1005-00005 · Nexford Industrial Holdings · Discovery

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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION

DEFENDANT NEXFORD INDUSTRIAL HOLDINGS INC.'S VERIFIED RESPONSES TO PLAINTIFF CARDINAL PEAK INDUSTRIES' FIRST SET OF INTERROGATORIES

Defendant Nexford Industrial Holdings Inc. ("Nexford" or "Defendant"), by and through its undersigned attorneys of record, Calderwood & Harkness LLP, hereby submits the following Verified Responses to Plaintiff Cardinal Peak Industries' ("Cardinal Peak" or "Plaintiff") First Set of Interrogatories, Nos. 1 through 12.

Date Served: January 9, 2023

Prepared by:

CALDERWOOD & HARKNESS LLP 200 South Wacker Drive, Suite 4400 Chicago, Illinois 60606 Telephone: (312) 555-7200 Facsimile: (312) 555-7201

Priya Anand, Responsible Partner (ARDC No. 6312487) Douglas Carmichael, Billing Partner (ARDC No. 6298034) Simone Laroche, Lead Associate (ARDC No. 6351922) Jeffrey Park, Associate (ARDC No. 6370118)

Attorneys for Defendant Nexford Industrial Holdings Inc.

PRELIMINARY STATEMENT

Nexford Industrial Holdings Inc. ("Nexford" or "Defendant"), by and through its attorneys, Calderwood & Harkness LLP, hereby responds to Plaintiff Cardinal Peak Industries' ("Cardinal Peak" or "Plaintiff") First Set of Interrogatories, Nos. 1 through 12, served on or about December 7, 2022, pursuant to Illinois Supreme Court Rule 213.

These responses are made based upon information presently known to and reasonably available to Defendant after a reasonable and diligent inquiry conducted as of the date of service of these responses. Defendant has made a good faith effort to respond fully and accurately to each interrogatory based on the information currently available, including information derived from documents in Nexford's possession, custody, or control and from interviews of Nexford personnel with knowledge of the relevant facts.

Defendant expressly reserves the right to supplement, amend, or correct these responses as additional information becomes available through continued investigation, the ongoing production and review of documents, the taking of depositions, and other discovery proceedings in this action. Defendant further reserves the right to supplement these responses in accordance with its continuing obligations under Illinois Supreme Court Rule 213(i) and any applicable orders of this Court.

These responses are subject to and incorporate by reference all General Objections set forth immediately below. The assertion of any specific objection in response to a particular interrogatory does not constitute a waiver of any General Objection, nor shall the failure to assert a particular objection in response to any specific interrogatory be deemed a waiver of that objection. To the extent Defendant provides a substantive response to any interrogatory despite interposing an objection, such response is made subject to and without waiver of the stated objection.

No response or objection contained herein shall be deemed a waiver of any privilege, including but not limited to the attorney-client privilege, the work product doctrine, the joint defense or common interest privilege, or any other applicable privilege, protection, or immunity from disclosure recognized under applicable law. No response or objection herein shall be construed as a concession as to the relevance, materiality, or admissibility of any information or document referenced or provided, whether at trial, in connection with any motion, or in any other proceeding in this action.

All responses are made without prejudice to Defendant's right to assert any and all objections, claims, defenses, and affirmative defenses at trial, on summary judgment, or in any other proceeding in this action or any related proceeding.

GENERAL OBJECTIONS

Nexford hereby asserts the following General Objections, each of which is incorporated by reference into every specific response set forth below as though fully restated therein:

1. Scope and Relevance. Nexford objects to any interrogatory, or any portion thereof, that seeks information that is not relevant to any party's claim or defense in this action, or that is not proportional to the needs of the case, considering the importance of the issues at stake, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Nexford objects to the extent any interrogatory seeks information beyond the scope of permissible discovery under Illinois Supreme Court Rules 201 and 213.

2. Attorney-Client Privilege and Work Product Doctrine. Nexford objects to any interrogatory, or any portion thereof, that calls for information protected by the attorney-client privilege, the work product doctrine, or any other applicable privilege or immunity from disclosure. This objection extends to, but is not limited to, communications between Nexford and its outside counsel, Calderwood & Harkness LLP, as well as communications with and legal analysis performed by Nexford's in-house General Counsel, Deborah Whitfield. The inadvertent production or disclosure of any privileged or protected information shall not constitute a waiver of any privilege or protection, and Nexford reserves all rights under Illinois Rule of Evidence 502 and applicable law to seek the return of any inadvertently produced privileged materials.

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

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

5. Premature Expert Opinions. Nexford objects to any interrogatory that seeks expert opinions, expert analysis, or the bases and reasons for expert opinions that are properly the subject of expert disclosure deadlines and expert reports to be provided in accordance with the Court's scheduling order and Illinois Supreme Court Rule 213(f). Nexford has retained Dr. Anita Rosenthal, CPA, ABV, of Meridian Bridge Consulting LLC as its retained damages expert, and Dr. Rosenthal's opinions and the bases therefor will be disclosed at the time and in the manner prescribed by the applicable rules and scheduling orders. Nothing in these responses shall be deemed to constitute or limit the scope of Dr. Rosenthal's anticipated expert testimony.

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

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

INTERROGATORY RESPONSES

INTERROGATORY NO. 1

Interrogatory: Identify all persons with knowledge of the facts underlying Nexford's decision to reject, dispute, or only partially pay surcharge invoices issued by Cardinal Peak under the MSA during the period March 2021 through May 2022. For each such person, state his or her name, title, business address, and the general subject matter of his or her knowledge.

Objections: Nexford objects to this interrogatory to the extent it seeks identification of persons whose knowledge relates solely to privileged communications or mental impressions protected by the attorney-client privilege or the work product doctrine. Nexford further objects to the extent this interrogatory seeks to impose an obligation to identify every person with any tangential or de minimis knowledge of any fact remotely connected to Nexford's surcharge review process, as such a requirement would be overly broad and unduly burdensome. Subject to and without waiving these objections, Nexford responds as follows:

Response:

The following persons have knowledge of facts relating to Nexford's evaluation, review, and payment (or partial payment or non-payment) of surcharge invoices issued by Cardinal Peak Industries under the Master Supply Agreement dated January 15, 2020 (Reference No. MSA-NIH-CPI-2020-001) (the "MSA") during the period March 2021 through May 2022:

1. Russell Okonkwo — Vice President, Procurement, Nexford Industrial Holdings Inc., 4200 West Lakeshore Industrial Parkway, Suite 300, Waukegan, Illinois 60085. Mr. Okonkwo was the Nexford officer primarily responsible for managing the day-to-day commercial relationship with Cardinal Peak under the MSA. With respect to the surcharge dispute at issue in this litigation, Mr. Okonkwo was responsible for reviewing Surcharge Notices received under MSA Section 7.4, evaluating whether each Surcharge Notice complied with the 15-business-day delivery deadline set forth in Section 7.4(a), evaluating whether the surcharge calculations reflected in each notice were consistent with the methodology prescribed in Exhibit C to the MSA, determining whether the invoiced surcharge amounts fell within the 12% cap established by Section 7.4(c), and approving or disputing each surcharge invoice accordingly. Mr. Okonkwo maintained surcharge review logs that tracked the receipt date, contractual deadline, compliance assessment, and disposition of each Surcharge Notice received from Cardinal Peak during the disputed period. Mr. Okonkwo also communicated directly with Cardinal Peak's VP of Sales & Commercial, Natalie Gunderson, regarding disputed surcharges.

2. Lydia Tran — Chief Financial Officer, Nexford Industrial Holdings Inc., 4200 West Lakeshore Industrial Parkway, Suite 300, Waukegan, Illinois 60085. Ms. Tran oversaw the financial review and verification of surcharge invoices, authorized the issuance of payments on surcharges that were determined to be valid and compliant with the MSA's requirements, and was involved in the financial analysis supporting Nexford's determination that certain surcharges invoiced by Cardinal Peak were non-compliant with the MSA's notice, methodology, and cap provisions. Ms. Tran also supervised the preparation of financial summaries and analyses reflecting Nexford's total surcharge payments, the amounts disputed, and the bases for such disputes.

3. Martin Schaeffer — Chief Executive Officer, Nexford Industrial Holdings Inc., 4200 West Lakeshore Industrial Parkway, Suite 300, Waukegan, Illinois 60085. Mr. Schaeffer was involved in senior-level discussions and executive decision-making regarding Nexford's position on the surcharge dispute with Cardinal Peak, including but not limited to the escalation discussions contemplated by MSA Section 7.4(d) and Nexford's decision to file its Counterclaim. Mr. Schaeffer participated in internal meetings regarding the dispute and was kept apprised of the status of the surcharge review process by Mr. Okonkwo and Ms. Tran.

4. Deborah Whitfield — General Counsel, Nexford Industrial Holdings Inc., 4200 West Lakeshore Industrial Parkway, Suite 300, Waukegan, Illinois 60085. Ms. Whitfield was involved in the internal legal review and analysis of the MSA surcharge provisions, including the interpretation and application of Section 7.4 and Exhibit C. Ms. Whitfield authored Nexford's July 5, 2022 letter responding to and rejecting Cardinal Peak's formal demand for payment of the disputed surcharges. Nexford objects to any request that seeks to elicit the substance of Ms. Whitfield's legal advice, legal analysis, or privileged communications, all of which are protected by the attorney-client privilege and/or the work product doctrine.

Nexford reserves the right to supplement this response as discovery continues, as depositions are taken, and as additional persons with knowledge of relevant facts are identified through continued investigation.

INTERROGATORY NO. 2

Interrogatory: State in detail the factual basis for each affirmative defense asserted in Nexford's Answer to the Complaint filed on September 19, 2022, including identification of all facts and documents upon which Nexford relies in support of each such affirmative defense.

Objections: Nexford objects to this interrogatory as overly broad and unduly burdensome to the extent it purports to require a comprehensive and exhaustive statement of every fact, document, and evidentiary detail supporting each of the affirmative defenses asserted in Nexford's Answer. Discovery is ongoing, and the full factual basis for Nexford's affirmative defenses is still being developed through document production, depositions, and expert analysis. Nexford further objects that this interrogatory is compound, as it seeks separate and distinct factual responses regarding multiple discrete affirmative defenses, each of which constitutes a substantively independent inquiry. Additionally, Nexford objects to the extent this interrogatory seeks information protected by the attorney-client privilege or work product doctrine, including legal theories, litigation strategy, and analysis prepared in anticipation of litigation. Subject to and without waiving these objections, Nexford responds as follows:

Response:

Nexford's affirmative defenses, as pleaded in its Answer filed September 19, 2022, are supported by the following principal facts, among others that may be developed through continuing discovery:

(a) Waiver / Failure to Comply with Section 7.4(a) — 15-Business-Day Notice Requirement:

Section 7.4(a) of the MSA requires that Cardinal Peak deliver a Surcharge Notice, together with supporting documentation sufficient to verify the surcharge calculations, to Nexford "no later than fifteen (15) business days after the end of the applicable month" for which the surcharge is claimed. This provision establishes a condition precedent to Nexford's obligation to pay the invoiced surcharge for any given month. The parties expressly negotiated this deadline during the MSA negotiations, and its inclusion reflects the parties' mutual understanding that timely notice was essential to Nexford's ability to verify, plan for, and budget surcharge obligations in the ordinary course of its business operations.

For seven (7) of the fourteen (14) months during the disputed period of March 2021 through May 2022, Cardinal Peak failed to deliver the required Surcharge Notice within the 15-business-day deadline. For these seven months, the Surcharge Notices were delivered anywhere from three (3) to twenty-six (26) business days beyond the contractual deadline. In certain instances, the delay was substantial and prejudiced Nexford's ability to timely verify the surcharge calculations against published index data and to exercise its dispute rights under Section 7.4(d) within the contemplated timeframe.

The aggregate surcharge amounts invoiced by Cardinal Peak for the seven months in which the Surcharge Notices were untimely total approximately $2.18 million. Nexford's position is that Cardinal Peak's failure to comply with the notice condition precedent set forth in Section 7.4(a) constitutes a waiver of Cardinal Peak's right to collect surcharges for those months. Under well-established Illinois contract law, the failure to satisfy a condition precedent excuses the other party's performance obligation, and Nexford is therefore not liable for surcharges invoiced for any month in which Cardinal Peak failed to deliver timely notice.

