Hanwha Azdel, Inc. v. C&D Zodiac, Inc.
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 6:12-cv-00023-NKM-RSB Copies to all parties and the district court/agency. [999598539].. [14-1654]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1654
HANWHA AZDEL, INC., f/k/a Azdel, Inc.,
Plaintiff – Appellant,
v.
C&D ZODIAC, INC.,
Defendant – Appellee,
and
NEENAH TECHNICAL MATERIALS, INC.,
Movant – Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg.
Norman K. Moon, Senior
District Judge. (6:12−cv−00023−NKM−RSB)
Argued:
March 26, 2015
Decided:
June 9, 2015
Before GREGORY, KEENAN, and WYNN, Circuit Judges.
Affirmed in part, vacated in part, reversed in part, and
remanded by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Gregory and Judge Keenan joined.
ARGUED: Frank Kenneth Friedman, WOODS ROGERS, PLC, Roanoke,
Virginia, for Appellant.
Bevin Ray Alexander, Jr., FREEMAN,
DUNN, ALEXANDER, GAY, LUCY & COATES, PC, Lynchburg, Virginia;
James
W.
Evans,
CHOATE,
HALL
&
STEWART
LLP,
Boston,
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Massachusetts, for Appellees. ON BRIEF: Francis H. Casola, Erin
B. Ashwell, WOODS ROGERS, PLC, Roanoke, Virginia, for Appellant.
Robert P. Silverberg, Claire L. Shapiro, SILVERBERG, GOLDMAN &
BIKOFF, LLP, Washington, D.C.; J. Barrett Lucy, FREEMAN, DUNN,
ALEXANDER, GAY, LUCY & COATES, PC, Lynchburg, Virginia, for
Appellee C&D Zodiac, Inc.; Mark D. Cahill, Jared M. Barnes,
CHOATE, HALL & STEWART LLP, Boston, Massachusetts, for Appellee
Neenah Technical Materials, Inc.
Unpublished opinions are not binding precedent in this circuit.
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WYNN, Circuit Judge:
Hanwha
Azdel,
thermoplastic
Inc.
composite
(“Azdel”),
sheet
the
product
manufacturer
called
of
a
“Aero-Lite,”
entered into an agreement with aircraft sidewall manufacturer
C&D
Zodiac,
aircraft
Inc.
(“C&D”)
sidewalls
for
to
use
American
Aero-Lite
Airlines
to
manufacture
(“American”).
The
relationship deteriorated when the Aero-Lite sidewalls did not
live up to American’s expectations.
C&D never paid Azdel for
the sheets of Aero-Lite that it ordered or that Azdel delivered
while the parties were working together.
partner
in
Crane
&
Co.
(“Crane”),
C&D later found a
whose
product
proved
successful for use in sidewall manufacturing and met American’s
expectations.
Azdel
contract
filed
price
this
of
144
lawsuit
to
recover
sheets
of
2000
inter
alia
1)
the
grams-per-square-meter
(“gsm”) Aero-Lite it delivered to C&D and which C&D forwarded to
its
forming
facility
to
be
molded
into
sidewalls;
2)
the
contract price of the remaining sheets of Aero-Lite reflected in
C&D’s original purchase order; 3) the contract price of eight
sheets of a lighter 1320 gsm Aero-Lite product it delivered to
C&D; and 4) damages for C&D’s disclosure of Azdel’s confidential
information
to
Crane.
summary judgment.
The
parties
filed
cross-motions
for
The district court denied Azdel’s motion and
granted C&D’s motion in toto.
On appeal, Azdel challenges the
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district
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court’s
summary
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judgment
rulings
and
its
denial
of
Azdel’s motion to compel discovery of certain documents from
Crane.
We affirm the district court’s grant of summary judgment to
C&D on Azdel’s confidentiality claims, and further rule that the
district court did not err in denying Azdel’s motion to compel.
However,
we
reverse
the
district
court’s
grant
of
summary
judgment to C&D because we hold that C&D accepted the 144 sheets
of
2000
gsm
Aero-Lite
by
taking
actions
inconsistent
with
Azdel’s ownership of those sheets; accordingly, we grant summary
judgment to Azdel as to this claim.
district
court’s
grant
of
summary
We likewise reverse the
judgment
to
C&D
regarding
Azdel’s delivery of the eight sheets of 1320 gsm Aero-Lite and
grant
summary
judgment
accepted these sheets.
to
Azdel
on
this
claim
because
C&D
Finally, we hold that the district court
acted prematurely in granting summary judgment to C&D regarding
C&D’s liability under the original purchase order.
Whether C&D
terminated is a question that must be resolved by a jury.
We
therefore affirm in part, reverse in part, and vacate in part
the
district
court’s
rulings
and
termination issue.
I.
A.
4
remand
for
trial
on
the
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In
March
Understanding
work
together
Airlines.
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2008,
Azdel
(“MOU”)
to
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and
C&D
memorializing
provide
executed
the
aircraft
a
Memorandum
of
agreement
to
parties’
sidewalls
for
American
The MOU was a preliminary agreement that would govern
the parties’ relationship while they worked to establish a more
permanent contract.
Azdel was to manufacture sheets made of
2000 gsm Aero-Lite to be molded by C&D into aircraft sidewalls
for American.
The MOU also provided that the parties would work
together to develop a “next-generation Aero-Lite material” and
set out a development schedule for that product.
J.A. 2186.
The parties “anticipate[d] a 20-year commitment . . . during
which AZDEL [would] offer C&D exclusivity of supply for” various
programs.
J.A. 2185 ¶¶ 2-3.
with “Most Favored Pricing.”
Azdel also agreed to provide C&D
J.A. 2186 ¶ 5.
The parties agreed that Azdel would manufacture 2000 gsm
Aero-Lite according to a “Specification” prepared by C&D and
modified as a result of feedback from Azdel.
The Specification
was “fairly generic” and labeled as proprietary to C&D.
2033-35.
J.A.
Azdel warranted only that its product would comply
with the Specification and expressly disclaimed any warranty of
fitness for a particular purpose.
Indeed, Paragraph 9 of the
agreement stated in no uncertain terms:
The Parties agree that suitability of the Product for
the American Airlines 757 program has been extensively
tested and investigated.
AZDEL warrants only that
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Products
sold
to
C&D
will
conform
to
C&D’s
specifications in effect at the time of manufacture
and agreed in writing between AZDEL and C&D.
