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Dentons U.S. LLP v. The Republic of Guinea

United States District Court, District of Columbia

September 16, 2019

DENTONS U.S. LLP, Plaintiff,
v.
THE REPUBLIC OF GUINEA, et al., Defendants. THE REPUBLIC OF GUINEA, et al., Counterclaimants and Third-Party Plaintiffs,
v.
DENTONS U.S. LLP, et al., Counterclaimants and Third-Party Defendants.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

         This is an action against the Republic of Guinea and its Ministry of Mines and Geology (collectively “Guinea”) for fees and costs that Dentons U.S. LLP (“Dentons”) claims it is owed for work it performed for Guinea on a large natural resources development project. Shortly after the complaint was served, Guinea moved to dismiss on the ground that it is immune from suit under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602 et seq. Guinea argued, among other things, that Dentons could not invoke the commercial activity exception to the FSIA because this lawsuit, as Guinea conceived it, is based on Dentons's advice to the Guinean “government on how to exercise its sovereign authority over national assets” and is not based on an ordinary commercial transaction. Dkt. 15-1 at 11-12 (discussing 28 U.S.C. § 1603(d)). The Court was unconvinced and held that (1) the activity on which the suit is based-contracting for legal services-is the type of “activity in which private parties regularly engage” and (2) the suit is therefore subject to the FSIA's commercial activity exception. Dentons U.S. LLP v. Republic of Guinea, 134 F.Supp.3d 5, 9 (D.D.C. 2015) (“Dentons I”). After the Court denied Guinea's motion to dismiss, Guinea answered the complaint, counterclaimed against Dentons, and filed third-party claims against various Dentons affiliates. Dentons and its affiliates, in turn, moved to dismiss Guinea's counter- and third-party claims, and the Court granted in part and denied in part that motion. Dentons U.S. LLP v. Republic of Guinea, 208 F.Supp.3d 330, 347 (D.D.C. 2016) (Dentons II).

         The case is now before the Court on Guinea's motion for summary judgment. Dkt. 84. In this motion, Guinea again asserts that it is immune from suit under the FSIA, but on a different theory. This time, Guinea argues that its Minister of Mines and Geology (“Minister of Mines”), who signed the engagement letters that Dentons relies upon, did not have authority to bind Guinea because the Guinean public procurement law vests the Minster of Finance with exclusive authority to approve public contracts. According to Guinea, the engagement letters are therefore invalid and, as a result, cannot support application of the commercial activity exception to the FSIA. In other words, to the extent the Court previously held that an action to enforce a contract for legal services is based upon the commercial activity of private contracting, that theory of jurisdiction must fall away if the contracts at issue were invalid from the outset. Guinea further argues, in the alternative, that it is entitled to summary judgment on the merits because the engagement letters are unenforceable for the same reason.

         As explained below, the Court concludes that Guinea has failed to carry its burden of demonstrating that it is immune from suit or that, based on the undisputed material facts, the engagement letters are unenforceable. The Court will, accordingly, DENY Guinea's motion for summary judgment. Guinea remains free, however, to renew either argument at a later stage of the proceeding.

         I. BACKGROUND

         Except as otherwise noted, the following facts are either undisputed or established by uncontroverted evidence. See Okpara v. District of Columbia, 174 F.Supp.3d 6, 11 (D.D.C. 2016) (“Summary judgment is appropriately granted ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'”) (quoting Fed.R.Civ.P. 56(a)). Where necessary and appropriate, however, the Court will make findings of fact relating to Guinea's assertion of sovereign immunity. See Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000) (“When the defendant has . . . challenged the factual basis of the court's jurisdiction, . . . the court must . . . resolve any [relevant] disputed issues of fact”).

         A. Factual Background

         In an effort to develop extensive iron ore deposits discovered in the Simandou region of Guinea, the Republic of Guinea and its Ministry of Mines instituted the “Simandou Project” with the sponsorship of several investors and the World Bank. Dkt. 60 at 5 (Answer to Countercl. ¶ 15). In May 2012, the World Bank awarded a short-term contract to a consulting firm, which assembled a group of financial, technical, and legal advisors to assist Guinea with the project. Dkt. 94-3 at 23-24 (Dentons SMF ¶ 37); Dkt. 99-2 at 17 (Guinea Resp. ¶ 37); see also Dkt. 1-2 at 1 (First Retainer Agreement). Dentons served as the legal advisor within this advisory group. Dkt. 94-3 at 24 (Dentons SMF ¶ 37); Dkt. 99-2 at 17 (Guinea Resp. ¶ 37).

