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FILED: NEW YORK COUNTY CLERK 04/08/2022 11:53 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 336 RECEIVED NYSCEF: 04/08/2022
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 #12
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
ZEYNEP TEKINER’S MOTION TO INTERVENE AND FOR
PRELIMINARY INJUNCTION WITH TEMPORARY RESTRAINING ORDER
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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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ................................................................................................... 1
STATEMENT OF FACTS ............................................................................................................ 3
A. Zeynep Tekiner, Bremen House Director and Vice President in Absentia ........... 3
B. Yasemin Tekiner’s Prior Request for a Preliminary Injunction Is Similar
To This One ........................................................................................................... 5
C. Zeynep Tekiner Consents to Removing Yasemin Tekiner as a Company
Officer and Director ............................................................................................... 5
D. NRF Never Represented Zeynep Tekiner as She Was Never a Defendant ........... 6
E. Zeynep Secretly Seeks to Intervene & Demands Injunctive Relief ....................... 9
ARGUMENT ................................................................................................................................. 9
I. Defendants Consent to Intervention While Reserving All Rights ............................. 10
II. A Preliminary Injunction Is Unwarranted.................................................................. 10
A. Zeynep Unlikely To Succeed on the Merits of Her Claims ................................. 11
1. There Is No Evidence of Self-Dealing ........................................................... 11
2. Plaintiff Provides No Evidence of Corporate Mismanagement ..................... 14
3. Defendants Have Not Breached Duties of Candor ........................................ 16
B. Zeynep’s Purely Hypothetical Harm Is Neither Imminent Nor Irreparable ........ 17
C. The Balance of the Equities Strongly Weighs Against Granting a
Preliminary Injunction that Would Paralyze the Companies and Reward
Zeynep’s Duplicity............................................................................................... 19
CONCLUSION ............................................................................................................................ 22
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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
Proposed Intervenor-Plaintiff’s Memorandum of Law In Support of Motion to Intervene and for
Preliminary Injunction with Temporary Restraining Order (the “Motion”).
PRELIMINARY STATEMENT
Nearly fifteen months into this lawsuit, after a motion to dismiss was granted in part,
multiple rounds of failed mediation, thousands of documents produced, and depositions taken,
non-party Zeynep Tekiner (“Zeynep”) has decided to change sides and switch her allegiance from
Defendants to Plaintiff. Along with her motion to intervene, which seeks to rewrite history,
Zeynep seeks an overly broad injunction that would prevent Defendants from eliminating
Zeynep’s salary or job role with the Companies regardless of her conduct, despite her newly
revealed position in this litigation.
Zeynep’s decision to file her surprise motion was a calculated one that appears to have
been long coordinated with Plaintiff. Their coordinated filings are a ploy to entrench them both in
the family business—which would paralyze the Companies, and kneecap Defendants’ ability to
conduct business or even defend themselves in this lawsuit. Zeynep, through her new counsel, has
already made clear that she would oppose virtually anything Berrin Tekiner and Gonca Chelsea
do.
Defendants consent to Zeynep’s intervention as a plaintiff in this action, and will proceed
to respond to her complaint, take her full deposition as a party and serve discovery on her as a
party so that there is no further delay. (Her prior deposition was taken by Plaintiff.)
However, Defendants strongly oppose Zeynep’s application for a preliminary injunction
as unsupported and unavailing. Concerning her likelihood of success on the merits, Zeynep will
not prevail on her claims in this action for all of the same reasons Plaintiff will not prevail. Fifteen
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months into this case, discovery has revealed no evidence of actionable corporate mismanagement.
Discovery has only uncovered the actions of closely-held companies whose primary purpose is to
benefit all members of the Tekiner family—including Zeynep who performs no regular work for
the Companies. Defendants’ business decisions complained about in the Complaint, such as the
Extell Sale and subsequent portfolio diversification, or firing a costly and ineffective real estate
advisor, were legitimate and entitled to deference under the business judgment rule. Moreover, as
Vice President of Bremen House, Zeynep participated in approving these corporate decisions and
has no basis to complain of them now.
Nor can Zeynep show any irreparable harm. Zeynep’s harm is purely hypothetical.
Defendants have not done anything recently that could have precipitated—or would justify—
Zeynep’s request for injunctive relief. No one has threatened to fire her, cut off her salary or
benefits, or evict her from the Company-owned house in which she resides. As with Plaintiff,
Defendants represent that they have no intention of putting Zeynep or her children out of their
family home or terminating their health insurance during this lawsuit. There is simply no basis for
Zeynep to receive a preliminary injunction.
Finally, the balance of the equities strongly favors allowing this case to proceed without a
paralyzing, open-ended injunction in place. Zeynep’s duplicitous behavior should not be
rewarded, and she should not be given carte blanche to conduct herself however should would like,
regardless of her obligations and self-interest. If Zeynep truly harbored thoughts adverse to the
Defendants and Companies for fifteen months, she kept those thoughts a secret so she could use
her position within Bremen House to gain access to privileged information to benefit herself and
Plaintiff in the long run. Zeynep and Yasemin are collectively attempting to force gridlock on
the Companies’ business, ensure they have access to Company funds to litigate against the
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Companies before their claims are decided, and to make things as difficult as possible for their
mother and sister.
This is not a “preliminary” injunction—it is the final relief sought. And awarding Zeynep
and Yasemin their final relief now is unprecedented and inequitable to the Defendants.
STATEMENT OF FACTS
In addition to the facts set forth in prior briefing, incorporated herein by reference, the facts
relevant to this opposition are drawn from the affidavits of Berrin Tekiner and Gonca Tekiner and
the affirmation of Judith Archer filed herewith. 1
A. Zeynep Tekiner, Bremen House Director and Vice President in Absentia
Zeynep has never expressed an interest in, or devoted any significant amount of time to,
the Tekiner family business, which operates through Bremen House, Inc. (“Bremen House”) and
German News, Inc. (“German News,” collectively the “Companies”). (NYSCEF No. 22 ¶¶5-6)
Zeynep admittedly “know[s] nothing” about the Companies’ assets, and has historically had an
even more limited role than her sister Yasemin. (Berrin Aff. ¶ 14, Ex. B) For example, from the
early 2000s until late 2014, Zeynep lived in Turkey with her ex-husband and children and had
nothing to do with the Companies. (Berrin Aff. ¶15) Even after Zeynep returned to the U.S.
around late 2014, she did not work for the Companies. Indeed, she had no job, no home, and no
ability to take care of herself or her children without the financial support of her mother. (Berrin
Aff. ¶ 16)
As a measure of maternal generosity, at the direction of her mother and with the support
and approval of her sisters, after she returned to the U.S., the Companies began providing Zeynep
with a number of benefits that she enjoys to this day, including: (1) a “salary” of $250,000 per
1
See, e.g., NYSCEF Nos. 21, 97, 143, 151, 224, and 250.
