          IN THE SUPREME COURT OF THE STATE OF DELAWARE

GRAMERCY EMERGING                      §
MARKETS FUND, BALKAN                   §    No. 49, 2017
VENTURES LLC, AND RILA                 §
VENTURES LLC,                          §    Court Below: Court of Chancery
                                       §    of the State of Delaware
     Plaintiffs Below,                 §
     Appellants,                       §    C.A. No. 10321–VCG
                                       §
     v.                                §
                                       §
ALLIED IRISH BANKS, P.L.C.,            §
AND THE BULGARIAN                      §
AMERICAN ENTERPRISE FUND,              §
                                       §
     Defendants Below,                 §
     Appellees.                        §

                         Submitted: September 13, 2017
                         Decided:   October 27, 2017

Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and
TRAYNOR, Justices, constituting the Court en Banc.

Upon appeal from the Court of Chancery. AFFIRMED.

Stephen B. Brauerman, Esquire, Sara E. Bussiere, Esquire, BAYARD, P.A.,
Wilmington, Delaware; Sean F. O’Shea, Esquire, (argued), Michael E. Petrella,
Esquire, Amanda L. Devereux, Esquire, Brian B. Alexander, Esquire, BOIES
SCHILLER FLEXNER LLP, New York, New York, Attorneys for Appellants,
Gramercy Emerging Markets Fund, Balkan Ventures LLC, and Rila Ventures LLC.

Kevin R. Shannon, Esquire, Christopher N. Kelly, Esquire, POTTER ANDERSON
& CORROON LLP, Wilmington, Delaware; Walter C. Carlson, Esquire, (argued),
Elizabeth Y. Austin, Esquire, SIDLEY AUSTIN LLP, Chicago, Illinois, Attorneys
for Appellee, Allied Irish Banks, P.L.C.

Kenneth J. Nachbar, Esquire, Ryan D. Stottman, Esquire, MORRIS, NICHOLS,
ARSHT & TUNNELL LLP, Wilmington, Delaware; Christopher Landau, P.C.,
KIRKLAND & ELLIS LLP, Washington, D.C.; Brian D. Sieve, P.C., Jessica L.
Staiger, Esquire, KIRKLAND & ELLIS LLP, Chicago, Illinois; Jeremy M.
Feigenbaum, Esquire, (argued), KIRKLAND & ELLIS LLP, New York, New York,
Attorneys for Appellee, Bulgarian-American Enterprise Fund.



STRINE, Chief Justice:
      In this case, a Cayman Islands investment fund and two of its Delaware

subsidiaries (collectively “Gramercy”) sue a bank organized under Delaware law

with offices in Illinois and Bulgaria (Bulgarian-American Enterprise Fund, or

“Bulgarian-American”) and an Irish bank headquartered in Dublin (Allied Irish

Banks, P.L.C., or “Allied”) over claims they admit arise under Bulgarian law and

have no connection to activity that took place in Delaware. Delaware is the second

forum in which Gramercy sought to press its Bulgarian claims. Like Delaware, the

first forum was not Bulgaria, it was Illinois, where: (i) after extensive discovery and

briefing on the issue of forum non conveniens, the Circuit Court of Cook County in

Chicago granted a motion to dismiss; (ii) the Illinois Appellate Court unanimously

affirmed the Circuit Court’s dismissal; and (iii) the Illinois Supreme Court denied

Gramercy’s petition for leave to appeal.

