1012-00005 · Stonefield Logistics Group · Pleadings & Court Filings

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

DECLARATION OF SAMUEL EKLUND IN SUPPORT OF DEFENDANT STONEFIELD LOGISTICS GROUP INC.'S MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)

I. DECLARANT IDENTIFICATION AND CAPACITY

1. I, Samuel Eklund, hereby declare pursuant to 28 U.S.C. § 1746 as follows:

2. I am a partner at the law firm of Calderwood & Harkness LLP, located at 200 Park Avenue, 38th Floor, New York, New York 10166. I have been a partner at Calderwood & Harkness LLP since 2014 and have practiced commercial litigation in the State of New York for over eighteen years.

3. I serve as counsel of record for Defendant Stonefield Logistics Group Inc. ("Stonefield" or "SLG") in the above-captioned action. I am admitted to practice law in the State of New York and am admitted to practice before the United States District Court for the Southern District of New York.

4. This declaration is submitted in support of Defendant Stonefield Logistics Group Inc.'s Motion to Dismiss the Complaint filed by Plaintiff Vantor Holdings Corp. ("Vantor") pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted.

5. I have personal knowledge of the facts set forth herein, and if called as a witness, I could and would testify competently thereto. Except where otherwise stated, the matters set forth in this declaration are based on my personal knowledge, my review of documents produced and maintained in the ordinary course of business by Stonefield Logistics Group Inc., and my involvement as counsel for Stonefield in this action.

II. BACKGROUND OF THE ACTION

6. Vantor Holdings Corp. filed its Complaint in this action on August 12, 2022, asserting a single cause of action for breach of contract. The Complaint alleges that Stonefield wrongfully terminated a Transportation Services Agreement dated March 15, 2019 (the "TSA"), bearing Contract Reference No. SLG-VTS-2019-0315.

7. The TSA is a contract between two parties: Stonefield Logistics Group Inc., acting in the capacity of "Shipper-Broker," and Vantor Transport Services LLC ("VTS"), a wholly owned operating subsidiary of Vantor Holdings Corp., acting in the capacity of "Carrier-Provider." The TSA was drafted by the law firm Ashford Meridian LLP on behalf of Stonefield during negotiations that took place between January and March 2019. Both parties to the TSA were represented by counsel during the negotiation and execution of the agreement.

8. The TSA is governed by the laws of the State of New York, without regard to conflict-of-laws principles. The TSA also provides for exclusive jurisdiction in the United States District Court for the Southern District of New York or, in the event that federal subject matter jurisdiction is not available, in the Supreme Court of the State of New York, New York County. The jurisdictional basis for this action is diversity of citizenship under 28 U.S.C. § 1332(a), as Stonefield is incorporated in the State of Delaware and maintains its principal place of business in New York, New York, and Vantor Holdings Corp. is incorporated in the State of Virginia and maintains its principal place of business in Richmond, Virginia.

9. Vantor's Complaint alleges that Stonefield wrongfully terminated the TSA effective March 4, 2022, and that such termination was not "for Cause" as defined by the TSA. The Complaint seeks approximately $95.4 million in damages, including the following categories: (a) liquidated damages under Section 14.2 of the TSA, claimed in the amount of approximately $67.23 million; (b) lost profits allegedly resulting from the premature termination; (c) stranded asset costs purportedly related to tractors, trailers, and other transportation equipment that VTS had acquired or leased to service the Stonefield account; (d) workforce reduction costs allegedly incurred in connection with driver and operational staff reductions following the termination; and (e) mitigation costs allegedly incurred in seeking replacement business.

10. On September 8, 2022, Calderwood & Harkness LLP filed its Notice of Appearance on behalf of Defendant Stonefield Logistics Group Inc. in this action through the Court's Electronic Case Filing ("ECF") system.

III. PURPOSE OF THE DECLARATION

11. This declaration is submitted for the limited purpose of placing before the Court certain documents that are referenced in and integral to the Complaint, and which the Court may properly consider in connection with a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) without converting the motion to one for summary judgment under Rule 56. See Chambers v. Pinnacle Corporation, 282 F.3d 147, 153 (2d Cir. 2002) (a court may consider documents that are "integral to" the complaint, documents incorporated by reference in the complaint, and matters of which a court may take judicial notice on a Rule 12(b)(6) motion); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (same).

12. The documents attached hereto as Exhibits A and B — namely, the TSA and the Cure Notice, respectively — are referenced extensively throughout and are integral to Vantor's Complaint. The TSA is the contract upon which Vantor's breach of contract claim is predicated, and the Cure Notice is the operative document that initiated the contractual termination process challenged by Vantor. The authenticity of neither document is in dispute, and indeed Vantor's Complaint quotes from and relies upon both documents in asserting its claims.

13. These documents are submitted to enable the Court to evaluate the two principal arguments set forth in Defendant's Motion to Dismiss: (i) that the liquidated damages clause contained in Section 14.2 of the TSA constitutes an unenforceable penalty under New York law; and (ii) that Plaintiff's lost profits claim fails to plead damages with the requisite certainty under the governing standard. The full legal arguments in support of these positions are set forth in the accompanying Memorandum of Law in Support of Defendant Stonefield Logistics Group Inc.'s Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6), filed contemporaneously herewith, and are incorporated therein by reference.

IV. DESCRIPTION OF EXHIBIT A — TRANSPORTATION SERVICES AGREEMENT

14. Attached hereto as Exhibit A is a true and correct copy of the Transportation Services Agreement dated March 15, 2019 (the "TSA"), Contract Reference No. SLG-VTS-2019-0315, between Stonefield Logistics Group Inc. and Vantor Transport Services LLC. The TSA consists of the main agreement, together with all schedules and exhibits thereto, and is 127 pages in total length.

15. The TSA is referenced in paragraphs 12, 14–17, 22–26, 31–38, 42, 45, 49–53, 58–62, 67, and 71–78 of the Complaint and is the contract at issue in this action. Vantor's breach of contract claim arises solely from the TSA, and the Complaint quotes or paraphrases numerous provisions of the TSA in support of its allegations.

16. I identify below the key provisions of the TSA that are relevant to the issues raised in Defendant's Motion to Dismiss:

(a) Term (Section 2). The TSA provides for an initial term of five (5) years, commencing on April 1, 2019 and expiring on March 31, 2024. Section 2.2 of the TSA provides for one (1) automatic two-year renewal period, such that the TSA would renew for an additional term expiring on March 31, 2026, unless either party provides written notice of non-renewal at least one hundred eighty (180) calendar days before the expiration of the initial term or the then-current renewal term, as applicable.