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year; (2) a pension currently valued around $190,000; (3) the right to reside rent-free in a multi-
million dollar residence in Bronxville, New York owned by the Companies; (4) for a period of
time, in addition to her house, a million dollar apartment in Manhattan’s Upper East Side
neighborhood for use as a pied-a-terre; (5) payment of insurance, taxes, maintenance, and upkeep
expenses on the properties; and (6) health insurance. (Berrin Aff. ¶¶ 22, 24, 25, 26, 28 Exs. D, E,
F, G, H, I, L) In addition, Berrin has footed the bill for numerous expenses incurred by Zeynep,
including her divorce, her Masters of Fine Arts degree from the New York Academy of Art, and a
painting studio. (Berrin Aff. ¶ 22)
Zeynep was also named Vice President and Director of Bremen House in 2019, despite the
fact that Zeynep has performed virtually no work for the company. In those roles, she is asked
from time to time to review and approve certain corporate events as required by the Companies’
bylaws or the New York Business Corporation Law (“BCL”). For example, as a director, Zeynep
approved the sale of buildings to Extell and approved a recent sale of a small property on Madison
Avenue, which she did without question or hesitation. (Berrin Aff. ¶ 37, Ex. M) As a director
who is also the beneficiary of a trust that is a 1/3 shareholder of the Companies, Zeynep approved
the Companies’ sale of buildings to Extell.2 See BCL 909(a). Since becoming Vice President of
Bremen House in 2019, Zeynep has not consistently worked for the company, and has only
sporadically appeared in the Companies’ offices on her way to a doctor’s appointment or her
painting studio. (Berrin Aff. ¶ 19) Defendants have repeatedly tried to get Zeynep to be more
involved in the management of the Companies, including by renovating office space to suit her
2
By 2020, the properties sold to Extell had become unprofitable due to age and falling rental income, exacerbated
primarily by New York City regulations, and later by COVID-19. (See, e.g., NYSCEF No. 237 at 112:7-12, 145:13-
23) Plaintiff and Zeynep agreed to sell the properties and were involved in the decision-making concerning that sale.
(Id. at 178:11-16) The family ultimately sold the properties for $35 million, which Yasemin and Zeynep consented
to, NYSCEF Docs. 26-27, after months of marketing and due diligence by Extell and other potential buyers.
(NYSCEF No. 237 at 169:9-12)
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needs. (Berrin Aff. ¶ 20) However, Zeynep has resisted, instead dedicating most of her time to
taking care of her daughters and her hobby, painting. (Berrin Aff. ¶17)
B. Yasemin Tekiner’s Prior Request for a Preliminary Injunction Is Similar
To This One
At the time she initiated this lawsuit, Yasemin also sought—and was denied—a
preliminary injunction similar to the one sought by Zeynep now, that would have enjoined
Defendants from removing Plaintiff as a Company director or officer, reduced her salary, and
evicted her from the multi-million dollar Bremen House-owned home in Bel Air, California where
she lives. (NYSCEF No. 5)
The Court denied the TRO on January 5, 2021, NYSCEF No. 36 at 40:3-20, and
subsequently denied the PI on January 25, 2021, NYSCEF No. 87; see also NYSCEF No. 7, 22,
34, 41, determining Plaintiff failed to carry her burden, especially as to irreparable harm, stating:
“I think both for likelihood of success, largely the absence of irreparable harm and the balance of
equities, I don’t think that plaintiff has demonstrated entitlement to the extraordinary relief of
preliminary injunction pending the resolution of the case.” (NYSCEF Nos. 36 at 40:3-8; No. 97
at 63:17-23, 65:5-9)
Defendants subsequently moved to dismiss Plaintiff’s Amended Complaint. The Court
granted the motion in part noting that “many” of Plaintiff’s trust and corporate claims were
“probably going to be covered by the Business Judgment Rule down the line.” (NYSCEF No. 151
at 53:18-54:16, 57:12-15)
C. Zeynep Tekiner Consents to Removing Yasemin Tekiner as a Company Officer
and Director
Following Plaintiff’s disruptive behavior in the fall of 2020, the shareholders of Bremen
House removed Plaintiff as a Director on January 5, 2021. (NYSCEF No. 28; NYSCEF No. 237
at 179:21-180:10) Zeynep signed a direction letter instructing the corporate trustee of her trust to
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remove Yasemin as Company director (NYSCEF No. 227; see also NYSCEF No. 22 ¶30;
NYSCEF No. 28) Then, on January 8, 2021, the Bremen House Board of Directors, including
Zeynep, unanimously voted to remove Yasemin as Vice President, and German News terminated
Yasemin as its Treasurer. (NYSCEF Nos. 29, 30)
Zeynep was not coerced into removing Yasemin. Defendants vehemently deny the
accusation. (Berrin Aff. ¶30, Gonca Aff. ¶20) Moreover, Defendants’ counsel were never aware
that Zeynep had any objection to the removal, and never instructed Zeynep to sign the consent
against her will, and never advised Zeynep to remain on the Bremen House board after Yasemin
resigned (or provide her any individual legal advice in connection with consenting to Yasemin’s
removal). (Archer Aff. ¶27)
D. NRF Never Represented Zeynep Tekiner as She Was Never a Defendant
Norton Rose Fulbright US LLP (“NRF”) has never represented Zeynep Tekiner in this
lawsuit as she was never a defendant or party in this case. (See, e.g., NYSCEF No. 1) There was,
thus, no need for her to have counsel. NRF never executed an engagement letter at any point in
time with Zeynep. (Archer Aff. ¶5) It only executed an engagement letter with the Defendants.
(Id. ¶4) NRF never filed a notice of appearance on behalf of Zeynep on the docket of this case. It
only appeared on behalf of the Defendants. As NRF did not represent Zeynep and Zeynep was
not a party, NRF was never required to obtain her informed consent prior to representing the co-
Defendants in this case. (Id. ¶¶4-5)
In the course of representing Bremen House, NRF communicated to Zeynep information
subject to Defendants’ attorney-client privilege solely in her role as a director and officer of
Bremen House, as is typical when a law firm represents a company whose employees, though not
named in a lawsuit, may have relevant information. (Id. ¶¶10, 15) For example, Zeynep was
invited to, and participated in, numerous phone calls, virtual meetings, and email exchanges with
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Defendants’ litigation counsel, and saw work product from counsel including documents revealing
research, strategy, and—incredibly importantly—settlement considerations that were never
shared with Plaintiff and are privileged and highly confidential. (NYSCEF No. 251 at 4, 5)
At no time did Zeynep tell Defendants or NRF that she agreed with Plaintiff’s allegations, wanted
to sue her family, or that she was contemplating joining as a plaintiff herself. (Archer Aff. ¶5;
Berrin Aff. ¶ 33) If she actually had those thoughts, she kept them hidden from NRF and the
Defendants. (Archer Aff. ¶18) Had she ever shared them, she would not have been permitted to
participate in Defendants’ attorney-client communications and would never have been provided
privileged information. (Id.)
In responding to discovery directed to the Defendants, as Zeynep was a custodian of
Bremen House documents, NRF collected and reviewed Zeynep’s potentially relevant data along
with other data sources of the Company and its employees, just as it would in any other lawsuit
with any other officer of a company it was representing. (Archer Aff ¶22) This did not mean NRF
represented Zeynep personally.
