Edward S. Weisfelner, as Litigation Trustee of the v. The Legal Representative of the Estate of Richard

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UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK

Chapter 11 Case
No. 09-10023 (REG)

Debtors. (Jointly Administered)
EDWARD S. WEISFELNER, AS LITIGATION TRUSTEE
OF THE LB LITIGATION TRUST,
Plaintiff,
Adversary Proceeding
Vv.

No. 09-01375 (REG)
LEONARD BLAVATNIK, et al.,

a a ee ee ee ee ee ee ee ee

DECISION AND ORDER ON DEFENDANTS’
MOTION TO DISMISS COUNT 4

APPEARANCES:

BROWN RUDNICK, LLP

Attorneys for Plaintiff Edward S. Weisfelner,

Litigation Trustee of the LB Litigation Trust

Seven Times Square

New Y ork, New Y ork 10036

By: Sigmund S. Wissner-Gross, Esq. (argued)
May Orenstein, Esq.

One Financial Center

Boston, Massachusetts 02111

By: Steven D. Pohl, Esg.

PORTER & HEDGES, LLP
Attorneys for Former Lyondell Director and Officer Defendants
Reliant Energy Plaza
1000 Main Street, 36th Floor
Houston, Texas 77002
By: John Higgins, Esq. (argued)
Enic D. Wade, Esq.

