Schonbek Worldwide Lighting Inc. v. Lowe's Companies, Inc. et al

Filing 127

ORDER: directing that a single copy of the signed Lowe's letter, in paper form, will be placed in an envelope prominently marked that it is to be opened only by Susan E. Farley, Esq., and that sealed envelope shall then be forwarded, together wi th a copy of this order, to the clerk of the district court in Albany, New York. Within two business days of its receipt by the court, Susan Farley, Esq., may review the letter at the Albany clerk's office in order to satisfy herself that it is in the form contemplated by the parties. Attorney Farley shall not be provided with a copy of this letter, nor is she authorized to remove it from the clerk's office until further order of the court. Within two business days of her review of the letter, attorney Farley is directed either to send a fully executed copy of the settlement agreement of this matter to Louis Mastriani, Esq., as noted herein, or to notify counsel for the parties that the matter is not settled. In the event that the matter is not settled, then within fourteen days of such notification, the parties shall proceed as noted in this order. In the event the Lowe's letter is produced to her, attorney Farley is hereby directed to take all reasonable measures to maintain the integrity and confidentiality of the letter unless otherwise directed by the court. Signed by Magistrate Judge David E. Peebles on 2/6/2012. (jmb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
____________________________________
SCHONBEK WORLDWIDE LIGHTING, INC.,
Plaintiff,
Civil Action No.
8:10-CV-1377 (GTS/DEP)
(Lead Case)

v.

LOWE’S HOME CENTERS, INC., BEL AIR
LIGHTING, INC., TRANS GLOBE LIGHTING,
INC., and TRANS GLOBE IMPORTS,
Defendants.
____________________________________
BEL AIR LIGHTING, INC.,
Plaintiff,

Civil Action No.
8:11-CV-0251 (GTS/DEP)
(Member Case)

v.

SCHONBEK WORLDWIDE LIGHTING, INC.,
Defendant.
____________________________________
ORDER
During several recent telephone conferences conducted by the court
with attorneys for the various parties to these consolidated actions,
discussions were held concerning a letter (the “Lowe’s letter”) to be
provided by defendant Lowe’s Home Center, Inc. (“Lowe’s”) to defendants

Bel Air Lighting, Inc., Trans Globe Lighting, Inc., and Trans Globe Imports
(collectively, “Bel Air”) in connection with a potential settlement of the
actions, giving certain assurances regarding Lowe’s intentions with
respect to any unsold inventory of accused light fixtures. It is
contemplated that the settlement will be between Schonbek Worldwide
Lighting, Inc. (“Schonbek”) and Bel Air, and that Lowe’s will not be a party
to the settlement agreement to be executed. It is further envisioned that
once a settlement is consummated all claims against Lowe’s in these
consolidated actions will be discontinued, without prejudice.
During a telephone conference held on February 2, 2012 it was
reported that the Lowe’s letter has now been provided to Bel Air.
Specifically, a letter has been given on behalf of Lowe’s and LG Sourcing,
Inc., addressed to Max “Cary” Haber at Bel Air, bearing the case caption
and giving the assurances suggested by the court regarding unsold
inventory as a means of effectuating a final resolution of the case.
Attorneys for Schonbek have been provided with a draft of the Lowe’s
letter, which counsel for Lowe’s and Bel Air have represented contains the
same language and terms as are found in the final iteration of the Lowe’s
letter, but have not yet seen the final signed original letter.

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Based upon the many discussions held with the parties the court is
of belief that resolution of the action based upon the terms that the parties
have negotiated is fair and reasonable, and preferable to the alternative of
litigating the claims and defenses in the actions, given the uncertainties
and enormous litigation costs surrounding such a course. This
notwithstanding, the court is not in the position to force any party to agree
to a material settlement term that has been proposed but not yet
accepted. The court will therefore enter the following order, which affords
the parties the option of either agreeing to this last remaining term or
choosing a path which will invariably result in contentious and protracted
litigation.
Based upon the foregoing it is hereby
ORDERED as follows:
1)

A single copy of the signed Lowe’s letter, in paper form, will be

placed in an envelope prominently marked that it is to be opened only by
Susan E. Farley, Esq. That envelope shall then be forwarded, together
with a copy of this order, to the clerk of the court, addressed as follows:
District Court Clerk, James T. Foley, U.S. Courthouse, 445 Broadway,
Room 509, Albany, New York 12207-2936.

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2)

Within two business days of its receipt by the court, Susan E.

Farley, Esq. may review the letter at the Albany office of the district court
clerk in order to satisfy herself that it is in the form contemplated by the
parties. Attorney Farley shall not be provided with a copy of this letter,
however, nor is she authorized to remove it from the clerk’s office, until the
entry of a further order by the court.
3)

Within two business days of her review of the letter, Attorney

Farley is directed either to send a fully executed copy of the settlement
agreement of this matter to Louis Mastriani, Esq., counsel for Bel Air, via
overnight, traceable carrier or, in the alternative, to notify counsel for the
parties and the court that the matter is not settled.
4)

In the event the matter is not settled, then within fourteen

calendar days of receipt of notification of that fact, any party desiring to
move for a order compelling discovery or for a protective order related to
discovery shall file a letter brief and supporting documents with the court.
Those documents shall include a certification that the parties have
conferred in good faith regarding the matters raised, but have failed to
reach agreement.
5)

Within seven calendar days following the filing of any letter

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motion concerning discovery, the opposing party shall file with the court a
letter brief and supporting attachments in opposition to the motion.
6)

Absent court permission, no reply will be permitted with regard

to the matters raised in the parties’ discovery related motions. Upon
receipt of opposition briefs, the court will schedule an in-person hearing to
address the matters raised.
7)

In the event a settlement of the action is achieved at this

juncture, once Schonbek has executed the settlement documents, the
clerk will by separate order be directed to provide the single signed copy
of the Lowe’s letter to Susan E. Farley, Esq.
8)

In the event the Lowe’s letter is produced to Susan E. Farley,

Esq., she shall maintain the letter in her files and shall not provide the
letter or any copy thereof to any other individuals or entity, including
though not limited to in-house and other outside counsel for Schonbek, as
well as employees or representatives of Schonbek or its parent company.
9)

The Lowe’s letter produced to Attorney Farley may not be

duplicated or in any other way copied without prior authorization of this
court.
10)

In the event the Lowe’s letter is produced to her, Attorney

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Farley is hereby directed to take all reasonable precautionary measures to
insure that the letter provided to her is not disseminated in a manner
inconsistent with the terms of this order, and to maintain the integrity and
confidentiality of the letter unless otherwise directed by the court.

Dated:

February 6, 2012
Syracuse, NY

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