Mary Ofisi v. BNP Paribas, S.A.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 2, 2023 Decided July 7, 2023

No. 22-7083

MARY OFISI, ET AL.,
APPELLANTS

v.

BNP PARIBAS, S.A.,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-02010)

David Dickens argued the cause and filed the briefs for
appellants.

Carmine D. Boccuzzi Jr. argued the cause for appellees.
With him on the brief was Mark E. McDonald.

Marc J. Gottridge was on the brief for amicus curiae
Institute of International Bankers in support of appellees.
 2
Before: RAO, Circuit Judge, and SENTELLE and
ROGERS, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge
SENTELLE.

SENTELLE, Senior Circuit Judge: Appellants are
survivors and family members of victims of the 1998 U.S.
embassy attacks in Kenya and Tanzania. They bring suit
against Appellee BNP Paribas, S.A. (“BNPP”), an international
bank, alleging the bank acted in support of the terrorists who
committed those attacks. The United States District Court for
the District of Columbia granted Appellee’s motion to dismiss
under Rule 12(b)(6). For the reasons set forth below, we affirm
the district court on all counts.

I. Background and Procedural Posture

As this is an appeal from the grant of a motion to
dismiss, “the relevant facts are those alleged in the complaint,
taken in the light most favorable to the plaintiff and with all
reasonable inferences drawn in his favor.” Hurd v. District of
Columbia, 864 F.3d 671, 675 (D.C. Cir. 2017). The following
facts therefore draw from Plaintiff-Appellants’ Complaint.

This case arises from the 1998 embassy bombings in
Kenya and Tanzania, perpetrated by Usama bin Laden and al-
Qaeda, that killed over 200 people and wounded thousands. In
the years leading up to the attack, the country of Sudan
welcomed al-Qaeda to its borders, promising shelter and other
benefits to the terrorist organization. As a result of Sudan’s
state-sponsored terrorism, the United States imposed an
embargo on all goods and services to Sudan, including
financial services, in 1997.
 3
Appellee BNPP is a French bank headquartered in Paris
with branches around the world, including in New York. In
2014 United States court proceedings, BNPP admitted to
flouting U.S. sanctions on Sudan by establishing a banking
relationship with the country in 1997. Sudan instructed its
Central Bank and other commercial banks to use BNPP as their
sole correspondent bank in Europe. In this capacity, BNPP
allowed Sudan to establish bank accounts in U.S. dollars, in
violation of the sanctions, and hid U.S. dollar transactions to
and from Sudan. One of the financial institutions
corresponding with BNPP was Al-Shamal, a Sudanese bank
stabilized by a $50 million investment from bin Laden and
holder of bin Laden and al-Qaeda accounts. Appellants
originally named Al-Shamal in this action, but they have since
dropped Al-Shamal from this suit after reaching a settlement
with the Government of Sudan.

Appellants represent over 500 victims of the 1998
embassy attacks, including U.S. citizens, U.S. contractors, and
their surviving family members. Appellants’ theory of BNPP’s
liability follows this causal chain: BNPP, as Sudan’s only
connection to worldwide financial markets in the years before
the 1998 attacks, violated U.S. sanctions by supporting Sudan’s
economy and banking system, including Al-Shamal Bank. Al-
Qaeda terrorists banked at Al-Shamal. Without al-Qaeda’s
access to foreign markets through Al-Shamal, Appellants argue
that al-Qaeda would have lacked the capital to carry out the
bombings.

Appellants also argue the existence of a larger
conspiracy between BNPP and al-Qaeda. According to
Appellants’ theory, BNPP’s support of the Sudanese financial
sector and al-Qaeda’s 1998 attacks shared the same goal of
flouting U.S. sanctions. Therefore, Appellants argue, BNPP
 4
should hold responsibility for the acts, including the bombings,
perpetrated in furtherance of that goal.

