United States District Court, District of Columbia
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, ...