The specific dates of Surcharge Notice delivery and the applicable 15-business-day deadlines for each of the fourteen months during the disputed period are documented in the surcharge review logs maintained by Russell Okonkwo, Vice President of Procurement, and will be detailed in documents produced or to be produced in this litigation. These logs were maintained in the ordinary course of Nexford's business operations as part of its standard surcharge review process.

(b) Breach by Cardinal Peak of Exhibit C Surcharge Methodology:

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

Exhibit C prescribes that surcharges are to be calculated by reference to specific, objectively verifiable, independently published indices — not by reference to Cardinal Peak's own internal cost experience. Specifically, Exhibit C requires that:

(i) The scrap surcharge component be calculated using the published Ferrous Scrap Index as reported by Platts/SPI (Steel Price Index), applied against the agreed baseline scrap cost of $340 per ton; and

(ii) The energy surcharge component be calculated using the Industrial Energy Cost Index, applied against the agreed baseline energy cost of $48 per ton.

Cardinal Peak deviated from the methodology prescribed by Exhibit C. Rather than calculating surcharges using the published Ferrous Scrap Index and the Industrial Energy Cost Index as required, Cardinal Peak instead used an internal "blended cost" metric — a proprietary calculation that incorporates Cardinal Peak's own actual raw material procurement costs, internally derived weighted averages, and internal cost allocations — to determine the surcharge amounts reflected in its Surcharge Notices. This blended cost metric is not the contractually specified published index, and its use is inconsistent with the objective, independently verifiable methodology that the parties expressly agreed to in Exhibit C.

The overstatement of surcharges resulting from Cardinal Peak's substitution of its proprietary blended cost metric for the published indices specified in Exhibit C accounts for approximately $1.47 million of the difference between the surcharges invoiced by Cardinal Peak and the amounts that would have been properly due had the Exhibit C methodology been correctly applied. This systematic deviation affected multiple months during the disputed period and consistently resulted in surcharge amounts higher than those that would have been calculated under the agreed methodology.

Cardinal Peak's use of the blended cost metric was confirmed in the deposition of Natalie Gunderson, Cardinal Peak's Vice President of Sales & Commercial, taken on January 18, 2023. During her deposition, Ms. Gunderson acknowledged that Cardinal Peak used its internal blended cost data, rather than the published Platts/SPI Ferrous Scrap Index, in calculating the scrap surcharge component reflected in the Surcharge Notices at issue. Ms. Gunderson further acknowledged that Cardinal Peak did not seek or obtain Nexford's agreement to deviate from the Exhibit C methodology.

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

The applicable Base Prices established in Section 7.2 of the MSA are $620 per ton for hot-rolled coil ("HRC") and $740 per ton for cold-rolled coil ("CRC"). Applying the 12% cap to these Base Prices yields maximum permissible monthly surcharge amounts of $74.40 per ton for HRC and $88.80 per ton for CRC.

For four (4) months during the disputed period of March 2021 through May 2022, Cardinal Peak invoiced surcharges that exceeded 12% of the applicable Base Price for one or both product categories without obtaining Nexford's prior written consent. The aggregate amount by which the surcharges invoiced by Cardinal Peak exceeded the 12% cap during these four months totals approximately $1.08 million.

At no time during the relevant period did Cardinal Peak request Nexford's written consent to exceed the 12% surcharge cap, nor did Nexford provide any such written consent. Nexford has conducted a thorough search of its records and has identified no written communication from Nexford to Cardinal Peak that could be construed as consent to exceed the cap. Accordingly, the surcharge amounts in excess of the 12% cap are not payable under the terms of the MSA.

(d) Summary of Defense Position:

Taking into account the three foregoing categories of contractual defense — untimely notice ($2.18 million), non-compliant methodology ($1.47 million), and cap exceedance ($1.08 million) — and acknowledging that some overlap exists among these categories (as certain months during the disputed period are affected by more than one deficiency), Nexford's position is that its total valid surcharge obligation for the disputed period is approximately $1.47 million. Because Nexford has already paid $1.68 million in surcharges, Nexford contends that it has, at most, an additional obligation of approximately $0.21 million beyond the amounts already paid — or, alternatively, that it has overpaid by approximately $0.21 million.

Nexford's Counterclaim, filed on October 3, 2022, seeks recovery of the alleged overpayment and declaratory relief establishing the proper interpretation and application of the MSA's surcharge provisions.

INTERROGATORY NO. 3

Interrogatory: State the total amount of surcharge payments made by Nexford to Cardinal Peak during the period March 2021 through May 2022, and for each payment, identify the date of payment, the amount paid, and the specific invoice or Surcharge Notice to which the payment was applied.

Objections: Nexford objects to this interrogatory to the extent it seeks information that is already within Cardinal Peak's own possession, custody, or control through its own accounts receivable records, payment records, bank statements, and accounting systems, and to the extent it is duplicative of document requests seeking the same information. Nexford further objects to the extent this interrogatory is unduly burdensome in requiring the compilation and presentation of detailed payment-level transactional data that is more efficiently provided through document production. Subject to and without waiving these objections, Nexford responds as follows:

Response:

During the period March 2021 through May 2022, Nexford made surcharge payments to Cardinal Peak totaling approximately $1,680,000 (one million six hundred eighty thousand dollars). These payments were applied to the surcharge invoices that Nexford, after conducting its review in accordance with the process described in Nexford's response to Interrogatory No. 11, determined were compliant with the requirements of MSA Section 7.4, including the 15-business-day notice requirement of Section 7.4(a), the Exhibit C Surcharge Methodology, and the 12% surcharge cap under Section 7.4(c). Where a Surcharge Notice complied with some but not all of these requirements, Nexford paid only the portion of the invoiced surcharge that it determined to be valid and properly calculated under the MSA.

Nexford notes that it paid in full the April 2021 surcharge invoice, which is not in dispute between the parties.

A detailed breakdown of individual payment dates, individual payment amounts, and the specific surcharge invoices or Surcharge Notices to which each payment was applied is set forth in business records maintained by Nexford's accounting department under the supervision of CFO Lydia Tran, as well as in the surcharge review logs maintained by Russell Okonkwo, Vice President of Procurement. These records have been produced or will be produced in response to Cardinal Peak's First Set of Requests for Production of Documents. Pursuant to Illinois Supreme Court Rule 213(d), Nexford refers Plaintiff to those documents for the detailed payment-by-payment information requested, as the burden of deriving or ascertaining the answer from such documents is substantially the same for the party serving the interrogatory as for the party served.

For the convenience of Plaintiff and the Court, the summary-level financial information is as follows:

• Total surcharges invoiced by Cardinal Peak during the disputed period (March 2021 through May 2022): approximately $6,410,000

• Total surcharge payments made by Nexford during the disputed period: approximately $1,680,000

• Unpaid balance claimed by Cardinal Peak: approximately $4,730,000 (representing the difference between $6,410,000 invoiced and $1,680,000 paid)

Nexford disputes Cardinal Peak's entitlement to the unpaid balance of $4,730,000 on the grounds set forth in Nexford's Answer, Affirmative Defenses, and Counterclaim, and as further detailed in Nexford's responses to Interrogatory Nos. 2, 4, 5, 6, and 7 herein.

INTERROGATORY NO. 4

Interrogatory: Identify each Surcharge Notice that Nexford contends was untimely under Section 7.4(a) of the MSA, and for each such Surcharge Notice, state: (a) the month to which the Surcharge Notice relates; (b) the date on which Nexford received the Surcharge Notice; (c) the deadline by which the Surcharge Notice should have been delivered under Section 7.4(a); and (d) the surcharge amount invoiced in the Surcharge Notice.

Objections: None, subject to General Objections.

Response:

Nexford contends that Cardinal Peak failed to timely deliver Surcharge Notices for seven (7) of the fourteen (14) months during the disputed period of March 2021 through May 2022. Section 7.4(a) of the MSA requires that Cardinal Peak deliver a Surcharge Notice, together with supporting documentation, to Nexford "no later than fifteen (15) business days after the end of the applicable month." The deadline is calculated by reference to business days — i.e., Monday through Friday, excluding federal holidays — following the last calendar day of the month to which the surcharge relates.

The seven months for which the Surcharge Notices were untimely, together with the associated contractual deadlines, actual dates of receipt, and invoiced surcharge amounts, are identified in the surcharge review logs maintained by Russell Okonkwo, Vice President of Procurement, in the ordinary course of Nexford's business. For each of these seven months, Mr. Okonkwo's logs record the date on which the Surcharge Notice was received, the contractual deadline calculated in accordance with Section 7.4(a), and the number of business days by which the notice was late. As noted in Nexford's response to Interrogatory No. 2, the late notices were delivered anywhere from three (3) to twenty-six (26) business days beyond the contractual deadline.

The aggregate surcharge amount invoiced by Cardinal Peak for the seven months with untimely Surcharge Notices is approximately $2,180,000. The specific details for each of the seven untimely months — including the applicable month, the 15-business-day contractual deadline, the actual date of Nexford's receipt of the Surcharge Notice, the number of business days of delay, and the invoiced surcharge amount — are set forth in Nexford's internal records being produced in discovery and will be detailed in expert testimony by Dr. Anita Rosenthal of Meridian Bridge Consulting LLC at the appropriate time in accordance with the expert disclosure schedule.

Nexford's position is that Cardinal Peak's failure to meet the 15-business-day notice deadline established by Section 7.4(a) constitutes a failure to satisfy a condition precedent to Nexford's payment obligation for the affected months. Under Illinois law, the failure to satisfy a condition precedent excuses the other party's obligation to perform the corresponding duty. Accordingly, Nexford contends that Cardinal Peak has waived its right to collect surcharges for the seven months in which untimely Surcharge Notices were delivered, and that Nexford bears no payment obligation with respect to those surcharges.

INTERROGATORY NO. 5

Interrogatory: Describe in detail the methodology that Nexford contends should have been used by Cardinal Peak to calculate surcharges under Exhibit C of the MSA, including identification of the specific published indices, baseline costs, and calculation steps that Nexford contends Exhibit C requires.

Objections: None, subject to General Objections.

Response:

Exhibit C to the MSA, titled "Surcharge Methodology," prescribes the exclusive methodology by which Cardinal Peak is authorized to calculate raw-material surcharges to be passed through to Nexford. Nexford contends that the methodology required by Exhibit C is as follows:

1. Scrap Surcharge Component. The scrap surcharge component is to be calculated by reference to the published Ferrous Scrap Index as reported by Platts/SPI (Steel Price Index), a widely recognized, independently published steel industry index. Under Exhibit C, the parties agreed to a baseline scrap cost of $340 per ton (the "Scrap Baseline"). The scrap surcharge for any given month is determined by calculating the difference between the published Platts/SPI Ferrous Scrap Index value for the applicable monthly period and the Scrap Baseline of $340 per ton. If the published index value for a given month exceeds $340 per ton, the difference constitutes the per-ton scrap surcharge for that month. If the published index value is at or below $340 per ton, no scrap surcharge is applicable for that month.

2. Energy Surcharge Component. The energy surcharge component is to be calculated by reference to the Industrial Energy Cost Index, another independently published index tracking industrial energy costs. Under Exhibit C, the parties agreed to a baseline energy cost of $48 per ton (the "Energy Baseline"). The energy surcharge for any given month is determined by calculating the difference between the published Industrial Energy Cost Index value for the applicable monthly period and the Energy Baseline of $48 per ton. If the published index value for a given month exceeds $48 per ton, the difference constitutes the per-ton energy surcharge for that month. If the published index value is at or below $48 per ton, no energy surcharge is applicable for that month.

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

4. Calculation and Application. The surcharges calculated under the foregoing methodology are applied on a per-ton basis to the applicable product category. The MSA establishes Base Prices of $620 per ton for hot-rolled coil (HRC) and $740 per ton for cold-rolled coil (CRC), as set forth in Section 7.2. The total monthly surcharge for each product category (i.e., the sum of the scrap, energy, and any applicable alloy surcharge components) is subject to the 12% monthly cap set forth in Section 7.4(c), which limits the aggregate monthly surcharge to 12% of the applicable Base Price without prior written consent of the Buyer.