(b) Annual Committed Volume (Section 4). Under Section 4.1 of the TSA, Stonefield committed to tender to VTS a minimum annual freight volume generating transportation charges of not less than $43.2 million (the "Annual Committed Volume" or "ACV") during each contract year throughout the initial five-year term. This resulted in a total five-year minimum volume commitment of $216 million in aggregate transportation charges. Section 4.2 addresses shortfall provisions and sets forth a reconciliation mechanism to be applied at the end of each contract year.

(c) Service Level Obligations (Section 6). Section 6 of the TSA imposes upon VTS, as the Carrier-Provider, a series of Service Level Obligations (the "SLOs"), performance against which was measured on a quarterly basis using data from Stonefield's transportation management system. The SLOs required VTS to maintain the following minimum performance metrics:

(i) An on-time pickup rate of no less than ninety-five percent (95%) of all tendered loads, measured from the scheduled pickup window;

(ii) An on-time delivery rate of no less than ninety-three percent (93%) of all tendered loads, measured from the scheduled delivery appointment time, with a tolerance window of thirty (30) minutes;

(iii) A cargo claims ratio of no greater than one-half of one percent (0.5%) of gross transportation revenue, calculated on a rolling quarterly basis;

(iv) A tender acceptance rate of no less than ninety percent (90%) of all electronic load tenders transmitted through the transportation management system; and

(v) Equipment availability compliance of no less than eighty-five percent (85%) of committed fleet capacity, defined in Schedule D as four hundred (400) tractors and one thousand two hundred (1,200) trailers meeting the specifications set forth in Schedule D.

(d) Rate Structure (Section 5.3). Section 5.3 of the TSA establishes the rate structure applicable to transportation services performed under the agreement. Base rates were set on a per-mile basis, organized by lane (i.e., origin-destination pair), as set forth in Schedule B to the TSA. The rates were subject to an annual adjustment pursuant to the Rate Adjustment Mechanism defined in Section 5.4, which indexed rate changes to a blended formula consisting of seventy percent (70%) of the change in the national diesel fuel index published by the U.S. Energy Information Administration and thirty percent (30%) of the change in the Consumer Price Index for All Urban Consumers (CPI-U). Rate adjustments were calculated and implemented on April 1 of each contract year.

(e) Substitute Equipment (Section 7.4). Section 7.4 of the TSA required VTS to provide substitute equipment or surge capacity upon the occurrence of specified triggering conditions, including equipment failure, seasonal demand fluctuations, or other circumstances in which VTS's available fleet capacity fell below the committed fleet levels set forth in Schedule D. The provision required VTS to deploy substitute equipment within forty-eight (48) hours of receiving a request from Stonefield, and authorized Stonefield to procure substitute carrier services and charge the incremental cost to VTS if VTS failed to comply.

(f) Force Majeure (Section 12.1). Section 12.1 of the TSA contains a force majeure provision that excuses each party's performance obligations during the period of a qualifying force majeure event. Qualifying events are defined to include, among other things, natural disasters, acts of God, war, terrorism, pandemic, government orders or regulations that materially restrict the movement of goods, and other events beyond a party's reasonable control that could not have been prevented by reasonable diligence. The force majeure provision requires prompt notice and imposes a duty on the affected party to use commercially reasonable efforts to mitigate the effects of the force majeure event.

(g) Termination for Cause (Section 13.1). Section 13.1 of the TSA provides that either party may terminate the TSA for "Cause." "Cause" is defined in Section 13.1 to include the following:

(a) A material breach of any provision of the TSA that remains uncured for thirty (30) calendar days after written notice specifying the breach with reasonable particularity is delivered to the breaching party;

(b) The insolvency, bankruptcy, or assignment for the benefit of creditors by either party;

(c) Failure by the Carrier-Provider to maintain the insurance coverages required by Section 9 of the TSA for more than fifteen (15) calendar days after written notice of such failure; and

(d) A material violation of applicable law by the Carrier-Provider, including without limitation applicable regulations of the United States Department of Transportation ("DOT") and the Federal Motor Carrier Safety Administration ("FMCSA").

(h) Cure Notice Requirement (Section 13.2). Section 13.2 of the TSA requires that, as a condition precedent to any termination for Cause under Section 13.1(a), the terminating party must deliver a written Cure Notice to the allegedly breaching party. The Cure Notice must specify with "reasonable particularity" the nature of the alleged breach, identify the specific contractual provisions that have been breached, and provide the breaching party with the applicable cure period set forth in Section 13.1 before any termination for Cause becomes effective. The cure period for material breaches under Section 13.1(a) is thirty (30) calendar days from the date of receipt of the Cure Notice.

(i) Liquidated Damages (Section 14.2). Section 14.2 of the TSA provides that if Stonefield terminates the TSA "other than for Cause" (as defined in Section 13.1), Stonefield shall pay to VTS liquidated damages in an amount equal to seventy-five percent (75%) of the Annual Committed Volume ($43.2 million) multiplied by the number of full and partial contract years remaining in the then-current term as of the effective date of termination. Section 14.2 further states that the parties "acknowledge and agree that the liquidated damages set forth herein represent a reasonable estimate of the damages that [VTS] would suffer in the event of an early termination of this Agreement other than for Cause, taking into account the difficulty of calculating actual damages in such circumstances" and that such liquidated damages "are not a penalty."

(j) Consequential Damages Waiver (Section 15.1). Section 15.1 of the TSA contains a mutual waiver of consequential, incidental, special, punitive, and indirect damages, including lost profits, regardless of whether such damages are foreseeable and regardless of the theory of liability, except to the extent that such damages are specifically provided for under another provision of the TSA.

(k) Dispute Resolution (Section 16). Section 16 of the TSA establishes a mandatory dispute resolution procedure that requires the parties to engage in a thirty (30) calendar-day executive negotiation period before either party may initiate litigation or other formal proceedings. During this period, designated senior executives of each party are required to meet, in person or by telephone, to attempt in good faith to resolve the dispute.

(l) Exclusivity Provisions (Schedule C). Schedule C to the TSA establishes exclusivity provisions with respect to certain designated transportation lanes. Specifically, VTS was designated as the exclusive Carrier-Provider for fourteen (14) specified origin-destination pairs identified as "Primary Lanes." The Primary Lanes comprised the highest-volume freight corridors in Stonefield's domestic transportation network. Lanes designated as "Secondary Lanes" in Schedule C were not subject to exclusivity restrictions, and Stonefield retained the right to utilize other carriers for such lanes without restriction.

