Preview
FILED: NEW YORK COUNTY CLERK 06/29/2022 09:01 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 06/29/2022
SUPREME COURT OF THE STATE OF NEW YORK
COMMERCIAL DIVISION, NEW YORK COUNTY
YASEMIN TEKINER,
in her individual capacity, as a beneficiary
and a Trustee of The Yasemin Tekiner
2011 Descendants Trust and derivatively as Index No. 657193/2020
a holder of equitable interests in a
shareholder or a member of the Company Commercial Division Part 3
Defendants,
Hon. Joel M. Cohen
Plaintiff,
Motion Seq. No. 24
-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.
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., 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.
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PLAINTIFF YASEMIN TEKINER’S REPLY MEMORANDUM OF LAW
IN FURTHER SUPPORT OF HER MOTION TO REMOVE BILLUR AKIPEK
AS TRUST COMMITTEE MEMBER AND TO APPOINT
AN INDEPENDENT TRUST COMMITTEE MEMBER
Stephen P. Younger Sanjay P. Ibrahim
FOLEY HOAG LLP Scott W. Parker
1301 Avenue of the Americas, 25th Floor Daniel A. Schleifstein
New York, New York 10019 PARKER IBRAHIM & BERG LLP
(212) 812-0365 5 Penn Plaza, Suite 2371
spyounger@foleyhoag.com New York, New York 10001
Telephone: (212) 596-7037
sanjay.ibrahim@piblaw.com
scott.parker@piblaw.com
daniel.schleifstein@piblaw.com
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................................................................................... iii
PRELIMINARY STATEMENT ..................................................................................................1
I. YASEMIN’S MOTION IS NOT PREMATURE, NOR DOES IT SEEK A
PRELIMINARY OR MANDATORY INJUNCTION ..............................................2
II. BILLUR ACTED IN HER OWN (AND BERRIN’S AND GONCA’S) SELF-
INTEREST, AND REFUSED TO CONSIDER YASEMIN OR HER
INTERESTS ...............................................................................................................2
III. WILLFUL MISCONDUCT IS NOT REQUIRED; BERRIN DOES NOT HAVE
“SOLE AND ABSOLUTE DISCRETION” TO REMOVE BILLUR .......................4
IV. BILLUR SHOULD BE REMOVED BECAUSE SHE IS INHERENTLY
CONFLICTED AND HAS BREACHED HER FIDUCIARY DUTIES ...................6
V. BILLUR’S REMOVAL IS PROPER DUE TO THE SUBSTANTIAL
CHANGE IN CIRCUMSTANCES CREATED BY THIS LAWSUIT .....................8
VI. REMOVAL IS PROPER DUE TO HOSTILITY BETWEEN BILLUR AND
YASEMIN ..................................................................................................................9
VII. THERE IS SUFFICIENT LEGAL BASIS FOR THIS COURT TO APPOINT
AN INDEPENDENT MEMBER OF THE TRUST COMMITTEE .......................11
CONCLUSION ...........................................................................................................................12
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TABLE OF AUTHORITIES
Cases
du Pont v Wilmington Tr. Co.,
2017 Del. Ch. LEXIS 768 [Ch Oct. 6, 2017, No. 12836-VCS] ................................................ 9, 11
Gans v MDR Liquidating Corp.,
1991 Del. Ch. LEXIS 110, 1991 WL 114514 [Ch June 25, 1991, Civil Action No. 9630] .. 6, 7, 8,
11
Hurd v. Hurd,
No. 4675-MG, 2020 Del. Ch. LEXIS 40 [Del. Ch. Jan. 31, 2020]............................................... 12
In re Jeremy Paradise Dynasty Tr.,
No. 2021-0354-KSJM, 2021 Del. Ch. LEXIS 278 [Del. Ch. Nov. 29, 2021] ............................... 6
In re Tr. Estate of Catell,
28 Del Ch 115, 38 A2d 466, 470 [1944]..................................................................................... 6, 7
Lynch v. Barba,
No. 12083-MG, 2018 Del. Ch. LEXIS 109 [Del. Ch. Apr. 3, 2018] .............................................. 2
Matter of Guardianship of Brown,
436 N.E.2d 877 [Ind. App. 1982] ................................................................................................. 11
McNeil v Bennett,
792 A2d 190 [Del Ch 2001]............................................................................................................ 7
McNeil v. McNeil,
798 A2d 503, 513 [Del 2002] ....................................................................................................... 11
Mennen v. Wilmington Tr. Co.,
2015 WL 1914599 [Del. Ch. Apr. 24, 2015] .................................................................................. 8
Paradee v Paradee,
No. 4988-VCL, 2010 Del. Ch. LEXIS 212 [Ch Oct. 5, 2010]) ...................................................... 7
Smith v Biggs Boiler Works Co.,
91 A2d 193 [Del. Ch. 1952].......................................................................................................... 11
Tigani v. Tigani,
No. 2017-0786-KSJM, 2021 Del. Ch. LEXIS 60 [Del. Ch. Mar. 30, 2021] ................................ 10
United Bhd. of Carpenters Pension Plan v Fellner,
No. 9475-VCN, 2015 Del Ch LEXIS 53 [Ch Feb. 26, 2015] ................................................. 6, 7, 8
iii
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Statutes
12 Del. C. § 3303(a)................................................................................................................ 4, 5, 8
12 Del. C. § 3327 ........................................................................................................................ 2, 5
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Plaintiff Yasemin Tekiner (“Yasemin”) respectfully submits this reply memorandum in
further support of her Motion to Remove Billur Akipek (“Billur”) as a Member of the Trust
Committee for the Yasemin Tekiner 2011 Descendants Trust (the “Trust”) (the “Motion”).