         While members of the Dentons team were in Guinea for meetings in August 2012, senior Guinean officials indicated that they wanted directly to engage Dentons as Guinea's legal counsel on the Simandou Project. Dkt. 94-3 at 28-29 (Dentons SMF ¶ 53); Dkt. 99-2 at 18 (Guinea Resp. ¶ 53). On August 25, 2012, Guinea's Minister of Mines, Lamine Fofana, executed the first of two retainer agreements with Dentons. Dkt. 94-3 at 28-29 (Dentons SMF ¶ 53); Dkt. 99-2 at 18 (Guinea Resp. ¶ 53). That agreement “confirm[ed] the appointment by the Republic of Guinea's Ministry of Mines . . . of” Dentons “as its Legal Counsel” as of May 2, 2012. Dkt. 1-2 at 1 (First Retainer Agreement); Dkt. 94-3 at 8 (Dentons SMF ¶ 11). Under the agreement, “[a]ll billing related to the activities related to the assignment . . . w[ould] be performed in accordance with the World Bank Agreement and, insofar as it would not be handled by the World Bank, w[ould] be subject to, and in line with, the financial arrangements that w[ould] be agreed upon between [Dentons] and the Ministry.” Dkt. 1-2 at 3 (First Retainer Agreement). The agreement specified that the “appointment” would continue until September 30, 2012. Id. at 1. The agreement recognized, however, that Dentons might continue to provide legal services to Guinea (or the Ministry of Mines and Geology) after the World Bank contract expired in September 2012, and Dentons, in fact, did so. Id.; Dkt. 94-3 at 9 (Dentons SMF ¶ 12).

         During a visit to Guinea by members of the Dentons team in December 2012, the parties once again discussed the terms of Dentons's engagement, leading to the execution of the second retainer agreement. Dkt. 94-3 at 34 (Dentons SMF ¶ 72); Dkt. 99-2 at 19-20 (Guinea Resp. ¶ 72). The second retainer agreement, which was signed by Minster Fofana and Dentons partner Jonathan Cahn, covered Dentons's work following the expiration of the World Bank contract and into the future. See Dkt. 85-6. The agreement “confirm[ed] the agreement of the Minister of Mines and Geology . . . to engage . . . [Dentons] . . . and its affiliates . . . to provide services . . . as Legal Advisor to the Ministry and to the Government of the Republic of Guinea in relation with the development and financing of the Simandou iron ore mining project.” Id. at 1. With respect to compensation, the agreement specified the hourly rates of the Dentons lawyers working on the project and provided that the firm's “costs and fees are due upon receipt of [the firm's] invoice.” Id. at 5. In the very next sentence, however, Dentons “confirm[ed] its intention to defer payment” because “neither the Ministry nor the Government of the Republic of Guinea” had “the necessary funds to pay for . . . the representation” at that time.” Id. The Ministry of Mines and Geology agreed to “implement in good faith all efforts necessary to secure funding for this representation, either through the Ministry's budget or through external funding, ” and, “as long as the Ministry [of Mines] continue[d] to make these efforts, ” Dentons agreed to “defer collection of fees and expenses billed . . . until the appropriate financing is in place.” Id. Finally, the agreement “authorize[d] [Dentons] to seek” financing from third parties to cover its costs and fees and “to present [any such] options in the form of a written proposal to the Ministry for its consideration, ” and the Ministry of Mines agreed to “consider the proposals, in good faith, subject” to the Ministry's “right to ensure that” the financing was consistent with the firm's ethical duties of loyalty and independence. Id.

         The parties disagree about whether, and to what extent, senior Guinean officials outside the Ministry of Mines and Geology knew about and approved this agreement. According to Kerfalla Yansane, who served as the Guinean Minister of Finance at the time, the December 2012 engagement letter “was never brought to [his] attention[, ] and [he] never approved it in [his] capacity as Guinean Minster of Finance.” Dkt. 84-10 at 3 (Yansane Aff. ¶ 11). Dentons partner Jonathan Cahn, in contrast, attests that the letter was signed “with the approval of [Guinean] President Condé, ” Dkt. 95-4 at 21-22 (Cahn Decl. ¶¶ 50-51); that Minister Yansane knew that Dentons had expressed a need for a letter of engagement and payment, id. at 38 (Cahn Decl. ¶ 92); and that “it was quite clear” to Cahn, “based on [an] exchange that” he witnessed between Ministers Yansane and Fofana, that Minister Yansane “had been consulted prior to . . . Minister . . . Fofana's entering into [the December 2012] letter of engagement, ” id. at 44-45 (Cahn Decl. ¶ 112). Guinea does not offer any evidence controverting Cahn's assertion that the agreement was signed with President Condé's approval but, rather, argues that Cahn's testimony is inadmissible-presumably, as hearsay-and immaterial. Dkt. 99-2 at 20 (Guinea Resp. ¶ 74).

