Cameo, LLC v. Akzo Nobel Coatings, Inc.

Filing 47

MEMORANDUM OPINION AND ORDER: IT IS ORDERED: (1) ICIA's motion for sanctions and to strike, (DE 31 in 5:08-cv-318), (DE 8 in 5:14-cv-256), is DENIED IN PART and GRANTED IN PART; & (2) ICIA shall be awarded attorney's fees in the amount outlined by this Order. ICIA shall SUBMIT to the Court, w/in 30 days, its atty's fee statement, w/ supporting documentation. Signed by Judge Joseph M. Hood on March 20, 2015. (MWZ) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
CAMEO, LLC,

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Plaintiff,
v.

ICI AMERICAS, INC.
Defendant,

CAMEO, LLC,
Plaintiff,

v.

AKZO NOBEL COATINGS, INC.
Defendant,
ICI AMERICAS, INC.,
Intervenor.
**

**

Action No. 5:08-cv-316-JMH

Action No. 5:14-cv-256-JMH

MEMORANDUM OPINION AND ORDER

**

**

**

This matter is before the Court upon the motion of ICI
Americas, Inc. (“ICIA”) to strike Cameo, LLC’s complaint in the
related action, No. 5:14-cv-256, for attorney’s fees and costs,
and for sanctions.

For the reasons that follow, the Court will

deny the motion to strike Cameo’s complaint, deny the motion for
sanctions, and grant, in part, the motion for attorney’s fees
and costs.

BACKGROUND
In 2008, Cameo sued ICIA for breach of contract,
alia, in Action No. 5:08-cv-316-JMH.

inter

In February 2009, this

Court entered the parties’ agreed order in that matter, which
provided that certain information that ICIA shared with Cameo
for the purposes of mediation would remain strictly confidential
and would not be disclosed to anyone other than the mediator.1
See DE 23.

The parties later engaged in arbitration and the

case was dismissed voluntarily with prejudice, but the Court
retained jurisdiction with respect to post-settlement issues.
See DE 27.
On June 26, 2014, Cameo—“not satisfied with the results of
the arbitration”—filed a complaint against Akzo Nobel Coatings,
Inc., an entity Cameo claims is ICIA’s successor-in-interest.
See Action No. 5:14-cv-256-JMH, DE 1, DE 40 at ID# 216.

On July

8, 2014, Cameo filed a motion to seal the complaint, advising
the

Court

that

ICIA

had

contacted

Cameo

and

informed

it

of

ICIA’s belief that the complaint violated prior confidentiality
agreements and orders related to the 2008 action.

DE 6.

That

same day, ICIA—though not a party to the 2014 action—moved to

1

ICIA also contends that Cameo’s complaint in the 2014 action violates the
terms of a June 2009 “Release, Settlement, and Confidentiality Agreement,” as
well as an agreed “Protective Order” that was entered during binding
arbitration from the 2008 action.
Although ICIA asserts that these items
have been entered into the record as exhibits, the Court has reviewed the
record and has failed to locate them.

2

strike the complaint, to hold Cameo in contempt, for sanctions,
and for attorney’s fees and costs.

DE 8.

On July 10, 2014, the

Court granted Cameo’s motion to seal the complaint and gave
Cameo a brief period to file a motion to amend the complaint or
to

withdraw

complaint,

it.
but

DE
it

10.

has

Ultimately,

remained

Cameo

under

seal

did

amend

based

on

its
the

potentially sensitive nature of the information therein, as well
as

ICIA’s

pending

motion

to

hold

Cameo

in

contempt

and

for

sanctions, fees, and costs.
ANALYSIS
The Court first addresses ICIA’s motion to strike Cameo’s
complaint in order to “protect ICIA’s confidential information.”
ICIA moves to strike pursuant to Federal Rule of Civil Procedure
37(b)(2)(A)(iii), which provides that pleadings may be stricken,
in whole or in part, when a party fails to obey a discovery
order.
ruling