DENTONS US LLP
Attorneys for Former Lyondell Director and Officer Defendants
1221 Avenue of the Americas
New York, New York 10020
By: 	Peter D. Wolfson, Esq.
Arthur H. Ruegger, Esq.
DEBEVOISE & PLIMPTON, LLP
Attorneys for Defendant Stephen I. Chazen
919 Third Avenue
New York, New York 10022
By: 	Lorna G. Schofield, Esq.
Tricia B. Sherno, Esq.
Jessica Simonoff, Esq.
COVINGTON & BURLING, LLP
Attorneys for Defendant C. Bart de Jong and Edward J. Dineen
620 Eighth Avenue
New York, New York 10018
By: 	Diane F. Coffino, Esq.
Andres A. Ruffino, Esq.
Andrea J. Gildea, Esq.
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ROBERT E. GERBER
UNITED STATES BANKRUPTCY JUDGE
In late December 2007, Basell AF S.C.A. (“Basell”), a Luxembourg entity controlled by
Leonard Blavatnik (“Blavatnik”), acquired Lyondell Chemical Company (“Lyondell”), a
Delaware corporation headquartered in Houston—forming a new company after a merger (the
“Merger”), LyondellBasell Industries AF S.C.A. (as used by the parties, “LBI,” or here, the
“Resulting Company”),1 Lyondell’s parent—by means of a leveraged buyout (“LBO”). The
LBO was 100% financed by debt, which, as is typical in LBOs, was secured not by the acquiring
company’s assets, but rather by the assets of the company to be acquired. Lyondell took on
approximately $21 billion of secured indebtedness in the LBO, of which $12.5 billion was paid
out to Lyondell stockholders.
In the first week of January 2009, less than 13 months later, a financially strapped
Lyondell filed a petition for chapter 11 relief in this Court.2 Lyondell’s unsecured creditors then
found themselves behind that $21 billion in secured debt, with Lyondell’s assets effectively
having been depleted by payments of $12.5 billion in loan proceeds to stockholders. Lyondell’s
assets were allegedly also depleted by payments incident to the LBO and the Merger—of
approximately $575 million in transaction fees and expenses, and another $337 million in
payments to Lyondell officers and employees in change of control payments and other
management benefits.
1 	Acronyms make understanding difficult for readers who have not been living with a case. The Court tries to
minimize their use. For readability, except where acronyms appear in quotations or have acquired obvious
meaning, the Court expands the acronyms out, or substitutes terms that are more descriptive of the entity’s
role in the transaction.
2 	Lyondell then filed along with 78 affiliates. About three months later, the Resulting Company and another
Lyondell affiliate joined them as Debtors in this Court.
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Those events led to the filing of what are now five adversary proceedings—three against
shareholder recipients of that $12.5 billion, one dealing with unrelated issues, 3 and one other—
this action, which was originally the first of the five—against Blavatnik and companies he
controlled; Lyondell’s officers and directors; and certain others.
In his Amended Complaint (the “Complaint”) in this adversary proceeding (brought, like
the others, under the umbrella of the jointly administered chapter 11 cases of Lyondell, the
Resulting Company and their affiliates (the “Debtors”)), Edward S. Weisfelner (the “Trustee”),
the trustee of the LB Litigation Trust (one of two trusts formed to prosecute the Debtors’ claims),
asserts a total of 21 claims against the defendants in this action. The 21 claims variously charge
breaches of fiduciary duty; the aiding and abetting of those alleged breaches; intentional and
constructive fraudulent transfers, unlawful dividends, and a host of additional bases for recovery
under state law, the Bankruptcy Code, and the laws of Luxembourg, under which several of the
Basell entities were organized.4 The Complaint also seeks to equitably subordinate defendants’
claims that might otherwise be allowed.
The Trustee’s Complaint, in turn, engendered a large number of motions to dismiss. This
is one of several opinions ruling on those motions5 —here, the motion to dismiss Count 4,
charging that Merger-related payments to Lyondell’s Pre-Merger Directors and Pre-Merger
Officers (each as defined below, and collectively, the “Pre-Merger Ds & Os”) were intentional
fraudulent transfers.
3 	See Weisfelner v. NAG Investments, LLC, Adv. Proc. 11-01844.
4 	A table listing all of the claims and the particular defendants against whom they were asserted appears in
Appendix A. The Complaint numbers each claim using a Roman number. To make them easier to read,
the Court has referred to the claims using Arabic ones.
5 	To avoid a decision of unwieldy length, the Court’s rulings on the other motions in this action appear in
separate decisions.
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In deciding these motions, the Court does not write on a clean slate. It issued two earlier
decisions (in three other Lyondell-related actions) dismissing other intentional fraudulent transfer
