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FILED: NEW YORK COUNTY CLERK 09/08/2021 10:41 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 09/08/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
YASEMIN TEKINER,
in her individual capacity, as a beneficiary
and a Trustee of The Yasemin Tekiner
Index No.: 657193/2020
2011 Descendants Trust and derivatively as
a holder of equitable interests in a
Motion Sequence #6
shareholder or a member of the Company
Defendants,
ORAL ARGUMENT REQUESTED
Plaintiff,
-against-
BREMEN HOUSE INC., BREMEN HOUSE
TEXAS, INC., GERMAN NEWS COMPANY,
INC., GERMAN NEWS TEXAS, INC., 254-258
W. 35TH ST. LLC, BERRIN TEKINER, GONCA
CHELSEA, and BILLUR AKIPEK, in her
capacity as a Trustee of The Yasemin Tekiner
2011 Descendants Trust,
Defendants.
DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S
MOTION TO AMEND THE FIRST AMENDED VERIFIED COMPLAINT
Judith A. Archer
Victoria V. Corder
Sean M. Topping
NORTON ROSE FULBRIGHT US LLP
1301 Avenue of the Americas
New York, NY 10019-6022
+1 212 318-3000
Counsel for Defendants
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Defendants Bremen House, Inc., German News Company, Inc., Berrin Tekiner, Gonca
(Tekiner) Chelsea, and Billur Akipek hereby submit this Memorandum of Law in Opposition to
Plaintiff’s Motion to Amend the Verified Amended Complaint. 1
PRELIMINARY STATEMENT
Following this Court’s dismissal of Plaintiff’s tortious interference with trust claim against
the Individual Defendants, Plaintiff seeks leave to re-plead the same facts against the same
Individual Defendants, but has repackaged them as a claim for aiding and abetting breach of
fiduciary duty. The Motion should be denied and the new claim (proposed count 12) should be
dismissed.
Plaintiff used up her chance to amend her Complaint as of right seven months ago and
therefore the proposed cause of action is only permissible if it would survive a motion to dismiss.
It would not.
Plaintiff has failed to plead a cause of action for aiding and abetting breach of fiduciary
duty. The proposed complaint fails to allege facts sufficient to show how each Individual
Defendant had actual knowledge of, or substantially assisted in, the underlying, relevant breaches
of fiduciary duty, let alone plead them with the requisite particularity. Indeed, it is readily apparent
that Plaintiff has failed to state any new cause of action as the proposed complaint includes no new
actionable factual allegations in support of the new claim. Thus, this new cause of action fares
no better than the cause of action for tortious interference with Plaintiff’s trust, which the Court
recently and correctly dismissed. The Court should dismiss the proposed aiding and abetting claim
too.
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“Motion” or “Mot.” refers to Plaintiff’s Motion to Amend the First Amended Verified Complaint (NYSCEF No.
150). “Opposition” or “Opp.” refers to this Memorandum of Law in Opposition to the Motion. Defendants Bremen
House, Inc. and German News Company, Inc. are referred to as the “Companies;” Defendant Berrin Tekiner is referred
to as “Berrin;” Defendant Gonca (Tekiner) Chelsea is referred to as “Gonca;” Defendant Billur Akipek is referred to
as “Akipek;” and Defendants Berrin, Gonca and Akipek are referred to collectively as the “Individual Defendants.”
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The proposed cause of action is also duplicative of Plaintiff’s other claims concerning her
trust, which rely on similar factual allegations. To be clear, the cause of action is not based on any
facts unknown to Plaintiff at the time she filed this lawsuit. The Motion is nothing more than a
waste of the Court’s limited resources and time, intended to delay this case and drum up more
legal fees for the Defendants and carry out Plaintiff’s vendetta against her estranged family
members, two of whom are Individual Defendants.
Plaintiff’s other reasons for seeking leave to amend—to correct the spelling of Gonca’s
name and re-word the type of relief sought—underscore that the Motion is a waste of time.
Defendants would have agreed to correct Gonca’s name without motion practice, and Plaintiff’s
other revisions are entirely unnecessary.
For these reasons, and those discussed more fully below, the Court should deny the Motion
and dismiss the proposed claim for aiding and abetting breach of fiduciary duty.
STATEMENT OF FACTS
A. Plaintiff Filed This Lawsuit To Obtain Control Over A Closely Held
Family Business and Extract an Early Inheritance
On December 21, 2020, Plaintiff Yasemin Tekiner brought this lawsuit, filing a complaint
on January 3, 2021 against her mother, Berrin Tekiner; her sister, Gonca Chelsea; a member of the
Trust Committee of her trust, Billur Akipek; and several companies forming part of the Tekiner
family real estate business. (NYSCEF No. 2) As the Court is aware, 2 Plaintiff’s complaint recasts
a long-standing, bitter personal dispute among family members as a corporate governance action,
in which Plaintiff alleged various causes of action concerning Defendants’ purported
mismanagement of the family business, interference with the Yasemin Tekiner 2011 Descendants
2
Defendants respectfully refer the Court to the facts set forth in Defendants’ Memorandum of Law in Opposition to
Plaintiffs Motion for a Preliminary Injunction (“PI Brief,” NYSCEF No. 21) and Defendants’ Motion to Dismiss
(NYSCEF No. 93).
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Trust (“the Yasemin Trust”), and other procedural claims including a books and records demand.
The allegations included a breach of fiduciary duty claim specifically noting “[t]he Individual
Defendants breached their fiduciary duties and/or aided and abetted the breach of fiduciary duties”
with regard to duties owed to the Companies and shareholders. (NYSCEF No. 2 ¶¶ 83–88)
On January 25, 2021, Plaintiff filed the FAC, adding claims related to her removal as a
Company director and officer, termination as a Company employee, and the Yasemin Trust.
(NYSCEF No. 86) Plaintiff did not, however, add a claim for aiding and abetting breach of
fiduciary duty.
