French banking giant BNP Paribas faces a monumental appeal after a federal jury found it liable for enabling Sudan’s genocidal regime, a verdict that not only awards $20.75 million to bellwether plaintiffs but also sets the stage for a class of 23,000 refugees to seek billions more in a case scrutinizing corporate complicity in human rights atrocities.
A federal jury in Manhattan has delivered a potentially landmark verdict against French bank BNP Paribas, finding it liable for aiding Sudan’s genocidal regime by providing banking services that violated American sanctions. This decision, announced on a Friday after a five-week trial, immediately sets the stage for what is anticipated to be a fierce and complex battle on appeal.
The Verdict: A Bellwether for Billions?
The jury’s award of $20.75 million to three Sudanese plaintiffs is significant, not just for the individuals involved, but for the wider implications it carries. These plaintiffs alleged they suffered severe human rights abuses under Sudan’s former President Omar al-Bashir between 1997 and 2011. Their cases were part of a “bellwether trial,” a common strategy in class actions designed to gauge jury responses to claims before a larger group proceeds.
Victims’ lawyers contend that this initial verdict paves the way for an estimated class of 23,000 Sudanese refugees in the U.S. to potentially seek “billions more in recovery.” This outcome marks a rare success for plaintiffs seeking to hold corporations responsible for enabling overseas human rights abuses, an area where such attempts have historically faced significant hurdles under U.S. statutes like the Alien Tort Claims Act or the Antiterrorism Act.
BNP Paribas, in a statement, unequivocally stated its belief that the verdict should be overturned, asserting it “will fight this case and use all recourses available to it.” The bank also downplayed the verdict’s broader impact, characterizing it as specific only to the three plaintiffs involved in the bellwether trial. Following the verdict, shares of the bank experienced a sharp decline.
A History of Complicity: BNP Paribas and Sudan’s Sanctioned Regime
The lawsuit, initially filed in 2016, posited that BNP Paribas knew, or should have known, that its financial services were contributing to the Sudanese regime’s campaign of murder, rape, and torture. The U.S. government officially recognized the Sudanese conflict as a genocide in 2004, amplifying the gravity of the bank’s alleged involvement.
This is not BNP Paribas’ first encounter with U.S. authorities over its dealings with sanctioned entities. A decade prior to this verdict, in 2014, the bank pleaded guilty to U.S. criminal charges related to facilitating transactions for sanctioned entities in Sudan, Iran, and Cuba. That plea resulted in a substantial $8.97 billion penalty, as widely reported at the time by the U.S. Department of Justice.
The current civil case, however, took an unusual turn. After a series of procedural developments, it was ultimately tried under Swiss law. This decision was made by Judge Alison Nathan, who reasoned that the choice of law was appropriate because BNP Paribas’ dealings with Sudan predominantly operated through its Swiss branch.
The Impending Appeal: Three Key Battlegrounds
The 2nd U.S. Circuit Court of Appeals will likely face several complex arguments from BNP Paribas. The timeline for review remains uncertain, depending on whether the court opts to review the bellwether verdicts immediately or await further claims. Based on court records, three issues are expected to form the core of the bank’s appeal:
1. The Swiss Law Conundrum
A primary contention for BNP Paribas on appeal will be the argument that U.S. District Judge Alvin Hellerstein misapplied Swiss law, thus using an incorrect legal standard to hold the bank liable. The bank has consistently asserted that its past conduct in Sudan was permissible under Swiss law at the time. This argument gained external support last month when the Swiss government, through its ambassador to the U.S., Ralf Heckner, submitted a letter to the court echoing this stance. However, plaintiffs’ co-lead counsel, Kathryn “Lee” Boyd, dismissed this as a “last-gasp effort,” noting the bank has unsuccessfully made similar arguments for years to both Judge Nathan and Judge Hellerstein.
2. Judicial Conduct Under Scrutiny
Another significant point of appeal may arise from the conduct of Judge Hellerstein during the trial. Despite denying the defense counsel’s request to avoid starting the trial on September 11 due to terrorism associations, the judge commenced proceedings by sharing extensive personal recollections of 9/11 with the jurors. This prompted BNP Paribas trial counsel, Barry Berke of Gibson, Dunn & Crutcher, to move for a mistrial, labeling the judge’s remarks as improper and prejudicial. Judge Hellerstein denied the motion. A subsequent mistrial motion by the defense, citing irrevocably prejudiced testimony, was also denied after the judge struck the testimony as hearsay and instructed the jury to disregard it.
3. Internal Strife Among Plaintiffs’ Counsel
Beyond the technical legal questions, internal disputes within the plaintiffs’ counsel team could also provide grounds for BNP Paribas’ appeal. A highly unusual public disagreement erupted this past summer, with co-counsel from Hausfeld and Zuckerman Spaeder seeking to disqualify Kathryn “Lee” Boyd. They alleged she attempted to “force words into the mouth of an expert witness” and coached class members on questionnaires for settlement purposes. Boyd refuted these claims, accusing the Hausfeld/Zuckerman team of attempting to settle the case behind closed doors without the involvement of those they represented. While the plaintiffs’ team eventually informed the judge they had resolved their differences, Barry Berke indicated that the issue remained a concern for the defense, noting “significant allegations under oath that the experts and fact witnesses, including potentially the plaintiffs, were prepared to testify falsely in this trial.” Plaintiffs’ counsel Michael Hausfeld, however, later stated the conflict was “not an appealable issue” for BNP Paribas.
Long-Term Implications: A Precedent for Corporate Accountability?
As the case progresses into its next phases, the question of whether these verdicts will stand remains paramount for BNP Paribas and the tens of thousands of Sudanese refugees still seeking justice. This ongoing legal battle underscores the complex challenges of applying international human rights law to corporate entities and could set a powerful precedent for future cases involving corporate responsibility for atrocities committed abroad. The ultimate outcome will undoubtedly shape discussions around financial institutions’ duties in upholding international sanctions and preventing complicity in human rights abuses.
