Petersen Energia Inversora, S.A.U. v. Argentine Republic

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

PETERSEN ENERGÍA INVERSORA

S.A.U. and PETERSEN ENERGÍA,

S.A.U.,

Plaintiffs,

-against-

ARGENTINE REPUBLIC and YPF

S.A.,

Nos. 15 Civ. 2739 (LAP)

Defendants. 16 Civ. 8569 (LAP)

OPINION & ORDER

ETON PARK CAPITAL MANAGEMENT,

L.P., ETON PARK MASTER FUND,

LTD., and ETON PARK FUND, L.P.,

Plaintiffs,

-against-

ARGENTINE REPUBLIC and YPF

S.A.,

Defendants.

LORETTA A. PRESKA, Senior United States District Judge:

Before the Court is a renewed motion to dismiss the above-

captioned actions under the doctrine of forum non conveniens filed

by Defendants the Republic of Argentina (“the Republic”) and YPF

S.A. (“YPF” and, together with the Republic, “Defendants”). (See

Motion to Dismiss, dated August 30, 2019 [dkt. no. 110 in 15 Civ.

2739].)1 The motion was fully briefed as of February 7, 2020.

(See Defendants’ Memorandum of Law in Support of Motion to Dismiss

(“Def. Mem.”), dated August 30, 2019 [dkt. no. 111]; Plaintiffs’

Opposition to Defendants’ Motion to Dismiss (“Opp.”), dated

December 6, 2019 [dkt. no. 125]; Defendants’ Reply in Further

Support of Motion to Dismiss (“Reply”), dated February 7, 2020

[dkt. no. 154].)

Defendants first sought dismissal of this action in September

2016. See Petersen Energía Inversora, S.A.U. v. Argentine

Republic, No. 15 Civ. 2739 (LAP), 2016 WL 4735367 (S.D.N.Y. Sept.

9, 2016)(“Petersen I”). Then, both YPF and the Republic argued

that this Court lacked subject matter jurisdiction over the action.

The Court, however, concluded otherwise and found that it possessed

jurisdiction over the case under the Foreign Sovereign Immunities

Act (the “FSIA”). Id. at *4, *7. In addition, the Republic--but

not YPF--argued that the doctrine of forum non conveniens required

the case be brought in Argentina, not in New York. Id. at *11.

The Court rejected that argument, too, basing its decision in part

on the existence of then-pending criminal proceedings in Argentina

that centered around parties directly connected to the present

litigation. Id. Nearly three years of appeals on the FSIA issue

1 For the sake of clarity and brevity, all docket cites hereinafter,

unless noted otherwise, shall refer to the docket in Petersen

Energia Inversora, S.A.U. et al. v. Argentine Republic et al., No.

15 Civ. 2739 (LAP).

followed, including affirmance by the Court of Appeals, Petersen

Energía Inversora S.A.U. v. Argentine Republic and YPF S.A., 895

F.3d 194 (2d Cir. 2018)(“Petersen II”), and denial of certiorari

by the Supreme Court, 139 S. Ct. 2741 (2019.)

Now, this litigation has once again washed ashore in the

Southern District of New York. The Republic, this time with YPF

in tow, has accordingly attempted to reanimate the issue of forum

non conveniens. In so doing, Defendants suggest that new

circumstances have emerged since the Court’s original ruling that

counsel in favor of sending this case on a return voyage to Buenos

Aires. Those purportedly changed circumstances, however, do

little to alter the Court’s original analysis, and some new

developments--most notably, the addition of a New York-based

Plaintiff--strengthen the justification for proceeding with this

litigation in New York. Defendants additionally hinge their

renewed motion on the argument that Argentine courts maintain

“exclusive jurisdiction” over actions like this one, a fact they

say requires dismissal. In light of the Court of Appeals’ holding

in Petersen II and the fact that it appears to be rooted in a

strained reading of Argentine law, however, that argument does

little to overwhelm the considerable interest of the United States

and of New York in hosting this litigation. Consequently,

Defendants’ motion to dismiss based on the doctrine of forum non

conveniens is DENIED.

I. FACTUAL BACKGROUND

The parties’ familiarity with the facts and prior proceedings

in this litigation is here assumed. The Court will accordingly

recount the relevant facts in a summary fashion.

a. Procedural History

Original Plaintiffs Petersen Energia Inversora, S.A.U. and

Petersen Energia, S.A.U. (the “Petersen Plaintiffs”), limited-

liability companies organized under the laws of the Kingdom of

Spain, initiated this litigation in April 2015. Their complaint

primarily alleged that Defendants breached contractual obligations

arising out of YPF’s By-laws upon the Republic’s decision to

expropriate outstanding YPF shares in 2012. Specifically, the

Petersen Plaintiffs--at the time 25 percent owners of YPF--alleged

that YPF and the Republic refused to honor a contractual obligation

to offer to buy the remaining 49 percent of YPF stock after the

Republic retook control of YPF. (See generally Petersen Complaint

(“Petersen Compl.”, dated April 8, 2015 [dkt. no. 1].)

As mentioned above, in September 2015, the Republic and YPF

moved to dismiss the Petersen complaint. (See Motions to Dismiss,

dated September 8, 2015 [dkt. nos. 23, 32].) In their motions,

Defendants primarily argued that the Court lacked subject matter

jurisdiction to adjudicate the case. The Court rejected that

argument, agreeing with Plaintiffs that the Republic’s and YPF’s

actions were covered by the commercial activity exception of the

FSIA. See 2016 WL 4735367, at *7.

The Republic (but not YPF) also sought dismissal of the Petersen

action under the doctrine of forum non conveniens. See 2016 WL

4735367, at *11-12. Though the Court found that deference to the

Spain-based Petersen Plaintiffs’ choice of forum was “not at its

greatest height” because “[New York] is not home to Defendants,

Plaintiffs, or Plaintiffs' owners or receiver,” id. at *11, the

Court declined to dismiss the case. Critically, the Court found

that the Republic had failed to demonstrate that Argentina was an

adequate forum for resolution of the action. Id. This conclusion

was rooted primarily in the fact that the Republic had filed a

criminal complaint against King & Spalding--counsel for the

Petersen Plaintiffs--and Burford Capital--a litigation finance

firm that owned the Petersen Plaintiffs’ stake in the litigation-

-in connection with a separate case. Id. The Court also ruled

that the Republic had failed to establish that the balance of

private and public interest factors central to any forum non

conveniens motion “tilt[ed strongly” in their favor. Id. at *12.

Shortly after the Court’s denial of the original motion to

dismiss, Plaintiffs Eton Park Capital Management, L.P., Eton Park

Master Fund, Ltd., and Eton Park Fund, L.P. (together, the “Eton

Park Plaintiffs,” and with the Petersen Plaintiffs, the

“Plaintiffs”) filed their own lawsuit against the Republic and

YPF. (See Eton Park Complaint, dated November 3, 2016 [dkt. no.

1 in 16 Civ. 8569].) At the time of the filing, the Eton Park

Plaintiffs--a New-York based investment management firm and two of

its constituent funds--were the third-largest shareholder of YPF

stock. (Id. ¶ 5.) Similar to the Petersen Plaintiffs, the Eton

Park Plaintiffs alleged that the Republic and YPF breached a

contractual obligation in the YPF By-laws to initiate a tender

offer for all outstanding shares of YPF in the wake of the

Republic’s decision to take control of YPF. (Id. ¶ 6.)

