Full opinion text
EBEL, Circuit Judge. These appeals require this court to determine, among other things, the extent to which investors in Chinese gold mines can sue the Bank of China (the “Bank”) in an American court. Because the Bank was owned and operated by the People’s Republic of China, an American court’s subject matter jurisdiction must be found under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1602-11. The FSIA provides that a foreign sovereign is generally immune from suit in the United States. See id. § 1604. The FSIA’s commercial activity exceptions, however, permit a foreign sovereign to be sued in a court within the United States, to the same extent as any private individual, when the sovereign is engaged in commercial activity that has a sufficient nexus to the United States. See id. § 1605(a)(2). In this case, while the Bank is generally engaged in commercial activity, we conclude, with one exception, that the Bank’s specific commercial activity underlying Plaintiffs’ claims does not have a sufficient nexus to the United States. As to the one exception, we agree with the district court that it had subject matter jurisdiction to consider Plaintiffs’ claims to the extent they are based upon the Bank’s transfer of $400,000 to a bank in Utah. We, therefore, AFFIRM the district court’s jurisdictional rulings. We further AFFIRM the district court’s ruling for the Bank on the merits of the claims over which it had jurisdiction. But we REVERSE the district court’s dismissal of the Bank’s counterclaim and REMAND the counterclaim to the district court for further proceedings. I. BACKGROUND Following a bench trial, the district court made these factual findings: Plaintiff Orient Mineral Company (“Orient Mineral”) is a Nevada corporation. Art Wilson was chairman of Orient Mineral’s board of directors. Wilson met Yue Xiaoqun, also known as David Yue (“Yue”), a Chinese citizen, in 1994 while Yue was in the United States working for the China Foreign Development Company. Yue became a director and shareholder in Orient Mineral. And he interested Wilson in investing in Chinese gold mines. In 1995, Wilson, aided by Yue, formed Plaintiff Wil-Bao Mineral Company, Ltd. (“Wil-Bao”), a joint venture created under Chinese law by Orient Mineral and a Chinese entity, Jiaocun Gold Company (“Jiaocun Gold”). Jiaocun Gold was wholly owned by the municipality of Jiaocun, China. Wil-Bao’s purpose was to acquire gold mining properties in China’s Henan province and then mine, mill and sell the gold extracted from these mines. Wil-Bao was headquartered in Lingbao, China. Wil-Bao’s seven-member board of directors included four individuals associated with Orient Mineral: Wilson (chairman), Yue, F. Thomas Eck, III, Orient Mineral’s president and general counsel, and John H. Mahan; and three members associated with Jiaocun Gold. Yue became Wil-Bao’s general manager and John Zhang, who was Yue’s brother-in-law, became Wil-Bao’s finance manager. Wil-Bao was to have registered capital of $3 million. Of that amount, Orient Mineral was to contribute $2.1 million — $1 million in cash and $1.1 million in mining equipment. Jiaocun Gold would contribute the right to use two existing mine sites and other fixed assets, worth a total of $900,000. As it turned out, Jiaocun Gold did not own the rights to any mines and ultimately contributed nothing to the joint venture. Orient Mineral convinced R. Ellsworth McKee, a United States citizen from Tennessee, to fund this joint venture. McKee was chairman of the board for McKee Foods Corporation (“McKee Foods”). He was initially leery of this investment opportunity because he was unfamiliar with China and this opportunity involved a fairly risky gold mining venture. McKee eventually agreed to invest $3 million, but only under certain terms and conditions designed to protect McKee’s investment. Those conditions included treating most of McKee’s $3 million investment as a loan to Orient Mineral for Wil-Bao’s benefit. Moreover, Orient Mineral agreed with McKee to place Preston Jones on Orient Mineral’s board of directors, replacing Mahan. Jones was McKee Foods’ “director of corporate tax” and he also handled R. Ellsworth McKee’s personal finances. Orient Mineral further agreed to give Jones “total control of the funds for Orient Mineral Company,” appoint Jones to the Wil-Bao board of directors, and require Jones’ authorization for all Wil-Bao expenditures over $25,000, “at least until such time as all loan funds had been repaid to Mr. McKee.” The next challenge was to get McKee’s $3 million to China in a form that Wil-Bao could use. For this, the group turned to the Bank of China. The Bank is organized and exists under the laws of the People’s Republic of China, has its principal office in Beijing, and operates a “sub-branch” in Lingbao, as well as a branch bank in New York City. At the time, the Bank was wholly owned and operated by the People’s Republic of China. Yue, who was in China acting as Wil-Bao’s general manager, had already made several inquiries at the Bank’s Lingbao sub-branch, asking, for instance, whether Wil-Bao could bring equipment, purchased abroad, into China, and about Wil-Bao’s ability to convert its profits from the local Chinese currency “to foreign exchange to be remitted abroad.” In May 1996, at Wilson’s request, Yue arranged with the Bank’s Lingbao sub-branch for a “temporary special holding account” to which Orient Mineral could wire the $3 million it had obtained from McKee. Also at Wilson’s request, Yue asked for and received a letter from the Bank, dated May 14, 1996, which provided: Dear Mr. Yue Xiaoqun: Our bank already received your application on May 14, 1996, and we agree to establish in our bank a temporary U.S. Dollar account at the request of your honorable company (Sino-U.S. Joint Venture Henan Wil-Bao Metal Smelting Company, Ltd.). We now advise the relevant particulars as follows: Account name: ORIENT MINERAL CO. Account number: 14833 Bank opening the account: Lingbao City Subbranch, Henan Provincial Branch Bank of China After the funds are transferred, our bank will be responsible for safekeeping these funds. Further, Mr. Yue Xiaocun [sic] must bring to our bank the business license of ORIENT MINERAL CO., the company chop, and a company authorization letter, and go through the formalities, so that the funds can be used in the joint venture in accord with arrangements made by the representative of the American party. (Footnote added.) This letter was written in Chinese and addressed to Yue. Yue sent to Wilson, in Nevada, the Bank’s letter, along with Yue’s rough English explanation of the document. Wilson then had a friend who operated a Chinese restaurant translate the letter for him. In preparation for the transfer of funds to China and pursuant to its agreement with McKee, Orient Mineral’s Board of Directors, on May 16, 1996, passed a resolution that, among other things, provided that “Preston Jones shall be the sole and exclusive person to act on behalf of Orient Mineral Co. with respect to the disposition of all funds deposited in the Bank of China, Lingbao Branch of the HeNan Province.” The resolution further provided that “the Board of Directors and Orient Mineral Co. shall hold the Bank of China harmless from all claims or liabilities of any kind whatsoever, provided the directions of Preston Jones are followed by said