Bainbridge Fund Ltd. v. the Republic of Argentina

21-37-cv (L)
Bainbridge Fund Ltd. v. The Republic of Argentina
1
2 United States Court of Appeals
3 for the Second Circuit
4
5 August Term 2021
6
7 (Argued: March 2, 2022 Decided: June 22, 2022)
8
9 Docket Nos. 21-37, 21-38
10 _____________________________________
11
12 BAINBRIDGE FUND LTD.,
13 Plaintiff-Appellant,
14
15 v.
16
17 THE REPUBLIC OF ARGENTINA,
18 Defendant-Appellee.
19 _____________________________________
20 Before:
21
22 WALKER, LEVAL, and PARK, Circuit Judges.
23
24 Plaintiff Bainbridge Fund Ltd. is the beneficial owner of bonds issued by the
25 Republic of Argentina. Argentina defaulted on these bonds back in 2001, but
26 Bainbridge didn’t sue to recover on them until 2016. The United States District
27 Court for the Southern District of New York (Preska, J.) dismissed Bainbridge’s
28 claims as untimely under New York’s six-year statute of limitations for contract
29 actions, see N.Y. C.P.L.R. § 213, relying on our nonprecedential decisions in Lucesco
30 Inc. v. Republic of Argentina, 788 F. App’x 764 (2d Cir. 2019), and Bison Bee LLC v.
31 Republic of Argentina, 778 F. App’x 72 (2d Cir. 2019). Bainbridge appeals, asking us
32 to reconsider those decisions. Specifically, Bainbridge argues that (1) the twenty-
33 year statute of limitations for recovery on certain bonds under N.Y. C.P.L.R.
34 § 211(a) applies to its claims against Argentina; and (2) even if the six-year
35 limitations period for contract actions applies, it was tolled under N.Y. Gen. Oblig.
1 Law § 17-101 because Argentina “acknowledged” this debt when it publicly listed
2 the bonds in its quarterly financial statements (the “Quarterly Reports”).
3
4 We reject these arguments. First, the twenty-year statute of limitations does
5 not apply to claims on Argentine bonds because a foreign sovereign is not a
6 “person” under N.Y. C.P.L.R. § 211(a). Second, tolling under N.Y. Gen. Oblig. Law
7 § 17-101 is inapplicable because the Quarterly Reports did not “acknowledge” the
8 debt at issue in a way that reflected an intention to pay or seek to influence the
9 bondholders’ behavior. To the contrary, Argentina repeatedly stated that the
10 bonds “may remain in default indefinitely.” Bainbridge’s claims are thus time-
11 barred, and we AFFIRM the judgments of the district court.
12
13 ANTHONY J. CONSTANTINI (David T.
14 McTaggart, on the brief), Duane Morris LLP,
15 New York, NY, for Plaintiff-Appellant.
16
17 CARMINE D. BOCCUZZI, JR. (Rahul Mukhi,
18 Rathna J. Ramamurthi, Abigail K. Gotter-
19 Nugent, on the brief), Cleary Gottlieb Steen &
20 Hamilton LLP, New York, NY, for
21 Defendant-Appellee.
22
23 PARK, Circuit Judge:
24 Plaintiff Bainbridge Fund Ltd. is the beneficial owner of bonds issued by the
25 Republic of Argentina. Argentina defaulted on these bonds back in 2001, but
26 Bainbridge didn’t sue to recover on them until 2016. The United States District
27 Court for the Southern District of New York (Preska, J.) dismissed Bainbridge’s
28 claims as untimely under New York’s six-year statute of limitations for contract
29 actions, see N.Y. C.P.L.R. § 213, relying on our nonprecedential decisions in Lucesco
2
1 Inc. v. Republic of Argentina, 788 F. App’x 764 (2d Cir. 2019), and Bison Bee LLC v.
2 Republic of Argentina, 778 F. App’x 72 (2d Cir. 2019). Bainbridge appeals, asking us
3 to reconsider those decisions. Specifically, Bainbridge argues that (1) the twenty-
4 year statute of limitations for recovery on certain bonds under N.Y. C.P.L.R.