Nexford contends that Cardinal Peak deviated from the methodology prescribed by Exhibit C by substituting its own internal "blended cost" metric in place of the published Ferrous Scrap Index and, in certain months, in place of the Industrial Energy Cost Index. The blended cost metric used by Cardinal Peak is a proprietary calculation that incorporates Cardinal Peak's actual raw material procurement costs from its various suppliers, internally derived weighted averages reflecting Cardinal Peak's specific purchasing patterns and inventory positions, and internal allocation methodologies — none of which are specified in or contemplated by Exhibit C. The blended cost metric is not a published index; it is not independently verifiable by Nexford or any third party without access to Cardinal Peak's internal financial and procurement records; and its use is fundamentally inconsistent with the objective, index-based methodology that the parties expressly agreed to in Exhibit C.

The result of Cardinal Peak's substitution of its proprietary blended cost metric for the published indices was a systematic overstatement of surcharges totaling approximately $1,470,000 over the fourteen-month disputed period. In every month where the deviation occurred, Cardinal Peak's blended cost metric produced a surcharge figure higher than what the published indices would have yielded under the Exhibit C methodology.

INTERROGATORY NO. 6

Interrogatory: Identify each month during the disputed period for which Nexford contends the surcharges invoiced by Cardinal Peak exceeded the 12% cap set forth in Section 7.4(c) of the MSA, and for each such month, state: (a) the applicable Base Price for each product category; (b) the 12% cap amount; and (c) the surcharge amount invoiced by Cardinal Peak.

Objections: None, subject to General Objections.

Response:

Nexford contends that Cardinal Peak invoiced surcharges exceeding the 12% cap established by Section 7.4(c) of the MSA for four (4) months during the disputed period of March 2021 through May 2022. Section 7.4(c) provides, in relevant part: "In no event shall the aggregate monthly surcharge exceed 12% of the applicable Base Price for the relevant product category without prior written consent of Buyer."

The applicable Base Prices, as set forth in Section 7.2 of the MSA, and the corresponding 12% cap amounts are as follows:

• Hot-Rolled Coil (HRC): Base Price of $620 per ton; 12% cap = $74.40 per ton

• Cold-Rolled Coil (CRC): Base Price of $740 per ton; 12% cap = $88.80 per ton

For the four months in question, the surcharges invoiced by Cardinal Peak exceeded these per-ton cap amounts for one or both product categories. The aggregate amount by which the invoiced surcharges exceeded the 12% cap across these four months totals approximately $1,080,000. This figure represents only the excess — i.e., the amount by which the invoiced surcharges exceeded the cap, not the total surcharges invoiced for those months.

At no time during the disputed period did Cardinal Peak request or seek Nexford's prior written consent to exceed the 12% surcharge cap, nor did Nexford provide any such written consent, as confirmed in Nexford's response to Interrogatory No. 9. The absence of any written consent is documented in Nexford's records, and Nexford's search of its files has revealed no communication that could reasonably be construed as consent to exceed the cap.

The specific months during which the cap was exceeded, the per-ton surcharge amounts invoiced by Cardinal Peak for each product category in each of those months, and the calculation of the excess amounts are documented in Nexford's surcharge review logs maintained by Russell Okonkwo, Vice President of Procurement, and in the financial analysis prepared under the supervision of CFO Lydia Tran. These matters will be set forth in detail through expert testimony by Dr. Anita Rosenthal, CPA, ABV, of Meridian Bridge Consulting LLC, whose expert report will be served in accordance with the Court's expert disclosure schedule.

INTERROGATORY NO. 7

Interrogatory: State the factual basis for Nexford's contention, as set forth in its Counterclaim filed October 3, 2022, that Nexford has overpaid Cardinal Peak by approximately $210,000 in surcharges, including a description of the calculation methodology used to arrive at this figure.

Objections: Nexford objects to this interrogatory to the extent it seeks information, analysis, or mental impressions protected by the attorney-client privilege or the work product doctrine, including legal theories, litigation strategy, and attorney analysis regarding the merits and quantification of Nexford's Counterclaim. Subject to and without waiving these objections, Nexford responds as follows:

Response:

Nexford's Counterclaim, filed on October 3, 2022, asserts that Nexford has overpaid Cardinal Peak by approximately $210,000 in surcharges during the disputed period of March 2021 through May 2022. The factual basis for this contention is as follows:

Nexford's Counterclaim rests on the application of all three categories of contractual defense identified in Nexford's affirmative defenses and described in detail in Nexford's response to Interrogatory No. 2:

(1) Elimination of surcharges for untimely Surcharge Notices. As described in Nexford's response to Interrogatory Nos. 2(a) and 4, Cardinal Peak failed to deliver timely Surcharge Notices for seven (7) of the fourteen (14) disputed months, constituting a failure to satisfy the condition precedent established by Section 7.4(a). The aggregate surcharge amount invoiced for these seven months is approximately $2,180,000. Nexford contends that none of this amount is payable.

(2) Reduction of surcharges to conform with Exhibit C methodology. As described in Nexford's response to Interrogatory Nos. 2(b) and 5, Cardinal Peak deviated from the Exhibit C Surcharge Methodology by using its internal blended cost metric rather than the published Ferrous Scrap Index and Industrial Energy Cost Index. The overstatement attributable to this methodological deviation is approximately $1,470,000.

(3) Reduction of surcharges exceeding the 12% cap. As described in Nexford's response to Interrogatory Nos. 2(c) and 6, Cardinal Peak invoiced surcharges exceeding the 12% cap in Section 7.4(c) for four months without obtaining Nexford's prior written consent. The aggregate excess above the cap is approximately $1,080,000.

The total of these three categories, if considered independently and without overlap, would sum to approximately $4,730,000 — the full amount of Cardinal Peak's unpaid surcharge claim. However, Nexford acknowledges that significant overlap exists among the three defense categories, as certain months during the disputed period are affected by more than one deficiency (e.g., a Surcharge Notice for a given month may have been both untimely and calculated using the non-compliant blended cost methodology, and may also have exceeded the 12% cap).

When the overlapping deficiencies are properly accounted for and the valid surcharge amounts are calculated for each of the fourteen months by applying the correct Exhibit C methodology, eliminating surcharges for months with untimely notices, and capping surcharges at 12% of the applicable Base Price, Nexford's total valid surcharge obligation for the disputed period is approximately $1,470,000. Because Nexford has already paid $1,680,000 in surcharges during the disputed period, Nexford contends that it has overpaid Cardinal Peak by approximately $210,000 ($1,680,000 paid minus $1,470,000 owed = $210,000 overpayment).

The detailed financial analysis supporting this calculation has been performed by Nexford's financial personnel, including Chief Financial Officer Lydia Tran, and will be supported by the expert analysis and testimony of Dr. Anita Rosenthal, CPA, ABV, of Meridian Bridge Consulting LLC. Dr. Rosenthal's expert report, which will set forth her detailed calculations and the bases for her opinions, will be served in accordance with the expert disclosure schedule established by the Court.

INTERROGATORY NO. 8

Interrogatory: Identify all documents that Nexford relies upon or intends to rely upon to support its contention that Cardinal Peak used a "blended cost" methodology rather than the published indices specified in Exhibit C to the MSA for calculating surcharges during the disputed period.

Objections: Nexford objects to this interrogatory to the extent it calls for identification of documents that may constitute or reflect attorney work product, including documents prepared by or at the direction of counsel in anticipation of litigation or for trial, and to the extent it seeks to compel premature disclosure of trial strategy or litigation theories. Subject to and without waiving these objections, Nexford responds as follows:

Response:

Nexford relies upon, and at this time intends to rely upon, the following categories of documents, among others that may be identified through continuing investigation and discovery, to support its contention that Cardinal Peak used a non-compliant blended cost methodology rather than the published indices prescribed by Exhibit C:

1. The MSA and Exhibit C. The Master Supply Agreement dated January 15, 2020 (Reference No. MSA-NIH-CPI-2020-001), including Exhibit C (Surcharge Methodology). Exhibit C expressly prescribes the use of the published Ferrous Scrap Index (Platts/SPI) and the published Industrial Energy Cost Index, with agreed baseline costs of $340 per ton (scrap) and $48 per ton (energy), as the exclusive methodology for calculating surcharges. This document establishes the contractual standard against which Cardinal Peak's actual surcharge calculations are measured.

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

3. Cardinal Peak's Internal Surcharge Computation Worksheets. Internal Cardinal Peak surcharge computation worksheets, spreadsheets, and supporting work papers that have been produced or are to be produced in discovery in response to Nexford's document requests. Nexford understands, based on its review of documents produced to date and on the testimony of Natalie Gunderson, that these worksheets reflect the use of Cardinal Peak's proprietary blended cost inputs, weighted averages, and internal allocations, rather than the published index values specified in Exhibit C.

4. Published Index Data. Published Ferrous Scrap Index data as reported by Platts/SPI and published Industrial Energy Cost Index data for each of the applicable months during the disputed period. These independently published data sets demonstrate the divergence between the published index values (which should have been used under Exhibit C) and the values that Cardinal Peak actually used in calculating its surcharges. The comparison between the published index values and Cardinal Peak's stated values confirms and quantifies the systematic overstatement resulting from Cardinal Peak's use of the blended cost metric.

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

6. Deposition Testimony of Natalie Gunderson. The deposition testimony of Natalie Gunderson, Cardinal Peak's Vice President of Sales & Commercial, taken on January 18, 2023, in this action. During her deposition, Ms. Gunderson acknowledged that Cardinal Peak used its internal blended cost data, rather than the published Platts/SPI Ferrous Scrap Index, in calculating the scrap surcharge component of the Surcharge Notices during the disputed period. This testimony constitutes a direct admission by Cardinal Peak's own designated officer that the company deviated from the Exhibit C methodology.

Nexford reserves the right to supplement this response with identification of additional documents as they are identified through ongoing document production, depositions, and other discovery proceedings in this action.

INTERROGATORY NO. 9

Interrogatory: State whether Nexford at any time during the term of the MSA provided written consent to Cardinal Peak to exceed the 12% surcharge cap set forth in Section 7.4(c) of the MSA, and if so, identify the date, form, and substance of any such consent.

Objections: None, subject to General Objections.

Response:

No. At no time during the term of the MSA, including during the disputed period of March 2021 through May 2022, did Nexford provide written consent to Cardinal Peak to exceed the 12% surcharge cap set forth in Section 7.4(c) of the MSA. Nexford has conducted a reasonable and diligent search of its records, files, and communications — including records maintained by Russell Okonkwo (VP, Procurement), Lydia Tran (CFO), Martin Schaeffer (CEO), and Deborah Whitfield (General Counsel) — and is not aware of any written communication from Nexford to Cardinal Peak, in any form, that could reasonably be construed as consent to exceed the 12% surcharge cap. No such consent was requested by Cardinal Peak, and no such consent was given by Nexford, whether in writing or otherwise.

INTERROGATORY NO. 10

Interrogatory: Identify all experts that Nexford has retained or expects to retain in connection with this litigation, and for each such expert, state the expert's name, qualifications, business address, and the subject matter on which the expert is expected to testify.

Objections: Nexford objects to this interrogatory to the extent it is premature or seeks to compel expert disclosures in advance of the expert disclosure deadlines established by the Court's scheduling order and Illinois Supreme Court Rule 213(f). Nexford further objects to the extent this interrogatory seeks information regarding consulting experts retained in anticipation of litigation whose opinions are protected by the work product doctrine. Subject to and without waiving these objections, Nexford responds as follows:

Response:

Nexford has retained the following expert witness and currently expects to call this expert to testify at trial:

Dr. Anita Rosenthal, CPA, ABV — Meridian Bridge Consulting LLC, 311 South Michigan Avenue, Suite 1500, Chicago, Illinois 60604. Dr. Rosenthal is a certified public accountant and accredited business valuator with extensive experience in commercial damages analysis, contract dispute quantification, and forensic accounting in the metals and industrial supply sectors. She has been retained by Nexford to perform a comprehensive damages analysis in connection with this litigation.