Discovery has been underway since, with Plaintiff serving her initial discovery requests on
February 1, 2021, Defendants making their initial document production on February 22, 2021, and
Plaintiff repeatedly demanding that Defendants expedite their productions. (Affirmation of
Victoria V. Corder, dated September 8, 2021 (“Corder Aff.”) ¶ 2) To date, Defendants have
produced 105,480 documents, totaling 322,813 pages, and are in the process of coordinating
depositions of Defendants, Company employees, and non-parties. (Id.)
B. The Court Dismisses Several Causes of Action
Defendants moved to dismiss the Verified First Amended Complaint (“FAC”) on February
26, 2021. (NYSCEF No. 92; NYSCEF No. 121) On August 4, 2021, the Court dismissed the
causes of action against Bremen House Texas, German News Texas, and 254 W. 35th St LLC
entirely, and also dismissed three causes of action against Berrin, Gonca, and Akipek: (1) Unjust
Enrichment (Fifth Cause of Action); (2) Retaliation under the California Labor Code (Eighth
Cause of Action), and (3) Tortious Interference with the Yasemin Trust Agreement (Eleventh
Cause of Action). (NYSCEF No. 140)
As the Court explained, the tortious interference claim was dismissed as against Berrin and
Akipek because parties to a contract, by law, cannot be charged with tortiously interfering with it
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(Motion to Dismiss Hearing Transcript, dated August 4, 2021 (“MTD Hr’g Tr.”) (NYSCEF No.
151) at 53:12–17), and as against Gonca, because the claims for interfering with the Yasemin Trust
were not “specific enough to warrant – saying that [Gonca] was causing [Berrin and Akipek] to
breach that trust ….” (Id.)
C. Plaintiff Seeks to File Her Complaint A Third Time, Thus Delaying the
Case
On August 18, 2021, Plaintiff’s counsel sought Defendants’ consent to file the Proposed
Verified Second Amended Complaint (“SAC,” NYSCEF No. 148), which included a proposed
twelfth cause of action alleging that the Individual Defendants—Berrin, Gonca, and Akipek—
aided and abetted Berrin and Akipek’s breach of fiduciary duties owed to Yasemin as beneficiary
of the Yasmin Trust. (NYSCEF No. 148, ¶¶ 160–166; NYSCEF No. 150 at 2)
Plaintiff’s proposed cause of action restates facts plead in Plaintiff’s other causes of action,
including that Berrin removed Yasemin “as a Trustee of the Yasemin Trust” (i.e., member of the
Trust Committee) and instructed the Corporate Trustee and “Trustee” to terminate Yasemin from
her positions in the Companies and deny distributions from the Yasemin Trust. (NYSCEF No.
148, ¶ 161) Berrin, Gonca, and Akipek allegedly “assisted in the planning of these breaches,”
through their roles as “senior executives in the Company Defendants’ business,” by
“coordinat[ing] with the relevant decisionmaker(s),” and by “shar[ing] the same attorneys so as to
ensure these breaches were implemented.” (Id. ¶¶ 163–164)
Defendants objected to the amendments for the reasons set forth herein. On August 24,
2021, counsel met and conferred to discuss the proposed amendment, and Plaintiff’s counsel
explained the motivation for adding the new cause of action was “to keep Gonca on the hook”
following the Court’s dismissal of the tortious interference claim against her. (Corder Aff. ¶ 3)
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ARGUMENT
I. LEGAL STANDARD
Where “proposed amendments are totally devoid of merit and legally insufficient, leave to
amend should be denied.” Mosaic Caribe, Ltd. v. AllSettled Group, Inc., 117 A.D.3d 421, 422 (1st
Dep’t 2014). A proposed amendment is legally insufficient where it cannot survive a motion to
dismiss. Scott v. Bell Atl. Corp., 282 A.D.2d 180, 185 (1st Dep’t 2001); Olam Corp. v. Thayer,
No. 652764/2018, 2021 WL 408232, at *1 (Sup. Ct. N.Y. Cnty. Feb. 5, 2021) (Cohen, J.) (“The
commonsense view is that it would be pointless to grant leave to file an amended complaint if the
Court concludes that the complaint will, in turn, be dismissed under CPLR 3211.”). In deciding a
motion to dismiss, the Court must “accept the facts as alleged to be true and determine whether
the Plaintiff's facts fit within any cognizable legal theory.” Keitel v. E*Trade Fin. Corp., No.
652220/2015, 2017 WL 1426809, at *2 (Sup. Ct. N.Y. Cnty. Apr. 17, 2017).
As this Court has recognized previously: “A proposed amended complaint that would be
subject to dismissal as a matter of law is, by definition, ‘palpably insufficient or clearly devoid of
merit’ and thus should not be permitted under CPLR 3025. Any other conclusion would lead to
the waste of public and private resources—namely, amending the complaint only to have it be
dismissed after a separate round of briefing, argument, and decision.” Olam, 2021 WL 408232, at
*1.
Plaintiff’s Motion should be denied because the proposed twelfth cause of action alleging
Berrin, Gonca, and Akipek aided and abetted breaches of fiduciary duties would not survive a
motion to dismiss under CPLR 3211.
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II. PLAINTIFF’S PROPOSED AIDING & ABETTING CLAIM SHOULD BE
DISMISSED
A. Plaintiff Has Not Pled Facts Showing That Defendants Had Actual
Knowledge or Substantially Assisted in the Underlying Alleged Breaches
of Fiduciary Duties
To state a claim for aiding and abetting a breach of fiduciary duty, a complaint must allege
facts sufficient to plead “(1) a breach by a fiduciary of obligations to another, (2) that the defendant
knowingly induced or participated in the breach, and (3) that plaintiff suffered damage as a result
of the breach.” Schroeder v. Pinterest Inc., 133 A.D.3d 12, 25 (1st Dep’t 2015). A cause of action
for aiding and abetting a breach of fiduciary duty must be pled with the particularity required by
CPLR 3016(b). Deason v. Fujifilm Holding Corp., 165 A.D.3d 501, 502 (1st Dep’t 2018). “[T]he
failure to allege particularized facts is fatal to . . . causes of action for aiding and abetting breach
of fiduciary duty.” Madison Sullivan Partners LLC v. PMG Sullivan St., LLC, 173 A.D.3d 437,
438 (1st Dep’t 2019).