Later in the case, Plaintiff demanded access to more and more information in Zeynep’s
possession, particularly her personal text messages with the co-Defendants and Plaintiff. Plaintiff
also sought to depose Zeynep early in the case before document discovery had been completed,
even though Zeynep was not a party. (Id. ¶23) To that end, Plaintiff subpoenaed documents and
testimony from Zeynep on June 7, 2021, even though she was a custodian of Bremen House. (Id.)
NRF strongly opposed those discovery devices as inappropriate given Zeynep’s role with
Bremen House, and repeatedly demanded via email (and at meet-and-confers) that Plaintiff
withdraw the subpoena given that Zeynep’s documents had been collected and reviewed by
Bremen House already, and Bremen House had already agreed to produce her voluntarily. (Id.
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¶¶23, 24, Ex. E) Moreover, the subpoena requests were nearly entirely duplicative of already
served requests to Bremen House, for which Zeynep was a custodian. (Id. ¶23) Plaintiff refused.
(Id. ¶24) Thus, to preserve the company’s and its vice president’s rights and avoid a waiver,
Bremen House served a response to the subpoena duces tecum that repeatedly referred Plaintiff to
Bremen House’s responses to discovery already served. (See NYSCEF No. 258) Plaintiff knew
that Zeynep’s documents were already being reviewed along with Defendants’ documents, yet
pursued this improper discovery vehicle to impose costs and inconvenience on Bremen House.
(Archer Aff. ¶23) Zeynep claims to have not learned of the subpoena response until her deposition
but nonetheless relies on it as evidence that NRF represented her personally. NRF did not, but
simply preserved Defendants’ and the officer’s rights. (Id. ¶25) Zeynep and her counsel have no
idea as to the back and forth with Plaintiff that occurred prior to the response, and Plaintiff
audaciously hid this fact from Zeynep and the Court at the TRO hearing, when Plaintiff’s counsel
attacked NRF for a confusing typing error (that we have represented as such). (Id. Ex. D 25:1-12,
E) The subpoena response did not create an attorney-client relationship with Zeynep personally.
Throughout the course of NRF’s representation of Bremen House, NRF repeatedly advised
Zeynep that it represented the Defendants and the company for which she worked. (Id. ¶¶10-11)
NRF rarely spoke with Zeynep alone before Zeynep’s deposition approached in September 2021.
(Id. ¶10) On a call before her deposition, Zeynep raised the idea herself of retaining separate
counsel to protect her individual interests for the first time. (Id. ¶11) (NYSCEF No. 239 at 39:14-
23) NRF’s efforts to prepare a company witness for her deposition did not give rise to any
representation of Zeynep personally, and NRF made that abundantly clear, regardless of Zeynep’s
purported misunderstanding. (Archer Aff. ¶15)
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The evidence, however, supports that Zeynep understood perfectly. (Id. ¶11) Soon after
Zeynep expressed concern for the first time about her personal interests, she retained Beth
Kaufman of Schoeman Updike Kaufman & Gerber LLP to represent her personally at her
deposition. (NYSCEF No. 235 ¶11) She never instructed NRF she was terminating any perceived
attorney-client relationship with it. (Archer Aff. ¶11) Ms. Kaufman, in consultation with her
client, executed a limited common interest agreement with NRF in order to have access to
information relevant to her counsel’s preparation of Zeynep for her deposition and for responding
to additional documents sought by Plaintiff. (Archer Aff. ¶12, NYSCEF Nos. 251, 255)
Defendants’ counsel participated in Zeynep’s deposition on December 22, 2021 on Defendants’
behalf. (NYSCEF No. 239 at 1-2)
Zeynep’s outrageous assertions are pure fantasy conjured up to support her decision to
switch sides in this lawsuit and use privileged information to litigate her newfound claims.
E. Zeynep Secretly Seeks to Intervene & Demands Injunctive Relief
After nearly fifteen months of pretending to be on the Defendants’ side and enjoying access
to the defense strategy, Zeynep secretly switched sides and moved to intervene. (NYSCEF Nos.
215-223) Zeynep now seeks a preliminary injunction just like Yasemin did over a year ago,
preventing Defendants from firing or removing her from her Bremen House positions, cutting or
reducing her salary, evicting her from her company-owned house, or changing her other benefits.
(NYSCEF No. 223)
Nothing Defendants did precipitated this about-face. No one has recently threated Zeynep
with a change to her positions, housing, or benefits. (Berrin Aff. ¶35) The sole factor creating her
purported harm—which is purely hypothetical—is her own decision to file this lawsuit against her
employer.
ARGUMENT
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I. DEFENDANTS CONSENT TO INTERVENTION WHILE RESERVING ALL
RIGHTS
While Defendants reject the legal and factual basis for Zeynep’s allegations in her proposed
Complaint, Defendants consent to her intervention because doing so is the most expedient way to
deal with her new claims. Therefore, Defendants ask the Court to amend the scheduling order to
afford Defendants the ability to move to dismiss Zeynep’s claims or otherwise respond, even if
they were previously upheld by the Court as it concerned Yasemin. 3 Further, now that she is a
party adverse to the Defendants, Defendants will also have to conduct discovery on Zeynep,
including taking Zeynep’s full deposition (her prior deposition was noticed by Plaintiff and
Defendants did not have the opportunity to question Zeynep) and serve discovery requests relevant
to her allegations.
II. A PRELIMINARY INJUNCTION IS UNWARRANTED
Zeynep candidly admits that her request for injunctive relief merely “relies upon or actually
copies the factual and legal arguments made in Yasemin’s original motion for injunctive relief.”
(Br. at 9 n.1) As such, the Court should deny her request for all the same reasons it previously
denied Yasemin’s request, among others.
Zeynep cannot satisfy CPLR Article 63’s stringent requirements for obtaining an
injunction. A preliminary injunction is a “drastic and extraordinary provisional remedy.” See
Margolies v. Encounter, Inc., 42 N.Y.2d 475, 479 (1977). A court may enter a preliminary
injunction only where the movant shows: (1) she is likely to ultimately succeed on the merits, (2)
she will suffer irreparable injury absent relief, and (3) the balance of the equities favors her. See
3
Zeynep’s proposed Complaint is a cut-and-paste job of the operative portions of Plaintiff’s Complaint. (Compare
NYSCEF No. 218, with NYSCEF No. 86) Zeynep indiscriminately substitutes in “Zeynep and Yasemin” or “Yasemin
and Zeynep” for “Yasemin” over 30 times, including for various alleged actions that Zeynep demonstrably had no
role in whatsoever. (NYSCEF No. 218 ¶¶ 109-148)
Zeynep seeks essentially the same relief as Plaintiff. Defendants,
while reserving all rights and disputing all assertions and purported facts included in Zeynep’s Motion, consent to her
intervention.
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Doe v. Axelrod, 73 N.Y.2d 748, 750 (1988). Plaintiff has the burden of proving her entitlement to
a preliminary injunction through “competent proof, with evidentiary detail.” Scotto v. Mei, 219
A.D.2d 181, 182 (1st Dep’t 1996).
Zeynep fails to carry her burden on any of these elements as demonstrated below, and the
Court should deny her request.
