ORDER AND OPINION DENYING IN PART AND GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Plaintiffs, lawful residents of the United States who fled Sudan because of genocidal acts committed by the Government of Sudan (“Sudan”) against them and the class they seek to represent, filed this lawsuit April 29, 2016 against defendants BNP Paribas SA and affiliated companies (“BNPP”). Plaintiffs allege that defendants unlawfully aided and abetted the Government of Sudan in committing acts of genocide between 1997 and 2011 and are liable under Article 50 of the Switzerland Code of Obligations (“SCO”). The record contains decisions and rulings by Hon. Alison J. Nathan, who presided over the case until she was appointed a Circuit Judge of the U.S. Court of Appeals,1 the Second Circuit Court of Appeals2, and myself after the case was transferred to me.3 Discovery has been completed. I now rule on defendants’ motion for summary judgment. Plaintiffs’ motion for class certification also is pending, awaiting argument and decision.4 The underlying facts have been sufficiently described in these earlier decisions, and need not be repeated. LEGAL STANDARD FOR SUMMARY JUDGMENT A court should grant summary judgment if there “is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must “view the evidence in the light most favorable to the party opposing summary judgment…draw all reasonable inferences in favor of that party, and…eschew credibility assessments.” Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 122 (2d Cir. 2004). However, the non-moving party may not rely on conclusory allegations or unsubstantiated speculation to defeat the summary judgment motion. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). “If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact…that is not genuinely in dispute and treat[] the fact as established in the case.” Fed. R. Civ. P. 56(g). THE LAW OF SWITZERLAND IS THE GOVERNING LAW Judge Nathan determined that Swiss law is the law governing BNPP’s liability, and I adopt that ruling as the law of the case and my own determination. Kashef III, 442 F. Supp. 3d at 818-25; Kashef IV, 2021 WL 603290, at *4-5; see also Waverly Props., LLC v. KMG Waverly, No. 09 Civ. 3940 (PAE), 2011 WL 13322667, at *1 (S.D.N.Y. Dec. 19, 2011) (“upon reassignment, the new judge is well advised to pay particular heed to the doctrine of law of the case, and not attempt a de novo of…decisions made over a lengthy period by diligent and experienced judicial officers who have handled the case previously.”) (quotations omitted). Article 50(1) of the SCO is the governing section of the Swiss Code of Law. Resolving a dispute between Swiss experts presented by plaintiffs and by defendants, Judge Nathan held the plaintiffs had to prove three elements for BNPP’s secondary liability under Article 50(1): “(1) a main perpetrator committed an illicit act, (2) the accomplice consciously assisted the perpetrator and knew or should have known that he was contributing to an illicit act, and (3) their culpable cooperation was the natural and adequate cause of the plaintiff’s harm or loss.” Kashef IV, 2021 WL 603290, at *2. Plaintiffs have the burden to prove that the Government of Sudan committed illicit acts, that BNPP consciously assisted Sudan and knew or should have known that it was contributing to Sudan’s illicit acts, and that their culpable cooperation was the natural and adequate cause of the injury suffered by plaintiffs. PROCEDURAL HISTORY Judge Nathan initially dismissed the case based on U.S. law, holding that Sudan, as the alleged primary tortfeasor, could not be held liable because of the “Acts of State” doctrine, and that the action was time-barred under N.Y. C.P.L.R. §215. The Second Circuit reversed and remanded, holding that the Sudanese government’s actions violated jus cogens and was not immune from suit, and that N.Y. C.P.L.R. §215(8), providing a one-year period from the termination of a criminal action against the defendant within which to file suit, was the applicable statute of limitations, and made the lawsuit timely. Plaintiffs’ claims, having been filed within a year of BNPP’s guilty plea and judgment of conviction by this court, are timely. Following remand, Judge Nathan carefully considered the reports of Sudanese and Swiss law experts and applied them to the facts of this case. She held that Swiss law governs BNPP’s conduct, and that plaintiffs were seeking recovery from BNPP under SCO Article 50(1), providing for secondary liability of an accomplice, and not Article 41, for tortfeasor’s direct acts. She dismissed the counts of the Second Amended Complaint (“SAC”) alleging BNPP’s direct liability, and upheld the claims alleging BNPP’s secondary liability. Subsequently, defendants moved to dismiss for forum non conveniens. I denied that motion, holding that plaintiffs were entitled to substantial deference in their choice of forum, and that defendants did not show that Switzerland was an available nor appropriate forum. