PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              ___________

            Nos. 16-4012 & 17-1439
                 ___________


   CRYSTALLEX INTERNATIONAL CORP.

                        v.

     PETRÓLEOS DE VENEZUELA, S.A.;
         PDV HOLDING, INC.; and
CITGO HOLDING, INC, f/k/a PDV AMERICA, INC.

                  PDV HOLDING INC.,
                               Appellant

   ____________________________________

          On Appeal from the District Court
             for the District of Delaware
         (District Court No. 1-15-cv-01082)
 District Court Judge: Honorable Leonard P. Stark
   ____________________________________

           Argued September 12, 2017

         (Opinion filed: January 3, 2018)
     Before: VANASKIE, RENDELL, and FUENTES,
                   Circuit Judges



Nathan P. Eimer    [ARGUED]
Lisa S. Meyer
Elmer Stahl LLP
224 South Michigan Avenue, Suite 1100
Chicago, IL 60604


Kenneth J. Nachbar
Morris, Nichols, Arsht & Tunnell LLP
1201 North Market Street
Wilmington, DE 19801

                   Counsel for Appellant PDV Holding, Inc.


Robert L. Weigel [ARGUED]
Jason W. Myatt
Rahim Moloo
Gibson, Dunn & Crutcher LLP
200 Park Avenue, 47th Floor
New York, NY 10166




                            2
Raymond J. DiCamillo
Jeffrey L. Moyer
Travis S. Hunter
Richards, Layton & Finger, P.A.
One Rodney Square
920 North King Street
Wilmington, DE 19801

             Counsel for Appellee Crystallex International
             Corp.



                       ____________

                       OPINION
                       ____________

RENDELL, Circuit Judge:

       At first glance this case appears exceedingly
complex—with its tangle of debtors, creditors, parents,
subsidiaries, alter egos, and complex international corporate
transactions. But when one cuts through this morass, the
question at the center of this case is quite simple: can a
transfer by a non-debtor be a “fraudulent transfer” under the
Delaware Uniform Fraudulent Transfer Act (“DUFTA”)? The
role of a federal court in this situation is to predict how the
Supreme Court of Delaware would answer this question. We
are constrained to conclude that a transfer by a non-debtor
cannot be a “fraudulent transfer” under DUFTA. While we do
not condone the debtor’s and the transferor’s actions, we must




                              3
conclude that Crystallex has failed to state a claim under
DUFTA.1

                       I. Background

            A. The Parties and Related Entities

        Appellant      Crystallex     International      Corp.
(“Crystallex”), a Canadian gold producer, owned the rights to
Las Cristinas gold reserve in the Bolivarian Republic of
Venezuela (“Venezuela”). In 2011, Venezuela nationalized
its gold mines and expropriated Crystallex’s rights to Las
Cristinas. Crystallex subsequently initiated an arbitration
proceeding against Venezuela before the World Bank. It
claimed that, by expropriating Crystallex’s rights to Las
Cristinas, Venezuela had violated a bilateral investment treaty
with Canada. Venezuela was the sole defendant in the
arbitration proceeding and the only entity claimed to be
obligated to Crystallex for any resulting judgment. The
arbitrators found that Venezuela had breached the treaty and
awarded Crystallex $1.202 billion. Crystallex Int’l Corp. v.
Bolivarian Rep. of Venezuela, 

, 107
(D.D.C. 2017). The District Court for the District of
Columbia confirmed the arbitration award, in accordance
with the Federal Arbitration Act, 9 U.S.C.A. § 1, et seq.

.

     Venezuela owns 100% of the shares of Petróleos de
Venezuela, S.A. (“PDVSA”). PDVSA is alleged to be

1
 The District Court had jurisdiction over this case pursuant to
28 U.S.C. §§ 1330(a), 1367. This Court has jurisdiction to
hear PDVH’s interlocutory appeal under 28 U.S.C. § 1292(b).




                              4
Venezuela’s alter ego, a “national oil company through which
Venezuela implements government policies at home and
abroad.” A31. PDVSA owns 100% of PDV Holding, Inc.
(“PDVH”), which in turn owns 100% of CITGO Holding,
Inc. (“CITGO Holding”). CITGO Holding owns 100% of
CITGO Petroleum Corporation (“CITGO Petroleum”).
PDVSA is a foreign corporation based in Venezuela. PDVH,
CITGO Holding, and CITGO Petroleum are Delaware
corporations.

                B. Litigation Against PDVH

        Crystallex brought this suit against PDVH2 in the
District of Delaware, alleging that PDVH had violated
DUFTA’s prohibition against fraudulent transfers.3
According to Crystallex, Venezuela realized that it was
“facing billions of dollars in liability from the numerous
arbitration proceedings arising from its repeated expropriation
of foreign investments,” including the Crystallex proceeding.
A30. “On numerous occasions, Venezuelan government
officials stated publicly that Venezuela would refuse to pay
any anticipated arbitral award against it and would
proactively thwart efforts to enforce such awards.” A40.


2
   PDVSA and CITGO Holding were also named as
defendants in the original suit. The District Court dismissed
Crystallex’s claims against PDVSA and CITGO Holding.
Those rulings are not before us on appeal.
3
   Crystallex also alleged claims of common law civil
conspiracy against the three defendants. The District Court
dismissed those claims against all three defendants. Those
rulings are not before us on appeal.




                              5
       “As part of [its] plan to thwart enforcement,”
Venezuela orchestrated a series of debt offerings and asset
transfers among PDVSA, PDVH, CITGO Holding, and
CITGO Petroleum. A30. Specifically, Venezuela sought to
“monetize its interests in CITGO [Petroleum],” its largest
United States-based asset, and repatriate the proceeds. A40.
To this end, Venezuela “enlisted its alter ego PDVSA,” who
in turn “directed its wholly-owned subsidiary PDVH to direct
its wholly-owned subsidiary CITGO Holding to issue $2.8
billion in debt.”4 A31. CITGO Holding, in turn, transferred
the proceeds from the issuance of debt to its parent PDVH as
a shareholder “dividend.” A31. PDVH then declared a
dividend of the same amount to its parent PDVSA, a
Venezuelan corporation and the alleged alter ego of
Venezuela, thereby repatriating the money to Venezuela and
shielding it from an enforcement action in the United States.

formed the basis of Crystallex’s
DUFTA claim against PDVH. As a result of these transfers,
“nearly $2.8 billion in ‘dividends’ ended up in the hands of
PDVSA (and therefore Venezuela) outside the United States
where they could not be reached by Venezuela’s creditors.”
A43. Under DUFTA,

             A transfer made or obligation
             incurred by a debtor is fraudulent
             as to a creditor, whether the

4
  The mechanics of the $2.8 billion debt offering were fairly
complex. However, the net result was that CITGO Petroleum
was left with negative shareholder equity and rendered
insolvent, with most its value transferred to CITGO Holding.




