1005-00004 · Nexford Industrial Holdings · Closing

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MEMORANDUM

ATTORNEY-CLIENT PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT — DO NOT DISTRIBUTE

FROM: Nadia Petrov, Lead Associate Calderwood & Harkness LLP 227 West Monroe Street, Suite 3600 Chicago, IL 60606

TO: Tara Svendsen, General Counsel Nexford Industrial Holdings Inc. 500 Commerce Drive, Suite 400 Schaumburg, IL 60173

Catherine "Cat" Donnelly, Vice President, Human Resources Nexford Industrial Holdings Inc. 500 Commerce Drive, Suite 400 Schaumburg, IL 60173

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

DATE: August 22, 2024

RE: Case Closure Recommendation — Darren K. Maciejewski v. Nexford Industrial Holdings Inc., Case No. 2022-L-002847, Circuit Court of Cook County, Illinois, County Department, Law Division

PRIVILEGE DESIGNATION: This memorandum is protected by the attorney-client privilege, the work product doctrine, and all other applicable privileges and protections. It is intended solely for the use of the addressees and persons authorized by them. This memorandum should not be forwarded, disclosed, or discussed with any person or entity other than the addressees and the persons copied hereon without the prior written consent of Calderwood & Harkness LLP. If you have received this memorandum in error, please contact the sender immediately.

I. PURPOSE AND EXECUTIVE SUMMARY

The purpose of this memorandum is to recommend the formal closure of the Calderwood & Harkness LLP matter file for the above-captioned case, Darren K. Maciejewski v. Nexford Industrial Holdings Inc., Case No. 2022-L-002847, pending in the Circuit Court of Cook County, Illinois, County Department, Law Division. This recommendation is made in light of the expiration of the one-year statutory deadline to vacate the dismissal for want of prosecution ("DWP") and the absence of any further action by Plaintiff Darren K. Maciejewski or his counsel of record, Gerald P. Hess of Hess & Loughlin, P.C.

Key Conclusion. The one-year period within which Plaintiff could move to vacate the DWP order entered by the Honorable Judge Helena R. Vasquez-Torres on August 10, 2023, expired on August 10, 2024. Throughout the entirety of that one-year vacatur period, no motion to vacate, no motion for reconsideration, and no filing of any kind was made by Plaintiff or his counsel. Calderwood & Harkness conducted periodic docket checks throughout the vacatur window and confirmed the absence of any activity. As of the date of this memorandum, the case remains dismissed without prejudice, and the opportunity to reinstate it through the vacatur mechanism has permanently lapsed.

While a narrow residual risk of re-filing remains with respect to one of the three original counts — specifically, Count I alleging retaliatory discharge under Illinois common law, which carries a five-year statute of limitations that will not expire until approximately September 24, 2026 — the overall risk profile is assessed as low and supports closure. The remaining two counts (Count II, alleging retaliation under Section 11(c) of the Occupational Safety and Health Act, and Count III, alleging violation of the Illinois Whistleblower Act) are time-barred and cannot be re-filed as new actions. This analysis is set forth in detail in Section III below.

Recommendations. Based on the foregoing, we recommend the following actions:

1. Close the Calderwood & Harkness matter file for Maciejewski v. Nexford Industrial Holdings Inc., Case No. 2022-L-002847, and release the engagement team from the matter.

2. Release the litigation hold that has been in place since April 1, 2022, subject to specified retention periods for certain key documents and categories of electronically stored information ("ESI") through at least September 24, 2029.

3. Notify Verdant Mutual Insurance Company to close the employment practices liability insurance ("EPLI") claim under Policy No. EPLI-VM-2021-04782 and provide a summary of final defense costs incurred.

4. Submit a final litigation report to Harborview Partners, in accordance with Veltrano's portfolio company reporting requirements, confirming the conclusion of this matter.

5. Refrain from affirmatively seeking dismissal with prejudice or recovery of fees and costs from Plaintiff or Plaintiff's counsel, for the strategic reasons discussed in Section V.E below.

6. Maintain passive monitoring through September 24, 2026, including a calendared statute of limitations reminder and a courtesy final docket check by Calderwood & Harkness at that time.

Each of these recommendations is discussed in detail in the sections that follow.

II. PROCEDURAL HISTORY AND CURRENT STATUS

A. Case Background

On March 15, 2022, attorney Gerald P. Hess of the law firm Hess & Loughlin, P.C., located at 3412 Harlem Avenue, Suite 205, Berwyn, Illinois 60402, filed a three-count complaint in the Circuit Court of Cook County, Illinois, County Department, Law Division, on behalf of Plaintiff Darren K. Maciejewski against Nexford Industrial Holdings Inc. The complaint was assigned Case No. 2022-L-002847 and was assigned to the calendar of the Honorable Helena R. Vasquez-Torres.

Plaintiff Maciejewski was a former Senior Quality Assurance Supervisor at Nexford's manufacturing facility located at 2700 Industrial Parkway, Elgin, Illinois 60123 (the "Elgin Facility"). Maciejewski was employed at the Elgin Facility from approximately March 2017 through his termination on September 24, 2021.

The complaint set forth three counts:

Count I — Retaliatory Discharge (Illinois Common Law). Plaintiff alleged that his termination on September 24, 2021, constituted retaliatory discharge in violation of the clear mandate of Illinois public policy, specifically the public policy favoring workplace safety and the right of employees to report unsafe working conditions without fear of retaliation.

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 was in retaliation for filing a complaint with the Occupational Safety and Health Administration ("OSHA") and that such retaliation violated Section 11(c) of the OSH Act.

Count III — Violation of the Illinois Whistleblower Act, 740 ILCS 174/1 et seq. Plaintiff alleged that his termination was in retaliation for disclosing information to a government or law enforcement agency regarding a violation, or suspected violation, of a state or federal law, rule, or regulation, in violation of the Illinois Whistleblower Act.

The factual allegations supporting these three counts were substantially overlapping. Plaintiff alleged that he had submitted internal safety reports to Nexford management on April 5, 2021, and April 19, 2021, identifying concerns regarding chemical storage conditions in Building C of the Elgin Facility. When, according to Plaintiff, Nexford management failed to take adequate responsive action, Plaintiff filed a formal complaint with OSHA, designated as OSHA Complaint No. 1734892, on June 8, 2021. Plaintiff alleged that his termination on September 24, 2021, was causally connected to and motivated by his protected safety reporting activity.

Nexford's position, as set forth in the Answer and Affirmative Defenses filed on April 18, 2022, was that Maciejewski's termination was for documented, repeated violations of the company's attendance and tardiness policy under Employee Handbook § 4.3, as then in effect. Specifically, Nexford demonstrated a clear and well-documented course of progressive discipline:

• First Written Warning — May 24, 2021: Maciejewski received a first written warning for accumulated attendance infractions, including three unexcused tardiness incidents and one unexcused absence during the preceding sixty-day period. The warning was issued by Plant Manager Frank Bosch and acknowledged in writing by Maciejewski.

• Final Written Warning — August 2, 2021: Maciejewski received a final written warning for two additional unexcused tardiness incidents and one additional unexcused absence within the ninety-day period following the first written warning. The final written warning expressly stated that any further attendance violation within ninety days would result in termination of employment. The warning was issued by Frank Bosch and the Human Resources Department and acknowledged in writing by Maciejewski.

• Unexcused Absence — September 20, 2021: Maciejewski failed to report for his scheduled shift on September 20, 2021, and did not provide advance notice or a justifiable excuse. This constituted a further attendance violation within the ninety-day final warning period.

• Termination — September 24, 2021: Following a review by Frank Bosch and the Human Resources Department, Maciejewski was terminated effective September 24, 2021, for violation of the attendance and tardiness policy under Employee Handbook § 4.3, consistent with the progressive discipline framework.

It is also significant to note that OSHA conducted an on-site inspection of the Elgin Facility on July 12, 2021, in response to Complaint No. 1734892. Following the inspection, OSHA closed the complaint on August 18, 2021, with no citations issued and no findings of violation. The OSHA closure letter expressly stated that the inspection did not reveal conditions constituting a violation of applicable OSHA standards. This outcome substantially undermined the factual predicate for Plaintiff's retaliation claims, as the safety concerns that allegedly motivated the protected activity were not substantiated by the regulatory authority upon investigation.

Service of process was effectuated on Nexford through its registered agent, CT Agents Inc., at 208 South LaSalle Street, Suite 814, Springfield, Illinois 62701, on March 22, 2022. Calderwood & Harkness filed its appearance on behalf of Nexford on April 4, 2022, and subsequently filed Nexford's Answer and Affirmative Defenses on April 18, 2022. The Answer included, among other defenses, the affirmative defenses of failure to state a claim, legitimate non-retaliatory business reason for termination, absence of causal connection between protected activity and termination, failure to exhaust administrative remedies (as to Count II), statute of limitations (as to Count III), and the after-acquired evidence doctrine.

B. Discovery Phase

An initial Case Management Conference was held before Judge Vasquez-Torres on April 28, 2022. At that conference, the Court entered a Case Management Order establishing the following discovery schedule:

• Fact discovery close: December 15, 2022

• Expert disclosures due: January 15, 2023

• Expert discovery close: March 1, 2023

No trial date was set at the initial Case Management Conference; the Court indicated that a trial date would be set following the completion of discovery and any dispositive motion practice.

On May 10, 2022, Plaintiff served his First Set of Interrogatories (consisting of fifteen interrogatories) and First Request for Production of Documents (consisting of thirty-two document requests) on Nexford. The discovery requests sought, among other things, Maciejewski's complete personnel file, all documents related to the progressive discipline, all internal communications regarding Maciejewski's safety reports and OSHA complaint, all documents related to the OSHA inspection and closure, the complete Building C EHS file, and comparative disciplinary records for other employees at the Elgin Facility.

Calderwood & Harkness served Nexford's responses and objections to the First Set of Interrogatories and First Request for Production on June 24, 2022, within the applicable response period. In connection with those responses, Nexford produced a total of 847 pages of documents, Bates-numbered NIH-000001 through NIH-000847. The production included Maciejewski's personnel file, the progressive discipline records, the relevant portions of Employee Handbook § 4.3, internal correspondence regarding Maciejewski's attendance issues, the EHS Department's May 3, 2021 report on Building C chemical storage conditions, and correspondence with OSHA regarding Complaint No. 1734892. Certain categories of documents were withheld on the basis of privilege and work product, and a privilege log was provided in accordance with Illinois Supreme Court Rule 201(n).

