United States Court of Appeals, District of Columbia Circuit
November 14, 2017
from the United States District Court for the District of
Columbia (No. 1:15-cv-01945)
Vail argued the cause for appellants. With him on the briefs
were Thomas F. Fay and Jane C. Norman.
Jeffrey R. White was on the brief for amicus curiae American
Association for Justice in support of appellants.
Lawrence B. Friedman argued the cause for appellees. With him
on the brief were Jonathan I. Blackman and Alexis Collins.
D. DiBari and Stephen M. Nickelsburg were on the brief for
amicus curiae Institute of International Bankers in support
Before: Griffith and Wilkins, Circuit Judges, and Randolph,
Senior Circuit Judge.
GRIFFITH, CIRCUIT JUDGE
1998, al Qaeda detonated truck bombs outside the U.S.
embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania,
killing over two hundred people and injuring several thousand
more. Victims of these attacks sued the French bank BNP
Paribas for damages under the Anti-Terrorism Act (ATA),
alleging the bank provided financial assistance to Sudan,
which in turn funded and otherwise supported al Qaeda's
attack. Because the victims fail to plausibly allege BNP
Paribas caused their injuries, and because the ATA does not
permit recovery for claims premised on aiding and abetting
liability, the district court dismissed the suit for failure
to state a claim. We affirm.
August 7, 1998, truck bombs exploded outside the U.S.
embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. At
least twelve of the more than two hundred deaths and many of
the 4, 000 injured individuals were U.S. nationals. See
Owens v. Republic of Sudan, 412 F.Supp.2d 99, 102
(D.D.C. 2006). Osama bin Laden and al Qaeda claimed
responsibility. The embassy bombings served as a prelude to
subsequent al Qaeda attacks against the United States,
culminating in the atrocities of September 11, 2001.
Qaeda didn't act alone. The Republic of Sudan and the
Islamic Republic of Iran helped facilitate the embassy
bombings in several ways. For its part, Sudan provided safe
harbor for al Qaeda's operational and logistical supply
network, as well as critical financial, military, and
intelligence services. See Owens v. Republic of
Sudan, 826 F.Supp.2d 128, 139-46 (D.D.C. 2011). In the
early 1990s, Sudan invited al Qaeda to relocate from
Afghanistan and promised the government's support. Am.
Compl. ¶ 104. Al Qaeda accepted the invitation and moved
its operations to Sudan, purchasing real estate and agreeing
to supply the Sudanese government with communications
equipment, weapons, and labor for making chemical weapons.
Id. In return, the Sudanese government provided al
Qaeda with airplanes to bring their missiles from Afghanistan
to Sudan, security, intelligence-gathering services, travel
documents, economic aid, and uranium. Id.
response to Sudan's growing ties to terrorist
organizations, the U.S. Secretary of State designated the
country as a state sponsor of terrorism in 1993. Id.
¶¶ 47, 61. The Secretary noted that the Sudanese
government harbored international terrorists, maintained
close ties to Iran, and provided meeting locations, transit
points, and safe havens for various radical extremist groups.
Id. ¶ 61. The United States thereafter placed
sanctions on Sudan, restricting U.S. foreign assistance to
its government, banning defense exports and sales, and
imposing various financial constraints. Id. ¶
late 1990s, the United States placed even greater
restrictions on trade with Sudan. In 1997, President Clinton
issued an executive order imposing a complete trade embargo
that prohibited the exportation of all goods and services-
including financial services-to Sudan unless the exporter
received a license from the Office of Foreign Assets Control
(OFAC). Id. ¶¶ 63-65. And in 1998, OFAC
designated all of Sudan's national and major commercial
banks as "Specially Designated Nationals,"
id. ¶¶ 67-68, subjecting them to even more
onerous trade restrictions and sanctions, see 31
C.F.R. § 515.306.
Paribas, S.A. (BNPP), the largest bank in France, sought to
evade U.S. sanctions on Sudan applicable to international
institutions. Am. Compl. ¶¶ 30, 73. In 2014, BNPP
admitted as much when it pleaded guilty in federal court to
illegally conspiring with banks and other entities to evade
the sanctions regime and unlawfully move nearly $9 billion
through the U.S. financial system. Id. ¶ 73;
see also id. ¶¶ 7-8, 95, 105-07, 109-15,
126-27; Statement of Facts, United States v. BNP Paribas,
S.A., No. 1:14-cr-00460 (S.D.N.Y. May 1, 2015), J.A.