Dr. Rosenthal's expected testimony will address the following subjects:

(a) The proper application of the Exhibit C Surcharge Methodology using the published Ferrous Scrap Index (Platts/SPI) and the published Industrial Energy Cost Index, including the correct calculation of surcharges for each month during the disputed period under the contractually specified methodology;

(b) The quantification of the overstatement of surcharges resulting from Cardinal Peak's use of the non-compliant blended cost metric in place of the published indices required by Exhibit C;

(c) The quantification of surcharges attributable to months for which Cardinal Peak failed to deliver timely Surcharge Notices in compliance with the 15-business-day deadline established by Section 7.4(a);

(d) The quantification of surcharges exceeding the 12% cap established by Section 7.4(c), including the calculation of the applicable cap amounts for each product category and the identification of the specific months and amounts in excess of the cap; and

(e) Nexford's maximum surcharge exposure under the MSA for the disputed period, including the net overpayment by Nexford forming the basis of its Counterclaim.

Dr. Rosenthal's detailed opinions and the bases and reasons therefor will be set forth in her expert report, which will be served in accordance with the expert disclosure schedule established by the Court's scheduling order.

Nexford reserves the right to identify additional experts as the case progresses, including but not limited to rebuttal experts retained in response to Cardinal Peak's expert disclosures.

INTERROGATORY NO. 11

Interrogatory: Describe in detail Nexford's internal process for reviewing and approving or rejecting surcharge invoices received from Cardinal Peak under the MSA, including identification of the person or persons responsible for each step of the review process.

Objections: None, subject to General Objections.

Response:

Nexford's internal process for reviewing surcharge invoices received from Cardinal Peak under the MSA was as follows:

Step 1 — Receipt and Logging. Upon receipt of a Surcharge Notice from Cardinal Peak (whether received by email, mail, or other means of delivery), the Surcharge Notice was logged by Nexford's procurement department and routed to Russell Okonkwo, Vice President of Procurement. Mr. Okonkwo maintained a surcharge review log — an internal tracking document — in which the following information was recorded for each Surcharge Notice: the applicable month, the date of receipt, the surcharge amount invoiced, the product category or categories covered, and the supporting documentation provided by Cardinal Peak.

Step 2 — Timeliness Verification. Mr. Okonkwo (or a member of his procurement team under his direct supervision) would first verify whether the Surcharge Notice had been delivered within the 15-business-day deadline required by Section 7.4(a) of the MSA. This was accomplished by calculating the applicable deadline — i.e., fifteen (15) business days after the last calendar day of the month to which the surcharge relates — and comparing it to the date of actual receipt. If the Surcharge Notice was received after the deadline, the notice was flagged as untimely in the surcharge review log, and the surcharge was marked for dispute on the basis of Cardinal Peak's failure to satisfy the condition precedent.

Step 3 — Methodology Verification. Mr. Okonkwo would then review the surcharge calculations contained in the Surcharge Notice against the methodology prescribed by Exhibit C. This involved comparing Cardinal Peak's stated surcharge amounts and the underlying cost inputs cited in the supporting documentation against the published Ferrous Scrap Index data (as reported by Platts/SPI) and the published Industrial Energy Cost Index data for the applicable monthly period, applying the contractual baseline costs of $340 per ton for scrap and $48 per ton for energy. If the surcharge amounts or cost inputs reflected in the Surcharge Notice diverged from the published index values and the Exhibit C methodology, the discrepancy was noted in the surcharge review log and the affected surcharge amounts were marked for dispute or adjustment.

Step 4 — Cap Verification. Mr. Okonkwo would verify whether the aggregate monthly surcharge amounts invoiced for each product category fell within the 12% cap established by Section 7.4(c) of the MSA. This involved comparing the invoiced per-ton surcharge for each product category against the applicable cap amounts: $74.40 per ton for HRC (12% of $620) and $88.80 per ton for CRC (12% of $740). If the invoiced surcharge exceeded the cap for any product category, the excess was flagged in the surcharge review log and the affected amounts were marked for dispute.

Step 5 — Approval or Dispute. Surcharges that complied with all three requirements — timely notice under Section 7.4(a), correct Exhibit C methodology, and within the 12% cap under Section 7.4(c) — were approved for payment by Mr. Okonkwo. Surcharges that failed one or more of these requirements were disputed, either in whole or in part, depending on the nature and extent of the non-compliance.

Step 6 — Notice of Dispute. Pursuant to MSA Section 7.4(d), Nexford was required to notify Cardinal Peak of any disputed surcharge within thirty (30) calendar days of receipt of the Surcharge Notice. Mr. Okonkwo, on behalf of Nexford, timely communicated surcharge disputes to Natalie Gunderson, Cardinal Peak's VP of Sales & Commercial, within the 30-day dispute period for each of the surcharges at issue in this litigation.

Step 7 — Financial Review and Payment Authorization. For surcharges that were approved for payment, the financial review and payment authorization was overseen by Chief Financial Officer Lydia Tran. Ms. Tran's department processed the approved surcharge payments and maintained records of the payment amounts, dates, and the invoices to which payments were applied.

Step 8 — Legal Review. During the disputed period, as the surcharge dispute escalated, legal review of the surcharge issues was conducted by General Counsel Deborah Whitfield, in coordination with Mr. Okonkwo and Ms. Tran. Ms. Whitfield provided legal guidance on the interpretation of the MSA's surcharge provisions and ultimately authored Nexford's July 5, 2022 letter responding to and rejecting Cardinal Peak's formal demand for payment of the disputed surcharges. The substance of Ms. Whitfield's legal advice and analysis is protected by the attorney-client privilege.

INTERROGATORY NO. 12

Interrogatory: State whether Nexford disputes Cardinal Peak's claim for unjust enrichment as set forth in Count II of the Complaint, and if so, state in detail the factual and legal basis for such dispute.

Objections: Nexford objects to this interrogatory to the extent it calls for legal conclusions, legal theories, or attorney work product that are not properly the subject of interrogatory discovery. Nexford further objects to the extent this interrogatory seeks a comprehensive legal brief regarding the viability of Cardinal Peak's unjust enrichment claim, which is more appropriately addressed through dispositive motion practice. Subject to and without waiving these objections, Nexford responds as follows:

Response:

Yes, Nexford disputes Cardinal Peak's unjust enrichment claim as set forth in Count II of the Complaint. The factual and legal bases for Nexford's dispute are as follows:

1. Express Contract Governs the Subject Matter. The parties' respective rights and obligations with respect to the calculation, invoicing, and payment of raw-material surcharges are governed by an express, written contract — the Master Supply Agreement dated January 15, 2020 (Reference No. MSA-NIH-CPI-2020-001). The MSA specifically and comprehensively addresses the subject matter of Cardinal Peak's unjust enrichment claim: Section 7.4 establishes the notice requirements, calculation methodology, payment obligations, cap limitations, and dispute resolution procedures applicable to surcharges, and Exhibit C sets forth the detailed Surcharge Methodology. The MSA was the product of arms-length negotiations between two sophisticated commercial parties represented by counsel.

2. Unjust Enrichment Is Barred by the Express Contract. Under well-established Illinois law, a plaintiff may not maintain a claim for unjust enrichment where an express contract governs the same subject matter as the quasi-contractual claim. See, e.g., Gagnon v. Schickel, 2012 IL App (1st) 120645; Nesby v. Strathmore Life Insurance, 346 Ill. App. 3d 564, 570 (2004); Industrial Lift Truck Service Corp. v. Mitsubishi Int'l Corp., 104 Ill. App. 3d 357, 360 (1982). Because the MSA expressly and comprehensively governs the parties' respective rights and obligations regarding surcharges — the very subject matter at issue in Cardinal Peak's unjust enrichment claim — Cardinal Peak's quasi-contractual remedy is precluded as a matter of law.

3. Nexford Has Not Been Unjustly Enriched. Even if the unjust enrichment claim were not barred by the existence of the express contract, Nexford has not been "unjustly enriched" within the meaning of that doctrine. Nexford paid $1,680,000 in surcharges during the disputed period — the full amount of the surcharges that it determined, after reasonable review, were compliant with the MSA's notice, methodology, and cap requirements. To the extent Cardinal Peak invoiced additional surcharges that did not comply with the express contractual requirements of Section 7.4(a), Exhibit C, and Section 7.4(c), Nexford was under no obligation — contractual or otherwise — to pay those amounts. Nexford received no unjust benefit, windfall, or enrichment at Cardinal Peak's expense by declining to pay surcharges that Cardinal Peak was not entitled to collect under the governing contract. The steel products supplied by Cardinal Peak during the relevant period were paid for at the agreed Base Prices, and the only amounts in dispute relate to surcharges that Cardinal Peak failed to properly calculate, timely invoice, or cap in accordance with the MSA.

For these reasons, Nexford contends that Cardinal Peak's unjust enrichment claim (Count II) fails as a matter of law and fact, and Nexford will seek dismissal or summary judgment on this claim at the appropriate time.

VERIFICATION

STATE OF ILLINOIS ) ) ss. COUNTY OF LAKE )

I, Russell Okonkwo, Vice President of Procurement of Nexford Industrial Holdings Inc., having reviewed the foregoing Defendant Nexford Industrial Holdings Inc.'s Verified Responses to Plaintiff Cardinal Peak Industries' First Set of Interrogatories, state under penalties as provided by law pursuant to Section 1-109 of the Illinois Code of Civil Procedure (735 ILCS 5/1-109) that the factual statements contained therein are true and correct to the best of my knowledge, information, and belief, formed after reasonable inquiry.

________________________________________

Russell Okonkwo Vice President, Procurement Nexford Industrial Holdings Inc. 4200 West Lakeshore Industrial Parkway, Suite 300 Waukegan, Illinois 60085

Date: January 9, 2023

Subscribed and sworn to before me this 9th day of January, 2023.

________________________________________

Notary Public

My Commission Expires: ____

CERTIFICATE OF SERVICE

The undersigned, an attorney, hereby certifies that on January 9, 2023, a true and correct copy of the foregoing Defendant Nexford Industrial Holdings Inc.'s Verified Responses to Plaintiff Cardinal Peak Industries' First Set of Interrogatories was served upon the following counsel of record for Plaintiff via the Court's electronic filing system and by email:

Garrett Blackwood, Esq. Megan Hsu, Esq. Blackwood Stein & Associates LLP 717 Seventeenth Street, Suite 2200 Denver, Colorado 80202

Email: gblackwood@blackwoodstein.com

Email: mhsu@blackwoodstein.com

Attorneys for Plaintiff Cardinal Peak Industries

________________________________________

Priya Anand (ARDC No. 6312487) CALDERWOOD & HARKNESS LLP 200 South Wacker Drive, Suite 4400 Chicago, Illinois 60606 Telephone: (312)

