### 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.NYSCEF DOC. NO. 39



### SUPREME COURT OF THE STATE OF NEW YORK INDEX NO. 654365/2024 RECEIVED NYSCEF: 09/11/2024



### COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M

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

IN THE MATTER OF THE APPLICATION OF LUMMUS TECHNOLOGY, LLC Petitioner,

- V - AIR PRODUCTS AND CHEMICALS, INC., Respondent.

-----------------------------------------------------------------------------------X HON. JOEL M. COHEN: INDEX NO. 654365/2024 MOTION DATE 08/26/2024 MOTION SEQ. NO. 001

DECISION+ ORDER ON MOTION

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 byPetitioner Lummus Technology, LLC ("Lummus"
or "Petitioner"), the Affidavit ofRichard Jibb sworn to on August 21, 2024, the Emergency Affidavit ofRichard Jibb sworn to on August 21, 2024, the Affirmation ofJoseph Scholz dated August 19, 2024, and the Memorandum ofLaw dated August 23, 2024 in support ofthis application seeking temporary restraints and a preliminaryinjunction pursuant to CPLR 6301 and 7502(c) in aid ofarbitration (collectively, the "Application"); and upon the letter submitted by Respondent AirProducts and Chemicals, Inc. ("APCI" or "Respondent) on September 3, 2024 in opposition to the Application; and upon the arguments presentedby counsel for both parties during hearings before the Court on September4, 2024 and September 10, 2024; and upon further submissions bythe parties in connection therewith (including proposed orders), and upon all pleadings and proceedings hereto andhadherein; and it appearing to the Court that the matter is ofsufficiently emergentnature tojustifythe entry ofthis Order; and it further appearing

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### [* 1]NYSCEF DOC. NO. 39 INDEX NO. 654365/2024 RECEIVED NYSCEF: 09/11/2024



### to the Court that immediate and irreparable harmwill likelyresult and that the award in arbitration to which Petitionermaybe entitled maybe rendered ineffectual without provisional relief, and upon good cause having been shown, and for the reasons stated on the record at the September4 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 apreliminary injunction is GRANTED 

### INPART 

### as set forth below, and otherwise denied; it is further ORDERED 

### that APCI and all persons acting in cooperation or concertwith it, including all affiliates or subsidiaries, are immediatelyrestrained 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 concertwith 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 ofthe Transaction. These steps apply both to documentation (electronic and otherwise) being transferred to Honeywell, and to personnel who will bejoining Honeywell upon the closing ofthe Transaction;

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### [* 2]NYSCEF DOC. NO. 39 INDEX NO. 654365/2024 RECEIVED NYSCEF: 09/11/2024

3. APCI shall ensure that all employees who are transferring to Honeywell as part of the Transaction and had anypotential exposure to Lummus Confidential Information will separate all documents (electronic and otherwise) and emails containing, orpotentially containing, Lummus Confidential Information from the rest oftheir files, and APCI shall collect and retain all such segregated information; 4. APCI employees who are transferring to Honeywell as part ofthe Transaction are prohibited from taking any Lummus Confidential Information with them to Honeywell; 5. APCI employees who are transferring to Honeywell as part ofthe 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 ofa 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 ofthe Memorandum ofUnderstanding between AirProducts and Lummus; and all drafts or copies ofthe TDCA. APCI shall instruct employees to err on the side ofcaution 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 abidedbythe Lummus Confidential Information data segregation protocols described

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herein andwill notretain any Lummus Confidential Information, ortransfer ordisclose the same to Honeywell; and 8. Forthe avoidance ofdoubt, the proposedlicense ofAPCI DevelopedTechnology,
as defined in the TDCA, to Honeywell as part ofthe Transaction shall notresult inthe transfer or disclosure to Honeywell ofany Lummus Confidential Information inviolation ofthis Order. The Court expresses no opinion at this time as to whether such license (or any other aspect ofthe Transactionnot withinthe scope ofthis Order) is otherwise permittedunderthe TDCA; anditis further ORDERED thatthe parties file the transcripts ofthe September4 and September 10, 2024, conferences onNYSCEF uponreceipt. This constitutes the Decision and Order ofthe Court. The Clerkis directto markthis Special Proceeding disposed.

9/11/2024

DATE CHECK ONE: JOEL M. COHEN, J.S.C.

APPLICATION: CHECKIF APPROPRIATE:

# ~ CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

654365/2024 IN THE MATTEROF THE APPLICATION OF LUMMUS TECHNOLOGY, LLC vs. AIR PRODUCTS AND CHEMICALS, INC. Motion No. 001
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### □ OTHER**□** REFERENCE

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