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Borich v. Bp Products North America, Inc.

United States District Court, Seventh Circuit

May 28, 2013

LILLIAN BORICH, Plaintiff,
v.
BP PRODUCTS NORTH AMERICA, INC., Defendant.

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 BP, p.l.c.; BP Exploration & Production, Inc.; BP Products North America, Inc.; BP America, Inc. and Robert Dudley. Defendants removed the case to this court and moved to dismiss. The Court dismissed (for failure to state a claim) plaintiff's Racketeer Influenced and Corrupt Organizations Act ("RICO") claim, the claim that gives this Court its jurisdiction.

Plaintiff is now on her third attempt to state a RICO claim. After the Court dismissed her original complaint, plaintiff filed an amended complaint, which defendants moved to dismiss. In response, plaintiff sought leave to file a second-amended complaint. The Court allowed plaintiff to file her second-amended complaint, in which she asserts claims against a single defendant, BP Products North America, Inc. ("BP"). Plaintiff asserts three claims: Count I under RICO, Count II for breach of contract and Count III for fraudulent misrepresentation.

Defendant has filed a motion to dismiss plaintiff's second-amended complaint for failure to state a claim. For the reasons set forth below, the Court grants in part and denies in part defendant's motion to dismiss.

I. Background

The Court takes as true the facts alleged in plaintiff's second-amended complaint ("SA Complt.").

In her second-amended complaint, Borich seeks to "recover wages [she] would have earned during her employment with BP had BP not fraudulently induced her" to accept a position from which it ultimately discharged her. (SA Complt. at ¶ 1).

In or about early 2007, after having worked for BP for about three years, Borich applied for the position of Business-to-Business Marketing Manager at TNK-BP (a joint venture owned by BP, p.l.c. and a Russian oil company) in Ukraine. The business-to-business marketing position was new. Previously, TNK-BP had made its sales through wholesalers, and the sales made through wholesalers sometimes involved the use of bribes.

BP employee Mark Goodwin, who was assigned to TNK-BP, interviewed Borich for the position, which she ultimately accepted. They communicated about the position a number of times. For example, Goodwin spoke to Borich on the phone and sent her emails (via interstate or foreign wires) on December 9, 2006 and February 24, 2007. In these communications, Goodwin "indicated to Borich that BP was sincere in its desire to operate its Eastern European sales on a Business-to-Business model."[1] (SA Complt. ¶ 12). "BP and Goodwin knew at the time that it was merely attempting to change BP's business model from the use of wholesalers executing sales through bribes to the Business-to-Business model. BP knew that such a shift would be opposed by TNK, BP's Russian partner in TNK-BP. Thus, it knew the success of the Business-to-Business group Borich was being hired to head was predicated upon a very uncertain change in the TNK-BP culture and way of conducting business..." (SA Complt. ¶ 13) (emphasis added).

Goodwin and Borich continued to correspond about the position via email. On March 17, 2007, Goodwin emailed Borich to inform her that the position would last three years and to explain the housing reimbursement policy. On March 15, 2007, Borich accepted the position and terms by email. On March 30, 2007, BP (in Texas) emailed Borich (in Illinois) an assignment agreement, which Borich signed and sent back to Texas by facsimile. In April 2007, Goodwin "gave [Borich] materials prepared by the Boston Consulting Group for BP" that "detailed the Business-to-Business model of selling oil" and "made it clear that he wanted her to pursue this business model in her position." (SA Complt. ¶ 20).

Borich moved to Ukraine to begin her position. She attempted to complete oil sales directly to companies and was successful in completing some sales. Borich alleges that BP refused to complete some of her sales, but she does not say why.

By December 2007, BP either gave up on the business-to-business model or gave up on having Borich sell business-to-business. At that time, Borich learned that BP was transferring her to the commercial sales department, where sales were made through middlemen. Borich believed such work was dangerous. At some point, Borich took a medical leave, and by March 2008, BP terminated her employment contract (though it paid her through June).

Borich alleges that during the time she worked at TNK-BP, BP (via Goodwin) violated the Foreign Corrupt Practices Act. She alleges that "the company was deeply engaged in a bribery-based business model." (SA Complt. ¶ 30). Borich alleges "BP bribes were regularly approved and paid by Goodwin from a special BP account." (SA Complt. ¶ 30). The bribes were paid to "local government officials and Donetsk JV, a business." (SA Complt. ¶ 30). Borich states in her second-amended complaint that these Foreign Corrupt Practices Act "crimes are pleaded in order to establish a pattern of racketeering activity, not to establish that Borich was damaged by them." (SA Complt. ¶ 31). The bribes were effectuated via email.

Borich also alleges that BP breached its contract with her by not completing sales she arranged to businesses. Finally, Borich asserts that she was ...


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