SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the opinion and order of the district court is AFFIRMED.
Plaintiffs-Appellants appeal from the opinion and order of the United States District Court for the Southern District of New York (Griesa, J.), vacating the Injunctions against Argentina upon the occurrence of two conditions precedent. We assume the parties' familiarity with the underlying facts and the procedural history of the case and therefore address the facts only as necessary to resolve the issues presently on appeal.
Plaintiffs-Appellants, groups of individual and corporate bondholders of bonds first issued by Argentina under a Fiscal Agency Agreement ("FAA bondholders") in 1994, initially brought this action seeking monetary judgments against Argentina for its 2001 default. See NML Capital, Ltd. v. Republic of Argentina, 699 F.3d 246, 251 (2d Cir. 2012) (hereinafter "NML I"). Having secured partial summary judgment against Argentina in December 2011, certain Plaintiffs-Appellants sought and obtained an Injunction prohibiting Argentina from making payments on so-called Exchange bonds without concurrently or in advance making a ratable payment to FAA bondholders. This Court twice affirmed, with slight modification, the imposition of the Injunction. See NML I, 699 F.3d at 254-55; NML Capital, Ltd. v. Republic of Argentina, 727 F.3d 230 (2d Cir. 2013) (hereinafter "NML II"). A similar Injunction was also granted to other Plaintiffs who had later sought similar relief. The last Injunction was entered on October 30, 2015 and was pending on appeal when Argentina, under the administration of newly elected President Mauricio Macri, moved the district court for vacatur of the Injunctions. The district court ordered Plaintiffs-Appellants to show cause why an order vacating the Injunctions should not be entered.
On February 19, 2016, the district court filed a Rule 62.1 Indicative Ruling indicating it would vacate the Injunctions subject to the satisfaction of two conditions precedent if this Court remanded the then pending appeal. Oral arguments before a panel of this Court were heard on February 24, 2016. That same day, this Court entered an order granting Argentina's motion to dismiss the appeals with prejudice. This Court instructed the district court that, before formally entering the Indicative Ruling, all parties must be "afford[ed] [] an opportunity to be heard in the district court." J.A. 1721. The following day, Argentina moved the district court to enter its Indicative Ruling. The district court heard arguments and on March 2, 2016, entered an Order vacating the injunctions upon the satisfaction of two conditions precedent: (1) the repeal of all legislative obstacles to settlement including the Lock and Sovereign Payment Laws, and (2) that all Plaintiffs who had entered into settlement agreements in principle with Argentina on or before February 29, 2016, be paid in accordance with the specific terms of each such agreement. Plaintiffs-Appellants, some of which have Agreements in Principle with Argentina, now appeal the district court's order vacating the Injunctions.
Plaintiffs-Appellants fall into two classes of bondholders: "Lead Plaintiffs," including Aurelius and NML Capital, which have entered into Agreements in Principle ("AIP") with Argentina and other bondholders who either have accepted the terms of Argentina's settlement offer or have not yet negotiated settlement agreements with Argentina ("Individual Bondholders"). All Plaintiffs-Appellants argue the district court abused its discretion in granting conditional vacatur of the Injunctions. Certain Lead Plaintiffs also contend that, if vacatur is affirmed, the order should be clarified so as to protect Lead Plaintiffs under their existing AIP.
"A district court's modification of an injunctive decree will not be disturbed on appeal, absent a showing that the court abused its discretion." Sierra Club v. U.S. Army Corps of Eng'rs, 732 F.2d 253, 257 (2d Cir. 1984). A district court has abused its discretion when "(1) its decision rests on an error of law or a clearly erroneous factual finding; or (2) cannot be found within the range of permissible decisions." In re Terrorist Attacks on Sept. 11, 2001, 741 F.3d 353, 357 (2d Cir. 2013) (reviewing a district court's decision on a Rule 60(b) motion for abuse of discretion).
