Attestor Master Value Fund LP v. Republic of Argentina

22-2301(L)
Attestor Master Value Fund LP v. Republic of Argentina
United States Court of Appeals
For the Second Circuit
August Term 2023
Argued: February 2, 2024
Decided: August 21, 2024
Nos. 22-2301(L), 22-2198, 22-2231, 22-2274,
22-2282, 22-2295, 22-2296, 22-2312, 22-2313,
22-2316, 22-2325, 22-2328, 22-2330, 22-2331,
22-2332, 23-516(L), 23-524, 23-528, 23-538,
23-539, 23-551, 23-552, 23-553, 23-554, 23-
555, 23-556, 23-558, 23-559, 23-560, 23-564
A TTESTOR MASTER VALUE F UND LP, TRINITY
INVESTMENTS L IMITED, B ISON BEE LLC, B YBROOK
C APITAL MASTER FUND LP, BYBROOK CAPITAL
H AZELTON MASTER F UND LP, WHITE H AWTHORNE ,
LLC, WHITE H AWTHRONE II, LLC,
Plaintiffs-Appellees,
v.
T HE R EPUBLIC OF A RGENTINA,
Defendant-Appellant.

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Appeals from the United States District Court
for the Southern District of New York
Nos. 14-cv-5849, 14-cv-10016, 18-cv-3446, 15-
cv-2369, 15-cv-7367, 16-cv-1192, 21-cv-2060, 16-
cv-1042, 15-cv-1588, 15-cv-5886, 15-cv-2611, 15-
cv-9982, 16-cv-1436, 15-cv-4767, 15-cv-9601, 14-
cv-5849, 18-cv-3446, 15-cv-2369, 15-cv-7367, 16-
cv-1192, 21-cv-2060, 14-cv-10016, 15-cv-1588,
15-cv-2611, 15-cv-5886, 15-cv-9982, 16-cv-1436,
15-cv-4767, 15-cv-9601 & 16-cv-1042,
Loretta A. Preska, Judge.
Before: L EVAL , PARK, and LEE , Circuit Judges.
In the early 1990s, the Republic of Argentina issued
collateralized bonds as part of a sovereign-debt-relief plan organized
by then U.S. Treasury Secretary Nicholas F. Brady. Argentina kept
reversionary interests in the collateral, allowing it to regain
possession of the collateral if it paid off the bonds in full.
But in 2001, Argentina defaulted on the bonds. Two decades
later, holders of other defaulted Argentine bonds (“Appellees”) tried
to attach the reversionary interests to satisfy judgments stemming
from Argentina’s default on their bonds. Although the Foreign
Sovereign Immunities Act, 28 U.S.C. §§ 1602-11, generally protects
the property of foreign sovereigns from attachment, Appellees
argued that the reversionary interests fell under an exception to that
rule because Argentina had used them for commercial activity in the
United States.

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The district court granted the attachment, and Argentina
appealed. During that appeal, the collateralized bonds matured, and
the district court granted turnover of the reversionary interests to
Appellees. Argentina appealed again, leading to this consolidated
appeal.
We affirm the district court’s attachment orders because
Argentina’s reversionary interests are not protected by the Foreign
Sovereign Immunities Act. Argentina used the interests in
commercial activity in the United States, rendering them subject to
attachment. And Argentina’s arguments that its attached assets are
not amenable to turnover under New York law are meritless, so we
affirm the turnover order too. Finally, the reasons for sealing this case
are no longer compelling, so we order the parties to resubmit their
briefs and appendices within thirty days with narrow redactions that
comply with this Court’s orders.
We AFFIRM the orders of the district court, DENY the motion
to supplement the record, and GRANT the motion to limit the scope
of sealing.
C ARMINE D. B OCCUZZI, JR . (Allison Kim, Abigail K.
Gotter-Nugent, Rebecca D. Rubin, Rathna J.
Ramamurthi, on the brief ), Cleary Gottlieb Steen &
Hamilton LLP, New York, NY & Washington, DC, for
Defendant-Appellant.
J OHN F. BASH (Dennis H. Hranitzky, Alex H. Loomis,
Kevin S. Reed, on the brief ), Quinn Emanuel Urquhart &
Sullivan, Austin, TX, Salt Lake City, UT, Boston, MA &
New York, NY, for Plaintiffs-Appellees.

