Preview
FILED: NEW YORK COUNTY CLERK 12/14/2021
01/10/2022 11:15
06:59 PM INDEX NO. 652343/2018
NYSCEF DOC. NO. 245
451 RECEIVED NYSCEF: 12/14/2021
01/10/2022
Exhibit P
Excerpts from the Affirmation of Jason P. Hipp in Support of Plaintiffs’ Cross-Motion for
Summary Judgment, Dated September 24, 2021
Index No. 652343/2018 Motion Seq. No. __
FILED: NEW YORK COUNTY CLERK 12/14/2021
01/10/2022 11:15
06:59 PM INDEX NO. 652343/2018
NYSCEF DOC. NO. 245
451 RECEIVED NYSCEF: 12/14/2021
01/10/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------- X
CRESCO LABS NEW YORK, LLC, a New :
York limited liability company, and CRESCO :
LABS, LLC, an Illinois limited liability : Index No. 652343/2018
company, :
: Hon. Andrew Borrok
:
Plaintiffs/Counterclaim Defendants, :
: AFFIRMATION OF JASON P.
v. : HIPP IN SUPPORT OF
: PLAINTIFFS’ CROSS-MOTION
: FOR SUMMARY JUDGMENT
FIORELLO PHARMACEUTICALS, INC., a :
New York corporation, :
:
Defendant/Counterclaimant.
----------------------------------------------------------- X
I, Jason P. Hipp, being duly sworn, depose and say the following statements to be true:
1. I am an attorney at the law firm Jenner & Block, LLP and represent Cresco Labs
New York, LLC and Cresco Labs, LLC (collectively, “Cresco” or “Plaintiffs”), in this
proceeding against Fiorello Pharmaceuticals, Inc. (“Fiorello”).
2. I make these statements based on my review of the record in this case or my
personal knowledge.
3. This affirmation includes references to the transcripts of depositions taken in this
matter. Relevant excerpts from the deposition transcripts of Cresco’s CEO Charles Bachtell,
Cresco’s CFO Ken Amann, Cresco’s in-house counsel John Figone, Cresco’s outside counsel
Katherine Lewis, Fiorello’s co-CEO Eric Sirota, Fiorello’s co-CEO Susan Yoss, Fiorello
1
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NYSCEF DOC. NO. 245
451 RECEIVED NYSCEF: 12/14/2021
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that they act as escrow. Id. at 8. On Sunday, February 25, Yoss informed Cresco that Fiorello’s
outside counsel could serve as escrow agent for the good faith deposit. Id. at 7. Cresco’s
counsel and Fiorello’s counsel negotiated and finalized the escrow agreement on February 27
and 28. Id. at 2-6.
14. On March 1, the escrow agreement was executed, and Cresco wired the $500,000
good faith payment to the escrow. Id. at 1.
15. Fiorello claims Cresco “unilaterally insisted . . . that the Good Faith Payment be
deposited into an escrow account,” Ex. 11 ¶ 87, but use of an escrow for a good faith payment is
“customary in a transaction of this size and scope.” Ex. 2 at 60:3-8.
16. On March 29, 2018, Fiorello’s counsel emailed Cresco that “the Good Faith
Deposit is now subject to return” and that he had advised Fiorello “that it must be prepared to
return these funds.” A true and correct copy of that email is attached hereto as Exhibit 44.
Definitive Agreement
17. “Promptly following the execution of this LOI,” the parties were obligated to
work in good faith to prepare and execute a definitive agreement consistent with the terms of the
LOI. Ex. 13 at 4. The Parties further agreed that they would “endeavor to execute the Definitive
Agreement as soon as practicable,” subject to the necessary approvals. Id. at 3.
18. Cresco made good faith efforts to promptly prepare the documents, as required by
the LOI. Cresco’s CEO was the lead negotiator, demonstrating Cresco’s dedication and
commitment to completing the transaction, consistent with the importance of entering the New
York market to Cresco’s business plan. Ex. 1 at 83:6-12. Cresco also retained outside counsel,
which gathered a team of at least eight people to work on drafting documents, due diligence,
“preparing for a closing,” “communicating with the other side, moving the transaction forward,”
4
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NYSCEF DOC. NO. 245
451 RECEIVED NYSCEF: 12/14/2021
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and analyzing tax issues related to the transaction. Ex. 4 at 39:10-41:17. The team included
multiple corporate attorneys, regulatory counsel, a tax attorney, a labor and employment
attorney, a finance attorney, and a paralegal. Id. and Ex. 4 at 43:10-44:22.