Plaintiff has failed to plead the second element of this claim—knowing inducement or
participation in the breach of fiduciary duties alleged in the SAC. This element requires specific
factual allegations the “defendant had actual knowledge of the breach of duty . . . . [c]onstructive
knowledge of the breach of fiduciary duty by another is legally insufficient to impose aiding and
abetting liability.” Kaufman v. Cohen, 307 A.D.2d 113, 125 (1st Dep’t 2003) (dismissing claim
for aiding and abetting breach of fiduciary duty where the plaintiffs pled no facts showing that the
defendants knew about a breach of fiduciary obligations when they participated in purchasing or
selling properties); Roni LLC v. Arfa, 72 A.D.3d 413, 413-14 (1st Dep’t 2010) (dismissing aiding
and abetting claim against lawyers who structured a transaction that was alleged to have breached
a fiduciary duty because the allegation that they participated in the transaction “did not, without
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more, give rise to a reasonable inference” that they were aware that structuring the transaction
violated a fiduciary duty).
As the First Department stated in Kaufman when dismissing an aiding and abetting claim
resting on conclusory allegations of knowledge:
A person knowingly participates in a breach of fiduciary duty only when he or she
provides “substantial assistance” to the primary violator . . . . Substantial assistance
occurs when a defendant affirmatively assists, helps conceal or fails to act when
required to do so, thereby enabling the breach to occur . . . . However, the mere
inaction of an alleged aider and abettor constitutes substantial assistance only if the
defendant owes a fiduciary duty directly to the plaintiff.
Kaufman, 307 A.D.2d at 126 (internal citations omitted).
Here, the proposed complaint falls short. The SAC fails to allege that defendants had
knowledge of any underlying breaches of fiduciary duty as is required. The underlying alleged
breaches of fiduciary duty relevant to the proposed aiding and abetting claim are that Plaintiff was
removed as a member of the Trust Committee of her trust and terminated as an officer and director
of the Companies. (NYSCEF No. 148, ¶¶ 160–166) Thus, as Kaufman directs, to plead an aiding
and abetting claim, Plaintiff is required to show that the Individual Defendants were aware that
Yasemin’s removal and termination were breaches of fiduciary duties. Plaintiff has not—and
cannot—satisfy this standard.
In the proposed complaint, Plaintiff baldly alleges only that the Individual Defendants
“assisted in the planning of these breaches, coordinated with the relevant decisionmaker(s) to
effect these breaches, and shared the same attorneys so as to ensure these breaches were
implemented in such a manner as to achieve the Individual Defendants’ common goals.”
(NYSCEF No. 148, ¶ 163) That is not enough, as there are no facts from which to infer the alleged
aiders and abettors were aware that the underlying actions (removal and termination) constituted
breaches of fiduciary duties. Indeed, Plaintiff has not alleged—and cannot allege—that the
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individual Defendants believed Plaintiff’s removal from the Trust Committee was improper under
the Trust Agreement (NYSCEF No. 95, Art. 8(A)), or that her termination as an officer or director
was improper under the Companies’ bylaws. Therefore, just like the aiding and abetting claim
asserted against the lawyers in Roni was dismissed because the lawyers did not know that the
structure of a transaction he effectuated breached a fiduciary duty, the aiding and abetting claim
must be dismissed here too. Roni, 72 A.D.3d at 413–14.
Furthermore, as in Roni and Kaufman, Plaintiff has made only conclusory allegations
concerning the knowledge of the Individual Defendants, based on their roles with the Companies
or Trust, which is legally insufficient to plead an aiding and abetting claim. See Roni LLC, 72
A.D.3d at 413–14 (allegations that lawyers’ role in structuring a transaction was insufficient to
plead lawyers’ actual knowledge of underlying breach of fiduciary duty for purposes of aiding and
abetting claim); Deason, 165 A.D.3d at 502 (dismissing claims for aiding and abetting a breach of
fiduciary duty where Plaintiffs failed to plead “specific factual allegations”).
The various other allegations against the Individual Defendants do not plead the requisite
knowledge on the part of the Individual Defendants either. For example, Gonca purportedly telling
Berrin to exercise her power regarding the Trust does not qualify as “substantially assisting” the
underlying, relevant breaches of fiduciary duty because merely making a request that a person
believes complies with existing legal agreements is insufficient. See Global Mins. & Metals Corp.
v. Holme, 35 A.D.3d 93, 102 (1st Dep’t 2006) (holding wife had not substantially assisted her
husband’s alleged breach of fiduciary duty where her only action taken was filling in a form request
for dividend sent by the plaintiff that she was unaware her husband was not permitted to fill out).
Thus, even if Gonca asked Berrin to remove Yasemin from the Trust Committee of the Yasemin
Trust—which Berrin had the power to do (see NYSCEF No. 95)—that is still not substantial
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assistance of a breach of fiduciary duty without allegations showing that she made the request
knowing that to remove Yasemin would violate a fiduciary duty owed to her. As pled, the
statement is only a request that could be accomplished without violating the terms of the Trust
Agreement. 3
Plaintiff’s alleged loss of access to Company email also does not plead substantial
assistance. That was merely a consequence of Yasemin’s behavior. It was not an act of affirmative
assistance, concealment (of the breach), or failure to act when required to do so. Kaufman, 307
A.D.2d at 126.
In short, the entire aiding and abetting claim is based on conclusory allegations rather than
specific facts showing that the Individual Defendants knowingly participated in or induced the
primary violators to breach fiduciary duties owed to Plaintiff as the beneficiary of the Yasemin
Trust. For this reason, the Motion should be denied and the claim should be dismissed.