Bank of China.” This resolution had the appearance of a formal corporate document, impressed with Orient Mineral’s corporate seal, signed by Orient Mineral’s president, and attested to by its acting corporate secretary. Further, [a]ccompanying Orient Mineral’s Board Resolution was a letter dated May 16, 1996, and also signed by Eck as Orient Mineral’s President. This letter was on Orient Mineral’s letterhead and bore the impression of its corporate seal. It was addressed to the Bank of China and enclosed the May 16th Board Resolution, which it characterized as authorizing Preston Jones as Orient Mineral’s sole and exclusive agent to approve, direct, or otherwise designate the funds on deposit with the Bank pursuant to a wire transfer from McKee. The letter further stated that the May 16th Board Resolution was confirmed and ratified in all respects and that Preston Jones shall have full and complete authority with regard to the disposition of said funds. On May 21, 1996, Plaintiffs initiated a wire transfer of $3 million from McKee’s bank in the United States to the Bank’s sub-branch in Lingbao. Jones, Wilson and Eck then traveled to China, where Yue met them and acted as their interpreter. In keeping with promises made to McKee, the Wil-Bao Board of Directors met in China on May 24,1996, and adopted a resolution that provided that, until Wil-Bao repaid McKee in full, “Preston Jones shall be appointed as the director of Wil Bao responsible for the management of the financial affairs of Wil Bao with the sole authority to approve any expenditure of Wil Bao in excess of $25,000 U.S. dollars.” Unlike Orient Mineral’s May 16 Board Resolution, the Wil-Bao resolution made no “reference to the Bank of China; nor does it bear any of the indicia of corporate authority (such as company letterhead, corporate seal imprint, secretary’s attestation, officer’s cover letter).” On May 27, 1996, Jones, Wilson, Eck, Yue and John Zhang (Yue’s brother-in-law) met with Bank officials in Lingbao. The Americans at the meeting spoke only English, while the Bank’s employees attending this meeting spoke only Chinese. Because Yue could speak and understand both languages, he acted as the interpreter for the entire group. During this meeting, Orient Mineral’s President, Eck, gave Bank officials 1) the Orient Mineral Board Resolution directing that only Jones possessed authority to dispose of the Orient Mineral funds that had been wired to the Bank’s Lingbao subbranch; and 2) Eck’s letter to the Bank, dated May 16, 1996, reaffirming Jones’ sole authority to distribute these funds. Bank officials had these documents translated into Chinese. Jones then asked Yue to inform the Bank officials that the American group wanted to open a permanent account for Orient Mineral. But Yue instead informed Bank officials that the group wanted to open accounts for Wil-Bao. Yue then misinformed the Americans that Orient Mineral could not open its own account with the Bank because it was not registered to do business in China; they would, instead, have to open an account in the name of the joint venture, Wil-Bao. After some discussion, Jones, Wilson, and Eck agreed to open accounts in the name of Wil-Bao, so long as Jones still retained authority over any Wil-Bao expenditures over $25,000. The Americans then asked Yue to convey to Bank officials that this restriction be placed on the Wil-Bao accounts. The Americans assumed Yue did so. But Bank officials testified that Yue never informed them that this restriction was to be placed on the Wil-Bao accounts. At Yue’s request, the Bank opened two accounts for Wil-Bao, one for U.S. dollars, and the other for the local Chinese currency, Renminbi (“RMB”). Yue completed the account application forms and provided the Bank with three “chops,” those of Wil-Bao, Yue, and his bother-in-law Zhang, Wil-Bao’s financial director. These three “chops” would be required to negotiate any transaction at the Bank on Wil-Bao’s behalf. No other withdrawal restrictions beyond the required three “chops” were placed on either account. Believing, incorrectly, that he had sole authority to authorize expenditures greater than $25,000 from the Wil-Bao U.S. dollar account, Jones signed a bank transfer slip moving all of Orient Mineral’s funds from its temporary account into Wil-Bao’s U.S. dollar account. Before transferring the funds, the Bank verified Jones’ identity by reviewing his passport. Jones, Wilson, Eck and Yue met with one of the Bank’s officials, Mr. Wang, at the Lingbao sub-branch on May 29, 1996. Yue again acted as interpreter for both sides. During that meeting, the Americans gave Wang the recently approved Wil-Bao resolution indicating Jones had to authorize any Wil-Bao expenditure greater than $25,000. In addition, the Americans gave Wang a handwritten note signed by Jones and Yue, by which Jones intended to authorize the transfer of $1,215 million from Wil-Bao’s U.S. dollar account to its RMB account for the purchase of a gold mine, among other things. This handwritten note stated: Authorization for David Yue Only Transfer Funds inTo Wil-Bao 5/29/96 Funds AllocaTed For Use Mr. P[e]ng $ 500,000- Jiao Cun Town 450,000 - Vehicles 125,000 — Office Equip 10,000 - OperaTing Funds 130,000 - $1,215,000 This process confirmed, at least for Jones, his (mis)understanding that the Bank would not pay out funds in excess of $25,000 from the Wil-Bao U.S. dollar account without his authorization. Further confirming Jones’ mistaken belief, the Bank, on June 4, 1996, transferred $1.2 million from Wil-Bao’s U.S. dollar account to its RMB account, after the Chinese State Administration Exchange Control (“SAEC”) approved the transfer. After returning to the United States, Jones, on several occasions, sent Yue written authorization to transfer funds from the Wil-Bao U.S. dollar account to a Nevada company, Administrative Systems Corporation (“ASC”), in order to make interest payments owed to McKee. Yue made most of these transfers. But Bank officials testified that the Bank conducted these transactions based, not on Jones’ written authorization, but on transfer slips filled out by Yue and accompanied by the three required “chops.” In the meantime, Yue was making other withdrawals from the Wil-Bao accounts, without Jones’ knowledge or authorization. For example, on August 22, 1996, the Bank, at Yue’s request, wired $400,000 from Wil-Bao’s account to Utah’s First Zions National Bank for Saren Gaowa’s benefit. Gaowa was Yue’s wife. And, on October 18, 1996, Yue transferred $1 million from the Wil-Bao account to an account in another Chinese bank, the International Department of Industrial and Commercial Bank of China (“ICBC”), using these funds to purchase a certificate of deposit (“CD”) that would mature in one year. Yue then used the CD as collateral to obtain five loans from the ICBC to Wil-Bao in a total amount of six million RMB. “While a portion of those loan proceeds may have been applied to the acquisition of a ... mine and the lease of a high capacity mill, the actual disposition of those loan proceeds remains unknown.” In December 1996, Jones sent Yue written authorization to transfer $63,250 to ASC. In response, Yue sent Wilson a letter, written in broken English, indicating that there was no money in the Wil-Bao account to make this transfer if Wil-Bao was to start milling its ore. After receiving this