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FILED: NEW YORK COUNTY CLERK 06/24/2022 03:49 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 574 RECEIVED NYSCEF: 06/24/2022
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 #27
shareholder or a member of the Company
Defendants,
Plaintiff,
-against-
BREMEN HOUSE INC., GERMAN NEWS
COMPANY, INC., BERRIN TEKINER, GONCA
TEKINER, and BILLUR AKIPEK, in her capacity
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,
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.
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MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION
TO SEAL CERTAIN DOCUMENTS IN CONNECTION WITH
DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO
PLAINTIFF’S MOTION TO REMOVE BILLUR AKIPEK
AS TRUST COMMITTEE MEMBER AND TO APPOINT AN
INDEPENDENT TRUST COMMITTEE MEMBER
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
STATEMENT OF FACTS ................................................................................................................ 1
ARGUMENT .................................................................................................................................... 2
CONCLUSION ................................................................................................................................. 4
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TABLE OF AUTHORITIES
Cases Page(s)
Cohen v. S.A.C. Capital Advisors LLC,
2006 NYLJ LEXIS 754 (Sup. Ct. N.Y. Cty. Jan. 3, 2006) ......................................................... 3
Coopersmith v. Gold,
156 Misc. 2d 594 (1992) ............................................................................................................ 3
Fruhling v. Westreich,
2022 N.Y. Misc. LEXIS 451 (Sup. Ct. N.Y. Cty. Feb. 2, 2022) ................................................ 3
Mancheski v. Gabelli Grp. Capital Partners,
39 A.D.3d 499 (2d Dep’t 2007) ................................................................................................. 3
MBIA Ins. Corp. v. Countrywide Home Loans, Inc.,
2013 N.Y. Misc. LEXIS 367 (Sup. Ct. N.Y. Cty. Jan. 3, 2013)................................................. 3
Resort Cayman Holdings, Ltd. v. Partnerships & Invs. LLC,
2020 N.Y. Misc. LEXIS 2104 (Sup. Ct. N.Y. Cty. May 15, 2020)............................................ 4
In re Twentieth Century Fox Film Corp.,
190 A.D.2d 483 (N.Y. App. Div. 1st Dep’t 1993) ..................................................................... 3
Other Authorities
22 N.Y.C.R.R. § 216.1(a) ................................................................................................................. 2
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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 (the “Emergency Affirmation”), dated June 24, 2022, submit this
memorandum of law in support of their motion to seal all or part of certain documents and exhibits
annexed to the Affirmation of Judith A. Archer, dated June 23, 2022 (the “Archer Affirmation”);
to the Affidavit of Billur Akipek (the “Akipek Affidavit”), dated June 23, 2022; and to the
Affidavit of Berrin Tekiner, dated June 23, 2022 (the “Berrin Affidavit”), submitted in Opposition
to Yasemin Tekiner’s (“Yasemin”) Motion to Remove Billur Akipek as Trust Committee Member
and to Appoint an Independent Trust Committee Member (“Defendants’ Opposition”).
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 been 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 Defendants’ Opposition, Defendants seek to have sealed certain
documents filed on that Motion (see Emergency Affirmation, Ex. A), including
• Archer Exhibit A – Deposition of Billur Akipek, dated December 8, 2021 (NYSCEF No.
556);
• Akipek Exhibit A – Text message from Yasemin Tekiner to Billur Akipek, dated July 26,
2015 (NYSCEF No. 558);
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• Berrin Exhibit A – Sami Tekiner 1990 Trust (NYSCEF No. 560);
• Berrin Exhibit C – Promissory Note for Yasemin Trust, dated August 28, 2015 (NYSCEF
No. 562);
• Berrin Exhibit D – Promissory Note for Yasemin Trust, dated November 27, 2016
(NYSCEF No. 563);
• Berrin Exhibit E – Securities and Pledge Agreement for Yasemin Trust, dated November
27, 2016 (NYSCEF No. 564);
• Berrin Exhibit F – Promissory Note for Yasemin Trust, dated September 1, 2020 (NYSCEF
No. 565);
• Berrin Exhibit G – Second Promissory Note for Yasemin Trust, dated September 1, 2020
(NYSCEF No. 566); and
• Berrin Exhibit H – 2020 W2s of Berrin Tekiner, Yasemin Tekiner, Zeynep Tekiner, and
Billur Akipek (NYSCEF No. 567).
These documents are documents that have been designated by Defendants or text messages
that have been designated by Plaintiffs as confidential pursuant to the Confidentiality Stipulation
as these materials contain sensitive business information and/or personal potentially identifying
information. At least until such time as the Court can rule on this sealing motion, the testimony
extracts and the exhibits submitted on Defendants’ Opposition, which Defendants have designated
as confidential, should remain confidential.
