Case of the Day: Sustainable Energy Generation Group v. Photon Energy Projects

The case of the day is Sustainable Energy Generation Group, LLC v. Photon Energy Projects B.V. (Del. Ch. 2014). The case involved a claim for breach of a confidentiality agreement. The plaintiff, a Delaware corporation, sued Photon Energy Projects, B.V., Photon Energy N.V., and Photon Energy Investments N.V., three Dutch firms. Service of process was by mail; the Netherlands has not made an Article 10(a) objection. The defendants moved to dismiss for insufficient service of process.

The court denied the motion, correctly holding, with the majority of cases, that Article 10(a) permits service of process by mail even though it uses the word “send” instead of the word “serve.” While there is still no Delaware Supreme Court case on point, plaintiffs in the Chancery Court can now have more confidence in serving process by mail in Service Convention cases.

Interestingly, the court discussed only Article 10(a) and not the law of the forum. A pessimist might read this as an endorsement of the view, which I think is incorrect, that Article 10(a) affirmatively authorizes service of process by mail, and that such service is proper even if the law of the forum does not itself authorize service by mail. But I am an optimist and do not read the decision this way. While I’m not a Delaware lawyer, it seems to me that Del. Code tit. 10, § 3104(d) does authorize service of process by mail, and that this was a background assumption of the court and the parties.

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