                              6
             creditor’s claim arose before or
             after the transfer was made or the
             obligation was incurred, if the
             debtor made the transfer or
             incurred the obligation . . . [w]ith
             actual intent to hinder, delay or
             defraud any creditor of the debtor.
             

. § 1304.

    C. District Court Denies PDVH’s Motion to Dismiss

        PDVH moved to dismiss the complaint for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6).
It argued that Crystallex had failed to state a claim under
DUFTA because the allegedly fraudulent transfer was not
made “by a debtor”—that is, by Venezuela—as required by
the statute. 

. § 1304(a).5 The District Court denied
PDVH’s motion to dismiss, concluding that there had indeed
been a transfer “by a debtor.” Crystallex Int’l Corp. v.
Petroleos de Venezuela, S.A., 

(D. Del.
2016).

5
   PDVH’s Motion to Dismiss contained two additional
arguments. First, it argued that the transfer from PDVH to
PDVSA did not involve property “of a debtor,” as required by
the statute. The District Court rejected this argument, and
PDVH does not challenge this legal analysis on appeal.
Second, PDVH argued that the DUFTA claim was preempted
by the attachment immunity provisions of the Foreign
Sovereign Immunities Act (“FSIA”). The District Court
rejected this argument as well. PDVH appeals that decision.
Because we will reverse the District Court’s order based on
the DUFTA claim, we need not reach the FSIA issue.




                              7
        In reaching this conclusion, the District Court first
correctly stated that Crystallex’s only potential debtors were
Venezuela and its alleged alter ego PDVSA. 

. Therefore, “in the narrowest sense of the
term,” none of the transfers were “directly undertaken ‘by’
the ‘debtor.’” 

District Court found that
PDVH—a “non-debtor transferor”—could be liable under
DUFTA for its dividend transfer to PDVSA. 

In
support of this conclusion, the District Court noted that
“DUFTA includes within its ambit ‘indirect . . . mode(s) . . .
of disposing of or parting with an asset or an interest in an
asset.’” 

(quoting 

. § 1301(12)). It also cited
Merriam-Webster’s definition of the word “by,” which
includes “through the agency or instrumentality of” and “on
behalf of.” 

alleged “extensive, if not
dominating, involvement” of the debtor Venezuela, the
PDVH transfer was executed by an “instrumentality” of the
debtor or on its “behalf.” 

District Court
reasoned, the transfer from PDVH to PDVSA was “a transfer
made in every meaningful sense ‘by a debtor,’” despite the
fact that PDVH was not in fact a debtor. 

-92.
Finally, the District Court noted that its holding was in line
with the purpose of DUFTA, which “broadly provides for the
application of ‘the principles of law and equity.’” 

       PDVH filed a motion to certify the District Court’s
Order for interlocutory review pursuant to 28 U.S.C. §
1292(b), arguing that the District Court incorrectly concluded
that DUFTA extends to transfers by non-debtors. After
briefing and oral argument, the District Court granted
PDVH’s motion, and we accepted PDVH’s petition for
permissive review.




                               8
                         II. Analysis6

        While we acknowledge the appeal to equity that the
District Court and our dissenting colleague have expressed,
we are compelled to conclude that we must reverse the
District Court’s Order denying PDVH’s motion to dismiss,
because transfers by non-debtors are not fraudulent transfers
under DUFTA as it has been interpreted by the Delaware
courts. To survive a motion to dismiss, a plaintiff must allege
each “required element” of his claim. Phillips v. Cty. of
Allegheny, 

, 234-35 (3d Cir. 2008). The DUFTA
statute reads, in relevant part:

              A transfer made or obligation
              incurred by a debtor is fraudulent
              as to a creditor, whether the
              creditor’s claim arose before or
              after the transfer was made or the
              obligation was incurred, if the
              debtor made the transfer or
              incurred the obligation . . . [w]ith
              actual intent to hinder, delay or
              defraud any creditor of the debtor.

6
  We review a District Court’s denial of a Rule 12(b)(6)
motion to dismiss de novo. F.T.C. v. Wyndham Worldwide
Corp., 

, 242 (3d Cir. 2015). We “accept all
factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under
any reasonable reading of the complaint, the plaintiff may be
entitled to relief.” Wyndham 

.




                               9
              

. § 1304 (emphasis
              added).

In order to withstand a motion to dismiss a claim under
DUFTA, therefore, Crystallex must successfully plead three
things: (1) a transfer, (2) by a debtor, (3) with actual intent to
hinder, delay, or defraud a creditor. This case turns on the
meaning of the second element, “by a debtor.”


       Based on the decisions of the Delaware Chancery
Court and other Delaware state law principles, we conclude
that the transfer by non-debtor PDVH to PSVHA was not a
fraudulent transfer under DUFTA. “Our role in diversity
cases is to apply state law.” Sheridan v. NGK Metals, 

, 254 (3d Cir. 2010). “A federal court under Erie is
bound to follow state law as announced by the highest state
court.” Edwards v. HOVENSA, LLC, 

, 361 (3d
Cir. 2007). “[I]f that state’s highest court has not provided
guidance, we are charged with predicting how that court
would resolve the issue.” In re Energy Future Holdings Corp.
v. Energy Future Intermediate Holdings Co., 

,
253-54 (3d Cir. 2016). In doing so, we must give “due
deference” to the intermediate state courts’ rulings. In re
Makowka, 

, 148 (3d Cir. 2014). “This standard
places a significant constraint on us[.]” 

(quoting Jewelcor Inc. v. Karfunkel, 

, 676
n.4 (3d Cir. 2008)). “Unlike our role in interpreting federal
law, we may not ‘act as a judicial pioneer’ in a diversity
case.” 

