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PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT PREPARED IN ANTICIPATION OF LITIGATION

CALDERWOOD & HARKNESS LLP 227 West Monroe Street, Suite 3600 Chicago, Illinois 60606

MEMORANDUM

FROM: Nadia Petrov, Lead Associate, and James Underwood, Working Associate

TO: Bernard Crawford, Responsible Partner, and Renata Vasquez, Billing Partner

DATE: August 25, 2023

RE: Maciejewski v. Nexford Industrial Holdings Inc., Case No. 2022-L-002847, Circuit Court of Cook County, Illinois, County Department, Law Division — Post-DWP Strategy Analysis

CLIENT: Nexford Industrial Holdings Inc.

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I. EXECUTIVE SUMMARY

On August 10, 2023, the Honorable Helena R. Vasquez-Torres, sitting in the Circuit Court of Cook County, Illinois, County Department, Law Division, entered an order of dismissal for want of prosecution ("DWP"), without prejudice, pursuant to Cook County Circuit Court General Order 2.1, in the matter of Darren K. Maciejewski v. Nexford Industrial Holdings Inc., Case No. 2022-L-002847. The DWP followed an extended period of complete inactivity on the part of Plaintiff's counsel, Gerald P. Hess of Hess & Loughlin, P.C., spanning in excess of ten months, during which Mr. Hess failed to appear at four consecutive court dates, failed to comply with a rule to show cause, and failed to respond to multiple meet-and-confer communications from defense counsel.

This memorandum provides a comprehensive analysis of the following issues arising from the DWP: (a) the procedural effect of the without-prejudice DWP order under Illinois law and Cook County practice; (b) the one-year window during which Plaintiff may move to vacate the dismissal, including the applicable standard and our assessment of the likelihood of such a motion; (c) the statute of limitations implications for potential re-filing of each of the three counts asserted in Plaintiff's complaint; and (d) our recommended strategy for Nexford going forward, encompassing monitoring, litigation hold maintenance, insurance reporting, and investor disclosure obligations.

Our overall assessment is as follows: The risk of this matter being revived is low but not yet zero. The most significant residual exposure arises from the Illinois common law retaliatory discharge claim (Count I), which carries a five-year statute of limitations under 735 ILCS 5/13-205, expiring approximately September 24, 2026. The two statutory claims — Count II under Section 11(c) of the Occupational Safety and Health Act and Count III under the Illinois Whistleblower Act — are likely time-barred for purposes of re-filing, with Count II having been procedurally deficient from inception. Count III faces a narrow window through approximately August 10, 2024, under the Illinois savings statute, after which it too will be definitively barred.

We recommend that Nexford adopt a monitoring posture with periodic docket checks through August 10, 2024, and that the company maintain its existing litigation hold until the residual limitations period on the retaliatory discharge claim expires. Additional detail on each of these recommendations, including estimated costs and reporting obligations, is provided in Sections V and VI below.

II. PROCEDURAL HISTORY LEADING TO DISMISSAL

A. Case Background

On March 15, 2022, Plaintiff Darren K. Maciejewski filed a three-count complaint in the Circuit Court of Cook County, Illinois, County Department, Law Division, against Nexford Industrial Holdings Inc. The complaint was prepared and filed by Gerald P. Hess of Hess & Loughlin, P.C., located at 3412 Harlem Avenue, Suite 205, Berwyn, Illinois 60402. Mr. Maciejewski was a former Senior Quality Assurance Supervisor at Nexford's manufacturing facility located at 2700 Industrial Parkway, Elgin, Illinois 60123. His employment was terminated on September 24, 2021.

The complaint set forth three counts:

Count I — Retaliatory Discharge (Illinois Common Law). Plaintiff alleged that he was terminated in retaliation for reporting safety violations at Nexford's Elgin facility, specifically in connection with conditions in Building C, and that his termination violated the clear mandate of Illinois public policy favoring workplace safety.

Count II — Retaliation Under Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c). Plaintiff alleged that his termination constituted unlawful retaliation for exercising rights protected under the Occupational Safety and Health Act, including the filing of a complaint with the Occupational Safety and Health Administration ("OSHA").

Count III — Violation of the Illinois Whistleblower Act, 740 ILCS 174/1 *et seq*. Plaintiff alleged that Nexford retaliated against him for disclosing information regarding violations of state and federal safety regulations to government agencies, in contravention of the protections afforded by the Illinois Whistleblower Act.

Service of process was effectuated upon CT Agents Inc., Nexford's registered agent for service of process in Illinois, on March 22, 2022. Calderwood & Harkness LLP filed its appearance on behalf of Nexford on April 4, 2022. Nexford's Answer and Affirmative Defenses were filed on April 18, 2022. The affirmative defenses raised included: (1) that Maciejewski's termination was based on legitimate, non-retaliatory business reasons, specifically documented attendance violations and progressive discipline; (2) that Plaintiff failed to exhaust administrative remedies with respect to Count II, as no timely complaint had been filed with the Secretary of Labor through OSHA within the 30-day period prescribed by 29 U.S.C. § 660(c); and (3) the doctrine of after-acquired evidence, based on information developed during the pre-termination investigation regarding additional policy violations.

An Initial Case Management Conference was held on April 28, 2022, before Judge Vasquez-Torres. The court established the following discovery schedule: fact discovery was to close on December 15, 2022; expert disclosures were due January 15, 2023; and expert discovery was to close on March 1, 2023. The case was placed on a standard trial track.

B. Active Litigation Period (April–October 2022)

Following the Initial Case Management Conference, the parties engaged in the discovery process for approximately six months, through mid-October 2022. During this period, both sides participated in written discovery exchanges, though the record reflects a notable asymmetry in the completeness and timeliness of each party's discovery efforts.

On May 10, 2022, Plaintiff served his First Set of Interrogatories, consisting of fifteen interrogatories, and his First Request for Production of Documents, encompassing thirty-two requests. The requests covered the expected range of topics in a single-plaintiff retaliation case, including Maciejewski's personnel file, attendance records, performance evaluations, the circumstances of the termination decision, internal communications regarding the OSHA complaint and Building C conditions, and comparative disciplinary treatment of similarly situated employees.

On June 24, 2022, Nexford served its responses and objections to Plaintiff's discovery requests and produced a document set consisting of 847 pages, Bates-numbered NIH-000001 through NIH-000847. The production included Maciejewski's complete personnel file, attendance records spanning his tenure at the Elgin facility, the progressive discipline documentation underlying the termination decision (including written warnings dated March 12, 2021, June 3, 2021, and August 19, 2021), the Environmental Health and Safety ("EHS") Department report concerning conditions in Building C, the OSHA inspection file (including the notification that OSHA closed its complaint investigation on August 18, 2021, with no citations issued), and relevant provisions of the Nexford Employee Handbook.

On July 1, 2022, Nexford served its own First Set of Interrogatories (ten interrogatories) and First Request for Production of Documents (eighteen requests) on Plaintiff. These requests sought, among other things, information regarding Maciejewski's post-termination employment, mitigation efforts, claimed damages, the factual basis for each count, and communications with OSHA or other governmental agencies. Plaintiff's responses were due on August 1, 2022.

On July 22, 2022, Plaintiff filed a Motion to Compel the production of personnel files of other employees in Maciejewski's department who had received attendance violations but were not terminated, arguing that such materials were relevant to his claim that the stated basis for his termination was pretextual. Calderwood & Harkness filed a Response in Opposition on August 12, 2022, arguing that the request was overbroad, not proportional to the needs of the case, and that it sought confidential personnel information of non-party employees without adequate justification. On September 9, 2022, Judge Vasquez-Torres denied the Motion to Compel, finding the request overbroad and not proportional to the needs of the case as then defined.

The last substantive communication received from Plaintiff's counsel was an email from Mr. Hess to Nadia Petrov, dated October 14, 2022. The email acknowledged receipt of Nexford's discovery responses served on June 24, 2022, and stated that Hess would "be in touch regarding scheduling depositions." The email did not address the fact that Plaintiff's responses to Nexford's First Set of Interrogatories and First Request for Production, which had been due on August 1, 2022, had never been served. As of the date of the DWP — and as of the date of this memorandum — Plaintiff has never served any responses to Nexford's outstanding written discovery.

C. Period of Inactivity and Escalating Non-Appearance (November 2022–August 2023)

Following Mr. Hess's October 14, 2022 email, all communication from Plaintiff's counsel ceased. The following chronology details the escalating pattern of non-responsiveness and non-appearance that ultimately culminated in the DWP:

November 3, 2022: Calderwood & Harkness sent a meet-and-confer letter to Mr. Hess via email and regular mail, identifying Plaintiff's failure to respond to Nexford's First Set of Interrogatories and First Request for Production of Documents (originally due August 1, 2022, then more than three months overdue). The letter requested that Mr. Hess contact Nadia Petrov within fourteen days to discuss Plaintiff's discovery obligations and a schedule for compliance. No response was received.

November 28, 2022: Calderwood & Harkness sent a second meet-and-confer letter to Mr. Hess, again via email and regular mail, reiterating the outstanding discovery deficiencies and advising that, absent a response, Nexford would have no alternative but to file a motion to compel or seek sanctions. The letter was sent to Mr. Hess's email address of record (ghess@hessloughlin.com) and the firm's office address. No response was received, and neither letter was returned as undeliverable.

December 15, 2022: The original fact discovery close date established by the court passed. Plaintiff's responses to Nexford's discovery remained outstanding. No motion to extend the discovery schedule was filed by either party.

January 12, 2023 — First Non-Appearance: A status conference was scheduled before Judge Vasquez-Torres. Mr. Hess did not appear. Nadia Petrov appeared on behalf of Nexford and reported the discovery default and lack of communication from opposing counsel. The court entered an order noting Plaintiff's counsel's non-appearance and directing Plaintiff's counsel to appear at the next status date or show cause for his failure to do so. The matter was continued to March 16, 2023.

March 16, 2023 — Second Non-Appearance: A status conference was held. Mr. Hess again did not appear, notwithstanding the court's prior order directing his appearance. Nadia Petrov appeared for Nexford. The court entered a rule to show cause order directed at Mr. Hess, requiring him to appear on April 20, 2023, and show cause why he should not be held in contempt and why the case should not be dismissed for want of prosecution. The clerk's office sent notice of the order to Mr. Hess at his address of record.

April 20, 2023 — Third Non-Appearance (Rule to Show Cause): Mr. Hess did not appear for the rule to show cause hearing. No written response to the rule to show cause was filed. The court continued the matter to June 8, 2023, with a notation on the record that the case would be subject to dismissal for want of prosecution if Plaintiff's counsel failed to appear or otherwise respond.

