Preview
FILED: NEW YORK COUNTY CLERK 04/11/2022 08:55 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 340 RECEIVED NYSCEF: 04/11/2022
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 #16
shareholder or a member of the Company
Defendants,
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
TEKINER, and BILLUR AKIPEK, in her capacity
as a Trustee of The Yasemin Tekiner 2011
Descendants Trust,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO SEAL
CERTAIN DOCUMENTS IN CONNECTION WITH DEFENDANTS’ OPPOSITION TO
ZEYNEP TEKINER’S MOTION TO INTERVENE
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 9
FILED: NEW YORK COUNTY CLERK 04/11/2022 08:55 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 340 RECEIVED NYSCEF: 04/11/2022
TABLE OF CONTENTS
STATEMENT OF FACTS ................................................................................................................ 1
ARGUMENT .................................................................................................................................... 2
CONCLUSION ................................................................................................................................. 4
2 of 9
FILED: NEW YORK COUNTY CLERK 04/11/2022 08:55 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 340 RECEIVED NYSCEF: 04/11/2022
TABLE OF AUTHORITIES
Cases Page(s)
Cohen v. S.A.C. Capital Advisors LLC,
11 Misc. 3d 1054(A) (Sup. Ct. N.Y. Cty. Jan. 3, 2006) ............................................................. 2
Coopersmith v. Gold,
156 Misc. 2d 594 (1992) ............................................................................................................ 2
Fruhling v. Westreich,
2022 WL 314046 (Sup. Ct. N.Y. Cnty. Feb. 2, 2022)................................................................ 2
Mancheski v. Gabelli Grp. Capital Partners,
39 A.D.3d 499 (2d Dep’t 2007) ................................................................................................. 2
MBIA Ins. Corp. v. Countrywide Home Loans, Inc.,
2013 WL 450030 (Sup. Ct. N.Y. Cnty. Jan. 3, 2013) ................................................................ 2
Resort Cayman Holdings, Ltd. v. Partnerships & Invs. LLC,
2020 WL 2510477 (Sup. Ct. N.Y. Cnty. May 15, 2020) ........................................................... 3
In re Twentieth Century Fox Film Corp.,
190 A.D.2d 483 (1st Dep’t 1993) ............................................................................................... 2
Other Authorities
22 N.Y.C.R.R. § 216.1(a) ................................................................................................................. 2
3 of 9
FILED: NEW YORK COUNTY CLERK 04/11/2022 08:55 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 340 RECEIVED NYSCEF: 04/11/2022
Defendants, Bremen House, Inc., German News Company, Inc., Berrin Tekiner, Gonca
(“Tekiner”) Chelsea, and Billur Akipek (“Defendants”), upon the accompanying emergency
affirmation of Judith A. Archer, submits this memorandum of law in support of their motion to
seal all or parts of certain of the exhibits annexed to the Affirmation of Judith A. Archer, dated
April 8, 2022 (the “Archer Affirmation”) and Affidavit of Berrin Tekiner, dated April 8, 2022 (the
“Tekiner Affidavit”), submitted in opposition to Zeynep Tekiner’s (“Zenep”) Motion to Interview.
STATEMENT OF FACTS
On February 23, 2021, this Court entered a Stipulation and Order for the Production and
Exchange of Confidential Information (NYSCEF No. 91) (the “Confidentiality Stipulation”) in the
above-captioned case. The Confidentiality Stipulation provides that any Party who seeks to file
with the Court any deposition transcripts or other documents which have previously been
designated as comprising or containing confidential information or any pleading, brief or
memorandum which reproduces, paraphrases or discloses such confidential information shall
submit such document in redacted form until the Court renders a decision on any motion to seal.
