Preview
FILED: NEW YORK COUNTY CLERK 06/24/2022 07:39 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 559 RECEIVED NYSCEF: 06/24/2022
Judith A. Archer
Victoria V. Corder
Sean M. Topping
NORTON ROSE FULBRIGHT US LLP
1301 Avenue of the Americas
New York, New York 10019-6022
Tel.: (212) 318-3000
Fax: (212) 318-3400
judith.archer@nortonrosefulbright.com
victoria.v.corder@nortonrosefulbright.com
sean.topping@nortonrosefulbright.com
Attorneys for Defendants
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 : 657193/2020
2011 Descendants Trust and derivatively as
a holder of equitable interests in a
Motion Sequence #24
shareholder or a member of the Company
Defendants,
AFFIDAVIT OF BERRIN TEKINER
IN OPPOSITION TO
Plaintiff,
PLAINTIFF’S MOTION TO
REMOVE BILLUR
-against-
AKIPEK AS TRUST
COMMITTEE MEMBER AND
BREMEN HOUSE INC., GERMAN NEWS
COMPANY, INC., BERRIN TEKINER, GONCA TO APPOINT AN
INDEPENDENT TRUST
TEKINER, and BILLUR AKIPEK, in her capacity
COMMITTEE MEMBER
as a Trustee of The Yasemin Tekiner 2011
Descendants Trust,
Defendants.
ZEYNEP TEKINER,
in her individual capacity, as a beneficiary
and a Trustee of The Zeynep Tekiner 2011
Descendants Trust and derivatively as a
holder of equitable interests in a
shareholder or a member of the Company
Defendants,
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Intervenor-Plaintiff,
-against-
BREMEN HOUSE INC., GERMAN NEWS
COMPANY, INC., BERRIN TEKINER, GONCA
TEKINER, and BILLUR AKIPEK, in her capacity
as a Trustee of The Zeynep Tekiner 2011
Descendants Trust,
Defendants.
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
BERRIN TEKINER, being duly sworn, deposes and says:
1. I am the Chairperson of Bremen House, Inc. (“Bremen House”) and German News
Company, Inc. (“German News,” and collectively the “Companies”). I submit this affidavit in
opposition to Plaintiff’s Motion to Remove Billur Akipek as Trust Committee Member and to
Appoint an Independent Trust Committee Member (the “Motion”). This affidavit is based upon
my personal knowledge.
2. I previously submitted to this Court: (1) an affidavit dated January 15, 2021, in
opposition to Plaintiff’s Motion for a Preliminary Injunction; (2) an affidavit dated March 24,
2022, in opposition to Yasemin’s Motion for Leave to Renew; (3) an affidavit dated April 8, 2022,
in opposition to Zeynep’s Motion to Intervene and for Preliminary Injunction; and (4) an affidavit
dated June 15, 2022, in opposition to Yasemin’s Motion to Compel Production. (See NYSCEF
Nos. 22, 225, 313, 493). These affidavits are incorporated by reference herein. Capitalized terms
used herein and not otherwise defined shall have the same meaning as used in my prior affidavits.
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Formation of the Trusts
3. In the late 1980’s, long before I created the trusts, I began working at the
Companies. Prior to 2011, I owned the entire Tekiner family of companies. My husband Sami
created the Companies decades prior and left the Companies in trust for me, dated February 20,
1990 (the “1990 Trust”), to manage and benefit from. A true and correct copy of the 1990 Trust
is attached hereto as Exhibit A. It left me a General Power of Appointment, giving me the right
to transfer all of the shares of the company to anyone I choose when I pass away, or alternatively
would pass on to my daughters if I did not give it to someone else.
4. In 2011, I conferred with Philip Michaels of Norton Rose Fulbright on estate
planning issues. Between 2011 and 2016, I reorganized the family business in a way that
transferred ownership of much of the business into three trusts for tax and estate planning
purposes—specifically, trusts for my three daughters. A true and correct copy of the trust for
Yasemin, dated August 1, 2011, is attached hereto as Exhibit B.
5. I either sold or gifted the Trusts identical ownership interests in the Companies,
including: selling a one-sixth (1/6) interest in Bremen House in 2011; gifting 1/3 ownership of
German News in 2011; selling another one-sixth (1/6) interest in Bremen House in 2015; and
selling a one-sixth (1/6) interest in 254 W. 35th St. LLC in 2016. I intended for all of my
daughters to be treated equally.
