Kashef v. BNP Paribas SA
Kashef v. BNP Paribas SA
Opinion of the Court
This 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.
I. Background
The 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 "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
*775¶¶ 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 ¶¶ 191-98. BNPP also pled guilty to falsifying business records and conspiracy under New York law. SAC ¶¶ 199-201.
Following 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.
II. Legal Standard
"To 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. ,
*776Lattanzio v. Deloitte & Touche LLP ,
III. Threshold Issues
A. Act of State Doctrine
As a 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.
The act 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 ,
"[W]hen 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 ,
The 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 ,
Plaintiffs argue that the act of state doctrine is inapplicable and the Court can resolve this case without ruling on the acts of the Government of Sudan because the Plaintiffs "are 'not trying to undo or disregard the governmental action, but only to obtain damages from private parties who had procured it.' " Pl. Opp. to MTD ("Opp."), Dkt. No. 80, at 19 (quoting Kirkpatrick ,
Plaintiffs also argue that the act of state doctrine is inapplicable to their claims because they allege "[h]uman rights abuses like genocide, ethnic cleansing, mass rape, torture, killing, and taking of property" that "do not qualify as public acts of state" and were "condemned" by the United States "during the time of BNPP's conspiracy." Opp. at 20; see also SAC ¶ 136 (alleging "widespread human rights abuses ... in contravention of international law"). However, the Second Amended Complaint does not bring causes of action arising under international law for human rights abuses. Instead, it brings only common law claims under the laws of New York. As a result, the Plaintiffs do not ask the Court to determine whether the Government of Sudan violated international law; they only ask the Court to find that the Government of Sudan's actions amounted to battery, assault, wrongful takings, and other common law claims. This is what the act of state doctrine prohibits the Court from doing. See, e.g. , Sabbatino ,
The Court further concludes that, although a closer case, the act of state doctrine also bars Plaintiffs' claims for negligence per se, outrageous conduct causing emotional distress, and negligent infliction of emotional distress. To sustain any of these causes of action, the Plaintiffs must prove that they suffered a cognizable injury. See Elmaliach v. Bank of China Ltd. ,
For the foregoing reasons, the Court concludes that the act of state doctrine bars consideration of the Plaintiffs' claims sounding in secondary liability, negligence per se, intentional infliction of emotional distress, and negligent infliction of emotional distress. As a result, Claims 1-16 and 19-20 are dismissed as to all Plaintiffs.
B. Timeliness
Defendants also argue that the Plaintiffs' claims - both those dismissed above under the act of state doctrine and those that remain - are untimely except as to those Plaintiffs who were minors when the alleged torts were committed. MTD, Dkt. No. 69, at 6. Specifically, the last injuries alleged by Plaintiffs occurred in 2009, and the Plaintiffs did not file a complaint in this action until April 29, 2016. MTD at 6. The parties agree that New York's statutes of limitations will apply to the causes of action in this case because under New York's borrowing statute, N.Y. C.P.L.R. 202, the Court must apply the shorter statute of limitations period of either New York or the state where the cause of action accrued. MTD at 6 n.4; Opp. at 14 n.72. The parties further agree that the claims of Plaintiffs who were under the age of 18 at the time of injury may bring claims that are timely. Plaintiffs argue in support of their other claims that they are governed by a seven-year statute of limitations that is applicable to the victims of crime under New York law and that they are further entitled to equitable tolling. The Court concludes that the seven-year statute of limitations is inapplicable, but that the Plaintiffs are entitled to equitable tolling. When equitable tolling is applied, all of Plaintiffs' claims are timely except for their claims alleging intentional act torts (Claims 3-10 and 15), all of which are also dismissed because of the act of state doctrine as explained above. Each of these points is explicated below.
1. Claims of Plaintiffs Injured as Minors Are Timely
There is no dispute that the claims of Plaintiffs Abdalla and Ahmed are not time barred because those Plaintiffs were under the age of 18 when they were injured, and in such circumstances, New York law allows claims to be brought within three years after the injured persons turn 18. See MTD 6 n.5; Opp. at 13-14; see also N.Y. C.P.L.R. 208 ("If a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues, and the time otherwise limited for commencing the action is three years or more and expires no later than three years after the disability ceases, ... the time within which the action must be commenced shall be extended to three years after the disability ceases ...."). As alleged in the Second Amended Complaint, both Plaintiff Abdalla and Plaintiff Ahmed were 18 when the initial complaint was filed in this action. See SAC ¶¶ 31, 50. Their claims were thus filed within three years of attaining the age of majority as provided for in N.Y. C.P.L.R. 208. As a result, their claims - and the claims of the class of similarly situated individuals - are not dismissed on statute of limitations grounds.