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PARK, Circuit Judge:
In the early 1990s, the Republic of Argentina issued
collateralized bonds as part of a sovereign-debt-relief plan organized
by then U.S. Treasury Secretary Nicholas F. Brady. Argentina kept
reversionary interests in the collateral, allowing it to regain
possession of the collateral if it paid off the bonds in full.
But in 2001, Argentina defaulted on the bonds. Two decades
later, holders of other defaulted Argentine bonds (“Appellees”) tried
to attach the reversionary interests to satisfy judgments stemming
from Argentina’s default on their bonds. Although the Foreign
Sovereign Immunities Act, 28 U.S.C. §§ 1602-11, generally protects
the property of foreign sovereigns from attachment, Appellees
argued that the reversionary interests fell under an exception to that
rule because Argentina had used them for commercial activity in the
United States.
The district court granted the attachment, and Argentina
appealed. During that appeal, the collateralized bonds matured, and
the district court granted turnover of the reversionary interests to
Appellees. Argentina appealed again, leading to this consolidated
appeal.
We affirm the district court’s attachment orders because
Argentina’s reversionary interests are not protected by the Foreign
Sovereign Immunities Act. Argentina used the interests in
commercial activity in the United States, rendering them subject to
attachment. And Argentina’s arguments that its attached assets are
not amenable to turnover under New York law are meritless, so we

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affirm the turnover order too. Finally, the reasons for sealing this case
are no longer compelling, so we order the parties to resubmit their
briefs and appendices within thirty days with narrow redactions that
comply with this Court’s orders.
We affirm the orders of the district court, deny the motion to
supplement the record, and grant the motion to limit the scope of
sealing.
I. BACKGROUND
A. Factual Background
Appellees are seven investment funds1 that purchased
Argentine bonds issued in 1994. They became pre- and post-
judgment creditors after Argentina defaulted on $400 million in
bonds in 2001. To satisfy those judgments and claims, they sought to
attach assets in the United States belonging to Argentina, including
certain reversionary interests Argentina held in collateral that it used
to back an earlier bond issuance. We begin by explaining the creation
and nature of those reversionary interests.
1. Argentina’s Debt Crisis and the Brady Plan
Argentina renegotiated much of its debt in the early 1990s
under a debt-relief program known as the Brady Plan, instituted by
then Treasury Secretary Nicholas F. Brady in response to the Latin
American debt crises of the 1980s. The plan involved an exchange of
1 Attestor Master Value Fund LP, Trinity Investments Limited, Bison
Bee LLC, Bybrook Capital Master Fund LP, Bybrook Capital Hazelton
Master Fund LP, White Hawthorne, LLC, and White Hawthrone II, LLC.

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nearly $30 billion in unsecured commercial bonds for two groups of
collateralized bonds due in 2023 (“Brady Bonds”). These new
collateralized bonds would move bad debt off of bank balance sheets
and would allow Argentina’s sovereign debt to trade in the secondary
market.
One set of Brady Bonds (“Dollar Brady Bonds”) was secured by
non-marketable zero-coupon U.S. Treasury bonds (“Dollar
Collateral”) specially issued by the Treasury solely to collateralize the
Dollar Brady Bonds. The other set of Brady Bonds (“DMK Brady
Bonds”) was secured by Deutsche Mark–denominated non-
marketable zero-coupon bonds (“DMK Collateral”) issued by the
Kreditanstalt für Wiederaufbau, a German development bank.
2. The Agreements Governing the Brady Bonds
After Argentina acquired the Dollar Collateral, it entered into
two “fiscal agency agreements” with Citibank governing, among
other things, the handling of payments on the Dollar Brady Bonds
and the DMK Brady Bonds. Both fiscal agency agreements required
Argentina and Citibank to enter into other agreements that would
govern the Dollar and DMK Collateral (together, “Brady Collateral”).
Among these other agreements, the “collateral pledge
agreements” (“Dollar CPA” and “DMK CPA”) required the Federal
Reserve Bank of New York (“N.Y. Fed”) to hold the collateral as the
agent. The N.Y. Fed held the Dollar Collateral in accounts at its New
York branch and held the DMK Collateral in accounts at the
Bundesbank in Germany and the Bank for International Settlements
in Switzerland.

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The CPAs created the reversionary interests at issue here. The
Dollar CPA, for example, (1) granted the first-priority security interest
in the Dollar Collateral to the N.Y. Fed on behalf of the Dollar Brady
Bond holders; and (2) created mechanisms to terminate that interest
and stated that upon such termination “all rights with respect [to the
Dollar Collateral] shall revert to Argentina.” Joint App’x at 384-85.2
It is this right —to regain the collateral free and clear of the security
interest under certain conditions—that Appellees sought to attach.
Over the past twenty years, we have twice approved the
attachment of these same reversionary interests by creditors. See Cap.
Ventures Int’l v. Republic of Argentina, 443 F.3d 214, 223 (2d Cir. 2006);
Cap. Ventures Int’l v. Republic of Argentina, 652 F.3d 266, 270 (2d Cir.
2011).
B. Procedural History
In June 2021, Appellees obtained an ex parte order attaching
Argentina’s reversionary interests “in certain collateral accounts and
collateral held in the custody of [the N.Y. Fed] arising out of
Argentina’s issuance of the Brady Bonds.” Joint App’x at 183.3 In
August 2022, the district court confirmed orders of attachment and
restraint against Argentina’s reversionary interests in the Dollar
Collateral. Argentina appealed. Appellees then discovered that the
DMK Collateral was held in N.Y. Fed accounts in Germany and
2 The DMK CPA contains similar provisions.
3 All cites to the joint appendix throughout this opinion refer to the
appendix submitted in Argentina’s appeal of the district court’s March 28,
2023 order.