6. As a result of these sales and, I understood, as a necessary condition for receiving
tax savings from the arrangement, each Trust purchased the shares with promissory notes payable
to me, which are secured by each trust’s ownership interest in the Companies. Each trust currently
has outstanding promissory notes totaling $11 million payable to me. The outstanding promissory
notes for Yasemin’s Trust are attached hereto as Exhibits C, D, E, F, and G. The sole assets of
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each trust are therefore interests in the Companies and W. 35th St. LLC, which are pledged in
part as security for the notes. After the reorganization, I remained Chairperson of the Board of
Directors of the Companies.
7. The only assets in the trust are the shares referenced above. The Trusts have no
cash or any liquid assets and no distributions have been made since they were opened. There was
no intent when the Trusts were created that there would be distributions. Any Distribution would
require a vote from the Bremen House board as the Companies would need to authorize a
distribution, under its bylaws, to the shares held in the Trusts for the Trusts to have liquid assets
to make a distribution to my daughters. Also, because of the outstanding promissory notes, any
dividend or distribution to the Trusts would first go to pay down the promissory notes.
8. The Trusts hold no property individually, and the only regular activities they are
involved in are the receipt of interest payments the Companies make, as required, on the
promissory notes. Upon receipt of these interest payments, I have historically reinvested the
majority of them back into the Companies although I am not required to do so. There have been
no dividends or other means to distribute funds to Gonca, Zeynep, or Yasemin. Monies that come
into the Companies are used for maintenance, salaries, taxes, new properties and other typical
business expenses.
9. As part of the process of setting up the trusts, I selected Billur Akipek to serve as
a trust committee member on each of the Trusts so as to ensure that Gonca, Zeynep, and Yasemin
were treated equally. My husband and I had known Billur since 1979, and she was very close to
Gonca, Zeynep, and Yasemin before this litigation started. They were very friendly, as Billur
knew them from their birth—I was pregnant with Yasemin when Billur really came into our lives,
but I had been friends with Billur’s sister since we were young and in Turkey. Billur helped my
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daughters grow up, and they called her Auntie Billur, or in Turkish “Billur-teyze,” a sign of
affection just as it is in English. She would talk about art and movies with Yasemin, paintings
with Zeynep, and she had worked quite well with Gonca in our offices for decades at that point.
10. I also trusted Billur without hesitation to act in each of Gonca, Zeynep and
Yasemin’s best interests because she knew them practically from their birth. I had known Billur
for so many years at this point, and had seen the care she had given to my daughters like they
were her own nieces, which went well beyond her merely being an employee of the Companies.
She has always tried to do right by us as a family, and by the Companies in her hard and dedicated
work.
11. Finally Billur was selected because she has no financial interest in the Trusts and
therefore could serve as an independent member of the Trust Committees.
12. Billur has acted dutifully as a member of the Trust Committees for over a decade
without compensation, and any "services" she provides have remained constant. Because the
trusts do not hold any liquid assets, the trusts are pretty much in the same form and have the same
status as when they were created—including the Yasemin Trust. The work that Billur does for
the Trusts is generally the same as the work she does for the Companies. The work she does day
in and day out, like renting apartments and taking care of maintenance, talking about new leases
or terminating leases, and if necessary talking about selling or buying properties, is all in
furtherance of running the Companies well, which in turn makes the shares of the Companies,
held in the Trusts, have more value. I have never directed or threatened Billur in any decisions
for the Trust Committee and would never fire her if she did not do what I wanted.
13. None of my three daughters had an issue with the Trust Agreements—they all
strongly supported my creating the Trusts because of the tax benefits they would receive. In fact,
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they wanted me to sign as soon as possible thinking I was hesitant or reluctant (which was not
true). They signed the paperwork and raised no issues about the Trust structure from 2011 until
Yasemin filed her lawsuit against the Companies. Nobody had ever asked for a distribution before
Yasemin filed her lawsuit.
14. Currently, Yasemin is the Beneficiary, Billur is the sole member of the Trust
Committee, and Bryn Mawr is the corporate Trustee of the Yasemin Trust. The Trust Agreement
names me as the sole member of the Protector Committee, with the sole and absolute right to
appoint or remove Trust Committee members.
15. Gonca and Zeynep’s trusts are identical, with the same corporate trustee (Bryn
Mawr) and law firm (Norton Rose Fulbright US LLP) to handle the affairs of all three Trusts.