June 8, 2023 — Fourth Non-Appearance: Mr. Hess did not appear. The court struck the case from the trial call and set it for a dismissal hearing on August 10, 2023. The court directed that notice of the dismissal hearing be sent to both Plaintiff's counsel (Mr. Hess at Hess & Loughlin, P.C.) and to the Plaintiff individually (Darren K. Maciejewski at his last known address of record).

August 10, 2023 — Entry of DWP: Neither Mr. Hess nor Mr. Maciejewski appeared. The court entered an order of dismissal for want of prosecution, without prejudice, pursuant to Cook County Circuit Court General Order 2.1. The order was entered on the court's docket and served upon the parties at their addresses of record.

D. ARDC Status of Plaintiff's Counsel

In connection with the preparation of this memorandum, we conducted a search of the Attorney Registration and Disciplinary Commission ("ARDC") registry for Gerald P. Hess, ARDC Registration No. 6287491. As of August 23, 2023, Mr. Hess's license to practice law in the State of Illinois remains active and in good standing. There is no indication in the public ARDC records of pending disciplinary proceedings, suspension, censure, voluntary retirement, or inactive status.

The reason for Mr. Hess's complete abandonment of this case remains unknown to us. Several possibilities present themselves: Mr. Hess may have effectively abandoned the representation without formally withdrawing pursuant to Illinois Supreme Court Rule 13; personal or health-related circumstances may have prevented his participation; or a breakdown in the attorney-client relationship may have occurred without formal documentation. We note that Mr. Hess did not file a motion to withdraw at any point during the pendency of the case. Whatever the cause, the prolonged absence has resulted in significant prejudice to his client's litigation position and ultimately in the dismissal of the action.

III. LEGAL EFFECT OF THE DWP ORDER

A. Without-Prejudice Dismissal Under General Order 2.1

The DWP entered by Judge Vasquez-Torres on August 10, 2023, was entered without prejudice. This is a critical distinction with significant practical consequences. A dismissal without prejudice does not constitute an adjudication on the merits and does not bar the Plaintiff from seeking relief in the future, whether by motion to vacate the DWP or by filing a new action. By contrast, a dismissal with prejudice operates as a final adjudication on the merits and would trigger the doctrines of res judicata and claim preclusion, barring any subsequent action on the same claims.

Under Cook County Circuit Court General Order 2.1, which governs the management of cases on the Law Division trial call, cases in which there has been no activity for an extended period are subject to dismissal for want of prosecution. The General Order provides a procedural framework under which the court may, after appropriate notice, dismiss cases that have become dormant. The DWP in this case was entered after notice to both counsel and the Plaintiff individually, following four consecutive non-appearances and non-compliance with a rule to show cause.

Under General Order 2.1 and applicable Illinois practice, a plaintiff whose case has been dismissed for want of prosecution without prejudice may move to vacate the DWP within one year of its entry. See 735 ILCS 5/13-217; Cook County Circuit Court General Order 2.1. The one-year window in this case runs from August 10, 2023, and expires on August 10, 2024. If no motion to vacate is filed by that date, the DWP cannot be set aside under General Order 2.1, and Plaintiff's recourse would be limited to filing a new action — subject, of course, to the applicable statutes of limitations analyzed in Section IV below.

It is important to note that the one-year period under General Order 2.1 operates independently of the statute of limitations applicable to the underlying claims. The one-year window is a procedural deadline specific to the vacatur remedy; the statute of limitations governs the separate question of whether a new, independent action may be commenced.

B. Standard for Vacating a DWP

Should Plaintiff or successor counsel seek to vacate the DWP within the one-year window, the motion would be evaluated under a well-established three-part standard. The movant bears the burden of demonstrating:

1. A meritorious claim. The movant must demonstrate that the underlying claims have sufficient merit to warrant the court's exercise of its discretion to restore the case to the active docket. This does not require a showing that the plaintiff will ultimately prevail, but rather that the claims are not frivolous and present genuine issues for adjudication. See Airborne Express, Inc. v. Dep't of Revenue, 249 Ill. App. 3d 487, 493 (1st Dist. 1993).

2. Due diligence or a reasonable excuse for the failure to prosecute. The movant must offer a satisfactory explanation for the inaction that led to the DWP. This is often the most heavily contested prong. Courts examine whether the failure was attributable to excusable neglect, circumstances beyond the movant's control, or counsel error, and weigh the degree and duration of the default. See People v. Davis, 2017 IL App (1st) 152263, ¶ 23.

3. Absence of undue prejudice to the defendant. The movant must show that reinstating the case would not result in unfair prejudice to the opposing party beyond the prejudice inherent in any litigation. Factors considered include the length of the delay, whether witnesses have become unavailable, whether documents have been lost or destroyed, and whether the defendant has changed its position in reliance on the dismissal. See In re Marriage of Epsteen, 339 Ill. App. 3d 586, 594 (2d Dist. 2003).

Applying this framework to the facts of this case, we assess the Plaintiff's position on each prong as follows:

As to the meritorious claim prong, Plaintiff could likely make a threshold showing of merit with respect to at least Count I (retaliatory discharge). The complaint alleges a temporal nexus between Maciejewski's safety reporting and his termination, which — while ultimately rebuttable by the documented progressive discipline record — would likely satisfy the minimal threshold required at this stage of the analysis.

As to the due diligence prong, Plaintiff faces substantial difficulty. The record reflects a pattern of complete and prolonged non-responsiveness on the part of Plaintiff's counsel: failure to respond to two meet-and-confer letters, failure to appear at four consecutive court dates over a span of approximately seven months, and failure to comply with a rule to show cause. This is not a case of a single missed deadline or an isolated scheduling conflict. Rather, it reflects a wholesale abandonment of the prosecution of the case. Under ordinary circumstances, such a record would be fatal to a motion to vacate.

However, Illinois courts have recognized an important distinction between the conduct of counsel and the conduct of the litigant personally. Where a plaintiff can demonstrate that counsel abandoned the representation without the client's knowledge or consent, and that the client personally exercised reasonable diligence in monitoring the status of the case, some courts have exercised discretion to vacate a DWP, even where counsel's conduct was egregious. See, e.g., Widicus v. Sw. Elec. Coop., Inc., 26 Ill. App. 2d 102, 108 (5th Dist. 1960); Baskin v. Platinum Condominium Ass'n, 2015 IL App (1st) 143023. If Maciejewski were to retain new counsel and assert that Mr. Hess abandoned the representation without his knowledge or authorization, a court might view the motion with some sympathy, particularly given the remedial purposes underlying the one-year vacatur period.

As to the prejudice prong, Nexford could point to the extended delay, the burden of maintaining a litigation hold for an additional prolonged period, the potential for witness memory to fade, and the business disruption associated with reviving dormant employment litigation. However, given that the case has been pending for less than two years and that no depositions were taken, the prejudice argument — while legitimate — may not be dispositive on its own.

C. Assessment of Likelihood of Motion to Vacate

Based on the totality of the circumstances, we assess the likelihood that Plaintiff will file a motion to vacate the DWP as low, though not negligible. This assessment rests on the following factors:

(i) Prolonged and total inactivity by Plaintiff's counsel. Mr. Hess's complete disengagement from the case over a ten-month period, including non-compliance with a rule to show cause, suggests a fundamental breakdown in the prosecution of this matter that is unlikely to be reversed.

(ii) No indication of substitute counsel. As of the date of this memorandum, there is no indication that Mr. Maciejewski has retained substitute counsel. No motion to substitute has been filed, and no communication has been received from any attorney purporting to represent Maciejewski.

(iii) Passage of time since termination. Maciejewski's termination occurred on September 24, 2021 — nearly two years ago. As time passes, the practical and emotional impetus to pursue litigation often diminishes, and the prospect of locating and engaging new counsel becomes less likely.

(iv) Modest damages relative to litigation costs. The damages at issue, while significant, are not of the magnitude that would make this case an obvious candidate for contingent-fee representation by a new attorney, particularly given the procedural history and the need to revive a dismissed action.

That said, we cannot rule out the possibility of a motion to vacate. The scenario most likely to produce such a motion would involve Maciejewski becoming independently aware of the DWP — perhaps through a routine credit check, a new employment application, or communication from the court — and thereafter consulting with a new attorney who concludes that the retaliatory discharge claim retains value. The window for this scenario extends through August 10, 2024, and we recommend active monitoring throughout that period.

IV. STATUTE OF LIMITATIONS ANALYSIS FOR POTENTIAL RE-FILING

If the DWP is not vacated and the one-year window under General Order 2.1 expires on August 10, 2024, Plaintiff's sole remaining avenue for pursuing his claims would be to file a new action. Because the DWP was entered without prejudice, a new filing would not be barred by the doctrines of res judicata or claim preclusion; the dismissal does not constitute an adjudication on the merits. The viability of each count in any new action, however, depends entirely on the applicable statute of limitations. We analyze each count below.

A. Count I: Retaliatory Discharge (Illinois Common Law)

The Illinois common law tort of retaliatory discharge does not have a specific statutory limitations period. Illinois courts have consistently applied the five-year "catch-all" limitations period set forth in 735 ILCS 5/13-205, which governs "all civil actions not otherwise provided for." See Hartlein v. Ill. Power Co., 151 Ill. 2d 142, 160 (1992); Fellhauer v. City of Geneva, 142 Ill. 2d 495, 510 (1991). This five-year period applies to retaliatory discharge claims because such claims sound in tort and are not subject to any more specific limitations provision.

The cause of action for retaliatory discharge accrues on the date of the adverse employment action — in this case, the date of Maciejewski's termination, September 24, 2021. Applying the five-year limitations period, the statute of limitations for Count I will expire on approximately September 24, 2026.

This is the longest limitations period applicable to any of Plaintiff's claims and represents the most significant residual risk for Nexford. Maciejewski could file a new retaliatory discharge action at any time between now and September 24, 2026, without any procedural impediment arising from the DWP. A new action would commence as a fresh proceeding, requiring new service of process, new pleadings, and a new discovery schedule. While the defense on the merits remains strong — supported by the documented progressive discipline record, the OSHA inspection finding no violations, and the EHS Department report — the mere existence of a viable limitations window creates ongoing exposure that must be managed.

Conclusion: Count I is NOT time-barred. Plaintiff could re-file this claim as a new action at any time through approximately September 24, 2026. This represents the most significant residual risk arising from the DWP.

B. Count II: Retaliation Under 29 U.S.C. § 660(c) (OSHA)

Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c), provides that no person shall discharge or discriminate against any employee because the employee has filed a complaint or exercised any right afforded by the Act. The statute prescribes a specific and extremely narrow enforcement mechanism: an employee who believes he has been subjected to retaliation must file a complaint with the Secretary of Labor (through OSHA) within thirty (30) days of the alleged retaliatory action. 29 U.S.C. § 660(c)(2).

