United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
J. NATHAN, DISTRICT JUDGE
putative class action case arises out of atrocities committed
by the Government of Sudan against its citizens between 1997
and 2009. Victims of the Sudanese government's human
rights abuses bring a variety of state law claims against BNP
Paribas S.A. and its subsidiaries and branches alleging that
the bank funded the Government of Sudan and assisted the
government in circumventing U.S. economic sanctions, allowing
the Government of Sudan to continue its genocidal campaign
against the people of Sudan. The Defendants have moved to
dismiss the Plaintiffs' Second Amended Complaint on all
claims. For the reasons that follow, the motion to dismiss is
granted in its entirety.
Court assumes the parties' familiarity with the facts in
this litigation. In short, 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 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
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.
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
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 ¶¶ 191-98. BNPP also
pled guilty to falsifying business records and conspiracy
under New York law. S AC ¶¶ 199-201.
the criminal actions against BNPP, the Plaintiffs initiated
the present action on April 29, 2016 by filing its initial
complaint. Complaint, Dkt. No. 1. On January 20, 2017, the
Plaintiffs filed their Second Amended Complaint. See
SAC. In it, Plaintiffs bring twenty state-law claims on which
they seek to hold BNPP liable. The Plaintiffs allege that
BNPP is liable for negligence per se (Counts 1 and 2),
conspiracy to commit battery (Count 3), aiding and abetting
battery (Count 4), conspiracy to commit battery in
performance of a public duty or authority (Count 5), aiding
and abetting battery in performance of a public duty or
authority (Count 6), conspiracy to commit assault (Count 7),
aiding and abetting assault (Count 8), conspiracy to commit
false arrest and false imprisonment (Count 9), aiding and
abetting false arrest and false imprisonment (Count 10),
conspiracy to commit conversion - wrongful taking (Count 11),
aiding and abetting conversion - wrongful taking (Count 12),
conspiracy to commit conversion -wrongful detention, use, or
disposal (Count 13), aiding and abetting conversion -
wrongful detention, use, or disposal (Count 14), intentional
infliction of emotional distress (Count 15), negligent
infliction of emotional distress (Count 16), commercial bad
faith (Count 17), unjust enrichment (Count 18), conspiracy to
commit wrongful death (Count 19), and aiding and abetting
wrongful death (Count 20). On March 21, 2017, the Defendants
moved to dismiss the Second Amended Complaint in its
entirety. Dkt. No. 65.
survive dismissal, the plaintiff must provide the grounds
upon which his claim rests through factual allegations
sufficient 'to raise a right to relief above the
speculative level.'" ATSI Commc'ns, Inc. v.
Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). "[A] plaintiffs obligation to provide the
'grounds' of his 'entitle[ment] to relief
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do." Twombly, 550 U.S. at 555 (second
alteration in original). The complaint's factual
allegations must be sufficient to "nudge" the
plaintiffs claims "from conceivable to plausible."
Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009). A claim
is facially plausible "when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. at 678. In ruling on a motion to
dismiss, the facts alleged in the operative complaint are to
be taken as true and all inferences must be drawn in the
plaintiffs favor. Lattanzio v. Deloitte & Touche
LLP, 476 F.3d 147, 151 (2d Cir. 2007).
Act of State Doctrine
preliminary matter, Defendants argue that the Plaintiffs'
claims should be dismissed under the act of state doctrine.
The Court concludes that the doctrine mandates dismissal of
nearly all of the Plaintiffs' claims.
of state doctrine provides that "[e]very sovereign state
is bound to respect the independence of every other sovereign
state, and the courts of one country will not sit in judgment
on the acts of the government of another, done within its own
territory." Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398, 416 (1964) (quoting
Underbill v. Hernandez, 168 U.S. 250, 252 (1897)).
Under the act of state doctrine, claims against private
entities may be barred "[w]hen the causal chain between
a defendant's alleged conduct and plaintiffs injury
cannot be determined without an inquiry into the motives of
the foreign government." O.N.E. Shipping Ltd. v.
Flota Mercante Grancolombiana, S.A., 830 F.2d449, 453
(2d Cir. 1987). "The act of state doctrine is not some
vague doctrine of abstention but a 'principle of
decision binding on federal and state courts
alike.'" W.S. Kirkpatrick & Co. v.