3
Plaintiff’s claims against Gonca are particularly infirm.The only specific allegation against Gonca for the aiding
and abetting claim is that she allegedly requested Plaintiff be removed from the Trust Committee of Yasemin’s Trust
in 2017. To the extent Plaintiff claims that Gonca’s 2017 statements reflect her knowledge of alleged breaches of
fiduciary duties that occurred years later when Yasmin was removed from her Trust Committee and terminated, the
allegations are illogical.
If, on the other hand, Plaintiff is alleging that Yasemin’s removal in 2017 was the underlying breach that Gonca aided
and abetted, that claim is time barred. Where a plaintiff seeks both damages and equitable remedies, for an alleged
aiding and abetting a breach of fiduciary duties, but “essentially seek[s] damages,” the court must apply a three-year
statute of limitations. Dragon Inv. Co. II LLC v. Shanahan, 49 A.D.3d 403, 404 (1st Dep’t 2008). There is no equitable
relief available from Gonca because Gonca “had no formal role with respect to the [Yasemin] Trust,” and any equitable
relief would have been rendered pointless by being reinstated to the Trust. (NYSCEF No. 148, ¶¶ 38, 164(b)) The
only relief Plaintiff can seek, and does seek by trying “to keep Gonca on the hook” (Corder Aff. ¶ 3), based on the
2017 removal are damages, and therefore the claim against her is subject to the three-year statute of limitations, which
expired on or around September 22, 2020. Dragon, 49 A.D.3d at 404 (holding that where a claim “essentially seek[s]
damages,” the court must apply a three-year statute of limitations).
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B. Plaintiff’s Proposed Aiding & Abetting Claim Is A Misplaced Attempt
To Rehabilitate Her Dismissed Tortious Interference Claim And Delay
The proposed—and infirm—aiding and abetting cause of action should be rejected for an
additional reason: It is simply an attempt to repackage Plaintiff’s tortious interference with trust
claim under a new name.
This Court previously dismissed Plaintiff’s claim for tortious interference with the Trust
Agreement on the grounds that Berrin and Akipek, as parties to the agreement, cannot tortiously
interfere with it as a matter of law. The Court also held that the Plaintiff’s allegations were not
“specific enough” to plead a claim for tortious interference against Gonca. (MTD Hr’g Tr.
(NYSCEF No. 151) at 53:4–17) Now, Plaintiff seeks to plead a new claim for aiding and abetting
breach of fiduciary duty, with essentially the same facts, following dismissal of the tortious
interference claim, against all three individual Defendants. As Plaintiff’s counsel has admitted,
the claim is only being alleged now in an attempt to keep Gonca “on the hook” for individual
liability for the trust-related claims asserted (even though Gonca has no role with Plaintiff’s Trust).
The Motion should be denied and the proposed aiding and abetting claim dismissed
because itis not based on any new facts learned in discovery and could have easily been pled
months ago. “Where there has been an extended delay in moving to amend, the party seeking
leave to amend must establish a reasonable excuse for the delay.” Heller v Louis Provenzano,
Inc., 303 A.D.2d 20, 24, 756 N.Y.S.2d 26 (1st Dep’t 2003). There is no reasonable excuse where
the factual basis is known at the outset of the litigation. See Birdsall v. City of New York, 60
A.D.2d 522, 522 (1st Dep’t 1977).
The proposed aiding and abetting cause of action is also duplicative of other causes of
action. For example, claims that the Individual Defendants violated fiduciary duties owed to the
Companies already exist in the third cause of action. (NYSCEF No. 148, ¶¶ 103–108) And with
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respect to the Yasemin Trust, Plaintiff has already alleged that Berrin and Akipek committed
breaches of their fiduciary duties in the second cause of action (NYSCEF No. 148, ¶¶ 99–102).
Thus, there is no justification for Plaintiff’s belated Motion. Plaintiffs entire strategy in
seeking this amendment—and other recent actions taken in the case—is to sap Defendants of
resources and to delay the case.
To the extent the Court grants the Motion, Defendants request the Court exercise its
discretion to condition the amendment upon Plaintiff’s payment of Defendants’ fees incurred in
responding to the amendment. See Mirabella v. Banco Industrial de la Republica Argentina, 34
A.D.2d 630, 631 (1st Dept. 1970); CPLR 3025(b) (providing that a court shall freely grant leave
to amend a pleading “upon such terms as may be just including the granting of costs”).
CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court deny the Motion,
dismiss the proposed cause of action for aiding and abetting breach of fiduciary duty against the
Individual Defendants, and grant such other and further relief as the Court deems just and proper,
including Defendants’ costs and fees.
Dated: September 8, 2021 NORTON ROSE FULBRIGHT US LLP
By: /s/ Judith A. Archer
Judith A. Archer
Victoria V. Corder
Sean M. Topping
1301 Avenue of the Americas
New York, New York 10019-6022
Tel.: (212) 318-3000
Fax: (212) 318-3400
judith.archer@nortonrosefulbright.com
victoria.corder@nortonrosefulbright.com
sean.topping@nortonrosefulbright.com
Attorneys for Defendants
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CERTIFICATION
Counsel for Defendants hereby certifies that this document complies with the word count
limit of Commercial Division Rule 17. This affirmation was prepared using Microsoft Word, and
the total number of words in this affirmation, exclusive of the caption, table of contents, table of
authorities, and signature block is less than 7,000 words.