claims—there, in actions against Lyondell’s former shareholders.6 Though the sums that were
sought differed (as did the bases upon which each defendant was cashed out), the allegations
supporting the requisite scienter in each largely overlapped with those here—particularly those
as to the alleged conduct of the Pre-Merger Officers in fabricating certain “refreshed” projections
to support the $48 per share Merger price, and of Pre-Merger Directors in sanctioning the
“refreshed” projections.
While fully recognizing the seriousness of the allegations against some of the Pre-Merger
Ds & Os (particularly Lyondell CEO Dan Smith)—and well understanding their relevance to
claims for breach of fiduciary duty and fraud—the Court does not see these allegations as
supporting claims for intentional fraudulent transfers. The reasons for that view largely appear
in the Second Shareholders Decision, and need not be addressed at comparable length here.
For the reasons discussed in the Second Shareholders Decision and below, the Pre-
Merger Ds & Os’ motion to dismiss Count 4 of the Complaint is granted.
6 	See Weisfelner v. Fund 1 (In re Lyondell Chemical Co.), 503 B.R. 348 (Bankr. S.D.N.Y. 2014) (the “First
Shareholders Decision”); Weisfelner v. Fund 1 (In re Lyondell Chemical Co.), 541 B.R. 172 (Bankr.
S.D.N.Y. 2015) (the “Second Shareholders Decision,” and together with the First Shareholders Decision,
the “Shareholder Fraudulent Transfer Decisions”). These two decisions were issued in the Trustee’s
adversary proceedings against Lyondell’s former shareholder: (1) Weisfelner v. Fund 1, Adv. Proc. 10-
04609; (2) Weisfelner v. Reichman, Adv. Proc. 12-01570; and (3) Weisfelner v. Hofmann, Adv. Proc. 10-
05525 (collectively, the “Shareholder Actions”).
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Facts7
A. 	The Pre-Merger Ds & Os
Before the events that are the subject of this action, Lyondell was a publicly traded
chemicals company headquartered in Texas. Lyondell’s Board of Directors at the time
(collectively, the “Pre-Merger Directors”) consisted of 10 elected outside directors (the
“Outside Directors”) and one additional director, Dan Smith (“Smith”), Lyondell’s CEO.
Lyondell’s COO, Morris Gelb (“Gelb”), was not a director at the time of the Merger. But Gelb
became one as of March 28, 2008, along with Edward Dineen (“Dineen”), who was Lyondell’s
former Senior Vice President of the Chemicals and Polymers business segment.
Gelb and Dineen were among the 12 senior Lyondell executives, including Smith
(collectively, the “Pre-Merger Officers”), who collectively received over $158 million in
“Change of Control” payments and over $93 million in Merger consideration pursuant to the
Merger, on account of stock options, restricted stock, performance units, severance/retirement
plans and other benefits.8
Similarly, Lyondell’s Outside Directors received, as a result of the Merger, a total of
approximately $19 million in Change of Control payments and Merger consideration.
B. 	Alleged Misconduct
The allegations underlying the intentional fraudulent transfer claims essentially break
down into two categories: (1) those speaking of Smith’s actions in bringing about Lyondell’s
7 	Much of the factual and procedural background has been set forth in the Shareholders Fraudulent Transfer
Decisions and the Court’s separate decisions on other motions in this action (though the factual allegations
in the Shareholder Actions vary somewhat from those in the Complaint in this action). In this decision, the
Court discusses and cites only those facts relevant to the analysis of the Lyondell Pre-Merger Ds & Os
defendants’ motion to dismiss Count 4.
8 	Smith, alone, in his dual capacities as both officer and director of Lyondell, received over $111 million in
Change of Control payments and Merger consideration.
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“refreshed” projections and the Merger, and (2) those speaking of Lyondell’s Outside Directors
in approving it. In particular, as to Smith, the Trustee alleges that—
(1) 	“Volker Trautz, the CEO of Basell, had flown to London at the request of
Blavatnik and met with Smith … on June 7, 2007 … Smith then began
negotiating and ‘suggest[ed] a price of $48/share [for Lyondell] would be
justified.’ Trautz understood Smith to be communicating that if Blavatnik wanted
to acquire Lyondell, he had to offer $48 per share.” 9
(2) 	“On June 18, 2007, less than two weeks after [Smith’s meeting with Trautz]
during which… Smith told Trautz that he needed an offer of $48 per share, Robert
Salvin of Lyondell, who had been enlisted by Smith to assist in coming up with
new projections, provided Kevin DeNicola with two new sets of projections ...” 10
(3) 	“Such projections were ‘developed’ (actually, concocted) without any reliance on
any third-party consultants or industry experts. In fact, the industry outlook
implied by these projections was inconsistent with industry analysts’ forecasts at
the time, something known to Smith and his inner circle of Lyondell management
