United States District Court, N.D. Illinois, Eastern Division
Lillian Borich, Chicago, IL, pro se.
Daryl A. Libow, Sullivan & Cromwell LLP, Washington, DC, Michelle K. Mellinger, Thomas James Piskorski, Seyfarth Shaw LLP, Chicago, IL, for Defendants.
MEMORANDUM OPINION AND ORDER
GEORGE M. MAROVICH, District Judge.
After plaintiff Lillian Borich's (" Borich" ) employment was terminated, she filed in the Circuit Court of Cook County a five-count complaint against defendants BP, p.l.c.; BP Exploration & Production, Inc.; BP Products North America, Inc.; BP America, Inc. (collectively, the " BP defendants" ) and Robert Dudley (" Dudley" ). Defendants removed the case to this court. The Court has jurisdiction over this case, because Borich's first count arises under the Racketeer Influenced and Corrupt Organizations Act (" RICO" ). She also asserts claims for fraudulent misrepresentation, conspiracy to defraud, aiding and abetting fraud and breach of contract. Defendants have moved to dismiss. For the reasons set forth below, the Court grants in part and denies in part the motion to dismiss.
The Court takes as true the allegations in plaintiff's complaint. The Court also considers the documents attached to plaintiff's complaint. Fed.R.Civ.P. 10(c).
Defendant BP, p.l.c. is incorporated in England and Wales and has its principal place of business in London. It has a
number of subsidiaries that are also defendants. They include BP Exploration & Production, Inc. (a Delaware corporation), BP Products North America, Inc. (a Maryland corporation), and BP America, Inc. (a Delaware corporation). Dudley is currently the CEO of BP, p.l.c.
A BP defendant employed plaintiff Borich from about May 2004 until it terminated her employment on November 30, 2008. For the first three years, Borich worked as a Strategic Account Manager in Warrenville, Illinois.
Next, in 2007, Borich was offered and accepted the position of Commercial Marketing Manager in Kiev, Ukraine. In this position, Borich was employed by BP Products North America, Inc., but she performed work for an entity called TNK-BP. Five percent of TNK-BP Holding was publicly traded and the remaining ninety-five percent was owned by TNK-BP International Limited. TNK-BP International Limited, in turn, had two 50% owners: BP, p.l.c. and Alfa-Access-Renova (" AAR" ), a consortium of Russian businessmen. (In her complaint, Borich often refers to " TNK-BP," and it is not clear whether she means TNK-BP Holding, TNKBP International Limited or both. The Court uses her terms.) In 2007 and part of 2008, defendant Dudley was the CEO of TNK-BP.
Unbeknownst to Borich, Dudley and the BP defendants had devised a scheme to " wrest control" of TNK-BP from AAR, and they needed Borich to make it happen. Borich alleges that business is done differently in Russia and Ukraine, where business is conducted via " personal relationships," " unwritten rules and agreements," " illegal payments, protection schemes" and other activity that is illegal in the United States and the United Kingdom. Borich was sent over to use a " Western-style sales and distribution network." Borich was tasked with " circumventing TNK's existing personal relationships with its re-sellers, jobbers and joint venture partners by marketing BP-TNK products directly to end customers and consumers, with no regard for [the] existing personal relationships, protected territories, established rules or agreements or the illegalities associated with this activity." Borich alleges that the Western-style business strategies she was supposed to employ were doomed to fail and that failure was the BP defendants scheme all along. Dudley and the BP defendants knew that Borich's job would " ultimately depress the TNK-BP's capitalization so that defendant BP, p.l.c. could wrest control of TNK-BP at a drastically reduced price."
When Borich arrived in Kiev in June 2007, she was surprised to learn how business was done there. She learned of illegal payments to persons in Russia and Ukraine. She learned about the bribes and kickbacks that were necessary to obtain government contracts. Borich alleges that BP, p.l.c. and Dudley " either actively participated in illegal payments or bribes or was [sic] fully aware that these illegal payments and bribes were being made." (This allegation is somewhat at odds with Borich's theory that the defendants were trying to instill Western-style business practices in order to reduce TNK-BP's market capitalization, but a plaintiff is allowed to plead in the alternative.)
In Kiev, Borich was supervised by Mark Goodwin (" Goodwin" ), who was the Deputy Director of TNK-BP. Goodwin initiated a personal relationship with Borich. That relationship lasted until September 2007, when Goodwin went to London to meet with managers of the BP defendants. Borich alleges that Goodwin and managers of the BP defendants discussed: (1) the fact that Borich was " questioning ... the legality of certain activity that was going on in
Kiev, Ukraine" ; and (2) that she was a " liability" because " she was either incapable or unwilling to ‘ play ball’ and maintain the ruse that Robert Dudley and BP Defendants were attempting to perpetuate regarding TNK-BP." When Goodwin returned to Kiev from London, he broke off his personal relationship with Borich.
The complaint contains some other extraneous details, the relevance of which are not entirely clear. For example, Borich alleges that, at some point, a TNK-BP shareholder filed suit and obtained an injunction against BP, p.l.c. Borich does not say when this happened or what court issued the injunction. Borich alleges that the " injunction ... ultimately resulted in all BP expatriates being forced to leave their jobs in Russia and Ukraine.
On March 21, 2008, for " no legitimate purpose," Goodwin canceled Borich's contract and Ukraine work visa. Borich was told that her position was being phased out and that BP had no comparable jobs for her. Borich alleges that she was placed on " garden leave" which was used to " freeze [Borich] out of any opportunity to obtain another position within the BP organization." BP defendants terminated Borich's employment on November 30, 2008, because she had been unable to find another position within BP by that time.
Before Borich accepted the position in the Ukraine, the BP defendants had failed to inform her of several facts. They had failed to tell her that by accepting the Ukraine position, she was giving up her old position and could not have it back. They had failed to tell her that she was not guaranteed a position with a BP subsidiary when she returned to the United States. Had she been told these facts, she would not have accepted the Ukraine position.
Borich also includes in her complaint some allegations that are specific to her RICO claim. Borich alleges that the defendants used an enterprise " to carry out its pattern of racketeering activity." The enterprise was made up of the five defendants themselves. Although not all of the enterprise's activities were unlawful, the defendants used the enterprise to conduct " mail fraud, wire fraud and money laundering." Borich alleges that " [s]uch violations were completed through course of conduct including bribes and illegal payments to Russian and Ukrainian individuals and entities in order to facilitate the Enterprise's interest in the expansion of TNK-BP." This behavior " injured Borich in her business or property."
Borich alleges what she describes as predicate acts. She alleges that defendants " used the mail and wires to fraudulently recruit BP Defendant employees in the United States ostensibly to work for TNK-BP, but in reality to work in furtherance of the Enterprises [sic] goal to favor BP p.l.c. over TNK in the TNK-BP joint venture." Specifically, Borich states that the defendants provided her paperwork about her Kiev position via the mail and wires. In addition, Borich alleges that defendants used the mail and wires to communicate " information pertaining to and in furtherance of the bribery and illegal payments made in Ukraine and Russia." Finally, Borich alleges that defendants " facilitated the payment of bribes or otherwise illegal payments to local individuals and entities in Ukraine and Russia in order to appropriate monetary gains from the TNK-BP joint venture, which BP Defendants would claim as legitimate revenue and profits going to BP, p.l.c." Borich ...