Contract analysis

1. Scope and Relevance. Nexford objects to any interrogatory, or any portion thereof, that seeks information that is not relevant to any party's claim or defense in this action, or that is not proportional to the needs of the case, considering the importance of the issues at stake, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery

2. Attorney-Client Privilege and Work Product Doctrine. Nexford objects to any interrogatory, or any portion thereof, that calls for information protected by the attorney-client privilege, the work product doctrine, or any other applicable privilege or immunity from disclosure. This objection extends to, but is not limited to, communications between Nexford and its outside counsel, Calderwood & Harkness LLP, as well

3. Overbreadth and Undue Burden. Nexford objects to any interrogatory that is overly broad, unduly burdensome, oppressive, or that imposes costs and obligations disproportionate to the claims and defenses at issue in this litigation. To the extent any interrogatory purports to require Nexford to compile, organize, or analyze information in a manner that goes beyond the scope of Nexford's reasonable obligations under

4. Vague and Ambiguous Terms. Nexford objects to any interrogatory that uses terms that are vague, ambiguous, undefined, or susceptible of multiple reasonable interpretations to the extent that the meaning of the interrogatory is unclear. Where Nexford has attempted to respond to such an interrogatory, it has done so based upon what it reasonably understands the interrogatory to mean, and such response shall not be d

5. Premature Expert Opinions. Nexford objects to any interrogatory that seeks expert opinions, expert analysis, or the bases and reasons for expert opinions that are properly the subject of expert disclosure deadlines and expert reports to be provided in accordance with the Court's scheduling order and Illinois Supreme Court Rule 213(f). Nexford has retained Dr. Anita Rosenthal, CPA, ABV, of Meridian Bridge Consultin

6. Compound Interrogatories. Nexford objects to any single interrogatory that contains discrete subparts or sub-questions that, in substance, constitute separate interrogatories. To the extent any interrogatory contains such compound subparts, Nexford reserves the right to treat each discrete subpart as a separate interrogatory for purposes of applicable interrogatory limitations under Illinois Supreme Court Rule 213

7. Reservation of Rights. These General Objections are incorporated by reference into each and every specific response below. The assertion of any specific objection in response to a particular interrogatory does not waive any General Objection, and the provision of a substantive response subject to an objection does not waive the stated objection or any applicable privilege. Nexford reserves the right to assert addi

1. Russell Okonkwo — Vice President, Procurement, Nexford Industrial Holdings Inc., 4200 West Lakeshore Industrial Parkway, Suite 300, Waukegan, Illinois 60085. Mr. Okonkwo was the Nexford officer primarily responsible for managing the day-to-day commercial relationship with Cardinal Peak under the MSA. With respect to the surcharge dispute at issue in this litigation, Mr. Okonkwo was responsible for reviewing Surcha

2. Lydia Tran — Chief Financial Officer, Nexford Industrial Holdings Inc., 4200 West Lakeshore Industrial Parkway, Suite 300, Waukegan, Illinois 60085. Ms. Tran oversaw the financial review and verification of surcharge invoices, authorized the issuance of payments on surcharges that were determined to be valid and compliant with the MSA's requirements, and was involved in the financial analysis supporting Nexford's

3. Martin Schaeffer — Chief Executive Officer, Nexford Industrial Holdings Inc., 4200 West Lakeshore Industrial Parkway, Suite 300, Waukegan, Illinois 60085. Mr. Schaeffer was involved in senior-level discussions and executive decision-making regarding Nexford's position on the surcharge dispute with Cardinal Peak, including but not limited to the escalation discussions contemplated by MSA Section 7.4(d) and Nexford'

4. Deborah Whitfield — General Counsel, Nexford Industrial Holdings Inc., 4200 West Lakeshore Industrial Parkway, Suite 300, Waukegan, Illinois 60085. Ms. Whitfield was involved in the internal legal review and analysis of the MSA surcharge provisions, including the interpretation and application of Section 7.4 and Exhibit C. Ms. Whitfield authored Nexford's July 5, 2022 letter responding to and rejecting Cardinal Pe

Section 7.4(a) of the MSA requires that Cardinal Peak deliver a Surcharge Notice, together with supporting documentation sufficient to verify the surcharge calculations, to Nexford "no later than fifteen (15) business days after the end of the applicable month" for which the surcharge is claimed. This provision establishes a condition precedent to Nexford's obligation to pay the invoiced surcharge for any given month

Section 7.4 of the MSA requires that all surcharge components invoiced by Cardinal Peak be "calculated in accordance with the methodology set forth in Exhibit C (Surcharge Methodology)." Exhibit C is an integral part of the MSA and was negotiated and agreed upon by the parties as the exclusive methodology for determining the amount of any raw-material surcharge that Cardinal Peak could pass through to Nexford. Exhibi

Section 7.4(c) of the MSA provides, in relevant part: "In no event shall the aggregate monthly surcharge exceed 12% of the applicable Base Price for the relevant product category without prior written consent of Buyer." This provision establishes a ceiling on the surcharge amounts that Cardinal Peak may invoice in any given month, absent Nexford's prior written consent to exceed that ceiling. The applicable Base Pric

