                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
_______________________________________
                                        )
WYE OAK TECHNOLOGY, INC.,               )
                  Plaintiff,            )
                                        )
            v.                          )    Civil No. 1:10-cv-01182-RCL
                                        )
REPUBLIC OF IRAQ et al.,                )
                  Defendants.           )
                                        )
_______________________________________)

                                                 MEMORANDUM OPINION
I. Legal Standard ............................................................................................................................. 2
II. Factual Background.................................................................................................................... 3
   A. The Initial Effort to Rebuild Iraqi Armed Forces Following the U.S.-led Invasion in 20033
   B. Iraq Contemplates Stopping Some Scrap Exports ............................................................... 6
   C. Wye Oak and MoD Execute the BSA.................................................................................. 7
   D. Wye Oak Begins Performance ........................................................................................... 11
   E. Wye Oak and Zayna Sign a Limited Power of Attorney ................................................... 13
   F. Wye Oak Presents Three Invoices to MoD........................................................................ 15
   G. October 19, 2004 Meeting ................................................................................................. 16
      1. MoD Approved Wye Oak’s Three Invoices ....................................................................... 16
      2. Wye Oak and MoD Effectuated the First Amendment to the BSA ..................................... 17
   H. MoD and GIG Sign the Contract of Financial Agreement ................................................ 21
   I. MoD Paid Zayna Instead of Wye Oak ............................................................................... 24
   J. Wye Oak Continued to Perform until Nonpayment Became a Serious Impediment ............ 25
      1. Wye Oak Performed Work in Iraq ..................................................................................... 25
      2. Wye Oak Performed Work in the United States ................................................................ 27
      3. Nonpayment Eventually Became a Significant Impediment to Wye Oak’s Work .............. 28
   K. December 5, 2004 Meeting ................................................................................................ 29
   L. Wye Oak Goes Back to Work, But Dale Stoffel is Murdered ........................................... 31
   M. Wye Oak Produced Armored Vehicles in Time for the January 2005 Elections, But
   Eventually Ceased to Perform Work in Iraq Because It was Never Paid ................................. 33
   N. Iraq Prohibits Scrap Sales .................................................................................................. 35
III. Legal Discussion ..................................................................................................................... 35
   A. MoD is Not Separate from the Republic of Iraq ................................................................ 35
   B. The Court has Subject Matter Jurisdiction and Personal Jurisdiction Over Defendants ... 39
      1. The BSA was a “Commercial Activity” Under the FSIA .................................................. 40
      2. This Action is Based Upon an Act Performed in the U.S. in Connection with a
      Commercial Activity of Iraq Elsewhere................................................................................. 41
     3. The Court has Personal Jurisdiction over Iraq and MoD................................................. 44
   C. Defendants Breached the BSA........................................................................................... 45
     1. Wye Oak’s Three Invoices Were Submitted Under the BSA .............................................. 45
     2. Wye Oak was never paid for its three invoices .................................................................. 50
     3. Wye Oak Performed Under the BSA.................................................................................. 51
     4. MoD Materially Breached the Contract with Wye Oak .................................................... 52
   D. The Court Rejects Defendants’ Affirmative Defenses ......................................................... 52
     1. The Court Rejects the Defense Wye Oak was Not Properly Licensed ............................... 53
     2. The Court Rejects the Defense Wye Oak was Not Owed Any Compensation Under the
     BSA Because Wye Oak Did Not Conclude Any Sales Contracts ........................................... 55
     3. The Court Rejects the Defense Wye Oak Waived any Breach ........................................... 55
IV. Damages ................................................................................................................................. 56
  A. Dr. Gale’s Expert Damages Report ...................................................................................... 59
    1. The Court Finds Defendants Breached the BSA on October 28, 2004 ............................. 60
    2. Gale Did Not Err in Not Taking Into Account Subsequent Events .................................... 61
       a. Dale Stoffel’s Murder .................................................................................................... 62
       b. Wye Oak’s Withdrawal of American Personnel ............................................................ 63
       c. The Scrap Ban ................................................................................................................ 63
  B. Damages for the Three Invoices ........................................................................................... 67
  C. Lost Profits ........................................................................................................................... 70
    1. Defendants’ Overall Objections to Plaintiffs’ Lost Profits Calculations .......................... 70
    2. Lost Profits from Construction .......................................................................................... 75
    3. Lost Profits from Refurbishing Military Equipment .......................................................... 78
    4. Lost Profits from Scrap Sales ............................................................................................ 88
    5. Lost Profits From the Sale of Surplus Military Equipment ............................................... 93
  D. Terminal Value ..................................................................................................................... 94
  E. Discounted Future Income .................................................................................................... 95
    1. Risk-Free Rate ................................................................................................................... 97
    2. Equity Risk Premium ......................................................................................................... 97
    3. Firm Size Premium ............................................................................................................ 98
    4. Industry Risk Premium ...................................................................................................... 99
    5. Defendants’ Objections that Gale Did Not Include a Company-Specific Risk Premium and
    Did Not Apply a Higher Discount Rate to Damages in Option Years ................................ 100
    6. Discount rate ................................................................................................................... 100
  F. Prejudgment Interest ........................................................................................................... 101
  G. Enhanced Damages ............................................................................................................ 102
  H. Costs, Including Reasonable Attorney’s Fees and Expenses ............................................. 104
V. Conclusion ............................................................................................................................. 105
       Fifteen years ago, Wye Oak Technology, an American company, entered into the Broker

Services Agreement (BSA) with the Iraqi Ministry of Defense (MoD) to play a key role in re-

equipping the Iraqi military. Iraq urgently needed to rebuild its armed forces as the Coalition

Provisional Authority (CPA) transferred sovereignty back to the Iraqi people and the interim Iraqi

government prepared to hold its first parliamentary elections since the fall of Saddam Hussein.

The BSA was set to be the central component of the Iraqi Military Equipment Recovery Project

(IMERP).

       Under the BSA, Wye Oak was responsible for developing an inventory and assessing what

military equipment was salvageable and what was scrap, providing military refurbishment

services, arranging for scrap sales, and arranging for the sale of military equipment. Wye Oak

began performing as soon as the BSA was effectuated. By October 2004, Wye Oak submitted three

pro forma invoices to MoD for work in relation to the IMERP.

       But MoD never paid these invoices to Wye Oak. Instead, MoD paid a third-party, Raymond

Zayna, the money owed to Wye Oak under the BSA. Nonetheless, Wye Oak continued to perform

under the contract while desperately trying to extract the funds it was owed. And briefly, Wye Oak

thought it succeeded. After months of performing vital activities as part of the IMERP despite not

being paid, all issues seemed to be solved after a December 5, 2004 meeting. However, this was

not the case.

       A few days later, Wye Oak’s president Dale Stoffel and his colleague Joe Wemple were

brutally murdered on their way to arrange for funding to finally be released. Nonetheless, Wye

Oak still did not immediately abandon the IMERP even after Dale Stoffel’s tragic death. Instead,

Wye Oak exceeded the goal of producing a mechanized brigade of operational armored vehicles




                                                1
for Iraq’s January 2005 parliamentary election. Yet Wye Oak was never paid for the vital work it

performed under the BSA.

          Now, more than fifteen years after Wye Oak entered into the BSA, and more than a decade

after Wye Oak first filed suit, the Court finds MoD breached the BSA. And because MoD is an

integral component of the national government itself, the Republic of Iraq is also liable for the

breach.

          Ultimately, the Court will award Wye Oak damages for its three invoices, lost profits from

construction, lost profits from refurbishing military equipment, and lost profits from scrap sales.

Also, the Court will award Wye Oak prejudgment interest and costs, including reasonable

attorney’s fees and expenses.

I. Legal Standard

          Wye Oak bears the burden of proving its breach of contract claim by a preponderance of

the evidence. The preponderance of the evidence standard “simply requires the trier of fact to

believe that the existence of a fact is more probable than its nonexistence before [he] may find in

favor of the party who has the burden to persuade the [judge] of the fact’s existence.” Concrete

Pipe & Prods., Inc. v. Constr. Laborers Pension Tr., 508 U.S. 602, 622 (1993) (internal quotation

marks omitted). In a bench trial, the Court is the trier of fact and rules on the law. Wye Oak will

only succeed in its suit if it demonstrates it is more likely than not that the MoD materially breached

the BSA.

          The BSA provides it “shall be exclusively construed and interpreted pursuant to the laws

of the Republic of Iraq.” Pl.’s Ex. 5 ¶ 21. Thus, under this choice-of-law clause, Iraqi law controls

for the purposes of interpreting the contract.




                                                  2
        Under Iraqi law, the rules of evidence and procedure of the venue where the dispute is

pending control. Mallat Dep. 2/14/19, 33:17–34:4. Thus, the Federal Rules of Evidence apply to

any evidentiary issues in this matter.

        Finally, under the Federal Rules of Evidence, “[i]n determining foreign law, the court may

consider any relevant material or source, including testimony, whether or not submitted by a party

or admissible under the Federal Rules of Evidence. The court’s determination must be treated as a

ruling on a question of law.” Fed. R. Evid. 44.1.

II. Factual Background

   A. The Initial Effort to Rebuild Iraqi Armed Forces Following the U.S.-led Invasion in 2003

        In March 2003, U.S. forces invaded Iraq and swiftly toppled Saddam Hussein’s dictatorial

regime. The U.S.-led Coalition forces set up the CPA to govern Iraq as a transitional government.

On June 28, 2004, the CPA transferred sovereignty to the Iraqi people and an interim Iraqi

government. This interim government held office until parliamentary elections occurred in January

2005.

        As part of Iraq’s rebuilding efforts, Iraq needed to rebuild its own armed forces. This was

especially vital as a growing insurgency began to take hold following the U.S.-led invasion and

occupation.

        Secretary of Defense Donald Rumsfeld requested that then-Lieutenant General David

Petraeus lead the Multi-National Security Transition Command–Iraq (MNSTC-I) to help rebuild

the Iraqi armed forces and police. MNSTC-I’s mission was to oversee and support the

reconstruction of Iraq’s Ministry of Defense and Ministry of Interior. MNSTC-I developed the

IMERP to re-equip the Iraqi military. The IMERP’s goal was to salvage the military equipment




                                                    3
that could be refurbished and the scrap military equipment that was scattered across Iraq after the

fall of Saddam Hussein’s regime.

       Under Saddam Hussein, Iraq had an extremely large military with extensive stocks of

military equipment. Expert Report of John M. Gale app. C, 11, 43–47, Pl.’s Ex. 101. A significant

amount of this equipment consisted of Soviet weaponry. Tr. 12/18/18 PM 65:7–9; Tr. 12/19/18

PM 85:8–13. Destroyed and abandoned equipment littered the country following the U.S.-led

invasion. See Tr. 12/17/18 PM 28:25–29:25; Tr. 12/19/18 AM 13:7–14, 33:6–34:2; Tr. 12/20/18

PM 37:8–19; Petraeus Dep. 14:18–15:20; Pl.’s Ex. 63. The IMERP intended to determine what

equipment was recoverable and what could be scrapped, hoping to immediately repair salvageable

equipment so that a portion of the Iraqi armed forces could be rebuilt as quickly as possible.

IMERP’s immediate focus was to prepare at least one armored mechanized brigade to be on the

streets in time for the new Iraqi government’s parliamentary election in January 2005. See Tr.

12/17/18 PM 35:21–37:5; Tr. 12/19/18 AM 25:9–26:14; Joe Kane, Iraqi Mech Brigade Moves

Toward Initial Ops, The Advisor, Oct. 9, 2004, Pl.’s Ex. 16, at 1, 8. This was a critical component

of the Coalition and Iraq’s goal to withdraw American troops and have Iraqi security forces take

on greater responsibility. Petraeus Dep. 20:19–21:2, 28:19-30:3.

       The Coalition and MNSTC-I leaders viewed Wye Oak and its president, Dale Stoffel, as

capable of executing the IMPERP effort. Wye Oak, and Dale Stoffel in particular, had extensive

familiarity with Soviet military equipment and had government contacts throughout the world. See

Tr. 12/18/18 PM 65:7–9; Pl.’s Ex. 1; Pl.’s Ex 5 ¶ 2. Further, Wye Oak possessed the necessary

arms and weapons licenses to perform the planned work. Pl.’s Ex. 1; Pl.’s Ex. 51. And Wye Oak

had a strong relationship with CLI Corporation, an American based construction firm that had

experience working in Iraq, as Dale Stoffel was a part owner of CLI. Pl.’s Ex. 51.



                                                4
       On June 25, 2004, Wye Oak officially presented MoD its proposal to carry out the IMERP.

Pl.’s Ex. 1. Wye Oak offered its services to “assess [MoD’s] discarded and/or damaged military

equipment to identify military salvageable equipment and scrap, account and inventory, value and

identify purchasers for such military equipment and scrap, to maximize and to assist you in

carrying out the Iraqi Military Equipment Recovery Project. In such role, Wye Oak would act as

the exclusive broker for such transactions for the [sic] Iraq’s Ministry of Defense for a minimum

of ten percent commission on each such transaction.” Id. Following this letter, on July 4, 2004,

Iraq’s Minister of Defense, Hazim al-Shalan, requested access to the military equipment

depositories at the Taji military base so MoD personnel and Dale Stoffel could inspect and assess

the equipment as part of the beginning phase of the IMERP. Pl.’s Ex. 2. Petraeus responded on

July 20, 2004 with his full support for the MoD’s expeditious initiation of the IMERP, and granted

al-Shalan’s request. Pl.’s Ex. 3.

       Wye Oak and MoD began drafting the BSA. Nicholas Beadle, a United Kingdom

government official and senior Coalition advisor to the Iraqi MoD, Iraqi Minister of Defense

Hazim al-Shalan, and Iraqi MoD Secretary General Bruska Shaways, recalled his conversations

with Shaways in July 2004 regarding the draft contract. Beadle made sure Shaways understood

the MoD was agreeing to pay Wye Oak up front based on pro forma invoices—besides

commissions—without having seen the completed work and would only have an opportunity to

reconcile the payments at a later time. Tr. 12/20/18 PM 37:20–38:16, 53:11–54:3; Tr. 12/21/18

AM 36:16–38:20. On August 16, 2004, the MoD and Wye Oak officially entered into a contract,

the BSA, to carry out the IMERP.




                                                5
   B. Iraq Contemplates Stopping Some Scrap Exports

       While Wye Oak and MoD were negotiating the BSA, Iraq was also in the process of

cracking down on scrap smuggling. On June 19, the General Secretary of Iraq’s Council of

Ministers informed the Ministries of Industry, Trade, and Finance that the Prime Minister directed

the formation of a committee of representatives from these ministries to study scrap exports and

provide a recommendation on the topic. Defs.’ Ex. 56.

       Following this directive, the Ministry of Trade wrote the Council of Ministers to inform

the Council of its views on exporting scrap. Defs.’ Ex. 55. The Ministry of Trade stated the

decision to export scrap was implemented in accordance with CPA Order 54 on the Trade

Liberalization Policy of 2004 issued on February 26, 2004. Id. According to the Ministry of Trade,

CPA Order 54 in part sought to stop scrap smuggling and institute a legal regime to govern scrap

exports. Id. CPA Order 54 prohibited the export of “metals of all kinds, including scrap,” in

quantities in excess of personal use without a license from the Ministry of Trade. Defs.’ Ex. 54.

However, the Basra Governate apparently interfered with authorized scrap exports. Id. This led

the Ministry of Trade to request the Basra Governate be directed not to interfere with the export

of scrap done in accordance with previously granted licenses. Id.

       The committee formed pursuant to the Prime Minister’s direction ultimately recommended

stopping scrap exports but allowing those who already had export licenses to continue their export

efforts because those licensees only accounted for a small portion of existing scrap. Defs.’ Ex. 57.

But the committee also urged the Ministry of Interior and General Commission of Customs to

institute strict procedures to prevent scrap smuggling. Id.

       On July 17, 2004, the General Secretary of the Cabinet issued a letter to the Ministry of

Interior regarding the prohibition of exporting scrap with copies to the Office of the Prime



                                                 6
Minister, Ministry of Industry and Minerals, Ministry of Trade, and National Intelligence Service.

Defs.’ Ex. 53. Specifically, the letter stated the Prime Minister agreed to the Ministry of Industry

and Minerals’ proposal to stop exporting scrap, with the exception that some materials of a military

nature could still be exported upon the Prime Minister and his economic committee’s approval. Id.

Unfortunately, this Court was never provided with the Ministry of Industry and Minerals’ proposal

referenced in this letter, which makes it impossible to fully comprehend the exact terms of the

prohibition on exporting scrap the Prime Minister approved.

        This deliberation on scrap exports and decision by the Prime Minister was never

communicated to Wye Oak at any time during the BSA negotiations or after Wye Oak and the

MoD signed the BSA. And Beadle testified he understood all orders prohibiting scrap sales to only

apply to private sales, not the MoD. Tr. 12/21/18 AM 7:25–8:10. Further, Neal testified General

Bashar, an MoD official working on the effort to recover vehicles, informed him the scrap ban was

intended to stop individuals from illegally taking scrap and did not affect Wye Oak. Tr. 12/19/18

AM at 29:22–31:16; Tr. 12/19/18 PM 4:9–18.1

    C. Wye Oak and MoD Execute the BSA

        Wye Oak and MoD entered into the BSA to carry out the IMERP on August 16, 2004. The

BSA was signed by Dale Stoffel on behalf of Wye Oak and countersigned by Iraqi MoD Secretary

General Bruska Shaways. Pl.’s Ex. 5. Secretary General Shaways had the “full signatory authority”

of MoD regarding all matters related to Wye Oak’s work recovering and selling scrap military

equipment. Pl.’s Ex. 6. Under the BSA, MoD was required to “work exclusively with [Wye Oak]




1
 General Bashar’s declarations were admitted into evidence as admissions by a party-opponent—and therefore non-
hearsay—under Federal Rule of Evidence 801(d)(2). General Bashar was an MoD employee speaking on a matter—
whether the scrap ban applied to the MoD—within the scope of his relationship with the MoD, as he worked on the
IMERP, which contemplated exporting scrap as part of the program, while he was employed by the MoD. Fed. R.
Evid. 801(d)(2)(D).

                                                      7
regarding furnishing of Military Refurbishment Services, Scrap Sales and the sale of Refurbished

Military Equipment with respect to all Military Equipment.” Pl.’s Ex. 5. The BSA appointed Wye

Oak as the sole and exclusive broker for:

        (i) the accounting, inventory, and assessment of discarded and/or damaged Military
        Equipment in connection with the Iraqi Military Equipment Recovery Project to
        identify which Military Equipment is salvageable and suitable for Military
        Refurbishment Services and which Military Equipment is scrap;
        (ii) the arranging of any Scrap Sales of any Military Equipment that is not suitable
        for Military Refurbishment Services;
        (iii) the provision of Military Refurbishment Services with respect to all of the
        various military bases, offices and properties owned by, or under the control of, the
        Ministry and/or the Republic of Iraq, wherever such bases, offices and property
        maybe [sic] located and all the related military equipment located thereon or
        otherwise owned by the Ministry and/or the Republic of Iraq; and
        (iv) the arranging for the sale of Military Equipment and/or Refurbished Military
        Equipment to Customers during the term of this Agreement or for Scrap Sales of
        any such Military Equipment that is not suitable for Military Refurbishment
        Services, which arranging shall include the valuation of any such Military
        Equipment, whether original, refurbished or scrap, and the identification of
        prospective Customers for such sales.

Pl.’s Ex. 5 ¶ 2. MoD agreed “not to conduct any Military Refurbishment Services or arrange for

the use, sale or lease of any Refurbished Military Equipment provided for under [the BSA] nor

engage in any scrap sales, except pursuant to an engagement with [Wye Oak] under [the BSA].”

Id. The BSA stated Wye Oak would begin performing services at five military facilities: “Taji

Military Base/Camp Cooke, Camp Normandy, Camp Ashraft, Camp Anaconda, and the Coalition

facilities at the Hilla Military Facility.” Id.

        The BSA provided specific definitions for the terms military equipment, military

refurbishment services, refurbished military equipment, customers, and scrap sales. Military

equipment was defined as “any equipment that is used by or in the provision of military [sic],

including, without limitation, any and all vehicles, aircrafts, guns, missiles, armored personnel

carriers, heavy armor/tanks, military radar equipment, ballistic missiles, rocket launchers, artillery,



                                                  8
artillery scrap, small arms, small arms scrap or any parts or components thereof.” Id. ¶ 1. The

contract defined military refurbishment services as “any services sold, performed for, or provided

with respect to any Refurbished Military Equipment that is either retained by the Ministry or sold

or otherwise provided to Customers by the Ministry, including, but not limited to, the inspection

of the Military Equipment prior to performing any Military Refurbishment Services to make a

value assessment and a refurbishing assessment for such Military Equipment.” Id. The BSA

provided that “Refurbished Military Equipment shall mean any Military Equipment that has been

refurbished by, or under the direction of, the Broker pursuant to this Agreement, and sold or

provided to customers by the Ministry.” Id. Customers were defined as “purchasers of the ‘Military

Refurbishment Services’ and/or ‘Refurbished Military Equipment’ and ‘or Scrap sales’ including,

but not limited to, Iraqi Ministry of Defense, commercial establishments and governmental and

semi-governmental entities in the military sector.” Id. And scrap sales were defined as “sales to

any third party of any Military Equipment or other items which may not be defined as scrap but

contemplated by the nature of this Agreement (e.g., brass, gun barrels, etc.) that the Broker or Iraqi

Ministry of Defense determines is not suitable for Military Refurbishment Services in accordance

with the terms of this Agreement.” Id.

       Further, Wye Oak was required to use “all reasonable commercial efforts to perform the

Military Refurbishment Services and in the development of markets and sales prospects for

Military Equipment, including Refurbished Military Equipment and Scrap Sales.” Id. ¶ 3. Wye

Oak was not under any obligation to expend any money in performing these services or activities,

except money that was advanced by the MoD to cover “certain expenses associated with the

performance of the Military Refurbishment Services, the sales of any Military Equipment,

Refurbished Military Equipment or any Scrap Sales.” Id. ¶ 3. In addition, MoD was required to



                                                  9
“fully inform [Wye Oak] at all times of all matters reasonably required to enable [Wye Oak] to

carry-out its duties as set forth [in the BSA].” Id. ¶ 4.

        As compensation, MoD was required to pay Wye Oak “a commission of [a] minimum of

ten percent (10%) based on the Contract Value set out in each Sales Contract entered into by the

Ministry, pursuant to this Agreement.” Id. ¶ 5. With respect to Refurbished Military Equipment,

the MoD was required to pay Wye Oak 10% of such equipment’s refurbishment cost. Id. The

commissions were to be paid “pursuant to proforma invoices submitted by [Wye Oak] and then

reconciled by final invoice. Upon providing such proforma invoice, Ministry will make full

payment on such invoice immediately upon presentation. All payments to be made to [Wye Oak]

under this Agreement shall be made in United States Dollars in the form and manner as directed

by [Wye Oak].” Id. Also, the BSA provided significant protections for Wye Oak. Wye Oak was

entitled to receive and retain all commissions for sales contracts for military refurbishment

services, refurbished military equipment, or scrap MoD cancelled or terminated, regardless of the

cause. Id.

        The BSA was set to last for one year. This one-year term was to renew automatically for

two subsequent, consecutive one-year periods unless either Wye Oak or the MoD gave the other

party written notice it would not renew at least sixty days prior to the end of any term. If

termination notice was provided, the BSA was set to terminate at the end of the then-current term.

Id. ¶ 6.

        This Agreement was not assignable by either party. Id. ¶ 8. Any purported assignment of

the BSA without written consent from both parties was void and without effect. Id. A failure by

one of the parties to assert any right in the BSA or upon a breach of the BSA would not constitute

a waiver of such rights. Id. ¶ 12. And a written waiver of any right was not deemed to extend to



                                                   10
any subsequent breach. Id. The BSA was not to be amended or supplemented except in writing,

signed by both parties. Id. ¶ 13. The BSA constituted the entire agreement between Wye Oak and

the MoD. Id. ¶ 14.

        In addition, the BSA contained an indemnification clause. Each party was to “indemnify,

defend and hold harmless the other party from and against any and all liabilities, demands, claims,

lawsuits, damages, judgments, costs (including reasonable attorney’s fees and expenses) including

but not limited to injury to persons (including death), loss or damage to, or destruction of property

arising out of that party’s breach of this Agreement or that party’s negligent or willful actions

while performing hereunder.” Id. ¶ 15.

        Finally, the English version of the Agreement governed and the BSA was required to be

construed and interpreted pursuant to Iraqi law. Id. ¶¶ 18, 21.

    D. Wye Oak Begins Performance

        Wye Oak more likely than not began performing activities related to the BSA around the

same time as the contract was signed. In the days preceding the BSA, Wye Oak identified 70,000

tons of brass artillery casings it believed could be sold as scrap. Wye Oak began trying to broker

a sale of these scrap brass shell casings and had some communications with at least one potential

customer after the BSA was signed. See Defs.’ Ex. 91 (email from Coskun Akdeniz to Dale Stoffel

on August 18, 2004, regarding a potential customer for the scrap brass casings).2 Unfortunately,

these shell casings were stolen from the Iraqi military base where they were stored before Wye

Oak could broker any sales contract. See Pl.’s Ex. 24 (email from Dale Stoffel to Nick Beadle,

William Felix, and Colonel David Styles with the subject line “missing brass” and attached

pictures of the brass); Pl.’s Ex. 26 (email from Colonel David Styles to Dale Stoffel, Nick Beadle,


2
 This exhibit was moved into evidence by defendants as a Wye Oak business record without objection by Wye Oak.
Tr. 12/18/18 AM 81:16–84:15.