In return, Nexford served its own written discovery on Plaintiff on July 1, 2022, consisting of ten interrogatories and eighteen requests for production of documents. Responses to Nexford's discovery were due on or before August 1, 2022. Despite the passage of that deadline, no responses were ever served by Plaintiff or his counsel. Calderwood & Harkness did not immediately move to compel, as the decision was made to allow Plaintiff's counsel additional time and to address the deficiency through informal channels before resorting to motion practice.

On July 22, 2022, Plaintiff filed a Motion to Compel production of comparative discipline files for all employees at the Elgin Facility who had received attendance-related discipline within the preceding three years. Calderwood & Harkness filed an Opposition to the Motion to Compel on August 12, 2022, arguing that the request was overbroad, unduly burdensome, and not proportional to the needs of the case, particularly in light of the fact that Plaintiff had not established a prima facie case of disparate treatment and had not identified any similarly situated comparator. Judge Vasquez-Torres heard argument on the motion on September 9, 2022, and denied Plaintiff's Motion to Compel, finding the request overbroad and not proportional to the needs of the case under Illinois Supreme Court Rule 201(c)(3).

The last substantive communication received from Plaintiff's counsel was an email from Gerald P. Hess dated October 14, 2022, in which Hess acknowledged receipt of Nexford's discovery responses and stated that he would "be in touch regarding next steps." No further communication was received from Hess, and no "next steps" were ever taken.

Calderwood & Harkness sent meet-and-confer letters to Hess on November 3, 2022, and November 28, 2022, regarding Plaintiff's failure to respond to Nexford's outstanding discovery requests and to address the upcoming fact discovery close date of December 15, 2022. Neither letter received a response. The fact discovery deadline of December 15, 2022, passed without any further discovery activity by Plaintiff. No expert disclosures were made by either party by the January 15, 2023 deadline, and the expert discovery period closed on March 1, 2023, without any expert discovery having been conducted.

C. Opposing Counsel's Disappearance and DWP Trajectory

Following the cessation of discovery activity and the lack of any communication from Plaintiff's counsel, the case entered a prolonged period of dormancy that ultimately led to its dismissal for want of prosecution. The following is a chronological summary of the relevant court proceedings:

January 12, 2023 — Status Conference. A routine status conference was held before Judge Vasquez-Torres. Gerald P. Hess failed to appear on behalf of Plaintiff. Nadia Petrov appeared on behalf of Nexford and reported on the status of the case, including the failure of Plaintiff to respond to Nexford's outstanding discovery and the absence of any communication from Plaintiff's counsel since October 2022. The Court noted Hess's non-appearance on the record and set a further status conference for March 16, 2023, directing that Plaintiff's counsel appear in person or show cause for his failure to do so.

March 16, 2023 — Status Conference. Gerald P. Hess again did not appear for the status conference. Nadia Petrov appeared on behalf of Nexford. The Court entered a rule to show cause order directed to Gerald P. Hess, ordering him to appear before the Court on April 20, 2023, and show cause why he should not be held in contempt of court for his repeated failure to appear and to prosecute the case on behalf of his client. The order was served on Hess by the Clerk of the Circuit Court at his address of record.

April 20, 2023 — Show Cause Hearing. Gerald P. Hess did not appear for the show cause hearing. No communication was received by the Court or by Calderwood & Harkness from Hess or from Maciejewski in advance of the hearing. The Court continued the matter to June 8, 2023, with a notation on the record that the case may be dismissed for want of prosecution if Plaintiff's counsel continued to fail to appear and prosecute the action.

June 8, 2023 — Status/Dismissal Hearing. Gerald P. Hess again did not appear. No appearance was made by Maciejewski or by any other attorney on behalf of Plaintiff. The Court struck the case from the trial call and set a formal dismissal hearing for August 10, 2023. The Court directed that notice of the dismissal hearing be sent to both Plaintiff Darren K. Maciejewski at his last known address and to Gerald P. Hess at Hess & Loughlin, P.C., advising that the case would be dismissed for want of prosecution if no appearance was made and no satisfactory explanation was provided.

August 10, 2023 — Dismissal for Want of Prosecution. No appearance was made by Hess, Maciejewski, or any other person on behalf of Plaintiff. The Court entered an order of dismissal for want of prosecution ("DWP"), without prejudice, pursuant to Cook County Circuit Court General Order 2.1. The order expressly provided that Plaintiff may move to vacate the dismissal within one year from the date of entry of the order — that is, on or before August 10, 2024. A copy of the DWP order is attached hereto as Attachment A.

D. Expiration of Vacatur Period

The one-year deadline to move to vacate the DWP order expired on August 10, 2024. No motion to vacate was filed by Darren K. Maciejewski or Gerald P. Hess at any point during the one-year vacatur period. No other filing of any kind — including a motion for extension of time, a motion for substitution of counsel, or any pro se filing by Maciejewski — appeared on the docket during this period.

Calderwood & Harkness conducted periodic docket checks throughout the vacatur window — specifically, on November 15, 2023; February 14, 2024; May 15, 2024; August 9, 2024; and August 12, 2024 — and confirmed the absence of any filings or activity in Case No. 2022-L-002847 since the entry of the DWP order on August 10, 2023. A copy of the current docket sheet, reflecting no filings since August 10, 2023, is attached hereto as Attachment B.

As an additional measure, Calderwood & Harkness reviewed the records of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois ("ARDC") to determine the current registration status of Gerald P. Hess. As of the date of this memorandum, Hess's law license remains registered and active with the ARDC. There is no indication of any pending disciplinary proceeding, suspension, or disability inactive status that would explain his prolonged non-participation in this matter. However, the fact that Hess maintains an active license does not alter the procedural reality that the vacatur window has closed and the DWP is now final for purposes of the original case.

With the expiration of the one-year vacatur period, the DWP in Case No. 2022-L-002847 cannot be set aside. The case is effectively concluded as a procedural matter in the Circuit Court of Cook County, subject to the residual re-filing risk analyzed in Section III below.

III. ANALYSIS OF RESIDUAL RISK

Although the DWP is now final and the original case cannot be reinstated, the dismissal was entered without prejudice, which means that Plaintiff retains the theoretical ability to file a new complaint asserting any claim for which the applicable statute of limitations has not yet expired. This section analyzes each of the three original counts to assess the residual risk of re-filing.

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

A claim for retaliatory discharge under Illinois common law is a tort action. Under Illinois law, the applicable statute of limitations for tort actions not otherwise specified is five years. See 735 ILCS 5/13-205. The limitations period for a retaliatory discharge claim runs from the date of the allegedly retaliatory termination. See Michael v. Precision Alliance Group, LLC, 2014 IL 117376, ¶ 31.

Maciejewski was terminated on September 24, 2021. Accordingly, the five-year statute of limitations for a common law retaliatory discharge claim will not expire until approximately September 24, 2026.

Because the DWP was entered without prejudice, Maciejewski could theoretically file a new complaint in the Circuit Court of Cook County (or any other court of competent jurisdiction) asserting a retaliatory discharge claim at any time through that date. The without-prejudice nature of the dismissal means that it does not operate as an adjudication on the merits and does not give rise to res judicata or collateral estoppel.

However, we assess the likelihood of re-filing as low based on the following considerations:

1. Complete Disengagement of Plaintiff's Counsel. Gerald P. Hess has not communicated with Calderwood & Harkness, the Court, or (so far as we are aware) his client since October 2022 — a period of nearly two years. He failed to appear at four consecutive court hearings, failed to respond to a rule to show cause, and failed to take any action whatsoever to prevent or vacate the dismissal of his client's case. This level of disengagement strongly suggests abandonment of the matter.

2. Failure to Prosecute. Plaintiff failed to respond to Nexford's discovery requests, failed to appear at scheduled court dates, failed to move to vacate the DWP within the one-year window provided by the Court, and took no steps to engage substitute counsel. The complete absence of prosecutorial activity over a period exceeding twenty months is a strong indicator that Plaintiff does not intend to pursue this matter further.

3. OSHA Closure with No Citations. OSHA's closure of Complaint No. 1734892 on August 18, 2021, with no citations and no findings of violation, substantially undermines the factual basis of Plaintiff's retaliation claims. The protected activity at the core of Plaintiff's case — his internal safety reports and OSHA complaint regarding Building C chemical storage conditions — was investigated by OSHA and found not to have merit. While the OSHA closure does not dispositively preclude a retaliatory discharge claim (because the claim focuses on the employer's motivation rather than the validity of the safety complaint), it significantly weakens Plaintiff's ability to establish a causal nexus between his protected activity and his termination, particularly in light of the well-documented legitimate basis for termination.

4. Nexford's Strong Progressive Discipline Record. Nexford's defense is supported by contemporaneous documentation of Maciejewski's attendance violations and the application of progressive discipline in accordance with the Employee Handbook. The first written warning, final written warning, and termination were each documented in writing, acknowledged by Maciejewski, and consistent with the Handbook's prescribed disciplinary framework. This documented record provides Nexford with a strong legitimate, non-retaliatory business reason defense.

5. Practical Difficulty of Securing New Counsel. Given the procedural history of this case — including the abandonment by original counsel, the failure to respond to discovery, the failure to appear at multiple court dates, and the two-year period of inactivity — it would be practically difficult for Maciejewski to locate new counsel willing to undertake representation in a re-filed action. The case's history would require new counsel to explain to any future court the circumstances surrounding the prior dismissal, and the absence of any discovery from Plaintiff would mean starting the litigation process from scratch in a case with a weakened factual foundation.

We conclude that this residual risk, while not zero, does not warrant keeping the matter file open or maintaining the litigation hold indefinitely. It does, however, warrant certain precautionary measures, including the retention of key documents through September 24, 2029 (as discussed in Section V.B) and passive monitoring through the statute of limitations expiration date (as discussed in Section VI).

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

Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c), prohibits retaliation against employees who exercise rights protected by the Act, including the right to file complaints with OSHA. However, Section 11(c) does not create a private right of action. Rather, a complainant must file a complaint with the Secretary of Labor within thirty (30) days of the alleged retaliatory action, and enforcement is pursued by the Secretary through an action in federal district court. See 29 C.F.R. § 1977.15(d)(1).

