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Republic of Iraq v. ABB AG

United States District Court, S.D. New York

February 6, 2013

The REPUBLIC OF IRAQ, including as Parens Patriae on behalf of the Citizens of the Republic of Iraq, Plaintiff,
v.
ABB AG, et al., Defendants.

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Christian Patrick Siebott, Stanley D. Bernstein, Brian Lehman, Bernstein Liebhard, LLP, Mark Maney, Maney & Gonzalez-Felix PC, Roliff Holmes Purrington, Burford & Maney P.C., Houston, TX, for Plaintiff.

James Philip Gillespie, John R. Bolton, Mark Champoux, Robert B. Gilmore, Thomas David Yannucci, Brant Warren Bishop, Ragan Naresh, Kirkland & Ellis LLP, Mark H. Lynch, O. Thomas Johnson, Jr., Covington & Burling, L.L.P., Robert Stephen Bennett, Ellen Swennes Kennedy, Hogan Lovells U.S. LLP, Jennifer Lynn Spaziano, William John O'Brien, III, Skadden, Arps, Slate, Meagher & Flom LLP, Philip Eric Urofsky, Shearman & Sterling LLP, Michael Evan Horowitz, James K. Robinson, Cadwalader, Wickersham & Taft, LLP, Robert P. Parker, Baker & McKenzie LLP, Richard D. Klingler, Sidley Austin LLP, Gregory L. Baker, Baker & Hostetler LLP, Robert A. Van Kirk, Katherine M. Turner, Philip A. Sechler, Williams & Connolly LLP,

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Michael R Miner , Drinker Biddle & Reath, LLP, Washington, DC, S. Alyssa Young, Leader & Berkon LLP, Aaron Hirsch Mendelsohn, Daniel Nathan Anziska, Elliot Cohen, Troutman Sanders LLP, Nancy Lynn Kestenbaum, Covington & Burling LLP, Robert H. Baron, Timothy Gray Cameron, Cravath, Swaine & Moore LLP, H. Miriam Farber, Danforth Newcomb, Shearman & Sterling LLP, Thomas E. Lynch, Meir Feder, Phineas Edward Leahey, Chris J. Lopata, Jones Day, Jason Jurgens, Nathan Marshall Bull, Cadwalader, Wickersham & Taft LLP, Joann Kahn, Mark Allen Robertson, Fulbright & Jaworski L.L.P., David I. Zalman, Melissa Errine Byroade, Thomas Benjamin Kinzler, Kelley Drye & Warren, LLP, Kenneth J. King, Pepper Hamilton, LLP, Dorothy Jane Spenner, Andrew Douglas Hart, Sidley Austin LLP, Mark S. Landman, Landman Corsi Ballain & Ford PC, John Patrick Doherty, Jennifer Susan Kozar, Karl Geercken, Alston & Bird, LLP, Peter Louis Altieri, David John Clark, Epstein, Becker & Green, P.C., Brian Stryker Weinstein, Jason Bradley McCullough, Davis Polk & Wardwell L.L.P., John David Harkrider, Evan Saul Storm, Axinn Veltrop & Harkrider LLP, Judith Ann Lockhart, Carter Ledyard & Milburn LLP, Clay J. Pierce, Marsha Jessica Indych, Drinker Biddle & Reath, LLP, David Harold Braff, Penny Shane, Steven Robert Peikin, Sullivan and Cromwell, LLP, Andrew Hunter Reynard, Allen & Overy, LLP, Walter P. Loughlin, K & L Gates LLP, Casey Devin Laffey, Reed Smith, John Federick Pritchard, Pillsbury, Winthrop, LLP, Ranah Leila Esmaili, Pillsbury Winthrop Shaw Pittman, LLP, Steve Orlikoff, Darrell Prescott, Lawrence Walker Newman, Baker & McKenzie LLP, New York, NY, Christopher S. Riley, Barnes & Thornburg LLP, Indianapolis, IL, David Stephen Toy, David S. Toy, Esq., Francis I. Spagnoletti, Spagnoletti & Co., John L. Shoemaker, El Paso Corporation, Leland Curtis De La Garza, Timothy David Zeiger, Shabana N. Qaiser, Esq., Houston, TX, Philip Warren Crawford, Jennifer Marino Thibodaux, Gibbons P.C., Thomas R. Valen, Gibbons, Del Deo et al., Newark, NJ, Larry R. Schmadeka, Lee, Hong, Degerman, Kang & Schmadeka, LLP, Los Angeles, CA, Robert Barnes Calihan, Calihan Law PLLC, Roch, NY, Pamela Kayatta Riewerts, Bowie & Jensen, LLC, Towson, MD, Brett A. Spain, Willcox & Savage P.C., Norfolk, VA, David M. Ryan, Fred A. Kelly, Jr., Nixon Peabody LLP, Boston, MA, John G. Harkins, Jr., Harkins Cunningham LLP, Gregory P. Miller, Drinker Biddle & Reath, LLP, Philadelphia, PA, James William Abbott Ladner, St. Jude Medical, Inc., St. Paul, MN, Amy K. Pohl, Michael H. GinsbergJones Day, Pittsburgh, PA, Carl A. Parker, The Parker Law Firm, Port Arthur, TX, Hector Canales, Tony Canales, Canales & Simonsen, Courpus Christi, TX, J.A. Canales, Canales & Simonson, P.C., Corpus Christi, TX, Casey L. Westover, Richard Wray, Reed Smith LLP, Gregory J. Wallance, Kaye Scholer LLP, Chicago, IL, for Defendants.