                                                     11
and William Felix regarding the stolen brass); Tr. 12/18/18 AM 81:16–84:21 (David Stoffel

testifying the potential sale of the 70,000 tons of brass shell casings was never completed). While

Wye Oak claims MoD and Iraq were at fault for this theft, the evidence presented to the Court is

insufficient to establish this point.

        Nonetheless, Wye Oak continued to move ahead. Wye Oak worked with its sister company

CLI, and Wye Oak and CLI hired Iraqi laborers. Tr. 12/18/18 PM 64:17-64:19; Felix Dep. 20:15–

23:1, 80:22–81:3. On September 6, 2004, Secretary General Shaways wrote to Multi-National

Forces-Iraq Commanding General George Casey to inform him that “Wye Oak has begun the

initial assessment of equipment and is preparing to assemble the necessary personnel to inventory,

assess and remove Iraqi military equipment or scrap for sale or use by the Iraqi Ministry of

Defense.” Pl.’s Ex. 10. Shaways then requested access to Iraqi military bases under the U.S.

military and Coalition forces’ control because military equipment and scrap were located on those

bases. Id.

        On September 17, Dale Stoffel reached out to a Ukrainian company to invite specific

employees and affiliates to Iraq to assist Wye Oak in assessing, recovering, and refurbishing

military equipment for the IMERP. Pl.’s Ex. 11. Wye Oak offered to provide transportation from

Ukraine to Iraq and to arrange visas for these individuals. Id. Several witnesses testified Dale

Stoffel brought in a team from Ukraine to assist with the work. See, e.g., Tr. 12/19/18 AM 42:1–

9; Felix Dep. 102:24–104:06. While Dale Stoffel and individuals from CLI, Iraqi laborers, and

workers from Ukraine got started on identifying, assessing, and refurbishing military equipment

in Iraq, David Stoffel worked on the IMERP from the United States. David Stoffel oversaw all

information technology services for Wye Oak. Tr. 12/18/18 AM 31:7–32:1, 43:22–25, 44:11–20,

48:25–49:5.



                                                12
       By September 29, 2004, Wye Oak provided MNSTC-I project officer Colonel David Styles

an initial survey of equipment that had been reviewed thus far at Camp Normandy. Pl.’s Ex. 14.

This survey consisted of 745 units of military equipment, including various tanks, armored

personnel carriers, artillery, rocket launchers, anti-aircraft guns, and vehicles. Id. Even the

equipment marked “operational” still likely required at least some maintenance before it could be

put back into operation. Tr. 12/19/18 AM 12:14–20.

       The Iraqi government announced in October 2004 it would be standing up a mechanized

brigade of about 3,000 soldiers by early 2005. Pl.’s Ex. 16 at1. Iraqi Brigadier General Mahmoud

Bashar, the official selected to lead the new brigade, proudly proclaimed most of the tanks and

personnel carriers would come from Iraq. Id. These statements were reported in The Advisor, an

authorized publication of MNSTC-I. This publication was authenticated as a self-authenticating

official publication and newspaper under Federal Rules of Evidence 902(5) and 902(6). The Iraqi

government and General Bashar’s declarations were admitted into evidence as admissions by a

party-opponent—and therefore non-hearsay—under Federal Rule of Evidence 801(d)(2). Nicholas

Beadle testified Wye Oak was the one performing the work to refurbish the vehicles discussed in

The Advisor’s October 2004 issue that the Iraqi government and General Bashar boasted about.

Tr. 12/20/18 PM 57:5–21. Beadle declared, “Wye Oak were the only show in town. They were the

only ones who were performing refurbishment work of this sort.” Tr. 12/20/18 PM 57:5–21.

   E. Wye Oak and Zayna Sign a Limited Power of Attorney

       On September 28, 2004, Wye Oak granted Raymond Zayna, a Lebanese businessman in

charge of the General Investment Group, s.a.l. (GIG), a limited power of attorney to arrange

financing and bank guarantees on behalf of Wye Oak for its contract with MoD. Pl.’s Ex. 13. Wye

Oak made clear Zayna’s authority under this agreement was circumscribed. Wye Oak specified



                                               13
“GIG will provide financial services with respect to the IMERP Contract when and as requested

by Wye Oak.” Id. (emphasis added). The parties drastically differ on how Raymond Zayna came

to be involved with Wye Oak and MoD.

       Wye Oak insists Zayna was inserted by MoD, while defendants claim Wye Oak and Zayna

had a business relationship dating back to summer 2004. Neither side offers definitive evidence

on this point. Wye Oak bases its contention on several witnesses’ personal observation giving the

impression that Dale Stoffel and Raymond Zayna did not have any form of relationship. See, e.g.,

Tr. 12/17/18 PM 24:6–21 (Clements stated he did not believe any relationship existed between

Stoffel and Zayna based on his observations of their interactions during meetings); Tr. 12/17/18

PM 25:21–26:7 (Clements recalled a December 5, 20004 meeting in which discussions focused on

the fact Zayna was holding funds on behalf of MoD and needed MoD’s authorization to release

those funds to Wye Oak); Tr. 12/20/18 76:24–77:24 (Beadle saw Zayna in the MoD without Stoffel

or anyone from Wye Oak on occasions). On the other hand, defendants point to an email from

Dale Stoffel in November 2004 indicating GIG paid for Ukrainian expert’s travel to Iraq to help

assess and repair military equipment (likely as a result of Dale Stoffel’s September 17, 2004

invitation) to indicate Dale and Zayna had a preexisting relationship. Pl.’s Ex. 31, 2 (“$112,150.00

from Invoice #MUQ002 due to GIG for completed work for the transportation of Ukrainian

Experts to assess the repair/overhaul work.”). But David Stoffel did not recall ever hearing about

Zayna until September or October 2004. Tr. 12/18/18 AM 57:13–18. And William Felix repeatedly

stated he associated Zayna with MoD. Felix Dep. 141:7–16. It is unlikely David Stoffel and

William Felix, two important players among a small group of people that made up Wye Oak and

CLI, would either not have heard of Zayna or viewed him as an interloper to Wye Oak’s

arrangement with MoD if Wye Oak was indeed the party who inserted Zayna into this deal in the



                                                14
first place. This leads the Court to believe it is more likely than not that Zayna was inserted at the

behest of the MoD.

       This conclusion is even more likely given that Ziad Cattan, the Deputy Secretary General

of the MoD, was convicted for his role, along with Bruska Shaways and Sawsan Jasim, in

concluding a financial agreement with GIG, Zayna’s company, that violated Iraqi law and

intentionally caused harm. See 34/CR3/2011, ECF No. 430; 34/CR3/2011, ECF No. 438-1. This

conviction indicates these MoD officials conspired with Zayna to steal millions of dollars. The

Court is left with the distinct inference from this Iraqi Integrity Commission case that Zayna had

a relationship with these MoD officials and was more likely than not inserted by these officials

into the arrangement between Wye Oak and MoD.

   F. Wye Oak Presents Three Invoices to MoD

       In October 2004, Wye Oak submitted three pro forma invoices to MoD for work in relation

to the IMERP. On October 11, 2004, Wye Oak submitted two pro forma invoices for construction

at the Muqdadiya Armored Depot (Invoice #MUQ001) and Taji Facility (Invoice #TAJI001). Pl.’s

Ex. 18. These invoices covered the initial construction costs for armored vehicle repair facilities,

costs of purchasing tools and moving spare parts, the initial hiring and training of workers, and a

10% mobilization fee for construction efforts at Taji. Id. Further, these invoices included a 15%

overhead cost and 10% profit. Id. Invoice #MUQ001 was for $2,302,300 and Invoice #TAJI001

was for $5,945,500. Id. On October 18, 2004, Wye Oak submitted a third invoice, Invoice

#MUQ002, for vehicle recovery efforts at Muqdadiya. Id. at 3. This invoice covered travel,

lodging, and food for technical experts, materials to wash and paint vehicles, costs for skilled and

unskilled labor, and costs for the initial repair of 246 armored vehicles at both Muqdadiya and




                                                 15
Taji. Id. This invoice also included a 15% overhead cost and 10% profit. Id. It was for

$16,466,897.15. Id. In sum, these three invoices totaled $24,714,697.15.

   G. October 19, 2004 Meeting

       On October 19, 2004, a meeting was convened at MoD headquarters to ensure the IMERP

was progressing. The meeting consisted of Shaways, Beadle, Marr, Dale Stoffel, Zayna, Styles,

Ziad al-Cattan, and Jasim. Tr. 12/20/18 AM 13:21–14:19; Pl.’s Ex. 20, 6.

       Marr arrived at the MoD at about the same time as Dale Stoffel, and they waited together

for about an hour while Zayna met with the senior MoD officials in Shaways office. Tr. 12/20/18

AM 13:21–14:19. Beadle arrived shortly before Marr, Stoffel, and him entered Shaways office.

Id. And they were later joined by Colonel Styles. Id.

               1. MoD Approved Wye Oak’s Three Invoices

       During the meeting, the parties discussed Wye Oak’s three invoices and how they would

be financed. Tr. 12/20/18 PM 64:3–16. Ultimately, Marr testified that Shaways declared MoD

accepted the invoices. Tr. 12/20/18 AM 16:13–20. And Beadle further testified Shaways agreed

to pay the invoices to Dale Stoffel. Tr. 12/20/18 PM 65:23–66:4. This testimony regarding

Shaways’ ratification of the invoices and agreement to pay Dale Stoffel was admissible as non-

hearsay admissions by a party-opponent. Shaways was authorized to make such decisions for MoD

regarding all matters related to Wye Oak’s work under the BSA. See Pl.’s Ex. 6 (letter from

Shaways asserting he had full signatory authority on all matters with respect to the BSA, as

designated by the Iraqi Minister of Defense); Fed. R. Evid. 801(d)(2)(C). Further, Shaways was

an MoD employee speaking on a matter—work related to the IMERP—within the scope of his

relationship with MoD while he was employed by MoD. Fed. R. Evid. 801(d)(2)(D). The Court




                                                16
therefore concludes it is more likely than not MoD approved Wye Oak’s three invoices and agreed

to pay this money to Wye Oak’s president, Dale Stoffel.

               2. Wye Oak and MoD Effectuated the First Amendment to the BSA

       In addition to discussing and approving the three Wye Oak invoices, the parties at the

October 19 meeting took up an amendment to the BSA. Tr. 12/20/18 AM 18:5–18:20; Tr. 12/20/18

PM 63:7–17. The amendment, termed the “First Amendment,” was presented to the Court as Wye

Oak’s business record, but lacked any signature from either Shaways or Dale Stoffel. Tr. 12/18/18

AM 26:4–35:25; Pl.’s Ex. 19; Pl.’s Ex. 19.1.

       Defendants took issue with the unsigned amendment as initially presented to the Court

because defendants wanted to also admit the document’s metadata in addition to the document

itself. Tr. 12/18/18 PM 3:5–4:12. Wye Oak had no objection to the admission of the document’s

metadata. Tr. 12/18/18 PM 3:21–4:6. Metadata is data that describes and gives information about

other data. Here, the file’s metadata describes the file’s creation date, time saved, and who created,

edited, and saved the file. Pl.’s Ex. 19.1. The metadata showed William Felix last saved the

Microsoft Word document. Id. Indeed, David Stoffel testified this document was found on the

computer he had purchased for Felix. Tr. 12/18/18 PM 93:6–7. Further, the metadata showed the

document was created on October 25, 2004 at 3:26 a.m. and also last saved on October 25, 2004

at 3:26 a.m., with a total editing time of 6 minutes. Pl.’s Ex. 19.1. However, Marr and Beadle both

testified the First Amendment was brought up, and signed, during the October 19, 2004 meeting.

This raises a question as to whether the document presented to the Court was indeed the pertinent

document discussed at the October 19 meeting or whether it was created in the first instance on

October 25, after the meeting.




                                                 17
       Metadata can be misleading. For example, “if a Microsoft Word document is created on

one machine, and transferred to and saved to a second machine without being altered, the copy on

the second machine (erroneously) will show the date the document was saved to the second

machine as the date created.” The Sedona Principles, Third Edition: Best Practices,

Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf.

J. 1, 171 (2018). “There is . . . the real danger that information recorded by the computer as

application metadata may be inaccurate.” Id. at 211. This is a significant note of caution regarding

the utility of metadata in determining a document’s true creation date.

       Ultimately, the Court finds it is more likely than not that the First Amendment presented

to the Court during trial, Pl.’s Ex. 19, was a copy of the document discussed during the October

19 meeting. Marr and Beadle both testified during the trial this amendment was discussed by the

parties at the meeting. Tr. 12/20/18 AM 18:5–6 (“I saw a document, the document looked like

[Pl.’s Ex. 19].”); Tr. 12/20/18 PM 63:7 (“Well, they discussed this amendment, first of all.”). The

Court found Marr and Beadle to both be extremely credible witnesses, who participated in the

October 19 meeting. Their testimony, which corroborates one another, when weighed against the

inherent potential misimpressions metadata can produce, leads the Court to conclude the

preponderance of the evidence establishes this document was the same document the parties dealt

with at the October 19, 2004 meeting.

        The Court must next decide whether this First Amendment was actually signed by

Shaways and Dale Stoffel. Both Marr and Beadle testified they personally saw Shaways and Dale

Stoffel sign the document. Referring to the First Amendment, Marr asserted “I saw Bruska

Shaways sign it and Dale Stoffel sign it.” Tr. 12/20/18 AM 18:9–10. Beadle also responded in the

affirmative when he was specifically asked by Wye Oak’s counsel whether he saw Bruska



                                                18
Shaways sign the First Amendment and whether he saw Dale Stoffel sign the First Amendment.

Tr. 12/20/18 PM 63:12–17. While defendants contend these statements are hearsay that cannot be

admitted to establish the First Amendment was signed and effectuated as a valid amendment to

the BSA, the testimony about Shaways and Stoffel’s signatures is admissible.

       First, signatures are written assertions and nonverbal conduct intended as assertions, which

makes them statements under Federal Rule of Evidence 801(a). Shaways signature is certainly not

hearsay, as it constitutes an admission by a party-opponent under Rule 801(d)(2). Shaways was

authorized to make decisions for the MoD regarding all matters related to Wye Oak’s work under

the BSA. See Pl.’s Ex. 6 (letter from Shaways asserting he had full signatory authority on all

matters with respect to the BSA, as designated by the Iraqi Minister of Defense). So Shaways was

authorized to amend the BSA. Accordingly, his signature was a statement made by an individual

authorized to make a statement on the subject that is now being offered against the defendants. See

Fed. R. Evid. 801(d)(2)(C). Shaways was also an MoD employee making a statement on a matter—

the BSA—within the scope of his relationship with MoD while that relationship existed. See Fed.

R. Evid. 801(d)(2)(C).

       Further, Shaways and Stoffel’s signatures constitute verbal acts where the legal effects of

the statements flow just by virtue of the fact they were made. In other words, the significance of

these signatures lies solely in the fact they were made. Testimony about the fact the signatures

occurred was not offered to prove the truth of anything asserted. Accordingly, these signatures are

not hearsay. See Fed. R. Evid. 801(c) adv. comm. note (“If the significance of an offered statement

lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and

the statement is not hearsay.”); Mueller v. Abdnor, 972 F.2d 931, 937 (8th Cir. 1992) (finding

communications relevant to making a contract, such as conversations and letters, are not hearsay



                                                 19
because such “verbal acts” are not assertions and are not offered to prove the truth of the matter);

2 McCormick on Evidence § 249 (7th ed. 2016) (“[P]roof of oral utterances by the parties in a

contract suit constituting the offer and acceptance which brought the contract into being are not

evidence of assertions offered testimonially but rather verbal conduct to which the law attaches

duties and liabilities.”); see also Preferred Properties, Inc. v. Indian River Estates, Inc., 276 F.3d

790, 799 n.5 (6th Cir. 2002); Stuart v. UNUM Life Ins. Co. of Am., 217 F.3d 1145, 1154 (9th Cir.

2000). The credible testimony from Marr and Beadle regarding Shaways and Stoffel signing the

First Amendment sufficiently demonstrates it is more likely than not both parties signed the First

Amendment and therefore validly amended the BSA.3

        This amendment attempted to clarify the BSA. The First Amendment altered the definition

of “military refurbishment services” to read:

        any services sold, performed for, or provided with respect to any Refurbished
        Military Equipment that is either retained by the Ministry or sold or otherwise
        provided to Customers by the Ministry, including, but not limited to, the inspection
        of the Military Equipment prior to performing any Military Refurbishment Services
        to make a value assessment and a refurbishing assessment for such Military
        Equipment, including but not limited to, construction of facilities, bases, billeting,
        service/repair depots, repair factories/facilities.

Pl.’s Ex. 19; Pl.’s Ex. 19.1. Wye Oak’s role as the sole and exclusive broker for providing military

refurbishment services was altered such that Wye Oak was now appointed for:

        the provision of Military Refurbishment Services with respect to all of the various
        military bases, offices and properties owned by, or under the control of, the
        Ministry and/or the Republic of Iraq, wherever such bases, offices and property
        maybe [sic] located and all the related military equipment located thereon or
        otherwise owned by the Ministry and/or the Republic of Iraq, including but not
        limited to, construction of facilities, bases, billeting, service/repair depots, repair
        factories/facilities.



3
  Beadle’s testimony was especially convincing. He was the Coalition’s senior advisor to the MoD at this time. Tr.
12/18/18 PM 26:20–24. Beadle had significant insight into MoD’s operations and closely worked with the MoD
figures involved in this contract. And Beadle demonstrated his impartiality throughout his testimony.

                                                       20
Pl.’s Ex. 19; Pl.’s Ex. 19.1. And one of the compensation terms in the BSA was altered such that:

       The Ministry shall pay [Wye Oak] a commission of minimum of ten percent (10%)
       based on the Contract Value set out in each Sales Contract entered into by the
       Ministry, pursuant to this Agreement. With respect to Refurbished Military
       Equipment and Military Refurbishment Services, the Ministry will pay [Wye Oak]
       ten percent (10%) of such Military Refurbishment Services and equipment’s
       refurbishment cost.

Pl.’s Ex. 19; Pl.’s Ex. 19.1.

   H. MoD and GIG Sign the Contract of Financial Agreement

       Defendants contend the parties at the October 19, 2004 meeting also discussed a financial

plan that ultimately resulted in the Contract of Financial Agreement (CFA) between MoD and

GIG. Under the CFA, GIG committed to finance the IMERP program MoD had contracted with

Wye Oak to carry out. Pl.’s Ex. 21. Defendants’ allegation that this arrangement was discussed

during the October 19 meeting is solely based on the fact the memorandum Marr signed (but did

not write) commemorating the meeting states that Shaways approved the three invoices and “the

financial plan,” which defendants claim refers to the CFA. See Pl.’s Ex. 20; Tr. 12/20/18 AM 25:8–

26:3. Defendants proceed to argue there is no evidence Dale Stoffel objected to the payment plan

set forth in the CFA despite being present when it was allegedly discussed and agreed upon during

the October 19 meeting. Defs.’ Proposed Findings of Fact & Conclusions of Law 16, ECF No.

431-1 [hereinafter ECF No. 431]. Defendants contend Wye Oak, through Dale Stoffel, had a legal

obligation under Iraqi law to express disagreement with the CFA’s payment plan under Article

81(1) of the Iraqi Civil Code. Article 81(1) provides: “No statement will be attributed to a silent

person but silence in the course of need for expression will be deemed to be an acceptance.” Pl.’s

Ex. 97. Defendants conclude Wye Oak’s failure to object to the CFA at the October 19 meeting or

at any time prior to Zayna being paid, as discussed in the following section, means Wye Oak

consented to such payment arrangement. ECF No. 431-1, at 45–46.

                                                21
       However, Marr robustly refuted this characterization of events when he testified during

trial. Marr testified he understood the term “financial plan” in the memorandum he signed to be

referring to the First Amendment. Tr. 12/20/18 AM 26:10–15. Indeed, Marr stated “[t]here was no

discussion of a financial plan that has been documented elsewhere in the exhibits,” referring to the

CFA, and the only financial plan he reviewed during the October 19 meeting was the First

Amendment. Tr. 12/20/18 AM 26:10–23. In addition, Beadle testified he never saw the CFA

before it was presented to him as an exhibit at trial. Tr. 12/20/18 PM 78:19–24. And Beadle

recalled the “financial plan” approved at the October 19 meeting referred to in Marr’s

memorandum was a plan “for the refurbishment program and the establishment of the facilities . .

. It was largely -- the conversation started on the basis of those -- of the second invoice, which

showed a proportion of what -- a much larger bill, and that bill was the financial plan.” Tr. 12/20/18

PM 67:4–12. Based on this testimony thoroughly rebutting the tenuous (at best) evidence put

forward by defendants, the Court concludes the CFA was not discussed during the October 19

meeting. This means no inference can be drawn that Dale Stoffel was ever even aware of—let

alone consented to—the CFA.

       Thus, without any input from Wye Oak, MoD and GIG concluded and signed the CFA on

October 24, 2004. The CFA declared MoD had “signed contract [sic] with Wye Oak Technology

Inc. to implement the program of rehabilitation and repair of military equipment” and GIG had

“committed to funding this program of (Wye Oak Technology Inc.).” Pl.’s Ex. 21. The CFA stated

that “[MoD] gives to [GIG] several payments under the bank guarantees as far as the amount of

such payments for purposes of implementation of the contract,” and “[GIG] submits cost invoices

to the [MoD], so as to enable [GIG] of the resolve the invoices from the amount of the bank

guarantee provided for the [MoD].” Id. Despite focusing on Wye Oak and the IMERP, the Court



                                                 22
concludes the CFA did not legitimately implicate the BSA, as the evidence establishes the CFA

was not agreed to—let alone signed—by Wye Oak and therefore did not meet the requirements set

forth in the BSA’s modification clause. See Pl.’s Ex. 5 (“This Agreement shall not be amended or

supplemented except in writing, signed by both parties.”).

         Further, following trial, this Court was presented with evidence—for the first time—that

MoD officials were convicted for violating Iraqi law and intentionally causing harm based on their

conclusion of a financial agreement with GIG, which the Court concludes more likely than not

refers to the CFA. After a decade of litigation and months after this trial concluded, defendants

produced a summary of the criminal conviction of Ziad Cattan along with Bruska Shaways and

Sawsan Jasim. 34/CR3/2011, ECF No. 430. The summary states:

         In 2004, convicted fugitive Ziyad Tariq Abdallah Al Qattan, when he was working
         as the Deputy Secretary-General at the Ministry of Defense, in conjunction with the
         defendants Bruska Nouri Sadeeq and Sawsan Jasim Mohamed when they were
         working at the Ministry of Defense, concluded a financial agreement with the
         General Investment Group (GIG) Company to finance a Ukrainian company tasked
         with the rehabilitation of tanks for the Ministry. Failure to follow the legal
         procedures for contracting caused intentional harm to the state assets and to the
         interest of the entity for which he was working. An amount of four million dollars
         was paid for the maintenance of tanks type (T72). There was a second payment
         valued at (twenty-four million and seven hundred fourteen thousand and six
         hundred ninety-seven dollars and fifteen cents) for the maintenance of tanks type
         (T55). . . . He was convicted by the Al Rasafa Criminal Court, the specialist in
         integrity cases, and he was sentenced in absentia to seven years in prison, pursuant
         to article (340) of the Criminal Penalties Code, on 24/3/2011 in case number
         (34/CR3/2011).

34/CR3/2011, ECF No. 438-1.4 The second payment cited in the conviction summary matches the

exact amount owed to Wye Oak for the three invoices but paid to Zayna instead, as discussed

below. And the summary appears to be referring to the CFA, as this was an agreement constituted


4
 Article 340 of the Iraqi Criminal Penalties Code states: “Any public official or agent who willfully inflicts damage
on the property or interests of the authority for which he works or to which he is associated by virtue of his position
or on another’s property that has been entrusted to him is punishable by a term of imprisonment not exceeding 7 years
or by detention.” ECF No. 438-2.

                                                          23
between MoD and GIG in 2004 relating to the IMERP, which included the rehabilitation,

refurbishment, and maintenance of tanks. This strongly indicates the CFA was a fraudulent scheme

between these MoD officials and Zayna to steal millions of dollars.

    I. MoD Paid Zayna Instead of Wye Oak

        Following the CFA, MoD proceeded to pay Zayna for the invoiced amounts in three checks

mirroring the three Wye Oak invoices, despite the fact Wye Oak was not a party to the CFA. On

October 25, 2004, MoD paid three checks to Zayna. The first check was for $5,945,500, the second

check was for $2,302,300, and the third check was for $16,466,897. Pl.’s Ex. 22 at 4. These

amounts matched the totals of Invoice #TAJI001, Invoice #MUQ001, and Invoice #MUQ002,

respectively, minus 15 cents.5 Compare id., with Pl.’s Ex. 18. This leads the Court to conclude

these checks were payments for Wye Oak’s three invoices, which MoD approved and had agreed

to pay to Dale Stoffel at the October 19, 2004 meeting.

        Although Felix testified Dale Stoffel was aware MoD released the money to Zayna and

conveyed this to him, Felix Dep. 163:4–164:20, there is no evidence to indicate Wye Oak directed

MoD to release the funds in this manner or concurred with this action. Cf. Pl.’s Ex. 5 (“All payment

to be made to [Wye Oak] under this Agreement shall be made in United States Dollars in the form

and manner directed as by [Wye Oak].”). As discussed, Wye Oak was not a signatory to the CFA

so this agreement did not modify the BSA. And under the limited power of attorney granted by

Wye Oak to Zayna, GIG was only supposed to provide financial services “when and as requested

by Wye Oak,” yet there is no evidence to suggest Wye Oak ever made such a request. Accordingly,

the Court concludes these payments to Zayna—not Wye Oak—constituted a material breach of

the BSA by MoD.