PRELIMINARY STATEMENT
Defendants’ opposition is premised entirely on wildly inaccurate readings of both
Yasemin’s Motion and the Trust Agreement. Despite what Defendants would have this Court
believe, and as the Trust Agreement confirms, Berrin does not have “sole and absolutely
discretion” to remove Trust Committee members. Nor does the Trust Agreement provide that
removal of a fiduciary is only appropriate upon a showing of “willful misconduct.” Rather,
Delaware Law applies, and for many reasons, makes plain that Billur’s removal is warranted.
Further, Defendants miss the mark by detailing Billur’s “long-standing relationship” with
Yasemin, and alleging that Billur served the Trust for 11 years without incident. As this Court has
recognized, an arrangement that might have worked in the past no longer works today. 1 Rather,
an unavoidable conflict now exists as a result of, inter alia: 1) this litigation (which directly
implicates Billur and the services she provides); 2) Billur’s abandonment of her duties to Yasemin
in response to this litigation, in favor of her own (and Berrin’s) self-interest; and 3) Yasmin’s
interests becoming materially adverse to Billur, Berrin (to whom Billur is beholden and from
whom she receives her sole source of income), and Gonca (to whom Billur is also a fiduciary). As
a result, it is impossible for Billur to loyally satisfy her fiduciary duties to Yasemin.
Accordingly, Billur should be removed as the sole Trust Committee member for the Trust.
1
See NYSCEF Doc. 426 at 33:1-5 (“I’m not saying there is anything wrong about when it started”
but “there comes a time…when, if conflicts arise, you can’t do it anymore.”); id. at 33:6-9 (“[I]f
you’re a Trustee for three people who are no longer in any way rowing in the same direction, it’s
unclear to me how one can serve those three masters.”)
1
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I. YASEMIN’S MOTION IS NOT PREMATURE, NOR DOES IT SEEK A
2
PRELIMINARY OR MANDATORY INJUNCTION
Yasemin is not seeking “ultimate relief” on her Complaint, nor is she seeking an injunction.
(See NYSCEF Doc. 569 at 10.) Rather, Yasemin is simply availing herself of the remedies
established by Delaware Law, which permits the removal of Billur under these circumstances.
While Defendants allege that removal is only appropriate after a trial, they fail to identify
any provision in 12 Del. C. § 3327 – or any other law – to support this contention. And while this
Court is certainly free to hold an evidentiary hearing, there can be no genuine issue that Billur is
inherently conflicted and that removal is proper. (See, e.g., Lynch v. Barba, No. 12083-MG, 2018
Del. Ch. LEXIS 109 [Del. Ch. Apr. 3, 2018] (where there is no genuine issue of material fact with
respect to the effort to remove a trustee, judgment as a matter of law is appropriate).) Indeed, this
Court has reached this conclusion before and should do so again now.
Even if the Court were to find that Yasemin was not entitled to the relief requested in her
Complaint, this would have no impact on the fact that Billur is presently inherently conflicted,
self-interested, and hostile to Yasemin such that she cannot continue under Delaware law as the
independent (and only) member of the Trust Committee. Thus, there is simply no basis to claim
that Yasemin is somehow seeking “to circumvent this litigation” with her Motion.
Accordingly, this Court should consider Yasemin’s Motion and, for the reasons below,
remove Billur from her position as the independent member of Yasemin’s Trust Committee.
II. BILLUR HAS ACTED IN HER OWN (AND BERRIN’S AND GONCA’S) SELF-
INTEREST, AND REFUSED TO CONSIDER YASEMIN OR HER INTERESTS
For the first time – more than a year into the case, and only in response to this motion –
Billur claims that when Yasemin asked her to make a distribution, she did in fact consider Yasemin
2
Defendants do not dispute that this Court has jurisdiction to hear this Motion and remove Billur
under the Trust Agreement. (See NYSCEF Doc. 422 at 9, fn 2.)