In connection with Zeynep’s Motion to Intervene, Defendants seek to have sealed certain
documents filed in opposition to that Motion (see Emergency Affirmation of Judith A. Archer,
dated April 22, 2022, Ex. A):
• Exhibits C, D, E, F, and N attached to the Affidavit of Berrin Tekiner in Opposition
to Proposed Intervenor-Plaintiff Zeynep Tekiner’s Motion to Intervene and for
Preliminary Injunction (“Berrin Affidavit”). (NYSCEF No. 316-319, 327). Exhibit
C (NYSCEF No. 316) contains confidential financial information from Berrin
Tekiner. Exhibit D (NYSCEF Nos. 317) contains confidential financial and
personal information of Yasemin Tekiner and Zeynep Tekiner. Exhibit E
-1-
4 of 9
FILED: NEW YORK COUNTY CLERK 04/11/2022 08:55 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 340 RECEIVED NYSCEF: 04/11/2022
(NYSCEF No. 318) contains confidential financial information of all parties to the
litigation and certain non-parties to the litigation. Exhibit F (NYSCEF No. 319)
contains confidential financial information of all the parties to the litigation and
certain non-parties. Exhibit N (NYSCEF No. 327) contains confidential,
proprietary business information of Bremen House, Inc.
• The Affirmation of Judi Archer in Opposition to Zeynep Tekiner’s Motion to
Intervene and for Preliminary Injunction with Temporary Restraining Order
(“Archer Affirmation” or “Archer Aff.”), which discusses communications relating
to attorney-client privilege. (NYSCEF No. 329)
• Exhibits D and F attached to the Archer Affirmation. (NYSCEF Nos. 333, 335)
Exhibit D (NYSCEF No. 333) is a transcript of the proceedings regarding
Defendants Motion to Claw Back Privileged Documents and for Temporary
Restraining Order held March 31, 2022, therein stating that documents filed relating
to attorney/client privileged communications be filed under seal (NYSCEF No.
333, 31:3-5). Exhibit F (NYSCEF No. 335) contains communications relating to
attorney-client privilege.
• Memorandum of Law in Opposition to Zeynep Tekiner’s Motion to Intervene and
for Preliminary Injunction with Temporary Restraining Order (“the
Memorandum”), which discusses communications relating to attorney-client
privilege (NYSCEF No. 336)
ARGUMENT
Pursuant to 22 N.Y.C.R.R. § 216.1(a), a court may “enter an order … sealing the court
records, whether in whole or in part” upon a “written finding of good cause.” In determining
-2-
5 of 9
FILED: NEW YORK COUNTY CLERK 04/11/2022 08:55 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 340 RECEIVED NYSCEF: 04/11/2022
whether there is good cause, the court should “weigh[] the interests of the public against the
interests of the parties.” Mancheski v. Gabelli Grp. Capital Partners, 39 A.D.3d 499, 502 (2d
Dep’t 2007). In finding good cause to seal documents, the Court “presupposes that public access
to the documents at issue will likely result in harm to a compelling interest of the movant…, and
that no alternative to sealing can adequately protect the threatened interest.” Id. at 502. Good
cause “boils down to . . . the prudent exercise of the court’s discretion.” Id. (citing Coopersmith
v. Gold, 156 Misc. 2d 594, 606 (1992). “[C]onfidentiality is, in certain circumstances, necessary in
order to protect the litigants …. .” In re Twentieth Century Fox Film Corp., 190 A.D.2d 483, 486
(1st Dep’t 1993). “When the balance [of interests] favors confidentiality, confidentiality should
be provided.” Id. at 486.
In the present matter, Defendants have designated as confidential certain testimony and/or
documents that are relevant to Defendant’s opposition to ZeynepTekiner’s Motion to Intervene,
Temporary Restraining Order, and Preliminary Injunction. By designating these documents
confidential, Defendants have asserted that the public does not have a discernible interest in non-
public business and personal matters that may be reflected in the transcripts and exhibits. New
York courts have held that “sensitive proprietary and business information” should be sealed where
“the parties have an interest in protecting and there is no countervailing public interest that would
furthered by their disclosure.” Cohen v. S.A.C. Cap. Advisors, LLC, 11 Misc. 3d 1054(A) (Sup.
Ct. N.Y. Cnty. 2006); See In re Crain Commc 'ns, Inc., 521 N.Y.S.2d 244, 245 (1st Dep't 1987)
(granting motion to seal and finding public interest in court proceedings “do[es] not preclude a
court's exclusion of the public when such exclusion is necessary or appropriate to the protection
of confidential trade information”). he same rule is applied to personal identifying information,
MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 2013 WL 450030, at *9 (Sup. Ct. N.Y. Cnty.