5 § 211(a) applies to its claims against Argentina; and (2) even if the six-year
6 limitations period for contract actions applies, it was tolled under N.Y. Gen. Oblig.
7 Law § 17-101 because Argentina “acknowledged” this debt when it publicly listed
8 the bonds in its quarterly financial statements (the “Quarterly Reports”).
9 We reject these arguments. First, the twenty-year statute of limitations does
10 not apply to claims on Argentine bonds because a foreign sovereign is not a
11 “person” under N.Y. C.P.L.R. § 211(a). Second, tolling under N.Y. Gen. Oblig. Law
12 § 17-101 is inapplicable because the Quarterly Reports did not “acknowledge” the
13 debt at issue in a way that reflected an intention to pay or seek to influence the
14 bondholders’ behavior. To the contrary, Argentina repeatedly stated that the
15 bonds “may remain in default indefinitely.” Bainbridge’s claims are thus time-
16 barred, and we affirm the judgments of the district court.
17
3
1 I. BACKGROUND
2 A. Factual Background
3 Bainbridge is the beneficial owner of seven bonds issued by Argentina
4 between 1990 and 1999. 1 In 2001, Argentina “declared a moratorium on the
5 payment of principal and interest with respect to all of its foreign debt,” including
6 the bonds at issue here. See, e.g., App’x at 22. In 2005, as part of its debt
7 restructuring, Argentina offered its debtholders the opportunity to participate in
8 a bond exchange (the “Exchange”). Argentina issued a prospectus, notifying
9 creditors that “[e]xisting defaulted bonds eligible for exchange that are not
10 tendered may remain in default indefinitely” and that Argentina “has announced
11 that it has no intention of resuming payment on any bonds eligible to participate
12 in [the] exchange offer.” Id. at 1075 (alteration in original). In 2010, Argentina
13 again invited debtholders to participate in the Exchange. Argentina issued
14 another prospectus, stating that “[e]ligible [s]ecurities in default that are not
15 exchanged pursuant to the” 2010 offer “may remain in default indefinitely.” Id. at
16 26. As with the 2005 exchange offer, Argentina announced that if a holder of
17 defaulted debt “elect[s] not to tender” its debt “pursuant to the [2010 Exchange,]
1Although Bainbridge sued to recover on seven bonds, this appeal implicates only six of
them: the 1993 Trust Deed Bond, two 1992 Floating Rate Bonds, and three Eurobonds.
4
1 there can be no assurance that [the debtholder] will receive any future payments
2 or be able to collect through litigation.” 2 Id. (emphasis omitted). Bainbridge did
3 not participate in either exchange offer. Around the time of these exchange offers,
4 between 2007 and 2015, Argentina’s Finance Secretariat of the Tax and Economy
5 Ministry published quarterly statements reflecting its total national debt (the
6 “Quarterly Reports”). The reports listed numerous bonds—including the six at
7 issue on appeal—within the category “Bonds Not Submitted to the Exchange.” Id.
8 at 468–70, 472–73.
9 B. Procedural History
10 In November 2016, Bainbridge filed two complaints against Argentina in the
11 United States District Court for the Southern District of New York, seeking
12 recovery on seven Argentine bonds issued in the 1990s, all but one of which had
13 matured between 2002 and 2005. 3 At the time of filing, two cases were pending in
14 the district court that raised the same issues and claims as Bainbridge. See Lucesco,
2 In the prospectus, Argentina also emphasized that it “has opposed vigorously, and
intends to continue to oppose, attempts by holders who did not participate in its prior exchange
offers to collect on its defaulted debts through . . . litigation . . . and other legal proceedings against
Argentina.” App’x at 26.
The first action was brought by Bainbridge on November 4, 2016 and sought recovery
3
on the 1993 Trust Deed Bond and the two 1992 Floating Rate Bonds. The second was filed on
November 8, 2016 and implicated the three Eurobonds. The district court deemed the
proceedings related and resolved all issues arising from these cases in tandem.