Appellants brought suit in the district court on
numerous grounds including, as relevant to this appeal: federal
common law claims of (1) conspiracy and (2) aiding and
abetting; (3) aiding and abetting under the Alien Tort Statute
(ATS); and (4) several statutory violations under the Anti-
Terrorism Act (ATA). The district court granted Appellee’s
motion to dismiss all of Appellants’ claims. Ofisi v. BNP
Paribas, S.A., 278 F. Supp. 3d 84, 112 (D.D.C. 2017), order
vacated in part, 285 F. Supp. 3d 240 (D.D.C. 2018). On
appeal, Appellants allege error in the dismissal of each of the
claims. For the reasons set forth below, we reject Appellants’
arguments as to each of their claims.

II. Discussion

“We review de novo the district court’s dismissal of the
. . . claims under Rule 12(b)(6).” Sparrow v. United Air Lines,
Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). As referenced
above, we “treat the complaint’s factual allegations as true . . .
and . . . grant plaintiff ‘the benefit of all inferences that can be
derived from the facts alleged.’” Id. (quoting Schuler v. United
States, 617 F.2d 605, 608 (D.C. Cir. 1979)).

i. Common Law Conspiracy

Appellants first allege the existence of a civil
conspiracy between al-Qaeda, BNPP, Al-Shamal Bank, and
Sudan. To establish common law conspiracy, a party must
allege “(1) an agreement between two or more persons; (2) to
participate in an unlawful act, or a lawful act in an unlawful
manner; (3) an injury caused by an unlawful overt act
performed by one of the parties to the agreement; [and] (4)
 5
which overt act was done pursuant to and in furtherance of the
common scheme.” Halberstam v. Welch, 705 F.2d 472, 477
(D.C. Cir. 1983). Appellants contend that the common scheme
consisted of evading U.S. sanctions on Sudan, and both
BNPP’s establishment of banking relations with Sudanese
financial institutions and al-Qaeda’s embassy bombings
furthered that goal.

The district court held that BNPP and al-Qaeda shared
no common scheme to bomb the U.S. embassies, thus failing
the fourth requirement of Halberstam’s conspiracy test. Ofisi,
278 F. Supp. 3d at 110. Instead, the court held that the only
scheme common to al-Qaeda, BNPP, and Al-Shamal Bank was
to circumvent U.S. sanctions, and no private cause of action
exists for sanctions violations. Id. The district court also
emphasized that Appellants did not plausibly allege that BNPP
knew of any larger common scheme between Sudan and al-
Qaeda to perpetrate these attacks. Id.

We agree with the district court. The proper framework
with which to evaluate secondary liability claims under the
common law is Halberstam, as the district court correctly noted
and Appellants acknowledge. And like the district court, we
conclude that Appellants did not plausibly allege that BNPP
and al-Qaeda shared a common scheme under Halberstam. Al-
Qaeda’s objective was to blow up U.S. embassies in Africa.
BNPP’s objective was to provide banking services, admittedly
in violation of the U.S. embargo, to Sudan. Appellants’ attempt
to connect these two vastly different goals, by claiming the
parties entered a common scheme to evade U.S. sanctions, is
attenuated at best.

Our decision in Bernhardt v. Islamic Republic of Iran,
47 F.4th 856 (D.C. Cir. 2022), is instructive. In Bernhardt, we
held that appellants could not maintain a conspiracy claim,
 6
evaluated under Halberstam, against global bank HSBC
because

HSBC was trying to make “substantial profits”
by evading sanctions, whereas al-Qaeda sought
to “terrorize the U.S. into retreating from the
world stage”; “use long wars to financially
bleed the U.S. while inflaming anti-American
sentiment”; “defend the rights of Muslims”; and
“obtain global domination through a violent
Islamic caliphate.” These objectives are wholly
orthogonal to one another.

Id. at 873 (quoting Bernhardt appellants’ complaint).

Appellants attempt to differentiate Bernhardt. They
assert that appellants in that case failed to allege an overt act
under Halberstam because al-Qaeda’s bombing did not further
HSBC’s objective to evade U.S. sanctions. By contrast,
Appellants argue in this case that al-Qaeda’s embassy
bombings shared the same objective as BNPP of evading U.S.
sanctions, and that the bombings furthered that goal.
Appellants heavily rely on evidence presented by federal
prosecutors in a 2010 criminal trial for a co-conspirator that one
of the many goals of the embassy bombings was “[t]o cease the
campaign for the annihilation and humiliation that are being
waged by the United States against a number of Islamic peoples
under the titles of blockades or economic sanctions that has led
to the deaths of hundreds of thousands and the hunger of
millions of Muslims.” A47–48 (quoting Trial Tr., United
States v. Ahmed Ghailani, No. 98-cr-1023 (S.D.N.Y. Oct. 20,
2010), at 897).