V. DESCRIPTION OF EXHIBIT B — CURE NOTICE

17. Attached hereto as Exhibit B is a true and correct copy of the written Cure Notice dated January 18, 2022 (the "Cure Notice"), sent by Raymond Hess, Director of Contract Compliance at Stonefield Logistics Group Inc., to Sandra Milescu, Chief Operating Officer of Vantor Holdings Corp. and Vantor Transport Services LLC. The Cure Notice was transmitted via overnight delivery service and electronic mail, and was received by VTS on January 18, 2022.

18. The Cure Notice is referenced in paragraphs 39–44, 46–48, and 55–57 of the Complaint, and is central to Vantor's allegation that Stonefield's termination of the TSA was not "for Cause" as defined by the agreement.

19. The Cure Notice identified the following specific material breaches of the TSA by VTS, as measured during the fourth quarter of 2021 (October 1, 2021 through December 31, 2021):

(a) On-Time Pickup Rate. VTS's on-time pickup rate fell to 78.2% in Q4 2021, significantly below the 95% threshold required by Section 6 of the TSA. This represented a shortfall of 16.8 percentage points below the contractually required service level, and reflected a continuing decline from VTS's Q3 2021 performance of 84.1%.

(b) On-Time Delivery Rate. VTS's on-time delivery rate fell to 81.6% in Q4 2021, well below the 93% threshold required by Section 6 of the TSA. This represented a shortfall of 11.4 percentage points below the contractually required service level.

(c) Tender Acceptance Rate. VTS's tender acceptance rate dropped to 71.4% in Q4 2021, far below the 90% threshold required by Section 6 of the TSA. This represented a shortfall of 18.6 percentage points below the contractually required service level, meaning that VTS was rejecting nearly three in every ten loads tendered by Stonefield through its transportation management system.

(d) Equipment Availability. VTS's available fleet capacity fell to approximately 62% of the committed fleet capacity during Q4 2021, with approximately 248 tractors available for service versus the 400 tractors required to be maintained under Schedule D to the TSA. This performance was well below the 85% equipment availability compliance threshold required by Section 6 of the TSA, and reflected a net reduction of approximately 152 tractors from VTS's committed fleet.

(e) Cargo Claims Ratio. VTS's cargo claims ratio was approximately 1.07% of gross transportation revenue for the period of November through December 2021, based on sixteen (16) documented cargo claims totaling $387,400 in losses. This claims ratio exceeded the contractual maximum of 0.5% of gross revenue by more than double the permitted threshold, representing a significant deterioration in freight handling quality.

(f) Failure to Provide Substitute Equipment. VTS chronically failed to provide substitute equipment or surge capacity as required under Section 7.4 of the TSA. The Cure Notice identified multiple specific instances in which VTS failed to respond to Stonefield's requests for substitute equipment within the forty-eight (48) hour deployment window established by Section 7.4, and in several instances failed to respond at all.

20. The Cure Notice specified a thirty (30) calendar-day cure period from the date of receipt, consistent with the cure period set forth in Section 13.1(a) of the TSA. Because the Cure Notice was received on January 18, 2022, the resulting cure deadline was February 17, 2022.

21. The Cure Notice identified the specific contractual provisions that VTS had breached, including Sections 6, 7.4, and Schedule D of the TSA, and set forth the actual performance metrics as compared to the applicable Service Level Obligation thresholds with quantitative specificity. Accordingly, the Cure Notice satisfied the "reasonable particularity" requirement imposed by Section 13.2 of the TSA as a condition precedent to any termination for Cause under Section 13.1(a).

VI. ADDITIONAL RELEVANT PROCEDURAL FACTS

22. Following the expiration of the 30-day cure period on February 17, 2022, Stonefield's General Counsel, Tobias Wren, issued a formal termination letter dated March 4, 2022 (the "Termination Letter"), terminating the TSA effective immediately pursuant to Section 13.1(a) of the TSA for VTS's failure to cure the material breaches identified in the Cure Notice within the specified cure period. The Termination Letter is referenced in the Complaint at paragraphs 50–53, but is not attached hereto as an exhibit because it is not necessary for the Court's consideration of the specific legal issues raised in the Motion to Dismiss — namely, the enforceability of the liquidated damages clause in Section 14.2 and the sufficiency of the lost profits allegations. Should the Court determine that the Termination Letter would be helpful to its analysis, Defendant will promptly supplement this submission.

23. On February 14, 2022 — three days prior to the expiration of the cure period — Derek Pruitt, Vice President of Business Development at Vantor Holdings Corp., sent a written response to the Cure Notice to Janet Kirkwood, Vice President of Carrier Relations at Stonefield Logistics Group Inc. In his response, Mr. Pruitt acknowledged that VTS had experienced "operational challenges" during Q4 2021, but asserted that those challenges were caused by external factors, including driver shortages attributable to broader market conditions, supply chain disruptions, and pandemic-related workforce impacts. Mr. Pruitt's response also disputed certain of the cargo claims data cited in the Cure Notice, contending that several claims were attributable to pre-existing packaging deficiencies on the part of Stonefield's shippers rather than to handling by VTS. This response is referenced in the Complaint at paragraphs 46–48.

24. Prior to filing the Complaint, the parties engaged in the mandatory executive negotiation process required by Section 16 of the TSA. An in-person meeting was held on May 16, 2022, at Stonefield's offices in New York, New York, between Marcus Denton, Chief Executive Officer of Stonefield Logistics Group Inc., and Nikolai Vantorovich, Chief Executive Officer of Vantor Holdings Corp. A second meeting was held telephonically on June 3, 2022, between the same individuals and their respective general counsel. Neither meeting resulted in a resolution of the dispute.

25. Vantor, through its counsel Caldwell Royce & Shapiro LLP, sent a pre-suit demand letter dated April 8, 2022, to Stonefield, claiming total damages of approximately $95.4 million. Stonefield, through Calderwood & Harkness LLP, responded in writing on April 29, 2022, rejecting the demand in its entirety and setting forth Stonefield's position that the termination was for Cause and that no damages were owed.