OPINION & ORDER

SIDNEY H. STEIN, District Judge.

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CONTENTS

I. Background 524

A. The Iraqi sanctions 524

B. The Oil-for-Food Programme in Design 525

1. The UN escrow account 526

2. Oil sales 526

3. Goods purchases 526

C. The Oil-for-Food Programme in practice 526

1. Oil sales 527

2. Purchases from vendor-defendants 528

3. BNP maintained the UN Escrow Account 529

4. The Programme's end 529

D. This action 529

II. Legal Standard for Motion to Dismiss 530

III. Justiciability 530

A. Article III standing 530

1. Iraq has standing to recover for an injury to its proprietary interests 531

2. Iraq has no standing to pursue its quasi-sovereign interests as parens patriae 532

B. Act of state doctrine 533

C. Political question doctrine 534

IV. The Relationship Between the Current Government of Iraq and the Hussein Regime 535

A. Sovereigns may be held to account for the wrongful governmental conduct of their governments 536

B. Governmental conduct is conduct taken under color of authority 537

C. The Complaint alleges that the Hussein Regime's Programme misconduct was governmental 538

D. The nature of the Hussein Regime's conduct does not absolve Iraq of responsibility for that conduct 539

1. The Complaint does not allege that the Hussein Regime committed acts of personal misconduct as distinct from governmental misconduct 539

2. The legitimacy of the Hussein Regime does not determine Iraq's responsibility for the Regime's conduct 541

3. The legality of the Hussein Regime's acts does not determine Iraq's responsibility for the Regime's conduct 541

V. Racketeer Influenced and Corrupt Organizations Act 542

A. Iraq alleges that defendants violated RICO by corrupting the Programme 543

B. Iraq impermissibly attempts to apply the RICO statutes extraterritorially 543

1. RICO claims that focus on an extraterritorial enterprise or concern extraterritorial patterns of racketeering activity are not actionable 543

2. Iraq's Complaint demonstrates that its claim is extraterritorial 544

3. Under either test, Iraq calls for an impermissible extraterritorial application of the RICO statute 546

C. In pari delicto bars Iraq's RICO claims 546

1. Iraq's allegations bring it within the in pari delicto doctrine 546

2. Iraq's purported exceptions to in pari delicto do not apply 548

D. Iraq has failed to allege proximate cause 549

VI. Foreign Corrupt Practices Act 551

VII. Common Law Claims 551

VIII. Conclusion 551

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This action brings to a United States district court a foreign nation's claims concerning the suffering of its people.

The Republic of Iraq has alleged that defendants— numerous business entities that transacted with the Government of Iraq during the rule of Saddam Hussein— conspired with the Hussein Regime to frustrate the United Nation's Oil-for-Food Programme. The conspirators allegedly perverted the Programme into an engine of self-enrichment: the defendants seized tremendous profits and the Hussein Regime solidified its hold on power. All the while, the Iraqi people bore the brunt of the scheme. Their natural resources were plundered and sold at fire-sale prices. Food and medicines the Iraqi people had paid for arrived spoiled, if at all. The international regime designed to protect them utterly failed.

Iraq has attempted to fit this wrongdoing into the mold of a civil action. At its heart, Iraq says, its case amounts to a principal seeking to recover for the harms caused to it by a wayward agent— Saddam Hussein— and his co-conspirators the defendants in this action. Iraq alleges that the defendants have violated the Racketeer Influenced and Corrupt Organizations Act and the Foreign Corrupt Practices Act, and committing numerous torts, including fraud, breach of contract, and aiding and abetting breach of fiduciary duty.