Following the Court’s 2016 ruling, the Eton Park action was

stayed pending Defendants’ appeal of the Court’s ruling in the

Petersen action that it possessed subject-matter jurisdiction

pursuant to the FSIA. (See Stay Order, dated August 16, 2017 [dkt.

no. 21 in 16 Civ. 8569].) The Petersen ruling was eventually

affirmed by the Court of Appeals. See Petersen II, 895 F.3d 194.

Following the Court of Appeals’ affirmance of the 2016 decision,

Defendants sought a writ of certiorari from the Supreme Court.

Both the Eton Park and the Petersen actions were again stayed

pending the Supreme Court’s ruling on that petition. (See Order

Staying Actions, dated May 1, 2019 [dkt. no. 84].) The Supreme

Court denied certiorari in June 2019, 139 S. Ct. 2741 (2019, and

the stay on the litigation was lifted shortly thereafter. (See

ECF Minute Entry Lifting Stay, dated June 25, 2019.) After

obtaining leave from this Court, Defendants filed their renewed

motion to dismiss on August 30, 2019. (See dkt. no. 110.)

b. Relevant Provisions of the Prospectus and By-Laws

Because Defendants’ renewed motion to dismiss focuses

extensively on the YPF IPO Prospectus and the YPF By-laws, the

Court will briefly summarize those materials here.

YPF, an Argentine energy company, was wholly owned and operated

by the Republic until 1993. (See Petersen Compl. ¶ 2.) In June

1993, the Republic decided to privatize the company through an IPO

of YPF’s voting stock, shares of which were listed and secondarily

traded through American Depository Receipts (“ADRs”) on the New

York Stock Exchange (“NYSE”). (Id. ¶¶ 2, 13.)

The Republic advertised the opportunity to invest in YPF to

American investors through YPF’s U.S. IPO Prospectus. (See 1993

YPF IPO Prospectus (“Prospectus”), dated June 24, 1993 [dkt. no.

112-2].) By its own terms, the Prospectus was “a brief summary of

certain significant provisions of the [YPF By-laws] and of

Argentine law” that did “not purport to be complete” and that was

“qualified by reference to the By-laws . . . and by applicable

Argentine law.” (Id. at 79.) The YPF By-laws were attached to

the Prospectus as an exhibit. (See By-laws of YPF Sociedad Anonima

(“By-laws”) [dkt. no. 112-2] at 261-289.)

Contained in the Prospectus is a short provision titled

“Exclusive Jurisdiction.” (Prospectus at 88 (the “Exclusive

Jurisdiction Provision”).) The Exclusive Jurisdiction Provision

cautions that “[t]he By-laws are governed by Argentine law and any

action relating to enforcement of the By-laws or a shareholder's

rights thereunder is required to be brought in an Argentine court.”

(Id.) The By-laws, however, contain no such provision.

II. DISCUSSION

a. Procedural Posture

As a threshold matter, the parties dispute the exact nature

of the instant motion. Plaintiffs assert that the Republic faces

a “doubly demanding burden on [its] motion” because it is in

actuality a motion for reconsideration of the Court’s 2016 forum

non conveniens ruling disguised as a motion to dismiss. (Opp. at

10.) “Reconsideration is an extraordinary remedy to be employed

sparingly,” Alfandary v. Nikko Asset Mgmt. Co., 2019 WL 2525414,

at *2 (S.D.N.Y. June 19, 2019) (internal quotation marks and

citation omitted), and, if the Court were to agree with Plaintiffs’

contention, it would require the Republic to meet the heavy burden

of showing “an intervening change of controlling law, the

availability of new evidence, or the need to correct a clear error

or prevent manifest injustice” with respect to the original

decision, Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL

Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013) (internal

quotation marks and citation omitted). Defendants counter that

they have filed a “renewed motion with the Court’s leave” that

should not be subjected to the harsher standards reserved for

motions for reconsideration. (Reply at 5-6 n.5 (citing Malibu

Media, LLC v. Doe, 2015 WL 4271825, at *1 n.1 (S.D.N.Y. July 14,

2015).)

The Court will not cast the present motion as one seeking

reconsideration of the 2016 ruling. First, the substance of

Defendants’ motion does not mesh with any traditional notion of

what constitutes a motion for reconsideration. The gravamen of

Defendants’ motion is that materially changed circumstances since

the original ruling have given rise to a new affirmative case for

dismissal based on forum non conveniens, not that the Court

overlooked controlling case law or critical evidence that could

alter the original analysis of the forum non conveniens issue from

several years ago.2 Cf. Shrader v. CSX Transp., Inc., 70 F.3d 255,

257 (2d Cir. 1995) (“[R]econsideration will generally be denied

unless the moving party can point to controlling decisions or data

that the court overlooked—matters, in other words, that might

reasonably be expected to alter the conclusion reached by the

court.”). Plaintiffs have suggested that Defendants are seeking

to “modify” a prior order of the Court. (Opp. at 10 n.3.) But

the Court’s original decision on the forum non conveniens issue

2 (See, e.g., Def. Mem. At 9 (“While the Court previously denied

Argentina’s motion to dismiss for forum non conveniens, now,

changed circumstances, the more developed fact and expert record

and newly asserted defenses warrant dismissal of these Actions.”)

was based on the record before it at the time, and it would be

impossible for the Court to have overlooked circumstances that

have emerged since its initial ruling. Defendants are thus not

trying to “modify” anything so much as they are providing a new

record, and thus new grounds, for the Court to evaluate with

respect to the issue of forum non conveniens.3

Second, the Court has historically treated the present motion

as a renewed motion to dismiss. For example, the Court granted

Defendants leave to file a “renewed forum non conveniens motion.”

(See Reply at 5-6 n.5.) Then, at a pretrial conference held before

the Court on July 11, 2019, the Court requested that the parties

file a briefing schedule for such a motion. (See Letter on

Briefing Schedule, dated July 23, 2019 [dkt. no. 104].) The Court

3 Despite this, Plaintiffs appear to view as determinative

Defendants’ statement in their initial request for a pre-motion

conference that “[m]aterially changed circumstances warrant

reconsideration of this Court’s initial determination not to

invoke forum non conveniens.” (See Letter Requesting Pre-Motion

Conference, dated June 24, 2019 [dkt. no. 86] (emphasis added).)

This appears to be imprecise language by Defendants rather than a

formal request for reconsideration. Immediately following the

statement in question is a citation to In re Optimal U.S. Litig.

See 886 F. Supp. 2d 298 (S.D.N.Y. 2012). In that decision, this

Court granted the defendants’ second, i.e., renewed, motion to

dismiss based on forum non conveniens, one which argued--as

Defendants do here--that the balance of relevant interests had

shifted since the district court had denied defendants’ original

forum non conveniens motion. Id. at 302. Even Plaintiffs would

likely admit that this would be an odd case to cite if Defendants

were seeking leave to file a motion for reconsideration of the

2016 ruling.

entered a proposed order--filed jointly by the parties--setting a

briefing schedule for that renewed motion to dismiss a day later.

(See Order on Briefing Schedule, dated July 24, 2019 [dkt. no.

106].) It would be an inequitable bait-and-switch to grant

Defendants leave to file their renewed motion to dismiss only to

treat it as a motion for reconsideration once the motion was

finally sub judice. The Court will accordingly not apply the

stricter standard reserved for motions for reconsideration to

Defendants’ motion. In any event, in light of the Court’s

conclusion, the stricter standard reserved for reconsideration

would yield the same result.