Appellants’ arguments are unpersuasive. They do not
plausibly allege that al-Qaeda’s embassy bombings in any way
 7
furthered BNPP’s goal of evading U.S. sanctions on Sudan.
Appellants themselves concede that “BNPP did not share [al-]
Qaeda’s desire to kill American citizens and citizens of their
allies.” A45 (Compl. ¶ 3). At bottom, al-Qaeda sought to
brutally murder employees of U.S. embassies. BNPP sought
to evade U.S. sanctions on Sudan by establishing banking
relations with that country. As in Bernhardt, these goals are
simply orthogonal to one another.

Appellants’ common law conspiracy claim fails for
another, independent reason; namely, Appellants do not tether
their claim to an underlying, actionable tort. “Since liability
for civil conspiracy depends on performance of some
underlying tortious act, the conspiracy is not independently
actionable; rather, it is a means for establishing vicarious
liability for the underlying tort.” Halberstam, 705 F.2d at 479.
As the district court correctly noted, there is no private right of
action for violation of banking sanctions under the common
law. Ofisi, 278 F.Supp 3d. at 110. Appellants’ common law
conspiracy claim fails.

ii. Common Law Aiding and Abetting

Appellants next assert common law aiding and abetting
liability for BNPP. To establish this, “(1) the party whom the
defendant aids must perform a wrongful act that causes an
injury; (2) the defendant must be generally aware of his role as
part of an overall illegal or tortious activity at the time that he
provides the assistance; [and] (3) the defendant must
knowingly and substantially assist the principal violation.”
Halberstam, 705 F.2d at 477. As with their conspiracy claim,
Appellants contend that BNPP “hatched a secret and illegal
scheme” to evade U.S. sanctions by providing financial support
to Sudanese banks, which in turn assisted al-Qaeda in funding
the embassy bombings. Appellant Br. 33.
 8

The district court dismissed this claim. It held that
BNPP never knowingly or substantially assisted in the
bombings under Halberstam’s third requirement, as Appellants
offered no well-pled allegations that BNPP directly or
indirectly funded the attacks. Ofisi, 278 F. Supp. 3d at 111.

Appellants first contend the district court erred by
requiring them to show under Halberstam’s general awareness
requirement that BNPP had an “intent and desire to make the
[criminal] venture succeed.” Appellant Br. 31–32 (alteration
in original) (quoting Ofisi, 278 F. Supp. 3d at 111 n.23). They
instead cite this Court’s recent case of Atchley v. AstraZeneca
UK Ltd., 22 F.4th 204 (D.C. Cir. 2022), for the proposition that
“[t]here is no specific intent requirement” to allege general
awareness for aiding and abetting liability, Appellant Br. 32
(quoting Atchley, 22 F.4th at 220). Appellants secondly argue
that they plausibly allege BNPP’s aiding and abetting liability
under Halberstam’s knowing and substantial assistance
requirement. We reject both arguments.

1. General awareness

First, regarding general awareness, “a defendant may
be liable for aiding and abetting an act of terrorism if it was
generally aware of its role in an overall illegal activity from
which an act of international terrorism was a foreseeable risk.”
Atchley, 22 F.4th at 220 (quoting Kaplan v. Lebanese Canadian
Bank, SAL, 999 F.3d 842, 860 (2d Cir. 2021) (internal
quotation marks omitted)). Additionally, when an
intermediary between the alleged abettor and terrorist is
involved, as here, Bernhardt instructs that
 9
the general awareness requirement is satisfied if
(1) the defendant was aware of the
intermediary’s connection to the terrorist
organization, and (2) the intermediary is “so
closely intertwined” with the terrorist
organization’s illegal activities as to give rise to
an inference that the defendant was generally
aware of its role in the organization’s terrorist
activities.