AZDEL
expressly disclaims any warranty of fitness for a
particular purpose.
J.A. 2189-90 ¶ 9 (emphasis added).
The MOU required C&D to provide six-month forecasts of its
Aero-Lite
“[t]he
requirements
Parties
requirements
times.”
because,
acknowledge
for
[2000
J.A. 2189.
gsm
according
that
to
the
AZDEL’s
Aero-Lite]
agreement,
supply
result
in
chain
long
lead
As a result, such forecasts were “binding
in that C&D will be committed to later issue a purchase order
for not less than the material requirements forecasted.”
2189 ¶ 7.B.
weeks
J.A.
Purchase orders were to be issued at least twelve
before
the
anticipated
ship
date.
C&D
could
make
reasonable changes in quantities or delivery dates by issuing
notice to Azdel thirty days prior to the expected delivery date.
Any other changes to purchase orders that came with less than
thirty days’ notice were subject to acceptance by Azdel.
Azdel retained “[t]itle to any shipment of the Products”
until C&D paid “all sums due to Azdel for that shipment, or
until the Product is no longer in sheet form.”
While
the
MOU
severely
limited
the
J.A. 2189 ¶ 8.B.
extent
of
Azdel’s
warranties, C&D was protected by broad termination rights, as
laid out in Paragraph 11 of the agreement:
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C.
C&D shall have the right to terminate this MOU as well
as any open orders in connection thereto if:
(i) the
material does not perform as predicted and is deemed not
suitable for C&D’s intended use, conversion, or processing;
and C&D has given the required 60 days’ notice and/or (ii)
the customer requests C&D to switch back to conventional
material/manufacturing methods.
J.A. 2190 ¶ 11.
In
addition
to
obligations
regarding
Aero-Lite,
the
confidentiality
establishing
the
the
and
MOU
purchase
required
the
parties’
rights
delivery
parties
regarding certain information.
of
and
2000
to
gsm
maintain
Paragraph 12 of
the MOU provided that the MOU itself would remain confidential,
and referenced a “separate” “Confidentiality and Non-Disclosure
Agreement”
(“NDA”)
confidentiality
that
would
obligations.
J.A.
govern
2191
certain
¶
12.
other
The
NDA
prohibited the parties from disclosing confidential information
“conspicuously labeled” as such by the party seeking to prohibit
disclosure.
J.A. 2194.
The extensive list of materials that
was subject to non-disclosure included “costs and pricing” and
“prototypes.”
J.A. 2194.
however, was not protected.
Information “in the public domain,”
J.A. 2195.
B.
On April 8, 2008, C&D issued a purchase order for 2900
sheets of 2000 gsm Aero-Lite, with deliveries staggered over
eight
months
(the
“Original
Purchase
Order”).
The
Original
Purchase Order called for an initial 40-sheet delivery on June
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11, 2008; a 110-sheet delivery on July 1, 2008; and a 550-sheet
delivery on October 1, 2008.
The order identified the initial
40-sheet delivery as a “PRE-PRODUCTION REQUIREMENT.” J.A. 2350.
The 110 sheets scheduled for delivery on July 1st were labeled
as “FOR AUG. AND SEPT. REQUIREMENT.”
J.A. 2350.
According to
Chris Willis, Azdel’s project manager for Aero-Lite, the “preproduction” label reflected that to determine the suitability of
Azdel’s Aero-Lite sheets for American, C&D would have to mold
some sheets into sidewall panels, perform initial tests, and
present a sample sidewall to American for further testing.
C&D
employees shared that understanding.
On June 5, 2008, Azdel delivered a total of 144 sheets to
C&D.
Without
testing
the
sheets
for
conformity
with
the
Specification, C&D’s Quality Department forwarded the sheets on
to C&D’s forming facility to be molded into sidewalls.
C&D
employees
not
testified
that
C&D’s
Quality
Department
did
perform tests to determine whether to reject the product because
it believed the sheets of Aero-Lite were “samples, outside of
production requirements.”
At
some
point,
J.A. 2023.
C&D
delivered were warped.
determined
that
the
sheets
Azdel
The sheets were varyingly described as
having “an extreme ‘saddle’ type curl,” J.A. 2515, and “severely
twisted,” J.A. 1706.
C&D hoped that the application of heat and
pressure during the molding process would mitigate the warpage
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problem and proceeded to mold some of the sheets of Aero-Lite
into sidewalls.
Unfortunately, as one Azdel employee put it,
the “[w]arped sheets mold[ed] into warped parts.”
J.A. 1114.
C&D took a sample sidewall to American for a fit check in
late June 2008.
with C&D’s
Jay Zoller of American outlined eleven issues
product,
including
the
“slightly twisted” and too heavy.
fact
that
the
J.A. 1704.
panels
were
Zoller asked C&D
to provide American with an action plan to address the issues he
identified.
existing
C&D sent a Change Request to American, asking that
Aero-Lite
conventional
sidewalls
“crushcore”
be
used
in
product
that
place
C&D
had
of
C&D’s
previously
manufactured and used until a lighter weight Aero-Lite product
could be developed.
The request was never signed by American.
C&D thus returned to providing conventional crushcore panels to
American.
On
July
2,
2008,
C&D
sent
a
detailed
e-mail
to
Azdel
outlining American’s problems with the sidewalls and noting that
the 2000 gsm sheets of Aero-Lite “definitely can not be used for
sidewall production.”
C&D
was
“investigating
J.A. 886.
a
number
The e-mail also stated that
of
projects
suitable application for [the 2000 gsm] sheets.”
to
find
a
J.A. 886.
more
C&D
further indicated that it would “continue to work with Azdel on
processing the curled material as time permits so that we all
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get a better understanding of it, and can eliminate [the curl].”
J.A. 887.
When
other
asked
Azdel
about
the
employees,
status
Willis
of
of
the
Azdel
October
stated
delivery
“C&D
has
by
not
committed to taking anyone [sic] 2000 gsm at this time. . . .
All
of
this
product
should
be
put
on
hold.”
J.A.
1480.
According to Willis, he had this impression based on previous
conversations
believed
that
with
the
C&D
personnel.
purchase
order
Other
had
employees
not
been
at
Azdel
terminated,
stating, “If they want to cancel their current orders they must
update
their
release.
All
orders
remain
customer cancels or revises their release.”
valid
until
the
J.A. 1478.