Maciejewski was terminated on September 24, 2021. The thirty-day window for filing a Section 11(c) complaint with the Department of Labor/OSHA expired on or about October 24, 2021. There is no indication in the record — either from Plaintiff's complaint, from Plaintiff's discovery responses (which were never served), or from any other source — that Maciejewski filed a timely administrative complaint with the Department of Labor or OSHA regarding his termination. The complaint filed in the Circuit Court of Cook County did not allege the filing of such an administrative complaint, and no such complaint was referenced in any communication from Plaintiff's counsel.

Accordingly, this claim is almost certainly time-barred and cannot be re-filed, either as a new court action or through the administrative process. Nexford raised the affirmative defense of failure to exhaust administrative remedies as to Count II in its Answer filed April 18, 2022, and that defense would be equally available in any hypothetical new proceeding.

The risk of re-filing on this count is assessed as negligible.

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

The Illinois Whistleblower Act, 740 ILCS 174/1 et seq., prohibits retaliation against employees who disclose information to a government or law enforcement agency regarding a violation or suspected violation of a state or federal law, rule, or regulation. Claims under the Whistleblower Act are subject to a one-year statute of limitations from the date of the retaliatory action. See 740 ILCS 174/35.

Maciejewski was terminated on September 24, 2021. The one-year statute of limitations for a Whistleblower Act claim ran from September 24, 2021, and expired on September 24, 2022. While the original complaint was timely filed on March 15, 2022, the dismissal without prejudice does not toll the statute of limitations. Because the one-year limitations period has long since expired, this claim cannot be re-filed as a new action.

The risk of re-filing on this count is assessed as none.

D. Overall Risk Assessment

Of the three counts in the original complaint, only Count I — the Illinois common law retaliatory discharge claim — remains theoretically viable for re-filing, and only through approximately September 24, 2026. Counts II and III are time-barred and present no risk of re-filing.

The practical likelihood of a new complaint being filed on Count I is assessed as very low, for the reasons set forth in Section III.A above.

In the unlikely event that a new action were filed, Nexford would retain strong defenses. Most significantly, Nexford would assert the defense of legitimate non-retaliatory business reason based on the thoroughly documented progressive discipline record. Additionally, OSHA's finding of no violation in response to Complaint No. 1734892 would undermine any claim of causal connection between the protected activity and the termination. Nexford could also assert the after-acquired evidence doctrine if any additional evidence of performance or conduct issues came to light during discovery.

For reference, the internal worst-case exposure estimate prepared by Calderwood & Harkness in April 2022 at the outset of the litigation was $285,000, comprising the following components:

However, we note that actual exposure in any re-filed action would likely be materially lower than the April 2022 estimate. The passage of time, the procedural history of abandonment by Plaintiff's counsel, the absence of any discovery from Plaintiff, and the practical difficulty of securing new counsel all diminish the realistic exposure. Moreover, any new action would be subject to an aggressive early dispositive strategy, as discussed further in Section V.E below.

Recommendation. Based on the foregoing analysis, we conclude that the residual risk is sufficiently low to support formal closure of the Calderwood & Harkness matter file, with the caveat that Nexford should maintain awareness that the common law retaliatory discharge statute of limitations does not expire until September 24, 2026. Specific recommendations regarding document retention, monitoring, and contingency planning are set forth in Sections V and VI below.

IV. FEES AND BUDGET SUMMARY

The following is a summary of the fees and costs incurred by Calderwood & Harkness in connection with the defense of Maciejewski v. Nexford Industrial Holdings Inc. through the active litigation period:

Total Fees Incurred: $62,322.50

The fees break down by timekeeper as follows:

A detailed fee summary broken down by timekeeper, activity category, and billing period is attached hereto as Attachment C.

The agreed pre-trial litigation budget cap for this matter, as established at the outset of the engagement and approved by Tara Svendsen and Verdant Mutual Insurance Company, was $175,000. Total fees incurred of $62,322.50 represent approximately 35.6% of the authorized budget, leaving a remaining budget of approximately $112,677.50. The matter was resolved well within the authorized budget parameters, primarily as a result of the case's early procedural termination through the DWP process.

Minimal additional fees are anticipated for closure activities. These activities include the preparation of this memorandum, the preparation and transmittal of the closure notification to Verdant Mutual Insurance Company, coordination with Nexford regarding the release of the litigation hold, and administrative file closure procedures. We estimate these additional fees at less than $3,000 in the aggregate, and we will endeavor to minimize costs in completing these final tasks.

Insurance Coverage. Nexford's defense in this matter was covered under Nexford's employment practices liability insurance ("EPLI") policy with Verdant Mutual Insurance Company, Policy No. EPLI-VM-2021-04782. The policy provides for a self-insured retention ("SIR") of $50,000 applicable to defense costs. The total fees incurred of approximately $62,300 exceed the SIR by approximately $12,300. Accordingly, defense costs above the $50,000 SIR have been billed to and paid by Verdant Mutual in accordance with the policy terms. No indemnity payment was required at any point during the litigation, as no settlement or judgment was entered. Coverage was provided subject to Verdant Mutual's standard reservation of rights, which did not ultimately impact the defense or outcome of the matter.

V. RECOMMENDATIONS

A. Formal Closure of Calderwood & Harkness Matter File

We recommend that Calderwood & Harkness formally close its matter file for Maciejewski v. Nexford Industrial Holdings Inc., Case No. 2022-L-002847. Upon closure, the engagement team — Bernard Crawford (Responsible Partner), Renata Vasquez (Billing Partner), Nadia Petrov (Lead Associate), and James Underwood (Junior Associate) — will be released from the matter.

All work product, correspondence, pleadings, discovery materials, and other documents generated or maintained in connection with this representation will be retained by Calderwood & Harkness in accordance with the firm's standard file retention policies. Under those policies, closed litigation matter files are retained for a minimum of seven years from the date of closure, after which they are eligible for destruction in accordance with the firm's records management procedures. Given the residual risk discussed in Section III.A above, we recommend that Calderwood & Harkness retain the file for this matter for a minimum of seven years from the date of closure or until September 24, 2029, whichever is later, to ensure that the file remains available through the expiration of the statute of limitations for Count I plus an adequate buffer period.

Upon approval of this recommendation, Calderwood & Harkness will process the closure through its matter management system and will confirm closure in writing to Nexford's General Counsel.

B. Release of Litigation Hold

We recommend releasing the litigation hold that has been in place since April 1, 2022. The litigation hold was implemented promptly following Nexford's receipt of the complaint and Calderwood & Harkness's engagement in this matter, and it has remained in effect throughout the pendency of the case and the one-year vacatur period.

The following key custodians should be notified of the release of the litigation hold:

• Frank Bosch, Plant Manager, Nexford Elgin Facility

• Catherine "Cat" Donnelly, Vice President, Human Resources

• Liam Gallagher, Director, Environmental Health & Safety ("EHS")

• Tara Svendsen, General Counsel

While the litigation hold is being released, we recommend that Nexford retain the following categories of documents and ESI for a minimum of three years beyond the expiration of the statute of limitations for Count I — that is, through at least September 24, 2029 — to provide an adequate buffer in the unlikely event of a re-filing:

1. Darren K. Maciejewski's complete personnel file, including all employment application materials, performance reviews, compensation records, and separation documentation.

2. All attendance and progressive discipline records related to Maciejewski, including the first written warning dated May 24, 2021, the final written warning dated August 2, 2021, the documentation of the unexcused absence on September 20, 2021, and the termination documentation dated September 24, 2021.

3. The EHS Department's May 3, 2021 report on Building C chemical storage conditions at the Elgin Facility.

4. All correspondence with OSHA regarding Complaint No. 1734892, including the initial complaint notification, the inspection report and findings from the July 12, 2021 inspection, and the August 18, 2021 closure letter.

5. All internal communications regarding Maciejewski's termination, including emails, memoranda, and notes of meetings among Frank Bosch, Catherine Donnelly, Liam Gallagher, and other personnel involved in the termination decision.

6. The relevant portions of Employee Handbook § 4.3 (Attendance and Tardiness Policy) as in effect during Maciejewski's employment, including any revisions or amendments to that section during the relevant period.

Other custodial documents and ESI not specifically identified above — including documents held by custodians who were identified in the litigation hold but whose documents are not within the categories listed above — may be managed and disposed of in accordance with Nexford's standard document retention and information governance policies following the release of the hold. We recommend that Catherine Donnelly coordinate with Nexford's IT and records management departments to ensure that the specified retention categories are properly identified and preserved, and that the release of the hold is communicated to all affected custodians in writing with clear instructions.

C. Notification to Verdant Mutual Insurance Company

We recommend that Calderwood & Harkness prepare and send a formal closure notification to Brianna Choi, Claims Adjuster, Verdant Mutual Insurance Company, at 800 North Plankinton Avenue, Milwaukee, Wisconsin 53203, requesting closure of the EPLI claim under Policy No. EPLI-VM-2021-04782.

The closure notification should summarize the following key information:

• The DWP order entered by Judge Vasquez-Torres on August 10, 2023, dismissing the case without prejudice.

• The expiration of the one-year vacatur window on August 10, 2024, without any motion to vacate or other filing by Plaintiff or Plaintiff's counsel.

• The residual risk analysis regarding the common law retaliatory discharge statute of limitations, which does not expire until approximately September 24, 2026, and the assessment that the risk of re-filing is low.

• Total defense costs incurred of approximately $62,322.50, of which $50,000 was within the self-insured retention and approximately $12,322.50 was billed to and paid by Verdant Mutual.

• The recommendation for closure of the EPLI claim, with a notation that if a new action is filed before September 24, 2026, Nexford will promptly notify Verdant Mutual and tender the new action for coverage under the applicable policy.

• Confirmation that no indemnity payment was required and that no settlement or judgment was entered in connection with this matter.

• Confirmation that coverage was provided subject to a reservation of rights and that no coverage dispute arose during the course of the representation.

A draft of the closure notification letter to Verdant Mutual is attached hereto as Attachment D for Nexford's review and approval prior to transmittal.

