March 31, 2015 TO: (I) HOLDERS OF GENERAL UNSECURED CLAIMS AGAINST LYONDELL CHEMICAL COMPANY AND ITS AFFILIATED DEBTORS; AND (II) TRUST BENEFICIARIES Re: In re Lyondell Chemical Company, et al., Case No. 09-10023-REG Update Of Significant Events As you are aware, pursuant to the plan of reorganization (the Plan ) confirmed in respect of Lyondell Chemical Company ( Lyondell ) and certain of its affiliates (collectively, the Debtors ), two trusts, the LB Litigation Trust and the LB Creditor Trust (together, the Trusts ), were formed for the purpose of pursuing certain causes of action for the benefit of the beneficiaries of the Trusts (the Beneficiaries ). 1 The purpose of this letter is to update you on the status of matters involving the Trusts and the Creditor Representative, focusing on developments since our previous status update (dated as of March 31, 2014, a copy of which can be viewed at http://www.kccllc.net/lbtrust). Merger-Related Actions Prosecuted By the Trusts Several lawsuits are being prosecuted by the Trusts asserting claims arising out of the 2007 merger (the Merger ) of Lyondell and Basell AF S.C.A ( Basell ) to form LyondellBasell AF S.C.A. ( LBI ) (collectively, the Merger-Related Actions ). Below is a brief overview of the principal Merger-Related Actions and the current status of each: 1. Blavatnik Action (Edward S. Weisfelner, as Trustee of the LB Litigation Trust v. Blavatnik, et al. (Adv. Pro. No. 09-01375)) With the exception of the D&O Coverage Dispute discussed below, there have been no material developments with respect to this action (the Blavatnik Action ) since our previous status update. Edward S. Weisfelner, in his capacity as Trustee of the LB Litigation Trust (in such capacity, the Litigation Trustee ) is the plaintiff in an adversary proceeding originally brought by the Official Committee of Unsecured Creditors (the Committee ) during the Debtors bankruptcy cases. In the Blavatnik Action, claims are now being prosecuted against, among others, Len Blavatnik, Access Industries Holdings LLC and its various affiliates, subsidiaries, and employees (the Access Defendants ), the former directors and officers of Lyondell, and the former Supervisory Board members of LBI. 2 1 2 Capitalized terms used but not expressly defined herein have the meanings ascribed to such terms in the Plan. As described in the Disclosure Statement relating to the Plan, the claims originally asserted in the Committee adversary proceeding against the institutions that held the debt incurred in connection with the Merger were settled for consideration of $450 million (payable by the Debtors estates under the Plan): (i) $300 million in
In September 2010, several motions to dismiss were filed by the defendants in the Blavatnik Action, and oral argument was held in March 2011. The parties are still awaiting a decision on the motions. During the fall and winter of 2010-2011, the parties engaged in additional fact discovery, during which time additional documents were produced and 38 fact witnesses were deposed. During the course of this fact discovery, the Litigation Trustee learned of additional material facts that support the claims against the former directors and officers of Lyondell. Since May 2009, approximately 60 fact witnesses have been deposed in connection with the Blavatnik Action. During the spring and summer of 2011, the parties engaged in additional expert discovery, during which time a total of sixteen expert reports were exchanged. In September 2011, the parties filed six summary judgment motions (four by the defendants and two by the Litigation Trustee). Briefing on these motions was completed in November 2011. Oral argument has not been scheduled on the summary judgment motions, and no decision has been issued by the Bankruptcy Court. In November 2011, certain defendants in the Blavatnik Action brought a motion to withdraw the reference of the Blavatnik Action to the Bankruptcy Court, seeking to have the Blavatnik Action proceed instead in the United States District Court for the Southern District of New York (the District Court ). On March 29, 2012, the District Court issued an order denying the motion to withdraw the reference without prejudice to the right of the defendants to renew their motion when the Blavatnik Action is ready for trial. Since the issuance of the District Court s order, the Bankruptcy Court has not issued any decision on the pending motions to dismiss, the pending motions for summary judgment, or the proposed scheduling order with respect to the Blavatnik Action. Accordingly, the timeline for the expected trial remains undetermined at this time. In addition, in November 2011, American Casualty Company of Reading, PA. and certain other excess insurance carriers commenced an action against the former directors and officers (the D&Os ) of Lyondell in New York Supreme Court, County of New York (the D&O Coverage Dispute ). In the D&O Coverage Dispute, the insurers are seeking a declaratory judgment that the insurance policies (with $170 million left in coverage) do not provide coverage for the claims being pursued by the Litigation Trustee against the D&Os. The insurers argument is based on, among other things, the insured versus insured exclusion contained the policies, as well as the argument that the claims in the Blavatnik Action arise out of cash; and (ii) $150 million in reorganized Lyondell stock (based on the value ascribed to the stock under the Plan). This settlement, which was approved by the Bankruptcy Court on March 11, 2010, served as the basis for distributions to unsecured creditors under Plan. 2
