enero 13, 2010

Sentencia de embargo dictada por el Juez Griesa en Nueva York (ingles)

SENTENCIA DE EMBARGO DE FONDOS DICTADA EN NEW YORK
Thomas Griesa
[11 de enero de 2010]


UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
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EM LTD and NML CAPITAL, LTD.,
Plaintiffs, v.
THE REPUBLIC OF ARGENTINA and BANCO CENTRAL DE LA REPÚBLICA ARGENTINA,
Defendants.
[1]
-------------------------------------------x
EM LTD.,
Plaintiff,
v.
THE REPUBLIC OF ARGENTINA,
Defendant.
[2]
-------------------------------------- x
NML CAPITAL, LTD.,
Plaintiff,
v.
THE REPUBLIC OF ARGENTINA,
Defendant.
[3]
---------------------------------------x
PLAINTIFFS’ EX PARTE MOTION
1. Plaintiff EM, Ltd. ("EM"), through its attorneys Debevoise & Plimpton LLP, and Plaintiff NML Capital, Ltd. ("NML"), hereby move this Court, ex parte, before the Honorable Thomas P. Griesa, at the United States Courthouse, 500 Pearl Street, Room 1630, New York, New York 10007, pursuant to Rules 4.1, 64 and 69 of the Federal Rules of Civil Procedure, Section 311 and Articles 52 and 62 of the New York Civil Practice Law and Rules, and 28 U.S.e. § 1610(c), and upon (a) the Memorandum of Law in Support of Plaintiffs’ Ex Parte Motion for Orders of Attachment and Restraint, and Writs of Execution dated January 11,2010, (b) the Declaration of Suzanne M. Grosso dated January 11, 2010 and attached exhibits, and( e) all pleadings, papers and evidence submitted in connection with the above-captioned actions, for certain orders as set forth below.
2. Ex parte disposition of this motion is necessary because, if Defendants learned of Plaintiffs’ intent with respect to these subject property, it is highly likely that Defendants immediately would take steps to remove that property from New York, and perhaps the United States, more expeditiously than already intended.
3. With respect to Plaintiffs’ anticipated judgments against Banco Central de la República Argentina ("BCRA") and the Republic of Argentina ("Argentina"), and pursuant to CPLR §§ 6201, 6202 & 6211 and 28 U.S.e. § 1610(c), Plaintiffs seek an attachment order directed to all property of Argentina nominally held by its alter ego BCRA currently on deposit at any garnishee, including the Federal Reserve Bank of New York ("FRBNY"), located within this Court’ s jurisdiction (the "BCRA Accounts") - except for $105 million held by BCRA since December 30, 2005 in a single account at the FRBNY and the subject of Plaintiffs’ separate, pending motion for attachment and restraining orders.
4. With respect to Plaintiffs’ existing judgments against Argentina, and pursuant to CPLR § 5230 and 28 U.S.e. § 1610(c), writs of execution directed to the BCRA Accounts.
5. Plaintiffs additionally seek such other and further relief as the Court deems appropriate.
Dated: January 11, 2010
New York, New York
Respectfully submitted,
DEBEVOISE & PLIMPTON LLP
By: /s/ Suzanne M. Grosso
David W. Rivkin
John B. Missing
Suzanne M. Grosso
919 Third A venue
New York, New York 10022
Tel. (212) 909-6000
EM @debevoise.com
Attorneys for Plaintiff EM Ltd.
DECHERTLLP
By: /s/ Robert A. Cohen
Robert A. Cohen
Dennis H. Hranitzky
David M. Bigge
1095 A venue of the Americas
New York, New York 10036
Tel. (212) 698-3500 NML@dechert.com
Attorneys for Plaintiff NML Capital, Ltd.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ EX PARTE MOTION FOR ORDERS OF ATTACHMENT AND RESTRAINT, AND ISSUANCE OF WRITS OF EXECUTION
TABLE OF CONTENTS
PRELIMINARY STATEMENT
STATEMENT OF FACTS
I. PLAINTIFFS’ PENDING LITIGATION AGAINST THE CENTRAL BANK
A. History Of The Frozen $105 Million
B. Status Of The First Alter-Ego Motion And Alter-Ego Action
II. SUMMARY OF PREVIOUSL y INTRODUCED EVIDENCE ESTABLISHING ARGENTINA’S DOMINATION OF THE CENTRAL BANK
III. NEW EVIDENCE FURTHER ESTABLISHING ARGENTINA’S DOMINATION OF THE CENTRAL BANK
A. The Argentine Executive Branch Continues To Commandeer Central Bank Funds For Argentina’s Own U se, Including Selective Repayment Of Debt
1. Access To Central Bank Reserves By Decree
2. Access To Central Bank "Profits"
3. Access To Central Bank Reserves By Amendment Of Central Bank Charter
B. The Argentine Executive Branch Continues To Puppeteer The Central Bank’s Govemor
C. The Argentine Executive Branch Continues To Dictate Monetary Policy, Including Directing The Central Bank To Manipulate The Exchange Rate To Further The Kirchners’ Own Political Agenda
And Punish Their Political Enemies
ARGUMENT
I. LEGAL STANDARDS GOVERNING THE REQUESTED RELIEF
II. THE CENTRAL BANK IS AN ALTER EGO OF ARGENTINA
A. Legal Standard for Alter-Ego Showing
B. Argentina Continues To Control The Activities and Assets of the Central Bank
C. Recognizing The Central Bank’ s Separate Juridical Status Would Countenance Argentina’s Selective Recognition Of (Or Refusal To Recognize) The Valid Judgments Entered Against
III. THE BCRA ACCOUNTS ARE NOT IMMUNE FROM ATTACHMENT, RESTRAINT OR EXECUTION UNDER THE FSIA
CONCLUSION

TABLE OF AUTHORITIES
CASES
Compagnie Noga d’Importation et d’Exportation S.A. v. Russian Federation,
361 F.3d 676 (2d Cir. 2004)
De Letelier v. Republic of Chile,
748 F.2d 790 (2d Cir. 1984)
EM Ltd. v. Republic of Argentina,
473 F.3d 463 (2d Cir. 2007)
EM Ltd. v. Republic of Argentina,
552 U.S. 818 (2007)
First City, Texas-Houston v. Rafidain Bank,
150 F. 3d 172 (2d Cir. 1998)
First National City Bank v. Banco Para El Comercio Exterior de Cuba,
462 U.S. 611 (1983)
JSC Foreign Economic Ass’n Technostroyexport v. International Development and Trade Services, Inc.,
306 F. Supp. 2d 482 (S.D.N.Y. 2004)
Kensington Int’l Ltd. v. Republic of Congo,
2007 WL 1032269 (S.D.N.Y. March 30, 2007), reversed sub nomo on other grounds, Kensington Intern. Ltd. V. Itoua, 505 F.3d 147 (2d Cir. 2007)
McKesson v. Islamic Republic of Iran,
52 F.3d 346 (D.C. Cir. 1995)
Passalacqua Builders, Inc. v. Resnick,
933 F.2d 131 (2d Cir. 1991)
Republic of Argentina v. Weltover,
504 U.S. 607 (1992)
Triton Container International Ltd. v. MIS Itaite,
No. 90 Civ. 7725, 1991 WL 255613 (S.D.N.Y. Feb. 25, 1991)
United States Fidelity & Guaranty Co. v. Braspetro Gil Services Co.,
1999 WL 307666 (S.D.N.Y. May 17,1999), aff’d, 199 F.3d 94 (2d Cir. 1999)
Walter Fuller Aircraft Sales Inc. v. Republic of Philippines,
965 F.2d 1375 (5th Cir. 1992)

STATUTES
28 U.S.C. § 1603
28 U.S.C. § 1605
28 U.S.C. § 1610
N.Y. C.P.L.R § 311
N.Y. C.P.L.R. § 5222
N.Y. C.P.L.R. § 5232
N.Y. C.P.L.R. § 6201
Foreign Sovereign Irnrnunities Act,
28 U.S.C. §§ 1601 et seq .
OTHER AUTHORITIES
Fed. R. Civ. P. 4.1
Fed. R. Civ. P. 11
Fed. R. Civ. P. 64
Fed. R. Civ. P. 69
H.R. 3493, 93rd Congo (1st Sess. January 31, 1973)
H.R. Rep. No. 94-1487, reprinted in 1976 U.S.C.C.A.N. 6604
11-5222 Weinstein, Korn & Miller, New York Civil Practice: CPLR P 5222.05

Plaintiff EM, Ltd. ("EM"), through its attorneys Debevoise & Plimpton LLP, and Plaintiff NML Capital, Ltd. ("NML"), through its attorneys Dechert LLP, respectfully bring this ex parte motion and submit this supporting memorandum of law pursuant to Rules 4.1, 64 and 69 of the Federal Rules of Civil Procedure, Section 311 and Articles 52 and 62 ofthe New York Civil Practice Law and Rules, and 28 U.S.C. § 1610(c). By this motion, Plaintiffs seek attachment and restraining orders, and writs of execution, with respect to all property of the Republic of Argentina ("Argentina") nominally held by its alter ego, Banco Central de la República Argentina ("BCRA" or the "Central Bank") (collectively, "Defendants"), currently on deposit at any garnishee, including the Federal Reserve Bank of New York ("FRBNY"), located within this Court’s jurisdiction-except for $105 million held by BCRA since December 30, 2005 in a single account at the FRBNY and the subject of Plaintiffs’ separate, pending motion for attachment and
restraining orders.[4]
PRELIMINARY STATEMENT
As this Court well knows, EM and NML hold final judgments against Argentina that collectively total, with interest, nearly $2 billion,[5] Unfortunately, as the Court knows too well, Argentina has yet to pay one dime toward satisfying those judgments. EM and NML have been forced as a result to spend considerable resources over the last several years locating Argentine assets against which Plaintiffs can execute-and then battling Argentina, which has waged a dogged campaign to protect those assets from collection. The Court is in the process of deciding Plaintiffs’ motion seeking attachment and restraining orders relating to approximately $105 million deposited, and currently frozen by stipulation of the parties, in a single account nominally held at the FRBNY in the name of the Central Bank. That motion, which was filed over three years ago, arises from Plaintiffs’ separate lawsuit against Argentina and its alter ego, the Central Bank.
This Court already found, in connection with Plaintiffs’ pending motion regarding the frozen $105 million, that the Central Bank was an alter ego of Argentina as of December 30, 2005. In the ensuing four years, the Argentine Executive Branch has engaged and continues to engage in a series of widely-publicized acts that unequivocally demonstrate its continued and complete control over the Central Bank. These acts are remarkable not only because they demonstrate that the Central Bank remains an alter ego of Argentina, but also for the degree to which they evince Argentina’ s confidence in its ability to continue disregarding the U.S. legal system by whose laws it expressly agreed to be bound.
The most recent evidence of the Argentine Executive Branch’s domination of the Central Bank includes the issuance of an "emergency" Executive Decree on December 14, 2009 by Argentine President Cristina Fernández de Kirchner mandating the transfer of Central Bank reserves into a dedicated fund to be used for the repayment of Argentina’s sovereign debt. When the Central Bank’ s then-Governor, Martín Redrado, refused to arrange an immediate transfer of reserves pending advice from the Central Bank’s legal counsel, President Fernández de Kirchner issued another "emergency" Executive Decree on January 7, 2010 firing Redrado. On January 8, 2010, acting Central Bank Govemor Miguel Angel Pesce reportedly directed Argentine banks to ceas e foreign currency transactions using BCRA’s account(s) at the FRBNY and instead operate through the BCRA’s account at the Bank for Intemational Settlements ("BIS") in Basel, Switzerland. See Exhibit 1 to the Declaration of Suzanne M. Grosso dated January 11, 2010 ("Grosso Decl.") (Arrangements Made for Carrying Out Foreign Exchange Operations in Switzerland in Order to Avoid the Seizing of Accounts, LA NACIÓN (Jan. 8, 2010)); Grosso Decl. Ex. 2 (Pesce Arrived Early and Authorized the Account, But Did Not Manage to Transfer Funds, CLARÍN (Jan. 9,2010)).
While the Argentine Executive Branch and Redrado are currently engaged in a legal battle over the status of these decrees, Pesce’s order confirms that the Central Bank has continued to use at least one account at the FRBNY-and that any unrestrained assets currently held in New York in the name of the Central Bank will be imminently transferred out of the United States. Plaintiffs therefore seek, based on the Central Bank’s status as a present-day alter ego of Argentina, attachment and restraint of the FRBNY account in which the frozen $105 million is held (to the extent that account contains amounts in excess of $105 million), together with any other accounts maintained in the name of the Central Bank both at the FRBNY and elsewhere in Manhattan (collectively, the "BCRA Accounts"). Plaintiffs bring this motion to ensure that all Central Bank assets now located within the Court’ s jurisdiction remain here, and, as the only creditors to have invested considerable resources developing and litigating the status of the Central Bank as an alter ego of Argentina, to preserve their priority rights to such property. This motion is brought separately from Plaintiffs’ pending motion involving the Central Bank, and it is not necessary for the Court to decide the issues presented by the new motion (i.e., the Central Bank’s current alter-ego status and current use of the BCRA Accounts) to issue a written decision on the pending motion (which involves the Central Bank’s alter-ego status as of December 30, 2005 and commercial use of the $105 million on that date).
The Central Bank, as an alter ego liable for Plaintiffs’ judgments against Argentina, may invoke the protection of the Foreign Sovereign Immunities Act, 28 U.S.e. §§ 1601 et seq. ("FSIA"), only to the same extent as Argentina-which indisputably waived its assets’ immunity from attachment under the FSIA. Since Argentina cannot itself invoke the protection afforded to central banks under § 1611, the FSIA does not bar Plaintiffs’ requested provisional relief if the BCRA Accounts are being used for commercial activity. In light of the evidence Plaintiffs already uncovered through discovery about how the FRBNY account in which the frozen $105 million is deposited was being used for commercial activity in 2005, the Central Bank and Argentina are likely using the BCRA Accounts for sorne or all of the same commercial activities.
STATEMENT OF FACTS
Plaintiffs’ Statement of Facts is divided into three sections. The first section summarizes for the Court’ s convenience Plaintiffs’ pending litigation against the Central Bank. The second section summarizes the alter-ego evidence Plaintiffs introduced through October 2008, when they filed a Second Amended Complaint against the Central Bank and Argentina. The third section provides examples of alter-ego evidence since that time.