      After its suit reached a dead-end in Illinois, Gramercy, rather than going to

Bulgaria and suing in the forum whose laws govern its claims and where its

investment in Bulgarian-American took place, then sued in Delaware. Bulgarian-

American and Allied filed a motion to dismiss, arguing Bulgaria was the appropriate

forum for the litigation. In granting Bulgarian-American and Allied’s motion and

holding that Gramercy’s suit did not merit the overwhelming hardship standard

afforded to first-filed actions under Cryo-Maid, the Court of Chancery was forced

to address confusing arguments about this Court’s forum non conveniens precedent,
in particular the relationship among this Court’s longstanding decisions in Cryo-

Maid1 and McWane,2 and a more recent decision, Lisa, S.A. v. Mayorga.3

      The fact pattern in this case diverges from the scenarios we usually see facing

motions to dismiss for forum non conveniens: (1) a first-filed Delaware action with

no pending descendants, which implicates Cryo-Maid’s overwhelming hardship

standard; and (2) a Delaware action with a predecessor pending elsewhere, which

implicates McWane’s discretionary standard. Likely for this reason, the Court of

Chancery felt it had just two options for its legal analysis—Cryo-Maid or McWane—

and looked to Lisa for guidance in choosing between the two.

      Bulgarian-American and Allied contended that Lisa, rather than being a very

fact-specific ruling, set forth broad principles, principles about which the parties

disagree. Although Gramercy interpreted Lisa to apply the McWane standard only

to cases in which the no longer pending first-filed case was decided on the merits,

Bulgarian-American and Allied interpreted Lisa as extending McWane to all cases

in which the first-filed case was decided, regardless of whether that decision was on

the merits. The heart of the parties’ disagreement was this: when a first-filed suit is

procedurally dismissed, is a motion to dismiss for forum non conveniens in a later-

filed Delaware suit subject to the overwhelming hardship standard?


1
  Gen. Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681 (Del. 1964).
2
  McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng’g Co., 263 A.2d 281 (Del. 1970).
3
  Lisa, S.A. v. Mayorga, 993 A.2d 1042 (Del. 2010).
                                            2
      The Court of Chancery correctly held that the Delaware action was not first-

filed, and that to obtain dismissal on forum non conveniens grounds, Bulgarian-

American and Allied did not need to show overwhelming hardship. But, because

the Illinois case was no longer pending, and was not dismissed on the merits like the

first-filed action in Lisa, McWane was no longer the proper focus for the Court of

Chancery’s analysis.

      The Illinois action had relevance in the forum non conveniens analysis

because it meant that analysis would not be tilted in Gramercy’s favor under the

overwhelming hardship standard. But, because the Illinois action was not dismissed

on its merits, but instead for forum non conveniens, it should not have shifted the

Court’s focus from Cryo-Maid to McWane. Between Cryo-Maid’s overwhelming

hardship standard and McWane’s discretionary standard lies an intermediate analysis

that applies to situations like Gramercy’s: a straightforward assessment of the Cryo-

Maid factors, where dismissal is appropriate if those factors weigh in favor of that

outcome.

                                         I.

      To understand how this case was presented before the Court of Chancery, it

is useful to consider the three key cases that framed the parties’ duel over

overwhelming hardship. We begin with the first, Cryo-Maid.




                                         3
                                                A.

       In Cryo-Maid, this Court considered whether to stay a first-filed Delaware

action in favor of an action pending in Illinois. In deciding to stay the Delaware

action, this Court considered the following factors: “(1) [t]he relative ease of access

to proof; (2) the availability of compulsory process for witnesses; (3) the possibility

of the view of the permises [sic], if appropriate; . . . (4) all other practical problems

that would make the trial of the case easy, expeditious and inexpensive;” and (5)

“whether or not the controversy is dependent upon the application of Delaware law

which the courts of this State more properly should decide than those of another

jurisdiction.”4 “A sixth [factor]—the pendency or nonpendency of a similar action

in another jurisdiction—was added to the Cryo-Maid framework by subsequent

decisions.”5 Together, these factors have come to form the core of Delaware’s

traditional forum non conveniens analysis.