the same transaction that was the subject of the Delaware Chancery Court litigation filed in 2007 by Lyondell shareholder Walter E. Ryan Jr. (alleging breaches of fiduciary duty in connection with the Merger). On December 13, 2013, the Litigation Trustee filed a motion to intervene in the D&O Coverage Dispute, arguing that the insurance policies are likely the primary source of recovery for the Litigation Trustee against the D&Os and, accordingly, the Litigation Trustee has a financial interest in the outcome of the D&O Coverage Dispute. On June 19, 2014, the court hearing the D&O Coverage Dispute issued an order that, while denying the Litigation Trustee s motion to intervene, granted summary judgment in favor of the D&Os, affirming coverage. On August 4, 2014, the insurers noticed an appeal of the trial court s grant of summary judgment. Briefing is complete and oral argument is scheduled for May 2015. 2. Federal Law Clawback Action (Edward S. Weisfelner, as Trustee of the LB Litigation Trust v. Alfred R Hofmann Charles Schwab & Co Inc Cust IRA Contributory, et al. (Adv. Pro. No. 10-05525)) Claims against the former shareholders of Lyondell, pursuant to Section 548 of the Bankruptcy Code, which were originally included in the litigation commenced by the Committee, are now being prosecuted in a separate lawsuit by the Litigation Trustee (the Federal Law Clawback Action ). The Federal Clawback Action seeks to recover, as fraudulent transfers, amounts paid to the former shareholders of Lyondell in respect of their Lyondell shares ( Merger Consideration ) upon the closing of the Merger. The complaint in the Federal Law Clawback Action, which was initially filed by the Litigation Trustee in December 2010, (i) names persons or institutions known to the Litigation Trustee as of December 2010 who received $240,000 or more in Merger Consideration (i.e., who held 5,000 or more shares of Lyondell stock) and (ii) includes a request to certify a defendant class to cover all other former shareholders who, as of December 2010, were not known to the Litigation Trustee or who received less than $240,000 in Merger Consideration (i.e., who held less than 5,000 shares). In April 2011, several motions to dismiss were filed by defendants. These motions to dismiss include some grounds unique to the Federal Law Clawback Action but also rely on legal arguments that were raised (and which remain unresolved) in the motions to dismiss filed in the Blavatnik Action and the State Law Clawback Action (which is discussed in more detail below). On July 14, 2011, the Bankruptcy Court heard oral argument on the motions to dismiss. The Bankruptcy Court (i) denied the defendants motions to dismiss on the asserted ground of lack of standing (a ground unique to the Federal Law Clawback Action), (ii) denied two motions to dismiss that were filed on jurisdictional grounds, 3
and (iii) continued its ruling on the remaining issues, which issues largely overlap with those raised in the Blavatnik Action and the State Law Clawback Action. The parties are still awaiting decision on the remaining issues. On January 14, 2014, the Bankruptcy Court issued its Decision and Order on Motions to Dismiss in the State Law Clawback Action (the Decision ). Pursuant to the Decision, among other things, the Litigation Trustee s claim for intentional fraudulent transfer was dismissed, with leave granted to replead. A summary of the Decision can be viewed at http://www.kccllc.net/lbtrust. The Litigation Trustee filed an amended complaint in the Federal Law Clawback Action on April 7, 2014, a copy of which can be viewed at http://www.kccllc.net/ lyondellshareholderclawback. Defendants moved to dismiss the amended complaint on July 30, 2014, which the Litigation Trustee opposed in a brief filed on September 15, 2014. On January 14 and 15, 2015, the Bankruptcy Court held a hearing on the motion to dismiss the Litigation Trustee s amended complaint. A decision has not been rendered as of the date hereof. In addition, on May 8, 2014, the Litigation Trustee filed a motion to certify a nonopt-class defendant class in the Federal Law Clawback Action, to seek to recover Merger Consideration from recipients not previously named as defendants in the action. Certain of these recipients submitted an opposition to the class certification motion on November 24, 2014, to which the Litigation Trustee responded on December 30, 2014. The class certification motion was heard by the Bankruptcy Court on January 14 and 15, 2015. A decision has not been rendered as of the date hereof. On February 10, 2015, the parties in the Federal Law Clawback Action submitted a joint proposed case management order setting forth a schedule that contemplates the completion of discovery and submission of summary judgment briefing by April 2016. The Bankruptcy Court has not yet acted on the proposed order. 