19. Cresco’s in-house counsel prepared initial draft documents, beginning even before
the LOI was fully executed. By February 12, 2018 (three days before the LOI was executed),
Cresco had prepared a draft promissory note. By February 19, 2018 (four days after the LOI was
executed), Cresco had prepared a draft purchase and sale agreement, management oversight
agreement, guaranty, consulting agreement, and other ancillary documents. An excerpt of a true
and correct copy of Cresco’s privilege log, showing that Cresco had prepared these drafts, is
attached hereto as Exhibit 16.
20. Cresco’s outside counsel then revised the draft documents, completing a 38-page
draft of the definitive agreement within the first two weeks of the LOI period. Ex. 4 at 53:8-20.
The parties agreed that the definitive agreement (also referred to as the stock purchase agreement
or “SPA”) was the key document which needed to be completed before the ancillary deal
documents could be finalized. Ex. 1 at 217:24-220:15. Cresco provided a first draft of the
definitive agreement to Fiorello on March 1, 2018. A true and correct copy of Cresco’s March 1,
2018 email to Fiorello, attaching the draft definitive agreement, is attached hereto as Exhibit 17.
21. After turning the first draft, Cresco listened to Fiorello’s feedback at an in-person
meeting that Cresco’s CEO, Charles Bachtell, and Cresco’s president, Joe Caltabiano, had with
Sirota and Yoss in New York on March 2, 2018 (the day after Cresco sent the draft definitive
agreement to Fiorello), and volunteered to turn the next draft to keep things moving. Ex. 1 at
229:24-231:10. A true and correct copy of Bachtell’s March 2, 2018 email to Cresco’s outside
counsel about how to implement Fiorello’s requested changes is attached hereto as Exhibit 18.
5
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true and correct copy of Sirota’s text messages with Scorsis is attached hereto as Exhibit 40. On
March 22, Sirota texted the same message to GTI’s founder Ben Kovler. A true and correct copy
of Sirota’s text messages with Kovler is attached hereto as Exhibit 41.
62. Unlike any purported breaches of confidentiality by Cresco, Fiorello’s disclosure
of the precise end of the exclusivity period caused Cresco significant injury: these disclosures
directly facilitated Fiorello’s strategy to discuss alternative transactions with third parties, obtain
higher offers, and then stall negotiations with Cresco and ensure the higher offers would be
waiting for them at the precise moment that exclusivity expired.
63. Finally, any alleged breach of confidentiality by Cresco did not damage Fiorello.
At his deposition, Sirota was given four opportunities to explain how Cresco’s alleged breaches
of confidentiality had harmed Fiorello, but he was not able to articulate any actual harm. The
best he could do was assert that a confidentiality breach would “potentially injure” Fiorello’s
ability to seek financing. Ex. 5 at 234:25-237:5.
64. Nor could Fiorello establish any damages from the claimed delays in finalizing
the definitive agreement with Cresco given that it ultimately entered into a more lucrative
transaction than the definitive agreement with Cresco. A true and correct copy of the merger
agreement between Fiorello and GTI is attached hereto as Exhibit 42. Fiorello also obtained
sufficient financing to support its operations. A true and correct copy of an August 30, 2018
letter to DOH from Fiorello’s counsel representing that it had obtained a commitment for “$15-
$20 million to support NY operations” is attached hereto as Exhibit 43.
65. I affirm that the foregoing is true under penalty of perjury.
15
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NYSCEF DOC. NO. 245
451 RECEIVED NYSCEF: 12/14/2021
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New York, New York /s/ Jason P. Hipp _
September 24, 2021 Jason P. Hipp, Esq.
Jenner & Block LLP
Counsel for Plaintiffs
Cresco Labs New York, LLC and Cresco
Labs, LLC
16
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NYSCEF DOC. NO. 245
451 RECEIVED NYSCEF: 12/14/2021
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EXHIBIT 16
Excerpt of Cresco's privilege log showing the draft
deal documents Cresco prepared in February 2018
Index No. 652343/2018
FILED: NEW YORK COUNTY CLERK 12/14/2021
01/10/2022 11:15
06:59 PM INDEX NO. 652343/2018
NYSCEF DOC. NO. 245
451 Cresco Labs, LLC, et al v. Fiorello Pharmaceuticals, Inc., et al RECEIVED
Confidential NYSCEF:
- Subject 12/14/2021
01/10/2022
to ProtectiveOrder
Index No. 652343/2018
Plaintiffs' Privilege Log
No. Begin Date/Date End Date/Date File Type Authors and Number Number of Bates Range Privilege Description
Created Last Modified Recipients of Emails Unique
in Thread Attachments
1 2/11/2018 19:10 EMAIL John Figone 1 3 CRES00008860 - Attorney-Client Email providing legal advice re
Charlie Bachtell CRES00008861 Privilege Fiorello transaction.