       Typically, when Cryo-Maid is invoked, the plaintiff has chosen Delaware as

its first forum. When that is the case, for dismissal to be granted, the Cryo-Maid

factors must weigh “overwhelmingly in favor of the defendant.” 6 The “short-hand



4
  Cryo-Maid, supra note 1, at 684.
5
  1-5 DONALD J. WOLFE, JR. & MICHAEL A. PITTENGER, CORPORATE AND COMMERCIAL PRACTICE
IN THE DELAWARE COURT OF CHANCERY § 5.02 (2017). Although the addition of this factor is
formally attributed to later cases, Cryo-Maid itself discussed “the pendency of a similar action in
another jurisdiction” in making its determination to stay the Delaware action at issue in the case.
Cryo-Maid, supra note 1, at 683.
6
  E.g. Kolber v. Holyoke Shares, Inc., 213 A.2d 444, 447 (Del. 1965).
                                                4
phrase ‘overwhelming hardship’ emerged” from the post Cryo-Maid case law,

reflecting our courts’ reluctance to lightly disturb a plaintiff’s first choice of fora.7

When a case first-filed in Delaware is challenged by a motion to dismiss for forum

non conveniens, “[d]ismissa[l] on the basis of forum non conveniens [is] appropriate

only in the rare case involving undue hardship and inconvenience.”8

                                             B.

       In McWane, this Court considered whether or not to stay a later-filed

Delaware action in favor of a first-filed Alabama action. In deciding to stay the

Delaware action, this Court distinguished the forum non conveniens analysis for

first-filed Delaware actions from the forum non conveniens analysis for later-filed

Delaware actions related to an action pending in another jurisdiction. As McWane

clarified, “in view of [a] prior action pending,” Delaware courts considering a

motion to dismiss for forum non conveniens should ask whether “there are facts and

circumstances sufficient to . . . grant the stay within the range of the Court’s

discretion.”9 As this Court recently summarized:

       Delaware courts considering a motion to stay or dismiss in favor of a
       previously filed action have applied McWane’s three-factor test: (1) is
       there a prior action pending elsewhere; (2) in a court capable of doing
       prompt and complete justice; (3) involving the same parties and the
       same issues? If all three criteria are met, McWane and its progeny


7
  IM2 Merch. & Mfg., Inc. v. Tirex Corp., 2000 WL 1664168, at *1 (Del. Ch. Nov. 2, 2000).
8
  WOLFE & PITTENGER, supra note 5, § 5.02.
9
  McWane, supra note 2, at 283.
                                              5
       establish a strong preference for the litigation of a dispute in the forum
       in which the first action was filed.10

       When a case is not first-filed in Delaware and its predecessor remains

pending, McWane applies, and Delaware courts “typically will defer to [the] first-

filed action in another forum if that action involves substantially the same parties

and issues as the litigation pending in Delaware, and will stay the later-filed

Delaware action pending adjudication of the issues in the competing forum.”11

       Although the evidentiary burden a moving party faces under Cryo-Maid’s

overwhelming hardship analysis is more demanding than what that party would face

under McWane’s discretionary analysis, the relevant considerations under the two

analyses are related.     “In addition to the comity considerations articulated in

McWane, the Court of Chancery, in assessing motions to stay Delaware litigation

under the first-filed rule, frequently analyze[s] the same ‘practicality’ factors

traditionally applied under the forum non conveniens doctrine.”12              In fact, in

McWane itself, this Court recognized five of the six Cryo-Maid considerations in

deciding to stay the Delaware action in favor of the first-filed Alabama action that

was still pending.13




10
   LG Elecs., Inc. v. InterDigital Commc’ns, Inc., 114 A.3d 1246, 1252 (Del. 2015) (internal
citation omitted).
11
   WOLFE & PITTENGER, supra note 5, § 5.01.
12
   Id.
13
   McWane, supra note 2, at 283.
                                             6
       It is no coincidence that McWane discussed the Cryo-Maid factors in its

analysis of the circumstances compelling a stay in the case. “McWane does not hold

that consideration of the forum non conveniens factors is inappropriate in connection

with the analysis mandated by the first-filed rule. Instead, McWane holds that

imposing the same high burden on defendants in the first-filed context as in the

forum non conveniens context and failing to consider principles of comity in

conjunction with the first-filed analysis constitutes error.”14

       McWane draws on Cryo-Maid’s factors because both tests are rooted in forum

non conveniens doctrine. “[W]hat distinguishes the application of [the forum non

conveniens] factors in the McWane [and Cryo-Maid] contexts is ‘the background

presumption against which the elements are applied.’”15                    Under Cryo-Maid,

defendants must establish overwhelming hardship for Delaware courts to grant

dismissal. Under McWane, Delaware courts have greater discretion in determining

whether a stay or dismissal is proper.

