Dentons US LLP v. Republic of Guinea

Decision Date16 September 2019
Docket NumberCivil Action No. 14-1312 (RDM)
Citation410 F.Supp.3d 194
Parties DENTONS US LLP, Plaintiff, v. The REPUBLIC OF GUINEA, et al., Defendants. The Republic of Guinea, et al., Counterclaimants and Third-Party Plaintiffs, v. Dentons US LLP, et al., Counterclaimants and Third-Party Defendants.
CourtU.S. District Court — District of Columbia

Ana C. Reyes, Michael Shobe Sundermeyer, Williams & Connolly LLP, Leslie Cooper Vigen, U.S. Department of Justice, Washington, DC, for Plaintiff, Counterclaimants and Third-Party Defendants.

David H. Dickieson, David Schertler, Danny C. Onorato, Shermineh C. Jones, Lisa Manning, Schertler & Onorato, Washington, DC, for Defendants, Counterclaimants and Third-Party Plaintiffs.


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 US 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 US 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 Minister 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.


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 Minister 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 Minister 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...

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