message, Jones and Wilson traveled to China in February 1997. There, Jones tried to review the Wil-Bao books, but was unable to understand them because they were in Chinese. Yue did explain to Jones and Wilson that he had transferred some Wil-Bao funds to the ICBC bank in order to obtain several loans. Neither Wilson nor Jones contacted the Bank or the ICBC to investigate Yue’s explanation further. Yue promised to send the Americans a “year-end financial statement” and otherwise “assured” Jones and Wilson “that everything was fine.” Jones and Wilson again traveled to China in June 1997, accompanied by Eck, Wilson’s controller, Ken Schmick, and Gayla Zhang, who apparently speaks Chinese and has an accounting background. There, the group discovered that “Wil-Bao’s ledgers [were] hopelessly out of balance and not up to date,” and that the Wil-Bao accounts with the Bank contained only $21,000. When confronted with this, Yue explained that he had transferred almost all of the Wil-Bao money to the ICBC. But no one at the ICBC would meet with the American contingent to verify this. Eventually, Yue produced someone purportedly from the ICBC to assure the Americans that they had $1 million in the ICBC. This apparently satisfied the Americans, although Jones expressed some concern about Yue’s being able to transfer all of Wil-Bao’s money from the Bank to the ICBC without Jones’ written authorization. But Jones did not check with the Bank about this. Jones and Wilson, with Gayla Zhang, returned to China in October 1997. There, an ICBC official informed them that there were no Wil-Bao funds in the ICBC because Yue had used all of these funds as collateral for the loans he had obtained. Wilson then removed Yue as Wil-Bao’s general manager, and Wilson and Gayla Zhang took over operating the joint venture. The Chinese government prosecuted Yue for embezzlement. He was convicted and sentenced to twelve years’ imprisonment. Orient Mineral and Wil-Bao sued the Bank, Yue and Gaowa in federal district court in Utah, asserting breach of contract and tort claims, and seeking to impose a constructive trust on Gaowa’s home in Utah. The Bank, in turn, asserted its immunity as a foreign sovereign. In addition, the Bank alleged a counterclaim based upon the language in Orient Mineral’s May 16, 1996 board resolution promising to hold the Bank “harmless from all claims or liabilities of any kind whatsoever, provided the directions of Preston Jones are followed by said Bank.” The Bank expressly made its counterclaim contingent on the district court’s finding it had jurisdiction to consider Plaintiffs’ claims against the Bank. Following a thirteen-day bench trial, the district court concluded it had subject matter jurisdiction over Plaintiffs’ claims only to the extent they were based upon the $400,000 transfer to the Utah bank. The court found for the Bank on the merits of those claims. Plaintiffs appeal (No. 05-4037), challenging several aspects of that decision. The Bank cross-appeals (No. 05-4048), challenging only the district court’s decision that it had subject matter over Plaintiffs’ claims based upon the $400,000 transfer to the Utah bank. After the trial, the district court dismissed the Bank’s counterclaim with prejudice. The Bank appeals that decision in appeal No. 05-4220. II. APPELLATE JURISDICTION As an initial matter, the parties challenge our jurisdiction to consider these appeals. We conclude we have appellate jurisdiction to consider all three of the appeals before us. Following trial, the district court, on January 26, 2005, entered judgment in favor of the Bank on Plaintiffs’ claims based upon the Bank’s transferring $400,000 from Wil-Bao’s account in Lingbao to the Utah bank; and dismissed the remainder of Plaintiffs’ claims for lack of subject matter jurisdiction. Although the district court’s decision did not expressly address the Bank’s still-pending contingent counterclaim, the district court, on January 27, entered judgment pursuant to Fed.R.Civ.P. 58(a), and ordered that the Bank recover its “costs” from Plaintiffs. Treating the district court’s decision as a final, appealable order under 28 U.S.C. § 1291, Plaintiffs filed a notice of appeal within thirty days of the entry of judgment (appeal No. 05-4037), and the Bank filed a notice of cross-appeal within fourteen days of Plaintiffs’ notice of appeal (appeal No. 05-4048). In light of the fact that the district court’s January 26, 2005 decision did not specifically resolve the Bank’s still-pending counterclaim, this court raised concerns about our jurisdiction to consider the parties’ cross-appeals, because “a judgment ... that does not dispose of all claims is not considered a final appealable decision under § 1291,” Jackson v. Volvo Trucks N. Am., Inc., 462 F.3d 1234, 1238 (10th Cir.2006). At this court’s suggestion, the parties jointly requested that the district court enter a Fed.R.Civ.P. 54(b) certification permitting them to pursue their cross-appeals even though the district court’s decision had not resolved all of the claims pending before it in this case. In response to the parties’ request, the district court instead dismissed the Bank’s counterclaim, presumably with prejudice, indicating that the court had already “finally adjudicated the Bank’s remaining counterclaim! ]” when it previously entered judgment for the Bank on Plaintiffs’ claims. The district “court’s subsequent issuance of an order explicitly adjudicating all remaining claims may cause a case to ripen for appellate review.” Jackson, 462 F.3d at 1238 (quotation omitted). That is true here. See Fed. Sav. & Loan Ins. Corp. v. Huff, 851 F.2d 316, 317 (10th Cir.1988) (en banc). We, therefore, have appellate jurisdiction to consider the parties’ cross-appeals, Nos. 05-4037 and 05-4048. In addition, the Bank, in appeal No. 05-4220, timely appealed from the district court’s decision explicitly dismissing the Bank’s contingent counterclaim and ending this litigation. We, therefore, have appellate jurisdiction to consider that appeal as well. See 28 U.S.C. § 1291. III. DISCUSSION A. CROSS-APPEALS: Nos. 05-4037 and 05-4048 1. Whether, and to what extent, the district court had subject matter jurisdiction over Plaintiffs’ claims against the Bank under the FSIA. a. Standard of review This court will review de novo the district court’s determination of its subject matter jurisdiction under the FSIA, reviewing factual findings for clear error. See Southway v. Cent. Bank of Nigeria, 328 F.3d 1267, 1272 (10th Cir.2003). b. Background For most of the time since the United States’ inception, foreign sovereigns have enjoyed almost complete immunity from suit in American courts. See Republic of Austria v. Altmann, 541 U.S. 677, 688-89, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004); Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 n. 1, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989); Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). In 1952, however, the State Department adopted a more “ ‘restrictive’ theory of foreign sovereign immunity.” Verlinden, 461 U.S. at 486-87, 103 S.Ct. 1962; see also Altmann, 541 U.S. at 689-90, 124 S.Ct. 2240. Under this restrictive theory, foreign sovereigns still enjoyed immunity for public or sovereign acts, but they no longer had unqualified immunity for private or commercial activity. See Verlinden, 461 U.S. at 487, 103 S.Ct. 1962; see also Altmann, 541 U.S. at 690, 124 S.Ct. 2240; Saudi Arabia v. Nelson, 507 U.S. 349, 359-60, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993). Congress codified this restrictive theory when it enacted the FSIA in 1976. See Permanent Mission of India to the United Nations v. City of New York, — U.S.