On Monday, after three years of aggressive litigation and just three weeks before a potentially dispositive hearing before Judge Rakoff in the Southern District of New York, the Plaintiff withdrew its Complaint and discontinued the action against our client, defendant Agua y Saneamientos Argentinos S.A.’s (AySA). AySA, is a corporation that was formed by Argentina to provide water and sewerage services in Buenos Aires following Argentina’s termination of a 30-year concession held by Aguas Argentines, S.A. (Aguas), a privately owned company. In its complaint, Plaintiff sought damages in excess of $140 million and alleged that AySA should be held liable, as alleged successor-in-interest to Aguas, for Aguas' debts under loan agreements between Plaintiff’s members and Aguas, even though AySA and Aguas are distinct entities and AySA was not created until years after both the execution of the Aguas loan agreements and Aguas' initial defaults on those loans. In June 2007, AySA moved to dismiss the claims against it on several grounds that implicated important issues of jurisdiction, including foreign sovereign immunity, the Act of State doctrine and forum non conveniens. In March 2008, the Honorable Robert Carter, United States District Judge for the Southern District of New York, granted AySA's motion to dismiss on the grounds of forum non conveniens. In October 2009, the United States Court of Appeal for the Second Circuit vacated the SDNY’s decision and remanded the case for discovery on two issues: (1) whether AySA is a successor in interest to Aguas, and (2) whether Argentine or New York law should be applied to the successorship analysis. Over the past 7 months, the parties have been engaged in an intensive discovery process—both in Argentina and New York. Plaintiff’s voluntary dismissal of the case comes hot on the heels of our depositions of its witnesses and expert depositions, all of which played out heavily in AySA’s favor.
The litigation team comprised Jack Kerr (through 2009), Rob Smit (since late 2009), Janet Whittaker, Silvia Ostrower, Kim Hamm, Allyson Rothberg, Heather Shaffer, Meg Ciavarella, Colleen Gilg, Brett Lohoefener, and Magallie Kortright. David Williams advised the litigation team throughout the case.