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Switzerland. So they first sought to clarify that their order of
attachment on the Dollar Collateral applied to the DMK Collateral
before eventually moving for a new order of attachment on the DMK
Collateral. The district court granted that order of attachment on the
DMK Collateral in March 2023.
The Brady Bonds and the bonds making up the Dollar and
DMK Collateral also matured in March 2023. The N.Y. Fed liquidated
the collateral and used the proceeds to pay the outstanding principal
amounts owed to the Brady Bond holders. Argentina’s reversionary
interests entitle it to whatever remains of the collateral. The district
court granted turnover of the reversionary interests to Appellees but
stayed that order pending these appeals.
II. STANDARD OF REVIEW
“We review de novo legal conclusions denying [Foreign
Sovereign Immunities Act (“FSIA”)] immunity to a foreign sovereign
or its property.” NML Cap., Ltd. v. Republic of Argentina, 680 F.3d 254,
256-57 (2d Cir. 2012). But we otherwise review a district court’s ruling
on a request for an order of attachment under the FSIA for abuse of
discretion. Id. at 257. “A district court is said to have abused its
discretion if it has (1) based its ruling on an erroneous view of the law,
(2) made a clearly erroneous assessment of the evidence, or
(3) rendered a decision that cannot be located within the range of
permissible decisions.” Id. (cleaned up).
We similarly review a district court’s turnover order for abuse
of discretion. See Levinson v. Kuwait Fin. House (Malaysia) Berhad, 44
F.4th 91, 95 (2d Cir. 2022).

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III. DISCUSSION
Argentina argues that attachment of the reversionary interests
was improper because (1) it does not own the reversionary interests
and (2) even if it does own them, they are immune from attachment
under the FSIA. Neither argument has merit.
A. Argentina Owns the Reversionary Interests
First, Argentina argues that it does not own the reversionary
interests because they belong to its central bank, the Banco Central de
la República Argentina (“BCRA”). Although we have twice
concluded that these reversionary interests belong to Argentina, see
Cap. Ventures Int’l, 443 F.3d at 223; Cap. Ventures Int’l, 652 F.3d at 270,
Argentina seeks to relitigate the issue nearly twenty years after it was
first decided. In any event, its argument remains meritless.
Argentina argues as follows: Section 3.03 of the Dollar CPA,
which governs the distribution of the Dollar Collateral on the
maturity date of the Dollar Brady Bonds,4 provides that, if Argentina
has fully paid the principal amount of the bonds, it must deliver to
the N.Y. Fed a “Notice of Full Payment.” Joint App’x at 384. The
Dollar CPA defines “Notice of Full Payment” as “a duly completed
notice from Argentina . . . stating that the principal of [the Dollar
Brady Bonds] has been paid in full, substantially in the form of Schedule
K.” Id. at 375 (emphasis added). Schedule K is a form letter from
Argentina to the N.Y. Fed informing the bank that the principal has
been paid in full and directing it to transfer the Collateral “to account
4 Argentina makes this argument only for the Dollar Collateral, but
the terms of the DMK CPA are identical.

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no. ________ of BCRA.” Id. at 510. Argentina thus claims that
(1) Schedule K directs payment to BCRA, and (2) the payment is owed
on account of the reversionary interests, so (3) the reversionary
interests that create entitlement to that payment must belong to
BCRA.
There are two flaws in Argentina’s reasoning. First, Schedule K
is only a form notice. The actual “Notice of Full Payment” need only
be “substantially in the form of Schedule K.” Id. at 375. This
formulation leaves flexibility to alter the recipient of the funds from
BCRA to Argentina. Second, Argentina’s interpretation of
Schedule K is inconsistent with the agreement itself, which repeatedly
states that “all rights” in the Collateral “shall revert to Argentina.” See
id. at 385. It would not make sense to read a single reference in a form
schedule to override the language of the CPA.
We thus conclude that the reversionary interests belong to
Argentina, not BCRA.
B. Attachment Under the Foreign Sovereign Immunities Act
Argentina next argues that even if it does own the reversionary
interests, they are immune from attachment under the FSIA. We
disagree because Argentina’s reversionary interests fall within the
“commercial activity” exception to the immunity provided by the
FSIA.
The property of a foreign state held within the United States is
generally immune from attachment under the FSIA. See 28
U.S.C. § 1609. But that immunity is subject to several exceptions.
Relevant here, section 1610(a) states that “[t]he property in the United