Defendants have now moved to dismiss Iraq's First Amended Complaint (" Complaint" ) on a variety of theories, almost all of which touch on the relationship of Iraq to the wrongs for which it seeks relief. The parties agree that the injustices alleged were instigated and directed by Hussein and his Regime. But the parties dispute whether the Republic of Iraq must bear responsibility for the acts of the Hussein Regime and, if so, what that responsibility means for this action.

The Court concludes that the Complaint alleges conduct by the Hussein Regime that, as a matter of law, is attributable to plaintiff itself, the Republic of Iraq. The alleged misconduct has a governmental character. Therefore, the conduct comes within the default rule that a regime's governmental conduct redounds to the sovereign. The Court rejects Iraq's view that it may sidestep responsibility because the conduct was illegal or the actors held power illegitimately. Sovereigns, however, cannot escape the consequences of their representatives' governmental misconduct. Questions of attribution are distinct from questions of lawfulness or legitimacy.

The legal relationship between Iraq and Hussein frames the case, but does not decide it. The issues that do are more commonplace. For example, the core claims of the action— RICO and RICO conspiracy— focus on extraterritorial conduct. And even if those claims were not extraterritorial, they would founder on the defense of in pari delicto or absence of allegations of proximate causation. Having engineered the wrongdoing alleged in the Complaint, and having alleged that the wrongdoing directly harmed the Programme, Iraq cannot recover from that wrongdoing. Further, the only other federal claim, brought under the Foreign Corrupt Practices Act, does not afford private plaintiffs a right of action. Finally, the Court declines to exercise supplemental jurisdiction over the remaining state law claims; they are dismissed as well.

I. BACKGROUND

The facts below are as set forth in the Complaint and are accepted as true for purposes of this motion.

A. The Iraqi sanctions

In 1979, Saddam Hussein seized power in Iraq via a military coup. (Compl. ¶ 216.) The administration he put in place,

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referred to in the Complaint as the " Hussein Regime" [1] ( id. ¶ 2), wielded absolute control over Iraq and violently suppressed all opposition ( id. ¶¶ 217-23).

On August 2, 1990, Iraq invaded the neighboring state of Kuwait. ( Id. ¶ 239.) The United Nations Security Council responded to the invasion by adopting sanctions against Iraq that were designed " to place the Hussein Regime under complete economic isolation." ( Id. ¶ 243.) Security Council Resolution 661 required member states to freeze Iraqi assets and prohibited trade with Iraq. ( Id. ¶ 242.) Nine days after the invasion, President George H.W. Bush issued an executive order that " align[ed] the sanctions imposed by the United States with Security Council Resolution 661." ( Id. ¶ 251.) The UN sanctions remained in effect from 1990 until 2003. ( Id. ¶ 292.)

From the outset, the Security Council sought to " protect the [Iraqi] population from adverse effects of the sanctions policies and from the Hussein Regime itself." ( Id. ¶¶ 255, 56-64.) The Hussein Regime initially resisted these efforts. It " used the suffering of the innocent as a negotiating tool in an attempt to end the Iraq Sanctions Program." ( Id. ¶ 265.) The Regime rejected two attempts by the Security Council to authorize the sale of oil in exchange for food and medicine. ( Id. ¶ 267.) The Hussein Regime eventually shifted course, however, and in 1996 it agreed to participate in the Oil-for-Food Programme that the UN had designed and implemented. ( Id. ¶ 277.)

B. The Oil-for-Food Programme in Design

The UN Oil-for-Food Programme was designed to permit Iraq to sell its oil to third parties, as long as the proceeds were used to purchase food and medical supplies for the Iraqi population. It was an attempt to continue Iraq's economic isolation at the same time as attempting to relieve the suffering of the Iraqi people caused, at least in part, by those sanctions. ( Id. ¶¶ 274, 296.)

Two documents outlined the core Programme guidelines: UN Security Council Resolution 986 and the Memorandum of Understanding on the Implementation of Security Council Resolution 986 between Iraq and the UN, signed May 20, 1996 (" MOU" ).