In
response to Azdel’s request for a clarification of the status of
the order, C&D issued a revised purchase order on September 17,
2008, zeroing out all installments with a “0.00” notation (the
“Revised Purchase Order”).
J.A 2353-54.
Twelve days later, C&D generated reports indicating that
the 2000 gsm Aero-Lite had been nonconforming, i.e., did not
meet the Specification.
But C&D never provided those reports to
Azdel. 1
Thereafter, Azdel manufactured some lighter weight sheets
of
Aero-Lite,
and
C&D
molded
1
and
tested
several
of
these
C&D conceded below that whether Azdel’s product conformed
to C&D’s specifications is a disputed issue of material fact.
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iterations.
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On April 24, 2009, C&D ordered twenty sample sheets
of 1320 gsm Aero-Lite based upon a single $15,000 price for the
entire lot.
In September 2008 and April 2009, Azdel issued
sample quotations and pricing letters for C&D’s purchase of 1320
gsm
Aero-Lite.
The
pricing
letter
and
quotations
were
all
marked confidential.
Azdel manufactured more than fifty sheets of the 1320 gsm
product but found only eight sheets worthy of delivery.
C&D
formed
these
that
the
panels
were
conditions”
and
“passed.”
sheets
tested
into
panels
“under
J.A. 957.
and
American
informed
Airlines
Azdel
When C&D inquired as to whether Azdel
would produce the remaining sheets required by the twenty-sheet
order,
sheets.
Azdel
indicated
that
it
would
not
produce
any
more
C&D could not complete its full qualifications process
without a full delivery.
Azdel billed C&D $6000 for those
sheets on a per sheet basis in August 2009.
C&D told Azdel it
would pay for them after they were approved by American.
Azdel
never received payment for the eight sheets it delivered.
C.
On
October
development
expectations.
of
30,
a
2009,
product
C&D
that
contacted
would
Crane
meet
regarding
American’s
Crane produced a product similar to Aero-Lite
called Composite Aerospace Board (“CAB”) that ultimately proved
acceptable to American.
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C&D provided Crane with the same or a similar version of
C&D’s specifications that had been attached to the MOU.
addition,
during
C&D’s
negotiations
with
Crane,
it
In
provided
Crane with a spreadsheet entitled “Historic Pricing Board.”
The
spreadsheet contained tiered pricing for various quantities of
product at various weights.
Some of the prices were the same or
similar to prices that appeared in Azdel’s pricing letters that
had been marked confidential.
C&D’s historic pricing for the
1300 gsm product in certain quantities was the same as Azdel’s
pricing for Aero-Lite, but pricing for the 1300 gsm product in
other
quantities
differed.
The
historic
pricing
board
also
included prices for 1200 gsm and 2000 gsm products not reflected
in Azdel’s pricing letters.
In
March
2010
Crane
provided
testing of its CAB product.
C&D
a
report
of
Crane’s
The report reflected that CAB had
been tested against a sheet of Azdel’s 1350 gsm Aero-Lite, a
separate product ordered by C&D from Azdel in October 2008.
C&D
at times referred to 1320 gsm as 1350 gsm because certain steps
in processing resulted in a weight increase.
the
photographs
attached
to
the
testing
On the other hand,
report
identify
the
Azdel product as 1500 gsm.
The Crane witness who authored the
report
Azdel
testified
that
the
commercially available” product.
12
product
tested
J.A. 1902-03.
had
been
“a
There is no
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evidence that the panel or shipping papers associated with it
were marked confidential.
D.
Azdel’s original complaint raised three causes of action
for breach of contract alleging that C&D failed to pay Azdel for
Aero-Lite sheets pursuant to the MOU (Counts I-III).
Count I
alleged that C&D failed to pay Azdel for the 144 sheets of AeroLite
delivered
under
the
Original
Purchase
Order,
and
for
undelivered but manufactured sheets produced pursuant to that
purchase order.
did
terminate
Count II alleged in the alternative that if C&D
the
MOU
and
open
purchase
orders,
C&D
was
obligated to reimburse Azdel for raw materials, work in process,
and finished goods on hand at the time of the termination in
accordance with Paragraph 11.D of the MOU. 2
Count III sought
$6000 in compensation for the sample sheets of 1320 gsm AeroLite that Azdel provided pursuant to an April 24, 2009 purchase
order.
Following discovery, Azdel amended its complaint to include
two additional causes of action (Counts IV and V), alleging that
C&D breached confidentiality provisions contained in the MOU and
the
parties’
non-disclosure
agreement.
2
The
district
court
Azdel makes no effort to challenge the district court’s
dismissal of Count II on appeal.
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bifurcated the damages portion of Counts IV and V from liability
issues.
Azdel
discovery
supplemented
from
its
Crane.
discovery
Over
the
requests,
course
of
now
seeking
discovery,
Crane
withheld or redacted certain documents it alleged were subject
to
the
common
interest
privilege
pursuant
to
a
common
legal
interest it held with SABIC, a non-party that supplied resin to
Azdel throughout the development of Aero-Lite.
compel production of these documents.
Azdel moved to
A magistrate judge denied
Azdel’s objection, and the district court adopted the magistrate
judge’s recommendation, holding that “the record is sufficient
to establish that the disputed documents were communicated in
furtherance of a common legal interest between Crane and SABIC.”
J.A. 1255.
The parties filed cross-motions for summary judgment.
The
district court granted C&D’s motion as to all counts and denied
Azdel’s motion.
This appeal ensued.
II.
We
judgment
review
de
the
novo,
nonmoving party.
(4th Cir. 2011).
grant
or
drawing
denial
all
of
a
inferences
motion
in
for
favor
summary
of
the
Okoli v. City of Baltimore, 648 F.3d 216, 220
Summary judgment may be granted only where
“there is no genuine dispute as to any material fact and the
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movant is entitled to judgment as a matter of law.”
Libertarian
Party of Va. v. Judd, 718 F.3d 308, 312–13 (4th Cir. 2013)
(internal quotation marks omitted).
A dispute is genuine if “a
reasonable jury could return a verdict for the nonmoving party.”
Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir.
2012).
A fact is material if it “might affect the outcome of
the suit under the governing law.”
Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
This matter is in federal court on diversity jurisdiction
pursuant to 28 U.S.C. § 1332.
