Under DUFTA, a debtor-creditor relationship exists between two parties if the creditor has a “claim” against the debtor, which is defined as “a right to payment, whether or not the right is reduced to judgment … .” 6 Del. C. § 1301(3) (emphasis added). Plaintiffs advance two bases for a debtor-creditor relationship between them and PDVH, neither of which is valid.

Under DUFTA, a creditor is “a person who has a claim against a debtor,” where “claim” is defined as a “right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured.” 6 Del. Code Ann. § 1301(3) and (4) (emphasis added). 349.

28 U.S.C. § 1605(a)(2). Here, there is no allegation that PDVSA did anything in the United States; 2 “DUFTA” refers to the Delaware Uniform Fraudulent Transfer Act, 6 Del. C. § 1301, et seq. 2 Case 1:16-cv-00904-LPS Document 30 Filed 04/17/17 Page 7 of 15 PageID #: 357 Plaintiffs’ assertion that PDVSA engaged in activities in the United States is entirely predicated on their assertion that the activities of the CITGO Defendants in the United States should be attributed to PDVSA.

Those arbitrations are still pending and no arbitral awards have been rendered against PDVSA or the Republic. Nevertheless, Plaintiffs preemptively commenced this lawsuit alleging that PDVSA and its direct and indirect U.S. subsidiaries, PDV Holding, Inc. (“PDVH”), CITGO Petroleum Corporation (“CITGO Petroleum”) and CITGO Holding, Inc. (“CITGO Holding”) (collectively, the “CITGO Defendants”), violated the Delaware Uniform Fraudulent Transfer Act (“DUFTA”), 6 Del. C. § 1301, et seq., by engaging in transactions with the intention of frustrating Plaintiffs’ potential collection efforts on arbitral awards that might someday be rendered against PDVSA or the Republic. PDVSA is the national oil company of Venezuela and undisputedly a “foreign state” under the FSIA.

DUFTA defines a “creditor” as a person with a “claim,” which is further defined under the statute as “a right to payment, whether or not the right is reduced to judgment … .” 6 Del. C. § 1301. As Plaintiffs acknowledge, DUFTA provides that, to the extent a transaction is voidable, a creditor can recover a money judgment against only “the first transferee of the asset,” “the person for whose benefit the transfer was made” or “any subsequent transferee other than a good-faith transferee.”

In 2011, Plaintiff, a Canadian corporation, commenced an international arbitration against the Bolivarian Republic of Venezuela (“Venezuela”), alleging violations of a bilateral investment treaty between Canada and Venezuela in connection with Plaintiff’s mining activities in Venezuela. Prior to obtaining an arbitral award, Plaintiff preemptively commenced this lawsuit, asserting claims under the Delaware Uniform Fraudulent Transfer Act (“DUFTA”), 6 Del. C. § 1301, et seq., and for common law civil conspiracy against PDVSA and its direct and indirect U.S. subsidiaries, PDV Holding, Inc. (“PDVH”) and CITGO Holding, Inc. (“CITGO Holding”; PDVH and CITGO Holding together, the “CITGO Defendants”). Neither PDVSA nor the CITGO Defendants were parties to the arbitration between Plaintiff and Venezuela.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY The underlying Adversary Proceeding involves a Complaint that seeks to avoid certain transfers under the Bankruptcy Laws and Delaware’s Uniform Fraudulent Transfer Act, Del. Code Ann. tit. 6, § 1301 et. seq.

(7) "Insider" includes: (b) If the debtor is a corporation: ( 1) A director of the debtor; (2) An officer of the debtor; (3) A person in control of the debtor; ( d) An affiliate or an insider of an affiliate as if the affiliate were the debtor. (9) "Person" means an individual, partnership, corporation, association, organization .... 6 DEL. C. §§ 1301(1)(a)-(d); (7)(b),(d); (9). For a fraudulent transfer claim, compliance with Rule 9(b) showing the defendant's "intent to defraud with specific supporting facts describing the circumstances of the transfer" is required.

153 E.g., 3A WILLIAM M. FLETCHER, CYCLOPEDIA OF THE LAW OF CORPORATIONS § 1137 (2006) ("Officers and direc- tors may be held individually liable for personal participation in tor- tious acts even though performed solely for the benefit of the corpo- ration... ."). 154 E.g., Tutu Wells, 994 F. Supp. at 666-75 (finding that Lazare and Gal were subject to liability under CERCLA "separate and apart from their corporate status" because CERCLA provides for owner, op- erator, and arrangerliability). 155 See 6 Del. C. § 1301, et. seq. In my view, a stockholder who re- ceives a dividend has already given equivalent value for future divi- dends as of the time she buys her shares.

While the definition of a “claim” under DUFTA includes rights that are “contingent” or “unmatured,” that definition does not encompass any “legal obligation” but rather is limited to claims constituting a “right to payment.” 6 Del. Code Ann. §§ 1301(3), 1301(4). Thus, to qualify as a creditor, a plaintiff must have a claim to the transferor’s money: The operative phrase in the definition is ‘right to payment.