2
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and her needs, but simply “d[id] not see” why Yasemin would need it after she had been fired, cut
off, and threatened with eviction. (NYSCEF Doc. 557.) This Court should reject Defendants’
revisionist history, which is contradicted by Billur’s sworn deposition testimony.
Billur’s testimony is clear: Billur did not “consult” with anyone about Yasemin’s request,
she did not determine what her legal obligations and duties to Yasemin were, and indeed, she did
not even “consider” Yasemin’s request or needs: “Frankly…I did not even consider that it would
be appropriate.” (See NYSCEF Doc. 424 at 200:7-25; 198:11-25 (“I did not even explore the
option” of whether it even could be done).)
Now, however, Billur comes up with a new theory, not offered at her deposition: i.e., that
Yasemin did not merit a distribution. (NYSCEF Doc. 557 at ¶ 19.) This is especially disingenuous
given that Billur claims she decided that Yasemin did not need a distribution because Yasemin
“receive[s]” a Company salary. (Id.) At the time of Yasemin’s request, however, she was not
receiving a salary – as Billur knew, having been involved in her firing. That Billur “considered”
that Yasemin “live[s]” in a Company-owned property is similarly odd, given that Billur is seeking
to evict Yasemin. (Id.) Finally, Billur claims to have relied on the fact that the Company turned
over Yasemin’s retirement funds; those funds, of course, are not only subject to hefty withdrawal
penalties, but were supposed to finance Yasemin’s retirement – not support her now.
The fact is, Billur did not consider Yasemin’s needs because she did not want to fund this
litigation – which is why Yasemin was fired in the first place. (See, e.g., id. at 196:2-6 (“[W]e
were in litigation so I didn’t respond.”); id. at 196:10-13 (“I did not do the requested distribution
and I did not respond because…she was already suing me.”); NYSCEF Doc. 217, at ¶ 23) ( “Billur
said something to the effect of ‘you can’t give someone a loaded gun to use against you’ – meaning
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that Yasemin should not receive a salary she could use to finance her lawsuit.”).) Defendants
cannot avoid this by claiming in a self-serving affidavit that Billur’s sworn testimony was not true.
In sum, the evidence shows that, instead of protecting Yasemin’s interests, Billur did the
opposite: she worked to get Yasemin fired, terminate her salary, evict her from her home, deny her
any benefit of her Trust’s one-third interest in the Company, and deprive her of the means
necessary to pursue this action, which seeks to hold Billur, Berrin, and Gonca responsible for
looting the Company for their benefit. Billur was (and is) thinking only about herself, Berrin, and
Gonca – and she prioritized those needs over Yasemin’s interests. As the sole member of
Yasemin’s Trust Committee, Billur owes Yasemin far more than that.
III. WILLFUL MISCONDUCT IS NOT REQUIRED AND BERRIN DOES NOT
HAVE “SOLE AND ABSOLUTE DISCRETION” TO REMOVE BILLUR
Faced with the fact that Billur is both inherently conflicted and hostile towards Yasemin,
Defendants first try to change the removal standard, arguing that Billur can only be removed for
“willful misconduct” because the Trust “exclusively vest[s] the power to remove and appoint trust
committee members” with Berrin. (NYSCEF Doc. 569, 14-18.) Defendants wildly misread (or
intentionally misrepresent) the very agreement that their own counsel drafted.
As relevant, Section 3303(a) provides that:
[T]he terms of a governing instrument may expand, restrict, eliminate, or otherwise
vary…any such laws pertaining to:… (2) The grounds for removal of a
fiduciary…provided, however, that nothing contained in this section shall be
construed to…preclude a court of competent jurisdiction from removing a fiduciary
on account of the fiduciary’s willful misconduct.
12 Del. C. § 3303(a). Defendants claim that Berrin has “sole and absolute discretion” to appoint
and remove Trust Committee members such that Section 3303(a) “restrict[s], eliminate[s], or
otherwise var[ies]” Delaware law. (NYSCEF Doc. 569 at 12; see also id. at 18 (claiming these
provisions “exclusively vest[s] the power” of removal in Berrin).) Defendants are wrong.