3. State Law Clawback Action (Edward S. Weisfelner, as Trustee of the LB Creditor Trust v. Fund 1, et al. (Adv. Pro. No. 10-04609)) In a separate action, Mr. Weisfelner, in his capacity as Trustee of the LB Creditor Trust (in such capacity, the Creditor Trustee ), is seeking to recover Merger Consideration from the former shareholders of Lyondell under state law fraudulent conveyance law (the State Law Clawback Action ). The complaint in the State Law Clawback Action was initially filed by the Creditor Trustee in New York State Court in October 2010, but it was removed by certain defendants to the District Court (which then referred the case to the Bankruptcy Court). The Creditor Trustee filed an amended complaint in the State Law Clawback Action on December 19, 2011 for the purpose of naming an additional approximately 1,700 defendants. None of the substantive allegations contained in the original complaint was amended. 4
The named defendants in the amended complaint in the State Law Clawback Action include persons or institutions known to the Creditor Trustee who received $100,000 or more in Merger Consideration (i.e., who held approximately 2,000 or more shares of Lyondell stock). In total, the State Law Clawback Action names 1,871 defendants who, collectively, received approximately $6.3 billion in Merger Consideration. In January 2011, several motions to dismiss were filed by defendants. These motions were argued before the Bankruptcy Court on May 12, 2011. The parties are still awaiting decision on these motions. In addition, on December 19, 2011, the Creditor Trustee filed a complaint in New York state court (Edward S. Weisfelner, as Trustee of the LB Creditor Trust v. Reichman, et al. (the State Law Class Action ) pursuant to state fraudulent transfer law, asserting a defendant class action against not-yet-named Lyondell shareholders who received Merger Consideration (primarily those shareholders who received amounts less than $100,000). The State Law Class Action was subsequently removed to the Bankruptcy Court. In March 2012, certain defendants filed an additional motion to dismiss in the State Law Clawback Action. The Bankruptcy Court has not scheduled oral argument or issued any decision on this separate motion. On January 14, 2014, the Bankruptcy Court issued the Decision. In the Decision, the Bankruptcy Court held that the Creditor Trustee s state law fraudulent transfer claims were not preempted by Section 546(e) of the Bankruptcy Code or other federal law. The same issue is currently on appeal from the Tribune and SemGroup bankruptcies before the United States Court of Appeals for the Second Circuit, a panel of which heard oral argument on November 5, 2014. The Creditor Trustee submitted an amicus brief to the Second Circuit in support of a no-preemption finding by the panel. In the Decision, the Bankruptcy Court also granted the motions to dismiss the Creditor Trust s intentional fraudulent transfer claims the same claims that are being pursued by the Litigation Trust in the Federal Law Clawback Action. As with the amended complaint in the Federal Law Clawback Action, defendants moved to dismiss the amended complaints on July 30, 2014, which the Creditor Trustee opposed in a brief filed on September 15, 2014. On January 14 and 15, 2015, the Bankruptcy Court held a hearing on the motion to dismiss the Creditor Trustee s amended complaints, a decision on which has not yet been rendered. Copies of the amended complaints in the State Law Clawback Action and State Law Class Action can be viewed at http://www.kccllc.net/lyondellshareholderclawback. The joint proposed case management order noted above provided for an identical discovery timeline for the Creditor Trustee s actions, with the completion of discovery and submission of summary judgment briefing by April 2016. 5
To date, the Trusts have entered into a number of settlements in connection with the Merger-Related Actions and may continue to do so from time to time (although there can be no certainty). In light of the ongoing costs associated with Merger-Related Actions, the Trusts are not yet in a position to make a distribution from the settlement proceeds. The proceeds of those settlements reached thus far have been reserved to offset anticipated future costs relating to the Merger-Related Actions. Preference Claims Pursuant to the Plan and the Litigation Trust Agreement, the Debtors transferred certain preference claims to the Litigation Trust (the Preference Claims ). To date, the Litigation Trustee has collected (net of fees, expenses, and the Reorganized Debtors share of preference recoveries) approximately $12.4 million