Maciejewski was terminated on September 24, 2021. Accordingly, the thirty-day deadline for filing an administrative complaint with OSHA expired on approximately October 24, 2021. Plaintiff's complaint in this civil action was not filed until March 15, 2022 — nearly five months after the administrative deadline had passed. There is no indication in the case record, nor in any discovery materials produced, that Maciejewski filed a timely complaint with OSHA under § 660(c). Our Answer and Affirmative Defenses specifically raised failure to exhaust administrative remedies as an affirmative defense to Count II.

Moreover, there is a substantial and largely dispositive legal barrier to Count II beyond the exhaustion issue. The weight of authority — including the prevailing view in the Seventh Circuit — holds that § 660(c) does not create a private right of action. The exclusive enforcement mechanism is an action filed by the Secretary of Labor on behalf of the aggrieved employee; the employee himself may not bring suit directly. See Taylor v. Brighton Corp., 616 F.2d 256, 263 (6th Cir. 1980); George v. Aztec Rental Ctr., Inc., 763 F.2d 184, 186-87 (5th Cir. 1985); see also 29 C.F.R. § 1977.15(d)(2). This provides an independent basis for dismissal of Count II that would apply regardless of the limitations question.

Conclusion: Count II was likely deficient from its inception due to the failure to file a timely administrative complaint with OSHA and the absence of a cognizable private right of action under § 660(c). The thirty-day filing period with OSHA expired on approximately October 24, 2021, and cannot be revived. Re-filing this claim would face the identical barriers. The risk of successful re-filing on this count is negligible.

C. Count III: Illinois Whistleblower Act (740 ILCS 174/1 *et seq*.)

The Illinois Whistleblower Act, 740 ILCS 174/1 et seq., protects employees from retaliation for reporting violations of state or federal law, rules, or regulations to government or law enforcement agencies. The Act prohibits employers from retaliating against employees who disclose information to a government or law enforcement agency where the employee has reasonable cause to believe that the information discloses a violation of a state or federal law, rule, or regulation.

The Whistleblower Act does not contain its own statute of limitations. In the absence of a specific limitations provision, Illinois courts have applied the one-year statute of limitations set forth in 735 ILCS 5/13-202, which governs "actions upon a statute for a penalty or forfeiture or to recover damages for an act required to be done within a specified time, when no limitation is provided in the statute itself." See Sardiga v. N. Trust Co., 409 Ill. App. 3d 56, 62-63 (1st Dist. 2011); Brame v. City of N. Chicago, 2011 IL App (2d) 100760, ¶ 22. Although there is some scholarly debate as to whether the five-year catch-all period under § 13-205 should apply instead, the prevailing case law supports application of the one-year period under § 13-202.

Maciejewski's cause of action under the Whistleblower Act accrued on September 24, 2021, the date of his termination. Applying the one-year limitations period, the statute of limitations expired on approximately September 24, 2022. The original complaint was timely filed on March 15, 2022, well within this one-year window. However, the DWP entered on August 10, 2023, was without prejudice and does not toll the limitations period. Absent some tolling mechanism, a new filing after September 24, 2022, would be time-barred.

The critical question is whether the Illinois savings statute, 735 ILCS 5/13-217, extends the re-filing window. Section 13-217 provides, in relevant part:

"In the actions specified in Article XIII of this Act or any other act or contract where the time for commencing an action is limited, if judgment is entered for the plaintiff but reversed on appeal, or if there is a voluntary nonsuit, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction, or the action is dismissed for improper venue in any court, ... then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff ... may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such ... dismissal."

The savings statute applies specifically to dismissals for want of prosecution, which is the exact procedural posture here. Because the original complaint was timely filed within the one-year limitations period, and because the case was dismissed for want of prosecution, § 13-217 would permit Plaintiff to re-file within one year of the DWP — that is, by approximately August 10, 2024 — even though the original one-year limitations period has already expired.

However, several considerations limit the practical significance of this window. First, the one-year savings statute period expires on the same date as the one-year window to move to vacate the DWP under General Order 2.1 — August 10, 2024. Thus, whether Plaintiff seeks to revive the existing case or file a new one, the effective deadline is the same. Second, the savings statute under § 13-217 may generally be invoked only once; if a second action were also dismissed, Plaintiff could not rely on the savings statute again. Third, the practical likelihood that Plaintiff — who has shown no activity for over ten months and whose counsel has apparently abandoned the case — will take either action by August 10, 2024, is low.

Conclusion: Count III is likely time-barred for re-filing absent application of the savings statute. If the savings statute under 735 ILCS 5/13-217 is applied, the deadline to re-file would be approximately August 10, 2024 — the same date as the deadline to move to vacate the DWP. If neither a motion to vacate nor a new filing occurs by August 10, 2024, Count III will be definitively time-barred. Risk of successful re-filing: low to moderate, declining to negligible after August 10, 2024.

D. Summary of Limitations Analysis

The following table summarizes the statute of limitations analysis for each count:

As the table reflects, the residual risk profile is dominated by Count I. The retaliatory discharge claim under Illinois common law will remain viable for re-filing for more than three additional years — through approximately September 24, 2026. This fact drives our recommendations regarding litigation hold maintenance and monitoring, as discussed in Section VI below.

V. EXPOSURE AND INSURANCE ANALYSIS

A. Current Exposure Assessment

At the outset of this litigation, Calderwood & Harkness prepared an internal worst-case exposure analysis, dated April 2022, estimating total potential exposure at approximately $285,000. That estimate was comprised of the following components:

• Back pay: approximately $78,400 (one year of Maciejewski's final annual salary, representing the period from termination through the anticipated trial date, subject to mitigation offsets)

• Front pay: approximately $39,200 (six months of salary as a proxy for the period required to locate comparable employment)

• Emotional distress damages: approximately $50,000

• Statutory attorney's fees and costs (Count III): approximately $40,000

• Punitive damages risk (if applicable): approximately $77,400

With the passage of time, the back pay component of any damages calculation would increase if the case were revived and Plaintiff were to prevail. Maciejewski's final annual salary at the time of his termination was $78,400, which equates to $6,533.33 per month. From the date of termination (September 24, 2021) to the present (August 25, 2023), approximately twenty-three months have elapsed, yielding a gross back pay figure of approximately $150,267, before application of any mitigation offset. Of course, the Plaintiff bears the duty to mitigate damages, and any earnings or employment benefits obtained during the intervening period would reduce this figure. We have no current information regarding Maciejewski's post-termination employment status.

However, any revival of this case would face significant procedural headwinds and the defense remains strong on the merits. The key merits defenses include: (1) the documented progressive discipline record, consisting of three written warnings for attendance violations preceding the termination; (2) the OSHA inspection of the Elgin facility, which resulted in no citations and the closure of the complaint on August 18, 2021 — more than a month before Maciejewski's termination; and (3) the EHS Department's internal report confirming compliance with applicable safety standards in Building C. Moreover, any motion to vacate the DWP would itself be subject to scrutiny under the three-part standard described in Section III.B, and the Plaintiff's procedural position is significantly weakened by counsel's pattern of abandonment.

On balance, we assess the current adjusted exposure — accounting for both the increased back pay accrual and the strengthened procedural defenses — as somewhat higher in absolute dollar terms than the original April 2022 estimate if the case were fully litigated, but substantially discounted by the low probability of revival. For purposes of reserve analysis and reporting, we suggest maintaining the existing reserve with a notation that the probability-adjusted expected value of this matter has decreased materially as a result of the DWP.

B. EPLI Coverage Status

Nexford's Employment Practices Liability Insurance ("EPLI") coverage is provided by Verdant Mutual Insurance Company under Policy No. EPLI-VM-2021-04782. The relevant policy terms are as follows:

• Per-occurrence limit: $2,000,000

• Aggregate limit: $5,000,000

• Self-insured retention ("SIR"): $50,000

• Claims adjuster: Brianna Choi, Verdant Mutual Insurance Company

Verdant acknowledged coverage for the Maciejewski matter, subject to a reservation of rights. The reservation of rights letter, dated April 22, 2022, reserved Verdant's rights with respect to certain policy exclusions but did not disclaim coverage. Calderwood & Harkness has been operating as panel defense counsel under the EPLI policy.

Total defense fees incurred through the active litigation period are approximately $62,322.50, broken down as follows:

The $50,000 self-insured retention has been exceeded. Accordingly, Verdant's coverage obligation has attached, and the insurer is responsible for defense costs in excess of the SIR, subject to the per-occurrence and aggregate limits. Verdant should be notified of the DWP and the transition to a monitoring posture, as discussed in Section VI.E below.

The pre-trial litigation budget cap established at the inception of the matter is $175,000. Against this budget, approximately $62,300 has been incurred, leaving approximately $112,700 in remaining budget authority. The estimated cost of the monitoring posture through August 10, 2024, is modest (approximately $3,000–$5,000), and well within the remaining budget.

VI. RECOMMENDED STRATEGY

A. Monitoring Posture Through August 10, 2024

We recommend that Calderwood & Harkness adopt a monitoring posture through August 10, 2024 — the date on which the one-year window to vacate the DWP expires and the latest date on which the Illinois savings statute could support a re-filing of Count III. Specifically, we recommend:

1. Monthly docket checks. Calderwood & Harkness will conduct docket checks in Case No. 2022-L-002847 at least once per month through August 10, 2024, using the Cook County Clerk of the Circuit Court's online docket system, to confirm that no motion to vacate, motion to substitute counsel, or other filing has been made. Any filing will be immediately communicated to Bernard Crawford, Renata Vasquez, and the client's designated in-house contact, Tara Svendsen.

2. Monitoring for new filings. In addition to monitoring the existing docket, Calderwood & Harkness will conduct periodic searches of new case filings in Cook County (and, as a precaution, in the Northern District of Illinois) to identify any new action filed by or on behalf of Darren K. Maciejewski against Nexford Industrial Holdings Inc.

3. Quarterly status updates. Calderwood & Harkness will provide quarterly status updates to Nexford (through Tara Svendsen) and to Verdant Mutual Insurance Company (through Brianna Choi) confirming the continued dormant status of the matter.

In the event that a motion to vacate is filed, Calderwood & Harkness should promptly oppose it on the following grounds:

(i) Inexcusable failure to prosecute. Plaintiff's counsel engaged in a prolonged and inexcusable pattern of non-participation, including failure to respond to discovery, failure to respond to meet-and-confer correspondence, failure to appear at four consecutive court dates, and failure to comply with a rule to show cause. This pattern of conduct falls well below the threshold of "due diligence" or "reasonable excuse" required to vacate a DWP.