VII. RELEVANCE OF ATTACHED EXHIBITS TO MOTION TO DISMISS

26. Exhibit A (the TSA) is submitted because the Motion to Dismiss argues, as its primary ground, that the liquidated damages clause contained in Section 14.2 of the TSA is unenforceable as a penalty under New York law. The Court's analysis of whether a liquidated damages clause constitutes an enforceable liquidation of damages or an unenforceable penalty requires examination of the actual contract terms, including the operative formula, the parties' contractual acknowledgment language, and the surrounding contractual framework. See Northpoint Holdings v. Purdy Corp., 41 N.Y.2d 354, 365 (1977); Kestrel Corporation, 4 N.Y.3d 373, 380 (2005). The liquidated damages formula — seventy-five percent (75%) of the Annual Committed Volume of $43.2 million, multiplied by the number of full and partial contract years remaining in the then-current term — produces a claimed liquidated damages amount of approximately $67.23 million. This figure is composed of $64.8 million attributable to the two full remaining contract years (2 × $43.2 million × 0.75 = $64.8 million) plus approximately $2.43 million attributable to the partial contract year of twenty-seven (27) days from the termination date of March 4, 2022 to March 31, 2022 (calculated as 27/365 × $43.2 million × 0.75 ≈ $2.397 million). As set forth in the Memorandum of Law, Defendant contends that this formula bears no reasonable relationship to the probable loss to VTS and instead functions as an impermissible penalty designed to deter Stonefield from exercising its contractual termination rights.

27. The TSA is also relevant to the Motion's alternative argument that Vantor's liquidated damages and lost profits claims are impermissibly duplicative, as both categories of alleged damages seek to compensate Vantor for the same underlying harm — the lost value of the contract over the remaining term. Under New York law, a plaintiff may not recover both liquidated damages and actual damages for the same breach where the liquidated damages provision was intended to serve as the exclusive remedy for that category of loss. The interplay between Section 14.2 (liquidated damages), Section 15.1 (consequential damages waiver), and the lost profits claim pleaded in the Complaint requires the Court to examine the contractual framework as a whole.

28. Section 15.1 of the TSA — the mutual consequential damages waiver — is further relevant to the categories of damages that Vantor may pursue in this action. To the extent that certain of Vantor's claimed damages (including stranded asset costs, workforce reduction costs, and lost profits) constitute consequential or indirect damages, they may be barred by the waiver contained in Section 15.1. The Memorandum of Law addresses this argument in detail.

29. Exhibit B (the Cure Notice) is submitted to establish the factual predicate for Stonefield's termination for Cause and to demonstrate the nature, scope, and specificity of the material breaches identified by Stonefield. This factual context is directly relevant to the threshold question of whether the liquidated damages clause in Section 14.2 is even implicated by the facts of this case, because, by its express terms, Section 14.2 applies only to terminations "other than for Cause." If the termination was for Cause — as Stonefield contends — then Section 14.2 does not apply and no liquidated damages are owed regardless of the enforceability vel non of the clause.

30. The remaining term of the TSA at the time of termination was approximately two (2) years and twenty-seven (27) days (March 4, 2022 through March 31, 2024), which is relevant both to the calculation of the liquidated damages amount that Vantor claims and to the Court's assessment of whether the liquidated damages formula produces a result that is grossly disproportionate to the probable loss at the time of contracting.

VIII. AUTHENTICITY STATEMENT

31. I obtained the copies of Exhibits A and B attached hereto from the files of Stonefield Logistics Group Inc., as provided to Calderwood & Harkness LLP by Tobias Wren, General Counsel of Stonefield, in connection with the firm's engagement to represent Stonefield in this matter. Mr. Wren transmitted these documents to me on September 1, 2022, the date on which Calderwood & Harkness LLP was formally engaged as counsel for Stonefield in this litigation.

32. I have personally reviewed the documents attached hereto as Exhibits A and B and confirm that they are true and correct copies of the originals, which are maintained in the ordinary course of business by Stonefield Logistics Group Inc. at its offices in New York, New York.

33. Vantor's Complaint references and relies upon both the TSA and the Cure Notice as the foundational documents upon which its breach of contract claim is based. The authenticity of these documents has not been disputed by Vantor at any point during the parties' pre-suit negotiations, the Section 16 executive negotiation process, or in any filing in this action.

IX. CONCLUSION AND VERIFICATION

34. I respectfully submit this declaration to the Court in support of Defendant Stonefield Logistics Group Inc.'s Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), and request that the Court consider the attached Exhibits A and B in connection with its evaluation of the Motion.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Executed on October 14, 2022, at New York, New York.

________________________________________

Samuel Eklund Partner Calderwood & Harkness LLP 200 Park Avenue, 38th Floor New York, New York 10166 Telephone: (212) 455-3200 Facsimile: (212) 455-3201

Email: seklund@calderwoodharkness.com

Counsel for Defendant Stonefield Logistics Group Inc.

EXHIBIT LIST

EXHIBIT A

Transportation Services Agreement dated March 15, 2019, between Stonefield Logistics Group Inc. and Vantor Transport Services LLC (Contract Reference No. SLG-VTS-2019-0315), including all schedules and exhibits thereto (127 pages).

EXHIBIT B

Written Cure Notice dated January 18, 2022, from Raymond Hess, Director of Contract Compliance, Stonefield Logistics Group Inc., to Sandra Milescu, Chief Operating Officer, Vantor Holdings Corp. and Vantor Transport Services LLC (8 pages).

Exhibits A and B are filed herewith as separate attachments via the Court's ECF system.

CERTIFICATE OF SERVICE

I hereby certify that on October 14, 2022, a true and correct copy of the foregoing Declaration of Samuel Eklund in Support of Defendant Stonefield Logistics Group Inc.'s Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6), together with Exhibits A and B attached thereto, was served on all counsel of record via the Court's Electronic Case Filing ("ECF") system, which will send notification of such filing to the following:

Harrison Caldwell, Esq. Caldwell Royce & Shapiro LLP 1 Liberty Plaza, 22nd Floor New York, New York 10006 Telephone: (212) 709-4500

Email: hcaldwell@caldwellroyce.com

Meredith Shapiro, Esq. Caldwell Royce & Shapiro LLP 1 Liberty Plaza, 22nd Floor New York, New York 10006 Telephone: (212) 709-4512

Email: mshapiro@caldwellroyce.com

Counsel for Plaintiff Vantor Holdings Corp.

________________________________________

Samuel Eklund Partner Calderwood & Harkness LLP 200 Park Avenue, 38th Floor New York, New York 10166

Counsel for Defendant Stonefield Logistics Group Inc.

VANTOR HOLDINGS CORP.,

Plaintiff,

Case No. 22-cv-07841

Hon. Margaret T. Calloway, U.S.D.J.

