[00:00:01] Speaker 01:
Case number fourteen dash seventy thirty six.

[00:00:03] Speaker 01:
T. J. G. E. M. L. L. C. Appellant versus Republic of Ghana at L. Mr. Lassley for the Appellant.

[00:00:09] Speaker 01:
Mr. Bamsabrio for the Appellate.

[00:00:12] Speaker 01:
Good morning.

[00:00:18] Speaker 00:
Good morning.

[00:00:20] Speaker 00:
Michael Lassley on behalf of the Appellant.

[00:00:23] Speaker 00:
I think we start with the situation that the Supreme Court in the

[00:00:30] Speaker 00:
landmark opinions of Bella Lannigan and Ascroft mandated the trial court must look at the factual matters in reasonable interest and cannot ignore or negate those if they support the claim as possible claim release.

[00:00:50] Speaker 00:
The Congress enacted the FISA judicial commercial exception to the affirmative defense of sovereign immunity.

[00:00:58] Speaker 00:
And specifically, the unambiguous language and examples of 1603 D&E and the clauses of 1605A2 define and dictate what is meant by commercial acts, activities, and substantial contact with the United States.

[00:01:12] Speaker 03:
Are you alleging that there was a direct effect

[00:01:16] Speaker 03:
of the defendant's actions in the United States.

[00:01:20] Speaker 03:
In your brief, you say there were direct effect, but I didn't see any support for that.

[00:01:25] Speaker 00:
What is the direct effect?

[00:01:26] Speaker 00:
If you look at the circumstances of the RICO claim, which the court did not really consider,

[00:01:33] Speaker 00:
The Southway case decides the circumstances of the interrelationship of RICO predicate acts.

[00:01:44] Speaker 03:
What's the direct effect of the commercial activity you're alleging, the direct effect in the United States?

[00:01:49] Speaker 00:
In the United States, if the loan had been granted, the application for a loan is in violation not only of the protocols and rules of the bank, but the foreign practices.

[00:02:02] Speaker 00:
Act, and the basis of the loan, as we allege from the Pellies, was the conspiracy, RICO conspiracy and Predicate Act.

[00:02:15] Speaker 01:
So you're saying that the loan would have been paid off with funds that were deposited somewhere in the United States?

[00:02:24] Speaker 00:
The loan would have been granted in the United States as to direct effect.

[00:02:29] Speaker 01:
I know, but what is the direct effect?

[00:02:32] Speaker 01:
Are you arguing that it's the money that would have been deposited?

[00:02:36] Speaker 00:
I'm arguing that the loan itself of the U.S.

[00:02:40] Speaker 01:
So the loan itself, all right.

[00:02:43] Speaker 01:
So what we know from your pleadings is that, what, there was a meeting at the Export-Import Bank

[00:02:53] Speaker 01:
and a letter of interest?

[00:02:56] Speaker 00:
That's part of it, but not only the misappropriation of the appellant's work product and trade secret was all part of the circumstances of direct effect and also... What do we know about the memorandum of understanding?

[00:03:11] Speaker 00:
Well, the appellate's never presented it, but we do know about it.

[00:03:15] Speaker 01:
What did you tell the district court about it?

[00:03:17] Speaker 00:
Well we told the district court in our pleadings, we didn't have a hearing on the matter, but in our pleadings we told the district court that the memorandum of understanding was the essence of the whole case.

[00:03:29] Speaker 01:
But what does it say?

[00:03:31] Speaker 00:
Well, they never presented, we never had a copy of the memorandum of understanding.

[00:03:35] Speaker 00:
What it says, based on the actions of the appellant officials, government officials, when they went to the bank, they went to the bank with the purpose of trying to get the bank to consider the loan that the appellant had filed a letter, got a letter of interest on.

[00:03:53] Speaker 00:
What we know about the memorandum of understanding, the very key point we know about the memorandum of understanding is that

[00:03:59] Speaker 00:
$10 million was in addition to what the appellant had filed and gathered the letter of interest on.