D. Final Report to Veltrano Capital Partners

We recommend that Tara Svendsen, in her capacity as General Counsel of Nexford Industrial Holdings Inc., provide a final litigation report to Malcolm Driscoll, Operating Partner, Harborview Partners, located at 401 South Tryon Street, Suite 2800, Charlotte, North Carolina 28202. This report is recommended in accordance with Veltrano's portfolio company governance requirement that Nexford provide quarterly litigation exposure reports on all matters with potential exposure exceeding $50,000.

The final report to Veltrano should confirm the following:

• The matter of Maciejewski v. Nexford Industrial Holdings Inc., Case No. 2022-L-002847, has concluded via dismissal for want of prosecution.

• The one-year vacatur period expired on August 10, 2024, without any action by Plaintiff or Plaintiff's counsel.

• No settlement payment or judgment was entered. The matter concluded without any financial exposure to Nexford beyond defense costs.

• Total defense costs incurred were approximately $62,322.50, of which $50,000 was within the EPLI self-insured retention and the balance was covered by Verdant Mutual Insurance Company under Policy No. EPLI-VM-2021-04782.

• The EPLI claim closure process is underway with Verdant Mutual.

• Residual risk is assessed as low, with a notation that the five-year statute of limitations for the Illinois common law retaliatory discharge claim (Count I) does not expire until approximately September 24, 2026. Only this one count of the original three-count complaint remains theoretically viable for re-filing.

• Calderwood & Harkness has recommended, and Nexford's General Counsel has approved (pending confirmation), the formal closure of the outside counsel matter file.

Going forward, this matter need not be included in Nexford's quarterly litigation exposure reports to Veltrano Capital Partners. If, unexpectedly, a new action is filed before the statute of limitations expires, Nexford would of course report the new matter to Veltrano in accordance with its standard reporting obligations.

E. Decision Against Affirmatively Seeking Dismissal with Prejudice or Fee Recovery

Calderwood & Harkness has carefully considered whether it would be in Nexford's interest to file a motion to convert the without-prejudice DWP to a dismissal with prejudice, or to seek recovery of attorneys' fees and costs from Plaintiff or Plaintiff's counsel under applicable court rules, statutory provisions, or the court's inherent authority. After thorough analysis, we recommend against pursuing either avenue.

Our recommendation is based on the following strategic and practical considerations:

1. Risk of Re-Engaging a Dormant Adversary. Filing any motion in Case No. 2022-L-002847 would require service on Plaintiff and Plaintiff's counsel and would necessarily draw attention to the case at a time when inaction serves Nexford's interests. The current posture — a DWP with an expired vacatur period and a dormant opponent — is highly favorable to Nexford. Any affirmative action by Nexford risks prompting Plaintiff or his counsel to re-engage with the matter, potentially including the filing of a new complaint while the statute of limitations for Count I remains open.

2. Disproportionate Cost Relative to Potential Recovery. The cost of preparing and litigating a motion for dismissal with prejudice or a fee petition — including the briefing, the court appearance, and any subsequent proceedings — would likely exceed any realistic recovery of fees from Plaintiff or Plaintiff's counsel. Gerald P. Hess practices with a small firm in Berwyn, Illinois, and Maciejewski is a former hourly supervisor. The practical collectibility of any fee award is uncertain at best.

3. Sufficiently Low Residual Risk. As analyzed in Section III above, the residual risk from the case in its current posture is sufficiently low that the strategic risk of stirring the matter is not justified. Only one count remains theoretically viable for re-filing, the factual foundation for that claim is weak, and the practical likelihood of re-filing is assessed as very low.

4. Risk of Prompting Counsel Re-Engagement or Referral. ARDC records confirm that Gerald P. Hess maintains an active law license despite his prolonged non-participation in this matter. Service of any motion on Hess could prompt him to re-engage with the case or, alternatively, to refer the matter to another attorney. Either outcome could lead to the filing of a new complaint on Count I before the statute of limitations expires, an outcome that would be adverse to Nexford's interests even if the new complaint were ultimately defeated on the merits.

For all of these reasons, we recommend that Nexford refrain from taking any affirmative action in the Circuit Court of Cook County with respect to Case No. 2022-L-002847.

Contingency Planning. If, unexpectedly, a new complaint is filed by Maciejewski — whether through Hess, through new counsel, or pro se — at any time before September 24, 2026, Nexford should immediately notify Calderwood & Harkness and Verdant Mutual Insurance Company. In that event, Calderwood & Harkness would recommend an aggressive early dispositive strategy centered on a motion for summary judgment. The factual record supporting Nexford's defense is strong, particularly the documented progressive discipline, the OSHA closure with no citations, and the absence of evidence of causal connection between the protected activity and the termination. The procedural history of the prior case — including Plaintiff's failure to respond to discovery, failure to appear at four consecutive court dates, and failure to prosecute — would also be relevant to credibility and damages issues, even though it would not be directly applicable as a defense in a new action.

VI. MONITORING THROUGH STATUTE OF LIMITATIONS EXPIRATION

Although the matter file will be formally closed, Calderwood & Harkness recommends that Nexford's General Counsel maintain a calendared reminder for September 24, 2026, the date on which the five-year statute of limitations for the Illinois common law retaliatory discharge claim expires. Until that date, Nexford should remain passively aware of the possibility — however remote — that a new complaint could be filed.

As a professional courtesy and at no additional charge to Nexford, Calderwood & Harkness will conduct a final docket check in both the Circuit Court of Cook County and the United States District Court for the Northern District of Illinois at or around September 24, 2026, to confirm that no new filing has been made by Maciejewski or on his behalf. Calderwood & Harkness will notify Nexford's General Counsel of the results of that final docket check.

If at any time before September 24, 2026, Nexford becomes aware of any communication from Darren K. Maciejewski, Gerald P. Hess, or any other attorney or agent regarding this matter — including any demand letter, new complaint, subpoena, or informal inquiry — Nexford should immediately notify Calderwood & Harkness so that appropriate responsive action can be evaluated and taken promptly. Time-sensitive issues could arise, including the need to file an appearance or responsive pleading within applicable deadlines, and early notification will ensure that Nexford's interests are fully protected.

Following the expiration of the statute of limitations on September 24, 2026, and confirmation that no new filing has been made, this matter can be considered fully and permanently closed from a litigation risk perspective.

VII. CONCLUSION

For the reasons set forth in this memorandum, Calderwood & Harkness respectfully recommends the following actions in connection with Maciejewski v. Nexford Industrial Holdings Inc., Case No. 2022-L-002847:

1. Close the Calderwood & Harkness matter file and release the engagement team from the matter.

2. Release the litigation hold that has been in place since April 1, 2022, subject to the specified retention periods through at least September 24, 2029, for the categories of documents identified in Section V.B above.

3. Notify Verdant Mutual Insurance Company to close the EPLI claim under Policy No. EPLI-VM-2021-04782, providing the final defense cost summary and residual risk analysis.

4. Deliver a final litigation report to Harborview Partners, confirming the conclusion of this matter and removing it from Nexford's quarterly litigation exposure reports going forward.

5. Refrain from affirmatively seeking dismissal with prejudice or recovery of fees and costs from Plaintiff or Plaintiff's counsel, for the strategic reasons discussed herein.

6. Maintain passive monitoring through September 24, 2026, including a calendared statute of limitations reminder and a courtesy final docket check by Calderwood & Harkness at that time.

We believe these recommendations appropriately balance the need for administrative closure and cost efficiency against the low but non-zero residual risk of re-filing on the common law retaliatory discharge claim. The overall outcome of this matter is favorable to Nexford: the case was defended at a total cost of approximately $62,300, well within the authorized budget of $175,000, and was concluded without any settlement payment, judgment, or adverse ruling on the merits.

It has been a privilege to represent Nexford Industrial Holdings Inc. in this matter. We are grateful for the confidence placed in Calderwood & Harkness by Nexford's legal and human resources teams, and we appreciate the responsiveness and cooperation of Tara Svendsen, Catherine Donnelly, and the Elgin Facility personnel throughout the course of this engagement.

Should you have any questions regarding this memorandum or any of the recommendations set forth herein, please do not hesitate to contact the undersigned or Bernard Crawford at your convenience.

Respectfully submitted,

CALDERWOOD & HARKNESS LLP

By: ________

Nadia Petrov Lead Associate 227 West Monroe Street, Suite 3600 Chicago, IL 60606 Telephone: (312) 555-4200

Email: npetrov@calderwoodharkness.com

Reviewed and Approved:

By: ________

Bernard Crawford Responsible Partner 227 West Monroe Street, Suite 3600 Chicago, IL 60606 Telephone: (312) 555-4100

Email: bcrawford@calderwoodharkness.com

ENCLOSURES / ATTACHMENTS

The following documents are enclosed with this memorandum:

Attachment A: Copy of the August 10, 2023 Order of Dismissal for Want of Prosecution (DWP), Maciejewski v. Nexford Industrial Holdings Inc., Case No. 2022-L-002847, Circuit Court of Cook County, Illinois, County Department, Law Division, entered by the Honorable Helena R. Vasquez-Torres.

Attachment B: Docket Sheet for Case No. 2022-L-002847, Circuit Court of Cook County, reflecting no filings since August 10, 2023 (printed August 14, 2024).

Attachment C: Fee Summary — Maciejewski v. Nexford Industrial Holdings Inc. — Breakdown by Timekeeper, Activity Category, and Billing Period (Calderwood & Harkness LLP Matter No. 1020-00001).

Attachment D: Draft Closure Notification Letter to Verdant Mutual Insurance Company, addressed to Brianna Choi, Claims Adjuster, regarding Policy No. EPLI-VM-2021-04782 (for Nexford review and approval prior to transmittal).

ATTORNEY-CLIENT PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT This memorandum and all attachments are protected by the attorney-client privilege and the work product doctrine. Do not forward, copy, or distribute without the prior written consent of Calderwood & Harkness LLP.

