International law firm Dorsey & Whitney LLP announced today that a team of its lawyers has just won an important victory for its client the Republic of Ghana before the U.S. Court of Appeals for the Federal Circuit.
The case arose after the capital City of Accra, Ghana, sought to hire a contractor to reconstruct its sewage systems. In 2013, TJGEM, LCC, a disappointed bidder from Missouri, filed a lawsuit in U.S. District Court for the District of Columbia against the Republic of Ghana, the City of Accra, the Mayor of Accra and others seeking $595 million in alleged damages. TJGEM alleged that the contract had been improperly awarded to another U.S. company. TJGEM also alleged that Ghana had misappropriated its intellectual property and conspired with the winning bidder to infringe on TJGEM’s rights.
On Tuesday, June 9, 2015, in a summary disposition, the U.S. Court of Appeals for the Federal Circuit affirmed the District Court’s dismissal of the lawsuit based on foreign sovereign immunity under the Foreign Sovereign Immunities Act. The District Court’s decision is found at TJGEM, LLC v. Republic of Ghana, et al., 26 F.Supp.3d 1 (2013). The Court of Appeals held that TJGEM had failed to carry its burden of presenting evidence of commercial activity within the United States, or of commercial activity outside of the United States that had a direct effect in the United States, so as to defeat the foreign sovereign immunity of the Republic of Ghana and City of Accra.
In this regard, the Court of Appeals also held that the case was properly dismissed as to the remaining defendants under the Supreme Court’s decision in Republic of the Philippines v. Pimentel, 553 U.S. 851 (2008), in order to give full effect to the foreign sovereign immunity of Ghana and Accra.
“The jurisdictional limitations in the Foreign Sovereign Immunities Act (FSIA) are important because they are based on international law. By affirming the dismissal order of the District Court, the United States Court of Appeals for the Federal Circuit has given effect to the Congressionally mandated requirements that the alleged commercial activity of a foreign state or its instrumentalities must occur in the United States or have a direct effect in the United States, in order to overcome the sovereign immunity of the foreign state under the FSIA,” Juan Basombrio, Southern California based attorney with Dorsey & Whitney said. “These holdings advance international comity, which is the respect that sovereign states must afford each other, because they signal that the United States will not assert jurisdiction over matters that are internal to other nations and more properly within the purview of foreign courts.”
Partner Juan Basombrio led the Dorsey team and argued the appeal, with the assistance of Partners Chip Magid and Matthew Ralph, and Associates Kate Santon and Jill Gutierrez.