A. Zeynep Unlikely To Succeed on the Merits of Her Claims
Zeynep is unlikely to succeed on the merits of her claims. After 15 months of discovery,
and hundreds of thousands of pages of documents produced, there is simply no evidence to support
any self-dealing or actionable corporate mismanagement. Further, Defendants’ corporate actions
are subject to the Business Judgment Rule and/or were actively participated in by the entire family,
including both Zeynep and Yasemin. Instead of evidence, Zeynep offers deliberate
misconstruction of information and egregious claims about alleged personal shortcomings and
mental health issues 4 untethered to business-related conduct, in a failed attempt to overcome the
gross lack of support for the corporate claims.
1. There Is No Evidence of Self-Dealing
Zeynep provides no support for her claims of self-dealing and, even if she had, her claims
would be barred because she participated in and benefited from the same opportunities about which
she now complains.
Courts define self-dealing as situations where a fiduciary’s personal interest conflicts with
the interest of those owed a fiduciary duty. See Global Minerals and Metals Corp. v. Holme, 35
4
Both Plaintiff and Zeynep’s recent filings rely largely on text messages among and about various Tekiner family
members that range from the salacious to the silly. (See, e.g., NYSCEF Nos. 173-176, 256, 266, 277, 279, 281, 283-
284, 287-288, 290)
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A.D.3d 93, 98 (1st Dep’t 2006). 5 A party cannot bring a claim for breach of fiduciary duty where
that party actively participated in the alleged misconduct and benefitted herself. See Evangelista
v. Longo, 13 A.D.2d 835 (2d Dep’t 1961) (holding defense of “unclean hands” applies where
plaintiff, an officer and director of a corporation, approved or initiated the transfers alleged to be
corporate waste); Steinberg v. Steinberg, 434 N.Y.S.2d 877, 879 (Sup. Ct. N.Y. Cty. 1980)
(estopping Plaintiff from challenging corporate expenses where she shared the “extravagant
lifestyle she claims was financed by the corporation”); Gottfried v. Gottfried, 112 N.Y.S.2d 431,
441–443 (Sup. Ct. N.Y. Cty. 1952) (estopping plaintiff’s claims of waste because he too used
company funds to cover a car and personal telephone bill). Relatedly, Courts routinely bar
recovery on self-dealing claims where plaintiff was aware and consented to alleged self-dealing
by engaging in and benefiting from it. See, e.g., Tatko v. Sheldon Slate Products Co., Inc., 2
A.D.3d 1030, 1032 (3d Dep’t 2003) (affirming plaintiff’s self-dealing claims waived by failure to
object to challenged conduct).
Zeynep argues that Defendants engaged in self-dealing by using Company funds to pay for
personal expenses (Br. at 11). Even if true, that is not a breach of fiduciary duty as the Individual
Defendants’ interests were and are aligned, not conflicting or potentially conflicting (See Global
Minerals, 35 A.D.3d at 98), with those of the Companies, whose admitted purpose was providing
for the Tekiner family by paying for the homes of the Tekiner family and providing a salary and
benefits. (NYSCEF No. 143 (Defendants’ Counterclaims) ¶8; No. 217 ¶30 (Companies’ “real
estate investments” are for “the benefit of” Zeynep, her sisters, and their children); No. 184 ¶37
(Plaintiff claiming that Companies’ “valuable assets” are for her and non-existent “future”
5
In Birnbaum v. Birnbaum, 73 N.Y.2d 461 (1989), on which Zeynep relies, the court held that defendant breached his
fiduciary obligations by failing to disclose that he hired his future wife.Here, the alleged misconduct was plainly
known to and accepted for years by Zeynep and Plaintiff, who were its primary beneficiaries.
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descendants)) Every member of the Tekiner family has received and enjoyed such benefits for
years and consented to the extension of benefits to the other.
Zeynep also complains that the Companies took out a mortgage to purchase Gonca’s house,
but that is not self-dealing either—the house is in the company’s name and the company pays for
Zeynep’s house too. The mortgage proceeds were used to consolidate company debt and purchase
the property with the consent of the company. Gonca did not pocket this money. (NYSCEF No.
22 ¶11) That house is also currently on the market and, when sold, the proceeds will be returned
to the Companies. (NYSCEF No. 225 ¶ 8) Berrin’s prior company-owned homes are likewise not
self-dealing, the proceeds from the sale of any Company-owned homes goes back into the
companies. (NYSCEF No. 22 ¶¶9, 12; No. 225 ¶¶25-32 (explaining recent sales of Defendants’
personal homes and reinvestment of sales proceeds back into the Companies))
Plaintiff further complains that the Company pays for “a wide assortment of personal
expenses” including phone bills, housekeeping, landscaping, and pet food. (Br. at 11) But these
are not personal expenses, as Berrin and Gonca used their phones to manage the Companies,
landscaping and housekeeping were upkeep on company-owned properties, and pet food was for
rescue cats at the Companies’ offices. (NYSCEF No. 22 ¶11) Zeynep conveniently omits that she
has benefitted from the Companies’ reimbursement of such company-owned property expenses
for the homes in which she has resided. (Berrin Aff. Ex. L)
For years, Zeynep benefitted from the Companies, approved of the Companies behavior,
and never objected to these actions that she now claims constitute “self-dealing.” For example,
Zeynep has accepted the following Company benefits for years: (1) having the Companies buy her
multiple houses in Bronxville, each currently worth roughly $2 million, and use of a “pied-a-terre”
apartment in Manhattan; (2) paying no out-of-pocket expenses on any of the properties; (3)
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drawing an annual salary of over $250,000, benefits, and a pension valued at approximately
$190,000, based on largely honorific officer and director roles; and (4) regularly charging the
Companies’ expenses, including costly renovations. (See Berrin Aff. ¶¶22, 24, 26, Exs. D, E, G,
H, I, L) Under New York law, Zeynep’s claims are barred. See Evangelista, 13 A.D.2d 835;
Gottfried 112 N.Y.S.2d at 441 (holding a stockholder’s “consent to an act will estop him from
thereafter complaining of it . . .” as will “assent” by “partaking of [the company]’s generosity.”)
