Romano et al v. The Republic of Argentina

Filing 27

OPINION #102934: The motion for summary judgment is granted. Judgment will be entered for the principal amount of the bonds issued under the DPB FAA plus accrued interest (Signed by Judge Thomas P. Griesa on 2/21/2013) (js) Modified on 2/28/2013 (rsh).

!i USDC SONY

DOCUMENT

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

I; ELECfRONICALLY

ELAZAR ROMANO, CARLO REGAZZONI,
TOMASO ZAPPOLI THYRION, LA SOC lET A
UMUS SRL, and GRAZIA VALENTINI,

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DATE HUL) J.(2-1
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No. 07-CV-11331 (TPG)

Plaintiffs,

ODinion

- againstTHE REPUBLIC OF ARGENTINA,
Defendant.

Plaintiffs are the beneficial owners of certain bond indebtedness issued by the
Defendant, the Republic of Argentina (the "Republic"), on which the Republic defaulted in December
2001. Plaintiffs are suing to recover amounts due to them as a result of the default and have moved for
summary judgment. The Republic has no objection to the entry of summary judgment.
The motion is granted.

FACTS
The bond indebtedness at issue is governed by the USD Discount Bond and Par Bond
Fiscal Agency Agreement, dated as of April 7, 1993 (the "DPB FAN'). The DPB FAA is the same
agreement that governed the bond indebtedness on which this court granted summary judgment to
plaintiffs in Etcheto et ai.,. v. Republic ofArgentina, No. 08 Civ. 4902(S.D.N.Y. Feb. 6, 2009). Section
16 of the DPB FAA states that the Republic waives sovereign immunity and consents to jurisdiction in
any state or federal court in the borough of Manhattan in the City of New York. The DPB FAA also
provides that the Republic's obligations on the bonds are unconditional and that failure to make any
payment of principal or interest for 30 days after the applicable date constitutes an event of default. A
declaration by the Republic of a moratorium on the payment of principal or interest on its public

external indebtedness is an event of default as well. The terms and conditions of the bonds issued
pursuant to the DPB FAA permit acceleration of principal only by holders of at least 25% in aggregate
of the outstanding principal amount of the bonds.
On December 24,2001, the Republic declared a moratorium on payments of principal and
interest on the external debt of the Republic. The court refers to its previous opinions for a description
of the circumstances of these defaults. Lightwater Corp. Ltd. v. Republic ofArgentina, No 02 Civ.
3804,2003 WL 1878420, at *2 (S.D.N.Y. Apr. 14,2003); Applestein v. Republic ofArgentina, No. 02
Civ. 1773,2003 WL 1990206, at * 1 (S.D.N.Y. Apr. 29,2003). On or about December 17,2007,
Plaintiffs sent notices to the Fiscal Agent of the Republic, providing notice of an event of default,
demanding payment on certain bonds governed by the DPB FAA, and declaring the principal amount
of the debt securities governed by the DPB FAA to be immediately due and payable. Further, on or
about February 13,2007, the Fiscal Agent of the Republic communicated to the holders of the DPB
FAA bonds that the Fiscal Agent received written communication from the holders of more than 25%
of the principal amount outstanding of the DPB FAA bonds, declaring all of the DPB FAA bonds to be
immediately due and payable.
The bonds that are the subject of this action, and the amounts of beneficial interests owned by
Plaintiffs, are listed in the following tables. I

TABLE 1

Plaintiff Bond Holder or
Beneficial Owner:
Face Value

ELAZAR ROMANO
$7,500,000.00

1 The court notes the distinction between bonds and beneficial interests. In some previous opinions, the court has simply
referred to the plaintiffs as owners of "bonds" when in fact plaintiffs are technically owners of "beneficial interests in bonds." The
Republic actually issues "a bond" to a depository. The depository, in some form, issues "participations" to brokers, who sen "beneficial
interests" to purchasers. These beneficial interests are identified by reference to the underlying bond (CUSIP or ISN number or both; date
of issuance and maturity; rate of interest) and the principal amount ofthe beneficial interest. This distinction is discussed more fully in
Million Air Corp. v. Republic ofArgentina. No. 04-1048, 2005 WL 2656126 (S.D.N.Y. Oct 17,2005).