-3-
6 of 9
FILED: NEW YORK COUNTY CLERK 04/11/2022 08:55 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 340 RECEIVED NYSCEF: 04/11/2022
Jan. 3, 2013), and private and sensitive information, Fruhling v. Westreich, 2022 WL 314046, at
*3 (Sup. Ct. N.Y. Cnty. Feb. 2, 2022).
As referenced above, by designating them Confidential, Defendants have maintained that
the designated testimony reflected in the documents produced in discovery, Archer Affirmation
and attached exhibits, exhibits attached to the Berrin Affidavit, and the Memorandum itself that
are being submitted in Opposition to Zeynep Tekiner’s Motion to Intervene contain sensitive
privileged communications, proprietary and business information and/or personal financial
information of parties and non-parties, and private and potentially identifying information. If the
parties’ designations are accepted, good cause exists for sealing the Memorandum, Archer
Affirmation, exhibits attached to the Archer Affirmation and Berrin Affirmation, and transcripts
because the public would have no compelling interest in having access to such information.
Moreover, the proposed redactions are narrowly tailored to reflect the matters designated as
confidential pursuant to the Confidentiality Stipulation, which could well render any burden on
the public’s interest minimal while protecting the asserted interests of the Defendants. See Resort
Cayman Holdings, Ltd. v. Partnerships & Invs. LLC, 2020 WL 2510477, at *3 (Sup. Ct. N.Y. Cty.
May 15, 2020) (Cohen, J.).
CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court seal the
documents and seal the exhibits submitted herein, at least until such time as the Court can rule on
this sealing motion.
-4-
7 of 9
FILED: NEW YORK COUNTY CLERK 04/11/2022 08:55 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 340 RECEIVED NYSCEF: 04/11/2022
Dated: April 11, 2022 Respectfully submitted,
New York, New York
/s/ Judith A. Archer
Judith A. Archer
NORTON ROSE FULBRIGHT LLP
1301 Avenue of the Americas
New York, NY 10019
(212) 318-3342
judith.archer@nortonrosefulbright.com
-5-
8 of 9
FILED: NEW YORK COUNTY CLERK 04/11/2022 08:55 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 340 RECEIVED NYSCEF: 04/11/2022
CERTIFICATION
Counsel for Defendants hereby certifies that this document complies with the word count
limit of Commercial Division Rule 17. This memorandum of law 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: April 11, 2022 By: /s/ Judith A. Archer
New York, New York Judith A. Archer
-6-
9 of 9
Preview
FILED: NEW YORK COUNTY CLERK 04/11/2022 08:55 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 340 RECEIVED NYSCEF: 04/11/2022 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 #16 shareholder or a member of the Company Defendants, 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 TEKINER, and BILLUR AKIPEK, in her capacity as a Trustee of The Yasemin Tekiner 2011 Descendants Trust, Defendants. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO SEAL CERTAIN DOCUMENTS IN CONNECTION WITH DEFENDANTS’ OPPOSITION TO ZEYNEP TEKINER’S MOTION TO INTERVENE 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 9 FILED: NEW YORK COUNTY CLERK 04/11/2022 08:55 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 340 RECEIVED NYSCEF: 04/11/2022 TABLE OF CONTENTS STATEMENT OF FACTS ................................................................................................................ 1 ARGUMENT .................................................................................................................................... 2 CONCLUSION ................................................................................................................................. 4 2 of 9 FILED: NEW YORK COUNTY CLERK 04/11/2022 08:55 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 340 RECEIVED NYSCEF: 04/11/2022 TABLE OF AUTHORITIES Cases Page(s) Cohen v. S.A.C. Capital Advisors LLC, 11 Misc. 3d 1054(A) (Sup. Ct. N.Y. Cty. Jan. 3, 2006) ............................................................. 2 Coopersmith v. Gold, 156 Misc. 2d 594 (1992) ............................................................................................................ 2 Fruhling v. Westreich, 2022 WL 314046 (Sup. Ct. N.Y. Cnty. Feb. 2, 2022)................................................................ 2 Mancheski v. Gabelli Grp. Capital Partners, 39 A.D.3d 499 (2d Dep’t 2007) ................................................................................................. 