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Argentina will file its final US Supreme Court appeal in the NML Capital hedge fund debt case before this Monday, February 17th. Legal observers, economists, investors, the United Nations, the Obama Administration, the International Monetary Fund (IMF) and the religious community have closely monitored the proceedings.
"The final outcome affects poverty around the globe, over a decade of US bipartisan debt policy and the profits of legitimate investors," stated Eric LeCompte, Executive Director of the religious debt campaign, Jubilee USA Network. "The religious community applauds the global consensus to deter and not reward this exploitative, predatory behavior."
Argentina's Supreme Court filing responds to a US 2nd Circuit Court ruling ordering the country to pay $1.33 billion to predatory hedge funds and other holdout bond holders. A final ruling in favor of the holdouts will hurt poor countries in financial distress and could allow a small group of hedge funds to target assets that benefit vulnerable populations. At the same time, the majority of debt holders who previously restructured their debt with Argentina have hired lawyers to help negotiate the dispute between holdout hedge funds and Argentina. Nearly 93% of debt holders restructured their debt with Argentina after the 2001 default. The restructured bondholders are concerned that their settlements could be disrupted if hedge funds win the final ruling. In a separate case currently before the Supreme Court, Argentina sought review of a lower court decision allowing NML Capital to seek information about Argentina's non-US assets. The United States filed an amicus brief in support of Argentina, arguing that Argentina's assets are immune from seizure under federal sovereign immunity law.
"These hedge funds hurt legitimate investors and poor people," said LeCompte, "The IMF, World Bank and White House are right that this extreme behavior takes advantage of the world's poorest people."
Interested parties will now have 30 days to file an amicus or friend-of-the-court brief urging the Supreme Court to accept the case. The Supreme Court would likely decide by the summer whether or not it will actually accept this final appeal. These cases go back to 2001, when Argentina defaulted on roughly $81 billion in debt. Multiple hedge funds purchased debt for pennies on the dollar. These hedge funds are called "vulture" funds because they prey on countries in financial distress and target assets that benefit poor populations. The nearly 93% of bondholders who restructured their debts with Argentina have seen the value of their bonds increase. The holdout hedge funds that are suing Argentina refused the deal several times and have instead sued for the full amount of the debt they purchased.
The opposition to vulture funds is widespread. Similar hedge fund claims against Argentina have been rejected by courts in Germany, and France filed an amicus brief in support of Argentina in a previous appeal to the Supreme Court. In numerous court proceedings, the US government filed an amicus brief in support of Argentina, arguing that a ruling against Argentina could make it much more difficult for countries in financial recovery or facing economic stress to access credit and debt swaps. The IMF has also weighed in on the case, saying that the result would have major implications for how future sovereign debt is restructured.
"There finally seems to be an endgame in sight," noted LeCompte. "The question now is will the final ruling protect our global economy from this extreme behavior or encourage this harmful hedge fund behavior."
Read more about this case on our website.
Jubilee USA Network is an interfaith, non-profit alliance of religious, development and advocacy organizations. We are 75 U.S. institutions and more than 750 faith groups working across the United States and around the globe. We address the structural causes of poverty and inequality in our communities and countries around the world.(202) 783-3566
"Energy security can only be achieved by rapidly and equitably phasing out fossil fuels and transitioning to renewable energy, not locking in deadly fossil fuels and lining the pockets of oil and gas executives," said one critic.
Since Group of Seven leaders on Saturday put out a wide-ranging communiqué from a Japan-hosted summit in Hiroshima, climate action advocates from G7 countries and beyond have blasted the statement's support for future investments in planet-heating gas.
The statement comes after G7 climate, energy, and environment ministers were criticized for their communiqué from a meeting in Sapporo last month as well as protests around the world this week pressuring the summit's attendees to ditch fossil fuels and "deliver a clear and just renewable energy agenda for a peaceful world."
To meet the 1.5°C goal of the Paris climate agreement, the new statement commits to "accelerate the phaseout of unabated fossil fuels so as to achieve net-zero in energy systems by 2050 at the latest" along with "the elimination of inefficient fossil fuel subsidies by 2025 or sooner."
"The G7 must stop using fossil fuels immediately—the planet is on fire."