(citation omitted).

       Crystallex alleges that PDVH’s transfer to PDVSA
was part of a scheme, designed in part by Venezuela, to
transfer $2.8 billion out of the United States, placing it out of




                               10
the reach of Crystallex or other creditors attempting to
enforce a judgment against Venezuela. It alleges that,
“[t]ogether, [Venezuela, through its alter ego] PDVSA,
PDVH, and CITGO Holding . . . devised a scheme” to
liquidate the value of CITGO Petroleum, Venezuela’s largest
United States-based asset. A31, A41. Pursuant to this
“strategy concocted by PDVSA, PDVH, and CITGO
Holding,” CITGO Holding would transfer billions of dollars
to PDVH “where, in turn, those funds would be paid as a
dividend to PDVH’s direct parent[,] . . . moving the funds to
PDVSA outside the United States.” A41.

       But more important is what Crystallex does not allege.
It does not allege that PDVH is a debtor or otherwise liable
for the arbitral judgment Crystallex has obtained against
Venezuela. Absent is any allegation that Venezuela or
PDVSA—the only potential debtors7—transferred any
property. Instead, Venezuela, through its alleged alter ego
PDVSA, received the $2.8 billion in question. The transfer
was clearly alleged to have been by the non-debtor PDVH. As
an initial matter, this transaction seems to lack the principal
harm visited upon creditors in a fraudulent transfer, namely
the debtor’s alienation of an asset otherwise available to pay
its debts. Here, the alienation complained of was
geographical. It was not technically a transfer by the debtor
but a transfer to the debtor which, by virtue of international
law, resulted in the assets being out of the reach of creditors.
This situation is not covered, or contemplated, by DUFTA.

7
  PDVSA was not involved in the arbitration proceeding. But
if we accept as true Crystallex’s allegation that PDVSA is the
alter ego of Venezuela, it is at least theoretically possible that
PDVSA could be liable for the arbitration award as well.




                               11
        The allegations in the complaint raise two questions.
First, can a transfer by a non-debtor such as PDVH constitute
a fraudulent transfer under DUFTA? If not, we then ask
whether the allegations in the complaint, whereby the debtor
Venezuela devised the scheme, can state a claim for relief
under DUFTA based on either an aiding and abetting or a
conspiracy theory. The answer to both questions is no.

          A. Non-Debtor Liability Under DUFTA

          Although the Delaware Supreme Court has not had the
opportunity to consider whether non-debtor transferors can
commit fraudulent transfers under DUFTA, the Chancery
Court has answered that question in the negative. See
Edgewater Growth Capital Partners v. H.I.G. Capital, Inc.,
C.A. No. 3601-VCS, 

, at *2 (Del. Ch. Mar.
3, 2010) (“By its own terms, the Delaware Fraudulent
Transfer Act only provides for a cause of action by a creditor
against debtor-transferors or transferees.”); In re Wickes
Trust, No. Civ. A. 2515-VCS, 

, at *7-8
(Del. Ch. Oct. 16, 2008) (“in order to have a fraudulent
transfer claim, one must have a valid claim against the person
. . . alleged to have fraudulently made the transfer”).8

8
  Although these and several other Chancery Court opinions
we rely on are unpublished, Delaware courts give such
opinions substantial precedential weight. See Aprahamian v.
HBO & Co., 

, 1207 (Del. Ch. 1987) (“An
unreported decision [is] entitled to great deference”); 1-4
Corp. and Commercial Practice in DE Court of Chancery §
4.04, Lexis (2017) (“The mere fact that a case is not reported
should not be taken to suggest that unpublished decisions are




                              12
       The Chancery Court has also rejected fraudulent
transfer claims against non-debtor transferors under
analogous provisions in the federal Bankruptcy Code, 11
U.S.C.A. § 548. See Spring Real Estate, LLC v. Echo/RT
Holdings, LLC, C.A. No. 7994-VCN, 

, at *3
(Del. Ch. Feb. 18, 2016), aff’d sub nom. Klauder v. ECHO/RT
Holdings, LLC, No. 133, 

(Del. Dec. 12,
2016) (rejecting a fraudulent conveyance claim against a non-
debtor subsidiary of the debtor parent company). See also In
re Plassein Int’l Corp. v. B.A. Capital Co., 

, 326
(Bankr. D. Del. 2007), aff’d. 

(D. Del. 2008),
aff’d 

(3d Cir. 2009) (dismissing state and
federal fraudulent transfer claims because the allegedly
fraudulent transfer was made by a non-debtor).

       Although Crystallex’s claim arises under DUFTA, not
the Bankruptcy Code, these decisions are instructive. The
relevant DUFTA and Bankruptcy Code provisions are nearly
identical, and Delaware courts have interpreted and applied
them uniformly. Compare 11 U.S.C. § 548 with 

.
§§1302-1306. “Because Delaware has adopted the Federal
UFTA, a statute that was itself modeled on Section 548 of the
Bankruptcy Code . . . Delaware courts generally recognize


without precedential value. Emphatically to the contrary,
unpublished letter and memorandum opinions, and even some
oral rulings from the bench, are afforded a considerable
precedential weight [in Delaware], especially in view of the
fact that unreported decisions often are the only authority on
point where novel issues are involved”). In predicting how
the Delaware Supreme Court would resolve this issue, we
thus give such opinions substantial precedential weight as
well.




                             13
that our state and the federal fraudulent transfer statutes’
principles are substantially the same.” Ki-Poong Lee v. So,
C.A. No. N14C-08-173 PRW, 

, at *3 (Del.
Super. Ct. Nov. 17, 2016). See also In re PHP Healthcare
Corp., 128 Fed. Appx. 839, 847 (3d Cir. 2005) (“We need not
discuss the provisions of the Delaware Fraudulent Transfer
Act . . . because they are substantially the same as the relevant
parts of the Bankruptcy Code). DUFTA is “virtually a carbon
copy of the fraudulent transfer law under the Bankruptcy
Code” and “the result under Delaware law should be the same
as the outcome under the Bankruptcy Code.” In re Trace Int’l
Holdings, Inc. v. Dow Chemical Co., 

, 105 n.5
(Bankr. S.D.N.Y. 2002). Just as the Chancery Court has
found that a non-debtor transferor is not liable under the
Bankruptcy Code, a non-debtor transferor is not liable under
DUFTA.