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
whether there is good cause, the court should “weigh[] the interests of the public against the
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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. at 502 (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 (N.Y. App. Div. 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 documents that
are relevant to Defendants’ Opposition. 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 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. Capital Advisors LLC, 2006 NYLJ LEXIS 754, at *19 (Sup. Ct. N.Y. Cty. Jan. 3,
2006). The same rule is applied to personal identifying information, MBIA Ins. Corp. v.
Countrywide Home Loans, Inc., 2013 N.Y. Misc. LEXIS 367, at *9 (Sup. Ct. N.Y. Cty. Jan. 3,
2013), and private and sensitive information, Fruhling v. Westreich, 2022 N.Y. Misc. LEXIS 451,
at *3 (Sup. Ct. N.Y. Cty. Feb. 2, 2022).
As referenced above, by designating them Confidential, Defendants have maintained that
the designated information reflected in the exhibits and the text messages produced and designated
confidential by Plaintiff in discovery that are being submitted with the Defendants’ Opposition
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contain sensitive proprietary and business information and/or private and potentially identifying
information. If Defendants’ designations are accepted, good cause exists for sealing the exhibits
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 N.Y. Misc. LEXIS 2104, at *3 (Sup. Ct.
N.Y. Cty. May 15, 2020).
CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court seal the exhibits
submitted herein, at least until such time as the Court can rule on this sealing motion.
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Dated: New York, New York Respectfully submitted,
June 24, 2022
/s/ Judith A. Archer
Judith A. Archer
Victoria Corder
Sean M. Topping
NORTON ROSE FULBRIGHT LLP
1301 Avenue of the Americas
New York, NY 10019
(212) 318-3342
judith.archer@nortonrosefulbright.com
CERTIFICATION
Counsel for Defendants hereby certifies that this document complies with the word count
limit of Commercial Division Rule 17. This affirmation was prepared using Microsoft Word, and
the total number of words in this affirmation, exclusive of the caption, table of contents, table of
authorities, and signature block is less than 7,000 words.
Dated: June 24, 2022 By: /s/ Judith A. Archer
New York, New York Judith A. Archer
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FILED: NEW YORK COUNTY CLERK 06/24/2022 03:49 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 574 RECEIVED NYSCEF: 06/24/2022 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 #27 shareholder or a member of the Company Defendants, Plaintiff, -against- BREMEN HOUSE INC., GERMAN NEWS COMPANY, INC., BERRIN TEKINER, GONCA TEKINER, and BILLUR AKIPEK, in her capacity 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, 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. 1 of 9 FILED: NEW YORK COUNTY CLERK 06/24/2022 03:49 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 574 RECEIVED NYSCEF: 06/24/2022 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO SEAL CERTAIN DOCUMENTS IN CONNECTION WITH DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION TO REMOVE BILLUR AKIPEK AS TRUST COMMITTEE MEMBER AND TO APPOINT AN INDEPENDENT TRUST COMMITTEE MEMBER 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 2 2 of 9 FILED: NEW YORK COUNTY CLERK 06/24/2022 03:49 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 574 RECEIVED NYSCEF: 06/24/2022 TABLE OF CONTENTS STATEMENT OF FACTS ................................................................................................................ 1 ARGUMENT .................................................................................................................................... 2 CONCLUSION ................................................................................................................................. 4 3 of 9 FILED: NEW YORK COUNTY CLERK 06/24/2022 03:49 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 574 RECEIVED NYSCEF: 06/24/2022 TABLE OF AUTHORITIES Cases Page(s) Cohen v. S.A.C. Capital Advisors LLC, 2006 NYLJ LEXIS 754 (Sup. Ct. N.Y. Cty. Jan. 3, 2006) ......................................................... 3 Coopersmith v. Gold, 156 Misc. 2d 594 (1992) ............................................................................................................ 3 Fruhling v. Westreich, 2022 N.Y. Misc. LEXIS 451 (Sup. Ct. N.Y. Cty. Feb. 2, 2022) ................................................ 3 Mancheski v. Gabelli Grp. Capital Partners, 39 A.D.3d 499 (2d Dep’t 2007) ................................................................................................. 3 MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 2013 N.Y. Misc. LEXIS 367 (Sup. Ct. N.Y. Cty. Jan. 3, 2013)................................................. 3 Resort Cayman Holdings, Ltd. v. Partnerships & Invs. LLC, 2020 N.Y. Misc. LEXIS 2104 (Sup. Ct. N.Y. Cty. May 15, 2020)............................................ 4 In re Twentieth Century Fox Film Corp., 190 A.D.2d 483 (N.Y. App. Div. 1st Dep’t 1993) ..................................................................... 3 Other Authorities 22 N.Y.C.R.R. § 216.1(a) ................................................................................................................. 