5
  Invoice #MUQ002 was for $16,466,897.15, whereas the third check to Zayna was for $16,466,897.00. The other
two checks from MoD to Zayna matched Invoice #TAJI001 and Invoice #MUQ001 exactly.

                                                    24
    J. Wye Oak Continued to Perform until Nonpayment Became a Serious Impediment

                1. Wye Oak Performed Work in Iraq

        Nonetheless, Wye Oak continued to perform activities as part of the IMERP. At trial, Major

Todd Neal testified he observed Wye Oak working on the IMERP when he was tasked with leading

the effort to refurbish vehicles to operational condition to be provided to the Iraqi military. Neal

remembered that Dale and Ukrainian experts inspected warehouses at Taji and assessed military

equipment. Tr. 12/19/18 AM 42:1–9; see Pl.’s Ex. 64. Dale Stoffel worked on the equipment

alongside others at Muqdadiya and Taji, or had laborers working at those installments. Tr. 12/19/18

AM 42:12–43:4. Dale Stoffel brought Iraqi mechanics to these installations to have them perform

work under the IMERP. Tr. 12/19/18 PM 59:2–10. Neal specifically recalled Dale Stoffel

providing instructions for these workers and paying them for their work. Tr. 12/19/18 PM 59:2–

10, 60:4–6. When asked whether he had knowledge of GIG hiring a workforce at Taji and

Muqdadiya for the IMERP, Neal unequivocally responded GIG did not employ such a workforce.

Tr. 12/19/18 PM 63:22–64:3. Neal reiterated the workers he interacted with were employed by

Dale Stoffel, not anyone else. Tr. 12/19/18 PM 63:22–64:3. And based on his recollection, Neal

estimated Wye Oak had between 12 and more than 20 people working at Muqdadiya and between

12 to 15 people working on armored vehicles alone at Taji. Tr. 12/19/18 AM 27:11–28:5.

        As further evidence of Wye Oak’s work, on October 23, 3004, Major John Petkosek wrote

Colonel Styles, copying Dale Stoffel on the email, to report that “Dale and his team have been here

[Muqdadiya] for a few days and they are doing great work. They have been working on the vehicles

for several days now.” Pl.’s Ex. 50.6 Major Petkosek even attached a photograph—one of many

admitted into evidence—of Wye Oak’s team working on military vehicles. Id.


6
 This exhibit was admitted as a business record of Wye Oak’s without objection. Tr. 12/18/18 AM 33:23–24; Tr.
12/18/18 PM 3:1–5:5.

                                                     25
         In addition, Beadle recalled that Wye Oak was making progress and General Petraeus

shared his pleasure with Wye Oak’s labor. Tr. 12/20/18 PM 70:2–5; Petraeus Dep. at 40:12–16,

41:2–7. Petraeus avowed Wye Oak had “ [a] lot of wrench-turners, as we used to say, and they

were cranking out refurbished vehicles pretty expeditiously . . . what I saw was a lot of elbows and

other parts of the body, as we used to say, actively turning wrenches, fixing equipment, repairing

parts, replacing parts, and all the rest of this. Again, it was quite a beehive of activity up there.”

Petraeus Dep. 40:12–16, 41:2–7.

         Finally, plaintiff cites another article from The Advisor, published on November 27, 2004,

authenticated as a self-authenticating official publication and newspaper under Federal Rules of

Evidence 902(5) and 902(6), to support the notion Wye Oak continued to perform into November

2004. See Pl.’s Ex. 29. In this article, the Iraqi 1st Mechanized Brigade Commander states the

brigade represents the core of what could potentially be an expanded Iraqi force and could grow

into a full division. Id. Although this assertion by an Iraqi MoD official was obviously an out-of-

court statement, it is not hearsay and is admissible into evidence. The statement is not offered to

prove the truth of the matter asserted—that the brigade could potentially lead to an expanded Iraqi

force; rather, the statement is solely offered to show a brigade was actually being developed at this

time.7 Therefore, this falls outside the rule against hearsay. The Iraqi MoD official’s statement is

further acknowledgement that a brigade was being produced as part of the IMERP. This coincides

with multiple pieces of evidence discussed above pointing to Wye Oak being the one conducting

this IMERP work.

         And Wye Oak was aided in its work by its informal partnership with CLI. Although Wye

Oak never had a formal, signed subcontract agreement between it and CLI, CLI worked with Wye


7
 Even if this assertion was offered to prove the truth of the matter asserted, it would still be admissible as an admission
by a party-opponent under Rule 801(d)(2). Fed. R. Evid. 801(d)(2).

                                                           26
Oak on the IMERP. Tr. 12/18/18 AM 53:8–25; Felix Dep. 42:14–44:21. David Stoffel recalled

Wye Oak prepared a formal subcontract agreement for CLI, but the parties never went ahead with

officially consummating that agreement because Wye Oak was waiting payment for the three

invoices so it could use that money to pay its subcontractor. Tr. 12/18/18 AM 53:8–25. Wye Oak

did not want to sign the agreement with CLI unless it actually had the money to pay CLI under

that agreement. Tr. 12/18/18 AM 53:8–25. Nonetheless, William Felix testified the two companies

had a verbal agreement. Felix Dep. 42:22–45:16. CLI employees, such as Kenny Kelzer and Joe

Wemple, worked with Wye Oak on the IMERP due to the close relationship between these two

companies. Tr. 12/19/18 AM 43:1–4; Tr. 12/18/18 PM 8:1–4, 50:21–25; Felix Dep. 6:16–7:24,

42:14–45:16, 114:1–115:11.

              2. Wye Oak Performed Work in the United States

       While Dale Stoffel and others on Wye Oak’s team performed in Iraq, David Stoffel

supported the group from the U.S. David Stoffel focused on writing a computer program that could

ultimately be used to inventory and track all the equipment Wye Oak was refurbishing and would

potentially broker for sales. Tr. 12/18/18 AM 38:11–41:17; Pl.’s Ex. 65. Dale Stoffel would send

David Stoffel information regarding the equipment and how far along pieces of equipment were

in the refurbishment and scrapping process. Tr. 12/18/18 AM 38:11–41:17; Pl.’s Ex. 65. David

used this information to build the computer program to aid the company in its IMERP work.

       David Stoffel also purchased computer equipment and materials, such as software, for the

business in the U.S. Tr. 12/18/18 AM 44:5–19. He oversaw all electronic communications, in part

to ensure Wye Oak’s leadership was aware of all messages they received, as the team traveled

frequently and maintaining e-mail communications and Internet connection could be challenging

at times in Iraq during this period. Tr. 12/18/18 AM 44:5–19. In addition to these duties, David



                                              27
Stoffel maintained regular communication with the Wye Oak members in Iraq to see what they

needed him to work on. Tr. 12/18/18 AM 50:1–24.

                  3. Nonpayment Eventually Became a Significant Impediment to Wye Oak’s Work

         Eventually, the nonpayment of Wye Oak’s three invoices to Wye Oak created a significant

impediment to their continued IMEPR work. Frustrated by not receiving payment, Dale Stoffel

returned to the U.S. in November 2004. Tr. 12/18/18 AM 60:18–20. Yet, his brother, David,

observed him continuing to work on the Wye Oak venture focused on the IMERP even when he

was back in the United States during this time. Tr. 12/18/18 AM 60:18–61:15. David and Dale

Stoffel reached out to American officials, including senators and Secretary of Defense Donald

Rumsfeld, during this period to notify them about the significant hurdles to accomplishing the

IMERP’s goal. Tr. 12/18/18 AM 59:17–60:20. In late November, Dale Stoffel and Bob Irey, a

member of CLI, met with then-Senator Rick Santorum’s staff regarding the lack of payment to

Wye Oak for work it performed under the IMERP initiative. Pl.’s Ex. 60, 6.8 Wye Oak and CLI

representatives also met with then-Deputy Under Secretary for International Technology Security

John Shaw to discuss this issue. Id.

         On November 25, 2004, Dale Stoffel emailed Zayna to stress the necessity of GIG releasing

the funds for the work being conducted under the IMERP. Pl.’s Ex. 31.9 Stoffel conveyed officials

had become concerned over delays in the IMERP and he wanted the funds to be released to prevent

any future delays. Id.10 However, Zayna refuted Stoffel’s characterization of events—claiming



8
  This document was admitted into evidence under the public records exception to the rule against hearsay. Fed. R.
Evid. 803(8). The documents in this exhibit were released pursuant to the Freedom of Information Act (FOIA) by the
U.S. Department of State. They are records of a public office setting out that office’s activities and therefore fall under
the public records exception. Id.
9
  This email was admitted as evidence without objection as a business record of Wye Oak’s. Tr. 12/18/18 AM 33:23–
24; Tr. 12/18/2018 PM 3:1–5:5.
10
   Dale instructed Zayna to transfer money owed to Wye Oak to Wye Oak’s bank account at national City Bank of
Pennsylvania in Monongahela, Pennsylvania. Pl.’s Ex. 31.

                                                           28
GIG was a partner in the project and was paying for everything. Pls.’ Ex. 33.11 And Zayna urged

Dale Stoffel to return to Iraq to sort through these financial issues. Id.

        Finally, Brigadier David Clements set up a call with Stoffel at the end of November to try

to convince Stoffel to return to Iraq. Tr. 12/17/18 PM 17:7–18:9. The IMERP was a critical

program and those involved needed to figure out a way to get the program moving forward once

again. Ultimately, at the end of the call between Stoffel and Clements, Stoffel agreed to return to

Iraq. Id.

     K. December 5, 2004 Meeting

        Brigadier Clements’s staff convened a meeting at MoD headquarters on December 5, 2004

to remedy the problem that had arisen with the IMERP. Tr. 12/17/18 PM 18:10–13. Dale Stoffel

attended the meeting on behalf of Wye Oak; Ziad Cattan, Bruska Shaways, Michal al-Sarraf, and

others attended on behalf of MoD; Clements, Beadle, Styles, Marr, and others attended on behalf

of the Coalition; and Zayna also attended. Tr. 12/17/18 PM 19:4–20:11; Tr. 12/20/18 AM 33:3–

14; Tr. 12/20/18 PM 71:17–72:16.

        Clements, Marr, and Beadle each testified at trial regarding their recollection of what

transpired at this meeting. The conversation focused on why Wye Oak had not been paid. Clements

asked the Iraqi officials to respond to the allegation Wye Oak had not been paid despite submitting

the invoices and doing the work under the IMERP:

                [Brig. Clements]: Ziad Cattan spoke first. And in what can only be
        described as a display of some bluster, started off by saying: Well, the work hasn’t
        been done, and there are problems with the work and that’s why the invoices hadn’t
        been paid.
                I tried to pin him down to say precisely what had not been done or what
        work was unsatisfactory. He was unable to give any concrete examples of this, and
        became increasingly agitated as he was trying to describe things that he didn’t have
        the facts for.

11
  This email was admitted as evidence without objection as a business record of Wye Oak’s. Tr. 12/18/18 AM 33:23–
24; Tr. 12/18/2018 PM 3:1–5:5.

                                                       29
              He was interrupted, at some point, by Bruska Shaways, who said: Well,
      actually, the real issue is, we cannot pay the invoices because the money to pay the
      invoices is being held by this gentleman. And he pointed to the person who hadn’t
      been introduced to me at the start of the meeting. And he explained that this was
      somebody who I later learned was Mr. Zayna, who was some form of intermediary
      holding the funds in Beirut, Lebanon. And that was the first I or, indeed, any of my
      staff who briefed me on the contractual arrangements had heard of the funding
      arrangements for IMERP.
              [Plaintiff’s Counsel]: So you learned that the funds actually had been paid
      but had been paid to a Mr. Zayna, and those funds were in Lebanon, correct?
              [Brig. Clements]: That’s what I was told, yes.
              [Plaintiff’s Counsel]: All right. Did you then make inquiry of the MOD as
      to how they could get those funds paid to Wye Oak?
              [Brig. Clements]: I think I made the inquiry of Mr. Zayna to say: Well, are
      you going to pay this money to Wye Oak and to Mr. Stoffel?
              Bruska Shaways had explained to me that this somewhat unusual
      arrangement was necessary as a means of transferring money from Baghdad,
      because the banking system was not working after the invasion and in the difficult
      circumstances at the time. So I said: Okay. But let’s talk about this. And I asked
      Zayna, directly what he needed to pay the money to Wye Oak. And he explained
      that he could not pay that money without the authorization of the Iraqi MOD.
              I went back to the Iraqi MOD and I said: Can you give Mr. Zayna the
      authorization to pay the monies to Wye Oak? And despite the earlier bluster from
      Mr. Cattan, both he and Mr. Shaways agreed that, yes, they could give that direction
      to Mr. Zayna, and that they would tell him to pay the money to Wye Oak.
              I asked Zayna if he was happy with what the Iraqi MOD would tell him; he
      said he was. And I asked Mr. Stoffel if he was happy with what the Iraqis and Mr.
      Zayna had said, and Mr. Stoffel said that, yes, he was satisfied with that.

Tr. 12/17/18 PM 20:12–22:25 (emphasis added). Marr and Beadle each recounted substantially

similar versions of what transpired at the December 5 meeting. Each recalled that Cattan or

Shaways initially objected to paying Wye Oak, but eventually agreed the money should be

released, through Zayna, to Wye Oak. Tr. 12/20/18 AM 33:15–34:25, 35:9–25, 36:14-37:1; Tr.

12/20/18 PM 72:17–73:21; 73:22–74:9.

      The statements by Cattan, Shaways, and Zayna were all admissible as admissions by party-

opponents—and therefore non-hearsay—under Federal Rule of Evidence 801(d)(2). Cattan and

Shaways were authorized by the MoD to make statements regarding the BSA and IMERP, and

were both MoD officials making statements on a matter—the BSA—within the scope of their

                                              30
relationships with MoD while that relationship existed. See Fed. R. Evid. 801(d)(2)(C)–(D). Also,

Zayna was MoD’s agent, as MoD had paid Zayna the money for the invoices and Zayna was being

used as an intermediary by MoD to pay Wye Oak. Thus, Zayna’s statements constituted assertions

made by MoD’s agent on a matter—the payments under the BSA for the three invoices—within

the scope of that relationship while it existed. Fed. R. Evid. 801(d)(2)(C).

       Ultimately, the largely parallel testimony offered by Clements, Marr, and Beadle—three

highly credible witnesses who were present for the December 5 meeting—establishes by a

preponderance of the evidence MoD agreed to provide authorization for the release of the funds

by Zayna to Wye Oak to pay for the three invoices. The Coalition officials and Dale Stoffel

believed they had finally solved this critical issue and the IMERP program could proceed. See,

e.g., Tr. 12/17/18 PM 24:23–25:20; Tr. 12/20/18 AM 36:23–37:1; Pl.’s Ex. 40.

   L. Wye Oak Goes Back to Work, But Dale Stoffel is Murdered

       Several days after the meeting, on December 8, Clements toured Taji with Dale Stoffel to

review Wye Oak’s work. Tr. 12/17/18 PM 26:8–25; see Pl.’s Ex. 59 (pictures from Clements’s

December 8 tour of Wye Oak’s activities at Taji). Clements observed a “vast area of armored

vehicles and other equipment in various states of repair,” and specifically focused on numerous

vehicles that were in decent condition and were selected to be refurbished next. Tr. 12/17/18 PM

28:13–24, 30:7–23; Pl.’s Ex. 59 at 4 (a picture of Clements, Stoffel, General Bashar (the Iraqi

Mechanized brigade Commander), and others standing in front of one of the tanks deemed suitable

for the refurbishment effort). Wye Oak and MNSTC-I personnel set up a triage process to

determine what vehicles were most suitable for refurbishment. Tr. 12/17/18 PM 34:15–35:1. The

IMERP appeared ready to once again move forward.




                                                 31
        But tragedy struck. Dale Stoffel left Taji with his interpreter and Joe Wemple, who was the

construction manager working with Dale on the IMERP, to travel to Baghdad to arrange for

funding to be released later in the day on December 8. Tr. 12/18/18 PM 5:3–6:11; Pl.’s Ex. 42;

Defs.’ Ex. 40. Their car was attacked and Dale Stoffel and Joe Wemple were brutally murdered.

Pl.’s Ex. 42. Dale Stoffel and Joe Wemple were shot multiple times and killed, and their car was

shot up. Id. It remains unknown what happened to the translator traveling with them. Although a

terrorist group claimed responsibility for their murders, numerous witnesses speculated this

terrorist group was just a cover-up and Zayna and Cattan were actually responsible for their

killings.12 Tr. 12/18/18 AM 70:7–72:2; Tr. 12/19/18 PM 6:20–7:18; Tr. 12/20/18 PM 16:8–18:16,

20:9–24.

        Wye Oak’s work, led by Dale Stoffel, had already made a significant impact. Indeed,

General Petraeus credited Dale Stoffel for refurbishing a significant number of armored vehicles

and tanks in his letter to Dale Stoffel’s wife, Barbara Stoffel, after his murder. On December 15,

2004, General Petraeus wrote:

        While there is nothing I can say to minimize your grief, I hope that in time you will
        take comfort in knowing that Dale made a direct and lasting contribution to our
        efforts to create capable and effective Iraq security forces. Only months ago the
        Iraqi Armed Forces had no mechanized force; now, there are already many
        operational tanks and armored vehicles, and Iraq is on track to have a battalion’s
        worth of soldiers trained and equipped prior to January’s elections. None of this
        would have been possible without your husband’s visionary leadership, relentless
        drive, and complete dedication. An irreplaceable member of our team, he will be
        sorely missed by all who knew him.

Petraeus Dep. 26:23–30:3; Pl.’s Ex. 43.




 The Court is unable to make a definitive assessment of who was responsible for Dale Stoffel and Joe Wemple’s
12

murders based solely on the testimony elicited during trial.

                                                     32
   M. Wye Oak Produced Armored Vehicles in Time for the January 2005 Elections, But
      Eventually Ceased to Perform Work in Iraq Because It was Never Paid

       Nonetheless, Wye Oak did not immediately abandon the IMERP after Dale’s death and

actually exceeded the goal of producing a mechanized brigade of operational armored vehicles for

Iraq’s January 2005 parliamentary election.

       William Felix took over as Wye Oak’s CEO and President following Dale’s death. Felix

Dep. 200:8–15. And Wye Oak and CLI’s American personnel either returned to the U.S. or stayed

in the U.S. rather than travel back to Iraq. Felix Dep. 48:24–49:7. Yet Wye Oak did not abandon

the IMERP. They relied on their local contractors to move forward. Tr. 12/18/18 AM 72:15–23.

David Stoffel specifically testified Ahmet Ersavci, a Turkish businessman, continued working with

Wye Oak through 2005. Tr. 12/18/18 PM 7:14–19. And Major Neal, who was charged with

overseeing the work on behalf of the U.S. military to ensure the IMERP progressed, testified the

same personnel continued to conduct work at Muqdadiya and Taji even after Dale’s death as had

been working on the IMERP for Wye Oak prior to Dale’s murder. Tr. 12/19/18 AM 24:18–25:8.

In particular, Neal recalled that an individual named Karem, Wye Oak’s Iraqi supervisor and

foreman at Muqdadiya who Dale hired, was in charge of Wye Oak’s labor force in Iraq after Dale’s

death. Tr. 12/19/18 PM 65:3–21; Pl.’s Ex. 44. And Neal provided instructions to Karem during

this period, essentially becoming a project manager as they worked to accomplish the IMERP

mission. Tr. 12/19/18 PM 65:3–21. Neal testified Zayna stepped in after Dale’s death to pay the

workers, but he never actually saw Zayna provide payment to the workers. Tr. 12/19/18 AM

21:12–23:20. And Beadle adamantly stated Zayna and GIG did not do any work in connection

with refurbishing military equipment, bases, or facilities while Beadle was in Iraq, which was until

March 2005. Tr. 12/21/18 AM 12:11–22; 17:11–17.




                                                33
        By December 17, 2004, Wye Oak’s team, under Karem and Neal’s leadership, had 26 tanks

running and an MTLB (a Soviet multi-purpose armored vehicle) and seven troop carriers ready to

move from Muqdadiya to Taji. Pl.’s Ex. 44 at 1. Neal also projected they would have another 20

vehicles, mostly tanks, ready the following week. Id. Wye Oak’s work was on display during Iraq’s

January 5, 2005 Army Day parade to Iraqi Prime Minister Ayad Allawi. Iraqi tanks and armored

vehicles all flying the Iraqi flag were featured in this parade. Petraeus Dep. 21:3–22:9. General

Petraeus and Beadle both testified the tanks and armored vehicles on display during the Army Day

parade were the result of Wye Oak’s refurbishment efforts. Tr. 12/21/18 AM 1:11–12:22; Petraeus

Dep. 39:2–40:16.

        And by January 15, 2005, the Iraqi 1st Mechanized Brigade was fully operational and ready

to assume its mission. In an article in The Advisor, Iraqi Staff Brigadier General Kasim Jasim

Nazal declared “[t]he brigade is at the Ministry to protect it and all the election centers . . . We are

also going to keep Baghdad secure and protect the main gates of the city; the brigade will be very

visible on election day.” Pl.’s Ex. 47 at 3.13 Neal testified Wye Oak exceeded the goal of producing

a battalion of hard-skinned vehicles and tanks to have in Baghdad for the January 30, 2005 election.

Tr. 12/19/18 AM 25:9–25, 26:6–14. It was very important to have Iraqi forces providing security

for the first Iraqi elections since the fall of Saddam Hussein. Tr. PM 12/17/18, 36:1–10. “The

original mandate was to provide one battalion of armored vehicles. At the elections we had

provided two and a half battalions of armored vehicles, almost the entire brigade complement.”

Tr. 12/19/18 AM 25:9–25, 26:6–14; see Pl.’s Ex. 64 at 63 (a picture of U.S. and Iraqi forces with

tanks at a checkpoint in Baghdad as the Coalition delivered the vehicles to Baghdad for the


13
  This statement was admissible as an admission by a party-opponent under Rule 801(d)(2). Fed. R. Evid. 801(d)(2).
Iraqi Staff Brigadier General Nazal was an Iraqi MoD official authorized to make statements about the mechanized
brigade he was tasked with leading and was an employee making a statement on a matter within the scope of his
employment relationship while it lasted.

                                                       34
election); Tr. 12/19/18 AM 46:20–47:4. And Neal asserted: “Wye Oak’s people refurbished [those

vehicles].” Tr. 12/19/18 AM 25:9–25, 26:6–14.

        But eventually, the lack of funding caused Wye Oak to cease operations in Iraq sometime

after the January 2005 election.14

     N. Iraq Prohibits Scrap Sales

        Finally, while Wye Oak worked to provide armored vehicles in time for the January 2005

election, the Council of Ministers issued a decision to prohibit scrap sales to private parties. Defs.’

Ex. 58. On December 28, 2004, the General Secretary of the Council of Ministers sent a letter

addressed to all ministries stating scrap materials were proscribed from being sold to merchants or

any private sector entities. Id. Further, the letter required ministries to deliver extra scrap to the

state-owned companies belonging to the Ministry of Industry and Minerals. Id.

        Yet, as with the scrap policy decision made in July 2004, there is no evidence Wye Oak

was ever informed of this directive and the Court does not believe defendants established it ever

applied to MoD.15 No copy of this letter was found in MoD’s files, and as discussed below, the

Court has reason to believe the absence of a copy of this letter indicates it did not apply to MoD.

III. Legal Discussion

     A. MoD is Not Separate from the Republic of Iraq

        This Court previously held MoD and Iraq are separate juridical entities as a matter of Iraqi

law in an opinion denying Wye Oak’s motion for judgment on the pleadings on this narrow

question. Wye Oak Tech., Inc. v. Republic of Iraq, 72 F. Supp. 3d 356, 359 (D.D.C. 2014). This




14
   The Court was not presented with any evidence or testimony Wye Oak continued to perform work on the IMERP
after early 2005.
15
   As stated supra in Section II(B), Neal testified General Bashar, an MoD official working on the effort to recover
vehicles, informed him the scrap ban was intended to stop individuals from illegally taking scrap and did not affect
Wye Oak. Tr. 12/19/18 AM 29:22–31:16; Tr. 12/19/18 PM 4:9–18.

                                                        35
determination was grounded in Iraq’s answer to Wye Oak’s complaint that stated MoD is a

separate juridical entity from the Republic of Iraq. Id. at 360–61. On a motion for judgment on the

pleadings, the Court was required to accept as true all facts pled by the non-moving party and make

all reasonable inferences favorable to the non-movant. Peters v. National R.R. Passenger Corp.,

966 F.2d 1483, 1485 (D.C. Cir. 1992). Accordingly, this Court made the presumption that MoD is

a legally separate entity from Iraq for purposes of determining liability in this case. Id. The Court

recognized the ultimate determination on this issue was necessarily fact dependent and reserved

final judgment on the matter until the then-sparse record at that stage in litigation was more fully

developed. Now that the Court has had the benefit of completing the bench trial and having expert

testimony from plaintiff’s Iraqi law expert (the only Iraqi law expert presented to this Court), the

Court is finally able to resolve this issue. MoD is not separate from the Republic of Iraq—MoD

and Iraq are legally one and the same.

       The Foreign Sovereign Immunities Act (FSIA) provides federal courts with original

jurisdiction over suits against foreign states if one of the statute’s enumerated exceptions to

sovereign immunity applies. 28 U.S.C. § 1330. Under the FSIA, a “foreign state” includes “a

political subdivision of a foreign state or an agency or instrumentality of a foreign state.” Id. §

1603. The distinction between (1) a political subdivision of a foreign state and (2) an agency or

instrumentality of a foreign state is fundamental under the FSIA.