2

ISIN No.:

XS0043119147

Date of Issuance

March 31, 1993

Date of Maturity

March 31, 2023

Interest Rate/Payable

6%

Notice of Acceleration

December 17, 2007

Contract Documents:

DPBFAA
i

Evidence of Ownership
Proffered

Account statement issued by Intesa Sanpaolo I
Priva Bankin~.A_._. . __
I
-

TABLE 2

Plaintiff Bond Holder or I CARLO REGAZZONI
Beneficial Owner:
$1,140,00.00
Face Value

I
i

XS0043119147

ISIN No.:

I

· Date of Issuance

March 31, 1993

Date of Maturity

March 31, 2023

I

I

Interest Rate/Payable

16%

Notice of Acceleration
Contract Documents:

i

December 17,2007
DPBFAA

Evidence of Ownership
Proffered

Account statement issued by Pictet and Cie

TABLE 3

Plaintiff Bond Holder or · LA SOCIETA UMUS SRL
Beneficial Owner:
$250,000.00
Face Value

ilSIN No.:

I

XS0043119147

3

· Date of Issuance

March 3 1, 1993

!

Date of Maturity

March 31, 2023

Interest Rate/Payable

6%

December 17, 2007

• Notice of Acceleratiou
Contract Documents:

DPBFAA

Evidence of Ownership
· Proffered

I

Account statement issued by Banca Fideuram

TABLE 4

Plaintiff Bond Holder or
Beneficial Owner:
Face Value

i

$115,000,00

ISIN No.:
Date of Issuance
Date of Maturity

GRAZIA VALENTINI

XS00431 19147

I March 31,1993

-!

, March 31, 2023
I

Interest Rate/Payable

!

6%

Notice of Acceleration

December 17, 2007

Contract Documents:

DPBFAA

1
!

l

Evidence of Ownership
Proffered

Account statement issued by Cassa di
c..B-isQarmio

TABLES

Plaintiff Bond Holder or
, Beneficial Owner:
Face Value
!

ISIN No.:

TOMASO ZAPPOLI THYRION
$3,435,000.00
XS00431 19147

4

I

I

Date of Issuance

March 31, 1993

Date of Maturity

I March 31, 2023

Interest Rate/Payable

6%

Notice of Acceleration

December 17, 2007

Contract Documents:

I

. DPBFAA
i

Evidence of Ownership
Proffered

Account statement issued by UBS and Pictet
&Cie

I

DISCUSSION
This Court has already granted summary judgment in other cases to plaintiffs seeking to collect
on the Republic's defaulted bonds. See, e.g. Mazzini v. Republic ofArgentina, No. 03 Civ. 8120,2005
WL 743090, at *1 (S.D.N.Y. Mar. 31,2005). Only standing and proof of ownership need to be
discussed in connection with the present motion.
In Fontana v. Republic ofArgentina, 415 F.3d 238 (2d Cir. 2005), and Applestein v. Province
ofBuenos Aires, 415 F.3d 242 (2d. Cir. 2005), the Second Circuit has held that an owner of a
beneficial interest, such as Plaintiffs here, must receive authorization from the registered holder of the
bond before it may sue, but that such authorization may be granted subsequent to the filing of a
lawsuit. Alternatively, the Republic may waive the authorization requirement.
The Republic has agreed to waive objections based on lack of authorization where the court
makes a finding of current ownership. See Transcript, March 28, 2006, Cilli v. Republic ofArgentina,
No. 04 Civ.6594.
Here, plaintiffs have adequately demonstrated through their account statements that they own
their beneficial interests as of the following dates: Elazar Romano: October 30, 2011, Carlo
Regazzoni: November 8,2011; Tomaso Zappoli Thyrion: November 4,2011; La Societa Umus Sri:
January 6, 2012; Grazia Valentini: December 31, 2011.
5

CONCLUSION

The motion for summary judgment is granted. Judgment will be entered for the principal
amount of the bonds issued under the DPB FAA plus accrued interest.
Settle Judgment.

SO ORDERED
Dated: New York, New York

,

1-

~

February~, 20~ . /
THOMAS P. GRIESA

U.S.DJ.

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