         In its statement of material facts in dispute, Dentons catalogues the extensive legal services that it provided to Guinea after the World Bank contract expired, and, although Guinea challenges the materiality of these facts, it does not (at least for present purposes) dispute that Dentons provided these services. The firm's lawyers, for example, helped prepare Guinea for negotiations with project sponsors in Paris in December 2012, Dkt. 94-3 at 32 (Dentons SMF ¶ 63); Dkt. 99-2 at 19 (Guinea Resp. ¶ 63); traveled to Conakry, Guinea from November 27 through December 5, 2012, “to conduct intensive strategy and training sessions with Government officials, including from the Ministry of Finance, to solidify Guinea's negotiating positions, ” Dkt. 94-3 at 32 (Dentons SMF ¶ 64); Dkt. 99-2 at 19 (Guinea Resp. ¶ 64); traveled to Paris to provide “support to Guinea during” the negotiations, Dkt. 94-3 at 33 (Dentons SMF ¶ 66); Dkt. 99-2 at 19 (Guinea Resp. ¶ 66); “returned to Conakry . . . to understand and finalize Guinea's position regarding certain of the Investment Framework Agreements” and met with “Guinea's infrastructure and mining teams to address key remaining questions” regarding those agreements, Dkt. 94-3 at 33 (Dentons SMF ¶¶ 69-70); Dkt. 99-2 at 19 (Guinea Resp. ¶¶ 69-70); “prepare[d] a ‘teaser' to interest investors in the prospect of financing the Project, ” Dkt. 94-3 at 34 (Dentons SMF ¶ 71); Dkt. 99-2 at 19 (Guinea Resp. ¶ 71); “delivered revised drafts of the two Investment Framework Agreements to Guinea, ” Dkt. 94-3 at 36 (Dentons SMF ¶ 77); Dkt. 99-2 at 20 (Guinea Resp. ¶ 77); returned to Conakry “to review the draft Investment Framework Agreements in preparation for” continued negotiations in January 2013, Dkt. 94-3 at 36 (Dentons SMF ¶ 78); Dkt. 99-2 at 20 (Guinea Resp. ¶ 78); attended further negotiations in Paris in January 2013 and “drafted and delivered to the Government various deal summaries, ” Dkt. 94-3 at 36 (Dentons SMF ¶ 79); Dkt. 99-2 at 20 (Guinea Resp. ¶ 79); returned to Paris later that month “to conduct meetings with Government officials to revise and refine the Infrastructure Framework Agreements” and “continued to revise and refine the drafts in accordance with the Government's instructions, ” Dkt. 94-3 at 37 (Dentons SMF ¶ 81); Dkt. 99-2 at 20 (Guinea Resp. ¶ 81); provided communications and tax advice, Dkt. 94-3 at 38 (Dentons SMF ¶¶ 84-85); Dkt. 99-2 at 21 (Guinea Resp. ¶¶ 84-85); delivered draft agreements to Rio Tinto, a mining company with which Guinea negotiated repeatedly in planning the Simandou Project, in April 2013, Dkt. 94-3 at 44 (Dentons SMF ¶ 106); Dkt. 99-2 at 23 (Guinea Resp. ¶ 106); “traveled to Abu Dhabi at Guinea's request, where they met with Minsters Yansane and Fofana” and to “defend the draft agreements” in in meetings with the project's sponsors, Dkt. 94-3 at 44-45 (Dentons SMF ¶¶ 108-10); Dkt. 99-2 at 23 (Guinea Resp. ¶ 108-10); “traveled to Conakry in April 2013 to start preparing the Guinean delegation, ” including representatives from the Ministries of Mines and Geology and Finance, “that would attend” future negotiations, Dkt. 94-3 at 46 (Dentons SMF ¶¶ 112-13); Dkt. 99-2 at 23 (Guinea Resp. ¶ 112-13); met with Guinean officials in France in May 2013, “delivered hundreds of pages of briefing materials to Guinea for preparation, ” and “continued to develop the evolving negotiation strategy . . . and a strategic communications plan for Guinea, ” Dkt. 94-3 at 47 (Dentons SMF ¶ 116); Dkt. 99-2 at 24 (Guinea Resp. ¶ 116); met with Guinean officials in Conakry in June 2013 to prepare “for the next round of meetings scheduled for June 16-18 in Paris” and then “traveled to Paris . . . to continue providing legal advice and support” for the negotiations, Dkt. 94-3 at 49-50 (Dentons SMF ¶¶ 120-21, 127); Dkt. 99-2 at 24-25 (Guinea Resp. ¶¶ 120-21, 127); and “delivered legal advice and work product to Guinea in July 2013, ” Dkt. 94-3 at 51 (Dentons SMF ¶ 128); Dkt. 99-2 at 25 (Guinea Resp. ¶ 128).

