Capital Ventures International v. Republic of Argentina

652 F.3d 266
CourtCourt of Appeals for the Second Circuit
DecidedJuly 20, 2011
DocketDocket 10-4520-cv(Lead), 10-4523-cv(Con), 10-4511-cv(Con), 10-4834-cv(Con)
StatusPublished
Cited by12 cases

This text of 652 F.3d 266 (Capital Ventures International v. Republic of Argentina) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Capital Ventures International v. Republic of Argentina, 652 F.3d 266 (2d Cir. 2011).

Opinions

Judge LEVAL concurs in a separate opinion.

GERARD E. LYNCH, Circuit Judge:

In this case we again address the continuing dispute between Argentina and its various private creditors. In a previous case involving the same parties, we decided that plaintiff-appellant Capital Ventures International (“CVI”) may attach Argentina’s reversionary interest in the collateral securing certain bonds issued by Argentina. See Capital Ventures Int’l v. Republic of Argentina, 443 F.3d 214, 216 (2d Cir.2006) {“CVI I ”). We now hold that CVI is entitled to maintain its attachments even though a quirk of the bonds’ Collateral Pledge Agreement means that the attachments will effectively block a proposed exchange between Argentina and the holders of the bonds. We therefore reverse the [268]*268district court’s orders that modified the attachments to permit the exchange.

BACKGROUND

This case represents one line in one chapter in the long history of Argentina’s struggle with foreign creditors' — a struggle that dates back to 1827. See EM Ltd. v. Republic of Argentina, 473 F.3d 463, 466 n. 2 (2d Cir.2007). The prior chapter began in the mid-1980s, when Argentina ran into financial trouble and defaulted on its foreign debts. In 1992, seeking to recover from this default, Argentina replaced tens of billions of dollars’ worth of its old bonds with new bonds — called “Brady bonds”— issued under a program of Latin-Ameriean debt relief overseen by U.S. Treasury Secretary Nicholas Brady. See CVI I, 443 F.3d at 216. The Brady bonds at issue in this case will come due in 2023.

As part of the Brady program, Argentina obtained U.S.- and German-government securities as collateral to secure payments on the Brady bonds. See id. (Because our case involves only the collateral securing principal payments, not interest, see id. at 218, all future mentions of “collateral” will refer only to that.) Under the Collateral Pledge Agreement that governs the Brady bonds, the Federal Reserve Bank of New York, as Collateral Agent for the Brady bondholders, holds a first-priority security interest in the collateral. See Collateral Pledge Agreement §§ 2.01, 9.05. On the maturity date in 2023, the Agreement provides that either (a) Argentina will repay the holders of the Brady bonds, or (b) the Collateral Agent will give the collateral to the bondholders through their ■ agent. See id. §§ 3.03, 3.04.

As a general matter, the Agreement prohibits any transfer of the collateral pri- or to the maturity date, even in the case of default. Id. § 2.01(c). It does allow, however, for early redemption or exchange and provides that in such a case the lien would terminate and the collateral revert to Argentina. Id. § 6.01.

The next and current chapter of this history began in 2001, when Argentina stopped paying interest on its debt again, in “the largest default of a foreign state in history,” EM Ltd., 473 F.3d at 466 n. 2, involving “roughly $80 to $100 billion of sovereign debt,” Seijas v. Republic of Argentina, 606 F.3d 53, 55 (2d Cir.2010). This default set off a contest among Argentina’s creditors to collect on their claims, with much of the contest taking place in the United States federal courts— including at least nineteen cases in this Court so far.

In 2005, as Argentina’s financial condition improved, it offered to exchange its defaulted Brady bonds (as well as other defaulted bonds) for the proceeds of the collateral securing them plus new debt that Argentina would issue. CVI I, 443 F.3d at 217. This deal offered potential benefits to each side, as the Brady bondholders would receive some cash immediately (as well as a new, less valuable but nonetheless performing security) instead of having to wait until 2023 to receive their collateral, and Argentina would be able to clear its books of much of its nonperforming debt.

A quirk in the original Collateral Pledge Agreement, however, created a risk for the exchanging parties. That Agreement allowed early release of the collateral only to Argentina, free and clear of the Brady bondholders’ lien — and thus open to attack by other creditors in the time it would take Argentina to receive the collateral, liquidate it, and pay its proceeds to the Brady bondholders. See Collateral Pledge Agreement § 6.01; CVI I, 443 F.3d at 217. Aware of this risk, Argentina and the parties tendering their Brady bonds for exchange entered into a Continuation of Collateral Pledge Agreement that extended [269]*269the security interest in the tendered bonds’ collateral during its transfer and liquidation. CVI I, 443 F.3d at 217.

At this point, CVI enters the story, setting in motion the events leading up to CVI I. CVI held certain non-Brady bonds on which Argentina had also defaulted. Id. Rather than participate in the exchange, CVI chose to sue Argentina to collect on the defaulted bonds it held and, as the parties to the exchange had feared, sought to attach Argentina’s reversionary interest in the Brady collateral. The district court denied the attachment. Id. at 218. CVI appealed, but during the pendency of CVI’s appeal the 2005 exchange went forward, with bondholders tendering and exchanging Brady bonds with a face value of approximately $2.8 billion as part of an overall exchange (Brady and non-Brady) of $62.3 billion.

The completion of the 2005 exchange mooted the case with respect to the bonds tendered in that exchange. Id. CVI nevertheless maintained its appeal in an attempt to ensure that, if Argentina offered “another exchange someday” for the remaining Brady bonds, CVI would receive the collateral upon its release. The attachment requested by CVI would have the practical effect, as then-Judge Sotomayor noted at oral argument, of “forcing Argentina.... to stay in default [on the Brady bonds] and wait until 20[2]3” to give up the collateral to the Brady bondholders, rather than entering into another exchange like the one just completed.

This Court ruled in CVI’s favor, holding that CVI could attach Argentina’s reversionary interest in the remaining collateral (that is, the collateral not involved in the 2005 exchange). CVI I, 443 F.3d at 223. CVI had undoubtedly met the requirements for attachment under New York law, which applies to this case under Federal Rule of Civil Procedure 64. Id. at 218-19. Where these requirements are met, we held, a district court has little if any discretion to deny the attachment, and so “the district court erred to the extent it denied relief because it considered CVI’s chances of realizing on the Principal Collateral to be remote.” Id. at 223.

The day after this Court’s decision, CVI returned to the district court and was granted attachments on Argentina’s reversionary interest in the remaining Brady collateral. These attachments, as amended and extended, remained in full force from 2006 until October 2010.

This past year, however, Argentina proposed another exchange for Brady bondholders, albeit one much smaller than the 2005 exchange.

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652 F.3d 266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/capital-ventures-international-v-republic-of-argentina-ca2-2011.