether it is
reasonable to hold BNPP responsible, but also whether each subsequent link was the natural and
foreseeable result of the former. The facts alleged in Plaintiffs’ Second Amended Complaint,
assuming they are true, demonstrate that BNPP knew or at least should have known that the
Sudanese government was committing horrific abuses, that those abuses were committed with
weapons and soldiers that were bought with funds generated by its relationship with BNPP, that
the Regime would not otherwise be able to obtain those funds without BNPP deciding to break
the law, and that the purpose of that law was at least in part to prevent the Regime from
continuing those abuses – which is why BNPP undertook measures to evade detection of its
activities from the U.S. government, its shareholders, and the world. SAC ¶¶ 101-114.
Moreover, according to the Second Amended Complaint, the violence committed by the
Sudanese government and the transactions with BNPP are linked by more than just one-way
flows of cash. The Sudanese government was using its newly funded military force to
monopolize the oil rich regions of Sudan, and in doing so engaged in ethnic cleansing,
displacement, and murder of inhabitants of those regions. SAC ¶ 143-147. In other words, it
was using the profits from its oil to obtain more oil. Id. at ¶ 143 (“Much of the focus of the
[regime’s] attacks was on civilians living in the path of oil development.”). And the oil-centered
focus of Sudan’s human rights abuses, Plaintiffs allege, was widely reported at the time. SAC ¶¶
This is a key part of the cycle alleged by Plaintiffs: the more BNPP helped the Regime
access U.S. dollars, the more money the Regime made from its oil industry, the more it could
fund its military, the more oil it could produce by using armed forces to seize and develop oil
rich lands, the more it needed access to U.S. dollars to sell the oil, the more money the Regime
Case 1:16-cv-03228-AJN Document 193 Filed 02/16/21 Page 18 of 21
and BNPP made, the more BNPP helped the Regime access U.S. dollars. See id. Thus, BNPP
allegedly knew or should have known not just that the profits it was helping generate would go
towards genocide, but that it was able to generate those profits for the Regime (taking a cut for
itself) in part because of genocide. In other words, it is more reasonable to consider BNPP the
adequate cause of the violence when the violence was allegedly perpetrated to increase and
continue that profitable business relationship.
Defendants’ remaining arguments are unpersuasive. First, they argue that Plaintiff has
failed to state an Article 50.1 claim under what the parties refer to as the “Swisscom case.” Def.
Supp. at 18-19. In that case, which is the only case that Defendants’ experts provided where a
Swiss court has found that there was no adequate cause, the Swiss Federal Supreme Court
declined to hold an internet servicer liable for the copyright infringement of third parties, even
though it was aware of the infringement happening through the use of its platform and declined
to block those webpages. Id. Defendants argue that this factual scenario is analogous to BNPP’s
conduct here, as it provided a “service” to the government of Sudan and thus should not be held
liable as an accomplice for whatever the Regime did next. Id.
As Professor Werro persuasively explains, however, that case is factually distinguishable
from this one. For one, the primary illegal conduct in that case under Swiss law was only the
original uploading of the infringing material, not the subsequent consumption, and Swisscom did
not become aware of the material until after it had already been uploaded. Werro Dec. ¶ 52, Pl.
Opp. at 21. To the contrary, here, the atrocities were committed continually over almost a
decade, allegedly both as a result of and in furtherance of BNPP’s profitable financial
relationship with the Regime. Most importantly, unlike the internet service provider in
Swisscom and its hundreds of thousands of users, BNPP and the government of Sudan had a
Case 1:16-cv-03228-AJN Document 193 Filed 02/16/21 Page 19 of 21
direct contractual and illegal relationship. It is therefore more reasonable to determine that
BNPP is responsible for the harm caused by its transactions – transactions that were illegal
specifically because they would result in that harm – than the internet company that provided a
legal service to members of the general public through automated transactions, only some of
whom decided to use that service nefariously. The Court therefore cannot determine that the
distinguishable Swisscom case alone bars Plaintiffs’ claims at this stage of the litigation.