2. Plaintiff Provides No Evidence of Corporate Mismanagement
Preview
FILED: NEW YORK COUNTY CLERK 04/08/2022 11:53 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 336 RECEIVED NYSCEF: 04/08/2022 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 #12 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 ZEYNEP TEKINER’S MOTION TO INTERVENE AND FOR PRELIMINARY INJUNCTION WITH TEMPORARY RESTRAINING ORDER 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 27 FILED: NEW YORK COUNTY CLERK 04/08/2022 11:53 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 336 RECEIVED NYSCEF: 04/08/2022 TABLE OF CONTENTS Page PRELIMINARY STATEMENT ................................................................................................... 1 STATEMENT OF FACTS ............................................................................................................ 3 A. Zeynep Tekiner, Bremen House Director and Vice President in Absentia ........... 3 B. Yasemin Tekiner’s Prior Request for a Preliminary Injunction Is Similar To This One ........................................................................................................... 5 C. Zeynep Tekiner Consents to Removing Yasemin Tekiner as a Company Officer and Director ............................................................................................... 5 D. NRF Never Represented Zeynep Tekiner as She Was Never a Defendant ........... 6 E. Zeynep Secretly Seeks to Intervene & Demands Injunctive Relief ....................... 9 ARGUMENT ................................................................................................................................. 9 I. Defendants Consent to Intervention While Reserving All Rights ............................. 10 II. A Preliminary Injunction Is Unwarranted.................................................................. 10 A. Zeynep Unlikely To Succeed on the Merits of Her Claims ................................. 11 1. There Is No Evidence of Self-Dealing ........................................................... 11 2. Plaintiff Provides No Evidence of Corporate Mismanagement ..................... 14 3. Defendants Have Not Breached Duties of Candor ........................................ 16 B. Zeynep’s Purely Hypothetical Harm Is Neither Imminent Nor Irreparable ........ 17 C. The Balance of the Equities Strongly Weighs Against Granting a Preliminary Injunction that Would Paralyze the Companies and Reward Zeynep’s Duplicity............................................................................................... 19 CONCLUSION ............................................................................................................................ 22 -i- 2 of 27 FILED: NEW YORK COUNTY CLERK 04/08/2022 11:53 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 336 RECEIVED NYSCEF: 04/08/2022 -ii- 3 of 27 FILED: NEW YORK COUNTY CLERK 04/08/2022 11:53 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 336 RECEIVED NYSCEF: 04/08/2022 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 Proposed Intervenor-Plaintiff’s Memorandum of Law In Support of Motion to Intervene and for Preliminary Injunction with Temporary Restraining Order (the “Motion”). PRELIMINARY STATEMENT Nearly fifteen months into this lawsuit, after a motion to dismiss was granted in part, multiple rounds of failed mediation, thousands of documents produced, and depositions taken, non-party Zeynep Tekiner (“Zeynep”) has decided to change sides and switch her allegiance from Defendants to Plaintiff. Along with her motion to intervene, which seeks to rewrite history, Zeynep seeks an overly broad injunction that would prevent Defendants from eliminating Zeynep’s salary or job role with the Companies regardless of her conduct, despite her newly revealed position in this litigation. Zeynep’s decision to file her surprise motion was a calculated one that appears to have been long coordinated with Plaintiff. Their coordinated filings are a ploy to entrench them both in the family business—which would paralyze the Companies, and kneecap Defendants’ ability to conduct business or even defend themselves in this lawsuit. Zeynep, through her new counsel, has already made clear that she would oppose virtually anything Berrin Tekiner and Gonca Chelsea do. Defendants consent to Zeynep’s intervention as a plaintiff in this action, and will proceed to respond to her complaint, take her full deposition as a party and serve discovery on her as a party so that there is no further delay. (Her prior deposition was taken by Plaintiff.) However, Defendants strongly oppose Zeynep’s application for a preliminary injunction as unsupported and unavailing. Concerning her likelihood of success on the merits, Zeynep will not prevail on her claims in this action for all of the same reasons Plaintiff will not prevail. Fifteen -1- 4 of 27 FILED: NEW YORK COUNTY CLERK 04/08/2022 11:53 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 336 RECEIVED NYSCEF: 04/08/2022 months into this case, discovery has revealed no evidence of actionable corporate mismanagement. Discovery has only uncovered the actions of closely-held companies whose primary purpose is to benefit all members of the Tekiner family—including Zeynep who performs no regular work for the Companies. Defendants’ business decisions complained about in the Complaint, such as the Extell Sale and subsequent portfolio diversification, or firing a costly and ineffective real estate advisor, were legitimate and entitled to deference under the business judgment rule. Moreover, as Vice President of Bremen House, Zeynep participated in approving these corporate decisions and has no basis to complain of them now. Nor can Zeynep show any irreparable harm. Zeynep’s harm is purely hypothetical. Defendants have not done anything recently that could have precipitated—or would justify— Zeynep’s request for injunctive relief. No one has threatened to fire her, cut off her salary or benefits, or evict her from the Company-owned house in which she resides. As with Plaintiff, Defendants represent that they have no intention of putting Zeynep or her children out of their family home or terminating their health insurance during this lawsuit. There is simply no basis for Zeynep to receive a preliminary injunction. Finally, the balance of the equities strongly favors allowing this case to proceed without a paralyzing, open-ended injunction in place. Zeynep’s duplicitous behavior should not be rewarded, and she should not be given carte blanche to conduct herself however should would like, regardless of her obligations and self-interest. If Zeynep truly harbored thoughts adverse to the Defendants and Companies for fifteen months, she kept those thoughts a secret so she could use her position within Bremen House to gain access to privileged information to benefit herself and Plaintiff in the long run. Zeynep and Yasemin are collectively attempting to force gridlock on the Companies’ business, ensure they have access to Company funds to litigate against the -2- 5 of 27 FILED: NEW YORK COUNTY CLERK 04/08/2022 11:53 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 336 RECEIVED NYSCEF: 04/08/2022 Companies before their claims are decided, and to make things as difficult as possible for their mother and sister. This is not a “preliminary” injunction—it is the final relief sought. And awarding Zeynep and Yasemin their final relief now is unprecedented and inequitable to the Defendants. STATEMENT OF FACTS In addition to the facts set forth in prior briefing, incorporated herein by reference, the facts relevant to this opposition are drawn from the affidavits of Berrin Tekiner and Gonca Tekiner and the affirmation of Judith Archer filed herewith. 