confederates. Notably, and reflecting that, rather than being bona fide estimates
developed using actual data, these projections had been pulled from a hat; the
‘refreshed’ refining projections were round numbers, crudely reflecting the
arbitrary nature of the ‘refreshed’ projections...”11
9 	Cmplt. ¶ 169.
10 	Id. ¶ 147.
11 	Id. ¶ 148.
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(4) 	“On July 9, 2007, Smith and Blavatnik met privately in New York at Access’s
offices in Manhattan … Smith suggested that if Blavatnik was serious, he needed
to make his best offer. Smith had on previous occasion indicated that the
Lyondell board would be looking for a 20% premium over market price, and had
already told Trautz … that $48 per share was an appropriate price to purchase
Lyondell.”12
(5) 	“Blavatnik told Smith that if a deal was consummated, Blavatnik intended to
appoint Trautz as CEO of the combined companies. In reality, Smith was not
concerned about his potential role with the new company, or with the
consequences of the inflated projections he had engineered, or with the
consequences of LBI being unable to service its crushing debt. [F]or Smith, the
transaction meant an opportunity to exit from his role as Lyondell’s chief
executive, and cash out with an enormous personal fortune.”13
(6) 	“The sole due diligence meeting between Lyondell’s management and the banks
[financing the Merger] occurred … on Saturday, July 14, 2007. During this
meeting, Lyondell’s management team gave a PowerPoint presentation … to
representatives of Basell, Access [and the banks]. The EBITDA projections for
years 2008 through 2011 contained in the Lyondell Management Presentation
were identical to the [refreshed projections] contained in the June 18 spreadsheet
12 	Id. ¶ 170.
13 	Id. ¶ 171.
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from Robert Salvin of Lyondell, other than a downward adjustment of $100
million for EC&D in 2010.”14
Then, with respect to Lyondell’s Outside Directors, the Trustee alleges that:
(1) 	“On July 10, 2007, the Lyondell Board met in The Hague, and Smith reported on
his discussions with Blavatnik, and it was decided that the Board would convene a
special meeting the following day to further discuss the matter. At that meeting,
the Lyondell Board also reviewed the ‘refreshed’ projections, the 2007 Long
Range Plan, and historical analyses of Lyondell’s performance. The ‘refreshed’
projections had changed so dramatically from the 2007 Long Range Plan, that the
Lyondell Board knew or should have known that the ‘refreshed’ numbers were
inflated, unreasonable, and unachievable.”15
(2) 	“The members of the Board of Directors of Lyondell knew that the entire
transaction would be financed with debt.”16
(3) 	“The Lyondell Board also knew that the highly leveraged company would face
significant barriers in obtaining additional financing in the highly foreseeable
event that the liquidity available through the financing put in place upon the
Merger was insufficient.”17
(4) 	“[O]n July 16, 2007, at a special meeting of the Lyondell Board, the proposed
transaction was unanimously approved by the Lyondell Directors. Notably, many
14 	Id. ¶ 190.
15 	Id. ¶ 183.
16 	Id. ¶ 213.
17 	Id. ¶ 214.
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of the Lyondell Directors, including Smith, stood to earn huge sums of money on
the deal.”18
Discussion
I.
Pleading Requirements
A. 	Standards Governing 12(b)(6) Motions
The standards for deciding a motion to dismiss under Rule 12(b)(6) are well known. “To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.”19 But legal conclusions couched as factual
allegations are not entitled to the assumption of the truth.20 “A claim has facial plausibility,” the
Supreme Court has explained:
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged. The plausibility standard
is not akin to a probability requirement, but it asks for more
than a sheer possibility that a defendant has acted
unlawfully. Where a complaint pleads facts that are merely
consistent with a defendant’s liability, it stops short of the
line between possibility and plausibility of entitlement to
relief.21
Determining whether a complaint states a plausible claim for relief is a context-specific
task that requires the reviewing court to draw on its judicial experience and common sense.22
18 	Id. ¶ 201.
19 	Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Iqbal”) (citations omitted); accord Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) (“Twombly”).
20 	See Iqbal, 556 U.S. at 678 (“the tenet that a court must accept as true all of the allegations contained in the
complaint is inapplicable to legal conclusions”).
21 	Id. (quoting Twombly, 550 U.S. at 556-57) (internal quotation marks omitted).
22 	Id. at 679.
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A trial court’s function on a motion to dismiss is “not to weigh the evidence that might be