2 4 of 9 FILED: NEW YORK COUNTY CLERK 06/24/2022 03:49 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 574 RECEIVED NYSCEF: 06/24/2022 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 (the “Emergency Affirmation”), dated June 24, 2022, submit this memorandum of law in support of their motion to seal all or part of certain documents and exhibits annexed to the Affirmation of Judith A. Archer, dated June 23, 2022 (the “Archer Affirmation”); to the Affidavit of Billur Akipek (the “Akipek Affidavit”), dated June 23, 2022; and to the Affidavit of Berrin Tekiner, dated June 23, 2022 (the “Berrin Affidavit”), submitted in Opposition to Yasemin Tekiner’s (“Yasemin”) Motion to Remove Billur Akipek as Trust Committee Member and to Appoint an Independent Trust Committee Member (“Defendants’ Opposition”). 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 been 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 Defendants’ Opposition, Defendants seek to have sealed certain documents filed on that Motion (see Emergency Affirmation, Ex. A), including • Archer Exhibit A – Deposition of Billur Akipek, dated December 8, 2021 (NYSCEF No. 556); • Akipek Exhibit A – Text message from Yasemin Tekiner to Billur Akipek, dated July 26, 2015 (NYSCEF No. 558); 1 5 of 9 FILED: NEW YORK COUNTY CLERK 06/24/2022 03:49 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 574 RECEIVED NYSCEF: 06/24/2022 • Berrin Exhibit A – Sami Tekiner 1990 Trust (NYSCEF No. 560); • Berrin Exhibit C – Promissory Note for Yasemin Trust, dated August 28, 2015 (NYSCEF No. 562); • Berrin Exhibit D – Promissory Note for Yasemin Trust, dated November 27, 2016 (NYSCEF No. 563); • Berrin Exhibit E – Securities and Pledge Agreement for Yasemin Trust, dated November 27, 2016 (NYSCEF No. 564); • Berrin Exhibit F – Promissory Note for Yasemin Trust, dated September 1, 2020 (NYSCEF No. 565); • Berrin Exhibit G – Second Promissory Note for Yasemin Trust, dated September 1, 2020 (NYSCEF No. 566); and • Berrin Exhibit H – 2020 W2s of Berrin Tekiner, Yasemin Tekiner, Zeynep Tekiner, and Billur Akipek (NYSCEF No. 567). These documents are documents that have been designated by Defendants or text messages that have been designated by Plaintiffs as confidential pursuant to the Confidentiality Stipulation as these materials contain sensitive business information and/or personal potentially identifying information. At least until such time as the Court can rule on this sealing motion, the testimony extracts and the exhibits submitted on Defendants’ Opposition, which Defendants have designated as confidential, should remain confidential. 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 whether there is good cause, the court should “weigh[] the interests of the public against the 2 6 of 9 FILED: NEW YORK COUNTY CLERK 06/24/2022 03:49 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 574 RECEIVED NYSCEF: 06/24/2022 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. at 502 (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 (N.Y. App. Div. 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 documents that are relevant to Defendants’ Opposition. 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 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. Capital Advisors LLC, 2006 NYLJ LEXIS 754, at *19 (Sup. Ct. N.Y. Cty. Jan. 3, 2006). The same rule is applied to personal identifying information, MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 2013 N.Y. Misc. LEXIS 367, at *9 (Sup. Ct. N.Y. Cty. Jan. 3, 2013), and private and sensitive information, Fruhling v. Westreich, 2022 N.Y. Misc. LEXIS 451, at *3 (Sup. Ct. N.Y. Cty. Feb. 2, 2022). As referenced above, by designating them Confidential, Defendants have maintained that the designated information reflected in the exhibits and the text messages produced and designated confidential by Plaintiff in discovery that are being submitted with the Defendants’ Opposition 3 7 of 9 FILED: NEW YORK COUNTY CLERK 06/24/2022 03:49 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 574 RECEIVED NYSCEF: 06/24/2022 contain sensitive proprietary and business information and/or private and potentially identifying information. If Defendants’ designations are accepted, good cause exists for sealing the exhibits 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 N.Y. Misc. LEXIS 2104, at *3 (Sup. Ct. N.Y. Cty. May 15, 2020). CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court seal the exhibits submitted herein, at least until such time as the Court can rule on this sealing motion. 4 8 of 9 FILED: NEW YORK COUNTY CLERK 06/24/2022 03:49 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 574 RECEIVED NYSCEF: 06/24/2022 Dated: New York, New York Respectfully submitted, June 24, 2022 /s/ Judith A. Archer Judith A. Archer Victoria Corder Sean M. Topping NORTON ROSE FULBRIGHT LLP 1301 Avenue of the Americas New York, NY 10019 (212) 318-3342 judith.archer@nortonrosefulbright.com CERTIFICATION Counsel for Defendants hereby certifies that this document complies with the word count limit of Commercial Division Rule 17. This affirmation was prepared using Microsoft Word, and the total number of words in this affirmation, exclusive of the caption, table of contents, table of authorities, and signature block is less than 7,000 words. Dated: June 24, 2022 By: /s/ Judith A. Archer New York, New York Judith A. Archer 5 9 of 9