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

Background

The court considered a motion by non-party Chamber of Companies, referred to as “CS,” for permission to file an amicus brief. An amicus brief is a filing by someone who is not a party to the case but seeks to provide the court with additional perspectives or information. The request concerned the parties’ pending cross-motions for summary judgment, which had been fully briefed by June 23, 2022. CS filed its request on August 9, 2022, more than six weeks after briefing was complete.

The court initially granted CS’s request by a brief docket endorsement on August 10. Later that day, the plaintiffs asked the court to reconsider and requested an opportunity to respond. The court granted reconsideration because CS had not given the parties enough time to comment, then invited additional submissions. The plaintiffs, the Republic, YPF S.A., and CS each submitted letters, and CS filed a supplemental response.

Court’s Analysis

The court explained that district courts have broad discretion to allow or deny amicus participation. Amicus submissions ordinarily should help the court by providing insights not available from the parties. But courts commonly reject late-filed amicus briefs because the parties should have a fair opportunity to address the arguments and perspectives they contain. Requiring supplemental briefing can delay the proceeding or unfairly burden a party.

The court found that CS’s proposed brief introduced new material to which the parties had not had an opportunity to respond. CS itself described the brief as offering an independent perspective on Argentine corporate law and the possible effects of the court’s ruling on Argentine companies and their shareholders. The court stated that an amicus should respond to issues presented by the parties rather than create, expand, or introduce wholly new issues.

The court acknowledged that lateness alone did not necessarily require denial. It nonetheless concluded that the proposed brief would provide little assistance in resolving the summary-judgment motions. Allowing supplemental briefing would unnecessarily delay the proceedings. Accepting the brief without supplemental briefing would be unfair to the plaintiffs and would reduce the value of the court’s consideration because the plaintiffs would not have had an opportunity to test CS’s views.

Disposition

Senior Judge Loretta A. Preska denied CS’s motion for leave to file an amicus brief. The order addressed only CS’s request to participate as a non-party; it did not decide the pending cross-motions for summary judgment.