The statement also highlights that last year, G7 nations—Canada, France, Germany, Italy, Japan, the United Kingdom, and the United States—pledged to end "new direct public support for the international unabated fossil fuel energy sector, except in limited circumstances," though as recent analysis
shows, some are breaking that promise.
The communiqué then endorses liquefied natural gas (LNG) as a solution to "the global impact of Russia's war on energy supplies, gas prices and inflation, and people's lives," referencing the invasion of Ukraine:
In this context, we stress the important role that increased deliveries of LNG can play, and acknowledge that investment in the sector can be appropriate in response to the current crisis and to address potential gas market shortfalls provoked by the crisis. In the exceptional circumstance of accelerating the phaseout of our dependency on Russian energy, publicly supported investment in the gas sector can be appropriate as a temporary response, subject to clearly defined national circumstances, if implemented in a manner consistent with our climate objectives without creating lock-in effects, for example by ensuring that projects are integrated into national strategies for the development of low-carbon and renewable hydrogen.
"The G7 energy outcome correctly diagnoses a short-term need for energy security, then promotes a dangerous and inappropriate lock-in of fossil gas that would do nothing to address this need," responded Collin Rees, United States program manager at Oil Change International (OCI). "Energy security can only be achieved by rapidly and equitably phasing out fossil fuels and transitioning to renewable energy, not locking in deadly fossil fuels and lining the pockets of oil and gas executives."
After accusing the summit's attendees of "using the war as an excuse," deflecting blame for current conditions, and neglecting Global South countries disproportionately suffering from the climate crisis, Max Lawson, head of inequality policy at Oxfam, declared that "the G7 must stop using fossil fuels immediately—the planet is on fire."
\u201cShame on the #G7 \ud83c\uddfa\ud83c\uddf8\ud83c\uddec\ud83c\udde7\ud83c\uddeb\ud83c\uddf7\ud83c\udde8\ud83c\udde6\ud83c\udde9\ud83c\uddea\ud83c\uddee\ud83c\uddf9\ud83c\uddef\ud83c\uddf5\n\nIn their official communique released today, they frame fossil gas as "important" & "appropriate" &\u00a0even called for expansion.\n\nFossil fuels are the top cause of the climate crisis. \n\nIt's time for a Fossil Fuel Non-Proliferation Treaty.\u201d— Fossil Fuel Non-Proliferation Treaty Initiative (@Fossil Fuel Non-Proliferation Treaty Initiative) 1684589865
Greenpeace International global climate politics expert Tracy Carty also demanded a swift end to fossil fuels, charging that "G7 leaders' endorsement of new fossil gas is a blunt denial of the climate emergency" which dooms "current and future generations."
Gerry Arances, executive director of the Philippine Center for Energy, Ecology, and Development, similarly argued that "the endorsement of increased LNG deliveries and investment in gas in the G7 communiqué is no mere backsliding—it is a death sentence being dealt by the G7 to the 1.5°C limit and, in consequence, to the climate survival of vulnerable peoples in the Philippines, Southeast Asia, and across the world."
"Unless they genuinely put forward the phaseout of all fossil fuels, Japan and all G7 nations spout nothing but lies when they say they have aligned to 1.5°C," he continued. "They cannot claim to be promoting development while subjecting our people to decades more of pollution and soaring energy prices. We reject this notion of a development powered by fossil fuels."
Looking to the United Nations Climate Change Conference (COP28) planned for later this year, Arances added that "Japan and G7 leaders should already be warned that civic movements will not tire in pushing back against fossil fuels and false solutions and in demanding a renewable energy transition."
"Civic movements will not tire in pushing back against fossil fuels and false solutions and in demanding a renewable energy transition."
Other campaigners also specifically called out the Hiroshima summit's host—including Ayumi Fukakusa, deputy executive director at Friends of the Earth Japan, who asserted that the country "has used the G7 presidency to derail the global energy transition."
"Japan has been driving the push to increase gas investments and has been promoting its so-called 'green transformation’ strategy," Fukakusa said of a "greenwashing scheme" featuring hydrogen, ammonia, nuclear, and carbon capture and storage technologies.
