A U.S. judge has given priority to miner Crystallex International to cash proceeds from a proposed auction of shares in one of the parents of Venezuela-owned refiner Citgo Petroleum, while granting oil producer ConocoPhillips (COP.N) a position "near the front of the line."
Judge Leonard Stark from Delaware on Thursday established criteria for organizing dozens of creditors lining up to take part in the auction, whose launching date was set for Oct. 23 and is expected to be completed a year after.
The court reviewed more than 60 briefs with proposals of how to organize the creditors and bondholders that have claims against Venezuela from asset expropriations and debt defaults.
Citgo Petroleum operates the U.S. seventh-largest refining network, including three refineries, terminals, pipelines and other facilities valued between $10 billion and $13 billion. But creditors that have resorted to U.S. courts are claiming more than $20 billion.
This is the priority order and the participation criteria established by Stark:
CRYSTALLEX IS FIRST
Because Crystallex introduced its claim in Delaware six years ago, becoming the first creditor with an arbitration award against Venezuela to resort to a U.S. court, and is the only one that has completed all steps to seize property owned by PDVSA for eventual sale, the court has given it priority.
Crystallex obtained a writ of attachment in August 2018, allowing it to pursue shares in Delaware-registered PDV Holding, one of the subsidiaries caught between Caracas-headquartered state oil company Petroleos de Venezuela and its Houston-based unit Citgo Petroleum.
More than a dozen additional creditors collectively holding judgments of some $5 billion have tried to follow the same path, but have been prevented by U.S. sanctions on Venezuela. The court has given some of them conditional writs of attachment, while others are still trying to be recognized by the court as additional creditors.
AWARDS, WRITS IN HAND
Any additional creditors must have international arbitration awards linked to claims from asset expropriations, debt defaults or contract terminations in Venezuela.
Those awards must be filed at a U.S. court to receive judgments to enforce the claims. A creditor who obtains favorable final judgment holding a debtor liable for damages must then register it in Delaware or any other court where the debtor has property.
The creditor must then move for a writ of attachment. The date when the writ is requested will be used to set the priority order in the auction. The court will set a deadline for obtaining a writ before the auction. The writs are ultimately issued by the U.S. Marshals Service.
Besides Crystallex, companies with writs of attachment in hand are ConocoPhillips, Red Tree Investments, Siemens, O-I Glass (OI.N), Huntington Ingall Industries (HII.N), ACL1 Investments, Rusoro Mining (RML.V), two units of Koch Industries and Gold Reserve (GRZ.V).
PAYMENT PRIORITY
Delaware law concerning the enforcement of money judgments generally requires that sale proceeds be distributed according to a "first in time, first in line" priority. In this case, the court is also taking into account the unique factors of the Venezuela case.
The court has so far determined that "Crystallex is first in line." It also said the priority of any additional judgments will be based on the date on which a creditor moved for a writ of attachment, if ultimately granted.
For Conoco, the court gave the firm a position "near the front of the line" because it has participated in the litigation for years, provided valuable input and paid one third of transaction expenses. Conoco filed in 2019 for a writ of attachment, which was granted last year.