Resolution 986 directly authorized UN member states to import Iraqi oil on condition that the sales be approved by a UN committee created by an earlier regulatory resolution, Resolution 661, and that the purchase price be placed into an escrow account established by the UN Secretary-General. (UN SCOR Res. 986 ¶¶ 1, 6 (adopted Apr. 14, 1995), Ex. 3 to Decl. of Brant W. Bishop dated Jan. 15, 2010.) The Security Council directed the Resolution 661 Committee to verify that the oil sold for a price " reasonable in light of prevailing market conditions." (UN SCOR Res. 986 ¶ 6.) Resolution 986 further provided for escrowed monies to be spent, at " the request of the Government of Iraq," on " medicine, health supplies, foodstuffs," and other materials, such as those " for essential civilian needs." (UN SCOR Res. 986 ¶ 8(a).) The resolution required that Iraq submit to the Secretary-General a plan of distribution and that the Secretary-General receive confirmation that the humanitarian goods arrived in Iraq. ( Id. )

The MOU, which was signed by a representative of the United Nations and a representative of the Government of Iraq, articulated

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the Secretary-General's role in negotiating the terms of an escrow account with a " major international bank" (MOU ¶ 12), elaborated the mechanics of exporting oil from Iraq using the pipeline from Kirkuk, Iraq to Yumurtalik, Turkey as well as the Mina al-Bakr oil terminal (MOU ¶ 16), created a mechanism for Iraq to request letters of credit be given to its vendors (MOU ¶ 24), and established a process for observing the distribution of humanitarian aid (MOU ¶¶ 34-36).

1. The UN escrow account

The Programme " required that all financial transactions related to the Programme pass through an [escrow] account established by the UN" (Compl. ¶ 284) to " be used to meet the humanitarian needs of the Iraqi population." (UN SCOR Res. 986 ¶ 8.)

The United Nations created, " controlled[,] and monitored" the escrow account at a New York branch of BNP Paribas, a major international bank. (Compl. ¶¶ 285-87, 975.) BNP and the UN executed an " Agreement for Banking Services" on September 12, 1996. ( Id. ¶ 976.) BNP promised " not to take any instructions from any person in or acting on behalf of the Government of Iraq, or representing persons or entities in Iraq." ( Id. ¶ 990 (quotation marks omitted).) In its role as escrow bank, BNP also " confirm[ed] letters of credit issued by banks retained by buyers of oil" and " issu[ed] letters of credit for the purchase of humanitarian goods." ( Id. ¶¶ 979-81.)

2. Oil sales

Companies seeking to buy Iraqi oil under the Programme had to enter into a contract directly with the Iraqi State Oil Marketing Organization (" SOMO" ). (Compl. ¶ 323.) The standard contract provided that the sale terms were subject to UN approval and relevant Security Council resolutions. ( Id. ¶ 324.) It also provided that any assignment of rights under the contract was subject to UN approval. ( Id. ) The sale price, known as the Official Selling Price (" OSP" ) was determined by a UN committee based on available market data and on what participating purchasers were willing to pay. ( Id. ¶ 321.)

The contracts required the purchasers to deposit the full amount of each purchase into the escrow account. ( Id. ¶ 325.) To effectuate this, oil purchasers would provide a letter of credit " in favor of the UN Escrow Account" in the amount of the entire purchase price under the contract. ( Id. ¶ 326.)

3. Goods purchases

Pursuant to the Memorandum of Understanding, the Government of Iraq retained the right to choose the parties from which it would purchase goods. (MOU ¶ 22; Compl. ¶ 522.)

Companies wishing to sell goods to Iraq under the Programme negotiated contracts directly with the appropriate Iraqi ministry or state-owned enterprise. ( Id. ¶ 329; MOU ¶ 22.) These contracts required UN approval and conformance with the Programme's regulations. (Compl. ¶¶ 331, 333.)

After the Programme administrators approved a contract, BNP, at the UN's direction, would execute a letter of credit in favor of the supplier of the goods. ( Id. ¶ 337.) Once the UN verified the goods' arrival in Iraq, it would inform BNP of that fact, and BNP in turn would wire payment from the escrow account to the supplier of the goods. ( Id. ¶ 338.)

C. The Oil-for-Food Programme in practice

The Complaint alleges that the Hussein Regime was hostile to the Oil-for-Food Programme because it considered the Programme to be " economic occupation"

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(Compl. ¶ 302) as well as a political threat, since it " reduc[ed] the suffering of the Iraqi people," thereby " reduc[ing] the political pressure to remove the Iraq Sanctions Program." ( Id. ¶ 300.)