-, 127 S.Ct. 2352, 2357, 168 L.Ed.2d 85 (2007). The FSIA provides the sole source of American courts’ subject matter jurisdiction over a foreign sovereign. See Amerada Hess Shipping Corp., 488 U.S. at 435, 439, 443, 109 S.Ct. 683; see also Permanent Mission of India, 127 S.Ct. at 2355, 127 S.Ct. 2352; Nelson, 507 U.S. at 355, 113 S.Ct. 1471. A foreign state is still presumptively immune from suit. See 28 U.S.C. § 1604; see also Permanent Mission of India, 127 S.Ct. at 2355, 127 S.Ct. 2352; Nelson, 507 U.S. at 355, 113 S.Ct. 1471. But the FSIA “carves out certain exceptions to its general grant of immunity.” Altmann, 541 U.S. at 691, 124 S.Ct. 2240. “These exceptions are central to the Act’s functioning: ‘At the threshold of every action in a district court against a foreign state, ... the court must satisfy itself that one of the exceptions applies,’ as ‘subject-matter jurisdiction in any such action depends’ on that application.” Id. (quoting Verlinden, 461 U.S. at 493-94, 103 S.Ct. 1962); see also Amerada Hess Shipping, 488 U.S. at 434-35, 109 S.Ct. 683. In considering whether a foreign sovereign is immune from suit in the United States under the FSIA, courts employ a burden-shifting analysis. See Southway, 328 F.3d at 1271. The defendant must first establish a prima facie case that it is a sovereign state, creating a rebuttable presumption of immunity. See Cruz v. United States, 387 F.Supp.2d 1057, 1062 (N.D.Cal.2005). Once the foreign sovereign makes that prima facie showing of immunity, the plaintiff has the burden of production to make an initial showing that an FSIA exception to foreign immunity applies. See Southway, 328 F.3d at 1271; see also Cargill Int’l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016 (2d Cir.1993). If the plaintiff makes such a showing implicating an exception, then the foreign sovereign bears the “ultimate burden of proving,” by a preponderance of the evidence, that the exception does not apply in that case. Southway, 328 F.3d at 1271. c. The FSIA’s commercial activity exception In this case, Plaintiffs do not dispute that the Bank is an instrumentality of a foreign sovereign — the People’s Republic of China. See also Voest-Alpine Trading USA Corp. v. Bank of China, 142 F.3d 887, 890 (5th Cir.1998) (“The Bank of China is an instrumentality of the People’s Republic of China.”). Therefore, the Bank has made a prima facie showing of immunity. See Southway, 328 F.3d at 1271. Plaintiffs assert, however, that the FSIA’s commercial activity exception, see 28 U.S.C. § 1605(a)(2), applies in this ease to give United States courts subject matter jurisdiction. The “commercial activity” exception is the FSIA’s “most significant ... exception! ]” to foreign sovereign immunity. Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 611, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992). It “is at the heart” of the FSIA’s codification of the restrictive theory of foreign sovereign immunity. Joseph F. Morrissey, Simplifying the Foreign Sovereign Immunities Act: If a Sovereign Acts Like a Private Party, Treat It Like One, 5 Chi. J. Int’l L. 675, 682 (Winter 2005); see also Weltover, 504 U.S. at 612-13, 112 S.Ct. 2160. In this case, the parties also do not dispute that the Bank is engaged in commercial activity. See Voest-Alpine Trading, 142 F.3d at 892 (parties did not dispute that “the Bank of China is a foreign state engaged in commercial activity”). Nevertheless, there must also be a sufficient nexus between the Bank’s commercial activity and the United States: “For there to be jurisdiction in this case,” therefore, Plaintiffs’ “action must be ‘based upon’ some ‘commercial activity’ by [the Bank] that had ‘substantial contact’ with the United States within the meaning of the [FSIA].” Nelson, 507 U.S. at 356, 113 S.Ct. 1471; see also Morrissey, supra, at 676-77, 683-84; William R. Dorsey, III, Reflections on the Foreign Sovereign Immunities Act After Twenty Years, 28 J. Mar. L. & Com. 257, 264 (1997). The FSIA’s “commercial activity exception is broken down into three clauses,” each identifying a sufficient connection to the United States necessary “to satisfy the jurisdictional nexus requirement.” Voest-Alpine Trading, 142 F.3d at 892. The FSIA provides: A foreign state shall not be immune from the jurisdiction of courts of the United States or of any of the States in any case— in which the action is based upon [1] 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. 28 U.S.C. § 1605(a)(2) (numbering in brackets added). In this case, Plaintiffs assert that the district court has subject matter jurisdiction over their claims asserted against the Bank under all three clauses of the commercial activity exception. In addressing whether a federal court has subject matter jurisdiction over Plaintiffs’ claims, we must first identify “the particular conduct on which [Plaintiffs’] action is based.” Nelson, 507 U.S. at 356, 113 S.Ct. 1471 (quotation omitted). That is because, for FSIA purposes, the statutory phrase “based upon,” 28 U.S.C. § 1605(a)(2), “is read most naturally to mean those elements of a claim that, if proven, would entitle a plaintiff to relief under his theory of the case.” Nelson, 507 U.S. at 357, 113 S.Ct. 1471. Our focus, then, must be on the “specific claim[s]” that Plaintiffs assert against the Bank and the “elements of th[ose] claim[s] that, ‘if proven, would entitle [Plaintiffs] to relief under [their] theory of the case.’ ” Globe Nuclear Servs. & Supply (GNSS), Ltd. v. AO Techsnabexport, 376 F.3d 282, 287 (4th Cir.2004) (quoting Nelson, 507 U.S. at 357, 113 S.Ct. 1471). In this case, although Plaintiffs asserted at least five different theories of recovery against the Bank, all of their claims are based on the Bank’s alleged breach of a duty, created contractually or otherwise, 1) to keep safe the funds Orient Mineral wired to its temporary account in the Bank’s Lingbao sub-branch, and to disburse those funds only according to Jones’ directions; and 2) to require Jones’ authorization for any withdrawals from Wil-Bao’s accounts in an amount greater than $25,000. i. Whether Plaintiffs’ claims are “based upon” the Bank’s “commercial activity carried on in the United States” Section 1605(a)(2)’s first clause applies when the “the action is based upon a cona-mercial activity carried on in the United States by the foreign state.” “ ‘[C]ommercial activity’ means either a regular course of commercial conduct or a particular commercial transaction or act.” 28 U.S.C. § 1603(d). The phrase “‘commercial activity carried on in the United States’ means commercial activity carried on by [a foreign] state and having substantial contact with the United States.” Id. § 1603(e). Plaintiffs assert several ways in which the Bank carries on commercial activity in the United States. First, the Bank drafted a letter, dated May 14, 1996, promising to keep safe the funds Orient Mineral wired to its temporary account in the Bank’s Lingbao sub-branch until Orient Mineral’s representative, Jones, arrived in China. With this letter, according to