                                               C.

       In Lisa, this Court considered whether a later-filed Delaware action whose

predecessors were no longer pending still triggered McWane’s discretionary

analysis. Lisa was an unusual case because the Delaware action was the fourth


14
  WOLFE & PITTENGER, supra note 5, § 5.01.
15
  Id. (citing Apple Computer, Inc. v. Exponential Tech., Inc., 1999 Del. Ch. LEXIS 9, at *51 (Jan.
21, 1999).
                                                7
action filed by Lisa, S.A., which had previously filed two actions in the Florida state

courts, and one in the Florida federal courts.16

       The Court of Chancery previously stayed Lisa’s Delaware action pending the

resolution of the 1998 Florida Action, the first of its three predecessors in Florida.17

This made sense because Lisa’s Delaware action was brought to ensure that it could

obtain relief in the 1998 Florida Action: the Delaware suit involved a challenge to

corporate actions that Lisa contended unfairly threatened its standing to gain relief

in that action.18

       The 1998 Florida Action was later dismissed with prejudice and the other two

Florida actions were dismissed for forum non conveniens.19 And the Florida Third

District Court of Appeal affirmed the 1998 Florida Action’s dismissal.20

       It was only after all three of the Florida actions were dismissed that the Court

of Chancery dismissed the Delaware case on, among other grounds, “forum non

conveniens.”21 In so doing, the Court of Chancery assessed the Cryo-Maid factors,


16
   Lisa, S.A. v. Mayorga, 2009 WL 1846308, at *3 (Del. Ch. June 22, 2009), aff’d, 993 A.2d 1042
(Del. 2010).
17
   “[T]he Court of Chancery stayed the Delaware action in favor of the then-pending first-filed
1998 Florida Action, and held the motion to dismiss [for forum non conveniens] in abeyance
pending the outcome of Lisa’s appeal in that Florida action.” Lisa, supra note 3, at 1045.
18
   Id.
19
   Id. at 1045, 1048.
20
   Id. at 1046.
21
   Lisa, S.A. v. Mayorga, 2009 WL 1846308, at *1 (Del. Ch. June 22, 2009), aff’d, 993 A.2d 1042
(Del. 2010). “The Vice Chancellor held that Delaware courts had no personal jurisdiction over
any defendants other than the Delaware corporate defendants. The [Court of Chancery] dismissed
the defendants over which it lacked jurisdiction, and denied Lisa’s request for jurisdictional
discovery. As for the Delaware corporate defendants, the Vice Chancellor dismissed Counts III
                                              8
and held that Lisa had “met [the] heavy burden” of demonstrating “overwhelming

hardship and inconvenience.”22

       Lisa appealed the Court of Chancery’s: (1) denial of “jurisdictional discovery

before dismissing the claims against the [non-Delaware corporate] defendants for

lack of personal jurisdiction;” and (2) dismissal of Lisa’s fraud and unjust

enrichment claims against the Delaware corporate defendants for forum non

conveniens to this Court.23 As to the claims dismissed for forum non conveniens,

Lisa argued on appeal that the Court of Chancery failed to apply the overwhelming

hardship standard and instead “merely balanced the hardship to the defendants from

being required to litigate in Delaware against the hardship to Lisa from having to

litigate in the defendants’ proposed forum—Guatemala.”24

       This Court affirmed the Court of Chancery’s forum non conveniens dismissal,

and rejected Lisa’s argument that the Court of Chancery failed to give sufficient

weight to the overwhelming hardship overlay of Cryo-Maid by determining that: (1)