(ii) Prejudice to Nexford. The extended delay has imposed ongoing costs on Nexford, including the maintenance of a document preservation hold, the allocation of internal resources to monitor the matter, and the disruption associated with the continuing cloud of pending litigation. Additionally, with the passage of time, witness memories regarding the events of 2021 will inevitably fade, and the reliability of testimony may be compromised.

(iii) Absence of a demonstrated meritorious claim. The OSHA inspection of the Elgin facility resulted in no citations, and the complaint was closed on August 18, 2021 — more than a month before Maciejewski's termination. The EHS Department report confirmed compliance with applicable safety standards. The progressive discipline record is well-documented and provides a clear, legitimate, non-retaliatory basis for the termination decision.

If a motion to vacate is filed, we should also evaluate the propriety of seeking attorney's fees and costs incurred as a result of Plaintiff's counsel's abandonment, including fees incurred in attending status conferences at which Plaintiff's counsel failed to appear and fees incurred in connection with the opposition to the motion to vacate.

B. Continued Litigation Hold

We recommend that Nexford maintain the litigation hold previously issued on April 1, 2022. The hold covers all documents and electronically stored information ("ESI") related to:

• Darren K. Maciejewski's employment at the Elgin facility, including his personnel file, performance evaluations, attendance records, and all communications regarding his hiring, performance, discipline, and termination;

• OSHA Complaint No. 1734892 and the related inspection of the Elgin facility;

• Environmental, health, and safety conditions in Building C at the Elgin facility;

• Attendance and disciplinary records for the Quality Assurance Department during the relevant period; and

• Communications among key custodians: Frank Bosch (Plant Manager), Catherine Donnelly (Human Resources Director), Liam Gallagher (EHS Manager), and Tara Svendsen (General Counsel).

The litigation hold should remain in place at least until the residual statute of limitations for Count I (retaliatory discharge) expires, which we estimate to be approximately September 24, 2026. The five-year limitations period applicable to the retaliatory discharge claim means that Maciejewski could, in theory, file a new action asserting this claim at any point through that date. Premature release of the litigation hold could result in the destruction of relevant materials and create spoliation risk if a new action is filed.

If no motion to vacate is filed by August 10, 2024, and no new action is filed, a reassessment of the scope and necessity of the litigation hold should be conducted at that time. At a minimum, we recommend that the hold on core custodian files (Bosch, Donnelly, Gallagher, and Svendsen) and key documentary categories (personnel file, progressive discipline records, OSHA correspondence, EHS report) be maintained through September 24, 2026. The hold on broader ESI categories (e.g., departmental email archives, shared drive content) may potentially be narrowed following the August 2024 assessment, depending on the risk profile at that time.

C. Post-August 10, 2024 Assessment

If the one-year DWP vacatur window passes on August 10, 2024, without any action by Plaintiff — neither a motion to vacate nor a new filing — we recommend a comprehensive reassessment of the matter's residual risk profile and a determination as to formal matter closure or continued monitoring.

At that point, the procedural landscape will have shifted meaningfully:

• The DWP will be final and non-vacatable under General Order 2.1.

• Count II (OSHA retaliation) will remain definitively barred, as it has been since October 2021.

• Count III (Illinois Whistleblower Act) will be definitively time-barred, as the savings statute window will have expired.

• Only Count I (retaliatory discharge) will remain viable, with its limitations period extending through approximately September 24, 2026.

The risk assessment at that juncture will turn on several practical factors, including: (i) whether Maciejewski has retained new counsel, as evidenced by any communication or filing; (ii) any informal indications from Plaintiff's side of an intent to pursue the matter further; (iii) the overall passage of time and the practical likelihood of a pro se or newly-counseled re-filing nearly three years after the termination; and (iv) the estimated cost of continued monitoring and litigation hold maintenance versus the probability-adjusted residual exposure.

We anticipate that the risk profile as of August 10, 2024, will be materially lower than it is today, and we expect to recommend at that time a further reduction in monitoring intensity, a potential narrowing of the litigation hold scope, and an adjustment of the reserve. A full memorandum will be circulated at that time.

D. Question of Seeking Dismissal with Prejudice

We have considered whether Nexford should affirmatively move, at this stage, for the court to convert the without-prejudice DWP to a dismissal with prejudice, which would constitute an adjudication on the merits and bar any future litigation on these claims. While such a motion would, if granted, definitively eliminate all residual risk, we recommend against it at this time for the following strategic reason:

Filing a motion for dismissal with prejudice would require noticing and serving both Maciejewski and Hess, which would bring the current procedural posture to the attention of a party who may not be aware of the DWP or, if aware, may not have the resources or inclination to act. Such a filing could inadvertently serve as a wake-up call to a dormant adversary and prompt the very motion to vacate — or the retention of new counsel — that we wish to avoid. The strategic benefit of the current quiet posture, in which the case is dismissed and the clock is running against the Plaintiff on multiple deadlines, significantly outweighs the incremental benefit of converting the DWP to a with-prejudice disposition.

This recommendation should be revisited immediately if any of the following events occur: (i) Plaintiff or new counsel files a motion to vacate or any other pleading in Case No. 2022-L-002847; (ii) a new action is filed by or on behalf of Maciejewski against Nexford; or (iii) we receive any communication from Maciejewski or a representative indicating an intent to pursue litigation. In any of those scenarios, the calculus would change, and affirmative dispositive motions should be evaluated.

E. Reporting Obligations

Two external reporting obligations should be addressed in connection with the DWP:

Verdant Mutual Insurance Company. A coverage status update letter should be sent to Brianna Choi at Verdant Mutual, notifying the insurer of the August 10, 2023 DWP, the without-prejudice nature of the dismissal, the one-year vacatur window, the residual limitations exposure on Count I, and the transition to a monitoring posture. We will prepare this letter for Bernard Crawford's signature. The letter should request that Verdant maintain the claim file in open status through August 10, 2024, at minimum, and through September 24, 2026, if warranted by subsequent developments. The letter should also confirm that anticipated monitoring costs ($3,000–$5,000) are within the approved budget.

Harborview Partners. Nexford's private equity sponsor, Harborview Partners, requires quarterly litigation exposure reporting. A litigation exposure report should be provided to Malcolm Driscoll at Veltrano through Tara Svendsen, Nexford's General Counsel, in accordance with Veltrano's standard reporting requirements. The report should note the DWP, the reduced but not eliminated risk profile, the residual limitations exposure, and the continuing monitoring posture. We will coordinate with Tara Svendsen to prepare the appropriate disclosure for inclusion in the next quarterly report.

VII. CONCLUSION

The dismissal for want of prosecution entered on August 10, 2023, without prejudice, substantially reduces the risk profile of the Maciejewski matter but does not eliminate it entirely. Two residual exposure periods remain:

1. The one-year vacatur window, extending through August 10, 2024, during which Plaintiff may move to vacate the DWP or, under the savings statute, re-file Count III (Illinois Whistleblower Act). We assess the likelihood of either action as low but not negligible.

2. The five-year statute of limitations on the retaliatory discharge claim (Count I), extending through approximately September 24, 2026, during which Plaintiff could file a new action asserting this common law tort. This represents the longest-duration residual risk.

The OSHA retaliation claim (Count II) was likely deficient from its inception due to the failure to file a timely administrative complaint and the absence of a cognizable private right of action, and is effectively moot. The Illinois Whistleblower Act claim (Count III), while potentially subject to the savings statute, will be effectively time-barred after August 10, 2024, at the latest.

We recommend a passive monitoring posture, including monthly docket checks, quarterly status reports, and maintenance of the litigation hold through at least September 24, 2026. We further recommend preparation to oppose any motion to vacate and advise against any affirmative filing that could alert the Plaintiff to the procedural posture. External reporting obligations to Verdant Mutual and Veltrano Capital should be satisfied promptly.

We will provide an updated recommendation and reassessment memorandum following the expiration of the one-year DWP window on August 10, 2024.

Estimated additional fees for monitoring through August 10, 2024, including monthly docket checks, quarterly status updates to client and insurer, and attendance at any noticed hearings, are approximately $3,000–$5,000, well within the remaining pre-trial budget of approximately $112,700.

We are available to discuss this memorandum and the recommended strategy at your convenience.

Respectfully submitted,

CALDERWOOD & HARKNESS LLP

By: ________

Nadia Petrov Lead Associate Calderwood & Harkness LLP 227 West Monroe Street, Suite 3600 Chicago, Illinois 60606 npetrov@calderwoodharkness.com (312) 555-4820

By: ________

James Underwood Working Associate Calderwood & Harkness LLP 227 West Monroe Street, Suite 3600 Chicago, Illinois 60606 junderwood@calderwoodharkness.com (312) 555-4837

Distribution: Bernard Crawford, Responsible Partner, Calderwood & Harkness LLP Renata Vasquez, Billing Partner, Calderwood & Harkness LLP

PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT PREPARED IN ANTICIPATION OF LITIGATION

This memorandum is protected by the attorney-client privilege and the work product doctrine. It has been prepared by counsel in anticipation of litigation and for the purpose of providing legal advice to the client. It is not to be disclosed to any third party without the prior written consent of Calderwood & Harkness LLP. Inadvertent disclosure does not constitute a waiver of any applicable privilege or protection.