47 F.4th at 867–68 (quoting Honickman v. BLOM Bank SAL, 6
F.4th 487, 501 (2d Cir. 2021)).

More recently, the Supreme Court in Twitter, Inc. v.
Taamneh, 143 S. Ct. 1206 (2023), considered aiding and
abetting liability for terrorism under the ATA. In that case,
appellants brought suit against Twitter and other social-media
platforms for failing to stop “ISIS [from using] defendants’
social-media platforms to recruit new terrorists and to raise
funds for terrorism.” Id. at 1215. In evaluating appellants’
claims, the Court acknowledged that “[Halberstam’s] precise
three-element and six-factor test thus may not be entirely
adequate to resolve these new facts.” Id. at 1220. Instead, the
Court reasoned, it “must ascertain the ‘basic thrust’ of
Halberstam’s elements and determine how to ‘adap[t]’ its
framework to the facts before us today.” Id. (quoting
Halberstam, 705 F.2d at 478 n.8). The Court emphasized the
need for some culpable conduct in aiding and abetting cases,
“lest mostly passive actors like banks become liable for all of
their customers’ crimes by virtue of carrying out routine
transactions.” Id. at 1222 (emphasis added) (citations omitted).
In other words, the Court continued, aiding and abetting “refers
to a conscious, voluntary, and culpable participation in
another’s wrongdoing.” Id. at 1223.
 10
Of course, this does not mean, as the Court cautioned,
that the defendant must “have known ‘all particulars of the
primary actor’s plan.’” Id. at 1224 (quoting Restatement
(Third) of Torts: Intentional Torts to Persons § 10, Comment c,
p. 104 (Tent. Draft No. 3, Apr. 6, 2018)). For example, the
Court continued, “a defendant might be held liable for aiding
and abetting the burning of a building if he intentionally helped
others break into the building at night and then, unknown to
him, the others lit torches to guide them through the dark and
accidentally started a fire.” Twitter, 143 S. Ct. at 1224–25
(citations omitted). The “conceptual core” of aiding and
abetting liability rather is “that the defendant consciously and
culpably ‘participate[d]’ in a wrongful act so as to help ‘make
it succeed.’” Id. at 1223 (quoting Nye & Nissen v. United
States, 336 U.S. 613, 619 (1949)).

We note that cases like Bernhardt, Atchley, and Twitter
evaluate claims under the Anti-Terrorism Act, not common
law. However, these courts use Halberstam, a common law
case, as the framework for statutory liability, pursuant to a 2016
amendment to the ATA. See Justice Against Sponsors of
Terrorism Act, Pub. L. No. 114-222, § 2(a)(5), 130 Stat. 852,
852 (2016) (“Halberstam . . . has been widely recognized as
the leading case regarding [f]ederal civil aiding and abetting
and conspiracy liability, including by the Supreme Court of the
United States, [and] provides the proper legal framework for
how such liability should function.”); see also Twitter, 143 S.
Ct. at 1219–20; Bernhardt, 47 F.4th at 867 (“The ATA does
not provide a definition of aiding and abetting liability, but
instead incorporates the analysis in Halberstam . . . .”);
Atchley, 22 F.4th at 215. We therefore use these cases to
evaluate Appellants’ common law aiding and abetting claim.

