California Expanded Metal Products Company et al v. James Klein et al

Filing 338

ORDER: The court finds it appropriate to DISCHARGE the daily fine. S4S is no longer required to pay a daily fine for noncompliance with the court's permanent injunction. Signed by Judge James L. Robart. (LH)

Case 2:18-cv-00659-JLR Document 338 Filed 03/02/23 Page 1 of 3

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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CALIFORNIA EXPANDED
METAL PRODUCTS COMPANY,
et al.,

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v.

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CASE NO. C18-0659JLR
ORDER

Plaintiffs,

JAMES A. KLEIN, et al.,
Defendants.

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On January 26, 2023, the court entered an order adopting in part the report and

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recommendation issued by Special Master Mark Walters recommending that the court

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grant in part Plaintiffs’ motion for contempt damages. (See 1/26/23 Order (Dkt. # 332);

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R&R (Dkt. ## 310 (sealed), 336 (redacted)).) In its order, the court ordered Non-Party

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Seal4Safti, Inc. (“S4S”) 1 to “pay a daily fine of $3,500, beginning on February 28, 2023,

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S4S is not a party to the underlying litigation, but it was added to these contempt
proceedings on September 1, 2021. (See 9/1/21 Order (Dkt. # 251).)
ORDER - 1

Case 2:18-cv-00659-JLR Document 338 Filed 03/02/23 Page 2 of 3

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for every day S4S fails to withdraw its [Underwriter Laboratories (‘UL’)] listings that

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reference, depict, or suggest the application of an FRG Strip (or any other intumescent

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strip not more than colorably different from FRG Strip) on the outer sidewall surface of a

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U-shaped track.” (1/26/23 Order at 34.) The court stated that the daily fine would “cease

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once S4S submits a declaration to the court evidencing that it has withdrawn such UL

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listings.” (Id. at 34 & n.33 (“S4S can avoid the fine entirely by withdrawing such UL

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listings before February 28, 2023.”).)

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On February 28, 2023, S4S submitted the instant declaration of Jaroslaw Sydry,
co-founder and co-owner of S4S, in an effort to demonstrate its compliance with the

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above-mentioned portion of the court’s January 26, 2023 order. (See Sydry Decl. (Dkt.

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# 337).) In his declaration, Mr. Sydry states that S4S initiated “orders for changes to [its]

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UL listings” in July and October 2022 and accepted UL’s quotes for those orders in

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September and October 2022. (Sydry Decl. ¶ 3, Exs. A-B.) He further states that S4S

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submitted updated UL listings, which “eliminate any reference, depiction, or suggestion

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that an FRG Strip be applied on the outer surface of a U-Shaped Track,” to UL on

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October 17, 2022. (Id. ¶ 4, Ex. C (including the modified UL listings).) Although UL

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has not yet modified S4S’s UL listings, Mr. Sydry submits evidence establishing that S4S

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has diligently followed up with UL regarding the status of the updated UL listings and

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has requested that UL complete the orders as soon as possible. (Id. ¶ 5, Exs. D-E.)

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Because UL is a third-party entity, there is only so much that S4S can do with

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respect to the removal or modification of its UL listings. Mr. Sydry’s statements and the

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evidence submitted in support of his declaration establish that S4S made reasonable
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Case 2:18-cv-00659-JLR Document 338 Filed 03/02/23 Page 3 of 3

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efforts to remove from its UL listings any reference, depiction, or suggestion of the

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application of an FRG Strip (or any other intumescent strip not colorable different from

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FRG Strip) on the outer sidewall surface of a U-Shaped track. Accordingly, the court

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finds it appropriate to DISCHARGE the daily fine. 2 S4S is no longer required to pay a

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daily fine for noncompliance with the court’s permanent injunction. (See 1/26/23 Order

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at 32-34.)

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Dated this 2nd day of March, 2023.

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A

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JAMES L. ROBART
United States District Judge

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Although S4S submitted the instant declaration on February 28, 2023, rather than before
February 28, the evidence establishes that S4S made reasonable efforts to modify its UL listings
before February 28, 2023. (See generally Sydry Decl. ¶¶ 3-5, Exs. A-E.) Accordingly, S4S
purged itself of the daily fine before the fine began to accrue. (See 1/26/23 Order at 33-34 &
n.33.)
ORDER - 3