Overview
First Tuesday Update is our monthly take on current issues in commercial disputes, international arbitration, and judgment enforcement. This month we provide updates on three important matters in the judgment enforcement/international litigation area. First, we provide an update on the ongoing judicial sale of shares in Citgo's parent company in Crystallex, next we describe several significant developments in Helms-Burton litigation and last, we provide a further update on efforts to enforce judgments against Argentina amid its debt crisis.
Crystallex
Last month, we previewed that objections to the Special Master's recommendation of Gold Reserve, Inc. as the successful bidder in the long-running Crystallex saga (see articles here, here, here, here, and here) were due in mid-August, followed by a three-day sale hearing beginning on August 18. At stake are the shares of PDV Holding, Inc., the parent company of Citgo, which is presently owned by Venezuela's state-owned oil company, PDVSA. The shares are being sold in a judicial sale to satisfy the over $20 billion owed to creditors by PVSA and Venezuela. Gold Reserve's bid had a high headline price of $7.38 billion, but its financing was contingent and somewhat at the mercy of the PDVSA 2020 bondholders, who had threatened to seek an injunction in their own long-running litigation in the Southern District of New York before Judge Failla. If the pending motion for summary judgment in SDNY is decided in favor of the bondholders, they will have a senior lien and recover before any of the Crystallex creditors.
At the last possible moment, Amber Energy—an affiliate of Elliott Capital and the winning bidder back in September 2024 with a $7.286 billion bid that drew such significant objections from the creditors, due largely to its escrow terms, that the entire sale process was restarted with clearer guardrails—submitted an unsolicited bid, which derailed the August sale hearing and transformed it into a status hearing.
The issue of price vs. certainty—which has been a central focus throughout the sale process as the Special Master's recommendations shifted from Red Tree Investments LLC's high-certainty, low-price stalking horse bid to Gold Reserve's low-certainty, high-price topping bid— was the primary subject of discussion at the August 18 hearing in light of the Special Master's shift back to a lower-price bid that nevertheless contained a settlement with the 2020 bondholders. Specifically, Amber Energy informed the court that it had an executed settlement with the 2020 bondholders that would require the bondholders to seek a stay in SDNY and would require Amber Energy to extinguish any bonds that came into its possession.
On August 29, 2025, the Special Master issued an updated final recommendation recommending the Amber Energy bid. As the Special Master put it when explaining why he had changed his recommendation: "the Special Master is faced with a Dalinar[/Gold Reserve] bid that may not be able to close and may require re-solicitation of bids at a significantly depressed level, or an Amber bid that discharges $5.892 billion (and potentially up to $6.392 billion) of Attached Judgments, has a high degree of closing certainty, and secures an $895 million discount on the PDVSA 2020 Bondholders' claims with the possible flexibility for the court to reject the transaction if circumstances arise where it considers the [settlement agreement with the bondholders] results in a fundamental injustice. Faced with these choices, the Special Master concludes that the Amber Sale Transaction is the best bid for the PDVH Shares." (ECF No. 2123.) In other words, the Special Master framed the Amber Energy bid as a win-win: either Judge Failla determines the bonds are valid, in which case Amber Energy has obtained a nearly $900 million discount, or that they are not, in which case the "certainty" half of the analysis become irrelevant and new bids, based on higher prices, could be solicited.
Amber Energy's bid consists of $5.892 billion in base consideration plus up to $500 million in additional consideration to two judgment creditors, who will discharge their large judgments at a significant discount if they accept the additional consideration: Rusoro Mining, with an approximately $1.569 billion judgment, and Koch Minerals with approximately $471 million in judgments.
Judge Failla in SDNY is still expected to issue her summary judgment ruling on the merits of the PDVSA 2020 bonds by the end of September, at which point Judge Stark will not yet have completed the sale hearings. She ordered the United States to provide a statement of position by August 29, 2025. The United States did so and: 1) affirmed its recognition of, and support for, the 2015 National Assembly despite changes in leadership; 2) said the views of the 2015 National Assembly should be granted comity and respectful consideration, though the US recognized that Judge Failla was not required to give conclusive weight to those opinions; and 3) took no position on the legal issues in the pending summary judgment motions, but "reiterate[d] its substantial interest in avoiding uncertainty in lawful contractual relations and an orderly process for restructuring sovereign debts for which creditors can legitimately expect payment."