[00:04:06] Speaker 00:
We also know that there were two inspector general investigations of the bank inspector general on the question of what is that $10 million about.

[00:04:16] Speaker 00:
We've argued that it was reasonable, and to the trial court it was reasonable to infer that since there was no

[00:04:24] Speaker 00:
a letter of interest is no interest at all of the appellees until 2013.

[00:04:31] Speaker 00:
But in March of 2012, when they used and misappropriated the appellant's letter of interest in other documents, what we do know is that at that point, the bank knew and we knew by inference

[00:04:47] Speaker 00:
that there was no explanation for the $10 million increase of the amount of $5.85 million that we had initially got the letter of interest or.

[00:04:57] Speaker 00:
The $10 million was never explained.

[00:04:59] Speaker 00:
They never submitted anything to the trial court to explain it or to refute that inference that they were not using our particular documents and our particular work product at that point.

[00:05:11] Speaker 00:
So what the trial court knew

[00:05:13] Speaker 00:
is that there was an investigation.

[00:05:15] Speaker 00:
The trial court knew that there was a 10 million difference and that there was no way to explain it since there was no project, there was no loan application, there was no loan documents or anything before they

[00:05:29] Speaker 00:
bank that would indicate whether or not there was any basis other than what we had filed with the bank and what we had submitted to the bank in terms of contract, project and what happened.

[00:05:42] Speaker 00:
So the trial court knew that at the time that

[00:05:47] Speaker 00:
the appellees, the Canadian officials, went to the bank, signed a memorandum of understanding in D.C.

[00:05:55] Speaker 00:
and we believe that those was enough information to warrant some consideration given the bank had the two investigations going on.

[00:06:05] Speaker 00:
All right.

[00:06:07] Speaker 00:
And it's unspeakable that the bank, that the appellees used the

[00:06:16] Speaker 00:
information that was sent to the bank and exported, especially the letter of interest and loan application.

[00:06:25] Speaker 00:
The most important point from the appellant's point of view is that we were damaged because we had structured an African Marshall Plan.

[00:06:32] Speaker 00:
That was the whole purpose of the development and creation of the appellant was to do that for the sub-Saharan countries

[00:06:41] Speaker 00:
That was undermined and destroyed, as well as the fact that the circumstances of the development of the work product was misappropriated and used by the appellate.

[00:06:49] Speaker 03:
Appellants never really had a... What's the nature of your misappropriation claim?

[00:06:54] Speaker 03:
What's the cause of action here?

[00:06:56] Speaker 03:
Is it under common law?

[00:06:58] Speaker 03:
Is it under D.C.

[00:06:59] Speaker 03:
law?

[00:07:00] Speaker 03:
I don't think you've told us.

[00:07:01] Speaker 00:
I think it could fall under both, Your Honor, but... But your pleading doesn't tell us that.

[00:07:06] Speaker 03:
Which I find to be a problem throughout...

[00:07:10] Speaker 03:
You've made it very hard for both the district court and for us to understand what your theory is.

[00:07:19] Speaker 03:
And so what's the misappropriation claim?

[00:07:22] Speaker 00:
The misappropriation claim was based on the fact that we had developed this developer business plan and model

[00:07:32] Speaker 00:
And we had submitted that information to the bank.

[00:07:36] Speaker 00:
The bank had agreed to consider it at the $5.85 million.

[00:07:40] Speaker 03:
And your claim is that that's a trade secret?

[00:07:43] Speaker 00:
That's what we claim because it was particularly to the bank and also to the Canadian officials who did send it to other people.

[00:07:54] Speaker 00:
We believe that that is definitely a misappropriation.

[00:07:58] Speaker 00:
So is this under DC code or under common law?

[00:08:02] Speaker 00:
I don't have a specific DC code, but I think it covers both.

[00:08:05] Speaker 03:
You have to have that.