I. PLAINTIFFS’ PENDING LITIGATION AGAINST THE CENTRAL BANK
A. History Of The Frozen $105 Million
The entire FRBNY account containing the frozen $105 million (the "First FRBNY Account") was initially attached and restrained by Plaintiffs in 2005 as a result of litigation involving the early repayment of Argentina’s $9.8 billion debt to the International Monetary Fund (the "IMF"). Specifically, on December 15, 2005, then-President Néstor Kirchner issued two "emergency" Executive Decrees that (a) designated over $8 billion of Central Bank assets as so-called "unrestricted reserves" available to repay Argentina’ s debts to international financial organizations, and (b) directed the repayment of Argentina’s debt to the IMF using these newly-designated Central Bank assets. Since the repayment to the IMF was reportedly scheduled to be made on January 3, 2006, Plaintiffs acted quickly and obtained ex parte orders on December 30, 2005 restraining and attaching any Central Bank property held or located at each of the nine garnishee financial institutions in New York where Plaintiffs then had reason to believe the Central Bank may have maintained accounts (the "IMF Motion"). FRBNY was the only garnishee in possession of significant assets-i.e., the First FRBNY Account-subject to the attachment and restraining orders.[6]
On January 9, 2006, the Court entered a Stipulation and Consent Order (the "January 2006 Order") negotiated by the parties in response to concerns expressed by Argentina and the Central Bank that the attachment and restraining orders not interfere with the alleged "day-to-day, ordinary course, central-banking functions of the Central Bank" pending resolution of their motion to vacate and Plaintiffs’ cross-motion to confirmo The J anuary 2006 Order amended the attachment and restraining orders to extend to property in the First FRBNY Account equal to not less than 95% of the amount credited to that account as of the close of business on January 6, 2006-or maintenance of approximately $105 million-pending a resolution of the cross-motions.[7]On January 12, 2006, the Court vacated the amended attachment and restraining orders, but stayed the vacatur pending Plaintiffs’ appeal.
On September 25, 2006, shortly after the Second Circuit heard oral argument on Plaintiffs’ appeal in the IMF Motion, Plaintiffs brought a new lawsuit (Docket No. 06 Civ. 7792 (TPG)) against both Argentina and the Central Bank based on allegations and voluminous evidence that the Central Bank is an alter ego of Argentina (the "Alter-Ego Action"). At the same time, Plaintiffs moved on notice for the attachment and restraint of the $105 million then on appeal in the IMF Motion (the "First Alter-Ego Motion").
The parties negotiated another Stipulation and Consent Order that was entered by the Court on September 28, 2006 (the "September 2006 Order"), which provided that the $105 million in the First FRBNY Account would remain frozen-and subject to the terms of the January 2006 Order-pending the later of the Second Circuit’ s decision on the IMF Motion or this Court’s decision on the First Alter-Ego Motion.[8]
On January 5, 2007, the Second Circuit issued its decision on the IMF Motion affirming this Court’ s vacatur of the attachment and restraining orders directed to the $105 million held in the First FRBNY Account. The Second Circuit concluded that the $105 million was immune from attachment and restraint under the FSIA because those funds remained property of the Central Bank notwithstanding the decrees issued by then­President Néstor Kirchner. EM Ltd. v. Republic of Argentina, 473 F.3d 463,465 (2d Cir. 2007). At the same time, as this Court previously observed, the Second Circuit decision "almost reads like an invitation to raise [an alter-ego theory]." Grosso Decl. Ex. 7 (Hearing Transcript (Feb. 2, 2007) at 18:17-25); see Grosso Decl. Ex. 8 (Hearing Transcript (May 6, 2008) at 6:23-25); Grosso Decl. Ex. 9 (Hearing Transcript (Dec. 17, 2007) at 8:1-11). The Second Circuit alternatively concluded that the $105 million was protected from attachment and restraint by sovereign immunity because there was no evidence that these particular reserves were to be used for repaying the IMF and, in any event, that a sovereign’s repayment of its debt to the IMF is not a commercial activity
under the FSIA. EM Ltd., 473 F.3d at 482.
Plaintiffs’ petition for a writ of certiorari in connection with the IMF Motion was denied by the Supreme Court on October 1, 2007. EM Ltd. v. Republic of Argentina, 552 U.S. 818 (2007). However, pursuant to the September 2006 Stipulation, the $105 million held in the First FRBNY Account remains frozen pending a decision from this Court on the First Alter-Ego Motion.
B. Status Of The First Alter-Ego Motion And Alter-Ego Action
The Court has conducted multiple hearings and received several rounds of briefing and correspondence throughout 2007, 2008 and 2009 in connection with the First Alter-Ego Motion.
To date, the Court has issued a series of oral rulings on certain relevant factual and legal issues:
• First, the Court held that Plaintiffs’ First Amended Complaint (filed on November 21, 2007, in the Alter-Ego Action) states "a perfectly good request for money judgment." Grosso Decl. Ex. 9 (Hearing Transcript (Dec. 17,2007) at 25:15-16).
• Second, the Court rejected Defendants’ contention that the doctrine of res judicata bars the First Alter-Ego Motion. See Grosso Decl. Ex. 8 (Hearing Transcript (May 6,2008) at 3:20-22 ("1 will start by saying that the res judicata argument made by the [Central Bank] I think is not valid.")).
• Third, the Court rejected Plaintiffs’ contention that they need only establish a prima facie alter-ego case to sustain their burden of proof and continue the freeze of the $105 million held in the First FRBNY Account until a final decision has been issued on the merits in the Alter-Ego Action. See Argument Section I below.
• Fourth, the Court found that Plaintiffs satisfied their burden of establishing that the Central Bank was an alter ego of Argentina. See Grosso Decl. Ex. 8 (Hearing Transcript (May 6, 2008) at 8:24­25 ("Now I want to say-and I haven’t written a formal decision­the plaintiffs make a very strong case of alter-ego.")); Grosso Decl. Ex. 10 (Hearing Transcript (May 30, 2008) at 28: 14-16 (reiterating that the Court already "made a finding of alter ego[.]")).[9]
In a telephonic conference conducted on May 6, 2008, the Court advised the parties of its view that the record in the First Alter-Ego Motion was not yet developed enough to determine whether the First FRBNY Account was being used for commercial activity prior to December 30,2005, the date on which it was originally frozen in the IMF Motion. Plaintiffs subsequently served discovery requests on Argentina and the Central Bank, and a subpoena on the FRBNY, seeking information about the use(s) of the First FRBNY Account under the Foreign Sovereign Immunities Act, 28 U.S.e. §§ 1601-1611.
Defendants objected to Plaintiffs’ requests, and the Court held another telephonic conference on May 30, 2008 to discuss the parties’ dispute. The parties thereafter agreed, subject to certain reservations of their rights, to limit the scope of Plaintiffs’ requests, and discovery has concluded. This remaining issue was fully-briefed as of August 16,2009.[10]
Also during the May 6, 2008 telephonic conference, the Court directed Plaintiffs to re-plead their First Amended Complaint in the Alter-Ego Action in a format that did not require the simultaneous submission of voluminous referenced exhibits. Plaintiffs filed a Second Amended Complaint on October 6,2008 [Case No. 06 Civ. 7792, Docket No. 43].
The Second Amended Complaint describes extensive new evidence demonstrating Argentina’s continued domination of the Central Bank during the two years that had passed since the First Alter-Ego Motion was filed in September 2006. The Second Amended Complaint references press articles and other documents supporting Plaintiffs’ alter-ego allegations, but does not attach copies of those materials. On December 7, 2009, in response to a Memorandum from the Court dated November 24, 2009 [Case No. 06 Civ. 7792, Docket No. 58], Plaintiffs filed a declaration attaching as exhibits each press article and other document referenced in the Second Amended Complaint, regardless of whether such material s previously were submitted as exhibits to any declarations submitted in support of the First Alter-Ego Motion. See Declaration ofDennis Hranitzky dated December 7,2009 [Case No. 06 Civ. 7792, Docket No. 58]. On December 15, 2009, the Court approved BCRA’s request for 30 days in which to respond to those exhibits that were not yet part of the record in the First Alter-Ego Motion. See Endorsed letter from BCRA to Court dated December 14, 2009 [Case No. 06 Civ. 7792, Docket No. 60].
In a telephonic conference conducted on January 8, 2010, the Court requested that the Central Bank provide (a) information regarding substantial transfers of Central Bank reserves from the United States, including during the period leading up to Argentina’s default in 2001 (see Grosso Decl. Ex. 13 (Case No. 03 Civ. 2507 (TPG), Hearing Transcript (Jan. 8, 2010) at 5, 11)), and (b) the reason that the Central Bank stopped conducting certain types of investment transactions out of the First FRBNY Account on or around December 15,2005 (se e id. at 6-7.).
II. SUMMARY OF PREVIOUSL Y INTRODUCED EVIDENCE ESTABLISHING ARGENTINA’S DOMINATION OF THE CENTRAL BANK
Plaintiffs provide in summary format below samples of the alter-ego evidence presented as of October 6, 2008, the date on which the Second Amended Complaint was filed in the Alter-Ego Action. These samples are intended to provide context for the discussion in Section III below presenting new evidence demonstrating Argentina’s continued complete domination over the Central Bank to this day. Plaintiffs respectfully refer the Court to their prior submissions for a more detailed analysis of these and other examples:
First, the Central Bank’s charter has always limited the Central Bank’ s independence as a separate legal entity. Furthermore, the charter is a document drafted by Argentina and subject to amendment or preemption by the Argentine Executive Branch or Argentine Congress. Since 1999, Argentina has amended the charter or otherwise enacted laws affecting the Central Bank’s functions over 40 times-and the overwhelming majority of those amendments and legislation cede even more control over the Central Bank’ s activities to the Executive Branch. Second Amended Complaint, 29-30.
Second, Argentina has the power to appoint and remove Central Bank officials at will. From 2001 through 2005, the Central Bank witnessed incredibly high turnover among its leadership, including its six different Governors-each of whom was supposed to serve a six-year termo Among central banks world-wide, the Central Bank has one of the highest turnover rates. High turnover of central bank officials is a leading indicator of lack of central bank independence in developing countries. Indeed, many of the Central Bank Governors who have been forced to resign in recent years (sorne following only a tenure as short as several months) have made clear that their resignations were due to Argentina’ s control of the Central Bank. In contrast, current Central Bank Governor, Martín Redrado, managed-at least untillast week (see Section III.B below)-to hold on to his position for almost his entire six-year term by operating as a "yes man" for former Argentine President Néstor Kirchner and his wife, current Argentine President Cristina Fernández de Kirchner. Second Amended Complaint, 31-41.
Third, according to its charter, the Central Bank is not supposed to be "subject to any order or instruction given by the National Executive Power" with regard to "the preparation and implementation of any monetary policy and financial policy." Managing these policies free from political interference in order to stabilize the value of their country’s currency and avoid inflation is a primary purpose of all truly independent central banks. But in reality, the Argentine Executive Branch so thoroughly controls the preparation and implementation of these policies that the Central Bank is incapable of performing its prescribed duties. Por example, prior to the election of his wife in October 2007, then-President Néstor Kirchner directed the Central Bank to accumulate reserves at all costs in order to fuel Argentina’s export-driven economy-and thereby garner the ongoing electoral support of the country’s important agricultural sector. The Kirchners reversed course in early 200S when the agricultural sector turned against them-directing the Central Bank to drive up the value of the Argentine peso (thereby stifling agricultural exports) as a punishment to the sector and as a warning against a strike contemplated by the industrial sector. Inflation is rampant as a result of the Kirchners’ micro-management of Argentina’s monetary and financial policies. To mask this consequence, the Executive Branch has resorted to manipulating official inflation statistics. Second Amended Complaint, 42-57.
Fourth, the assets of a genuinely independent central bank cannot be raided by its parent government to pay the government’ s own debts. Nevertheless, there are now almost no restrictions on Argentina’ s ability to use Central Bank assets for Argentina’ s own purposes, including repayment of Argentina’s debts. In 2005, then-President Néstor Kirchner-without the approval of the Central Bank and in violation of the limitations contained in the Central Bank’ s Charter on lending to the government-issued Executive Decrees earmarking over US$8 billion of BCRA reserves for an early repayment in full of Argentina’s debt to the International Monetary Fund. In 2008, current President Cristina Fernández de Kirchner issued Executive Decrees authorizing the use of BCRA reserves to repay Argentina’s debt to the Paris Club-as well as any other foreign-currency denominated Argentine debt-and exempting such transactions from the Charter limitation. The Central Bank once again was not consulted. Second Amended Complaint, 58-71.
III. NEW EVIDENCE FURTHER ESTABLISHING ARGENTINA’S DOMINATION OF THE CENTRAL BANK
Since Plaintiffs filed their Second Amended Complaint on October 6, 2008, evidence demonstrating that Argentina completely dominates the Central Bank has continued to mount. Argentina persists in commandeering Central Bank assets for use by the Argentine Executive Branch (including repayment of Argentina’s debt), usurping the Central Bank’s responsibility for the country’s monetary policy, and acting as the puppet master for Central Bank leadership.
A. The Argentine Executive Branch Continues To Commandeer Central Bank Funds For Argentina’s Own Use, Including Selective Repayment Of Debt
The Argentine Executive Branch views as limitless its ability to seize Central Bank funds for Argentina’ s own use, including the selective repayment of the country’s debt (among other spending initiatives). Throughout 2009, the Kirchners financed their political patronage machine with funds appropriated from the Central Bank, Banco de la Nación Argentina, and Argentina’s pension system. See Grosso Decl. Ex. 14 (With This Legacy, Will the Dynasty Wish to Continue?, LA NACIÓN (Nov. 29, 2009)). By all accounts, they intend to do the same thing in 2010. See Grosso Decl. Ex. 15 (Public Financing Continues in 2010, LA NACIÓN (Sept. 24, 2009)); Grosso Decl. Ex. 16 (Debt and 2010 Financial Program, LA NACIÓN (Sept. 13, 2009)); Grosso Decl. Ex. 17 (The Government Embellishes December Figures to Conceal the Deficit, CLARÍN (Dec. 7, 2009) (describing the "varied accounting tricks" the govemment will use to "appear fiscall y health y")).
1. Access To Central Bank Reserves By Decree
The most recent example of the Argentine Executive Branch’s complete domination of the Central Bank is the creation of a US$6.57 billion fund to pay Argentina’s debts using Central Bank reserves. On December 14, 2009, President Cristina Femández de Kirchner issued "emergency" Executive Decree 2010/2009, establishing the Fondo del Bicentario para el Desendeudamiento y la Estabilidad, the Bicentennial Fund for Debt Reduction and Stability. See Grosso Decl. Ex. 18 (Decree 2010/2009). The Fund will use more than one-third of the Central Bank’s "freely available" foreign currency reserves (or 14% of the total foreign currency reserves) to make debt payments in 2010. See id; Grosso Decl. Ex. 19 (Argentina Takes Steps to Lower Risk Perception, Dow JONES INT’L Nsws (Dec. 14, 2009)). The fund will be created by a transfer of Central Bank funds to the Treasury that effectively constitutes a loan with zero interest. See Grosso Decl. Ex. 18 (Decree 2010/2009); Grosso Decl. Ex. 20 (Argentine Zero Interest Loan Proves Irresistible, BLOOMBERG (Dec. 20, 2009)).