The parties have been busy with additional discovery on Amber Energy's bid and on objections to the Special Master's recommendation. The first part of the Sale Hearing, with an evidentiary focus, is presently scheduled for September 15-18. The second part, which will include any evidence or argument that could only be heard after Judge Failla's ruling on the 2020s issues and address any follow-up questions Judge Stark has based on post-hearing briefing, is presently scheduled for October 20-21. However, these dates—as with everything having to do with Crystallex—are subject to change, particularly if the 2020 bondholders seek a stay in SDNY and Judge Failla grants it and does not issue her ruling by September 30.
Helms-Burton Updates
We next provide two notable updates in pending litigation on the Helms-Burton Act.
The SG Weighs in On Two Important Cases
As previously reported, the Supreme Court has invited the Solicitor General to file amicus briefs in two significant cases under Title III of Helms-Burton Act: Exxon Mobil Corp. v. Corporación CIMEX, S.A. (No. 24-699) and Havana Docks Corp. v. Royal Caribbean Cruises Ltd. (No. 24-983). Both briefs were filed earlier this month and notably advocate for an expansive interpretation of the statute to fulfill its remedial and deterrent purposes.
Exxon Mobil Corp. v. Corporación CIMEX, S.A. (No. 24-699)
To recap, Exxon involves claims brought against three Cuban state-owned entities alleged to be "trafficking" in property—including service stations and oil refining infrastructure—expropriated by the Cuban government during the revolution. Exxon filed suit in the District of Columbia in 2019 after the Trump administration lifted the statutory suspension on bringing Helms-Burton claims.
The defendants moved to dismiss on sovereign immunity grounds. Exxon responded that the plain text of the Helms-Burton Act abrogates sovereign immunity, pointing to the statute's express authorization of claims against a "person," defined to include agencies and instrumentalities of foreign states. Alternatively, Exxon argued that the Foreign Sovereign Immunities Act (FSIA) exceptions for expropriation and commercial activity applied.
The district court held that the Helms-Burton Act did not abrogate sovereign immunity but found that the commercial activity exception applied to Defendant CIMEX. The court deferred ruling on the applicability of that exception to Defendants CUPET and CIMEX-Panama pending jurisdictional discovery.
Both sides cross-appealed. A divided panel of the DC Circuit agreed with the district court that the Helms-Burton Act does not abrogate sovereign immunity and directed the parties to conduct additional discovery on the application of the commercial activity exception to Cuba's immunity claim. In dissent, Judge Randolph concluded that the statute's plain text does abrogate immunity. Exxon sought certiorari on this question, and the Supreme Court called for the views of the Solicitor General.
In its brief, the Solicitor General supported Exxon's position—endorsed by Judge Randolph—that the statute's definition of "person," along with its broader context, confirms Congress's clear intent to abrogate sovereign immunity. (US Brief at 2, 13–16.) The brief explained that the DC Circuit's decision "upends Congress's carefully calibrated authorization of private suits against Cuban agencies and instrumentalities and thwarts a critical foreign policy tool." (US Br. at 2.)
The Solicitor General emphasized that the Helms-Burton Act is part of a "deferential" regime that gives the President discretion to authorize or suspend Title III claims based on foreign policy objectives. The DC Circuit's ruling, the brief argued, would have adverse "foreign policy consequences not clearly intended by the political branches." (US Br. at 18.)
Urging the court to grant certiorari and reverse, the Solicitor General noted that review is "especially warranted now" because "the President has allowed Title III suits to proceed" and "the United States believes that such suits could meaningfully contribute to American foreign-policy objectives involving Cuba." (US Br. at 3.)
Steptoe has had the privilege of representing Exxon throughout this litigation, with our colleagues at Sullivan & Cromwell LLP joining us at the Supreme Court level.