1 A. Zeynep Tekiner, Bremen House Director and Vice President in Absentia Zeynep has never expressed an interest in, or devoted any significant amount of time to, the Tekiner family business, which operates through Bremen House, Inc. (“Bremen House”) and German News, Inc. (“German News,” collectively the “Companies”). (NYSCEF No. 22 ¶¶5-6) Zeynep admittedly “know[s] nothing” about the Companies’ assets, and has historically had an even more limited role than her sister Yasemin. (Berrin Aff. ¶ 14, Ex. B) For example, from the early 2000s until late 2014, Zeynep lived in Turkey with her ex-husband and children and had nothing to do with the Companies. (Berrin Aff. ¶15) Even after Zeynep returned to the U.S. around late 2014, she did not work for the Companies. Indeed, she had no job, no home, and no ability to take care of herself or her children without the financial support of her mother. (Berrin Aff. ¶ 16) As a measure of maternal generosity, at the direction of her mother and with the support and approval of her sisters, after she returned to the U.S., the Companies began providing Zeynep with a number of benefits that she enjoys to this day, including: (1) a “salary” of $250,000 per 1 See, e.g., NYSCEF Nos. 21, 97, 143, 151, 224, and 250. -3- 6 of 27 FILED: NEW YORK COUNTY CLERK 04/08/2022 11:53 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 336 RECEIVED NYSCEF: 04/08/2022 year; (2) a pension currently valued around $190,000; (3) the right to reside rent-free in a multi- million dollar residence in Bronxville, New York owned by the Companies; (4) for a period of time, in addition to her house, a million dollar apartment in Manhattan’s Upper East Side neighborhood for use as a pied-a-terre; (5) payment of insurance, taxes, maintenance, and upkeep expenses on the properties; and (6) health insurance. (Berrin Aff. ¶¶ 22, 24, 25, 26, 28 Exs. D, E, F, G, H, I, L) In addition, Berrin has footed the bill for numerous expenses incurred by Zeynep, including her divorce, her Masters of Fine Arts degree from the New York Academy of Art, and a painting studio. (Berrin Aff. ¶ 22) Zeynep was also named Vice President and Director of Bremen House in 2019, despite the fact that Zeynep has performed virtually no work for the company. In those roles, she is asked from time to time to review and approve certain corporate events as required by the Companies’ bylaws or the New York Business Corporation Law (“BCL”). For example, as a director, Zeynep approved the sale of buildings to Extell and approved a recent sale of a small property on Madison Avenue, which she did without question or hesitation. (Berrin Aff. ¶ 37, Ex. M) As a director who is also the beneficiary of a trust that is a 1/3 shareholder of the Companies, Zeynep approved the Companies’ sale of buildings to Extell.2 See BCL 909(a). Since becoming Vice President of Bremen House in 2019, Zeynep has not consistently worked for the company, and has only sporadically appeared in the Companies’ offices on her way to a doctor’s appointment or her painting studio. (Berrin Aff. ¶ 19) Defendants have repeatedly tried to get Zeynep to be more involved in the management of the Companies, including by renovating office space to suit her 2 By 2020, the properties sold to Extell had become unprofitable due to age and falling rental income, exacerbated primarily by New York City regulations, and later by COVID-19. (See, e.g., NYSCEF No. 237 at 112:7-12, 145:13- 23) Plaintiff and Zeynep agreed to sell the properties and were involved in the decision-making concerning that sale. (Id. at 178:11-16) The family ultimately sold the properties for $35 million, which Yasemin and Zeynep consented to, NYSCEF Docs. 26-27, after months of marketing and due diligence by Extell and other potential buyers. (NYSCEF No. 237 at 169:9-12) -4- 7 of 27 FILED: NEW YORK COUNTY CLERK 04/08/2022 11:53 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 336 RECEIVED NYSCEF: 04/08/2022 needs. (Berrin Aff. ¶ 20) However, Zeynep has resisted, instead dedicating most of her time to taking care of her daughters and her hobby, painting. (Berrin Aff. ¶17) B. Yasemin Tekiner’s Prior Request for a Preliminary Injunction Is Similar To This One At the time she initiated this lawsuit, Yasemin also sought—and was denied—a preliminary injunction similar to the one sought by Zeynep now, that would have enjoined Defendants from removing Plaintiff as a Company director or officer, reduced her salary, and evicted her from the multi-million dollar Bremen House-owned home in Bel Air, California where she lives. (NYSCEF No. 5) The Court denied the TRO on January 5, 2021, NYSCEF No. 36 at 40:3-20, and subsequently denied the PI on January 25, 2021, NYSCEF No. 87; see also NYSCEF No. 7, 22, 34, 41, determining Plaintiff failed to carry her burden, especially as to irreparable harm, stating: “I think both for likelihood of success, largely the absence of irreparable harm and the balance of equities, I don’t think that plaintiff has demonstrated entitlement to the extraordinary relief of preliminary injunction pending the resolution of the case.” (NYSCEF Nos. 36 at 40:3-8; No. 97 at 63:17-23, 65:5-9) Defendants subsequently moved to dismiss Plaintiff’s Amended Complaint. The Court granted the motion in part noting that “many” of Plaintiff’s trust and corporate claims were “probably going to be covered by the Business Judgment Rule down the line.” (NYSCEF No. 151 at 53:18-54:16, 57:12-15) C. Zeynep Tekiner Consents to Removing Yasemin Tekiner as a Company Officer and Director Following Plaintiff’s disruptive behavior in the fall of 2020, the shareholders of Bremen House removed Plaintiff as a Director on January 5, 2021. (NYSCEF No. 28; NYSCEF No. 237 at 179:21-180:10) Zeynep signed a direction letter instructing the corporate trustee of her trust to -5- 8 of 27 FILED: NEW YORK COUNTY CLERK 04/08/2022 11:53 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 336 RECEIVED NYSCEF: 04/08/2022 remove Yasemin as Company director (NYSCEF No. 227; see also NYSCEF No. 22 ¶30; NYSCEF No. 28) Then, on January 8, 2021, the Bremen House Board of Directors, including Zeynep, unanimously voted to remove Yasemin as Vice President, and German News terminated Yasemin as its Treasurer. (NYSCEF Nos. 29, 30) Zeynep was not coerced into removing Yasemin. Defendants vehemently deny the accusation. (Berrin Aff. ¶30, Gonca Aff. ¶20) Moreover, Defendants’ counsel were never aware that Zeynep had any objection to the removal, and never instructed Zeynep to sign the consent against her will, and never advised Zeynep to remain on the Bremen House board after Yasemin resigned (or provide her any individual legal advice in connection with consenting to Yasemin’s removal). (Archer Aff. ¶27) D. NRF Never Represented Zeynep Tekiner as She Was Never a Defendant Norton Rose Fulbright US LLP (“NRF”) has never represented Zeynep Tekiner in this lawsuit as she was never a defendant or party in this case. (See, e.g., NYSCEF No. 1) There was, thus, no need for her to have counsel. NRF never executed an engagement letter at any point in time with Zeynep. (Archer Aff. ¶5) It only executed an engagement letter with the Defendants. (Id. ¶4) NRF never filed a notice of appearance on behalf of Zeynep on the docket of this case. It only appeared on behalf of the Defendants. As NRF did not represent Zeynep and Zeynep was not a party, NRF was never required to obtain her informed consent prior to representing the co- Defendants in this case. (Id. ¶¶4-5) In the course of representing Bremen House, NRF communicated to Zeynep information subject to Defendants’ attorney-client privilege solely in her role as a director and officer of Bremen House, as is typical when a law firm represents a company whose employees, though not named in a lawsuit, may have relevant information. (Id. ¶¶10, 15) For example, Zeynep was invited to, and participated in, numerous phone calls, virtual meetings, and email exchanges with -6- 9 of 27 FILED: NEW YORK COUNTY CLERK 04/08/2022 11:53 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 336 RECEIVED