Section 1 of the Decree amends Article 6 of Argentine Law 23.928 (the so-called "Convertibility Law") to provide that "[t]he freely available reserves may be applied to the payment of obligations contracted with intemational financial organizations and to the payment of debt service on the public debt of the National State:" Grosso Decl. Ex. 18 (Decree 2010/2009) § 1 (emphasis added). Then, as exp1ained in the recitals to the Decree, "[t]he Fund will be managed by the MINISTRY OF THE ECONOMY AND
PUBLIC FINANCE," and
... shall be established in the amount of SIX BILLION FIVE HUNDRED SIXTY-NINE MILLION U.S. DOLLARS (US$6,569,000,000), or its equivalent in other currencies, representing payments due to multilateral agencies in the sum of TWO BILLION ONE HUNDRED EIGHTY-SEVEN MILLION U.S. DOLLARS (US$2,187,000,000), and payments due to private creditors in the amount of FOUR BILLION THREE HUNDRED EIGHTY-TWO MILLION U.S. DOLLARS (US$4,382,000,000), which [BCRA] will transfer to the National Treasury from the freely available reserves.
Decree 2010/2009 (Grosso Decl. Ex. 18), at p. 4 (recital s) and §§ 2 and 3 (emphasis added).
Alfonso Prat-Gay, who served as Governor of the Central Bank from 2002 to 2004 and is now a member of the Argentine Congress, believes the Decree creating the Bicentennial Fund is illegal, because the Central Bank should be an independent institution and not have its reserves appropriated at the Argentine Executive Branch’s will. Grosso Decl. Ex. 21 (Harsh Criticism by the Opposition to the Use of BCRA Funds, LA NACIÓN (Dec. 15, 2009)). Other observers in Argentina have harshly criticized this use of Central Bank funds to repay sovereign debt as violating the independence ostensibly required by the Central Bank charter and the Argentine Constitution because President Cristina Fernández de Kirchner acted without the required Congressional approval. See, e.g., Grosso Decl. Ex. 22 (The Reserves Belong to Cristina, ÁMBITO FINANCIERO (Dec. 16, 2009)); Grosso Decl. Ex.23 (The Government Frees Up Resources to Raise Cash and Maintain Spending, CLARÍN (Dec. 15, 2009)). On January 8, 2010, an Argentine federal court stayed further implementation of the Bicentennial Fund and Decree 2010/2009. Grosso Decl. Ex. 24 (Opinion and Order of Maria Jose Sarmiento, Court’s Emergency Proceeding Register, page 4-5/471 (Jan. 8, 2010)).[11] The Kirchner administration has appealed that decision. See Grosso Decl. Ex. 27 (Argentine Gov’t Appeals Rulings on Central Bank, REUTERS (Jan. 9,2010)).
The decision to establish the Bicentennial Fund-and the accompanying decision to fire the Central Bank’ s Governor, Martín Redrado, for his failure to implement the Fund immediately (see infra Section III.B)-are further evidence of President Cristina Fernández de Kirchner’ s belief, shared by her husband, that the Argentine Executive Branch can dip into Central Bank reserves for purposes unrelated to central banking. See Grosso Decl. Ex. 22 (The Reserves Belong to Cristina, ÁMBITO FINANCIERO (Dec. 16, 2009); Grosso Decl. Ex. 23 (The Government Frees Up Resources to Raise Cash and Maintain Spending, CLARÍN (Dec. 15, 2009) ("A collateral effect of the decision [to create the fund] is that it further blurs the lines between the Central Bank and the State.")). A senior economist at Goldman Sachs described the use of Central Bank reserves for debt repayrnent as "clearly negative from an institutional standpoint" because "it weakens the central bank and provides the government with extra rope to extend a notoriously profligate spending stance that is often shaped according to political criteria." See Grosso Decl. Ex. 28 (Argentina to Tap Reserves for Debt Payment Fund, REUTERS (Dec. 14, 2009)). The Executive Branch’s actions in this regard indeed are only a short step removed from using the reserves to pay for current spending. See Grosso Decl. Ex. 29 (Argentina Govt’s Move to Woo Investors Becomes a Headache, Dow JONES INT’L NEWS (Dec. 21, 2009)).
2. Access To Central Bank "Profits"
The Argentine Executive Branch makes regular use of "profits" eamed by the Central Bank to, among other things, fund the govemment budget and disguise the Kirchner administration’s poor fiscal management. For example, in 2008, the Central Bank delivered to the Treasury more than AR$4 billion-almost three times as much as the amount allotted in the 2008 Budget. See Grosso Decl. Ex. 30 (The BCRA Assists the Treasury, EL CRONISTA (Dec. 18,2008) (explaining that, although in the 2008 budget the Central Bank was meant to have extended a maximum of AR$l.4 billion to the Treasury, "in 2008 it has fully exceeded this figure, given that it is around $4 billion")). The AR$4 billion was treated by the Kirchners as "make-up" to "avoid showing a tighter fiscal surplus." Id.
In mid-2009, the Govemment demanded AR$3 billion in Central Bank profits immediately following the mid-term elections. See Grosso Decl. Ex. 31 (The Central Bank (BCRA) Aids the Government with $ 3 Billion, ÁMBITO FINANCIERO (July 6,2009)). The Argentine press described the reason for this demand in no uncertain terms:
Immediately following the close of the elections, the Minister of the Economy, Carlos Femández, sent an urgent letter to Martín Redrado, President of the Central Bank. The objective was to obtain the eamings of the monetary authority to increase the accounts of the Treasury. As a result, $ 3 billion have already been transferred, and will be vital: this collaboration by the Central Bank is what will prevent the June fiscal accounts from producing a fiscal deficit, despite a significant increase in preelection expenses.
Id. Put another way, the Kirchners paid for their politically-motivated pre-election spending using Central Bank "eamings."
Soon thereafter, the Treasury insisted that the Central Bank transfer an additional AR$1.4 billion in "profits." See Grosso Decl. Ex. 32 (Ministry of the Economy Requests Funds from the BCRA to Cover Increase in Costs, LA NACIÓN (July 1, 2009)). When the Central Bank initially balked at the transfer, the Ministry of the Economy insisted that "if the transfer of funds does not complicate the balance sheet of the monetary institution, there is no reason why the State should be denied this money, as it is the owner." Grosso Decl. Ex. 33 (They Will Aim to Limit the Increase in Spending, LA NACIÓN (July 2, 2009)).
In total, the Central Bank transferred an estimated AR$4.4 billion to the Treasury in 2009, not counting advances. See Grosso Decl. Ex. 34 (The Central Bank Shall Have Record Eamings in 2009: $10 Billion, ÁMBITO FINANCIERO (Dec.7, 2009)). The Argentine Executive Branch is counting in 2010 on another US$2.6 billion of "profits" from the Central Bank. See Grosso Decl. Ex. 35 (The Senate, Ready to Approve a Budget with Accounts of Fiction, CLARÍN (Nov. 10,2009)).
3. Access To Central Bank Reserves By Amendment Of Central Bank Charter
The Argentine Executive Branch continues to access Central Bank reserves for Argentina’s use through amendments to the Central Bank’s charter. Article 19(a) of the charter prohibits the Central Bank from lending funds to the Argentine govemment except as otherwise provided under Article 20. See Grosso Decl. Ex. 36 (Central Bank Charter). As originally drafted, Article 20 was very restrictive; in recent years, Article 20 has been amended by decree and legislation to make it significantly easier for the Central Bank to loan money to Argentina. One example is an amendment to Article 20 that enables the Central Bank to make "advances" to Argentina of up to 12% of the monetary base, so long as Argentina repays the Central Bank within one year. See id.
President Cristina Femández de Kirchner further expanded Argentina’ s ability to access Central Bank reserves through another amendment to Article 20. Specifically, her 2009 Budget Law, which was passed November 6, 2008, excludes from the 12% calculation all "advances solely allocated to payment of outstanding obligations with multilateral lending agencies and to the repayment of obligations in foreign currency."
See Grosso Decl. Ex. 37 (Article 72 of 2009 Budget Law); Grosso Decl. Ex. 38 (Budget Approved with No Changes, LA NACIÓN (Nov. 6, 2008) (announcing passage of the law)); Grosso Decl. Ex. 39 (2009 Budget: The Senate Made It Law Without Changing One Single Aspect of It, CLARÍN (Nov. 8, 2008) (same)). The 2009 Budget Law thus permits the Kirchners to use Central Bank reserves without violating the Central Bank’ s charter.
B. The Argentine Executive Branch Continues To Puppeteer The Central Bank’s Governor
The Kirchners’ continued control over the Central Bank depends on their being able to control the Central Bank’ s leading official, its Govemor. For over five years, the Kirchners did not find it necessary to fire the Central Bank’ s current Govemor, Martín Redrado, because he implemented their wishes dutifully. As an example of Redrado’s prior willingness to implement the Kirchners’ wishes, when the financial crisis hit in October 2008, Néstor Kirchner simply called Redrado to give him direct instructions on how the Central Bank should respond on a day-to-day level. As the Argentine press colorfully described October 29,2008:
[The] telephone of Martín Redrado ... never stopped receiving messages by order of Néstor Kirchner. The former President. ... spoke at least three times with the Head of Cabinet, Sergio Massa. Automatically, the official called Redrado, who instantly offered 1000 million dollars to depressurize the meteoric rise of the dollar. Just an hour had passed since the start of operations.
Grosso Decl. Ex. 40 (Kirchner Gave the Order to Intervene, LA NACIÓN (Oct. 30, 2008)); see Grosso Decl. Ex. 41 (Kirchner Picks Up Duties in the Matrimonial Division of Power, LA NACIÓN (Nov. 2,2008)).
Redrado’s relationship with the Kirchners dramatically changed this past week, when he resisted the immediate transfer of Central Bank reserves to the Bicentennial Fund pending advice from the Central Bank’s legal counsel. On January 6, 2010, President Cristina Fernández de Kirchner called for Redrado’s resignation. See Grosso Decl. Ex. 42 (Argentina Seeks Central Bank Ouster Over Debt Plan, BLOOMBERG (Jan. 6, 2010)); Grosso Decl. Ex. 43 (The Reserves, or Your Job, ECONOMIST (Jan. 7, 2010)).
When Redrado did not step down, maintaining that he could not be fired without the participation of Congress, President Fernández de Kirchner fired him by "emergency" Executive Decree. Grosso Decl. Ex. 44 (Decree 18/2010). Miguel Angel Pesce, another senior Central Bank official, who had very recently made public statements in favor of the Fund, took the helm and moved quickly to try to implement the Fund. See Grosso Decl. Ex. 45 (The Central Bank Vice-President Puts More Pressure on Redrado, ÁMBITO FINANCIERO (Jan. 7, 2010) (quoting Pesce as stating that the Central Bank "must ‘comply’ with the emergency decree which orders the establishment of the Bicentennial fund ... because that decision by the Chief Executive has the ‘force of law"‘)); Grosso Decl. Ex. 2 (Pesce Arrived Early and Authorized the Account, But Did Not Manage to Transfer Funds, CLARÍN (Jan. 9,2010) (describing steps Pesce took to implement Fund)). Pesce additionally ordered that Argentine banks conduct their foreign currency transactions through the Central Bank’s account at the BIS, rather than through the Central Bank’ s account at the FRBNY. See Grosso Decl. Ex. 1 (Arrangements Made for Carrying Out Foreign Exchange Operations in Switzerland in Order to Avoid the Seizing of Accounts, LA NACIÓN (Jan. 8, 2010)); Grosso Decl. Ex. 2 (Pesce Arrived Early and Authorized the Account, But Did Not Manage to Transfer Funds, CLARÍN (Jan. 9,2010)).
Redrado brought a legal challenge to his involuntary ouster, and an Argentine federal judge ordered him to be reinstated on January 8, 2010-a decision the Kirchner administration quickly appealed. See Grosso Decl. Ex. 46 (Opinion and Order of Maria Jose Sarmiento, Court’s Emergency Proceeding Register, 4-5 (53) (Jan. 8, 2010)); Grosso Decl. Ex. 27 (Argentine Gov’t Appeals Rulings on Central Bank, REUTERS (Jan. 9, 2010)). The Argentine Executive Branch’s decision to remo ve Redrado confirms that the Central Bank is anything but independent. Indeed, President Cristina Femández de Kirchner’ s Cabinet Chief, Aníbal Femández, said that in Argentina, "the president makes decisions, not the president of the central bank. ... Redrado has assumed economic positions that don’t have anything to do with the economic policy of the govemment." Grosso Decl. Ex. 47 (Argentina Banker Resists Ouster, WALL ST J. (Jan. 7, 2010)). Moody’s analyst Juan Pablo Fuentes commented that the firing of Redrado "underscores the lack of importance the govemment attributes to the central bank’s independence." Grosso Decl. Ex. 48 (Argentina ‘Kills’ Bank Independence, Moody’s Economy.com Says, BLOOMBERG (Jan. 6,2010)).
C. The Argentine Executive Branch Continues To Dictate Monetary Policy, Including Directing The Central Bank To Manipulate The Exchange Rate To Further The Kirchners’ Own Political Agenda And Punish Their Political Enemies
The Kirchners continue to usurp the Central Bank’s role in effecting monetary policy. Leading up to Argentina’s 2009 mid-term elections, President Cristina Femández de Kirchner ordered the Central Bank to use all means necessary to maintain a "politically correct" exchange rate to prevent a rapid devaluation of the peso that might be viewed as the consequence of her administration’s poor fiscal management. In March 2009, for example, she ordered the Central Bank to "take actions ... to contain the dollar" in an attempt "to prevent the exchange rate of United States currency from becoming a factor that could divert votes." Grosso Decl. Ex. 49 (They Seek US$ 1.000 Billion From Intemational Organizations to Contain the Dollar, EL CRONISTA (Mar. 25, 2009)). Her motivation was transparent; as the Argentine financial press reported at the time, "halting or at least significantly slowing the rise of the Dollar does stem from economic interests, hut mainly from political ones .. " Grosso Decl. Ex. 50 (The Central Bank Will Take Actions Today to Halt the Rise of the Dollar, ÁMBITO FINANCIERO (Mar. 25, 2009) (explaining that "[e]xcessive devaluation could mean a hard blow for the Govemment, especially as the elections draw near.")); see Grosso Decl. Ex. 51 (Redrado Floods the Market with Future Dollars that will Mature at the Time of the Elections, EL CRONISTA (June 4,2009) ("The decision has been made: to tame the domestic [dollar-to-peso] exchange market at all costs, using measures as aggressive as necessary, to ensure an ‘ideal’ rate of exchange for the dollar at election time."). So motivated were the Kirchners-in fact, Néstor Kirchner also was running for a Congressional seat-that the Central Bank had "sacrificed" (i.e., sold) in the first six months of 2009 reserves worth sorne US$878 million-or 80% of all dollars sold in during the entire year in 2008.