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Indeed, the very provisions cited by Defendants make plain that, while Berrin has the “sole
and absolute discretion” to appoint Trust Committee members (subject to the exception below),
she only has the ability – and not exclusive authority – to remove them. (NYSCEF Doc. 431 at
Art. EIGHT-NINTH.) Regarding appointments, the Agreement provides that Berrin, “[i]n [her]
sole and absolute discretion, may appoint any person … to serve as an additional member of the
Trust Committee….” (Id. at Art. NINTH(A)). Conversely, regarding removal, the Agreement
provides only that Berrin “may remove one or more members of the Trust Committee….” (Id. at
Art. EIGHTH(A).) Thus, Berrin merely has the ability to remove – not the “exclusive” power or
the “sole and absolute discretion” to do so. Nor does Article Eight otherwise supplant Delaware
Law or require “willful misconduct” for removal. (See id.) 3 Accordingly, Section 3303(a) is not
implicated, and both Delaware’s statutory scheme for removal and this Court’s inherent authority
to remove Billur remain unaffected. 4
Thus, Billur’s removal is imperative because: 1) she has breached her fiduciary duties and
is inherently conflicted; 2) under 12 Del. C. § 3327(3), there have been substantial changes in
circumstance created by this lawsuit; and 3) under 12 Del. C. § 3327(3), there is significant
“hostility” between Billur and Yasemin, which makes it impossible for Billur to perform her duties
3
Notably, there are portions of the Agreement that do supplant Delaware Law under Section
3303(a). For example, the Agreement provides that, “[i]n accordance with the provisions of 12
Del. C. § 3303(a), the Trustee shall be under no duty to inform any person under the age of fifty
having a beneficial interest in any trust created hereunder of the existence of any such trust….”
(Id. at Art. TWENTY-SIX(D); id. at Art. THIRTEEN (“Except in the event of a demonstrated
abuse of discretion…no court may direct the Trustee or the Trust Committee to make any
discretionary distribution….”).) The Agreement, however, contains no such language concerning
removal of a Trust Committee Member. (Id. at Art. EIGHTH(A).)
4
Given this, that Yasemin signed documents concerning the formation of the Trust is of no
moment. In any event, Yasemin was never offered independent counsel and was erroneously led
to believe that defense counsel was representing her interests. (See Affidavit of Yasemin Tekiner
dated June 29, 2022 (“Yasemin Aff”) at ¶ 9.)
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on the Trust Committee. 5
IV. BILLUR SHOULD BE REMOVED BECAUSE SHE IS INHERENTLY
CONFLICTED AND HAS BREACHED HER FIDUCIARY DUTIES
Defendants next claim that Delaware law “does not permit removal” based upon a conflict
of interest. (See NYSCEF Doc. 569). This is not true. Indeed, as the cases Defendants themselves
cite make plain, “[a] conflict of interest is an appropriate ground for the removal of a trustee.”
(United Bhd. of Carpenters Pension Plan v Fellner, No. 9475-VCN, 2015 Del. Ch. LEXIS 53, at
*8 [Ch. Feb. 26, 2015] (citing Gans v MDR Liquidating Corp., 1991 Del. Ch. LEXIS 110, 1991
WL 114514, at *3 [Ch June 25, 1991, Civil Action No. 9630] ; In re Tr. Estate of Catell, 28 Del
Ch 115, 122, 38 A2d 466, 470 [1944] (“[A] court will usually remove a trustee if his duties as such
are in conflict with his individual or other interests.”).)
In fact, Gans (on which Defendants heavily rely) fully supports Billur’s removal. In Gans,
the Court ordered the appointment of “an impartial trustee” because “the totality of the
circumstances clearly compels [the Trustees’] removal”:
Although the Trustees’ conflict of interest is not a per se disqualification, they
obviously have a conflict…The Trustees have been less than cooperative in
providing plaintiffs with information about the Liquidating Trust and how they plan
to fulfill their obligations to the plaintiffs. They have acted so that they appear to
be more concerned with the interests of themselves as the stockholder beneficiaries
than with the interest of the plaintiff beneficiaries….Also, there is such animosity
between the plaintiffs and the Trustees that a great deal of time and money is being
5
Even if “willful misconduct” were the standard (and it is not), Billur’s conduct would satisfy it.
Willful misconduct is an “intentional wrongdoing, not mere negligence.” (In re Jeremy Paradise
Dynasty Tr., No. 2021-0354-KSJM, 2021 Del. Ch. LEXIS 278, at *20 [Del. Ch. Nov. 29, 2021].)
“[W]rongdoing” is “malicious conduct or conduct designed to defraud or seek an unconscionable
advantage.” (Id.). Here, in response to Yasemin’s valid concerns about the Company, Billur
intentionally abandoned her duties to Yasemin in favor of her own self-interest – pressuring
Zeynep to fire Yasemin, and refusing to even “consider” Yasemin’s needs as a beneficiary, all
because Yasemin filed this lawsuit. (See NYSCEF Doc. 422 at Facts.) This goes well-beyond
“mere negligence” and qualifies as “malicious conduct or conduct designed to…seek an
unconscionable advantage” – that advantage being to bankrupt Yasemin so she would be unable
to pursue this case. (NYSCEF Doc. 217, ¶ 23 (“[Y]ou can’t give someone a loaded gun to use
against you.”).)