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States of a foreign state, as defined in section 1603(a) of this chapter,
used for a commercial activity in the United States, shall not be immune
from attachment . . . if . . . the foreign state has waived its immunity
from attachment.” Id. at § 1610(a) (emphasis added). There is no
dispute that Argentina has waived its immunity. Argentina has long
acknowledged it has waived immunity from suit in connection with
the bonds held by Appellees. See NML Cap., Ltd. v. Banco Central de la
República Argentina, 652 F.3d 172, 176 n.3 (2d Cir. 2011) (“The Republic
concedes that in the Fiscal Agency Agreement governing the debt
instruments owned by plaintiffs it clearly and unambiguously
waived its right to assert its sovereign immunity from suit in claims
regarding those instruments.”).
So Argentina argues instead that it did not “use” the
reversionary interest, that any use was not for a “commercial
activity,” and, with respect to the DMK Collateral only, that any
commercial activity was not “in the United States.” We disagree.
1. Argentina Used the Reversionary Interests in Commercial
Activity
Argentina used the reversionary interests in commercial
activity at least twice before their current attachment. It argues that
it never “used” the interests and that any use was not in commercial
activity, but neither assertion has merit.
We have held that the word “used” in the text of section 1610(a)
“require[s] not merely that the property at issue relate to commercial
activity in the United States, but that the sovereign actively utilize that
property in service of that commercial activity.” Exp.-Imp. Bank of the
Rep. of China v. Grenada, 768 F.3d 75, 90 (2d Cir. 2014). The inquiry

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focuses on use at the time the writ of attachment or execution is
issued. Id. at 84. (citing Aurelius Cap. Partners, LP v. Republic of
Argentina, 584 F.3d 120, 130 (2d Cir. 2009)). But the property need not
be actively utilized at the moment of attachment. Instead, it “must
have been used for a commercial activity at the time the writ of
attachment or execution is issued.” Aurelius Cap. Partners, 584 F.3d at
130 (quotation marks omitted) (emphasis altered).
Here, after a 2001 default, Argentina offered to exchange the
defaulted Brady Bonds and other defaulted bonds for “proceeds of
the collateral securing them plus new debt that Argentina would
issue.” Cap. Ventures Int’l, 652 F.3d at 268. To do so, Argentina relied
on a provision in the CPAs that allowed it to “receive the collateral,
liquidate it, and pay its proceeds to the Brady bondholders.” Id. Its
receipt of that collateral would be through the reversionary interests
in the Dollar and DMK Collateral.
So to avoid attachment of the proceeds from the collateral right
after it was liquidated but before it was transferred to bondholders,
Argentina entered into a new “Continuation of Collateral Pledge
Agreement.” See id. at 268-69; see also Joint App’x at 182-93, Cap.
Ventures Int’l v. Republic of Argentina, No. 10-4520 (2d Cir. Nov. 17,
2010), ECF No. 56-3 (“CVI Joint App’x”). That agreement required
Argentina to file a Request for Release of Principal Collateral with the
N.Y. Fed. But the Continuation of Collateral Pledge Agreement
provided that “all rights with respect to such Principal Collateral shall
not revert to Argentina but shall be subject to a continuous lien in
favor of the [N.Y. Fed] for the ratable benefit of” the bondholders.
CVI Joint App’x at 184. While Argentina thus retained its ability

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under the CPAs to liquidate the collateral by redeeming or
exchanging the Brady Bonds, it would not receive the proceeds of that
liquidation. Instead, once the collateral was liquidated, the proceeds
transferred to the Brady Bond holders rather than to Argentina. See
id. Roughly $62.3 billion in bonds were exchanged, including $2.8
billion in Brady Bonds, as part of this offer. Cap. Ventures Int’l, 652
F.3d at 269. 5
In short, the Continuation of Collateral Pledge Agreement
reflects the fact that Argentina’s reversionary interests were part of
the exchange offer that was valuable to bondholders, as was
Argentina’s offer to modify them.
Second, Argentina made another exchange offer in 2010 for
roughly $100 million. Brady Bond holders were initially excluded,
but Argentina tried to modify the prior attachment of its reversionary
interests to include the Brady Bonds in the offer. It sought permission
to transfer a pro rata share of the Brady Collateral directly to
tendering bondholders. See Cap. Ventures Int’l, 652 F.3d at 269. This
Court rejected that effort because the existing attachment of the
reversionary interests prohibited the exchange from going forward
with respect to Brady Bond holders. See id. at 273. Argentina thus
offered to alter its reversionary interests to include Brady Bond
5 Although the Continuation of Collateral Pledge Agreement
prevented attachments that would impede the exchange offer, a creditor,
Capital Ventures International, successfully attached the reversionary
interests after the exchange offer concluded. See Cap. Ventures Int’l, 443 F.3d
at 223.

