Refineria Di Korsou N.V. v. Petroleos De Venezuela S.A.
This text of Refineria Di Korsou N.V. v. Petroleos De Venezuela S.A. (Refineria Di Korsou N.V. v. Petroleos De Venezuela S.A.) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
REFINERIA DI KORSOU N.V., ) ) Plaintiff ) ) v. ) C.A. No. N23J-01330 ) PETRÓLEOS DE VENEZUELA, S.A., ) ) Defendant )
Submitted: October 6, 2023 Decided: November 9, 2023
On Plaintiff’s Motion for Reconsideration of Commissioner’s September 8, 2023 Order DENIED
ORDER
Michael Busenkell, Esquire; Margaret F. England, Esquire; Michael D. Van Gorder, Esquire; Gellert Scali Busenkell & Brown LLC, Wilmington, Delaware; Jeffrey Boxer, Esquire (pro hace vice) Carter Ledyard & Milburn LLP, New York, New York; Attorneys for Plaintiff
Samuel T. Hirzel, II, Esquire; Gillian L. Andrews, Esquire; Heyman Enerio Gattuso & Hirzel LLP, Wilmington, Delaware; Claire A. Delelle, Esquire (pro hace vice); Nicole Erb, Esquire (pro hace vice); Benedict S. Bernstein, Esquire (pro hace vice); White & Case LLP, Washington, DC; Attorneys for Defendants
JOHNSTON, J. 1. By Order dated September 8, 2023, Commissioner Salomone granted
Defendant Petroleos de Venezuela, S.A.’s Motion to Quash Writ of Attachment
Fieri Facias and Stay Action. Ruling from the bench, the Commissioner found that
the securities at issue are certificated securities and that the Writ was obtained in
violation of Delaware law. Therefore, the Commissioner granted the Motion to
Quash the Writ and stayed the matter in favor of related litigation pending in the
U.S. District Court for the Southern District of New York. The Commissioner
declined to render a decision on the alternative bases argued in support of quashing
the Writ.
2. The Commissioner relied on Deng v. HK Xu Ding Co., Limited.1 In Deng,
this Court held that Section 324(a) of the Delaware General Corporation Law
requires compliance with Section 8-122 for certificated securities. To attach
certificated securities and obtain an order to sell the security to satisfy a judgment,
the certificate must actually be seized.2
3. Plaintiff moved for reconsideration of the September 8, 2023 Order.
Plaintiff argues that the Commissioner misapplied the holding in Deng and
1 2023 WL 3318322 (Del. Super.). 2 Id. at *3 (This case presently is on appeal to the Delaware Supreme Court. Oral argument is scheduled for December 6, 2023.)
2 improperly engrafted language to the definition of what constitutes a certificated
security under Delaware’s Uniform Commercial Code. Plaintiff’s position is based
in part on a letter from Defendant to the Delaware District Court, stating that
Defendant “is unable to locate the original share certificate or ascertain whether such
share certificate is still in existence.” Therefore, the security is no longer
“certificated.” In Deng, the known certificate representing the shares was in the
custody of a third-party.
4. Defendant responds that certificated shares retain their status as certificated
securities even when the original certificate is lost. It is undisputed that the
certificate was issued and never cancelled. A motion has been filed in the District
Court requesting an order compelling the issuance of a new stock certificate.
5. Pursuant to Superior Court Civil Rule 132(a)(3)(iv): “A judge may
reconsider any hearing or pretrial matter under subparagraph (3) only where it has
been shown on the record that the Commissioner’s order is based upon findings of
fact that are clearly erroneous, or is contrary to law, or is an abuse of discretion.”
6. The Court finds that the Commissioner appropriately relied upon Deng in
finding that the shares at issue are certificated securities. The certificated securities
were not legally attached because the certificate was not actually seized. The matter
pending in this Court was properly stayed pending litigation between the parties to
resolve the underlying issues.
3 7. The Court finds that the Commissioner’s order is based upon findings of
fact that are not clearly erroneous, not contrary to law, and not an abuse of discretion.
THEREFORE, after careful and de novo review of the record, Plaintiff’s
Motion for Reconsideration of Commissioner’s September 8, 2023 Order is hereby
DENIED.
IT IS SO ORDERED.
/s/ Mary M. Johnston The Honorable Mary M. Johnston
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