Component	Estimated Exposure
Back pay (approximately 10 months at time of estimate)	~$78,400
Front pay (approximately 5 months estimated)	~$39,200
Emotional distress damages	~$50,000
Statutory attorney's fees and costs	~$40,000
Nominal punitive damages risk	~$77,400
Total Estimated Worst-Case Exposure	~$285,000
Timekeeper	Role	Hours	Rate ($/hr)	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	Junior Associate	41.0	$395.00	$16,195.00
Total	113.5	$62,322.50

MEMORANDUM
ATTORNEY-CLIENT PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT — DO NOT DISTRIBUTE
FROM: Nadia Petrov, Lead Associate Calderwood & Harkness LLP 227 West Monroe Street, Suite 3600 Chicago, IL 60606
TO: Tara Svendsen, General Counsel Nexford Industrial Holdings Inc. 500 Commerce Drive, Suite 400 Schaumburg, IL 60173
Catherine "Cat" Donnelly, Vice President, Human Resources Nexford Industrial Holdings Inc. 500 Commerce Drive, Suite 400 Schaumburg, IL 60173
CC: Bernard Crawford, Responsible Partner, Calderwood & Harkness LLP Renata Vasquez, Billing Partner, Calderwood & Harkness LLP
DATE: August 22, 2024
RE: Case Closure Recommendation — Darren K. Maciejewski v. Nexford Industrial Holdings Inc., Case No. 2022-L-002847, Circuit Court of Cook County, Illinois, County Department, Law Division
PRIVILEGE DESIGNATION: This memorandum is protected by the attorney-client privilege, the work product doctrine, and all other applicable privileges and protections. It is intended solely for the use of the addressees and persons authorized by them. This memorandum should not be forwarded, disclosed, or discussed with any person or entity other than the addressees and the persons copied hereon without the prior written consent of Calderwood & Harkness LLP. If you have received this memorandum in error, please contact the sender immediately.
I. PURPOSE AND EXECUTIVE SUMMARY
The purpose of this memorandum is to recommend the formal closure of the Calderwood & Harkness LLP matter file for the above-captioned case, Darren K. Maciejewski v. Nexford Industrial Holdings Inc., Case No. 2022-L-002847, pending in the Circuit Court of Cook County, Illinois, County Department, Law Division. This recommendation is made in light of the expiration of the one-year statutory deadline to vacate the dismissal for want of prosecution ("DWP") and the absence of any further action by Plaintiff Darren K. Maciejewski or his counsel of record, Gerald P. Hess of Hess & Loughlin, P.C.
Key Conclusion. The one-year period within which Plaintiff could move to vacate the DWP order entered by the Honorable Judge Helena R. Vasquez-Torres on August 10, 2023, expired on August 10, 2024. Throughout the entirety of that one-year vacatur period, no motion to vacate, no motion for reconsideration, and no filing of any kind was made by Plaintiff or his counsel. Calderwood & Harkness conducted periodic docket checks throughout the vacatur window and confirmed the absence of any activity. As of the date of this memorandum, the case remains dismissed without prejudice, and the opportunity to reinstate it through the vacatur mechanism has permanently lapsed.
While a narrow residual risk of re-filing remains with respect to one of the three original counts — specifically, Count I alleging retaliatory discharge under Illinois common law, which carries a five-year statute of limitations that will not expire until approximately September 24, 2026 — the overall risk profile is assessed as low and supports closure. The remaining two counts (Count II, alleging retaliation under Section 11(c) of the Occupational Safety and Health Act, and Count III, alleging violation of the Illinois Whistleblower Act) are time-barred and cannot be re-filed as new actions. This analysis is set forth in detail in Section III below.
Recommendations. Based on the foregoing, we recommend the following actions:
1. Close the Calderwood & Harkness matter file for Maciejewski v. Nexford Industrial Holdings Inc., Case No. 2022-L-002847, and release the engagement team from the matter.
2. Release the litigation hold that has been in place since April 1, 2022, subject to specified retention periods for certain key documents and categories of electronically stored information ("ESI") through at least September 24, 2029.
3. Notify Verdant Mutual Insurance Company to close the employment practices liability insurance ("EPLI") claim under Policy No. EPLI-VM-2021-04782 and provide a summary of final defense costs incurred.
4. Submit a final litigation report to Harborview Partners, in accordance with Veltrano's portfolio company reporting requirements, confirming the conclusion of this matter.
5. Refrain from affirmatively seeking dismissal with prejudice or recovery of fees and costs from Plaintiff or Plaintiff's counsel, for the strategic reasons discussed in Section V.E below.
6. Maintain passive monitoring through September 24, 2026, including a calendared statute of limitations reminder and a courtesy final docket check by Calderwood & Harkness at that time.
Each of these recommendations is discussed in detail in the sections that follow.
II. PROCEDURAL HISTORY AND CURRENT STATUS
A. Case Background
On March 15, 2022, attorney Gerald P. Hess of the law firm Hess & Loughlin, P.C., located at 3412 Harlem Avenue, Suite 205, Berwyn, Illinois 60402, filed a three-count complaint in the Circuit Court of Cook County, Illinois, County Department, Law Division, on behalf of Plaintiff Darren K. Maciejewski against Nexford Industrial Holdings Inc. The complaint was assigned Case No. 2022-L-002847 and was assigned to the calendar of the Honorable Helena R. Vasquez-Torres.
Plaintiff Maciejewski was a former Senior Quality Assurance Supervisor at Nexford's manufacturing facility located at 2700 Industrial Parkway, Elgin, Illinois 60123 (the "Elgin Facility"). Maciejewski was employed at the Elgin Facility from approximately March 2017 through his termination on September 24, 2021.
The complaint set forth three counts:
Count I — Retaliatory Discharge (Illinois Common Law). Plaintiff alleged that his termination on September 24, 2021, constituted retaliatory discharge in violation of the clear mandate of Illinois public policy, specifically the public policy favoring workplace safety and the right of employees to report unsafe working conditions without fear of retaliation.
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 was in retaliation for filing a complaint with the Occupational Safety and Health Administration ("OSHA") and that such retaliation violated Section 11(c) of the OSH Act.
Count III — Violation of the Illinois Whistleblower Act, 740 ILCS 174/1 et seq. Plaintiff alleged that his termination was in retaliation for disclosing information to a government or law enforcement agency regarding a violation, or suspected violation, of a state or federal law, rule, or regulation, in violation of the Illinois Whistleblower Act.
The factual allegations supporting these three counts were substantially overlapping. Plaintiff alleged that he had submitted internal safety reports to Nexford management on April 5, 2021, and April 19, 2021, identifying concerns regarding chemical storage conditions in Building C of the Elgin Facility. When, according to Plaintiff, Nexford management failed to take adequate responsive action, Plaintiff filed a formal complaint with OSHA, designated as OSHA Complaint No. 1734892, on June 8, 2021. Plaintiff alleged that his termination on September 24, 2021, was causally connected to and motivated by his protected safety reporting activity.
Nexford's position, as set forth in the Answer and Affirmative Defenses filed on April 18, 2022, was that Maciejewski's termination was for documented, repeated violations of the company's attendance and tardiness policy under Employee Handbook § 4.3, as then in effect. Specifically, Nexford demonstrated a clear and well-documented course of progressive discipline:
• First Written Warning — May 24, 2021: Maciejewski received a first written warning for accumulated attendance infractions, including three unexcused tardiness incidents and one unexcused absence during the preceding sixty-day period. The warning was issued by Plant Manager Frank Bosch and acknowledged in writing by Maciejewski.
• Final Written Warning — August 2, 2021: Maciejewski received a final written warning for two additional unexcused tardiness incidents and one additional unexcused absence within the ninety-day period following the first written warning. The final written warning expressly stated that any further attendance violation within ninety days would result in termination of employment. The warning was issued by Frank Bosch and the Human Resources Department and acknowledged in writing by Maciejewski.
• Unexcused Absence — September 20, 2021: Maciejewski failed to report for his scheduled shift on September 20, 2021, and did not provide advance notice or a justifiable excuse. This constituted a further attendance violation within the ninety-day final warning period.
• Termination — September 24, 2021: Following a review by Frank Bosch and the Human Resources Department, Maciejewski was terminated effective September 24, 2021, for violation of the attendance and tardiness policy under Employee Handbook § 4.3, consistent with the progressive discipline framework.
It is also significant to note that OSHA conducted an on-site inspection of the Elgin Facility on July 12, 2021, in response to Complaint No. 1734892. Following the inspection, OSHA closed the complaint on August 18, 2021, with no citations issued and no findings of violation. The OSHA closure letter expressly stated that the inspection did not reveal conditions constituting a violation of applicable OSHA standards. This outcome substantially undermined the factual predicate for Plaintiff's retaliation claims, as the safety concerns that allegedly motivated the protected activity were not substantiated by the regulatory authority upon investigation.
Service of process was effectuated on Nexford through its registered agent, CT Agents Inc., at 208 South LaSalle Street, Suite 814, Springfield, Illinois 62701, on March 22, 2022. Calderwood & Harkness filed its appearance on behalf of Nexford on April 4, 2022, and subsequently filed Nexford's Answer and Affirmative Defenses on April 18, 2022. The Answer included, among other defenses, the affirmative defenses of failure to state a claim, legitimate non-retaliatory business reason for termination, absence of causal connection between protected activity and termination, failure to exhaust administrative remedies (as to Count II), statute of limitations (as to Count III), and the after-acquired evidence doctrine.
B. Discovery Phase
An initial Case Management Conference was held before Judge Vasquez-Torres on April 28, 2022. At that conference, the Court entered a Case Management Order establishing the following discovery schedule:
• Fact discovery close: December 15, 2022
• Expert disclosures due: January 15, 2023
• Expert discovery close: March 1, 2023
No trial date was set at the initial Case Management Conference; the Court indicated that a trial date would be set following the completion of discovery and any dispositive motion practice.
On May 10, 2022, Plaintiff served his First Set of Interrogatories (consisting of fifteen interrogatories) and First Request for Production of Documents (consisting of thirty-two document requests) on Nexford. The discovery requests sought, among other things, Maciejewski's complete personnel file, all documents related to the progressive discipline, all internal communications regarding Maciejewski's safety reports and OSHA complaint, all documents related to the OSHA inspection and closure, the complete Building C EHS file, and comparative disciplinary records for other employees at the Elgin Facility.
Calderwood & Harkness served Nexford's responses and objections to the First Set of Interrogatories and First Request for Production on June 24, 2022, within the applicable response period. In connection with those responses, Nexford produced a total of 847 pages of documents, Bates-numbered NIH-000001 through NIH-000847. The production included Maciejewski's personnel file, the progressive discipline records, the relevant portions of Employee Handbook § 4.3, internal correspondence regarding Maciejewski's attendance issues, the EHS Department's May 3, 2021 report on Building C chemical storage conditions, and correspondence with OSHA regarding Complaint No. 1734892. Certain categories of documents were withheld on the basis of privilege and work product, and a privilege log was provided in accordance with Illinois Supreme Court Rule 201(n).
