Vila v. Inter-American Investment Corp.

• Decision Date: 19 June 2009
• Docket Number: No. 08-7042.,08-7042.
• Citation: 570 F.3d 274
• Parties: Jorge VILA, Appellee v. INTER-AMERICAN INVESTMENT CORPORATION, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

570 F.3d 274

Jorge VILA, Appellee v. INTER-AMERICAN INVESTMENT CORPORATION, Appellant.

No. 08-7042.

United States Court of Appeals, District of Columbia Circuit.

Argued February 13, 2009.

Decided June 19, 2009.

Appeal from the United States District Court for the District of Columbia, (No. 1: 06-cv-02143-RBW).

Nancy L. Perkins argued the cause and filed the briefs for appellant.

F. Douglas Hartnett argued the cause and filed the brief for appellee.

Before: ROGERS and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the court by Circuit Judge ROGERS.

Dissenting opinion by Senior Circuit Judge WILLIAMS.

ROGERS, Circuit Judge:

The Inter-American Investment Corporation ("IIC") appeals the denial of its motion to dismiss an independent consultant's unjust enrichment claim on grounds of immunity and untimeliness. Applying the well-settled test in this circuit, we affirm the denial of immunity. By waiving immunity from unjust enrichment claims of independent consultants whom the IIC solicits to help negotiate the commercial lending agreements that are central to its function, the IIC gains a corresponding benefit that furthers its objectives. Consultants would be more willing to negotiate with the IIC and to enter into contracts with it if they had the reassurance that should their agreement or formal contract fail for whatever reason, they would be fairly compensated for any benefit they have provided that the IIC has unjustly retained. Such a benefit affords the IIC flexibility in using independent consultants, allowing it, for instance, to establish and maintain relationships with consultants whom it may want to engage without a formal written agreement. Furthermore, underlying an unjust enrichment claim are the same contract principles as the promissory estoppel claim held not to be barred by immunity in Osseiran v. Int'l Fin. Corp., 552 F.3d 836 (D.C.Cir.2009). As the IIC has not posited litigation costs that are distinguishable from those involved in a claim for promissory estoppel, the IIC suggests no principled basis on which to distinguish our precedent involving international organizations with near-identical waiver provisions. Accordingly, taking the allegations of the complaint as true for purposes of the motion to dismiss, because the unjust enrichment claim was timely filed we remand the case to the district court.

I.

The IIC is an international organization formed by its member nations under the Agreement Establishing the Inter-American Investment Corporation, Nov. 19, 1984, T.I.A S. No. 12087 (entered into force, March 23, 1986) ("IIC Charter"). Currently, forty-three countries, including the United States, are members of the IIC. See IIC Inter-American Investment Corporation: Member Countries, http:// www.iic.int/membercountries. As stated in its Charter, the purpose of the IIC is "to promote the economic development of its regional member countries by encouraging the establishment, expansion, and modernization of private enterprises." IIC Charter art. I, § 1. Together with other international organizations, the IIC fulfills this objective through commercial lending that is directed to private enterprises in the member countries. IIC Charter art. I, § 2. One way the IIC accomplishes this task is by structuring and arranging loans jointly with other lenders to finance projects in member countries.

Jorge Vila is an independent banking consultant in emerging markets. On several occasions from early 2001 to December 2002, the IIC engaged Vila's services through formal written contracts in connection with projects in Latin America and the Caribbean. According to the complaint, from January to August 2003, after Vila's previous contracts had expired, several of the IIC's senior officers requested Vila's consulting services with regard to four new projects, verbally agreeing to complete contractual documentation, including compensation, "later." Compl. ¶ 7. These projects related to the IIC's loan program and ranged from preparation of a marketing description of the organization's inter-bank loan program to assistance in loan syndication for specific projects. For example, Vila assisted IIC senior officers in obtaining a mandate from a Brazilian bank, Banco Safra, to arrange a syndicated credit facility for the bank. Vila identified potential participant banks, negotiated terms and conditions of the agreement with them and Banco Safra, and contributed to the draft, review, and distribution of the relevant confidential documents. See Compl. ¶ 8. Attached to the complaint are approximately 270 emails documenting Vila's correspondence with the IIC's officers and clients and his services. These emails indicate that in addition to having Vila gather "intelligence" on prevailing interest rates, market conditions, and competitors, the IIC authorized Vila to negotiate terms and conditions of the projects with the IIC's clients, requested his participation in internal discussions of confidential financial information, and invited him to participate on conference calls with IIC clients regarding the projects.