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wasted in legal maneuvering…In the interests of all concerned, therefore, the
Trustees should be replaced by an impartial trustee or trustees.
(Gans, 1991 Del. Ch. LEXIS 110, at *14-15; see also Catell, 38 A.2d at 740 (declining to remove
the fiduciary not because Delaware law “does not permit removal” due to a conflict, but because
that there was nothing improper or conflicted about the complained of actions.).) Thus, at best,
these cases support the finding that, while the mere existence of a potential conflict may be
insufficient on its own, removal is appropriate when, as here, the conflict has impacted the
administration of the Trust or combines with other issues, such as hostility. (See also Fellner,
2015 Del. Ch. LEXIS 53, at *8 (“Actions taken while operating under a conflict of interest would
likely breach a duty of loyalty.”).)
Indeed, this is exactly what Yasemin argues. (See NYSCEF Doc. 422 at 12 (Billur’s
“inherent conflict, combined with the facts learned through discovery regarding Billur’s self-
dealing and disregard for Yasemin’s interest, warrant her immediate removal….”) (emphasis
added).) As explained, removal is not just appropriate because Billur is “conflicted” (although she
is). It is that Billur is conflicted and has already taken numerous actions for her (and Berrin’s)
benefit and to Yasemin’s detriment including: 1) actively participating Yasemin’s firing, including
coercing Zeynep to go along with it; 2) admittedly failing to even “consider” Yasemin’s needs or
her request for distributions because Yasemin filed this lawsuit; 3) refusing to respond to Yasemin
and taking the position that Yasemin cannot contact her without wasting time and money by going
through attorneys; 4) that Billur is – as Berrin admitted – beholden to Berrin and will do anything
she says; and 5) that Billur is also a fiduciary of Gonca’s trust, whose interests (including how her
trust would likely vote as a shareholder of the Company) are materially adverse to Yasemin’s.
(See NYSCEF at Doc. 442 at Facts; id. at Argument(I); NYSCEF Doc. 217 at ¶¶ 21-23.)
And while Defendants now claim, self-interestedly and without support, that Berrin has
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never instructed Billur make any decision, that contradicts Berrin’s prior admission that Billur has
“nothing to do with decision-making” and “only execute[s]” what Berrin wants. (See Yasemin Aff.
at ¶ 15, Ex. C; see also id. at Ex. D (“Billur is just a messenger and not involved in the decision.”).)
Accordingly, this Court should remove Billur based on her conflicts of interest and her
numerous breaches of her duties to Yasemin. (See, e.g., Paradee v Paradee, No. 4988-VCL, 2010
Del. Ch. LEXIS 212, at *25 [Ch Oct. 5, 2010]); McNeil v Bennett, 792 A2d 190, 212 [Del Ch
2001] ; Fellner, 2015 Del. Ch. LEXIS 53); Gans, 1991 Del. Ch. LEXIS 110, at *14-15.) 6
V. BILLUR’S REMOVAL IS PROPER DUE TO THE SUBSTANTIAL CHANGE
IN CIRCUMSTANCES CREATED BY THIS LAWSUIT
Defendants next argue that there has not been a “substantial change in circumstance” to
warrant removal, because Billur’s “role, and any ‘services’ she provides…has been limited since
the Yasemin Trust was created, and those services have not changed.” (NYSCEF Doc. 569 at 18.)
Defendants misstate the law and facts.
Despite what Defendants claim, it is not that the literal “services” must change in order for
there to be a “substantial change in circumstances” (i.e., that the fiduciary was once in charge of
distributions and no longer is). Rather, it is whether there has been a change in the character of
the services provided, in how the services are administered (i.e., that the fiduciary was once
administering services in a non-conflicted, non-self-interested way but now, as a result of changed
circumstances, is no longer doing so). Here, there has undoubtedly been a change in the character
6
Defendants barely address Yasemin’s argument that Billur breached her duties, arguing only in a
footnote that “acting in compliance with the terms of the agreement cannot constitute ‘breach of
trust.’” (NYSCEF Doc. 569 at 20.) Defendants ignore, however, that even if the agreement permits
an action, the fiduciary’s actions are still “twice-tested.” (See, e.g., Mennen v. Wilmington Tr. Co.,
2015 WL 1914599, at *21 [Del. Ch. Apr. 24, 2015] (citing 12 Del. C. § 3303(a).) Meaning, the
Court first considers whether the fiduciary was empowered under the agreement and then considers
whether those permitted actions were nonetheless a breach of the fiduciary’s duty. (See Mennen,
2015 WL 1914599, at *74.)
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of the services provided the Trust and to Yasemin in response to this litigation: Billur has
abandoned her duties to Yasemin in favor of her own self-interest; Yasemin’s interests are now
materially adverse to Billur, Berrin, and Gonca; and Billur has insisted all communications with
Yasemin go through counsel. (See NYSCEF Doc. 422 at Argument(II).)