1. Scrap Surcharge Component. The scrap surcharge component is to be calculated by reference to the published Ferrous Scrap Index as reported by Platts/SPI (Steel Price Index), a widely recognized, independently published steel industry index. Under Exhibit C, the parties agreed to a baseline scrap cost of $340 per ton (the "Scrap Baseline"). The scrap surcharge for any given month is determined by calculating the di

2. Energy Surcharge Component. The energy surcharge component is to be calculated by reference to the Industrial Energy Cost Index, another independently published index tracking industrial energy costs. Under Exhibit C, the parties agreed to a baseline energy cost of $48 per ton (the "Energy Baseline"). The energy surcharge for any given month is determined by calculating the difference between the published Industr

3. Alloy Surcharge Component. To the extent applicable for specific product orders, alloy surcharges are likewise to be calculated using documented, verifiable, independently published indices, consistent with the overall methodology prescribed by Exhibit C. Exhibit C does not authorize the use of Cardinal Peak's internal proprietary cost data, internal weighted averages, or other non-public cost inputs as a substitu

4. Calculation and Application. The surcharges calculated under the foregoing methodology are applied on a per-ton basis to the applicable product category. The MSA establishes Base Prices of $620 per ton for hot-rolled coil (HRC) and $740 per ton for cold-rolled coil (CRC), as set forth in Section 7.2. The total monthly surcharge for each product category (i.e., the sum of the scrap, energy, and any applicable alloy

1. The MSA and Exhibit C. The Master Supply Agreement dated January 15, 2020 (Reference No. MSA-NIH-CPI-2020-001), including Exhibit C (Surcharge Methodology). Exhibit C expressly prescribes the use of the published Ferrous Scrap Index (Platts/SPI) and the published Industrial Energy Cost Index, with agreed baseline costs of $340 per ton (scrap) and $48 per ton (energy), as the exclusive methodology for calculating s

2. Cardinal Peak's Surcharge Notices. The Surcharge Notices and accompanying supporting documentation delivered by Cardinal Peak to Nexford during the period March 2021 through May 2022, which on their face reference Cardinal Peak's internal blended cost calculations and inputs rather than the published Ferrous Scrap Index and Industrial Energy Cost Index as required by Exhibit C. These documents demonstrate that Car

3. Cardinal Peak's Internal Surcharge Computation Worksheets. Internal Cardinal Peak surcharge computation worksheets, spreadsheets, and supporting work papers that have been produced or are to be produced in discovery in response to Nexford's document requests. Nexford understands, based on its review of documents produced to date and on the testimony of Natalie Gunderson, that these worksheets reflect the use of Ca

4. Published Index Data. Published Ferrous Scrap Index data as reported by Platts/SPI and published Industrial Energy Cost Index data for each of the applicable months during the disputed period. These independently published data sets demonstrate the divergence between the published index values (which should have been used under Exhibit C) and the values that Cardinal Peak actually used in calculating its surcharge

5. Correspondence Between the Parties. Correspondence between Russell Okonkwo (Nexford VP, Procurement) and Natalie Gunderson (Cardinal Peak VP, Sales & Commercial) during the disputed period, in which Mr. Okonkwo questioned the methodology used by Cardinal Peak in specific Surcharge Notices, raised concerns about the apparent deviation from Exhibit C, and requested explanations for the discrepancies between the invo

6. Deposition Testimony of Natalie Gunderson. The deposition testimony of Natalie Gunderson, Cardinal Peak's Vice President of Sales & Commercial, taken on January 18, 2023, in this action. During her deposition, Ms. Gunderson acknowledged that Cardinal Peak used its internal blended cost data, rather than the published Platts/SPI Ferrous Scrap Index, in calculating the scrap surcharge component of the Surcharge Noti

1. Express Contract Governs the Subject Matter. The parties' respective rights and obligations with respect to the calculation, invoicing, and payment of raw-material surcharges are governed by an express, written contract — the Master Supply Agreement dated January 15, 2020 (Reference No. MSA-NIH-CPI-2020-001). The MSA specifically and comprehensively addresses the subject matter of Cardinal Peak's unjust enrichment

2. Unjust Enrichment Is Barred by the Express Contract. Under well-established Illinois law, a plaintiff may not maintain a claim for unjust enrichment where an express contract governs the same subject matter as the quasi-contractual claim. See, e.g., Gagnon v. Schickel, 2012 IL App (1st) 120645; Nesby v. Strathmore Life Insurance, 346 Ill. App. 3d 564, 570 (2004); Industrial Lift Truck Service Corp. v. Mitsubishi I

3. Nexford Has Not Been Unjustly Enriched. Even if the unjust enrichment claim were not barred by the existence of the express contract, Nexford has not been "unjustly enriched" within the meaning of that doctrine. Nexford paid $1,680,000 in surcharges during the disputed period — the full amount of the surcharges that it determined, after reasonable review, were compliant with the MSA's notice, methodology, and cap