5
1 Inc. v. Republic of Argentina, 16-CV-7638 (S.D.N.Y.); Bison Bee LLC v. Republic of
2 Argentina, 18-CV-3446 (S.D.N.Y.). The district court concluded in those cases that
3 the six-year statute of limitations under N.Y. C.P.L.R. § 213 applied to claims based
4 on Argentina’s defaulted bonds and that the limitations period was not tolled
5 based on the Quarterly Reports. See Lucesco, Inc. v. Republic of Argentina, 16-CV-
6 7638, 2018 WL 9539167 (S.D.N.Y. Sept. 10, 2018); Bison Bee LLC v. Republic of
7 Argentina, 18-CV-3446, 2018 WL 8058126 (S.D.N.Y. Oct. 22, 2018). The district court
8 stayed Bainbridge’s actions pending appeal of these decisions.
9 We resolved both appeals by summary order, concluding that the plaintiffs’
10 claims on Argentine bonds were barred by New York’s six-year statute of
11 limitations. We rejected the plaintiffs’ reliance on N.Y. C.P.L.R. § 211(a) and N.Y.
12 Gen. Oblig. Law § 17-101. See Lucesco Inc., 788 F. App’x at 767–69; Bison Bee, 778 F.
13 App’x at 73. Bainbridge then moved for partial summary judgment on its one
14 claim that was timely under the six-year statute of limitations. Bainbridge agreed
15 that Lucesco and Bison Bee “foreclose[d]” its claims on the remaining bonds and
16 stipulated “to a proposed order and judgment” disposing of these claims, while
17 “retain[ing] any rights it has to appeal . . . to ask the Second Circuit to reconsider
18 its prior interpretation of New York law.” App’x at 631. On December 1, 2020, the
6
1 district court entered judgments dismissing these claims. Bainbridge filed timely
2 notices of appeal, and we consolidated the cases on appeal.
3 II. DISCUSSION
4 Bainbridge argues that its claims against Argentina are timely for two
5 reasons. First, the twenty-year statute of limitations in N.Y. C.P.L.R. § 211(a)
6 applies to its claims. Second, even if New York’s six-year statute of limitations for
7 breach of contract applies, this limitations period was tolled because Argentina
8 “acknowledged” its debt under N.Y. Gen. Oblig. Law § 17-101. We review the
9 district court’s “interpretation and application of a statute of limitations” de novo.
10 Muto v. CBS Corp., 668 F.3d 53, 56 (2d Cir. 2012).
11 A. N.Y. C.P.L.R. § 211(a)
12 The statute of limitations for breach of contract claims in New York is
13 generally six years. N.Y. C.P.L.R. § 213(2). Section 211(a) allows a twenty-year
14 statute of limitations for a limited class of actions seeking to recover on certain
15 bonds issued by “the state of New York or . . . any person, association or public or
16 private corporation.” N.Y. C.P.L.R. § 211(a). 4 Bainbridge argues that its claims fall
4 Section 211(a) applies only to claims on bonds that (1) were sold after the issuer
published “an advertisement for bids” for the bonds in a “newspaper of general circulation” and
(2) are “secured . . . by a pledge of the faith and credit of the issuer.” N.Y. C.P.L.R. § 211(a). In
7
1 under this provision because Argentina is a “person” for purposes of section
2 211(a). We disagree and conclude that section 211(a) does not apply to claims
3 against foreign sovereigns.
4 First, the ordinary meaning of “person” is a natural person. See Butterworth
5 v. O’Brien, 23 N.Y. 275, 280 (1861) (noting that the “common and ordinary
6 signification” of the term “persons” is “natural persons”). The Supreme Court has
7 explained that the common usage of the term “persons” does “not include the
8 sovereign, and statutes employing it will ordinarily not be construed to do so.”
9 United States v. United Mine Workers, 330 U.S. 258, 275 (1947); see also Antonin Scalia
10 & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 273 (2012)
11 (“[T]he word person traditionally excludes the sovereign” given “a ‘longstanding
12 interpretive presumption’ to that effect.” (quoting Vt. Agency of Nat. Res. v. United
13 States ex rel. Stevens, 529 U.S. 765, 780 (2000)). New York courts similarly presume
14 that “[t]he word person does not, in its ordinary or legal signification, embrace a
2020, after Bainbridge brought suit, section 211(a) was amended to apply to bonds advertised in
“electronic or physical form” rather than in a “newspaper of general circulation.”