Ken Amann
Erin Alexander
2 2/12/2018 20:35 2/19/2018 21:03 EFILE 0 Withheld Attorney-Client Draft promissory note in the files of
Privilege John Figone.
3 2/12/2018 21:13 2/19/2018 21:03 EFILE 0 Withheld Attorney-Client Draft promissory note in the files of
Privilege John Figone.
4 2/12/2018 21:20 2/19/2018 21:03 EFILE 0 Withheld Attorney-Client Draft promissory note in the files of
Privilege John Figone.
5 2/14/2018 12:23 EMAIL John Figone 1 0 Withheld Attorney-Client Email providing legal advice re
Ken Amann Privilege Cresco Labs New York, LLC and
Charlie Bachtell other entities.
6 2/14/2018 15:27 2/14/2018 16:58 EMAIL Charles Bachtell 5 0 Withheld Attorney-Client Uninterrupted email chain discussing
John Figone Privilege legal advice re consulting agreement
term sheet.
7 2/14/2018 16:27 EMAIL John Figone 1 0 Withheld Attorney-Client Email providing legal advice re
Charlie Bachtell Privilege consulting agreement term sheet.
8 2/14/2018 16:27 2/14/2018 16:49 EMAIL John Figone 3 0 Withheld Attorney-Client Uninterrupted email chain discussing
Charlie Bachtell Privilege legal advice re consulting agreement
term sheet.
9 2/14/2018 16:27 2/14/2018 16:50 EMAIL John Figone 4 0 Withheld Attorney-Client Uninterrupted email chain discussing
Charlie Bachtell Privilege legal advice re consulting agreement
term sheet.
10 2/14/2018 16:27 2/14/2018 16:59 EMAIL John Figone 6 0 Withheld Attorney-Client Uninterrupted email chain discussing
Charlie Bachtell Privilege legal advice re consulting agreement
term sheet.
11 2/14/2018 21:20 2/14/2018 23:55 EMAIL John J. Figone 2 0 Withheld Attorney-Client Uninterrupted email chain providing
Charlie Bachtell Privilege legal advice re Fiorello transaction.
12 2/14/2018 23:20 EMAIL Charles Bachtell 1 0 Withheld Attorney-Client Email requesting legal advice re
John Figone Privilege Fiorello transaction.
13 2/15/2018 11:48 EMAIL John Figone 1 0 Withheld Attorney-Client Email providing legal advice re
Charlie Bachtell Privilege Fiorello transaction.
Ken Amann
FILED: NEW YORK COUNTY CLERK 12/14/2021
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NYSCEF DOC. NO. 245
451 RECEIVED
Confidential NYSCEF:
- Subject 12/14/2021
01/10/2022
to ProtectiveOrder
No. Begin Date/Date End Date/Date File Type Authors and Number Number of Bates Range Privilege Description
Created Last Modified Recipients of Emails Unique
in Thread Attachments
14 2/18/2018 9:28 2/18/2018 11:37 EMAIL Erin Alexander 4 0 Withheld Attorney-Client Uninterrupted email chain discussing
John Figone Privilege legal advice re Fiorello transaction.
Ken Amann
Charlie Bachtell
15 2/19/2018 14:54 2/19/2018 17:55 EMAIL Ken Amann 2 1 Withheld Attorney-Client Uninterrupted email chain providing
Jake Hosler Privilege and reflecting legal advice re Cresco
Labs New York, LLC.
16 2/19/2018 15:55 2/19/2018 18:46 EMAIL John Figone 2 1 Withheld Attorney-Client Uninterrupted email chain providing
Ken Amann Privilege legal advice re escrow for Fiorello
transaction.
17 2/19/2018 16:30 2/19/2018 17:07 EFILE 0 Withheld Attorney-Client Draft management oversight
Privilege agreement drafted by John Figone.
18 2/19/2018 17:07 2/19/2018 21:05 EFILE 0 Withheld Attorney-Client Draft purchase and sale agreement
Privilege drafted by John Figone.
19 2/19/2018 17:41 2/19/2018 18:19 EFILE 0 Withheld Attorney-Client Draft guaranty in the files of John
Privilege Figone.