Plaintiffs, the Bank established an ongoing business relationship with Orient Mineral. But the evidence established that it was Yue, a director of Orient Mineral and Wil-Bao’s manager, who made arrangements with the Bank, in China, for Orient Mineral to wire $3 million into a temporary account in the Bank’s Lingbao subbranch. At Wilson’s direction, Yue, in making these arrangements, requested that the Bank draft a letter that would include account routing instructions and a promise to keep Orient Mineral’s funds safe until Orient Mineral’s representative, Jones, arrived in China. The Bank provided Yue with such a letter, dated May 14, 1996, written in Chinese and addressed to Yue. It was Yue, not the Bank, who sent this letter to Wilson in the United States, along with a rough English explanation. Orient Mineral then responded to the Bank’s letter with the Orient Mineral resolution making Jones its sole representative and agreeing to hold the Bank harmless if it followed Jones’ directions. Eck also drafted a letter to the Bank reiterating these points. But Eck delivered these two Orient Mineral documents in person to the Bank’s Lingbao sub-branch when Eck accompanied Jones to China. This series of events can not be construed as the Bank’s carrying on commercial activity in the United States. Plaintiffs next argue that the Bank carries on commercial activity in the United States by operating a branch Bank in New York City. We agree. See Callejo v. Bancomer, S.A., 764 F.2d 1101, 1105 (5th Cir.1985) (noting foreign bank “regularly engaged in commercial activity in the United States,” where, among other things, bank operated branch bank in Los Angeles). But “the fact that a foreign sovereign is engaged in commercial activity in the United States does not serve as a license for United States courts to entertain all claims against it.” Dorsey, supra, at 294; see also id. at 296 (noting that “the test for jurisdiction under” the commercial activity exception’s “first clause is something more than just a ‘doing business’ test, that is, that the foreign sovereign can be sued in the United States ... even though there is no specific connection between the lawsuit and the United States”). Rather, Plaintiffs’ claims must be “based upon” that commercial activity. See Reiss v. Societe Centrale Du Groupe Des Assurances Nationales, 235 F.3d 738, 747 (2d Cir.2000); see also Kirkham, 429 F.3d at 293 (noting that “once a foreign state engages in a commercial activity in the United States, it becomes subject to litigation based upon that activity — just like any other commercial actor”) (emphasis added). Plaintiffs point to the fact that, when McKee transferred $3 million for Orient Mineral, from an American bank to Orient Mineral’s temporary account in the Bank’s Lingbao sub-branch, that wire transfer went through the Bank’s New York branch. And when the Bank transferred Wil-Bao funds back to the United States, as Jones requested, those transfers also may have gone through the New York branch. These connections alone, however, are insufficient to establish subject matter jurisdiction under the first clause of the FSIA’s commercial activity exception because none of Plaintiffs’ claims against the Bank are “based upon” these particular transactions. See Nelson, 507 U.S. at 356-58, 113 S.Ct. 1471; see also Goodman Holdings v. Rafidain Bank, 26 F.3d 1143, 1144-46 (D.C.Cir.1994) (rejecting argument that there was a sufficient nexus between the Iraqi government bank’s commercial activity carried on in the United States and claim asserted against the bank by several Irish companies, alleging that the bank had failed to make payments under a letter of credit, even though the bank had made previous payments from accounts the Iraqi bank had in the United States); Gen. Elec. Capital Corp. v. Grossman, 991 F.2d 1376, 1382-84 (8th Cir.1993) (holding that the fact that defendant operated airline that served destinations in the United States did not provide United States courts with subject matter jurisdiction over claims against the defendant that were not based upon its operation of the airline, but were instead based upon the defendant’s negotiations to purchase another airline, where negotiations took place “primarily” outside the United States); Wahba v. Nat’l Bank of Egypt, 457 F.Supp.2d 721, 735 (E.D.Tex.2006) (holding National Bank of Egypt’s specific commercial activity implicated by plaintiffs’ claims was financing plaintiffs’ businesses in Egypt; the Bank’s contact with the United States regarding these particular transactions was only “sporadic”; and, therefore, plaintiffs’ claims were not “based on” the Bank’s commercial activity in the United States). Plaintiffs further argue that the Bank’s transfer of $400,000 of Wil-Bao’s funds to the bank in Utah amounts to the Bank’s carrying on commercial activity in the United States. We later conclude that this activity was sufficient to subject the Bank to jurisdiction for this particular act under the third clause of § 1605(a)(2). However, we do not believe this single act constitutes “commercial activity carried on in the United States” by the Bank under the first clause of § 1605(a)(2). The Bank acted within China, not the United States. The consequence of the act was felt in the United States when the Utah bank received the funds but the Utah bank was not acting as an agent of the Bank. Rather, it was acting as an independent, arms-length entity in an ordinary commercial transaction. So, the Utah bank’s act in the United States cannot be attributed to the Bank. For these reasons, Plaintiffs have failed to assert sufficient evidence establishing that their action is “based upon” the Bank’s commercial activity “carried on in the United States.” The district court, therefore, did not have subject matter jurisdiction over Plaintiffs’ claims based upon the commercial activity exception’s first clause. ii. Whether Plaintiffs’ claims are based upon “an act” the Bank “performed in the United States in connection with” the Bank’s “commercial activity ... elsewhere.” Section 1605(a)(2)’s second clause applies when “the action is based ... upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere.” Under this clause, a “material connection must exist between the act performed in the United States and plaintiffs cause of action.” Pere v. Nuovo Pignone, Inc., 150 F.3d 477, 482 (5th Cir.1998); see also Grossman, 991 F.2d at 1384; Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 709 (9th Cir.1992). In invoking the second clause of the FSIA’s commercial activity exception, Plaintiffs rely on the same Bank conduct that Plaintiffs asserted to invoke § 1605(a)(2)’s first clause. For the same reasons stated above, however, Plaintiffs here have failed to establish that their claims are based upon any action the Bank took in the United States. See Pere, 150 F.3d at 482; Grossman, 991 F.2d at 1384. iii. Whether Plaintiffs’ claims are based upon an act the Bank took outside the United States that “cause[d] a direct effect in the United States.” The commercial activity exception’s third clause provides that [a] foreign state shall not be immune from the jurisdiction of courts of the United States ... in any case ... in which the action is based ... 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. 