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holders in the exchange. And the reversionary interests ultimately
forced Argentina to alter the terms of its exchange offer.
The reversionary interests gave Argentina rights in the
collateral that were valuable to both its creditors and its bondholders.
Argentina twice offered to alter or extinguish the reversionary
interests to incentivize bondholders to participate in its exchange
offers. Thus Argentina used the reversionary interests in these
transactions.6
Argentina argues that these uses were not for commercial
activity because the Brady Bonds were issued as part of the Brady
Plan, which was open only to sovereigns, and that it participated in
the Plan only to further “intergovernmental policy objectives.” We
are unpersuaded. Although the Brady Collateral was available only
to sovereigns, once Argentina obtained that collateral, it issued
ordinary collateralized bonds on the open market. The 2005 and 2010
exchange offers likewise were commercial bond offerings, and the
6 Argentina also argues that the reversionary interests cannot be
attached while the Brady Bonds are in default because Argentina itself
cannot exercise the interests. It cites our decision in Capital Ventures
International v. Republic of Argentina, which held that a judgment creditor
could not obtain excess collateral for the Brady Bonds in part because the
CPA barred Argentina from receiving the collateral while the bonds were
in default. 280 F. App’x 14, 15-16 (2d Cir. 2008) (summary order). This
argument confuses the reversionary interests with the collateral itself.
Whether Argentina can exercise the reversionary interests and gain access
to excess collateral is separate from the question whether a creditor can
attach those interests. The interests may be “used” and attached without
being exercised.

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fact that they were made by Argentina does not convert them into
sovereign activity.
The FSIA provides that “[t]he commercial character of an
activity shall be determined by reference to the nature of the course
of conduct or particular transaction or act, rather than by reference to
its purpose.” 28 U.S.C. § 1603(d). “[A] foreign state engages in
commercial activity ‘when a foreign government acts, not as a
regulator of a market, but in the manner of a private player within
it.’” Anglo-Iberia Underwriting Mgmt. v. P.T. Jamsostek, 600 F.3d 171,
176 (2d Cir. 2010) (quoting Republic of Argentina v. Weltover, 504 U.S.
607, 614 (1992)). As this Court has explained, “a state engages in
commercial activity under the FSIA where it exercises only those
powers that can also be exercised by private citizens, as distinct from
those powers peculiar to sovereigns. Put differently, a foreign state
engages in commercial activity for purposes of the FSIA only where
it acts in the manner of a private player within the market.” Id. at 176-
77 (cleaned up) (quoting Saudi Arabia v. Nelson, 507 U.S. 349, 360
(1993)). It is thus the nature of the act, not its purpose, that matters in
evaluating commercial character. “[T]o determine the nature of a
sovereign’s act, we ask not whether the foreign government is acting
with a profit motive or instead with the aim of fulfilling uniquely
sovereign objectives but rather whether the particular actions that the
foreign state performs (whatever the motive behind them) are the
type of actions by which a private party engages in ‘trade and traffic
or commerce.’” Id. (cleaned up) (quoting Weltover, 504 U.S. at 614).
To determine whether property is “used for a commercial
activity,” we adopt a totality-of-the-circumstances approach. See, e.g.,

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TIG Ins. Co. v. Republic of Argentina, 967 F.3d 778, 785-88 (D.C. Cir.
2020) (discussing the approaches used by the Third, Fifth, and Ninth
Circuits and adopting a similar approach). We examine “the uses of
the property in the past as well as all facts related to its present use,
with an eye toward determining whether the commercial use of the
property, if any, is so exceptional that it is an out of character use for
that property.” Id. at 786 (quoting Af-Cap Inc. v. Republic of Congo, 383
F.3d 361, 369 (5th Cir. 2004)); see also Crystallex Int’l Corp. v. Bolivarian
Republic of Venezuela, 932 F.3d 126, 150 (3d Cir. 2019) (adopting the
same test). As relevant here, the totality-of-the-circumstances inquiry
prevents a judgment creditor from attaching sovereign property by
pointing to sporadic commercial uses inconsistent with the typical
uses of the property. But it also prevents a sovereign from defeating
attachment by using property in occasional non-commercial activity.
See TIG Ins., 967 F.3d at 786 (“[A]n artificially narrow lens allows one-
time or aberrational uses to dictate the fate of the property.”).
It does not matter, and we do not decide, whether Argentina’s
purchase of the Brady Collateral was a sovereign, rather than
commercial, activity because Argentina’s acquisition of the Brady
Collateral is not the transaction at issue. The focus of our inquiry is
not the Brady Collateral itself, but Argentina’s reversionary interests
in that collateral. Those reversionary interests did not exist when
Argentina bought the collateral, so they could not have been “used”
in that transaction. It follows that the commercial or sovereign nature
of Argentina’s use of the reversionary interests cannot depend on the
characteristics of a deal that closed before they existed.

