Ofisi v. BNP Paribas, S.A.

• Decision Date: 29 September 2017
• Docket Number: Civil Action No. 15–2010 (JDB)
• Citation: 278 F.Supp.3d 84
• Parties: Mary OFISI, et al., Plaintiffs, v. BNP PARIBAS, S.A., et al., Defendants.
• Court: U.S. District Court — District of Columbia

278 F.Supp.3d 84

Mary OFISI, et al., Plaintiffs,

v.BNP PARIBAS, S.A., et al., Defendants.

Civil Action No. 15–2010 (JDB)

United States District Court, District of Columbia.

Signed September 29, 2017

Michael Joseph Miller, MILLER FIRM, LLC, Orange, VA, Gavriel Marione, Pro Hac Vice, MM–LAW LLC, Chicago, IL, for Plaintiffs.

Alexis L. Collins, Avram E. Luft, Carmine D. Boccuzzi, Jr., Jonathan I. Blackman, Lawrence Friedman, Mark S. Grube, Pro Hac Vice, CLEARY, GOTTLIEB, STEEN & HAMILTON, LLP, New York, NY, for 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 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 1.¹ For the reasons described below, BNPP's motion will be granted and the complaint will be dismissed.

I. BACKGROUND

The 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.

The 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.

A. SUDAN, AL QAEDA, AND THE EMBASSY BOMBINGS

In 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.

The 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.

B. U.S. SANCTIONS AGAINST SUDAN AND BNPP

Prior 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. ¶ 105.

The 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. § 1705.² 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, 17.

Shortly 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.

Plaintiffs 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).

C. OWENS V. BNP PARIBAS, S.A.

Earlier 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....