09-0332-cv (L)
Puricelli v. The Republic of Argentina




                         UNITED STATES COURT OF APPEALS

                               FOR THE SECOND CIRCUIT



                                         August Term, 2009

(Argued: November 9, 2009                                                Decided: May 27, 2010)

             Docket Nos. 09-0332-cv (L), 09-0335-cv (CON), 09-0338-cv (CON),
              09-0345-cv (CON), 09-0371-cv (CON), 09-0373-cv (CON),
              09-0374-cv (CON), 09-0375-cv (CON)

                              _________________________________

SILVIA SEIJAS, HEATHER M. MUNTON , THOMAS L. PICO ESTRADA , EMILIO ROMANO , RUBEN
WEISZMAN , ANIBAL CAMPO , MARIA COPATI, CESAR RAUL CASTRO , HICKORY SECURITIES LTD.,
ELIZABETH ANDREA AZZA , CLAUDIA FLORENCIA VALLS, RODOLFO VOGELBAUM , EDUCARDO
PURICELLI, AND REUBEN DANIEL CHORNY ,

                                         Plaintiffs-Appellees,

                                                – v. –

                                 THE REPUBLIC OF ARGENTINA ,

                                   Defendant-Appellant.
                           __________________________________

Before: LEVAL, B.D. PARKER, AND LIVINGSTON , Circuit Judges.

                              _________________________________

       Defendant-appellant appeals from eight grants of class certification and eight final


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judgments of the United States District Court for the Southern District of New York (Griesa, J.).

The district court granted class-wide, but not individualized, monetary relief to holders of

defaulted bonds issued by the Republic of Argentina. Affirmed in part. Remanded in part.
                              _________________________________

                                      JONATHAN I. BLACKMAN (CARMINE D. BOCCUZZI,
                                      CHRISTOPHER P. MOORE , on the brief), Cleary Gottlieb
                                      Steen & Hamilton LLP, New York, New York, for
                                      Defendant-Appellant.

                                     BERTRAND C. SELLIER (MARK D. HARRIS, WILLIAM H.
                                     WEISMAN , on the brief), Proskauer Rose LLP, New York,
                                     New York, (GUILLERMO A. GLEIZER, New York, New
                                     York, HOWARD SIROTA , SAUL ROFFE, Sirota & Sirota LLP,
                                     Belle Harbor, New York, LOVELL STEWART HALEBIAN
                                     LLP, New York, New York, on the brief), for Plaintiffs-
                                     Appellees.
                               _________________________________

       BARRINGTON D. PARKER, Circuit Judge:

       The Republic of Argentina appeals from eight final judgments of the United States

District Court for the Southern District of New York (Griesa, J.) granting relief to eight classes

consisting of holders of defaulted Argentine bonds. Argentina raises two issues. First, it

contends that the district court, when certifying the classes, misapplied Rule 23 of the Federal

Rules of Civil Procedure. Second, Argentina contends that the district court erroneously granted

aggregate, class-wide, as opposed to individualized, relief. We agree with the second contention

but not the first. Therefore, we affirm in part and remand in part.

                                        BACKGROUND

       During the 1990s, Argentina experienced a severe economic crisis resulting in its 2001

default on roughly $80 to $100 billion of sovereign debt. See Martin Feldstein, Argentina’s Fall:

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Lessons from the Latest Financial Crisis, 81 FOREIGN AFF. 8 (2002). Beginning in 2002, holders

of the bonds, including the fourteen plaintiffs-appellees in this action, filed eight putative class

actions and eventually moved for class certification.

       Argentina resisted class certification on the ground (among others) that because

overlapping counsel represented the eight classes, conflicts of interest existed with respect to the

apportionment of any monetary judgments that might be awarded. The district court granted

class certification, concluding straightforwardly that the requirements of Rule 23 had been met.

The district court concluded that because of the substantial improbability that judgment creditors

could ever reach assets belonging to Argentina, the possibility of real conflicts over the allocation

of recoveries was “highly speculative.” See Foreign Sovereign Immunities Act, 28 U.S.C. §§

1604 (stating that a foreign state is “immune from the jurisdiction of the courts of the United

States and of the States” unless one of several statutorily defined exceptions applies). The court

stated that if, at a later date, the conflict became more immediate, it could

be revisited. Accordingly, the court certified eight classes of plaintiffs who purchased bonds

prior to the date the class actions were filed and who held them continuously until the time of

final judgment. The court appointed three firms as co-lead counsel in the eight cases.

       Plaintiffs subsequently moved for summary judgment. No significant questions existed

concerning liability because it was clear that Argentina had defaulted on the bonds and owed

money to the bondholders. Complicated questions existed, however, as to which bondholders

were class members and as to how much each class member could recover. Class members

bought at different times. Some class members purchased their bonds from Argentina, while

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others bought their bonds in the secondary market. Some class members accelerated their bonds,

while others did not.