In return, Nexford served its own written discovery on Plaintiff on July 1, 2022, consisting of ten interrogatories and eighteen requests for production of documents. Responses to Nexford's discovery were due on or before August 1, 2022. Despite the passage of that deadline, no responses were ever served by Plaintiff or his counsel. Calderwood & Harkness did not immediately move to compel, as the decision was made to allow Plaintiff's counsel additional time and to address the deficiency through informal channels before resorting to motion practice.
On July 22, 2022, Plaintiff filed a Motion to Compel production of comparative discipline files for all employees at the Elgin Facility who had received attendance-related discipline within the preceding three years. Calderwood & Harkness filed an Opposition to the Motion to Compel on August 12, 2022, arguing that the request was overbroad, unduly burdensome, and not proportional to the needs of the case, particularly in light of the fact that Plaintiff had not established a prima facie case of disparate treatment and had not identified any similarly situated comparator. Judge Vasquez-Torres heard argument on the motion on September 9, 2022, and denied Plaintiff's Motion to Compel, finding the request overbroad and not proportional to the needs of the case under Illinois Supreme Court Rule 201(c)(3).
The last substantive communication received from Plaintiff's counsel was an email from Gerald P. Hess dated October 14, 2022, in which Hess acknowledged receipt of Nexford's discovery responses and stated that he would "be in touch regarding next steps." No further communication was received from Hess, and no "next steps" were ever taken.
Calderwood & Harkness sent meet-and-confer letters to Hess on November 3, 2022, and November 28, 2022, regarding Plaintiff's failure to respond to Nexford's outstanding discovery requests and to address the upcoming fact discovery close date of December 15, 2022. Neither letter received a response. The fact discovery deadline of December 15, 2022, passed without any further discovery activity by Plaintiff. No expert disclosures were made by either party by the January 15, 2023 deadline, and the expert discovery period closed on March 1, 2023, without any expert discovery having been conducted.
C. Opposing Counsel's Disappearance and DWP Trajectory
Following the cessation of discovery activity and the lack of any communication from Plaintiff's counsel, the case entered a prolonged period of dormancy that ultimately led to its dismissal for want of prosecution. The following is a chronological summary of the relevant court proceedings:
January 12, 2023 — Status Conference. A routine status conference was held before Judge Vasquez-Torres. Gerald P. Hess failed to appear on behalf of Plaintiff. Nadia Petrov appeared on behalf of Nexford and reported on the status of the case, including the failure of Plaintiff to respond to Nexford's outstanding discovery and the absence of any communication from Plaintiff's counsel since October 2022. The Court noted Hess's non-appearance on the record and set a further status conference for March 16, 2023, directing that Plaintiff's counsel appear in person or show cause for his failure to do so.
March 16, 2023 — Status Conference. Gerald P. Hess again did not appear for the status conference. Nadia Petrov appeared on behalf of Nexford. The Court entered a rule to show cause order directed to Gerald P. Hess, ordering him to appear before the Court on April 20, 2023, and show cause why he should not be held in contempt of court for his repeated failure to appear and to prosecute the case on behalf of his client. The order was served on Hess by the Clerk of the Circuit Court at his address of record.
April 20, 2023 — Show Cause Hearing. Gerald P. Hess did not appear for the show cause hearing. No communication was received by the Court or by Calderwood & Harkness from Hess or from Maciejewski in advance of the hearing. The Court continued the matter to June 8, 2023, with a notation on the record that the case may be dismissed for want of prosecution if Plaintiff's counsel continued to fail to appear and prosecute the action.
June 8, 2023 — Status/Dismissal Hearing. Gerald P. Hess again did not appear. No appearance was made by Maciejewski or by any other attorney on behalf of Plaintiff. The Court struck the case from the trial call and set a formal dismissal hearing for August 10, 2023. The Court directed that notice of the dismissal hearing be sent to both Plaintiff Darren K. Maciejewski at his last known address and to Gerald P. Hess at Hess & Loughlin, P.C., advising that the case would be dismissed for want of prosecution if no appearance was made and no satisfactory explanation was provided.
August 10, 2023 — Dismissal for Want of Prosecution. No appearance was made by Hess, Maciejewski, or any other person on behalf of Plaintiff. The Court entered an order of dismissal for want of prosecution ("DWP"), without prejudice, pursuant to Cook County Circuit Court General Order 2.1. The order expressly provided that Plaintiff may move to vacate the dismissal within one year from the date of entry of the order — that is, on or before August 10, 2024. A copy of the DWP order is attached hereto as Attachment A.
D. Expiration of Vacatur Period
The one-year deadline to move to vacate the DWP order expired on August 10, 2024. No motion to vacate was filed by Darren K. Maciejewski or Gerald P. Hess at any point during the one-year vacatur period. No other filing of any kind — including a motion for extension of time, a motion for substitution of counsel, or any pro se filing by Maciejewski — appeared on the docket during this period.
Calderwood & Harkness conducted periodic docket checks throughout the vacatur window — specifically, on November 15, 2023; February 14, 2024; May 15, 2024; August 9, 2024; and August 12, 2024 — and confirmed the absence of any filings or activity in Case No. 2022-L-002847 since the entry of the DWP order on August 10, 2023. A copy of the current docket sheet, reflecting no filings since August 10, 2023, is attached hereto as Attachment B.
As an additional measure, Calderwood & Harkness reviewed the records of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois ("ARDC") to determine the current registration status of Gerald P. Hess. As of the date of this memorandum, Hess's law license remains registered and active with the ARDC. There is no indication of any pending disciplinary proceeding, suspension, or disability inactive status that would explain his prolonged non-participation in this matter. However, the fact that Hess maintains an active license does not alter the procedural reality that the vacatur window has closed and the DWP is now final for purposes of the original case.
With the expiration of the one-year vacatur period, the DWP in Case No. 2022-L-002847 cannot be set aside. The case is effectively concluded as a procedural matter in the Circuit Court of Cook County, subject to the residual re-filing risk analyzed in Section III below.
III. ANALYSIS OF RESIDUAL RISK
Although the DWP is now final and the original case cannot be reinstated, the dismissal was entered without prejudice, which means that Plaintiff retains the theoretical ability to file a new complaint asserting any claim for which the applicable statute of limitations has not yet expired. This section analyzes each of the three original counts to assess the residual risk of re-filing.
A. Count I — Retaliatory Discharge (Illinois Common Law)
A claim for retaliatory discharge under Illinois common law is a tort action. Under Illinois law, the applicable statute of limitations for tort actions not otherwise specified is five years. See 735 ILCS 5/13-205. The limitations period for a retaliatory discharge claim runs from the date of the allegedly retaliatory termination. See Michael v. Precision Alliance Group, LLC, 2014 IL 117376, ¶ 31.
Maciejewski was terminated on September 24, 2021. Accordingly, the five-year statute of limitations for a common law retaliatory discharge claim will not expire until approximately September 24, 2026.
Because the DWP was entered without prejudice, Maciejewski could theoretically file a new complaint in the Circuit Court of Cook County (or any other court of competent jurisdiction) asserting a retaliatory discharge claim at any time through that date. The without-prejudice nature of the dismissal means that it does not operate as an adjudication on the merits and does not give rise to res judicata or collateral estoppel.
However, we assess the likelihood of re-filing as low based on the following considerations:
1. Complete Disengagement of Plaintiff's Counsel. Gerald P. Hess has not communicated with Calderwood & Harkness, the Court, or (so far as we are aware) his client since October 2022 — a period of nearly two years. He failed to appear at four consecutive court hearings, failed to respond to a rule to show cause, and failed to take any action whatsoever to prevent or vacate the dismissal of his client's case. This level of disengagement strongly suggests abandonment of the matter.
2. Failure to Prosecute. Plaintiff failed to respond to Nexford's discovery requests, failed to appear at scheduled court dates, failed to move to vacate the DWP within the one-year window provided by the Court, and took no steps to engage substitute counsel. The complete absence of prosecutorial activity over a period exceeding twenty months is a strong indicator that Plaintiff does not intend to pursue this matter further.
3. OSHA Closure with No Citations. OSHA's closure of Complaint No. 1734892 on August 18, 2021, with no citations and no findings of violation, substantially undermines the factual basis of Plaintiff's retaliation claims. The protected activity at the core of Plaintiff's case — his internal safety reports and OSHA complaint regarding Building C chemical storage conditions — was investigated by OSHA and found not to have merit. While the OSHA closure does not dispositively preclude a retaliatory discharge claim (because the claim focuses on the employer's motivation rather than the validity of the safety complaint), it significantly weakens Plaintiff's ability to establish a causal nexus between his protected activity and his termination, particularly in light of the well-documented legitimate basis for termination.
4. Nexford's Strong Progressive Discipline Record. Nexford's defense is supported by contemporaneous documentation of Maciejewski's attendance violations and the application of progressive discipline in accordance with the Employee Handbook. The first written warning, final written warning, and termination were each documented in writing, acknowledged by Maciejewski, and consistent with the Handbook's prescribed disciplinary framework. This documented record provides Nexford with a strong legitimate, non-retaliatory business reason defense.
5. Practical Difficulty of Securing New Counsel. Given the procedural history of this case — including the abandonment by original counsel, the failure to respond to discovery, the failure to appear at multiple court dates, and the two-year period of inactivity — it would be practically difficult for Maciejewski to locate new counsel willing to undertake representation in a re-filed action. The case's history would require new counsel to explain to any future court the circumstances surrounding the prior dismissal, and the absence of any discovery from Plaintiff would mean starting the litigation process from scratch in a case with a weakened factual foundation.
We conclude that this residual risk, while not zero, does not warrant keeping the matter file open or maintaining the litigation hold indefinitely. It does, however, warrant certain precautionary measures, including the retention of key documents through September 24, 2029 (as discussed in Section V.B) and passive monitoring through the statute of limitations expiration date (as discussed in Section VI).
B. Count II — OSHA Retaliation (29 U.S.C. § 660(c))
Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c), prohibits retaliation against employees who exercise rights protected by the Act, including the right to file complaints with OSHA. However, Section 11(c) does not create a private right of action. Rather, a complainant must file a complaint with the Secretary of Labor within thirty (30) days of the alleged retaliatory action, and enforcement is pursued by the Secretary through an action in federal district court. See 29 C.F.R. § 1977.15(d)(1).
Maciejewski was terminated on September 24, 2021. The thirty-day window for filing a Section 11(c) complaint with the Department of Labor/OSHA expired on or about October 24, 2021. There is no indication in the record — either from Plaintiff's complaint, from Plaintiff's discovery responses (which were never served), or from any other source — that Maciejewski filed a timely administrative complaint with the Department of Labor or OSHA regarding his termination. The complaint filed in the Circuit Court of Cook County did not allege the filing of such an administrative complaint, and no such complaint was referenced in any communication from Plaintiff's counsel.
Accordingly, this claim is almost certainly time-barred and cannot be re-filed, either as a new court action or through the administrative process. Nexford raised the affirmative defense of failure to exhaust administrative remedies as to Count II in its Answer filed April 18, 2022, and that defense would be equally available in any hypothetical new proceeding.
The risk of re-filing on this count is assessed as negligible.
C. Count III — Illinois Whistleblower Act (740 ILCS 174/1 et seq.)
The Illinois Whistleblower Act, 740 ILCS 174/1 et seq., prohibits retaliation against employees who disclose information to a government or law enforcement agency regarding a violation or suspected violation of a state or federal law, rule, or regulation. Claims under the Whistleblower Act are subject to a one-year statute of limitations from the date of the retaliatory action. See 740 ILCS 174/35.
Maciejewski was terminated on September 24, 2021. The one-year statute of limitations for a Whistleblower Act claim ran from September 24, 2021, and expired on September 24, 2022. While the original complaint was timely filed on March 15, 2022, the dismissal without prejudice does not toll the statute of limitations. Because the one-year limitations period has long since expired, this claim cannot be re-filed as a new action.
The risk of re-filing on this count is assessed as none.
D. Overall Risk Assessment
Of the three counts in the original complaint, only Count I — the Illinois common law retaliatory discharge claim — remains theoretically viable for re-filing, and only through approximately September 24, 2026. Counts II and III are time-barred and present no risk of re-filing.
The practical likelihood of a new complaint being filed on Count I is assessed as very low, for the reasons set forth in Section III.A above.
In the unlikely event that a new action were filed, Nexford would retain strong defenses. Most significantly, Nexford would assert the defense of legitimate non-retaliatory business reason based on the thoroughly documented progressive discipline record. Additionally, OSHA's finding of no violation in response to Complaint No. 1734892 would undermine any claim of causal connection between the protected activity and the termination. Nexford could also assert the after-acquired evidence doctrine if any additional evidence of performance or conduct issues came to light during discovery.
For reference, the internal worst-case exposure estimate prepared by Calderwood & Harkness in April 2022 at the outset of the litigation was $285,000, comprising the following components:
However, we note that actual exposure in any re-filed action would likely be materially lower than the April 2022 estimate. The passage of time, the procedural history of abandonment by Plaintiff's counsel, the absence of any discovery from Plaintiff, and the practical difficulty of securing new counsel all diminish the realistic exposure. Moreover, any new action would be subject to an aggressive early dispositive strategy, as discussed further in Section V.E below.
Recommendation. Based on the foregoing analysis, we conclude that the residual risk is sufficiently low to support formal closure of the Calderwood & Harkness matter file, with the caveat that Nexford should maintain awareness that the common law retaliatory discharge statute of limitations does not expire until September 24, 2026. Specific recommendations regarding document retention, monitoring, and contingency planning are set forth in Sections V and VI below.
IV. FEES AND BUDGET SUMMARY
The following is a summary of the fees and costs incurred by Calderwood & Harkness in connection with the defense of Maciejewski v. Nexford Industrial Holdings Inc. through the active litigation period:
Total Fees Incurred: $62,322.50
The fees break down by timekeeper as follows:
A detailed fee summary broken down by timekeeper, activity category, and billing period is attached hereto as Attachment C.
The agreed pre-trial litigation budget cap for this matter, as established at the outset of the engagement and approved by Tara Svendsen and Verdant Mutual Insurance Company, was $175,000. Total fees incurred of $62,322.50 represent approximately 35.6% of the authorized budget, leaving a remaining budget of approximately $112,677.50. The matter was resolved well within the authorized budget parameters, primarily as a result of the case's early procedural termination through the DWP process.
Minimal additional fees are anticipated for closure activities. These activities include the preparation of this memorandum, the preparation and transmittal of the closure notification to Verdant Mutual Insurance Company, coordination with Nexford regarding the release of the litigation hold, and administrative file closure procedures. We estimate these additional fees at less than $3,000 in the aggregate, and we will endeavor to minimize costs in completing these final tasks.
Insurance Coverage. Nexford's defense in this matter was covered under Nexford's employment practices liability insurance ("EPLI") policy with Verdant Mutual Insurance Company, Policy No. EPLI-VM-2021-04782. The policy provides for a self-insured retention ("SIR") of $50,000 applicable to defense costs. The total fees incurred of approximately $62,300 exceed the SIR by approximately $12,300. Accordingly, defense costs above the $50,000 SIR have been billed to and paid by Verdant Mutual in accordance with the policy terms. No indemnity payment was required at any point during the litigation, as no settlement or judgment was entered. Coverage was provided subject to Verdant Mutual's standard reservation of rights, which did not ultimately impact the defense or outcome of the matter.
V. RECOMMENDATIONS
A. Formal Closure of Calderwood & Harkness Matter File
We recommend that Calderwood & Harkness formally close its matter file for Maciejewski v. Nexford Industrial Holdings Inc., Case No. 2022-L-002847. Upon closure, the engagement team — Bernard Crawford (Responsible Partner), Renata Vasquez (Billing Partner), Nadia Petrov (Lead Associate), and James Underwood (Junior Associate) — will be released from the matter.
All work product, correspondence, pleadings, discovery materials, and other documents generated or maintained in connection with this representation will be retained by Calderwood & Harkness in accordance with the firm's standard file retention policies. Under those policies, closed litigation matter files are retained for a minimum of seven years from the date of closure, after which they are eligible for destruction in accordance with the firm's records management procedures. Given the residual risk discussed in Section III.A above, we recommend that Calderwood & Harkness retain the file for this matter for a minimum of seven years from the date of closure or until September 24, 2029, whichever is later, to ensure that the file remains available through the expiration of the statute of limitations for Count I plus an adequate buffer period.
Upon approval of this recommendation, Calderwood & Harkness will process the closure through its matter management system and will confirm closure in writing to Nexford's General Counsel.
B. Release of Litigation Hold
We recommend releasing the litigation hold that has been in place since April 1, 2022. The litigation hold was implemented promptly following Nexford's receipt of the complaint and Calderwood & Harkness's engagement in this matter, and it has remained in effect throughout the pendency of the case and the one-year vacatur period.
The following key custodians should be notified of the release of the litigation hold:
• Frank Bosch, Plant Manager, Nexford Elgin Facility
• Catherine "Cat" Donnelly, Vice President, Human Resources
• Liam Gallagher, Director, Environmental Health & Safety ("EHS")
• Tara Svendsen, General Counsel
While the litigation hold is being released, we recommend that Nexford retain the following categories of documents and ESI for a minimum of three years beyond the expiration of the statute of limitations for Count I — that is, through at least September 24, 2029 — to provide an adequate buffer in the unlikely event of a re-filing:
1. Darren K. Maciejewski's complete personnel file, including all employment application materials, performance reviews, compensation records, and separation documentation.
2. All attendance and progressive discipline records related to Maciejewski, including the first written warning dated May 24, 2021, the final written warning dated August 2, 2021, the documentation of the unexcused absence on September 20, 2021, and the termination documentation dated September 24, 2021.
3. The EHS Department's May 3, 2021 report on Building C chemical storage conditions at the Elgin Facility.
4. All correspondence with OSHA regarding Complaint No. 1734892, including the initial complaint notification, the inspection report and findings from the July 12, 2021 inspection, and the August 18, 2021 closure letter.
5. All internal communications regarding Maciejewski's termination, including emails, memoranda, and notes of meetings among Frank Bosch, Catherine Donnelly, Liam Gallagher, and other personnel involved in the termination decision.
6. The relevant portions of Employee Handbook § 4.3 (Attendance and Tardiness Policy) as in effect during Maciejewski's employment, including any revisions or amendments to that section during the relevant period.
Other custodial documents and ESI not specifically identified above — including documents held by custodians who were identified in the litigation hold but whose documents are not within the categories listed above — may be managed and disposed of in accordance with Nexford's standard document retention and information governance policies following the release of the hold. We recommend that Catherine Donnelly coordinate with Nexford's IT and records management departments to ensure that the specified retention categories are properly identified and preserved, and that the release of the hold is communicated to all affected custodians in writing with clear instructions.
C. Notification to Verdant Mutual Insurance Company
We recommend that Calderwood & Harkness prepare and send a formal closure notification to Brianna Choi, Claims Adjuster, Verdant Mutual Insurance Company, at 800 North Plankinton Avenue, Milwaukee, Wisconsin 53203, requesting closure of the EPLI claim under Policy No. EPLI-VM-2021-04782.
The closure notification should summarize the following key information:
• The DWP order entered by Judge Vasquez-Torres on August 10, 2023, dismissing the case without prejudice.
• The expiration of the one-year vacatur window on August 10, 2024, without any motion to vacate or other filing by Plaintiff or Plaintiff's counsel.
• The residual risk analysis regarding the common law retaliatory discharge statute of limitations, which does not expire until approximately September 24, 2026, and the assessment that the risk of re-filing is low.
• Total defense costs incurred of approximately $62,322.50, of which $50,000 was within the self-insured retention and approximately $12,322.50 was billed to and paid by Verdant Mutual.
• The recommendation for closure of the EPLI claim, with a notation that if a new action is filed before September 24, 2026, Nexford will promptly notify Verdant Mutual and tender the new action for coverage under the applicable policy.
