Secondary Liability
Kashef v. BNP Paribas
Date: May 29, 2026
Issue: Whether the Anti-Terrorism Act (ATA), as amended by the Justice Against Sponsors of Terrorism Act (JASTA), permits courts to impose secondary liability on banks that provided routine financial services without knowingly and substantially assisting the underlying terrorist acts.
Case Summary: ABA filed a coalition amicus brief urging the Second Circuit to reverse a New York federal court decision that held BNP Paribas secondarily liable under the Anti-Terrorism Act (ATA) for injuries arising from violent acts committed by the Sudanese government.
Secondary liability allows courts to hold a party liable for another person’s wrongful conduct even if the party did not commit the underlying act. Under the ATA, as amended by the JASTA, courts generally impose secondary liability only when a defendant knowingly and substantially assists the underlying terrorist act.
In June 2014, BNP Paribas agreed to pay nearly $9 billion to resolve allegations that it conducted business with U.S.-sanctioned countries, including Sudan. In 2016, a group of Sudanese refugees sued BNP Paribas in a class action alleging that the bank knowingly or recklessly provided financial services to Sudan’s government from 1997 to 2011. According to the plaintiffs, those services helped fund a widespread campaign of violence against civilians.
In October 2025, a jury in the Southern District of New York found BNP Paribas liable for aiding the violent crimes committed against Sudanese civilians. The jury awarded $20.75 million to three plaintiffs after finding that each had proved, by a preponderance of the evidence, that the bank was liable for their injuries. BNP Paribas moved to overturn the verdict, arguing that although the plaintiffs suffered horrific abuse, the bank did not cause their harm. Judge Alvin Hellerstein denied the bank’s post-trial motions and entered final judgment, concluding that the trial evidence gave the jury ample basis to find that BNP Paribas’s actions enabled Sudan’s former regime to commit violent crimes. BNP Paribas appealed the district court’s decision.
In its brief, ABA argued that the U.S. standard for secondary liability reflects important policy choices made by Congress and recognized by U.S. courts. ABA maintained that banks need reasonable limits on secondary liability because they routinely process lawful transactions and should not be held liable for customers’ independent misconduct unless they intentionally participate in the wrongdoing. Accordingly, ABA asserted that U.S. law imposes secondary liability only when a defendant knowingly and substantially assists the underlying misconduct. Further, ABA noted that expanding liability beyond this standard would expose banks to costly and unpredictable litigation, threaten financial stability, and conflict with longstanding Supreme Court precedent that requires proof of knowing and culpable participation before imposing secondary liability.
Next, ABA argued that the district court’s development of a permissive secondary liability standard will harm U.S. interests and inhibit banks’ ability to provide crucial financial services. ABA maintained that the district court adopted a standard that, according to the Swiss government, does not reflect Swiss law and departs sharply from the well-established U.S. standard requiring knowing and substantial assistance. ABA emphasized that this negligence-based approach would encourage plaintiffs to bypass established U.S. liability standards, expose banks to expansive litigation over routine financial transactions, and create significant negative consequences for the financial industry. ABA stressed that the resulting reduction in dollar-based transactions and correspondent banking relationships would weaken the global role of the U.S. dollar, reduce the effectiveness of U.S. sanctions and anti-money laundering efforts, restrict access to banking services in higher-risk regions, and ultimately harm U.S. national security, foreign policy, and economic interests.
Bottom Line: If the Second Circuit adopts ABA’s position, banks will remain subject to secondary liability only when they knowingly and substantially assist wrongdoing, preserving established legal limits and reducing exposure to expansive litigation over routine financial services.
Document: Brief