20 2/19/2018 18:15 2/19/2018 18:19 EFILE 0 Withheld Attorney-Client Draft guaranty in the files of John
Privilege Figone.
21 2/19/2018 18:27 2/19/2018 18:55 EFILE 0 Withheld Attorney-Client Draft promissory note in the files of
Privilege John Figone.
22 2/19/2018 19:38 2/19/2018 19:41 EFILE 0 Withheld Attorney-Client Draft consulting agreement in the files
Privilege of John Figone.
23 2/19/2018 19:47 2/19/2018 19:47 EFILE 0 Withheld Attorney-Client Draft consulting agreement in the files
Privilege of John Figone.
24 2/19/2018 19:51 2/19/2018 19:52 EFILE 0 Withheld Attorney-Client Draft NDA in the files of John Figone.
Privilege
25 2/19/2018 19:52 2/19/2018 19:52 EFILE 0 Withheld Attorney-Client Draft NDA in the files of John Figone.
Privilege
26 2/19/2018 19:58 2/19/2018 19:58 EFILE 0 Withheld Attorney-Client Draft secretary's certificate drafted by
Privilege John Figone.
27 2/19/2018 20:01 2/19/2018 20:01 EFILE 0 Withheld Attorney-Client Draft secretary's certificate drafted by
Privilege John Figone.
28 2/19/2018 20:45 2/19/2018 21:05 EFILE 0 Withheld Attorney-Client Draft shareholder election certificate
Privilege drafted by John Figone.
2
FILED: NEW YORK COUNTY CLERK 12/14/2021
01/10/2022 11:15
06:59 PM INDEX NO. 652343/2018
NYSCEF DOC. NO. 245
451 RECEIVED
Confidential NYSCEF:
- Subject 12/14/2021
01/10/2022
to ProtectiveOrder
No. Begin Date/Date End Date/Date File Type Authors and Number Number of Bates Range Privilege Description
Created Last Modified Recipients of Emails Unique
in Thread Attachments
29 2/19/2018 21:10 2/19/2018 21:10 EFILE 0 Withheld Attorney-Client Draft shareholder election certificate
Privilege drafted by John Figone.
30 2/19/2018 21:10 2/19/2018 21:10 EFILE 0 Withheld Attorney-Client Draft shareholder election certificate
Privilege drafted by John Figone.
31 2/19/2018 22:03 EMAIL John Figone 1 18 Withheld Attorney-Client Email providing legal advice re
Charlie Bachtell Privilege Fiorello transaction.
Ken Amann
32 2/20/2018 12:49 EMAIL John Figone 1 0 CRES00008503 - Attorney-Client Email providing legal advice re
Ken Amann CRES00008504 Privilege escrow for Fiorello transaction.
Charlie Bachtell
33 2/20/2018 16:11 EMAIL John Figone 1 0 CRES00008497 - Attorney-Client Email providing legal advice re
Ken Amann CRES00008500 Privilege Fiorello transaction.
Charlie Bachtell
34 2/21/2018 16:19 2/21/2018 19:54 EMAIL Ken Amann 3 1 Withheld Attorney-Client Uninterrupted email chain discussing
Charlie Bachtell Privilege legal advice re Fiorello transaction
John Figone and other transactions.
35 2/21/2018 16:19 2/21/2018 19:55 EMAIL Charlie Bachtell 4 2 Withheld Attorney-Client Uninterrupted email chain discussing
Ken Amann Privilege legal advice re Fiorello transaction
John Figone and other transactions.
36 2/21/2018 17:13 2/21/2018 19:25 EMAIL John Figone 4 2 Withheld Attorney-Client Uninterrupted email chain discussing
Charlie Bachtell Privilege legal advice re Fiorello transaction.
Erin Alexander
37 2/21/2018 19:13 EMAIL Charlie Bachtell 1 1 Withheld Attorney-Client Email requesting legal advice re
John Figone Privilege Fiorello transaction.
Erin Alexander
38 2/21/2018 20:14 2/22/2018 8:19 EMAIL Bob Morgan 2 0 Withheld Attorney-Client Uninterrupted email chain discussing
John Figone Privilege legal advice re Fiorello transaction.
39 2/21/2018 20:14 4/4/2018 12:02 EMAIL John Figone 4 1 Withheld Attorney-Client Uninterrupted email chain discussing
Charlie Bachtell Privilege legal advice re Fiorello transaction.