STONEFIELD LOGISTICS GROUP INC.,

Defendant.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
DECLARATION OF SAMUEL EKLUND IN SUPPORT OF DEFENDANT STONEFIELD LOGISTICS GROUP INC.'S MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)
I. DECLARANT IDENTIFICATION AND CAPACITY
1. I, Samuel Eklund, hereby declare pursuant to 28 U.S.C. § 1746 as follows:
2. I am a partner at the law firm of Calderwood & Harkness LLP, located at 200 Park Avenue, 38th Floor, New York, New York 10166. I have been a partner at Calderwood & Harkness LLP since 2014 and have practiced commercial litigation in the State of New York for over eighteen years.
3. I serve as counsel of record for Defendant Stonefield Logistics Group Inc. ("Stonefield" or "SLG") in the above-captioned action. I am admitted to practice law in the State of New York and am admitted to practice before the United States District Court for the Southern District of New York.
4. This declaration is submitted in support of Defendant Stonefield Logistics Group Inc.'s Motion to Dismiss the Complaint filed by Plaintiff Vantor Holdings Corp. ("Vantor") pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted.
5. I have personal knowledge of the facts set forth herein, and if called as a witness, I could and would testify competently thereto. Except where otherwise stated, the matters set forth in this declaration are based on my personal knowledge, my review of documents produced and maintained in the ordinary course of business by Stonefield Logistics Group Inc., and my involvement as counsel for Stonefield in this action.
II. BACKGROUND OF THE ACTION
6. Vantor Holdings Corp. filed its Complaint in this action on August 12, 2022, asserting a single cause of action for breach of contract. The Complaint alleges that Stonefield wrongfully terminated a Transportation Services Agreement dated March 15, 2019 (the "TSA"), bearing Contract Reference No. SLG-VTS-2019-0315.
7. The TSA is a contract between two parties: Stonefield Logistics Group Inc., acting in the capacity of "Shipper-Broker," and Vantor Transport Services LLC ("VTS"), a wholly owned operating subsidiary of Vantor Holdings Corp., acting in the capacity of "Carrier-Provider." The TSA was drafted by the law firm Ashford Meridian LLP on behalf of Stonefield during negotiations that took place between January and March 2019. Both parties to the TSA were represented by counsel during the negotiation and execution of the agreement.
8. The TSA is governed by the laws of the State of New York, without regard to conflict-of-laws principles. The TSA also provides for exclusive jurisdiction in the United States District Court for the Southern District of New York or, in the event that federal subject matter jurisdiction is not available, in the Supreme Court of the State of New York, New York County. The jurisdictional basis for this action is diversity of citizenship under 28 U.S.C. § 1332(a), as Stonefield is incorporated in the State of Delaware and maintains its principal place of business in New York, New York, and Vantor Holdings Corp. is incorporated in the State of Virginia and maintains its principal place of business in Richmond, Virginia.
9. Vantor's Complaint alleges that Stonefield wrongfully terminated the TSA effective March 4, 2022, and that such termination was not "for Cause" as defined by the TSA. The Complaint seeks approximately $95.4 million in damages, including the following categories: (a) liquidated damages under Section 14.2 of the TSA, claimed in the amount of approximately $67.23 million; (b) lost profits allegedly resulting from the premature termination; (c) stranded asset costs purportedly related to tractors, trailers, and other transportation equipment that VTS had acquired or leased to service the Stonefield account; (d) workforce reduction costs allegedly incurred in connection with driver and operational staff reductions following the termination; and (e) mitigation costs allegedly incurred in seeking replacement business.
10. On September 8, 2022, Calderwood & Harkness LLP filed its Notice of Appearance on behalf of Defendant Stonefield Logistics Group Inc. in this action through the Court's Electronic Case Filing ("ECF") system.
III. PURPOSE OF THE DECLARATION
11. This declaration is submitted for the limited purpose of placing before the Court certain documents that are referenced in and integral to the Complaint, and which the Court may properly consider in connection with a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) without converting the motion to one for summary judgment under Rule 56. See Chambers v. Pinnacle Corporation, 282 F.3d 147, 153 (2d Cir. 2002) (a court may consider documents that are "integral to" the complaint, documents incorporated by reference in the complaint, and matters of which a court may take judicial notice on a Rule 12(b)(6) motion); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (same).
12. The documents attached hereto as Exhibits A and B — namely, the TSA and the Cure Notice, respectively — are referenced extensively throughout and are integral to Vantor's Complaint. The TSA is the contract upon which Vantor's breach of contract claim is predicated, and the Cure Notice is the operative document that initiated the contractual termination process challenged by Vantor. The authenticity of neither document is in dispute, and indeed Vantor's Complaint quotes from and relies upon both documents in asserting its claims.
13. These documents are submitted to enable the Court to evaluate the two principal arguments set forth in Defendant's Motion to Dismiss: (i) that the liquidated damages clause contained in Section 14.2 of the TSA constitutes an unenforceable penalty under New York law; and (ii) that Plaintiff's lost profits claim fails to plead damages with the requisite certainty under the governing standard. The full legal arguments in support of these positions are set forth in the accompanying Memorandum of Law in Support of Defendant Stonefield Logistics Group Inc.'s Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6), filed contemporaneously herewith, and are incorporated therein by reference.
IV. DESCRIPTION OF EXHIBIT A — TRANSPORTATION SERVICES AGREEMENT
14. Attached hereto as Exhibit A is a true and correct copy of the Transportation Services Agreement dated March 15, 2019 (the "TSA"), Contract Reference No. SLG-VTS-2019-0315, between Stonefield Logistics Group Inc. and Vantor Transport Services LLC. The TSA consists of the main agreement, together with all schedules and exhibits thereto, and is 127 pages in total length.
15. The TSA is referenced in paragraphs 12, 14–17, 22–26, 31–38, 42, 45, 49–53, 58–62, 67, and 71–78 of the Complaint and is the contract at issue in this action. Vantor's breach of contract claim arises solely from the TSA, and the Complaint quotes or paraphrases numerous provisions of the TSA in support of its allegations.
16. I identify below the key provisions of the TSA that are relevant to the issues raised in Defendant's Motion to Dismiss:
(a) Term (Section 2). The TSA provides for an initial term of five (5) years, commencing on April 1, 2019 and expiring on March 31, 2024. Section 2.2 of the TSA provides for one (1) automatic two-year renewal period, such that the TSA would renew for an additional term expiring on March 31, 2026, unless either party provides written notice of non-renewal at least one hundred eighty (180) calendar days before the expiration of the initial term or the then-current renewal term, as applicable.