Similarly, the Court does not find that Defendants’ arguments

are precluded by the law of the case. “The law of the case doctrine

commands that when a court has ruled on an issue, that decision

should generally be adhered to by that court in subsequent stages

in the same case unless cogent and compelling reasons militate

otherwise.” Johnson v. Holder, 564 F.3d 95, 99 (2d Cir. 2009)

(internal quotation marks and citation omitted). However,

application of the law of the case is discretionary, Furlong v.

Shalala, 238 F.3d 227, 235 n.4 (2d Cir. 2001)(collecting cases),

and, as Plaintiffs themselves note, courts may choose to revisit

an issue where new evidence is available, (Opp. at 10 (quoting

Virgin Atl. Airways, Ltd. V. Nat’l Mediation Bd., 956 F.2d 1245,

1255 (2d Cir. 1992).). Here, numerous new factual developments

since the original decision counsel in favor of the Court’s

revisiting the forum non conveniens issue.

For the foregoing reasons, the Court will consider the

arguments raised in Defendants’ forum non conveniens motion anew.

b. Forum Non Conveniens

The doctrine of forum non conveniens “finds its roots in the

inherent power of the courts to manage their own affairs so as to

achieve the orderly and expeditious disposition of cases.” In re

Arbitration between Monegasque De Reassurances S.A.M. v. Nak

Naftogaz of Ukraine, 311 F.3d 488, 497 (2d Cir. 2002)(internal

quotations and citation omitted). As such, “[t]he doctrine of

forum non conveniens is a discretionary device permitting a court

in rare instances to dismiss a claim even if the court is a

permissible venue with proper jurisdiction over the claim.” Carey

v. Bayerische Hypo–Und Vereinsbank AG, 370 F.3d 234, 237 (2d Cir.

2004). Because of federal courts’ “virtually unflagging

obligation” to exercise its own jurisdiction, Mata v. Lynch, 135

S. Ct. 2150, 2156 (2015), however, “dismissal for forum non

conveniens is the exception, not the rule,” In re Lloyd’s American

Trust Fund Litig., 954 F. Supp. 656, 673 (S.D.N.Y. 1997)(citations

omitted).

i. The Expedited Atlantic-Marine Analysis

At the outset, the Court will not evaluate this case under

the abbreviated forum non conveniens analysis set forth by the

Supreme Court’s ruling in Atlantic Marine Const. Co. v. U.S. Dist.

Court for W. Dist. Of Texas. (See Def. Mem. at 14 n.6 (citing 571

U.S. 63 (2013); see also Reply at 6-8.) In that case, the Supreme

Court found that a “valid forum-selection clause requires district

courts to adjust their [forum non conveniens] analysis,” id. at

63, because “[w]hen parties have contracted in advance to litigate

disputes in a particular forum, courts should not unnecessarily

disrupt the parties' settled expectations”, id. at 66. Thus, a

valid forum-selection clause would be dispositive as to the

appropriate forum where it “was reasonably communicated to the

party resisting enforcement,” “has mandatory force,” and “covers

the claims and parties involved in the dispute.” Arial Techs. LLC

v. Aerophile S.A., No. 14 Civ. 4435 (LAP), 2015 WL 1501115, at *2

(S.D.N.Y. Mar. 31, 2015).

Here, Defendants have argued that the Exclusive Jurisdiction

clause of the 1993 YPF IPO Prospectus “readily satisfies” the

elements set forth in Atlantic Marine. (Def. Mem. at 14 n.6.)

This argument relies chiefly on the assertion that the Atlantic

Marine analysis does not require that the Prospectus be an

enforceable contract, just that it “clearly communicate[s] the

exclusive Argentine forum for disputes.” (Reply at 7 n.7.)

Presumably, Defendants have no choice but to contend as such,

because the YPF By-Laws, i.e., the document that formally governs

the relationship between Plaintiffs and Defendants, contain no

forum-selection clause. (See Opp. at 14.)

The Court rejects this argument. First, it sidesteps the

reasoning underpinning Atlantic Marine. There, the Supreme Court

was clear that forum-selection clauses are presumptively

enforceable precisely because they were “bargained for” by the

parties and present in a valid contract. 571 U.S. at 63.

Defendants cite no case law to support their contention that a

Prospectus, which “describes a public offering of securities by an

issuer or controlling shareholder,” Gustafson v. Alloyd Co., 513

U.S. 561, 584 (1995), and the summary contents of which are

unilaterally controlled by the offering entity, is the product of

any sort of arms-length bargaining by contracting parties. Second,

the Prospectus--whether it amounts to a contract or not--by its

own terms does not govern the parties’ rights and obligations with

respect to shares of YPF, the By-laws do. (See Opp. at 14.)

Indeed, the Prospectus explicitly “does not purport to be complete”

and is “qualified by reference to the By-laws . . . and by

applicable Argentine law.” (See 1993 Prospectus [dkt. no. 112-2]

at 79.) Cf. Oliveira v. Quartet Merger Corp., 126 F. Supp.3d 424,

429-30 (S.D.N.Y. 2015)(“[R]egardless of whether the Prospectus is

a binding contractual document, it does not purport to be the

controlling document defining the rights of the securities

offered” because it “is only a summary of terms” and “does not

purport to be complete.”) And here, the YPF By-laws contain no

forum-selection clause. Accordingly, there is no compelling

justification for applying the streamlined forum non conveniens

analysis as described in the Supreme Court’s decision in Atlantic

Marine.4

ii. The Irragori Forum Non Conveniens Analysis

Given the Court has declined application of Atlantic Marine’s

expedited framework, the three-step inquiry laid out by the Court

of Appeals in Iragorri v. United Technologies guides the Court’s

broad discretion in deciding whether this action should be

dismissed under the doctrine of forum non conveniens. See 274

F.3d 65 (2d Cir. 2001); see also Norex Petro. Ltd. V. Access

Indus., Inc., 416 F.3d 146, 153 (2d Cir. 2005). First, the Court

must determine the degree of deference properly afforded

Plaintiffs’ choice of forum. Second, the Court must decide whether

the “alternative forum proposed by [Defendants] is adequate to

adjudicate the parties’ dispute.” Third, the Court balances the

4 Even assuming arguendo that the YPF IPO Prospectus is subject to

the streamlined Atlantic Marine framework, the Court is skeptical

that the Exclusive Jurisdiction Provision could possibly be

“clearly communicated” for the purposes of that analysis. While

Defendants are correct that the provision is, in a literal sense,

“clearly communicated” because it is plainly featured in the body

of the Prospectus, (Def. Mem. at 14 n.6), the substance of the

provision itself may not be so because it is “qualified by

reference . . . by applicable Argentine law.” (Prospectus at 79.)

That is to say, the Exclusive Jurisdiction Provision is, like the

Prospectus itself, an incomplete summary of the obligations to be

imposed on potential YPF shareholders.

competing private and public interests implicated in the choice of

forum. Id. (citing Iragorri, 274 F.3d at 73-74).