Appellants do not plausibly allege BNPP was
“generally aware of its role in an ‘overall illegal activity’ from
 11
which an ‘act of international terrorism’ was a foreseeable
risk,” Atchley, 22 F.4th at 220 (quoting Kaplan, 999 F.3d at
860), or that it “consciously and culpably ‘participate[d]’ in a
wrongful act so as to help ‘make it succeed,’” Twitter, 143 S.
Ct. at 1223 (alteration in original); see also Ofisi v. BNP
Paribas, S.A., No. 15-2010, 2018 WL 396234, at *5 (D.D.C.
Jan. 11, 2018). Under our precedent in Halberstam and
Atchley, Appellants are correct that no specific intent for the
precise criminal venture to succeed is required to allege general
awareness in aiding and abetting liability. Atchley, 22 F.4th at
223; see also Twitter, 143 S. Ct. at 1219 (discussing
Halberstam for the proposition that the defendant “was not . . .
even allegedly aware of the murder. But the facts made clear
that ‘[s]he was a willing partner in [Welch’s] criminal
activities.’” (alteration in original) (citation omitted) (quoting
Halberstam, 705 F.2d at 474)). Halberstam’s language
regarding the “intent and desire to make the venture succeed”
was in the context of the knowing and substantial assistance
factors under aiding and abetting’s third requirement.
Halberstam, 705 F.2d at 488; see also infra Part II.ii.2.; see
also Twitter, 143 S. Ct. at 1229 (“The ‘knowing’ part of that
inquiry is therefore designed to capture the defendants’ state of
mind with respect to their actions and the tortious conduct
(even if not always the particular terrorist act), not the same
general awareness that defines Halberstam’s second
element.”). That general awareness does not require a specific
intent does not mean, as Appellants seem to believe, that aiding
and abetting liability contains no knowledge requirement.
Aiding and abetting “requires more than the provision of
material support to a terrorist organization.” Kaplan, 999 F.3d
at 860 (emphasis omitted) (quoting Linde v. Arab Bank, PLC,
882 F.3d 314 (2d Cir. 2018)). And as the Supreme Court
recently reiterated, “the concept of ‘helping’ in the commission
of a crime—or a tort—has never been boundless.” Twitter, 143
S. Ct. at 1220. Instead, aiding and abetting liability requires a
 12
showing of “a conscious, voluntary, and culpable participation
in another’s wrongdoing.” Id. at 1223.

Appellants simply do not plausibly allege that BNPP
was generally aware of any role it allegedly played in the U.S.
embassy bombings or that it consciously participated in any act
to make the bombings succeed. Nor do they plausibly allege
that BNPP was aware of the connection between Al-Shamal
Bank, the intermediary between BNPP and al-Qaeda, and al-
Qaeda. See Bernhardt, 47 F.4th at 867–68; see also Ofisi, 278
F. Supp. 3d at 101 (“[T]he complaint does not contain any
detailed factual allegations that BNPP knew about [Al-
Shamal’s] supposed connections to al Qaeda . . . . [I]t appears
that the relationship between Al Shamal and [b]in Laden was
not widely reported until after the 1998 embassy bombings.”).
Appellants therefore fail to allege that BNPP was “generally
aware of [its] role as part of an overall illegal or tortious
activity.” Halberstam, 705 F.2d at 477.

2. Knowing and Substantial
Assistance

Second, we agree with the district court that Appellants
do not plausibly allege that BNPP knowingly and substantially
assisted al-Qaeda in its attacks. As both parties agree,
Halberstam identifies six factors for evaluating this
requirement: “[1] the nature of the act encouraged; [2] the
amount [and kind] of assistance given; [3] the defendant’s
absence or presence at the time of the tort; [4] his relation to
the tortious actor; . . . [5] the defendant’s state of mind”; and
“[6] [the] duration of the assistance provided.” Halberstam,
705 F.2d at 483–84 (alteration in original).

None of these factors favors Appellants. First,
Appellants do not allege BNPP “encouraged” the U.S. embassy
 13
attacks by al-Qaeda. Second, Appellants do not allege that any
of the financial assistance provided by BNPP to Sudanese
banking institutions flowed to al-Qaeda to fund its murderous
plots. Third, Appellants do not allege, and indeed cannot
plausibly allege, that BNPP was present during the bombings.
Fourth, while Appellants spend a majority of their briefs
attempting to connect BNPP with al-Qaeda, they fail to
plausibly allege the two entities had any relationship
whatsoever with one another. Through a series of attenuated
links, Appellants connect BNPP through its financial support
of Sudan to al-Qaeda, which banked in Sudan, and thus to al-
Qaeda’s bombings. This “causal” chain is simply too remote.
Cf. Ungar v. Islamic Republic of Iran, 211 F. Supp. 2d 91, 100
(D.D.C. 2002) (discussing requirements for establishing chain
conspiracy). Fifth, Appellants fail to plausibly allege BNPP
knew of the plot to bomb the embassies or intended to support
al-Qaeda in its mission. See Twitter, 143 S. Ct. at 1230
(referring to defendants’ state of mind under Halberstam’s fifth
element as “their undisputed lack of intent to support [the
terrorist organization].”). Finally, Appellants do not plausibly
allege any assistance from BNPP to al-Qaeda. Even if
Appellants had, that “assistance” lasted a short period of time
between the 1997 sanctions and 1998 bombings. Appellants
simply cannot bend this final consideration in their favor,
especially in light of this Court’s determination in Bernhardt
that even “lengthy business relationships with the foreign
banks” did not satisfy Halberstam’s final factor. 47 F.4th at
872 (“Because the foreign banks are global financial
institutions with legitimate operations and uncertain ties to al-
Qaeda, we cannot infer substantial assistance to al-Qaeda from
[appellee’s] lengthy business relationships with the foreign
banks.”).