8
1 State or government.” In re Fox, 52 N.Y. 530, 535 (1873), aff’d sub nom. United States
2 v. Fox, 94 U.S. 315 (1876). 5
3 Second, the ordinary interpretation of “person” gives meaning to each term
4 in the provision. By contrast, Bainbridge’s interpretation of “person” in section
5 211(a) to encompass “any being whom the law regards as capable of rights or
6 duties,” Appellant’s Br. at 23 (quoting Person, Black’s Law Dictionary (11th ed.
7 2019)), would render much of the surrounding language meaningless.
8 Specifically, Bainbridge’s proposed interpretation would render superfluous the
9 language specifying that section 211(a) applies to debt issued by “the state of New
10 York” and “any . . . association or public or private corporation.” N.Y. C.P.L.R.
11 § 211(a); see Mestecky v. City of New York, 30 N.Y.3d 239, 243 (2017) (“We have
12 recognized that meaning and effect should be given to every word of a statute and
13 that an interpretation that renders words or clauses superfluous should be
14 rejected.” (cleaned up)); see also N.Y. Stat. Law § 231 (“[M]eaning and effect should
5 Bainbridge’s assertion that Fox is limited to probate proceedings is baseless. First,
nothing in Fox so limits this presumption. See In re Fox, 52 N.Y. at 535 (“The word person does
not, in its ordinary or legal signification, embrace a State or government; and there is no ground to
justify such an extension . . . in construing the statute relating to devises.” (emphasis added)). Second,
New York courts have applied this presumption in other contexts. See, e.g., Leonard v. Masterson,
896 N.Y.S.2d 358, 360 (2d Dep’t 2010) (in a case arising from a petition for road access rights,
noting that “[i]t has long been the law . . . that the term ‘person’ generally does not include a
governmental entity”).
9
1 be given to all [of a statute’s] language, if possible, and words are not to be rejected
2 as superfluous when it is practicable to give to each a distinct and separate
3 meaning.”).
4 Finally, Bainbridge’s reliance on the broad interpretation New York courts
5 have given the term “person” in other contexts is misguided. The statutes
6 Bainbridge relies on—rules concerning intervention, joinder, interpleader, and
7 actions against multiple parties, see N.Y. C.P.L.R. §§ 1001, 1002, 1006, 1007, 1013,
8 3002—are procedural rules of general application. Meanwhile, section 211(a)’s
9 specific articulation of the type of bond-issuers it applies to, as well as the statute’s
10 legislative history, 6 confirm that the statute was meant to apply “only to a limited
11 group of bonds and served as a narrow exception to the generally applicable six-
12 year limitations period.” White Hawthorne, LLC v. Republic of Argentina, 16-CV-
13 1042, 2016 WL 7441699, at *7 (S.D.N.Y. Dec. 22, 2016); see also Scalia & Garner, supra,
6 In enacting section 211(a), the New York legislature sought to promote the marketability
of New York-issued bonds by extending the limitations period for claims relating to such bonds.
See Report of the Law Revision Commission, Bill Jacket, L 1950, ch. 783 at 46-47; see also Letter
from Frank C. Moore, N.Y. State Comptroller, to Thomas E. Dewey, N.Y. State Governor (Mar.
30, 1950), Bill Jacket, L 1950, ch. 783 at 20-21. Debt-issuers other than New York were included
only to the extent necessary to avoid running afoul of both the New York and Federal
Constitutions. See Report of the Law Revision Commission at 47–48. The common understanding
at the time was that “the ‘bonds’ other than municipal and State obligations, to which it would
apply would be few.” Memoranda of the Ass’n of the Bar of the City of New York, Comm. on
State Legis. No. 86A, Bill Jacket, L 1950, ch. 783 at 10. There is no indication that the legislature
intended to include foreign sovereign debt within section 211(a)’s purview, much less that it did
so through an expansive understanding of the word “person.”