NYSCEF: 04/08/2022 Defendants’ litigation counsel, and saw work product from counsel including documents revealing research, strategy, and—incredibly importantly—settlement considerations that were never shared with Plaintiff and are privileged and highly confidential. (NYSCEF No. 251 at 4, 5) At no time did Zeynep tell Defendants or NRF that she agreed with Plaintiff’s allegations, wanted to sue her family, or that she was contemplating joining as a plaintiff herself. (Archer Aff. ¶5; Berrin Aff. ¶ 33) If she actually had those thoughts, she kept them hidden from NRF and the Defendants. (Archer Aff. ¶18) Had she ever shared them, she would not have been permitted to participate in Defendants’ attorney-client communications and would never have been provided privileged information. (Id.) In responding to discovery directed to the Defendants, as Zeynep was a custodian of Bremen House documents, NRF collected and reviewed Zeynep’s potentially relevant data along with other data sources of the Company and its employees, just as it would in any other lawsuit with any other officer of a company it was representing. (Archer Aff ¶22) This did not mean NRF represented Zeynep personally. Later in the case, Plaintiff demanded access to more and more information in Zeynep’s possession, particularly her personal text messages with the co-Defendants and Plaintiff. Plaintiff also sought to depose Zeynep early in the case before document discovery had been completed, even though Zeynep was not a party. (Id. ¶23) To that end, Plaintiff subpoenaed documents and testimony from Zeynep on June 7, 2021, even though she was a custodian of Bremen House. (Id.) NRF strongly opposed those discovery devices as inappropriate given Zeynep’s role with Bremen House, and repeatedly demanded via email (and at meet-and-confers) that Plaintiff withdraw the subpoena given that Zeynep’s documents had been collected and reviewed by Bremen House already, and Bremen House had already agreed to produce her voluntarily. (Id. -7- 10 of 27 FILED: NEW YORK COUNTY CLERK 04/08/2022 11:53 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 336 RECEIVED NYSCEF: 04/08/2022 ¶¶23, 24, Ex. E) Moreover, the subpoena requests were nearly entirely duplicative of already served requests to Bremen House, for which Zeynep was a custodian. (Id. ¶23) Plaintiff refused. (Id. ¶24) Thus, to preserve the company’s and its vice president’s rights and avoid a waiver, Bremen House served a response to the subpoena duces tecum that repeatedly referred Plaintiff to Bremen House’s responses to discovery already served. (See NYSCEF No. 258) Plaintiff knew that Zeynep’s documents were already being reviewed along with Defendants’ documents, yet pursued this improper discovery vehicle to impose costs and inconvenience on Bremen House. (Archer Aff. ¶23) Zeynep claims to have not learned of the subpoena response until her deposition but nonetheless relies on it as evidence that NRF represented her personally. NRF did not, but simply preserved Defendants’ and the officer’s rights. (Id. ¶25) Zeynep and her counsel have no idea as to the back and forth with Plaintiff that occurred prior to the response, and Plaintiff audaciously hid this fact from Zeynep and the Court at the TRO hearing, when Plaintiff’s counsel attacked NRF for a confusing typing error (that we have represented as such). (Id. Ex. D 25:1-12, E) The subpoena response did not create an attorney-client relationship with Zeynep personally. Throughout the course of NRF’s representation of Bremen House, NRF repeatedly advised Zeynep that it represented the Defendants and the company for which she worked. (Id. ¶¶10-11) NRF rarely spoke with Zeynep alone before Zeynep’s deposition approached in September 2021. (Id. ¶10) On a call before her deposition, Zeynep raised the idea herself of retaining separate counsel to protect her individual interests for the first time. (Id. ¶11) (NYSCEF No. 239 at 39:14- 23) NRF’s efforts to prepare a company witness for her deposition did not give rise to any representation of Zeynep personally, and NRF made that abundantly clear, regardless of Zeynep’s purported misunderstanding. (Archer Aff. ¶15) -8- 11 of 27 FILED: NEW YORK COUNTY CLERK 04/08/2022 11:53 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 336 RECEIVED NYSCEF: 04/08/2022 The evidence, however, supports that Zeynep understood perfectly. (Id. ¶11) Soon after Zeynep expressed concern for the first time about her personal interests, she retained Beth Kaufman of Schoeman Updike Kaufman & Gerber LLP to represent her personally at her deposition. (NYSCEF No. 235 ¶11) She never instructed NRF she was terminating any perceived attorney-client relationship with it. (Archer Aff. ¶11) Ms. Kaufman, in consultation with her client, executed a limited common interest agreement with NRF in order to have access to information relevant to her counsel’s preparation of Zeynep for her deposition and for responding to additional documents sought by Plaintiff. (Archer Aff. ¶12, NYSCEF Nos. 251, 255) Defendants’ counsel participated in Zeynep’s deposition on December 22, 2021 on Defendants’ behalf. (NYSCEF No. 239 at 1-2) Zeynep’s outrageous assertions are pure fantasy conjured up to support her decision to switch sides in this lawsuit and use privileged information to litigate her newfound claims. E. Zeynep Secretly Seeks to Intervene & Demands Injunctive Relief After nearly fifteen months of pretending to be on the Defendants’ side and enjoying access to the defense strategy, Zeynep secretly switched sides and moved to intervene. (NYSCEF Nos. 215-223) Zeynep now seeks a preliminary injunction just like Yasemin did over a year ago, preventing Defendants from firing or removing her from her Bremen House positions, cutting or reducing her salary, evicting her from her company-owned house, or changing her other benefits. (NYSCEF No. 223) Nothing Defendants did precipitated this about-face. No one has recently threated Zeynep with a change to her positions, housing, or benefits. (Berrin Aff. ¶35) The sole factor creating her purported harm—which is purely hypothetical—is her own decision to file this lawsuit against her employer. ARGUMENT -9- 12 of 27 FILED: NEW YORK COUNTY CLERK 04/08/2022 11:53 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 336 RECEIVED NYSCEF: 04/08/2022 I. DEFENDANTS CONSENT TO INTERVENTION WHILE RESERVING ALL RIGHTS While Defendants reject the legal and factual basis for Zeynep’s allegations in her proposed Complaint, Defendants consent to her intervention because doing so is the most expedient way to deal with her new claims. Therefore, Defendants ask the Court to amend the scheduling order to afford Defendants the ability to move to dismiss Zeynep’s claims or otherwise respond, even if they were previously upheld by the Court as it concerned Yasemin. 