Count	Claim	Limitations Period	Accrual Date	Expiration Date	Risk Assessment
I	Retaliatory Discharge (IL common law)	5 years (735 ILCS 5/13-205)	Sept. 24, 2021	~Sept. 24, 2026	Moderate — Remains viable for re-filing through 2026
II	OSHA Retaliation (29 U.S.C. § 660(c))	30-day administrative filing	Sept. 24, 2021	~Oct. 24, 2021	Negligible — Time-barred; likely no private right of action
III	IL Whistleblower Act (740 ILCS 174/1)	1 year (735 ILCS 5/13-202); savings statute may extend	Sept. 24, 2021	~Sept. 24, 2022 (savings statute: ~Aug. 10, 2024)	Low — Effectively time-barred after Aug. 10, 2024
Timekeeper	Role	Hours	Rate	Total
Bernard Crawford	Responsible Partner	12.5	$895.00	$11,187.50
Renata Vasquez	Billing Partner	8.0	$825.00	$6,600.00
Nadia Petrov	Lead Associate	52.0	$545.00	$28,340.00
James Underwood	Working Associate	41.0	$395.00	$16,195.00
Total	113.5	$62,322.50

PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT PREPARED IN ANTICIPATION OF LITIGATION
CALDERWOOD & HARKNESS LLP 227 West Monroe Street, Suite 3600 Chicago, Illinois 60606
MEMORANDUM
FROM: Nadia Petrov, Lead Associate, and James Underwood, Working Associate
TO: Bernard Crawford, Responsible Partner, and Renata Vasquez, Billing Partner
DATE: August 25, 2023
RE: Maciejewski v. Nexford Industrial Holdings Inc., Case No. 2022-L-002847, Circuit Court of Cook County, Illinois, County Department, Law Division — Post-DWP Strategy Analysis
CLIENT: Nexford Industrial Holdings Inc.
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I. EXECUTIVE SUMMARY
On August 10, 2023, the Honorable Helena R. Vasquez-Torres, sitting in the Circuit Court of Cook County, Illinois, County Department, Law Division, entered an order of dismissal for want of prosecution ("DWP"), without prejudice, pursuant to Cook County Circuit Court General Order 2.1, in the matter of Darren K. Maciejewski v. Nexford Industrial Holdings Inc., Case No. 2022-L-002847. The DWP followed an extended period of complete inactivity on the part of Plaintiff's counsel, Gerald P. Hess of Hess & Loughlin, P.C., spanning in excess of ten months, during which Mr. Hess failed to appear at four consecutive court dates, failed to comply with a rule to show cause, and failed to respond to multiple meet-and-confer communications from defense counsel.
This memorandum provides a comprehensive analysis of the following issues arising from the DWP: (a) the procedural effect of the without-prejudice DWP order under Illinois law and Cook County practice; (b) the one-year window during which Plaintiff may move to vacate the dismissal, including the applicable standard and our assessment of the likelihood of such a motion; (c) the statute of limitations implications for potential re-filing of each of the three counts asserted in Plaintiff's complaint; and (d) our recommended strategy for Nexford going forward, encompassing monitoring, litigation hold maintenance, insurance reporting, and investor disclosure obligations.
Our overall assessment is as follows: The risk of this matter being revived is low but not yet zero. The most significant residual exposure arises from the Illinois common law retaliatory discharge claim (Count I), which carries a five-year statute of limitations under 735 ILCS 5/13-205, expiring approximately September 24, 2026. The two statutory claims — Count II under Section 11(c) of the Occupational Safety and Health Act and Count III under the Illinois Whistleblower Act — are likely time-barred for purposes of re-filing, with Count II having been procedurally deficient from inception. Count III faces a narrow window through approximately August 10, 2024, under the Illinois savings statute, after which it too will be definitively barred.
We recommend that Nexford adopt a monitoring posture with periodic docket checks through August 10, 2024, and that the company maintain its existing litigation hold until the residual limitations period on the retaliatory discharge claim expires. Additional detail on each of these recommendations, including estimated costs and reporting obligations, is provided in Sections V and VI below.
II. PROCEDURAL HISTORY LEADING TO DISMISSAL
A. Case Background
On March 15, 2022, Plaintiff Darren K. Maciejewski filed a three-count complaint in the Circuit Court of Cook County, Illinois, County Department, Law Division, against Nexford Industrial Holdings Inc. The complaint was prepared and filed by Gerald P. Hess of Hess & Loughlin, P.C., located at 3412 Harlem Avenue, Suite 205, Berwyn, Illinois 60402. Mr. Maciejewski was a former Senior Quality Assurance Supervisor at Nexford's manufacturing facility located at 2700 Industrial Parkway, Elgin, Illinois 60123. His employment was terminated on September 24, 2021.
The complaint set forth three counts:
Count I — Retaliatory Discharge (Illinois Common Law). Plaintiff alleged that he was terminated in retaliation for reporting safety violations at Nexford's Elgin facility, specifically in connection with conditions in Building C, and that his termination violated the clear mandate of Illinois public policy favoring workplace safety.
Count II — Retaliation Under Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c). Plaintiff alleged that his termination constituted unlawful retaliation for exercising rights protected under the Occupational Safety and Health Act, including the filing of a complaint with the Occupational Safety and Health Administration ("OSHA").
Count III — Violation of the Illinois Whistleblower Act, 740 ILCS 174/1 *et seq*. Plaintiff alleged that Nexford retaliated against him for disclosing information regarding violations of state and federal safety regulations to government agencies, in contravention of the protections afforded by the Illinois Whistleblower Act.
Service of process was effectuated upon CT Agents Inc., Nexford's registered agent for service of process in Illinois, on March 22, 2022. Calderwood & Harkness LLP filed its appearance on behalf of Nexford on April 4, 2022. Nexford's Answer and Affirmative Defenses were filed on April 18, 2022. The affirmative defenses raised included: (1) that Maciejewski's termination was based on legitimate, non-retaliatory business reasons, specifically documented attendance violations and progressive discipline; (2) that Plaintiff failed to exhaust administrative remedies with respect to Count II, as no timely complaint had been filed with the Secretary of Labor through OSHA within the 30-day period prescribed by 29 U.S.C. § 660(c); and (3) the doctrine of after-acquired evidence, based on information developed during the pre-termination investigation regarding additional policy violations.
An Initial Case Management Conference was held on April 28, 2022, before Judge Vasquez-Torres. The court established the following discovery schedule: fact discovery was to close on December 15, 2022; expert disclosures were due January 15, 2023; and expert discovery was to close on March 1, 2023. The case was placed on a standard trial track.
B. Active Litigation Period (April–October 2022)
Following the Initial Case Management Conference, the parties engaged in the discovery process for approximately six months, through mid-October 2022. During this period, both sides participated in written discovery exchanges, though the record reflects a notable asymmetry in the completeness and timeliness of each party's discovery efforts.
On May 10, 2022, Plaintiff served his First Set of Interrogatories, consisting of fifteen interrogatories, and his First Request for Production of Documents, encompassing thirty-two requests. The requests covered the expected range of topics in a single-plaintiff retaliation case, including Maciejewski's personnel file, attendance records, performance evaluations, the circumstances of the termination decision, internal communications regarding the OSHA complaint and Building C conditions, and comparative disciplinary treatment of similarly situated employees.
On June 24, 2022, Nexford served its responses and objections to Plaintiff's discovery requests and produced a document set consisting of 847 pages, Bates-numbered NIH-000001 through NIH-000847. The production included Maciejewski's complete personnel file, attendance records spanning his tenure at the Elgin facility, the progressive discipline documentation underlying the termination decision (including written warnings dated March 12, 2021, June 3, 2021, and August 19, 2021), the Environmental Health and Safety ("EHS") Department report concerning conditions in Building C, the OSHA inspection file (including the notification that OSHA closed its complaint investigation on August 18, 2021, with no citations issued), and relevant provisions of the Nexford Employee Handbook.
On July 1, 2022, Nexford served its own First Set of Interrogatories (ten interrogatories) and First Request for Production of Documents (eighteen requests) on Plaintiff. These requests sought, among other things, information regarding Maciejewski's post-termination employment, mitigation efforts, claimed damages, the factual basis for each count, and communications with OSHA or other governmental agencies. Plaintiff's responses were due on August 1, 2022.
On July 22, 2022, Plaintiff filed a Motion to Compel the production of personnel files of other employees in Maciejewski's department who had received attendance violations but were not terminated, arguing that such materials were relevant to his claim that the stated basis for his termination was pretextual. Calderwood & Harkness filed a Response in Opposition on August 12, 2022, arguing that the request was overbroad, not proportional to the needs of the case, and that it sought confidential personnel information of non-party employees without adequate justification. On September 9, 2022, Judge Vasquez-Torres denied the Motion to Compel, finding the request overbroad and not proportional to the needs of the case as then defined.
The last substantive communication received from Plaintiff's counsel was an email from Mr. Hess to Nadia Petrov, dated October 14, 2022. The email acknowledged receipt of Nexford's discovery responses served on June 24, 2022, and stated that Hess would "be in touch regarding scheduling depositions." The email did not address the fact that Plaintiff's responses to Nexford's First Set of Interrogatories and First Request for Production, which had been due on August 1, 2022, had never been served. As of the date of the DWP — and as of the date of this memorandum — Plaintiff has never served any responses to Nexford's outstanding written discovery.
C. Period of Inactivity and Escalating Non-Appearance (November 2022–August 2023)
Following Mr. Hess's October 14, 2022 email, all communication from Plaintiff's counsel ceased. The following chronology details the escalating pattern of non-responsiveness and non-appearance that ultimately culminated in the DWP:
November 3, 2022: Calderwood & Harkness sent a meet-and-confer letter to Mr. Hess via email and regular mail, identifying Plaintiff's failure to respond to Nexford's First Set of Interrogatories and First Request for Production of Documents (originally due August 1, 2022, then more than three months overdue). The letter requested that Mr. Hess contact Nadia Petrov within fourteen days to discuss Plaintiff's discovery obligations and a schedule for compliance. No response was received.
November 28, 2022: Calderwood & Harkness sent a second meet-and-confer letter to Mr. Hess, again via email and regular mail, reiterating the outstanding discovery deficiencies and advising that, absent a response, Nexford would have no alternative but to file a motion to compel or seek sanctions. The letter was sent to Mr. Hess's email address of record (ghess@hessloughlin.com) and the firm's office address. No response was received, and neither letter was returned as undeliverable.
December 15, 2022: The original fact discovery close date established by the court passed. Plaintiff's responses to Nexford's discovery remained outstanding. No motion to extend the discovery schedule was filed by either party.
January 12, 2023 — First Non-Appearance: A status conference was scheduled before Judge Vasquez-Torres. Mr. Hess did not appear. Nadia Petrov appeared on behalf of Nexford and reported the discovery default and lack of communication from opposing counsel. The court entered an order noting Plaintiff's counsel's non-appearance and directing Plaintiff's counsel to appear at the next status date or show cause for his failure to do so. The matter was continued to March 16, 2023.
March 16, 2023 — Second Non-Appearance: A status conference was held. Mr. Hess again did not appear, notwithstanding the court's prior order directing his appearance. Nadia Petrov appeared for Nexford. The court entered a rule to show cause order directed at Mr. Hess, requiring him to appear on April 20, 2023, and show cause why he should not be held in contempt and why the case should not be dismissed for want of prosecution. The clerk's office sent notice of the order to Mr. Hess at his address of record.