(b) Annual Committed Volume (Section 4). Under Section 4.1 of the TSA, Stonefield committed to tender to VTS a minimum annual freight volume generating transportation charges of not less than $43.2 million (the "Annual Committed Volume" or "ACV") during each contract year throughout the initial five-year term. This resulted in a total five-year minimum volume commitment of $216 million in aggregate transportation charges. Section 4.2 addresses shortfall provisions and sets forth a reconciliation mechanism to be applied at the end of each contract year.
(c) Service Level Obligations (Section 6). Section 6 of the TSA imposes upon VTS, as the Carrier-Provider, a series of Service Level Obligations (the "SLOs"), performance against which was measured on a quarterly basis using data from Stonefield's transportation management system. The SLOs required VTS to maintain the following minimum performance metrics:
(i) An on-time pickup rate of no less than ninety-five percent (95%) of all tendered loads, measured from the scheduled pickup window;
(ii) An on-time delivery rate of no less than ninety-three percent (93%) of all tendered loads, measured from the scheduled delivery appointment time, with a tolerance window of thirty (30) minutes;
(iii) A cargo claims ratio of no greater than one-half of one percent (0.5%) of gross transportation revenue, calculated on a rolling quarterly basis;
(iv) A tender acceptance rate of no less than ninety percent (90%) of all electronic load tenders transmitted through the transportation management system; and
(v) Equipment availability compliance of no less than eighty-five percent (85%) of committed fleet capacity, defined in Schedule D as four hundred (400) tractors and one thousand two hundred (1,200) trailers meeting the specifications set forth in Schedule D.
(d) Rate Structure (Section 5.3). Section 5.3 of the TSA establishes the rate structure applicable to transportation services performed under the agreement. Base rates were set on a per-mile basis, organized by lane (i.e., origin-destination pair), as set forth in Schedule B to the TSA. The rates were subject to an annual adjustment pursuant to the Rate Adjustment Mechanism defined in Section 5.4, which indexed rate changes to a blended formula consisting of seventy percent (70%) of the change in the national diesel fuel index published by the U.S. Energy Information Administration and thirty percent (30%) of the change in the Consumer Price Index for All Urban Consumers (CPI-U). Rate adjustments were calculated and implemented on April 1 of each contract year.
(e) Substitute Equipment (Section 7.4). Section 7.4 of the TSA required VTS to provide substitute equipment or surge capacity upon the occurrence of specified triggering conditions, including equipment failure, seasonal demand fluctuations, or other circumstances in which VTS's available fleet capacity fell below the committed fleet levels set forth in Schedule D. The provision required VTS to deploy substitute equipment within forty-eight (48) hours of receiving a request from Stonefield, and authorized Stonefield to procure substitute carrier services and charge the incremental cost to VTS if VTS failed to comply.
(f) Force Majeure (Section 12.1). Section 12.1 of the TSA contains a force majeure provision that excuses each party's performance obligations during the period of a qualifying force majeure event. Qualifying events are defined to include, among other things, natural disasters, acts of God, war, terrorism, pandemic, government orders or regulations that materially restrict the movement of goods, and other events beyond a party's reasonable control that could not have been prevented by reasonable diligence. The force majeure provision requires prompt notice and imposes a duty on the affected party to use commercially reasonable efforts to mitigate the effects of the force majeure event.
(g) Termination for Cause (Section 13.1). Section 13.1 of the TSA provides that either party may terminate the TSA for "Cause." "Cause" is defined in Section 13.1 to include the following:
(a) A material breach of any provision of the TSA that remains uncured for thirty (30) calendar days after written notice specifying the breach with reasonable particularity is delivered to the breaching party;
(b) The insolvency, bankruptcy, or assignment for the benefit of creditors by either party;
(c) Failure by the Carrier-Provider to maintain the insurance coverages required by Section 9 of the TSA for more than fifteen (15) calendar days after written notice of such failure; and
(d) A material violation of applicable law by the Carrier-Provider, including without limitation applicable regulations of the United States Department of Transportation ("DOT") and the Federal Motor Carrier Safety Administration ("FMCSA").
(h) Cure Notice Requirement (Section 13.2). Section 13.2 of the TSA requires that, as a condition precedent to any termination for Cause under Section 13.1(a), the terminating party must deliver a written Cure Notice to the allegedly breaching party. The Cure Notice must specify with "reasonable particularity" the nature of the alleged breach, identify the specific contractual provisions that have been breached, and provide the breaching party with the applicable cure period set forth in Section 13.1 before any termination for Cause becomes effective. The cure period for material breaches under Section 13.1(a) is thirty (30) calendar days from the date of receipt of the Cure Notice.
(i) Liquidated Damages (Section 14.2). Section 14.2 of the TSA provides that if Stonefield terminates the TSA "other than for Cause" (as defined in Section 13.1), Stonefield shall pay to VTS liquidated damages in an amount equal to seventy-five percent (75%) of the Annual Committed Volume ($43.2 million) multiplied by the number of full and partial contract years remaining in the then-current term as of the effective date of termination. Section 14.2 further states that the parties "acknowledge and agree that the liquidated damages set forth herein represent a reasonable estimate of the damages that [VTS] would suffer in the event of an early termination of this Agreement other than for Cause, taking into account the difficulty of calculating actual damages in such circumstances" and that such liquidated damages "are not a penalty."
(j) Consequential Damages Waiver (Section 15.1). Section 15.1 of the TSA contains a mutual waiver of consequential, incidental, special, punitive, and indirect damages, including lost profits, regardless of whether such damages are foreseeable and regardless of the theory of liability, except to the extent that such damages are specifically provided for under another provision of the TSA.
(k) Dispute Resolution (Section 16). Section 16 of the TSA establishes a mandatory dispute resolution procedure that requires the parties to engage in a thirty (30) calendar-day executive negotiation period before either party may initiate litigation or other formal proceedings. During this period, designated senior executives of each party are required to meet, in person or by telephone, to attempt in good faith to resolve the dispute.