The parties agree that Virginia
law applies to Azdel’s claims arising from the MOU and related
purchase
orders,
and
that
California
law
applies
to
Azdel’s
claims under the NDA. 3
A.
We first address Azdel’s contention that C&D violated the
MOU’s
confidentiality
provision
and
the
NDA
by
disclosing
confidential information to Crane during its development of CAB,
Crane’s alternative to Aero-Lite.
1.
Azdel first argues that C&D breached the NDA by disclosing
Azdel’s confidential pricing information to Crane.
There is no
question that the “Historic Pricing Board” that C&D provided
3
The NDA’s choice of law provision provides that it shall
be construed in accordance with California law.
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Crane contained prices that were the same or similar to prices
contained in two of Azdel’s pricing letters, each of which was
labeled “confidential.”
J.A. 2363, 2398.
Nor is there any
question that the NDA prohibited C&D from disclosing “cost and
pricing” information that Azdel marked as confidential.
J.A.
2194 ¶ (C).
Yet the pricing board was not a reflection of past prices;
rather, it was an indication of what C&D would be willing to pay
for
Crane’s
product.
Nothing
in
the
parties’
agreements
prohibited C&D from indicating to third parties what it would be
willing to spend. 4
To the extent the pricing board contained
historic prices, C&D did not disclose that they were Azdel’s.
And while several of the prices that C&D gave Crane were the
same as Azdel’s, others were not.
district
court’s
ruling
that
Thus, we find no error in the
C&D
did
not
disclose
Azdel’s
confidential pricing information in violation of the NDA.
2.
Azdel next contends that C&D violated the NDA by giving
Crane a sheet of Azdel’s prototype 1320 gsm Aero-Lite so that it
4
We do not mean to suggest that a company’s pricing scheme
cannot be the subject of a confidentiality agreement.
We hold
only that no violation of the NDA occurred here, where
disclosure of prices that partially aligned with Azdel’s was
incidental to C&D’s pricing negotiations.
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tested
against
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Crane’s
CAB.
The
parties
dispute
whether C&D provided a prototype 1320 gsm sheet of Aero-Lite or
a 1350 gsm sheet of commercially available material.
As an initial matter, there is no evidence in the record to
suggest that any of the 1320 gsm sheets of Aero-Lite or any of
the shipping papers accompanying the 1320 gsm sheets that Azdel
delivered
to
prototypes.
C&D
identified
the
sheets
as
confidential
The only document marked confidential in connection
with the 1320 gsm sheets is an internal order form for the 1320
gsm sheets.
However, that order form also described the 1320
gsm sheets as “commercial.”
Azdel
prototype
argues
sheets
that
of
the
J.A. 2543.
parties
Aero-Lite
did
not
themselves
to
intend
be
for
marked
the
as
confidential, noting that C&D’s plant manager testified that he
would not expect a confidential prototype to be stamped with the
word “confidential.”
Azdel would thus read out of the NDA the
requirement that “Confidential Information . . . shall at all
times
be
conspicuously
labeled
by
the
disclosing
Party
as
‘Confidential,’” or read into it an exception for “prototypes.”
J.A. 2194.
Even assuming that such an exception could be read into the
NDA, the evidence in the record does not support an inference
that the sheet tested by Crane was a prototype sheet of 1320
gsm.
Crane’s testing report identified the sheet as “1350 gsm”
17
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“1320
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gsm,”
and
the
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photographs
attached
to
report identify the Azdel product as “1500 gsm.”
the
testing
J.A. 1031.
While a Crane employee testified that he could not recall the
weight of the Aero-Lite sheet tested, he did recall that it was
“commercially available.”
J.A. 1902-03.
Furthermore, though
there is evidence in the record suggesting that C&D had, at
times, referred to Azdel’s 1320 gsm as 1350 gsm, this alone
would not support a reasonable inference that the sheet tested
by Crane was in fact 1320 gsm. 5
In sum, based on this record, no reasonable juror could
conclude that C&D’s disclosure of Azdel’s product violated the
NDA.
We therefore hold that the district court did not err in
granting summary judgment for C&D on this claim.
3.
Finally, Azdel argues that C&D violated its confidentiality
obligations
by
disclosing
specifications
Specification referenced in the MOU.
similar
to
the
Azdel concedes that it
failed to mark the Specification confidential and, therefore,
5
Azdel also argues that the 1350 gsm Aero-Lite was also not
commercially available and was therefore covered under the NDA.
This argument has been made for the first time on appeal and is
therefore waived.
See Karpel v. Inova Health Sys. Servs., 134
F.3d 1222, 1227 (4th Cir. 1998) (“We have repeatedly held that
issues raised for the first time on appeal generally will not be
considered.”).
18
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that the Specification does not receive protection under the
NDA.
However,
nonetheless
disclosure
Azdel
covered
of
by
“this
contends
Paragraph
MOU.”
that
12
J.A.
of
2191
the
Specification
the
¶
MOU,
12.
which
is
bars
Because
the
Specification was referenced in and attached to the MOU, Azdel
reasons that it is a part of the MOU for purposes of Paragraph
12.
In
support
Orthopaedics,
of
P.C.
this
v.
argument,
Peyton,
in
Azdel
which
cites
the
Countryside
Supreme
Court
of
Virginia stated, “where two papers are executed at the same time
or contemporaneously between the same parties, in reference to
the same subject matter, they must be regarded as parts of one
transaction,
and
receive
the
same
construction
as
if
several provisions were in one and the same instrument.”
their
541
S.E.2d 279, 284 (Va. 2001) (internal quotation marks omitted).
This uncontroversial statement of Virginia contract law has no
bearing on whether the Specification is subject to the MOU’s
confidentiality provision.
Countryside Orthopaedics was merely
referencing
maxim
the
familiar
that
“[w]here
a
business
transaction is based upon more than one document executed by the
parties, the documents will be construed together to determine
the
intent
of
the
parties.”
Id.
omitted).
19
(internal
quotation
marks
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The
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question
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before
not
us
is
whether
the
MOU
and
the
Specification ought to be construed alongside one another as
part of the same transaction.
Rather, the success of Azdel’s
claim hinges on whether, by using the term “MOU” in Paragraph
12, the parties intended to allow Azdel to prevent disclosure of
C&D’s specifications.
Crucially,
the
We conclude that they did not.