April 20, 2023 — Third Non-Appearance (Rule to Show Cause): Mr. Hess did not appear for the rule to show cause hearing. No written response to the rule to show cause was filed. The court continued the matter to June 8, 2023, with a notation on the record that the case would be subject to dismissal for want of prosecution if Plaintiff's counsel failed to appear or otherwise respond.
June 8, 2023 — Fourth Non-Appearance: Mr. Hess did not appear. The court struck the case from the trial call and set it for a dismissal hearing on August 10, 2023. The court directed that notice of the dismissal hearing be sent to both Plaintiff's counsel (Mr. Hess at Hess & Loughlin, P.C.) and to the Plaintiff individually (Darren K. Maciejewski at his last known address of record).
August 10, 2023 — Entry of DWP: Neither Mr. Hess nor Mr. Maciejewski appeared. The court entered an order of dismissal for want of prosecution, without prejudice, pursuant to Cook County Circuit Court General Order 2.1. The order was entered on the court's docket and served upon the parties at their addresses of record.
D. ARDC Status of Plaintiff's Counsel
In connection with the preparation of this memorandum, we conducted a search of the Attorney Registration and Disciplinary Commission ("ARDC") registry for Gerald P. Hess, ARDC Registration No. 6287491. As of August 23, 2023, Mr. Hess's license to practice law in the State of Illinois remains active and in good standing. There is no indication in the public ARDC records of pending disciplinary proceedings, suspension, censure, voluntary retirement, or inactive status.
The reason for Mr. Hess's complete abandonment of this case remains unknown to us. Several possibilities present themselves: Mr. Hess may have effectively abandoned the representation without formally withdrawing pursuant to Illinois Supreme Court Rule 13; personal or health-related circumstances may have prevented his participation; or a breakdown in the attorney-client relationship may have occurred without formal documentation. We note that Mr. Hess did not file a motion to withdraw at any point during the pendency of the case. Whatever the cause, the prolonged absence has resulted in significant prejudice to his client's litigation position and ultimately in the dismissal of the action.
III. LEGAL EFFECT OF THE DWP ORDER
A. Without-Prejudice Dismissal Under General Order 2.1
The DWP entered by Judge Vasquez-Torres on August 10, 2023, was entered without prejudice. This is a critical distinction with significant practical consequences. A dismissal without prejudice does not constitute an adjudication on the merits and does not bar the Plaintiff from seeking relief in the future, whether by motion to vacate the DWP or by filing a new action. By contrast, a dismissal with prejudice operates as a final adjudication on the merits and would trigger the doctrines of res judicata and claim preclusion, barring any subsequent action on the same claims.
Under Cook County Circuit Court General Order 2.1, which governs the management of cases on the Law Division trial call, cases in which there has been no activity for an extended period are subject to dismissal for want of prosecution. The General Order provides a procedural framework under which the court may, after appropriate notice, dismiss cases that have become dormant. The DWP in this case was entered after notice to both counsel and the Plaintiff individually, following four consecutive non-appearances and non-compliance with a rule to show cause.
Under General Order 2.1 and applicable Illinois practice, a plaintiff whose case has been dismissed for want of prosecution without prejudice may move to vacate the DWP within one year of its entry. See 735 ILCS 5/13-217; Cook County Circuit Court General Order 2.1. The one-year window in this case runs from August 10, 2023, and expires on August 10, 2024. If no motion to vacate is filed by that date, the DWP cannot be set aside under General Order 2.1, and Plaintiff's recourse would be limited to filing a new action — subject, of course, to the applicable statutes of limitations analyzed in Section IV below.
It is important to note that the one-year period under General Order 2.1 operates independently of the statute of limitations applicable to the underlying claims. The one-year window is a procedural deadline specific to the vacatur remedy; the statute of limitations governs the separate question of whether a new, independent action may be commenced.
B. Standard for Vacating a DWP
Should Plaintiff or successor counsel seek to vacate the DWP within the one-year window, the motion would be evaluated under a well-established three-part standard. The movant bears the burden of demonstrating:
1. A meritorious claim. The movant must demonstrate that the underlying claims have sufficient merit to warrant the court's exercise of its discretion to restore the case to the active docket. This does not require a showing that the plaintiff will ultimately prevail, but rather that the claims are not frivolous and present genuine issues for adjudication. See Airborne Express, Inc. v. Dep't of Revenue, 249 Ill. App. 3d 487, 493 (1st Dist. 1993).
2. Due diligence or a reasonable excuse for the failure to prosecute. The movant must offer a satisfactory explanation for the inaction that led to the DWP. This is often the most heavily contested prong. Courts examine whether the failure was attributable to excusable neglect, circumstances beyond the movant's control, or counsel error, and weigh the degree and duration of the default. See People v. Davis, 2017 IL App (1st) 152263, ¶ 23.
3. Absence of undue prejudice to the defendant. The movant must show that reinstating the case would not result in unfair prejudice to the opposing party beyond the prejudice inherent in any litigation. Factors considered include the length of the delay, whether witnesses have become unavailable, whether documents have been lost or destroyed, and whether the defendant has changed its position in reliance on the dismissal. See In re Marriage of Epsteen, 339 Ill. App. 3d 586, 594 (2d Dist. 2003).
Applying this framework to the facts of this case, we assess the Plaintiff's position on each prong as follows:
As to the meritorious claim prong, Plaintiff could likely make a threshold showing of merit with respect to at least Count I (retaliatory discharge). The complaint alleges a temporal nexus between Maciejewski's safety reporting and his termination, which — while ultimately rebuttable by the documented progressive discipline record — would likely satisfy the minimal threshold required at this stage of the analysis.
As to the due diligence prong, Plaintiff faces substantial difficulty. The record reflects a pattern of complete and prolonged non-responsiveness on the part of Plaintiff's counsel: failure to respond to two meet-and-confer letters, failure to appear at four consecutive court dates over a span of approximately seven months, and failure to comply with a rule to show cause. This is not a case of a single missed deadline or an isolated scheduling conflict. Rather, it reflects a wholesale abandonment of the prosecution of the case. Under ordinary circumstances, such a record would be fatal to a motion to vacate.
However, Illinois courts have recognized an important distinction between the conduct of counsel and the conduct of the litigant personally. Where a plaintiff can demonstrate that counsel abandoned the representation without the client's knowledge or consent, and that the client personally exercised reasonable diligence in monitoring the status of the case, some courts have exercised discretion to vacate a DWP, even where counsel's conduct was egregious. See, e.g., Widicus v. Sw. Elec. Coop., Inc., 26 Ill. App. 2d 102, 108 (5th Dist. 1960); Baskin v. Platinum Condominium Ass'n, 2015 IL App (1st) 143023. If Maciejewski were to retain new counsel and assert that Mr. Hess abandoned the representation without his knowledge or authorization, a court might view the motion with some sympathy, particularly given the remedial purposes underlying the one-year vacatur period.
As to the prejudice prong, Nexford could point to the extended delay, the burden of maintaining a litigation hold for an additional prolonged period, the potential for witness memory to fade, and the business disruption associated with reviving dormant employment litigation. However, given that the case has been pending for less than two years and that no depositions were taken, the prejudice argument — while legitimate — may not be dispositive on its own.
C. Assessment of Likelihood of Motion to Vacate
Based on the totality of the circumstances, we assess the likelihood that Plaintiff will file a motion to vacate the DWP as low, though not negligible. This assessment rests on the following factors:
(i) Prolonged and total inactivity by Plaintiff's counsel. Mr. Hess's complete disengagement from the case over a ten-month period, including non-compliance with a rule to show cause, suggests a fundamental breakdown in the prosecution of this matter that is unlikely to be reversed.
(ii) No indication of substitute counsel. As of the date of this memorandum, there is no indication that Mr. Maciejewski has retained substitute counsel. No motion to substitute has been filed, and no communication has been received from any attorney purporting to represent Maciejewski.
(iii) Passage of time since termination. Maciejewski's termination occurred on September 24, 2021 — nearly two years ago. As time passes, the practical and emotional impetus to pursue litigation often diminishes, and the prospect of locating and engaging new counsel becomes less likely.
(iv) Modest damages relative to litigation costs. The damages at issue, while significant, are not of the magnitude that would make this case an obvious candidate for contingent-fee representation by a new attorney, particularly given the procedural history and the need to revive a dismissed action.
That said, we cannot rule out the possibility of a motion to vacate. The scenario most likely to produce such a motion would involve Maciejewski becoming independently aware of the DWP — perhaps through a routine credit check, a new employment application, or communication from the court — and thereafter consulting with a new attorney who concludes that the retaliatory discharge claim retains value. The window for this scenario extends through August 10, 2024, and we recommend active monitoring throughout that period.
IV. STATUTE OF LIMITATIONS ANALYSIS FOR POTENTIAL RE-FILING
If the DWP is not vacated and the one-year window under General Order 2.1 expires on August 10, 2024, Plaintiff's sole remaining avenue for pursuing his claims would be to file a new action. Because the DWP was entered without prejudice, a new filing would not be barred by the doctrines of res judicata or claim preclusion; the dismissal does not constitute an adjudication on the merits. The viability of each count in any new action, however, depends entirely on the applicable statute of limitations. We analyze each count below.
A. Count I: Retaliatory Discharge (Illinois Common Law)
The Illinois common law tort of retaliatory discharge does not have a specific statutory limitations period. Illinois courts have consistently applied the five-year "catch-all" limitations period set forth in 735 ILCS 5/13-205, which governs "all civil actions not otherwise provided for." See Hartlein v. Ill. Power Co., 151 Ill. 2d 142, 160 (1992); Fellhauer v. City of Geneva, 142 Ill. 2d 495, 510 (1991). This five-year period applies to retaliatory discharge claims because such claims sound in tort and are not subject to any more specific limitations provision.
The cause of action for retaliatory discharge accrues on the date of the adverse employment action — in this case, the date of Maciejewski's termination, September 24, 2021. Applying the five-year limitations period, the statute of limitations for Count I will expire on approximately September 24, 2026.
This is the longest limitations period applicable to any of Plaintiff's claims and represents the most significant residual risk for Nexford. Maciejewski could file a new retaliatory discharge action at any time between now and September 24, 2026, without any procedural impediment arising from the DWP. A new action would commence as a fresh proceeding, requiring new service of process, new pleadings, and a new discovery schedule. While the defense on the merits remains strong — supported by the documented progressive discipline record, the OSHA inspection finding no violations, and the EHS Department report — the mere existence of a viable limitations window creates ongoing exposure that must be managed.
Conclusion: Count I is NOT time-barred. Plaintiff could re-file this claim as a new action at any time through approximately September 24, 2026. This represents the most significant residual risk arising from the DWP.