         Dentons also contends, and Guinea does not dispute, that the Ministry of Finance-and Minster Yansane, in particular-were aware of many of the services that the law firm provided and that, on several occasions, Minister Yansane requested and accepted Dentons's services. Minister Yansane, for example, requested that Dentons prepare him and Minister Fofana for a December 8, 2012 meeting with Rio Tinto, Dkt. 94-3 at 33 (Dentons SMF ¶¶ 67-68); Dkt. 99-2 at 19 (Guinea Resp. ¶¶ 67-68); Minister Yansane attended the January 2013 meetings in Paris with members of the Dentons team, where he accepted “legal services” from Dentons “without objection, ” Dkt. 94-3 at 36-37 (Dentons SMF ¶¶ 79, 81); Dkt. 99-2 at 20 (Guinea Resp. ¶¶ 79, 81); Dentons delivered a “report on the tax implications of Rio Tinto's proposal” to Minister Yansane in March 2013, Dkt. 94-3 at 39, 45 (Dentons SMF ¶¶ 85-86, 109); Dkt. 99-2 at 21, 23 (Guinea Resp. ¶¶ 85-86, 109); Minister Yansane was “aware that Dentons . . . helped prepare, draft, edit and deliver various drafts of the Investment Framework to Rio Tinto” and did not object, Dkt. 94-3 at 44 (Dentons SMF ¶ 107); Dkt. 99-2 at 23 (Guinea Resp. ¶ 107); Minister Yansane “participated in and/or agreed with” the decision that Dentons “help [Guinea] prepare for [certain] meetings, to provide behind-the-scenes assistance during the meetings, and to provide counsel in other areas, ” Dkt. 94-3 at 45 (Dentons SMF ¶ 111); Dkt. 99-2 at 23 (Guinea Resp. ¶ 111); Dentons attended other meetings to provide support to the Ministry of Finance and others, e.g., Dkt. 94-3 at 50-51 (Dentons SMF ¶ 127); Dkt. 99-2 at 25 (Guinea Resp. ¶ 127); and Minister Yansane requested substantive work product from Dentons as late as August 2013, Dkt. 94-3 at 55 (Dentons SMF ¶ 145); Dkt. 99-2 at 27 (Guinea Resp. ¶ 145). At least for present purposes, moreover, Guinea does not dispute that this work was performed for and accepted by the government of Guinea, and not simply the Ministry of Mines. Dkt. 99-2 at 7 (“Whether Plaintiff provided service to Guinea, as opposed to the Ministry of Mines alone, is undisputed for purposes of this motion . . . .”). Minister Yansane testified, however, that he assumed that the services were provided on a pro bono basis. Dkt. 99-1 at 5 (Yansane Dep. at 37).

         On March 25, 2012, Minister Fofana wrote to Jonathan Cahn, “confirm[ing] that the Republic of Guinea, as client, is prepared to perform all of its contractual obligations contained in the agreement between [Dentons] and the Ministry of Mines.” Dkt. 95-5 at 253. The letter further explained that Guinea anticipated that Rio Tinto would pay Denton's fees. Id. If Rio Tinto failed to do so, however, the letter represented that “the Guinean State” would pay the fees, “which, as with the other fees shall be integrated into the costs of the Simandou Project.” Id. Finally, the letter stressed “the urgency of the delivery of the documents” that Dentons was drafting on Guinea's behalf “and the pressing need to respect all delivery timetables agreed to for the required documents, many of which are on the critical path to completion of the project.” Id.