Specification
was
conspicuously
marked
as
proprietary to C&D and included the following disclaimer: “THE
INFORMATION CONTAINED HEREIN MUST NOT BE REPRODUCED OR COPIED OR
OTHERWISE
DISCLOSED
IN
WHOLE
OR
APPROVAL OF C&D ZODIAC, INC.”
IN
PART
J.A. 2198.
WITHOUT
THE
In fact, the MOU
refers to the Specification as “C&D’s specifications.”
9.
WRITTEN
2189 ¶
In addition, Paragraph 12 of the MOU refers to attachments
to the MOU as “separate” from the MOU.
For example, Paragraph
12 provides, “Refer to Attachment ‘A’ for details in the form of
a separate Confidentiality and Non-Disclosure Agreement between
the Parties.”
J.A. 2191 (emphasis added). 6
In sum, it is clear that the parties did not intend for the
term “this MOU” to apply to C&D’s specifications.
Thus, the
district
of
court
correctly
held
6
that
disclosure
C&D’s
Because
we
hold
that
C&D
did
not
breach
its
confidentiality obligations to Azdel, we need not reach the
issue of whether the district court erred in dismissing Azdel’s
claims for failure to put forward evidence that C&D’s breach
caused actual damages.
20
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specifications
did
not
Pg: 21 of 38
violate
the
MOU’s
confidentiality
provision.
B.
We next address Azdel’s claim that it is entitled to the
contract
price
of
the
144
sheets
of
2000
gsm
Aero-Lite
it
shipped to C&D and which C&D forwarded to its forming facility
to be molded into aircraft sidewalls.
Generally, where a buyer accepts goods but does not pay for
them, the seller is entitled to recover the contract rate for
the goods.
the
See Va. Code § 8.2-607(1) (“The buyer must pay at
contract
(remedies
of
rate
for
seller);
any
see
goods
also
accepted.”);
Green
Hill
id.
Corp.
Corp., 891 F.2d 286 (4th Cir. 1989) (unpublished).
Virginia
Uniform
Commercial
Code,
acceptance
of
§
8.2-703
v.
Greenko
Under the
goods
occurs
when the buyer
(a) after a reasonable opportunity to inspect the goods
signifies to the seller that the goods are conforming or
that he will take or retain them in spite of their
nonconformity; or
(b) fails to make an effective rejection, but such
acceptance does not occur until the buyer has had a
reasonable opportunity to inspect them; or
(c) does any act inconsistent with the seller’s ownership .
. . .
Va. Code § 8.2-606(1).
A reasonable inspection may occur “at any reasonable place
and time and in any reasonable manner,” id. § 8.2-513(1), and
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the
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“place
parties.”
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or
method
of
Pg: 22 of 38
inspection”
may
be
“fixed
by
the
Id. § 8.2-513(4).
Notably, Official Comment 4 to Va. Code § 8.2-606 states
that
“the
provisions
of
paragraph
(c)
are
subject
to
the
sections dealing with rejection by the buyer which permit the
buyer to take certain actions with respect to the goods pursuant
to his options and duties imposed by those sections, without
effecting an acceptance of the goods.”
buyer’s
reasonable
inspection
would
In other words, where a
be
otherwise
inconsistent
with the seller’s ownership of the goods, such inspection on the
part of the buyer will not be deemed an acceptance.
However,
the meaning of “inspection” is limited to “the buyer’s check-up
on whether the seller’s performance is in accordance with [the
parties’] contract.”
Official Comment 9 to § 8.2-513.
Azdel contends that when C&D’s quality department forwarded
the sheets of Aero-Lite to its forming facility to be molded
into sidewalls, C&D acted inconsistently with Azdel’s ownership
of the sheets and thereby accepted them.
C&D’s
molding
inconsistent
Molding
the
with
of
the
Azdel’s
Aero-Lite
sheets
ownership
into
of
We agree.
Aero-Lite
of
sidewalls
the
was
clearly
Aero-Lite
sheets.
was
a
substantial
modification that irreversibly altered the condition of Azdel’s
product.
Moreover, the parties contemplated that the molding of
the sheets of Aero-Lite constituted a point of no return with
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respect to ownership of Azdel’s product.
Azdel lost title as
soon as they were no longer in sheet form.
See J.A. 2189 ¶ 8
(stating that title to Azdel’s product will remain with Azdel
until
the
“Product
is
no
longer
in
precedent supports this conclusion.
sheet
form”).
Virginia
See, e.g., Moore & Moore
General Contractors, Inc. v. Basepoint, Inc., 485 S.E.2d 131,
133
(Va.
1997)
nonconforming
(holding
cabinets
that
a
contractor’s
constituted
an
act
installation
inconsistent
of
with
subcontractor’s ownership and amounted to acceptance of goods);
see also Laurence Anderson on the Uniform Commercial Code 3d., §
2-606:64
“Modification
of
Goods”
(“When
the
buyer
has
not
rejected the goods and has made a substantial modification to
them, the buyer is deemed to have accepted the goods.”).
The only way that C&D would not be required to pay for the
delivered sheets of 2000 gsm Aero-Lite is if its actions in
molding
the
sheets
into
sidewalls
and
presenting
them
to
American for a fit check constituted a reasonable inspection of
the goods, or if such a method of inspection was “fixed by the
parties.”
Va. Code § 8.2-513(4).
Below, the district court
concluded that “where [C&D] was not otherwise allowed to fully
test any Aero-Lite sheets, the type of reasonable inspection
agreed
upon
by
the
parties
included
the
molding
trials
that
Defendant conducted as well as the fit check to see how the
molded sheets would perform upon installation.”
23
J.A. 2159.
The
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district
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court
relied
in
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large
part
on
the
fact
that
the
purchase order issued by C&D states that the first scheduled
delivery of Aero-Lite was for “PRE-PRODUCTION,” and that the
parties understood that “pre-production” was a term designed to
allow C&D to internally evaluate the product and allow American
to sign off on the product.
J.A. 2157.
Thus, according to the
district court, actions taken by C&D that were inconsistent with
Azdel’s
ownership
because
C&D
had
of
not
the
yet
goods
had
did
the
not
effect
an
acceptance
opportunity
to
conduct
a
reasonable inspection.
Regardless of whether the initial delivery of Aero-Lite was
necessary
for
C&D
to
determine
the
suitability
of
Azdel’s
product for its own internal process or for American, the preproduction requirement has no bearing on whether the product
that Azdel delivered to C&D conformed to the parties’ contract,
i.e., complied with the Specification.