B. Count II: Retaliation Under 29 U.S.C. § 660(c) (OSHA)
Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c), provides that no person shall discharge or discriminate against any employee because the employee has filed a complaint or exercised any right afforded by the Act. The statute prescribes a specific and extremely narrow enforcement mechanism: an employee who believes he has been subjected to retaliation must file a complaint with the Secretary of Labor (through OSHA) within thirty (30) days of the alleged retaliatory action. 29 U.S.C. § 660(c)(2).
Maciejewski was terminated on September 24, 2021. Accordingly, the thirty-day deadline for filing an administrative complaint with OSHA expired on approximately October 24, 2021. Plaintiff's complaint in this civil action was not filed until March 15, 2022 — nearly five months after the administrative deadline had passed. There is no indication in the case record, nor in any discovery materials produced, that Maciejewski filed a timely complaint with OSHA under § 660(c). Our Answer and Affirmative Defenses specifically raised failure to exhaust administrative remedies as an affirmative defense to Count II.
Moreover, there is a substantial and largely dispositive legal barrier to Count II beyond the exhaustion issue. The weight of authority — including the prevailing view in the Seventh Circuit — holds that § 660(c) does not create a private right of action. The exclusive enforcement mechanism is an action filed by the Secretary of Labor on behalf of the aggrieved employee; the employee himself may not bring suit directly. See Taylor v. Brighton Corp., 616 F.2d 256, 263 (6th Cir. 1980); George v. Aztec Rental Ctr., Inc., 763 F.2d 184, 186-87 (5th Cir. 1985); see also 29 C.F.R. § 1977.15(d)(2). This provides an independent basis for dismissal of Count II that would apply regardless of the limitations question.
Conclusion: Count II was likely deficient from its inception due to the failure to file a timely administrative complaint with OSHA and the absence of a cognizable private right of action under § 660(c). The thirty-day filing period with OSHA expired on approximately October 24, 2021, and cannot be revived. Re-filing this claim would face the identical barriers. The risk of successful re-filing on this count is negligible.
C. Count III: Illinois Whistleblower Act (740 ILCS 174/1 *et seq*.)
The Illinois Whistleblower Act, 740 ILCS 174/1 et seq., protects employees from retaliation for reporting violations of state or federal law, rules, or regulations to government or law enforcement agencies. The Act prohibits employers from retaliating against employees who disclose information to a government or law enforcement agency where the employee has reasonable cause to believe that the information discloses a violation of a state or federal law, rule, or regulation.
The Whistleblower Act does not contain its own statute of limitations. In the absence of a specific limitations provision, Illinois courts have applied the one-year statute of limitations set forth in 735 ILCS 5/13-202, which governs "actions upon a statute for a penalty or forfeiture or to recover damages for an act required to be done within a specified time, when no limitation is provided in the statute itself." See Sardiga v. N. Trust Co., 409 Ill. App. 3d 56, 62-63 (1st Dist. 2011); Brame v. City of N. Chicago, 2011 IL App (2d) 100760, ¶ 22. Although there is some scholarly debate as to whether the five-year catch-all period under § 13-205 should apply instead, the prevailing case law supports application of the one-year period under § 13-202.
Maciejewski's cause of action under the Whistleblower Act accrued on September 24, 2021, the date of his termination. Applying the one-year limitations period, the statute of limitations expired on approximately September 24, 2022. The original complaint was timely filed on March 15, 2022, well within this one-year window. However, the DWP entered on August 10, 2023, was without prejudice and does not toll the limitations period. Absent some tolling mechanism, a new filing after September 24, 2022, would be time-barred.
The critical question is whether the Illinois savings statute, 735 ILCS 5/13-217, extends the re-filing window. Section 13-217 provides, in relevant part:
"In the actions specified in Article XIII of this Act or any other act or contract where the time for commencing an action is limited, if judgment is entered for the plaintiff but reversed on appeal, or if there is a voluntary nonsuit, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction, or the action is dismissed for improper venue in any court, ... then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff ... may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such ... dismissal."
The savings statute applies specifically to dismissals for want of prosecution, which is the exact procedural posture here. Because the original complaint was timely filed within the one-year limitations period, and because the case was dismissed for want of prosecution, § 13-217 would permit Plaintiff to re-file within one year of the DWP — that is, by approximately August 10, 2024 — even though the original one-year limitations period has already expired.
However, several considerations limit the practical significance of this window. First, the one-year savings statute period expires on the same date as the one-year window to move to vacate the DWP under General Order 2.1 — August 10, 2024. Thus, whether Plaintiff seeks to revive the existing case or file a new one, the effective deadline is the same. Second, the savings statute under § 13-217 may generally be invoked only once; if a second action were also dismissed, Plaintiff could not rely on the savings statute again. Third, the practical likelihood that Plaintiff — who has shown no activity for over ten months and whose counsel has apparently abandoned the case — will take either action by August 10, 2024, is low.
Conclusion: Count III is likely time-barred for re-filing absent application of the savings statute. If the savings statute under 735 ILCS 5/13-217 is applied, the deadline to re-file would be approximately August 10, 2024 — the same date as the deadline to move to vacate the DWP. If neither a motion to vacate nor a new filing occurs by August 10, 2024, Count III will be definitively time-barred. Risk of successful re-filing: low to moderate, declining to negligible after August 10, 2024.
D. Summary of Limitations Analysis
The following table summarizes the statute of limitations analysis for each count:
As the table reflects, the residual risk profile is dominated by Count I. The retaliatory discharge claim under Illinois common law will remain viable for re-filing for more than three additional years — through approximately September 24, 2026. This fact drives our recommendations regarding litigation hold maintenance and monitoring, as discussed in Section VI below.
V. EXPOSURE AND INSURANCE ANALYSIS
A. Current Exposure Assessment
At the outset of this litigation, Calderwood & Harkness prepared an internal worst-case exposure analysis, dated April 2022, estimating total potential exposure at approximately $285,000. That estimate was comprised of the following components:
• Back pay: approximately $78,400 (one year of Maciejewski's final annual salary, representing the period from termination through the anticipated trial date, subject to mitigation offsets)
• Front pay: approximately $39,200 (six months of salary as a proxy for the period required to locate comparable employment)
• Emotional distress damages: approximately $50,000
• Statutory attorney's fees and costs (Count III): approximately $40,000
• Punitive damages risk (if applicable): approximately $77,400
With the passage of time, the back pay component of any damages calculation would increase if the case were revived and Plaintiff were to prevail. Maciejewski's final annual salary at the time of his termination was $78,400, which equates to $6,533.33 per month. From the date of termination (September 24, 2021) to the present (August 25, 2023), approximately twenty-three months have elapsed, yielding a gross back pay figure of approximately $150,267, before application of any mitigation offset. Of course, the Plaintiff bears the duty to mitigate damages, and any earnings or employment benefits obtained during the intervening period would reduce this figure. We have no current information regarding Maciejewski's post-termination employment status.
However, any revival of this case would face significant procedural headwinds and the defense remains strong on the merits. The key merits defenses include: (1) the documented progressive discipline record, consisting of three written warnings for attendance violations preceding the termination; (2) the OSHA inspection of the Elgin facility, which resulted in no citations and the closure of the complaint on August 18, 2021 — more than a month before Maciejewski's termination; and (3) the EHS Department's internal report confirming compliance with applicable safety standards in Building C. Moreover, any motion to vacate the DWP would itself be subject to scrutiny under the three-part standard described in Section III.B, and the Plaintiff's procedural position is significantly weakened by counsel's pattern of abandonment.
On balance, we assess the current adjusted exposure — accounting for both the increased back pay accrual and the strengthened procedural defenses — as somewhat higher in absolute dollar terms than the original April 2022 estimate if the case were fully litigated, but substantially discounted by the low probability of revival. For purposes of reserve analysis and reporting, we suggest maintaining the existing reserve with a notation that the probability-adjusted expected value of this matter has decreased materially as a result of the DWP.
B. EPLI Coverage Status
Nexford's Employment Practices Liability Insurance ("EPLI") coverage is provided by Verdant Mutual Insurance Company under Policy No. EPLI-VM-2021-04782. The relevant policy terms are as follows:
• Per-occurrence limit: $2,000,000
• Aggregate limit: $5,000,000
• Self-insured retention ("SIR"): $50,000
• Claims adjuster: Brianna Choi, Verdant Mutual Insurance Company
Verdant acknowledged coverage for the Maciejewski matter, subject to a reservation of rights. The reservation of rights letter, dated April 22, 2022, reserved Verdant's rights with respect to certain policy exclusions but did not disclaim coverage. Calderwood & Harkness has been operating as panel defense counsel under the EPLI policy.
Total defense fees incurred through the active litigation period are approximately $62,322.50, broken down as follows:
The $50,000 self-insured retention has been exceeded. Accordingly, Verdant's coverage obligation has attached, and the insurer is responsible for defense costs in excess of the SIR, subject to the per-occurrence and aggregate limits. Verdant should be notified of the DWP and the transition to a monitoring posture, as discussed in Section VI.E below.
The pre-trial litigation budget cap established at the inception of the matter is $175,000. Against this budget, approximately $62,300 has been incurred, leaving approximately $112,700 in remaining budget authority. The estimated cost of the monitoring posture through August 10, 2024, is modest (approximately $3,000–$5,000), and well within the remaining budget.
VI. RECOMMENDED STRATEGY
A. Monitoring Posture Through August 10, 2024
We recommend that Calderwood & Harkness adopt a monitoring posture through August 10, 2024 — the date on which the one-year window to vacate the DWP expires and the latest date on which the Illinois savings statute could support a re-filing of Count III. Specifically, we recommend:
1. Monthly docket checks. Calderwood & Harkness will conduct docket checks in Case No. 2022-L-002847 at least once per month through August 10, 2024, using the Cook County Clerk of the Circuit Court's online docket system, to confirm that no motion to vacate, motion to substitute counsel, or other filing has been made. Any filing will be immediately communicated to Bernard Crawford, Renata Vasquez, and the client's designated in-house contact, Tara Svendsen.
2. Monitoring for new filings. In addition to monitoring the existing docket, Calderwood & Harkness will conduct periodic searches of new case filings in Cook County (and, as a precaution, in the Northern District of Illinois) to identify any new action filed by or on behalf of Darren K. Maciejewski against Nexford Industrial Holdings Inc.
3. Quarterly status updates. Calderwood & Harkness will provide quarterly status updates to Nexford (through Tara Svendsen) and to Verdant Mutual Insurance Company (through Brianna Choi) confirming the continued dormant status of the matter.
In the event that a motion to vacate is filed, Calderwood & Harkness should promptly oppose it on the following grounds:
