Hot Docs: Court upholds kidnapping lawsuit of whistleblower executive against billionaire Koch

May 9, 2013

KidnappingBeing fired from your job is never a pleasant experience.

Aside from facing the prospect of being unemployed and having to find new work, one has to face the humiliation of being forced to leave his or her job.

The ordeal undergone by Kirby Martensen, however, is a bit beyond your typical firing.

Martensen was employed by companies owned by industrialist William “Bill” Koch, such as OxBow Carbon & Minerals (OCM).  Martensen’s experiences have become the basis of a lawsuit against his former employer.

In late 2011, Martensen was promoted to the position of “Senior Vice President-Asia” with OCM International, and relocated to OCM International’s Singapore office.  Martensen came to believe that the company’s business efforts in Asia included implementing a plan to evade paying taxes to the U.S. on profits in excess of $200 million per year.

Sometime in 2011, Koch was notified of an anonymous letter alleging that Martensen and another employee had been engaging in theft and various frauds against the Oxbow companies. Based on this information, Koch ordered a comprehensive review that revealed that Martensen and others had expressed concern over the legality of what they were doing on behalf of Oxbow and “their distrust of upper management.”

As a result, according to Martensen’s complaint, “Koch promoted and implemented a plan to intimidate and discredit Martensen for the purpose of chilling his speech and damaging his credibility.”

In early 2012, Martensen and other executive employees were directed to attend a meeting with Koch and others at Koch’s “Bear Ranch” property near Aspen, Colorado.  The property is accessible only through a private road owned by Koch.  The meeting occurred at the end of March of 2012.

The visit to the ranch started out well enough.

The evening they arrived, they had dinner and spent the night.  The following day, the guests had breakfast, after which Koch invited them to tour “his nearby western town,” which was “a collection of approximately 50 buildings designed to replicate an authentic late-19th century western town.”

This was followed by a helicopter tour of the ranch and lunch in one of the “western town’s” meeting rooms.

After lunch, Martensen was escorted to a small room and interviewed “by two agents of Koch” for several hours.  During this interrogation, Martensen was accused of a “wide-ranging scheme” to defraud Koch “of millions of dollars.”

Afterward, Martensen was ordered into the back of an SUV, driven to the outskirts of the “western town,” and served with termination papers and a lawsuit – which Martensen claims was “designed to intimidate and silence [him] regarding his personal knowledge” of Koch and Oxbow’s illegal activities.

Hot Doc: Martensen v. Koch

Source: Thomson Reuters News & Insight – National Litigation

The SUV then returned to a cabin on the ranch.  Martensen was escorted inside and informed that “a sheriff is here to make sure you don’t wander off.”  From the window of the cabin, Martensen could see a marked police vehicle with a uniformed officer sitting inside.

Three hours later, Martensen was escorted to a small private airport in the Denver area over 200 miles away, despite requesting “to be driven to Aspen, which is 69.3 miles from Bear Ranch, because he had a scheduled flight from Aspen to San Francisco the next morning.”

After they arrived at the airport – at 2 a.m. – Martensen was then escorted onto a small, private plane manned by three agents of Koch, all of whom Martensen “believed to be armed.”

The plane arrived in Oakland, California at around 4 a.m., whereupon Martensen was told that there was a car waiting to take him to a nearby hotel.  He refused at this point and called a cab to come pick him up.  A cab arrived and Martensen left.

It turns out that the police officers were only at the ranch because they were told by the ranch manager that several employees were being fired, and that they wanted law enforcement there “in case things got out of control,” not because Martensen was under criminal investigation.

Martensen’s lawsuit, as you intentional tort buffs may have already guessed, is based on false imprisonment.

The actual lawsuit was filed in October of 2012.  Recently, though the court ruled on Koch’s Rule 12(b)(6) motion to dismiss for failure to state a claim.

The court dismissed (with leave to amend) Martensen’s § 1983 claim, since there was no allegation that the police officers were in on the scheme.

The other claims, of false imprisonment and civil conspiracy thereof, were upheld.

Koch’s main contention in arguing for their dismissal was that, during the alleged imprisonment, Martensen never “asked to leave, tried to leave, expressed fear of harm or was threatened with force.”

The court was unmoved by this argument, stating that Martensen did, in fact, ask to leave (when he asked to be taken to Aspen for his flight).  In addition, the court noted that Koch “does not explain how this implicit threat of arrest if [Martensen] were to attempt to ‘wander off’ fails to allege confinement.”

The court further noted the heavy seclusion of the ranch and the fact that Martensen believed some of his escorts to be armed.

So the case is likely to head into discovery now, although I wouldn’t bet that it will ever get to trial.  I seriously doubt that Bill Koch wants actual evidence to support claims that he was involved in the kidnapping of an executive who was contemplating whistleblowing over the company’s unlawful practices.

Either way, Martensen will always have a story to tell about one of the worst firings from a job ever.