Under the Virginia UCC,
C&D’s reasonable inspection of Azdel’s product was limited to
determining whether the delivered sheets of 2000 gsm Aero-Lite
conformed to the Specification.
It does no good to say that
C&D’s molding of the sheets of Aero-Lite into sidewalls did not
constitute
an
acceptance
because
“[C&D]
allowed to fully test any Aero-Lite sheets.”
was
not
otherwise
J.A. 2159.
To the
contrary, the parties stipulated in their agreement that the
suitability
of
Azdel’s
product
24
had
been
extensively
tested.
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There is also no indication in the record that C&D would have
been prevented from testing the 2000 gsm sheets of Aero-Lite to
determine
whether
it
complied
with
the
Specification
before
molding them into sidewalls.
To permit C&D to condition its
acceptance
on
of
Azdel’s
product
its
determination
that
the
product is suitable to American would entirely eviscerate the
MOU’s
warranty
provision
and
the
parties’
bargained-for
allocation of risk.
The decision of the Supreme Court of Virginia in Twin Lakes
Manufacturing Co. v. Coffey, a case relied upon by C&D on appeal
and
cited
by
the
district
S.E.2d 864 (Va. 1982).
court
below,
is
inapposite.
281
In Twin Lakes, the court held that,
given the existence of latent structural defects in a mobile
home, the buyers of the mobile home did not waive the implied
warranty of merchantability when they installed the mobile home.
Id. at 866–67 (applying Va. Code. § 8.2-316(3)(b) (“[W]hen the
buyer before entering into the contract has examined the goods .
. . there is no implied warranty with regard to defects which an
examination
him.”)).
presented
ought
The
in
in
the
circumstances
to
court
did
not
address
this
case:
remotely
whether
a
buyer
have
revealed
the
who
to
question
irreversibly
modifies goods before inspecting them for compliance with the
buyer’s
own
specifications
accepts
Virginia UCC.
25
those
goods
under
the
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Lastly,
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while
provisions
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in
the
MOU
permitted
C&D
to
terminate the MOU as well as any purchase orders in the event
that “the material does not perform as predicted and is deemed
not suitable for C&D’s intended use, conversion, or processing,”
J.A. 2190 ¶ 11.C, C&D’s termination rights under the MOU do not
alter its obligations with respect to delivered goods under the
Virginia UCC.
Thus, the district court erred in denying Azdel’s claim
regarding the 144 sheets of delivered 2000 gsm Aero-Lite.
C.
Azdel also contends that C&D is liable for the sheets of
Aero-Lite it ordered pursuant to the Original Purchase Order.
The
district
court
held
that
C&D
terminated
the
Original
Purchase Order on July 2, 2008, when Del Pinto of C&D e-mailed
Willis of Azdel following the disappointing fit check.
In the
alternative, the district court held that C&D terminated the
Original Purchase Order on September 17 when it issued a revised
purchase order zeroing out all quantities of 2000 gsm Aero-Lite. 7
7
C&D also appears to contend in its briefs that the MOU
itself and perhaps any open purchase orders “self-terminated”
pursuant
to
what
it
terms
the
MOU’s
“self-termination
provision.”
Paragraph 6 of the MOU provides that “This MOU
shall begin on the Effective Date and shall remain in force for
the duration of the American Airlines 757 Program or until a
long-term agreement is executed between the Parties, whichever
occurs first.” J.A. 2188 ¶ 6. C&D implies that the MOU selfterminated as of the time American expressed dissatisfaction
with the 2000 gsm Aero-Lite sidewalls, i.e., after the fit
26
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1.
To determine whether C&D terminated the Original Purchase
Order,
we
must
termination
right
to
first
assess
whether
the
contract
were
under
terminate
the
Original
the
preconditions
met—whether
Purchase
Order
C&D
in
for
had
the
the
first
place. 8
The MOU gave C&D “the right to terminate this MOU as
well
any
as
material
does
open
not
orders
in
perform
connection
as
predicted
thereto
and
is
if:
(i)
the
deemed
not
suitable for C&D’s intended use, conversion, or processing, and
C&D
has
customer
given
the
requests
required
C&D
material/manufacturing
to
60
days’
switch
methods.”
notice
and/or
back
to
J.A.
2190
¶
(ii)
the
conventional
11.C.
The
district court concluded that both conditions were met in this
check.
Yet there is nothing in the MOU to suggest that
American’s failure to immediately accept the sidewalls would
constitute an end to the American Airlines 757 Program.
Thus,
C&D’s reliance on the self-termination provision is misplaced.
8
In addition to arguing that the preconditions for
termination were not met in this case, Azdel contends that
Paragraph 11 of the contract only permitted C&D to terminate the
MOU in conjunction with any purchase orders.
According to
Azdel, C&D and Azdel went on to produce 1320 gsm Aero-Lite under
the terms of the MOU, and therefore, “[b]y letting [C&D] walk
away from the 2000GSM Aero-Lite purchase order when it was not
walking away from the agreement,” we would be permitting C&D to
“have its cake and eat it too.” Appellant’s Br. at 57. Azdel’s
restrictive reading of paragraph 11.C is untenable.
This
provision gave C&D the right to terminate the MOU and any open
purchase orders in connection with the MOU.
It does not state
that C&D may terminate open purchase orders only when it
terminates the MOU.
27
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case.
We
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address
will
Pg: 28 of 38
precondition
each
for
termination
separately.
a.
We first consider whether Azdel had the right to terminate
the MOU as well as any open purchase orders under Paragraph
11.C(i).
That
right
hinges
on
a
determination
of
whether
Azdel’s product “did not perform as predicted and is deemed not
suitable for C&D’s intended use.”
Azdel
contends
that
J.A. 2190 ¶ 11.C(i).
Paragraph
11.C(i)
permitted
C&D
to
terminate the Original Purchase Order only if its product failed
to
meet
the
language
requirements
of
the
interpretation.
MOU
of
the
simply
Specification.
does
not
The
support
plain
Azdel’s
Notwithstanding the fact that the MOU provides
that “the parties agree that the suitability of the Product for
American Airlines 757 program has been extensively tested and
investigated,”
J.A.
C&D
2189
may
¶
9,
“deem”
Paragraph
Azdel’s
11.C(i)
product
clearly
contemplates
that
nonetheless
unsuitable.