1. Step One: Degree of Deference

A defendant who seeks refuge in the doctrine of forum non

conveniens generally bears “a heavy burden” in opposing

plaintiff’s chosen forum. Sinochem Int'l. Co. Ltd. v. Malaysia

Int'l Shipping Corp., 549 U.S. 422, 430 (2007). As the Court of

Appeals explained in Irragori, the degree of deference afforded to

a plaintiff’s chosen forum is determined on a sliding scale. “The

greater the plaintiff’s or the lawsuit’s bona fide connection to

the United States and to the forum of choice and the more it

appears that considerations of convenience favor the conduct of

the lawsuit in the United States, the more difficult it will be

for the defendant to gain dismissal for forum non conveniens.”

274 F.3d at 71-72. On the other side of the coin, “the more it

appears that the plaintiff’s choice of a U.S. forum was motivated

by forum-shopping reasons . . . the less deference the plaintiff’s

choice commands[.]” Id. Defendants, as they must, have argued

that “no [Plaintiff] . . . has any meaningful connection to the

Southern District.” (Reply at 16.)

Of course, when ruling on the Republic’s original forum non

conveniens motion in 2016, this Court found that “deference to

Plaintiffs’ choice of forum [was] not at its greatest height.”

See 2016 WL 4735367, at *11. The Court reached that conclusion

because New York was not home to the Spain-based Petersen

Plaintiffs, i.e., the sole plaintiffs at the time of that decision.

Id. (New York “is not home to Defendants, Plaintiffs, or

Plaintiffs' owners or receiver.”). Now, circumstances have

materially changed, as the Court is “jointly considering

Defendants’ motion to dismiss the parallel claims brought by both

Petersen and New York-based investment fund Eton Park.” (Opp. at

11.)

While the Court’s original conclusion with respect to the

Petersen Plaintiffs still holds true,5 the Court finds that

heightened deference is due to the Eton Park Plaintiffs’ choice of

New York as a forum. First, Eton Park Capital Management--the

investment adviser to two Eton Park funds that are also plaintiffs

in this action--is at home in New York, where it has maintained

its principal place of business. (Opp. at 11.) Defendants give

this fact short shrift, arguing that Eton Park is “not at home in

5 Contrary to Defendants’ assertions, this does not compel the

conclusion that the Petersen Plaintiffs’ choice of a New York forum

receives no deference. See, e.g., R. Maganlal & Co. v. M.G. Chem.

Co., 942 F.2d 164, 168 (2d Cir. 1991)(“[R]educed weight is not an

invitation to accord a foreign plaintiff's selection of an American

forum no deference since dismissal for forum non conveniens is the

exception rather than the rule.”) (internal quotation marks and

citation omitted); see also Metito (Overseas) Ltd. V. Gen. Elec.

Co., No. 05 Civ. 9478 (GEL), 2006 WL 3230301, at *3 (S.D.N.Y. Nov.

7, 2006)( “Even assuming, as defendant argues, that plaintiff was

motivated in part by forum shopping . . . that would not mean that

plaintiff's forum choice is entitled to ‘no’ deference, but rather

to ‘less' deference.”).

New York” because “[o]ne of the Eton Park Funds is a Cayman Islands

entity,. . . the other is a Delaware limited partnership,” and the

investment manager is “a Delaware limited partnership.” (Def.

Mem. at 11.) The practice of courts in this circuit, however, has

been decidedly less formalistic. See, e.g., Bloomberg Finance

L.P. v. UBS AG, 358 F. Supp.3d 261, 265, 267 (S.D.N.Y.

2018)(“Because Bloomberg has its principal place of business in

New York City, its choice to file suit in this Court is owed great

deference”); see also Int’l Equity Inv., Inc. v. Cico, 427 F.

Supp.2d 503, 505 (S.D.N.Y. 2006)(lending “substantial weight” to

choice of forum where plaintiffs brought action “in the district

in which they are headquartered”); see also Motown Record Co.,

L.P. v. iMesh.com, Inc., No. 03 Civ. 7339 (PKC), 2004 WL 503720,

at *6 (S.D.N.Y. Mar. 12, 2004). Consistent with this practice, the

Eton Park Plaintiffs’ place of registration should not serve as a

basis for affording lesser deference to their choice of forum.6

Instead, because their principal place of business is in New York,

their choice of New York as a forum should receive substantial

deference.

6 In addition, Eton Park’s ongoing wind-down does not compel lesser

deference to its choice of forum. (See Reply at 16.) For one

thing, “the wind-down is not complete and is not expected to finish

before this case is resolved.” (Opp. at 11 n.5.) For another,

that Eton Park is winding down does not mean that it has ceased to

operate out of New York City, which is the critical fact in this

analysis.

Second, this litigation plainly has a bona fide (and

significant) connection to New York. As Plaintiffs note:

In 1993 Argentina accessed the international capital markets

by selling a majority stake in its national oil and gas

company, YPF . . . It engaged in [IPOs] on several stock

exchanges worldwide, notably including in the United States

on the New York Stock Exchange . . . [B]etween late 2010 and

early 2012, U.S.-based investment fund Eton Park purchased

approximately 11.95 million [New York Stock Exchange]-listed

shares of YPF stock, at a total cost of approximately $448

million . . . Eton Park traders located in New York executed

the trades to acquire this YPF stock.

(See Opp. at 3-5.) Put differently: the Eton Park action arose

from New York-based traders--acting on instructions from a New

York-based investment firm--purchasing shares of YPF stock that

were advertised to New-York based investors and sold (through ADRs)

on the New York Stock Exchange. This is thus a far cry from a

case where “the litigation itself . . . is devoid of any

significant connection to New York,” such that it would be fair to

assume that “the New York Forum was selected for tactical

purposes.” In re Fosamax Prod. Liab. Litig., No. 06 Civ. 5087

(JFK), 2009 WL 3398930, at *3 (S.D.N.Y. Oct. 21, 2009).7

7 In arguing that the Eton Park Plaintiffs possess no meaningful

connection to New York, Defendants suggest that this Court observed

in Petersen I that “all of the relevant facts ‘took place in

Argentina.’” (Def. Mem. at 12 (quoting 2016 WL 4735367, at *5).)

This misses the mark for two reasons. First, the Court never found

that “all” the relevant facts took place in Argentina. Second,

the Court held that “the disputed acts,” i.e., Defendants’ alleged

breaching activity, took place in Argentina for purposes of the

FSIA’s commercial activity exception. Id. at *4-5. That does not

mean that the litigation could not possess a significant connection

to New York for purposes of a forum non conveniens analysis.

Defendants further argue that whatever deference Plaintiffs

might be due is undermined by the fact that they are “sophisticated

entities that sought a business relationship with an Argentine

corporation.” (Reply at 16.) Whatever the superficial appeal of

this argument, it relies on a questionable read of the cited case

law. In support, Defendants rely primarily on the Court of

Appeals’ decision in Carey v. Bayerische Hypo-Und Vereinsbank AG,

which they suggest stands for the proposition that little deference

is due to a plaintiff’s choice of forum where the plaintiff

“voluntarily entered into the business relationship giving rise to

the suit.” (Reply at 17 (citing 370 F.3d 234, 238 (2d Cir. 2004).)

That case involved a United States citizen who, while living in

Germany, “voluntarily entered into a contract [with a German bank]

to purchase and finance an apartment unit in Germany.” 370 F.3d

at 238. The plaintiff, after moving back to the United States,

sued the German bank in the Southern District of New York for

recision of the purchase agreement, alleging she was fraudulently

induced to enter into it. Id. at 236. The Court of Appeals

affirmed this Court’s dismissal on the grounds of forum non

conveniens, noting the “transactions in Germany reasonably give

rise to the expectation on all sides that any litigation arising

from them will be conducted in Germany.” Id. at 238.