Katherine B. Lewis
Bob Morgan
Julia A. Turk
3
Preview
FILED: NEW YORK COUNTY CLERK 12/14/2021 01/10/2022 11:15 06:59 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 245 451 RECEIVED NYSCEF: 12/14/2021 01/10/2022 Exhibit P Excerpts from the Affirmation of Jason P. Hipp in Support of Plaintiffs’ Cross-Motion for Summary Judgment, Dated September 24, 2021 Index No. 652343/2018 Motion Seq. No. __ FILED: NEW YORK COUNTY CLERK 12/14/2021 01/10/2022 11:15 06:59 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 245 451 RECEIVED NYSCEF: 12/14/2021 01/10/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------- X CRESCO LABS NEW YORK, LLC, a New : York limited liability company, and CRESCO : LABS, LLC, an Illinois limited liability : Index No. 652343/2018 company, : : Hon. Andrew Borrok : Plaintiffs/Counterclaim Defendants, : : AFFIRMATION OF JASON P. v. : HIPP IN SUPPORT OF : PLAINTIFFS’ CROSS-MOTION : FOR SUMMARY JUDGMENT FIORELLO PHARMACEUTICALS, INC., a : New York corporation, : : Defendant/Counterclaimant. ----------------------------------------------------------- X I, Jason P. Hipp, being duly sworn, depose and say the following statements to be true: 1. I am an attorney at the law firm Jenner & Block, LLP and represent Cresco Labs New York, LLC and Cresco Labs, LLC (collectively, “Cresco” or “Plaintiffs”), in this proceeding against Fiorello Pharmaceuticals, Inc. (“Fiorello”). 2. I make these statements based on my review of the record in this case or my personal knowledge. 3. This affirmation includes references to the transcripts of depositions taken in this matter. Relevant excerpts from the deposition transcripts of Cresco’s CEO Charles Bachtell, Cresco’s CFO Ken Amann, Cresco’s in-house counsel John Figone, Cresco’s outside counsel Katherine Lewis, Fiorello’s co-CEO Eric Sirota, Fiorello’s co-CEO Susan Yoss, Fiorello 1 FILED: NEW YORK COUNTY CLERK 12/14/2021 01/10/2022 11:15 06:59 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 245 451 RECEIVED NYSCEF: 12/14/2021 01/10/2022 that they act as escrow. Id. at 8. On Sunday, February 25, Yoss informed Cresco that Fiorello’s outside counsel could serve as escrow agent for the good faith deposit. Id. at 7. Cresco’s counsel and Fiorello’s counsel negotiated and finalized the escrow agreement on February 27 and 28. Id. at 2-6. 14. On March 1, the escrow agreement was executed, and Cresco wired the $500,000 good faith payment to the escrow. Id. at 1. 15. Fiorello claims Cresco “unilaterally insisted . . . that the Good Faith Payment be deposited into an escrow account,” Ex. 11 ¶ 87, but use of an escrow for a good faith payment is “customary in a transaction of this size and scope.” Ex. 2 at 60:3-8. 16. On March 29, 2018, Fiorello’s counsel emailed Cresco that “the Good Faith Deposit is now subject to return” and that he had advised Fiorello “that it must be prepared to return these funds.” A true and correct copy of that email is attached hereto as Exhibit 44. Definitive Agreement 17. “Promptly following the execution of this LOI,” the parties were obligated to work in good faith to prepare and execute a definitive agreement consistent with the terms of the LOI. Ex. 13 at 4. The Parties further agreed that they would “endeavor to execute the Definitive Agreement as soon as practicable,” subject to the necessary approvals. Id. at 3. 18. Cresco made good faith efforts to promptly prepare the documents, as required by the LOI. Cresco’s CEO was the lead negotiator, demonstrating Cresco’s dedication and commitment to completing the transaction, consistent with the importance of entering the New York market to Cresco’s business plan. Ex. 1 at 83:6-12. Cresco also retained outside counsel, which gathered a team of at least eight people to work on drafting documents, due diligence, “preparing for a closing,” “communicating with the other side, moving the transaction forward,” 4 FILED: NEW YORK COUNTY CLERK 12/14/2021 01/10/2022 11:15 06:59 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 245 451 RECEIVED NYSCEF: 12/14/2021 01/10/2022 and analyzing tax issues related to the transaction. Ex. 4 at 39:10-41:17. The team included multiple corporate attorneys, regulatory counsel, a tax attorney, a labor and employment attorney, a finance attorney, and a paralegal. Id. and Ex. 4 at 43:10-44:22. 