28 U.S.C. § 1605(a)(2). The district court in this case held that it had jurisdiction under the third clause to consider only Plaintiffs’ claims that are based upon the Bank’s transferring $400,000 to the Utah bank. We agree. Although it is clear that the Bank was carrying on commercial activity in China, we must consider here what specific acts the Bank took in China that underlie Plaintiffs’ claims. On appeal, Plaintiffs rely primarily on the Bank’s conduct in transferring, at Yue’s request, $400,000 from Wil-Bao’s account in the Bank’s Lingbao sub-branch. We address that Bank act first. The Bank’s transferring this $400,000 out of Wil-Bao’s account was certainly connected with the Bank’s commercial activity in China. The dispositive question here, then, is whether this Bank conduct, taken in China, had a direct effect in the United States. A “direct effect” need not be substantial or foreseeable, but it must be more than trivial. See Weltover, 504 U.S. at 617-18, 112 S.Ct. 2160. And it will be sufficiently “ ‘direct’ if it follows as an immediate consequence of the defendant’s activity.” Id. at 618, 112 S.Ct. 2160 (quotation, alteration omitted). Applying that reasoning to this case, it is clear that the Bank’s transfer of $400,000 of Wil-Bao’s funds from its account in the Bank’s Lingbao sub-branch to the Utah bank had a direct effect in the United States — the Utah bank received $400,000 on Gaowa’s behalf. This “follow[ed] as an immediate consequence” of the Bank’s alleged wrongful conduct in permitting Yue to withdraw $400,000 from Wil-Bao’s account without Jones’ authorization and to direct those funds be transferred to Utah. The Bank suggests that the “direct effect” occurring in the United States must be “legally significant” in order for an American court to have subject matter jurisdiction under the commercial activity-exception’s third clause. There are courts that have adopted a “legally significant act” test when applying § 1605(a)(2)’s third clause. See Virtual Countries, Inc. v. Republic of S. Africa, 300 F.3d 230, 240 (2d Cir.2002); Filetech S.A v. France Telecom S.A., 157 F.3d 922, 931 (2d Cir.1998); Adler v. Fed. Republic of Nigeria, 107 F.3d 720, 726-27 (9th Cir.1997). But this test is defined in different ways. Some courts require that the direct effect occurring in the United States be a direct effect caused by legally significant conduct outside the United States. See Virtual Countries, 300 F.3d at 240. That test would be met here. The Bank’s permitting Yue to withdraw $400,000 from Wil-Bao’s account in Lingbao without Jones’ authorization is certainly legally significant to Plaintiffs’ claims. Other authority, however, defines the “legally significant act” test to require that a legally significant act occur within the United States. See Adler v. Fed. Republic of Nigeria, 219 F.3d 869, 876 (9th Cir.2000); see also Virtual Countries, 300 F.3d at 241 (assuming there was a “legally significant direct effect”); cf. Keller v. Cent. Bank of Nigeria, 277 F.3d 811, 817-18 (6th Cir.2002) (discussing, but declining to adopt, legally significant act test); Voest-Alpine, 142 F.3d at 894-95 (same). This court has never adopted the “legally significant act” test, and we now explicitly reject that additional, judicially-created criteria to satisfy 28 U.S.C. § 1605(a)(2)’s third clause. In United World Trade, we recognized “that courts often look to the place where legally significant acts giving rise to the claim occurred in determining the place where a direct effect may be said to be located.” 33 F.3d at 1239 (quotation omitted). In that case, this court was struggling to resolve the “amorphous ... issue” of “locat[ing] the site of financial harm to a corporation, ... where the cause of the injury is an omission.” Id. There, we ultimately examined “all of the facts ... together ..., including the ‘legally significant acts,’ ” before concluding that the conduct at issue in that case did not produce a direct effect in the United States. Id. We thus will consider the legally significant acts, as well as other relevant facts under the circumstances of a given ease, to aid our determination. In doing so, we look to where the legally significant acts occurred as simply one of several means to determine whether a direct effect occurred in the United States. See Morrissey, supra, at 688 (making this observation). In United World Trade, we did not make legally significant acts in the United States a prerequisite for jurisdiction under the third clause of 28 U.S.C. § 1605(a)(2). We reject engrafting this additional requirement necessary to satisfy § 1605(a)(2)’s third clause for many reasons. First, the statute’s text does not require it. See Voest-Alpine, 142 F.3d at 894; see also Keller, 277 F.3d at 818. And the Supreme Court has counseled against adding extra-legislative requirements to statutory text. See Weltover, 504 U.S. at 618, 112 S.Ct. 2160 (rejecting suggestion that § 1605(a)(2) contains “unexpressed requirement[s]”). Second, requiring legally significant acts to occur in the United States would render the second and third clauses of § 1605(a)(2) redundant, as any legally significant act occurring in the United States would likely also satisfy at least the second clause (a foreign sovereign’s act in the United States), if not also the first clause (a foreign sovereign’s commercial activity carried on in the United States). See Voest-Alpine, 142 F.3d at 895; see also Morrissey, supra, at 677 (noting that the commercial activity exception’s first and second clauses address “[sjuits based on actions that actually occur in the United States”). Third, the phrase “legally significant act” is vague and ambiguous, adding nothing to the analysis. Thus, we will simply apply the third clause of § 1605(a)(2) as it is written, without judicial adornment. In this case, it is clear that the Bank’s commercial activity in China produced a “direct effect” in the United States — the transfer of $400,000 to a Utah bank. This case is unlike the circumstances addressed by this court in United World Trade, where the plaintiff alleged a direct effect resulting from the defendants’ omission or failure to act, and the effect was only a loss of corporate profit in the United States, which we held was not a sufficient direct effect. See United World Trade, 33 F.3d at 1236-39. Here, instead, the Bank took affirmative action that caused an effect in the United States — money was received in the United States. And that effect was direct, that is, it followed as “an immediate consequence” of the Bank’s permitting Yue to withdraw more than $400,000 from Wil-Bao’s Chinese bank account without Jones’ authorization, Welt-over, 504 U.S. at 618, 112 S.Ct. 2160 (quotation omitted), which was the essence of at least one of Plaintiffs’ legal claims. For these reasons, the district court correctly held that it had subject matter jurisdiction over Plaintiffs’ claims to the extent they were based upon the Bank’s transferring $400,000 from Wil-Bao’s account to Saren Gaowa’s account in a bank in Utah. On appeal, Plaintiffs also point to the Bank’s conduct of drafting its May 14, 1996 letter as an act taken in China, in connection with the Bank’s commercial activity there, that had a direct effect in the United States. Because, again, it is clear that this act underlies Plaintiffs’ claims, occurred in China and is connected with the Bank’s commercial activity in China, the relevant inquiry