least $6 billion of these illegally processed funds involved
Sudanese banks and financial institutions. Statement of Facts
¶ 17, J.A. 95. BNPP pleaded guilty to circumventing
sanctions on Sudan only from 2002 to 2007, well after the
embassy bombings. Am. Compl. ¶ 76; see also
Statement of Facts ¶ 17, J.A. 95. However, in support of
its guilty plea, BNPP stipulated that by 1997 one of its
subsidiaries had become the "correspondent bank" in
Europe for a Sudanese government bank and all the major
commercial banks in Sudan. Am. Compl. ¶ 82 (quoting
Statement of Facts ¶ 19, J.A. 96-97). This meant that
almost every Sudanese bank began to keep U.S. dollar accounts
with BNPP. Id. (quoting Statement of Facts ¶
19, J.A. 96-97). Moreover, BNPP admitted that it used various
"satellite banks" outside the United States to
facilitate U.S. dollar payments for Sudanese banks and evade
the U.S. sanctions. Id. ¶¶ 87-88, 90-91
(quoting Statement of Facts ¶ 23-24, J.A. 99-100).
Between 2002 and 2007, BNPP used this satellite-bank
structure to process "thousands of U.S. dollar
transactions, worth billions of dollars" for sanctioned
Sudanese banks. Id. ¶ 92 (quoting Statement of
Facts ¶ 24, J.A. 99-100).
creates a private cause of action for those harmed by
international terrorism. Specifically, the ATA provides that
"[a]ny national of the United States injured in his or
her person . . . by reason of an act of international
terrorism . . . may sue therefor . . . and shall recover
threefold . . . damages." 18 U.S.C. § 2333(a).
Therefore, on its face, the ATA has three essential elements.
First, a U.S. national must have suffered an injury. Second,
there must have been an act of international
terrorism. And third, the U.S. national's injury
must have occurred "by reason of" the act of
international terrorism. That is, there must be some causal
connection between the act of international terrorism and the
U.S. national's injury.
are U.S. nationals injured in the 1998 embassy bombings, or
the estates, heirs, or survivors of U.S. nationals who died
or were severely injured in the bombings. See Am.
Compl. ¶¶ 22-26. They previously sued Sudan under
the Foreign Sovereign Immunities Act, alleging that Sudan
offered material support to al Qaeda's bombing of the
embassies, and in 2011 received default judgments against the
country. Id. ¶¶ 24, 27.
months after BNPP's 2014 federal plea, Plaintiffs filed
their present complaint in district court.  Based on
BNPP's stipulations in its guilty plea, Plaintiffs allege
the bank provided material support to al Qaeda by processing
financial transactions for Sudanese banks, converting
Sudanese resources into U.S. banknotes, and circumventing
U.S. sanctions on Sudan. Id. ¶¶ 6-8. Those
Sudanese banks then sent that U.S. currency to al Qaeda,
which used the funds to commit the embassy bombings. See
id. ¶ 118.
appeal, Plaintiffs claim BNPP's role in processing
financial transactions for Sudanese banks violated two
federal laws prohibiting the provision of material aid and
support to terrorists and terrorist groups, see id.
¶¶ 116-20,  both of which may constitute acts of
international terrorism under the ATA, see, e.g.,
Linde v. Arab Bank, PLC, 882 F.3d 314, 325-26 (2d
Cir. 2018); Boim v. Quranic Literacy Inst.
("Boim I"), 291 F.3d 1000, 1015 (7th Cir.
2002), overruled sub nom. Boim v. Holy Land Found. for
Relief & Dev. ("Boim III"), 549
F.3d 685 (7th Cir. 2008) (en banc). First, Plaintiffs claim BNPP
"provide[d] material support or resources [to
terrorists] . . . knowing or intending that they are to be
used in preparation for, or in carrying out, a violation
of" certain enumerated criminal laws. 18 U.S.C. §
2339A(a). Second, Plaintiffs claim BNPP "knowingly
provide[d] material support or resources to a foreign
terrorist organization." Id. §
allege that they were injured "by reason of"
BNPP's material aid and support to al Qaeda in violation
of §§ 2339A and 2339B. In the alternative,
Plaintiffs allege that BNPP's conduct "constituted
aiding and abetting" al Qaeda's acts of
international terrorism under the ATA. Am. Compl. ¶
Plaintiffs filed their complaint, BNPP moved to dismiss the
suit, arguing that the complaint failed to state a claim for
which relief may be granted under the ATA. The district court
granted BNPP's motion. See Owens v. BNP Paribas