OCI Asia program manager Susanne Wong agreed that given the nation's promotion of gas expansion and technologies to prolong the use of coal, "this year's G7 is revealing Japan's failure of climate leadership at a global level."
"Activists mobilized 50 actions across 22 countries this week to demand that Japan end its fossil fuel finance and stop driving the expansion of gas and other fossil-based technologies," Wong added. "Japan will continue to face intense international scrutiny until it stops fueling the climate crisis."
\u201cShame on Canada & other #G7 leaders for caving to the narrow financial interests of fossil gas companies \n\nThe world is burning and our leaders keep dumping more fuel on the fire\u201d— Julia Levin (@Julia Levin) 1684587302
Groups from other G7 countries also called out their political leaders. Petter Lydén, head of international climate policy at Germanwatch, said, "Most likely, the German chancellor, Olaf Scholz, has been a driving force behind the weak language on gas, which is a serious blow to Germany's international credibility on climate."
Citing sources familiar with summit negotiations,
The New York Timesreported Saturday that "Britain and France fought the German effort" while U.S. President Joe Biden was caught between defending his climate agenda and "aiding other United States allies intent on increasing their access to fossil fuels."
OCI's Rees said the that "this betrayal continues a disturbing turn by President Biden and Chancellor Scholz from rhetorically committing to climate leadership to openly boosting fossil fuel expansion. History will not look kindly on world leaders who accelerate the pace of fossil fuel buildout in the face of worsening climate crisis."
"DOJ can and SHOULD admit that the plaintiff is right," one political observer said of NAGE's case that takes aim at the debt limit statute. "The administration is not required to defend the legally indefensible."
As the White House and congressional negotiators fail to stop the U.S. from hurtling toward an economically "catastrophic" default, a labor union representing nearly 75,000 government workers on Friday asked a federal court to take emergency action.
Treasury Secretary Janet Yellen has warned that if Congress doesn't raise the debt ceiling—which House Speaker Kevin McCarthy (R-Calif.) and other GOP lawmakers refuse to do without spending cuts targeting working people—the government could run out of money to pay its bills as early as June 1.
That rapidly approaching deadline and fruitless negotiations have led a growing number of lawmakers and legal scholars to urge President Joe Biden to invoke the 14th Amendment to the U.S. Constitution, which states that "the validity of the public debt... shall not be questioned."
Friday's request for judicial intervention stems from a lawsuit—which cites the 14th Amendment—that attorneys for the National Association of Government Employees (NAGE) filed in the U.S. District Court for the District of Massachusetts on May 8. While Biden and Yellen are named as defendents, the aim of the case is to have the debt limit law declared unconstitutional.
"This litigation is both an effort to protect our members from illegal furloughs and to correct an unconstitutional statute that frequently creates uncertainty and anxiety for millions of Americans."
"This litigation is both an effort to protect our members from illegal furloughs and to correct an unconstitutional statute that frequently creates uncertainty and anxiety for millions of Americans," NAGE national president David Holway said earlier this month. "The debt ceiling has become a political football for certain members of Congress. If Congress will not raise the debt limit as it has nearly 80 times before without condition, it leaves no constitutional choice for the president."
"Congress' failure of will to act is not justification to violate the Constitution," added Holway, just days after his union endorsed Biden for reelection. "But it is the reason this case had to be filed to protect the American public, federal employees, and our Constitution."
The New Republic staff writer Timothy Noah wrote a couple of days after the first filing that "the NAGE lawsuit invites us to think of Congress as a body that's not merely able but obliged to govern. You don't like how the president spends the taxpayer's money, Mr. Speaker? Then pass a budget, for Chrissakes, and stop playing childish games."
As The American Prospect executive editor David Dayen noted later that week—citing University of Missouri law professor Tommy Bennett—because the president "has the option of minting the trillion-dollar coin to cover obligations, or issuing premium bonds known as consol bonds," he has "a way out of the lose-lose choice of violating one law or the other," which could imperil the case.
Still, Dayen has advocated for the lawsuit to move forward quickly. Early Friday, he highlighted that if the case could be decided soon, "there would be no legal chaos," but lawyers for NAGE "inexplicably" have not sought a temporary restraining order or preliminary injunction that would force Judge Richard Stearns—an appointee of former President Bill Clinton—to act urgently.