19. Cresco’s in-house counsel prepared initial draft documents, beginning even before the LOI was fully executed. By February 12, 2018 (three days before the LOI was executed), Cresco had prepared a draft promissory note. By February 19, 2018 (four days after the LOI was executed), Cresco had prepared a draft purchase and sale agreement, management oversight agreement, guaranty, consulting agreement, and other ancillary documents. An excerpt of a true and correct copy of Cresco’s privilege log, showing that Cresco had prepared these drafts, is attached hereto as Exhibit 16. 20. Cresco’s outside counsel then revised the draft documents, completing a 38-page draft of the definitive agreement within the first two weeks of the LOI period. Ex. 4 at 53:8-20. The parties agreed that the definitive agreement (also referred to as the stock purchase agreement or “SPA”) was the key document which needed to be completed before the ancillary deal documents could be finalized. Ex. 1 at 217:24-220:15. Cresco provided a first draft of the definitive agreement to Fiorello on March 1, 2018. A true and correct copy of Cresco’s March 1, 2018 email to Fiorello, attaching the draft definitive agreement, is attached hereto as Exhibit 17. 21. After turning the first draft, Cresco listened to Fiorello’s feedback at an in-person meeting that Cresco’s CEO, Charles Bachtell, and Cresco’s president, Joe Caltabiano, had with Sirota and Yoss in New York on March 2, 2018 (the day after Cresco sent the draft definitive agreement to Fiorello), and volunteered to turn the next draft to keep things moving. Ex. 1 at 229:24-231:10. A true and correct copy of Bachtell’s March 2, 2018 email to Cresco’s outside counsel about how to implement Fiorello’s requested changes is attached hereto as Exhibit 18. 5 FILED: NEW YORK COUNTY CLERK 12/14/2021 01/10/2022 11:15 06:59 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 245 451 RECEIVED NYSCEF: 12/14/2021 01/10/2022 true and correct copy of Sirota’s text messages with Scorsis is attached hereto as Exhibit 40. On March 22, Sirota texted the same message to GTI’s founder Ben Kovler. A true and correct copy of Sirota’s text messages with Kovler is attached hereto as Exhibit 41. 62. Unlike any purported breaches of confidentiality by Cresco, Fiorello’s disclosure of the precise end of the exclusivity period caused Cresco significant injury: these disclosures directly facilitated Fiorello’s strategy to discuss alternative transactions with third parties, obtain higher offers, and then stall negotiations with Cresco and ensure the higher offers would be waiting for them at the precise moment that exclusivity expired. 63. Finally, any alleged breach of confidentiality by Cresco did not damage Fiorello. At his deposition, Sirota was given four opportunities to explain how Cresco’s alleged breaches of confidentiality had harmed Fiorello, but he was not able to articulate any actual harm. The best he could do was assert that a confidentiality breach would “potentially injure” Fiorello’s ability to seek financing. Ex. 5 at 234:25-237:5. 64. Nor could Fiorello establish any damages from the claimed delays in finalizing the definitive agreement with Cresco given that it ultimately entered into a more lucrative transaction than the definitive agreement with Cresco. A true and correct copy of the merger agreement between Fiorello and GTI is attached hereto as Exhibit 42. Fiorello also obtained sufficient financing to support its operations. A true and correct copy of an August 30, 2018 letter to DOH from Fiorello’s counsel representing that it had obtained a commitment for “$15- $20 million to support NY operations” is attached hereto as Exhibit 43. 65. I affirm that the foregoing is true under penalty of perjury. 