In a last-ditch effort to stave off defeat in its long-running battle with bondholders who want to be paid, Argentina in February asked the U.S. Supreme Court to hear its appeal from an adverse appeals court decision. It is now busy trying to line up amici curiae (“friends of the court”) to file supporting briefs with the High Court. The deadline for filing amicus briefs is next Monday, and a number of groups and foreign countries have given official notice of their intent to file briefs in support of Argentina.
However, there are some indications that Argentina has paid for one or more of the anticipated amicus filings. The Supreme Court takes a dim view of that practice; it wants each amicus filer to truly be a “friend of the court,” not a “friend of a party.” The Court does not strictly prohibit the filing of amicus briefs that have been paid for by a party. But it requires that the fact of payment be explicitly disclosed in the opening footnote of the amicus brief.
Lawyers who practice regularly before the Court know that a disclosure of payment in Footnote 1 is a black mark; the Court is unlikely to pay much attention to a paid-for brief. The justices view such briefs as simply a second brief from one of the parties, an effort to evade the strict word limit that the Court imposes on parties’ briefs.
Brazil’s potential brief is particularly suspect. Accounts appearing this week in the Brazilian press (here, here, here, here, and here; translated stories here) relate that Brazil has agreed to a request from Argentina to file an amicus brief in support of Argentina’s petition for review. The press accounts claim that Brazil agreed to the request in return for financial favors. In return for agreeing to file, Brazil allegedly received commitments from Argentina for: (1) removal of trade barriers, particularly in the automobile industry; and (2) financing for Argentine car dealerships, to allow them to purchase more Brazilian cars.
Mexico has already filed its intent to file an amicus brief in support of Argentina. Argentina may also be courting France to file with the Court; President Kirchner met today with President Hollande It’s hard to say if Argentina is using the same tactics with Mexico and France, but if any sort of financial encouragement is on the table, both nations should be aware of the “Footnote 1” ramifications and take heed.
If the Brazilian press accounts are accurate, then its lawyers will be required under Supreme Court rules to disclose in the opening footnote of their brief the payments made by Argentina to finance the brief. Would Brazil still decide to file once its lawyers inform it of the required disclosures? An amicus brief submitted by a disinterested South American country urging the Court to hear a case raising issues deemed important by that country might have some influence on the Court’s decision-making process. In contrast, an amicus brief filed by a country that has been paid for the filing by one of the parties is likely to sit on a shelf gathering dust.