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Argentina tries to elide this distinction by collapsing two
separate transactions into one. In the first, Argentina bought bonds
from the Treasury and the Kreditanstalt für Wiederaufbau, an
arguably sovereign activity.7 But in the second, it used those bonds
to collateralize its own Brady Bonds in the same way any other market
participant would create a collateralized bond. How Argentina came
to acquire that collateral in this specific instance has no bearing on the
nature of the second transaction.8
7 In EM Ltd. v. Republic of Argentina, we held that the FSIA did not
allow Argentina’s creditors to attach certain funds held in a N.Y. Fed
account just because they could be used to repay Argentina’s debt to the
International Monetary Fund (“IMF”). 473 F.3d 463, 481-85 (2d Cir. 2007).
Argentina’s relationship with the IMF wasn’t “commercial” for several
reasons. First, “when [Argentina] borrows from the IMF, it exercises
powers peculiar to sovereigns.” Id. at 482 (cleaned up). Second,
Argentina’s “borrowing relationship with the IMF is regulatory in nature”
because borrowing from the IMF “generally requires regulatory action.” Id.
at 483. Third, “the terms and conditions of [Argentina’s] borrowing
relationship with the IMF are not governed by a garden-variety debt
instrument, but instead by [its] treaty obligations to the international
organization, as supplemented by the terms and conditions contained in
agreements associated with individual loans.” Id. at 483-84 (cleaned up).
And fourth, “IMF loans are structured in a manner unique to the
international organization, and are not available in the commercial
market.” Id. at 484. Argentina’s receipt of the Brady Collateral—which only
a sovereign could obtain—thus bears some resemblance to its receipt of IMF
funds. But again, that transaction is not the focus of our inquiry here.
8 Nor did the collateralization of the Brady Bonds necessarily depend
on the specific bonds used as Brady Collateral. Sections 6.03 and 6.04 of the
CPAs allowed Argentina to substitute the Brady Collateral for other

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That second transaction—Argentina’s issuance of sovereign
bonds—involved “garden-variety debt instruments” that “may be
held by private parties; . . . are negotiable and may be traded on the
international market . . . ; and . . . promise a future stream of cash
income.” Weltover, 504 U.S. at 615. It was thus commercial activity
under the FSIA. Id. And if that transaction was commercial, so too
were the 2005 and 2010 exchange offers. Neither exchange offer
depended on the fact that the underlying collateral was a special
Treasury bond available only to sovereigns. Both involved an offer to
exchange old debt for new, as any non-sovereign entity might do.
Under the totality of the circumstances here, Argentina’s uses
of the reversionary interests have been commercial in nature. And in
light of the history of these reversionary interests—including this
Court’s rejection in 2011 of Argentina’s attempted use in Capital
Ventures International, 652 F.3d at 270—we conclude that they are
attachable.
2. The Commercial Activity Was in the United States
Argentina’s next argument against attachment concerns only
the reversionary interests in the DMK Collateral. It argues that no use
of a reversionary interest occurred “in the United States” because the
DMK Collateral is in Germany and no transaction involving that
collateral occurred in the United States. Appellees respond that the
relevant inquiry is where the reversionary interests—not the DMK
Collateral—are located. And an intangible property interest, they
collateral and then exercise the reversionary interest. So the CPAs did not
require the Brady Bonds to be collateralized by the Brady Collateral.

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argue, is located where the party from which performance is required
is located. That party here is the N.Y. Fed. in New York. Finally, they
point to the 2005 and 2010 exchange offers as uses of the interest in
the United States, though they maintain that the relevant inquiry is
only the location of the reversionary interests.
The FSIA requires that the attached property be in the United
States and that the use of that property in commercial activity occur in
the United States. See 28 U.S.C. § 1610(a) (permitting attachment of
“[t]he property in the United States of a foreign state . . . used for a
commercial activity in the United States.” (emphases added)); see also
Exp.-Imp. Bank of the Rep. of China, 768 F.3d at 79 (“[U]nder some
circumstances, the FSIA permits a creditor to execute a judgment
against assets of a foreign sovereign if the assets are in the United
States when attached and are used for a commercial activity in the
United States.” (quotation marks omitted) (emphasis added)). Both
requirements are satisfied here.
First, Argentina’s argument focuses on the wrong property
interest. The question is where Argentina’s reversionary interests in
the DMK Collateral are located, not the collateral itself. The parties
agree that the default rule is that the relevant location of intangible
property is the situs of the property. For a contractual right like the
reversionary interests, the situs is the location of the party “upon
whom rests the obligation of performance.” ABKCO Indus., Inc. v.
Apple Films, Inc., 39 N.Y.2d 670, 675 (1976).9 Here, that party is the
9 We assume that New York law—not federal law—provides the
relevant test for locating the situs of the reversionary interests because they