Grosso Decl. Ex. 52 (The Sale of Dollars by the Central Bank Now Amounts to 80% of All That Was "Sacrificed’’ in 2008, EL CRONISTA (June 17,2009)).
ARGUMENT
I. LEGAL STANDARDS GOVERNING THE REQUESTED RELIEF
The New York Civil Practice Law and Rules apply to Plaintiffs’ requested relief. See Fed. R. Civ. P. 64 (referring to state law for pre-judgment attachment procedures); Fed. R. Civ. P. 69 (referring to state law for post-judgment execution procedures).
To obtain an order of pre-judgment attachment, the party seeking the order must show the existence of one of the factors set forth in CPLR § 620l-two of which are relevant here:
1. the defendant is a nondomiciliary residing without the state, or is a foreign corporation not qualified to do business in the state; or
* * *
3. the defendant, with intent to defraud his creditors or frustrate the enforcement of a judgment that might be rendered in plaintiff’ s favor, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts.
Plaintiffs are entitled to serve a post-judgment restraining notice under CPLR § 5222 so long as there are reasonable grounds to believe, consistent with Fed. R. Civ. P. 11, that they have valid judgments against Argentina and that the assets sought to be restrained are the property of Argentina. Here, Plaintiffs request their restraining notice in the form of an order to the extent § 1610(c) of the Foreign Sovereign Irnmunities Act-which expressly applies to attachments and executions-also may be deemed applicable to restraining notices. With respect to their final judgments, service of an execution on "any interest of the judgment debtor or obligor in personal property not capable of delivery" is authorized by CPLR § 5232.
Additionally, this Court has previously ruled in connection with motions seeking similar relief that Plaintiffs must demonstrate they are likely to succeed in showing (a) the existence of the alleged alter-ego relationship, and (b) that the assets they seek to attach or restrain are not protected by sovereign immunity under the FSIA.[12]
All of these standards are met with respect to both defendants. First, as this Court has repeatedly ruled, Argentina is a nondomiciliary "residing" outside New York which has demonstrated time and again that it will do everything in its power to evade satisfaction of valid judgments-including by moving its attachable assets (and specifically those of the Central Bank) out of this jurisdiction. Second, this Court has entered final judgments against Argentina in favor of each EM and NML. Third, it is probable that, with respect to NML’ s six pre-judgment actions against Argentina, NML will succeed in obtaining final judgments in its favor. Fourth, the Court has also already ruled that Plaintiffs demonstrated a likelihood of success in establishing that the Central Bank is an alter ego of Argentina as of December 30, 2005; as discussed below, that ruling is additionally supported by very substantial subsequent evidence. Fifth, as also discussed below, the BCRA Accounts that are the subject of this motion are not protected by sovereign immunity.
II. THE CENTRAL BANK IS AN ALTER EGO OF ARGENTINA
A. Legal Standard for Alter-Ego Showing
The legal standard for establishing that an entity is an alter ego of a foreign state was established by the Supreme Court in First National City Bank v. Banco Para El Comercio Exterior de Cuba (Bancec), 462 U.S. 611 (1983). In that case, the Court affirmed a district court order that found that a state-owned bank very much like the Central Bank was an alter ego of the Cuban government-holding that the presumption of separateness between a state-owned corporation and the state should be disregarded "where a corporate entity is so extensively controlled by its owner that a relationship of principal and agent is created," or where recognizing the alter ego’s alleged separate status "would work fraud or injustice." 462 U.S. at 629.[13]
B. Argentina Continues To Control The Activities and Assets of the Central Bank
This Court has already determined that, as of December 30, 2005, Plaintiffs satisfy one of Bancec’ s two altemative bases for disregarding the presumption of separateness between the Central Bank and Argentina, based on the degree of control exercised by Argentina over the Central Bank. As described aboye, the new evidence presented by this motion (taken either on its own or in combination with the evidence previously presented) strongly supports that the Central Bank continues to this day to be an alter ego of Argentina. There can be no question that the "control of [the Central Bank lies] exclusively in the hands of the Govemment" and its role is "to further Govemmental purposes." Bancec, 462 U.S. at 617 (finding Banco Para El Comercio Exterior De Cuba an alter ego of Cuba).[14]
C. Recognizing The Central Bank’s Separate Juridical Status Would Countenance Argentina’s Selective Recognition Of (Or Refusal To Recognize) The Valid .Judgments Entered Against It
The altemative Bancec requirement, that the protection afforded by recognition of separate juridical status would be used by the parent for fraud or injustice, is also met here. As the Court observed just last year: "[T]he Republic has thus far used every imaginative way in law and propriety to-and maybe not such propriety, but anyway, they want to block these plaintiffs from ever recovering a dime." Grosso Decl. Ex. 10 (Case No. 03 Civ. 2507 (TPG), Hearing Transcript (May 30, 2008) at 12:7-14); id. at 26:2-23 ("I am not impressed with the morality of the Republic of Argentina in its absolute steadfast refusal to honor its lawful debts."). Argentina’s dealings with its Central Bank are entirely consistent with this Court’s observations regarding Argentina’s steadfast refusal to satisfy valid judgments entered against it.
At the same time that Argentina has exercised such extensive control over the Central Bank that a principal-agent relationship exists, Argentina has sought to shield the Bank’s assets by falsely contending that they technically are not Argentina’s property. The falseness of Argentina’ s contention that the Central Bank’ s assets are not Argentina’s property is further evidenced-and tacitly acknowledged-by the words of Argentina’s then-Cabinet Chief, Alberto Femández, in 2004, describing sorne of the measures taken by Argentina even before its default to avoid satisfying its legal obligations to its creditors. (Femández was appointed to his position by then-President Néstor Kirchner upon taking office in 2003). As Alberto Femández stated:
Reserves of the Central Bank of the Argentine Republic on deposit in New York banks have been withdrawn, funds on deposit in the New York branch of Banco Nación have been repatriated, and salaries of Argentine officials posted to other countries are being deposited in Argentina or paid in the form of cash sent via diplomatic pouch, which has immunity.
Grosso Decl. Ex. 53 (The Government Is Protecting Itself from Attachment, LA NACIÓN, (Feb. 5, 2004)).[15] In fact, between mid-2001 and 2003, the Central Bank, acting on the advice of the Argentine govemment and its "intemational counsel," transferred billions of dollars of foreign exchange reserves out of the United States to the Bank of Intemational Settlements in Switzerland. There would have been no reason to shield those reserves from possible restraint or attachment unless they in fact belong to Argentina.
Moreover, Argentina has made Central Bank reserves a primary source of assets from which to repay Argentina’s external debt. If the Court were to recognize the Central Bank’ s separate juridical status, Argentina in effect would be permitted to pick and choose which of its creditors it will repay, and which will be left high and dry. Shielding the BCRA Accounts would greatly injure EM and NML by depriving them of arare opportunity to enforce their present and anticipated judgments.
III. THE BCRA ACCOUNTS ARE NOT IMMUNE FROM ATTACHMENT, RESTRAINT OR EXECUTION UNDER THE FSIA
The Central Bank, as an alter ego, is liable for Plaintiffs’ judgments against Argentina. See De Letelier v. Republic of Chile, 748 F.2d 790, 794 (2d Cir. 1984) ("foreign state instrumentality is answerable just as its sovereign parent would be" upon a finding of alter ego). Accordingly, the Central Bank may invoke the protection of FSIA only to the same extent as Argentina. See Kensington Int’l Ltd. v. Republic of Congo, 2007 WL 1032269, *13 (S.D.N.Y. March 30, 2007) (holding that, if plaintiff established state-owned entity to be the alter ego of Congo, then "the only immunity at issue is Congo’s immunity"), reversed sub nomo on other grounds, Kensington Intern. Ltd. v. Itoua, 505 F.3d 147 (2d Cir. 2007).
Argentina indisputably waived its assets’ immunity from attachment under the FSIA through the Fiscal Agency Agreement and Terms and Conditions governing the underlying bonds. Section 1611(b)(I) of the FSIA-which grants special protection for property "of a foreign central bank . . . held for its own account"-does not provide immunity because the Central Bank is serving as Argentina’s alter ego. It would be implicated by this motion only if Argentina were entitled to invoke that special protection. Argentina undeniably cannot claim immunity pursuant to § 1611. As a consequence of it being Argentina’s alter ego, and as this Court already observed, neither can the Central Bank. See Grosso Decl. Ex. 8 (Case No. 06 Civ. 7792 (TPG), Hearing Transcript (May 6, 2008) at 8:17-21 (reflecting this Court’s ruling that an alter-ego finding would "include[e] the consequence of Section 1611 not being applicable")); EM Ltd., 473 F.3d at 481 n.18 (quoting First City, Texas-Houston v. Rafidain Bank, 150 F.3d 172, 174 (2d Cir. 1998), for observation "that if central bank were alter ego of [foreign] instrumentality, central bank would be subject to jurisdiction under the FSIA’s commercial activity exception to immunity to the same extent as [the other instrumentality]").
Thus, the only remaining inquiry is whether the BCRA Accounts are being used for commercial activity in the United States pursuant to § 1610(a)(2).[16] The statute pro vides that:
A "commercial activity" rneans 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"
28 U.S.C. § 1603(d) (ernphasis added). The Suprerne Court made clear in Republic of Argentina v. Weltover, 504 U.S. 607 (1992) that:
However difficult it rnay be in sorne cases to separate "purpose" (i.e., the reason why the foreign state engages in the activity) frorn "nature" (i.e., the outward forrn of the conduct that the foreign state performs or agrees to perform), ... the statute unrnistakably cornrnands that to be done.
Id. at 617.[17] Weltover therefore establishes that the rnotivation for opening the Other Accounts is entirely irrelevant for purposes of § 1610(a)(2)-the only question for this Court is whether the BCRA Accounts are being used for "the type of actions by which a private party engages in ‘trade and traffic or commerce.’" Weltover, 504 U.S. at 614 (quoting Black’s Law Dictionary 270 (6th ed. 1990)).[18]
While it is difficult to discem frorn publicly-available sources how the Other Accounts are being used, the activities for which BCRA the First FRBNY Account was used in 2005-about which the parties have engaged in discovery and subrnitted extensive briefing to the Court-are probative with respect to how the BCRA Accounts are currently being used. Plaintiffs have established that, between October and Decernber 2005, BCRA used the First FRBNY Account for (1) ovemight investrnents in repurchase agreernent ("Repo") and federal funds ("Fed Funds") transactions; (2) foreign exchange transactions; (3) settling lines of credit opened to facilitate irnport and export transactions; (4) payrnents to third parties on behalf of Argentina; and (5) payrnent of BCRA’s operating expenses. Each of these commercial activities is plainly commercial in nature, because any private actor could undertake thern in trade or commerce. The BCRA Accounts are likely being used for sorne or all of the commercial activities for which the First FRBNY Account was being used.[19]
CONCLUSION
Por the foregoing reasons and based on the foregoing authorities, Plaintiffs request that the Court grant the relief requested by this Ex Parte Motion.
Dated: January 11, 2010
New York, New York
DECLARATION OF SUZANNE M. GROSSO IN SUPPORT OF PLAINTIFFS’ EX PARTE MOTION FOR ORDERS OF ATTACHMENT AND RESTRAINT, AND ISSUANCE OF WRITS OF EXECUTION
I, Suzanne M. Grosso, declare as follows:
1. I am associated with the law firm of Debevoise & Plimpton LLP, counsel to Plaintiff EM Ltd. ("EM") and am resident in the firm’ s New York office.
2. I make this Declaration to put before the Court certain facts and other information related to the ex parte motion collectively brought by EM and NML Capital, Ltd. seeking attachment and restraining orders, and writs of execution, with respect to all property of the Republic of Argentina nominally held by its alter ego, Banco Central de la República Argentina ("BCRA") currently on deposit at any gamishee, including the Federal Reserve Bank of New York ("FRBNY"), located within this Court’ s jurisdiction - except for $105 million held by BCRA since December 30, 2005 in a single account at the FRBNY and the subject of Plaintiffs’ separa te, pending motion for attachment and restraining orders.
3. Attached to this Declaration as Exhibit 1 is an English translation of Arrangements Made for Carrying Out Foreign Exchange Operations in Switzerland in Order to Avoid the Seizing of Accounts, LA NACIÓN (Jan. 8,2010), with a true and correct copy of the original article in Spanish.
4. Attached to this Declaration as Exhibit 2 is an English translation of Pesce Arrived Early and Authorized the Account, But Did Not Manage to Transfer Funds, CLARÍN (Jan. 9, 2010), with a true and correct copy of the original article in Spanish.
5. Attached to this Declaration as Exhibit 3 is a true and correct copy of the FRBNY Gamishee Statement dated January 9, 2006.
6. Attached to this Declaration as Exhibit 4 is a true and correct copy of the Stipulation and Consent Order dated January 9, 2006.
7. Attached to this Declaration as Exhibit 5 is a true and correct copy of excerpts from the Hearing Transcript dated January 6, 2006.
8. Attached to this Declaration as Exhibit 6 is a true and correct copy of the Stipu1ation and Consent Order dated September 28, 2006.
9. Attached to this Declaration as Exhibit 7 is a true and correct copy of excerpts from the Hearing Transcript dated February 2, 2007.
10. Attached to this Declaration as Exhibit 8 is a true and correct copy of excerpts from the Hearing Transcript dated May 6,2008.
11. Attached to this Declaration as Exhibit 9 is a true and correct copy of excerpts from the Hearing Transcript dated December 17, 2007.
12. Attached to this Declaration as Exhibit 10 is a true and correct copy of excerpts from the Te1ephone Hearing Transcript dated May 30,2008.
13. Attached to this Declaration as Exhibit 11 is a true and correct copy of Memorandum of October 6,2009, No. 06 Civ. 7792.
14. Attached to this Declaration as Exhibit 12 is a true and correct copy of Memorandum of October 16,2009, No. 06 Civ. 7792.
15. Attached to this Declaration as Exhibit 13 is a true and correct copy of the Te1ephonic Hearing Transcript dated January 8, 2010.
16. Attached to this Declaration as Exhibit 14 is an English translation of With This Legacy, Will the Dynasty Wish to Continue?, LA NACIÓN (Nov. 29, 2009), with a true and correct copy of the original article in Spanish.
17. Attached to this Declaration as Exhibit 15 is an English translation of Public Financing Continues in 2010, LA NACIÓN (Sept. 24, 2009), with a true and correct copy of the original article in Spanish.
18. Attached to this Dec1aration as Exhibit 16 is an English translation of Debt and 2010 Financial Program, LA NACIÓN (Sept. 13, 2009), with a true and correct copy of the original article in Spanish.