         Several days later, on March 29, 2013, $2 million was wired to Dentons from the Central Bank of Guinea. Dkt. 94-3 at 40 (Dentons SMF ¶ 90). Although Guinea questions the sufficiency of Dentons's evidence regarding this transfer, Dkt. 99-2 at 21 (Guinea Resp. ¶ 90) (“[t]he cited materials are self-serving conclusory statements [that] do not create genuine issues of material fact”), Dentons has supplied the Court with a copy of the wire transfer, which shows that the transfer was made from Banque Centrale De La Republique de Guinee to Dentons's account at Citibank in New York and that the “ordering customer” was the “Ministry of Mines and Geology of Guinea, ” Dkt. 95-5 at 256-57. The source and circumstances of the $2 million payment remain a bone of contention.

         Dentons maintains that the payment was made with the authorization of the Minster of Finance. For support, it points to the testimony of Saadou Nimaga, who “served as assistant legal counsel to the Ministry of Finance from 1998-2008, ” Dkt. 94-3 at 40-41 (Dentons SMF ¶¶ 93-94), and “legal counsel to the [M]inistry of [M]ines” between 2008 and 2016, Dkt. 95-3 at 75 (Nimaga Dep. at 13). Nimaga testified that, so far as he knows, it is the Minister of Finance- and not the President or the Minister of Mines-that approves payments from the Central Bank. Id. According to Jonathan Cahn, moreover, Abdoulaye Magassouba, an advisor to the President of Guinea, informed him that Minister of Mines Fofana requested that the President “intervene and ensure [that] the payment was made, ” and “[t]he President then directed Minister of Finance Yansane to coordinate with the Central Bank to make the payment.” Id. at 41 (Dentons SMF ¶ 95). Cahn further attests that “[s]everal months later” Minister Yansane “acknowledged that he was involved in, and aware of, the $2 million payment” and, indeed, complained “that he had been ‘woken up in the middle of the night to approve the payment' in March 2013.” Id. (quoting Dkt 93-4 at 30 (Cahn Decl. ¶ 72)). A contemporaneous email from Magassouba to Cahn, moreover, reports that the Central Bank was completing the paperwork to effectuate the wire transfer; requests that Dentons send an email “confirming” its “commitment and the completion of the draft version of remaining documents by tomorrow;” and explains that “we need to provide it to the [G]overnor [of the Central Bank] and the Ministry of Finance.” Dkt. 95-5 at 260. Magassouba explained at his deposition that “the exchange was about” Dentons delivering the work product in return for the payment and that Dentons's “commitment” needed “to go to the Ministry of Finance” because it was “part of the process” for Dentons to receive payment. Dkt. 94-5 at 35-36 (Magassouba Dep. at 73-74).

         Guinea raises a host of arguments in response. First, in its answer to the complaint, Guinea admitted that it paid Dentons an “‘advance' of $2, 000, 000 . . . in response to demands by . . . [Dentons] and its affiliates, ” but did so “on the understanding that the advance would be repaid once [Dentons] received the funds from another source.” Dkt. 25 at 14 (Answer ¶ 42); see also Id. at 30 (Countercl. ¶ 44) (“Guinea advanced $2 million to [Dentons] with the understanding that [Dentons] would secure those funds from another source and repay Guinea.”); Dkt. 99-1 at 18 (Yansane Dep. at 84). In its reply brief, Guinea now asserts that “the $2 million payment received by Dentons was made by a third party and not by the Government of Guinea.” Dkt. 99 at 17. Minister Yansane, for his part, testified that he did not participate in any discussion about making the payment to Dentons; he did not learn about the payment until after it was made; he had not seen the payment document until being shown it at his deposition, and, to this day, he does not know who authorized the payment. Dkt. 99-1 at 11-15 (Yansane Dep. 77-81). He did acknowledge, however, that the payment was made from Guinea and that the Ministry of Mines lacked authority to direct that the Central Bank make the payment. Id. at 14- 17 (Yansane Dep. at 80-83). Finally, Guinea disputes Dentons's characterization of the Nimaga and Magassouba testimony and argues that the Court should disregard Cahn's account of various statements made by Guinean officials in August 2013 on the ground that those statements were made in the context of settlement discussions and they are thus inadmissible under Federal Rule of Evidence 408. Dkt. 99 at 17-19 & n.10.

