The law firm of McKool Smith, P.C., and Tobias Barrington Wolff, the Jefferson B. Fordham Professor of Law at the University of Pennsylvania Law School, today won a victory in a putative class action against BNP Paribas (BNPP) brought on behalf of Sudanese-American immigrants to the United States, who are survivors of the genocide in Darfur and other atrocities committed in Sudan. The case was originally brought in 2016 by McKool Smith Principal Lee Crawford Boyd, while she was with the law firm of Brownstein, Hyatt, Farber & Schreck LLP.
This case arises from BNP’s years-long support of the regime in the country of Sudan and its evasion of U.S. Sanctions. As a result of that evasion, BNPP was convicted of federal and state felonies and paid total financial penalties of $8.9736 billion following a plea agreement with the U.S. Department of Justice.
As noted by the Second Circuit, “BNPP itself admitted, from 2002 to 2007, it ‘conspired with numerous Sudanese banks and entities as well as financial institutions outside of Sudan to violate the U.S. embargo by providing Sudanese banks and entities access to the U.S. financial system.’” “BNPP also conceded that it had knowledge of the atrocities being committed in Sudan and of the consequences of providing Sudan access to U.S. financial markets.” Plaintiffs, who fled the violence of the Sudanese regime’s atrocities and who are now U.S. citizens or lawful U.S. residents, sued BNPP under New York tort law, alleging that BNPP conspired with and aided and abetted the Sudanese regime in its commission of human rights atrocities and seeking damages for the harm inflicted on them.
In its opinion, the Second Circuit unanimously rejected an attempt by BNPP to prevent U.S. courts from hearing the case. BNPP argued that the Plaintiffs’ claims were barred by the act of state doctrine, which sometimes prevents U.S. courts from declaring invalid the official acts of a foreign sovereign. The district court accepted BNPP’s argument and dismissed the Plaintiffs’ claims. Applying clearly established principles of U.S. law set forth in precedent authored by the late Justice Antonin Scalia, the Second Circuit vacated the district court’s ruling.
BNPP argued on appeal that U.S. courts should defer to “atrocities committed against innocent civilians” and stated that the “alleged official acts” it was attempting to invoke as a shield included “running their militias that inflicted violence on these plaintiffs . . . other acts of sexual violence, mass rape, and . . . genocide.”
“U.S. courts should never give deference to human rights atrocities like mass rape and genocide,” says Professor Wolff. “We are gratified that the Court of Appeals rejected BNPP’s arguments.”
Ms. Boyd states, “The Second Circuit opinion holds that the tens of thousands of survivors of the genocide in Sudan living in the United States who were harmed by BNP Paribas’ criminal conspiracy are entitled to their day in court. We are confident that the Plaintiffs, victims of the mass atrocities in Sudan now working to make a life for themselves and their families in the United States, will prevail and ultimately receive damages for their suffering.”
The case is Kashef et al. v. BNP Paribas, et al., Case No. 16-CV-3228, in the U.S. Court of Appeals for the Second Circuit, and Case No. 16-cv-32282, in the U.S. District Court for the Southern District of New York.
Amicus support for the appeal included a bipartisan brief by Members of the United States Congress, including Jerry Nadler, now Chair of the House Judiciary Committee, along with Representatives Debbie Wasserman Schultz, Brad Sherman, Chellie Pingree, Ruben Gallego, James P. McGovern, Conor Lamb, Raul Ruiz, Barbara Lee, André Carson, Donald M. Payne, Jr., Julia Brownley, Jared Huffman, Rosa DeLauro, and David Cicilline, and former Representatives Thomas J. Rooney and Michael Capuano. Additional amicus briefs supporting the appeal were by George Washington University Professor Robert J. Weiner, the Dallas Fort Worth Sudanese Community, the Darfur Community in Iowa, the Darfur Women Action Group, the Lost Boys Center for Leadership Development, the Nile Sisters Development Initiative, and the Southern Sudanese Community Center of San Diego.