19. Attached to this Dec1aration as Exhibit 17 is an English translation of The Government Embellishes December Figures to Conceal the Deficit, CLARÍN (Dec. 7, 2009), with a true and correct copy of the original artic1e in Spanish.
20. Attached to this Declaration as Exhibit 18 is an English translation of Executive Decree 2010/2009, with a true and correct copy of the original decreee in Spanish.
21. Attached to this Dec1aration as Exhibit 19 is a true and correct copy of Argentina Takes Steps to Lower Risk Perception, DOW JONES INT’L NEWS (Dec. 14, 2009).
22. Attached to this Dec1aration as Exhibit 20 is a true and correct copy of Argentine Zero Interest Loan Proves Irresistible, BLOOMBERG (Dec. 20, 2009).
23. Attached to this Dec1aration as Exhibit 21 is an English translation of Harsh Criticism by the Opposition to the Use of BCRA Funds, LA NACIÓN (Dec. 15, 2009), with a true and correct copy of the original artic1e in Spanish.
24. Attached to this Dec1aration as Exhibit 22 is an English translation of The Reserves Belong to Cristina, ÁMBITO FINANCIERO (Dec. 16, 2009), with a true and correct copy of the original artic1e in Spanish.
25. Attached to this Dec1aration as Exhibit 23 is an English translation of The Government Frees Up Resources to Raise Cash and Maintain Spending, CLARÍN (Dec. 15,2009), with a true and correct copy of the original artic1e in Spanish.
26. Attached to this Declaration as Exhibit 24 is an English translation of Opinion and Order of Maria Jose Sarmiento, Court’s Emergency Proceeding Register, page 4-5/471 (Jan. 8,2010), with a true and correct copy of the original order in Spanish.
27. Attached to this Declaration as Exhibit 25 is a true and correct copy of Argentine Opposition Fights Kirchner’s Debt Plan, WALL ST. J. (Dec. 30, 2009).
28. Attached to this Declaration as Exhibit 26 is an English translation of The Court Awaits an Answer, CLARÍN (Jan. 6, 2010), with a true and correct copy of the original article in Spanish.
29. Attached to this Declaration as Exhibit 27 is a true and correct copy of Argentine Gov’t Appeals Rulings on Central Bank, REUTERS (Jan. 9,2010).
30. Attached to this Declaration as Exhibit 28 is a true and correct copy of Argentina to Tap Reservesfor Debt Payment Fund, REUTERS (Dec. 14,2009).
31. Attached to this Declaration as Exhibit 29 is an English translation of Argentina Govt’s Move to Woo Investors Becomes a Headache, DOW JONES INT’L NEWS (Dec. 21, 2009).
32. Attached to this Declaration as Exhibit 30 is an English translation of The BCRA Assists the Treasury, EL CRONISTA (Dec. 18,2008), with a true and correct copy of the original article in Spanish.
33. Attached to this Declaration as Exhibit 31 is an English translation of The Central Bank (BCRA) Aids the Government with $ 3 Billion, ÁMBITO FINANCIERO (July 6,2009), with a true and correct copy of the original article in Spanish.
34. Attached to this Declaration as Exhibit 32 is an English translation of Ministry of the Economy Requests Funds from the BCRA to Cover Increase in Costs, LA NACIÓN (July 1,2009), with a true and correct copy of the original article in Spanish.
35. Attached to this Declaration as Exhibit 33 is an English translation of They Will Aim to Limit the Increase in Spending, LA NACIÓN (July 2, 2009), with a true and correct copy of the original article in Spanish.
36. Attached to this Declaration as Exhibit 34 is an English translation of The Central Bank Shall Have Record Eamings in 2009: $10 Billion, ÁMBITO FINANCIERO (Dec. 7, 2009), with a true and correct copy of the original article in Spanish.
37. Attached to this Declaration as Exhibit 35 is an English translation of The Senate, Ready to Approve a Budget with Accounts of Fiction, CLARÍN (Nov. 10, 2009), with a true and correct copy of the original article in Spanish.
38. Attached to this Declaration as Exhibit 36 is a true and correct copy of the Central Bank of the Argentine Republic’ s Charter.
39. Attached to this Declaration as Exhibit 37 is an English translation of Article 72 of 2009 Budget Law, with a true and correct copy of the original law in Spanish.
40. Attached to this Declaration as Exhibit 38 is an English translation of Budget Approved with No Changes, LA NACIÓN (Nov. 6, 2008), with a true and correct copy of the original article in Spanish.
41. Attached to this Declaration as Exhibit 39 is an English translation of 2009 Budget: The Senate Made It Law Without Changing One Single Aspect of It, CLARÍN (Nov. 8,2008) ), with a true and correct copy of the original article in Spanish.
42. Attached to this Declaration as Exhibit 40 is an English translation of Kirchner Gave the Order to Intervene, LA NACIÓN (Oct. 30, 2008), with a true and correct copy of the original article in Spanish.
43. Attached to this Declaration as Exhibit 41 is an English translation of Kirchner Picks Up Duties in the Matrimonial Division of Power, LA NACIÓN (Nov. 2, 2008), with a true and correct copy of the original article in Spanish.
44. Attached to this Declaration as Exhibit 42 is a true and correct copy of Argentina Seeks Central Bank Ouster Over Debt Plan, BLOOMBERG (Jan. 6,2010).
45. Attached to this Declaration as Exhibit 43 is a true and correct copy of The Reserves, or Your Job, ECONOMIST (Jan. 7, 2010).
46. Attached to this Declaration as Exhibit 44 is an English translation of Executive Decree 18/2010, with a true and correct copy of the original decree in Spanish.
47. Attached to this Declaration as Exhibit 45 is an English translation of The Central Bank Vice-President Puts More Pressure on Redrado, ÁMBITO FINANCIERO (Jan. 7, 2010), with a true and correct copy of the original article in Spanish.
48. Attached to this Declaration as Exhibit 46 is an English translation of Opinion and Order of Maria Jose Sarmiento, Court’s Emergency Proceeding register, 4-5 (53) (Jan. 8, 2010), with a true and correct copy of the original opinion in Spanish.
49. Attached to this Declaration as Exhibit 47 is a true and correct copy of Argentina Banker Resists Ouster, WALL ST. J. (Jan. 7, 2010).
50. Attached to this Declaration as Exhibit 48 is a true and correct copy of Argentina ‘Kills’ Bank Independence, Moody’s Economy.com Says, BLOOMBERG (Jan. 6, 2010).
51. Attached to this Declaration as Exhibit 49 is an English translation of They Seek US$ 1.000 Billion from International Organizations to Contain the Dollar, EL CRONISTA (Mar. 25, 2009), with a true and correct copy of the original article in Spanish.
52. Attached to this Declaration as Exhibit 50 is an English translation of The Central Bank Will Take Actions Today to Halt the Rise of the Dollar, ÁMBITO FINANCIERO (Mar. 25, 2009), with a true and correct copy of the original article in Spanish.
53. Attached to this Declaration as Exhibit 51 is an English translation of Redrado Floods the Market with Future Dollars that will Mature at the Time of the Elections, EL CRONISTA (June 4,2009), with a true and correct copy of the original article in Spanish.
54. Attached to this Declaration as Exhibit 52 is an English translation of The Sale of Dollars by the Central Bank Now Amounts to 80% of All That Was "Sacrificed’’ in 2008, EL CRONISTA (June 17, 2009), with a true and correct copy of the original article in Spanish.
55. Attached to this Declaration as Exhibit 53 is an English translation of The Government Is Protecting Itself From Attachment, LA NACIÓN, (Feb. 5, 2004), with a true and correct copy of the original article in Spanish.
56. Attached to this Declaration as Exhibit 54 is a true and correct copy of the Declaration of Michael A. Pizzi dated April 24, 2009, submitted by NML Capital Ud. submitted by NML Capital Ud. in connection with docket number 05 Civ. 2434 (TPG).
* * *
I declare under penalty of perjury that the foregoing is true and correct.
Dated: New York, New York
January 11, 2010
Suzanne M. Grosso
PLAINTIFFS’ EX PARTE OMNIBUS MOTION
1. Plaintiff EM, Ltd. ("EM"), through its attorneys Debevoise & Plimpton LLP, and Plaintiff NML Capital, Ltd. ("NML"), hereby move this Court, ex parte, before the Honorable Thomas P. Griesa, at the United States Courthouse, 500 Pearl Street, Room 1630, New York, New York 10007, pursuant to Rules 4.1, 64 and 69 of the Federal Rules of Civil Procedure, Section 311 and Articles 52 and 62 of the New York Civil Practice Law and Rules, and 28 U.S.e. § l6l0(c), and upon (a) the Memorandum of Law in Support of Plaintiffs’ Ex Parte Motion for Orders of Attachment and Restraint, and Writs of Execution dated January 11, 2010, (b) the Declaration of Suzanne M. Grosso dated January 11, 2010 and attached exhibits, and( e) all pleadings, papers and evidence submitted in connection with the above-captioned actions, for entry of an omnibus order (the "Omnibus Order") as set forth below.
2. Ex parte disposition of this motion is necessary because, if Argentina or BCRA learned of Plaintiffs’ intent with respect to these assets, it is highly likely that Defendants immediately would take steps to remove the assets from New York and perhaps the United States.
3. This motion is being filed simultaneously with, and is ancillary to, Plaintiffs’ ex parte motion for attachment and restraint, and writs of execution, with respect to all property of the Republic of Argentina ("Argentina") nominally held by its alter ego, Banco Central de la República Argentina ("BCRA") (collectively, "Defendants") currently on deposit at any garnishee, including the Federal Reserve Bank of New York ("FRBNY"), located within this Court’s jurisdiction (the "BCRA Accounts") - except for $105 million held by BCRA since December 30, 2005 in a single account at the FRBNY and the subject of Plaintiffs’ separate, pending motion for attachment and restraining orders.
4. With respect to the requested attachment order, the Omnibus Order that Plaintiffs seek by this motion:
(a) Specially appoints NML’s attomeys, EM’s attomeys, and their respective employees, pursuant to Fed. R. Civ. P. 4.1, to serve the attachment immediately on any gamishee located within the jurisdiction of this Court, so as to effect a levy and maintain priority in relation to other creditors of Argentina while Plaintiffs’ application is pending;
(b) Provides that none of the subject property will be taken into actual custody by any enforcement officer pursuant to the attachment pending further order of this Court; and
(c) Extends the levy effected by service of the attachment until 30 days following final resolution of Plaintiffs’ application, including any related appeals, proceedings on remand, and any subsequent appeals.
5. With respect to the request writs of execution, the Omnibus Order that Plaintiffs seek by this motion:
(a) Permits NML’s attomeys, EM’s attomeys, and their respective employees to deliver the writs to the U.S. Marshals Service for the Southem District of New York ("U.S. Marshal") with instructions to serve immediately on any gamishee within the jurisdiction of this Court, so as to effect a levy and maintain priority in relation to other creditors of Argentina while Plaintiffs’ application is pending;
(b) Directs the U.S. Marshal to defer seizure of any of the subject property pending further order of this Court;
(c) Extends the levy effected by service of the writs as necessary until 30 days following final resolution of Plaintiffs’ application, including any related appeals, proceedings on remand, and any subsequent appeals; and
(d) Extends the time for the U.S. Marshal to complete service of the writs, including retum to the Clerk of the Court, for an additional 60 days.
6. Under the Federal Rules of Civil Procedure, a federal court employs the pre-judgment attachment and post-judgment execution procedures provided by the law of the state in which the court sits. See Fed. R. Civ. P. 64 (referring to state law for pre-judgment attachment procedures); Fed. R. Civ. P. 69 (referring to state law for post-judgment execution procedures). The New York Civil Practice Law and Rules therefore apply to Plaintiffs’ requested relief.
7. Under Rule 4.l(a) of the Federal Rules of Civil Procedure, which "trumps state law to the extent it determines who can levy" (Schneider v. Nat’l Railroad Passenger Corp., 72 F.3d 17, 20 (2d Cir. 1995) (emphasis in original)), process may be served by any person ­including the attorneys for a party - specially appointed for that purpose. "Process" under Rule 4.l(a) includes pre-judgment attachment orders. Id. (citing 28 U.S.C.A. Rule 4 Practice Commentaryat 108 (West 1992)). Such person is a separate enforcement officer, for purposes of CPLR § 5234(b), than the U.S. Marshal. See Declaration of Suzanne M. Grosso, dated January 11, 2010 ("Grosso Decl."), III 56 & Ex. 54 (Declaration of Michael A. Pizzi dated April 24, 2009). The Court has previously appointed Plaintiffs’ counsel to serve attachment orders, and thus levy on the subject property, on six prior occasions in connection with Plaintiffs’ efforts to satisfy their pending judgments against Argentina.
8. Plaintiffs seek to levy upon the BCRA Accounts in order to secure their priority rights vis-a-vis other Argentine bondholders. Such levies will be effected by service of their requested attachment orders and writs of execution, which expressly preclude any enforcement officer pending further order of this Court from taking into actual custody or otherwise seizing the BCRA Accounts. The levies effected by service of both attachment orders and writs of execution then will become void after 90 days unless extended by court order or through commencement of a turnover proceeding. See CPLR § 6214(e) (discussing levies and attachment orders); CPLR § 5232(a) (discussing levies and writs of execution). Plaintiffs’ priority rights to the BCRA Accounts derive from their levies on that property. See CPLR § 5234.[20] Accordingly, Plaintiffs request an order extending such levies until 30 days following final resolution of Plaintiffs’ application, including any related appeals, proceedings on remand, and any subsequent appeals. Such an order will not prejudice Argentina, BCRA or any gamishee in any meaningful way.
9. A writ of execution becomes void if not levied (i.e., served) within 60 days of issuance. See CPLR § 5230(c). Obtaining levies by service of the requested writs of execution is the only means by which Plaintiffs can obtain priority with respect to their existing judgments through this motion. Since Plaintiffs intend to ask the U.S. Marshal to serve writs of execution on over 40 gamishees, it may not be possible for the U.S. Marshal to effect service within 60 days after issuance. Por this reason, and as expressly permitted by CPLR § 5230(c), Plaintiffs request an order extending for an additional 60 days the time for the U.S. Marshal to complete service, including the filing of retums of service with the Clerk of the Court.
10. Plaintiffs additionally seek such other and further relief as the Court deems appropriate.
CERTIFICATE OF SERVICE
I, Suzanne M. Grosso, certify that on January 12, 2010, I caused copies of the foregoing: Ex Parte Motion For Orders Of Attachment And Restraint, And Issuance Of Writs Of Execution; Memorandum Of Law In Support Of Plaintiffs’ Ex Parte Motion For Orders Of Attachment And Restraint, And Issuance Of Writs Of Execution; Declaration of Suzanne M. Grosso in Support of Ex Parte Motion For Orders Of Attachment And Restraint, And Issuance Of Writs Of Execution; Attachment Order; Restraining Order; EM Writ of Execution; NML Writ of Execution; Ex Parte Omnibus Motion; and Omnibus Order, to be served by hand delivery upon the following counsel:
Joseph E. Neuhaus, Esq.