        Here, Crystallex has failed to allege that PDVH is a
debtor or that PDVH would otherwise be liable to Crystallex
for any judgment against Venezuela. The Dissent notes that
no Delaware case has specifically “held that non-debtor
transferors are immune from liability under the Act.”
Dissenting Op. at 4. But the question here is not one of
immunity. Rather, we must decide whether a transfer by a
non-debtor fits within the statutory definition of a fraudulent
transfer in the first place. Because relevant Delaware
precedent makes it clear that the answer to this question is
“no,” non-debtor PDVH simply could not have committed a
fraudulent transfer in violation of DUFTA.

        In addition, reading “by a debtor” broadly enough to
allow a non-debtor subsidiary transferor (here, PDVH) to be
liable, simply because its parent company (here, Venezuela,




                               14
through its alter ego PDVSA) is a debtor, would undermine a
fundamental precept of Delaware corporate law: parent and
subsidiary corporations are separate legal entities. As the
District Court correctly noted, “Delaware public policy does
not lightly disregard the separate legal existence of
corporations.” 

(quoting
Spring Real Estate, 

, at *3 n.35).
“Persuading a Delaware court to disregard the corporate
entity is a difficult task.” Wallace ex rel. Cencom Cable
Income Partners II v. Wood, 

, 1183 (Del. Ch.
1999) (internal quotation marks omitted). Delaware law
“tends to accord dignity to legal entities except in cases in
which the traditional law of piercing the corporate veil is
met.” Hart Holding Co. v. Drexel Burnham Lambert Inc.
C.A. No. 11514, 

, at n.11 (Del. Ch. 1992).
Such cases are rare, and include situations where the
subsidiary is a mere “alter ego” of the parent. See Mabon,
Nugent & Co. v. Texas Am. Energy Corp., CIV A No. 8578,

(Del. Ch. 1990) (describing possible grounds
for piercing the corporate veil under Delaware law).
Crystallex alleges in great detail that PDVSA is Venezuela’s
alter ego. But that is beside the point. Tellingly, it does not
allege that PDVH is Venezuela’s or PDVSA’s alter ego or
any other basis on which we could “pierce the corporate veil.”
Absent such allegations, we are unwilling to disregard
PDVH’s distinct corporate identity and attribute to it the
actions of the debtor.

        Crystallex’s remaining arguments for interpreting
DUFTA to cover non-debtor transferors are also of no avail.
First, Crystallex urges that non-debtor transferors are covered
by DUFTA because § 1307(c) of the statute shows that the
legislature contemplated such liability. Under § 1307(c), “a




                              15
creditor shall have no right to relief against any trustee,
attorney or other advisor who has not acted in bad faith on
account of any transfer.” 

. § 1307(c). According to
Crystallex, the inverse must be true: non-debtors—namely,
trustees, attorneys, or other advisors—who have acted in bad
faith can be liable under DUFTA. This argument fails. First,
this section of the statute does not affirmatively authorize
suits against non-debtors. Second, even if it did authorize
such suits, Crystallex does not allege that PDVH was a
trustee, attorney, or other advisor. Moreover, we question the
continued validity of this portion of the statute. As PDVH
argues, since its enactment in 1999, § 1307(c) may have been
rendered “surplusage” by Delaware case law finding that
DUFTA only provides a cause of action against debtors,
thereby shielding advisors from liability. See Reply Br. for
Appellant at 21 (citing Edgewater, 

, at *2).

        Similarly, Crystallex argues to no avail that § 1308 of
the statute supports non-debtor liability. Section 1308
provides that transferees are not liable under the statute if
they received title in good faith for equivalent value. 

.
§ 1308. Crystallex seems to suggest that since good faith
transferees are not liable under the statute, relief should be
afforded against bad faith non-debtor transferors. See 

. § 1308. But this is a non sequitur. Moreover, there simply
is no support for subjecting bad faith non-debtor transferors to
liability under the Delaware case law. We are not permitted to
“act as a judicial pioneer” when applying state law, and are
therefore unwilling to expand the statute to cover bad faith
non-debtor transferors. 

.
        Nor are we persuaded by Crystallex’s claim that courts
in other jurisdictions have found non-debtor transferors liable
under similar fraudulent transfer statutes. Crystallex cites




                               16
only two such cases: Gutierrez v. Givens, 

(S.D. Cal. 1998), and In re Carousel Candy Co. v Weber, 

(E.D.N.Y. 1984). Those case are not binding on us,
nor would they be binding on the Delaware Supreme Court.
Regardless, these cases are inapposite. The defendant bank in
Gutierrez did not argue that it was not liable under the
California fraudulent transfer statute, Cal. Civil Code § 3439,
based on its non-debtor status. Instead, it argued that the
fraudulent transfer claim against it should be dismissed
because the main remedy available under the statute did not
apply to a non-transferee such as the bank. Gutierrez, 1 F.
Supp. 2d at 1087. The court rejected this argument, finding
that if the bank was liable under the statute, the bank could
still be subject to alternative remedies. 

not have to
determine whether the non-debtor bank could be liable under
the statute. Carousel is also distinguishable. In that case, the
court allowed a fraudulent transfer claim to proceed against a
non-debtor, but it based its decision on the fact that the
transferor was the debtor’s attorney, owed the debtor a
fiduciary duty, and “was de facto in control of the debtor” at
the time of the 

. Those facts are not
present here, nor does the Delaware case law hint at
broadening the concept of “by a debtor” in such a fact pattern.

       Even if we were to consider out-of-jurisdiction cases,
the majority of courts that have considered the issue have
rejected non-debtor transferor liability. See, e.g., Ferri v.
Powell-Ferri, No. MMXCV116006351S, 

at *4 (Conn. Super. Ct. July 30, 2012) (striking a fraudulent
transfer claim against a non-debtor transferor and finding no
support for the position that “a third party can be liable for
making a fraudulent transfer as to a party to whom the third
party is not a debtor”); Folmar & Assoc’s LLP v. Holberg,




                              17


, 118 (Ala. 2000), overruled on other grounds
by White Sands Grp., LLC v. PRS IILLC, 

(Ala.
2009) (rejecting a fraudulent transfer claim and finding “no
case in which the provisions of the Alabama Uniform
Fraudulent Transfer Act have been extended to apply to
transferors other than the debtor”); cf. Healthco Int’l, Inc.,

, 21 (Bankr. D. Mass. 1996) (finding that the
transfers at issue were “not transfers by the Debtor and hence
are immune from fraudulent transfer attack” under the federal
Bankruptcy Code).