         B. Guinean Law Relating to Government Contracts

         The parties also disagree about the governing public procurement laws applicable to the contracts. According to Guinea, its procurement laws require a competitive bidding or tender process in most circumstances involving the provision of “goods or services in exchange for payment of a price, ” Dkt. 84-12 at 1-2 (Law L/2012/No. 020/CNT (Oct. 11, 2012), Title I, Art. 1), and require that “[a]ny other method of procurement . . . must be authorized by the Finance Minister, ” Dkt. 84-10 at 3 (Yansane Aff. ¶¶ 5-7) (quoting Dkt. 84-12 at 2 (Law L/2012/No. 20/CNT (Oct. 11, 2012), Title III, Article 11(1)). “In certain exceptional circumstances, ” a procurement contract may be awarded without “a call for tenders, ” but only with the Minister of Finance's “prior consent.” Id. ¶ 8. But even when a contract is awarded in this manner- referred to as a “restricted” or “special consultation”-procurement contracts “must be authorized in advance by the Minister of Finance.” Dkt. 84-12 at 3 (Decree D/2012/128/PRG/SGG (Dec. 3, 2012), Art. 38); see also Dkt. 84-10 at 3 (Yansane Aff. ¶ 8). Contracts that do not comply with either set of procedures, according to Guinea, are “null and void.” Dkt. 84-10 at 3 (Yansane Aff. ¶ 9) (quoting Decree D/2012/128/PRG/SGG (Dec. 3, 2012), Art. 74). Finally, Guinea asserts that Minister Yansane never approved the Dentons retainer agreement, and thus it “does not constitute a valid or binding contract” under Guinean law. Id. at ¶ 12.

         Dentons does not dispute that the Minister of Finance must authorize public procurement contracts but, instead, argues that the second retainer agreement is not a “public procurement contract[]” or “public service delegation[].” Dkt. 94-2 at 22. For support, Dentons proffers the report of Dr. Amara Soumah, who is a member of the bar of Guinea and whose legal practice “focuses on commercial disputes in Guinea and other West African countries.” Dkt. 95-11 at 2. Dr. Soumah asserts that the public procurement law applies to situations in which the government contracts for projects, such as, for example, “toll highway construction, ” “airport construction, ” or “exploration of an offshore oil block, ” and that the procurement law “is inapplicable . . . to instances where Guinea enters the private market to secure services from a private entity.” Id. at 3. In a situation where Guinea is contracting with a law firm, Soumah opines, “there is no specific rule” and “[e]ach ministry . . . has certain inherent authority based on its semi-autonomy.” Id. at 3-4. Dentons also relies on the deposition of the current Minister of Mines, Abdoulaye Magassouba, who testified that he “ha[s] the authority” to “enter into contracts with mining companies” and “external advisers” unless the “commitment[] . . . go[es] beyond the Ministry's mandates.” Dkt. 95-3 at 45 (Magassouba Dep. at 140-41). Finally, Dentons points to a contract between Guinea and another law firm, Jones Day, which was signed by Minister of Mines Magassouba, and not by the Minister of Finance. Dkt. 94-2 at 22. Guinea, for its part, does not disavow the Jones Day contract but, rather, posits that the Minister of Finance's authorization was not required because the law firm's fees were paid by an outside grant, and “no funds were paid out of the Guinea[n] government budget.” Dkt. 95-3 at 5-6.

         C. Procedural History

         Dentons commenced this action in August 2014 seeking payment pursuant to the first and second retainer agreements on unpaid invoices from May 2012 to June 2013. See Dkt. 1 at 1-3, 6-15 (Compl. ¶¶ 2-7, 19-59). In response, Guinea moved to dismiss on grounds of foreign sovereign immunity, forum non conveniens, and failure to state a claim. See Dkt. 15 at 1-2. The Court denied that motion in all respects. Of particular relevance here, the Court held that Guinea is not immune from suit under the FSIA because (1) the activity of contracting for legal services in support of a project to “fund[] and develop[] a mine . . . ‘constitutes “‘commercial activity”'” within the meaning of the commercial activity exception to the FSIA, and (2) “the activities involved in the . . . case include performance of services in” the United States “as well as payment to be made to [Dentons's] U.S. bank.” Dentons I, 134 F.Supp.3d at 8-9 (first quote quoting Lanny J. Davis & Assocs. LLC v. Republic of Equatorial Guinea, 862 F.Supp.2d 152, 159 (D.D.C. 2013)). After the Court denied Guinea's motion to dismiss, Guinea answered the complaint, filed counterclaims against Dentons, and filed third-party claims against various Dentons affiliates, seeking, ...


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