Plaintiffs lawyers are questioning whether their cases will be heard by Delaware’s courts. That concern is fueled by the Delaware Supreme Court affirmance of a trial court’s dismissal of a case against DuPont Co., the ultimate Delaware corporation, on forum non conveniens grounds, in Martinez v. E.I. du Pont de Nemours & Co., 86 A.3d 1102 (Del. 2014). For if Delaware will reject a case as too inconvenient for a defendant like DuPont, whose headquarters is just four blocks from the courthouse, might not any defendant also have a case against it thrown out for the same reason? Of course, that is a too-broad reading of the Martinez case. Moreover, on April 28, the Court of Chancery sent a strong signal that the Delaware courts remain open to all, even foreign, plaintiffs.
First, a word about Martinez helps set the stage to discuss this recent Chancery Court decision. Martinez involved a Brazilian widow suing DuPont for the alleged negligence of a third-tier DuPont subsidiary located in Brazil whose actions all took place in Brazil. The very attempt to hold DuPont liable for its distant subsidiary’s actions raised difficult questions of foreign law. Thus, under traditional Delaware notions of when it is fair to a defendant to force it to litigate in Delaware (the so-called Cryo-Maid factors), Martinez presented almost the very outer limits of the type of case a Delaware court would hear. What surprised most lawyers is that the court ruled in favor of the defendant DuPont—a party that could not have closer ties to Delaware. The fear was that for defendants with lesser Delaware connections, Martinez would virtually mandate the dismissal of any case filed by a foreign plaintiff over acts occurring outside of Delaware.