Havana Docks Corp. v. Royal Caribbean Cruises Ltd. (No. 24-983)
Havana Docks Corporation held a 99-year concession to operate piers at the Port of Havana, which was expropriated by the Cuban government in 1960. The company sued several commercial cruise lines, including Royal Caribbean, for trafficking in the confiscated property between 2016 and 2019. Granting summary judgment in favor of Havana Docks, the district court awarded $440 million in damages, including treble damages—the first judgment ever rendered in favor of a Helms-Burton plaintiff.
The Eleventh Circuit reversed, holding that Title III does not permit claims based on time-limited property interests (such as a concession) that would have expired before the alleged trafficking occurred. The majority applied a counterfactual test, requiring courts to assess whether the property interest would have existed at the time the case was filed but for the expropriation. Judge Brasher dissented, emphasizing that Title III focuses on ownership of a claim—not the hypothetical survival of the underlying property interest.
Havana Docks sought certiorari, and the Supreme Court called for the views of the Solicitor General.
Much like in Exxon, the Solicitor General emphasized the importance of Title III as a "foreign-policy tool" and criticized the Eleventh Circuit's restrictive interpretation for "blocking a wide array of suits authorized by Congress and determined by the Executive to advance important foreign-policy objectives." (US Brief at 3.)
Consistent with Judge Brasher's dissent, the brief rejected the notion that Havana Docks cannot be considered an owner of a claim simply because "in a counterfactual world, those property interests would have already expired." (US Br. at 4, 13–15.)
The Solicitor General concluded by urging the court to grant certiorari in both Exxon and Havana Docks, stating that "[d]oing so would allow the court to conclusively resolve two of the most pressing Title III issues at a time when they matter to plaintiffs and US foreign policy."
Helms-Burton Updates: First Jury Verdict Overturned
In a first-of-its-kind decision, the US District Court for the Southern District of Florida has set aside the first-ever jury verdict awarded under the Helms-Burton Act—a $119.4 million judgment against Expedia Group, Inc., Hotels.com GP, LLC, Hotels.com L.P., and Orbitz, LLC. Plaintiff Mario Echevarria alleged that the defendants knowingly trafficked in property confiscated by the Cuban government—specifically, hotels located on the island of Cayo Coco, which he claimed to have inherited. Although the jury initially found in favor of Mr. Echevarria and awarded treble damages, the court concluded post-trial that the evidence did not support the jury's findings.
To begin its analysis, the court determined that Plaintiff's cease-and-desist notices were sufficiently detailed to put the defendants on notice of the alleged trafficking. However, the court found that Orbitz and Hotels.com ceased bookings after receiving the notices, and therefore did not engage in "knowing and intentional" trafficking under the statute. As to Expedia Group, Inc., the court held that, as a holding company, it could not be held liable for the actions of its subsidiaries. Accordingly, the court entered judgment as a matter of law in favor of all defendants and declined to address damages. While Plaintiff did not secure a monetary award, the court noted that the defendants ceased the allegedly unlawful activity within the statutory 30-day window, thereby fulfilling the core intent of the Helms-Burton Act. Plaintiff has indicated he will appeal the ruling.
Petersen v. Argentina Update
In last month's update, we summarized the status of pending litigation against Argentina in the Southern District of New York and the Second Circuit arising out of Argentina's 2012 partial nationalization of YPF, a formerly state-owned oil company that had been privatized in 1999, but there have been some notable subsequent developments. For one, there has been movement from the Second Circuit, which has now, nearly a year after briefing was complete, scheduled oral argument for October 29, 2025, concerning the merits of a $16 billion district-court judgment entered in September 2023.
The Second Circuit has also stayed a July 2025 order from the district court that would have required Argentina to turn over its shares in YPF, worth several billion dollars, to the Petersen plaintiffs in partial satisfaction of their judgment. Argentina's appellate brief challenging that turnover order is due on September 25, 2025, and the US government will likely file an amicus brief supporting Argentina's position. Briefing on the merits of Argentina's appeal likely will not be complete until late this year or early next year.
Finally, judgment enforcement proceedings continue before the district court. Argentina has moved Judge Preska, the district judge presiding over the case, to reconsider a number of her orders concerning post-judgment discovery, including an order requiring Argentina to produce communications from the personal devices of current and former government officials. Judge Preska, however, has refused to do so. More appellate battles are likely looming.