       Without the benefit of a complete record, this Court turned to the Supreme Court’s decision

in First National City Bank v. Banco Para El Comercio Exterior de Cuba (Bancec), 462 U.S. 611

(1983), addressing the separate juridical status of state-owned entities. In Bancec, the specific

question was whether a separate instrumentality, a state-owned bank, could be held liable for

actions of the foreign state. Id. The Supreme Court held that “government instrumentalities



                                                 36
established as juridical entities distinct and independent from their sovereign should normally be

treated as such.” Id. at 626–27. However, this presumption could be overcome if: (1) the

instrumentality was so extensively controlled by the sovereign that a relationship of principal and

agent is created; or (2) recognizing the instrumentality as a separate entity would “work a fraud or

injustice.” Id. at 629–30.

        Now that this Court has a fully developed record, the Court can now finally assess whether

MoD is an inseparable part of the Republic of Iraq or constitutes an agency or instrumentality. The

Court concludes the Bancec presumption does not apply here because no meaningful distinction

can be drawn between MoD and Iraq. Bancec focused on foreign sovereigns’ instrumentalities,

but MoD is an integral component of the national government itself.

        Courts use the “core functions” test to distinguish between foreign states and their agencies

and instrumentalities. Under the core functions test, the Court must determine whether the foreign

entity’s core functions are predominantly government or commercial. Transaero, Inc. v. La Fuerza

Aerea Boliviana, 30 F.3d 148, 151 (D.C. Cir. 1994). If the entity’s core functions are

governmental, then the entity is considered part of the state itself. See e.g., Roeder v. Islamic

Republic of Iran, 333 F.3d 228, 234 (D.C. Cir. 2003) (holding that the Iranian “Ministry of Foreign

Affairs must be treated as the state of Iran itself rather than its agent” because the conduct of

foreign affairs is an indispensable governmental function); Transaero, 30 F.3d at 151 (holding the

Bolivian Air Force was a foreign state because its core functions were governmental); see also

Garb v. Republic of Poland, 440 F.3d 579 (2d Cir. 2006) (concluding the Polish Ministry of the

Treasury is not an “agency or instrumentality” for purposes of the “takings” exception of the FSIA,

but rather is an integral part of Poland’s political structure with an indisputable governmental

function, and as such is the “foreign state” itself).



                                                  37
       MoD’s core functions are primarily governmental. MoD was established as part of the

transitional government by CPA Order 67. Pl.’s Ex. 113. Professor Chibli Mallat, plaintiff’s Iraqi

law expert, testified CPA Order 67 and other CPA orders “re-organiz[ed] the government in a way

that would extricate it from its regrettable antecedence of bearing the main features of a

dictatorship . . . the CPA order is the establishing order for the operation of government in Iraq

and this has naturally an important consequence in this case on the placing of the Ministry of

Defense as part and parcel of the Iraqi government.” Mallat Dep. 2/14/19 37:11–21. Mallat

repeatedly stressed the CPA orders promulgated at this time regarding the MoD were intended to

“subordinate” the MoD to Iraq’s civilian institutions that were elected by the Iraqi people. Mallat

Dep. 2/14/19, 37:22–41:4. CPA Order 67 explicitly states “all those who work in the MoD are

responsible to lawfully elected civilian authority.” Pl.’s Ex. 113 § 5(c). Indeed, the Prime Minister

is the commander-in-chief of the Iraqi armed forces. Pl.’s Ex. 111 art. 78; Pl.’s Ex. 112 art. 39.

Further, CPA Order 67 declares “[t]he mission of the MoD is to secure, protect, and guarantee the

security of Iraq’s borders and to defend Iraq.” Pl.’s Ex. 113 § 4. Nothing could be a more core

governmental function.

       Also, the Iraqi Law of Executive Authority, which Iraq uses to argue MoD is a separate

instrumentality, provides that each ministry “shall be considered as an expression of the word

government.” Law of Executive Authority No. (50) 1964, art. I, para. 2, Pl.’s Ex. 108. Contrary to

Iraq’s contention, this text demonstrates MoD, as a ministry, is “part and parcel of the

government.” Mallat Dep. 2/14/19, 53:4–55:22.

       As the D.C. Circuit determined in Transaero, “armed forces are as a rule so closely bound

up with the structure of the state that they must in all cases be considered as the ‘foreign state’

itself, rather than a separate ‘agency or instrumentality’ of the state. The ‘powers to declare and



                                                 38
wage war’ are among the ‘necessary concomitants’ of sovereignty.” Transaero, 30 F.3d at 153

(D.C. Cir. 1994) (citing United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936)).

The Court’s examination of the evidence and testimony presented in this case lead it to determine

this rule is aptly applied to the MoD here. No governmental entity is more closely linked with the

state itself than the MoD—the entity charged with defending the nation. As a result, the Court

holds that MoD is an inseparable part of the Republic of Iraq. And the Republic of Iraq is therefore

liable for any breach of the BSA by MoD.

   B. The Court has Subject Matter Jurisdiction and Personal Jurisdiction Over Defendants

       The FSIA provides the only means of suing a foreign sovereign in U.S. courts. Argentine

Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989). A foreign state is

presumptively immune from federal and state courts’ jurisdiction, subject to several codified

exceptions. See id. §§ 1604–1607.

       Jurisdiction in this case is predicated upon the FSIA’s commercial activity exception to

sovereign immunity. Under the FSIA:

       A foreign state shall not be immune from the jurisdiction of courts of the United
       States or of the States in any case . . . in which the action is based [1] upon a
       commercial activity carried on in the United States by the foreign state; or [2] upon
       an act performed in the United States in connection with a commercial activity of
       the foreign state elsewhere; or [3] upon an act outside the territory of the United
       States in connection with a commercial activity of the foreign state elsewhere and
       that act causes a direct effect in the United States.

Id. § 1605(a)(2). Wye Oak only needs to establish its claim falls within one of the exceptions

provided in § 1605(a)(2) because the exceptions are disjunctive and only one needs to apply to

bestow jurisdiction.




                                                39
               1. The BSA was a “Commercial Activity” Under the FSIA

       The FSIA defines “commercial activity” as “either a regular course of commercial conduct

or a particular commercial transaction or act. The commercial character of an activity shall be

determined by reference to the nature of the course of conduct or particular transaction or act,

rather than by reference to its purpose.” Id. § 1603(d). The Supreme Court has further elaborated

on what constitutes commercial activity under the FSIA. In Weltover, the Court concluded:

       when a foreign government acts, not as a regulator of a market, but in the manner
       of a private player within it, the foreign sovereign’s actions are “commercial”
       within the meaning of the FSIA. Moreover, because the [FSIA] provides that the
       commercial character of an act is to be determined by reference to its “nature” rather
       than its “purpose,” 28 U.S.C. § 1603(d), the question is not whether the foreign
       government is acting with a profit motive or instead with the aim of fulfilling
       uniquely sovereign objectives. Rather, the issue is whether the particular actions
       that the foreign state performs (whatever the motive behind them) are the type of
       actions by which a private party engages in “trade and traffic or commerce.”

Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614–15 (1992) (citing Black’s Law

Dictionary 270 (6th ed. 1990)). Specifically, the Supreme Court stated “a contract to buy army

boots or even bullets is a ‘commercial’ activity, because private companies can similarly use sales

contracts to acquire goods.” Id. at 615.

       Under the BSA, Wye Oak was contracted to provide commercial services to MoD. Wye

Oak was appointed as the sole and exclusive broker to conduct inventory, assess, and rehabilitate

military equipment in connection with the IMERP; arrange scrap sales; provide military

refurbishment services, including constructing facilities; and arrange military equipment sales. See

Pl.’s Ex. 5; Pl.’s Ex. 19. A contract to engage in these activities is undoubtedly commercial in

nature because private companies can similarly contract to have goods inventories and

rehabilitated, contract to have facilities constructed, and contract with a broker to arrange the sale

of goods. It is irrelevant under § 1603(d) that the contract involved activities related to the military



                                                  40
and aimed to re-equip the Iraqi military to enhance that country’s security—a core sovereign

interest. Accordingly, the BSA constituted a “commercial” activity under the FSIA.

                   2. This Action is Based Upon an Act Performed in the U.S. in Connection with a
                   Commercial Activity of Iraq Elsewhere

         This Court has jurisdiction under clause two of the commercial activity exception. Wye

Oak’s breach of contract claim is based on acts performed in the U.S. in connection with a

commercial activity of the foreign state, Iraq, elsewhere.16

         The Fourth Circuit previously concluded Wye Oak sufficiently showed that its breach of

contract claim could proceed under clause two in denying Iraq’s appeal of the denial of its motion

to dismiss on sovereign immunity grounds.17 Wye Oak Tech., Inc. v. Republic of Iraq, 666 F.3d

205, 216 (4th Cir. 2011). The Fourth Circuit determined Wye Oak’s computer programming and

administrative activities performed in the U.S. in connection with MoD’s activities regarding the

BSA in Iraq demonstrated the breach of contract claim was based on an act performed in the U.S.

in connection with a commercial activity of the foreign state elsewhere. Id.

         Although the case was transferred to this Court, and therefore is no longer within the Fourth

Circuit, the law-of-the-case principle indicates the Fourth Circuit’s opinion should nonetheless

control. The law-of-the-case principle stipulates a court should be loath to disturb its own or a

coordinate court’s prior decisions absent extraordinary circumstances. Christianson v. Colt Indus.

Operating Corp., 486 U.S. 800, 817 (1988); see Hill v. Henderson, 195 F.3d 661, 678 (D.C. Cir.



16
   The Court refers to the foreign state as Iraq in its discussion on its subject matter and personal jurisdiction over
defendants because MoD is part of the state itself. See supra Section III(A).
17
   The Fourth Circuit’s opinion had the oddity of being decided after the case was transferred to this Court. The Eastern
District of Virginia district court that originally had the case transferred it to the U.S. District Court for the District of
Columbia, but reached the issue of jurisdiction in the same opinion granting Iraq’s request to transfer the case to this
district. Wye Oak Tech., Inc. v. Republic of Iraq, No. 1:09cv793, 2010 WL 2613323 (E.D. Va. June 29, 2010). Iraq
appealed that district court’s denial of its motion to dismiss based on sovereign immunity, and this Court stayed the
case pending the outcome of the Fourth Circuit’s decision. The Fourth Circuit determined it had jurisdiction over
Iraq’s appeal. Wye Oak Tech., Inc. v. Republic of Iraq, 666 F.3d 205, 209–11 (4th Cir. 2011).

                                                             41
1999) (recognizing “a decision of a court of coordinate state is entitled to be considered law of the

case”) (internal quotations marks omitted); see also Charles A. Wright et al., Federal Practice and

Procedure § 4478.4 (4th ed. 2007) (“Special situations . . . may bring the same case successively

to different courts of appeals. . . . In all of these circumstances, an appellate court tends to defer to

the earlier appellate decision in much the same way as it would defer to its own earlier decision.”).

        The mandate rule further compels this Court to follow the Fourth Circuit’s decision on this

matter. The mandate rule forbids lower “courts from reconsidering issues that have already been

decided in the same case.” Indep. Petrol. Ass’n of Am. v. Babbitt, 235 F.3d 588, 597 (D.C. Cir.

2001) (quoting LaShawn A. v. Barry, 87 F.3d 1389, 1393 n.3 (D.C. Cir. 1996) (en banc)). “When

matters are decided by an appellate court, its rulings, unless reversed by it or by a superior court,

bind the lower court.” Ins. Grp. Comm. v. Denver & R. G. W. R. Co., 329 U.S. 607, 612 (1947).

        And in any event, the Fourth Circuit’s determination was correct. The Supreme Court in

Nelson held that the phrase “based upon” in the FSIA’s commercial activity exception refers to

“those elements that, if proven, would entitle a plaintiff to relief under his theory of the case.”

Saudi Arabia v. Nelson, 507 U.S. 349, 357 (1993). In Nelson, an American employee of a Saudi

hospital sued the Kingdom of Saudi Arabia seeking damages for injuries he allegedly suffered

while detained and tortured by the Saudi government. Id. The employee argued the commercial

activity exception applied because the hospital recruited him in the U.S. Id. While the Supreme

Court determined these recruiting activities “led to the conduct that eventually injured” the

employee, they were not the basis for the suit. Id. at 358. The torts Saudi Arabia allegedly

committed formed the basis for the suit—not the arguably commercial activities that came before

their alleged commission. Id. Because the employee had no need to demonstrate the hospital




                                                   42
recruited him in order to prevail on the merits, the hospital’s recruiting activities provided no basis

for his suit. Id.

        Although Nelson interpreted the phrase “based upon” in the commercial activity

exception’s first clause, the nearly identical statutory text and structure of clauses one and two led

the D.C. Circuit to conclude that “based upon” means the same thing in both clauses. Odhiambo

v. Republic of Kenya, 764 F.3d 31, 37 (D.C. Cir. 2014). The D.C. Circuit noted, “to the degree that

the text leaves any ambiguity, the legislative history is ‘crystal clear’ that clause two’s reference

to acts ‘performed in the United States in connection with a commercial activity of the foreign

state elsewhere’ is ‘limited to those’ acts ‘which in and of themselves are sufficient to form the

basis of a cause of action.’” Id. at 37–38 (quoting Zedan v. Kingdom of Saudi Arabia, 849 F.2d

1511, 1514 (D.C. Cir. 1988) (quoting H.R. Rep. No. 94–1487, at 19 (1976), 1976 U.S.C.C.A.N.

6604)); see S. Rep. No. 94–1310, at 18 (1976), 1976 U.S.C.C.A.N. 1983.

        In Odhiambo, the D.C. Circuit fashioned a test under clause two based on Nelson. The D.C.

Circuit stated: “a suit against a foreign sovereign may proceed under clause two only if the ‘act

performed in the United States in connection with a commercial activity of the foreign state

elsewhere’ establishes a fact without which the plaintiff will lose.” Odhiambo, 764 F.3d at 38.

Here, the acts Wye Oak performed in the U.S. in connection with the BSA in Iraq established Wye

Oak performed under the BSA, which is a necessary aspect to succeeding in a breach of contract

case when a defendant asserts the plaintiff did not perform.

        As discussed in Section II(J)(2), Wye Oak performed work in the United States. David

Stoffel conducted activities supporting Wye Oak’s efforts under the BSA. David Stoffel focused

on writing a computer program that could ultimately be used to inventory and track all the

equipment Wye Oak was refurbishing and would potentially broker for sales. Tr. 12/18/18 AM



                                                  43
38:11–41:17; Pl.’s Ex. 65. This work aided Wye Oak’s efforts under the IMERP. Further, David

Stoffel oversaw the company’s electronic communications from his perch in the U.S., in part to

ensure Wye Oak’s leadership was aware of all messages they received, as the team traveled

frequently and maintaining e-mail communications and Internet connection could be challenging

at times in Iraq during this period. Tr. 12/18/18 AM 44:5–49:18. In addition, Wye Oak performed

administrative activities in the U.S. in support of the BSA. Tr. 12/18/18 AM 49:19-50:24.

         These acts performed in the U.S. were done in connection with Iraq’s commercial activity,

the BSA, in Iraq. And these U.S.-based acts establish Wye Oak performed (partly in the U.S. and

partly outside the U.S.) under the BSA. Performance is a fact without which Wye Oak would lose.

So Wye Oak’s action falls within clause two: the action is based upon “an act performed in the

United States in connection with a commercial activity of the foreign state elsewhere.” 28 U.S.C.

§ 1605(a)(2). Thus, the Court has subject matter jurisdiction over Iraq and MoD.

                  3. The Court has Personal Jurisdiction over Iraq and MoD

         This Court has personal jurisdiction over Iraq and MoD under 28 U.S.C. § 1330(b). Section

1330(b) provides that “[p]ersonal jurisdiction over a foreign state shall exist as to every claim for

relief over which the district court” has subject matter jurisdiction under the FSIA as long as the

defendant was properly served under 28 U.S.C. § 1608. As discussed above, this Court has subject

matter jurisdiction over defendants, as Iraq and MoD are not entitled to sovereign immunity based

on the FSIA’s commercial activity exception. And proper service was effectuated in this case in

accordance with 28 U.S.C. § 1608(a)(3).18 The Clerk of Court mailed a copy of the summons,

complaint, and notice of suit, together with a translation of each into the official language of the

foreign state to the head of Iraq’s Ministry of Foreign Affairs at the Minister’s office in Baghdad,


18
  28 U.S.C. § 1608(a)(3) requires that service be sent “by any form of mail requiring a signed receipt, to be addressed
and dispatched by the clerk of court to the head of the ministry of foreign affairs of the foreign state concerned.”

                                                          44
Iraq. Certificate of Clerk, ECF No. 127; Service, ECF No. 128.19 The Court does not need to

examine whether Iraq and MoD have the minimum contacts that would otherwise be required to

find personal jurisdiction under the Fifth Amendment’s Due Process Clause, as foreign sovereigns

are not “persons” protected by the Fifth Amendment. I.T. Consultants, Inc. v. Islamic Republic of

Pakistan, 351 F.3d 1184, 1191 (D.C. Cir. 2003); see also Practical Concepts, Inc. v. Republic of

Bolivia, 811 F.2d 1543, 1548 n.11 (D.C. Cir. 1987) (in FSIA cases, “subject matter jurisdiction

plus service of process equals personal jurisdiction”) (internal quotation marks and citation

omitted). Accordingly, this Court has personal jurisdiction over the defendants.

     C. Defendants Breached the BSA

                 1. Wye Oak’s Three Invoices Were Submitted Under the BSA

        Wye Oak’s three invoices were submitted pursuant to the BSA. Under the BSA, Wye Oak

was the sole and exclusive broker for several enumerated activities. Pl.’s Ex. 5 ¶ 2. Two of these

activities are applicable to the three invoices. First, Wye Oak was appointed as MoD’s sole and

exclusive broker for “the accounting, inventory, and assessment of discarded and/or damaged

Military Equipment in connection with the Iraqi Military Equipment Recovery Project to identify

which Military Equipment is salvageable and suitable for Military Refurbishment Services and

which Military Equipment is scrap.” Id. Second, Wye Oak was appointed as MoD’s sole and

exclusive broker for “the provision of Military Refurbishment Services with respect to all of the

various military bases, offices and properties owned by, or under the control of, the Ministry and/or

the Republic of Iraq, wherever such bases, offices and property maybe [sic] located and all the




19
  MoD and Iraq each filed their answers to Wye Oak’s amended complaint after proper service was effectuated.
Answer by the Ministry of Defense of the Republic of Iraq, ECF No. 129; Answer by the Republic of Iraq, ECF No.
139.

                                                      45
related military equipment located thereon or otherwise owned by the Ministry and/or the Republic

of Iraq.” Id.

        The BSA further directed Wye Oak to provide military refurbishment services pursuant to

the terms of the Agreement, designated the military installations where the work would commence,

and required Wye Oak to use all reasonable commercial efforts to perform the work. Id. ¶ 2–3.

The BSA specified Wye Oak was not under any obligation to spend any sum of money in

performing military refurbishment services or in developing markets and sales prospects for

equipment and scrap under the BSA other than money advanced by MoD to cover expenses

associated with performing military refurbishment services, selling military equipment or

refurbished military equipment, or scrap sales. Id. ¶ 3.

        As detailed in Section II(C), the BSA provided specific definitions for the terms used in

the contract. The terms “military equipment,” “military refurbishment services,” “refurbished

military equipment,” and “customers” are all applicable to determining whether the three invoices

fall under the BSA. Military equipment was defined as “any equipment that is used by or in the

provision of military, including, without limitation, any and all vehicles, aircrafts, guns, missiles,

armored personnel carriers, heavy armor/tanks, military radar equipment, ballistic missiles, rocket

launchers, artillery, artillery scrap, small arms, small arms scrap or any parts or components

thereof.” Id. Military refurbishment services was defined as “any services sold, performed for, or

provided with respect to any Refurbished Military Equipment that is either retained by the Ministry

or sold or otherwise provided to Customers by the Ministry, including, but not limited to, the

inspection of the Military Equipment prior to performing any Military Refurbishment Services to

make a value assessment and a refurbishing assessment for such Military Equipment.” Id. The

BSA provided that “Refurbished Military Equipment shall mean any Military Equipment that has



                                                 46
been refurbished by, or under the direction of, the Broker pursuant to this Agreement, and sold or

provided to customers by the Ministry.” Id. And customers were defined as “purchasers of the

‘Military Refurbishment Services’ and/or ‘Refurbished Military Equipment’ and ‘or Scrap sales’

including, but not limited to, Iraqi Ministry of Defense, commercial establishments and

governmental and semi-governmental entities in the military sector.” Id.

       In October 2004, Wye Oak submitted three pro forma invoices to MoD: Invoices

#MUQ001, #TAJI001, and #MUQ002. These invoices covered the initial construction costs for

armored vehicle repair facilities and for the initial repair of 246 armored vehicles at Muqdadiya

and Taji. Pl.’s Ex. 18. They also covered the costs of purchasing tools and moving spare parts; the

costs of initial hiring and training of skilled and unskilled workers; the costs of travel, lodging, and

food for technical experts; the costs of materials to wash and paint vehicles; and a 10%

mobilization fee for construction efforts at Taji. Id. Finally, these invoices included a 15%

overhead cost and 10% profit. Id.

       These invoiced costs all fall within the BSA. First, these activities involved the accounting,

inventory, and assessment of military equipment in connection with the IMERP to identify which

equipment was salvageable and suitable for refurbishment services and which equipment was

scrap as called for in § 2(i) of the BSA. See Pl.’s Ex. 5 ¶ 2(i). To carry out these responsibilities,

Wye Oak needed to construct facilities, purchase tools, hire and train workers, and bring in

technical experts. Wye Oak would not be able to conduct these duties under the BSA without

places to carry out such work, the equipment necessary to carry out such work, and the workers

required to perform such work. Neal testified the facilities necessary to scrap and refurbish

armored vehicles were largely non-existent at Taji and Muqdadiya in 2004 and 2005. Tr. 12/19/18

AM 34:4–35:15. There was only a tank depot at Taji, but it was not operational and needed to be



                                                  47
overhauled to be capable of working on armored vehicles to determine if they should be scrapped

or could be refurbished. Tr. 12/19/18 AM 34:4–35:15. And Wye Oak was not under any obligation

to spend its own money in carrying out these activities. Rather, MoD was to advance the sums of

money to cover the expenses associated with performing these activities, as these activities all

constituted military refurbishment services under the BSA. These activities were focused on

developing the capability to inspect military equipment prior to performing refurbishment efforts

to assess the equipment and to carry out such inspection. They were also carried out with respect

to military equipment that was being refurbished by Wye Oak and provided to MoD. Accordingly,

these invoiced costs fell squarely within the BSA.

       Second, the invoiced activities involved the direct provision of military refurbishment

services as called for § 2(iii) of the BSA. See Pl.’s Ex. 5 ¶ 2(iii). Constructing repair facilities,

repairing armored vehicles, hiring and training workers, bringing in technical experts, acquiring

tools and spare parts, and acquiring materials to wash and paint vehicles are all core aspects of

refurbishing military equipment to sell or provide to MoD. Wye Oak would not have been able to

carry out the military refurbishment services without engaging in these activities and undertaking

such costs. Thus, these invoiced costs were also covered by the BSA. And again, while the BSA

provided Wye Oak was required to use all reasonable commercial efforts to perform these military

refurbishment services, Wye Oak was not under any obligation to spend money carrying out these

services. Instead, MoD was supposed to cover the expenses associated with performing military

equipment services.

       The First Amendment further supports these conclusions. The First Amendment clarified

the definition of military refurbishment services to explicitly include the “construction of facilities,

bases, billeting, service/rapier depots, repair factors/facilities.” Pl.’s Ex. 19; Pl.’s Ex. 19.1. The



                                                  48
Court believes such construction activities were already covered under the BSA’s original

definition of military refurbishment services, as this construction would always be required to

provide Wye Oak with the spaces needed to inspect, assess, and refurbish military equipment. So

such construction would be a service “performed for[] or provided with respect to any Refurbished

Military Equipment.” Pl.’s Ex. 5 ¶ 1(e). But the First Amendment makes it unquestionable that

construction activities, which were part of the invoices, were covered under the contract as

amended.

       And contrary to defendants’ contention, the BSA did not provide that MoD would only pay

Wye Oak a 10% commission on sales contracts for military refurbishment services, refurbished

military equipment, and scrap sales. ECF No. 431-1, 4–5. This commission was just one aspect of

Wye Oak’s potential compensation under the BSA. MoD was also required to pay Wye Oak 10%

of the refurbishment cost for refurbished military equipment, which consists of any military

equipment refurbished by Wye Oak and sold or provided to customers, including MoD itself. Pl.’s

Ex. 5 ¶ 5(a). Refurbishment cost necessarily includes the costs associated with conducting the

refurbishment, such as labor, equipment, and the construction of facilities—the costs accounted

for in the three invoices. This was clarified in the First Amendment, which made explicit that MoD

was required to pay Wye Oak 10% of military refurbishment services and equipment’s

refurbishment cost. Pl.’s Ex. 19; Pl.’s Ex. 19.1.

       Payments to Wye Oak based on sales contracts or refurbishment costs were to be paid

pursuant to pro forma invoices submitted by Wye Oak. Pl.’s Ex. 5 ¶ 5(b). The BSA required the

MoD to fully pay such invoices “immediately upon presentation.” Id. Here, Wye Oak presented

the three pro forma invoices to MoD.