Lisa was not entitled to the benefit of the overwhelming hardship gloss on Cryo-




and V of the complaint for failure to state a claim upon which relief can be granted, and dismissed
the remaining Counts (conspiracy to defraud and unjust enrichment) on forum non conveniens
grounds.” Lisa, supra note 3, at 1045–46.
22
   Lisa, S.A. v. Mayorga, 2009 WL 1846308, at *8 (Del. Ch. June 22, 2009), aff’d, 993 A.2d 1042
(Del. 2010) (internal citation omitted).
23
   Lisa, supra note 3, at 1046, 1049. Lisa did not appeal the dismissal of Counts III and V: the
claims against the Delaware corporate defendants dismissed for failure to state a claim. Id. at 1046
n. 8.
24
   Id. at 1046.
                                                 9
Maid; (2) McWane applied; and (3) dismissal in favor of the resolution reached in

the prior suits was proper.25 In affirming, this Court reasoned:

          Lisa’s claim [that the Court of Chancery incorrectly applied the
          overwhelming hardship test] is without merit, because the
          “overwhelming hardship” standard does not apply to Delaware
          actions—like this one—that were not “first filed.” . . .

          The 1998 Florida Action was what propped up this Delaware action.
          Its dismissal caused that prop to collapse and warranted the dismissal
          of the Delaware action under McWane. That the 1998 Florida Action
          is no longer pending does not change the outcome, even though
          language in McWane speaks in terms of a “prior action pending in
          another jurisdiction.” To allow Lisa to proceed with this Delaware
          action after the dismissal with prejudice of the predicate Florida action,
          would ignore the binding effect of the Florida adjudication, and create
          the possibility of inconsistent and conflicting rulings. That is precisely
          the outcome McWane’s doctrine of comity seeks to prevent. . . .

          We therefore affirm the Court of Chancery’s dismissal of Lisa’s action,
          on forum non conveniens grounds, under McWane. 26

          Lisa’s outcome rested on two premises: one case specific and one not. As to

the larger premise, Lisa appropriately held that Lisa’s prior Florida actions left Lisa

unable to call on the aid of the overwhelming hardship gloss on Cryo-Maid. The

more case specific premise is the one moving from that conclusion to applying

McWane. The rationale for that in Lisa was arguably due to the unique nature of the

interplay between the 1998 Florida Action and the Delaware action. By Lisa’s own

admission, the purpose of its Delaware action was to facilitate its recovery in the


25
     Id. at 1047.
26
     Id. at 1047–48.
                                             10
1998 Florida Action.27 And, because that suit’s dismissal had been affirmed on

appeal in Florida, the “prop” under the Delaware action had “collapse[d] and

warranted the dismissal of the Delaware action under McWane.”28 This Court also

made clear that McWane is a form of forum non conveniens analysis by stating that,

because “dismissal of this entire case was appropriate on forum non conveniens

grounds,” we would not reach the plaintiff’s other arguments.29

       The outcome in Lisa made sense, given the proliferation of suits filed by Lisa

and its failure in those prior suits. But, to the extent that Lisa purported to create a

larger, non-case specific rule, it, in our view, stands solely for the proposition that

when a plaintiff has previously brought its claims in another forum, that decision has

the effect of denying that plaintiff the ability to call on the overwhelming hardship

standard in addressing a forum non conveniens motion. If the prior lawsuit is no

longer pending, absent an unusual situation such as Lisa’s where the Delaware action

was solely brought to facilitate recovery in the prior action, McWane falls out of the

calculus. The fact that the prior action was dismissed may, of course, have great


27
   “On November 22, 2006, Lisa filed this action in the Court of Chancery. Lisa claims that after
it commenced its 1998 Florida Action, Mayorga and other members of the Gutierrez Mayorga and
Bosch Gutierrez families, fraudulently reorganized the Campero Group specifically to eliminate
or diminish Lisa’s ability to obtain relief in the 1998 Florida Action—namely, to recover damages
or be reinstated as a stockholder of the Campero Group. Lisa claims that the defendants caused
the Campero Group to transfer the U.S. rights to the Pollo Campero franchise to Campero USA
(through Campero Panama and Campero Delaware) for no consideration, all as part of a continuing
scheme and conspiracy to defraud Lisa.” Id. at 1045.
28
   Id. at 1048.
29
   Lisa, supra note 3, at 1048–49.
                                               11
relevance. But that is because principles of preclusion and stare decisis might dictate

dismissal.