Carey is not applicable for several key reasons. First,

Carey’s holding is not that any plaintiff voluntarily conducting

business internationally is automatically entitled to lesser

deference with respect to her choice of forum. Indeed, the Court

of Appeals in Carey specifically emphasized that it was not

“retreat[ing]” from “the presumptive validity of a United States

resident's choice of a United States forum for litigation.” Id.

Second, and relatedly, the Court of Appeals’ holding stemmed in

part from the fact that no aspect of the litigation in Carey had

even a remote connection to New York. As discussed above, the

plaintiff entered the contract while living in Germany, the

contract was for German real property, the contract itself (unlike

the By-laws here) mandated that any suit be filed in a German

Court, and the plaintiff--once back in the United States--

maintained her residence in Texas. Id. at 236. Here, a

significant portion of the events giving rise to the litigation

took place in New York and involved a New York-based business.

See supra at 19. Third, the plaintiff in Carey affirmatively

sought out a German bank while living in Germany in order to obtain

a mortgage on German real property. Here, however, the

solicitation was a two-way street. After all, it was Argentina

and YPF who aggressively “sought out” American investors to buy a

stake in YPF after the 1993 privatization.8 It would be strange

8 The Court of Appeals’ ruling in Petersen II crystallizes this

fact. See, e.g., Petersen II, 895 F.3d at 199 (“Argentina and YPF

(Footnote continues on following page.)

for the Court to afford lesser deference to the Eton Park

Plaintiffs’ choice of forum while ignoring that the Republic and

YPF solicited an investment from Eton Park in the first place.

Accordingly, the Court concludes that substantial deference

should be afforded to Plaintiffs--in particular Eton Park’s--

choice of forum.

2. Step Two: Existence of an Adequate Alternative

Forum

“An alternative forum is ordinarily adequate if the

defendants are amenable to service of process there and the forum

permits litigation of the subject matter of the dispute.” In re

Arbitration between Monegasque De Reassurances S.A.M. v. Nak

Naftogaz of Ukraine, 311 F.3d 488, 499 (2d Cir. 2002) (citations

omitted). As the Court pointed out in its 2016 decision, “[c]ourts

generally have found Argentina to be an adequate alternative

forum.” See 2016 WL 4735367, at *11 (collecting cases).

The Court departed from that traditional wisdom in 2016

because of the Republic’s pending criminal investigation of King

& Spalding and Burford Capital. See supra at 5. That

investigation has since been dismissed, (Def. Mem. 8, 20), which

(Continued) took a number of steps to entice investors to

participate in the IPO and thereby ensure its success”); id. at

200 (“Argentina and YPF touted these protections in the prospectus

filed with the SEC in connection with the IPO”); id. (“Argentina's

marketing efforts worked”).

obviates the Court’s concern that there existed a “well-founded

fear of prosecution of parties' counsel” in connection with those

specific proceedings, 2016 WL 4735367, at *11. Plaintiffs continue

to challenge Argentina’s adequacy based on a new development: that

the “Argentine authorities are currently investigating Petersen,

its receiver, and Burford in connection with this very case.”

(Opp. at 1 (emphasis in original).) As is so often the case,

however, the sequel is inferior to the original. A review of the

parties’ sworn submissions reveals a number of holes in Plaintiffs’

story.

The most prominent issue with Plaintiffs’ argument is that

Plaintiffs’ own expert acknowledges that he was not “privy to all

the details of the investigation” and did not conduct a complete

review of the investigative file. (See Declaration of Alejandro

Freeland (“Freeland Decl.”), dated December 6, 2019 [dkt. no. 131]

at ¶¶ 2, 14; see also Opp. at 15.) This is despite the fact that

the Petersen Plaintiffs have had complete access to the file since

November 2018. (See Reply at 11.) By contrast, Defendants’ expert

reviewed all 8,000 pages of the investigative record associated

with the relevant proceedings. (Reply at 2.) Whatever merit there

may be to Plaintiffs’ argument, the Court is not persuaded that

Argentina is an inadequate forum based on Plaintiffs’ expert’s

conclusions about an investigatory record that he did not review

in its entirety.

Moreover, the Court agrees with Defendants that there is “no

evidence of any improper conduct by Argentine executive or judicial

officials, or by YPF” in the context of the investigation. (Reply

at 11.) Many of Plaintiffs’ assertions about the investigation,

i.e., that it is being wielded as a litigation tactic, (Opp. at

17), appear to be rooted in speculation by their expert. (See,

e.g., Freeland Decl. ¶ 4 (“I find it very difficult to believe

that Argentine authorities at the highest level of government have

been unaware of this active investigation.”); id. ¶ 9 (describing

“strong indication that there are political implications to the

investigation”); id. ¶ 10 (noting that “judges are susceptible to

significant pressure from the Executive and Legislative

Branches.”). Indeed, if anyone is leveraging the investigation

for a litigation advantage, it seems to be Plaintiffs. As

Defendants note: the investigation began in 2006, “Petersen has

appeared before [the presiding Argentine judge] multiple times,”

has “request[ed] various types of relief [that have been granted],”

and has “never once questioned [the Judge’s] impartiality until

now.” (Reply at 10.) Given Plaintiffs’ active participation in

the proceedings, the Court cannot find that Plaintiffs have the

same “well-founded fear” of proceeding in Argentina that they did

several years ago.

Plaintiffs also seek to undercut Argentina’s adequacy by

pointing to the outcome of the recent Argentine election, which

ushered into power the party of former President Cristina Fernandez

de Kirchner.9 Plaintiffs’ argument here is essentially that what

they coin “Kirchnerism”--a core tenet of which is apparently the

“rejection of judicial independence”--will inexorably affect the

impartiality of the Argentine judiciary. (Opp. at 19.) In support

of this thesis, Plaintiffs marshal a number of supporting examples,

including:

• The impeachment of five (of nine) sitting Argentine Supreme

Court justices in 2003, as orchestrated by former President

Nestor Kirchner. (Opp. at 19.)

• A passage in a book by former President Cristina Kirchner

boasting that the 2003 impeachment served to “enhance the

authority of the Legislative and Executive branches of

government.” (Id.)

• Former President Cristina Kirchner’s “Plan to Democratize

the Judiciary,” which was a court-packing plan that would

establish a new appellate court to review decisions by

Argentine appeals courts and whose judges would be

appointed by Kirchner herself. (Id.)

• Comments by new President-Elect Alberto Fernandez

suggesting that his administration would “revise a number

of judgments entered over the last few years” and require

that certain judges explain their rulings. (Id. at 20.)

In addition, Plaintiffs cite to various State Department reports

which note that the Argentine government “did not always respect

judicial independence and impartiality.” (Id. at 18.)

9 Indeed, Cristina Kirchner herself is Argentina’s newly-minted

Vice President. (See Opp. at 18.)

However, generally “considerations of comity preclude a court

from adversely judging the quality of a foreign justice system

absent a showing of inadequate procedural safeguards.” PT United

Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 73 (2d Cir. 1998).

And here, Plaintiffs have only demonstrated that it is perhaps

possible, based on the party’s support for certain policies, that

the new Kirchnerist regime will attempt to undermine the Argentine

judiciary at some undefined point in the future, not that the

judiciary is currently incapable of adjudicating this dispute.