                                                    49
       Defendants’ assertion also ignores the fact the BSA required Wye Oak to use all reasonable

commercial efforts to perform the military refurbishment services yet did not require Wye Oak to

spend any money carrying out these services. Instead, MoD was supposed to cover the expenses

associated with performing military equipment services. As explained, this was another basis in

the BSA for payment to Wye Oak from MoD for the invoiced costs.

       Finally, while the BSA made Wye Oak ultimately “responsible for its own administrative

costs, expenses and charged necessary or incidental to its functions” under the Agreement, this

does not change the clear language throughout the rest of the BSA that MoD was to advance funds

to Wye Oak and pay 10% of the refurbishment cost for refurbished equipment.

       Accordingly, Wye Oak’s three invoices were submitted under the BSA.

               2. Wye Oak was never paid for its three invoices

       Although Wye Oak submitted the three invoices pursuant to the BSA, MoD never paid

Wye Oak. Instead, MoD paid Zayna these amounts. See supra Section II(I). But Wye Oak never

authorized Zayna to receive these funds on its behalf. See supra Section II(I).

       Defendants contend ¶ 10 of the BSA provided that MoD had the right to determine payment

terms for sales contracts or contractual arrangements equivalent to sales contracts Wye Oak

arranged. Defendants assert they could therefore insert intermediaries or demand bank guarantees

as referenced in the CFA. Defs.’ Further Rebuttal to Wye Oak’s Proposed Findings of Fact &

Conclusions of Law 14, ECF No. 431-2 [hereinafter ECF No. 431-2]. However, this section only

required Wye Oak to obtain written instructions from MoD concerning the terms of commitments

and contract offers made in the name of or on behalf of MoD. Pl.’s Ex. 5 ¶ 10 (“[Wye Oak] is not

authorized to enter into commitment of any kind in the name or on behalf of the Ministry, nor shall

[Wy Oak] make any contractual offers to Customers or prospective Customers on behalf of



                                                50
Ministry unless [Wye Oak] shall have first obtained written instructions from Ministry concerning

the terms of such offers.”). This had nothing to do with the invoiced activities that related to

military refurbishment services. Thus, MoD was not authorized under the BSA to require bank

guarantees never referenced in the contract or to insert a middleman into the contractual

relationship absent a written amendment including such new terms signed by both parties, which

never occurred. See id. ¶ 13.

       And, as the Court concluded in Section II(G)(1), Wye Oak established by a preponderance

of the evidence that MoD approved Wye Oak’s invoices and agreed to pay this money to Wye

Oak’s president, Dale Stoffel, at the October 19, 2004 meeting. See supra Section II(G)(1). Yet

this money was to Zayna, not Wye Oak. Wye Oak was never paid for the three invoices.

               3. Wye Oak Performed Under the BSA

       As discussed in Sections II(D), (J), (L), and (M), Wye Oak performed under the BSA.

Shortly after signing the BSA, Wye Oak began putting together the necessary workforce and

identifying, recovering, and assessing military equipment in Iraq. Wye Oak then started

refurbishing armored vehicles—a critical part of the IMERP. And although nonpayment of Wye

Oak’s three invoices created a significant impediment to Wye Oak continuing to work on the

IMERP—and resulted in the October 19 and December 5 meetings in which MoD agreed to pay

the funds—Wye Oak ultimately continued performing. Wye Oak refurbished a significant number

of armored vehicles. And even after Dale Stoffel’s murder, Wye Oak did not abandon the IMERP.

In fact, Wye Oak exceeded the goal of producing a mechanized brigade of operational armored

vehicles for Iraq’s January 2005 parliamentary election. Eventually, Wye Oak did cease operations

in Iraq sometime after the January 2005 election, though, as it never received funding from MoD

despite MoD’s promises at the October 19 and December 5 meetings.



                                               51
               4. MoD Materially Breached the Contract with Wye Oak

       Accordingly, MoD materially breached the BSA by not paying Wye Oak for the three

invoices and the work Wye Oak performed. Wye Oak submitted two pro forma invoices on

October 11, 2004, and a third pro forma invoice on October 18, 2004. Under the BSA, MoD was

required to fully pay these invoices immediately upon their presentation. Id. ¶ 5. And MoD

approved these three invoices and agreed to pay this money to Wye Oak’s president, Dale Stoffel,

at the October 19, 2004 meeting. Yet MoD never paid Wye Oak.

       Wye Oak’s damages expert assessed the date of breach as October 28, 2004, and Wye Oak

has proposed this date as the date of breach. Wye Oak and its damages expert reason that while

payment on the invoices was due immediately upon presentation (October 11 for two invoices and

October 18 for the third) and MoD approved the invoices on October 19, a ten-day grace period to

October 28 for payment to occur was reasonable. The Court sees no reason to reject plaintiff’s

allowance of a grace period during which payment should have occurred, especially since payment

should have occurred immediately under the strict terms of the BSA. Thus, the Court finds MoD

materially breached the BSA on October 28, 2004.

       MoD’s material breach meant Wye Oak was no longer required to perform. Therefore,

Wye Oak did not breach the contract by ceasing to perform sometime after the January 2005

election, as its duties had already been discharged by this point in time.

       D. The Court Rejects Defendants’ Affirmative Defenses

       Iraq and MoD have put forward several affirmative defenses to this suit. To prevail on an

affirmative defense, defendants bear the burden of proving the affirmative defense by a

preponderance of the evidence. Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997). The

Court finds defendants have not met their burden for any of the alleged affirmative defenses.



                                                 52
               1. The Court Rejects the Defense Wye Oak was Not Properly Licensed

       Iraq and MoD argue Wye Oak failed to receive permission from the Ministry of Trade to

act as a broker and therefore could not have consummated sales contracts. Iraq and MoD cite Iraq’s

Law of Trade, stating: “A non-Iraqi person can exercise a commercial activity in accordance with

the requirements of the national plan by permission from the Concerned Entity.” Article 8 of the

Law of Trade (Law No. 30 of 1984). They allege Wye Oak failed to ever apply for and receive

permission to act a broker from the Ministry of Trade so it cannot claim damages under the BSA.

Defendants cite several Iraqi court cases in which a plaintiff’s failure to prove the plaintiff applied

for and received the required permission necessitated the court deny any claims for broker fees

and dismiss the lawsuit. So defendants contend Wye Oak is unable to obtain relief on its breach of

contract claim as a result of its omission to obtain the required license.

       However, plaintiff’s Iraqi law expert gave numerous reasons why this license requirement

did not apply to Wye Oak. First, Mallat distinguished the current matter from the Iraqi court cases

cited by defendants. Those cases involved a different Iraqi trade law, not the provision of Iraq’s

Trade Law cited by Iraq and MoD here. In the cases cited by Iraq and MoD, an Iraqi plaintiff sued

a foreign government official and foreign state-owned corporation claiming the defendants did not

pay him pursuant to their contracts. The Iraqi courts rejected the plaintiff’s claims because he had

not obtained the required business license to represent a foreign person or corporation. ECF No.

253-3. Here, Wye Oak was working with MoD, part of the Iraqi government, not a foreign person,

corporation, or government. The law at issue in the cases cited by Iraq and MoD is clearly not

applicable to this suit. Therefore, these cases do not demonstrate Wye Oak was required to obtain

any license.




                                                  53
       Second, this expert asserted CPA Order 39 modified Iraq’s Law of Trade when it was

enacted in September 2003. Chibli Mallat 3rd Expert Report 3, Pl.’s Ex. 117. Mallat informed the

Court CPA Order 39 liberalized trade and placed foreign and domestic business on equal footing.

Id. CPA Order 39 provided “A foreign investor shall be entitled to make foreign investments in

Iraq on terms no less favorable than those applicable to an Iraqi investor.” Id. This led Mallat to

conclude requiring Wye Oak to obtain a license when it was operating in Iraq as a broker for MoD

would undermine CPA Order 39.

       Third, Mallat stated that even if Article 8 of the Law of Trade remained in force after CPA

Order 39, the license requirement would not have been applicable to Wye Oak because Wye Oak

was MoD’s agent under the BSA. According to Mallat, because MoD would not have needed a

license, neither did Wye Oak. Pl.’s Ex. 115.

       Fourth, Mallat pointed to the BSA’s requirement that MoD “shall fully inform [Wye Oak]

at all times of all matters reasonably required to enable [Wye Oak] to properly carry out its duties.”

Pl.’s Ex. 5 ¶ 4(a). MoD never informed Wye Oak of this alleged licensure requirement and never

requested Wye Oak obtain a license. The evidence establishes Wye Oak performed work under

the BSA without any complaint from MoD that Wye Oak lacked a license to perform such

activities. And finally, the evidence establishes MoD paid the invoiced amounts—albeit to Zayna

not Wye Oak—without voicing any complaint regarding a licensing issue. This indicates the

license requirement either did not apply to Wye Oak, as it would be quite odd for MoD to engage

in unlawful contractual activity, or MoD did not fulfill its contractual obligation to inform Wye

Oak about this requirement.

       Ultimately, defendants have not met their burden of proof to establish this affirmative

defense. The Court concludes that Article 8 of the Iraqi Law of Trade likely did not apply to Wye



                                                 54
Oak, acting as MoD’s agent, even if it remained in full effect after CPA Order 39. This conclusion

is supported by MoD’s own actions not informing Wye Oak of any such requirement and paying

Zayna the invoiced amounts without ever raising any licensure issue.

               2. The Court Rejects the Defense Wye Oak was Not Owed Any Compensation
               Under the BSA Because Wye Oak Did Not Conclude Any Sales Contracts

       Iraq and MoD argue Wye Oak needed to conclude sales contracts as a precondition to any

payment under the BSA. ECF No. 431-1, at 4–5, 8–12; ECF No. 431-2, at 16–17. Defendants

allege MoD was only obligated to pay Wye Oak 10% commissions on sales contracts for military

refurbishment services, refurbished military equipment, and scrap sales. Defendants contend Wye

Oak was therefore not owed any money under the BSA because Wye Oak never concluded any

sales contracts.

       However, the Court has already rejected this argument in Section III(C)(1). The BSA did

not provide that MoD would only pay Wye Oak a 10% commission on sales contracts for military

refurbishment services, refurbished military equipment, and scrap sales. As explained above, this

commission was just one aspect of Wye Oak’s potential compensation under the BSA. MoD was

also required to pay Wye Oak 10% of the refurbishment cost for refurbished military equipment.

And MoD was supposed to cover expenses associated with performing military equipment services

under the BSA, as Wye Oak was required to use all reasonable commercial efforts to perform

military refurbishment services yet was not required to spend any money carrying out these

services. Accordingly, the Court rejects this defense.

               3. The Court Rejects the Defense Wye Oak Waived any Breach

       Finally, defendants argue that even if MoD did breach its contract with Wye Oak, Wye

Oak waived any breach by agreeing to payment terms at the December 5, 2004 meeting and then

never providing documentation it had performed the invoiced work. Defendants allege the parties

                                                55
at the December 5 meeting agreed MoD would authorize GIG to disburse the funds it was holding

upon receipt of documentation of the work Wye Oak had performed. This appears to be primarily

based on an exchange between defense counsel and Clements:

               [Defense Counsel]: There was discussion during the December 5th meeting,
       was there not, that in order to get paid Wye Oak should produce cost invoices from,
       whether it’s from a labor force or parts that they’re buying, indication of the
       expenditure of monies?
               [Clements]: Again, I can’t claim that that was precisely what was being
       talked about. As far as I was concerned, it was to provide more detail that would
       allow the funds to be released. I don’t know whether it was cost of invoices, sales
       contract or whatever it was. As far as I was concerned, it was more detail.
               [Defense Counsel]: Okay. Well, more detail that would support the claim
       under the pro forma invoices?
               [Clements]: Yes, sir, that’s fair.

Tr. 12/18/18 AM 6:25–7:13. Defendants state they never received such documentation.

       However, any such discussion about providing additional details could not have validly

amended the BSA and constituted a waiver by Wye Oak. The BSA could only be amended by a

written amendment signed by both parties, and there is no evidence the December 5 meeting

resulted in any valid written, signed amendment to the BSA. Therefore, Wye Oak did not validly

agree to the new payment scheme thereby releasing MoD from its breach as defendants allege.

Rather, the evidence shows Wye Oak was simply trying to extract payment that was owed to it

from MoD. This payment issue risked hindering the IMERP and spurred the December 5 meeting.

Thus, Wye Oak did not waive MoD’s breach of the BSA’s requirement to pay the invoices

immediately upon presentation.

IV. Damages

       The Court must next examine the damages Wye Oak is owed for defendants’ breach of the

BSA. Wye Oak contends it is owed four categories of damages: the amounts under the three

invoices it never received, lost profits from constructing bases, lost profits from refurbishing



                                               56
military equipment, and lost profits from broker fees earned on scrap sales. Wye Oak also seeks

damages for categories of lost profits its damages expert, Dr. John Gale, was unable to calculate

because of defendants’ discovery abuses. Further, Wye Oak seeks prejudgment interest. And Wye

Oak argues it is entitled to enhanced damages because of defendants’ alleged bad faith and fraud.

Finally, Wye Oak contends it is entitled to costs, including reasonable attorney’s fees and

expenses.

       The Iraqi approach to damages is set forth in Article 169 of the Civil Code. Article 169

declares:

       (1) If the compensation (damages) has not been estimated in the contract or in a
           provision of the law it will be assessed by the court.
       (2) The damages shall be in respect of every obligation which arises from the
           contract be it an obligation of conveyance of property, a benefit or any other
           right in rem, or an obligation to do or to abstain from doing an action and
           includes the loss of and the lost profit suffered by the creditor on account of
           loss of or delay in receiving the right provided that this was a natural result of
           the failure of or delay by the debtor to perform the obligation.
       (3) Where the debtor had not committed cheating (fraud) or a grievous fault the
           compensation may not exceed the loss suffered or the amount of the lost profit
           which has been normally anticipated at the time of the contracting.

Pl.’s Ex. 97 art. 169. Wye Oak is therefore permitted to recover damages for payments it never

received pursuant to the three invoices and for lost profits. Beyond citing Article 169, the parties’

briefings on the issue of damages entirely focus on U.S. case law. This indicates the parties believe

Iraqi damages principles mirror that of American law. Accordingly, the Court will turn to the

American rule on damages as set forth in the seminal case of Story Parchment Co. v. Paterson

Parchment Paper Co., 282 U.S. 555 (1931), to determine the amount of damages to be awarded

to Wye Oak.

       In Story Parchment Co., the Supreme Court stated:

       Where the tort itself is of such a nature as to preclude the ascertainment of the
       amount of damages with certainty, it would be a perversion of fundamental

                                                 57
       principles of justice to deny all relief to the injured person, and thereby relieve the
       wrong-doer from making any amend for his acts. In such case, while the damages
       may not be determined by mere speculation or guess, it will be enough if the
       evidence show the extent of damages as a matter of just and reasonable inference,
       although the result be only approximate.

Id. at 562. The Supreme Court emphasized “the clear distinction” in the standard of proof

necessary to establish a plaintiff’s entitlement to damages and to assess the amount of those

damages. Id. (“[T]here is a clear distinction between the measure of proof necessary to establish

the fact that petitioner had sustained some damage, and the measure of proof necessary to enable

the jury to fix the amount”). While a plaintiff must prove entitlement to damages with reasonable

certainty or preponderance of the evidence, proof of the amount of damages only requires a

reasonable estimate. See id.; see also Hill v. Republic of Iraq, 328 F.3d 680, 684–85 (D.C. Cir.

2003) (holding “that to recover damages a FSIA plaintiff must prove that the projected

consequences are “reasonably certain” (i.e., more likely than not) to occur, and must prove the

amount of damages by a “reasonable estimate” under this circuit’s application of Story”);

Samaritan Inns, Inc. v. District of Columbia, 114 F.3d 1227, 1235 (D.C. Cir. 1997) (plaintiff must

“prove the fact of injury with reasonable certainty, [and prove] the amount of damages . . . based

on a reasonable estimate”); Wood v. Day, 859 F.2d 1490, 1493 (D.C. Cir. 1988) (plaintiff need

only provide “some reasonable basis on which to estimate damages”) (quoting Romer v. District

of Columbia, 449 A.2d 1097, 1100 (D.C. 1982)); Abraham v. Gendlin, 172 F.2d 881, 883 (D.C.

Cir. 1949) (“[T]here is a clear distinction between the measure of proof necessary to establish the

fact of damage and the measure of proof necessary to enable the jury to fix the amount.”).

       Thus, the Court’s must “‘make a just and reasonable estimate of the damage based on

relevant data.’” United States ex rel. Miller v. Bill Harbert Int’l Constr., Inc., 608 F.3d 871, 905

(D.C. Cir. 2010) (quoting Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264 (1946)). Such



                                                 58
relevant data may include “probable and inferential as well as direct . . . and positive proof.”

Bigelow, 327 U.S. at 264. In setting about this task, the Court is mindful that damages “may not

be determined by mere speculation or guess . . . although the result may be only approximate.”

Hill, 328 F.3d at 684; see also Rhodes v. United States, 967 F. Supp. 2d 246, 313–14 (D.D.C.

2013).

         Finally, the D.C. Circuit instructs trial courts to explain the reasons for the determination

of the damages award and tether these reasons to the record. See Eureka Inv. Corp. v. Chicago

Title Ins. Co., 743 F.2d 932, 940 (D.C. Cir. 1984) (“[I]t is essential that the trial court give

sufficient indication of how it computed the amount so that the reviewing court can determine

whether it is supported by the record.”) (citing Hatahley v. United States, 351 U.S. 173, 182

(1956)); see also Safer v. Perper, 569 F.2d 87, 100 (D.C. Cir. 1977) (“The measure of damages

and method of computation [must] be exposed so as to inform the litigants and afford a possibility

of intelligent review.”). The Court turns to this important task after briefly discussing Dr. Gale’s

expert damages report.

         A. Dr. Gale’s Expert Damages Report

         The Court accepted Dr. Gale as a qualified expert witness to perform economic damages

analysis. Tr. 12/21/18 PM 99:2–12. Gale is a qualified expert in economics, with a specialty in

measuring the economic effects of government contracts. He received his Ph.D. in Economics

from the University of Wisconsin, with a specialization in Industrial Organization, and has over

20 years of experience modeling competition and consumer demand to calculate damages due to

breach of contract and other causes. Pl.’s Ex. 101 at 30–35. Further, Gale has previously been

accepted as a damages expert. See id. at 29. Gale is the only damages expert in this case, as

defendants did not put forward their own damages expert.



                                                  59
        Dr. Gale used a “but for” analysis to determine Wye Oak’s damages. Id. at 4. This

methodology is well-established and commonly used in the determination of damages due to

breach of contract and other economic harm. See id.; Tr. 12/21/18 PM 58:13–60:1. Such “but for”

analyses are commonly accepted by courts. See, e.g., Brennan’s Inc. v. Dickie Brennan & Co., 376

F.3d 356, 371–72 (5th Cir. 2004) (holding expert testimony of hypothetical damages for breach of

contract, based on putting plaintiff in position it would have occupied but for breach, is one proper

measure of damages). Under the but for test, Gale calculated the profits Wye Oak would have

earned if MoD had complied with the BSA’s terms (the but for profits), determined the profits

Wye Oak actually earned (the actual profits), and calculated damages as the difference between

these figures.

        In addition to attacking Gale’s individual damage calculations, defendants take issue with

Gale’s but for analysis. First, they contend the date of breach occurred in December 2004, after

Dale Stoffel was killed, not on October 28, 2004.20 Second, if the Court finds the breach occurred

on October 28, they contend Gale ignored critical events subsequent to the date of the breach of

the BSA. Namely, Gale’s assessment was not affected by Dale Stoffel’s death or by Iraq’s alleged

scrap sales ban. The Court now addresses these overarching objections.

                 1. The Court Finds Defendants Breached the BSA on October 28, 2004

        Dr. Gale assessed the date of breach as October 28, 2004, and Wye Oak has proposed this

as the date of breach. Defendants counter Wye Oak waived any breach at the December 5, 2004

meeting. So defendants argue the ultimate breach must not have occurred until later in December

2004 when defendants yet again failed to pay Wye Oak the money it had been owed since October




20
  Although defendants vehemently dispute any breach of contract occurred, the Court has determined a breach did
indeed occur.

                                                      60
2004. The Court has already assessed and rejected defendants’ waiver argument in Section

III(D)(3).

       While payment on the invoices was due immediately upon presentation (October 11 for

two invoices and October 18 for the third) under the BSA and MoD approved these invoices on

October 19, Wye Oak and its damages expert have stated a ten-day grace period to October 28 for

payment to occur was reasonable. As stated above, the Court does not see any reason to reject

plaintiff’s proposal permitting a grace period during which payment should have occurred.

Accordingly, the Court finds MoD materially breached the BSA on October 28, 2004.

               2. Gale Did Not Err in Not Taking into Account Subsequent Events

       Defendants take issue with the fact that Dr. Gale did not take into account that Dale Stoffel

was killed in December 2004, that Wye Oak pulled its American personnel out of Iraq following

Dale’s death, and that Iraq allegedly prohibited scrap sales in December 2004. Defendants contend

that when years have passed between the date of the breach of contract and the trial, the Court

should consider post-breach evidence when determining damages. See Sinclair Refining Co. v.

Jenkins Petroleum Process Co., 289 U.S. 689, 698 (1933) (finding in the patent dispute context

that when years have passed between the date of the purported wrong to the date of trial,

subsequent events constitute a “book of wisdom that courts may not neglect”); see also Anchor

Sav. Bank, FSB v. United States, 597 F.3d 1356, 1369–70 (Fed. Cir. 2010) (“[W]here it is necessary

to fashion an appropriate award, a court ‘may consider post-breach evidence when determining

damages in order to place the non-breaching party in as good a position as he would have been

had the contract been performed.’”) (quoting Fifth Third Bank v. United States, 518 F.3d 1368,

1377 (Fed. Cir. 2008)). According to defendants, Dale Stoffel’s death, Wye Oak’s withdrawal of

American personnel from Iraq, and the alleged scrap ban were all intervening causes for Wye



                                                61
Oak’s purported lost profits damages for which defendants were not responsible. While the Court

recognizes it is appropriate to consider post-breach events in a case such as this one in which nearly

15 years have passed from the date of breach to the Court issuing this judgment, the Court must

reject each of defendants’ charges.

                       a. Dale Stoffel’s Murder

       Defendants contend Wye Oak’s damages should be reduced as a result of Dale Stoffel’s

death because Wye Oak was a small company in which Dale Stoffel was an extraordinarily

impactful individual with expertise in the work covered under the BSA. However, the Court does

not believe Gale erred by not accounting for Stoffel’s death despite the fact the Court cannot make

a definitive finding that Dale Stoffel was murdered at the behest of Zayna and Cattan.

       But for MoD’s breach of the BSA, Dale Stoffel may very well not have been murdered.

The evidence shows Stoffel was traveling on December 8 from Taji to Baghdad to try to arrange

for the funding owed to Wye Oak to finally be disbursed. Defs.’ Ex. 40. The Court therefore cannot

pretend as though this fateful trip would have occurred just the same if Wye Oak had been paid as

it should have been under the BSA. But for MoD’s continued failure to pay Wye Oak, forcing Dale

Stoffel to persistently wrangle with MoD officials and Zayna (who was paid instead of Wye Oak)

to extract the money rightfully belonging to Wye Oak, Stoffel likely never would have been

making the trip on which he was killed. In other words, but for MoD’s breach Stoffel never would

have been in the situation he was in on December 8, 2004 when he was murdered. Therefore, but

for MoD’s breach Stoffel may never have been murdered.

       Accordingly, it was not improper that Gale did not incorporate this event in his construction

of the but for world. Dale Stoffel may very well still be alive today if not for MoD’s breach. This

is the insight the Court draws from looking within the “book of wisdom.” To discount Wye Oak’s



                                                  62
damages for Dale Stoffel’s murder, which at least in part resulted from a series of events set into

place by MoD’s breach, would not be wise, as defendants contend, it would be unjust.

                      b. Wye Oak’s Withdrawal of American Personnel

       Defendants further argue Wye Oak’s damages should be diminished because Wye Oak

could not have performed to the level it asserts without American personnel present in Iraq. This

again ignores defendants’ role in this post-breach event. David Stoffel testified Wye Oak and CLI

were willing to send their U.S.-based personnel back to Iraq if Wye Oak got paid the money it was

owed for the three invoices and could have the appropriate security (after Dale Stoffel and Joe

Wemple were killed). Tr. 12/18/18 AM 75:1–7. And Bill Felix echoed this sentiment. Felix stated

the reason Wye Oak and CLI did not return to Iraq after Dale Stoffel was killed was because Wye

Oak never received payment for its three invoices. Felix Dep. 69:10–19. MoD was in breach of

contract so Wye Oak’s personnel did not return to Iraq to continue performing work it was not

being paid for. Felix further testified he would have returned to Iraq had Wye Oak been paid. Felix

Dep. 69:10–19. And Felix indicated some of the money could have gone towards paying for

security. Felix Dep. 201:21–203:1. Thus, defendants’ argument about Wye Oak’s withdrawal of

U.S. personnel from Iraq completely disregards the primary reason these individuals left Iraq and

did not return—MoD never paid Wye Oak, thereby breaching the contract. And this argument

ignores the fact Wye Oak had non-American personnel in Iraq that continued to perform until

sometime in 2005 as discussed in Section II(M).

                      c. The Scrap Ban

       Iraq and MoD contend Iraq prohibited the sale and export of scrap metal so Wye Oak was

precluded from entering into any scrap sales contracts. Therefore, defendants assert Wye Oak

would not have been able to earn broker fees from scrap sales.