        We also decline to rely on the broader dictionary
definition of “by”—which includes “through the agency or
instrumentality of” and “on behalf of”—to extend DUFTA to
cover non-debtor transferors. First, we do not read the
allegations in the complaint to actually aver that PDVH acted
as an agent or “on behalf of” Venezuela. Second, we need not
resort to dictionary definitions where the Delaware courts
have clearly indicated that “by a debtor” means that the
debtor itself must have made the transfer.

        Finally, we reject Crystallex’s argument that DUFTA’s
“broad remedial purpose” should cause us to declare the
transfer fraudulent. Br. for Appellant, 37. We also decline to
find the non-debtor transfer here fraudulent based on
equitable considerations, as our dissenting colleague suggests.
Dissenting Op. at 9. It is true that “DUFTA grants a court
‘broad latitude’ for the court to craft a remedy,” Lake
Treasure Holdings, Ltd. v. Foundry Hill GP LLC, C.A. No.
6546-VCL, 

(Del. Ch. Oct. 10, 2014)
(citation omitted) (emphasis added), and “leaves considerable
leeway for the exercise of equitable discretion” in doing so. In
re Mobilactive Media, LLC, C.A. No. 5725-VCP, 

297950 (Del. Ch. Apr. 24, 2009). See also 

. §
1307(a)(3)(c) (courts may invoke equitable principles to craft
“[a]ny [] relief the circumstances may require”). But having
broad latitude to craft a remedy for a DUFTA violation does
not necessarily mean we have broad latitude to determine
what fits within the contours of the statute in the first place.
Moreover, the Chancery Court is a court of equity. See 

. § 341 (“The Court of Chancery shall have jurisdiction
to hear and determine all matters and causes in equity.”). It
has had the opportunity to conclude, as an equitable matter,
that DUFTA covers transfers by non-debtors. But, so far, it
has not. Delaware courts have closed the door to non-debtor
transferor liability under the state statute, and we are not free
to open it.

       Sidestepping the “by the debtor” requirement,
Crystallex looks to other elements of the statute in an attempt
to cover the transaction. First, Crystallex focuses on the
“transfer” element. It points to the statute’s broad definition
of “transfer,” which includes both direct and indirect
transfers, and argues that the indirect transfer here is therefore
covered by the statute. See 

. § 1301(12) (“‘Transfer’
means every mode, direct or indirect, . . . of disposing of or
parting with an asset or an interest in an asset”). The Dissent
cites this language as well, arguing that our interpretation
reads the term “indirect” out of the statute. Dissenting Op. at
7. But this argument conflates two separate elements of a
DUFTA claim: (1) a transfer (2) made by the debtor. In other
words, DUFTA may cover an indirect transfer, but that
transfer must nonetheless be made “by a debtor” in order to
be cognizable under the statute. Nothing in the complaint
suggests that Venezuela, the debtor, transferred an asset
directly or indirectly. Indeed, it was the recipient of the assets.




                                19
       Crystallex also understandably focuses on the
intentional nature of the transaction—to remove assets from
the United States to Venezuela where they would not be
subject to execution by Venezuela’s creditors. Crystallex
points to various “badges of fraud,” including the fact that
several Venezuelan officials publicly said that the
government would not pay any arbitral awards and that the
purpose of the transfers was to shield CITGO Petroleum from
potential arbitration judgments. A40-41, A62. Certainly, the
intent behind this series of transactions was to hinder
creditors. It may be tempting to conclude that PDVH’s
transfer to PDVSA was therefore a fraudulent transfer under
DUFTA. But these badges of fraud go to only one of the three
necessary elements of a DUFTA claim—“actual intent” to
hinder, delay or defraud any creditor of the debtor. 

. §
1304. Despite detailed allegations of intent, Crystallex’s
DUFTA claim against PDVH nonetheless fails because it
does not allege a transfer “by a debtor.”


B. Theories of Aiding and Abetting and Conspiracy Under
                         DUFTA

       We now must decide whether Crystallex’s complaint
nonetheless states a DUFTA claim against PDVH, given the
debtor Venezuela’s alleged role in the transfer scheme.
Crystallex clearly alleges that “Venezuela, through its alter
ego, PDVSA, perpetrated this transfer to hinder or delay
Crystallex’s ability to enforce its arbitration award.” A34.
Venezuela “devised” the scheme and “enlisted” its alter ego
PDVSA to “extract as much value as possible from CITGO.”
A31. PDVSA did so by “orchestrating” a series of transfers




                              20
that “converted CITGO’s value to cash, then removing those
funds from the United States and transferring them into
PDVSA’s coffers in Venezuela.” A31. “All of the steps in
this fraudulent transfer were planned out . . . and were part of
a single scheme” to benefit Venezuela. A43.

       The issue thus becomes whether a claim under
DUFTA can be stated where the debtor orchestrated a scheme
whereby a non-debtor transferred assets to the debtor.
Presumably, this would be based on a theory of aiding and
abetting the transfer, or on a theory of conspiracy. The
Dissent would find that “even though PDV Holding was not a
debtor to Crystallex, it clearly facilitated the fraudulent
transfer and is therefore a proper defendant in this case.”
Dissenting Op. at 4. However, according to Delaware courts,
a DUFTA claim based on a theory of non-principal liability is
not cognizable under the statute. The Chancery Court has
foreclosed the possibility of aiding and abetting liability
under DUFTA. Edgewater, 

at *2 (“[T]he
Delaware Fraudulent Transfer Act does not create a cause of
action for aiding and abetting or conspiring to commit, a
fraudulent transfer.”); Trenwick American Litigation Trust v.
Ernst & Young, L.L.P., 

, 203 (Del. Ch. 2006)
(“Despite the breadth of remedies available under state and
federal fraudulent conveyance statutes, those laws have not
been interpreted as creating a cause of action for ‘aiding and
abetting.’”), Nor can Crystallex succeed on a theory of
conspiracy, as the Chancery Court has specifically ruled to
the contrary. See Quadrant Structured Products Co. v. Vertin,

, 203 (Del. Ch. 2014) (“Under Delaware law, a
conspiracy cannot be predicated on fraudulent transfer”).