presented at trial but merely to determine whether the complaint itself is legally sufficient.”23 A
complaint is “deemed to include any written instrument attached to it as an exhibit or any
statements or documents incorporated in it by reference.”24 Where the plaintiff has relied “on the
terms and effect of a document in drafting the complaint,” the court may consider the document
on a dismissal motion.25 Defendants may raise affirmative defenses on a motion to dismiss, but
only “if the defense appears on the face of the complaint.”26
B. 	Heightened Requirement under Rule 9(b)
Additionally, when a claim is premised on fraud—and claims for intentional fraudulent
transfer are in this category27 —Fed. R. Civ. P. Rule 9(b), which imposes a heightened pleading
requirement, applies. The more stringent standard of Rule 9(b) is essentially twofold. It requires
a plaintiff to (i) plead “with particularity, the circumstances constituting fraud or mistake,” and
to (ii) establish the defendant’s mental state.28 While intent may be alleged generally, “the
relaxation of Rule 9(b)’s specificity requirement for scienter must not be mistaken for [a] license
to base claims of fraud on speculation and conclusory allegations.”29
23 	Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985).
24 	Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (“Cortec Industries”).
25 	Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (“Chambers”).
26 	Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 158
(2d Cir. 2003) (“Color Tile”) (citations omitted).
27 	See Nisselson v. Drew Indus. (In re White Metal Rolling & Stamping Corp.), 222 B.R. 417, 428 (Bankr.
S.D.N.Y. 1998) (Bernstein, C.J.) (“It is well-settled that the Rule 9(b) pleading requirements apply to
claims of intentional fraudulent transfer.”) (citation omitted).
28 	See Fed. R. Civ. Proc. 9(b) (emphasis added); Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC,
797 F.3d 160, 171 (2d Cir. 2015).
29 	Wexner v. First Manhattan Co., 902 F.2d 169, 172 (2d Cir. 1990).
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Thus, to support a fraud claim, a complaint must “allege facts that give rise to a ‘strong
inference’ of fraudulent intent.”30 The Supreme Court has interpreted “strong inference” as
requiring an inference to be “more than merely plausible or reasonable—it must be cogent and at
least as compelling as any opposing inference of non-fraudulent intent.”31 In determining
whether the pleadings give rise to a strong inference of scienter, courts “must take into account
plausible opposing inferences.”32
II.
Intentional Fraudulent Transfer
Count 4 seeks to recover, as intentional fraudulent transfers, approximately $271 million
that was transferred to the Pre-Merger Ds & Os in the form of Change of Control payments and
as Merger consideration for their Lyondell stock. The Pre-Merger Ds & Os move to dismiss
under Rule 12(b)(6), contending that the Trustee has failed to put forward enough to plead actual
intent to hinder, delay or defraud Lyondell’s creditors. Even as to Smith (as to whom there are
serious allegations in other respects), the Court agrees.
A. 	The Court’s Earlier Rulings
In the First Shareholders Decision, the Court determined, among other things, that in the
context of intentional fraudulent transfers, the intent of a corporate transferor is determined by
30 	Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290 (2d Cir. 2006) (quoting Acito v. IMCERA Grp., Inc., 47 F.3d
47, 52 (2d Cir. 1995) (“Acito”)).
31 	Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 314 (2007) (“Tellabs”). While Tellabs was a
securities fraud case under the Private Securities Litigation Reform Act of 1995 Pub. L. 104-67, 109 Stat.
737 (codified as amended in scattered sections of 15 U.S.C.) (the “PSLRA”), the “strong inference”
standard (originally established by the Second Circuit, and incorporated into the PSLRA by Congress) has
been extended to apply to other (non-securities) fraud claims as well. See e.g., Responsible Person of
Musicland Holding Corp. v. Best Buy Co. (In re Musicland Holding Corp.), 398 B.R. 761, 774 n.7 (Bankr.
S.D.N.Y. 2008) (Bernstein, S.J.) (“Musicland”); Silverman v. K.E.R.U. Realty Corp. (In re Allou Distribs.),
379 B.R. 5, 17 (Bankr. E.D.N.Y. 2007) (Stong, J.) (requiring plaintiffs to allege facts that give rise to a
strong inference of fraudulent intent involving claims for fraudulent transfer).
32 	Tellabs, 551 U.S. at 323.
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the intent of the natural person(s) in a position “to control the disposition of [the transferor’s]
property.”33 Thus, the Court found, with respect to the fraudulent transfer alleged—incident to
the Merger and LBO—the Trustee had to establish that a “critical mass” of the Lyondell (pre-
Merger) Board members had the requisite intent.34 The Court dismissed the intentional
fraudulent transfer claims in the complaint at that time with leave to replead.
