Appeal from the United States District Court for the Southern District of New York No. 16-cv-3228, Alison J. Nathan, District Judge, Presiding. Defendants were convicted of federal and state felonies arising from their evasion of U.S. sanctions on Sudan. As Defendants admitted in pleading guilty, they had knowledge of the genocide and ethnic cleansing being perpetrated by the Sudanese regime and the consequences of providing the regime access to additional financial resources, which could be used to escalate the commission of atrocities. Nevertheless, Defendants illegally transacted with sanctioned entities and actively attempted to evade U.S. detection, thus providing the regime access to U.S. financial markets. Plaintiffs, victims of the Sudanese regime’s atrocities, sued Defendants under New York tort law, alleging that Defendants conspired with and aided and abetted the Sudanese regime in its commission of widespread atrocities. The United States District Court for the Southern District of New York (Nathan, J.) dismissed Plaintiffs’ claims under Federal Rule of Civil Procedure 12(b)(6), reasoning that they were barred by the act of state doctrine and, in the alternative, were untimely. We VACATE and REMAND.BARRINGTON D. PARKER, C.J.Defendant BNP Paribas S.A., a French corporation, is the parent company of various BNP Paribas subsidiaries across the world, including the other named Defendants in this action (collectively “BNPP”). BNPP is a global leader in banking and financial services, operating in 73 countries, including in the United States. BNPP’s annual revenue exceeds 40 billion euros and its total assets amount to approximately 1.9 trillion euros, making it one of the five largest banks in the world.1Following a guilty plea, BNPP was convicted of federal and state felonies for evading U.S. sanctions on Sudan. Plaintiffs, who are alleged victims of the Sudanese regime’s atrocities, sued BNPP in the United States District Court for the Southern District of New York, bringing various tort claims under New York law. They allege that BNPP conspired with and aided and abetted the Sudanese regime in its commission of widespread atrocities, including murder, mass rape, torture, and deliberate infection with HIV, among others. They also allege claims of negligence per se, intentional infliction of emotional distress, and negligent infliction of emotional distress.The District Court (Nathan, J.) dismissed Plaintiffs’ claims under Federal Rule of Civil Procedure 12(b)(6), reasoning that they were barred by the act of state doctrine and, for the Plaintiffs who were adults at the time of injury (the “Adult Plaintiffs”), otherwise untimely. Because we conclude that the District Court misapplied the act of state doctrine and erroneously determined that the Adult Plaintiffs’ claims were untimely, we vacate and remand for further proceedings.BACKGROUNDThe atrocities taking place in Sudan are widely known and have been condemned by both the United States and the international community as genocide. See, e.g., H.R. Con. Res. 467, 108th Cong. (2004) (enacted); S. Con. Res. 133, 108th Cong. (2004) (enacted). In 1997 and 2006, pursuant to the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. §1701 et seq., the U.S. Government imposed sanctions on Sudan aimed at halting the genocide. See Exec. Order No. 13,412 §1, 71 Fed. Reg. 61,369 (Oct. 17, 2006); Exec. Order No. 13,067 §1, 62 Fed. Reg. 59,989 (Nov. 5, 1997); see generally 31 C.F.R. pt. 538. Nevertheless, as 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.” Stipulated Statement of Facts 17, United States v. BNP Paribas, S.A., No. 14-cr-00460-LGS (S.D.N.Y. 2015), ECF No. 13 Ex. 2.In 2015, the Federal Government and New York State secured convictions of BNPP for federal and state felonies. BNPP pled guilty to conspiracy to commit an offense against the United States in violation of 18 U.S.C. §371, by conspiring to violate the IEEPA and the Trading with the Enemy Act, 50 U.S.C. §4303 et seq. BNPP also pled guilty to New York state crimes of falsifying business records in the first degree, in violation of Penal Law §175.10, and conspiracy in the fifth degree, in violation of Penal Law §105.05. BNPP was required to pay almost nine billion dollars in forfeitures and fines, the largest financial penalty ever imposed in a criminal case.2BNPP admitted, in a Stipulated Statement of Facts (the “SSOF”), that the allegations in the federal and state criminal informations were true, as were additional facts set forth in the SSOF, and that had the matter gone to trial, the Federal Government and New York State would have proven them beyond a reasonable doubt. BNPP conceded that it “continued to process transactions involving Sudanese Sanctioned Entities — despite being well aware that its conduct violated U.S. law — because the business was profitable” and BNPP “did not want to risk its longstanding relationship with Sudanese clients.” SSOF 24; see also id.
59-73 (outlining the evidence of BNPP’s knowledge of its illegal conduct).BNPP admitted that it employed many sophisticated methods to violate U.S. law. First, it “carried out transactions with Sanctioned Entities and evaded the U.S. embargo” against Sudan by “deliberately modifying and omitting references to Sudan in the payment messages accompanying these transactions.” Id. 18. Second, in cooperation with Sudanese entities, it utilized complicated payment structures with no legitimate business purpose to mask transaction information that could trigger scrutiny. Id. 16. Third, it moved “illicit transactions through unaffiliated satellite banks” to “disguise the involvement of Sanctioned Entities in U.S. dollar transactions,” id.