[00:08:06] Speaker 03:
I mean, for us to find commercial activity exception, there has to be an allegation

[00:08:12] Speaker 03:
that the act performed in the United States was an element of the cause of action.

[00:08:17] Speaker 03:
How are we supposed to know that when you haven't told us what the cause of action is?

[00:08:21] Speaker 00:
The cause of action, in terms of what happened in this case, I think it's clear that what we alleged was factually based on what was taken from us.

[00:08:35] Speaker 00:
I would submit to Your Honor that the

[00:08:38] Speaker 00:
situation was such that they knew exactly what they were doing in reference to taking the property.

[00:08:46] Speaker 03:
They may very well have, but you have to put it in a form that's intelligible to us.

[00:08:54] Speaker 03:
And I, for one, have found it very difficult to follow your complaint.

[00:09:01] Speaker 00:
Well, I think the complaint itself focused on what occurred

[00:09:06] Speaker 00:
in terms of the actions of the appellees.

[00:09:10] Speaker 00:
they had no right to use or to appropriate what we had done.

[00:09:17] Speaker 03:
Let me ask you a question.

[00:09:18] Speaker 03:
The district court noted that T.J.

[00:09:25] Speaker 03:
Jim had published in the record all the documents that it claims were protected by the trade secret.

[00:09:31] Speaker 03:
Is that correct?

[00:09:32] Speaker 00:
That was after certain documents were submitted to the court.

[00:09:36] Speaker 00:
That was after the litigation had begun.

[00:09:39] Speaker 00:
It was after they

[00:09:40] Speaker 00:
As we claimed, misappropriation occurred in use of those documents.

[00:09:44] Speaker 00:
The only persons that had the documents that we had and that we were using that we were claiming were misappropriated was the Canadians before this litigation started.

[00:09:53] Speaker 00:
After litigation started, those particular events occurred, but not before that.

[00:09:58] Speaker 00:
Other than the bank and the Canadians later, the bank initiative, the Canadians later, that was the extent of what we were dealing with.

[00:10:05] Speaker 00:
There was no use or given of the documents prior to litigation.

[00:10:12] Speaker 01:
All right, why don't we hear from Council for Appellees.

[00:10:15] Speaker 00:
All right, thank you very much.

[00:10:28] Speaker 02:
Good morning, may I please the court?

[00:10:30] Speaker 02:
I want to mention briefly that the Solicitor General of Ghana, if he was here, we believe that the Saudi Arabia versus Nelson case of the Supreme Court disposes of this appeal.

[00:10:43] Speaker 02:
And I want to spend a couple of minutes talking about that case.

[00:10:46] Speaker 02:
In that case, the Supreme Court held that whether you come under any of the different clauses of the commercial activity exception, that claim has to be based upon the subject commercial activity.

[00:10:59] Speaker 02:
So you have to first ask, what is the commercial activity that's at issue?

[00:11:04] Speaker 02:
Then you need to ask, is that claim based upon that commercial activity?

[00:11:09] Speaker 02:
If it's not,

[00:11:10] Speaker 02:
There is no application of the exception.

[00:11:13] Speaker 02:
So what happened in Saudi Arabia versus Nelson?

[00:11:17] Speaker 02:
Nelson was recruited by Saudi Arabia in the United States, and he signed a contract in the United States to go work for a hospital in Saudi Arabia.

[00:11:29] Speaker 02:
When he got there, he was basically a whistleblower.

[00:11:32] Speaker 02:
He got arrested, he got tortured, returned to the United States, and sued Saudi Arabia.

[00:11:39] Speaker 02:
He said the commercial activity exception applies because they came to the United States, they recruited me here.

[00:11:48] Speaker 02:
Even more than our case, we signed a contract in the United States, and so there was commercial activity here.

[00:11:56] Speaker 02:
The Supreme Court said, you're missing the point.

[00:12:00] Speaker 02:
You are not suing for breach of contract.

[00:12:03] Speaker 02:
You are not suing for what happened in the United States.