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION
DEFENDANT NEXFORD INDUSTRIAL HOLDINGS INC.'S VERIFIED RESPONSES TO PLAINTIFF CARDINAL PEAK INDUSTRIES' FIRST SET OF INTERROGATORIES
Defendant Nexford Industrial Holdings Inc. ("Nexford" or "Defendant"), by and through its undersigned attorneys of record, Calderwood & Harkness LLP, hereby submits the following Verified Responses to Plaintiff Cardinal Peak Industries' ("Cardinal Peak" or "Plaintiff") First Set of Interrogatories, Nos. 1 through 12.
Date Served: January 9, 2023
Prepared by:
CALDERWOOD & HARKNESS LLP 200 South Wacker Drive, Suite 4400 Chicago, Illinois 60606 Telephone: (312) 555-7200 Facsimile: (312) 555-7201
Priya Anand, Responsible Partner (ARDC No. 6312487) Douglas Carmichael, Billing Partner (ARDC No. 6298034) Simone Laroche, Lead Associate (ARDC No. 6351922) Jeffrey Park, Associate (ARDC No. 6370118)
Attorneys for Defendant Nexford Industrial Holdings Inc.
PRELIMINARY STATEMENT
Nexford Industrial Holdings Inc. ("Nexford" or "Defendant"), by and through its attorneys, Calderwood & Harkness LLP, hereby responds to Plaintiff Cardinal Peak Industries' ("Cardinal Peak" or "Plaintiff") First Set of Interrogatories, Nos. 1 through 12, served on or about December 7, 2022, pursuant to Illinois Supreme Court Rule 213.
These responses are made based upon information presently known to and reasonably available to Defendant after a reasonable and diligent inquiry conducted as of the date of service of these responses. Defendant has made a good faith effort to respond fully and accurately to each interrogatory based on the information currently available, including information derived from documents in Nexford's possession, custody, or control and from interviews of Nexford personnel with knowledge of the relevant facts.
Defendant expressly reserves the right to supplement, amend, or correct these responses as additional information becomes available through continued investigation, the ongoing production and review of documents, the taking of depositions, and other discovery proceedings in this action. Defendant further reserves the right to supplement these responses in accordance with its continuing obligations under Illinois Supreme Court Rule 213(i) and any applicable orders of this Court.
These responses are subject to and incorporate by reference all General Objections set forth immediately below. The assertion of any specific objection in response to a particular interrogatory does not constitute a waiver of any General Objection, nor shall the failure to assert a particular objection in response to any specific interrogatory be deemed a waiver of that objection. To the extent Defendant provides a substantive response to any interrogatory despite interposing an objection, such response is made subject to and without waiver of the stated objection.
No response or objection contained herein shall be deemed a waiver of any privilege, including but not limited to the attorney-client privilege, the work product doctrine, the joint defense or common interest privilege, or any other applicable privilege, protection, or immunity from disclosure recognized under applicable law. No response or objection herein shall be construed as a concession as to the relevance, materiality, or admissibility of any information or document referenced or provided, whether at trial, in connection with any motion, or in any other proceeding in this action.
All responses are made without prejudice to Defendant's right to assert any and all objections, claims, defenses, and affirmative defenses at trial, on summary judgment, or in any other proceeding in this action or any related proceeding.
GENERAL OBJECTIONS
Nexford hereby asserts the following General Objections, each of which is incorporated by reference into every specific response set forth below as though fully restated therein:
1. Scope and Relevance. Nexford objects to any interrogatory, or any portion thereof, that seeks information that is not relevant to any party's claim or defense in this action, or that is not proportional to the needs of the case, considering the importance of the issues at stake, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Nexford objects to the extent any interrogatory seeks information beyond the scope of permissible discovery under Illinois Supreme Court Rules 201 and 213.
2. Attorney-Client Privilege and Work Product Doctrine. Nexford objects to any interrogatory, or any portion thereof, that calls for information protected by the attorney-client privilege, the work product doctrine, or any other applicable privilege or immunity from disclosure. This objection extends to, but is not limited to, communications between Nexford and its outside counsel, Calderwood & Harkness LLP, as well as communications with and legal analysis performed by Nexford's in-house General Counsel, Deborah Whitfield. The inadvertent production or disclosure of any privileged or protected information shall not constitute a waiver of any privilege or protection, and Nexford reserves all rights under Illinois Rule of Evidence 502 and applicable law to seek the return of any inadvertently produced privileged materials.
3. Overbreadth and Undue Burden. Nexford objects to any interrogatory that is overly broad, unduly burdensome, oppressive, or that imposes costs and obligations disproportionate to the claims and defenses at issue in this litigation. To the extent any interrogatory purports to require Nexford to compile, organize, or analyze information in a manner that goes beyond the scope of Nexford's reasonable obligations under the Illinois Supreme Court Rules, Nexford objects on the grounds of undue burden.
4. Vague and Ambiguous Terms. Nexford objects to any interrogatory that uses terms that are vague, ambiguous, undefined, or susceptible of multiple reasonable interpretations to the extent that the meaning of the interrogatory is unclear. Where Nexford has attempted to respond to such an interrogatory, it has done so based upon what it reasonably understands the interrogatory to mean, and such response shall not be deemed an admission as to the meaning of the term or terms in question.
5. Premature Expert Opinions. Nexford objects to any interrogatory that seeks expert opinions, expert analysis, or the bases and reasons for expert opinions that are properly the subject of expert disclosure deadlines and expert reports to be provided in accordance with the Court's scheduling order and Illinois Supreme Court Rule 213(f). Nexford has retained Dr. Anita Rosenthal, CPA, ABV, of Meridian Bridge Consulting LLC as its retained damages expert, and Dr. Rosenthal's opinions and the bases therefor will be disclosed at the time and in the manner prescribed by the applicable rules and scheduling orders. Nothing in these responses shall be deemed to constitute or limit the scope of Dr. Rosenthal's anticipated expert testimony.
6. Compound Interrogatories. Nexford objects to any single interrogatory that contains discrete subparts or sub-questions that, in substance, constitute separate interrogatories. To the extent any interrogatory contains such compound subparts, Nexford reserves the right to treat each discrete subpart as a separate interrogatory for purposes of applicable interrogatory limitations under Illinois Supreme Court Rule 213.
7. Reservation of Rights. These General Objections are incorporated by reference into each and every specific response below. The assertion of any specific objection in response to a particular interrogatory does not waive any General Objection, and the provision of a substantive response subject to an objection does not waive the stated objection or any applicable privilege. Nexford reserves the right to assert additional objections as warranted.
INTERROGATORY RESPONSES
INTERROGATORY NO. 1
Interrogatory: Identify all persons with knowledge of the facts underlying Nexford's decision to reject, dispute, or only partially pay surcharge invoices issued by Cardinal Peak under the MSA during the period March 2021 through May 2022. For each such person, state his or her name, title, business address, and the general subject matter of his or her knowledge.
Objections: Nexford objects to this interrogatory to the extent it seeks identification of persons whose knowledge relates solely to privileged communications or mental impressions protected by the attorney-client privilege or the work product doctrine. Nexford further objects to the extent this interrogatory seeks to impose an obligation to identify every person with any tangential or de minimis knowledge of any fact remotely connected to Nexford's surcharge review process, as such a requirement would be overly broad and unduly burdensome. Subject to and without waiving these objections, Nexford responds as follows:
Response:
The following persons have knowledge of facts relating to Nexford's evaluation, review, and payment (or partial payment or non-payment) of surcharge invoices issued by Cardinal Peak Industries under the Master Supply Agreement dated January 15, 2020 (Reference No. MSA-NIH-CPI-2020-001) (the "MSA") during the period March 2021 through May 2022:
1.  Russell Okonkwo — Vice President, Procurement, Nexford Industrial Holdings Inc., 4200 West Lakeshore Industrial Parkway, Suite 300, Waukegan, Illinois 60085. Mr. Okonkwo was the Nexford officer primarily responsible for managing the day-to-day commercial relationship with Cardinal Peak under the MSA. With respect to the surcharge dispute at issue in this litigation, Mr. Okonkwo was responsible for reviewing Surcharge Notices received under MSA Section 7.4, evaluating whether each Surcharge Notice complied with the 15-business-day delivery deadline set forth in Section 7.4(a), evaluating whether the surcharge calculations reflected in each notice were consistent with the methodology prescribed in Exhibit C to the MSA, determining whether the invoiced surcharge amounts fell within the 12% cap established by Section 7.4(c), and approving or disputing each surcharge invoice accordingly. Mr. Okonkwo maintained surcharge review logs that tracked the receipt date, contractual deadline, compliance assessment, and disposition of each Surcharge Notice received from Cardinal Peak during the disputed period. Mr. Okonkwo also communicated directly with Cardinal Peak's VP of Sales & Commercial, Natalie Gunderson, regarding disputed surcharges.
2.  Lydia Tran — Chief Financial Officer, Nexford Industrial Holdings Inc., 4200 West Lakeshore Industrial Parkway, Suite 300, Waukegan, Illinois 60085. Ms. Tran oversaw the financial review and verification of surcharge invoices, authorized the issuance of payments on surcharges that were determined to be valid and compliant with the MSA's requirements, and was involved in the financial analysis supporting Nexford's determination that certain surcharges invoiced by Cardinal Peak were non-compliant with the MSA's notice, methodology, and cap provisions. Ms. Tran also supervised the preparation of financial summaries and analyses reflecting Nexford's total surcharge payments, the amounts disputed, and the bases for such disputes.
3.  Martin Schaeffer — Chief Executive Officer, Nexford Industrial Holdings Inc., 4200 West Lakeshore Industrial Parkway, Suite 300, Waukegan, Illinois 60085. Mr. Schaeffer was involved in senior-level discussions and executive decision-making regarding Nexford's position on the surcharge dispute with Cardinal Peak, including but not limited to the escalation discussions contemplated by MSA Section 7.4(d) and Nexford's decision to file its Counterclaim. Mr. Schaeffer participated in internal meetings regarding the dispute and was kept apprised of the status of the surcharge review process by Mr. Okonkwo and Ms. Tran.
4.  Deborah Whitfield — General Counsel, Nexford Industrial Holdings Inc., 4200 West Lakeshore Industrial Parkway, Suite 300, Waukegan, Illinois 60085. Ms. Whitfield was involved in the internal legal review and analysis of the MSA surcharge provisions, including the interpretation and application of Section 7.4 and Exhibit C. Ms. Whitfield authored Nexford's July 5, 2022 letter responding to and rejecting Cardinal Peak's formal demand for payment of the disputed surcharges. Nexford objects to any request that seeks to elicit the substance of Ms. Whitfield's legal advice, legal analysis, or privileged communications, all of which are protected by the attorney-client privilege and/or the work product doctrine.
Nexford reserves the right to supplement this response as discovery continues, as depositions are taken, and as additional persons with knowledge of relevant facts are identified through continued investigation.
INTERROGATORY NO. 2
Interrogatory: State in detail the factual basis for each affirmative defense asserted in Nexford's Answer to the Complaint filed on September 19, 2022, including identification of all facts and documents upon which Nexford relies in support of each such affirmative defense.
Objections: Nexford objects to this interrogatory as overly broad and unduly burdensome to the extent it purports to require a comprehensive and exhaustive statement of every fact, document, and evidentiary detail supporting each of the affirmative defenses asserted in Nexford's Answer. Discovery is ongoing, and the full factual basis for Nexford's affirmative defenses is still being developed through document production, depositions, and expert analysis. Nexford further objects that this interrogatory is compound, as it seeks separate and distinct factual responses regarding multiple discrete affirmative defenses, each of which constitutes a substantively independent inquiry. Additionally, Nexford objects to the extent this interrogatory seeks information protected by the attorney-client privilege or work product doctrine, including legal theories, litigation strategy, and analysis prepared in anticipation of litigation. Subject to and without waiving these objections, Nexford responds as follows:
Response:
Nexford's affirmative defenses, as pleaded in its Answer filed September 19, 2022, are supported by the following principal facts, among others that may be developed through continuing discovery:
(a) Waiver / Failure to Comply with Section 7.4(a) — 15-Business-Day Notice Requirement:
Section 7.4(a) of the MSA requires that Cardinal Peak deliver a Surcharge Notice, together with supporting documentation sufficient to verify the surcharge calculations, to Nexford "no later than fifteen (15) business days after the end of the applicable month" for which the surcharge is claimed. This provision establishes a condition precedent to Nexford's obligation to pay the invoiced surcharge for any given month. The parties expressly negotiated this deadline during the MSA negotiations, and its inclusion reflects the parties' mutual understanding that timely notice was essential to Nexford's ability to verify, plan for, and budget surcharge obligations in the ordinary course of its business operations.