Additionally, it is not credible for Defendants to claim that Billur only serves a “limited”
role performing “clerical matters.” (NYSCEF Doc. 569 at 18, 20.) Rather, Billur is (now solely)
responsible for making all decisions relating to, inter alia, “distributions,” whether to “invest or
reinvest” , whether to “sell any interest in any property,” whether to “borrow” any sums or lend
assets, and whether “to renounce or release…any interest in any property or any power with respect
to [the Trust].” (NYSCEF Doc. 431 at Art. FIFTEENTH.) Billur also has sole control over the
Trust’s vote as shareholder of the Company. 7
Accordingly, there has clearly been “a substantial change in circumstances” sufficient to
warrant Billur’s removal. (See id; see also du Pont v Wilmington Tr. Co., 2017 Del. Ch. LEXIS
768, at *8 [Ch Oct. 6, 2017, No. 12836-VCS] .)
VI. REMOVAL IS PROPER DUE TO HOSTILITY BETWEEN BILLUR AND
YASEMIN
It is difficult to deny that removal of Billur is appropriate based on the hostility between
her and Yasemin that this litigation has engendered. Instead, Defendants raises red herrings.
First, contrary to Defendants’ claim, Yasemin did not “create” the hostility by exercising
her rights – and, in fact, fulfilling her duty – to call out the mismanagement and self-dealing that
7
Incredibly, Defendants try to downplay the import of Billur’s services vis-à-vis her ability to
make distributions, by claiming that “the Company pay salaries in lieu of distribution, which
Yasemin receives and which [Billur] has no role in determining.” (NYSCEF Doc. 569 at 18).
This, of course, disregards the fact that the only reason Yasemin is receiving a salary is because
this Court ordered it. (See NYSCEF Doc. 356.) Prior to, Yasemin was not receiving her salary
because she had been fired– a retaliatory decision that Billur participated in. (See, e.g., NYSCEF
Doc. 217 at ¶¶ 21-23)
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was harming the Company and Yasemin’s Trust. (NYSCEF Doc. 569 at 19.) Billur’s actions in
response to this lawsuit, and her decision to engage in the same self-dealing that has plagued the
Company for years, are entirely her own. She cannot now blame her bad behavior on Yasemin’s
decision to do the right thing – and Defendants cite no case law that supports this position.
Tigani v. Tigani has no bearing here. (No. 2017-0786-KSJM, 2021 Del. Ch. LEXIS 60, at
*46 [Del. Ch. Mar. 30, 2021].) In Tigani, the court did not find that “insidious litigation” cannot
form the basis of a hostility finding. Rather, the court found there was no hostility because, despite
litigation, the trustee (who was beneficiary’s father) “credibly testified that he want[ed] his family
to heal,” demonstrated his “affection” for his son, and showed that he was acting in his son’s best
interest. (Id.) None of those facts are present here.
And, in fact, Billur’s behavior has only gotten worse, with Billur making up lies about
Yasemin as part of this lawsuit. (See Yasemin Aff. at ¶ 6.) Billur is also beholden to Berrin while
simultaneously owing Gonca a fiduciary duty, both of whose interests are diametrically opposed
to Yasemin’s – as this Court has noted, these interests are “no longer in any way rowing in the
same direction,” making it impossible for Billur to loyally serve. (NYSCEF Doc. 426 at 33:6-9.)
Second, Yasemin is not arguing that removal is proper simply because Billur “refuse[d] to
make a distribution” or “disagreed” with Yasemin. (NYSCEF Doc. 569 at 19-20.) Rather,
removal is proper based on Billur’s pattern of activity that is directly adverse to Yasemin and her
interests. And while Billur claims otherwise (for the first time) in this motion, she already admitted
that she: 1) did not “consult” with anyone about Yasemin’s request for a distribution; 2) did not
determine her legal obligations to Yasemin; and, indeed, 3) did not even “consider” Yasemin’s
request or needs – all because Yasemin had filed this lawsuit. (See NYSCEF Doc. 442 at Facts.)