                                                63
       As detailed in Section II(B), the General Secretary of the Cabinet issued a letter to the

Ministry of Interior on July 17, 2004, regarding the prohibition of exporting scrap with copies to

the Office of the Prime Minister, Ministry of Industry and Minerals, Ministry of Trade, and

National Intelligence Service. Defs.’ Ex. 53. The letter stated the Prime Minister agreed to the

Ministry of Industry and Minerals’ proposal to stop exporting scrap, with the exception that some

materials of a military nature could continue to be exported upon the Prime Minister’s and his

economic committee’s approval. Id. But this Court was never provided with the Ministry of

Industry and Minerals’ proposal referenced in this letter, which makes it impossible to fully

comprehend the exact terms of the prohibition on exporting scrap the Prime Minister approved.

This deliberation on scrap exports and decision by the Prime Minister was never communicated to

Wye Oak at any time during the BSA negotiations or after Wye Oak and MoD signed the BSA.

       And as explained in Section II(N), the General Secretary of the Council of Ministers sent

a letter addressed to all ministries on December 28, 2004, stating scrap materials were proscribed

from being sold to merchants or any private sector entities. Defs.’ Ex. 58. Again, there is no

evidence Wye Oak was ever informed about this directive and no copy of this letter was found in

MoD’s files.

       These alleged scrap bans are an affirmative defense and therefore defendants bear the

burden of proof. This Court finds defendants have not carried their burden of establishing the bans

on exporting and selling scrap applied to sales made by MoD.

       First, Neal testified General Bashar, an MoD official working on the effort to recover

vehicles, informed him the scrap ban was intended to stop individuals from illegally taking scrap

and did not affect Wye Oak. Tr. 12/19/18 AM 29:22–31:16; Tr. 12/19/18 PM 4:9–18.




                                                64
       Second, Wafaa Muneer, the Ministry of Justice’s Legal Department’s Senior Manager of

Foreign Litigation, indicated the scrap bans did not apply to MoD. The Court previously found

Muneer to be a “qualified person” under Federal Rules of Evidence 803(6) and 902(12) who could

testify on the record-keeping systems of Iraq’s ministries to admit the documents related to the

alleged scrap bans as business records. Muneer has extensive experience as a lawyer in the Iraqi

government and is responsible for managing document production, including managing the search

and retrieval of documents maintained in the files of the Office of the Prime Minister, Council of

Ministers, and Iraq’s various ministries. She has significant knowledge of the record-keeping

practice of the ministries across the Iraqi government. And during her de bene esse deposition, she

testified regarding the flow of work between the Council of Ministers and various other ministries.

“The instructions or directives are issued in the form of a letter that has a number and a date after

it is signed off by the authorized official, whether it is the Secretary General of the Prime Minister’s

office. Then that letter is sent over to the party concerned.” Muneer Dep. 2/5/19, 17:1–10.

       Specifically, when discussing the June 19, 2004 letter from the General Secretary of Iraq’s

Council of Ministers informing the Ministries of Industry, Trade, and Finance the Prime Minister

directed the formation of a committee of representatives from these ministries to study scrap

exports and provide a recommendation on the topic, Defs.’ Ex. 56, she asserted she knew the letter

was sent to, and received by, the Ministry of Trade because it had a “stamp that you see on it, it is

the stamp of the Ministry of Trade, and . . . this is proof that the Ministry of Trade has received

this letter.” Muneer Dep. 2/5/19, 96:18–22. Muneer further stated all ministries used this system

to date and number the correspondence they received. Muneer Dep. 2/5/19, 95:7–97:12. But there

is no similar document bearing MoD’s stamp indicating it was sent to, or received, by MoD in

regard to either the July 17, 2004 or the December 28, 2004 alleged scrap bans. Indeed, there is no



                                                  65
evidence copies of these letters exist in MoD’s files. This suggests to the Court that MoD was not

an intended recipient of the scrap ban directives and these prohibitions were not binding on MoD.

Mallat deduced the same: “I understand from various testimonies and documents that the Ministry

of Defense in the arguments presented by its counsel in the present case did not find any scrap ban

documents in its possession and so were not produced. Considering the fact that it’s a requirement

that Mrs. Muneer underlined that this should be filed properly, the fact that directives coming from

the Council of Ministers were not filed suggests that they were simply not directives addressed to

the Ministry of Defense.” Mallat Dep. 2/14/19, 82:11-21. And MoD was going to be the scrap

seller under the BSA—Wye Oak was merely brokering the sales for MoD—so there was no reason

Wye Oak would be bound in any manner beyond MoD.

       Third, the Court again notes there is no evidence Wye Oak was ever informed about these

alleged scrap bans. One reason why MoD may not have provided notice was the scrap bans did

not apply to MoD and therefore there was no need to give notice. Defendants failed to present any

witness who could be questioned on this subject.

       Because this is an affirmative defense, defendants bear the burden of proof. And records

related to the alleged scrap bans were uniquely under their control. Yet defendants did not provide

the Court all records to sufficiently understand the entire significance of the July 17, 2004

directive. And the lack of evidence that copies of these letters exist in MoD’s files strongly

indicates these prohibitions were not binding on MoD based on Muneer’s testimony on ministries’

filing practices. Therefore, defendants have not carried their burden of proving the scrap bans

applied to MoD. Accordingly, the Court does not believe the December scrap ban was a

superseding event that shielded defendants from liability for lost profits from scrap sales.




                                                 66
       B. Damages for the Three Invoices

       Wye Oak is entitled to damages for its three invoices. These invoices are described in

Section II(F). Although plaintiff’s damages expert only calculated an award based on Wye Oak’s

overhead and profits from these three invoices because he felt he lacked sufficient documentary

evidence of direct costs incurred by Wye Oak not included in overhead costs, the testimony and

evidence elicited at trial (which occurred after Gale produced his expert report) demonstrate Wye

Oak performed the invoiced activities. Wye Oak has demonstrated it is more likely than not it

incurred the invoiced costs for performing this work.

       Invoice #MUQ001 covered the initial construction cost of an armored vehicle depot at

Muqtadiya, the initial hiring and training of workers, and the initial purchasing of tools. The

construction cost of the armored vehicle depot was invoiced at $1,600,000 and the initial hiring

and training of workers and purchasing tools was invoiced at $220,000. Also, Invoice #MUQ001

included $273,000 in overhead and $209,300 in profits. Gale did not include in Wye Oak’s

damages either the construction cost or the cost to hire and train workers and purchase tools

because he did not find documentary evidence of those costs. Pl.’s Ex. 101 at 8. But the evidence

at trial demonstrates initial construction work at Muqdadiya was completed. The evidence shows

armored vehicles were refurbished at that installation, which could not have been completed if the

depot was not initially constructed. Further, this work could not have occurred if Wye Oak had not

hired and trained workers or purchased tools. And it would have been impossible to construct the

depot, hire and train workers, and purchase tools without spending money. Therefore, the Court

finds the preponderance of the evidence shows Wye Oak expended funds for the direct costs billed

in this invoice in addition to its overhead costs. Wye Oak is entitled to be reimbursed for the costs




                                                 67
it incurred. Thus, the Court will award Wye Oak for these costs and its overhead and profit on this

invoice, which amounts to $2,302,300.

           Invoice #TAJI001 covered mobilization costs incurred for the construction of the Taji

facility and the movement of spare parts to Taji. The mobilization costs totaled $4,200,000 and the

cost to move spare parts to Taji was $500,000. Pl.’s Ex. 18. Invoice #TAJI001 included $705,000

in overhead and $540,500 in profits, too. Again, Gale only assessed Wye Oak was owed the

overhead and profit amounts from Invoice #TAJI001 because he did not find evidence of the other

costs. However, the evidence demonstrates Wye Oak performed refurbishment work at Taji. This

required spare parts to be moved to Taji. As a result, the Court finds it is more likely than not that

Wye Oak expended the $500,000 to move the spare parts to Taji. Wye Oak is therefore entitled to

this amount to reimburse it for its expenditure. In addition, Wye Oak is entitled to its overhead

costs, which the Court also finds were incurred in performing this work, and its profit on this

invoice. Accordingly, the Court will award Wye Oak $1,745,500 for Invoice #TAJI001.21

           Finally, Invoice #MUQ002 covered the cost of travel, lodging, and food for technical

experts, materials to wash and paint vehicles, costs for skilled and unskilled labor, and costs for

the initial repair of 246 armored vehicles at both Muqdadiya and Taji. The cost of travel, lodging,

and food for technical experts was $112,150, the cost of materials to wash and paint vehicles was

$83,600, the cost for skilled and unskilled labor was $56,000, and the costs for initially

refurbishing vehicles at Muqdadiya and Taji amounted to $12,866,500. In addition. this invoice

included $1,952,596.50 in overhead and $1,496,990.65 in profits. Once again, Gale only assessed

Wye Oak was owed the overhead and profit amounts from Invoice #MUQ002 because he did not

find documentary evidence of the other costs. But the evidence demonstrates Wye Oak incurred



21
     Wye Oak does not seek damages for the $4.2 million in mobilization fees included in Invoice #TAJI001.

                                                         68
more than just its overhead costs for this invoice, too. The evidence shows Wye Oak had a local

workforce and paid this workforce. And the evidence shows Wye Oak washed and painted the

vehicles as part of its refurbishment efforts, and incurred expenses obtaining the material necessary

to do this work. Further, Wye Oak refurbished armored vehicles at Muqdadiya and Taji. In fact,

Wye Oak exceeded the goal of producing a mechanized brigade of operational armored vehicles

for Iraq’s January 2005 parliamentary election. Accordingly, the Court finds it is more likely than

not Wye Oak incurred the costs for these activities in addition to its overhead on this invoice.

However, the record does not establish Wye Oak incurred expenses for technical experts’ travel,

lodging, and food. Instead, the evidence indicates GIG paid for this. In Dale Stoffel’s November

25, 2004 email to Raymond Zayna, he stated the $112,150 from Invoice #MUQ002 was “due to

GIG for completed work for the transportation of Ukrainian Experts to assess the repair/overhaul

work.” Pl.’s Ex. 31. The Court therefore finds Wye Oak was not the party that incurred this cost

included in Invoice #MUQ002. In sum, the Court will award Wye Oak for its incurred costs in

addition to its overhead and profit on this invoice, which amounts to $16,455,687.

       Defendants contend the evidence does not sufficiently demonstrate Wye Oak expended

funds beyond its overhead costs. Defendants point out that Wye Oak has not provided the Court

with any bank records or other documentary evidence of specific expenditures for the costs it

claims it incurred. While the ideal case may include such specific records, this is not always the

situation. Expenses can be incurred in other ways than simply withdrawing funds from bank

accounts. And the Court must note Dale Stoffel’s computer was with him in the car when he was

murdered. The computer was taken and the records that may have existed on his computer were

lost to Wye Oak. This does not lower Wye Oak’s burden in any way, but it may be one reason

Wye Oak has not presented documentary evidence. Ultimately, the fact Wye Oak performed the



                                                 69
activities on the invoices and refurbished a significant number of armored vehicles demonstrates

it was incurring costs. And defendants approved these invoiced costs at the October 19, 2004

meeting (and again stated it would pay Wye Oak for these invoiced costs at the December 5, 2004

meeting). Wye Oak is entitled to receive these (approved) costs, which the record establishes it

incurred in performing the BSA.

       Accordingly, the Court will award Wye Oak a total of $20,503,487.15 in damages for the

three invoices.

       C. Lost Profits

       To recover lost profits for a breach of contract, the plaintiff must establish that the breach

proximately caused the loss, that the loss of profits was a foreseeable result of the breach, and that

the amount of damages can be established with a reasonable estimate. The Court will address these

elements when assessing each of the lost profits claims. But the Court will first examine—and

dispense with—five of defendants’ overall objections to plaintiffs’ lost profits calculations: (1)

that the BSA excluded lost profits damages, (2) that Wye Oak was not qualified to perform under

the BSA, (3) that Wye Oak did not have the capacity to perform under the BSA, (4) that Gale

assumed an unrealistic timeframe for calculating Wye Oak’s lost profits, and (5) that the Court

should give additional scrutiny to Wye Oak’s damage calculation because it was a new business.

                  1. Defendants’ Overall Objections to Plaintiffs’ Lost Profits Calculations

       First, defendants argue the BSA explicitly exempted lost profits damages. They point to

the provision in the BSA that states:

       In the event of any cancellation or termination of any Sales Contract by the Ministry
       regardless of cause:
           1. Broker shall retain all commissions theretofore paid under this Agreement;
           2. Broker shall be entitled to receive its commission which is payable in
               respect of each Sales Contract concluded by the Ministry during the term of
               this Agreement.

                                                  70
           3. Broker shall also be entitled to receive its commissions from the Ministry
              on all Sales Contracts in which the Contract Value or portions thereof
              become payable by the Customers to the Ministry for a further period of one
              year from the date of termination with respect to Sales Contracts on which
              the Broker has represented or worked for the Ministry as its Broker.

Pl.’s Ex. 5 ¶ 4(c). Defendants allege this provision demonstrates the parties negotiated a limit on

available damages to sales contracts Wye Oak brokered yet were canceled or terminated by MoD.

Therefore, defendants argue Wye Oak should not be able to obtain lost future profits for contracts

not yet brokered. But this provision does not limit damages resulting from a material breach of the

BSA as defendants contend. And it does not indicate the parties contemplated limiting available

damages resulting from a breach of the BSA. The BSA does not contain any such provision.

       Second, defendants allege Wye Oak was not qualified to perform. Defendants charge Wye

Oak did not put forward evidence it previously successfully undertook projects of a similar scale

as the BSA, did not fully explain its business plan, and did not demonstrate it had available capital

to perform. However, these claims are rebutted by the BSA’s own language praising Wye Oak and

by Wye Oak’s demonstrated record of performance, as detailed above. The BSA recognized Wye

Oak “has extensive experience in facilitating and arranging for the purchase and sale of all types

of Military Equipment at the highest and best commercial prices and rates. The Ministry

acknowledges that [Wye Oak] has established contacts throughout the world regarding the sale of

Military Equipment and [Wye Oak] has also established government and other contacts in Iraq.”

Id. ¶ 2. Also, Wye Oak performed under the BSA, exceeding the goal set for the number of

refurbished military vehicles produced by the January 2005 election. The evidence establishes

Wye Oak only ceased performing under the BSA because of defendants’ material breach not

paying Wye Oak for the three invoices. Defendants cannot claim Wye Oak was not qualified to

perform work under the BSA, some of which it was already performing, based on newly moved



                                                 71
goal posts defendants have only just asserted should be the standard upon which to judge Wye

Oak’s qualifications. Such a finding would contradict the record in this matter.

       Third, defendants claim Wye Oak did not have the capacity to perform under the BSA.

Defendants seem to base this allegation on the fact that Wye Oak was a small company, that Iraq

was a war zone, and that there may not have been a demand for Wye Oak’s services. For the

reasons stated in the previous paragraph, Wye Oak’s record of performance under the BSA

establishes it had the capacity to perform; indeed, it already was. And the record demonstrates

Wye Oak had already partnered with CLI and obtained local labor so Wye Oak’s size does not

seem to be the Achilles’ heel defendants make it out to be. Also, Wye Oak already demonstrated

it could perform in a war zone, which is exactly what the contract contemplated and called for, so

the Court does not find this to be an impediment to Wye Oak’s capacity. Finally, defendants’

argument about a lack of demand for Wye Oak’s services is bizarre. The Court has been presented

with a great deal of testimony on the importance of the IMERP and the critical goal of re-equipping

the Iraqi armed forces. This is why defendants contracted with Wye Oak. To now argue Iraq may

not have been able to fund the services it contracted Wye Oak to perform is illogical. Essentially,

defendants are stating Wye Oak should not receive lost profits damages because defendants may

have materially breached the contract at some other point in time. This is not a valid (or serious)

defense. In addition, Gale presented the Court with evidence regarding the robust worldwide

demand for scrap. See infra Section III(C)(4). There does not seem to be any lack of demand for

Wye Oak’s services.

       Fourth, defendants take issue with Gale’s timeframe for calculating lost profits. Defendants

argue it is unrealistic to think Wye Oak could have accomplished the base construction services,

military equipment refurbishment activities, and scrap sales within one year, rather than spreading



                                                72
it out over the three-year life of the contract.22 Gale started his timeframe calculation by examining

the percentage of total base construction cost at Taji and Muqtadiya covered by Wye Oak’s

October 2004 invoices. Taji had a total construction budget of $42,000,000 based on the

calculations in Invoice #TAJI001, and Wye Oak invoiced $4,700,000 on this project on October

11, 2004. Invoice #MUQ001 did not provide the total construction budget for Muqtadiya, but

showed Wye Oak invoiced $1,820,000 on this project on October 11, 2004. Gale used the fact

Wye Oak had invoiced approximately 11% of the work for Taji in Invoice #TAJI001 to assess

Wye Oak likely invoiced this same percentage of the work for Muqtadiya in Invoice #MUQ001.

So Muqdadiya’s total cost was $16,300,000. Pl.’s Ex. 101 at 8–10.

         On November 25, 2004, Dale Stoffel emailed Raymond Zayna, informing Zayna that Wye

Oak had been advised to submit invoices for the next phase of construction work at Taji. Pl.’s Ex.

31 at 3. The new invoice would be for an additional $12,600,000 million for “the next 30% of the

work.” Id. Gale deduced this indicated Wye Oak planned to complete another 30% of the

construction work at Taji by the end of the first quarter of 2005. He then assumed this same pace

of construction, 30% per quarter, for both Taji and Muqtadiya. This means they would have been

completed by the end of the third quarter of 2005. And Gale believed the remaining bases would

have been started after the initial delivery of armored vehicles in January 2005. Using the same

pace of construction for those bases, Gale calculated construction at the remaining bases would

have been completed by the end of 2005. Gale testified the percentage of funds expended is a

common economic proxy for determining the progress towards a project’s completion. Tr.

12/21/18 PM 15:24–16:25, 17:1–18:3, 30:6–35:12.



22
   The term of the BSA was one year, commencing on August 16, 2004, with two option years, which would
automatically renew unless either party notified the other in writing at least 60 days before the period would end of
the intent not to renew. Pl.’s Ex. 5 ¶ 3.

                                                         73
       Further, Gale’s report states that he assessed Wye Oak would refurbish military equipment

and engage in scrap sales during the same time frame in which it was constructing the facilities.

Gale based his determination of the timing of military equipment refurbishment on the fact Wye

Oak refurbished a significant number of armored vehicles between August 2004 and January 2005

at the same time that Wye Oak’s invoices demonstrate it was starting to construct the facilities at

Taji and Muqtadiya. Pl.’s Ex. 101 at 18. Gale indicates he assumes Wye Oak would have continued

to operate in this manner, refurbishing military equipment while simultaneously constructing the

facilities. He believes Wye Oak would have engaged in scrap sales during this time frame as well

because it would have been optimal for Wye Oak to determine which vehicles could be refurbished

and which had to scrapped simultaneously. Id. Therefore, it makes sense to engage in scrap sales

at the same time as the other activities are occurring. In addition, Gale believed this pace was

reasonable to assume because the pro forma invoice component of the contract was structured in

such a manner as to encourage the work to be completed as fast as possible. The Court finds this

pace of work to be reasonable based on the extensive evidence in this case that the IMERP was a

key priority for Iraqi security and there was an urgency to re-equip the Iraqi military. Ultimately,

the Court finds Gale’s assessment to be reasonable, based on adequate evidence, and founded in

solid economic principles.

       Fifth, defendants also contend it is improper to award damages for lost profits to a new

business because the absence of income and expense experience renders anticipated profits too

speculative. However, defendants primarily rely on decisions applying state laws precluding lost

profits damages for new businesses. And the one D.C. Circuit case defendants cite, Eureka Inv.

Corp. N.V. v. Chicago Title Ins. Co., 743 F.2d 932, 939 (D.C. Cir. 1984), did not deny damages

based on the businesses’ newness. Defendants have not pointed the Court to any source indicating



                                                74
this rule exists in Iraqi law or that it is even the general rule in the U.S. today. To the contrary,

“most recent cases reject the once generally acceptable rule that lost profits damages for a new

business are not recoverable.” Robert L. Dunn, Recovery of Damages for Lost Profits § 4.3 (5th

ed.1998). And the Federal Circuit has explicitly rejected this rule in a breach-of-contract suit

against the U.S. Department of Housing and Urban Development. Energy Capital Corp. v. United

States, 302 F.3d 1314, 1324–27 (Fed. Cir. 2002). The Court requires Wye Oak to establish all the

elements required to recover lost profits, which may be difficult for a new venture to do, but such

damages are not barred as a matter of law and the Court is not required under the law applicable

to this case to examine Wye Oak’s lost profits damages with additional scrutiny.

               2. Lost Profits from Construction

       As discussed above in Section III(C)(1), the BSA covered construction as an integral part

of Wye Oak’s military refurbishment services efforts. Gale found Wye Oak intended to build at

least eight facilities to perform the services covered by the BSA. Gale used the construction

budgets from Taji and Muqtadiya to determine the construction cost at the remaining bases. The

Court finds that defendants’ breach proximately caused Wye Oak’s lost profits from construction,

that this was a foreseeable result of the breach, and that Gale’s estimates are reasonable.

       First, defendants’ breach was the natural and proximate cause of plaintiff’s lost profits from

construction. The Court has already detailed defendants’ material breach. If defendants had not

breached the BSA, Wye Oak would have been able to engage fully in this military refurbishment

service. Indeed, Wye Oak had already begun construction activities at Taji and Muqtadiya even

without receiving any payment. And the Court has already found Wye Oak and CLI, who had

extensive construction experience, had a strong relationship and were prepared to formally

establish a partnership once Wye Oak received payment on the three invoices. Pl.’s Ex. 51; Tr.



                                                 75
12/18/18 AM 53:8-25; Tr. 12/18/2018 PM 8:1–4, 50:21-25; Tr. 12/19/18 AM 43:1–4; Felix Dep.

6:16–7:24, 42:14-45:16, 114:1-115:11.

       Second, the loss of profits from base construction was a foreseeable result of the breach.

Constructing facilities was an essential aspect of Wye Oak’s military refurbishment services duties

under the BSA. Lost profits from construction were therefore a natural result of defendants’ breach.

And defendants had reason to foresee these lost profits damages would be a probable result of their

breach when the BSA was signed. Restatement (Second) of Contracts § 351. Defendants were

aware of the importance of constructing facilities to carry out the refurbishment military services

and had reason to foresee failing to pay Wye Oak for the three invoices would inhibit Wye Oak’s

ability to construct facilities, thereby losing profits it would have garnered.

       Third, Gale’s assessment of the amount of lost profits from base construction was a

reasonable estimate. Gale assessed Wye Oak would have constructed facilities at eight military

installations. The BSA specifically listed five facilities where Wye Oak was to begin performing

services: “Taji Military Base/Camp Cooke, Camp Normandy [also called Muqtadiya], Camp

Ashraft, Camp Anaconda, and the Coalition facilities at the Hilla Military Facility.” Pl.’s Ex. 5 ¶

2. In addition to these military installations set forth in the BSA, Beadle testified there were plans

to have facilities at Dahuk, Diwaniyah, and Nasiriyah. Tr. 12/20/18 PM 39:13–41:18; Pl.’s Ex. 96.

And the three invoices demonstrate Wye Oak began construction at Taji and Muqtadiya shortly

after the BSA came to fruition even without receiving payment. Based on this prompt action, Gale

assessed Wye Oak would have also rapidly begun and completed construction at the other military

installations had defendants not breached the contract. The Court finds these assessments to be

reasonable based on the evidence elicited in this case.




                                                  76
         Gale used the constructions costs invoiced at Taji and Muqtadiya to assess the costs for

construction at the other sites. As discussed above, Taji had a total construction budget of

$42,000,000 based on the calculations in Invoice #TAJI001 and Gale used the ratio of work

initially invoiced at Taji compared with Taji’s total cost to assess the cost of construction at

Muqtadiya would have been $16,300,000. Taji and Muqtadiya were set to be used for both vehicle

recovery and scrapping activities. Based on an interview with David Stoffel, Gale determined four

of the other military installations would also have been used for both vehicle recovery and

scrapping activities, and would have operated at a similar scale and scope as Muqtadiya.23 This

led Gale to set construction costs at those four installations at the same amount as Muqtadiya,

$16,300,000, a reasonable estimation given that these facilities were supposed to be set up to

perform the same type of work. The remaining two installations were only planned to be used for

scrapping, so Gale estimated construction would cost half as much as it would for the other

facilities because only half of the work (scrapping activities) was going to be performed there.

Therefore, he estimated these sites would cost $8,150,000 each.24 Further, Gale included a 15%

overhead cost for construction based on the 15% overhead included in Wye Oak’s three invoices.

Although defendants argue the BSA did not specifically permit overhead costs to be paid to Wye

Oak, overhead is a natural cost for businesses and the Court sees no reason this would have been

excluded from future invoices, especially given that defendants approved Wye Oak’s three



23
   At trial, Gale explained the damages amounts for construction set forth in his report were conservative, especially
after he learned more about the scope and scale of the likely construction activity from listening to Beadle’s testimony.
Gale explained, “the testimony was that a couple of those facilities were contemplated to being almost as big as Taji,
while I’ve assumed them all to be the size of Muqtadiya, which is significantly smaller than Taji Tr. 12/21/18 PM
26:3–7.
24
   Gale testified his assumption these two installations would only cost $8,150,000 each was conservative, too,
because, “at each one of these facilities you still have to build barracks; you still have to build latrines; you still have
to build food service, regardless of how much you’re doing. And it’s only the parts of the facility that are actually
doing the work that you save half on.” Tr. 12/21/18 PM 25:15–24.