In sum, Appellants’ common law aiding and abetting
claim was properly dismissed by the district court.
 14

iii. Aiding and Abetting under the Alien
Tort Statute

Appellants also allege aiding and abetting liability
under the Alien Tort Statute. Applying the standards of
customary international law, the district court dismissed this
claim, finding Appellants failed to plausibly allege either the
proper actus reus or mens rea requirements. Ofisi, 278 F.
Supp. 3d at 109. Appellants contend the district court erred by
requiring them to plead a “higher burden” than the law requires
for those elements. Appellant Br. 39.

In fact, Appellants’ aiding and abetting claim under the
ATS fails for a much simpler reason. The ATS is a purely
jurisdictional statute and does not itself create a private cause
of action. 28 U.S.C. § 1350 (“The district courts shall have
original jurisdiction of any civil action by an alien for a tort
only, committed in violation of the law of nations or a treaty of
the United States.”); see also Sosa v. Alvarez-Machain, 542
U.S. 692, 714 (2004). And after the district court’s 2017
decision in this case, the Supreme Court held that the ATS’s
jurisdiction does not extend to foreign corporate defendants.
Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1407 (2018)
(“[F]oreign corporations may not be defendants in suits
brought under the ATS.”). BNPP, an international bank
headquartered in Paris, France, is a foreign corporation, which
Appellants admit in their own Complaint. A51, Compl. ¶ 18
(“BNPP is a French multinational bank, incorporated under the
laws of France, and headquartered in Paris, France.”).
Therefore, Appellants cannot maintain a claim against BNPP
within the jurisdiction created by the ATS.

While Appellants fail to grapple with Jesner in their
opening brief, on reply, they unconvincingly argue that BNPP
 15
is a U.S. person because it has American branches and a North
American headquarters in New York. For further evidence,
Appellants cite BNPP’s guilty plea before the District Court for
the Southern District of New York in 2014 for economic
sanctions violations. They also argue that the definition of
“U.S. person” from the 1997 Executive Order for Sudanese
sanctions encompasses BNPP, and that BNPP is a U.S. person
under 18 U.S.C. § 2332d(b)(2), which defines a U.S. person as
“(A) United States citizen or national; (B) permanent resident
alien; (C) juridical person organized under the laws of the
United States; or (D) any person in the United States.” Id.

None of these arguments is persuasive. The Southern
District of New York attained jurisdiction over BNPP for its
2014 guilty plea not because it defined BNPP as a U.S. person,
but because some of BNPP’s illegal sanction-evading conduct
occurred at its New York branch. See Gov’t Memo in Support
of the Court’s Acceptance of the Plea Agreement, United States
v. BNP Paribas S.A., No. 1:14-cr-00460 (S.D.N.Y. 2014), at 5
(“U.S. sanctions laws applied to BNPP when it processed
transactions through its U.S. branch in New York . . . .”); see
also Ofisi, 278 F. Supp. 3d at 99. Further, assuming that
§ 2332d(b) applies, the district court correctly noted that BNPP
is not a “juridical person organized under the laws of the United
States” under § 2332d(b)(2)(C) because BNPP is organized
under the laws of France, again as Appellants’ Complaint
acknowledges. Ofisi, 278 F. Supp. 3d at 98–99 (emphasis
omitted); see also A51, Compl. ¶ 18. Nor is BNPP “any person
in the United States” under subparagraph (D) because, as the
district court correctly reasoned, “interpreting subparagraph
(D) to apply to juridical persons would render subparagraph
(C) superfluous because companies organized under the laws
of the U.S. are by definition located in the U.S., as that is their
place of incorporation.” Ofisi, 278 F. Supp. 3d at 99. Finally,
we agree with the district court that the 1997 Executive Order
 16
does not encompass BNPP within its definition of “U.S.
person.” See id.