Instead, Billur used her power to push for Yasemin’s firing, participated in the coercion of Zeynep
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to achieve this end, sought to ensure that Yasemin had no funds to pay for this case, and filed a
retaliatory counterclaim, seeking to evict Yasemin from her home – all to advance her own (and
Berrin’s, and Gonca’s) self-interests. This goes well beyond a “mere disagreement” or “lack of
confidence.” (See, e.g., Smith v Biggs Boiler Works Co., 91 A2d 193, 199 [Del. Ch. 1952] ; du
Pont, 2017 Del. Ch. LEXIS 768 at*8.) 8
VII. THERE IS SUFFICIENT LEGAL BASIS FOR THIS COURT TO APPOINT AN
INDEPENDENT MEMBER OF THE TRUST COMMITTEE
Finally, Defendants are wrong that there “is no law permitting the Court to appoint a
replacement fiduciary ifone is removed.” (NYSCEF Doc. 569.) Indeed, Defendants admit as
much, later admitting that this Court has the “residual authority [over] appointment of trustees.”
(Id. (citing McNeil v. McNeil, 798 A.2d 503, 513 [Del. 2002].) Defendants are correct that, where
the trust documents provide for a mechanism of replacement, the Court should only use this
authority in “rare circumstances” – but this is one of those “rare circumstances” where it is
imperative that the Court do so. (McNeil, 798 A.2d at 514.)
For example, appointment of a successor by the Court (even when the trust provides for a
mechanism of replacement) is appropriate where, as here, following the trust agreement “would
frustrate the purpose of the trust or be detrimental to the interests of the beneficiaries.” (Id. (citing
Matter of Guardianship of Brown, 436 N.E.2d 877, 889 [Ind. App. 1982]).) Here, the Trust
Agreement provides that Berrin is permitted to appoint members to the Trust Committee.
8
What Defendants continue to ignore , and what case law makes plain, is that while certain actions
(e.g., refusing a distribution or refusing to communicate with Yasemin) may not be sufficient on
their own to remove Billur as trustee, when viewed in conjunction with other hostile actions and
Billur’s conflicts of interest, these actions are more than sufficient to find that Billur simply cannot
continue as the sole member of Yasemin’s Trust Committee. She simply cannot be the only person
in charge of Yasemin’s Trust. (See, e.g., Gans, 1991 Del. Ch. LEXIS 110, at *14-15 (ordering
appointment of “an impartial trustee” because the “totality of the circumstances [e.g., conflict of
interest combined with hostilities] clearly compels [the Trustees’] removal”).
11
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FILED: NEW YORK COUNTY CLERK 06/29/2022 09:01 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 06/29/2022 SUPREME COURT OF THE STATE OF NEW YORK COMMERCIAL DIVISION, NEW YORK COUNTY YASEMIN TEKINER, in her individual capacity, as a beneficiary and a Trustee of The Yasemin Tekiner 2011 Descendants Trust and derivatively as Index No. 657193/2020 a holder of equitable interests in a shareholder or a member of the Company Commercial Division Part 3 Defendants, Hon. Joel M. Cohen Plaintiff, Motion Seq. No. 24 -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. 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., 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. 1 of 19 FILED: NEW YORK COUNTY CLERK 06/29/2022 09:01 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 06/29/2022 PLAINTIFF YASEMIN TEKINER’S REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF HER MOTION TO REMOVE BILLUR AKIPEK AS TRUST COMMITTEE MEMBER AND TO APPOINT AN INDEPENDENT TRUST COMMITTEE MEMBER Stephen P. Younger Sanjay P. Ibrahim FOLEY HOAG LLP Scott W. Parker 1301 Avenue of the Americas, 25th Floor Daniel A. Schleifstein New York, New York 10019 PARKER IBRAHIM & BERG LLP (212) 812-0365 5 Penn Plaza, Suite 2371 spyounger@foleyhoag.com New York, New York 10001 Telephone: (212) 596-7037 sanjay.ibrahim@piblaw.com scott.parker@piblaw.com daniel.schleifstein@piblaw.com 2 of 19 FILED: NEW YORK COUNTY CLERK 06/29/2022 09:01 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 06/29/2022 TABLE OF CONTENTS TABLE OF AUTHORITIES ...................................................................................................... iii PRELIMINARY STATEMENT ..................................................................................................1 I. YASEMIN’S MOTION IS NOT PREMATURE, NOR DOES IT SEEK A PRELIMINARY OR MANDATORY INJUNCTION ..............................................2 II. BILLUR ACTED IN HER OWN (AND BERRIN’S AND GONCA’S) SELF- INTEREST, AND REFUSED TO CONSIDER YASEMIN OR HER INTERESTS ...............................................................................................................2 III. WILLFUL MISCONDUCT IS NOT REQUIRED; BERRIN DOES NOT HAVE “SOLE AND ABSOLUTE