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Third Circuit Rules That Transfers By Non-Debtors Are Immune From Avoidance As Fraudulent Transfers
Crystallex Int’l Corp. v. Petroleos de Venezuela, S.A., 879 F.3d 79 (3d Cir. 2018)
In an Opinion that may also have repercussions in bankruptcy law, the Third Circuit Court of Appeals recently held in Crystallex Int’l Corp. v. Petroleos de Venezuela, S.A. that transfers by a non-debtor cannot be fraudulent under title 6, section 1304 of the Delaware Code (the “Delaware Uniform Fraudulent Transfer Act” or “DUFTA”). Notwithstanding that the transfers at issue were allegedly orchestrated by a debtor with the express purpose of defrauding a creditor and notwithstanding the transferor’s intentional and knowing participation in the alleged scheme, the Third Circuit found the allegations insufficient to state a claim of a transfer “by a debtor,” and, accordingly, held that the language of DUFTA constrained it from finding a fraudulent transfer under the statute. The Third Circuit noted its holding should also apply to fraudulent transfer claims under the Bankruptcy Code because DUFTA and section 548 of the Bankruptcy Code are “virtually a carbon copy” and “the result under Delaware law should be the same as the outcome under the Bankruptcy Code.” 879 F.3d at 86 (citation omitted).
The facts of the case arose from Venezuela’s 2011 nationalization of a gold mine owned by Crystallex International Corporation (“Crystallex”). In response, Crystallex brought an arbitration proceeding against Venezuela before the World Bank in which the arbitrator granted it a $1.2 billion award based on Venezuela’s violation of an international trade treaty. Crystallex’s award was confirmed by the United States District Court for the District of Columbia pursuant to the Federal Arbitration Act. However, before Crystallex could enforce the award, Venezuela orchestrated a series of transfers whereby it repatriated approximately $2.8 billion of its U.S. assets back to Venezuela, effectively out of the reach of Crystallex and other creditors. Id. at 82-83.
Venezuela allegedly accomplished its scheme through its wholly-owned national oil company, Petroleos de Venezuela, S.A. (“PDVSA”), and three subsidiary corporations that were wholly owned by PDVSA either directly or indirectly. PDVSA is a Venezuelan corporation, and the three subsidiaries – which originally held the assets at issue – are each Delaware corporations. Venezuela and PDVSA allegedly transferred the assets out of the Delaware corporations by arranging for one of them, Citgo Holding, Inc. (“Citgo”), to issue $2.8 billion in debt. Citgo then transferred the $2.8 billion to its direct parent, PDV Holding Inc. (“PDV Holding”), which in turn transferred the funds as a “dividend” back to PDVSA in Venezuela, where they were immune from Crystallex’s arbitration award. Id.
Crystallex challenged Venezuela’s maneuverings by bringing an action in the Delaware District Court (the “District Court”) seeking to avoid the transfer from PDV Holding to PDVSA as a fraudulent transfer under DUFTA. In response, PDV Holding moved to dismiss, arguing that Crystallex failed to allege that the transfer to PDVSA was made “by a debtor” as required by the statute because PDV Holding did not owe a debt Crystallex.
In the proceedings below, the District Court denied PDV’s motion. While it agreed that Venezuela and/or PDVSA (as Venezuela’s alleged alter ego) were the only entities that could be directly liable for Crystallex’s arbitration award, it found the allegations in Crystallex’s complaint – when viewed in their entirety – showed an indirect transfer orchestrated by, and for the benefit of, Venezuela and/or PDVSA. As such, the District Court found that the alleged fraudulent transfer was “in every meaningful sense ‘by a debtor.’” Id. at 83. Moreover, the District Court noted its holding comported with the equitable considerations underlying the DUFTA statute. Id.
On appeal, the Third Circuit reversed the District Court. In a majority opinion, it ruled that the District Court’s interpretation of “by a debtor” was impermissibly expansive. While the District Court read the language to include transfers “on behalf of” a debtor, the Third Circuit ruled that the statute must be read more strictly to only apply to transfers made directly by a debtor. As a result, it held that cases where a debtor uses its control of third parties to defraud creditors are outside the scope of the DUFTA statute. Id. at 85-89. In any event, the Third Circuit found the allegations in Crystallex’s complaint were insufficient to establish that PDV Holding was acting on PDVSA’s behalf when it transferred the $2.8 billion. The Third Circuit also rejected “aiding and abetting” and other arguments that Crystallex advanced in support of its claim. Id. at 85-89.
In dissent, Circuit Judge Julio Fuentes disagreed that the language of DUFTA precludes a court from viewing a transaction involving multiple steps and parties as a single integrated transaction for purposes of determining whether there has been a fraudulent transfer. To the contrary, he wrote, “none of the cases cited by the majority have held that non-debtor transferors are immune from liability under the Act.” Id. at 90-93. His Honor further noted that the phrase “by a debtor” is not defined by the statute. In the absence of authorities on point, he found the District Court’s use of the dictionary definition of “by” – which includes actions taken “on behalf of” a party – was appropriate and “mirrors the Delaware Supreme Court’s method for interpreting undefined words in statutes.” Id. at 90-93. “Altogether,” Judge Fuentes wrote, “I am hard pressed to conceive of a scenario more worthy of a trial court’s invocation of its broad equitable powers under the Fraudulent Transfer Act than this one.” Id. at 95.
Review of case law decided under the laws of others states and under bankruptcy law shows support for Judge Fuentes’ position that transfers by non-debtors can be avoided as fraudulent when they are part of larger scheme orchestrated by a debtor. For instance, in Orr v. Kinderhill, the Second Circuit affirmed a lower court judgment under New York law that avoided a multi-step transaction that included transfers by a non-debtor. 991 F.2d 31, 35 (2d Cir. 1993) (“where a transfer is only a step in a general plan, the plan ‘must be viewed as a whole with all its composite implications.’”); In re Jumer’s Castle Lodge, Inc., 338 B.R. 344, 356 (D.C.D. Ill. 2006) (considering transfers by debtors and non-debtors and both direct and indirect benefits for purposes of fraudulent transfer claims under section 544 of the Bankruptcy Code and Illinois law and noting it is well-settled that “a multi-level transaction will be collapsed and treated as single transaction in order to determine if there was a fraudulent conveyance”); Voest-Alpine Trading USA Corp. v. Vantage Streel Corp., 919 F.2d 206, 213 (3d Cir. 1990) (district court did not err in collapsing multi-step transaction, including transfers by non-debtors, into single integrated transaction for purposes of determining a fraudulent transfer claim under Pennsylvania law).