In the Second Shareholder Decision (issued on renewed dismissal motions filed after the
Trustee had amended the earlier complaint in an effort to address deficiencies noted in the First
Shareholders Decisions), the Court examined in great detail the nature of the intent required to
establish claims for intentional fraudulent transfers. After doing so, the Court concluded that the
Trustee had still “failed to satisfactorily plead factual allegations demonstrating a strong
inference of an actual intent to hinder, delay or defraud creditors by a critical mass of Lyondell’s
board of directors.”35
B. 	The Rulings Here
Though the Trustee here seeks to recover Merger consideration and Change of Control
payments received by the Pre-Merger Ds & Os (as contrasted to Merger consideration received
by Lyondell’s shareholders generally), the same facts underlie the claims of both types. In each
case the intentional fraudulent transfer claims rest on:
33 	First Shareholders Decision, 503 B.R. at 388-89 (citing Consove v. Cohen (In re Roco Corp.), 701 F.2d
978, 984 (1st Cir. 1983)).
34 	First Shareholders Decision, 503 B.R. at 388-89.
35 	Second Shareholders Decision, 541 B.R. at 197. The Court’s analysis of fraudulent intent in the Second
Shareholders Decision included discussions of the meaning of intent under the Restatement (Second) of
Torts, and alternative means to establish that intent, including Badges of Fraud, “Motive and Opportunity,”
and reckless misconduct. Though the Court sees no need to repeat them, the Court applies those same
principles here.
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 	alleged efforts by Smith and confederates to present fraudulent “refreshed”
earnings projections;
 	the presence of Pre-Merger Directors at Board meetings at which the “refreshed”
projections were discussed;
 	failures by Pre-Merger Directors to challenge Smith’s allegedly inflated
projections, and to engage in basic due diligence to satisfy themselves that the
projections had a reasonable basis; and
 	Pre-Merger Directors’ acts to nevertheless approve the Merger and the terms of
the LBO financing.
They differ, of course, in the exact amounts received, and because Pre-Merger Ds & Os
received, in addition to payments for their stock, Change of Control Payments. But these
payments were argued to provide motivation for action and inaction by Pre-Merger Ds & Os
even with respect to payments to shareholders for their stock. And there are no additional
allegations with respect to control by Smith over other Pre-Merger Directors, or that a critical
mass of them otherwise intended to hinder, delay or defraud Lyondell creditors.36
Thus just as the Court determined that the allegations supporting the fraudulent transfer
claims were insufficient vis-a-vis payments to shareholder defendants, the Court comes to the
same conclusion vis-a-vis payments to Pre-Merger Ds & Os. While the factual allegations as to
Pre-Merger Ds & Os continue to raise serious concerns over whether they breached fiduciary
36 	Nor would the result be different if Pre-Merger Ds & Os (e.g., Smith) had the requisite intent as transferees.
The intent must be the intent of the transferor. See, e.g., Sharp Int'l Corp. v. State St. Bank & Trust Co. (In
re Sharp Int'l Corp.), 403 F.3d 43, 56 (2d Cir. 2005) (“To prove actual fraud under § 276, a creditor must
show intent to defraud on the part of the transferor.”) (citing HBE Leasing Corp. v. Frank, 61 F.3d 1054,
1059 n.5); Silverman v. Actrade Capital, Inc. (In re Actrade Fin. Techs., Ltd.), 337 B.R. 791, 808 (Bankr.
S.D.N.Y. 2005) (Gropper, J.) (“Cases under § 548(a)(1)(A) indicate that it is the intent of the transferor and
not the transferee that is relevant for purposes of pleading a claim for intentional fraudulent conveyance
under the Bankruptcy Code.”).
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duties as directors and officers, those allegations are insufficient to demonstrate that a critical
mass of the Lyondell Pre-Merger Directors (who were the ones in a position to control the
transfer at issue) possessed an “actual intent to hinder, delay or defraud creditors” by their
actions.
Accordingly, the Pre-Merger Ds & Os’ motion to dismiss the intentional fraudulent
conveyance claims against them is granted.
Conclusion
For the reasons stated above, the Pre-Merger Ds & Os defendants’ motion to dismiss
Count 4 is granted.37
SO ORDERED.
Dated: New York, New York 	s/Robert E. Gerber
January 4, 2016 	United States Bankruptcy Judge
37 	As with the claims addressed in the Second Shareholders Decision, dismissal is without leave to replead.
Substantial discovery has already taken place in this adversary proceeding, and if there were factual
allegations to support an actual intent to hinder, delay or defraud creditors on the part of Lyondell’s Pre-
Merger Directors, the Court believes that the Trustee’s highly capable counsel would have already included
them.
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APPENDIX A