Yasemin’s Removal
16. Under my power as the sole member of the Protector Committee, I have previously
removed Yasemin from the Trust Committee of the Yasemin Trust twice. This happened on
September 22, 2017 (and then reinstated her on January 17, 2019) and December 10, 2020.
Other Company Assets and Salaries
17. In addition to the Trusts, I have always tried to treat Gonca, Zeynep, and Yasemin
equally, including with the assets of the Companies. For example, when Bremen House
purchased houses for Gonca and Zeynep’s use in 2017, I intentionally sought out homes of similar
value to Yasemin’s house in Bel Air, including the combination of two homes—a Bronxville
home and a pied-a-terre in Manhattan for Zeynep, and a similar value home for Gonca. They get
roughly equal salaries, except that Gonca receives more for actually working full-time and
(physically) in the office. But I have also paid for many things for Yasemin and Zeynep that I
did not pay for Gonca. I paid for Zeynep and Yasemin’s tuition to go to college and graduate
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school. I gave Zeynep her car and paid for her studio and her children’s dentist. Among many
other things, for Yasemin, before the lawsuit, she wanted fertility treatments so I gave her
$30,000.
18. True and correct copies of excerpts from company payroll records, including 2020
W-2 filings for myself (Berrin Tekiner), Yasemin Tekiner, Zeynep Tekiner, and Billur Akipek
are attached hereto as Exhibit H.
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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 affidavit was prepared using Microsoft Word, and
the total number of words in this affidavit, exclusive of the caption, table of contents, table of
authorities, and signature block is less than 7,000 words.
Dated: June 23, 2022 By: /s/ Judith A. Archer
New York, New York Judith A. Archer
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Preview
FILED: NEW YORK COUNTY CLERK 06/24/2022 07:39 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 559 RECEIVED NYSCEF: 06/24/2022 Judith A. Archer Victoria V. Corder Sean M. Topping NORTON ROSE FULBRIGHT US LLP 1301 Avenue of the Americas New York, New York 10019-6022 Tel.: (212) 318-3000 Fax: (212) 318-3400 judith.archer@nortonrosefulbright.com victoria.v.corder@nortonrosefulbright.com sean.topping@nortonrosefulbright.com Attorneys for Defendants 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 : 657193/2020 2011 Descendants Trust and derivatively as a holder of equitable interests in a Motion Sequence #24 shareholder or a member of the Company Defendants, AFFIDAVIT OF BERRIN TEKINER IN OPPOSITION TO Plaintiff, PLAINTIFF’S MOTION TO REMOVE BILLUR -against- AKIPEK AS TRUST COMMITTEE MEMBER AND BREMEN HOUSE INC., GERMAN NEWS COMPANY, INC., BERRIN TEKINER, GONCA TO APPOINT AN INDEPENDENT TRUST TEKINER, and BILLUR AKIPEK, in her capacity COMMITTEE MEMBER as a Trustee of The Yasemin Tekiner 2011 Descendants Trust, Defendants. ZEYNEP TEKINER, in her individual capacity, as a beneficiary and a Trustee of The Zeynep Tekiner 2011 Descendants Trust and derivatively as a holder of equitable interests in a shareholder or a member of the Company Defendants, 1 of 9 FILED: NEW YORK COUNTY CLERK 06/24/2022 07:39 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 559 RECEIVED NYSCEF: 06/24/2022 Intervenor-Plaintiff, -against- BREMEN HOUSE INC., GERMAN NEWS COMPANY, INC., BERRIN TEKINER, GONCA TEKINER, and BILLUR AKIPEK, in her capacity as a Trustee of The Zeynep Tekiner 2011 Descendants Trust, Defendants. STATE OF NEW YORK ) ) ss: COUNTY OF NEW YORK ) BERRIN TEKINER, being duly sworn, deposes and says: 1. I am the Chairperson of Bremen House, Inc. (“Bremen House”) and German News Company, Inc. (“German News,” and collectively the “Companies”). I submit this affidavit in opposition to Plaintiff’s Motion to Remove Billur Akipek as Trust Committee Member and to Appoint an Independent Trust Committee Member (the “Motion”). This affidavit is based upon my personal knowledge. 2. I previously submitted to this Court: (1) an affidavit dated January 15, 2021, in opposition to Plaintiff’s Motion for a Preliminary Injunction; (2) an affidavit dated March 24, 2022, in opposition to Yasemin’s Motion for Leave to Renew; (3) an affidavit dated April 8, 2022, in opposition to Zeynep’s Motion to Intervene and for Preliminary Injunction; and (4) an affidavit dated June 15, 2022, in opposition to Yasemin’s Motion to Compel Production. (See NYSCEF Nos. 22, 225, 313, 493). These affidavits are incorporated by reference herein. Capitalized terms used herein and not otherwise defined shall have the same meaning as used in my prior affidavits. -2- 2 of 9 FILED: NEW YORK COUNTY CLERK 06/24/2022 07:39 