Dated: September 8, 2021 By: /s/ Judith A. Archer
New York, New York Judith A. Archer
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Preview
FILED: NEW YORK COUNTY CLERK 09/08/2021 10:41 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 09/08/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK YASEMIN TEKINER, in her individual capacity, as a beneficiary and a Trustee of The Yasemin Tekiner Index No.: 657193/2020 2011 Descendants Trust and derivatively as a holder of equitable interests in a Motion Sequence #6 shareholder or a member of the Company Defendants, ORAL ARGUMENT REQUESTED Plaintiff, -against- BREMEN HOUSE INC., BREMEN HOUSE TEXAS, INC., GERMAN NEWS COMPANY, INC., GERMAN NEWS TEXAS, INC., 254-258 W. 35TH ST. LLC, BERRIN TEKINER, GONCA CHELSEA, and BILLUR AKIPEK, in her capacity as a Trustee of The Yasemin Tekiner 2011 Descendants Trust, Defendants. DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION TO AMEND THE FIRST AMENDED VERIFIED COMPLAINT Judith A. Archer Victoria V. Corder Sean M. Topping NORTON ROSE FULBRIGHT US LLP 1301 Avenue of the Americas New York, NY 10019-6022 +1 212 318-3000 Counsel for Defendants 1 of 13 FILED: NEW YORK COUNTY CLERK 09/08/2021 10:41 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 09/08/2021 Defendants Bremen House, Inc., German News Company, Inc., Berrin Tekiner, Gonca (Tekiner) Chelsea, and Billur Akipek hereby submit this Memorandum of Law in Opposition to Plaintiff’s Motion to Amend the Verified Amended Complaint. 1 PRELIMINARY STATEMENT Following this Court’s dismissal of Plaintiff’s tortious interference with trust claim against the Individual Defendants, Plaintiff seeks leave to re-plead the same facts against the same Individual Defendants, but has repackaged them as a claim for aiding and abetting breach of fiduciary duty. The Motion should be denied and the new claim (proposed count 12) should be dismissed. Plaintiff used up her chance to amend her Complaint as of right seven months ago and therefore the proposed cause of action is only permissible if it would survive a motion to dismiss. It would not. Plaintiff has failed to plead a cause of action for aiding and abetting breach of fiduciary duty. The proposed complaint fails to allege facts sufficient to show how each Individual Defendant had actual knowledge of, or substantially assisted in, the underlying, relevant breaches of fiduciary duty, let alone plead them with the requisite particularity. Indeed, it is readily apparent that Plaintiff has failed to state any new cause of action as the proposed complaint includes no new actionable factual allegations in support of the new claim. Thus, this new cause of action fares no better than the cause of action for tortious interference with Plaintiff’s trust, which the Court recently and correctly dismissed. The Court should dismiss the proposed aiding and abetting claim too. 1 “Motion” or “Mot.” refers to Plaintiff’s Motion to Amend the First Amended Verified Complaint (NYSCEF No. 150). “Opposition” or “Opp.” refers to this Memorandum of Law in Opposition to the Motion. Defendants Bremen House, Inc. and German News Company, Inc. are referred to as the “Companies;” Defendant Berrin Tekiner is referred to as “Berrin;” Defendant Gonca (Tekiner) Chelsea is referred to as “Gonca;” Defendant Billur Akipek is referred to as “Akipek;” and Defendants Berrin, Gonca and Akipek are referred to collectively as the “Individual Defendants.” 1 2 of 13 FILED: NEW YORK COUNTY CLERK 09/08/2021 10:41 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 09/08/2021 The proposed cause of action is also duplicative of Plaintiff’s other claims concerning her trust, which rely on similar factual allegations. To be clear, the cause of action is not based on any facts unknown to Plaintiff at the time she filed this lawsuit. The Motion is nothing more than a waste of the Court’s limited resources and time, intended to delay this case and drum up more legal fees for the Defendants and carry out Plaintiff’s vendetta against her estranged family members, two of whom are Individual Defendants. Plaintiff’s other reasons for seeking leave to amend—to correct the spelling of Gonca’s name and re-word the type of relief sought—underscore that the Motion is a waste of time. Defendants would have agreed to correct Gonca’s name without motion practice, and Plaintiff’s other revisions are entirely unnecessary. For these reasons, and those discussed more fully below, the Court should deny the Motion and dismiss the proposed claim for aiding and abetting breach of fiduciary duty. STATEMENT OF FACTS A. Plaintiff Filed This Lawsuit To Obtain Control Over A Closely Held Family Business and Extract an Early Inheritance On December 21, 2020, Plaintiff Yasemin Tekiner brought this lawsuit, filing a complaint on January 3, 2021 against her mother, Berrin Tekiner; her sister, Gonca Chelsea; a member of the Trust Committee of her trust, Billur Akipek; and several companies forming part of the Tekiner family real estate business. (NYSCEF No. 2) As the Court is aware, 2 Plaintiff’s complaint recasts a long-standing, bitter personal dispute among family members as a corporate governance action, in which Plaintiff alleged various causes of action concerning Defendants’ purported mismanagement of the family business, interference with the Yasemin Tekiner 2011 Descendants 2 Defendants respectfully refer the Court to the facts set forth in Defendants’ Memorandum of Law in Opposition to Plaintiffs Motion for a Preliminary Injunction (“PI Brief,” NYSCEF No. 21) and Defendants’ Motion to Dismiss (NYSCEF No. 93). 