BNPP is a French bank, headquartered in Paris, under
the laws of France. It is a foreign corporation, and pursuant to
the Supreme Court’s Jesner opinion, Appellants cannot
maintain a cause of action against it under the Alien Tort
Statute.

iv. Statutory Anti-Terrorism Act (ATA)
Claims

Appellants finally allege two claims against BNPP
under the ATA, 18 U.S.C. § 2333(a), which supplies a private
cause of action for victims of international terrorism, Owens v.
BNP Paribas, S.A., 897 F.3d 266, 270 (D.C. Cir. 2018); see
also 18 U.S.C. § 2333(a). Appellants specifically allege claims
that BNPP materially supported terrorists, § 2339A(a), and that
BNPP was a U.S. person engaged in financial transactions with
a country supporting terrorism, § 2332d(a). The district court
dismissed the § 2339A(a) claims because Appellants failed to
plausibly allege that BNPP knew or should have known its
transactions would end up supporting al-Qaeda, Ofisi, 278 F.
Supp. 3d at 100, and for lack of proximate causation between
BNPP’s actions and the embassy bombings, id. at 102–03. The
court relied in part on its factually similar case of Owens v. BNP
Paribas S.A., 235 F. Supp. 3d 85 (D.D.C. 2017), aff’d, 897 F.3d
266 (D.C. Cir. 2018), emphasizing that “the fact that money
was transferred to or for a state sponsor of terrorism makes it
more likely that the money was used for terrorism than if the
transfers had been to a state that does not sponsor . . .
terrorism.” Ofisi, 278 F. Supp. 3d at 102 (quoting Owens, 235
F. Supp. 3d at 99). Still, Sudan “is a government, and as such
it has many legitimate agencies, operations, and programs to
fund.” Ofisi, 278 F. Supp. 3d at 102 (quoting Rothstein v. UBS
 17
AG, 708 F.3d 82, 97 (2d Cir. 2013)). Therefore, “[p]rocessing
funds for Sudan [or Sudanese commercial banks] is not the
same as processing funds for a terrorist organization or a
terrorist front.” Ofisi, 278 F. Supp. 3d at 102 (quoting Owens,
235 F. Supp. 3d at 99). The court also dismissed Appellants’
§ 2332d claims after finding that BNPP did not qualify as a
United States person as defined in the statute. Ofisi, 278 F.
Supp. 3d at 98–100.

We agree with the district court on all counts. First, as
we discussed extensively above, BNPP is not a U.S. person and
therefore Plaintiffs have no cause of action against BNPP under
§ 2332d. See supra Part II.iii.

Second, to maintain any claim under the ATA,
Appellants must plausibly allege (1) an injury to a U.S.
national, (2) by act of international terrorism, and (3) proximate
causation. See Atchley, 22 F.4th at 226; see also Ofisi, 278 F.
Supp. 3d at 96. Putting aside any knowledge requirements, any
hope of Appellants plausibly alleging proximate causation
between BNPP’s sanctions-evading support of Sudan and al-
Qaeda’s embassy bombings is thoroughly dashed by this
Court’s Owens case, decided after the district court’s decision
in this case. 897 F.3d 266. Appellants in Owens and in this
case filed their complaints within two weeks of one another;
both cases were heard and dismissed by the same district court
judge; and we have since upheld that court’s Owens ruling. Id.
at 276. So with good reason, we hold that Owens precludes
Appellants’ ATA claims in this case, as well.