                                                II.

       The fact pattern in this case, where a later-filed Delaware action is challenged

by a motion to dismiss for forum non conveniens after a first-filed action in Illinois

was already dismissed for forum non conveniens, is rare. As has been discussed,

motions to dismiss for forum non conveniens usually arise from either: (1) a first-

filed Delaware action with no pending descendants; or (2) a Delaware action with a

predecessor pending elsewhere. Like in Lisa, the facts in this case do not mirror one

of the two usual forum non conveniens scenarios. That is why the parties, and the

Court of Chancery, naturally looked to Lisa for clarification.

       Gramercy pressed the position below that it was entitled to the deference given

to a first-filed action and that therefore the Court of Chancery should analyze the

Cryo-Maid factors under the overwhelming hardship standard.30 In response to this

argument—which was the central focus of the parties’ briefing—Bulgarian-

American and Allied argued that under this Court’s decision in Lisa, it was entitled



30
    E.g., Appellant’s Opening Br. 14 (“The lower court erroneously held that one reason for the
overwhelming hardship standard is deference to a plaintiff’s choice of forum, and that only
litigants that make Delaware their first choice are entitled deference. . . . However, Plaintiffs did
indeed ‘choose’ Delaware to resolve their dispute. The fact that they chose Delaware second does
not render it any less of a choice. Nor does Delaware law support the proposition that a plaintiff’s
second choice of forum following a purely procedural dismissal in another is entitled to less
deference than its original choice.”).
                                                12
to dismissal under McWane, and in the alternative, under a straightforward forum

non conveniens analysis.31             Neither party gave much thought to a possible

intermediate position: that despite Cryo-Maid’s overwhelming hardship overlay

being inappropriate in this case, Cryo-Maid still provided a more appropriate

framework for the Court of Chancery’s analysis than McWane.

        The Court of Chancery engaged in a thorough analysis of the competing

arguments presented to it. In doing so, it recognized the reality that both Cryo-Maid

and McWane were forum non conveniens standards, labeling McWane and Cryo-

Maid as “mirror-image analyses bent on serving the same beneficial interests,”32 and

quoting Lisa’s assertion that “the two doctrines of overwhelming hardship and

McWane . . . operate consistently and in tandem to discourage forum shopping and

promote the orderly administration of justice by recognizing the value of confining

litigation to one jurisdiction, whenever that is both possible and practical.”33


31
   E.g., Appellee Allied’s Answering Br. 16 (“This action is not Plaintiffs’ ‘first-filed.’ Plaintiffs
filed this case in Delaware only after their claims were dismissed in Plaintiffs’ first forum (Illinois).
Therefore, under the plain language of this Court’s decision in Lisa, the ‘strong deference’ that
Delaware courts afford to a plaintiff’s initial choice of forum is not warranted, and the
‘overwhelming hardship’ standard does not apply.”) (internal citations omitted); Id. at 36 (“Had
the Vice Chancellor conducted a Cryo-Maid analysis, it would have demonstrated that Defendants
have amply shown that litigating this case in Delaware will cause them ‘overwhelming
hardship.’”) (internal citation omitted).
32
   Gramercy Emerging Markets Fund v. Allied Irish Banks, P.L.C., 2016 WL 7494898, at *8
(“[T]he factors that weigh so strongly in favor of a first-filed Delaware plaintiff under Cryo-
Maid—the respect for a plaintiff’s choice of forum, to avoid forum-shopping and inconsistent
judicial decisions—cut just as strongly against the Delaware second filer. A McWane analysis
directs the court to examine whether actions arise from the same facts, and whether the first forum
can provide justice; if so, the court may freely exercise its discretion to stay or dismiss.”).
33
   Id. (quoting Lisa, supra note 3, at 1047) (internal citation omitted).
                                                  13
          The Court of Chancery then evaluated differences of opinion between the

parties about the applicability of the overwhelming hardship standard. In rejecting

