Kashef v. BNP Paribas S.A., No. 18-1304 (2d Cir. 2019)Annotate this Case
Plaintiffs filed suit under New York tort law, alleging that defendants conspired with and aided and abetted the Sudanese regime in its commission of widespread atrocities. The Second Circuit reversed the district court's dismissal of the complaint under Civil Rule of Procedure 12 (b)(6), holding that the district court misapplied the act of state doctrine and erroneously determined that the adult plaintiffs' claims were untimely.
In this case, considering the lack of evidence introduced by defendants that genocide is the official policy of Sudan, and the countervailing evidence that genocide blatantly violates Sudan's own laws, the court held that there was simply no "official act" that a court would be required to "declare invalid" in order to adjudicate plaintiffs' claims. Furthermore, the court held that the atrocities to which defendant asked the court to defer can never be the basis of a rule of decision capable of triggering the act of state doctrine, because circuit precedent prohibits the court from deeming valid violations of non-derogable jus cogens norms irrespective of the consent or practice of a given state. The court also held that plaintiffs' claims under the act of state doctrine were timely. Accordingly, the court reversed and remanded for further proceedings.