Later Friday, the union's legal team did just that—asking the court for an order of preliminary injunction.
Dayen broke down the filing in a series of tweets, then concluded by pointing out that representatives for Biden and Yellen aren't currently required to even respond to the case until days after June 1, the so-called "X-date."
\u201cDOJ can and SHOULD admit that the plaintiff is right. The Administration is not required to defend the legally indefensible.\u201d— Jeff Hauser (@Jeff Hauser) 1684542306
As Biden met with other world leaders at the Group of Seven summit in Hiroshima, Japan on Friday, debt ceiling talks in Washington, D.C. stalled for a bit, then resumed. But negotiators' evening meeting ended without a deal, according toCNN, and "sources at the White House and on Capitol Hill said there were no debt ceiling meetings scheduled for Saturday."
Biden, who is set to head back to D.C. on Sunday, struck an optimistic tone, reportedly saying during a Saturday press conference in Hiroshima that "I still believe we'll be able to avoid a default and we'll get something decent done."
The president said earlier this month that he had been "considering" the 14th Amendment, but "the problem is, it would have to be litigated," so "I don't think that solves our problem now."
Despite growing demands that Biden swiftly end the GOP's economic "hostage-taking" by invoking the amendment—including from at least 11 senators and 66 House progressives this week—Politico's Adam Cancryn reported Friday that publicly, "the White House remains resistant... And privately, its message has been even blunter."
In line with reporting earlier this month by Washington Post White House economics reporter Jeff Stein, Cancryn wrote:
Senior Biden officials have told progressive activists and lawmakers in recent days that they do not see the 14th Amendment... as a viable means of circumventing debt ceiling negotiations. They have argued that doing so would be risky and destabilizing, according to three people familiar with the discussions.
The White House has studied the issue for months, with some aides concluding that Biden would likely have the authority to declare the debt limit unconstitutional as a last-ditch way to sidestep default. But Biden advisers have told progressives that they see it as a poor option overall, fearing such a move would trigger a pitched legal battle, undermine global faith in U.S. creditworthiness, and damage the economy. Officials have warned that even the appearance of more seriously considering the 14th Amendment could blow up talks that are already quite delicate.
"They have not ruled it out," one White House adviser told Politico. "But it is not currently part of the plan."
As McCarthy left the U.S. Capitol Saturday evening, he said that "I don't think we're going to be able to move forward until the president can get back in the country," according toABC News.
The White House press secretary, Karine Jean-Pierre, said in a statement Saturday evening that after agreeing with Biden that any budget deal would need to be bipartisan, "last night in D.C., the speaker's team put on the table an offer that was a big step back and contained a set of extreme partisan demands that could never pass both Houses of Congress."
"The president has over and over again put deficit reduction proposals on the table, from limits on spending to cuts to Big Pharma profits to closing tax loopholes for oil and gas," she added. "Let's be clear: The president's team is ready to meet any time. And, let's be serious about what can pass in a bipartisan manner, get to the president's desk, and reduce the deficit. It is only a Republican leadership beholden to its MAGA wing—not the president or Democratic leadership—who are threatening to put our nation into default for the first time in our history unless extreme partisan demands are met."
\u201cAll caveats about deals usually being struck before everything falls apart, but this doesn't look like a negotiation with an endgame.\u201d— David Dayen (@David Dayen) 1684624571
Ahead of Jean-Pierre's statement Saturday, Stein and his Post colleagues reported—citing sources with knowledge of the talks—that "Republican negotiators rejected a White House offer to limit spending next year on both the military and a wide range of critical domestic programs as part" and "are instead pushing for higher defense spending and more significant domestic spending reductions."
This article has been updated with additional comment from the White House and reporting by ABC News and The Washington Post.
The ruling forces the airlines "to continue competing, eliminating anti-competitive revenue-sharing incentives and setting an important precedent against future consolidation in the industry," said one expert.
A Massachusetts-based federal judge on Friday sided with the Biden administration plus six states and the District of Columbia, which launched an antitrust challenge to American Airlines and JetBlue Airways' "de facto merger" for Boston and New York City.