Gramercy’s argument, and deciding not only that the overwhelming hardship

standard did not apply, but also that McWane, rather than Cryo-Maid, applied even

though Gramercy’s Illinois action was no longer pending, the Court of Chancery

was heavily influenced by this Court’s decision in Lisa:

          Under McWane, a subsequent Delaware action would have been subject
          to dismissal in favor of an identical first-filed pending action in Illinois;
          under Lisa, the fact that the pending action has been resolved does not
          necessarily change this result. The Illinois trial and appellate courts,
          after discovery and on consideration of the positions of the parties,
          determined that Bulgaria provides an adequate forum and is the
          appropriate forum for any litigation. I find, based on the record before
          me, that dismissal under the McWane analysis is appropriate.34

          With some understandable justification, the Court of Chancery seemed to

have viewed Lisa as creating a binary choice between Cryo-Maid with an

overwhelming hardship standard tilted heavily in favor of the plaintiff and McWane

with a discretionary analysis tilted toward dismissal or a stay. But, we believe that

rigid dichotomy is not dictated by prior precedent and risks confusing principles of

forum non conveniens with principles such as claim preclusion. To that point,

although Gramercy’s Delaware action was not first-filed, and thus the party moving

to dismiss for forum non conveniens did not have to show overwhelming hardship



34
     Id. at *11.
                                               14
to obtain that dismissal, Delaware’s forum non conveniens standards do not

necessarily present a rigid choice between: (1) the McWane standard that applies to

later-filed actions facing a motion to dismiss for forum non conveniens, which are

not subject to the overwhelming hardship standard; and (2) the presumption of

overwhelming hardship under Cryo-Maid applied to first-filed cases. Instead, there

is an intermediate option: one that still applies Cryo-Maid straightforwardly when a

plaintiff has not chosen Delaware first, but gives the trial court the discretion to

determine whether Delaware is an appropriate forum after a reasoned assessment of

the Cryo-Maid factors.

      This case does not have the factual particularities that led to this Court’s

application of McWane in Lisa. Unlike in Lisa, where the prior pending action was

dismissed with prejudice, Gramercy’s Illinois case was dismissed procedurally.

And, also unlike in Lisa, Gramercy’s Delaware action was not brought specifically

to facilitate recovery in a no longer pending predecessor suit that was largely

dismissed on the merits. The Delaware action here was instead brought because

Gramercy could not get a hearing on its claim in Illinois.

      Because Gramercy filed in Illinois first, the Cryo-Maid analysis here is not

tilted in Gramercy’s favor under the overwhelming hardship standard.             But

McWane’s discretionary standard tilted in favor of the defendant also does not apply,




                                         15
because the first-filed Illinois action was dismissed on forum non conveniens

grounds and without prejudice.

      The Illinois action might, of course, also have had relevance if its rulings gave

rise to issue or claim preclusion, or because its consideration of similar issues

(including issues related to forum non conveniens) was persuasive. But, because the

Court of Chancery was not asked to apply principles of preclusion, but instead to

consider whether Delaware was an inconvenient forum, the proper question before

the Court of Chancery was whether or not the Cryo-Maid factors weighed in favor

of dismissal.

                                         III.

      Here, though, we need not disturb the thoughtful outcome rendered by the

Court of Chancery. Its invocation of McWane was not central to its ultimate

determination, except in the sense that it did not apply Cryo-Maid’s overwhelming

hardship overlay to its forum non conveniens analysis. In the course of its close

analysis of Bulgarian-American and Allied’s motion to dismiss, the Court of

Chancery considered the relevant Cryo-Maid factors, and its decision to dismiss,

although focused more on McWane than Cryo-Maid, substantively involved a

thorough and well-reasoned forum non conveniens analysis.