2 MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 2013 WL 450030 (Sup. Ct. N.Y. Cnty. Jan. 3, 2013) ................................................................ 2 Resort Cayman Holdings, Ltd. v. Partnerships & Invs. LLC, 2020 WL 2510477 (Sup. Ct. N.Y. Cnty. May 15, 2020) ........................................................... 3 In re Twentieth Century Fox Film Corp., 190 A.D.2d 483 (1st Dep’t 1993) ............................................................................................... 2 Other Authorities 22 N.Y.C.R.R. § 216.1(a) ................................................................................................................. 2 3 of 9 FILED: NEW YORK COUNTY CLERK 04/11/2022 08:55 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 340 RECEIVED NYSCEF: 04/11/2022 Defendants, Bremen House, Inc., German News Company, Inc., Berrin Tekiner, Gonca (“Tekiner”) Chelsea, and Billur Akipek (“Defendants”), upon the accompanying emergency affirmation of Judith A. Archer, submits this memorandum of law in support of their motion to seal all or parts of certain of the exhibits annexed to the Affirmation of Judith A. Archer, dated April 8, 2022 (the “Archer Affirmation”) and Affidavit of Berrin Tekiner, dated April 8, 2022 (the “Tekiner Affidavit”), submitted in opposition to Zeynep Tekiner’s (“Zenep”) Motion to Interview. STATEMENT OF FACTS On February 23, 2021, this Court entered a Stipulation and Order for the Production and Exchange of Confidential Information (NYSCEF No. 91) (the “Confidentiality Stipulation”) in the above-captioned case. The Confidentiality Stipulation provides that any Party who seeks to file with the Court any deposition transcripts or other documents which have previously been designated as comprising or containing confidential information or any pleading, brief or memorandum which reproduces, paraphrases or discloses such confidential information shall submit such document in redacted form until the Court renders a decision on any motion to seal. In connection with Zeynep’s Motion to Intervene, Defendants seek to have sealed certain documents filed in opposition to that Motion (see Emergency Affirmation of Judith A. Archer, dated April 22, 2022, Ex. A): • Exhibits C, D, E, F, and N attached to the Affidavit of Berrin Tekiner in Opposition to Proposed Intervenor-Plaintiff Zeynep Tekiner’s Motion to Intervene and for Preliminary Injunction (“Berrin Affidavit”). (NYSCEF No. 316-319, 327). Exhibit C (NYSCEF No. 316) contains confidential financial information from Berrin Tekiner. Exhibit D (NYSCEF Nos. 317) contains confidential financial and personal information of Yasemin Tekiner and Zeynep Tekiner. Exhibit E -1- 4 of 9 FILED: NEW YORK COUNTY CLERK 04/11/2022 08:55 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 340 RECEIVED NYSCEF: 04/11/2022 (NYSCEF No. 318) contains confidential financial information of all parties to the litigation and certain non-parties to the litigation. Exhibit F (NYSCEF No. 319) contains confidential financial information of all the parties to the litigation and certain non-parties. Exhibit N (NYSCEF No. 327) contains confidential, proprietary business information of Bremen House, Inc. • The Affirmation of Judi Archer in Opposition to Zeynep Tekiner’s Motion to Intervene and for Preliminary Injunction with Temporary Restraining Order (“Archer Affirmation” or “Archer Aff.”), which discusses communications relating to attorney-client privilege. (NYSCEF No. 329) • Exhibits D and F attached to the Archer Affirmation. (NYSCEF Nos. 333, 335) Exhibit D (NYSCEF No. 333) is a transcript of the proceedings regarding Defendants Motion to Claw Back Privileged Documents and for Temporary Restraining Order held March 31, 2022, therein stating that documents filed relating to attorney/client privileged communications be filed under seal (NYSCEF No. 333, 31:3-5). Exhibit F (NYSCEF No. 335) contains communications relating to attorney-client privilege. • Memorandum of Law in Opposition to Zeynep Tekiner’s Motion to Intervene and for Preliminary Injunction with Temporary Restraining Order (“the Memorandum”), which discusses communications relating to attorney-client privilege (NYSCEF No. 336) ARGUMENT Pursuant to 22 N.Y.C.R.R. § 216.1(a), a court may “enter an order … sealing the court records, whether in whole or in part” upon a “written finding of good cause.” In determining -2- 5 of 9 FILED: NEW YORK COUNTY CLERK 04/11/2022 08:55 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 340 RECEIVED NYSCEF: 04/11/2022 whether there is good cause, the court should “weigh[] the interests of the public against