10
1 at 273 (explaining that whether the term “person” includes “artificial persons”
2 “depends on context”); N.Y. Stat. Law § 95, cmt. (“As a general rule, the legislative
3 intent with which statutes are enacted is to be collected from the context, from the
4 occasion and necessity of the law, from the mischief felt, and from the objects and
5 remedy in view.”). Moreover, the statutes cited by Bainbridge do not contain a list
6 of other covered entities following the term “person,” as in section 211(a). The
7 enumerated list of covered issuers in section 211(a) reflects a legislative intent to
8 limit the statute’s reach. N.Y. Stat. Law § 240 (“[W]here a law expressly describes
9 a particular act, thing or person to which it shall apply, an irrefutable inference
10 must be drawn that what is omitted or not included was intended to be omitted
11 or excluded.”).
12 In short, the term “person” in section 211(a) does not cover foreign
13 sovereigns, so the twenty-year statute of limitations does not apply to Bainbridge’s
14 claims against Argentina. 7
7Every court to have considered this issue has similarly concluded that claims against
foreign sovereigns do not fall under section 211(a). See MMA Consultants 1, Inc. v. Republic of Peru,
245 F. Supp. 3d 486, 516 (S.D.N.Y. 2017), aff’d, 719 F. App’x 47 (2d Cir. 2017); White Hawthorne,
2016 WL 7441699, at *6; World Holdings, LLC v. Federal Republic of Germany, 794 F. Supp. 2d 1341,
1351 (S.D. Fla. 2011), aff’d, 701 F.3d 641 (11th Cir. 2012); Morris v. People’s Republic of China, 478 F.
Supp. 2d 561, 571 n.15 (S.D.N.Y. 2007).
11
1 B. N.Y. Gen. Oblig. Law § 17-1012 Bainbridge next argues that Argentina’s listing of the defaulted bonds in the
3 Quarterly Reports constituted an acknowledgment of debt, which tolled the
4 statute of limitations for Bainbridge’s claims. We disagree.
5 Under New York law, a debtor’s acknowledgement of indebtedness may
6 toll the statute of limitations for claims on that debt. This doctrine treats the
7 recognition of debt as “a new promise to pay.” Batavia Townhouses, Ltd. v. Council
8 of Churches Hous. Dev. Fund Co., 133 N.Y.S.3d 133, 137 (4th Dep’t 2020). “On this
9 new promise . . . the debtor became liable afresh.” 31 Williston on Contracts
10 § 79:73 (4th ed. 2021). The acknowledgement must be in writing, “made under
11 such circumstances that” an express promise to pay the debt “may be fairly
12 implied,” Wakeman v. Sherman, 9 N.Y. 85, 91 (1853), and “must contain nothing
13 inconsistent with an intention on the part of the debtor to pay it,” Lew Morris
14 Demolition Co. v. Bd. of Educ. of N.Y., 40 N.Y.2d 516, 521 (1976); see N.Y. Gen. Oblig.
15 Law § 17-101. 8 Whether a writing constitutes an “acknowledgement . . . sufficient
8 N.Y. Gen. Oblig. Law § 17-101 codified this rule and provides that “[a]n
acknowledgement or promise contained in a writing signed by the party to be charged thereby is
the only competent evidence of a new or continuing contract whereby to take an action out of the
operation of the provisions of limitations of time for commencing actions under the civil practice
law and rules.”