Indeed, outside of the 2003 impeachment, see supra at 25,

Plaintiffs have only pointed to scattered comments and policy

proposals that would not by themselves have any effect on the

Argentine judiciary. Speculation that Argentina may become an

inadequate forum at some point in the future is not enough to

overcome the general rule that “it is not the business of our

courts to assume the responsibility for supervising the integrity

of the judicial system of another sovereign nation.” PT United,

138 F.3d at 73 (internal quotation marks and citation omitted).

Finally, Plaintiffs argue that Argentina is an inadequate

forum because the Petersen Plaintiffs’ claims would be barred by

the statute of limitations under Argentine law if the case were

litigated in Argentine Court. (See Opp. at 21.) Plaintiffs are,

of course, correct that “an adequate forum does not exist if a

statute of limitations bars the bringing of the case in that

forum.” Bank of Credit & Commerce Int’l (Overseas) Ltd. v. State

Bank of Pakistan, 273 F.3d 241, 246 (2d Cir. 2001). However, here

it does not appear that the parties agree that the Argentine

statute of limitations would bar litigation in Argentina. Cf.

Baena v. Woori Bank, No. 05 Civ. 7018 (PKC), 2006 WL 2935752, at

*5 (S.D.N.Y. Oct. 11, 2006)(concluding that South Korea was

inadequate as a forum where “both parties agree[d] that if this

case were dismissed in favor of a South Korean forum, the Korean

courts would apply the Korean statute of limitations and the case

would be dismissed as time-barred”). While the fact that

Defendants have relied on a statute of limitations defense in their

pleadings certainly lends weight to the argument that Argentina is

an inadequate forum, (Opp. at 21), the Court chooses not to reach

the issue given (1) the lack of briefing on the issue and (2) the

fact that it would not affect the overall outcome of the Court’s

forum non conveniens analysis.10

10 In addition, courts in this circuit routinely condition

dismissal to foreign forums on the moving Defendant agreeing to

waive its right to raise their statute of limitations defense upon

arrival in its preferred forum. See, e.g., Lust v. Nederlandse

Programma Stitching, No. 10 Civ. 8963 (WHP), 2011 WL 3279183, at

*2 (S.D.N.Y. July 18, 2011) (granting forum non conveniens

dismissal “subject to the condition that Defendants waiv[ing] any

statute of limitations defenses in a suit in the Netherlands.”);

see also In re Rezulin Prods. Liab. Litig., 214 F.Supp.2d 396, 401

(S.D.N.Y. 2002) (dismissal conditioned on consent to personal

jurisdiction in foreign court, waiver of statute of limitations

and other conditions). Defendants have not consented to such a

(Footnote continues on following page.)

Accordingly, the Court concludes that Argentina is an

adequate alternative forum for this dispute.

3. Step Three: Private and Public Interests

Having concluded that Argentina is an adequate forum, the

third step of the Iragorri analysis requires the Court to balance

various public and private interests in order to “ascertain whether

the case should be adjudicated in the plaintiff's chosen forum or

in the alternative forum proposed by the defendant.” 274 F.3d at

73. The defendant seeking dismissal bears the burden of

establishing that the “balance of private and public interest

factors tilts heavily in favor of the alternative forum.”

Abdullahi v. Pfizer, Inc., 562 F.3d 163, 189 (2d Cir. 2009). The

Court concludes that Defendants have failed to show that the

balance of private and public interests “tilts heavily” in their

favor. Id.

a. Private Interests

The private interest factors to be evaluated can include

“relative ease of access to sources of proof; availability of

compulsory process for attendance of unwilling, and the cost of

(Continued) waiver here but, given the Argentine statute of

limitations is the only lurking issue that could undermine

Argentina’s adequacy as a forum, imposing such a condition might

have proved a solution to the statute of limitations issue. Because

the Court has elected not to dismiss this case to Argentina, it

need not reach that issue here, but for that reason the Court

weighed statute of limitations concerns less heavily in its

analysis.

obtaining attendance of willing, witnesses; possibility of view of

premises, if view would be appropriate to the action; and all other

practical problems that make trial of a case easy, expeditious and

inexpensive.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947).

With respect to the above factors, Defendants have advanced

the usual arguments. They note that most of the documentary

evidence relevant to Plaintiffs’ claims and Defendants’ defenses

is located in Argentina, (Def. Mem. at 21), that “most, if not

all, witnesses who will be called to testify in these Actions are

located in Argentina,” (id. at 22), and that most of the

documentary and testimonial evidence required to establish

Defendants’ affirmative defenses is located in Argentina, (id. at

23). Plaintiffs point out that Eton Park is based in New York

City and that, “[t]o the extent testimony is needed from anyone

then or now affiliated with the firm, New York will be the most

convenient location by far.” (Opp. at 32.)

The Court finds that the private interest factors favor

litigating in Argentina. YPF’s corporate records and other

relevant documents are, of course, located in Argentina, and

witnesses who will be called to testify about (1) the Republic’s

expropriation of YPF’s shares and (2) the decision not to initiate

the tender offer for outstanding YPF shares will primarily be

located in Argentina. Plaintiffs are certainly correct that to

the extent testimony is required from current and former Eton Park

employees “New York [is] the most convenient location by far.”

(Opp. at 32.) In the era of hard-copy documents and exclusively

in-person testimony, that would counterbalance somewhat the fact

that significant aspects of the litigation will center around

Argentina, but would not swing the balance entirely in Plaintiffs’

favor. See Varnelo v. Eastwind Transp., Ltd., No. 02 Civ. 2084

(KMW) (AJP), 2003 WL 230741, at *23 (S.D.N.Y. Feb. 3,

2003)(“[B]ecause the Court may not base its decision on speculation

that New York-based witnesses may possess relevant information,

the alleged existence of any New York-based witnesses will be

deemed at best a neutral factor.”).

As the Court noted in 2016, however, “modern technologies

. . . make the location of witnesses and evidence less important

to the forum non conveniens analysis.” 2016 WL 4735367, at *12

(quoting Metito (Overseas) Ltd. v. Gen. Elec. Co., No. 05 Civ.

9478 (GEL), 2006 WL 3230301, at *6 (S.D.N.Y. Nov. 7, 2006)); see

also Eclaire Advisor Ltd. v. Daewoo Eng'g & Constr. Co., 375

F.Supp.2d 257, 265 (S.D.N.Y. 2005) (“In this day and age of . . .

instant communications, the convenience of immediate physical

proximity to documents, testimony, and other proof has become of

less consequence to a forum non conveniens analysis, especially

when, as here, two large and sophisticated parties are involved.”).

That remains true today, perhaps especially so. Indeed, sure to

be one of the enduring lessons of the ongoing COVID-19 pandemic is

that we can accomplish far more remotely than we had assumed

previously. That lesson should apply with equal force to managing

this litigation, especially given that both parties are

represented by sophisticated, first-rate, international law

firms.11 Accordingly, the private interest facts favor litigation

in Argentina under rules that require use of hard copies and solely

in-person testimony; in today’s digital climate, however, the

private interest factors approach neutral.

b. Public Interests

Public interest factors to be considered by the Court include:

(1) the interest in having local disputes settled locally; (2) the

interest in avoiding problems associated with the application of

foreign law; and (3) the interest in avoiding burdening jurors

with cases that do not affect their community. Alfadda v. Fenn,

159 F.3d 41, 46 (2d Cir. 1998). The Court concludes that these

factors support litigating in New York.