For seven (7) of the fourteen (14) months during the disputed period of March 2021 through May 2022, Cardinal Peak failed to deliver the required Surcharge Notice within the 15-business-day deadline. For these seven months, the Surcharge Notices were delivered anywhere from three (3) to twenty-six (26) business days beyond the contractual deadline. In certain instances, the delay was substantial and prejudiced Nexford's ability to timely verify the surcharge calculations against published index data and to exercise its dispute rights under Section 7.4(d) within the contemplated timeframe.
The aggregate surcharge amounts invoiced by Cardinal Peak for the seven months in which the Surcharge Notices were untimely total approximately $2.18 million. Nexford's position is that Cardinal Peak's failure to comply with the notice condition precedent set forth in Section 7.4(a) constitutes a waiver of Cardinal Peak's right to collect surcharges for those months. Under well-established Illinois contract law, the failure to satisfy a condition precedent excuses the other party's performance obligation, and Nexford is therefore not liable for surcharges invoiced for any month in which Cardinal Peak failed to deliver timely notice.
The specific dates of Surcharge Notice delivery and the applicable 15-business-day deadlines for each of the fourteen months during the disputed period are documented in the surcharge review logs maintained by Russell Okonkwo, Vice President of Procurement, and will be detailed in documents produced or to be produced in this litigation. These logs were maintained in the ordinary course of Nexford's business operations as part of its standard surcharge review process.
(b) Breach by Cardinal Peak of Exhibit C Surcharge Methodology:
Section 7.4 of the MSA requires that all surcharge components invoiced by Cardinal Peak be "calculated in accordance with the methodology set forth in Exhibit C (Surcharge Methodology)." Exhibit C is an integral part of the MSA and was negotiated and agreed upon by the parties as the exclusive methodology for determining the amount of any raw-material surcharge that Cardinal Peak could pass through to Nexford.
Exhibit C prescribes that surcharges are to be calculated by reference to specific, objectively verifiable, independently published indices — not by reference to Cardinal Peak's own internal cost experience. Specifically, Exhibit C requires that:
(i) The scrap surcharge component be calculated using the published Ferrous Scrap Index as reported by Platts/SPI (Steel Price Index), applied against the agreed baseline scrap cost of $340 per ton; and
(ii) The energy surcharge component be calculated using the Industrial Energy Cost Index, applied against the agreed baseline energy cost of $48 per ton.
Cardinal Peak deviated from the methodology prescribed by Exhibit C. Rather than calculating surcharges using the published Ferrous Scrap Index and the Industrial Energy Cost Index as required, Cardinal Peak instead used an internal "blended cost" metric — a proprietary calculation that incorporates Cardinal Peak's own actual raw material procurement costs, internally derived weighted averages, and internal cost allocations — to determine the surcharge amounts reflected in its Surcharge Notices. This blended cost metric is not the contractually specified published index, and its use is inconsistent with the objective, independently verifiable methodology that the parties expressly agreed to in Exhibit C.
The overstatement of surcharges resulting from Cardinal Peak's substitution of its proprietary blended cost metric for the published indices specified in Exhibit C accounts for approximately $1.47 million of the difference between the surcharges invoiced by Cardinal Peak and the amounts that would have been properly due had the Exhibit C methodology been correctly applied. This systematic deviation affected multiple months during the disputed period and consistently resulted in surcharge amounts higher than those that would have been calculated under the agreed methodology.
Cardinal Peak's use of the blended cost metric was confirmed in the deposition of Natalie Gunderson, Cardinal Peak's Vice President of Sales & Commercial, taken on January 18, 2023. During her deposition, Ms. Gunderson acknowledged that Cardinal Peak used its internal blended cost data, rather than the published Platts/SPI Ferrous Scrap Index, in calculating the scrap surcharge component reflected in the Surcharge Notices at issue. Ms. Gunderson further acknowledged that Cardinal Peak did not seek or obtain Nexford's agreement to deviate from the Exhibit C methodology.
(c) Surcharge Cap Exceedance Under Section 7.4(c):
Section 7.4(c) of the MSA provides, in relevant part: "In no event shall the aggregate monthly surcharge exceed 12% of the applicable Base Price for the relevant product category without prior written consent of Buyer." This provision establishes a ceiling on the surcharge amounts that Cardinal Peak may invoice in any given month, absent Nexford's prior written consent to exceed that ceiling.
The applicable Base Prices established in Section 7.2 of the MSA are $620 per ton for hot-rolled coil ("HRC") and $740 per ton for cold-rolled coil ("CRC"). Applying the 12% cap to these Base Prices yields maximum permissible monthly surcharge amounts of $74.40 per ton for HRC and $88.80 per ton for CRC.
For four (4) months during the disputed period of March 2021 through May 2022, Cardinal Peak invoiced surcharges that exceeded 12% of the applicable Base Price for one or both product categories without obtaining Nexford's prior written consent. The aggregate amount by which the surcharges invoiced by Cardinal Peak exceeded the 12% cap during these four months totals approximately $1.08 million.
At no time during the relevant period did Cardinal Peak request Nexford's written consent to exceed the 12% surcharge cap, nor did Nexford provide any such written consent. Nexford has conducted a thorough search of its records and has identified no written communication from Nexford to Cardinal Peak that could be construed as consent to exceed the cap. Accordingly, the surcharge amounts in excess of the 12% cap are not payable under the terms of the MSA.
(d) Summary of Defense Position:
Taking into account the three foregoing categories of contractual defense — untimely notice ($2.18 million), non-compliant methodology ($1.47 million), and cap exceedance ($1.08 million) — and acknowledging that some overlap exists among these categories (as certain months during the disputed period are affected by more than one deficiency), Nexford's position is that its total valid surcharge obligation for the disputed period is approximately $1.47 million. Because Nexford has already paid $1.68 million in surcharges, Nexford contends that it has, at most, an additional obligation of approximately $0.21 million beyond the amounts already paid — or, alternatively, that it has overpaid by approximately $0.21 million.
Nexford's Counterclaim, filed on October 3, 2022, seeks recovery of the alleged overpayment and declaratory relief establishing the proper interpretation and application of the MSA's surcharge provisions.
INTERROGATORY NO. 3
Interrogatory: State the total amount of surcharge payments made by Nexford to Cardinal Peak during the period March 2021 through May 2022, and for each payment, identify the date of payment, the amount paid, and the specific invoice or Surcharge Notice to which the payment was applied.
Objections: Nexford objects to this interrogatory to the extent it seeks information that is already within Cardinal Peak's own possession, custody, or control through its own accounts receivable records, payment records, bank statements, and accounting systems, and to the extent it is duplicative of document requests seeking the same information. Nexford further objects to the extent this interrogatory is unduly burdensome in requiring the compilation and presentation of detailed payment-level transactional data that is more efficiently provided through document production. Subject to and without waiving these objections, Nexford responds as follows:
Response:
During the period March 2021 through May 2022, Nexford made surcharge payments to Cardinal Peak totaling approximately $1,680,000 (one million six hundred eighty thousand dollars). These payments were applied to the surcharge invoices that Nexford, after conducting its review in accordance with the process described in Nexford's response to Interrogatory No. 11, determined were compliant with the requirements of MSA Section 7.4, including the 15-business-day notice requirement of Section 7.4(a), the Exhibit C Surcharge Methodology, and the 12% surcharge cap under Section 7.4(c). Where a Surcharge Notice complied with some but not all of these requirements, Nexford paid only the portion of the invoiced surcharge that it determined to be valid and properly calculated under the MSA.
Nexford notes that it paid in full the April 2021 surcharge invoice, which is not in dispute between the parties.
A detailed breakdown of individual payment dates, individual payment amounts, and the specific surcharge invoices or Surcharge Notices to which each payment was applied is set forth in business records maintained by Nexford's accounting department under the supervision of CFO Lydia Tran, as well as in the surcharge review logs maintained by Russell Okonkwo, Vice President of Procurement. These records have been produced or will be produced in response to Cardinal Peak's First Set of Requests for Production of Documents. Pursuant to Illinois Supreme Court Rule 213(d), Nexford refers Plaintiff to those documents for the detailed payment-by-payment information requested, as the burden of deriving or ascertaining the answer from such documents is substantially the same for the party serving the interrogatory as for the party served.
For the convenience of Plaintiff and the Court, the summary-level financial information is as follows:
•  Total surcharges invoiced by Cardinal Peak during the disputed period (March 2021 through May 2022): approximately $6,410,000
•  Total surcharge payments made by Nexford during the disputed period: approximately $1,680,000
•  Unpaid balance claimed by Cardinal Peak: approximately $4,730,000 (representing the difference between $6,410,000 invoiced and $1,680,000 paid)
Nexford disputes Cardinal Peak's entitlement to the unpaid balance of $4,730,000 on the grounds set forth in Nexford's Answer, Affirmative Defenses, and Counterclaim, and as further detailed in Nexford's responses to Interrogatory Nos. 2, 4, 5, 6, and 7 herein.
INTERROGATORY NO. 4
Interrogatory: Identify each Surcharge Notice that Nexford contends was untimely under Section 7.4(a) of the MSA, and for each such Surcharge Notice, state: (a) the month to which the Surcharge Notice relates; (b) the date on which Nexford received the Surcharge Notice; (c) the deadline by which the Surcharge Notice should have been delivered under Section 7.4(a); and (d) the surcharge amount invoiced in the Surcharge Notice.
Objections: None, subject to General Objections.
Response:
Nexford contends that Cardinal Peak failed to timely deliver Surcharge Notices for seven (7) of the fourteen (14) months during the disputed period of March 2021 through May 2022. Section 7.4(a) of the MSA requires that Cardinal Peak deliver a Surcharge Notice, together with supporting documentation, to Nexford "no later than fifteen (15) business days after the end of the applicable month." The deadline is calculated by reference to business days — i.e., Monday through Friday, excluding federal holidays — following the last calendar day of the month to which the surcharge relates.
The seven months for which the Surcharge Notices were untimely, together with the associated contractual deadlines, actual dates of receipt, and invoiced surcharge amounts, are identified in the surcharge review logs maintained by Russell Okonkwo, Vice President of Procurement, in the ordinary course of Nexford's business. For each of these seven months, Mr. Okonkwo's logs record the date on which the Surcharge Notice was received, the contractual deadline calculated in accordance with Section 7.4(a), and the number of business days by which the notice was late. As noted in Nexford's response to Interrogatory No. 2, the late notices were delivered anywhere from three (3) to twenty-six (26) business days beyond the contractual deadline.
The aggregate surcharge amount invoiced by Cardinal Peak for the seven months with untimely Surcharge Notices is approximately $2,180,000. The specific details for each of the seven untimely months — including the applicable month, the 15-business-day contractual deadline, the actual date of Nexford's receipt of the Surcharge Notice, the number of business days of delay, and the invoiced surcharge amount — are set forth in Nexford's internal records being produced in discovery and will be detailed in expert testimony by Dr. Anita Rosenthal of Meridian Bridge Consulting LLC at the appropriate time in accordance with the expert disclosure schedule.
Nexford's position is that Cardinal Peak's failure to meet the 15-business-day notice deadline established by Section 7.4(a) constitutes a failure to satisfy a condition precedent to Nexford's payment obligation for the affected months. Under Illinois law, the failure to satisfy a condition precedent excuses the other party's obligation to perform the corresponding duty. Accordingly, Nexford contends that Cardinal Peak has waived its right to collect surcharges for the seven months in which untimely Surcharge Notices were delivered, and that Nexford bears no payment obligation with respect to those surcharges.
INTERROGATORY NO. 5
Interrogatory: Describe in detail the methodology that Nexford contends should have been used by Cardinal Peak to calculate surcharges under Exhibit C of the MSA, including identification of the specific published indices, baseline costs, and calculation steps that Nexford contends Exhibit C requires.
Objections: None, subject to General Objections.
Response:
Exhibit C to the MSA, titled "Surcharge Methodology," prescribes the exclusive methodology by which Cardinal Peak is authorized to calculate raw-material surcharges to be passed through to Nexford. Nexford contends that the methodology required by Exhibit C is as follows:
1. Scrap Surcharge Component. The scrap surcharge component is to be calculated by reference to the published Ferrous Scrap Index as reported by Platts/SPI (Steel Price Index), a widely recognized, independently published steel industry index. Under Exhibit C, the parties agreed to a baseline scrap cost of $340 per ton (the "Scrap Baseline"). The scrap surcharge for any given month is determined by calculating the difference between the published Platts/SPI Ferrous Scrap Index value for the applicable monthly period and the Scrap Baseline of $340 per ton. If the published index value for a given month exceeds $340 per ton, the difference constitutes the per-ton scrap surcharge for that month. If the published index value is at or below $340 per ton, no scrap surcharge is applicable for that month.