Envt'l Tectonics Corp., Int'l, 493 U.S. 400, 406
(1990) (quoting Sabbatino, 376 U.S. at 427). In
Sabbatino, the Supreme Court established a sliding
scale to determine whether a court's intervention in an
issue relating to the decision of another sovereign should be
dismissed under the act of state doctrine. First, courts
consider "the degree of codification or consensus
concerning a particular area of international law, "
with the understanding that "the greater the degree of
codification or consensus . . ., the more appropriate it is
for the judiciary to render decisions." 376 U.S. at 428.
Second, courts consider how sensitive the issue is likely to
be for international relations. "It is also evident that
some aspects of international law touch much more sharply on
national nerves than do others; the less important the
implications of an issue are for our foreign relations, the
weaker the justification for exclusivity in the political
branches." Id. Finally, "if the government
which perpetrated the challenged act of state is no longer in
existence, " that will favor judicial intervention.
it is made to appear that the foreign government has acted in
a given way ... the details of such action or the merit of
the result cannot be questioned but must be accepted
by our courts as a rule for their decision."
Konowaloff v. Metro. Museum of Art, 702 F.3d 140,
146 (2d Cir. 2012) (alterations in original) (emphasis added)
(quoting Ricaud v. Am. Metal Co., 246 U.S. 304, 309
(1918)). In other words, under the act of state doctrine,
"the acts of foreign sovereigns taken within their own
jurisdictions shall be deemed valid."
Kirkpatrick, 493 U.S. at 409 (emphasis added). Under the
doctrine, the Supreme Court has held that courts of the
United States "will not examine the validity of a taking
of property within its own territory by a foreign sovereign
government, extant and recognized by this country at the time
of suit, in the absence of a treaty or other unambiguous
agreement regarding controlling legal principles."
Sabbatino, 376 U.S. at 428; see also
Konowaloff, 702 F.3d at 147 ("[T]he lawfulness of
the Soviet government's taking of the Painting is
precisely what the act of state doctrine bars the United
States courts from determining."). The Supreme Court has
also applied the act of state doctrine to claims for wrongful
arrest when "[t]he acts complained of were the acts of a
military commander representing the authority of the
revolutionary party as a government, which afterwards
succeeded, and was recognized by the United States."
Underhill, 168 U.S. at 254. Defendants bear the
burden of justifying application of the act of state
doctrine. Bigio v. Coca-Cola Co., 239 F.3d 440, 453
(2d Cir. 2000).
Court concludes that the act of state doctrine is applicable
in this case and bars its consideration of nearly all of
Plaintiffs' claims because ruling on them would require
the Court to pass judgment on the acts of the Government of
Sudan. In Counts 3-14 and 19-20 of the Second Amended
Complaint, the Plaintiffs ask the Court to impose secondary
liability on BNPP for conspiracy and aiding and abetting of
battery, assault, false arrest and false imprisonment,
wrongful taking, and wrongful death. See SAC. In
order to impose such liability, the Court would be obligated
to conclude that the actions of the Government of Sudan,
occurring within the then-existing territorial borders of
Sudan, against the people of Sudan, amounted to state law
violations of the law of battery, assault, false arrest and
imprisonment, wrongful taking, and wrongful death. The Court
is explicitly barred from ruling on some of these claims
under binding precedent. See Sabbatino, 376 U.S. at
428 (holding that the act of state doctrine bars courts from
considering claims alleging wrongful takings by a foreign
government on foreign soil); Underhill, 168 U.S. at
254 (holding that the act of state doctrine bars courts from
considering claims for false arrest when the actions were
conducted by military personnel in service to the
government). Moreover, to the extent Plaintiffs' claims
are predicated on the contention that BNPP facilitated
circumvention of U.S. sanctions, those judgments are properly
left to the judgment of the Executive Branch rather than the
courts. See Sabbatino, 376 U.S. at 467 (recognizing
that "the Department of our Government primarily
responsible for the formulation of foreign policy and
settling these matters on a state-to-state basis is more
competent than courts to determine" the appropriate
course of action in resolving foreign policy disputes);
see also Exec. Order No. 13, 400 § 8, 71 Fed.
Reg. 25, 483 (Apr. 26, 2006) (stating explicitly that the
President's imposition of sanctions against Sudan ...