                              21
       We must give due deference to the Delaware courts’
opinions on these issues of state law, and these opinions limit
DUFTA to transfers by debtors—which PDVH is not alleged
to be. We cannot extend DUFTA beyond these confines. “We
leave to . . . the state legislatures and, where relevant, to the
state courts the task of expanding or restricting liability
[theories].” Wisniewski v. Johns-Manville Corp., 

, 274 (3d Cir. 1985). Crystallex has failed to successfully
plead a transfer “by a debtor” and thus failed to successfully
plead a fraudulent transfer claim against PDVH under
DUFTA.

                        III. Conclusion

       For the foregoing reasons, we will reverse the order of
the District Court and remand for further proceedings
consistent with this opinion.




                               22
FUENTES, Circuit Judge, dissenting.

       Crystallex, a Canadian company, owned the exclusive
rights to Las Cristinas, a gold mine in the Republic of
Venezuela (“Venezuela”). According to the complaint, the
mine has one of the largest unmined gold reserves in the
world, between 17 and 26 million ounces of gold. For nearly
a decade, Crystallex invested more than $640 million to
develop the mine. However, despite Crystallex’s many
applications, Venezuela never issued the permits needed to
extract and sell gold. Eventually, claiming that Crystallex
had stalled progress on the mine’s development, Venezuela
terminated Crystallex’s mining agreement and seized the
mine.     According to Crystallex, this was all part of
Venezuela’s scheme to expropriate its substantial investment.

        Following the seizure, Venezuela transferred
Crystallex’s interest in the mine to Petróleos de Venezuela,
S.A. (“Petróleos”), a state-owned company. Petróleos, in
turn, sold 40% of that interest to the Venezuelan Central Bank
for $9.5 billion. Venezuela’s seizure forced Crystallex into
bankruptcy. Having lost its entire investment in the mine,
Crystallex brought an arbitration against Venezuela under a
treaty between Canada and Venezuela. Ultimately, the
arbitration tribunal found that Venezuela’s conduct violated
the treaty and awarded Crystallex over $1.2 billion in
damages.1


1
  The District Court for the District of Columbia later
confirmed the award and entered judgment in Crystallex’s
favor for over $1.2 billion. See Crystallex Int’l Corp. v.
Bolivarian Republic of Venez., 

, 105
        While the arbitration was pending, Venezuela
repeatedly, including through its former President Hugo
Chávez, maintained that it would refuse to pay any arbitration
award. To that end, Venezuela devised a fraudulent scheme
to transfer $2.8 billion out of the United States. It did so
through a complex series of debt offerings and dividend
transfers involving Petróleos and its wholly-owned Delaware
subsidiaries, Citgo Holding, Inc. (“Citgo Holding”) and
defendant PDV Holding, Inc. (“PDV Holding”).2
Venezuela’s purpose was clear: to move its assets out of the
United States to prevent judgment creditors like Crystallex
from executing upon them.

      The following diagram depicts the flow of funds from
the United States to Venezuela as alleged by Crystallex:




(D.D.C. 2017). As of this writing, Venezuela’s appeal of that
decision is pending.
2
  Interestingly, the bond offering materials said that “no
assurance can be given that any of the [t]ransactions would
not be challenged as a fraudulent transfer.” A-44.




                              2
               At the direction of Petróleos, a
             Venezuelan state-owned company,
                 Citgo Holding, a Delaware
              corporation, issued a $2.8 billion
                 dividend to PDV Holding.


             At the direction of Petróleos, PDV
             Holding, a Delaware corporation,
              issued a $2.8 billion dividend to
                          Petróleos.


             Petróleos, immune from suit under
             the Foreign Sovereign Immunities
                 Act, received a $2.8 billion
                   dividend in Venezuela.


       Against this background, the majority holds that
Crystallex cannot assert a claim against PDV Holding—the
only remaining defendant in this case—under the Delaware
Uniform Fraudulent Transfer Act (the “Fraudulent Transfer
Act” or the “Act”) because PDV Holding, a Delaware
corporation, was merely a non-debtor transferor, and not a
debtor or transferee, in the fraudulent scheme. I disagree. I
would affirm the District Court.

       I would conclude that Crystallex has adequately pled a
claim under the Fraudulent Transfer Act against PDV
Holding, a direct participant in the fraudulent transfer.
Specifically, as the District Court found, PDV Holding’s
issuance of a $2.8 billion dividend to Petróleos, at




                             3
Venezuela’s direction, was a “transfer” of debtor property “by
a debtor” under the Fraudulent Transfer Act. And, like the
District Court, I would find that even though PDV Holding
was not a debtor to Crystallex, it clearly facilitated the
fraudulent transfer and is therefore a proper defendant in this
case.

       As I view the facts, it cannot be that the Fraudulent
Transfer Act, which is firmly grounded in principles of
equity, leaves Crystallex—the victim of a purposeful and
complicated fraud—without any remedy for PDV Holding’s
role in transferring $2.8 billion out of the United States to
avoid Venezuela’s creditors. The Fraudulent Transfer Act
does not support such a result.

       However, today the majority signals that a party, such
as PDV Holding, may knowingly participate in a fraudulent
transfer so long as it is not a debtor. Indeed, a consequence of
the majority’s holding is that, under the Fraudulent Transfer
Act, a foreign sovereign—such as Venezuela—is free to
fraudulently repatriate assets, so long as the party making the
transfer is a non-debtor. That result does not comport with—
but rather is wholly contrary to—the Act’s broad remedial
purpose.

       Moreover, I believe the majority is wrong as a matter
of law. According to the majority, the “Delaware courts have
closed the door to non-debtor transferor liability under” the
Fraudulent Transfer Act.3 I cannot agree. None of the cases
cited by the majority have held that non-debtor transferors are
immune from liability under the Act.