12
1 to restart the running of a period of limitations depends on the circumstances of
2 the individual case.” Estate of Vengroski v. Garden Inn, 495 N.Y.S.2d 200, 201 (2d
3 Dep’t 1985).
4 Contrary to Bainbridge’s assertions, the Quarterly Reports do not manifest
5 an implied promise by Argentina to pay on the defaulted bonds. The bonds were
6 simply listed by name among numerous others in a category labeled “Bonds Not
7 Submitted to the Exchange.” App’x at 468–70, 472–73. As noted above, the
8 Exchange was a process by which Argentina sought to restructure its debt in 2005
9 and 2010. It offered new bonds in exchange for the old, defaulted obligations, all
10 the while warning that it “ha[d] no intention of resuming payment on any bonds
11 eligible to participate in [the] exchange offer . . . that are not tendered or otherwise
12 restructured as part of such transaction.” Id. at 24 (2005 exchange offer) (second
13 alteration in original); see id. at 1078 (2010 exchange offer). Indeed, Argentina
14 repeatedly stated that it would not repay bonds not submitted to the exchange and
15 that these bonds “may remain in default indefinitely.” See, e.g., id. at 1075. Given
16 these circumstances, listing certain bonds in the Quarterly Reports as bonds not
17 submitted to the Exchange was entirely inconsistent with an implied intent to pay
18 off this debt. Argentina’s public posting of debt in this fashion is not an
13
1 “acknowledgment” for purposes of tolling the statute of limitations for claims on
2 that debt. 9
3 There is also no indication that Argentina meant to influence Bainbridge’s
4 actions by listing the defaulted bonds in the Quarterly Reports. For an
5 acknowledgment to toll the statute of limitations under N.Y. Gen. Oblig. Law § 17-
6 101, an implied promise “must be made to the creditor or some one acting for him,
7 or if made to a third person must be calculated and intended to influence the action
8 of the creditor.” Wakeman, 9 N.Y. at 91–92; see also Lynford v. Williams, 826 N.Y.S.2d
9 335, 337 (2d Dep’t 2006) (declining to find an effective acknowledgment when the
10 documents at issue were not “communicated to the plaintiff or to anyone on his
11 behalf, nor intended to influence the plaintiff’s conduct”); DeFreest v. Warner, 98
12 N.Y. 217, 221 (1885) (explaining that for an acknowledgment to be “just as effectual
13 to defeat the statute of limitations as if it had been made directly to the creditor or
14 his authorized agent,” it must “sufficiently appear[] that the intention was that the
9 As Bainbridge notes, an effective acknowledgment does not always have to identify the
bond beneficiary or the specific amount owed to a creditor. Here, Argentina may not know the
identity of a bond’s ultimate beneficiary in part because the bonds may be held through several
layers of ownership. New York courts have emphasized that “[i]n determining what constitutes
an acknowledgment . . . there is no occasion for resorting to any subtle or refined distinctions
contrary to ordinary business understanding and rules of common sense.” Curtiss-Wright Corp.
v. Intercontinent Corp., 97 N.Y.S.2d 678, 682 (1st Dep’t 1950).
14
1 declaration made to [the third party] . . . be communicated to and influence the
2 creditor” (cleaned up)). Here, the Quarterly Reports were not issued directly to
3 Bainbridge or its authorized agent, and Bainbridge failed to allege that they were
4 “calculated and intended to influence” its actions. Wakeman, 9 N.Y. at 92.
5 Thus, the limitations period for Bainbridge’s claims was not tolled under
6 N.Y. Gen. Oblig. Law § 17-101.
7 III. CONCLUSION
8 Argentina is not a bond-issuing “person” covered by N.Y. C.P.L.R. § 211(a),
9 so Bainbridge’s claims are governed by New York’s six-year statute of limitations
10 for contract claims. Bainbridge’s claims here accrued between 2002 and 2005, over
11 a decade before it filed suit. And Bainbridge may not rely on the Quarterly Reports
12 as purported “acknowledgments” of debt that would toll the six-year statute of
13 limitations. The listing of the defaulted bonds on the Quarterly Reports did not
14 manifest an intention by Argentina to pay, and Bainbridge does not allege that the
15 Quarterly Reports were intended to influence its conduct. Bainbridge’s claims are
16 thus time-barred, and we affirm the judgments of the district court. 10
10We decline Bainbridge’s request to certify the questions presented to the New York
Court of Appeals. See 2d Cir. R. 27.2(a); DiBella v. Hopkins, 403 F.3d 102, 111 (2d Cir. 2005)
(explaining that certification is inappropriate “where sufficient precedents exist” for us to resolve
the appeal).
15