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N.Y. Fed as collateral agent, which is tasked with returning any excess
Brady Collateral to Argentina upon the exercise of the reversionary
interests. Argentina responds that there is an exception to the general
rule for the location of intangible property where “‘intangibles are
deemed to have become embodied in formal paper writings, e.g.,
negotiable instruments’ at which point ‘attachment depends on the
physical presence of the written instrument within the attaching
jurisdiction.’” Appellant’s Br. II at 28 (quoting ABKCO Indus., 39
N.Y.2d at 675). And here, the DMK Collateral consists of negotiable
instruments—bearer bonds—located outside New York. But this
argument again confuses the object of attachment—the reversionary
interests in the collateral, not the collateral itself. The reversionary
interests were created by the CPAs. See ABKCO Indus., 39 N.Y.2d at
675 (“No fact of physical location or concept of embodiment applies,
however, to intangible property in an ordinary contract, written or
oral.”). The location of the collateral thus does not determine the
location of the reversionary interests. Instead, the reversionary
interests are located within the United States—in New York State—
where the N.Y. Fed is located.
are creatures of contracts governed by New York law. See Calderon-Cardona
v. Bank of N.Y. Mellon, 770 F.3d 993, 1001 (2d Cir. 2014) (stating that the FSIA
takes property interests as it finds them—defined by state law). But see Af-
Cap Inc., 383 F.3d at 371-72 (employing a situs test not tied to the law of any
one state when analyzing property’s location under the FSIA). We need not
resolve this question because the result is the same either way. The situs of
the reversionary interests is New York. See Af-Cap Inc., 383 F.3d at 371
(applying a “common sense appraisal of the requirements of justice and
convenience” to determine that the situs of intangible tax and royalty
obligations was the location of the garnishee).

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Second, the commercial activity in which Argentina used the
reversionary interests took place at least in part in the United States.
Both the 2005 and 2010 exchange offers were made in the United
States and registered with the Securities and Exchange Commission.
* * *
Argentina used the reversionary interests as part of its
exchange offers in 2005 and 2010. That use was commercial activity
in the United States. The reversionary interests thus are not immune
from attachment under the FSIA, and we affirm the district court’s
orders of attachment.
C. Turnover
Argentina next argues that its reversionary interests are not
subject to turnover. New York law allows for the turnover of
property in the possession or custody of someone other than the
judgment-debtor “where it is shown that the judgment debtor is
entitled to the possession of such property.” N.Y. C.P.L.R. 5225(b).
The district court granted Appellees’ motion for turnover of
Argentina’s reversionary interests in the Dollar and DMK Collateral
but stayed the turnover pending this appeal.
Argentina makes three main points. First, the reversionary
interests cannot be turned over because they were improperly
attached. Having affirmed the attachment of the reversionary
interests, we reject this argument. Second, the reversionary interests
in the DMK Collateral cannot be turned over because the N.Y. Fed
does not have “possession or custody” of the DMK Collateral. This
argument again elides the differences between Argentina’s

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reversionary interest in the DMK Collateral and the DMK Collateral
itself.
Third, Argentina argues that it is not a “judgment debtor” for
purposes of C.P.L.R. 5225. New York law defines that term as “a
person . . . against whom a money judgment is entered.”
C.P.L.R. 105(m). Argentina argues that it is not a “person” and so not
a “judgment debtor” because there is a presumption under New York
law that the term “person” does not include sovereigns. See In re Fox,
52 N.Y. 530, 535 (1873) (“The word person does not, in its ordinary or
legal signification, embrace a State or government[.]”).
But that is an oversimplification. New York law does not
always use “person” so narrowly, and the term is sometimes used “in
its enlarged sense” to encompass sovereigns. Republic of Honduras v.
Soto, 112 N.Y. 310, 312-13 (1889) (holding that a sovereign was a
“person” under a former procedural statute). The appropriate usage
depends on “the objects [the statute] had in view, the evils intended
to be remedied, and the benefits expected to be derived from it.” Id.
at 313.
It would make little sense if the term “person” excluded
sovereigns in this context. The C.P.L.R. often refers to “persons” in
procedural rules that apply to all parties, including sovereign entities.
See, e.g., C.P.L.R. 1001-1002 (necessary and permissive joinder);
C.P.L.R. 1013 (permissive intervention); see also Swezey v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 19 N.Y.3d 543, 550-52 (2012)
(holding that the Republic of the Philippines was a necessary party
under C.P.L.R. 1001(a)). Interpreting “person” to exclude sovereigns
here would cut them out of a normal part of civil litigation—judgment

