     16-1229
     Barboni v. Republic of Argentina

                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                  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 ASUMMARY ORDER@). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   22nd day of December, two thousand sixteen.
 5
 6   PRESENT: DENNIS JACOBS,
 7            ROSEMARY S. POOLER,
 8            PETER W. HALL,
 9                          Circuit Judges.
10
11   - - - - - - - - - - - - - - - - - - - -X
12   MARCELLO BARBONI,
13            Plaintiff-Appellant,
14
15                -v.-                                           16-1229
16
17   THE REPUBLIC OF ARGENTINA,
18            Defendant-Appellee.
19
20   - - - - - - - - - - - - - - - - - - - -X
21
22   FOR APPELLANT:                                 Robert J. Gaudet, Jr., RJ
23                                                  Gaudet & Associates LLC,
24                                                  Seattle, WA.
25
26                                                  Jenik Radon, Radon Law
27                                                  Offices, New York, NY.


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 1
 2   FOR APPELLEE:                     Carmine D. Boccuzzi, Cleary
 3                                     Gottlieb Steen & Hamilton
 4                                     LLP, New York, NY.
 5
 6        Appeal from an order of the United States District Court
 7   for the Southern District of New York (Griesa, J.).

 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
 9   DECREED that the appeal be DISMISSED for lack of appellate
10   jurisdiction.

11        Marcello Barboni (“Barboni”) appeals from an interlocutory
12   order of the United States District Court for the Southern
13   District of New York (Griesa, J.), denying his request for a
14   preliminary injunction or, in the alternative, a restricting
15   order to bar the Republic of Argentina (“Argentina”) from
16   communicating or engaging in individual settlements with
17   certain of its creditors. We assume the parties’ familiarity
18   with the underlying facts, the procedural history, and the
19   issues presented for review.

20        Barboni filed this putative class action in July 2006
21   seeking to represent certain owners of interests in defaulted
22   bonds issued by Argentina. In May 2009, the district court
23   certified the following class pursuant to Fed. R. Civ. P.
24   23(b)(3), naming Barboni as lead plaintiff:

25            All persons who, from July 7, 2006 until the date of
26            final judgment in this Court, have continuously held
27            beneficial interests in the bond issued by the
28            Republic of Argentina with ISIN XS0076397248, having
29            maturity date of May, 2004 and coupon rate of LIBOR
30            + 1.6 percent (the “Bond”). Excluded from the class
31            are the Republic, all persons or entities that have
32            initiated separate proceedings –- including, but not
33            limited to, through individual claims asserted in this
34            Court or through any other dispute resolution
35            mechanisms (e.g. arbitration proceedings) –- based on
36            alleged ownership of beneficial interests in the Bond,
37            and all persons or entities that tendered their
38            beneficial interests in the Bond in the exchange offer


                                   2
 1            offered by Defendant pursuant to a Prospectus dated
 2            December 27, 2004 and the Prospectus Supplement dated
 3            January 10, 2005.

 4   App’x at 86.

 5        In February 2016, Argentina issued a press release
 6   announcing a proposed framework and specific procedures for
 7   settling the claims of all holders of defaulted Argentine bonds
 8   (including, but not limited to, those who could qualify for the
 9   Barboni class). Barboni responded with a motion for a
10   preliminary injunction pursuant to Fed. R. Civ. P. 65 or a
11   restricting order pursuant to Fed. R. Civ. P. 23(d), which the
12   district court denied.

13        Barboni seeks appellate review of the district court’s
14   order, and predicates appellate jurisdiction on 28 U.S.C. §§
15   1291 and 1292(a)(1). Neither provision serves.

16        1. The denial of Barboni’s request for a preliminary
17   injunction is not reviewable under 28 U.S.C. § 1292(a)(1).
18   Under section 1292(a)(1), “the courts of appeals shall have
19   jurisdiction over appeals from: (1) interlocutory orders of the
20   district courts . . . refusing or dissolving injunctions[.]”
21   However, the requested injunctive relief must be tied to the
22   substantive relief sought by the complaint to qualify as an
23   “injunction” under § 1292(a)(1). See, e.g., HBE Leasing Corp.
24   v. Frank, 48 F.3d 623, 632 (2d Cir. 1995) (“An order has the
25   practical effect of granting injunctive relief within the
26   meaning of section 1292(a)(1) if it is . . . designed to accord
27   or protect some or all of the substantive relief sought by a
28   complaint[.]”) (internal quotation marks omitted); Weight
29   Watchers of Phila., Inc. v. Weight Watchers Int’l Inc., 455 F.2d
30   770, 774 (2d Cir. 1972) (interpreting § 1292(a)(1) as applying
31   only to “injunctions which give or aid in giving some or all
32   of the substantive relief sought by a complaint . . . and not
33   [to] restraints or directions in orders concerning the conduct
34   of the parties or their counsel, unrelated to the substantive
35   issues in the action, while awaiting trial” (internal quotation
36   marks omitted)). Barboni’s requested preliminary injunction
37   would have afforded no substantive relief for the breach of
38   contract claim pursued in the complaint. Rather, it seeks to


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 1   regulate the conduct of the parties and is entirely separable
 2   from the merits of Barboni’s underlying claim. Therefore, it
 3   is unreviewable under § 1292(a)(1).

 4        2. The denial of the request for a preliminary injunction
 5   or a restricting order under Rule 23(d) is not reviewable under
 6   28 U.S.C. § 1291 because it is not a “final decision” and does
 7   not fall within “that small class which finally determine claims
 8   of right separable from, and collateral to, rights asserted in
 9   the action, too important to be denied review and too
10   independent of the cause itself to require that appellate
11   consideration be deferred until the whole case is adjudicated.”
12   Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).
13   Barboni contends that the denial of relief constitutes a
14   reviewable collateral order because Argentina might settle with
15   so many potential class members as to defeat the numerosity
16   required for a class action. In Weight Watchers, however, we
17   concluded that the potential for loss of the requisite
18   numerosity for a class action still leaves the plaintiff “free
19   to prosecute [his] own individual claim.” 455 F.2d at 773.
20   Barboni likewise may continue to prosecute his individual claim
21   (as may any other individual bondholder) even if the district
22   court’s order allowed the erosion of the numerosity required
23   to maintain the class action. The fact that Barboni’s class
24   has been certified, unlike the class in Weight Watchers, does
25   not change the analysis. Regardless of certification, the
26   district court’s order does not affect the rights of Barboni
27   or other bondholders to pursue their breach of contract claims
28   against Argentina.1

29

     1
       Although a class has been certified here, no person can yet
     satisfy the class definition because there has been no final
     judgment. Therefore, there are currently no actual class
     members whose rights could be implicated by the district court’s
     order denying Barboni’s request for a preliminary injunction
     or restricting order. Furthermore, Barboni and his counsel
     have never sent any notice to potential class members nor taken
     any steps to inform potential class members of their right to
     opt out, notwithstanding that the class was certified over seven
     years ago.
                                    4
1        Accordingly, we hereby DISMISS the appeal for lack of
2   appellate jurisdiction.

3                              FOR THE COURT:
4                              CATHERINE O’HAGAN WOLFE, CLERK




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