Fintech in Defeating Attachment of Bonds Submitted in Tender Offer

Cleary Gottlieb represented Fintech Advisory, the manager of a private investment fund focused on emerging markets, in connection with attachment proceedings brought on behalf of Aurelius Capital Master and Elliott International in New York Supreme Court against Vitro, a leading Mexican glass manufacturer. In early November 2010, Vitro commenced a Tender Offer as part of a larger effort to restructure its debt. As Vitro’s largest creditor, Fintech supported the restructuring by, among other things, agreeing to provide funding in an amount of approximately $25 million to be exchanged in the Tender Offer for certain tendered notes that had been issued by Vitro. Aurelius and Elliott attempted to interfere with these transactions by obtaining ex parte attachment orders from the Supreme Court and seeking to attach the notes tendered in the Tender Offer.

Following expedited briefing in which Cleary Gottlieb submitted papers on behalf of Fintech as an interested non-party, the Supreme Court agreed with the argument that the Vitro notes were debt, rather than assets, of Vitro and thus did not constitute attachable property under New York law. The First Department denied plaintiffs’ request for a stay of that decision pending an expedited appeal, and the Tender Offer settled on December 21, 2010.