                                                            77
invoices that all included 15% overhead. Gale’s total cost estimation is therefore scaled with the

15% overhead charge even though Gale did not separately calculate that Wye Oak should receive

that 15% overhead charge. In other words, the profit margin calculation includes the 15%

overhead, but there is no separate claim for profit on that 15% overhead charge. Tr. 12/21/18 PM

4:24–5:15. The Court finds these cost assessments to be reasonable, and likely conservative.

       And Gale estimated this construction work would all be completed by the end of 2005, as

discussed above in Section III(C)(1). The Court believes this timeline is reasonable and based on

sound economic principles.

       Finally, under the First Amendment, defendants were required to pay Wye Oak 10% of the

cost of military refurbishment services, which would include construction costs, as compensation.

Pl.’s Ex. 19. The MoD was required to pay Wye Oak immediately upon the presentation of pro

forma invoices at the beginning of each stage of construction. Pl.’s Ex. 5 ¶ 5(b). The loss of the

expected 10% fees constitutes the lost profits to Wye Oak from facility construction due to

defendants’ breach. Gale calculated Wye Oak’s lost profits from construction was $15,327,200.

       Ultimately, the Court finds Gale’s assessment was a reasonable estimate of the lost profits

from construction that was proximately caused by defendants’ breach and a foreseeable result of

this breach. Accordingly, the Court will award Wye Oak $15,327,200 in lost profits from

construction.

                3. Lost Profits from Refurbishing Military Equipment

       Wye Oak suffered lost profits from not being able to refurbish military equipment under

the BSA. Refurbishing military equipment was one of Wye Oak’s key responsibilities and it was

a vital task as part of the IMERP. Under the BSA, MoD was required to pay Wye Oak 10% of the

equipment’s refurbishment cost. Pl.’s Ex. 5 ¶ 5(a). Defendants’ breach proximately caused Wye



                                               78
Oak’s lost profits from refurbishing military equipment, this was a foreseeable result of the breach,

and Gale’s estimates are reasonable.

       First, defendants’ breach was the natural and proximate cause of plaintiff’s lost profits from

refurbishing military equipment. If defendants had not breached the BSA, Wye Oak would have

been able to continue refurbishing military equipment, thus earning 10% of the equipment’s

refurbishment cost. Wye Oak had already begun refurbishing military equipment despite the fact

defendants did not pay Wye Oak for this work. Indeed, the Court has already found Wye Oak

exceeded the goal of producing a mechanized brigade of operational armored vehicles for Iraq’s

January 2005 parliamentary election. The evidence shows Wye Oak was eventually forced to cease

performing these refurbishment activities because defendants never paid Wye Oak. Thus,

defendants’ breach caused Wye Oak’s lost profits from refurbishing military equipment.

       Second, the loss of profits from refurbishing military equipment was a foreseeable result

of the breach. Refurbishing military equipment was a key component of the BSA. Iraq needed to

re-equip its armed forces. Lost profits from refurbishing military equipment was therefore a natural

result of defendants’ breach. And defendants had reason to foresee these lost profits damages

would be a probable result of their breach when the BSA was signed. Restatement (Second) of

Contracts § 351. Defendants were aware of the importance of refurbishing military equipment;

this was a driving factor in entering into the BSA. And defendants had reason to foresee failing to

pay Wye Oak for the three invoices would inhibit Wye Oak’s ability to refurbish military

equipment, thereby losing profits it would have garnered.

       Whether Gale’s calculation for lost profits from refurbishing military equipment

constitutes a reasonable estimate is more difficult. Iraq had a significant military with extensive

equipment prior to the U.S.-led Coalition invasion in 2003. A significant amount of military



                                                 79
equipment was damaged during the invasion. Wye Oak was surveying this military equipment to

develop an inventory, but it did not complete this effort by the time defendants breached the BSA.

See Tr. 12/18/18 AM 38:11–41:17; Pl.’s Ex. 65 (discussing David Stoffel’s work writing a

computer program that could ultimately be used to inventory and track all the equipment Wye Oak

was refurbishing and would potentially broker for sales based on information Dale Stoffel sent

him). Gale therefore had to rely on Wye Oak’s initial estimates of the amount of salvageable

military equipment and on public sources listing Iraq’s military equipment during the relevant

time. Gale found the numbers of military equipment were largely consistent across the public

sources he relied on.

       At this point, the Court must take a brief detour to note defendants’ discovery abuses that

severely limited the material available to Wye Oak and Gale. Wye Oak’s discovery sought

information about Iraq’s weapons inventories between 2003 and 2007. But defendants did not

provide any documentation or answers in response. See generally Tr. 12/21/18 PM 91:20–93:19;

Wye Oak’s Second Set of Interrogatories (requesting inventories for specified weapons between

2003 and 2007 and inventory of equipment damaged during the invasion); ECF No. 228-5 (Iraq

Response to Wye Oak’s Second Set of Interrogatories); ECF No. 228-7 (MoD Response to Wye

Oak’s Second Set of Interrogatories); ECF No. 228-11 (Iraq Response to Wye Oak’s Fourth Set

of Interrogatories); ECF No. 228-15 (MoD Response to Wye Oak’s Third Request for Production

of Documents). Then when conducting Talib’s de bene esse deposition, after the first week of trial

had already been completed, Wye Oak learned Talib never even looked for relevant documents.

Talib Dep. 2/8/19, 111:4–117:22. Talib only looked for records on large-scale weapons inventories

from 2003. Id. He did not search for documents at any military bases or otherwise look for

documents that could be used to extrapolate inventory. Further, Talib did not make any effort to



                                               80
look for inventories from 2004 through 2007, despite Wye Oak specifically requesting documents

from this period during discovery. Talib Dep. 2/8/19, 117:10–121:9.25 Defendants’ flagrant

disregard for its discovery obligations can only be seen as bad faith. Defendants have used their

own egregious discovery abuses to attempt to deprive Wye Oak of the evidence it would have used

to obtain a damages award. Defendants’ discovery abuses forced Gale to locate and rely on third-

party data sources instead of primary data sources and documents. And during trial, defendants

sought to leverage their own discovery failures to call into question the reliability of Gale’s

assessments. This cannot stand. See Shepherd v. Am. Broad. Companies., Inc, 62 F.3d 1469, 1478

(D.C. Cir. 1995) (determining district courts may impose issue related sanctions—sanctions for

litigation misconduct that are fundamentally remedial, rather than punitive and do not preclude

trials on the merits—for litigation misconduct—whenever “a preponderance of the evidence

establishes that a party’s misconduct has tainted the evidentiary resolution of the issue”). The Court

will therefore credit Gale’s estimates based on these data sources as a sanction. See id. at 1475

(declaring “inherent power sanctions available to courts include fines, awards of attorneys’ fees

and expenses, contempt citations, disqualifications or suspensions of counsel, and drawing adverse

evidentiary inferences or precluding the admission of evidence”).

         Returning to Gale’s assessments: To calculate Wye Oak’s lost profits from not being able

to complete the military equipment refurbishment, Gale had to identify the quantity of each type

of equipment, the cost of replacement of each type of equipment, and the threshold percentage at


25
   In response to Wye Oak’s sanctions motion, defendants attempted to excuse Talib’s definitive statements that he
did not make any effort to search for the documents Wye Oak explicitly requested by filing an affidavit from Talib
claiming that when he investigated whether MoD possessed responsive documents, he learned the original armored
brigade was reorganized and records were not maintained after 2009. Talib Decl., ECF No. 406-3. But this affidavit,
submitted after the trial ended, contradicts Talib’s clear de bene esse deposition testimony. Talib did not equivocate
during his testimony—he asserted he did not search for the documents Wye Oak requested. And to the extent Talib’s
affidavit is truthful, which the Court has serious reason to doubt given his sworn trial testimony, defendants never
disclosed this information to Wye Oak. Therefore, the Court cannot credit defendants’ after-the-fact excuses for its
clear discovery abuses.

                                                         81
which equipment would be refurbished or scrapped. He then multiplied the cost of refurbishment

by the number of pieces of each type of equipment. Finally, he multiplied that number by 10% to

derive Wye Oak’s lost profits. Pl.’s Ex. 101 at 11.

         With completed surveys about repair records, purchase prices, and replacement rates, Gale

could have developed economic models to determine the expected cost of refurbishing each type

of military equipment by examining the timing of repairing and replacing the equipment. Tr.

12/21/18 PM 41:18-42:25. Such models rely on a comparison between the repair cost and the

replacement cost of a piece of equipment. Id. at 12. The repair cost an owner would be willing to

expend is commonly a percentage of the cost to replace the equipment. Id. Absent such completed

surveys, Gale created a range of refurbishment costs for each type of military equipment as a

function of the replacement cost, which he drew from public information on sales and listings. Id.

         Gale separated the military equipment Wye Oak would have refurbished under the BSA

into five categories: (1) tanks; (2) armored personnel carriers (APC) and other armored vehicles;

(3) helicopters; (4) artillery, airplanes, and ships; and (5) other military equipment. Id.26 Wye Oak

estimated that 20% of military equipment would be salvageable. Id. at 13; see Tr. 12/21/18 AM

87:4–14. Gale used this estimate that 20% of the equipment could be refurbished. Pl.’s Ex. 101 at

13.27 He testified he believed this 20% figure was actually a conservative estimate based on

publicly available analysis about the state of Iraqi military equipment after the invasion because

numerous studies assessed that only a small percentage of Iraqi military equipment was even


26
   The BSA defined military equipment as “any equipment that is used by or in the provision of military, including,
without limitation, any and all vehicles, aircrafts, guns, missiles, armored personnel carriers, heavy armor/tanks,
military radar equipment, ballistic missiles, rocket launchers, artillery, artillery scrap, small arms, small arms scrap or
any parts or components thereof.” Pl.’s Ex. 5 ¶ 1(d). Non-armored vehicles, missiles, military radar equipment,
ballistic missiles, rocket launchers, and small arms are all included in this definition but fall outside the four defined
categories of military equipment in Gale’s report. This military equipment is therefore referred to as “other military
equipment.” Pl.’s Ex. 101, 17–18.
27
   Gale did not have any other information to rely on because defendants disregarded their discovery obligations and
did not provide any records showing the numbers of equipment that were refurbished and scrapped.

                                                           82
engaged in the war. Tr. 12/21/18 AM 65:23–67:3, 73:3–18. And Gale testified reports found about

half of Iraqi military equipment was not functional before the war because sanctions limited Iraq’s

ability to obtain spare parts to make the necessary repairs for that equipment. Tr. 12/21/18 AM

65:23–67:3, 73:3–18. This information led Gale to believe a significantly greater percentage of

Iraqi military equipment was likely capable of being refurbished because it was never in battle and

likely only needed rather insignificant repairs once sanctions no longer prevented parts from being

obtained. Tr. 12/21/18 AM 65:23–67:3, 73:3–18. Gale explained that if more equipment was

capable of being refurbished, the damages estimate would have been higher. Tr. 12/21/18 AM

65:23–67:12.

       Defendants take issue with Gale’s use of Wye Oak’s estimate that 20% of the military

equipment would have been suitable for refurbishment. Although Gale discussed reports indicating

Iraq did not use most of its military equipment during the U.S.-led Coalition invasion during his

testimony, these studies are not listed in his expert report as documents he relied on. Defendants

conclude Gale has therefore failed to support his assumption that 20% of Iraqi military equipment

was salvageable. While the Court is troubled by Gale’s failure to include these studies as

documents he relied on in his expert report, the Court must also note defendants engaged in

discovery abuse by not even searching for inventories of military equipment that Wye Oak

requested. Defendants’ disregard for their discovery obligations forced Gale to have to rely on

Wye Oak’s own business estimates and look for publicly available studies. Defendants cannot

weaponize these abuses to call Gale’s estimates into question. Therefore, the Court finds it was

reasonable for Gale to rely on Wye Oak’s estimate that 20% of the military equipment would have

been suitable for refurbishment.




                                                83
       Then Gale calculated refurbishment cost of each piece of military equipment using a range

of refurbishment cost between 10% to 40% of replacement cost. Pl.’s Ex. 101 at 14. At the time

defendants breached the BSA, Wye Oak had already invoiced costs to refurbish 246 armored

vehicles in Invoice #MUQ002. The invoiced refurbishment costs per vehicle from this invoice

were approximately 5% of the replacement costs of the vehicles. But Gale did not believe it would

be appropriate to use this number as a benchmark for the cost to refurbish the remaining

salvageable vehicles. Id. at 13–14. Wye Oak targeted military equipment that required the least

amount of work to refurbish so that such work could be done quickly. Wye Oak was focused on

producing armored vehicles for the January 2005 election. Gale asserted that subsequently

refurbished equipment would require significantly higher refurbishment costs than those already

invoiced because they would require more work. He therefore assumed the lower range of average

per-unit cost to refurbish subsequent vehicles would be 10% of the replacement costs of the

vehicles. And he determined the higher range of average per-unit cost to refurbish subsequent

vehicles would be 40% based on industry guidelines that advise not spending more than 40% of

the replacement cost on refurbishing existing equipment. Id. at 14. While defendants argue Gale

should have used the 5% figure based on Wye Oak’s invoiced costs, the Court finds Gale’s

estimates were reasonable. The evidence in this case demonstrates Wye Oak was initially focused

on the armored vehicles that required the least amount of work to refurbish so that these vehicles

could be put into operation expeditiously and in time for the January 2005 election. The Court

therefore concurs with Gale’s assessment that using the 5% figure would not have been appropriate

for subsequently refurbished equipment that would typically require more work and therefore cost

more. Id.




                                               84
         Subsequently, Gale examined the number and types of equipment in each category of

military equipment present in Iraq, the amount of each type of equipment that was salvageable,

the per-unit low and high refurbishment costs for each type of equipment, and the scrap value of

the non-salvageable equipment for each type of equipment.28 Gale used data from Wye Oak’s

estimates and public sources in these assessments. And he calculated refurbishment cost per unit

using a range of refurbishment cost between 10% to 40% of replacement cost for all military

equipment, except the tanks, APCs, and other armored vehicles that were included in Wye Oak’s

Invoice #MUQ002, since he used the refurbishment cost Wye Oak already invoiced for this

equipment. Gale assumed no Iraqi Navy assets could be salvaged and would therefore all be sold

as scrap because of a lack of information on whether Iraqi Navy equipment could be salvaged

following the 2003 invasion. Id. at 17. This assumption was informed by public studies showing

the Iraqi Navy was operating solely with ships supplied by the U.S. military as of October 2005.

Id. at 17 n.68. And Gale did not include estimates of quantities, refurbishment costs, or scrap value

for the category consisting of other military equipment because he was only able to find limited

information on these types of equipment. Id. at 17–18. Although Wye Oak asks the Court to

enhance Gale’s damages calculation by issuing an award for the category consisting of other

military equipment as a sanction for defendants’ discovery abuses, Wye Oak has not provided any

factual basis upon which the Court could issue such an award. Therefore, the Court will not disturb

Gale’s estimates by trying to fashion an estimate of its own absent any factual underpinning.




28
   Gale stated “the minimum value of a helicopter that cannot be refurbished would be its disposal value. The disposal
value would be its scrap value plus the value of any parts that could be recovered and sold. Unlike armored vehicles,
simply using the scrap value likely vastly understates the disposal value of the helicopter as it does not value any
electronic or mechanical components that could be separately salvaged and sold as replacement parts.” Pl.’s Ex. 101
at 16. Therefore, he estimated the average disposal value of helicopters that could not be salvaged was 10% of the
replacement cost based on the value of a helicopters’ components, which would be sold as parts. Id.; Tr. 12/21/18 PM
67:3–71:14.

                                                         85
       Defendants’ only complaint regarding Gale’s assessments for the specific types of

equipment focuses on aircraft. Defendants contend there was not a plan to refurbish aircraft based

on General Petraeus’ testimony. When asked by defense counsel whether he observed aircraft

equipment being refurbished as part of the effort to rehabilitate Iraqi military equipment, General

Petraeus stated he did not recall observing aircraft equipment being refurbished. General Petraeus

asserted:

       there was an effort to retrieve and to at least assess Iraqi aircraft, which,
       interestingly, in some places had been buried. Presumably they were going to go
       back and dig it up. But that’s not really good for the maintenance of jets and all the
       rest of that. So I don’t -- I don’t recall if any Iraqi aircraft were ever made capable
       of flying again. But that wasn’t one of the efforts that we were pursuing at that time
       . . . We really didn’t even have an Iraqi Air Force program, I don’t recall us having
       at that time. We ultimately did . . .

Petraeus Dep. 8/8/18, 58:17–59:15. General Petraeus was then cut off by defense counsel, who

asked a new question focused on Iraqi naval vessels. Petraeus Dep. 8/8/18, 59:16–20. General

Petraeus’ statements are not as definitive as defendants make them out to be. General Petraeus was

very careful throughout his testimony to only discuss topics on which he had personal knowledge.

He was typically not willing to make statements about events he did not know about. So the Court

is not especially troubled by his testimony that he did not recall observing aircraft equipment being

refurbished. Stating he did not recall observing this is different than definitively stating it did not

occur at all. And it is worth noting General Petraeus’ high-level responsibilities in Iraq during this

period would likely have limited his ability to be fully aware of every particular facet of the

refurbishment effort. Further, General Petraeus’ testimony indicates there was an effort to assess

Iraqi aircraft and that eventually there was an Iraqi Air Force program. In addition, the BSA

specifically cites aircraft as one of the types of military equipment covered by the contract. Pl.’s

Ex. 5 ¶ 1(d). Wye Oak’s record of performance, especially its quick work refurbishing armored



                                                  86
vehicles in the run-up to the January 2005 election, indicates Wye Oak would have refurbished

Iraqi aircraft as part of the BSA had defendants not breached the Agreement.

         Gale determined the low refurbishment cost for tanks would be $34,954,500 and the high

refurbishment cost for tanks would be $126,420,000. Pl.’s Ex. 103 tbls.3–3B. For APCs and other

armored vehicles, Gale determined the low refurbishment cost would be $33,880,000 and the high

refurbishment cost would be $119,360,000. Pl.’s Ex. 103 tbls.4–4B. For helicopters, Gale

determined the low refurbishment cost would be $46,245,359 and the high refurbishment cost

would be $184,981,437. Pl.’s Ex. 103 tbls.5–5B. And for artillery, airplanes, and ships, Gale

determined the low refurbishment cost would be $31,201,024 and the high refurbishment cost

would be $124,804,096. Pl.’s Ex. 103 tbls.6–6B. As stated above, Gale did not assess any

refurbishment costs for the category of other military equipment.29

         And Gale estimated this refurbishment work would all be completed by the end of 2005,

as discussed above in Section III(C)(1). The Court believes this timeline is reasonable and based

on sound economic principles.

         In sum, Gale calculated the total low refurbishment cost for all categories would be

$146,280,883. He calculated the total high refurbishment cost for all categories would be

$555,565,533. The Court finds that Gale’s assumptions, methodologies, and calculations are

grounded in sound economic principles and result in reasonable estimates. Ultimately, the Court

believes it is most appropriate to award Wye Oak lost profit damages for refurbished military

equipment at a refurbishment cost rate of 20% of replacement cost (except for the T-54/-55 and

APCs, for which the Court will apply the invoiced cost per unit): $267,707,266. The Court believes



29
  Gale assessed the scrap value for the brass shell casings that were stolen at this point in his report. However, as
discussed above in Section II(D), the evidence presented to the Court is insufficient to establish defendants were at
fault for this theft, so the Court will not award Wye Oak damages based on this estimated scrap value.

                                                         87
this refurbishment cost rate, slightly below what the midpoint cost rate would be (25%), is a

conservative assessment. It accounts for the fact that some equipment was bound to be in better

condition while other equipment would need more significant work to refurbish. And the Court

believes this award accounts for the fact that some equipment would not require significant

refurbishment work, as demonstrated by Wye Oak’s initial invoices and by Gale’s finding that

some Iraqi military equipment likely only needed spare parts to be refurbished. This equipment

would likely slightly reduce the refurbishment cost rate. Therefore, the Court believes this award

best captures the true refurbishment cost across the vast array of military equipment. And

accordingly, Wye Oak’s 10% broker fee is $26,770,726.60. So the Court will award Wye Oak

$26,770,726.60 in lost profits from military equipment refurbishing.

               4. Lost Profits from Scrap Sales

       Scrap sales were an important part of the BSA. Absent the breach by MoD, Wye Oak would

have arranged for the sale of scrap and earned broker fees from these sales. Defendants’ breach

directly proscribed Wye Oak’s ability to engage in scrap sales, thereby removing Wye Oak’s

ability to earn broker fees on these deals. And Wye Oak’s lost profits from scrap sales was a

foreseeable result of defendants’ breach and Gale’s estimates on this topic are reasonable.

       Defendants assert the lost profits on scrap sales are speculative because Wye Oak had not

completed any scrap sales at the time defendants breached the BSA. They contend there is too

much uncertainty in whether Wye Oak would have completed any scrap sales for the Court to

award these damages. However, defendants ignore that scrap sales were a fundamental aspect of

the BSA. Arranging scrap sales was one of Wye Oak’s primary responsibilities under the BSA,

and earning commissions on these sales was a primary manner in which Wye Oak would be

compensated under the BSA. Pl.’s Ex. 5 ¶ 2–5. Lost profits are recoverable when those profits



                                                  88
emanate “from the use of the subject of the contract itself,” regardless of whether independent or

collateral undertakings, such as dealings with third parties, are involved. Cal. Fed. Bank, FSB v.

United States, 245 F.3d 1342, 1349 (Fed. Cir. 2001).

       The Federal Circuit set forth the applicable test for determining whether lost profits arise

from activity collateral to the contract in Wells Fargo:

       If the profits are such as would have accrued and grown out of the contract itself,
       as the direct and immediate results of its fulfillment, then they would form a just
       and proper item of damages, to be recovered against the delinquent party upon a
       breach of the agreement . . . But if they are such as would have been realized by the
       party from other independent and collateral undertakings, although entered into in
       consequence and on the faith of the principal contract, then they are too uncertain
       and remote to be taken into consideration as a part of the damages occasioned by
       the breach of the contract in suit.

Wells Fargo Bank, N.A. v. United States, 88 F.3d 1012, 1022–23 (Fed. Cir. 1996). The relevant

inquiry in applying this test is whether the lost profits are too remote to be classified as a natural

result of the breach.

       Collateral undertakings are too remote to permit the award of lost profits when those

undertakings are not directly related to the subject of the contract. Mann v. United States, 68 Fed.

Cl. 666, 669 (2005). For example, in Rumsfeld v. Freedom NY, Inc., 329 F.3d 1320, 1333 (Fed.

Cir. 2003), the plaintiff sought to recover lost profits associated with future contracts the plaintiff

alleged it would have been awarded absent the harm to its business caused by the government’s

breach of an unrelated contract. The Federal Circuit determined such lost profits were too “remote

and uncertain” to be recoverable because they were the result of independent and collateral

undertakings. Id.

       However, lost profits are recoverable when they directly relate to the subject of the contract,

even if they would have required a transaction with a third party. Precision Pine & Timber, Inc. v.

United States, 72 Fed. Cl. 460, 472 (2006), on reconsideration, 81 Fed. Cl. 235 (2007), on

                                                  89
reconsideration in part, 81 Fed. Cl. 733 (2008), and aff’d in part, rev’d in part and remanded, 596

F.3d 817 (Fed. Cir. 2010), and aff’d in part, rev’d in part and remanded, 596 F.3d 817 (Fed. Cir.

2010); Mann, 68 Fed. Cl. at 670. In Mann, the plaintiff sought to recover lost profits from energy

sales to third parties as a result of the government’s breach of a geothermal lease agreement with

the plaintiff. 68 Fed. Cl. at 666. The Court of Federal Claims denied the government’s motion for

summary judgment on the plaintiff’s claim for lost profits, finding the profits from the energy sales

from the leased property to third parties were contemplated by both parties. Id. at 670. The court

held the subject matter of the contract was geothermal energy, and the “[p]rofits on the use of the

subject of the contract itself . . . are recoverable as damages.” Id. at 671.

        Here, scrap was an essential aspect of the subject matter of the BSA. Wye Oak’s lost profits

from scrap sales therefore directly relate to the subject of the contract. Thus, Wye Oak’s lost profits

damages from scrap sales are recoverable despite the fact they would have required Wye Oak to

transact with a third party. Such sales were specifically contemplated by the parties to the BSA.

        The Federal Circuit’s decision in Energy Capital further illustrates lost profits from scrap

sales are recoverable here. In Energy Capital, the government challenged the Court of Federal

Claims’ lost profits award to Energy Capital on its breach of contract claim, arguing such lost

profits were premised on several uncertain steps that needed to occur. Specifically, the government

objected to the fact that several parties would have needed to agree to the transaction for Energy

Capital to have earned the profit. But the Federal Circuit rejected this argument, finding Energy

Capital’s anticipated profits flowed directly from the agreement the government breached, rather

than from other independent and collateral undertakings. The purpose of the agreement between

Energy Capital and the government was to permit Energy Capital to make a profit by engaging in

transactions with third parties. “When the government breached the [] agreement, Energy Capital



                                                  90
was no longer able to issue those loans [to third parties], and its resulting loss of profits flowed

directly from the government’s breach.” Id.

       Accordingly, Wye Oak’s claim for lost profits from scrap sales is not speculative. Wye

Oak may recover such lost profits, which naturally flowed from defendants’ breach. And the loss

of these profits was a foreseeable result of the breach.