2. Energy Surcharge Component. The energy surcharge component is to be calculated by reference to the Industrial Energy Cost Index, another independently published index tracking industrial energy costs. Under Exhibit C, the parties agreed to a baseline energy cost of $48 per ton (the "Energy Baseline"). The energy surcharge for any given month is determined by calculating the difference between the published Industrial Energy Cost Index value for the applicable monthly period and the Energy Baseline of $48 per ton. If the published index value for a given month exceeds $48 per ton, the difference constitutes the per-ton energy surcharge for that month. If the published index value is at or below $48 per ton, no energy surcharge is applicable for that month.
3. Alloy Surcharge Component. To the extent applicable for specific product orders, alloy surcharges are likewise to be calculated using documented, verifiable, independently published indices, consistent with the overall methodology prescribed by Exhibit C. Exhibit C does not authorize the use of Cardinal Peak's internal proprietary cost data, internal weighted averages, or other non-public cost inputs as a substitute for the published indices applicable to alloy surcharges.
4. Calculation and Application. The surcharges calculated under the foregoing methodology are applied on a per-ton basis to the applicable product category. The MSA establishes Base Prices of $620 per ton for hot-rolled coil (HRC) and $740 per ton for cold-rolled coil (CRC), as set forth in Section 7.2. The total monthly surcharge for each product category (i.e., the sum of the scrap, energy, and any applicable alloy surcharge components) is subject to the 12% monthly cap set forth in Section 7.4(c), which limits the aggregate monthly surcharge to 12% of the applicable Base Price without prior written consent of the Buyer.
Nexford contends that Cardinal Peak deviated from the methodology prescribed by Exhibit C by substituting its own internal "blended cost" metric in place of the published Ferrous Scrap Index and, in certain months, in place of the Industrial Energy Cost Index. The blended cost metric used by Cardinal Peak is a proprietary calculation that incorporates Cardinal Peak's actual raw material procurement costs from its various suppliers, internally derived weighted averages reflecting Cardinal Peak's specific purchasing patterns and inventory positions, and internal allocation methodologies — none of which are specified in or contemplated by Exhibit C. The blended cost metric is not a published index; it is not independently verifiable by Nexford or any third party without access to Cardinal Peak's internal financial and procurement records; and its use is fundamentally inconsistent with the objective, index-based methodology that the parties expressly agreed to in Exhibit C.
The result of Cardinal Peak's substitution of its proprietary blended cost metric for the published indices was a systematic overstatement of surcharges totaling approximately $1,470,000 over the fourteen-month disputed period. In every month where the deviation occurred, Cardinal Peak's blended cost metric produced a surcharge figure higher than what the published indices would have yielded under the Exhibit C methodology.
INTERROGATORY NO. 6
Interrogatory: Identify each month during the disputed period for which Nexford contends the surcharges invoiced by Cardinal Peak exceeded the 12% cap set forth in Section 7.4(c) of the MSA, and for each such month, state: (a) the applicable Base Price for each product category; (b) the 12% cap amount; and (c) the surcharge amount invoiced by Cardinal Peak.
Objections: None, subject to General Objections.
Response:
Nexford contends that Cardinal Peak invoiced surcharges exceeding the 12% cap established by Section 7.4(c) of the MSA for four (4) months during the disputed period of March 2021 through May 2022. Section 7.4(c) provides, in relevant part: "In no event shall the aggregate monthly surcharge exceed 12% of the applicable Base Price for the relevant product category without prior written consent of Buyer."
The applicable Base Prices, as set forth in Section 7.2 of the MSA, and the corresponding 12% cap amounts are as follows:
•  Hot-Rolled Coil (HRC): Base Price of $620 per ton; 12% cap = $74.40 per ton
•  Cold-Rolled Coil (CRC): Base Price of $740 per ton; 12% cap = $88.80 per ton
For the four months in question, the surcharges invoiced by Cardinal Peak exceeded these per-ton cap amounts for one or both product categories. The aggregate amount by which the invoiced surcharges exceeded the 12% cap across these four months totals approximately $1,080,000. This figure represents only the excess — i.e., the amount by which the invoiced surcharges exceeded the cap, not the total surcharges invoiced for those months.
At no time during the disputed period did Cardinal Peak request or seek Nexford's prior written consent to exceed the 12% surcharge cap, nor did Nexford provide any such written consent, as confirmed in Nexford's response to Interrogatory No. 9. The absence of any written consent is documented in Nexford's records, and Nexford's search of its files has revealed no communication that could reasonably be construed as consent to exceed the cap.
The specific months during which the cap was exceeded, the per-ton surcharge amounts invoiced by Cardinal Peak for each product category in each of those months, and the calculation of the excess amounts are documented in Nexford's surcharge review logs maintained by Russell Okonkwo, Vice President of Procurement, and in the financial analysis prepared under the supervision of CFO Lydia Tran. These matters will be set forth in detail through expert testimony by Dr. Anita Rosenthal, CPA, ABV, of Meridian Bridge Consulting LLC, whose expert report will be served in accordance with the Court's expert disclosure schedule.
INTERROGATORY NO. 7
Interrogatory: State the factual basis for Nexford's contention, as set forth in its Counterclaim filed October 3, 2022, that Nexford has overpaid Cardinal Peak by approximately $210,000 in surcharges, including a description of the calculation methodology used to arrive at this figure.
Objections: Nexford objects to this interrogatory to the extent it seeks information, analysis, or mental impressions protected by the attorney-client privilege or the work product doctrine, including legal theories, litigation strategy, and attorney analysis regarding the merits and quantification of Nexford's Counterclaim. Subject to and without waiving these objections, Nexford responds as follows:
Response:
Nexford's Counterclaim, filed on October 3, 2022, asserts that Nexford has overpaid Cardinal Peak by approximately $210,000 in surcharges during the disputed period of March 2021 through May 2022. The factual basis for this contention is as follows:
Nexford's Counterclaim rests on the application of all three categories of contractual defense identified in Nexford's affirmative defenses and described in detail in Nexford's response to Interrogatory No. 2:
(1) Elimination of surcharges for untimely Surcharge Notices. As described in Nexford's response to Interrogatory Nos. 2(a) and 4, Cardinal Peak failed to deliver timely Surcharge Notices for seven (7) of the fourteen (14) disputed months, constituting a failure to satisfy the condition precedent established by Section 7.4(a). The aggregate surcharge amount invoiced for these seven months is approximately $2,180,000. Nexford contends that none of this amount is payable.
(2) Reduction of surcharges to conform with Exhibit C methodology. As described in Nexford's response to Interrogatory Nos. 2(b) and 5, Cardinal Peak deviated from the Exhibit C Surcharge Methodology by using its internal blended cost metric rather than the published Ferrous Scrap Index and Industrial Energy Cost Index. The overstatement attributable to this methodological deviation is approximately $1,470,000.
(3) Reduction of surcharges exceeding the 12% cap. As described in Nexford's response to Interrogatory Nos. 2(c) and 6, Cardinal Peak invoiced surcharges exceeding the 12% cap in Section 7.4(c) for four months without obtaining Nexford's prior written consent. The aggregate excess above the cap is approximately $1,080,000.
The total of these three categories, if considered independently and without overlap, would sum to approximately $4,730,000 — the full amount of Cardinal Peak's unpaid surcharge claim. However, Nexford acknowledges that significant overlap exists among the three defense categories, as certain months during the disputed period are affected by more than one deficiency (e.g., a Surcharge Notice for a given month may have been both untimely and calculated using the non-compliant blended cost methodology, and may also have exceeded the 12% cap).
When the overlapping deficiencies are properly accounted for and the valid surcharge amounts are calculated for each of the fourteen months by applying the correct Exhibit C methodology, eliminating surcharges for months with untimely notices, and capping surcharges at 12% of the applicable Base Price, Nexford's total valid surcharge obligation for the disputed period is approximately $1,470,000. Because Nexford has already paid $1,680,000 in surcharges during the disputed period, Nexford contends that it has overpaid Cardinal Peak by approximately $210,000 ($1,680,000 paid minus $1,470,000 owed = $210,000 overpayment).
The detailed financial analysis supporting this calculation has been performed by Nexford's financial personnel, including Chief Financial Officer Lydia Tran, and will be supported by the expert analysis and testimony of Dr. Anita Rosenthal, CPA, ABV, of Meridian Bridge Consulting LLC. Dr. Rosenthal's expert report, which will set forth her detailed calculations and the bases for her opinions, will be served in accordance with the expert disclosure schedule established by the Court.
INTERROGATORY NO. 8
Interrogatory: Identify all documents that Nexford relies upon or intends to rely upon to support its contention that Cardinal Peak used a "blended cost" methodology rather than the published indices specified in Exhibit C to the MSA for calculating surcharges during the disputed period.
Objections: Nexford objects to this interrogatory to the extent it calls for identification of documents that may constitute or reflect attorney work product, including documents prepared by or at the direction of counsel in anticipation of litigation or for trial, and to the extent it seeks to compel premature disclosure of trial strategy or litigation theories. Subject to and without waiving these objections, Nexford responds as follows:
Response:
Nexford relies upon, and at this time intends to rely upon, the following categories of documents, among others that may be identified through continuing investigation and discovery, to support its contention that Cardinal Peak used a non-compliant blended cost methodology rather than the published indices prescribed by Exhibit C:
1.  The MSA and Exhibit C. The Master Supply Agreement dated January 15, 2020 (Reference No. MSA-NIH-CPI-2020-001), including Exhibit C (Surcharge Methodology). Exhibit C expressly prescribes the use of the published Ferrous Scrap Index (Platts/SPI) and the published Industrial Energy Cost Index, with agreed baseline costs of $340 per ton (scrap) and $48 per ton (energy), as the exclusive methodology for calculating surcharges. This document establishes the contractual standard against which Cardinal Peak's actual surcharge calculations are measured.
2.  Cardinal Peak's Surcharge Notices. The Surcharge Notices and accompanying supporting documentation delivered by Cardinal Peak to Nexford during the period March 2021 through May 2022, which on their face reference Cardinal Peak's internal blended cost calculations and inputs rather than the published Ferrous Scrap Index and Industrial Energy Cost Index as required by Exhibit C. These documents demonstrate that Cardinal Peak's stated surcharge amounts were derived from its proprietary blended cost data rather than the contractually specified indices.
3.  Cardinal Peak's Internal Surcharge Computation Worksheets. Internal Cardinal Peak surcharge computation worksheets, spreadsheets, and supporting work papers that have been produced or are to be produced in discovery in response to Nexford's document requests. Nexford understands, based on its review of documents produced to date and on the testimony of Natalie Gunderson, that these worksheets reflect the use of Cardinal Peak's proprietary blended cost inputs, weighted averages, and internal allocations, rather than the published index values specified in Exhibit C.
4.  Published Index Data. Published Ferrous Scrap Index data as reported by Platts/SPI and published Industrial Energy Cost Index data for each of the applicable months during the disputed period. These independently published data sets demonstrate the divergence between the published index values (which should have been used under Exhibit C) and the values that Cardinal Peak actually used in calculating its surcharges. The comparison between the published index values and Cardinal Peak's stated values confirms and quantifies the systematic overstatement resulting from Cardinal Peak's use of the blended cost metric.
5.  Correspondence Between the Parties. Correspondence between Russell Okonkwo (Nexford VP, Procurement) and Natalie Gunderson (Cardinal Peak VP, Sales & Commercial) during the disputed period, in which Mr. Okonkwo questioned the methodology used by Cardinal Peak in specific Surcharge Notices, raised concerns about the apparent deviation from Exhibit C, and requested explanations for the discrepancies between the invoiced surcharge amounts and the amounts that would result from applying the published indices.
6.  Deposition Testimony of Natalie Gunderson. The deposition testimony of Natalie Gunderson, Cardinal Peak's Vice President of Sales & Commercial, taken on January 18, 2023, in this action. During her deposition, Ms. Gunderson acknowledged that Cardinal Peak used its internal blended cost data, rather than the published Platts/SPI Ferrous Scrap Index, in calculating the scrap surcharge component of the Surcharge Notices during the disputed period. This testimony constitutes a direct admission by Cardinal Peak's own designated officer that the company deviated from the Exhibit C methodology.
Nexford reserves the right to supplement this response with identification of additional documents as they are identified through ongoing document production, depositions, and other discovery proceedings in this action.
INTERROGATORY NO. 9