2 3 of 13 FILED: NEW YORK COUNTY CLERK 09/08/2021 10:41 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 09/08/2021 Trust (“the Yasemin Trust”), and other procedural claims including a books and records demand. The allegations included a breach of fiduciary duty claim specifically noting “[t]he Individual Defendants breached their fiduciary duties and/or aided and abetted the breach of fiduciary duties” with regard to duties owed to the Companies and shareholders. (NYSCEF No. 2 ¶¶ 83–88) On January 25, 2021, Plaintiff filed the FAC, adding claims related to her removal as a Company director and officer, termination as a Company employee, and the Yasemin Trust. (NYSCEF No. 86) Plaintiff did not, however, add a claim for aiding and abetting breach of fiduciary duty. Discovery has been underway since, with Plaintiff serving her initial discovery requests on February 1, 2021, Defendants making their initial document production on February 22, 2021, and Plaintiff repeatedly demanding that Defendants expedite their productions. (Affirmation of Victoria V. Corder, dated September 8, 2021 (“Corder Aff.”) ¶ 2) To date, Defendants have produced 105,480 documents, totaling 322,813 pages, and are in the process of coordinating depositions of Defendants, Company employees, and non-parties. (Id.) B. The Court Dismisses Several Causes of Action Defendants moved to dismiss the Verified First Amended Complaint (“FAC”) on February 26, 2021. (NYSCEF No. 92; NYSCEF No. 121) On August 4, 2021, the Court dismissed the causes of action against Bremen House Texas, German News Texas, and 254 W. 35th St LLC entirely, and also dismissed three causes of action against Berrin, Gonca, and Akipek: (1) Unjust Enrichment (Fifth Cause of Action); (2) Retaliation under the California Labor Code (Eighth Cause of Action), and (3) Tortious Interference with the Yasemin Trust Agreement (Eleventh Cause of Action). (NYSCEF No. 140) As the Court explained, the tortious interference claim was dismissed as against Berrin and Akipek because parties to a contract, by law, cannot be charged with tortiously interfering with it 3 4 of 13 FILED: NEW YORK COUNTY CLERK 09/08/2021 10:41 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 09/08/2021 (Motion to Dismiss Hearing Transcript, dated August 4, 2021 (“MTD Hr’g Tr.”) (NYSCEF No. 151) at 53:12–17), and as against Gonca, because the claims for interfering with the Yasemin Trust were not “specific enough to warrant – saying that [Gonca] was causing [Berrin and Akipek] to breach that trust ….” (Id.) C. Plaintiff Seeks to File Her Complaint A Third Time, Thus Delaying the Case On August 18, 2021, Plaintiff’s counsel sought Defendants’ consent to file the Proposed Verified Second Amended Complaint (“SAC,” NYSCEF No. 148), which included a proposed twelfth cause of action alleging that the Individual Defendants—Berrin, Gonca, and Akipek— aided and abetted Berrin and Akipek’s breach of fiduciary duties owed to Yasemin as beneficiary of the Yasmin Trust. (NYSCEF No. 148, ¶¶ 160–166; NYSCEF No. 150 at 2) Plaintiff’s proposed cause of action restates facts plead in Plaintiff’s other causes of action, including that Berrin removed Yasemin “as a Trustee of the Yasemin Trust” (i.e., member of the Trust Committee) and instructed the Corporate Trustee and “Trustee” to terminate Yasemin from her positions in the Companies and deny distributions from the Yasemin Trust. (NYSCEF No. 148, ¶ 161) Berrin, Gonca, and Akipek allegedly “assisted in the planning of these breaches,” through their roles as “senior executives in the Company Defendants’ business,” by “coordinat[ing] with the relevant decisionmaker(s),” and by “shar[ing] the same attorneys so as to ensure these breaches were implemented.” (Id. ¶¶ 163–164) Defendants objected to the amendments for the reasons set forth herein. On August 24, 2021, counsel met and conferred to discuss the proposed amendment, and Plaintiff’s counsel explained the motivation for adding the new cause of action was “to keep Gonca on the hook” following the Court’s dismissal of the tortious interference claim against her. (Corder Aff. ¶ 3) 4 5 of 13 FILED: NEW YORK COUNTY CLERK 09/08/2021 10:41 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 09/08/2021 ARGUMENT I. LEGAL STANDARD Where “proposed amendments are totally devoid of merit and legally insufficient, leave to amend should be denied.” Mosaic Caribe, Ltd. v. AllSettled Group, Inc., 117 A.D.3d 421, 422 (1st Dep’t 2014). A proposed amendment is legally insufficient where it cannot survive a motion to dismiss. Scott v. Bell Atl. Corp., 282 A.D.2d 180, 185 (1st Dep’t 2001); Olam Corp. v. Thayer, No. 652764/2018, 2021 WL 408232, at *1 (Sup. Ct. N.Y. Cnty. Feb. 5, 2021) (Cohen, J.) (“The commonsense view is that it would be pointless to grant leave to file an amended complaint if the Court concludes that the complaint will, in turn, be dismissed under CPLR 3211.”). In deciding a motion to dismiss, the Court must “accept the facts as alleged to be true and determine whether the Plaintiff's facts fit within any cognizable legal theory.” Keitel v. E*Trade Fin. Corp., No. 652220/2015, 2017 WL 1426809, at *2 (Sup. Ct. N.Y. Cnty. Apr. 17, 2017). As this Court has recognized previously: “A proposed amended complaint that would be subject to dismissal as a matter of law is, by definition, ‘palpably insufficient or clearly devoid of merit’ and thus should not be permitted under CPLR 3025. Any other conclusion would lead to the waste of public and private resources—namely, amending the complaint only to have it be dismissed after a separate round of briefing, argument, and decision.” Olam, 2021 WL 408232, at *1. Plaintiff’s Motion should be denied because the proposed twelfth cause of action alleging Berrin, Gonca, and Akipek aided and abetted breaches of fiduciary duties would not survive a motion to dismiss under CPLR 3211. 5 6 of 13 FILED: NEW YORK COUNTY CLERK 09/08/2021 10:41 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 09/08/2021 II. PLAINTIFF’S PROPOSED AIDING & ABETTING CLAIM SHOULD BE DISMISSED A. Plaintiff Has Not Pled Facts Showing That Defendants Had Actual Knowledge or Substantially Assisted in the Underlying Alleged Breaches of Fiduciary Duties To state a claim for aiding and abetting a breach of fiduciary duty, a complaint must allege facts sufficient to plead “(1) a breach by a fiduciary of obligations to another, (2) that the defendant knowingly induced or participated in the breach, and (3) that plaintiff suffered damage as a result of the breach.” Schroeder v. Pinterest Inc., 133 A.D.3d 12, 25 (1st Dep’t 2015). A cause of action for aiding and abetting a breach of fiduciary duty must be pled with the particularity required by CPLR 3016(b). Deason v. Fujifilm Holding Corp., 165 A.D.3d 501, 502 (1st Dep’t 2018). “[T]he failure to allege particularized facts is fatal to . . . causes of action for aiding and abetting breach of fiduciary duty.” Madison Sullivan Partners LLC v. PMG Sullivan