2. N.Y. C.P.L.R. 213-b Is Inapplicable, and a Seven-Year State of Limitations Does Not Apply
In New York, the intentional tort claims of "assault, battery, false imprisonment, *780malicious prosecution, libel, slander, [and] false words causing special damages" are governed by a one-year statute of limitations, N.Y. C.P.L.R. 215, negligence actions are governed by a three-year statute of limitations, N.Y. C.P.L.R. 214, and claims based on fraud or bad faith are governed by a six-year statute of limitations, N.Y. C.P.L.R. 213. In this case, Plaintiffs argue that none of these statutes of limitations apply because they are victims of Defendants' crimes, and thus their claims are subject to a seven-year statute of limitations under N.Y. C.P.L.R. 213-b. This argument is unavailing.
Under New York law, crime victims have seven years in which to bring civil actions based on the perpetrator's crimes. Specifically, under New York Civil Practice Law Rule 213-b, a seven-year limitations period applies when "(1) the plaintiff is a crime victim, (2) the defendant has been convicted of a crime, (3) the defendant's crime is the subject of the civil action, and (4) the plaintiff's injury resulted from that crime." Boice v. Burnett ,
However, Rule 213-b is only applicable if the plaintiff is a direct victim of the crime to which the defendant pled guilty. In Boice , the court found Rule 213-b inapplicable because the defendant had pled guilty to "intentional misrepresentation of critical facts on his income tax returns," and the plaintiffs "sustained no direct injury to their persons or property as a result of that crime."
Here, the Court concludes that the Plaintiffs have not sufficiently pled that they were victims of the crimes for which Defendants pled guilty. Defendants pled guilty to conspiracy to violate the International Emergency Economic Powers Act and the Trading with the Enemy Act in violation of
Plaintiffs do not specifically argue that they were victims of BNPP's crimes, but rather that Rule 213-b should apply because "the guilty pleas anticipate[d] civil proceedings by private parties" and "acknowledged that the Sanctions were to protect human rights victims." Opp. at 17. Even accepting these statements, they do not make the Plaintiffs victims of the crimes to which BNPP pled guilty for purposes of Rule 213-b rather than indirectly harmed parties. Plaintiffs provide no case law to suggest that New York intended its law to be so expansive that any person affected by a crime could avail herself of a *781longer statute of limitations. Such a reading would render the statutory word "victim" meaningless. Cf.
3. Plaintiffs Are Entitled to Equitable Tolling Through June 2014
Under the one-, three-, and six-year statutes of limitations that apply under New York law, all of Plaintiffs' claims would be untimely if the statutes ran from the last injuries suffered in 2009. However, Plaintiffs argue that they are entitled to equitable tolling. The Court agrees that the Plaintiffs are entitled to equitable tolling until June 2014.
"Under the discovery rule, a claim accrues when a plaintiff comes into possession of the 'critical facts that he has been hurt and who inflicted the injury.' " Singleton v. Clash ,
In the present case, Plaintiffs have sufficiently alleged that BNPP concealed its actions that aided the Government of Sudan and that, as a result, Plaintiffs did not learn that they had a cause of action against the Defendants until their sentencing for federal crimes on May 1, 2015. See SAC ¶¶ 252-55. For example, Plaintiffs allege that BNPP took elaborate steps to prevent those outside the Government of Sudan from knowing that it was aiding the government in violation of U.S. sanctions. SAC ¶¶ 17-18, 111-14, 199, 270. BNPP stipulated to such facts in its related criminal case. Ex. C to SAC, Dkt. No. 49-3, ¶¶ 22-27, 30, 37-41. Indeed, the Defendants pled guilty to felony concealment under New York law. SAC ¶¶ 199. Based on these allegations, the Plaintiffs have sufficiently pleaded that they are entitled to equitable tolling for some period of time.
However, the Court concludes that the Plaintiffs are only entitled to equitable tolling until June 2014 rather than May 1, 2015. In particular, Plaintiffs do not contest that BNPP's fraud was widely publicized in June 2014. See MTD at 10 n.9 (citing public declarations that BNPP had committed sanctions violations, including funding the Government of Sudan). Such publications were sufficient to put a reasonable person in Plaintiffs' position on notice that they may have claims against the Defendants. Plaintiffs respond that they were "traumatized victims" who were "unfamiliar with the legal system." Opp. at 15. While the Court is sympathetic to the experiences the Plaintiffs suffered, this does not eliminate the legal requirement *782that Plaintiffs demonstrate at least reasonable diligence in pursuing their claims.
Because the applicable statutes of limitations began running in June 2014 for Plaintiffs' claims, all claims with a statute of limitations of two or more years are timely. However, Plaintiffs' intentional torts (Claims 3-10 and 15), are governed by a one-year statute of limitations under N.Y. C.P.L.R. 215. As a result, these claims expired in June 2015, nearly a year before the first complaint was filed in this action. As a result, Plaintiffs' Claims 3-10 and 15 are dismissed, except for Plaintiffs who were minors at the time of their injuries. All remaining claims are not dismissed on the basis of the statutes of limitations.