Weisfelner v. Blavatnik, Adv. No. 09-01375
APPENDIX A*
1
Count 	Claim 	Defendant Parties
1 	Constructive fraudulent transfer under the
Bankruptcy Code and applicable state law
Nell, Limited; AI Chemical Investments
LLC; and Leonard Blavatnik
2 	Intentional fraudulent transfer under the
Bankruptcy Code and applicable state law
Nell, Limited; AI Chemical Investments
LLC; and Leonard Blavatnik
3 	Constructive fraudulent transfer under the
Bankruptcy Code and applicable state law
Lyondell Pre-Merger Directors and
Lyondell Pre-Merger Officers1
4 	Intentional fraudulent transfer under the
Bankruptcy Code and applicable state law
Lyondell Pre-Merger Directors and
Lyondell Pre-Merger Officers
5 	Breach of fiduciary duty 	Lyondell Pre-Merger Directors
6 	Mismanagement and breach of duty under
Luxembourg law
Leonard Blavatnik2
7 	Tort under Luxembourg law 	Blavatnik; 3 the GP Managers; the
Nominees; and the Successors4
* 	Except as to Count 6, (see n.2, infra), counts and claims listed below are based on the amended complaint
dated July 23, 2010 [Dkt. 381] (the “Complaint”). This table does not reflect subsequent dismissals of
claims or defendants by stipulation of the parties or by order of the Court.
1 	Pre-Merger, in addition to chairman and CEO Dan Smith, Lyondell had ten outside directors on its Board
of Directors: Carol Anderson, Susan Carter, Stephen Chazen, Travis Engen, Paul Halata, Daniel Huff,
David Lesar, David Meachin, Daniel Murphy, and William Spivey (collectively, the “Lyondell Pre-
Merger Directors”). The relevant Lyondell officers identified in the Complaint as named defendants are:
James Bayer, T. Kevin DeNicola, Bart de Jong, Edward Dineen, Kerry Galvin, Morris Gelb, John
Hollinshead, and W. Norman Philips (collectively, the “Lyondell Pre-Merger Officers”).
2 	This Count 6 is based upon the second amended complaint dated September 29, 2011 [Dkt. 598].
3 	Although the Complaint did not specify whether Count 7 is asserted against Leonard Blavatnik or Alex
Blavatnik, who is also a named defendant in this action, the Court understands this claim to be asserted
against Leonard Blavatnik.
4 	The “GP Managers” are identified in the Complaint as including: Alan Bigman, Richard Floor and Philip
Kassin. The “Nominees” are defined in the Complaint as including: Simon Baker, Dawn Shand, and
Bertrand Duc. The “Successors” are defined in the Complaint as including: Philip Kassin, Lincoln Benet,
Lynn Coleman, and Richard Floor.
Richard Floor is deceased and Diane Currier has been appointed as the executor for the estate of Richard
Floor.
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Weisfelner v. Blavatnik, Adv. No. 09-01375
APPENDIX A*
2
Count 	Claim 	Defendant Parties
8 	Breach of fiduciary duty 	Subsidiary Directors5
9 	Avoidance preference under the
Bankruptcy Code and applicable state law
Access Industries Holdings LLC
10 	Equitable subordination under the
Bankruptcy Code
AI International, S.à.r.l.
11 	Constructive fraudulent transfer under the
Bankruptcy Code and applicable state law
Nell Limited; Deutsche Bank Securities
Inc.; and Perella Weinberg Partners LP
12 	Breach of contract 	Access Industries Holdings LLC; and
AI International, S.à.r.l.
13 	Illegal dividends or redemption 	Lyondell Pre-Merger Directors
14 	Unlawful distribution and extra-contractual
tort under Luxembourg law
Leonard Blavatnik; the GP Managers;
BI S.à.r.l.; Alan Bigman; Alex
Blavatnik; Peter Thorén; Simon Baker;
and the Nominees
15 	Declaratory judgment for characterization
of purported loan advances under the
Access Revolver as capital contributions
Access Industries Holdings LLC; and
the Lyondell Post-Merger Directors6
16 	Illegal dividends 	Lyondell Post-Merger Directors
17 	Constructive fraudulent transfer under the
Bankruptcy Code and applicable state law
Access Industries Holdings LLC
18 	Aiding and abetting breach of fiduciary
duty under applicable state law and
Luxembourg law
Nell Limited; Access Industries
Holdings, LLC; Access Industries, Inc.;
AI International, S.à.r.l.; AI Chemical
Investments LLC
5 	The “Subsidiary Directors” are identified in the Complaint as including: Kevin Cadenhead, Charles Hall,
Rick Fontenot, and John Fisher Gray.
6 	The “Lyondell Post-Merger Director” are identified in the Complaint as including: Alan Bigman, Edward
Dineen, and Morris Gelb.
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Weisfelner v. Blavatnik, Adv. No. 09-01375
APPENDIX A*
3
Count 	Claim 	Defendant Parties
19 	Constructive fraudulent transfer under the
Bankruptcy Code
BI S.à.r.l.
20 	Breach of fiduciary duty 	Dan Smith; T. Kevin DeNicola; Edward
Dineen; Kerry Galvin; and W. Norman
Phillips
21 	Aiding and abetting breach of fiduciary
duty
T. Kevin DeNicola; Edward Dineen;
Kerry Galvin; and W. Norman Phillips
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