In the case of a final or permanent injunction,2 we consider whether "there has been such a change in the circumstance as to make modification of the decree equitable." Sierra Club, 732 F.2d at 257. An important question in this inquiry is whether the objective of the injunction has been achieved. See Horne v. Flores, 557 U.S. 433, 450 (2009). Events may also arise, however, when modification or termination of an injunction "is appropriate even though the purpose of the decree has not been achieved." United States v. Eastman Kodak Co., 63 F.3d 95, 102 (2d Cir. 1995). Modification may be appropriate when an injunction proves to be unworkable or unnecessary as a result of changed circumstances or unforeseen occurrences. Cf. Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 384 (1992) (holding modification of consent decree appropriate under Rule 60(b)(5) when its continuance becomes "unworkable because of unforeseen obstacles"). In addition to considerations of changed circumstances, "a court should [also] keep the public interest in mind in ruling on a request to modify based on a change in conditions." Id. at 392. Thus modification or vacatur of an injunction may be warranted when continued enforcement "would be detrimental to the public interest." Id. at 384-85 (citing Duran v. Elrod, 760 F.2d 756, 759-61 (7th Cir. 1985)).
1. Changed Circumstances
The district court conditionally lifted the Injunctions on the basis of changed circumstances including (1) that Argentina "has shown a good-faith willingness to negotiate with the holdouts," S.P.A. 109, (2) the representations made by President Macri's administration that it would repeal certain legislation prohibiting payment to the bondholders,3 and (3) that "a number of plaintiffs have now agreed in principle to settle," S.P.A. 113. Plaintiffs-Appellants argue any alleged changed circumstances are insufficient to warrant vacatur and the Individual Bondholders contend that there has been no willingness to negotiate with them regardless of any discussions which may have occurred between Argentina and Lead Plaintiffs.
The record shows that shortly after assuming office, President Macri sent senior level officials such as Undersecretary of Finance Santiago Bausili to meet with Special Master Daniel Pollack, appointed by the district court to supervise negotiations, to engage in settlement discussions. As of the district court's Indicative Ruling, Argentina had reached Agreements in Principle with Plaintiffs totaling over $1 billion. This amount reached at least $6.2 billion by the time the district court entered its March 2 Order. Argentina's apparent willingness to negotiate stands in sharp contrast to its earlier intransigence previously recognized by this Court. NML II, 727 F.3d at 247 & n.13 (noting "Argentina has been a uniquely recalcitrant debtor"). That certain Individual Bondholders have not had the opportunity to fully engage in or complete settlement negotiations does not negate Argentina's willingness to resolve these long-standing disputes. And while Argentina has offered a Standard Proposal for settlement open to all bondholders, Individual Bondholders are not required to accept this proposal, and may continue in their efforts to negotiate different settlement terms.
Further, there is no question that Argentina has taken steps to repeal legislation which operated to thwart settlement with FAA bondholders. As of Plaintiffs-Appellants filings, the Argentine House had passed legislation repealing the Lock and Sovereign Payment Laws and the same repeal legislation has since been passed in the Senate. That the House Bill takes effect only upon affirmance by this Court of the vacatur of the Injunctions does not change the fact that efforts are being made to repeal the very legislation that spurred the imposition of the Injunctions in the first instance.
The district court did not err, much less abuse its discretion, in finding changed circumstances warranting the reconsideration of the equities of maintaining the Injunctions nor in finding that, in light of the changed circumstances, keeping the Injunctions in place would no longer be equitable. Many agreements currently between Argentina and FAA bondholders are contingent upon the vacatur of all Injunctions. Keeping the Injunctions in place thereby hinders the consummation of settlements. Having recognized "this matter will not be resolved without a successful settlement," J.A. 583-84, the district court acted within its discretion to allow for settlement to continue. Keeping the Injunctions in place would also allow certain non-settling Plaintiffs to use the Injunctions "as a tool for leverage in negotiations." S.P.A. 83. Now that Argentina has made important efforts, apparently in good faith, to resolve this long-term dispute, we agree that the district court did not abuse its discretion in concluding that the Injunctions have served their purpose; keeping the Injunctions in place would now serve to further frustrate settlement attempts and perhaps close the door to ending this protracted and difficult history.