Based on the Court's rulings on the act of state doctrine and statutes of limitations, Plaintiffs' claims in Counts 1-16 and 19-20 are dismissed based on the act of state doctrine. Plaintiffs' claims contained in Counts 3-10 and 15 are alternatively dismissed as untimely for all Plaintiffs who were 18 or older at the time of their alleged injuries. This leaves Plaintiffs' claims in Counts 17 and 18 to be considered on the merits.
IV. Remaining Claims
Plaintiffs allege two claims that do not require the Court to consider whether the acts of the Government of Sudan were legitimate in violation of the act of state doctrine and which are timely under the applicable statute of limitation. These remaining causes of action allege that BNPP engaged in commercial bad faith and was unjustly enriched. The Court concludes that the Plaintiffs have failed to state a claim upon which relief can be granted, and will therefore dismiss these remaining claims as to all Plaintiffs.
A. Plaintiffs Fail to State a Claim of Commercial Bad Faith
Plaintiffs first allege that BNPP committed commercial bad faith in violation of New York law by "complet[ing] thousands of illegal financial transactions that gave the [Government of Sudan] unlawful access to the U.S. financial system." Opp. at 37-38. Defendants move to dismiss Plaintiffs' commercial bad faith claim on two grounds: first, that the claim is governed by the law of either Sudan or Switzerland, which do not recognize a claim for commercial bad faith, MTD at 33; and second, that Plaintiffs have not sufficiently pled a claim upon which relief can be granted, MTD at 33. The Court need not resolve the choice of law question because the Court concludes that the Plaintiffs have failed to state a claim even if New York law applies. The Court agrees with the Defendants' argument that Plaintiffs have not stated a claim upon which relief can be granted and concludes that the commercial bad faith claim created by the state of New York is inapplicable to the facts alleged by the Plaintiffs.
"The New York Court of Appeals fashioned the doctrine of 'commercial bad faith' as an exception to the general rule that a bank is absolved of liability for a check made out to a fictitious payee when the maker knows that the payee is fictitious." Lerner v. Fleet Bank, N.A. ,
While the Second Circuit has not held conclusively that a commercial bad faith claim could not apply outside of the fraudulent check context, the Court concludes *783that the doctrine is not applicable to the facts as alleged. All of the case law on the tort of commercial bad faith involves factual circumstances that are not analogous to the facts at issue here. The cases establishing the commercial bad faith doctrine concerned an individual who was the victim of a fraudulent check scheme seeking to hold the participating bank liable. See, e.g. , Prudential-Bache Sec., Inc. v. Citibank, N.A. ,
The Plaintiffs' claim of commercial bad faith (Count 19) is therefore dismissed.
B. Plaintiffs Fail to State a Claim for Unjust Enrichment
Plaintiffs next allege that BNPP was unjustly enriched "by fees from billions in transactions at Plaintiff's expense." Opp. at 38. The Court concludes that Plaintiffs have not established a claim upon which relief can be granted.
Defendants move to dismiss Plaintiffs' unjust enrichment claim on two grounds: first, that the claim is governed by the law of either Sudan or Switzerland, which have more stringent requirements than the law of New York, MTD at 32; and second, that Plaintiffs have not sufficiently pled a claim upon which relief can be granted, MTD at 32. The Court need not resolve the choice of law question because the parties do not dispute that New York law is at least as favorable to the Plaintiffs as the law of any other jurisdiction that might govern the claim, MTD at 32; Opp. at 39, and the Court concludes that the Plaintiffs have failed to state a claim even under New York law.
A claim for unjust enrichment "is available only in unusual situations when, though the defendant has not breached a contract nor committed a recognized tort, circumstances create an equitable obligation running from the defendant to the plaintiff." Corsello v. Verizon N.Y., Inc. ,
In this case, the Plaintiffs have not sufficiently alleged that they have a right to the benefit conferred on BNPP. In other words, the money that the Defendants allegedly acquired by funding the Government of Sudan did not belong to the Plaintiffs and would not have otherwise gone to Plaintiffs. Plaintiffs do not contest this point, but instead argue that the unjust enrichment claim is based on "broad considerations of equity and justice." Opp. at 38 (quoting Philips Int'l Invs., LLC v. Pektor ,
The Court thus concludes that Plaintiffs cannot state a claim upon which relief can be granted for unjust enrichment, and the claim (Count 18) is dismissed.
V. Conclusion
In sum, the Court concludes that Plaintiffs' claims alleged in Counts 1-16 and 19-20 should be dismissed based on the act of state doctrine. Moreover, the Court concludes that the Plaintiffs' claims contained in Counts 3-10 and 15 would also, alternatively, be dismissed as untimely for all Plaintiffs who were 18 or older at the time of their alleged injuries. Finally, the Court concludes that Claims 17 and 18 are dismissed for failure to state a claim upon which relief can be granted.
The motion to dismiss is therefore granted as to all Plaintiffs on all claims. This resolves Docket Number 65. The Clerk of Court is ordered to close the case and enter judgment.
SO ORDERED.
Reference
- Full Case Name
- Entesar Osman KASHEF v. BNP PARIBAS SA
- Cited By
- 3 cases
- Status
- Published