St., LLC, 173 A.D.3d 437, 438 (1st Dep’t 2019). Plaintiff has failed to plead the second element of this claim—knowing inducement or participation in the breach of fiduciary duties alleged in the SAC. This element requires specific factual allegations the “defendant had actual knowledge of the breach of duty . . . . [c]onstructive knowledge of the breach of fiduciary duty by another is legally insufficient to impose aiding and abetting liability.” Kaufman v. Cohen, 307 A.D.2d 113, 125 (1st Dep’t 2003) (dismissing claim for aiding and abetting breach of fiduciary duty where the plaintiffs pled no facts showing that the defendants knew about a breach of fiduciary obligations when they participated in purchasing or selling properties); Roni LLC v. Arfa, 72 A.D.3d 413, 413-14 (1st Dep’t 2010) (dismissing aiding and abetting claim against lawyers who structured a transaction that was alleged to have breached a fiduciary duty because the allegation that they participated in the transaction “did not, without 6 7 of 13 FILED: NEW YORK COUNTY CLERK 09/08/2021 10:41 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 09/08/2021 more, give rise to a reasonable inference” that they were aware that structuring the transaction violated a fiduciary duty). As the First Department stated in Kaufman when dismissing an aiding and abetting claim resting on conclusory allegations of knowledge: A person knowingly participates in a breach of fiduciary duty only when he or she provides “substantial assistance” to the primary violator . . . . Substantial assistance occurs when a defendant affirmatively assists, helps conceal or fails to act when required to do so, thereby enabling the breach to occur . . . . However, the mere inaction of an alleged aider and abettor constitutes substantial assistance only if the defendant owes a fiduciary duty directly to the plaintiff. Kaufman, 307 A.D.2d at 126 (internal citations omitted). Here, the proposed complaint falls short. The SAC fails to allege that defendants had knowledge of any underlying breaches of fiduciary duty as is required. The underlying alleged breaches of fiduciary duty relevant to the proposed aiding and abetting claim are that Plaintiff was removed as a member of the Trust Committee of her trust and terminated as an officer and director of the Companies. (NYSCEF No. 148, ¶¶ 160–166) Thus, as Kaufman directs, to plead an aiding and abetting claim, Plaintiff is required to show that the Individual Defendants were aware that Yasemin’s removal and termination were breaches of fiduciary duties. Plaintiff has not—and cannot—satisfy this standard. In the proposed complaint, Plaintiff baldly alleges only that the Individual Defendants “assisted in the planning of these breaches, coordinated with the relevant decisionmaker(s) to effect these breaches, and shared the same attorneys so as to ensure these breaches were implemented in such a manner as to achieve the Individual Defendants’ common goals.” (NYSCEF No. 148, ¶ 163) That is not enough, as there are no facts from which to infer the alleged aiders and abettors were aware that the underlying actions (removal and termination) constituted breaches of fiduciary duties. Indeed, Plaintiff has not alleged—and cannot allege—that the 7 8 of 13 FILED: NEW YORK COUNTY CLERK 09/08/2021 10:41 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 09/08/2021 individual Defendants believed Plaintiff’s removal from the Trust Committee was improper under the Trust Agreement (NYSCEF No. 95, Art. 8(A)), or that her termination as an officer or director was improper under the Companies’ bylaws. Therefore, just like the aiding and abetting claim asserted against the lawyers in Roni was dismissed because the lawyers did not know that the structure of a transaction he effectuated breached a fiduciary duty, the aiding and abetting claim must be dismissed here too. Roni, 72 A.D.3d at 413–14. Furthermore, as in Roni and Kaufman, Plaintiff has made only conclusory allegations concerning the knowledge of the Individual Defendants, based on their roles with the Companies or Trust, which is legally insufficient to plead an aiding and abetting claim. See Roni LLC, 72 A.D.3d at 413–14 (allegations that lawyers’ role in structuring a transaction was insufficient to plead lawyers’ actual knowledge of underlying breach of fiduciary duty for purposes of aiding and abetting claim); Deason, 165 A.D.3d at 502 (dismissing claims for aiding and abetting a breach of fiduciary duty where Plaintiffs failed to plead “specific factual allegations”). The various other allegations against the Individual Defendants do not plead the requisite knowledge on the part of the Individual Defendants either. For example, Gonca purportedly telling Berrin to exercise her power regarding the Trust does not qualify as “substantially assisting” the underlying, relevant breaches of fiduciary duty because merely making a request that a person believes complies with existing legal agreements is insufficient. See Global Mins. & Metals Corp. v. Holme, 35 A.D.3d 93, 102 (1st Dep’t 2006) (holding wife had not substantially assisted her husband’s alleged breach of fiduciary duty where her only action taken was filling in a form request for dividend sent by the plaintiff that she was unaware her husband was not permitted to fill out). Thus, even if Gonca asked Berrin to remove Yasemin from the Trust Committee of the Yasemin Trust—which Berrin had the power to do (see NYSCEF No. 95)—that is still not substantial 8 9 of 13 FILED: NEW YORK COUNTY CLERK 09/08/2021 10:41 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 09/08/2021 assistance of a breach of fiduciary duty without allegations showing that she made the request knowing that to remove Yasemin would violate a fiduciary duty owed to her. As pled, the statement is only a request that could be accomplished without violating the terms of the Trust Agreement. 3 Plaintiff’s alleged loss of access to Company email also does not plead substantial assistance. That was merely a consequence of Yasemin’s behavior. It was not an act of affirmative assistance, concealment (of the breach), or failure to act when required to do so. Kaufman, 307 A.D.2d at 126. In short, the entire aiding and abetting claim is based on conclusory allegations rather than specific facts showing that the Individual Defendants knowingly participated in or induced the primary violators to breach fiduciary duties owed to Plaintiff as the beneficiary of the Yasemin Trust. For this reason, the Motion should be denied and the claim should be dismissed. 