      Although the Court of Chancery’s analysis focused on McWane, its decision

still relied on facts relevant to the Cryo-Maid factors: “I need not reach the question


                                          16
of whether litigation in Delaware would create an overwhelming hardship for the

Defendants . . . [but] the following considerations would inform such an analysis, as

they inform my decision here under McWane and Lisa.” 35

       The Court of Chancery recognized facts relating to the Cryo-Maid factors in

its forum non conveniens analysis. It just did so without weighing those factors

against Cryo-Maid’s overwhelming hardship standard. For example, the Court of

Chancery addressed the relative ease of access to proof in noting that

“[u]ndoubtedly, trial here would require translation of some documents written via

the Cyrillic, not Latin, alphabet.”36 Likewise, the Court of Chancery considered the

availability of compulsory process:

       [A]s the Illinois court noted, the record indicates that a number of the
       witnesses necessary to the Defendants are in Europe, including in
       Bulgaria, and there would be some burden securing their testimony.
       Obtaining the live testimony of some witnesses would require overseas
       travel on their part, and would raise questions of the availability of
       compulsory attendance.37

And the Court of Chancery also addressed whether the controversy here was

dependent on the application of Delaware law by highlighting that:

       Plaintiffs’ claims in the present action hinge on whether Bulgarian law
       was violated. I note that Bulgarian regulators, despite having been on
       notice and responding to Plaintiffs’ concerns, did not find such a
       violation of the Bulgarian POSA existed. The Plaintiffs ask,
       nonetheless, that I interpret Bulgarian securities law in light of the

35
   Gramercy, supra note 32, at *12.
36
   Id.
37
   Id.
                                         17
       instant fact pattern, a matter which, according to the record, poses
       certain questions of first judicial impression. They then ask that I apply
       that law, find that a violation of Bulgaria’s mandatory tender offer rule
       occurred, and that such violation provides a basis for the causes of
       actions currently pled in Delaware. This presents questions presumably
       of keen interest to Bulgaria, but not Delaware. At bottom, the relief
       sought would require that I find the regulators of Bulgaria failed to
       enforce their law, or applied their law incorrectly. . . .

       While it is obvious that the Plaintiffs desire to litigate this matter in an
       American forum, the fact is that the Plaintiffs bought stock in a
       Bulgarian company regulated by Bulgarian law, and are trying to
       vindicate a right under that law. A foreign judge blundering in to
       vindicate such rights under the circumstances present here seems
       problematic. A decision by this Court could have serious, unintended
       consequences on the development of Bulgarian law and on conditions
       for investment of capital in that country.38

       We therefore affirm the Court of Chancery’s decision that Gramercy’s claims,

which involve important and unsettled issues of Bulgarian securities law arising out

of an investment in a Bulgarian bank, should not proceed in Delaware.

       Further, we clarify the spectrum of standards under which motions for forum

non conveniens are considered in Delaware. When a case is first-filed, Delaware

courts award dismissal only when the defendant has established overwhelming

hardship, thus tilting the analysis in the plaintiff’s favor.39 When a case is later-filed,

and its predecessors remain pending, McWane’s “strong preference for the litigation




38
   Id.
39
   E.g., WOLFE & PITTENGER, supra note 5, § 5.02 (“The onerous burden upon a party seeking
dismissal on the basis of forum non conveniens is justified by the fact that dismissal results in the
ultimate defeat of plaintiffs’ choice of forum.”).
                                                18
of a dispute in the forum in which the first action relating to such dispute is filed”

applies and the analysis is tilted in favor of the defendant.40 But when a case is later-

filed and its predecessors are no longer pending, the analysis is not tilted in favor of

the plaintiff or the defendant. In that situation, Delaware trial judges exercise their

discretion and award dismissal when the Cryo-Maid factors weigh in favor of that

outcome.




40
     Id. at § 5.01.
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