UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ADAMI, et al., Plaintiffs ...

288 Pages·2016·3.42 MB·English

Case 16-695, Document 18-1, 03/08/2016, 1722015, Page1 of 25

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

:
ADAMI, et al., :
:
Plaintiffs-Appellants :
:
- against - : 16-675-cv
:
THE REPUBLIC OF ARGENTINA, :
:
Defendant-Appellee :
:
:
TRINITY INVESTMENTS LIMITED, :
:
16-677-cv
Plaintiff-Appellant :
16-687-cv
:

- against - :
15 Civ. 1588 (TPG)*
:
15 Civ. 5886 (TPG)*
THE REPUBLIC OF ARGENTINA, :

:
Defendant-Appellee :
:

PLAINTIFFS-APPELLANTS’ OPPOSITION TO ARGENTINA’S
MOTION FOR EXPEDITED APPEAL AND CONSOLIDATION

* For cases in which a Notice of Appeal has been filed but no docket number has been
assigned as yet by this Court, the docket numbers from the United States District Court for the
Southern District of New York are listed.

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:
MCHA HOLDINGS, LLC, :
:
Plaintiff-Appellant : 16-681-cv
: 16-682-cv
- against - : 16-683-cv
: 16-686-cv
THE REPUBLIC OF ARGENTINA, :
:
Defendant-Appellee :
:
:
CLARIDAE, et al., :
:
Plaintiff-Appellant :
:
- against - : 14 Civ. 10201 (TPG)*
:
THE REPUBLIC OF ARGENTINA, :
:
Defendant-Appellee :
:
:
ARAG-A LIMITED, et al., :
:
Plaintiffs-Appellants :
:
- against - : 16-674-cv
:
THE REPUBLIC OF ARGENTINA, :
:
Defendant-Appellee :
:

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:
ATTESTOR MASTER VALUE FUND LP :
:
Plaintiff-Appellant :
:
- against - : 16-684-cv
:
THE REPUBLIC OF ARGENTINA, :
:
Defendant-Appellee :
:
:
STONEHILL INSTITUTIONAL PARTNERS :
L.P., et al., :
:
Plaintiffs-Appellants :
:
15 Civ. 4284 (TPG)*
- against - :
:
THE REPUBLIC OF ARGENTINA, :
:
Defendant-Appellee :

:
WHITE HAWTHORNE, LLC :
:
Plaintiff-Appellant :
:
- against - : 16-688-cv
:
THE REPUBLIC OF ARGENTINA, :
:
Defendant-Appellee :
:

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BYBROOK CAPITAL MASTER FUND LP, :
et al., :
:
Plaintiffs-Appellants :
16-690-cv
:
16-691-cv
- against - :

:

THE REPUBLIC OF ARGENTINA, :
:
Defendant-Appellee :
:

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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .................................................................... 3 
FACTUAL BACKGROUND ......................................................................... 7 
ARGUMENT .................................................................................................. 13 
I.  THE COURT SHOULD DECLINE TO ENTER THE
SCHEDULE PROPOSED BY ARGENTINA .......................... 13 
II.  THE COURT SHOULD CONSOLIDATE THE APPEALS
IN A MANNER THAT WILL ENSURE THAT ALL
PLAINTIFFS WILL BE HEARD .............................................. 20 
CONCLUSION ............................................................................................... 20 

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TABLE OF AUTHORITIES
Page(s)
Cases
Guibelalde et al. v. Republic of Argentina,
No. 11-cv-4908 (TPG) .................................................................................. 10, 11
NML Capital, Ltd. v. Republic of Argentina,
699 F.3d 246 (2d Cir. 2012) ............................................................................... 17
NML Capital, Ltd. v. Republic of Argentina,
727 F.3d 230 (2d Cir. 2013) ......................................................................... 16, 17
NML Capital, Ltd. v. Republic of Argentina,
2015 WL 6656573 (S.D.N.Y. Oct. 30, 2015) ................................................... 6, 9
NML Capital, Ltd. v. Republic of Argentina,
No. 15-3675-cv (L) (2d Cir. 2016) ............................................................. 8, 9, 12
Statutes
Fed. R. Civ. P. 62.1 .................................................................................................... 7

