Argentina Seeks Supreme Court Review in NML v. Argentina

June 26, 2013

On Monday evening, June 24, 2013, Argentina filed a writ of certiorari with the United States Supreme Court seeking review of an order entered by the Second Circuit Court of Appeals on October 26, 2012 in NML v. Argentina. Client alerts describing prior proceedings in this case can be found here and here.

This step does not come as a great surprise. Although many observers predicted no petition would be filed until the Second Circuit decides the pending appeal, it appears that Argentina filed now to preserve its rights with respect to those issues decided by the Court on October 26, 2012. Rehearing on the October 26th order was denied on March 26th. If the 90-day period for filing a writ of certiorari began then rather than upon final resolution of all appeals, the filing deadline was June 24th.

In its petition, Argentina presents only two legal questions for Supreme Court review:

  1. Whether the Second Circuit’s ruling restricts Argentina’s use of its own property outside the United States in violation of the Foreign Sovereign Immunities Act and prior circuit court rulings, and
  2. Whether the Second Circuit’s ruling upholding the Southern District’s injunction ordering ratable payment of Argentina’s contractual debt obligations to its holdout and exchange bondholders exceeds the Court’s equitable powers by granting injunctive relief where monetary damages could provide an adequate remedy.

Although these are the only questions formally presented for review, Argentina’s brief devotes most of its attention to the equal payment (pari passu) clauses, the risk of ancillary (“me too”) litigation by other holdouts, and the adverse impact of a ruling against Argentina on both United States foreign policy and future sovereign debt restructurings. These issues were all argued extensively in the prior proceedings, decided by the Southern District, and affirmed by the Second Circuit in its October 26th order.

Briefs in support of or opposition to the certiorari petition are due 30 days after the petition is recorded on the Supreme Court docket (probably July 25th). A 60-day extension of the filing deadline is available to parties opposing the petition. Thus briefing will take us almost to start of the new Supreme Court term the first Monday in October.

As we have previously noted, we think the odds of a petition for certiorari being granted are long. The wildcard remains the political pressure on the Supreme Court to weigh in. However, even if the Supreme Court does want to hear this case, we expect that it will wait until after the Second Circuit decides the pending appeal so it can address all issues at once, especially since the briefing schedule for Argentina’s petition probably will take us past the Second Circuit’s final ruling in any case.

We are happy to discuss.


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This article was originally published by Bingham McCutchen LLP.