(i) Inexcusable failure to prosecute. Plaintiff's counsel engaged in a prolonged and inexcusable pattern of non-participation, including failure to respond to discovery, failure to respond to meet-and-confer correspondence, failure to appear at four consecutive court dates, and failure to comply with a rule to show cause. This pattern of conduct falls well below the threshold of "due diligence" or "reasonable excuse" required to vacate a DWP.
(ii) Prejudice to Nexford. The extended delay has imposed ongoing costs on Nexford, including the maintenance of a document preservation hold, the allocation of internal resources to monitor the matter, and the disruption associated with the continuing cloud of pending litigation. Additionally, with the passage of time, witness memories regarding the events of 2021 will inevitably fade, and the reliability of testimony may be compromised.
(iii) Absence of a demonstrated meritorious claim. The OSHA inspection of the Elgin facility resulted in no citations, and the complaint was closed on August 18, 2021 — more than a month before Maciejewski's termination. The EHS Department report confirmed compliance with applicable safety standards. The progressive discipline record is well-documented and provides a clear, legitimate, non-retaliatory basis for the termination decision.
If a motion to vacate is filed, we should also evaluate the propriety of seeking attorney's fees and costs incurred as a result of Plaintiff's counsel's abandonment, including fees incurred in attending status conferences at which Plaintiff's counsel failed to appear and fees incurred in connection with the opposition to the motion to vacate.
B. Continued Litigation Hold
We recommend that Nexford maintain the litigation hold previously issued on April 1, 2022. The hold covers all documents and electronically stored information ("ESI") related to:
• Darren K. Maciejewski's employment at the Elgin facility, including his personnel file, performance evaluations, attendance records, and all communications regarding his hiring, performance, discipline, and termination;
• OSHA Complaint No. 1734892 and the related inspection of the Elgin facility;
• Environmental, health, and safety conditions in Building C at the Elgin facility;
• Attendance and disciplinary records for the Quality Assurance Department during the relevant period; and
• Communications among key custodians: Frank Bosch (Plant Manager), Catherine Donnelly (Human Resources Director), Liam Gallagher (EHS Manager), and Tara Svendsen (General Counsel).
The litigation hold should remain in place at least until the residual statute of limitations for Count I (retaliatory discharge) expires, which we estimate to be approximately September 24, 2026. The five-year limitations period applicable to the retaliatory discharge claim means that Maciejewski could, in theory, file a new action asserting this claim at any point through that date. Premature release of the litigation hold could result in the destruction of relevant materials and create spoliation risk if a new action is filed.
If no motion to vacate is filed by August 10, 2024, and no new action is filed, a reassessment of the scope and necessity of the litigation hold should be conducted at that time. At a minimum, we recommend that the hold on core custodian files (Bosch, Donnelly, Gallagher, and Svendsen) and key documentary categories (personnel file, progressive discipline records, OSHA correspondence, EHS report) be maintained through September 24, 2026. The hold on broader ESI categories (e.g., departmental email archives, shared drive content) may potentially be narrowed following the August 2024 assessment, depending on the risk profile at that time.
C. Post-August 10, 2024 Assessment
If the one-year DWP vacatur window passes on August 10, 2024, without any action by Plaintiff — neither a motion to vacate nor a new filing — we recommend a comprehensive reassessment of the matter's residual risk profile and a determination as to formal matter closure or continued monitoring.
At that point, the procedural landscape will have shifted meaningfully:
• The DWP will be final and non-vacatable under General Order 2.1.
• Count II (OSHA retaliation) will remain definitively barred, as it has been since October 2021.
• Count III (Illinois Whistleblower Act) will be definitively time-barred, as the savings statute window will have expired.
• Only Count I (retaliatory discharge) will remain viable, with its limitations period extending through approximately September 24, 2026.
The risk assessment at that juncture will turn on several practical factors, including: (i) whether Maciejewski has retained new counsel, as evidenced by any communication or filing; (ii) any informal indications from Plaintiff's side of an intent to pursue the matter further; (iii) the overall passage of time and the practical likelihood of a pro se or newly-counseled re-filing nearly three years after the termination; and (iv) the estimated cost of continued monitoring and litigation hold maintenance versus the probability-adjusted residual exposure.
We anticipate that the risk profile as of August 10, 2024, will be materially lower than it is today, and we expect to recommend at that time a further reduction in monitoring intensity, a potential narrowing of the litigation hold scope, and an adjustment of the reserve. A full memorandum will be circulated at that time.
D. Question of Seeking Dismissal with Prejudice
We have considered whether Nexford should affirmatively move, at this stage, for the court to convert the without-prejudice DWP to a dismissal with prejudice, which would constitute an adjudication on the merits and bar any future litigation on these claims. While such a motion would, if granted, definitively eliminate all residual risk, we recommend against it at this time for the following strategic reason:
Filing a motion for dismissal with prejudice would require noticing and serving both Maciejewski and Hess, which would bring the current procedural posture to the attention of a party who may not be aware of the DWP or, if aware, may not have the resources or inclination to act. Such a filing could inadvertently serve as a wake-up call to a dormant adversary and prompt the very motion to vacate — or the retention of new counsel — that we wish to avoid. The strategic benefit of the current quiet posture, in which the case is dismissed and the clock is running against the Plaintiff on multiple deadlines, significantly outweighs the incremental benefit of converting the DWP to a with-prejudice disposition.
This recommendation should be revisited immediately if any of the following events occur: (i) Plaintiff or new counsel files a motion to vacate or any other pleading in Case No. 2022-L-002847; (ii) a new action is filed by or on behalf of Maciejewski against Nexford; or (iii) we receive any communication from Maciejewski or a representative indicating an intent to pursue litigation. In any of those scenarios, the calculus would change, and affirmative dispositive motions should be evaluated.
E. Reporting Obligations
Two external reporting obligations should be addressed in connection with the DWP:
Verdant Mutual Insurance Company. A coverage status update letter should be sent to Brianna Choi at Verdant Mutual, notifying the insurer of the August 10, 2023 DWP, the without-prejudice nature of the dismissal, the one-year vacatur window, the residual limitations exposure on Count I, and the transition to a monitoring posture. We will prepare this letter for Bernard Crawford's signature. The letter should request that Verdant maintain the claim file in open status through August 10, 2024, at minimum, and through September 24, 2026, if warranted by subsequent developments. The letter should also confirm that anticipated monitoring costs ($3,000–$5,000) are within the approved budget.
Harborview Partners. Nexford's private equity sponsor, Harborview Partners, requires quarterly litigation exposure reporting. A litigation exposure report should be provided to Malcolm Driscoll at Veltrano through Tara Svendsen, Nexford's General Counsel, in accordance with Veltrano's standard reporting requirements. The report should note the DWP, the reduced but not eliminated risk profile, the residual limitations exposure, and the continuing monitoring posture. We will coordinate with Tara Svendsen to prepare the appropriate disclosure for inclusion in the next quarterly report.
VII. CONCLUSION
The dismissal for want of prosecution entered on August 10, 2023, without prejudice, substantially reduces the risk profile of the Maciejewski matter but does not eliminate it entirely. Two residual exposure periods remain:
1. The one-year vacatur window, extending through August 10, 2024, during which Plaintiff may move to vacate the DWP or, under the savings statute, re-file Count III (Illinois Whistleblower Act). We assess the likelihood of either action as low but not negligible.
2. The five-year statute of limitations on the retaliatory discharge claim (Count I), extending through approximately September 24, 2026, during which Plaintiff could file a new action asserting this common law tort. This represents the longest-duration residual risk.
The OSHA retaliation claim (Count II) was likely deficient from its inception due to the failure to file a timely administrative complaint and the absence of a cognizable private right of action, and is effectively moot. The Illinois Whistleblower Act claim (Count III), while potentially subject to the savings statute, will be effectively time-barred after August 10, 2024, at the latest.
We recommend a passive monitoring posture, including monthly docket checks, quarterly status reports, and maintenance of the litigation hold through at least September 24, 2026. We further recommend preparation to oppose any motion to vacate and advise against any affirmative filing that could alert the Plaintiff to the procedural posture. External reporting obligations to Verdant Mutual and Veltrano Capital should be satisfied promptly.
We will provide an updated recommendation and reassessment memorandum following the expiration of the one-year DWP window on August 10, 2024.
Estimated additional fees for monitoring through August 10, 2024, including monthly docket checks, quarterly status updates to client and insurer, and attendance at any noticed hearings, are approximately $3,000–$5,000, well within the remaining pre-trial budget of approximately $112,700.
We are available to discuss this memorandum and the recommended strategy at your convenience.
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Nadia Petrov Lead Associate Calderwood & Harkness LLP 227 West Monroe Street, Suite 3600 Chicago, Illinois 60606 npetrov@calderwoodharkness.com (312) 555-4820
By: ________
James Underwood Working Associate Calderwood & Harkness LLP 227 West Monroe Street, Suite 3600 Chicago, Illinois 60606 junderwood@calderwoodharkness.com (312) 555-4837
Distribution: Bernard Crawford, Responsible Partner, Calderwood & Harkness LLP Renata Vasquez, Billing Partner, Calderwood & Harkness LLP
PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT PREPARED IN ANTICIPATION OF LITIGATION
This memorandum is protected by the attorney-client privilege and the work product doctrine. It has been prepared by counsel in anticipation of litigation and for the purpose of providing legal advice to the client. It is not to be disclosed to any third party without the prior written consent of Calderwood & Harkness LLP. Inadvertent disclosure does not constitute a waiver of any applicable privilege or protection.
Count | Claim | Limitations Period | Accrual Date | Expiration Date | Risk Assessment
I | Retaliatory Discharge (IL common law) | 5 years (735 ILCS 5/13-205) | Sept. 24, 2021 | ~Sept. 24, 2026 | Moderate — Remains viable for re-filing through 2026
II | OSHA Retaliation (29 U.S.C. § 660(c)) | 30-day administrative filing | Sept. 24, 2021 | ~Oct. 24, 2021 | Negligible — Time-barred; likely no private right of action
III | IL Whistleblower Act (740 ILCS 174/1) | 1 year (735 ILCS 5/13-202); savings statute may extend | Sept. 24, 2021 | ~Sept. 24, 2022 (savings statute: ~Aug. 10, 2024) | Low — Effectively time-barred after Aug. 10, 2024
Timekeeper | Role | Hours | Rate | Total
Bernard Crawford | Responsible Partner | 12.5 | $895.00 | $11,187.50
Renata Vasquez | Billing Partner | 8.0 | $825.00 | $6,600.00
Nadia Petrov | Lead Associate | 52.0 | $545.00 | $28,340.00
James Underwood | Working Associate | 41.0 | $395.00 | $16,195.00
Total | 113.5 | $62,322.50

PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT PREPARED IN ANTICIPATION OF LITIGATION

MEMORANDUM

I. EXECUTIVE SUMMARY

II. PROCEDURAL HISTORY LEADING TO DISMISSAL

III. LEGAL EFFECT OF THE DWP ORDER

IV. STATUTE OF LIMITATIONS ANALYSIS FOR POTENTIAL RE-FILING

V. EXPOSURE AND INSURANCE ANALYSIS

VI. RECOMMENDED STRATEGY

VII. CONCLUSION

CALDERWOOD & HARKNESS LLP

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