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United States Supreme Court: Grupo Mexicano de Desarrollo, s.a. v. Alliance Bond Fund, Inc

Published online by Cambridge University Press:  27 February 2017

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Type
Judicial and Similar Proceedings
Information
International Legal Materials , Volume 38 , Issue 5 , September 1999 , pp. 1222 - 1236
Copyright
Copyright © American Society of International Law 1999

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Footnotes

*

527 U.S., 119 S.Ct. 1961, 144 L.Ed.2d 319 (1999).

References

Endnotes

1 Rule 65(c) provides that an applicant for a preliminary injunction must obtain security “for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.” Rule 65.1 states in part that “[t]he surety's liability may be enforced on motion without the necessity of an independent action.“

2 We recognize that respondents alleged in their complaint that the assignments of the rights to receive Toll Road Notes violated the negative pledge clause of the note instrument and the provision that the Notes ranked pari passu with other debt, and therefore that petitioners were not entitled to engage in the restrained conduct. We do not, however, understand the District Court to have made a finding — either in the preliminary injunction order or in the final order — that petitioners’ enjoined conduct was unlawful. The mootness of petitioners’ claim at the present stage of the proceedings must be assessed on the basis of what that claim is. As shown by the question on which we granted certiorari, it is that the District Court wrongfully entered an order to protect its judgment before the judgment was rendered. If, in fact, petitioners had no right under the note instrument to take the actions that were enjoined, that would presumably be a defense to the action on the injunction bond. See, e.g., Blumenthal v. Merrill Lynch, Pierce, Fenner ' Smith, Inc., 910 F. 2d 1049, 1054 (CA2 1990); Note, Recovery for Wrongful Interlocutory Injunctions Under Rule 65(c), 99 Harv. L. Rev. 828, 836 (1986). But it does not bear upon the moofness of petitioners’ present claim.

3 Although this is a diversity case, respondents’ complaint sought the injunction pursuant to Rule 65, and the Second Circuit's decision was based on that rule and on federal equity principles. Petitioners argue for the first time before this Court that under Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), the availability of this injunction under Rule 65 should be determined by the law of the forum State (in this case New York). Because this argument was neither raised nor considered below, we decline to consider it.

4 For example, some courts said that insolvency was an exception, but others disagreed. See, e.g., Annot, ., Of the Demands Which Will Support a Creditor's Bill, 66 American State Reports 271, 285 (1899)Google Scholar (cases are “in almost hopeless conflict“). This Court has concluded that that particular exception does not exist. See, e.g., Pusey ' Jones Co. v. Hanssen, 261 U. S. 491, 495-497 (1923); Hollins v. Brierfield Coal ' Iron Co., 150 U. S. 371, 385-386 (1893); Smith v. Railroad Co., 99 U. S. 398, 400-401 (1879).

5 Some cases suggested that there was an exception where the debt was admitted or confessed, at least if the creditor possessed an interest in the debtor's property. See, e.g., Scott v. Neely, 140 U. S. 106, 113 (1891); D. A. Tompkins Co. v. Catawba Mills, 82 F. 780, 783 (CCSC 1897). Even if the latter condition is overlooked, it is by no means clear that the action here would qualify. Petitioners’ answer (filed after the preliminary injunction had issued) denied knowledge or information sufficient to form a belief (which is the equivalent of a denial, see Federal Rule of Civil Procedure 8(b)) as to respondents’ allegations that petitioners were currently indebted to respondents in the amount of $80.9 million, and that petitioners breached their agreements under the Notes and the related guarantee; and denied respondents’ allegations that all conditions precedent to suit had occurred, been waived, or otherwise been satisfied, and that respondents had suffered damages of $80.9 million.

6 As we stated in Adler v. Fenton, 24 How. 407, 411-412 (1861): ‘“Our laws determine with accuracy the time and manner in which the property of a debtor ceases to be subject to his disposition, and becomes subject to the rights of his creditor. A creditor acquires a lien upon the lands of his debtor by a judgment; and upon the personal goods of the debtor, by the delivery of an execution to the sheriff. It is only by these liens that a creditor has any vested or specific right in the property of his debtor. Before these liens are acquired, the debtor has full dominion over his property; he may convert one species of property into another, and he may alienate to a purchaser. The rights of the debtor, and those of a creditor, are thus defined by positive rules; and the points at which the power of the debtor ceases, and the right of the creditor commences, are clearly established. These regulations cannot be contravened or varied by any interposition of equity'” (quoting Moran v. Dawes, 1 Hopk. Ch. 365, 367 (N. Y. 1825)).

7 Several States have adopted the Uniform Fraudulent Conveyance Act (or its successor the Uniform Fraudulent Transfers Act), which has been interpreted as conferring on a nonjudgment creditor the right to bring a fraudulent conveyance claim. See generally P. Alces, Law of Fraudulent Transactions 5.04[3], p. 5-116 (1989). Insofar as Rule 18(b) applies to such an action, the state statute eliminating the need for a judgment may have altered the common-law rule that a general contract creditor has no interest in his debtor's property. Because this case does not involve a claim of fraudulent conveyance, we express no opinion on the point.