With the active assistance of defendants, the Government of Iraq used the Programme to generate hundreds of millions of dollars of cash for itself from both its sales of oil as well as its purchases of food and medicine. The alleged fraud was both intricate and simple: the Hussein Regime priced its oil below the market price in order to facilitate kickback payments from buyers, and it overpaid for food and medicine in order to facilitate side payments to it from sellers in the form of surcharges.[2] The three groups of defendants in this action are alleged to be active participants in Hussein's scheme: (1) The entities that purchased, directly or indirectly, Iraqi crude oil; (2) the vendors that sold humanitarian goods and supplies to Iraq through the Programme; and (3) the BNP entities that administered the UN escrow account. Together, according to the Complaint, the Regime and defendants corrupted the sale of oil, the purchase of goods, and the administration of the UN escrow account.

1. Oil sales

By pricing its oil below market value, the Hussein Regime created a differential between the market price and the price it received for the oil. This differential constituted extra profit to the purchasers and was used by Hussein to reward its political allies and to negotiate kickbacks from the oil purchasers to the Regime. Simplicity itself.

a. Oil vouchers as political influence

From the Programme's earliest stages the Hussein Regime allocated Iraqi oil to entities viewed as friendly to the regime and that opposed the sanctions in order to curry and solidify political support. (Compl. ¶ 356-57.) Iraq sold this oil below market price in order to ensure that its allies made an easy profit. ( Id. ¶ 358.) As a result, " the primary decision-making criteria for allocating vouchers to purchase oil was to gain favor" rather than " to secure the best price to increase the amount of humanitarian aid to the Iraq people." ( Id. ¶ 357.)

In addition, according to the Complaint, the recipients of Iraqi oil allocations did not have the " financial or business wherewithal" to engage in major crude oil purchases. ( Id. ¶ 359.) The oil-purchasing defendants and BNP ameliorated that deficit by financing and coordinating the transactions. ( Id. ) Iraq would allocate oil to a particular individual or entity at a below-market contract price unwittingly approved by the UN. That individual or entity, however, was only an intermediary. The ultimate purchaser of the oil would be one of the oil-purchasing defendants. They would pay the intermediary a price greater than that provided for in the intermediary's contract of sale with Iraq. ( Id. ¶¶ 1017, 1022, 1024.)

For example, Chevron allegedly purchased 78 million barrels of Iraqi crude through intermediaries. ( Id. ¶ 421.) One of those intermediates was Bulf Drilling and Oil Services, which had been awarded an Iraqi oil allocation in May 2001.

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( Id. ¶ 1029.) Bulf agreed to let Chevron purchase the oil from it, and Chevron agreed to finance Bulf's purchase from Iraq. ( Id. ¶¶ 1030-31.) To prevent the UN from discovering Chevron's role in the transaction, Chevron and BNP had letters of credit issued for the purchase of Iraqi oil on behalf of Bulf. ( Id. ¶¶ 1033-34.) In reality, though, those letters of credit were backed by Chevron. ( Id. ¶ 1034.)

b. Surcharges on oil sales

A few years into the Programme, the Hussein Regime decided to generate income on oil sales outside of the proper channels. To do so, " the Hussein Regime simply demanded that anyone who wanted to purchase oil under the Programme make payments (surcharges) to bank accounts owned or controlled by the Hussein Regime." (Compl. ¶ 363.) The amount of the surcharges varied over the life of the Programme, ranging from 10 cents to 50 cents per barrel of oil. ( Id. ¶ 364.)

In the Chevron example, Chevron would pay its intermediaries a premium above the official selling price. ( Id. ¶ 422.) In turn, the intermediaries would pay a portion of those premiums as surcharges to the Hussein Regime. ( Id. ¶¶ 422-23.) In this way, Chevron paid out approximately $20 million in indirect surcharge payments in connection with its oil purchases. ( Id. ¶ 423.)

Defendants made surcharge payments to Hussein Regime-controlled bank accounts in Jordan and Syria. ( Id. ¶ 473.) In some instances, the surcharges were transferred to accounts of the Central Bank of Iraq, from which Central Bank employees made cash withdrawals and physically transported the cash to Iraq. ( Id. ¶ 474.) The Hussein Regime ultimately received a total of $228.8 million in oil surcharges. ( Id. ¶ 1101.)

