UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NEW ENGLAND COUNTRY No. 22-55432 FOODS, LLC, a Vermont Limited Liability Company, D.C. No. 8:21-cv-01060- Plaintiff-Appellant, DOC-ADS

v. ORDER CERTIFYING VANLAW FOOD PRODUCTS, INC., QUESTION TO a California corporation, THE SUPREME COURT OF Defendant-Appellee. CALIFORNIA

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Argued and Submitted October 17, 2023 Pasadena, California

Filed December 6, 2023

Before: Richard A. Paez and Holly A. Thomas, Circuit Judges, and Jed S. Rakoff, * District Judge.

Order * The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. 2 NEW ENGLAND CTRY. FOODS, LLC V. VANLAW FOOD PROD., INC.

SUMMARY **

Certification Order / California Law

The panel certified the following question to the California Supreme Court:

Is a contractual clause that substantially limits damages for an intentional wrong but does not entirely exempt a party from liability for all possible damages valid under California Civil Code Section 1668?

ORDER

We respectfully ask the Supreme Court of California to exercise its discretion to decide the certified question set forth in section II of this order. We provide the following information in accordance with California Rule of Court 8.548(b). I. Administrative Information The caption of this case is: No. 22-55432 NEW ENGLAND COUNTRY FOODS, LLC, a Vermont Limited Liability Company, Plaintiff-Appellant,

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. NEW ENGLAND CTRY. FOODS, LLC V. VANLAW FOOD PROD., INC. 3

v. VANLAW FOOD PRODUCTS, INC., a California corporation, Defendant-Appellee. The names and addresses of counsel for the parties are:

For Plaintiff-Appellant New England Country Foods, LLC: Michael K. Hagemann, M.K. Hagemann, P.C., 1801 Century Park East, Suite 2400, Century City, California 90067. For Defendant-Appellee Vanlaw Food Products, Inc.: Krista L. DiMercurio, Mark D. Magarian, Magarian and DiMercurio, APLC, 20 Corporate Park, Suite 255, Irvine, California 92606.

If our request for certification is granted, we designate New England Country Foods, LLC as petitioner. It is the appellant before our court. II. Certified Question We certify to the Supreme Court of California the following question of state law:

Is a contractual clause that substantially limits damages for an intentional wrong but does not entirely exempt a party from liability for all possible damages valid under California Civil Code Section 1668? We certify this question pursuant to California Rule of Court 8.548. The answer to this question will determine the outcome of the appeal currently pending in our court. We 4 NEW ENGLAND CTRY. FOODS, LLC V. VANLAW FOOD PROD., INC.

will accept and follow the decision of the California Supreme Court as to this question. Our phrasing of the question should not restrict the California Supreme Court’s consideration of the issues involved. III. Statement