through settlement of the Preference Claims. With respect to those Preference Claims that have not yet been resolved, the Litigation Trustee continues to prosecute these claims through adversary proceedings filed in the Bankruptcy Court. Given the small number of remaining Preference Claims, a material increase in recoveries from such claims is not expected. Status of Claims Resolution, Distributions, and Funds on Hand On or about the Effective Date of the Plan (i.e., April 30, 2010), the Reorganized Debtors made Plan distributions to holders of unsecured claims that were allowed as of such date out of the $450 million ($300 million of cash and $150 million of stock) partial settlement of the Committee s adversary proceeding. In total, the Reorganized Debtors made distributions of cash and stock in the amount of approximately $294 million (with the stock valued based on the value ascribed to the stock under the Plan i.e., $17.61/share), resulting in the holders of allowed general unsecured claims receiving approximately 15.4% of such claims (with the stock component of such distribution computed based on the Plan value). For claims that were not allowed as of the Effective Date, the Reorganized Debtors transferred the undistributed cash and stock to the Creditor Representative. The Creditor Representative has continued to make distributions in cash and stock of approximately 15.4% to unsecured creditors as their claims become allowed. In December 2012, the Creditor Representative made an additional distribution in cash and stock of approximately 1.1% to holders of allowed general unsecured claims. Fewer than 45 unsecured claims (with a filed amount of approximately $130 million) remain unresolved at this time. The largest among these is a governmental entity claim (in the filed amount of $100 million) that relates to alleged environmental liability arising from the use of the gasoline additive MTBE. An agreement in principle has been reached to resolve this claim for substantially less than the $100 million filed amount. The Reorganized Debtors therefore estimate 6
that these fewer than 45 unresolved claims will ultimately be resolved in amounts significantly less than the $130 million filed amount. It is anticipated that, upon resolution of the remaining disputed claims, the Creditor Representative will be able to make an additional distribution to general unsecured creditors, perhaps as early as Summer 2015, but the precise timing and amount of any such distributions remains subject to final approval of the resolution of the MTBE-related claim mentioned above. Attached hereto as Exhibit A is a summary of the cash and stock transferred to the Creditor Representative on the Effective Date, the earnings on those funds, the distributions to unsecured creditors from these funds, and the balances remaining. Website Information The Trusts maintain a website (http://www.kccllc.net/lbtrust), which serves as a vehicle to streamline and simplify information for the benefit of unsecured creditors and Beneficiaries. We encourage all creditors and Beneficiaries to visit the website from time to time for information related to ongoing matters. The website contains key Plan documents, periodic communications from the Trusts and contact information for the attorneys for the Trusts and the Creditor Representative, Brown Rudnick LLP, along with their administrator Verdolino & Lowey P.C. We also encourage all Beneficiaries to provide the Trusts with an email address through the website to effectuate future direct and more efficient communication relating to the Trusts. Please click on the link in the Trusts website to furnish your consent to email notification and to submit your email address. 7
EDWARD S. WEISFELNER, SOLELY IN HIS CAPACITY AS MANAGER OF THE CREDITOR REPRESENTATIVE, TRUSTEE OF THE LB LITIGATION TRUST, AND TRUSTEE OF THE LB CREDITOR TRUST By his Counsel, /s/ Steven D. Pohl Steven D. Pohl BROWN RUDNICK LLP One Financial Center Boston, MA 02111 8
Exhibit A
Lyondell Chemical Company, et al 17.61 17.61 Creditor Representative Distribution Summary (through December 31, 2014) Cash Stock Total Stock Total # of Shares Plan Value ($17.61/share) # of Shares Value @ 12/31/14 Close ($79.39/share) Beginning Balance $ 104,451,674 2,923,500 $ 51,483,618 $ 155,935,292 687,990 $ 54,619,526 $ 159,071,200 Additions: Dividend Income from LyondellBasell Shares $ 13,694,909 $ - $ - $ 13,694,909 $ - $ - $ 13,694,909 Interest Income $ 19,248 $ - $ - $ 19,248 $ - $ - $ 19,248 Subtotal $ 118,165,832 $ 2,923,500 $ 51,483,619 $ 169,649,449 $ 687,990 $ 54,619,526 $ 172,785,357 Deductions: Initial Distribution paid on Allowed Claims $ (64,973,298) (1,765,205) $ (31,085,737) $ (96,059,035) $ - $ (64,973,298) Second Distribution paid on Allowed Claims $ (20,664,005) (470,305) $ (8,282,193) $ (28,946,198) $ - $ (20,664,005) Payment of Taxes $ (9,980) - $ - $ (9,980) $ - $ (9,980) Total Balance of Disputed Claims Fund, October 31, 2014 $ 32,518,548 687,990 $ 12,115,689 $ 44,634,236 687,990 $ 54,619,526 $ 87,138,074