Plaintiffs-Appellants have never had a legal entitlement to an injunction. See E.E.O.C. v. KarenKim, Inc., 698 F.3d 92, 100 (2d Cir. 2012) (stating "an injunction is a matter of equitable discretion" and "does not follow from success on the merits as a matter of course" (internal quotation marks and alteration omitted)). The district court would not have abused its discretion if it had limited Plaintiffs-Appellants to a money judgment. The fact that the district court, in its discretion, gave Plaintiffs-Appellants a further tool to induce Argentina to comply with its obligations does not mean that the court is compelled to retain the discretionary injunction in place when changed circumstances make it less equitable.
2. The Public Interest
The district court concluded that a number of parties would benefit from the vacatur of the Injunctions, including Exchange bondholders who had not been paid in two years, FAA bondholders who had entered into settlements with Argentina on the condition that all Injunctions will be vacated, and the Argentine people.
Consideration of the Exchange bondholders was not inappropriate. Lifting the Injunctions would allow Argentina to pay Exchange bondholders as well as to continue to resolve claims with FAA bondholders. It is true that the circumstances of the Exchange bondholders did not stop the district court from entering the Injunctions in the first place, but the district court was within its discretion to reconsider the Exchange bondholders' interest two years after Injunctions were first imposed. The district court's consideration of the economic welfare of Argentina and its citizens was also proper. The district court found that keeping the Injunctions in place would harm Argentina's ability to access global capital markets in order to raise capital to fund the payment of already agreed upon settlements. Lead Plaintiffs' AIP contemplates such a raising of capital and the district court's finding that such market access is essential to the well-being of the nation as well as necessary to raise adequate funds to meet negotiated settlements was not in error. Nor was it improper for the district court to recognize this Circuit's judicial policy in favor of settlements. See Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir. 2005).
Lifting the Injunctions does not coerce Individual Bondholders to accept the proposed settlement. The district court expressly recognized it "does not have the power to force plaintiffs to accept a settlement," S.P.A. 118, and conditional vacatur of the Injunctions forces no such acceptance. Individual Bondholders are free to continue to negotiate without an Injunction and may take steps, perhaps including litigation, to protect their interests.
Finally, lifting the Injunctions does not deprive the district court of the authority to put in place a new and efficacious injunction in the event that future circumstances justify such action. A premise underlying the district court's decision to vacate the Injunctions is that Argentina's recent actions reflect a good-faith intention promptly to resolve its outstanding disputes with all bondholders. Should this premise prove mistaken, the district court would be free, upon an appropriate factual showing, to respond to such recalcitrance by putting in place a new injunction aimed at forcing compliance with Argentina's legal duties.
3. Modification of the March 2 Order
Lead Plaintiffs argue that, in the event we affirm the district court's vacatur of the Injunctions, we should clarify that "the Injunctions cannot be lifted if (i) Argentina fails to pay Lead Plaintiffs by April 14, and (ii) Lead Plaintiffs thereafter exercise their bargained-for right to terminate their Agreement in Principle." Lead Plaintiffs contend that the AIP contemplates the scenario in which, should Argentina fail to pay the agreed upon settlement by April 14, Lead Plaintiffs may exercise their right to terminate while still retaining their right to an Injunction as parties "that entered into agreements in principle with the Republic on or before February 29, 2016." S.P.A. 84. As this scenario is purely hypothetical, we see no reason to provide what would amount to an advisory opinion conclusively establishing the parties' rights in the event of various potential future events.
In conclusion, we hold the district court did not abuse its discretion in finding changed circumstances so altered the equities as to disfavor maintenance of the Injunctions and ordering that the Injunctions would be vacated upon Argentina's having met two specified conditions precedent. The district court should, however, take steps, at the time Argentina certifies it has satisfied the conditions precedent, to determine whether the conditions have indeed been met.
We have considered Plaintiffs-Appellants' remaining arguments and are not persuaded by them. Accordingly, we AFFIRM the opinion and order of the district court.