15 FILED: NEW YORK COUNTY CLERK 12/14/2021 01/10/2022 11:15 06:59 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 245 451 RECEIVED NYSCEF: 12/14/2021 01/10/2022 New York, New York /s/ Jason P. Hipp _ September 24, 2021 Jason P. Hipp, Esq. Jenner & Block LLP Counsel for Plaintiffs Cresco Labs New York, LLC and Cresco Labs, LLC 16 FILED: NEW YORK COUNTY CLERK 12/14/2021 01/10/2022 11:15 06:59 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 245 451 RECEIVED NYSCEF: 12/14/2021 01/10/2022 EXHIBIT 16 Excerpt of Cresco's privilege log showing the draft deal documents Cresco prepared in February 2018 Index No. 652343/2018 FILED: NEW YORK COUNTY CLERK 12/14/2021 01/10/2022 11:15 06:59 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 245 451 Cresco Labs, LLC, et al v. Fiorello Pharmaceuticals, Inc., et al RECEIVED Confidential NYSCEF: - Subject 12/14/2021 01/10/2022 to ProtectiveOrder Index No. 652343/2018 Plaintiffs' Privilege Log No. Begin Date/Date End Date/Date File Type Authors and Number Number of Bates Range Privilege Description Created Last Modified Recipients of Emails Unique in Thread Attachments 1 2/11/2018 19:10 EMAIL John Figone 1 3 CRES00008860 - Attorney-Client Email providing legal advice re Charlie Bachtell CRES00008861 Privilege Fiorello transaction. Ken Amann Erin Alexander 2 2/12/2018 20:35 2/19/2018 21:03 EFILE 0 Withheld Attorney-Client Draft promissory note in the files of Privilege John Figone. 3 2/12/2018 21:13 2/19/2018 21:03 EFILE 0 Withheld Attorney-Client Draft promissory note in the files of Privilege John Figone. 4 2/12/2018 21:20 2/19/2018 21:03 EFILE 0 Withheld Attorney-Client Draft promissory note in the files of Privilege John Figone. 5 2/14/2018 12:23 EMAIL John Figone 1 0 Withheld Attorney-Client Email providing legal advice re Ken Amann Privilege Cresco Labs New York, LLC and Charlie Bachtell other entities. 6 2/14/2018 15:27 2/14/2018 16:58 EMAIL Charles Bachtell 5 0 Withheld Attorney-Client Uninterrupted email chain discussing John Figone Privilege legal advice re consulting agreement term sheet. 7 2/14/2018 16:27 EMAIL John Figone 1 0 Withheld Attorney-Client Email providing legal advice re Charlie Bachtell Privilege consulting agreement term sheet. 8 2/14/2018 16:27 2/14/2018 16:49 EMAIL John Figone 3 0 Withheld Attorney-Client Uninterrupted email chain discussing Charlie Bachtell Privilege legal advice re consulting agreement term sheet. 9 2/14/2018 16:27 2/14/2018 16:50 EMAIL John Figone 4 0 Withheld Attorney-Client Uninterrupted email chain discussing Charlie Bachtell Privilege legal advice re consulting agreement term sheet. 10 2/14/2018 16:27 2/14/2018 16:59 EMAIL John Figone 6 0 Withheld Attorney-Client Uninterrupted email chain discussing Charlie Bachtell Privilege legal advice re consulting agreement term sheet. 11 2/14/2018 21:20 2/14/2018 23:55 EMAIL John J. Figone 2 0 Withheld Attorney-Client Uninterrupted email chain providing Charlie Bachtell Privilege legal advice re Fiorello transaction. 12 2/14/2018 23:20 EMAIL Charles Bachtell 1 0 Withheld Attorney-Client Email requesting legal advice re John Figone Privilege Fiorello transaction. 13 2/15/2018 11:48 EMAIL John Figone 1 0 Withheld Attorney-Client Email providing legal advice re Charlie Bachtell Privilege Fiorello transaction. Ken Amann FILED: NEW YORK COUNTY CLERK 12/14/2021 01/10/2022 11:15 06:59 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 245 451 RECEIVED Confidential NYSCEF: - Subject 12/14/2021 01/10/2022 to ProtectiveOrder No. Begin Date/Date End Date/Date File Type Authors and Number Number of Bates Range Privilege Description Created Last Modified Recipients of Emails Unique in Thread Attachments 14 2/18/2018 9:28 2/18/2018 11:37 EMAIL Erin Alexander 4 0 Withheld Attorney-Client Uninterrupted email chain discussing John Figone Privilege legal advice re Fiorello transaction. Ken Amann Charlie Bachtell 15 2/19/2018 14:54 2/19/2018 17:55 EMAIL Ken Amann 2 1 Withheld Attorney-Client Uninterrupted email chain providing Jake Hosler Privilege and reflecting legal advice re Cresco Labs New York, LLC. 16 2/19/2018 15:55 2/19/2018 18:46 EMAIL John Figone 2 1 Withheld Attorney-Client Uninterrupted email chain providing Ken Amann Privilege legal advice re escrow for Fiorello transaction. 