The U.S. Department of Justice (DOJ) along with the attorneys general of Arizona, California, Florida, Massachusetts, Pennsylvania, Virginia, and D.C. filed a civil lawsuit over the airlines' Northeast Alliance (NEA) in September 2021.
"This case turns on what 'competition' means," U.S. District Court Judge Leo Sorokin, an appointee of former President Barack Obama, wrote Friday. "To the defendants, competition is enhanced if they join forces to unseat a powerful rival. The Sherman Act, however, has a different focus."
"Federal antitrust law is not concerned with making individual competitors larger or more powerful. It aims to preserve the free functioning of markets and foster participation by a diverse array of competitors," the judge added. "Those principles are generally undermined, rather than promoted, by agreements among horizontal competitors to dispense with competition and cooperate instead. That is precisely what happened here."
\u201cA federal judge ruled today that JetBlue and America's alliance amounted to an illegal merger. Another big win for DOJ Antitrust.\nhttps://t.co/wuzrarwi5b\u201d— David Dayen (@David Dayen) 1684528367
Sorokin stressed that "American and JetBlue are two of the four largest carriers operating in New York, and two of the largest three in Boston. Delta Air Lines is the only other carrier with a large presence in Boston. Besides Delta and United Airlines, no other carrier matches or approaches in size the defendants' respective positions in New York."
After noting that the pair established the "first-of-its-kind alliance" in 2020, he explained:
This was a sea change in the relationship between two airlines that were direct and aggressive competitors with decidedly different business models and cost structures. There is no doubt that savvy executives representing both defendants earnestly believe the NEA promotes the interests of their respective shareholders and will strengthen American and JetBlue in their rivalry against Delta (and, to a lesser extent, United) in New York and Boston. It is similarly beyond dispute that the NEA involves substantial coordination by two powerful competitors in an industry that, on a domestic level, is closely regulated, highly concentrated, and often volatile.
Reutersreported that after Sorokin ordered the end of the alliance within 30 days, "JetBlue shares fell 1.8% for the day, while American closed down 1.5%," and both airlines said "they were evaluating their next steps."
Meanwhile, the DOJ, its state partners, and other critics of consolidation celebrated the initial court victory.
"Today's decision is a win for Americans who rely on competition between airlines to travel affordably," said Attorney General Merrick Garland in a statement. "The Justice Department will continue to protect competition and enforce our antitrust laws in the heavily consolidated airline industry and across every industry."
\u201cA \u201cde facto merger\u201d between @JetBlue\nand @AmericanAir could have added $700 million in annual costs for consumers. Thanks to @JusticeATR and @MassAGO Campbell for fighting to keep the airline industry competitive\u2014this is a win for folks in MA and beyond. https://t.co/ZZxHFPVH33\u201d— Elizabeth Warren (@Elizabeth Warren) 1684595364
American Economic Liberties Project senior fellow for aviation and travel William McGee agreed that the DOJ Antitrust Division's successful challenge of the NEA "is a win for passengers and the public."
"Blocking this de facto merger forces JetBlue and American to continue competing, eliminating anti-competitive revenue-sharing incentives and setting an important precedent against future consolidation in the industry," McGee said. "We hope to see a similar ruling in favor of the Justice Department's suit against the JetBlue-Spirit merger, another illegal deal that would accelerate concentration and drive up fares nationwide."
\u201cThe context for this is a 45-year trend toward concentration and anticompetitive re-orientation of routes since the industry was deregulated in 1978. @WilliamJMcGee and I have a forthcoming piece describing the myriad failures of the deregulation experiment. This is a good day.\u201d— Lee Hepner (@Lee Hepner) 1684528029
As Common Dreamsreported in March, the DOJ joined with the attorneys general of Massachusetts, New York, and D.C. to file a civil suit against the JetBlue-Spirit merger, arguing that "by eliminating that competition and further consolidating the United States airlines industry, the proposed transaction will increase fares and reduce choice on routes across the country, raising costs for the flying public and harming cost-conscious fliers most acutely."
McGee said at the time that by "blocking this blatantly anti-competitive deal, the Department of Justice is standing up for passengers, workers, and communities across the country."