[00:12:07] Speaker 02:
You are suing because you were tortured in Saudi Arabia.

[00:12:11] Speaker 02:
So that claim is based upon the torts inflicted on you in Saudi Arabia, not the preceding commercial activity in the United States.

[00:12:21] Speaker 02:
This is the identical case.

[00:12:24] Speaker 02:
Why is TJ Jim bringing a lawsuit?

[00:12:28] Speaker 03:
Because they claim that the mayor of Accra... But, Mr. Nancy, I mean, the statute says it is an act performed in the United States in connection with the commercial activity of the foreign state elsewhere.

[00:12:41] Speaker 02:
That's the third clause.

[00:12:43] Speaker 02:
They have involved the clauses.

[00:12:44] Speaker 03:
The full statute, yeah, right.

[00:12:45] Speaker 02:
Yeah, the first clause.

[00:12:46] Speaker 02:
I'm discussing the first clause first, where you've got to have commercial activity in the U.S.

[00:12:51] Speaker 02:
That, the first clause of the commercial activity.

[00:12:53] Speaker 03:
Well, that's not the problem.

[00:12:54] Speaker 03:
That's not the problem, at least in my mind.

[00:12:57] Speaker 03:
The problem

[00:12:58] Speaker 03:
you faced is whether at this meeting where the memorandum of understanding was entered into, whether an act of misappropriation occurred there.

[00:13:09] Speaker 03:
Because the signing of that agreement was an act performed in the United States in connection with the commercial activity elsewhere.

[00:13:17] Speaker 03:
You agree to that?

[00:13:19] Speaker 02:
Yes, so let me address both the first clause and the third clause to be thorough.

[00:13:24] Speaker 02:
So in terms of the first clause, that would not fit because there was no commercial activity in the United States.

[00:13:31] Speaker 02:
Now in terms of the third clause, Section 1605A2 still requires that the law should be quote unquote based upon

[00:13:40] Speaker 03:
the activity in the United States, which was... Yeah, and the claim is that the misappropriation occurred here in the United States.

[00:13:47] Speaker 02:
No, it's not.

[00:13:48] Speaker 03:
It's not?

[00:13:48] Speaker 02:
The allegation, as the district court correctly points out in its opinion, was that misappropriation occurred in Ghana.

[00:13:57] Speaker 02:
The request for a bribery occurred, allegedly, in Ghana.

[00:14:01] Speaker 02:
Only two things happened in the United States.

[00:14:03] Speaker 02:
An MOU was signed, and there were meetings at the Export-Import Bank regarding financing.

[00:14:09] Speaker 02:
However, even under the third clause, the claims still have to be based upon those acts, and they are not suing based on those acts.

[00:14:19] Speaker 02:
TJ Jem gets no relief based on the fact that an MOU was signed.

[00:14:25] Speaker 03:
Let's imagine it were the case, and this is perhaps a hypothetical.

[00:14:28] Speaker 03:
So don't say, that's not my case.

[00:14:30] Speaker 03:
Let's just imagine that a memorandum of understanding was signed here in the United States, and that as part of that,

[00:14:38] Speaker 03:
trade secrets were given to the Export-Import Bank, that confidential information that had been developed as part of a proposal that was to be made in Ghana was brought to the United States and given to the bank unlawfully then.

[00:14:55] Speaker 03:
Under those circumstances, wouldn't you have an act performed in the United States in connection with the commercial activity elsewhere?

[00:15:04] Speaker 02:
That's not what happened here.

[00:15:06] Speaker 03:
That's right.

[00:15:07] Speaker 03:
Yeah.

[00:15:07] Speaker 03:
But that is what happened.

[00:15:09] Speaker 03:
Under those circumstances, we'd find the exception fits, right?

[00:15:14] Speaker 02:
Well, perhaps as a lawyer, I would look at all the facts around your hypothetical.

[00:15:19] Speaker 03:
Why do you say that's not what happened here?

[00:15:21] Speaker 03:
Because I think that's what the allegation is.