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Plaintiffs-appellants in the above-captioned actions (collectively,
“Appellants”) respectfully submit this opposition to Argentina’s March 4, 2016
Emergency Motion for Expedited Appeal and Consolidation (the “Motion to
Expedite” or “Mot.”) and request that this Court enter an order (i) setting an
expedited briefing schedule that modestly extends the deadlines proposed by
Argentina to allow Appellants (and other appellants) the opportunity to truly be
heard by this Court and (ii) consolidating the above-captioned appeals with other,
related appeals, as contemplated by this Court’s February 24, 2016 order (the
“Mandate”), but providing that the differently situated appellants in the various
related appeals may each submit merits briefs to accommodate their varying
interests. Appellants separately will be moving in the next few days to extend the
two week stay of the District Court’s ruling on appeal ordered by this Court as part
of the Mandate.
PRELIMINARY STATEMENT
Through the Motion to Expedite, Argentina asks this Court to adopt a
briefing schedule that—in the context of an appeal in a multi-billion dollar
litigation that has been ongoing for fifteen years—would require Appellants to file
their opening briefs within a week of noticing their appeals, and their replies less
than a week later. Appellants are more than willing to have their appeals heard on
an expedited basis and, to that end, propose the following briefing schedule, which
3

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represents only a modest adjustment of Argentina’s proposed deadlines (but which
Argentina declined to discuss with Appellants, see Declaration of Anthony J.
Costantini, dated March 7, 2016, at ¶ 4):1
Argentina’s Proposal Appellants’ Proposal
Appellants’ Brief due March 11 Appellants’ Brief due March 16
(i.e., in only nine days)
Appellee’s Brief due March 14 Appellee’s Brief due March 23
(one week later)
Appellants’ Reply Brief due March 16 Appellants’ Reply Brief due March 31
(one week after that)
Oral Argument: At the Court’s earliest Oral Argument: At the Court’s earliest
opportunity, preferably March 17 or opportunity after March 31
182
In the Motion to Expedite, Argentina argues that the extremely truncated
briefing schedule proposed (and that it refused to discuss with Appellants) is
necessary for three reasons: (i) settlement agreements in principle that it negotiated
with certain of its bondholders permit those bondholders to terminate such
agreements if they are not paid by April 14, 2016 (a date accommodated by
Appellants’ proposed schedule); (ii) Argentina’s legislature needs to repeal certain
legislative barriers in place that would prevent it from making settlement payments
to bondholders and in order to raise the capital necessary to finance the

1 All exhibits referenced herein refer to the exhibits to the Costantini Declaration.
2 The Republic also “respectfully requests that this Court . . . endeavor to issue a
decision on this appeal no later than March 24, 2016.” Mot. at 2. Appellants do
not make a similar request.
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settlements; and (iii) the fact that this dispute has been ongoing for fifteen years
places a burden on Argentina. As discussed below, none of these arguments hold
water.
First, though Argentina’s settlement agreements with certain bondholders
permit termination in the event that such bondholders are not paid by April 14,
2016—a date to which Argentina agreed—they do not require them to do so.
Moreover, Argentina has suggested no reason why those bondholders would
terminate agreements that would entitle them to receive billions of dollars in
payments and resolve years of litigation if they perceived such payments to be
forthcoming. Regardless, the deadline contained in the agreements is an issue of
Argentina’s own making because it was agreed to by Argentina (but not by
Appellants), with knowledge by all parties that an appeal to this Court was almost
certain in the event that the District Court ordered the lifting of the injunctions that
had been in place (which is a condition to the settlements), and which have twice
been affirmed by this Court. In any event, Appellants’ proposed briefing schedule
would permit adequate time for this Court to rule on the appeal before April 14 if
this Court is so inclined.
Second, Argentina has identified no reason why the country’s legislature
cannot repeal the laws in question (which, incidentally, were enacted solely to
thwart recovery by bondholders in the litigation underlying this appeal) before this
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appeal is resolved. The notion that repealing the laws would somehow obligate
Argentina to settle the underlying litigation on unfavorable terms is just not true
given that Argentina made the repeal of such laws a precondition for the lifting of
the injunctions. Additionally, though Argentina has clearly stated a preference to
fund the proposed settlements through the issuance of new debt, Argentina (one of
the thirty largest economies in the world) has not said that it would be unable to
pay the settlements with the April 14 deadline even in the absence of a new debt
offering.
Third, Argentina’s argument that this appeal must be fully resolved within
the span of three weeks simply because it will “avoid further economic harm to the
Republic and its people from the continuation of this litigation” (Mot. at 13) fails
to justify the schedule it asks this Court to adopt. Appellants whole-heartedly
agree that swift resolution is appropriate, but Argentina identifies no reason why
the briefing on this appeal suddenly needs to be pushed through with such haste
now (and not at any other time during the fifteen-year history of this litigation) and
why Appellants cannot possibly be afforded the few additional days they request
on an already-expedited schedule to enable them due process in crafting their
arguments. Certainly, the Republic has not forgotten its role in prolonging this
litigation, including by publicly declaring that it would not pay its bondholders,
refusing to negotiate with them for years, continuing to fail to negotiate with
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