17 2/19/2018 16:30 2/19/2018 17:07 EFILE 0 Withheld Attorney-Client Draft management oversight Privilege agreement drafted by John Figone. 18 2/19/2018 17:07 2/19/2018 21:05 EFILE 0 Withheld Attorney-Client Draft purchase and sale agreement Privilege drafted by John Figone. 19 2/19/2018 17:41 2/19/2018 18:19 EFILE 0 Withheld Attorney-Client Draft guaranty in the files of John Privilege Figone. 20 2/19/2018 18:15 2/19/2018 18:19 EFILE 0 Withheld Attorney-Client Draft guaranty in the files of John Privilege Figone. 21 2/19/2018 18:27 2/19/2018 18:55 EFILE 0 Withheld Attorney-Client Draft promissory note in the files of Privilege John Figone. 22 2/19/2018 19:38 2/19/2018 19:41 EFILE 0 Withheld Attorney-Client Draft consulting agreement in the files Privilege of John Figone. 23 2/19/2018 19:47 2/19/2018 19:47 EFILE 0 Withheld Attorney-Client Draft consulting agreement in the files Privilege of John Figone. 24 2/19/2018 19:51 2/19/2018 19:52 EFILE 0 Withheld Attorney-Client Draft NDA in the files of John Figone. Privilege 25 2/19/2018 19:52 2/19/2018 19:52 EFILE 0 Withheld Attorney-Client Draft NDA in the files of John Figone. Privilege 26 2/19/2018 19:58 2/19/2018 19:58 EFILE 0 Withheld Attorney-Client Draft secretary's certificate drafted by Privilege John Figone. 27 2/19/2018 20:01 2/19/2018 20:01 EFILE 0 Withheld Attorney-Client Draft secretary's certificate drafted by Privilege John Figone. 28 2/19/2018 20:45 2/19/2018 21:05 EFILE 0 Withheld Attorney-Client Draft shareholder election certificate Privilege drafted by John Figone. 2 FILED: NEW YORK COUNTY CLERK 12/14/2021 01/10/2022 11:15 06:59 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 245 451 RECEIVED Confidential NYSCEF: - Subject 12/14/2021 01/10/2022 to ProtectiveOrder No. Begin Date/Date End Date/Date File Type Authors and Number Number of Bates Range Privilege Description Created Last Modified Recipients of Emails Unique in Thread Attachments 29 2/19/2018 21:10 2/19/2018 21:10 EFILE 0 Withheld Attorney-Client Draft shareholder election certificate Privilege drafted by John Figone. 30 2/19/2018 21:10 2/19/2018 21:10 EFILE 0 Withheld Attorney-Client Draft shareholder election certificate Privilege drafted by John Figone. 31 2/19/2018 22:03 EMAIL John Figone 1 18 Withheld Attorney-Client Email providing legal advice re Charlie Bachtell Privilege Fiorello transaction. Ken Amann 32 2/20/2018 12:49 EMAIL John Figone 1 0 CRES00008503 - Attorney-Client Email providing legal advice re Ken Amann CRES00008504 Privilege escrow for Fiorello transaction. Charlie Bachtell 33 2/20/2018 16:11 EMAIL John Figone 1 0 CRES00008497 - Attorney-Client Email providing legal advice re Ken Amann CRES00008500 Privilege Fiorello transaction. Charlie Bachtell 34 2/21/2018 16:19 2/21/2018 19:54 EMAIL Ken Amann 3 1 Withheld Attorney-Client Uninterrupted email chain discussing Charlie Bachtell Privilege legal advice re Fiorello transaction John Figone and other transactions. 35 2/21/2018 16:19 2/21/2018 19:55 EMAIL Charlie Bachtell 4 2 Withheld Attorney-Client Uninterrupted email chain discussing Ken Amann Privilege legal advice re Fiorello transaction John Figone and other transactions. 36 2/21/2018 17:13 2/21/2018 19:25 EMAIL John Figone 4 2 Withheld Attorney-Client Uninterrupted email chain discussing Charlie Bachtell Privilege legal advice re Fiorello transaction. Erin Alexander 37 2/21/2018 19:13 EMAIL Charlie Bachtell 1 1 Withheld Attorney-Client Email requesting legal advice re John Figone Privilege Fiorello transaction. Erin Alexander 38 2/21/2018 20:14 2/22/2018 8:19 EMAIL Bob Morgan 2 0 Withheld Attorney-Client Uninterrupted email chain discussing John Figone Privilege legal advice re Fiorello transaction. 39 2/21/2018 20:14 4/4/2018 12:02 EMAIL John Figone 4 1 Withheld Attorney-Client Uninterrupted email chain discussing Charlie Bachtell Privilege legal advice re Fiorello transaction. Katherine B. Lewis Bob Morgan Julia A. Turk 3