       Further, Gale’s calculations on Wye Oak’s lost profits from scrap sales were reasonable

estimates. Gale divided scrap into the same five categories as the refurbishment costs: (1) tanks;

(2) APCs and other armored vehicles; (3) helicopters; (4) artillery, airplanes, and ships; and (5)

other military equipment. Pl.’s Ex. 101 at 19. Gale used the same data discussed in the previous

section for the number and types of equipment in each category of military equipment present in

Iraq. And he determined the military equipment that was not refurbished would be turned into

scrap. In addition, Gale included the 70,000 tons of brass shell casings Wye Oak had attempted to

sell before it was stolen. However, the evidence presented to the Court is insufficient to establish

defendants were at fault for this theft so the Court will not award Wye Oak damages based on the

brass shell casings’ estimated scrap value.

       For tanks, APCs, and other military equipment, Gale used the equipment’s weight and the

price of scrap steel to calculate the scrap value because the largest components of these types of

equipment are made from steel. Scrap steel is shipped internationally and prices vary by location.

Gale found the international scrap market was doing well during the relevant period, driven by

Chinese imports. Id. at 20. Gale elected to use Turkey as a proxy to set the value of scrap steel.

Gale explained he looked for the closest market to Iraq that had a significant volume of scrap from

the U.S., as his data was from the U.S. geological survey that reports the quantities and value of

U.S. scrap exports. Tr. 12/21/18 AM 62:3–63:8. In 2004, 631,000 tons of scrap were shipped from



                                                 91
the U.S. to Turkey, which was valued at $136 million. And those numbers increased in 2005 to

1.5 million tons of scrap shipped from the U.S. to Turkey at a value of over $300 million. Pl.’s Ex.

101 at 20. Gale set the value of scrap Wye Oak would have been processing and the value of the

scrap sales at the price Turkey was paying for U.S. scrap. This was a reasonable estimate of what

Turkey would have paid for Iraqi scrap. Id. Gale also believed Turkey was an attractive export

market for Iraqi scrap because of its geographic proximity. Tr. 12/21/18 AM 63:9–25.

Accordingly, Gale used the 2004 average scrap steel price in Turkey, which was $215 per metric

ton, for his calculations.

        Gale also used ships’ weight and the price of scrap steel to determine their scrap value even

though Gale believed this approach was conservative. Even assuming ships do not have any

valuable components that could be sold separately, Gale asserted ships contain significant amounts

of other types of scrap metal that command higher scrap prices than steel. Pl.’s Ex. 101 at 21.

Nonetheless, Gale used the conservative approach to determine scrap value for naval equipment.

        Gale did not believe it was appropriate to solely rely on the weight and price of scrap steel

for helicopters and aircrafts. Gale determined this would understate their scrap value because

helicopters and aircrafts are not predominately steel. Instead, helicopters and aircrafts contain parts

that could be salvaged or sold as spare parts. This led Gale to estimate the value of a helicopter or

aircraft that could not be refurbished would be 10% of the replacement cost. Pl.’s Ex. 101 at 20–

21.

        Using this methodology, Gale determined the scrap value for tanks would be $14,994,100.

Pl.’s Ex. 103 tbls.3–3B. For APCs and other armored vehicles, Gale determined the scrap value

would be $6,334,829. Pl.’s Ex. 103 tbls.4–4B. For helicopters, Gale determined the scrap value

would be $184,981,437. Pl.’s Ex. 103 tbls.5–5B. And for artillery, airplanes, and ships, Gale



                                                  92
determined the scrap value would be $57,534,782. Pl.’s Ex. 103 tbls.6–6B. Gale did not assess any

scrap value for the category of other military equipment besides the brass shell casings, which the

Court does not accept.

         And Gale estimated this refurbishment work would all be completed by the end of 2005,

as discussed above in Section III(C)(1). The Court believes this timeline is reasonable and based

on sound economic principles.

         In sum, Gale calculated the total scrap value would be $263,845,148.30 Accordingly, Wye

Oak’s 10% commission on the total scrap value would be $26,384,514.80. The Court finds that

Gale’s assumptions, methodologies, and calculations are grounded in sound economic principles

and result in reasonable estimates. Defendants’ objections that Gale baselessly assumed there

would have been demand for Iraqi scrap and that Gale failed to consider the impact on prices due

to Iraqi scrap entering the market are without merit. Gale found the scrap market was quite vibrant

during this period, especially given China’s significant demand. Pl.’s Ex. 101 at 20. There is no

reason to think Iraqi scrap would have been rejected by a market with a high demand for scrap.

Gale’s data shows both the amount and value of scrap being shipped from the U.S. to Turkey

increased from 2004 to 2005. And defendants have not provided any reason to think the influx of

Iraqi scrap would have significantly altered global prices, especially given the high demand in the

market. Thus, the Court will award Wye Oak lost profits damages from scrap sales in the amount

of $26,384,514.80.

                  5. Lost Profits from the Sale of Surplus Military Equipment

         Wye Oak was appointed as the sole and exclusive broker to arrange for the sale of military

equipment and refurbished military equipment to customers under the BSA. Pl.’s Ex. 5 ¶ 2(iv).


30
  This value does not include the scrap value of the brass shell casings because the Court does not believe these were
properly included in Gale’s assessments.

                                                         93
Wye Oak asserts it would have earned profits from brokering the sale of surplus military equipment

MoD did not need or want had MoD not breached the contract. But Gale did not calculate lost

profits damages for this because he did not have any records on equipment Iraq sold during the

2004 through 2007 timeframe. So he could not make any reasoned estimate.

        Wye Oak contends the Court should nonetheless award it lost profits damages for this

category as a sanction for defendants’ discovery abuses. Defendants did not turn over any

documents indicating how many military vehicles it kept for itself and how many were sold on the

international market. On the other hand, defendants assert it would be highly speculative to award

such lost profits.

        Wye Oak would only have been able to earn these lost profits if MoD determined it did not

need or want the military equipment, and then Wye Oak successfully brokered a sale with another

party. Without any data on whether Iraq sold surplus military equipment during this period, the

Court cannot fairly find Iraq made any such sales. The evidence in this case demonstrates how

vital it was for Iraq to re-equip its own military, which indicates Iraq may not have been in a

position to sell surplus military equipment at this time. Further, without any data on this matter the

Court does not believe a reasonable estimate on this topic is possible. Therefore, the Court will not

award Wye Oak lost profits for the sale of surplus military equipment.

        D. Terminal Value

        Wye Oak asks this Court to award it damages from the BSA’s terminal value despite Gale’s

assumption there was no terminal value. Terminal value measures the value of the business at the

end of the forecasting period, which in this case was when the BSA would have terminated had it

been fully carried out, August 2007. Terminal value could result from continuing with a follow-

on contract or liquidating assets at the end of a contract. Tr. 12/21/18 AM 70:9–71:4. Gale



                                                 94
“assum[ed] Wye Oak’s lost business opportunity under the contract ha[d] no value beyond the

forecasting period.” Pl.’s Ex. 101 at 22. Therefore, he assessed the BSA’s terminal value was zero.

       Notwithstanding Gale’s assessment, Wye Oak claims fairness suggests there would have

been some terminal value and the reason Gale had to be so conservative in his analysis was

defendants’ discovery abuses. This stems from Gale’s testimony there may have been terminal

value, but to be conservative in his estimates he assumed there was not. Tr. 12/21/18 AM 70:9–

71:4. But this single exchange during trial is not sufficient to persuade the Court to depart from

the expert’s final assessment on this matter. The Court will not award Wye Oak damages for any

lost terminal value.

       E. Discounted Future Income

       The Court must calculate the expected value of the future profits Wye Oak would have

earned as of the date of the breach, October 28, 2004. To estimate the expected value of the lost

profits, Gale applied a discounted cash flows (DCF) methodology. Pl.’s Ex. 101 at 21. The DCF

methodology looks at the discounted value of damages through an investor’s eyes. Id. An investor

in Wye Oak would see value in the company through future payouts to the business. The value of

a lost future business opportunity can be estimated as the present value of expected net future cash

flows. Id. at 21–22. The present value is calculated by applying a discount rate to future cash flows.

As Gale explained: “[L]et’s say an investor was going to come invest in Wye Oak . . . Wye Oak

would say: I’ll give you $130 a year from now. And the investor will say: Well, I’ll buy that for

$100. They’re going to expect a 30 percent rate of return by investing in Wye Oak.” Tr. 12/21/18

PM 60:6–60:17. This valuation approach has three elements: (1) a forecast of future net cash flows;

(2) an estimate of the terminal value of the project at the end of the forecasting period; and (3)

selecting and applying an appropriate discount rate to compute the present value of future cash



                                                 95
flows and the terminal value. Pl.’s Ex. 101 at 22. As explained in the previous section, Gale

assumed the BSA did not have a terminal value. And Gale assumed the lost business opportunities

would occur over a finite period of time—until the BSA was set to end in August 2007—so the

forecast of future net cash flows ended in August 2007. Id.

       The discount rate is the most important aspect of the DCF methodology. Id. The discount

rate reflects the “opportunity cost” to investors for investing in alternative investments of

“comparable risk and other investment characteristics.” Id. For the purpose of selecting a discount

rate, Gale assumed 100% equity funding for Wye Oak. Id. at 22–23. While Gale noted equity

funding is more expensive than debt funding, he asserted it is a common source of funding among

high-growth companies and, therefore, is a reasonable assumption in Wye Oak’s case. Id.

Assuming 100% equity funding yields a higher discount rate and, therefore, a lower damages

estimation here. Id.

       The cost of equity is the rate of return required by equity investors as compensation for the

risk of financing the business. Id. at 23. Gale asserted methods for estimating the cost of equity

include the “build-up” method, the capital asset pricing model, the arbitrage pricing theory, and

the Farma-French “three-factor” model. Id. The capital asset pricing model, arbitrage pricing

theory, and Farma-French “three-factor” model all require historical market prices for the company

(or industry benchmarks); whereas, the build-up method does not. In the absence of historical

pricing data, the build-up method utilizes an additive approach to estimate the cost of equity. It

uses the sum of the risk-free rate and various risk premiums. Gale used the build-up method to

estimate the equity cost of capital for Wye Oak as of October 28, 2004, adding the risk-free rate,

the equity-risk premium, the firm size premium, and the industry risk premium. Id.




                                                96
                       1. Risk-Free Rate

       Gale used the 3-year United States Treasury note as of January 5, 2005, which was 3.39%,

as the risk-free rate. U.S. Treasury securities are commonly accepted risk-free investments and the

three-year time horizon matches the time horizon of the cash flows at issue. Id. at 24. Defendants

did not object to this risk-free rate and the Court finds it was reasonable.

                       2. Equity Risk Premium

       The second component of the cost of equity is the equity-risk premium. The equity-risk

premium compensates equity investors for taking on risks not present among risk-free assets. Id.

Gale included a country-specific risk premium in his estimate because there were greater risks

associated with doing business in a country like Iraq from an investor’s perspective. Id. The

sources of country risk are economic life cycle risk (early growth countries are riskier), political

risk, legal risk, and economic structures risk (e.g., oil sector dependence). Id. at 25. Gale found it

was appropriate to look to the current equity-risk premium estimate when estimating the 2005 level

because the World Bank’s latest data on political instability and violence, rule of law, corruption,

and regulatory quality in Iraq remain at similar levels as 2005. Id. at 25. Thus, Gale used the 2018

estimate of Iraq’s equity-risk premium, which was 13.72%. Id. at 24–25.

       Defendants complain Gale did not adequately take into account Wye Oak was operating in

a war zone. But this ignores the fact Gale did look at country-specific risks, including political

instability and violence. He found that the most recent data from the World Bank is similar to the

data from 2005. And he included a country-specific risk premium in his estimate. This would seem

to account for the fact Iraq was a war zone. So the Court finds Gale’s equity-risk premium

calculation of 13.72% to be reasonable.




                                                 97
                       3. Firm Size Premium

       The discount rate’s third component is a company size premium. Smaller companies are

more likely to fail than larger ones so they are seen as riskier investments. For this purpose, Gale

assumed the risk premium on the 10% smallest companies by market capitalization (up to

approximately $500 million). He derived the size premium from the Ibbotson SBBI 2005

Yearbook, finding it was 4.02%. Id. at 25–26. Defendants argue Gale used the incorrect tables in

Ibbotson, leading to a smaller size premium.

       Ibbotson breaks down size premiums based on company size, categorizing companies in

terms of size on a 1 through 10 scale, with 10 representation the smallest companies. The categories

applicable to Wye Oak are the “micro-cap” category that combines categories 9 and 10, category

10, or category 10b, which is subset of category 10 and represents the very smallest of the small

companies (with market capitalization up to $144 million). Gale selected the micro-cap category,

which has a size premium of 4.02%. Defendants contend Gale should have solely focused on

category 10, which represents the smallest companies and has a size premium of 6.41%, or solely

focused on category 10b, which represents the smallest of the small companies and has a size

premium of 9.90%. Defendants think it would have been most accurate to rely on category 10b.

And even then defendants argue Gale should have further raised this figure because Wye Oak did

not have a market capitalization approaching $144 million. However, this ignores the fact that the

micro-cap category contains a larger sample size of data on small companies and is therefore more

reliable than solely looking at category 10. This is even more of an issue when comparing the

micro-cap category to category 10b alone. See In re Bachrach Clothing, Inc., 480 B.R. 820, 871

(Bankr. N.D. Ill. 2012) (observing that Ibbotson cautioned: ‘Breaking the smallest decile down

lowers the significance of the results compared to results for the 10th decile taken as a whole,



                                                98
however. The same holds true for comparing the 10th decile with a micro-cap aggregation of the

9th and 10th decile.’ . . . In other words, the data reported in the micro-cap category was more

reliable because it contained a larger sample size of small companies.”). Accordingly, the Court

finds Gale’s assessment the size premium was 4.02% based on Ibbotson’s micro-cap category was

reasonable.

                        4. Industry Risk Premium

        The final component of the discount rate is the industry premium. The industry premium

is intended to compensate investors for risks particularly associated with the industry at issue. Gale

determined that industry-wide risks, beyond country risks, were present here, namely in the

business of dismantling scrap metals. Based on the Standard Industrial Classification (SIC) code

for miscellaneous durable goods, which includes scrap and waste materials, Gale determined the

industry risk premium was 9.07%. Pl.’s Ex. 101 at 26.

        Defendants counter that Gale should have used the industry risk premium for the SIC code

for scrap and waste materials, instead of the aggregate industry risk premium for the entire

miscellaneous durable goods category. The industry risk premium for the SIC code for scrap and

waste materials specifically was 12.21%. So defendants allege Gale’s use of the lower aggregate

value artificially inflates the lost profits calculation.

        However, this ignores that scrap was only one aspect of the BSA. The BSA also included

refurbishing military equipment and refurbishment services. Thus, confining the industry risk

premium rate to the SIC code for scrap and waste materials would not account for the other aspects

of Wye Oak’s work under the BSA. Accordingly, the Court finds Gale’s determination the industry

risk premium was 9.07% to be reasonable.




                                                    99
               5. Defendants’ Objections that Gale Did Not Include a Company-Specific Risk
               Premium and Did Not Apply a Higher Discount Rate to Damages in Option Years

       Defendants have two additional objections to Gale’s discount rate calculation. First,

defendants take issue with the fact Gale did not include a company-specific risk adjustment.

Defendants believe this is appropriate because Wye Oak was heavily dependent on key figures,

such as Dale Stoffel, and was operating in a dangerous environment during this period. However,

the company size premium inherently takes into account the dependence of companies on key

personnel. Smaller companies are more dependent on key personnel than larger companies. So the

size premium already accounts for this. And the dangers of operating in Iraq was taken into account

when determining the equity-risk premium, as discussed above. Therefore, the Court is not

persuaded by this objection.

       Second, defendants assert Gale should have applied a higher discount rate to damages in

option years. The damages period calculated by Gale only extends two and one-half months into

the first option year. Defendants believe Gale should have applied a higher discount rate to the

damages during this two and one-half months period that extends beyond the BSA’s first year. The

Court is not convinced it was necessary for Gale to adjust the discount rate for this period,

especially given the unlikely prospect defendants would have terminated the BSA if Wye Oak was

performing on the timeline Gale assumed, which this Court has found was reasonable. Thus, the

Court also rejects this objection to Gale’s calculation.

                       6. Discount Rate

       Applying the build-up methodology of adding the risk-free rate, the equity-risk premium,

the firm size premium, and the industry risk premium to estimate the equity cost of capital for Wye

Oak, Gale determined the discount rate was 30.2%. The Court finds Gale’s methodology and




                                                100
calculations were grounded in sound economic principles and were reasonable. Accordingly, the

Court accepts 30.2% as a reasonable discount rate for determining damages.

         F. Prejudgment Interest

         Under Iraqi law, Wye Oak is entitled to prejudgment interest on the judgment from the date

the suit was filed. Article 171 of the Iraqi Civil Code sets prejudgment interest rate at 5% in

commercial matters. Pl.’s Ex. 97.31 Prejudgment interest is not compounded under Iraqi law and

cannot exceed the sum of the judgment. Pl.’s Ex. 97 art. 174.

         After acknowledging Article 171 typically sets the prejudgment interest rate, Wye Oak

argues the Court should augment the rate in this case pursuant to Article 175. Article 175 provides:

“The legal rate of the commercial interest charged on current accounts will vary according to

fluctuations of the local market applicable; capitalization (the method of computing compound

interest) is effected on current accounts according to the commercial usage.” Id. at art. 175. Black’s

Law Dictionary defines current account as “[a] running or open account that is settled

periodically.” Black’s Law Dictionary (11th ed. 2019). This does not describe the BSA. The

compensation terms under the BSA did not create running or open accounts. Under the BSA, MoD

was supposed to pay Wye Oak a 10% commission on sales contracts for military refurbishment



31
   Defendants state Iraqi law caps prejudgment interest at 6% per annum commencing on the date of filing the suit,
citing Article 171 of the Iraqi Civil Code. Defs.’ Proposed Findings of Fact & Conclusions of Law: Mem. Regarding
Damages 3 n.1, 41, ECF No. 428. This led plaintiff to adjust the interest rate it sought to 6% and to state defendants
corrected plaintiff’s mistaken reference to 5%. Pl.’s Reply 80, ECF No. 433. However, the Iraqi Civil Code entered
into evidence in this case by the parties’ stipulation states: “Where the object of the obligation is a sum of money
which was known at the time the obligation arose and the debtor delayed the payment thereof he shall be obligated to
pay to the creditor by way of damages for the delay a legal interest at the rate of four per cent in regard to civil matters
and five per cent in respect of commercial matters; this interest will commence from the date of filing a judicial claim
in respect thereof if the agreement or the commercial usage has not fixed a different date for the running of the interest
save in all cases where the law provides otherwise.” Pl.’s Ex. 97 art. 171. And plaintiff’s Iraqi law expert declared
Article 171 limited interest to 5% for commercial transactions running from the date the suit commenced. Pl.’s Ex.
117. Accordingly, the Court finds that the 5% interest figure is correct. Defendants appear to be mistaken in citing a
6% interest figure, as this number does not appear anywhere in the applicable Iraqi statutes governing this action.
Perhaps defendants’ mistake caused plaintiff to become confused (or to see this as an opportunity to enhance their
damages by capitalizing on defendants’ mistake). Regardless, the Court will use the correct interest rate, 5%.

                                                           101
services, refurbished military equipment, and scrap sales; MoD was supposed to pay Wye Oak

10% of the refurbishment cost for refurbished military equipment; and MoD was supposed to cover

expenses associated with performing military equipment services, as Wye Oak was required to use

all reasonable commercial efforts to perform military refurbishment services yet was not required

to spend any money carrying out these services. Payments to Wye Oak based on the sales contracts

or refurbishment costs were to be paid immediately upon Wye Oak’s presentation of pro forma

invoices. Pl.’s Ex. 5 ¶ 5(b). These payment mechanisms do not fall within the definition of current

accounts. Therefore, Article 175 is inapplicable here and the Court will not augment the statutory

interest rate.

           Accordingly, Wye Oak will be awarded prejudgment interest at a rate of 5% per annum,

calculated as simple interest, dating back to the date Wye Oak filed this suit, July 20, 2009.32

           G. Enhanced Damages

           Wye Oak argues it is entitled to enhanced damages under Iraqi law because of defendants’

bad faith and fraud. The Iraqi Civil Code explicitly provides for enhanced damages in cases of bad

faith, fraud, or cheating. Article 173(2) states: “The creditor may claim a complementary

compensation to be added to the legal or contractual interests if he has established that the damage

which exceeds the interests was due to cheating or gross fault committed by the debtor.” Pl.’s Ex.

97 art. 173(2). Professor Mallat analogized complementary damages under Article 173(2) to the

concept of punitive damages under American law. Mallat Dep. 2/15/19, 452:15–453:11; Mallat

Dep. 2/16/19, 463:20–464:11. Although Mallat stated “[g]enerally civil law system does not accept

punitive damages . . . the closest to [punitive damages] would be this [complementary damages

under Article 173(2)].” Mallat Dep. 2/15/19, 452:15–453:11. Later, in response to a question from



32
     The Court will order plaintiff to submit a proposed order with the calculated amounts based on this interest rate.

                                                            102
plaintiff’s counsel on his “opinion as it relates to the availability of punitive damages under Iraqi

law,” Mallat clearly articulated:

         Punitive damages as a concept is not recognized in civil law generally, including in
         Iraqi law. But what I explained yesterday is that under Article 173.2, which allows
         the judge in egregious cases such as the ones that are based on fraud or cheating, or
         a gross mistake, the judge is entitled and has a discretion to add -- to complement
         whatever damages he sees to be fit for the gross fault, the mistake or the cheating,
         and that would be the closest equivalent to punitive damages in American law.

Mallat Dep. 2/16/19, 463:20–464:11. The Court agrees that complementary damages under Iraqi

law mirror punitive damages under American law. Punitive damages are awarded in addition to

actual damages in circumstances where a defendant acts with recklessness, malice, or deceit, or

when the Court finds it appropriate to penalize the wrongdoer or attempt to deter similar behavior.

See Black’s Law Dictionary (11th ed. 2019).

         But punitive damages are not available against foreign states under the FSIA (except

against state sponsors of terrorism under 28 U.S.C. § 1605A, but this provision is not applicable

here). The FSIA explicitly provides “a foreign state except for an agency or instrumentality thereof

shall not be liable for punitive damages.” 28 U.S.C. § 1606. As discussed supra in Section III(A),

MoD is an inseparable part of the Republic of Iraq, it is not an agency or instrumentality under the

FSIA. So although punitive damages may not exist in Iraqi law in exactly the same manner as in

American law, complementary damages are essentially equivalent to punitive damages. It would

violate the FSIA’s clear intent to allow Wye Oak to recover complementary damages based on the

technicality that Iraqi law has given a different name to punitive damages.

         And the FSIA provides the means of suing a foreign sovereign in U.S. courts but does not

establish the cause of action. Instead, parties must look elsewhere for the private right of action.33



33
  The exception to this is that the FSIA has created a private right of action as part of the state sponsors of terrorism
exception. But this is not applicable here.

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But parties cannot overcome the FSIA’s prohibition on punitive damages being levied against

foreign states just because punitive damages may be otherwise possible against a private party

sued under the same cause of action. Thus, defendants cannot be held liable for punitive

damages—called complementary damages in Iraqi law—here.34

         H. Costs, Including Reasonable Attorney’s Fees and Expenses

         Finally, Wye Oak is entitled to costs, including reasonable attorney’s fees and expenses,

under the BSA. The BSA provides:

         Each party shall indemnify, defend and hold harmless the other party from and
         against any and all liabilities, demands, claims, lawsuits, damages, actions,
         judgments, costs (including reasonable attorney’s fees and expenses) including but
         not limited to injury to persons (including death), loss or damage to, or destruction
         of property arising out of that party’s breach of this Agreement or that party’s
         negligent or willful actions while performing hereunder.

Pl.’s Ex. 5 ¶ 15. This provision explicitly requires defendants to indemnify Wye Oak because Wye

Oak’s costs, including reasonable attorney’s fees and expenses, arose out of MoD’s breach of the

BSA. Thus, defendants will be ordered to pay plaintiff’s costs, including reasonable attorney’s

fees and expenses. This amount will be separately determined in accordance with Local Rule 54.2.




34
  Although defendants never raised the argument that punitive damages are not available against foreign states under
the FSIA, the Court does not believe that it is required to ignore the FSIA’s clear statutory text. Such a result would
be bizarre. And while the D.C. Circuit recently concluded the district court lacked authority to sua sponte raise a
forfeited statute of limitations defense in an FSIA terrorism exception case, at least where the defendant sovereign
failed to appear, that situation is easily distinguishable from the one at hand. See Maalouf v. Islamic Republic of Iran,
923 F.3d 1095, 1115 (D.C. Cir. 2019). The statute of limitations defense is an affirmative defense that would defeat
the entire claim and must ordinarily be raised in a defendant’s answer or amendment thereto. But the prohibition on
punitive damages being levied against foreign states only reduces the potential damage award a plaintiff can obtain.
And ordinarily the issue of punitive damages does not arise at the pleadings stage, unlike a statute of limitations.
Further, the D.C. Circuit has previously determined plaintiffs who disregarded the statutory text in seeking punitive
damages against Iran, who did not appear in the case, and did not follow Congress’ explicit mechanism for converting
their case to the updated FSIA terrorism exception, which allowed for punitive damages, could not obtain punitive
damages. Bakhtiar v. Islamic Republic of Iran, 668 F.3d 773, 775 (D.C. Cir. 2012). The court came to that conclusion
based on the FSIA’s clear text, despite the fact Iran did not raise these arguments. Thus, this Court finds it is necessary
to adhere to the FSIA’s clear statutory text rather than disregard the statute, rendering Congress’ careful calibration of
when punitive damages should be available meaningless.

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