Had the parties intended to limit C&D’s termination
rights to an instance in which Azdel’s product failed to comply
with the Specification, they easily could have done so.
They
did not.
Thus, C&D was permitted to terminate the MOU and open
purchase
orders
even
where
Azdel’s
product
satisfied
the
Specification if it determined that the product did not perform
as predicted and C&D deemed it unsuitable.
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Contrary to Azdel’s assertions, the record establishes that
Azdel’s 2000 gsm Aero-Lite did “not perform as predicted” and
was
“not
suitable
processing.”
for
J.A. 805.
C&D’s
intended
use,
conversion,
or
Though C&D hoped that molding the Aero-
Lite into sidewalls might ameliorate the warpage problem and
notwithstanding the prior extensive testing done on the product,
the
warped
Aero-Lite
resulted
in
warped
sidewalls
that
were
unsuitable for American’s use.
b.
We next consider whether C&D had the right to terminate the
Original Purchase Order under Paragraph 11.C(ii) of the MOU,
which gives C&D the right to terminate any open purchase orders
in the event that “the customer requests C&D switch back to
conventional material/manufacturing methods.”
J.A. 2190.
In
contrast to Paragraph 11.C(i), the termination rights conveyed
by Paragraph 11.C(ii) do not require sixty days’ notice.
Azdel
“switch
argues
back”
that
to
Paragraph 11.C(ii).
American
using
While
did
not
“request”
conventional
conceding
that
materials
that
American
C&D
under
never
affirmatively requested C&D to switch back to crushcore, C&D
nonetheless suggests that the term “requests” should be given a
broader
meaning.
After
the
fit
check,
American
gave
C&D
feedback and required C&D to create an action plan that, among
other things, reduced the weight of the product.
29
By requiring a
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product
of
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a
different
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weight,
C&D
contends
American
essentially requesting that C&D revert to crushcore.
was
C&D also
points to the fact that American had the “ultimate” decision of
what product it would use in its aircraft.
words,
according
C&D
to
resulted
in
American
ultimately
C&D,
because
reverting
had
J.A. 736.
American
back
to
discretion
took
actions
crushcore,
as
to
In other
and
whether
that
because
to
use
crushcore in its planes, American did in fact, in some sense of
the word, “request” that C&D “switch back” to crushcore.
C&D ignores uncontested evidence in the record precluding
such a holding.
Indeed, American’s own employee testified that
American did not make the decision to reject Aero-Lite, rather,
it “assumed [C&D] determined that it would not meet our needs,
because they changed materials.”
J.A. 1653.
Furthermore, it
was C&D that proposed it have crushcore on hand in the event
that
the
Aero-Lite
material
did
not
meet
American’s
expectations, and it was C&D’s choice to supply crushcore while
Aero-Lite
was
influence
on
development
being
the
developed.
decision
continued,
it
to
Given
use
can
the
crushcore
hardly
be
extent
while
said
that
of
C&D’s
Aero-Lite
American
“requested” that C&D “switch back” to conventional manufacturing
methods within the meaning of the MOU.
American was open to
accepting an Aero-Lite based product that met its needs.
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Because C&D did not have termination rights under Paragraph
11.C(ii), it could not terminate the Original Purchase Order
without giving Azdel sixty days’ notice of its intent to do so.
2.
We must next consider whether C&D provided an effective
notice
court
of
termination
concluded
and
under
C&D
the
Virginia
maintains
that
UCC.
The
effective
district
notice
of
termination was given on July 2, 2008, when Del Pinto of C&D
sent an e-mail to Willis of Azdel stating among other things
that Azdel’s 2000 gsm sheets of Aero-Lite “definitely can not be
used
for
sidewall
production”
and,
at
the
very
least,
on
September 17, 2008, when C&D issued its revised purchase order
zeroing out all ordered quantities of Azdel’s product.
Under the Virginia UCC, “[a] person ‘notifies’ or ‘gives’ a
notice or notification to another person by taking such steps as
may
be
reasonably
required
to
inform
the
other
person
in
ordinary course, whether or not the other person actually comes
to know of it.”
Va. Code § 8.1A-202(d).
In conducting this
analysis at the summary judgment stage we must be mindful that
under
the
UCC,
reasonableness
for
courts
the
typically
finder
of
reserve
fact.
See,
questions
e.g.,
of
Zidell
Explorations, Inc. v. Conval Int’l, Ltd., 719 F.2d 1465, 1473–74
(9th Cir. 1983) (reasonableness of notice of termination to be
decided by jury); St. Ansgar Mills, Inc. v. Streit, 613 N.W.2d
31
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289,
295
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(Iowa
2000)
Pg: 32 of 38
(collecting
cases,
from
various
jurisdictions, holding that the determination of reasonableness
under the UCC is a factual question inappropriate for summary
judgment.); cf. Flowers Baking Co. of Lynchburg, Inc. v. R-P
Packing,
Inc.,
rejection
329
based
on
S.E.2d
462,
466-67
nonconforming
(Va.
goods
1985)
occurred
(whether
within
a
reasonable period of time is a question for the jury).
a.
We first address the July 2 e-mail.
C&D did not state in
its July 2 e-mail that it was terminating the Original Purchase
Order and in fact made no reference to that order whatsoever.
The
e-mail
even
alluded
to
other
uses
for
the
product,
indicating that C&D was “investigating a number of projects to
find a more suitable application for [the 2000 gsm] sheets.”
J.A. 886.
The e-mail also stated that C&D would “continue to
work with Azdel on processing the curled material.”
We
Willis
recognize
that
of
believed
Azdel
some
evidence
that
suggests
C&D
had
a
not
J.A. 887.
termination.
committed
to
additional sheets of Aero-Lite based on conversations he had had
with C&D personnel.
the
customer
no
Specifically, Willis stated that he “knew
longer
wanted
the
product”
“based
on
communications that had taken place . . . with Danny Martin.”
J.A. 699.
When asked about the status of the October delivery
by other Azdel employees, Willis stated “C&D is not committed to
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taking anyone [sic] 2000 gsm at this time. . . .
product should be put on hold.”
J.A. 1480.
All of this
However, others at
Azdel believed C&D remained committed to its orders of 2000 gsm
Aero-Lite, stating, “If they want to cancel their current orders
they must update their release.
All orders remain valid until
the customer cancels or revises their release.”
J.A. 1478.
