The Chemours Company v. DowDupont Inc.

• Court: Court of Chancery of Delaware
• Decided: June 7, 2019
• Docket: CA 2019-0351-SG
• Status: Published

Opinion

COURT OF CHANCERY OF THE SAM GLASSCOCK III STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE VICE CHANCELLOR 34 THE CIRCLE GEORGETOWN, DELAWARE 19947

Date Submitted: June 6, 2019 Date Decided: June 7, 2019

Joel Friedlander, Esquire Robert S. Saunders, Esquire Jeffrey Gorris, Esquire Jennifer C. Voss, Esquire Cristopher Foulds, Esquire Arthur R. Bookout, Esquire Cristopher P. Quinn, Esquire Jessica R. Kunz, Esquire Friedlander & Gorris P.A. Skadden, Arps, Slate, Meagher & Flom LLP 1201 N. Market Street, Suite 2200 One Rodney Square Wilmington, Delaware 19801 P.O. Box 636 Wilmington, Delaware 19899

Re: The Chemours Co. v. DowDupont Inc., et al., C.A. No. 2019-0351-SG

Dear Counsel:

This matter is before me on a request by the Defendants for certification of

my Bench Ruling of May 23, 2019 for interlocutory appeal. In that Ruling, I found

that the parties had failed to comply with Court of Chancery Rule 5.1 in the redaction

of confidential information in the Complaint, and that, as a result, I would order the

Complaint to be made part of the public record. At Oral Argument preceding that

ruling, the Defendants argued that the entire Complaint was properly maintained as

confidential due to an agreement between the parties here, as part of an arbitration provision in a contract that forms the basis, in part, for this suit. I rejected that

argument. I committed, however, that I would not order release of the Complaint

on the public docket pending resolution of an interlocutory appeal, if any.

At the same Oral Argument preceding the Ruling at issue, the Plaintiff took

no position on continued confidential treatment. Counsel for the Plaintiff told me

that “Chemours, plaintiff, has no commitment itself to the confidentiality of the

documentation, but we do wish to be as cooperative, as I say, as we can be to DuPont

and its counsel, to the extent that it wishes to maintain information that is

confidential.”1 After the Defendants filed the Application for Certification,

however, the Plaintiff indicated it wished to “respond,” which it is entitled to do

under Supreme Court Rule 42(c)(ii). I directed the Plaintiff to file its response by

noon today.

At the end of the business day yesterday, June 6, I received a Motion for

Confidential Treatment from the Plaintiff, seeking to file the Complaint under seal

as an exhibit to its response to the Application for Certification. The Plaintiff’s

Motion is deficient under Court of Chancery Rule 5.1.2 It does not indicate what

1 May 23, 2019 Tel. Conf. Tr., at 7:18–22. 2 See Ct. Ch. R. 5.1(b)(1) (“Except as otherwise provided in this Rule, a Document shall not receive Confidential Treatment unless the person seeking Confidential Treatment shall have first obtained an order of this Court specifying the information or categories of information for which good cause exists for Confidential Treatment (‘Confidential Information’). A Document shall receive Confidential Treatment only if and to the extent that it contains Confidential Information.”); Ct. Ch. R. 5.1(b)(3) (“The party . . . seeking to obtain . . . Confidential Treatment always bears the 2 material is subject to confidentiality in the Complaint, nor the proper purpose for

which confidentiality is sought. The motion does indicate that “[i]nformation that

may qualify for ‘Confidential Treatment’ under Rule 5.1 includes ‘sensitive

proprietary information [or] sensitive financial [or] business . . . information.’” 3

This is as true as it is unhelpful; the Motion does not certify that the Complaint

contains such information, nor which of these categories, if any, are implicated.

Since the Plaintiff took no position on confidentiality at the oral argument

leading to the ruling under appeal, and since the Defendants’ position at oral

argument was not directed to specific portions of the Complaint, it is difficult to

comprehend the utility of the confidential filing of the Complaint as an exhibit. The

Plaintiff’s stated reason for filing the Complaint under seal is “to ensure that this

Court and the Supreme Court have the Complaint as part of the record.”4 The

unredacted Complaint is available to me, and will be available to the Supreme Court

on appeal, should it accept the appeal. Given that fact, as well as the deficiencies in

the Plaintiff’s Motion, the Plaintiff’s Motion for Confidential Treatment is denied.

burden of establishing good cause for Confidential Treatment . . . [and the party’s] designation of material as Confidential Information constitutes a certification . . . that good cause exists . . . .”). 3 Pl.’s Mot. for Confidential Treatment of Ex. A to its Response to Defs.’ Application for Certification of Interlocutory Appeal, ¶ 1 (internal citation omitted). 4 Id., ¶ 2. 3 I realize that Chemours is on a compressed schedule to file its Response, and

that this decision may require editing of its Response. Accordingly, I am extending

the time within which any Response may be filed to 3 p.m. today, EDT.

To the extent the foregoing requires an Order to take effect, IT IS SO

ORDERED.

Sincerely,

/s/ Sam Glasscock III

Sam Glasscock III