Vila discussed his expectation of compensation with the IIC Regional Head Victor Moscoso between January and May 2003. According to the complaint, Moscoso acknowledged this expectation by email of June 2, 2003. Further, the IIC continued to solicit and accept Vila's services afterwards. Yet on August 4, 2003, while acknowledging Vila's work, Moscoso refused to compensate him and suggested new terms for his work in the future. When Vila appealed to Stephen Reed, the IIC's Deputy General Manager, he too acknowledged Vila's work but expressed a different understanding of the agreement between Vila and the IIC, noting the absence of a written contract while stating he would ensure Vila's work was "clarified and documented" by the IIC and Vila would be compensated "based on a success fee." Compl. ¶ 15. Vila rejected the notion of a success fee by email of September 10, 2003 to Reed, and on October 9, 2003, he emailed Jacques Rogozinski, General Manager of the IIC, an invoice in the amount of $89,909.00 for his services. On November 4, 2003, Alejandra Vallejo, IIC Coordinator of Institutional Affairs, advised Vila that the IIC could not process any payments for consulting services unsupported by a formal agreement with defined terms and conditions. Vila's appeals, beginning December 23, 2003 to Enrique Iglesias, then-President of the IIC, were to no avail, as were his further entreaties to two entities with oversight responsibilities over the IIC.

On October 26, 2006, Vila sued the IIC for breach of implied contract, unjust enrichment, defamation, and tortious interference with a prospective business advantage. Upon removal to federal court, see 22 U.S.C. § 283gg (2000), the IIC moved to dismiss the complaint on the grounds of immunity, pursuant to Federal Rule of Civil Procedure 12(b)(1), and because the statute of limitations had run, pursuant to Rule 12(b)(6). The district court dismissed all except the unjust enrichment claim and ruled that the complaint was timely filed. The IIC appeals, and the court has jurisdiction over this interlocutory appeal. See Kirkham v. Societe Air Fr., 429 F.3d 288, 291 (D.C.Cir.2005); Rendall-Speranza v. Nassim, 107 F.3d 913, 916 (D.C.Cir.1997).¹ Our review is de novo, see Vann v. Kempthorne, 534 F.3d 741, 745-46 (D.C.Cir. 2008); Kirkham, 429 F.3d at 291, and in reviewing the denial of the motion to dismiss, we take the allegations of the complaint as true, see Jerome Stevens Pharmaceuticals, Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253-54 (D.C.Cir.2005); Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002).

II.

The International Organizations Immunities Act applies to those organizations which the President designates as entitled to the benefits of the Act. Section 2(b) of the Act provides that such organizations "shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract." 22 U.S.C. 288a(b) (2008). By executive order, President Reagan so designated the IIC. Exec. Order No. 12,567, 51 Fed.Reg. 35,495 (Oct. 2, 1986). Article VII of the IIC's charter provides:

Actions may be brought against the Corporation only in a court of competent jurisdiction in the territories of a member country in which the Corporation has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities.

IIC Charter art. VII, § 3(a). This waiver provision is nearly identical to that in the charter of the World Bank and is common to the charters of other international financial institutions, such as the Inter-American Development Bank and the International Finance Corporation.²

In Mendaro v. World Bank, 717 F.2d 610, 617 (D.C.Cir.1983), the court formulated a test to determine whether such charter terms waive a specific type of lawsuit: "A nonspecific waiver such as that [at issue here] should be more broadly construed when the waiver would arguably enable the organization to pursue more effectively its institutional goals." Put another way, the "[organization]'s immunity should be construed as not waived unless the particular type of suit would further the [organization]'s objectives." Atkinson v. Inter-Am. Dev. Bank, 156 F.3d 1335 (D.C.Cir.1998). Rejecting in Mendaro the view that the type of waiver in the IIC's Charter provides a "blanket waiver of immunity from every type of suit not expressly prohibited by reservations," 717 F.2d at 615, the court observed that if a lawsuit could "significantly hamper the organization's functions," id. at 617, then it is "inherently less likely to have been intended," id. So too "when the benefits accruing to the organization as a result of the waiver would be...