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
Consuel for Defendant Banco Central de la República Argentina
Carmine Boccuzzi, Esq.
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, NY 10006
Counsel for Defendant the Republic Argentina
Suzanne M. Grosso.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------- x
NML CAPITAL, LTD.,
Plaintiff,
v.
THE REPUBLIC OF ARGENTINA,
Defendant.
[21]
------------------------------------------------------x
WRIT OF EXECUTION
BY ORDER ON WRIT OF EXECUTION issued by the Court dated January 11, 2010, Final Judgment having been entered in the above-captioned action in the Southern District of New York on December 18, 2006 in favor of Plaintiff NML Capital, Ltd and against Defendant The Republic of Argentina, the U.S Marshals Service for the Southern District of New York (the “U.S Marshall”) is hereby directed to levy upon certain Property (as defined below), in satisfaction of the Final Judgment amount of $284,184,632, plus post-judgment interest from December 18, 2006 on any unpaid portion thereof at the rate(s) specified in 28 U.S.C § 1961 (which, as of January 11, 2010, had accrued in the amount $45,394,086.93, until the Final Judgment and post-judment interest are satisfied in full.
Upon infomation and belief, Defendant's last known address in that of its authorized service agent, Banco de la Nación Argentina, 299 Park Avenue, New York 10171, as appointed in the Fiscal Agency Agreement underlying the Final Judgment.[22]
“Property” refers to any property in the United States (whether real or personal, tangible or intangible presently existing or hereafter arising), which could be assigned or transferred as provided in N.Y C.P.L.R § 5201, including but not limited to cash, gold, special drawing rights, and interest of any kind in the foregoing (collectively, the “Property”), directly or indirectly held or maintained in the name of, in a trust held by, or for the use or benefit of BCRA, whether for its own account or for the benefit of Argentina, EXCLUDING; (a) property belonging to the embassy, consulate, or permanent mission to the United Nations of Argentina; and (b) any property that is, or is intended to be, used in connectivion with a military activity, and is of a military character or in under the control of a military or defense agency.
The U.S Marshal is further directed to defer seizure of any Property from any garnishee located within the jurisdiction of this Court until further of this Court.
Pursuant to N.Y C.P.L.R. § 5230 (c), the time for the U.S Marshal to serve this Writ of Execution on any garnishee located within the jurisdiction of this Court is extended until 30 days following final resolution of Plaintiff’s application with respect to this Writ of Execution, including any related appeals, proceedings on remand, and any subsequent appeals.
Persuant to N.Y C.P.L.R § 5205(l), $2,500.00 of an account containing direct deposit or electronic payments reasonably identifiable as statutorily exempt payments, as defined in paragraph two of subdivision to N.Y C.P.L.R. § 5205(l), is exempt from execution and that the garnishee cannot levy upon or restrain two thousand five hundred dollars in such an account. Pursuant to N.Y C.P.L.R. § 5222(i), an execution shall not apply to an amount equal to or less than 90% of the greater of 240 times the federal minimun hourly wage prescribed in the Fair Labor Standards Act of 1938 or 240 times the state minimun hourly wage prescribed in § 652 of the labor law as in effect at the time the earnings are payable, exce determines to be unnecessary for the reasonable requirements of the judg her dependents.
It is SO ORDERED on this 11 day of January 2010.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------- x
EM LTD.,
Plaintiff,
v.
THE REPUBLIC OF ARGENTINA,
Defendant.
[23]
----------------------------------------------------- x
WRIT OF EXECUTION
BY ORDER ON WRIT OF EXECUTION issued by the Court dated January 11, 2010, Final Judgment having been entered in the above-captioned action in the Southern District of New York on October 27, 2003 in favor of Plaintiff EML Ltd and against Defendant The Republic of Argentina, the U.S Marshals Service for the Southern District of New York (the “U.S Marshall”) is hereby directed to levy upon certain Property (as defined below), in satisfaction of the Final Judgment amount of $724,801,662, plus post-judgment interest from October 27, 2003 on any unpaid portion thereof at the rate(s) specified in 28 U.S.C § 1961 (which, as of January 11, 2010, had accrued in the amount $60,976,637.98, until the Final Judgment and post-judment interest are satisfied in full. Upon information and belief, Defendant’s last known address in that of its authorized service agent, Banco de la Nación Argentina, 299 Park Avenue, New York 10171, as appointed in the Fiscal Agency Agreement underlying the Final Judgment.[24]
“Property” refers to any property in the United States (whether real or personal, tangible or intangible presently existing or hereafter arising), which could be assigned or transferred as provided in N.Y C.P.L.R § 5201, including but not limited to cash, gold, special drawing rights, and interest of any kind in the foregoing (collectively, the “Property”), directly or indirectly held or maintained in the name of, in a trust held by, or for the use or benefit of BCRA, whether for its own account or for the benefit of Argentina, EXCLUDING; (a) property belonging to the embassy, consulate, or permanent mission to the United Nations of Argentina; and (b) any property that is, or is intended to be, used in connectivion with a military activity, and is of a military character or in under the control of a military or defense agency.
The U.S Marshal is further directed to defer seizure of any Property from any garnishee located within the jurisdiction of this Court until further of this Court.
Pursuant to N.Y C.P.L.R. § 5230 (c), the time for the U.S Marshal to serve this Writ of Execution on any garnishee located within the jurisdiction of this Court is extended until 30 days following final resolution of Plaintiff’s application with respect to this Writ of Execution, including any related appeals, proceedings on remand, and any subsequent appeals.
Persuant to N.Y C.P.L.R § 5205(l), $2,500.00 of an account containing direct deposit or electronic payments reasonably identifiable as statutorily exempt payments, as defined in paragraph two of subdivision to N.Y C.P.L.R. § 5205(l), is exempt from execution and that the garnishee cannot levy upon or restrain two thousand five hundred dollars in such an account. Pursuant to N.Y C.P.L.R. § 5222(i), an execution shall not apply to an amount equal to or less than 90% of the greater of 240 times the federal minimun hourly wage prescribed in the Fair Labor Standards Act of 1938 or 240 times the state minimun hourly wage prescribed in § 652 of the labor law as in effect at the time the earnings are payable, exce determines to be unnecessary for the reasonable requirements of the judg her dependents.
It is SO ORDERED on this 11 day of January 2010.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------- x
EM LTD and NML CAPITAL, LTD.,
Plaintiffs, v.
THE REPUBLIC OF ARGENTINA and BANCO CENTRAL DE LA REPÚBLICA ARGENTINA,
Defendants.
[25]
----------------------------------------------------- x
NML CAPITAL, LTD.,
Plaintiff,
v.
THE REPUBLIC OF ARGENTINA,
Defendant.
[26]
------------------------------------------------------x
ATTACHMENT ORDER
To:
ABN AMRO Bank NY
American Expres Bank Ltd.
Banco Bilbao Vizcaya Argentaria SA
Banco do Brasil SA
Banco Latinoamericano de Exportaciones SA
Banco Santander SA
Bonk of America NA
The Bank of New York Mellon
Barclay’s Bank PLC
BNP Paribas
Capital One NA
Capital One USA NA
Citibank NA
Commerzbank AF
Cooperatieve Centrale Raiffeisen-Boeren Leenbank BA Rabobank Nederland
Credit Industriel et Commercial
Credite Suisse
The Depository Trust Company
Deutsche Bank AG
Deutsche Bank Trust Co Americas
Doral Bank FSB
Dresdener Bank AG
Emigrant Bank
Federal Reserve Bank of New York
Fiduciary Trust Company International
First American International Bank
First Commercial Bank
Fortis Bank SA/NY
The Goldman Sachs Trust Company
HSBC Bank NA
JP Morgan Chase Bank NA
Lloyds TSB Bank plc
Merrill Lynch Bank & Trust Co FSB
Merrill Lynch Bank USA
Natixis
New York Life Trust Co.
Siciete Generale
Standard Chartered Bank
Sumitomo Mitsui Banking Corp.
The Sumimoto Trust and Banking Company Ltd.
TD Bank NS
Wachovia Bank NA
Plaintiffs EM Ltd. ("EM") and NML Capital, Ltd. ("NML"), having moved pursuant to Rule 64 of the Federal Rules of Civil Procedure and Article 62 of the New York Civil Practice Law and Rules for an arder of attachment directed to the assets of Defendants Banco Central de la República Argentina (the "BCRA") and the Republic of Argentina ("Argentina"), upon (a) the Memorandum of Law in Support of Plaintiffs’ Ex Parte Motion for Orders of Attachment and Restraint, and Writs of Execution dated January 11, 2010, (b) the Declaration of Suzanne M. Grosso dated January 11, 2010 and attached exhibits, and(e) all pleadings, papers and evidence submitted in connection with the above-captioned actions; from which it appears that EM and NML have met the criteria for prejudgment attachment in that:
1. EM was awarded a final judgment against Argentina on October 27, 2003, in the amount of $724,80 1,662, which, as of J anuary 11, 2010, has accrued postjudgment interest in the amount of $60,976,637.98.
2. NML was awarded five final judgments against Argentina, namely:
• On December 18, 2006 in No. 03 Civ. 8845, in the amount of $284,184,632, which, as of January 11, 2010, has accrued post judgment interest in the amount of $45,394,086.93;
• On May 29, 2009, as arnendcd on ./une 15, 2009, in No. 05 Civ. 2434, in the amount of $283,131,302, which, as of January 11, 2010, has accrued post judgment interest in the amount of $827,596.67;
• On May 29, 2009, as amended on June 15, 2009, in No. 06 Civ. 6466, in the amount of $533,378,361, which, as of January 11, 2010, has accrued postjudgment interest in the amount of $1,559,072.26;
• On May 29, 2009, as amended on June 15, 2009, in No. 07 Civ. 2690, in the amount of $148,781,936, which, as of January 11, 2010, has accrued post judgment interest in the amount al’ $434,891.64; and
• On May 29,2009, as amended on June 15,2009, in No. 08 Civ. 3302, in the amount of $290,270,631, which, as of January 11,2010, has accrued postjudgment interest in the amount of $848,465.03.
3. The sum of EM’s final judgment and NML’s five final judgments (collectively, the "Final Judgments"), plus accrued post judgment interest, is $2,374,589,275.
4. There exist six valid causes of action pending before this Court for money judgments in favor of NML and against Argentina for the sum of $739,455,127, as a result of Argentina’s default on certain Argentine bonds in 2001 (the "Pending NML Actions"), namely:
• NML Capital, Ltd. v. Republic of Argentina, No. 07 Civ. 1910, in which surnrnary judgment was granted to NML on April 10, 2008 for $71,598,000 in principal, and final judgment (including calculation of prejudgment interest) is pending, and in which NML calculates that $90,969,710 in prejudgrnent interest as of November 17, 2009 is owed;
• NML Capital, Ltd. v. Republic of Argentina, No. 07 Civ. 6563, in which summary judgment was granted to NML on April 10, 2008 for $300,000 in principal, and final judgrnent (including calculation of prejudgment interest) is pending, and in which NML calculates that $403,432 in prejudgment interest as of November 17, 2009 is owed;
• NML Capital, Ltd. v. Republic of Argentina, No. 08 Civ. 2541, in which summary judgment was granted to NML on March 4, 2009 $16,719,628 in principal, plus prejudgment interest (which NML calculates is $21,610,304 as of Novernber 17,2009), is c1aimed;
• NML Capital, Ltd. v. Republic of Argentina, No. 08 Civ. 6978, in which the complaint was filed on September 5, 2008, and $81,080,000 in principal, plus prejudgrnent interest (which NML calculates is $103,166,343 as of Novernber 17,2009), is claimed;
• NML Capital, Ltd. v. Republic of Argentina, 09 Civ. 1707 (TPG), in which the complaint was filed on August 5, 2008, and $30,000 in principal, plus prejudgment interest (which NML calculates is $284,097 as of November 17, 2009), is claimed; and
• NML Capital, Ltd. v. Republic of Argentina, 09 Civ. 1708 (TPG), in which the cornplaint was filed on August 5, 2008, and $156,570,549 in principal, plus prejudgment interest (which NML calculates is $196,723,064 as ofNovember 17,2009), is claimed.
5. It is probable that NML will succeed on the merits of its clairns to recover at least $739,455,127, which is the sum of (a) the principal amounts claimed in the Pending NML Actions, and (b) the amount of prejudgment interest that NML calculates is owed as of November 17, 2009 in those Actions.
6. There exists a separate valid cause of action against Defendants to have SCRA declared an alter ego of Argentina (the "Pending Alter-Ego Action"), which would render BCRA jointly and severally liable for the Final Judgments and the judgments expected to be awarded in the Pending NML Actions.
7. It is probable that Plaintiffs will succeed on the merits of the Pending Alter-Ego Action.
8. There are sufficient grounds for an order of attachment pursuant to N. Y. C.P.L.R. §§ 6201(2) & (3) in that: (a) Argentina is a foreign state neither resident in nor qualified to do business in the State of New York, and has repeatedly demonstrated its willingness to remove its assets frorn the jurisdiction ofthis Court to evade its judgment creditors; and (b) SCRA is an alter ego of Argentina, which has demonstrated its willingness to remove its assets frorn the jurisdiction of this Court to evade Argentina’s judgment creditors.
9. Defendants have no counterclaims for damages against Plaintiffs.
10. Argentina has both waived and pledged not to assert any immunity frorn prejudgment attachment to which it, its assets, or the assets ofBCRA as its alter ego, might have been entit1ed in connection with the Pending NML Actions or Pending Alter-Ego Action, and further, the property to which this order of attachment is directed is in the United States and used for cornmercia1 activity in the United States.
NOW, on the motion of Debevoise & Plimpton LLP, attorncys for EM, and Dechert LLP, attorneys for NML, and based upon the undertaking already posted as required by law, referred to below, IT IS HEREBY:
ORDERED
that Plaintiffs’ motion for an order of attachment is granted in its entirety, effective, unless earlier vacated, through the entry of an execution or order pursuant to 28 U.S.C. § 1610(c) following entry of a judgment for the Plaintiffs in thc Pending Alter-Ego Action; and that the amount to be secured by this Order is $3,114,044,402;
FURTHER ORDERED that the U.S. Marshals Service for the Southern District of New York or any person appointed to act in his place and stead, or NML’s attorneys, EM’s attorneys, and their respective employees as specially appointed pursuant to Fed. R. Civ. P. 4.1, levy upon, but refrain from taking into actual custody pending further order of this Court, the following property within this jurisdictíon at any time before final judgment in all of the above-captioned actions, such as will satisfy the above-rnentioned sum of $3, 114,044,402:
Any property in the United States (whether real or personal, tangible or intangible presently existing or hereafter arising), which could be assigned or transferred as provided in N.Y. C.P.L.R. § 5201, inc1uding but not limited to cash, gold, special drawing rights, deposits, real property, instruments, securities, security entitlements, security accounts, equity interests, claims and contractual rights, and interests of any kind in the foregoing (collectively, the "Property"), directly or indirectly held or maintained in the name of, in a trust held by, or for the use or benefit of BCRA, whether for its own account or for the benefit of Argentina, EXCLUDING: (a) property belonging to the embassy, consulate, or permanent mission to the United Nations of Argentina; and (b) any property that is, or is intended to be, used in connection with a military activity, and is of a military character or is under the control of a military or defense agency.