Lastly, Defendants point to cases in the United States in which BNPP and similar
defendants prevailed on proximate cause at the motion to dismiss stage. Defendants cite Osifi v.
BNP Paribas, where the District Court for the District of Columbia declined to find BNPP liable
for a 1998 terrorist bombing of the U.S. embassies in Africa by al Qaeda as a result of its
transactions with the Sudanese government (which allegedly had a financial relationship with the
al Qaeda). Ofisi v. BNP Paribas, S.A., 278 F. Supp. 3d 84, 91-92 (D.D.C. 2017). The court in
Osifi determined that the element of proximate cause, as that concept is defined in United States’
common law, had not been met because plaintiffs failed to allege that “BNPP participated in the
attacks or provided money directly to any terrorist group, that any money BNPP processed for
Sudan or Sudanese banks was transferred to al Qaeda prior to the attacks, or that Sudan would
have been unable to assist al Qaeda without the funds that BNPP processed.” Id. at 102. This
non-binding authority is factually distinct from Plaintiffs’ claim here. In their Second Amended
Complaint, Plaintiffs allege that BNPP directly funded the perpetrator, i.e., the Sudanese regime
itself, when it either knew or should have known what the perpetrator would do with those funds.
That is sufficient to state a claim under Swiss law.
Similarly, Defendants point to Rothstein v. UBS AG, where the Second Circuit affirmed a
decision to dismiss plaintiffs’ claims against a bank for engaging in transactions with Iran that
Case 1:16-cv-03228-AJN Document 193 Filed 02/16/21 Page 20 of 21
they alleged resulted in terrorist attacks by Hizbollah and Hamas, in part because the traditional
proximate cause standard was not satisfied. 708 F.3d 82, 97 (2d Cir. 2013). This case is binding
authority but readily distinguishable. The defendants in Rothstein were not alleged to have
directly transacted with the perpetrators of the violence, Hamas and Hezbollah, and plaintiffs
were not claiming that the government of Iran itself inflicted the atrocities. To the contrary,
here, according to Plaintiffs’ complaint, BNPP directly transacted with the Sudanese regime,
which itself perpetrated the human rights abuses through its military, both with official armed
forces and surrogate armed forces, which Plaintiffs sufficiently allege acted as de facto military.
SAC ¶ 7, 14, 30, 120; id. at ¶ 33 (describing “backed militias wearing uniforms with a GOS
insignia and carrying weapons, which he had seen them obtain from the police station and army
barracks.”). Plaintiffs have therefore sufficiently plead adequate causation under Swiss law.
Plaintiffs have plausibly alleged that BNPP consciously cooperated with the Sudanese
regime, either knew or should have known that its assistance was contributing to the Regime’s
human rights abuses, and that this assistance was the natural and adequate cause of Plaintiffs’
injuries. Plaintiffs have therefore stated a claim for relief under the Article 50.1 of the Swiss
Code of obligations. The following claims therefore survive: Conspiracy to Commit Battery,
Aiding and Abetting Battery, Conspiracy to Commit Battery in Performance of a Public Duty or
Authority, Aiding and Abetting Battery Committed in Performance of a Public Duty or
Authority, 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.
Case 1:16-cv-03228-AJN Document 193 Filed 02/16/21 Page 21 of 21
For the reasons stated above, Defendants motion to dismiss Plaintiffs claims for failure to
state a claim under Swiss law is GRANTED IN PART AND DENIED IN PART. This resolves
Dkt. No. 65. Discovery in this case was postponed pending resolution of the instant motion.
Dkt. No. 24. The Court will schedule an initial pretrial conference by subsequent order and
provide instructions for submitting a proposed case management plan.
Dated: February 16, 2021
New York, New York
ALISON J. NATHAN
United States District Judge
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