The elephant in the room is, without doubt, the Exclusive

Jurisdiction Provision in the Prospectus.12 Defendants have argued

11 For example: depositions can be conducted via videoconference;

documents located overseas can be uploaded easily and reviewed by

the parties via e-discovery platforms; and, if it comes to it, the

parties can request that the Court allow trial witnesses to testify

via video pursuant to the good cause exception in Fed. R. Civ. P.

43.

12 Defendants have threaded arguments related to the Exclusive

Jurisdiction Provision through all three steps of the Iragorri

analysis, but the Court will address those arguments here.

that this action must be litigated in Argentina because Plaintiffs

have brought claims that, under Argentine law, are subject to the

exclusive jurisdiction of Argentine courts.13 This argument relies

on Defendants’ assertion that Plaintiffs’ claims for breach of the

YPF By-laws are appropriately labeled “corporate law” claims.

According to Defendants, under Argentine law “disputes arising out

of the [By-laws] of an Argentine corporation are governed by

Argentine corporate law and subject to Argentina’s exclusive

territorial jurisdiction.” (Def. Mem. at 17; see also Reply at

4.) The Exclusive Jurisdiction Provision of the Prospectus, in

turn, “reinforce[s]” this principle, (Def. Mem. at 19), by

requiring that “any action relating to enforcement of the By-laws

or a shareholder’s rights thereunder” be “brought in an Argentine

court.” (Prospectus at 88.)

13 The parties’ experts submitted a number of declarations on this

issue. (See Expert Declaration of Rafael M. Manóvil in Support of

Defendants’ Motion to Dismiss (“Manóvil Decl.”), dated Aug. 30,

2019 [dkt. no. 115]; see also Expert Declaration of Guillermo

Cabanellas in Support of Defendants’ Motion to Dismiss

(“Cabanellas Decl.”), dated Aug. 30, 2019 [dkt. no. 116]; see also

Declaration of Profressor Alejandro M. Garro in Opposition to

Defendants’ Motion to Dismiss (“Garro Decl.”), dated Dec. 6, 2019

[dkt. no. 132]; see also Declaration of Dr. Alfredo L. Rovira in

Opposition to Defendants’ Motion to Dimiss (“Rovira Decl.”), dated

Dec. 6, 2019 [dkt. no. 133]; see also Reply Expert Declaration of

Rafael M. Manóvil (“Manóvil Reply Decl.”), dated Feb. 7, 2020 [dkt.

no. 152]; see also see also Reply Expert Declaration of Guillermo

Cabanellas (Cabanellas Reply Decl.), dated Feb. 7, 2020 [dkt. no.

153].)

Thus, Defendants argue that the exclusive jurisdiction of

Argentine courts is mandatory in nature, i.e., because (Defendants

posit) Argentine law demands a forum in Argentina for corporate

law claims such as Plaintiffs’, this case must be dismissed to

Argentina. (See, e.g., Def. Mem. at 19 (“Because Plaintiffs assert

claims that must be heard in Argentine courts under controlling

Argentine law . . . this Court [] lacks jurisdiction.”) For

today’s purposes, though, that question has already been decided.

The Court of Appeals’ ruling in Petersen II makes clear that the

Republic’s jurisdiction over the present action is not “exclusive”

at all because “[s]overeigns are not immune from [suits like

present one] under the FSIA.” See 895 F.3d at 211. Relatedly,

forum non conveniens dismissal is by its very nature discretionary

and requires that any conclusion about Argentine law be balanced

with other considerations. Here, then, the Court must decide

whether Argentina’s supposed exclusive jurisdiction weighs heavily

in favor of declining the jurisdiction it independently retains

pursuant to the FSIA.14

14 In pressing the exclusive jurisdiction point, defendants make

much ado of this Court’s decision in Locals 302 & 612 of Int’l

Union of Operating Eng’rs v. Blanchard, No. 04 Civ. 5954 (LAP),

2005 WL 2063852 (S.D.N.Y. Aug. 25, 2005). There, this Court

decided that it “[had] no jurisdiction” over a derivative lawsuit

brought by shareholders of a Canadian corporation organized

pursuant to the Canadian Business Corporations Act (the “CBCA”).

Id. at *7. That statute required that such suits be brought in

(Footnote continues on following page.)

To do so, the Court must review Argentine law. As discussed

above, see supra at 31-33, Defendants have argued that the Republic

has exclusive territorial jurisdiction over “corporate” claims

arising out of the by-laws of Argentine corporations. Based on

its review of the parties’ expert submissions, the Court concludes

that Plaintiffs’ claims are “corporate” claims as a matter of

Argentine law. As Professor Cabanellas, one of Defendants’

experts, points out persuasively, Section 5(11) of the Argentine

National Code of Civil and Commercial Procedure (the “Code”)

requires that claims “based on corporate relationships” must be

brought “where the registered domicile of the relevant corporation

is located.” (Cabanellas Reply Decl. ¶ 8.) Plaintiffs argue in

opposition that Section 5(11) was meant to apply to “intra-

corporate” disputes that “meddle with . . . [the] internal affairs”

of a corporation, (Garro Decl. ¶¶ 25-28; Rovira Decl. ¶ 32), and

not claims that sound in contract such as their own. But the

(Continued) certain enumerated Canadian courts, i.e., what

Defendants suggest Argentine law provides for here. Id. Defendants

specifically zero in on the Court’s statement that “where the CBCA

specifically establishes exclusive jurisdiction over an action,

that choice of forum must be respected.” Id. at *3.

The factual similarities between this case and Locals 302

cannot be denied. However, there is a critical difference. In

Locals 302 the Court concluded that, as a result of substantive

Canadian law, it lacked jurisdiction; it did not decline the

exercise of properly held jurisdiction. Id. at *6. Here, the

Court has already determined that it independently possesses

subject matter jurisdiction pursuant to the FSIA. Now, it is

determining in its discretion whether to exercise that

jurisdiction.

express language of Section 5(11) broadly applies to disputes that

are “derived from corporate relationships.” (Cabanellas Reply

Decl. ¶ 13(iii). Even in light of Professor Rovira’s position

that the YPF by-laws “are a contract enforceable against both

shareholders . . . and the Company,” (Rovira Decl. ¶ 17), and

even acknowledging that Plaintiffs’ claims are contractual in

nature, see Petersen II, 895 F.3d at 211, the Court is on this

record is persuaded by Professor Cabanellas’ point that the claims

“derive” from Plaintiffs’ former status as shareholders of YPF.

However, the fact that Plaintiffs’ claims may be properly

classified as “corporate claims” under Argentine law does not

compel litigation in Argentina because the Code allows for

concurrent jurisdiction over this dispute. Plaintiffs’ experts,

Professors Alejandro Garro and Alfredo Rovira, point out

persuasively that the Code does not speak to international

jurisdiction and does not purport to address the ability of foreign

courts to address certain types of disputes that arise under

Argentine law. (See Garro Decl. ¶¶ 12-13; see also Rovira Decl.

¶¶ 25-26.) Indeed, Defendants’ own expert acknowledges that the

Code merely “determines which court within Argentina has

jurisdiction . . . within the Argentine jurisdictional system.”