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enforcement—because the C.P.L.R. also defines a “judgment
creditor” using the term. C.P.L.R. 105(l) (defining “judgment
creditor” as “a person in whose favor a money judgment is entered or
a person who becomes entitled to enforce it”); see also Commonwealth
of Northern Mariana Islands v. Canadian Imperial Bank of Comm., 21
N.Y.3d 55 (2013) (interpreting C.P.L.R. 5225(b) after a foreign
government initiated turnover proceedings under that section).
Argentina points to no authority indicating that New York has sought
to bar foreign sovereigns from enforcing judgments in its courts or
any plausible reason for doing so.
We affirm the district court’s turnover orders.
D. Motions
Lastly, there are two outstanding motions before this Court.
First, Argentina moved to supplement the record of the first appeal to
include proceedings related to the DMK Collateral that occurred after
that appeal was filed. Those materials entered the record in the
second appeal. The motion is now moot, so we deny it.
Second is a motion filed by intervenor Bainbridge Fund Ltd
seeking greater access to the myriad sealed and redacted filings in this
case. On January 4, 2023, we entered an order requiring that “[a]ny
sealings and redactions made by the parties . . . be ‘narrowly tailored
to achieve’ the purpose of sealing, as to documents subject to the First
Amendment right of access, and . . . reflect a weighing of the
presumption in favor of access ‘against countervailing interests
favoring secrecy[,]’ as to documents to which only the common law
right of access applies.” Dkt. 145 at 2 (quoting Newsday LLC v. Cnty.
of Nassau, 730 F.3d 156, 165 (2d Cir. 2013)). Bainbridge moves to

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enforce the terms of that order, arguing that the parties’ sealing is not
narrowly tailored. That motion is granted.
Two rights of access can apply to materials in a civil action. The
first, under the First Amendment, “applies to civil trials and to their
related proceedings and records.” Newsday LLC, 730 F.3d at 163
(quotation marks omitted). That includes “among other things, [the]
summary judgment motions and documents relied upon in
adjudicating them, pretrial motions and written documents
submitted in connection with them, and docket sheets.” Id. at 164
(citations omitted). The First Amendment creates a presumptive right
of access that can be “overcome by specific, on-the-record findings
that sealing is necessary to preserve higher values and only if the
sealing order is narrowly tailored to achieve that aim.” Id. at 165
(quotation marks omitted).
When the First Amendment protection doesn’t apply to court
records, the second, common-law right “attaches with different
weight depending on two factors: (a) the role of the material at issue
in the exercise of Article III judicial power and (b) the resultant value
of such information to those monitoring the federal courts.” Id.
(quotation marks omitted). The right is “balanced against
countervailing interests favoring secrecy.” Id. Thus, under either
analysis, parties must have a valid reason to seal materials.
Appellees sought to seal the case below “to protect
against . . . another creditor finding out what we’re doing and then
trying to jump the line ahead of us if for some reason there were a
delay in the marshal’s effecting service of the attachment order.” Joint
App’x at 918-19. The district court then granted the parties’ joint

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sealing motion “because of the sensitivity of the financial information
and the [settlement] negotiations.” Id. at 923.
At oral argument, the parties confirmed that they had not been
engaged in settlement negotiations for some time. Those negotiations
no longer provide a reason to seal materials here. Moreover, any
interest that Appellees had in preserving the secrecy of their efforts to
attach the assets at issue has waned because the orders of
attachment—and turnover—have already issued. As Appellees told
the district court, “there would be no need . . . to maintain the seal and
the documents could become part of the public record” “once the levy
is established.” Id. at 918.
That leaves only any sensitive financial information. It is
unclear which information, if any, should remain sealed on this basis.
For that reason, the parties shall refile their sealed materials within
thirty days, redacting only material containing sensitive financial
information.
IV. CONCLUSION
Argentina used its reversionary interests for commercial
activity in the United States just like any other commercial actor. It
cannot now invoke the FSIA to avoid the consequences of that
decision. The reversionary interests are both attachable and subject
to turnover.
The orders of the district court are affirmed, the motion to
supplement the record is denied as moot, and the motion to unseal is
granted.

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