(l) Exclusivity Provisions (Schedule C). Schedule C to the TSA establishes exclusivity provisions with respect to certain designated transportation lanes. Specifically, VTS was designated as the exclusive Carrier-Provider for fourteen (14) specified origin-destination pairs identified as "Primary Lanes." The Primary Lanes comprised the highest-volume freight corridors in Stonefield's domestic transportation network. Lanes designated as "Secondary Lanes" in Schedule C were not subject to exclusivity restrictions, and Stonefield retained the right to utilize other carriers for such lanes without restriction.
V. DESCRIPTION OF EXHIBIT B — CURE NOTICE
17. Attached hereto as Exhibit B is a true and correct copy of the written Cure Notice dated January 18, 2022 (the "Cure Notice"), sent by Raymond Hess, Director of Contract Compliance at Stonefield Logistics Group Inc., to Sandra Milescu, Chief Operating Officer of Vantor Holdings Corp. and Vantor Transport Services LLC. The Cure Notice was transmitted via overnight delivery service and electronic mail, and was received by VTS on January 18, 2022.
18. The Cure Notice is referenced in paragraphs 39–44, 46–48, and 55–57 of the Complaint, and is central to Vantor's allegation that Stonefield's termination of the TSA was not "for Cause" as defined by the agreement.
19. The Cure Notice identified the following specific material breaches of the TSA by VTS, as measured during the fourth quarter of 2021 (October 1, 2021 through December 31, 2021):
(a) On-Time Pickup Rate. VTS's on-time pickup rate fell to 78.2% in Q4 2021, significantly below the 95% threshold required by Section 6 of the TSA. This represented a shortfall of 16.8 percentage points below the contractually required service level, and reflected a continuing decline from VTS's Q3 2021 performance of 84.1%.
(b) On-Time Delivery Rate. VTS's on-time delivery rate fell to 81.6% in Q4 2021, well below the 93% threshold required by Section 6 of the TSA. This represented a shortfall of 11.4 percentage points below the contractually required service level.
(c) Tender Acceptance Rate. VTS's tender acceptance rate dropped to 71.4% in Q4 2021, far below the 90% threshold required by Section 6 of the TSA. This represented a shortfall of 18.6 percentage points below the contractually required service level, meaning that VTS was rejecting nearly three in every ten loads tendered by Stonefield through its transportation management system.
(d) Equipment Availability. VTS's available fleet capacity fell to approximately 62% of the committed fleet capacity during Q4 2021, with approximately 248 tractors available for service versus the 400 tractors required to be maintained under Schedule D to the TSA. This performance was well below the 85% equipment availability compliance threshold required by Section 6 of the TSA, and reflected a net reduction of approximately 152 tractors from VTS's committed fleet.
(e) Cargo Claims Ratio. VTS's cargo claims ratio was approximately 1.07% of gross transportation revenue for the period of November through December 2021, based on sixteen (16) documented cargo claims totaling $387,400 in losses. This claims ratio exceeded the contractual maximum of 0.5% of gross revenue by more than double the permitted threshold, representing a significant deterioration in freight handling quality.
(f) Failure to Provide Substitute Equipment. VTS chronically failed to provide substitute equipment or surge capacity as required under Section 7.4 of the TSA. The Cure Notice identified multiple specific instances in which VTS failed to respond to Stonefield's requests for substitute equipment within the forty-eight (48) hour deployment window established by Section 7.4, and in several instances failed to respond at all.
20. The Cure Notice specified a thirty (30) calendar-day cure period from the date of receipt, consistent with the cure period set forth in Section 13.1(a) of the TSA. Because the Cure Notice was received on January 18, 2022, the resulting cure deadline was February 17, 2022.
21. The Cure Notice identified the specific contractual provisions that VTS had breached, including Sections 6, 7.4, and Schedule D of the TSA, and set forth the actual performance metrics as compared to the applicable Service Level Obligation thresholds with quantitative specificity. Accordingly, the Cure Notice satisfied the "reasonable particularity" requirement imposed by Section 13.2 of the TSA as a condition precedent to any termination for Cause under Section 13.1(a).
VI. ADDITIONAL RELEVANT PROCEDURAL FACTS
22. Following the expiration of the 30-day cure period on February 17, 2022, Stonefield's General Counsel, Tobias Wren, issued a formal termination letter dated March 4, 2022 (the "Termination Letter"), terminating the TSA effective immediately pursuant to Section 13.1(a) of the TSA for VTS's failure to cure the material breaches identified in the Cure Notice within the specified cure period. The Termination Letter is referenced in the Complaint at paragraphs 50–53, but is not attached hereto as an exhibit because it is not necessary for the Court's consideration of the specific legal issues raised in the Motion to Dismiss — namely, the enforceability of the liquidated damages clause in Section 14.2 and the sufficiency of the lost profits allegations. Should the Court determine that the Termination Letter would be helpful to its analysis, Defendant will promptly supplement this submission.
23. On February 14, 2022 — three days prior to the expiration of the cure period — Derek Pruitt, Vice President of Business Development at Vantor Holdings Corp., sent a written response to the Cure Notice to Janet Kirkwood, Vice President of Carrier Relations at Stonefield Logistics Group Inc. In his response, Mr. Pruitt acknowledged that VTS had experienced "operational challenges" during Q4 2021, but asserted that those challenges were caused by external factors, including driver shortages attributable to broader market conditions, supply chain disruptions, and pandemic-related workforce impacts. Mr. Pruitt's response also disputed certain of the cargo claims data cited in the Cure Notice, contending that several claims were attributable to pre-existing packaging deficiencies on the part of Stonefield's shippers rather than to handling by VTS. This response is referenced in the Complaint at paragraphs 46–48.
24. Prior to filing the Complaint, the parties engaged in the mandatory executive negotiation process required by Section 16 of the TSA. An in-person meeting was held on May 16, 2022, at Stonefield's offices in New York, New York, between Marcus Denton, Chief Executive Officer of Stonefield Logistics Group Inc., and Nikolai Vantorovich, Chief Executive Officer of Vantor Holdings Corp. A second meeting was held telephonically on June 3, 2022, between the same individuals and their respective general counsel. Neither meeting resulted in a resolution of the dispute.
25. Vantor, through its counsel Caldwell Royce & Shapiro LLP, sent a pre-suit demand letter dated April 8, 2022, to Stonefield, claiming total damages of approximately $95.4 million. Stonefield, through Calderwood & Harkness LLP, responded in writing on April 29, 2022, rejecting the demand in its entirety and setting forth Stonefield's position that the termination was for Cause and that no damages were owed.
VII. RELEVANCE OF ATTACHED EXHIBITS TO MOTION TO DISMISS