       Because of these complexities, class counsel contended that the district court had the

authority to award aggregate judgments based on reasonable estimates of the total amount of

damages the classes might ultimately recover. Accurate aggregate damages calculations could be

arrived at, class counsel argued, with the assistance of expert testimony, particularly where, as

here, a large proportion of the relevant information concerning the bonds could come from

public filings. Once these estimations were made and the judgments were entered, class

members could apply to receive individualized awards. Each would be required to establish that

they continuously held their bonds and to prove the amount of their claim. Should this approach,

for any reason, prove unworkable, Rule 60(b) would, according to class counsel, permit the court

to revisit its previously authorized procedures. This approach, class counsel argued, would

afford some possibility of relief to the many holders of small claims who lacked the incentive or

ability to pursue claims individually.

       Argentina, on the other hand, took the position that aggregate judgments were

inappropriate because they would lead to bloated, inaccurate judgments based on insufficient

information that could not be squared with Rule 23 or Rule 60(b). Just as in any other case,

Argentina argued, judgments in class actions such as these actions must be established by

individualized proof, not by global estimates based on expert opinions.

       The district court agreed with class counsel. It concluded that it had the “power and



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discretion” to enter aggregate judgments in each case and was inclined to do so because they

were based on “very good estimates.” The court also noted that although the estimates were

high, they could be revisited under Rule 60(b). Accordingly, the court granted plaintiffs

summary judgment and agreed to enter aggregate class judgments in accordance with their

estimates.1 However, the district court did not explain the basis for its calculations. This appeal

followed.

       If the district court has applied the proper legal standards in deciding whether to certify a

class, we review for abuse of discretion. Caridad v. Metro-North Commuter R.R., 191 F.3d 283,

291 (2d Cir. 1999), overruled on other grounds by Miles v. Merrill Lynch & Co. (In re Initial

Pub. Offering Sec. Litig.), 471 F.3d 24, 40 (2d Cir. 2006); accord Parker v. Time Warner Entm’t

Co., 331 F.3d 13, 18 (2d Cir. 2003).

                                          DISCUSSION

       In order to qualify for class certification under Rule 23(b)(3), class counsel must satisfy

four basic requirements: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of

representation. If these criteria are met, the court must decide whether common questions of law

or fact predominate and whether a class action is the superior means of adjudicating the

controversy fairly and efficiently. Fed. R. Civ. P. 23(b)(3). The district court held that the eight

classes satisfied Rule 23(b)(3)’s requirements. On appeal, Argentina contends that the eight


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         The court entered judgments in the following amounts: Seijas I, $172,066,060.00;
Seijas II, $473,393,190.00; Castro, $242,077,820; Hickory Securities, Ltd., $215,975,000.00;
Azza I, $332,980,312.00; Azza II, $543,869,875.00; Puricelli, $95,253,940.00; and Chorny,
$167,459,484.00.

                                                  5
classes fail to satisfy Rule 23(b)(3)’s adequacy of representation, predominance, and superiority

requirements. We treat each of these challenges in turn.

        First, the representative parties must fairly and adequately protect the interests of the

class. This inquiry, in part, considers the competency of class counsel and the existence of

conflicts that might impair its representation. Amchem Prods., Inc. v. Windsor, 521 U.S. 591,

626 n.20 (1997). Argentina argues that serious conflicts of interest exist because lead counsel

represent all eight classes, as well as individual plaintiffs in non-class actions, and all of these

plaintiffs are theoretically in competition with one another to recover on their judgments. A

number of courts have recognized the problems associated with such overlapping representation.

See Kuper v. Quantum Chem. Corp., 145 F.R.D. 80, 83 (S.D. Ohio 1992); see also Jackshaw

Pontiac, Inc. v. Cleveland Press Publ'g Co., 102 F.R.D. 183, 192 (N. D. Ohio 1984); Sullivan v.

Chase Inv. Servs., 79 F.R.D. 246, 258 (N.D. Cal.1978); cf. Dietrich v. Bauer, 192 F.R.D. 119,

126 (S.D.N.Y 2000) (rejecting an argument that counsel was improperly conflicted because “the

Court is not presented with a situation in which counsel simultaneously represents classes in

parallel litigations seeking to tap the same pool of finite assets”).

        At the time the district court granted class certification, it concluded that the potential

conflicts of interest would threaten the damages phase of the proceedings, not the liability phase.

The district court promised to revisit the damages issue if necessary, recognizing its continuing

obligation to do so. Fed. R. Civ. P. 23(c)(1). We have no doubt that the district court will

continue to be alert to this issue in the course of subsequent proceedings and agree that the

potential conflict did not justify refusing to certify the class.