3 Further, now that she is a party adverse to the Defendants, Defendants will also have to conduct discovery on Zeynep, including taking Zeynep’s full deposition (her prior deposition was noticed by Plaintiff and Defendants did not have the opportunity to question Zeynep) and serve discovery requests relevant to her allegations. II. A PRELIMINARY INJUNCTION IS UNWARRANTED Zeynep candidly admits that her request for injunctive relief merely “relies upon or actually copies the factual and legal arguments made in Yasemin’s original motion for injunctive relief.” (Br. at 9 n.1) As such, the Court should deny her request for all the same reasons it previously denied Yasemin’s request, among others. Zeynep cannot satisfy CPLR Article 63’s stringent requirements for obtaining an injunction. A preliminary injunction is a “drastic and extraordinary provisional remedy.” See Margolies v. Encounter, Inc., 42 N.Y.2d 475, 479 (1977). A court may enter a preliminary injunction only where the movant shows: (1) she is likely to ultimately succeed on the merits, (2) she will suffer irreparable injury absent relief, and (3) the balance of the equities favors her. See 3 Zeynep’s proposed Complaint is a cut-and-paste job of the operative portions of Plaintiff’s Complaint. (Compare NYSCEF No. 218, with NYSCEF No. 86) Zeynep indiscriminately substitutes in “Zeynep and Yasemin” or “Yasemin and Zeynep” for “Yasemin” over 30 times, including for various alleged actions that Zeynep demonstrably had no role in whatsoever. (NYSCEF No. 218 ¶¶ 109-148) Zeynep seeks essentially the same relief as Plaintiff. Defendants, while reserving all rights and disputing all assertions and purported facts included in Zeynep’s Motion, consent to her intervention. -10- 13 of 27 FILED: NEW YORK COUNTY CLERK 04/08/2022 11:53 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 336 RECEIVED NYSCEF: 04/08/2022 Doe v. Axelrod, 73 N.Y.2d 748, 750 (1988). Plaintiff has the burden of proving her entitlement to a preliminary injunction through “competent proof, with evidentiary detail.” Scotto v. Mei, 219 A.D.2d 181, 182 (1st Dep’t 1996). Zeynep fails to carry her burden on any of these elements as demonstrated below, and the Court should deny her request. A. Zeynep Unlikely To Succeed on the Merits of Her Claims Zeynep is unlikely to succeed on the merits of her claims. After 15 months of discovery, and hundreds of thousands of pages of documents produced, there is simply no evidence to support any self-dealing or actionable corporate mismanagement. Further, Defendants’ corporate actions are subject to the Business Judgment Rule and/or were actively participated in by the entire family, including both Zeynep and Yasemin. Instead of evidence, Zeynep offers deliberate misconstruction of information and egregious claims about alleged personal shortcomings and mental health issues 4 untethered to business-related conduct, in a failed attempt to overcome the gross lack of support for the corporate claims. 1. There Is No Evidence of Self-Dealing Zeynep provides no support for her claims of self-dealing and, even if she had, her claims would be barred because she participated in and benefited from the same opportunities about which she now complains. Courts define self-dealing as situations where a fiduciary’s personal interest conflicts with the interest of those owed a fiduciary duty. See Global Minerals and Metals Corp. v. Holme, 35 4 Both Plaintiff and Zeynep’s recent filings rely largely on text messages among and about various Tekiner family members that range from the salacious to the silly. (See, e.g., NYSCEF Nos. 173-176, 256, 266, 277, 279, 281, 283- 284, 287-288, 290) -11- 14 of 27 FILED: NEW YORK COUNTY CLERK 04/08/2022 11:53 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 336 RECEIVED NYSCEF: 04/08/2022 A.D.3d 93, 98 (1st Dep’t 2006). 5 A party cannot bring a claim for breach of fiduciary duty where that party actively participated in the alleged misconduct and benefitted herself. See Evangelista v. Longo, 13 A.D.2d 835 (2d Dep’t 1961) (holding defense of “unclean hands” applies where plaintiff, an officer and director of a corporation, approved or initiated the transfers alleged to be corporate waste); Steinberg v. Steinberg, 434 N.Y.S.2d 877, 879 (Sup. Ct. N.Y. Cty. 1980) (estopping Plaintiff from challenging corporate expenses where she shared the “extravagant lifestyle she claims was financed by the corporation”); Gottfried v. Gottfried, 112 N.Y.S.2d 431, 441–443 (Sup. Ct. N.Y. Cty. 1952) (estopping plaintiff’s claims of waste because he too used company funds to cover a car and personal telephone bill). Relatedly, Courts routinely bar recovery on self-dealing claims where plaintiff was aware and consented to alleged self-dealing by engaging in and benefiting from it. See, e.g., Tatko v. Sheldon Slate Products Co., Inc., 2 A.D.3d 1030, 1032 (3d Dep’t 2003) (affirming plaintiff’s self-dealing claims waived by failure to object to challenged conduct). Zeynep argues that Defendants engaged in self-dealing by using Company funds to pay for personal expenses (Br. at 11). Even if true, that is not a breach of fiduciary duty as the Individual Defendants’ interests were and are aligned, not conflicting or potentially conflicting (See Global Minerals, 35 A.D.3d at 98), with those of the Companies, whose admitted purpose was providing for the Tekiner family by paying for the homes of the Tekiner family and providing a salary and benefits. (NYSCEF No. 143 (Defendants’ Counterclaims) ¶8; No. 217 ¶30 (Companies’ “real estate investments” are for “the benefit of” Zeynep, her sisters, and their children); No. 184 ¶37 (Plaintiff claiming that Companies’ “valuable assets” are for her and non-existent “future” 5 In Birnbaum v. Birnbaum, 73 N.Y.2d 461 (1989), on which Zeynep relies, the court held that defendant breached his fiduciary obligations by failing to disclose that he hired his future wife.Here, the alleged misconduct was plainly known to and accepted for years by Zeynep and Plaintiff, who were its primary beneficiaries. -12- 15 of 27 FILED: NEW YORK COUNTY CLERK 04/08/2022 11:53 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 336 RECEIVED NYSCEF: 04/08/2022 descendants)) Every member of the Tekiner family has received and enjoyed such benefits for years and consented to the extension of benefits to the other. Zeynep also complains that the Companies took out a mortgage to purchase Gonca’s house, but that is not self-dealing either—the house is in the company’s name and the company pays for Zeynep’s house too. The mortgage proceeds were used to consolidate company debt and purchase the property with the consent of the company. Gonca did not pocket this money. (NYSCEF No. 22 ¶11) That house is also currently on the market and, when sold, the proceeds will be returned to the Companies. (NYSCEF No. 225 ¶ 8) Berrin’s prior company-owned homes are likewise not self-dealing, the proceeds from the sale of any Company-owned homes goes back into the companies. (NYSCEF No. 22 ¶¶9, 12; No. 225 ¶¶25-32 (explaining recent sales of Defendants’ personal homes and reinvestment of sales proceeds back into the Companies)) Plaintiff further complains that the Company pays for “a wide assortment of personal expenses” including phone bills, housekeeping, landscaping, and pet food. (Br. at 11) But these are not personal expenses, as Berrin and Gonca used their phones to manage the Companies, landscaping and housekeeping were upkeep on company-owned properties, and pet food was for rescue cats at the Companies’ offices. (NYSCEF No. 22 ¶11) Zeynep conveniently omits that she has benefitted from the Companies’ reimbursement of such company-owned property expenses for the homes in which she has resided. (Berrin Aff. Ex. L) For years, Zeynep benefitted from the Companies, approved of the Companies behavior, and never objected to these actions that she now claims constitute “self-dealing.” For example, Zeynep has accepted the following Company benefits for years: (1) having the Companies buy her multiple houses in Bronxville, each currently worth roughly $2 million, and use of a “pied-a-terre” apartment in Manhattan; (2) paying no out-of-pocket expenses on any of the properties; (3) -13- 16 of 27 FILED: NEW YORK COUNTY CLERK 04/08/2022 11:53 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 336 RECEIVED NYSCEF: 04/08/2022 drawing an annual salary of over $250,000, benefits, and a pension valued at approximately $190,000, based on largely honorific officer and director roles; and (4) regularly charging the Companies’ expenses, including costly renovations. (See Berrin Aff. ¶¶22, 24, 26, Exs. D, E, G, H, I, L) Under New York law, Zeynep’s claims are barred. See Evangelista, 13 A.D.2d 835; Gottfried 112 N.Y.S.2d at 441 (holding a stockholder’s “consent to an act will estop him from thereafter complaining of it . . .” as will “assent” by “partaking of [the company]’s generosity.”) 2. Plaintiff Provides No Evidence of Corporate Mismanagement