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT I. Article 50(1) Liability a. BNPP’s Secondary Liability Defendants argue that plaintiffs cannot prove that the Government of Sudan committed unlawful acts because Swiss law would consider acts of a government as immune from suit under the doctrine of jure impeii, and that BNPP cannot be culpable as an accomplice if the primary actor cannot be held as a tortfeasor. The argument is without merit. The Second Circuit ruled in this case that Sudan violated jus cogens by its genocidal acts, and that BNPP can be sued for aiding and abetting Sudan. As the Second Circuit held, the illicit acts in question — “genocide, mass rape, and ethnic cleansing” — violated jus cogens norms, which are “peremptory norm[s] of international law…accepted and recognized by the international community of states as a whole…from which no derogation is permitted.” Kashef II, 925 F.3d at 60. The holding of the Court of Appeals is the law of the case. Next, defendants argue that that plaintiffs have not offered proof that BNPP committed unlawful acts or consciously performed acts that harmed plaintiffs. As defendants put it, “Plaintiffs do not allege that the BNPP Defendants violated Swiss sanctions on Sudan, that the BNPP Defendants engaged in any violent acts that injured them, nor have they alleged that the BNPP Defendants engaged in any unlawful conduct that in itself resulted in an attack on any Plaintiff.” Defts’ Memo, ECF No. 484 at 28. But defendants’ argument misstates the standard. SOC Article 50(1) provides the standard of secondary liability. As Judge Nathan held, plaintiffs have to prove, not that BNPP itself committed unlawful acts, but that BNPP consciously assisted Sudan and knew or should have known that it was contributing to Sudan’ illicit acts. And plaintiffs point to a multitude of proofs to show BNPP’s “conscious assistance” and knowledge of Sudan’ genocidal acts, none of which defendants conclusively challenge. Indeed, BNPP admitted its conscious cooperation. In a stipulated statement of facts supporting its plea of guilty to a U.S. federal prosecution, BNPP admitted that its own employees recognized BNPP’s “central role in providing Sudanese financial institutions access to the U.S. financial system, despite the Government of Sudan’s role in supporting terrorism and committing human rights abuses….” United States v. BNP Paribas, S.A., No. 14-cr-00460-LGS (S.D.N.Y. 2015), ECF 13, Ex. 2 20 (Stipulated Statement of Facts between BNPP and the United States, and plea and judgment of guilt for conspiring to violate the International Emergency Economic Powers Act and the Trading with the Enemy Act). As the Second Circuit held, BNPP “conceded that it had knowledge of the atrocities being committed in Sudan and of the consequences of providing Sudan access to U.S financial markets.” Kashef II, 925 F.3d at 56. Clearly, there are, at least, material issues of fact to be tried. Indeed, BNPP cannot now argue the issue that it already has admitted, that it knowingly and consciously assisted the Government of Sudan in its commission of unlawful acts and knew or should have known that it was enabling these illicit acts. b. Natural and Adequate Causation BNPP argues in its motion that plaintiffs cannot prove that its assistance was the natural and adequate cause of the injuries about which plaintiffs complain, that is, that plaintiffs’ injuries “would not have occurred at the same time or in the same way or magnitude” except for BNPP’s assistance. Kashef IV, 2021 WL 603290, at *12. Again, BNPP’s motion is denied, for the issues of causation present material issues for the jury to decide. Plaintiffs are black-Africans who come from non-Arab indigenous black African communities in South Sudan, Darfur, and the Nuba Mountains in Central Sudan. TAC 12, ECF 241. They are able to prove, largely from publicly available information, the following. The genocidal acts of the Sudanese Bashir regime against the black, non-Islamist population had become notorious by 1997. On November 3, 1997, the U.S. imposed a trade embargo on Sudan “to deny the Bashir Regime access to the U.S. financial system and deprive it of U.S. dollars as a means to defund its support for terrorism and human rights violations.” Exec. Order. No. 13,067, 62 Fed. Reg. 59989 (Nov. 3, 1997). The Sudanese economy, already in turmoil, soon faced an external debt of over $15 billion and a weakening Sudanese pound as countries closed their doors to commerce with Sudan. The country lacked the capital to exploit its rich oil reserves. BNPP came to its rescue. Using its banking network, it set up an infrastructure to evade U.S. sanctions and finance Sudan with U.S. dollars. BNPP engaged in a practice of “wire stripping,” that is, “deliberately modifying and omitting references to Sudan in the payment messages accompanying these transactions.” ECF No. 435-1, SSOF
