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PRAVIN BANKER ASSOCS. v. BANCO POPULAR DEL PERU

June 15, 1998

PRAVIN BANKER ASSOCIATES, LTD., Plaintiff, against BANCO POPULAR del PERU and THE REPUBLIC OF PERU, Defendants.

ROBERT W. SWEET, U.S.D.J.


The opinion of the court was delivered by: SWEET

OPINION

Sweet, D.J.

 Plaintiff Pravin Banker Associates, Ltd. ("Pravin") has moved for an order of execution (1) granting execution, pursuant to 28 U.S.C. § 1610, upon the obligations of Merrill Lynch & Co. ("Merrill Lynch"), J.P. Morgan Securities, Inc. ("J.P. Morgan"), CS First Boston, Salomon Brothers Inc., and Smith Barney Inc. (the "Underwriters") to pay for certain shares of stock of Telefonica del Peru, S.A. ("Telefonica") in order to satisfy the $ 2,133,061.11 judgment, plus post-judgment interest (the "Judgment Amount"), rendered by this Court against the Republic of Peru ("Peru") and Banco Popular del Peru (together, the "Defendants") and in favor of Pravin; (2) granting execution upon the undertaking discharging the attachment (the "Undertaking") underwritten by National Union Fire Insurance Company ("National Union") in favor of Pravin; and (3) directing National Union to pay the Judgement Amount to Winthrop, Stimson, Putnam & Roberts, as attorneys for Pravin. For the reasons set forth below, the motion is denied.

 The Parties

 Pravin is a Delaware corporation having its principal place of business in New York City.

 Banco Popular is a Peruvian state entity organized and incorporated under the laws of Peru and is a foreign state instrumentality as defined in 28 U.S.C. § 1603(b).

 Peru is a foreign state as defined in 28 U.S.C. § 1603(a).

 Prior Proceedings

 Pravin commenced this action on January 7, 1993. By opinion and order dated February 24, 1994, the Court stayed Pravin's summary judgment motion for six months. Pravin Banker Assocs., Ltd. v. Banco Popular del Peru, 165 B.R. 379 (S.D.N.Y. 1994) ("Pravin I"). By opinion and order dated March 8, 1995, the Court granted Defendants a further stay of sixty days to enable the parties to submit responses to certain questions. Pravin Banker Assocs., Ltd. v. Banco Popular del Peru, 1995 U.S. Dist. LEXIS 2730, No. 93 Civ. 0094, 1995 WL 102840 (S.D.N.Y. 1995) ("Pravin II"). By opinion and order dated August 24, 1995, the Court granted Pravin's motion for summary judgment in its favor regarding the enforcement of Defendants' obligations under the 1983 financing plan and the guaranty underlying the debt, and denied Defendants' motion to dismiss or stay the action. Pravin Banker Assocs., Ltd. v. Banco Popular del Peru, 895 F. Supp. 660 (S.D.N.Y. 1995) ("Pravin III"), aff'd, 109 F.3d 850 (2d Cir. 1997). The Clerk of the Court entered judgement on September 5, 1995, and on September 14, 1995, Defendants moved, pursuant to Rule 58, Fed. R. Civ. P., by Order to Show Cause to vacate the judgment on the grounds that the judgment was not for a sum certain. Defendants also moved on September 15, 1995, for an order extending their time to reargue Pravin III. The Court granted both motions on October 12, 1995, and thereafter deemed that the motions would be treated as a Notice of Settlement of Judgment. The Court granted Pravin's motion for summary judgment regarding enforcement of Defendants' obligations under the letter agreement and guaranty, in a sum certain of $ 2,083,234.61, plus pre-judgment simple interest accrued from October 26, 1995, through the date of judgment, plus post-judgment interest calculated pursuant to 28 U.S.C. § 1961. Pravin Banker Assocs., Ltd. v. Banco Popular del Peru, 912 F. Supp. 77 (S.D.N.Y. 1996) (Pravin IV).

 Pravin filed the instant motion on February 2, 1998. Oral argument was heard on March 18, 1998, at which time the motion was deemed fully submitted.

 Facts

 The underlying facts in this matter are set forth in the prior opinions of the Court, familiarity with which is assumed. See Pravin I, Pravin II, Pravin III, and Pravin IV. The facts relevant to the instant motion are discussed below.

 A. Telefonica Privatization

 In January 1996, Corporacion Nacional del Desarrollo ("CONADE"), a Peruvian state-owned enterprise, announced plans to sell its remaining 28.6 percent interest in Telefonica through a global stock offering. *fn1" Telefonica was a legally independent private corporation, subject to Peruvian corporate law, which operated the domestic and long distance ...


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