3
    Maj. Op. at 19.




                               4
        To the contrary, the committee that drafted the
Uniform Fraudulent Transfer Act, the model statute on which
the Fraudulent Transfer Act is based, plainly stated that its
remedies are not exclusive.4 Indeed, the Fraudulent Transfer
Act grants courts broad latitude to craft remedies in response
to fraudulent transfers. Specifically, the Act provides that
courts may craft “[a]ny [] relief the circumstances may
require.”5 What’s more, as the District Court noted, the Act
states that “principles of law and equity” should be used to
“supplement its provisions” unless “displaced by the [Act’s]
provisions.”6

       Importantly, the Fraudulent Transfer Act does not, by
its own terms, bar a claim against a non-debtor transferor
such as PDV Holding. Thus, in keeping with the Act’s
requirement that courts “supplement its provisions” with the
“principles of law and equity,” we must determine whether,
assuming the fraudulent transfer scheme occurred as alleged,
it was appropriate for the District Court to conclude that
defendant PDV Holding’s “continued presence in this action
is appropriate.”7



4
  See Unif. Fraudulent Transfer Act § 7 cmt. 1 (1984) (“The
remedies specified in this section are not exclusive.”). The
Uniform Fraudulent Transfer Act, which was promulgated by
the National Conference of Commissioners on Uniform State
Law in 1984, has been adopted in all but a handful of states.
5
    

. § 1307(a)(3)(c).
6
    

7
    A-13.




                                 5
       Because I would hold that the answer is yes, I
respectfully dissent.

I.       Crystallex Stated a Fraudulent Transfer Act Claim

       I completely agree with the District Court that
Crystallex pled a Fraudulent Transfer Act claim against PDV
Holding. I also agree with the District Court that PDV
Holding’s non-debtor status does not (and should not) shield
it from liability for its fraudulent repatriation of $2.8 billion to
Petróleos, a Venezuelan state-owned company.

         A.     The Dividend to Petróleos Was a “Transfer”

       Under the Fraudulent Transfer Act, a “transfer”
includes “every mode, direct or indirect . . . of disposing of or
parting with an asset or an interest in an asset.”8 “Asset” is
defined broadly as “property of a debtor.”9 The District Court
found that PDV Holding’s $2.8 billion dividend to Petróleos
involved the “property of a debtor,” and therefore, was a
“transfer” under the Act. I agree with that conclusion, and
PDV Holding does not challenge it on appeal.

         B.     The Transfer Was Made “By a Debtor”

       The majority first holds that Crystallex’s claim fails
because the $2.8 billion dividend to Petróleos was made by
PDV Holding, not Petróleos itself, and thus not “by a debtor”
under the Fraudulent Transfer Act. I disagree. In my view,

8
    

. § 1301(12).
9
    

                                 6
and consistent with the Act, PDV Holding’s dividend to
Petróleos, as requested by Venezuela, was an indirect transfer
“by a debtor.” As such, it is a clear violation of the Act.

       A transfer must be “by a debtor” to be actionable
under the Act. As the District Court noted, a “transfer”
includes “every mode, direct or indirect . . . of disposing of or
parting with an asset or an interest in an asset.”10 The
majority’s interpretation of “by a debtor” reads the term
“indirect” out of the Act. This result does not comport with
our practice of “avoid[ing] interpretations that effectively
read words out of a statute.”11

       Further, the Act does not define the phrase “by a
debtor.” “When words are left undefined, we have turned to
‘standard reference works such as legal and general
dictionaries in order to ascertain’ their ordinary meaning.”12
In fact, this approach mirrors the Delaware Supreme Court’s
method for interpreting undefined words in statutes.13
Merriam-Webster’s dictionary defines “by” to include “on


10
     

(emphasis added).
11
     United States v. Taylor, 

, 193 (3d Cir. 2012).
12
   Eid v. Thompson, 

, 123 (3d Cir. 2014)
(quoting United States v. Geiser, 

, 294 (3d Cir.
2008)).
13
    See Cephas v. State, 

, 801 (Del. 2006)
(“Under well-settled case law, Delaware courts look to
dictionaries for assistance in determining the plain meaning
of terms which are not defined[.]” (quoting Lorillard Tobacco
Co. v. Am. Legacy Found., 

, 738 (Del. 2006))).




                                 7
behalf of.”14 As such, as the District Court did, I would hold
that a transfer is made “by a debtor” under the Act when it is
executed on the debtor’s “behalf.”

        Here, Crystallex alleges that PDV Holding’s $2.8
billion dividend to Petróleos was part of a complex scheme
directed by Venezuela. On these facts, I would find that PDV
Holding’s dividend to Petróleos, sent on Venezuela’s behalf,
was a transfer “by a debtor.” I find the majority’s arguments
to the contrary unconvincing.15


14
  Merriam-Webster’s Collegiate Dictionary 157 (10th ed.
1996).
15
   The majority argues that the scheme alleged “is not
covered, or contemplated, by [the Act]” because the transfer
went to the debtor. Maj. Op. at 11. I disagree. As noted,
under the Act, a “transfer” includes “every mode . . . of
disposing of or parting with an asset.” 

. § 1301(12)
(emphasis added). The Act does not define “disposing of.”
But, in dictionary terms, “dispose of” means “to place,
distribute, or arrange.”      Merriam-Webster’s Collegiate
Dictionary 335 (10th ed. 1996). Here, PDV Holding’s
dividend to Petróleos caused the proceeds to be “placed” in
Venezuela. From this, I would hold that PDV Holding’s
dividend falls within the Act because it “dispose[d] of”
Venezuela’s property. To be sure, since “transfer” also
includes “parting with an asset,” the phrase “disposing of”
would be redundant if it only captured the movement of
property away from the debtor. See United States v. Reeves,

, 998 (5th Cir. 1985) (“A statute should be read
to avoid rendering its language redundant if reasonably
possible.”).