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 559 RECEIVED NYSCEF: 06/24/2022 Formation of the Trusts 3. In the late 1980’s, long before I created the trusts, I began working at the Companies. Prior to 2011, I owned the entire Tekiner family of companies. My husband Sami created the Companies decades prior and left the Companies in trust for me, dated February 20, 1990 (the “1990 Trust”), to manage and benefit from. A true and correct copy of the 1990 Trust is attached hereto as Exhibit A. It left me a General Power of Appointment, giving me the right to transfer all of the shares of the company to anyone I choose when I pass away, or alternatively would pass on to my daughters if I did not give it to someone else. 4. In 2011, I conferred with Philip Michaels of Norton Rose Fulbright on estate planning issues. Between 2011 and 2016, I reorganized the family business in a way that transferred ownership of much of the business into three trusts for tax and estate planning purposes—specifically, trusts for my three daughters. A true and correct copy of the trust for Yasemin, dated August 1, 2011, is attached hereto as Exhibit B. 5. I either sold or gifted the Trusts identical ownership interests in the Companies, including: selling a one-sixth (1/6) interest in Bremen House in 2011; gifting 1/3 ownership of German News in 2011; selling another one-sixth (1/6) interest in Bremen House in 2015; and selling a one-sixth (1/6) interest in 254 W. 35th St. LLC in 2016. I intended for all of my daughters to be treated equally. 6. As a result of these sales and, I understood, as a necessary condition for receiving tax savings from the arrangement, each Trust purchased the shares with promissory notes payable to me, which are secured by each trust’s ownership interest in the Companies. Each trust currently has outstanding promissory notes totaling $11 million payable to me. The outstanding promissory notes for Yasemin’s Trust are attached hereto as Exhibits C, D, E, F, and G. The sole assets of -3- 3 of 9 FILED: NEW YORK COUNTY CLERK 06/24/2022 07:39 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 559 RECEIVED NYSCEF: 06/24/2022 each trust are therefore interests in the Companies and W. 35th St. LLC, which are pledged in part as security for the notes. After the reorganization, I remained Chairperson of the Board of Directors of the Companies. 7. The only assets in the trust are the shares referenced above. The Trusts have no cash or any liquid assets and no distributions have been made since they were opened. There was no intent when the Trusts were created that there would be distributions. Any Distribution would require a vote from the Bremen House board as the Companies would need to authorize a distribution, under its bylaws, to the shares held in the Trusts for the Trusts to have liquid assets to make a distribution to my daughters. Also, because of the outstanding promissory notes, any dividend or distribution to the Trusts would first go to pay down the promissory notes. 8. The Trusts hold no property individually, and the only regular activities they are involved in are the receipt of interest payments the Companies make, as required, on the promissory notes. Upon receipt of these interest payments, I have historically reinvested the majority of them back into the Companies although I am not required to do so. There have been no dividends or other means to distribute funds to Gonca, Zeynep, or Yasemin. Monies that come into the Companies are used for maintenance, salaries, taxes, new properties and other typical business expenses. 9. As part of the process of setting up the trusts, I selected Billur Akipek to serve as a trust committee member on each of the Trusts so as to ensure that Gonca, Zeynep, and Yasemin were treated equally. My husband and I had known Billur since 1979, and she was very close to Gonca, Zeynep, and Yasemin before this litigation started. They were very friendly, as Billur knew them from their birth—I was pregnant with Yasemin when Billur really came into our lives, but I had been friends with Billur’s sister since we were young and in Turkey. Billur helped my -4- 4 of 9 FILED: NEW YORK COUNTY CLERK 06/24/2022 07:39 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 559 RECEIVED NYSCEF: 06/24/2022 daughters grow up, and they called her Auntie Billur, or in Turkish “Billur-teyze,” a sign of affection just as it is in English. She would talk about art and movies with Yasemin, paintings with Zeynep, and she had worked quite well with Gonca in our offices for decades at that point. 