(Cabanellas Decl. ¶ 4.) Thus the Court is persuaded that the Code

looks inward, not outward, and does not limit foreign plaintiffs

where other overseas courts may be competent to hear their claims.

Because the Court concludes that Argentine law does not itself

require a forum in Argentina, it by extension concludes that

Defendants’ interests in litigating there are greatly lessened.

The Republic does, however, maintain a strong policy interest

in having corporate disputes litigated in Argentine courts.

Another of Defendants’ experts, Rafael Manóvil, points out that

the Argentine legislature purportedly wanted Argentine courts to

adjudicate such disputes where possible because it wanted to

“reduce[] duplicative litigation and ensure[] consistency in the

interpretation and application of a single [Argentine]

corporation’s bylaws.” Reply at 5 (citing Manóvil Decl. ¶ 35;

Manóvil Reply Decl. ¶¶ 52-57.) This policy interest is certainly

entitled to some weight.

However, there are more compelling reasons for litigating

this case in the United States and specifically in New York. The

Solicitor General of the United States has already noted in the

Government’s opposition to Defendants’ petitions for certiorari on

the FSIA issue the strong interest of the United States in ensuring

that “foreign states that enter U.S. markets as commercial actors

do not enjoy immunity from lawsuits regarding violations of their

commercial obligations.” (Opp. at 29.) It bears repeating that

the United States made this statement without any consideration of

New York-based Eton Park as a plaintiff. The already substantial

interest of the United States in this litigation has indubitably

been heightened now that a U.S.-based plaintiff is in the mix.

Moreover, New York specifically has a considerable interest

in hosting this litigation. “New York clearly has a strong interest

in policing activities directed toward its stock markets,”

Cyberscan Tech., Inc. v. Sema Ltd., No. 06 Civ. 526 (GEL), 2006 WL

3690651, at *6 (S.D.N.Y. Dec. 13, 2006). The Court of Appeals has

echoed this fact. For example, in DiReienzo v. Philip Services

Corp., the Court of Appeals reviewed the district court’s forum

non conveniens dismissal of securities fraud claims brought by

shareholders of a Canadian metal processing company. See 294 F.3d

21 (2d Cir. 2002). In reversing that dismissal, the Court noted

New York’s heightened interest in adjudicating a lawsuit where it

“was [Defendant] who came to [Plaintiffs] by registering its stock

on American exchanges.” Id. at 32. The Court of Appeals stressed

further that “Plaintiffs are involved in this lawsuit precisely

because of aggressive selling techniques by [Defendant] within the

United States that targeted United States investors as potential

purchasers of its stock.” Id. This case is no different: through

aggressive marketing tactics, the Republic and YPF affirmatively

sought out investors in New York and induced them to buy a stake

in YPF through YPF ADRs listed on the NYSE, a fact repeatedly

emphasized by the Court of Appeals in its decision in Petersen II.

(See supra at 21-22 n.8 (quoting Petersen II, 895 F.3d at 199).)

Thus, the interest of the United States and of New York in

litigating this case in the Southern District of New York is very

strong.

Finally, the Court does not find that the need to apply

Argentine law strongly favors dismissal. All agree that Argentine

law applies to this action, and all presumably agree that the need

to apply foreign law generally favors dismissal in the forum non

conveniens analysis. See Piper Aircraft, 454 U.S. at 251 (“[T]he

public interest factors point towards dismissal where the Court

would be required to untangle problems in conflict of laws, and in

law foreign to itself”)(internal quotations and citation omitted).

This Court, however, must “guard against an excessive

reluctance to undertake the task of deciding foreign law.”

Varnelo, 2003 WL 230741, at *27 (citations omitted). Here,

Defendants have argued that this case should be litigated in

Argentina because this case will “require the Court to address

fundamental and complex questions of Argentine constitutional law,

public law, priority of law and statutory law, and Defendants’

obligations thereunder,” (Def. Mem. at 27). Practically, it is

curious that Defendants did not raise this argument in 2016 and,

in any event, Defendants do not explain why the waters have somehow

become muddier since the Court first decided that the prospect of

applying Argentine law was not a reason to dismiss this case to

Argentina. See Petersen I, 2016 WL 4735367, at *13. Moreover,

Defendants have not made a compelling showing that any complicated

questions of Argentine law will actually arise in what is, at its

core, a case involving relatively standard factual allegations of

breach of the YPF By-laws. Third, to the extent that those

questions do arise, the high quality of the parties’ expert

submissions on Argentine law, see supra n.13, gives the Court

confidence that similar future submissions will provide the Court

with a more than adequate basis to inform itself and reach a

decision on any potentially thorny issues. The Court thus

concludes that the necessity of making conclusions of Argentine

law does not counsel strongly in favor of dismissal.

In weighing the private and public interests at play here,

the Court finds that: 1) Defendants would have a strong interest

in litigating in Argentina if the litigants were required to rely

on hard copy documents and exclusively in-person testimony, but

the weight of that interest declines to near neutral given the

reliability of modern technology that allows litigation to be

conducted remotely; 2) both Argentine law and the Court of Appeals

decision in Petersen II recognize concurrent jurisdiction over

this dispute in this Court and in the Argentine courts, so

Argentine law does not serve as a strong basis for litigating in

Argentina; 3) the interests of the United States in general and

New York in particular in litigating cases arising out of listings

on the New York Stock Exchange where United States investors were

specifically solicited to invest weighs very heavily in favor of

litigation in New York. On balance, the Court concludes that the

public and private interest factors weigh heavily in favor of

litigation in New York.15

* * *

To review, the Court holds that: (1) Plaintiffs’ choice of a

New York forum deserves substantial deference because the Eton

Park Plaintiffs are based in and operate out of New York and this

litigation has a significant connection to New York; (2) Argentina

is an adequate alternative forum for this litigation; and (3) that

the various private and public interest factors strongly favor

litigation in New York. Accordingly, the Court concludes that

Defendants have failed to carry their burden to demonstrate that

the balance of convenience “tilts strongly” in favor of trial in

Argentina. See R. Maganlal & Co. v. M.G. Chem. Co., 942 F.2d 164,

167 (2d Cir. 1991).

15 For the same reasons, the Court rejects Defendants’ argument

that this action should be dismissed on the grounds of

international comity. (See Def. Mem. at 30-32.) Defendants have

simply failed to demonstrate the exceptional circumstances,

required for such relief, exist. See Ole Media Mgmt., L.P. v. EMI

Apr. Music, Inc., No. 12 Civ. 7249 (PAE), 2013 WL 2531277, at *3

(S.D.N.Y. June 10, 2013). In addition, this action has been

pending in New York for nearly five years, and both parties have

spent untold amounts of time and money pressing their various

positions in this forum. Dismissal to Argentina on international

comity grounds would thus be woefully inefficient from a judicial

economy standpoint. Id. (noting “interests of judicial economy” as

a factor to be balanced when considering dismissal on grounds of

international comity).

TILT. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss this

action pursuant to the doctrine of forum non conveniens (dkt. no.

110 in 15 Civ. 2739; dkt. no. 51 in 16 Civ. 8569) is DENIED. To

the extent that they are not addressed above, the Court has

considered the parties’ remaining arguments and has found them

unavailing. The parties shall confer and shall inform the Court

by letter no later than June 19, 2020, how they wish to proceed.

SO ORDERED.

Dated: New York, New York

June 5, 2020 .

LORETTA A, alt’

Senior United States District Judge

4l