Matter of Lummus Tech., LLC v. Air Prods. & Chems., Inc.

2024 NY Slip Op 33189(U)

• Court: New York Supreme Court, New York County
• Decided: September 11, 2024
• Docket: Index No. 654365/2024
• Status: Unpublished

Opinion

Matter of Lummus Tech., LLC v Air Prods. & Chems., Inc. 2024 NY Slip Op 33189(U) September 11, 2024 Supreme Court, New York County Docket Number: Index No. 654365/2024 Judge: Joel M. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 654365/2024 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 09/11/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M ----------------------------------------------------------------------------------- X

IN THE MATTER OF THE APPLICATION OF LUMMUS INDEX NO. 654365/2024 TECHNOLOGY, LLC

Petitioner, MOTION DATE 08/26/2024

- V - MOTION SEQ. NO. 001 AIR PRODUCTS AND CHEMICALS, INC., DECISION+ ORDER ON Respondent. MOTION

----------------------------------------------------------------------------------- X

HON. JOEL M. COHEN:

The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14,23, 30, 31, 32, 33, 34, 35, 36, 37, 38 were read on this motion for PRELIMINARY INJUNCTION/RESTRAINING ORDER

Upon reviewing the Petition filed by Petitioner Lummus Technology, LLC ("Lummus"

or "Petitioner"), the Affidavit of Richard Jibb sworn to on August 21, 2024, the Emergency

Affidavit of Richard Jibb sworn to on August 21, 2024, the Affirmation of Joseph Scholz dated

August 19, 2024, and the Memorandum of Law dated August 23, 2024 in support of this

application seeking temporary restraints and a preliminary injunction pursuant to CPLR 6301

and 7502(c) in aid of arbitration (collectively, the "Application"); and upon the letter submitted

by Respondent Air Products and Chemicals, Inc. ("APCI" or "Respondent) on September 3,

2024 in opposition to the Application; and upon the arguments presented by counsel for both

parties during hearings before the Court on September 4, 2024 and September 10, 2024; and

upon further submissions by the parties in connection therewith (including proposed orders), and

upon all pleadings and proceedings hereto and had herein; and it appearing to the Court that the

matter is of sufficiently emergent nature to justify the entry of this Order; and it further appearing

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to the Court that immediate and irreparable harm will likely result and that the award in

arbitration to which Petitioner may be entitled may be rendered ineffectual without provisional

relief, and upon good cause having been shown, and for the reasons stated on the record at the

September 4 and 10 oral arguments;

NOW, THEREFORE, it is hereby

ORDERED AND ADJUDGED that Lummus' s Petition (and motion by Order to Show

Cause) for temporary restraints and a preliminary injunction is GRANTED IN PART as set

forth below, and otherwise denied; it is further

ORDERED that APCI and all persons acting in cooperation or concert with it, including

all affiliates or subsidiaries, are immediately restrained and enjoined from transferring or

disclosing any Confidential Information, as that term is defined in the Technology Development

and Commercialization Agreement (NYSCEF 5, the "Agreement" or "TDCA"), belonging to

Lummus to Honeywell International, Inc. or any person or entity acting in cooperation or

concert with it, including its subsidiaries, affiliates or divisions, including its subsidiary

Honeywell UOP (collectively "Honeywell"); it is further

ORDERED that:

1. APCI shall expressly exclude Lummus Confidential Information from the

pending transaction between APCI and Honeywell (the "Transaction");

2. APCI shall take specific and deliberate steps necessary to prevent the transfer of

any Lummus Confidential Information to Honeywell as part of the Transaction. These steps

apply both to documentation (electronic and otherwise) being transferred to Honeywell, and to

personnel who will be joining Honeywell upon the closing of the Transaction;

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3. APCI shall ensure that all employees who are transferring to Honeywell as part of

the Transaction and had any potential exposure to Lummus Confidential Information will

separate all documents (electronic and otherwise) and emails containing, or potentially

containing, Lummus Confidential Information from the rest of their files, and APCI shall collect

and retain all such segregated information;

4. APCI employees who are transferring to Honeywell as part of the Transaction are

prohibited from taking any Lummus Confidential Information with them to Honeywell;

5. APCI employees who are transferring to Honeywell as part of the transaction are

prohibited from disclosing any Lummus Confidential Information to Honeywell;

6. APCI shall instruct each APCI employee transferring to Honeywell who has had

any potential exposure to Lummus Confidential Information to move all files potentially

containing Lummus Confidential Information to a single folder and ensure that such files have

been permanently deleted from their original location. These files shall include, but are not

limited to, all emails containing a Lummus email address; all files accessed from specified share

drives used to store Lummus-related information; all files in which any of a specified list of

Lummus-related terms occur, including the word Lummus itself; all calculations, simulations or

data generated from or containing process specifications received from Lummus (including cost

estimates and scheduling information); all drafts or copies of the Memorandum of Understanding

between Air Products and Lummus; and all drafts or copies of the TDCA. APCI shall instruct

employees to err on the side of caution and be over-inclusive when segregating documents

potentially containing Lummus Confidential Information;

7. APCI shall require employees transferring to Honeywell to certify in writing that

they have abided by the Lummus Confidential Information data segregation protocols described

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herein and will not retain any Lummus Confidential Information, or transfer or disclose the same

to Honeywell; and

8. For the avoidance of doubt, the proposed license of APCI Developed Technology,

as defined in the TDCA, to Honeywell as part of the Transaction shall not result in the transfer or

disclosure to Honeywell of any Lummus Confidential Information in violation of this Order.

The Court expresses no opinion at this time as to whether such license (or any other aspect of the

Transaction not within the scope of this Order) is otherwise permitted under the TDCA; and it is

further

ORDERED that the parties file the transcripts of the September 4 and September 10,

2024, conferences on NYSCEF upon receipt.

This constitutes the Decision and Order of the Court. The Clerk is direct to mark this

Special Proceeding disposed.

9/11/2024 DATE JOEL M. COHEN, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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