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       Second, according to Argentina, questions of law or fact common to the class members

do not predominate over questions affecting only individual members. Fed. R. Civ. P. 23(b)(3).

Rather, the only issue common among the classes’ members is liability stemming from

Argentina’s default. Class certification to resolve this issue is “pointless,” Argentina claims,

because it concedes that it has not paid its external debt. However, Argentina’s concession does

not dispose of the issue. See Augustin v. Jablonksy (In re Nassau County Strip Search Cases),

461 F.3d 219 (2d Cir. 2006). In In re Nassau County, we considered whether defendants’

concession of liability on issues common to a class eliminated that issue from predominance

analysis. Id. at 227-28. We held that it did not, reasoning that even resolved questions of

liability implicate whether a putative class shares a common nucleus of facts. Id. at 228.

       Argentina also argues that the damages to which each class member is entitled is an

individual, not a common, question. However, it is well-established that the fact that damages

may have to be ascertained on an individual basis is not sufficient to defeat class certification.

McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 231 (2d Cir. 2008). Accordingly, the district

court did not abuse its discretion by finding that plaintiffs satisfied Rule 23(b)(3)’s predominance

requirement. Furthermore, the hunt for assets capable of satisfying Argentina’s obligations to the

plaintiffs is at present a predominant concern and is common to all the members of all the

classes.

       Third, Argentina argues that plaintiffs fail to satisfy the “superiority” prong of Rule

23(b)(3). However, the district court correctly determined that proceeding individually would be

prohibitive for class members with small claims. In such circumstances, the class action device

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is frequently superior to individual actions. With the reservation that the certification of the

classes may be either altered or terminated at future stages of the litigation, we see no reason

why, for the time being, proceeding by class action is not superior, especially given the

importance of the hunt for assets available to all the members of all the classes.

       Additionally, whether the court is likely to face difficulties managing a class action bears

on whether the proposed class satisfies the predominance and superiority requirements. Fed. R.

Civ. P. 23(b)(3)(D). Argentina argues that since many of the bonds are traded in the secondary

markets, determining the classes’ compositions raises major manageability issues. However,

manageability is an issue peculiarly within a district court’s discretion, Wal-Mart Stores, Inc. v.

Visa U.S.A. Inc. (In re Visa Check/MasterMoney Antitrust Litg.), 280 F.3d 124, 141 (2d Cir.

2001), overruled on other grounds by Miles, 471 F.3d at 40, 42, and the district court determined

that all eight classes satisfied this requirement. In any event, we see no reason to second guess

the district court’s judgment as to manageability.

       Argentina next argues that the district court erred by entering aggregate class-wide

judgments based on estimates of Argentina’s liability. In particular, Argentina argues that the

district court’s approach violated the Rules Enabling Act (the “Act”), 28 U.S.C. § 2072(b). See

McLaughlin, 522 F.3d at 231-32. The Act provides that federal rules of procedure cannot be

used to “abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2072(b).

       The district court did not explain how it calculated the class-wide awards. Nonetheless, it

acknowledged, on the record, that its estimates were likely inflated. The court reasoned that



                                                  8
granting inflated judgments was justifiable because, given Argentina’s general refusal to pay any

judgment against it, plaintiffs were unlikely to recover. However practical this approach might

have been, we conclude that it was improper. Here, as in McLaughlin:

               [S]uch an aggregate determination is likely to result in an
               astronomical damages figure that does not accurately reflect the
               number of plaintiffs actually injured by defendants and that bears
               little or no relationship to the amount of economic harm actually
               caused by defendants. This kind of disconnect offends the Rules
               Enabling Act, which provides that federal rules of procedure, such
               as Rule 23, cannot be used to “abridge, enlarge, or modify any
               substantive right.” 28 U.S.C. § 2072(b).


See McLaughlin, 522 F.3d at 231.

       Estimating gross damages for each of the classes as a whole, without using appropriate

procedures to ensure that the damages awards roughly reflect the aggregate amount owed to class

members, enlarges plaintiffs’ rights by allowing them to encumber property to which they have

no colorable claim. Id.; see also Eisen, 479 F.2d at 1019; Molski v. Gleich, 318 F.3d 937, 954

(9th Cir. 2003); Cimino v. Raymark Indus., Inc., 151 F.3d 297, 312 n.30 (5th Cir. 1998). For

these reasons, we vacate the district court’s judgments. We remand so that it can, using the

variety of tools available for assistance, consider alternative approaches that will set damages

awards that more closely reflect the losses class members experienced.

                                         CONCLUSION

       The judgments of the district court are affirmed in part and remanded in part for further

proceedings consistent with this Opinion.



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