Owens presents nearly identical facts. The Owens
appellants were victims or family members of victims of the
U.S. embassy bombings by al-Qaeda in Kenya and Tanzania in
1998; they brought suit against BNPP for establishing banking
relations with Sudan in violation of U.S. sanctions; and just as
 18
in this case, they “allege[d] [BNPP] 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. Those Sudanese
banks then sent that U.S. currency to al Qaeda, which used the
funds to commit the embassy bombings.” Owens, 897 F.3d at
269–71 (citation omitted).

We held that the Owens appellants could not satisfy
proximate causation between BNPP’s support of Sudanese
banks in 1997 and 1998 and the embassy bombings. Id. at 276.
We accepted the proposition that appellants established a
banking relationship between BNPP and Sudan in the years
before the attacks, although appellants spent much of their
complaint focused on BNPP’s banking relations with Sudan
after 1997. Id. at 273–75. Even so, we held that “Plaintiffs
must plausibly allege that any inferred transactions between
BNPP and Sudan were ‘a “substantial factor” in the sequence
of events that led to [Plaintiffs’] injur[ies].’” Id. at 275
(alterations in original) (quoting Rothstein, 708 F.3d at 91).
We found the Second Circuit’s case of Rothstein v. UBS AG,
708 F.3d 82 (2d Cir. 2013), with very similar facts instructive.
Owens, 897 F.3d at 275. Drawing from that case, we reasoned
that “when an intermediary is a sovereign state with ‘many
legitimate agencies, operations, and programs to fund,’ the
need for additional allegations supporting substantiality is all
the more acute.” Id. at 276 (quoting Rothstein, 708 F.3d at 97).
We ultimately concluded that “in order to satisfy proximate
causation under the ATA, Plaintiffs’ complaint needs to
adequately plead facts alleging that BNPP substantially
contributed to Plaintiffs’ injuries because the funds to Sudan
‘actually [were] transferred to al Qaeda . . . and aided in’ the
embassy bombings.” Owens, 897 F.3d at 276 (alteration in
original) (emphasis omitted) (quoting In re Terrorist Attacks
on Sept. 11, 2001, 714 F.3d 118, 124 (2d Cir. 2013)). Because
 19
the Owens appellants failed to make any non-conclusory
allegations that funds from BNPP were actually transferred to
al-Qaeda and aided in the bombings or that the funds were
necessary for Sudan to fund the attacks by al-Qaeda, their ATA
claim failed for lack of proximate causation. Owens, 897 F.3d
at 276.

Such is exactly the case here. Appellants do not
plausibly allege that any money passed from BNPP’s financial
support of Sudan to al-Qaeda in preparation for the embassy
bombings. See Ofisi, 278 F. Supp. 3d at 101 (“[T]here are no
detailed factual allegations to support . . . [that] BNPP
processed U.S. dollar transactions for Al Shamal before the
embassy bombings.”). Appellants’ attempts to differentiate
Owens are weak, at best. See Reply Br. 2–4. Appellants claim
“[t]his case is not Owens . . .” because the Owens appellants
only brought claims under the ATA, not the ATS or common
law, and because Appellants in this case set forth “materially
different” factual allegations than those in Owens. Reply Br.
2–3. However, Appellants largely fail to identify any major
differences between the facts alleged in Owens and in their
case, choosing instead to regurgitate their allegations and add
a conclusory statement that “the allegations of the complaint in
this case go well beyond the allegations in the complaint filed
in Owens v. BNP Paribas.” Id. at 5. In fact, Appellants still
fail to plausibly allege what Owens requires—a flow of money
between BNPP and al-Qaeda that injured them.

We affirm the district court’s dismissal of Appellants’
§ 2339A(a) ATA claim using the exact words we did in Owens:
“Plaintiffs’ complaint fails to plausibly allege that any currency
processed by BNPP for Sudan was either in fact sent to al
Qaeda or necessary for Sudan to fund the embassy bombings.
[Therefore], Plaintiffs fail to adequately allege that they were
injured ‘by reason of’ BNPP’s acts and cannot state a claim for
 20
relief based on a theory of primary liability under the ATA.”
Owens, 897 F.3d at 276.

III. Conclusion

For the reasons set forth herein, we affirm the district
court on all counts.

So ordered.