26. Exhibit A (the TSA) is submitted because the Motion to Dismiss argues, as its primary ground, that the liquidated damages clause contained in Section 14.2 of the TSA is unenforceable as a penalty under New York law. The Court's analysis of whether a liquidated damages clause constitutes an enforceable liquidation of damages or an unenforceable penalty requires examination of the actual contract terms, including the operative formula, the parties' contractual acknowledgment language, and the surrounding contractual framework. See Northpoint Holdings v. Purdy Corp., 41 N.Y.2d 354, 365 (1977); Kestrel Corporation, 4 N.Y.3d 373, 380 (2005). The liquidated damages formula — seventy-five percent (75%) of the Annual Committed Volume of $43.2 million, multiplied by the number of full and partial contract years remaining in the then-current term — produces a claimed liquidated damages amount of approximately $67.23 million. This figure is composed of $64.8 million attributable to the two full remaining contract years (2 × $43.2 million × 0.75 = $64.8 million) plus approximately $2.43 million attributable to the partial contract year of twenty-seven (27) days from the termination date of March 4, 2022 to March 31, 2022 (calculated as 27/365 × $43.2 million × 0.75 ≈ $2.397 million). As set forth in the Memorandum of Law, Defendant contends that this formula bears no reasonable relationship to the probable loss to VTS and instead functions as an impermissible penalty designed to deter Stonefield from exercising its contractual termination rights.
27. The TSA is also relevant to the Motion's alternative argument that Vantor's liquidated damages and lost profits claims are impermissibly duplicative, as both categories of alleged damages seek to compensate Vantor for the same underlying harm — the lost value of the contract over the remaining term. Under New York law, a plaintiff may not recover both liquidated damages and actual damages for the same breach where the liquidated damages provision was intended to serve as the exclusive remedy for that category of loss. The interplay between Section 14.2 (liquidated damages), Section 15.1 (consequential damages waiver), and the lost profits claim pleaded in the Complaint requires the Court to examine the contractual framework as a whole.
28. Section 15.1 of the TSA — the mutual consequential damages waiver — is further relevant to the categories of damages that Vantor may pursue in this action. To the extent that certain of Vantor's claimed damages (including stranded asset costs, workforce reduction costs, and lost profits) constitute consequential or indirect damages, they may be barred by the waiver contained in Section 15.1. The Memorandum of Law addresses this argument in detail.
29. Exhibit B (the Cure Notice) is submitted to establish the factual predicate for Stonefield's termination for Cause and to demonstrate the nature, scope, and specificity of the material breaches identified by Stonefield. This factual context is directly relevant to the threshold question of whether the liquidated damages clause in Section 14.2 is even implicated by the facts of this case, because, by its express terms, Section 14.2 applies only to terminations "other than for Cause." If the termination was for Cause — as Stonefield contends — then Section 14.2 does not apply and no liquidated damages are owed regardless of the enforceability vel non of the clause.
30. The remaining term of the TSA at the time of termination was approximately two (2) years and twenty-seven (27) days (March 4, 2022 through March 31, 2024), which is relevant both to the calculation of the liquidated damages amount that Vantor claims and to the Court's assessment of whether the liquidated damages formula produces a result that is grossly disproportionate to the probable loss at the time of contracting.
VIII. AUTHENTICITY STATEMENT
31. I obtained the copies of Exhibits A and B attached hereto from the files of Stonefield Logistics Group Inc., as provided to Calderwood & Harkness LLP by Tobias Wren, General Counsel of Stonefield, in connection with the firm's engagement to represent Stonefield in this matter. Mr. Wren transmitted these documents to me on September 1, 2022, the date on which Calderwood & Harkness LLP was formally engaged as counsel for Stonefield in this litigation.
32. I have personally reviewed the documents attached hereto as Exhibits A and B and confirm that they are true and correct copies of the originals, which are maintained in the ordinary course of business by Stonefield Logistics Group Inc. at its offices in New York, New York.
33. Vantor's Complaint references and relies upon both the TSA and the Cure Notice as the foundational documents upon which its breach of contract claim is based. The authenticity of these documents has not been disputed by Vantor at any point during the parties' pre-suit negotiations, the Section 16 executive negotiation process, or in any filing in this action.
IX. CONCLUSION AND VERIFICATION
34. I respectfully submit this declaration to the Court in support of Defendant Stonefield Logistics Group Inc.'s Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), and request that the Court consider the attached Exhibits A and B in connection with its evaluation of the Motion.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Executed on October 14, 2022, at New York, New York.
________________________________________
Samuel Eklund Partner Calderwood & Harkness LLP 200 Park Avenue, 38th Floor New York, New York 10166 Telephone: (212) 455-3200 Facsimile: (212) 455-3201
Email: seklund@calderwoodharkness.com
Counsel for Defendant Stonefield Logistics Group Inc.
EXHIBIT LIST
EXHIBIT A
Transportation Services Agreement dated March 15, 2019, between Stonefield Logistics Group Inc. and Vantor Transport Services LLC (Contract Reference No. SLG-VTS-2019-0315), including all schedules and exhibits thereto (127 pages).
EXHIBIT B
Written Cure Notice dated January 18, 2022, from Raymond Hess, Director of Contract Compliance, Stonefield Logistics Group Inc., to Sandra Milescu, Chief Operating Officer, Vantor Holdings Corp. and Vantor Transport Services LLC (8 pages).
Exhibits A and B are filed herewith as separate attachments via the Court's ECF system.
CERTIFICATE OF SERVICE
I hereby certify that on October 14, 2022, a true and correct copy of the foregoing Declaration of Samuel Eklund in Support of Defendant Stonefield Logistics Group Inc.'s Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6), together with Exhibits A and B attached thereto, was served on all counsel of record via the Court's Electronic Case Filing ("ECF") system, which will send notification of such filing to the following:
Harrison Caldwell, Esq. Caldwell Royce & Shapiro LLP 1 Liberty Plaza, 22nd Floor New York, New York 10006 Telephone: (212) 709-4500
Email: hcaldwell@caldwellroyce.com
Meredith Shapiro, Esq. Caldwell Royce & Shapiro LLP 1 Liberty Plaza, 22nd Floor New York, New York 10006 Telephone: (212) 709-4512
Email: mshapiro@caldwellroyce.com
Counsel for Plaintiff Vantor Holdings Corp.
________________________________________
Samuel Eklund Partner Calderwood & Harkness LLP 200 Park Avenue, 38th Floor New York, New York 10166
Counsel for Defendant Stonefield Logistics Group Inc.
VANTOR HOLDINGS CORP.,
Plaintiff,
Case No. 22-cv-07841
v.
Hon. Margaret T. Calloway, U.S.D.J.
STONEFIELD LOGISTICS GROUP INC.,
Defendant.