Interrogatory: State whether Nexford at any time during the term of the MSA provided written consent to Cardinal Peak to exceed the 12% surcharge cap set forth in Section 7.4(c) of the MSA, and if so, identify the date, form, and substance of any such consent.
Objections: None, subject to General Objections.
Response:
No. At no time during the term of the MSA, including during the disputed period of March 2021 through May 2022, did Nexford provide written consent to Cardinal Peak to exceed the 12% surcharge cap set forth in Section 7.4(c) of the MSA. Nexford has conducted a reasonable and diligent search of its records, files, and communications — including records maintained by Russell Okonkwo (VP, Procurement), Lydia Tran (CFO), Martin Schaeffer (CEO), and Deborah Whitfield (General Counsel) — and is not aware of any written communication from Nexford to Cardinal Peak, in any form, that could reasonably be construed as consent to exceed the 12% surcharge cap. No such consent was requested by Cardinal Peak, and no such consent was given by Nexford, whether in writing or otherwise.
INTERROGATORY NO. 10
Interrogatory: Identify all experts that Nexford has retained or expects to retain in connection with this litigation, and for each such expert, state the expert's name, qualifications, business address, and the subject matter on which the expert is expected to testify.
Objections: Nexford objects to this interrogatory to the extent it is premature or seeks to compel expert disclosures in advance of the expert disclosure deadlines established by the Court's scheduling order and Illinois Supreme Court Rule 213(f). Nexford further objects to the extent this interrogatory seeks information regarding consulting experts retained in anticipation of litigation whose opinions are protected by the work product doctrine. Subject to and without waiving these objections, Nexford responds as follows:
Response:
Nexford has retained the following expert witness and currently expects to call this expert to testify at trial:
Dr. Anita Rosenthal, CPA, ABV — Meridian Bridge Consulting LLC, 311 South Michigan Avenue, Suite 1500, Chicago, Illinois 60604. Dr. Rosenthal is a certified public accountant and accredited business valuator with extensive experience in commercial damages analysis, contract dispute quantification, and forensic accounting in the metals and industrial supply sectors. She has been retained by Nexford to perform a comprehensive damages analysis in connection with this litigation.
Dr. Rosenthal's expected testimony will address the following subjects:
(a) The proper application of the Exhibit C Surcharge Methodology using the published Ferrous Scrap Index (Platts/SPI) and the published Industrial Energy Cost Index, including the correct calculation of surcharges for each month during the disputed period under the contractually specified methodology;
(b) The quantification of the overstatement of surcharges resulting from Cardinal Peak's use of the non-compliant blended cost metric in place of the published indices required by Exhibit C;
(c) The quantification of surcharges attributable to months for which Cardinal Peak failed to deliver timely Surcharge Notices in compliance with the 15-business-day deadline established by Section 7.4(a);
(d) The quantification of surcharges exceeding the 12% cap established by Section 7.4(c), including the calculation of the applicable cap amounts for each product category and the identification of the specific months and amounts in excess of the cap; and
(e) Nexford's maximum surcharge exposure under the MSA for the disputed period, including the net overpayment by Nexford forming the basis of its Counterclaim.
Dr. Rosenthal's detailed opinions and the bases and reasons therefor will be set forth in her expert report, which will be served in accordance with the expert disclosure schedule established by the Court's scheduling order.
Nexford reserves the right to identify additional experts as the case progresses, including but not limited to rebuttal experts retained in response to Cardinal Peak's expert disclosures.
INTERROGATORY NO. 11
Interrogatory: Describe in detail Nexford's internal process for reviewing and approving or rejecting surcharge invoices received from Cardinal Peak under the MSA, including identification of the person or persons responsible for each step of the review process.
Objections: None, subject to General Objections.
Response:
Nexford's internal process for reviewing surcharge invoices received from Cardinal Peak under the MSA was as follows:
Step 1 — Receipt and Logging. Upon receipt of a Surcharge Notice from Cardinal Peak (whether received by email, mail, or other means of delivery), the Surcharge Notice was logged by Nexford's procurement department and routed to Russell Okonkwo, Vice President of Procurement. Mr. Okonkwo maintained a surcharge review log — an internal tracking document — in which the following information was recorded for each Surcharge Notice: the applicable month, the date of receipt, the surcharge amount invoiced, the product category or categories covered, and the supporting documentation provided by Cardinal Peak.
Step 2 — Timeliness Verification. Mr. Okonkwo (or a member of his procurement team under his direct supervision) would first verify whether the Surcharge Notice had been delivered within the 15-business-day deadline required by Section 7.4(a) of the MSA. This was accomplished by calculating the applicable deadline — i.e., fifteen (15) business days after the last calendar day of the month to which the surcharge relates — and comparing it to the date of actual receipt. If the Surcharge Notice was received after the deadline, the notice was flagged as untimely in the surcharge review log, and the surcharge was marked for dispute on the basis of Cardinal Peak's failure to satisfy the condition precedent.
Step 3 — Methodology Verification. Mr. Okonkwo would then review the surcharge calculations contained in the Surcharge Notice against the methodology prescribed by Exhibit C. This involved comparing Cardinal Peak's stated surcharge amounts and the underlying cost inputs cited in the supporting documentation against the published Ferrous Scrap Index data (as reported by Platts/SPI) and the published Industrial Energy Cost Index data for the applicable monthly period, applying the contractual baseline costs of $340 per ton for scrap and $48 per ton for energy. If the surcharge amounts or cost inputs reflected in the Surcharge Notice diverged from the published index values and the Exhibit C methodology, the discrepancy was noted in the surcharge review log and the affected surcharge amounts were marked for dispute or adjustment.
Step 4 — Cap Verification. Mr. Okonkwo would verify whether the aggregate monthly surcharge amounts invoiced for each product category fell within the 12% cap established by Section 7.4(c) of the MSA. This involved comparing the invoiced per-ton surcharge for each product category against the applicable cap amounts: $74.40 per ton for HRC (12% of $620) and $88.80 per ton for CRC (12% of $740). If the invoiced surcharge exceeded the cap for any product category, the excess was flagged in the surcharge review log and the affected amounts were marked for dispute.
Step 5 — Approval or Dispute. Surcharges that complied with all three requirements — timely notice under Section 7.4(a), correct Exhibit C methodology, and within the 12% cap under Section 7.4(c) — were approved for payment by Mr. Okonkwo. Surcharges that failed one or more of these requirements were disputed, either in whole or in part, depending on the nature and extent of the non-compliance.
Step 6 — Notice of Dispute. Pursuant to MSA Section 7.4(d), Nexford was required to notify Cardinal Peak of any disputed surcharge within thirty (30) calendar days of receipt of the Surcharge Notice. Mr. Okonkwo, on behalf of Nexford, timely communicated surcharge disputes to Natalie Gunderson, Cardinal Peak's VP of Sales & Commercial, within the 30-day dispute period for each of the surcharges at issue in this litigation.
Step 7 — Financial Review and Payment Authorization. For surcharges that were approved for payment, the financial review and payment authorization was overseen by Chief Financial Officer Lydia Tran. Ms. Tran's department processed the approved surcharge payments and maintained records of the payment amounts, dates, and the invoices to which payments were applied.
Step 8 — Legal Review. During the disputed period, as the surcharge dispute escalated, legal review of the surcharge issues was conducted by General Counsel Deborah Whitfield, in coordination with Mr. Okonkwo and Ms. Tran. Ms. Whitfield provided legal guidance on the interpretation of the MSA's surcharge provisions and ultimately authored Nexford's July 5, 2022 letter responding to and rejecting Cardinal Peak's formal demand for payment of the disputed surcharges. The substance of Ms. Whitfield's legal advice and analysis is protected by the attorney-client privilege.
INTERROGATORY NO. 12
Interrogatory: State whether Nexford disputes Cardinal Peak's claim for unjust enrichment as set forth in Count II of the Complaint, and if so, state in detail the factual and legal basis for such dispute.
Objections: Nexford objects to this interrogatory to the extent it calls for legal conclusions, legal theories, or attorney work product that are not properly the subject of interrogatory discovery. Nexford further objects to the extent this interrogatory seeks a comprehensive legal brief regarding the viability of Cardinal Peak's unjust enrichment claim, which is more appropriately addressed through dispositive motion practice. Subject to and without waiving these objections, Nexford responds as follows:
Response:
Yes, Nexford disputes Cardinal Peak's unjust enrichment claim as set forth in Count II of the Complaint. The factual and legal bases for Nexford's dispute are as follows:
1. Express Contract Governs the Subject Matter. The parties' respective rights and obligations with respect to the calculation, invoicing, and payment of raw-material surcharges are governed by an express, written contract — the Master Supply Agreement dated January 15, 2020 (Reference No. MSA-NIH-CPI-2020-001). The MSA specifically and comprehensively addresses the subject matter of Cardinal Peak's unjust enrichment claim: Section 7.4 establishes the notice requirements, calculation methodology, payment obligations, cap limitations, and dispute resolution procedures applicable to surcharges, and Exhibit C sets forth the detailed Surcharge Methodology. The MSA was the product of arms-length negotiations between two sophisticated commercial parties represented by counsel.
2. Unjust Enrichment Is Barred by the Express Contract. Under well-established Illinois law, a plaintiff may not maintain a claim for unjust enrichment where an express contract governs the same subject matter as the quasi-contractual claim. See, e.g., Gagnon v. Schickel, 2012 IL App (1st) 120645; Nesby v. Strathmore Life Insurance, 346 Ill. App. 3d 564, 570 (2004); Industrial Lift Truck Service Corp. v. Mitsubishi Int'l Corp., 104 Ill. App. 3d 357, 360 (1982). Because the MSA expressly and comprehensively governs the parties' respective rights and obligations regarding surcharges — the very subject matter at issue in Cardinal Peak's unjust enrichment claim — Cardinal Peak's quasi-contractual remedy is precluded as a matter of law.
3. Nexford Has Not Been Unjustly Enriched. Even if the unjust enrichment claim were not barred by the existence of the express contract, Nexford has not been "unjustly enriched" within the meaning of that doctrine. Nexford paid $1,680,000 in surcharges during the disputed period — the full amount of the surcharges that it determined, after reasonable review, were compliant with the MSA's notice, methodology, and cap requirements. To the extent Cardinal Peak invoiced additional surcharges that did not comply with the express contractual requirements of Section 7.4(a), Exhibit C, and Section 7.4(c), Nexford was under no obligation — contractual or otherwise — to pay those amounts. Nexford received no unjust benefit, windfall, or enrichment at Cardinal Peak's expense by declining to pay surcharges that Cardinal Peak was not entitled to collect under the governing contract. The steel products supplied by Cardinal Peak during the relevant period were paid for at the agreed Base Prices, and the only amounts in dispute relate to surcharges that Cardinal Peak failed to properly calculate, timely invoice, or cap in accordance with the MSA.
For these reasons, Nexford contends that Cardinal Peak's unjust enrichment claim (Count II) fails as a matter of law and fact, and Nexford will seek dismissal or summary judgment on this claim at the appropriate time.
VERIFICATION
STATE OF ILLINOIS ) ) ss. COUNTY OF LAKE )
I, Russell Okonkwo, Vice President of Procurement of Nexford Industrial Holdings Inc., having reviewed the foregoing Defendant Nexford Industrial Holdings Inc.'s Verified Responses to Plaintiff Cardinal Peak Industries' First Set of Interrogatories, state under penalties as provided by law pursuant to Section 1-109 of the Illinois Code of Civil Procedure (735 ILCS 5/1-109) that the factual statements contained therein are true and correct to the best of my knowledge, information, and belief, formed after reasonable inquiry.
________________________________________
Russell Okonkwo Vice President, Procurement Nexford Industrial Holdings Inc. 4200 West Lakeshore Industrial Parkway, Suite 300 Waukegan, Illinois 60085
Date: January 9, 2023
Subscribed and sworn to before me this 9th day of January, 2023.
________________________________________
Notary Public
My Commission Expires: ____
CERTIFICATE OF SERVICE
The undersigned, an attorney, hereby certifies that on January 9, 2023, a true and correct copy of the foregoing Defendant Nexford Industrial Holdings Inc.'s Verified Responses to Plaintiff Cardinal Peak Industries' First Set of Interrogatories was served upon the following counsel of record for Plaintiff via the Court's electronic filing system and by email:
Garrett Blackwood, Esq. Megan Hsu, Esq. Blackwood Stein & Associates LLP 717 Seventeenth Street, Suite 2200 Denver, Colorado 80202
Email: gblackwood@blackwoodstein.com
Email: mhsu@blackwoodstein.com
Attorneys for Plaintiff Cardinal Peak Industries
________________________________________
Priya Anand (ARDC No. 6312487) CALDERWOOD & HARKNESS LLP 200 South Wacker Drive, Suite 4400 Chicago, Illinois 60606 Telephone: (312)

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION

PRELIMINARY STATEMENT

GENERAL OBJECTIONS

INTERROGATORY RESPONSES

INTERROGATORY NO. 1

INTERROGATORY NO. 2

INTERROGATORY NO. 3

INTERROGATORY NO. 4

INTERROGATORY NO. 5

INTERROGATORY NO. 6

INTERROGATORY NO. 7

INTERROGATORY NO. 8

INTERROGATORY NO. 9

INTERROGATORY NO. 10

INTERROGATORY NO. 11

INTERROGATORY NO. 12

VERIFICATION

CERTIFICATE OF SERVICE

Record

Parties

Dates

Amounts