[00:15:23] Speaker 02:
No, the allegation is that the information was provided in Ghana and was misappropriated in Ghana.

[00:15:30] Speaker 02:
And that's the finding of fact of the district court.

[00:15:33] Speaker 02:
So now on appeal, TJ Jam had the burden to show that there was an abuse of discretion in making that finding a fact.

[00:15:43] Speaker 02:
And they've never done that.

[00:15:44] Speaker 02:
That's not the noble.

[00:15:45] Speaker 02:
The noble review is on the law, but on the facts is going to be abuse of discretion.

[00:15:50] Speaker 02:
And I believe that the finding stands.

[00:15:52] Speaker 02:
So there are basically two reasons.

[00:15:54] Speaker 02:
The one we have discussed, that none of what happened in the United States is an element of the claim.

[00:16:00] Speaker 02:
It's not what the claim is based upon.

[00:16:02] Speaker 02:
The other reason is that the alleged torts by the mayor, which by the way, Ghana disputes, but it didn't have to dispute,

[00:16:10] Speaker 02:
proof in our motion to dismiss, those are not considered to be commercial activity in any event by the Republic of Ghana under the Fennof case from the Ninth Circuit.

[00:16:20] Speaker 02:
The DC Circuit hasn't had the opportunity as of yet to adopt Fennof, but every other circuit has followed that.

[00:16:28] Speaker 02:
And the reason why we require actual authority of a foreign government official is because that's what we require of the United States.

[00:16:37] Speaker 02:
When you enter into a contract with the United States, it's buyer beware, and you have to make sure that the agent has actual authority.

[00:16:45] Speaker 01:
So can I just follow up for a moment on Judge Griffith's hypothetical, would you?

[00:16:49] Speaker 01:
Yes.

[00:16:52] Speaker 01:
We have held that on a motion to dismiss under 12B1, the district court should

[00:17:02] Speaker 01:
allows sufficient discovery to enable an understanding of what are the underlying facts for the complaint.

[00:17:17] Speaker 01:
So here, in this case, all we know that I have found about the MOU is in that website article.

[00:17:32] Speaker 01:
We know nothing about the details of that.

[00:17:37] Speaker 01:
And as I understand counsel's argument even today, it's simply that the inference in the plaintiff's favor arises as a result of the sequence of events, the timing.

[00:17:54] Speaker 01:
But we know nothing about the content of the MOU.

[00:18:01] Speaker 01:
Why in this case was the district court not obligated to allow some jurisdictional discovery on that issue?

[00:18:14] Speaker 02:
I think there are two reasons.

[00:18:15] Speaker 02:
One, when a foreign sovereign is sued, the case is a little different than the normal 12b1 motion, because the FSIA is intended to create a presumption of immunity, and then the plaintiff has to come forward with evidence.

[00:18:30] Speaker 02:
And so it protects the foreign sovereign from the normal procedure.

[00:18:35] Speaker 02:
A plaintiff has a much higher burden to come forward with evidence from the start before they filed a lawsuit.

[00:18:41] Speaker 02:
Here they filed a 250-page complaint

[00:18:44] Speaker 02:
with a thousand pages of exhibits.

[00:18:47] Speaker 02:
And I think that this record was correct in saying, you know, enough's enough.

[00:18:52] Speaker 02:
And we had over a thousand pages of pleadings.

[00:18:55] Speaker 02:
And, you know, with all due respect to opposing counsel, that this record

[00:19:01] Speaker 02:
to some extent had to throw his hands up and say, you know, we really don't know what you're alleging.

[00:19:06] Speaker 02:
What are your claims?

[00:19:07] Speaker 02:
What are your causes of action?

[00:19:09] Speaker 02:
This is just a rambling thing.

[00:19:10] Speaker 02:
And plaintiffs are not supposed to dump a stack of papers on the district judge and say, you figure it out.

[00:19:17] Speaker 02:
Now, the second reason is because it really doesn't matter.