8 Although the United States suggests that there is statutory support for the present injunction in the All Writs Act, 28 U. S. C. § 1651, Brief for United States as Amicus Curiae 18, we have said that the power conferred by the predecessor of that provision is defined. by “what is the usage, and what are the principles of equity applicable in such a case.” De Beers Consol. Mines, Ltd. v. United States, 325 U. S. 212, 219 (1945). That is the very inquiry in which we have engaged.

9 Apparently the first “Mareva” injunction was actually issued in Nippon Yusen Kaisha v. Karageorgis, [1975] 2 Lloyd's Rep. 137 (C. A.), in which Lord Denning recognized the prior practice of not granting such injunctions, but stated that “the time has come when we should revise our practice.” Id., at 138; see also Hetherington, Introduction to the Mareva Injunction, in Mareva Injunctions 1, n. 1 (M. Hetherington, ed. 1983). For whatever reason, Mareva has gotten the credit (or blame), and we follow the tradition of leaving Nippon Yusen in the shadows.

10 In Lister ' Co. v. Stubbs, [1890] 45 Ch. D 1, 13 (C. A.), the Court of Appeal held that an injunction restraining the defendant's use of assets could not be issued. Lord Justice Cotton stated: “I know of no cases where, because it was highly probable that if the action were brought to a hearing the plaintiff could establish that a debt was due to him from the defendant, the defendant has been ordered to give security until that has been established by the judgment or decree.“

11 The dissent suggests that respondents acted to benefit all of GMD's creditors. See post, at 9-10, n. 5. But respondents’ complaint sought the full amount they were allegedly owed, despite their contention that petitioners could not pay all their creditors. It is not clear that the “trust in compliance with Mexican law” that respondents proposed as a possible preliminary remedy, ibid., was to be for the benefit of all creditors, rather than respondents alone — but that remedy was in any event denied, which did not deter respondents from seeking a simple freeze on assets to satisfy their anticipated judgment. There is nothing whatever wrong with respondents’ pursuing their own interests. Indeed, the fact that it is entirely proper and entirely predictable is the very premise of the point we are making: that this new remedy will promote unregulated competition among the creditors of a struggling debtor.

1 GMD did not seek Second Circuit review of the District Court's fact findings on irreparable harm or of that court's determination that Alliance almost certainly would prevail on the merits. See Brief for Petitioners 7. Nor does GMD cast any doubt on those matters here. Instead, GMD forthrightly concedes that had the District Court declined to issue the preliminary injunction, GMD would have had no assets available to satisfy the money judgment that Alliance ultimately obtained. See Tr. of Oral Arg. 8-9.

2 I agree, for the reasons Justice Scalia states, see ante, at 4-9, that the case is not moot; accordingly, I join Part II of the Court's opinion.

3 We have on three occasions considered the availability of a preliminary injunction to freeze assets pending litigation, see Deckert v. Independence Shares Corp., 311 U. S. 282 (1940); De Beers Consol. Mines, Ltd. v. United States, 325 U. S. 212 (1945); United States v. First Nat. City Bank, 379 U. S. 378 (1965). As the Court recognizes, see ante, at 14-18, these cases involved factual and legal circumstances markedly different from those presented in this case and thus do not rule out or in the provisional remedy at issue here.

4 In a series of cases implementing the desegregation mandate of Brown v. Board of Education, 347 U. S. 483 (1954), for example, we recognized the need for district courts to draw on their equitable jurisdiction to supervise various aspects of local school administration. See Freeman v. Pitts, 503 U. S. 467, 491-492 (1992) (describing responsibility shouldered by district courts, “in a manner consistent with the purposes and objectives of [their] equitable power,” first, to structure and supervise desegregation decrees, then, as school districts achieved compliance, to relinquish control at a measured pace). Similarly, courts enforcing the antitrust laws have superintended intricate programs of corporate dissolution or divestiture. See United States v. E. I. du Pont de Nemours ' Co., 366 U. S. 316, 328-331, and nn. 9-13 (1961) (cataloging cases); cf. United States v. American Tel. ' Tel. Co., 552 F.Supp. 131 (DC 1982), aff’d sub nom. Maryland v. United States, 460U. S. 1001 (1983) (approving consent decree that set in train lengthy judicial oversight of divestiture of telephone monopoly).

5 The Court suggests that a “debtor's right to a jury trial on [a] legal claim” counsels against the exercise of equity power here. Ante, at 21. But the decision to award provisional relief — whether equitable or legal — always rests with the judge. Moreover, the merits of any legal claim will be resolved by a jury, if there is any material issue of fact for trial, and findings made at the preliminary stage do not bind the jury. See Wasserman, , 67 Wash L. Rev., at 322–323.Google Scholar

6 Before the District Court, Alliance frankly acknowledged the existence of other, unrepresented creditors. While acting to protect its own interest, Alliance asked the District Court to fashion relief that “does not just directly benefit us, but benefits … the whole class of creditors” by creating “an even playing field” among creditors. App. to Pet. for Cert. 46a; see also id., at 45a (Alliance suggests that District Court direct GMD to set up a trust in compliance with Mexican law in order to oversee distributions to creditors). The Court supplies no reason to think that Alliance should have abandoned its rock-solid claim just because other creditors, for whatever reason, failed to bring suit. But cf. ante, at 23 (“respondents did not represent all of the holders of the Notes; they were an active few who sought to benefit at the expense of the other [creditors]“).