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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JAMES SMITH, on behalf of himself and

all others similarly situated, and on behalf of 

the TRIAD MANUFACTURING, INC. 

EMPLOYEE STOCK OWNERSHIP PLAN, 

 Plaintiffs, 

vs.

GREATBANC TRUST COMPANY; THE 

BOARD OF DIRECTORS OF TRIAD 

MANUFACTURING, INC.; DAVID 

CAITO; ROBERT HARDIE; and

MICHAEL McCORMICK,

Defendants. 

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NO.: 1:20-CV-02350

JUDGE: GUZMAN

MAG. JUDGE: KIM

TRIAD DEFENDANTS’ MOTION TO STAY LITIGATION PENDING APPEAL

NOW COME the Defendants, Board of Directors of Triad Manufacturing, Inc., David 

Caito, Robert Hardie, and Michael McCormick (the “Triad Defendants”) and hereby request this 

Honorable Court stay this litigation, including but not limited to the Triad Defendants’ deadline to 

file their Answer, pending their Appeal of this Court’s decision denying the Triad Defendants’ 

Motion to Compel Arbitration and/or dismiss, and in support thereof state as follows:

1. On August 21, 2020, this Honorable Court denied the Triad Defendants’ Motion to Compel 

Arbitration and/or dismiss (the “Order”). (Dkt No. 51). 

2. On September 3, 2020, the Triad Defendants’ filed a Notice of Appeal (the “Appeal”) of 

the Order pursuant to the Federal Arbitration Act (“FAA”) (9 U.S.C. § 16(a)(1)(C)). (Dkt. 

No. 55). 

3. Generally, a motion to stay depends on (1) whether the stay applicant has made a strong 

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showing that he is likely to succeed on the merits; (2) whether the applicant will be 

irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure 

the parties interested in the proceeding; and (4) where the public interest lies.” Carpenters 

Fringe Benefit Funds v. Royal Builders, Inc., 2008 U.S. Dist. LEXIS 94115, at *7-8 (N.D. 

Ill. June 6, 2008) (citing Bradford-Scott Data Corp. v. Physician Computer Network, 128 

F.3d 504, 505 (7th Cir. 1997)). 

4. However, the Seventh Circuit has held that the filing of a notice of an FAA interlocutory

appeal divests the District Court of jurisdiction as long as the appeal is not frivolous. 

Bradford-Scott Data Corp., 128 F.3d at 505 (“The filing of a notice of an appeal is an event 

of jurisdictional significance - - it confers jurisdiction on the court of appeals and divests 

the district court of its control over those aspects of the case involved in the appeal”); see 

also Goplin v. Weconnect, Inc., 2018 U.S. Dist. LEXIS 231107, at *7-8 (W.D. Wis. Mar. 

14, 2018) (entering an order to stay pending appeal of the denial of a motion to compel 

arbitration because “in the Seventh Circuit, a district court must stay proceedings pending 

the appeal of a denial of a motion to compel arbitration unless the appeal is frivolous”). 

5. In this case, the Triad Defendants’ Appeal relates directly to a dispute over whether or not 

this case should remain in this Court or take place in arbitration. Importantly, “[a]rbitration 

clauses reflect the parties’ preference for non-judicial dispute resolution, which may be 

faster and cheaper...[t]hese benefits are eroded, and may be lost or even turned into net 

losses, if it is necessary to proceed in both judicial and arbitral forums, or to do this 

sequentially.” Id. at 506. 

6. In the event the Seventh Circuit reverses this Court’s Order and enters an Order compelling 

arbitration, the Parties will have wasted a substantial amount of time and resources on 

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continuing litigation pending the appeal. As set forth in Bradford, “[t]he worst possible 

outcome would be to litigate the dispute, to have the court of appeals reverse and order the 

dispute arbitrated, to arbitrate the dispute, and finally return to court to have the award 

enforced....[i]mmediate appeal under § 16(a) helps to cut the loss from duplication.” Id.

7. Finally, the Appeal is not frivolous as the United States Court for the Ninth Circuit Court 

of Appeals is the only appellate court to address the novel area of the law that is the subject 

of the Appeal, and this Court’s Order disagrees with that decision. Furthermore, as set 

forth above, the result of a successful appeal would ultimately end this case in this Court 

and require arbitration. 

8. For all of these reasons and in accord with Seventh Circuit precedent, the Triad Defendants’ 

respectfully request this Honorable Court stay further proceedings in this case, including 

but not limited to the deadline for the Triad Defendants’ Answer, pending a decision on 

Appeal by the United States Court of Appeals of the Seventh Circuit. 

9. The Triad Defendants’ counsel has conferred with Plaintiff’s counsel who has stated they 

object to this motion. 

10. Furthermore, The Triad Defendants’ counsel has conferred with counsel for co-defendant 

GreatBanc Trust Company who has no objection to this motion. 

WHEREFORE, the Triad Defendants respectfully request this Honorable Court enter an 

Order staying further proceedings in this case pending the results of the Appeal. 

Respectfully Submitted, 

/s/ Matthew D. Grabell – 6312929

Matthew D. Grabell (6312929)

Tiffany D. Downs (pro hac vice)

FORD & HARRISON, LLP 

271 – 17th Street, NW, Suite 1900

Atlanta, GA 30363

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mgrabell@fordharrison.com 

Telephone: (404) 888-3820 

Benjamin P. Fryer 

FORD & HARRISON LLP

(admitted pro hac vice)

NC Bar No. 39254

6000 Fairview Road, Suite 1200

Charlotte, NC 28210

bfryer@fordharrison.com 

Telephone: (980) 282-1900

Facsimile: (980) 282-1949

Attorneys for Board of Directors of 

Triad Manufacturing, Inc., David 

Caito, Robert Hardie, and Michael 

McCormick

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on today’s date, September 3, 2020, he served 

a copy of the foregoing Triad Defendants’ Motion to Stay Pending Appeal on all parties via 

operation of the Court’s CM/ECF electronic filing system and to all parties unable to receive 

electronic service, at the address set forth below. 

/s/ Matthew D. Grabell – 6312929

Matthew D. Grabell (6312929)

Tiffany D. Downs (pro hac vice)

FORD & HARRISON, LLP 

271 – 17th Street, NW, Suite 1900

Atlanta, GA 30363

mgrabell@fordharrison.com 

Telephone: (404) 888-3820 

Benjamin P. Fryer 

FORD & HARRISON LLP

(admitted pro hac vice)

NC Bar No. 39254

6000 Fairview Road, Suite 1200

Charlotte, NC 28210

bfryer@fordharrison.com 

Telephone: (980) 282-1900

Facsimile: (980) 282-1949

Attorneys for Board of Directors of Triad 

Manufacturing, Inc., David Caito, Robert 

Hardie, and Michael McCormick

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