[00:19:21] Speaker 02:
They're not suing for breach of the MOU.

[00:19:23] Speaker 02:
And there's plenty of authority that we have cited that indicates that the based upon language is the limiting language.

[00:19:32] Speaker 02:
Let me just make a quick point about Pimentel and the other defendants.

[00:19:38] Speaker 02:
Under the Supreme Court's decision in Pimentel, and we have gone through the Rule 19 analysis,

[00:19:44] Speaker 02:
Clearly AMA and the Republic of Ghana were necessary or required parties.

[00:19:49] Speaker 01:
Could I just interrupt and ask you to go back on one issue?

[00:19:55] Speaker 01:
The complaint does refer to other officials of the government of Ghana and makes the argument that those officials had actual authority to act on behalf of the government, at least one of them.

[00:20:15] Speaker 01:
And even that, I'll get the name wrong, but the man who was assisting the mayor, he claims that there was authority to negotiate on behalf of the government.

[00:20:31] Speaker 01:
And so is your response as to both of those that still, given the presumption,

[00:20:39] Speaker 02:
Our response is that we submitted the declaration of a Ghanaian professor, our expert witness, who disputed that and cited the provisions of Ghanaian procurement law, and that was never disputed.

[00:20:50] Speaker 01:
I see.

[00:20:51] Speaker 01:
All right.

[00:20:51] Speaker 01:
Thank you.

[00:20:53] Speaker 02:
And just on Pimentel, I won't re-argue that again, but it extends the benefit of immunity to the rest of the defendants.

[00:21:00] Speaker 02:
Thank you.

[00:21:00] Speaker 02:
Thank you.

[00:21:03] Speaker 01:
Council for Appellant, would you like a minute?

[00:21:07] Speaker 00:
As the Court just mentioned, in circumstances of Vanderpoot, he had the authority as the CEO of the AMA.

[00:21:17] Speaker 00:
In fact, he was tasked with the authority to negotiate and recommend infrastructure developments and projects.

[00:21:26] Speaker 00:
The notion that

[00:21:29] Speaker 00:
He was the only person involved who was one of the heirs of the trial court.

[00:21:35] Speaker 00:
He was involved as well as Samuel.

[00:21:38] Speaker 00:
Exhibit number 10, attached to the complaint, noted the letter of 12-20-2011 where Samuel Adekte, who is the Metro Coordinating Director of the AMA, indicated that he had indeed

[00:21:55] Speaker 00:
the authority to negotiate along with Vandafooji and other people involved in this matter.

[00:22:01] Speaker 00:
But there's no reason to conclude that there's no distinction between negotiation powers and scope of your authority as a CEO, as well as Samuel's role in the Metropolitan Assembly, and not having the power to

[00:22:18] Speaker 00:
And that, I think, was what the issue was in that regard.

[00:22:24] Speaker 00:
So we would submit that the notion that that's not the case is also undermined by the notion of Exhibit 51, where the mayor talks about how he was appointed in a modern Ghana news report to deal with the issues of metro

[00:22:44] Speaker 00:
and he was authorized by the President Mills at that point.

[00:22:51] Speaker 00:
So we would submit that the notion that he had no power and the other people didn't have any power.

[00:22:57] Speaker 00:
There was a difference between the power and the responsibility to work on issues of

[00:23:03] Speaker 00:
of the SUE system in Accra and the purpose and the reason to apply to let a contract, which is totally different.

[00:23:13] Speaker 00:
The contract was not decided until 2013.

[00:23:15] Speaker 00:
It was not granted.

[00:23:17] Speaker 00:
The XM Bank, an exhibit that we submitted

[00:23:24] Speaker 00:
I believe it was exhibit 55 that was attached to the complaint indicated that indeed the circumstances of the let of the contract and the loan was to the end user, the AMA.

[00:23:40] Speaker 01:
All right, thank you.

[00:23:41] Speaker 01:
We'll take the case under advisement.