the interests of the parties.” Mancheski v. Gabelli Grp. Capital Partners, 39 A.D.3d 499, 502 (2d Dep’t 2007). In finding good cause to seal documents, the Court “presupposes that public access to the documents at issue will likely result in harm to a compelling interest of the movant…, and that no alternative to sealing can adequately protect the threatened interest.” Id. at 502. Good cause “boils down to . . . the prudent exercise of the court’s discretion.” Id. (citing Coopersmith v. Gold, 156 Misc. 2d 594, 606 (1992). “[C]onfidentiality is, in certain circumstances, necessary in order to protect the litigants …. .” In re Twentieth Century Fox Film Corp., 190 A.D.2d 483, 486 (1st Dep’t 1993). “When the balance [of interests] favors confidentiality, confidentiality should be provided.” Id. at 486. In the present matter, Defendants have designated as confidential certain testimony and/or documents that are relevant to Defendant’s opposition to ZeynepTekiner’s Motion to Intervene, Temporary Restraining Order, and Preliminary Injunction. By designating these documents confidential, Defendants have asserted that the public does not have a discernible interest in non- public business and personal matters that may be reflected in the transcripts and exhibits. New York courts have held that “sensitive proprietary and business information” should be sealed where “the parties have an interest in protecting and there is no countervailing public interest that would furthered by their disclosure.” Cohen v. S.A.C. Cap. Advisors, LLC, 11 Misc. 3d 1054(A) (Sup. Ct. N.Y. Cnty. 2006); See In re Crain Commc 'ns, Inc., 521 N.Y.S.2d 244, 245 (1st Dep't 1987) (granting motion to seal and finding public interest in court proceedings “do[es] not preclude a court's exclusion of the public when such exclusion is necessary or appropriate to the protection of confidential trade information”). he same rule is applied to personal identifying information, MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 2013 WL 450030, at *9 (Sup. Ct. N.Y. Cnty. -3- 6 of 9 FILED: NEW YORK COUNTY CLERK 04/11/2022 08:55 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 340 RECEIVED NYSCEF: 04/11/2022 Jan. 3, 2013), and private and sensitive information, Fruhling v. Westreich, 2022 WL 314046, at *3 (Sup. Ct. N.Y. Cnty. Feb. 2, 2022). As referenced above, by designating them Confidential, Defendants have maintained that the designated testimony reflected in the documents produced in discovery, Archer Affirmation and attached exhibits, exhibits attached to the Berrin Affidavit, and the Memorandum itself that are being submitted in Opposition to Zeynep Tekiner’s Motion to Intervene contain sensitive privileged communications, proprietary and business information and/or personal financial information of parties and non-parties, and private and potentially identifying information. If the parties’ designations are accepted, good cause exists for sealing the Memorandum, Archer Affirmation, exhibits attached to the Archer Affirmation and Berrin Affirmation, and transcripts because the public would have no compelling interest in having access to such information. Moreover, the proposed redactions are narrowly tailored to reflect the matters designated as confidential pursuant to the Confidentiality Stipulation, which could well render any burden on the public’s interest minimal while protecting the asserted interests of the Defendants. See Resort Cayman Holdings, Ltd. v. Partnerships & Invs. LLC, 2020 WL 2510477, at *3 (Sup. Ct. N.Y. Cty. May 15, 2020) (Cohen, J.). CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court seal the documents and seal the exhibits submitted herein, at least until such time as the Court can rule on this sealing motion. -4- 7 of 9 FILED: NEW YORK COUNTY CLERK 04/11/2022 08:55 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 340 RECEIVED NYSCEF: 04/11/2022 Dated: April 11, 2022 Respectfully submitted, New York, New York /s/ Judith A. Archer Judith A. Archer NORTON ROSE FULBRIGHT LLP 1301 Avenue of the Americas New York, NY 10019 (212) 318-3342 judith.archer@nortonrosefulbright.com -5- 8 of 9 FILED: NEW YORK COUNTY CLERK 04/11/2022 08:55 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 340 RECEIVED NYSCEF: 04/11/2022 CERTIFICATION Counsel for Defendants hereby certifies that this document complies with the word count limit of Commercial Division Rule 17. This memorandum of law 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: April 11, 2022 By: /s/ Judith A. Archer New York, New York Judith A. Archer -6- 9 of 9