                              8
           C.     Equity Dictates That PDV Holding is Liable
                  Under the Fraudulent Transfer Act

       Moreover, I disagree with the majority’s holding that
non-debtor transferors, such as PDV Holding, are immune
from liability under the Act. Specifically, the majority asserts
that “Delaware courts have closed the door to non-debtor
transferor liability under” the Act.16

       In this regard, the majority primarily relies on the
Delaware Chancery Court’s decision in Edgewater Growth
Capital Partners L.P. v. H.I.G. Capital, Inc.17 In Edgewater,
a minority owner of a corporation sought to hold the
corporation’s former directors liable under the Fraudulent
Transfer Act for aiding and abetting the corporation’s sale of
its assets to a senior lender. In support of its aiding and
abetting theory, the minority owner alleged that the directors
“conspired with” the senior lender to cause the corporation
“to run an unfair, tainted sales process.”18 However, the
Court held that the Act “does not create a cause of action for
aiding and abetting a fraudulent transfer, or conspiring to
commit, a fraudulent transfer.”19 In Edgewater, the Court
observed that “[b]y its own terms, the [] Fraudulent Transfer
Act only provides for a cause of action by a creditor against
debtor-transferors or transferees.”20
16
     Maj. Op. at 19.
17
  C.A. No. 3601-VCS, 

(Del. Ch. Mar. 3,
2010).
18
     

19
     

20
     

majority interprets this to mean that Edgewater
definitively holds that non-debtor transferors such as PDV
Holding are immune from liability under the Fraudulent
Transfer Act. Admittedly, reading that sentence in isolation
gives this argument some facial appeal. However, Edgewater
merely addressed whether the Act recognizes an aiding and
abetting claim. In fact, it does not appear that the Delaware
courts have ever held that non-debtor transferors are immune
from liability under the Act.

        Additionally, unlike the majority, I do not interpret
Crystallex’s complaint as alleging an aiding and abetting or
conspiracy claim against PDV Holding. Instead, Crystallex
asserts that PDV Holding directly participated in the
fraudulent scheme. Indeed, unlike the directors in Edgewater,
Crystallex alleges that PDV Holding directly conveyed $2.8
billion in dividend proceeds to Petróleos in Venezuela.

       The majority also relies on In re Wickes Trust in
asserting that the Delaware Chancery Court has barred non-
debtor transferor liability under the Act.21 However, In re
Wickes Trust only stands for the proposition that a plaintiff
cannot bring a fraudulent transfer claim unless she is a
creditor of the debtor.22 In re Wickes Trust does not appear
relevant to the question of whether the Act recognizes non-
debtor transferor liability.23

21
  C.A. No. 2515-VCS, 

(Del. Ch. Oct. 16,
2008).
22
     

23
 The majority also cites Spring Real Estate, LLC v. Echo/RT
Holdings, LLC, C.A. No 7994-VCN, 

(Del.




                             10
       In my view, the Fraudulent Transfer Act is meant to
serve a broad remedial purpose with respect to the specific
circumstances of a fraudulent transfer. As the Delaware
Chancery Court has observed, the Fraudulent Transfer Act
“grants a court ‘broad latitude’ . . . to craft a remedy to ‘put a
creditor in the position she would have been in had the
fraudulent transfer not occurred.’”24 Moreover, the Act states
that “the principles of law and equity” should be used to
“supplement its provisions” unless “displaced by the [Act’s]
provisions.”25 To that end, the Act provides that courts may
invoke equitable principles to craft “[a]ny [] relief the
circumstances may require.”26


Ch. Feb. 18, 2016), in stating that the Delaware Chancery
Court “has [] rejected fraudulent transfer claims against non-
debtor transferors under analogous provisions in the federal
Bankruptcy Code.” Maj. Op. at 13. However, in that case,
the Court rejected the claim because the assets did not belong
to the debtor. Here, PDV Holding’s dividend to Petróleos
plainly involved debtor property.
24
   Lake Treasure Holdings, Ltd. v. Foundry Hill GP LLC,
C.A. No. 6546-VCL, 

, at *15 (Del. Ch.
Oct. 10, 2014) (quoting August v. August, C.A. No. 3180-
VCS, 

, at *10 (Del. Ch. Feb. 20, 2009)); see
also In re Mobilactive Media, LLC, C.A. No. 5725-VCP,

, at *32 (Del. Ch. Jan. 25, 2013) (“[The
Fraudulent Transfer Act] provides broad remedies to creditors
and leaves considerable leeway for the exercise of equitable
discretion.”).
25
     

. § 1310.
26
     

                               11
       Crystallex alleges that, after expending a substantial
amount of time and money in developing the long-inoperable
gold reserves at Las Cristinas, Venezuela unlawfully usurped
the mine and gifted it to Petróleos, which then sold 40% of
that interest for a whopping $9.5 billion. To make matters
worse, at the time Venezuela seized Las Cristinas, Crystallex
had yet to receive any return on its investment because of
Venezuela’s purposeful delays in issuing required permits.
Moreover, after Crystallex lawfully initiated an arbitration
against Venezuela, Venezuela concocted a fraudulent scheme
to repatriate $2.8 billion from PDV Holding to Petróleos in
Venezuela.27

       Altogether, 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. In my view, Crystallex has presented compelling and



27
   The majority suggests that I conflate liability and remedies.
See Maj. Op. at 18-19. Not at all. To bring a claim under the
Act, a plaintiff must allege the existence of a fraudulent
transfer. See 

. § 1304(a). As explained, I believe
Crystallex did so. Thus, Crystallex may bring “an action for
relief against [that] transfer.” 

In outlining the
relief available in such an action, the Act enumerates
remedies against debtors and transferees involved in the
transfer. See 

1308(b). While the Act does not
specify remedies against non-debtor transferors, such as PDV
Holding, its directive that courts craft “[a]ny [] relief the
circumstances may require” provides a clear avenue for relief
here. 

                              12
plausible facts to have its case against PDV Holding heard
under the Act. I would therefore affirm the District Court.28

II.   Conclusion

      For the above reasons, I respectfully dissent.




28
   The majority does not reach PDV Holding’s argument that,
even if Crystallex stated a claim, the Foreign Sovereign
Immunities Act’s restrictions on prejudgment attachment of
sovereign property preempt that claim. See 28 U.S.C. §§
1609-1611. Since I believe Crystallex stated a claim, I would
reach the issue. PDV Holding is not a foreign state; it is a
Delaware corporation. See 

As such, to the extent
that Crystallex seeks relief with regard to PDV Holding’s
property, I would hold that the restrictions on prejudgment
attachment of sovereign property are inapplicable to
Crystallex’s claim.




                             13