FURTHER ORDERED that the attachment bond of $250,000 previously posted by EM and NML shall satisfy the bonding requirements for this Attachment Order, of which the total amount is on condition that EM and NML pay Defendants’ costs and damages, including reasonable attorneys’ fees, that may be sustained by reason of this Attachment Order if it is decided that EM and NML is not entitled to an attachment of the property described aboye and are ordered to eompensate Defendants;
FURTHER ORDERED that the garnishee statement required by CPLR § 6219 shall be served vía email and first class email, within 10 days of service on you with this Attachment Order, upon Bethany Davis Noll, Esq., Debevoise & Plimpton LLP, 919 Third Avenue, New York, New York, 10022, bdavisnoll@debevoise.com;
FURTHER ORDERED that Plaintiffs shall: (a) move within 10 days after the levy hereunder, or upon such other date as the Court may set, for an order confirming this Attachment Order; (b) give notice of the motion to BCRA, by serving its counsel, Joseph E. Neuhaus, Esq. of Sullivan & Cromwell LLP, 125 Broad Street, New York, New York, 10004, via hand delivery; (e) give notice of the motion to Argentina, by serving its counsel, Carmine D. Boccuzzi, Jr., Esq. of Cleary Gottlieb Steen & Hamilton LLP, One Liberty Plaza, New York, New York, 10006, via hand delivery; and (d) give notice of the motion, via hand delivery or certified mail, retum receipt requested, to any garnishee(s) that have submitted a statement pursuant to CPLR § 6219 disclosing that they are or may be in possession of property or debts subject to this Order. If no such motion is made, this Attachment Order and any levy hereunder shall have no further effeet and shall be vaeated on motion;
FURTHER ORDERED that you, your agents, subdivisions, servants, officers, employees, and attorneys, and all persons in possession of the property and/or debts described aboye, and all persons acting in concert or participation with the foregoing, and a11 persons receiving actual notice of this Attachment Order by personal service or otherwise, are hereby ENJOINED AND RESTRAINED until further Order from this Court from directly or indirectly transferring, or ordering, directing, or requesting or assisting in the transfer, or in any other way affecting the value of, any such property or debt;
FURTHER ORDERED that pursuant to N.Y. C.P.L.R. § 6214, the levy effected pursuant to service of this Attachment Order on any garnishee located within the jurisdiction of this Court is extended until 30 days following final resolution of Plaintiff’s application with respect to this Attachment Order, including any related appeals, proceedings on remand, and any subsequent appeals.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------x
EM LTD.,
Plaintiff,
v.
THE REPUBLIC or ARGENTINA,
Defendant.
[27]
----------------------------------------------------- x
NML CAPITAL, LTD.,
Plaintiff,
v.
THE REPUBLIC üF ARGENTINA,
Defendant.
[28]
------------------------------------------------------x
RESTRAINING ORDER
To:
ABN AMRO Bank NV American Express Bank Ltd,
Banco Bilbao Vizcaya Argentaria S.A. Banco do Brasil SA
Banco Latinoamericano de Exportaciones SA Banco Santander SA
Bank of America NA
The Bank of New York Mellon Barclay' s Bank PLC
BNP Paribas
Capital One NA
Capital One USA NA CitibankNA
Commerzbank AG
Cooperatieve Centrale Raiffeisen-Boeren Leenbank BA Rabobank Nederland Credit Industriel et Commercial
Credit Suisse
The Depository Trust Company Deutsche Bank AG
Deutsche Bank Trust Co Americas Doral Bank FSB
Dresdener Bank AG
Emigrant Bank
Federal Reserve Bank of New York Fiduciary Trust Company International First American International Bank First Commercial Bank
Fortis Bank SAlNV
The Goldman Sachs Trust Company HSBCBankNA
JP Morgan Chase Bank NA Lloyds TSB Bank pie
Merrill Lynch Bank & Trust Co FSB Merrill Lynch Bank USA
Natixis
New York Life Trust Co.
Societe Generale
Standard Chartered Bank Sumitomo Mitsui Banking Corp.
The Sumitomo Trust and Banking Company Ltd. TD Bank NA
Wachovia Bank NA
Plaintiffs EM Ltd. ("EM") and NML Capital, Ltd. ("NML," together with EM, "Plaintiffs"), having moved pursuant to Rule 69 of the Federal Rules of Civil Procedure, Section 5222 of the New York Civil Practice Law and Rules, and 28 U.S.c. § 1610 for a restraining notice (requested here in the form of an order in accord with 28 U.S.C. § 1610(c)) directed to assets of Defendant the Republic of Argentina ("Argentina") nominally held by Argentina's alter ego, Banco Central de la República Argentina (the "BCRA")), both parties under the jurisdiction ofthis Court, upon: (a) the Memorandum of Law in Support ofPlaintiffs' Ex Parte Motion for Orders of Attachment and Restraint, and Writs ofExecution dated January 11,2010, (b) the Declaration of Suzanne M. Grosso dated January 11, 2010 and attached exhibits, and(e) all pleadings, papers and evidence submitted in connection with the above-captioned actions; from which it appears that Plaintiffs have met the criteria for the issuance of a restraining order in that: EM was awarded a final judgment against Argentina on October 27, 2003 in the amount of $724,801,662, which, as of January 11, 2010, has accrued as post judgmcnt interest in the amount of $60,976,637.98; and NML was awarded the following final judgments against Argentina:
• On December 18, 2006 in No. 03 Civ. 8845, in the amount of $284,184,632, which, as of January 11, 2010, has accrued post judgment interest in the amount of $45,394,086.93;
• On May 29, 2009, as amended on June 15, 2009, in No. 05 Civ. 2434, in the amount of $283,131,302, which, as of January 11,2010, has accrued post judgment interest in the amount of $827,596.67;
• On May 29, 2009, as amended on June 15, 2009, in No. 06 Civ. 6466, in the amount of$533,378,361, which, as of January 11,2010, has accrued post judgment interest in the amount of $1 ,559,072.26;
• On May 29,2009, as amended on June 15,2009, in No. 07 Civ. 2690, in the amount of $148,781,936, which, as of January 11, 2010, has accrued post judgment interest in the amount of $434,891.64; and
• On May 29,2009, as amended on June 15,2009, in No. 08 Civ. 3302, in the amount of $290,270,631, which, as of January 11, 2010, has accrued postjudgment interest in the amount of $848,465.03., and there exists a separate valid cause of action against Argentina and BCRA to have BCRA declared an alter ego of Argentina, which would render BCRA jointIy and severaIly liable for Plaintiffs' final judgments;
NOW, on the motion of Debevoise & Plimpton LLP, attorneys for EM, and Dechert LLP, attorneys for NML, IT IS HEREBY:
ORDERED
that Plaintiffs' motion for a restraining arder is granted in its entirety and that the amount to be secured by this Restraining Order shall be $2,374,589,275, comprised ofthe amount of Plaintiffs' final judgments plus accrued post judgment interest;
As required by N.Y. C.P.L.R. § 5222, IT IS FURTHER STATED that:
1. The Parties to the above-captioned actions are EM, NML and Argentina.
2. The date of EM's final judgment against Argentina was October 27,2003, and the dates of NML's judgments against Argentina were Decernber 18, 2006 in No. 03 Civ. 8845 and May 29, 2009 (as arnended June 15, 2009) in Nos. 05 Civ. 2434,06 Civ. 6466, 07 Civ. 2690, and 08 Civ. 3302.
3. The judgments were entered in the U.S. District Court for the Southem District ofNew York.
4. The amount of EM's judgment against Argentina was $724,801,662. The amounts of NML's judgments against Argentina were $284,184.632, $283,131,302, $533,378,361, $148,781,936, and $290,270,631.
5. Argentina has not paid any amount on these judgments, and since entry on the judgments, they have, respectively, accrued post judgment interest as of January 11, 2010 in the amounts of $60,976,637.98 (EM) and $45,394,086.93, $827,596.67, $1,559,072.26, $434,891.64, and $848,465.03 (NML), and therefore the full amount of Plaintiffs' judgments plus interest, or $2,374,589,275, is owed by Argentina to Plaintiffs.
6. The judgments were entered in favor of EM and NML. The judgments were ordered against Argentina.
7. A judgment debtor or obligor served with a restraining notice is forbidden to make or suffer any sale, assignment, transfer or interference with any property in which he or she has an interest, except as set forth in subdivisions (h) and (i) of N.Y. c.P.L.R. § 5222, and except upon direction of the sheriff or pursuant to an order of the court, until the judgment or order is satisfied or vacated. A restraining notice served upon a person other than the judgment debtor or obligor is effective only if, at the time of service, he or she owes a debt to the judgment debtor or obligor or he or she is in the possession or custody of property in which he or she knows or has reason to believe the judgment debtor or obligor has an interest, or if the judgment credítor or support collection unit has stated in the notice that a specified debt is owed by the person served to the judgment debtor or obligor or that the judgment debtor or obligor has an interest in specified property in the possession or custody of the person served. AH property in which the judgment debtor or obligor is known or believed to have an interest then in and thereafter coming into the possession or custody of such a person, incIuding any specified in the notice, and all debts of such a person, incIuding any specified in the notice, then due and thereafter coming due to the judgment debtor or obligor, shaIl be subject to the notice except as set forth in subdivisions (h) and (i) ofN.Y. C.P.L.R. § 5222. Such a person is forbidden to make or suffer any sale, assignment or transfer of, or any interference with, any such property, or pay over or otherwise dispose of any such debt, to any person other than the sheriff or the support collection unit, except as set forth in subdivisions (h) and (i) of N.Y. C.P.L.R. § 5222, and except upon direction of the sheriff or pursuant to an order of the court, until the expiration of one year after the notice is served upon him or her, or until the judgment or order is satisfied or vacated, whichever event first occurs. A judgment creditor or support collection unit which has specified personal property or debt in a restraining notice shall be liable to the owner of the property or the person to whom the debt is owed, if other than the judgment debtor or obligor, for any damages sustained by reason of the restraint. If a garnishee served with a restraining notice withholds the payment of money belonging or owed to the judgment debtor or obligor in an amount equal to twice the amount due on the judgment or order, the restraining notice is not effective as to other property or money.
8. Disobedience of this restraining notice is punishable as a contempt of court;
IT IS FURTHER ORDERED that you, your agents, subdivisions, servants, officers, employees, and attomeys, and all persons in possession of property in which Argentina or BCRA have an interest, and all persons acting in concert or participation with the foregoing, and all persons receiving actual notice of this Restraining Order by personal service or otherwise, are hereby ENJOINED AND RESTRAINED until further Order from this Court from directly or indirectly transferring, or ordering, directing, or requesting the transfer of any property on deposit with them or held under their control, such as will satisfy the above-mentioned sum of $2,374,589,275, consisting of:
Any property in the United States (whether real or personal, tangible or intangible presently existing or hereafter arising), which could be assigned or transferred as provided in N.Y. C.P.L.R. § 5201, including but not limited to cash, gold, special drawing rights, deposits, real property, instruments, securities, security entitlements, security accounts, equity interests, claims and contractual rights, and interests of any kind in the foregoing (collectively, the "Property"), directly or indirectly held or maintained in the name of, in a trust held by, or for the use or benefit of BCRA, whether for its own account or for the benefit of Argentina, EXCLUDING: (a) property belonging to the embassy, consulate, or permanent mission to the United Nations of Argentina; and (b) any property that is, or is intended to be, used in connection with a military activity, and is of a military character or is under the control of a military or defense agency.
FURTHER ORDERED that the two bonds of $100,000 each ($200,000 total) previously posted by EM, and the bond of $250,000 previously posted by NML, shall satisfy the bonding requirements for this Restraining Order, of which the total amount is on condition that Plaintiffs pay Defendants' costs and damages, incIuding reasonable attomeys' fees, that may be sustained by reason of this Restraining Order if it is decided that Plaintiffs are not entitIed to restrain the property described aboye and are ordered to compensate Defendants.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------- x
EM LTD and NML CAPITAL, LTD.,
Plaintiffs, v.
THE REPUBLIC OF ARGENTINA and BANCO CENTRAL DE LA REPÚBLICA ARGENTINA,
Defendants.
[29]
------------------------------------------------------x
EM LTD.,
Plaintiff,
v.
THE REPUBLIC OF ARGENTINA,
Defendant.
[30]
----------------------------------------------------- x
NML CAPITAL, LTD.,
Plaintiff,
v.
THE REPUBLIC OF ARGENTINA,
Defendant.
[31]
------------------------------------------------------x
OMNIBUS ORDER
UPON THE FILING AND REVIEW OF (a) Plaintiffs' Ex Parte Omnibus Motion dated January 11, 2010, (b) the Memorandum ofLaw in Support of Plaintiffs' Ex Parte Motion for arder s of Attaclunent and Restraint, and Writs of Execution dated January 11, 2010, (e) the Declaration of Suzanne M. Grosso dated January 11,2010 and attached exhibits, and(d) all pleadings, papers and evidence submitted in connection with the above-captioned actions;
SUFFICIENT CAUSE BEING ALLEGED THEREFORE, IT IS HEREBY:
ORDERED
that NML's attorneys, EM's attorncys, and thcir respective employees are hereby specially appointed pursuant to Federal Rule 01' Civil Procedure ("Fed. R. Civ. P.") 4.1, to serve on any garnishee located within the jurisdiction of this Court, an Attachment Order issued on this date pursuant to Fed. R. Civ. P. 64 & 69, §§ 6201, 6202 & 6211 of the New York Civil Practice Law and Rules ("CPLR"), and the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1601 et seq., thcreby levying upon each such garnishee pursuant to CPLR § 6214( a) so as to maintain priority pursuant to CPLR § 5234 in relation to other creditors of Argentina while Plaintiffs' application is pending;
FURTHER ORDERED that the Attachment Order shaIl specify in accordance with CPLR § 6202 that it applies to any property in the United States (whether real or personal, tangible or intangible presently existing or hereafter arising), which could be assigned or transferred as provided in N. Y. C.P.L.R. § 5201, including but not limited to cash, gold, special drawing rights, deposits, real property, instruments, securities, security entitlements, security accounts, equity interests, claims and contractual rights, and interests of any kind in the foregoing (colIectively, the "Property"), directly or indirectly held or maintained in the name of, in a trust held by, or for the use or benefit of BCRA, whether for its own account or for the benefit of Argentina, EXCLUDING: (a) property belonging to the embassy, consulate, or permanent mission to the United Nations 01' Argentina; and (b) any property that is, or is intended to be, used in connection with a military activity, and is of a military character or is under the control of a military or defense agency.