Although the Court retains considerable discretion in
on

a

disfavored.
complaint

The
based

complaint

and

to

Court
on

information

other

strike,

such

is

prepared

ICIA’s

“contains

confidential
order

motion

not

conclusory

numerous
in

documents.

motions
to

Based

on

strike

allegation

of

are

Cameo’s

the

the

that

the

disclosures”

improper

violation

generally

of

parties’

record,

as

agreed
it

is

developed at this time, the Court is unable to determine that
3

Cameo’s

complaint

disclose.

contains

Further,

ICIA

information

has

not

it

agreed

demonstrated,

nor

not

to

has

it

alleged, that it has been materially harmed by the disclosure of
information in Cameo’s complaint.

The complaint and amended

complaints in this matter have been placed under seal and, thus,
any

confidential

disclosure.
action

ICIA

are

information
suggests

barred

equitable estoppel.

by

the

is

that

protected

Cameo’s

principles

of

claims
res

from
in

public
the

judicata

2014
and

Even if Cameo’s claims ultimately fail on

those bases, dismissing them based upon the record before the
Court at this time would be improper. Accordingly, the Court
finds that striking the complaint is a drastic action that is
not warranted at this time.
Likewise, the Court declines to hold Cameo in contempt of
Court.

“In order to hold a litigant in contempt, the movant

must produce clear and convincing evidence that shows that ‘[the
non-moving party] violated a definite and specific order of the
court requiring him to perform or refrain from performing a
particular act or acts with knowledge of the court’s order.’”
Elec. Workers Pension Trust Fund v. Gary’s Elec. Serv. Co., 340
F.3d

373,

379

Bronze, Inc.,
added)).

(6th

Cir.

2003)

NLRB

v.

Cincinnati

829 F.2d 585, 588 (6th Cir. 1987) (alteration

ICIA has not demonstrated, by clear and convincing
4

(quoting

evidence,

that

regarding

sales,

shared

with

Cameo’s

complaint

revenues,

[Cameo]

and

and
its

contains

contractual
counsel

“[i]nformation

terms

that

confidentially,

[were]
on

a

voluntary basis in connection with the proposed mediation” that
were not later obtained by Cameo through other means under which
confidentiality requirements did not apply.
DE 23.

Further, on July 8, 2014—12 days after the complaint was

filed—Cameo
contacted
breach.
breach

See 5:08-cv-316 at

moved
by

ICIA

Cameo’s
of

to

seal

regarding

expedient

confidentiality

contempt of Court.

the

complaint
the

potential

effort
weighs

after

to

been

confidentiality

resolve

against

having

any

holding

potential
Cameo

in

While the Court acknowledges that Cameo’s

motion to seal the complaint was not entirely self-initiated,
contempt is a drastic sanction which is typically inappropriate
when a party has received no prior warnings and has received no
opportunity to remedy its behavior.

Accordingly, it is not

appropriate here.
ICIA also moves for reasonable costs, including attorney’s
fees.

As explained above, Cameo acknowledges that it was only

after receiving communication from counsel for ICIA that Cameo
moved to seal its complaint, conceding that modifications may
have been warranted.
Civil

Procedure

Accordingly, pursuant to Federal Rule of

37(b)(2)(C),

the
5

Court

will

award

attorney’s

fees to ICIA based on the expenses incurred in contacting Cameo
to initiate the sealing of the complaint.

The request shall not

exceed two hours of the attorney’s time and shall be accompanied
by the attorney’s supporting affidavit.
Accordingly, IT IS HEREBY ORDERED:
(1)

that ICIA’s motion for sanctions and to strike, [DE 31

in 5:08-cv-318], [DE 8 in 5:14-cv-256], is DENIED IN PART and
GRANTED IN PART; and
(2)

ICIA shall be awarded attorney’s fees in the amount

outlined by this Order.

ICIA shall SUBMIT to the Court, within

thirty (30) days, its attorney’s fee statement, with supporting
documentation.
This the 20th day of March, 2015.

6