here is whether that act caused a direct effect in the United States. Under the specific facts of this case, we conclude it did not. Plaintiffs assert that the Bank’s May 14 letter induced them into wiring Orient Mineral’s funds to the Bank’s Lingbao subBranch. But the Bank wrote this letter at Yue’s request, pursuant to the terms Yue requested. And Yue requested these terms at Wilson’s insistence. Further, the Bank addressed the letter to Yue, who was Wil-Bao’s general manager and a director of Orient Mineral, wrote the letter in Chinese and gave it to Yue in China. It was Yue who sent the Bank’s letter to Wilson in the United States, along with Yue’s rough explanation in English. Under these circumstances, Orient Mineral’s wiring $3 million to the Bank’s Lingbao subbranch was not “an immediate consequence” of the Bank’s drafting this May 14 letter addressed and given to Yue in China. Weltover, 504 U.S. at 618, 112 S.Ct. 2160 (quotation omitted). The effect the Bank’s conduct had in the United States, therefore, was indirect, rather than direct. Orient Mineral’s response to the Bank’s letter was ultimately the result of Yue’s unlawful course of conduct, which constitutes an intervening act not attributable to the Bank. Plaintiffs also point to the Bank’s thrice wiring funds from Wil-Bao’s accounts in the Bank’s Lingbao sub-branch to the United States through the Bank’s New York branch. But Plaintiffs’ claims are not based upon the two transfers to the United States that Jones’ authorized. And we have already concluded that the Bank’s unauthorized transfer of $400,000 to the Utah bank was an act taken in China, in connection with the Bank’s commercial activity there, that had a direct effect in the United States. This Utah transfer, therefore, is the only Bank conduct that Plaintiffs rely upon that was taken outside the United States, in connection with the Bank’s commercial activity in China, that had a direct effect in the United States. Plaintiffs, nevertheless, assert that, because the district court had subject matter jurisdiction over Plaintiffs’ claims, to the extent they were based upon this $400,000 transfer, that is sufficient to give the district court subject matter jurisdiction over all of Plaintiffs’ claims, even those based upon conduct occurring entirely in China. We disagree. We look first to the FSIA’s text. See Permanent Mission of India, 127 S.Ct. at 2356, 127 S.Ct. 2352. The FSIA specifically provides, in relevant part, that “a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in section 1605 to 1607 of this chapter.” 28 U.S.C. § 1604 (emphasis added). Thus, “a foreign sovereign is immune from suit in any civil action in any court of the United States unless, and to the extent that, one of the exceptions set forth in §§ 1605-1607 applies.” David P. Stewart, Practising Law Inst., Litig. & Admin. Practice Course Handbook Series, Int’l Business Litig. & Arbitration, The Foreign Sovereign Immunities Act 139 (2006) (emphasis added). “[I]f the claim does not fall within one of the exceptions, federal courts lack subject matter jurisdiction.” Verlinden, 461 U.S. at 489, 103 S.Ct. 1962. The third clause of the commercial activity exception provides subject matter jurisdiction where “the action is based upon ... an act [occurring] outside the territory of the United States” that has caused “a direct effect in the United States.” 28 U.S.C. § 1605(a)(2) (emphasis added). By its very terms, then, § 1605(a)(2)’s third clause gives American courts subject matter jurisdiction over claims stemming from a specific “act” outside the United States that has a direct effect in the United States. In Nelson, the Supreme Court contrasted this language with the language in § 1605(a)(2)’s first clause, which refers instead to an action based upon a foreign sovereign’s commercial activity carried on in the United States. See 507 U.S. at 357-58, 113 S.Ct. 1471. Thus, the district court correctly held in this case that it did not have subject matter jurisdiction over Plaintiffs’ claims that were not based upon the act of the Bank in transferring $400,000 from Wil-Bao’s account in the Bank’s Lingbao sub-branch to a Utah bank. c. Conclusion. For these reasons, we AFFIRM the district court’s determination that it had subject matter jurisdiction to consider the merits of Plaintiffs’ claims, but only to the extent that they were based upon the $400,000 transfer from Wil-Bao’s account in Lingbao to the First Zion’s National Bank in Utah. 2. Whether the district court erred in ruling for the Bank on the merits of Plaintiffs’ claims that were based upon the Bank’s transferring $400,000 from Wil-Bao’s account to a bank in Utah. a. Standard of review This court will review the district court’s factual findings, made after a bench trial, for clear error; and its legal conclusions de novo. See Holdeman v. Devine, 474 F.3d 770, 775 (10th Cir.2007); see also Fed.R.Civ.P. 52(a). b. Choice of law The FSIA does not itself provide the substantive law governing a plaintiffs claims asserted against a foreign sovereign. See Cruz, 387 F.Supp.2d at 1070-71. Rather, “the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances,” except that the foreign sovereign will not be liable for punitive damages. 28 U.S.C. § 1606. In this case, the parties and the district court primarily applied Utah law in addressing Plaintiffs’ claims. On appeal, Plaintiffs do not contest the district court’s doing so. Thus, we too will apply Utah law, although it is far from clear that would be our conclusion if we conducted a proper choice-of-law analysis. See Flying J Inc. v. Comdata Network, Inc., 405 F.3d 821, 831 n. 4 (10th Cir.2005) (applying state law upon which the parties agree). c.Merits i. Overview As explained in greater detail below, the theory of recovery underlying most of Plaintiffs’ claims is that the Bank breached its duty to follow Jones’ directions in disbursing the $3 million in Orient Mineral’s temporary account in the Bank’s Lingbao sub-branch. Although Jones sought to maintain control over these funds by requiring his authorization before Yue could withdraw more than $25,000 from the Wil-Bao U.S. dollar account, Jones trusted Yue to convey this restriction to the Bank. Plaintiffs’ claims fail primarily because there is no evidence that Yue ever actually conveyed Jones’ requested restriction to the Bank. Believing, wrongly, that this $25,000 restriction was in place, Jones transferred Orient Mineral’s money into the Wil-Bao accounts. Because the $25,000 restriction Jones sought to place on the Wil-Bao accounts was never shown to have been conveyed to the Bank, the Bank is not liable for Yue’s misappropriating Wil-Bao’s funds. Plaintiffs’ contention that the circumstances surrounding their dealings with the Bank should have put the Bank on notice that Jones sought to restrict Yue’s access to Wil-Bao’s funds is unavailing. With this in mind, we turn to Plaintiffs’ specific arguments asserted on appeal. ii. Breach of contract. Plaintiffs alleged that the Bank, in its May 14, 1996 letter, agreed to keep safe the funds Orient Mineral transferred into its temporary account with the Bank, and further agreed to follow the instructions of Orient Mineral’s representative for disbursing those funds. Plaintiffs further alleged that the Bank breached this agreement when it transferred Orient Mineral’s money from its temporary