In sum, one could conclude from the July 2 e-mail that C&D
wanted Azdel to treat the Original Purchase Order as having been
terminated.
reasonable
However, we are not convinced that this is the only
interpretation
circumstances.
of
the
e-mail
and
the
surrounding
We thus conclude that the district court acted
prematurely in removing this question from the province of a
jury.
b.
On the other hand, we agree with the district court that
the Revised Purchase Order issued on September 17 effectively
terminated the Original Purchase Order.
That document inserted
“0.00” as the amount due in connection with each delivery, added
“*** THIS LINE HAS BEEN REVISED ***” before each listed line
item, and in connection with all deliveries other than those
already delivered, stated, “CANCEL ORDER.”
J.A. 2354.
There is
only one way to read these changes to the purchase order.
Because we concluded above that C&D only had the right to
terminate the Original Purchase Order pursuant to 11.C(i), the
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Revised
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Purchase
Order
is
Pg: 34 of 38
only
effective,
as
a
termination,
sixty days after it was issued.
The district court concluded
that
Order
if
the
Revised
Purchase
was
the
only
valid
termination of the Original Purchase and the sixty-day notice
requirement
applied,
C&D
would
be
liable
for
“December
2008
through February 2009 deliveries totaling 1,650 sheets” but that
“Defendant would not be liable for the cost of the final 1,650
sheets.”
C&D’s
J.A. 2165.
July
2
e-mail
In the event that a jury concludes that
did
not
constitute
effective
notice
of
termination, we agree that C&D will be liable under the Original
Purchase
Order
in
accordance
with
the
district
court’s
assessment.
D.
Under Count III of the Complaint, Azdel seeks to recover
$6000 billed to C&D for the eight sheets of 1320 gsm Aero-Lite
delivered to C&D in August 2009.
C&D contends that it has no
obligation to pay for this partial delivery of eight out of
twenty ordered sheets because the purchase order for the 1320
gsm Aero-Lite was based upon a single $15,000 price for the
entire lot, and Azdel failed to complete the order.
Under Va. Code § 8.2-601, “if the goods or the tender of
delivery fail in any respect to conform to the contract, the
buyer may (a) reject the whole; or (b) accept the whole; or (c)
accept any commercial unit or units and reject the rest.”
34
Under
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Section
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8.2-607(2),
precludes
rejection
Pg: 35 of 38
“[a]cceptance
of
the
goods
of
goods
accepted
and
by
the
if
made
buyer
with
knowledge of a nonconformity cannot be revoked because of it
unless the acceptance was on the reasonable assumption that the
nonconformity would be seasonably cured but acceptance does not
of itself impair any other remedy provided by this title for
nonconformity.”
C&D contends that its order for twenty sheets of Aero-Lite
constituted a “commercial unit” under the UCC.
The mere fact
that the sheets were priced as a batch of twenty, however, does
not render them a commercial unit.
Further, C&D’s contention
that the twenty sheets were a unit is belied by the fact that it
told Azdel it was merely awaiting final approval from American
to “release Azdel for production,” J.A. 957, and that it would
pay for the 1320 gsm sheets when they received approval from
American.
C&D
never
Azdel delivered.
them,
and
rejected
the
eight
sheets
of
Aero-Lite
that
It formed them into sidewall panels, tested
promised
American’s approval.
to
pay
for
them
after
they
received
Under these circumstances, C&D must pay
for the eight sheets of 1320 gsm that it accepted.
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III.
Finally,
Azdel’s
Azdel
motion
district
to
court
privilege.
appeals
deemed
district
court’s
denial
of
certain
compel
the
Crane
documents
that
the
protected
under
the
common
interest
We review factual findings as to whether a privilege
applies for clear error, and the application of legal principles
de novo.
In re Grand Jury Subpoena, 341 F.3d 331, 334 (4th Cir.
2003).
“The joint defense privilege, an extension of the attorneyclient
share
privilege,
a
common
protects
interest
communications
in
between
litigation.”
In
re
parties
who
Grand
Jury
Subpoena: Under Seal, 415 F.3d 333, 341 (4th Cir. 2005) (citing
United
1989)).
States
v.
Schwimmer,
892
F.2d
237,
243–44
(2d
Cir.
The privilege allows “persons with a common interest to
‘communicate with their respective attorneys and with each other
to more effectively prosecute or defend their claims.’”
Id.
(quoting In re Grand Jury Subpoenas 89–3 and 89–4, John Doe 89–
129, 902 F.2d 244, 249 (4th Cir. 1990)).
The proponent of the
privilege has the burden to establish that the parties had “some
common
interest
about
a
legal
matter.”
Sheet
Metal
Workers
Int’l Ass’n v. Sweeney, 29 F.3d 120, 124 (4th Cir. 1994).
Importantly,
“it
is
unnecessary
that
there
be
actual
litigation in progress for this privilege to apply.”
United
States v. Aramony, 88 F.3d 1369, 1392 (4th Cir. 1996).
Indeed
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have
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recognized
that
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“[w]hether
an
action
is
ongoing
or
contemplated . . . the rationale for the joint defense rule
remains unchanged.”
In re Grand Jury Subpoenas 89–3 and 89–4,
John Doe 89–129, 902 F.2d at 249.
While Azdel does not challenge the existence of a common
legal interest between Crane and SABIC, 9 it argues that Crane
failed to establish that it had a “joint legal strategy” with
SABIC.
Appellant’s Br. at 31.
Yet we have never held that in
order to assert the common legal interest privilege, the party
asserting the privilege must put forward evidence establishing
the details of a joint legal strategy.
Moreover, such a holding
would undermine the logic of our prior cases holding that the
privilege applies even to actions which are not “ongoing.”
See,
e.g., In re Grand Jury Subpoenas 89–3 and 89–4, John Doe 89–129,
902
F.2d
at
249.
We
therefore
affirm
the
district
court’s
denial of Azdel’s motion to compel.
9
claims
claims
into a
that a
Indeed, SABIC received a letter from Azdel outlining
that Azdel might bring against SABIC.
Because those
implicated Crane’s interests, Crane and SABIC entered
common interest agreement.
Thus, there can be no doubt
common legal interest existed between the two entities.
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Pg: 38 of 38
IV.
For the foregoing reasons, we
AFFIRM IN PART,
VACATE IN PART,
REVERSE IN PART,
AND REMAND.
38
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