2. Purchases from vendor-defendants

As it did for the sale of oil, the Hussein Regime manipulated the prices of the goods it purchased through the Programme. It agreed to overpay for goods in order to create a differential between the market price of a good and the amount of Programme funds expended on the good. The Regime used this differential to obtain unauthorized side-payments from the vendor-defendants.

a. Inland transportation fees

The Hussein Regime demanded that companies selling goods within the Programme pay a transportation fee on all shipments of humanitarian goods to Iraq. (Compl. ¶ 526.) The Hussein Regime formalized its demand in a June 1999 directive to its ministries. The Regime's Economic and Affairs Committee assigned the fees and the Ministry of Transportation oversaw their collection. ( Id. ¶ 527.)

The vendors of humanitarian supplies financed the transportation fees by surreptitiously charging them to Iraq's Programme account: vendors negotiated a delivery contract with the Hussein Regime; the Hussein Regime set a transportation fee; and the vendors and the Hussein Regime consummated a finalized contract that accommodated the transportation fee in the official purchase price. ( Id. ¶¶ 531, 533-34.) The Hussein Regime generally required vendors to pay the transportation fees directly to it— thus avoiding the UN-controlled escrow account— by demanding the fee before submitting a delivery contract to the UN. ( Id. ¶¶ 528, 535.) Vendors accomplished this by raising the contract price they had previously negotiated with the Hussein Regime by the value of the fee and submitting to the UN a contract reflecting the above-market price.

b. After-sales-service-fees

The Hussein Regime directed " Iraqi ministries and agencies" (Compl. ¶ 562) to collect additional kickbacks from vendors in the form of an " after-sales-service-fee" ( id. ¶ 557). As with the transportation fee,

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the service fee represented money funneled to Iraq by vendors hidden within inflated contract prices. ( Id. ¶ 573.) The surcharge ranged from 2% to 30%, though " most contracts carried a 10% surcharge." ( Id. ¶¶ 561-63.)

The service fees were " paid directly to the Hussein Regime." ( Id. ¶ 571.) Vendors paid the surcharge in cash, by transfer to " Regime-controlled accounts," or by payments to " front companies controlled by individuals or companies loyal to the Hussein Regime." ( Id. ¶ 565.) " Generally, accumulated payments were transferred to Iraq in cash, usually by diplomatic pouch." ( Id. ) An internal government memorandum mandated that all funds collected from the surcharge scheme be transferred to the " general treasury." ( Id. ¶ 568.)

c. Consequences

As a result of these fees, over the course of the Programme Iraq substantially overpaid for the goods it received relative to their market price. (Compl. ¶¶ 650-651, 653.) " [B]y the Programme's end, prices were more than double the expected norms." ( Id. ¶ 652.) The Republic of Iraq estimates that " the Iraqi people lost more than $7 billion worth of humanitarian goods to overpricing." ( Id. ¶ 655.) Additionally, the vendors shipped Iraq " substandard" goods, including substandard " wheat, medicine, animal feed, chemicals, and vehicles." ( Id. ¶¶ 641-43.)

3. BNP maintained the UN escrow account

Although the banking agreement prohibited BNP from contravening Programme rules, BNP is alleged to have done so. " BNP knew misleading disclosures were being made to the UN" in order to obtain approval for certain transactions and did not warn the UN ( id. ¶ 1037), but instead, " in at least 403 instances BNP made payments from the UN Escrow Account to entities other than the named beneficiaries" of the letters of credit. ( Id. ¶ 1038.) It " agreed with many of its customers to hide the fact that they were financing the purchase of oil ... by others." ( Id. ¶ 1022.) BNP's misconduct was motivated by the " financial opportunities from issuing letters of credit to oil purchasers," specifically that it made money by issuing letters of credit and misused its letters of credit authority " to solidify business relationships with the oil purchasers." ( Id. ¶ 1014.)

4. The Programme's end

Resolution 661 remained in effect until the spring of 2003. UN SCOR Res. 1483 ¶ 10 (May 22, 2003). The Programme— and the alleged conspiracy to undermine and circumvent it— ended when the United States and its allies invaded Iraq and ousted the Hussein Regime by force. (Compl. ¶ 1077.)

D. This action

Iraq commenced this action by filing a complaint in the Southern District of New York on June 27, 2008. (Dkt. No. 1.) It filed its First Amended Complaint on July 31, 2009. (Dkt. No. 112.) Iraq channels its charges into nine claims: [3]

1) The Racketeer Influenced and Corrupt Organization Act (" RICO" ), § 1962(c)
2) RICO § 1962(d)
3) Foreign Corrupt Practices Act
4) Fraud
5) Civil Conspiracy
6) Breach of ...

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