• Confirmation that no indemnity payment was required and that no settlement or judgment was entered in connection with this matter.
• Confirmation that coverage was provided subject to a reservation of rights and that no coverage dispute arose during the course of the representation.
A draft of the closure notification letter to Verdant Mutual is attached hereto as Attachment D for Nexford's review and approval prior to transmittal.
D. Final Report to Veltrano Capital Partners
We recommend that Tara Svendsen, in her capacity as General Counsel of Nexford Industrial Holdings Inc., provide a final litigation report to Malcolm Driscoll, Operating Partner, Harborview Partners, located at 401 South Tryon Street, Suite 2800, Charlotte, North Carolina 28202. This report is recommended in accordance with Veltrano's portfolio company governance requirement that Nexford provide quarterly litigation exposure reports on all matters with potential exposure exceeding $50,000.
The final report to Veltrano should confirm the following:
• The matter of Maciejewski v. Nexford Industrial Holdings Inc., Case No. 2022-L-002847, has concluded via dismissal for want of prosecution.
• The one-year vacatur period expired on August 10, 2024, without any action by Plaintiff or Plaintiff's counsel.
• No settlement payment or judgment was entered. The matter concluded without any financial exposure to Nexford beyond defense costs.
• Total defense costs incurred were approximately $62,322.50, of which $50,000 was within the EPLI self-insured retention and the balance was covered by Verdant Mutual Insurance Company under Policy No. EPLI-VM-2021-04782.
• The EPLI claim closure process is underway with Verdant Mutual.
• Residual risk is assessed as low, with a notation that the five-year statute of limitations for the Illinois common law retaliatory discharge claim (Count I) does not expire until approximately September 24, 2026. Only this one count of the original three-count complaint remains theoretically viable for re-filing.
• Calderwood & Harkness has recommended, and Nexford's General Counsel has approved (pending confirmation), the formal closure of the outside counsel matter file.
Going forward, this matter need not be included in Nexford's quarterly litigation exposure reports to Veltrano Capital Partners. If, unexpectedly, a new action is filed before the statute of limitations expires, Nexford would of course report the new matter to Veltrano in accordance with its standard reporting obligations.
E. Decision Against Affirmatively Seeking Dismissal with Prejudice or Fee Recovery
Calderwood & Harkness has carefully considered whether it would be in Nexford's interest to file a motion to convert the without-prejudice DWP to a dismissal with prejudice, or to seek recovery of attorneys' fees and costs from Plaintiff or Plaintiff's counsel under applicable court rules, statutory provisions, or the court's inherent authority. After thorough analysis, we recommend against pursuing either avenue.
Our recommendation is based on the following strategic and practical considerations:
1. Risk of Re-Engaging a Dormant Adversary. Filing any motion in Case No. 2022-L-002847 would require service on Plaintiff and Plaintiff's counsel and would necessarily draw attention to the case at a time when inaction serves Nexford's interests. The current posture — a DWP with an expired vacatur period and a dormant opponent — is highly favorable to Nexford. Any affirmative action by Nexford risks prompting Plaintiff or his counsel to re-engage with the matter, potentially including the filing of a new complaint while the statute of limitations for Count I remains open.
2. Disproportionate Cost Relative to Potential Recovery. The cost of preparing and litigating a motion for dismissal with prejudice or a fee petition — including the briefing, the court appearance, and any subsequent proceedings — would likely exceed any realistic recovery of fees from Plaintiff or Plaintiff's counsel. Gerald P. Hess practices with a small firm in Berwyn, Illinois, and Maciejewski is a former hourly supervisor. The practical collectibility of any fee award is uncertain at best.
3. Sufficiently Low Residual Risk. As analyzed in Section III above, the residual risk from the case in its current posture is sufficiently low that the strategic risk of stirring the matter is not justified. Only one count remains theoretically viable for re-filing, the factual foundation for that claim is weak, and the practical likelihood of re-filing is assessed as very low.
4. Risk of Prompting Counsel Re-Engagement or Referral. ARDC records confirm that Gerald P. Hess maintains an active law license despite his prolonged non-participation in this matter. Service of any motion on Hess could prompt him to re-engage with the case or, alternatively, to refer the matter to another attorney. Either outcome could lead to the filing of a new complaint on Count I before the statute of limitations expires, an outcome that would be adverse to Nexford's interests even if the new complaint were ultimately defeated on the merits.
For all of these reasons, we recommend that Nexford refrain from taking any affirmative action in the Circuit Court of Cook County with respect to Case No. 2022-L-002847.
Contingency Planning. If, unexpectedly, a new complaint is filed by Maciejewski — whether through Hess, through new counsel, or pro se — at any time before September 24, 2026, Nexford should immediately notify Calderwood & Harkness and Verdant Mutual Insurance Company. In that event, Calderwood & Harkness would recommend an aggressive early dispositive strategy centered on a motion for summary judgment. The factual record supporting Nexford's defense is strong, particularly the documented progressive discipline, the OSHA closure with no citations, and the absence of evidence of causal connection between the protected activity and the termination. The procedural history of the prior case — including Plaintiff's failure to respond to discovery, failure to appear at four consecutive court dates, and failure to prosecute — would also be relevant to credibility and damages issues, even though it would not be directly applicable as a defense in a new action.
VI. MONITORING THROUGH STATUTE OF LIMITATIONS EXPIRATION
Although the matter file will be formally closed, Calderwood & Harkness recommends that Nexford's General Counsel maintain a calendared reminder for September 24, 2026, the date on which the five-year statute of limitations for the Illinois common law retaliatory discharge claim expires. Until that date, Nexford should remain passively aware of the possibility — however remote — that a new complaint could be filed.
As a professional courtesy and at no additional charge to Nexford, Calderwood & Harkness will conduct a final docket check in both the Circuit Court of Cook County and the United States District Court for the Northern District of Illinois at or around September 24, 2026, to confirm that no new filing has been made by Maciejewski or on his behalf. Calderwood & Harkness will notify Nexford's General Counsel of the results of that final docket check.
If at any time before September 24, 2026, Nexford becomes aware of any communication from Darren K. Maciejewski, Gerald P. Hess, or any other attorney or agent regarding this matter — including any demand letter, new complaint, subpoena, or informal inquiry — Nexford should immediately notify Calderwood & Harkness so that appropriate responsive action can be evaluated and taken promptly. Time-sensitive issues could arise, including the need to file an appearance or responsive pleading within applicable deadlines, and early notification will ensure that Nexford's interests are fully protected.
Following the expiration of the statute of limitations on September 24, 2026, and confirmation that no new filing has been made, this matter can be considered fully and permanently closed from a litigation risk perspective.
VII. CONCLUSION
For the reasons set forth in this memorandum, Calderwood & Harkness respectfully recommends the following actions in connection with Maciejewski v. Nexford Industrial Holdings Inc., Case No. 2022-L-002847:
1. Close the Calderwood & Harkness matter file and release the engagement team from the matter.
2. Release the litigation hold that has been in place since April 1, 2022, subject to the specified retention periods through at least September 24, 2029, for the categories of documents identified in Section V.B above.
3. Notify Verdant Mutual Insurance Company to close the EPLI claim under Policy No. EPLI-VM-2021-04782, providing the final defense cost summary and residual risk analysis.
4. Deliver a final litigation report to Harborview Partners, confirming the conclusion of this matter and removing it from Nexford's quarterly litigation exposure reports going forward.
5. Refrain from affirmatively seeking dismissal with prejudice or recovery of fees and costs from Plaintiff or Plaintiff's counsel, for the strategic reasons discussed herein.
6. Maintain passive monitoring through September 24, 2026, including a calendared statute of limitations reminder and a courtesy final docket check by Calderwood & Harkness at that time.
We believe these recommendations appropriately balance the need for administrative closure and cost efficiency against the low but non-zero residual risk of re-filing on the common law retaliatory discharge claim. The overall outcome of this matter is favorable to Nexford: the case was defended at a total cost of approximately $62,300, well within the authorized budget of $175,000, and was concluded without any settlement payment, judgment, or adverse ruling on the merits.
It has been a privilege to represent Nexford Industrial Holdings Inc. in this matter. We are grateful for the confidence placed in Calderwood & Harkness by Nexford's legal and human resources teams, and we appreciate the responsiveness and cooperation of Tara Svendsen, Catherine Donnelly, and the Elgin Facility personnel throughout the course of this engagement.
Should you have any questions regarding this memorandum or any of the recommendations set forth herein, please do not hesitate to contact the undersigned or Bernard Crawford at your convenience.
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Nadia Petrov Lead Associate 227 West Monroe Street, Suite 3600 Chicago, IL 60606 Telephone: (312) 555-4200
Email: npetrov@calderwoodharkness.com
Reviewed and Approved:
By: ________
Bernard Crawford Responsible Partner 227 West Monroe Street, Suite 3600 Chicago, IL 60606 Telephone: (312) 555-4100
Email: bcrawford@calderwoodharkness.com
ENCLOSURES / ATTACHMENTS
The following documents are enclosed with this memorandum:
Attachment A: Copy of the August 10, 2023 Order of Dismissal for Want of Prosecution (DWP), Maciejewski v. Nexford Industrial Holdings Inc., Case No. 2022-L-002847, Circuit Court of Cook County, Illinois, County Department, Law Division, entered by the Honorable Helena R. Vasquez-Torres.
Attachment B: Docket Sheet for Case No. 2022-L-002847, Circuit Court of Cook County, reflecting no filings since August 10, 2023 (printed August 14, 2024).
Attachment C: Fee Summary — Maciejewski v. Nexford Industrial Holdings Inc. — Breakdown by Timekeeper, Activity Category, and Billing Period (Calderwood & Harkness LLP Matter No. 1020-00001).
Attachment D: Draft Closure Notification Letter to Verdant Mutual Insurance Company, addressed to Brianna Choi, Claims Adjuster, regarding Policy No. EPLI-VM-2021-04782 (for Nexford review and approval prior to transmittal).
ATTORNEY-CLIENT PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT This memorandum and all attachments are protected by the attorney-client privilege and the work product doctrine. Do not forward, copy, or distribute without the prior written consent of Calderwood & Harkness LLP.
Component | Estimated Exposure
Back pay (approximately 10 months at time of estimate) | ~$78,400
Front pay (approximately 5 months estimated) | ~$39,200
Emotional distress damages | ~$50,000
Statutory attorney's fees and costs | ~$40,000
Nominal punitive damages risk | ~$77,400
Total Estimated Worst-Case Exposure | ~$285,000
Timekeeper | Role | Hours | Rate ($/hr) | 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 | Junior Associate | 41.0 | $395.00 | $16,195.00
Total | 113.5 | $62,322.50