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November 5, 1998


Robert J. Ward, U.S.D.J.

The opinion of the court was delivered by: WARD

Ward, District Judge.

Plaintiff/Counterclaim-defendant Meridien International Bank Limited ("Meridien") moved pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, Eleventh, Twelfth, Thirteenth, and Fourteenth Counterclaims in the Amended Answer and Counterclaims of defendants, the Government of Liberia ("Republic" or "GOL") and Liberia Telecommunications Corporation ("LTC"). The motion to dismiss is granted in part and denied in part. *fn1"


 Meridien filed a complaint alleging breach of contract and seeking the recovery of money allegedly owed to Meridien by GOL and LTC. In response to Meridien's complaint, defendants filed an answer and counterclaims. In addition to numerous affirmative defenses, defendants presented counterclaims, many of which sound in fraud, alleging that agreements between Meridien and GOL and LTC "were unconscionable and grossly contrary to the interests of the people and Government of Liberia and LTC." Amended Answer and Counterclaims of Defendants at Counterclaim P 9 ("Am. Ans. & Counter.").

 I. The Parties

 The three parties in this case are: (1) plaintiff, Meridien; (2) defendant, GOL; and (3) defendant, LTC. In addition to the parties, many persons are identified who are employed by these parties, leaders of these parties, or involved with these parties in some capacity. At this point, the Court will briefly describe the main participants in this case.

 Meridien is a foreign banking corporation organized and existing under the laws of the Bahamas with its principal place of business in Nassau, Bahamas. It is a merchant bank and bank holding company which is involved in commercial lending, merchant banking transactions, and other related activity. Meridien has maintained an office, senior personnel, and bank accounts in the City and State of New York. Defendants allege that a substantial portion of plaintiff's business is transacted from New York, and on information and belief that Meridien's principal place of business from 1985 to 1987 was New York City. Id. at PP 3, 65.E(a). Meridien Bank of Liberia ("MBLL") has held itself out as a subsidiary of Meridien organized as a bank under the laws of Liberia.

 GOL is a foreign government and LTC is a foreign corporation organized and existing under the laws of Liberia. LTC was created by legislation enacted by the Senate and House of Representatives of the Republic of Liberia and approved on or about February 22, 1973. LTC is the national telecommunications company of Liberia and is engaged in, among other things, the development of telecommunications services and the establishment of telecommunications stations in Liberia. GOL wholly owns and controls LTC and its management.

 Spar Aerospace Limited ("Spar") is a Canadian aerospace corporation. The agreements entered into by the parties were made in connection with the sale and installation of a telecommunications earth station in Liberia by Spar.

 The following are some of the persons integral to the agreements of the parties. Samuel K. Doe ("President Doe" or "Doe") was the then-president of Liberia. Keith Wilson ("Wilson") was a member and fundraiser for the National Democratic Party of Liberia, which was the political party of former President Doe. Abraham Kollie ("Kollie"), for the time period relevant to this action, was a member of the Liberian Senate and had previously served as President Doe's Deputy Vice Head of State. S. Richlieu Watkins ("Watkins") was the managing director of LTC from 1986 through 1987. He signed the Credit Agreement, to which reference will be made shortly. In April 1987, Oscar J. Quiah ("Oscar Quiah") was appointed managing director of LTC. Roosevelt Quiah is Oscar Quiah's brother. Andrew Sardanis ("Sardanis") was the Chairman of Meridien's Board of Directors for the entire time period relevant to the counterclaims. Michael Wingate ("Wingate") was the Vice President of Meridien in the late 1980s.

 II. The Agreements

 On September 12, 1986, LTC, Meridien, and MBLL, as the local agent for Meridien, entered into a Credit Agreement ("Credit Agreement"). Pursuant to this agreement, Meridien loaned LTC $ 18,870,000, with the purpose of the loan being to finance the construction by Spar of a satellite telecommunications earth station in Liberia. The Credit Agreement was amended on April 25, 1989, extending the payment schedule.

 GOL and Meridien entered into an Unconditional Guaranty Agreement on or about September 30, 1986 ("Guaranty"). GOL guaranteed the due and punctual payment of the principal and interest of the loans made to LTC by Meridien.

 On March 5, 1990, a loan agreement ("Loan Agreement") was entered into between Meridien and GOL for the total principal of $ 8 million of which $ 3 million was applied as a partial payment on the loan for the telecommunications project. Meridien and GOL entered into an additional Unconditional Guaranty Agreement on March 9, 1990.

 III. The Complaint

 Meridien commenced this action to recover damages for alleged breaches of the Credit Agreement and Guaranty by filing a Verified Complaint in the Supreme Court of the State of New York on July 17, 1992. It claims that LTC made payments of interest to Meridien under the Credit Agreement and its notes in the sum of $ 3,787,441 and that $ 3,000,000 of the proceeds of an $ 8,000,000 loan from Meridien to GOL was applied against the accrued interest of the Credit Agreement. Meridien, however, alleges that no payment has been made since July, 1990, despite due demand, and in violation of the Credit Agreement and the notes.

 Pursuant to Section 6.2 of the Credit Agreement, Meridien duly declared the loan in default, accelerated the loan, and declared immediately due and owing the entire unpaid principal, interest, and other amounts due under the Credit Agreement. Additionally, Meridien has demanded payment from GOL as the guarantor.

 IV. Defendants' Amended Answer and Counterclaims

 On November 8, 1995, GOL and LTC filed an answer to the complaint, and by agreement of the parties, filed an Amended Answer and Counterclaims on November 24, 1995. The Amended Answer and Counterclaims consisted of Eight Affirmative Defenses and Fourteen Counterclaims. Defendants are primarily alleging that through bribery and corruption, directed at high level government and LTC officials, onerous terms were imposed and inflated prices were charged in the Credit Agreement, Guaranty, and related transactions from 1985 to at least 1990 in connection with the sale and installation of the telecommunications earth station by Spar in Liberia. Through the Counterclaims, defendants are arguing that these agreements and the bribery that took place to induce their terms defrauded GOL, LTC, and the people of Liberia.

 Defendants claim that, in addition to other persons, Meridien paid bribes to Doe and Watkins in order to procure the above mentioned agreements. Because of the alleged actions, defendants' put forth the following counterclaims:

(1) Rescission of the Credit Agreement;
(2) Rescission of the Guaranty;
(3) Common law fraud;
(4) Civil conspiracy;
(5) Breach of contract;
(6) Tortious interference with the fiduciary duties of GOL;
(7) Tortious interference with the fiduciary duties of LTC;
(8) Aiding and abetting in the commission of a tort by Meridien giving substantial assistance and encouragement to Doe, Kollie, and Watkins to violate their fiduciary duties and that as a proximate result of this assistance and encouragement, Meridien is responsible for the harm to GOL and LTC as a result of the tortious conduct of these individuals;
(9) Wrongful attachment of GOL's property in New York which is presumptively immune from attachment and execution under Section 1609 of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1609; *fn2"
(10) Violation of Section 2 of the Clayton Act as amended by the Robinson-Patman Act, 15 U.S.C. § 13(c), as Meridien engaged in interstate and foreign commerce and that in the course of such commerce, agreed to and did pay bribes to Doe, Kollie, Watkins, Roosevelt Quiah, and others in order to obtain the Credit Agreement and Guaranties and to prevent their cancellation;
(11) Violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), ...

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