FURTHER ORDERED that no Property shall be taken into actual custody by any enforcement officer pursuant to the Attachment Order pending further order of this Court;
FURTHER ORDERED that pursuant to CPLR § 6214(e), the levy effectcd pursuant to service of the Attachment Order on each garnishee is extended until 30 days following final resolution of Plaintiffs' application, including any related appeals, proceedings on remand, and any subsequent appeals;
FURTHER ORDERED that pursuant to Fed. R. Civ. P. 64 & 69, CPLR § 5230, and 28 U.S.C. § 161O(c), NML's attomeys, EM's attomeys, and their respective employees are authorized to deliver to the U.S. Marshals Service for the Southem District of New York (the "U.S. Marshal") writs of execution issued on this date and directed to the Propertv, which are to be levied by service immediately pursuant to CPLR § 5232 upon any located garnishee within the jurisdiction of this Court, so as to maintain priority pursuant to CPLR § 5234 in relation to other creditors of Argentina while Plaintiffs' application is pending;
FURTHER ORDERED that the U.S. Marshal is directed to defer seizure of any Property from any gamishee located within the jurisdiction of this Court pending further order of this Court;
FURTHER ORDERED that pursuant to CPLR § 5232(a), the levies effected pursuant to service of the writs of execution on any gamishee located within the jurisdiction of this Court are extended until 30 days following final resolution of Plaintiffs' application, ineluding any related appeals, proceedings on remand, and any subsequent appeals;
FURTHER ORDERED that pursuant to CPLR § 5230(c), the time for the U.S. Marshal to serve the writs of exeeution and to retum said executions to the Clerk of the Court is extended an additional 60 days;
FURTHER ORDERED that NML's attomeys, EM's attorneys, and their respective employees shall effeet personal service of this Ornnibus Order and the papers upon which it is based, upon counsel for Argentina - Cleary, Gottlieb Stcen & Hamilton, One Liberty Plaza, New York, New York 10006, attention Carmine Boccuzzi, Esq., and BCRA - Sullivan & Cromwell LLP, 125 Broad Street, New York, New York, 10004, attention Joseph E. Neuhaus, Esq. (or such other counsel as BCRA may designate); and
FURTHER ORDERED that opposing papers, if any, are to be served upon counsel for EM, Debevoise & Plimpton LLP, 919 Third Avenue, New York, New York 10022, attention Suzanne M. Grosso, Esq., and upon counsel for NML, Dechert LLP, 1095 Avenue of the Americas, New York, New York 10036, attention Dennis H. Hranitzkv. Esq
Dated: New York, New York
January 11, 2010
[1] 06 Civ. 7792 (TPG)
[2] 03 Civ. 2507 (TPG)
[3] 03 Civ. 8845 (TPG); 05 Civ. 2434 (TPG); 06 Civ. 6466 (TPG); 07 Civ. 1910 (TPG); 07 Civ. 2690 (TPG); 07 Civ. 6563 (TPG); 08 Civ. 2541 (TPG); 08 Civ. 3302 (TPG); 08 Civ. 6978 (TPG); 09 Civ. 1707 (TPG); 09 Civ. 1708 (TPG)
[4] Ex parte disposition of this motion is necessary because, if Argentina or the Central Bank learned of Plaintiffs’ intent with respect to these assets, it is highly likely that Defendants irnmediately would take steps to remove the assets from New York, and perhaps the United States, more expeditiously than already intended.
[5] EM and NML respectively respectfully refer to the Declaration of Dennis H. Hranitzky dated September 25, 2006 [Case No. 06 Civ. 7792, Docket No. 10] and the Declaration of Robert A. Cohen dated September 25, 2006 [Case No. 06 Civ. 7792, Docket No. 8] for the detailed facts underlying their claims and judgments against Argentina.
[6] A copy of the FRBNY Garnishee Statement dated January 9, 2006 is attached as Grosso Decl. Ex. 3.
[7] A copy of the Stipulation and Consent Order dated January 9, 2006 is attached as Grosso Decl. Ex. 4. A copy of the transcript for the January 6, 2006 hearing that preceded the January 2006 order is attached as Grosso Decl. Ex. 5.
[8] A copy of the Stipulation and Consent Order dated September 28, 2006 is attached as Grosso Decl. Ex. 6.
[9] For purposes of the First Alter-Ego Motion, Plaintiffs bear the burden of establishing that the Central was an alter ego of Argentina as of December 30, 2005-the date the $105 million was initially attached and restrained in the IMF Motion. See Grosso Decl. Ex. 8 (Hearing Transcript (May 6, 2008) at 11: 12-18.
[10] The Court conducted a telephonic conference on September 17, 2009 and requested certain additional information relating to the parties’ briefing on the commercial activity issue. BCRA and Argentina responded by letter dated September 24, and Plaintiffs responded by letter dated September 30. In a Memorandum dated October 6, 2009, the Court advised the parties that no further briefing was required. In a subsequent Memorandum dated October 16, 2009, the Court advised that it was laying aside the parties’ additional respective letters dated October 9 and 14 and would advise when or if any additional information was necessary. [See Grosso Decl. Ex. 11 (Memorandum of October 6, 2009, No. 06 Civ. 7792); Grosso Decl. Ex. 12 (Memorandum of October 16,2009, No. 06 Civ. 7792).]
[11] See Grosso Decl. Ex. 25 (Argentine Opposition Fights Kirchner’s Debt Plan, WALL STo J. (Dec. 30, 2009) (explaining that a group of opposition lawmakers asked an Argentine federal court for a stay and a declaration that the authorizing decree is an unconstitutional exercise of power absent legislative approval)); Grosso Decl Ex. 26 (The Court Awaits an Answer, CLARÍN (Jan. 6, 2010) (explaining that upon a motion brought by San Luis Province challenging the decree authorizing the fund, the Argentine Supreme Court has ordered the administration to explain "the background and bases" for the decree))
[12] Plaintiffs continue to maintain, and hereby preserve the argument, that under New York law governing attachments-which this Court must apply under Federal Rules of Civil Procedure 64 and 69-they need only make a prima facie showing of their entitlement to relief. See lSC Foreign Eeon. Ass’n Teehnostroyexport v. Int’l Dev. & Trade Servs., Inc. , 306 F. Supp. 2d 482, 488 (S.D.N.Y. 2004) (granting attachment under New York law upon preliminary showing of alter-ego status); Triton Container Int’l Ltd. v. MIS Itaite, No. 90 Civ. 7725, 1991 WL 255613 at *4 (S.D.N.Y. Feb. 25, 1991) (granting attachment where "a prima facie case has been made"); 11-5222 Weinstein, Korn & Miller, New York Civil Practice: CPLR P 5222.05 n.2 (standard for issuance of restraining order is a "prima facie showing of a right to relief’)
[13] While the Supreme Court, in Bancee, affirmed district court ruling on the "fraud or injustice" prong, 462 US. at 632, the Court extensively addressed the alter ego prong. Although the Court in Baneee eschewed any "mechanical test" for determining when such an alter-ego relationship exists, Baneee and its progeny have identified a number of factors that may be relevant to the analysis. See Walter Fuller Aireraft Sales Ine. v. Republie of Philippines, 965 F.2d 1375, 1380-83 (5th Cir. 1992) (factors include government’s control over entity’s day­to-day activities; level of economic control exerted by government; and benefits enjoyed by government from control over alter ego); United States Fidelity & Guaranty Co. v. Braspetro ou Servs. Co., 1999 WL 307666 (S.D.N.Y. May 17, 1999) (addressing day-to-day control), aff’d, 199 F.3d 94 (2d Cir. 1999); Passalaequa Builders, Ine. v. Resniek, 933 F.2d 131 (2d Cir. 1991) (addressing benefit factor); see also Compagnie Noga d’Importation et d’Exportation S.A. v. Russian Federation, 361 F.3d 676, 696 (2d Cir. 2004) (Jacobs, J., concurring) (affirming that debt incurred by provincial government could be enforced against national government subject to FSIA limitations, adding "the President’ s power to fire [provincial] ministers at will and call for the [provincial government’s] resignation is a veto de faeto, i.e., the [provincial government] is not going to do anything the President opposes"); MeKesson v. Islamie Republie of Ira n , 52 F.3d 346 (D.C. Cir. 1995) (finding alter ego where Iran, inter alía, forced a state company to disregard its cornmercial mission)
[14] The mere creation of the Bicentennial Fund and the firing of Redrado by "emergency" Executive Decree confirms that the Executive Branch continues to believe the Central Bank’s reserves are a public piggy bank over which the Central Bank has little control. Thus, even a successful challenge to the Fund ancllor Redrado’s permanent reinstatement would not affect the Central Bank’ s alter-ego status today---especially in light of the voluminous other evidence of the Central Bank’ s current complete domination by the Executive Branch.
[15] In Plaintiffs’ pending motion with respect to the frozen $105 million, this Court ordered further briefing on Argentina’s actions taken to evade creditors. See Grosso Decl. Ex. 13 (Case No. 03 Civ. 2507 (TPG), Hearing Transcript (Jan. 8,2010) at 5-7,11).
[16] Argentina and the Central Bank have adopted a classic smoke and mirrors defense in arguing that the $105 million at issue in the First Alter-Ego Motion is irnmune from execution under § 1611 (b) of the FSIA-and Plaintiffs anticipate that the same defense will be asserted with respect to this motion. Simply put, the Central Bank is not entitled to the protection afforded independent central banks under § 1611(b) because the Central Bank is an alter ego of Argentina. Thus, even if the Central Bank had used or is using accounts located in New York for central banking activity (which Plaintiffs dispute in any event) does not change the fact that such activity is cornmercial activity for purposes of § 1610(a)(2). Section 1611(b) extends irnmunity "notwithstanding the provisions of section 1610" to a central bank’s assets "held ... for its own account." The "notwithstanding’’ clause would be sheer surplusage if § 1611 (b) did not presume that certain central banking acti vities also constitute commercial activities. See EM Ltd., 473 F.3d at 485 ("Section 1611(b)(l) provides a central bank with special protections from a judgment creditor who would otherwise be entitled to attach the central bank’s funds under 28 U.S.S. § 1610.") (emphasis added); Weston Compagnie de Fin. Et D’Investissement, S.A., 823 F. Supp. 1106, 1112 (S.D.N.Y. 1993) ("[T]he structure of the FSIA makes clear [that] property of a central bank heldfor its own account is a category of property used for commercial activity.") (emphasis added); R.R. 3493, 93rd Congo (lst Sess. January 31, 1973) at 25 ("The purpose of section 1611(b) is to prevent in all circumstances attachment of or levy of execution upon these two categories of property of foreign states, even if these relate to the commercial activities of a foreign state and would otherwise come within the scope of section 1610.") (emphasis added). See Plaintiffs’ Reply Mem. Of Law Regarding the Use of the FRBNY Account in Support of Their September 28, 2006 Motion for Orders of Restraint and Pre-Judgment Attachment, dated June 19,2009, and letter to the Court dated August 6, 2009.
[17] Although Weltover dealt with the "commercial activity" exception to jurisdiction under 28 U.S.C. § 1605, as opposed to attachment and execution under 28 U.S.C. § 1610, its discussion of the definition of "commercial activity" applies equally to both sections, as they are both governed by the definition of "commercial activity" in Section 1603. In fact, Congress made clear in the legislative history of Section 1610 that "commercial activity" under Section 1610(a)(2) "include[s] ... commercial activities encompassed by section 1605(a)(2)." R.R. Rep. No. 94-1487, at 28, reprinted in 1976 U.S.C.C.A.N. 6604,6627,
[18] Compare EM Ltd., 473 F.3d at 484 (holding that Argentina’s potential use of the First FRBNY Account to repay IMF was not commercial activity because IMF loans "are not available in the commercial market").
[19] See Plaintiffs’ Mem. of Law Regarding the Use of the FRBNY Account in Support of Their September 28, 2006 Motion for Orders of Restraint and Pre-Judgment Attachment, dated March 30, 2009, filed under seal April 1,2009 [Case No. 06 Civ. 7792, Docket No. 45)], and Plaintiffs’ associated reply brief, dated and filed under seal June 19, 2009 [Case No. 06 Civ. 7792, Docket No. 53)]. The Court might consider granting the attachment and ordering discovery regarding the current use of the BCRA Accounts similar to the discovery it previously ordered in connection with the frozen $105 million in the First FRBNY Account. See First City, Texas-Houston, N.A. v. Rafidain Bank, 150 F.3d 172, 177 (2d Cir. 1998) (holding that plaintiff’s judgment against a govemment instrumentality found to fall into commercial activity exception warrants further discovery).
[20] By contrast, service of Plaintiffs requested restraining order does not effect a levy or extend any priority rights. See Aspen Indus., Ine. v. Marine Midland Bank, 421 N.E. 2d 808, 810-11 (N.Y. 1981); Weinstein-Kom-Miller, 11 New York Civil Practice: CPLR P 5222.21
[21] 03 Civ. 8845 (TPG).
[22] The Fiscal Agency Agrement identifies the former address of Banco de la Nación Argentina, 299 Park Avenue, New York, New York 10171.
[23] 03 Civ. 2507 (TPG)
[24] The Fiscal Agency Agrement identifies the former address of Banco de la Nación Argentina, 299 Park Avenue, New York, New York 10171.
[25] 06 Civ. 7792 (TPG)
[26] 07 Civ. 1910 (TPG); 07 Civ. 6563 (TPG); 08 Civ. 2541 (TPG); 08 Civ. 6978 (TPG); 09 Civ. 1707 (TPG); 09 Civ. 1708 (TPG)
[27] 03 Civ. 2507 (TPG)
[28] 03 Civ. 8845 (TPG) 05 Civ. 2434 (TPG) 06 Civ. 6466 (TPG) 07 Civ. 2690 (TPG) 08 Civ. 3302 (TPG)
[29] 06 Civ. 7792 (TPG)
[30] 03 Civ. 2507 (TPG)
[31] 03 Civ. 8845 (TPG); 05 Civ. 2434 (TPG); 06 Civ. 6466 (TPG); 07 Civ. 1910 (TPG); 07 Civ. 2690 (TPG); 07 Civ. 6563 (TPG); 08 Civ. 2541 (TPG); 08 Civ. 3302 (TPG); 08 Civ. 6978 (TPG); 09 Civ. 1707 (TPG); 09 Civ. 1708 (TPG)

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