10. I also trusted Billur without hesitation to act in each of Gonca, Zeynep and Yasemin’s best interests because she knew them practically from their birth. I had known Billur for so many years at this point, and had seen the care she had given to my daughters like they were her own nieces, which went well beyond her merely being an employee of the Companies. She has always tried to do right by us as a family, and by the Companies in her hard and dedicated work. 11. Finally Billur was selected because she has no financial interest in the Trusts and therefore could serve as an independent member of the Trust Committees. 12. Billur has acted dutifully as a member of the Trust Committees for over a decade without compensation, and any "services" she provides have remained constant. Because the trusts do not hold any liquid assets, the trusts are pretty much in the same form and have the same status as when they were created—including the Yasemin Trust. The work that Billur does for the Trusts is generally the same as the work she does for the Companies. The work she does day in and day out, like renting apartments and taking care of maintenance, talking about new leases or terminating leases, and if necessary talking about selling or buying properties, is all in furtherance of running the Companies well, which in turn makes the shares of the Companies, held in the Trusts, have more value. I have never directed or threatened Billur in any decisions for the Trust Committee and would never fire her if she did not do what I wanted. 13. None of my three daughters had an issue with the Trust Agreements—they all strongly supported my creating the Trusts because of the tax benefits they would receive. In fact, -5- 5 of 9 FILED: NEW YORK COUNTY CLERK 06/24/2022 07:39 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 559 RECEIVED NYSCEF: 06/24/2022 they wanted me to sign as soon as possible thinking I was hesitant or reluctant (which was not true). They signed the paperwork and raised no issues about the Trust structure from 2011 until Yasemin filed her lawsuit against the Companies. Nobody had ever asked for a distribution before Yasemin filed her lawsuit. 14. Currently, Yasemin is the Beneficiary, Billur is the sole member of the Trust Committee, and Bryn Mawr is the corporate Trustee of the Yasemin Trust. The Trust Agreement names me as the sole member of the Protector Committee, with the sole and absolute right to appoint or remove Trust Committee members. 15. Gonca and Zeynep’s trusts are identical, with the same corporate trustee (Bryn Mawr) and law firm (Norton Rose Fulbright US LLP) to handle the affairs of all three Trusts. Yasemin’s Removal 16. Under my power as the sole member of the Protector Committee, I have previously removed Yasemin from the Trust Committee of the Yasemin Trust twice. This happened on September 22, 2017 (and then reinstated her on January 17, 2019) and December 10, 2020. Other Company Assets and Salaries 17. In addition to the Trusts, I have always tried to treat Gonca, Zeynep, and Yasemin equally, including with the assets of the Companies. For example, when Bremen House purchased houses for Gonca and Zeynep’s use in 2017, I intentionally sought out homes of similar value to Yasemin’s house in Bel Air, including the combination of two homes—a Bronxville home and a pied-a-terre in Manhattan for Zeynep, and a similar value home for Gonca. They get roughly equal salaries, except that Gonca receives more for actually working full-time and (physically) in the office. But I have also paid for many things for Yasemin and Zeynep that I did not pay for Gonca. I paid for Zeynep and Yasemin’s tuition to go to college and graduate -6- 6 of 9 FILED: NEW YORK COUNTY CLERK 06/24/2022 07:39 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 559 RECEIVED NYSCEF: 06/24/2022 school. I gave Zeynep her car and paid for her studio and her children’s dentist. Among many other things, for Yasemin, before the lawsuit, she wanted fertility treatments so I gave her $30,000. 18. True and correct copies of excerpts from company payroll records, including 2020 W-2 filings for myself (Berrin Tekiner), Yasemin Tekiner, Zeynep Tekiner, and Billur Akipek are attached hereto as Exhibit H. -7- 7 of 9 FILED: NEW YORK COUNTY CLERK 06/24/2022 07:39 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 559 RECEIVED NYSCEF: 06/24/2022 8 of 9 FILED: NEW YORK COUNTY CLERK 06/24/2022 07:39 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 559 RECEIVED NYSCEF: 06/24/2022 CERTIFICATION Counsel for Defendants hereby certifies that this document complies with the word count limit of Commercial Division Rule 17. This affidavit was prepared using Microsoft Word, and the total number of words in this affidavit, exclusive of the caption, table of contents, table of authorities, and signature block is less than 7,000 words. Dated: June 23, 2022 By: /s/ Judith A. Archer New York, New York Judith A. Archer 9 of 9