31 Dec 2012 07:00
GRUPO CLARIN S.A.
Supreme Court confirms extension of Injunction
On 27 December 2012, Grupo Clarín S.A. (the "Company") informed the Argentine Securities Commission and the Buenos Aires Stock Exchange that that same afternoon the Company had been served notice of a decision rendered by the Supreme Court of Argentina in re "Grupo Clarín S.A. and Others re: Injunctions", File No. 8836/2009. Attached is a free translation of the relevant sections of the decision.
Enquiries:
In Buenos Aires:
Alfredo Marín/Agustín Medina Manson
Grupo Clarín
Tel: +5411 4309 7215
Email: investors@grupoclarin.com
In London:
Alex Money/Clare Gallagher
Temple Bar Advisory
Tel: +44 20 7002 1080
Email: clarin@templebaradvisory.com
In New York:
Melanie Carpenter/Peter Majeski
I-advize Corporate Communications
Tel: +1 212 406 3692
Email: clarin@i-advize.com
Free translation
G. 1156. XLVIII
Grupo Clarín S.A. and others re: injunctions.
Supreme Court of Justice of the Nation
Buenos Aires, Twenty Seven December 2012
HAVING REVIEWED the claim entitled "Grupo Clarín S.A. and others re: Injunctions"
Whereas:
[Recitals 1 to 12 intentionally omitted]
13) The proper examination of the federal question posed by the appellant must be separated depending on which point of the decision [of the Court of Appeals] in [under consideration], because the pronouncement of the court of appeals-as described above under recital 7°-dealt separately with two thematic axis that were, and continue to be, conceptually autonomous, even if they eventually formed the final decision to extend the effectiveness of the injunction to the extent defined, precisely, in each of the recitals (3° and 4°) where the [court of appeals] developed the grounds of its decision, to which they expressly refer in the resolution of the decision.
14) In this understanding, the decision-corresponding to recital 4°-to extend the effectiveness of the injunction because [the court] considered that "the main claim was at a stage that was close to the rendering of a decision on the merits", and stated that "the critical moment in which the injunction must fully unfold its function of guaranteeing the efficacy of the decision to be rendered on the merits that will decide the substantial claims of the parties," is the fruit of a possible solution that rests on the alternatives that were previously recognised under recital 11 of the decision of 22 May, and additionally allows to secure the useful jurisdiction of the [first instance judge] until a decision on the merits is rendered.
On this point the National Government has not been able to demonstrate in its appeal that the grounds invoked by the Court of Appeals, referred to above, do not constitute a reasonable circumstance subsequent to those considered by this Court in the decision of 22 May, and which had to be validly attended. Indeed, the fact that the risk of an excessive extension of the proceeding in time had dissipated is a relevant fact for the decision adopted by the court of appeals to appear as a reasonable interpretation of the referred decision of this Court, which was intended to prevent the denaturalisation of the "purely preservative function the injunction" (according to recital 6°, first paragraph).
15) On the other hand, the solution is different with respect to how the Court of Appeals determined under recital 3° the way to calculate the term set forth under Sect. 161 of Law No. 26,522. On this point, the decision of the court of appeals differs from what was decided by this Court on 22 May.
In fact, the [court of appeals] held that on the basis of the "legal framework that governs the dispute" claimant "is not under the obligation to conform its conduct to Sect. 161 of Law No. 26,522 or to the terms provided under the implementing and supplementary rules issued or to be issued in consequence," adding that such statement meant that claimants have under suspension "both its obligation to divest pursuant to the provisions of Law No. 26,522… as well as the one-year term that the law established (as supplemented by implementing rules) which has not started to run," in order for the court to conclude on this point holding that even though the term to conform generally to Law No. 26,522 has expired, with respect to claimants its course is suspended and "that means that claimant cannot have incurred in breaches derived from such expiration, which is not applicable [to claimant], and to whose consequences, therefore, [claimant] is not exposed (according to point A.3 of the recitals and point A of the decision).
16) Therefore, on this point we verify a detachment from that which had been expressly decided by this Court in the decision of 22 May. In fact, a reading of the decision of this Court allowed one to hold that the "term to adjust to the provisions of the law (had) expired on 28 December 2011," so that [such law] is fully applicable with all its effects as from the lifting of the injunction (according to arguments made under recital 7°, last paragraph and in the decision).
Therefore, having heard Mrs. Attorney General, we declare the extraordinary appeal that has been duly filed by the National Government as partially admissible, we confirm the appealed decision to the extent expressed under recital 14 and we revoke it under the terms of recitals 15 and 16. Costs shall be borne by each party as incurred given the way the matter has been decided (Sect. 68, second paragraph of the National Code on Civil and Commercial Procedures). Taking into account the way in which we are deciding and the determinations of the Court in its decision of 27 November of this year, on the basis of the current status of the claim on the merits, we request that the National Civil and Commercial Court of Appeals, Chamber I, render its decision within the briefest term possible with respect to the issues under debate in this case and which have been subjected to [the court of appeals'] decision. Let this decision be notified, communicated to the [court of appeals] and returned.
/s/ Ricardo Luis Lorenzetti
/s/ Elena I. Highton de Nolasco
/s/ Carlos S. Fayt
/s/ Enrique S. Petracchi
/s/ Carmen M. Argibay (partial dissent)
/s/ Juan Carlos Maqueda
/s/ E. Raul Zaffaroni (partial dissent)
[Partial Dissents of Justices Argibay and Zaffaroni intentionally omitted.