account into the newly created Wil-Bao U.S. dollar account without restricting Yue’s access to those funds; and further breached this contract when the Bank permitted Yue to make withdrawals in excess of $25,000 from Wil-Bao accounts without Jones’ authorization. On appeal, Plaintiffs challenge the district court’s determination that Plaintiffs’ claim for breach of contract ... fail[s]. First, the Bank of China performed according to the terms of its agreement with Orient Mineral: the Bank received Orient Mineral’s wire transfer, held its funds awaiting Mr. Jones’ arrival in China, and then followed Jones’ direction to transfer those funds into Wil-Bao’s account. The contract between Orient Mineral and the Bank did not address the terms of the contract to be formed between the Wil-Bao joint venture and the Bank. Wil-Bao formed its own contract with the Bank of China governing its accounts at the Bank. The terms of that contract did not include a U.S. $25,000 restriction on withdrawals, transfers or remittances from Wil-Bao’s U.S. dollar account, or any requirement that the Bank contact Jones to obtain approval to process transactions in the Wil-Bao accounts. Consequently, the processing of the U.S. $400,000 transfer on or about August 28, 1996 without Jones’ approval did not breach Wil-Bao’s contract with the Bank. (Footnote omitted.) To the extent Plaintiffs are challenging the district court’s interpretation of the parties’ agreements, we review those legal determinations de novo, see Interwest Constr. v. Palmer, 923 P.2d 1350, 1358-59 (Utah 1996), and agree with the district court’s construction of the contracts at issue here. To the extent Plaintiffs are challenging the district court’s factual findings, we reject those arguments because the trial record fully supports the district court’s determination. Plaintiffs specifically argue that their giving the May 24, 1996 Wil-Bao resolution to Bank officials notified the Bank that Jones wanted to place a $25,000 restriction on Yue’s access to the funds in the Wil-Bao U.S. dollar account. That resolution acknowledged McKee’s investment in Wil-Bao, agreed to repay McKee in full before distributing any profits, and agreed to pay McKee an annual bonus of $333,333.33 for the next three years. The resolution went on to “further resolve[ ] that until all said sums are repaid in full Preston Jones shall be appointed as the director of Wil Bao responsible for the management of the financial affairs of Wil Bao with sole authority to approve any expenditures of Wil Bao in excess of $25,000 U.S. dollars.” The testimony at trial was conflicting as to whether Plaintiffs ever gave the Wil-Bao resolution to Bank officials and, if so, when. The district court found that it was “[m]ore likely than not, [that] the May 24th Wil-Bao board resolution was presented to [the Bank’s] Mr. Wang at the May 29th meeting at the Lingbao Subbranch of the Bank of China.” That factual finding is not clearly erroneous. See Watson v. United States, 485 F.3d 1100, 1108 (10th Cir.2007). Because the parties created Wil-Bao’s accounts on May 27, 1996, the terms of the Wil-Bao resolution, therefore, could not have been incorporated into the terms that governed the Wil-Bao account. Nor could the Bank, in creating the Wil-Bao accounts, have disregarded a resolution that the Bank had not yet received. Further, Plaintiffs’ act of giving the Wil-Bao resolution to a Bank official on May 29 was not sufficient to put the Bank on notice that Wil-Bao wanted additional restrictions placed on its accounts. The Wil-Bao resolution was not addressed to the Bank and was not accompanied by any indicia of an official directive, such as a corporate seal or a letter from Wil-Bao’s officers. Even Plaintiffs, in their post-trial arguments before the district court, refer to this resolution as only an “internal” document. Moreover, although the resolution required Jones’ authorization for “any expenditures of Wil-Bao,” the resolution did not specifically link that restriction to the Bank or Wil-Bao’s accounts with the Bank. Plaintiffs also point to the note signed by Jones and Yue authorizing Yue to expend $1.2 million. Jones gave Bank official Wang this note during the May 29 meeting. Plaintiffs assert that this note also should have put the Bank on notice that Jones wanted a $25,000 restriction on Wil-Bao account expenditures. That note, however, handwritten on a piece of paper torn from a notebook, was not addressed to the Bank and did not clearly indicate it was to be any sort of authorization for the Bank to take some action. That note, therefore, would not have put the Bank on notice that Wil-Bao wanted a $25,000 restriction placed on its accounts with the Bank. For these reasons, the district court did not err in entering judgment for the Bank on Plaintiffs’ breach-of-contract claim. iii. Negligence Plaintiffs also alleged that the Bank was negligent in permitting Yue to misappropriate Wil-Bao’s funds. Under Utah law, “[t]o establish a claim of negligence, the plaintiff must establish four essential elements: (1) that the defendant owed the plaintiff a duty, (2) that the defendant breached that duty, (3) that the breach of duty was the proximate cause of the plaintiffs injury, and (4) that the plaintiff in fact suffered injuries or damages.” Webb v. Univ. of Utah, 125 P.3d 906, 909 (Utah 2005) (quotation omitted). Plaintiffs specifically alleged that the Bank owes duties to its depositors to exercise due care in opening and handling of its accounts. Said duties include the exercise of reasonable care to understand and follow the instructions of its customers on account opening, to be alert to suspicious circumstances and fraud in opening and operating accounts, and to prevent fraudulent or unauthorized transfers from said accounts. (Footnote added.) Plaintiffs further alleged that the Bank breached these duties owed to Plaintiffs by (1) failing to follow directions given by Preston Jones as its sole and exclusive representative to maintain its suspense account or open a new Orient Mineral account, or alternatively to establish a $25,000 restricted Wil-Bao USD account, in all cases subject to his approval and control; (2) failing to be alert to suspicious circumstances and fraud on account opening and upon transfer of the full $3 million from the suspense account to the Wil-Bao USD account, relying on the interpretation of Yue, who would thereby possess exclusive control; (3) failing to take reasonable safeguards to prevent the unauthorized transfer of funds from the Wil-Bao USD account by Yue in light of the facts known at the Bank at the time of the transfers; and (4) failing to raise regulatory issues or restrictions that required that the transfer not be made, and that regulatory approval was required. The district court determined that the Bank had not breached any duty owed to Orient Mineral. That determination was not in error. iv. Civil conspiracy to defraud Plaintiffs. Plaintiffs alleged that the Bank conspired with Yue and Gaowa, among others, to defraud Plaintiffs. “To prove civil conspiracy, five elements must be shown: (1) a combination of two or more persons, (2) an object to be accomplished, (3) a meeting of the minds on the object or course of action, (4) one or more unlawful, overt acts, and (5) damages as a proximate result thereof.” Alta Indus. Ltd. v. Hurst, 846 P.2d