3 Plaintiff’s claims against Gonca are particularly infirm.The only specific allegation against Gonca for the aiding and abetting claim is that she allegedly requested Plaintiff be removed from the Trust Committee of Yasemin’s Trust in 2017. To the extent Plaintiff claims that Gonca’s 2017 statements reflect her knowledge of alleged breaches of fiduciary duties that occurred years later when Yasmin was removed from her Trust Committee and terminated, the allegations are illogical. If, on the other hand, Plaintiff is alleging that Yasemin’s removal in 2017 was the underlying breach that Gonca aided and abetted, that claim is time barred. Where a plaintiff seeks both damages and equitable remedies, for an alleged aiding and abetting a breach of fiduciary duties, but “essentially seek[s] damages,” the court must apply a three-year statute of limitations. Dragon Inv. Co. II LLC v. Shanahan, 49 A.D.3d 403, 404 (1st Dep’t 2008). There is no equitable relief available from Gonca because Gonca “had no formal role with respect to the [Yasemin] Trust,” and any equitable relief would have been rendered pointless by being reinstated to the Trust. (NYSCEF No. 148, ¶¶ 38, 164(b)) The only relief Plaintiff can seek, and does seek by trying “to keep Gonca on the hook” (Corder Aff. ¶ 3), based on the 2017 removal are damages, and therefore the claim against her is subject to the three-year statute of limitations, which expired on or around September 22, 2020. Dragon, 49 A.D.3d at 404 (holding that where a claim “essentially seek[s] damages,” the court must apply a three-year statute of limitations). 9 10 of 13 FILED: NEW YORK COUNTY CLERK 09/08/2021 10:41 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 09/08/2021 B. Plaintiff’s Proposed Aiding & Abetting Claim Is A Misplaced Attempt To Rehabilitate Her Dismissed Tortious Interference Claim And Delay The proposed—and infirm—aiding and abetting cause of action should be rejected for an additional reason: It is simply an attempt to repackage Plaintiff’s tortious interference with trust claim under a new name. This Court previously dismissed Plaintiff’s claim for tortious interference with the Trust Agreement on the grounds that Berrin and Akipek, as parties to the agreement, cannot tortiously interfere with it as a matter of law. The Court also held that the Plaintiff’s allegations were not “specific enough” to plead a claim for tortious interference against Gonca. (MTD Hr’g Tr. (NYSCEF No. 151) at 53:4–17) Now, Plaintiff seeks to plead a new claim for aiding and abetting breach of fiduciary duty, with essentially the same facts, following dismissal of the tortious interference claim, against all three individual Defendants. As Plaintiff’s counsel has admitted, the claim is only being alleged now in an attempt to keep Gonca “on the hook” for individual liability for the trust-related claims asserted (even though Gonca has no role with Plaintiff’s Trust). The Motion should be denied and the proposed aiding and abetting claim dismissed because itis not based on any new facts learned in discovery and could have easily been pled months ago. “Where there has been an extended delay in moving to amend, the party seeking leave to amend must establish a reasonable excuse for the delay.” Heller v Louis Provenzano, Inc., 303 A.D.2d 20, 24, 756 N.Y.S.2d 26 (1st Dep’t 2003). There is no reasonable excuse where the factual basis is known at the outset of the litigation. See Birdsall v. City of New York, 60 A.D.2d 522, 522 (1st Dep’t 1977). The proposed aiding and abetting cause of action is also duplicative of other causes of action. For example, claims that the Individual Defendants violated fiduciary duties owed to the Companies already exist in the third cause of action. (NYSCEF No. 148, ¶¶ 103–108) And with 10 11 of 13 FILED: NEW YORK COUNTY CLERK 09/08/2021 10:41 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 09/08/2021 respect to the Yasemin Trust, Plaintiff has already alleged that Berrin and Akipek committed breaches of their fiduciary duties in the second cause of action (NYSCEF No. 148, ¶¶ 99–102). Thus, there is no justification for Plaintiff’s belated Motion. Plaintiffs entire strategy in seeking this amendment—and other recent actions taken in the case—is to sap Defendants of resources and to delay the case. To the extent the Court grants the Motion, Defendants request the Court exercise its discretion to condition the amendment upon Plaintiff’s payment of Defendants’ fees incurred in responding to the amendment. See Mirabella v. Banco Industrial de la Republica Argentina, 34 A.D.2d 630, 631 (1st Dept. 1970); CPLR 3025(b) (providing that a court shall freely grant leave to amend a pleading “upon such terms as may be just including the granting of costs”). CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court deny the Motion, dismiss the proposed cause of action for aiding and abetting breach of fiduciary duty against the Individual Defendants, and grant such other and further relief as the Court deems just and proper, including Defendants’ costs and fees. Dated: September 8, 2021 NORTON ROSE FULBRIGHT US LLP By: /s/ Judith A. Archer Judith A. Archer Victoria V. Corder Sean M. Topping 1301 Avenue of the Americas New York, New York 10019-6022 Tel.: (212) 318-3000 Fax: (212) 318-3400 judith.archer@nortonrosefulbright.com victoria.corder@nortonrosefulbright.com sean.topping@nortonrosefulbright.com Attorneys for Defendants 11 12 of 13 FILED: NEW YORK COUNTY CLERK 09/08/2021 10:41 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 09/08/2021 CERTIFICATION Counsel for Defendants hereby certifies that this document complies with the word count limit of Commercial Division Rule 17. This affirmation was prepared using Microsoft Word, and the total number of words in this affirmation, exclusive of the caption, table of contents, table of authorities, and signature block is less than 7,000 words. Dated: September 8, 2021 By: /s/ Judith A. Archer New York, New York Judith A. Archer 12 13 of 13