DISCRETION” TO REMOVE BILLUR .......................4 IV. BILLUR SHOULD BE REMOVED BECAUSE SHE IS INHERENTLY CONFLICTED AND HAS BREACHED HER FIDUCIARY DUTIES ...................6 V. BILLUR’S REMOVAL IS PROPER DUE TO THE SUBSTANTIAL CHANGE IN CIRCUMSTANCES CREATED BY THIS LAWSUIT .....................8 VI. REMOVAL IS PROPER DUE TO HOSTILITY BETWEEN BILLUR AND YASEMIN ..................................................................................................................9 VII. THERE IS SUFFICIENT LEGAL BASIS FOR THIS COURT TO APPOINT AN INDEPENDENT MEMBER OF THE TRUST COMMITTEE .......................11 CONCLUSION ...........................................................................................................................12 ii 3 of 19 FILED: NEW YORK COUNTY CLERK 06/29/2022 09:01 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 06/29/2022 TABLE OF AUTHORITIES Cases du Pont v Wilmington Tr. Co., 2017 Del. Ch. LEXIS 768 [Ch Oct. 6, 2017, No. 12836-VCS] ................................................ 9, 11 Gans v MDR Liquidating Corp., 1991 Del. Ch. LEXIS 110, 1991 WL 114514 [Ch June 25, 1991, Civil Action No. 9630] .. 6, 7, 8, 11 Hurd v. Hurd, No. 4675-MG, 2020 Del. Ch. LEXIS 40 [Del. Ch. Jan. 31, 2020]............................................... 12 In re Jeremy Paradise Dynasty Tr., No. 2021-0354-KSJM, 2021 Del. Ch. LEXIS 278 [Del. Ch. Nov. 29, 2021] ............................... 6 In re Tr. Estate of Catell, 28 Del Ch 115, 38 A2d 466, 470 [1944]..................................................................................... 6, 7 Lynch v. Barba, No. 12083-MG, 2018 Del. Ch. LEXIS 109 [Del. Ch. Apr. 3, 2018] .............................................. 2 Matter of Guardianship of Brown, 436 N.E.2d 877 [Ind. App. 1982] ................................................................................................. 11 McNeil v Bennett, 792 A2d 190 [Del Ch 2001]............................................................................................................ 7 McNeil v. McNeil, 798 A2d 503, 513 [Del 2002] ....................................................................................................... 11 Mennen v. Wilmington Tr. Co., 2015 WL 1914599 [Del. Ch. Apr. 24, 2015] .................................................................................. 8 Paradee v Paradee, No. 4988-VCL, 2010 Del. Ch. LEXIS 212 [Ch Oct. 5, 2010]) ...................................................... 7 Smith v Biggs Boiler Works Co., 91 A2d 193 [Del. Ch. 1952].......................................................................................................... 11 Tigani v. Tigani, No. 2017-0786-KSJM, 2021 Del. Ch. LEXIS 60 [Del. Ch. Mar. 30, 2021] ................................ 10 United Bhd. of Carpenters Pension Plan v Fellner, No. 9475-VCN, 2015 Del Ch LEXIS 53 [Ch Feb. 26, 2015] ................................................. 6, 7, 8 iii 4 of 19 FILED: NEW YORK COUNTY CLERK 06/29/2022 09:01 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 06/29/2022 Statutes 12 Del. C. § 3303(a)................................................................................................................ 4, 5, 8 12 Del. C. § 3327 ........................................................................................................................ 2, 5 iv 5 of 19 FILED: NEW YORK COUNTY CLERK 06/29/2022 09:01 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 06/29/2022 Plaintiff Yasemin Tekiner (“Yasemin”) respectfully submits this reply memorandum in further support of her Motion to Remove Billur Akipek (“Billur”) as a Member of the Trust Committee for the Yasemin Tekiner 2011 Descendants Trust (the “Trust”) (the “Motion”). PRELIMINARY STATEMENT Defendants’ opposition is premised entirely on wildly inaccurate readings of both Yasemin’s Motion and the Trust Agreement. Despite what Defendants would have this Court believe, and as the Trust Agreement confirms, Berrin does not have “sole and absolutely discretion” to remove Trust Committee members. Nor does the Trust Agreement provide that removal of a fiduciary is only appropriate upon a showing of “willful misconduct.” Rather, Delaware Law applies, and for many reasons, makes plain that Billur’s removal is warranted. Further, Defendants miss the mark by detailing Billur’s “long-standing relationship” with Yasemin, and alleging that Billur served the Trust for 11 years without incident. As this Court has recognized, an arrangement that might have worked in the past no longer works today. 1 Rather, an unavoidable conflict now exists as a result of, inter alia: 1) this litigation (which directly implicates Billur and the services she provides); 2) Billur’s abandonment of her duties to Yasemin in response to this litigation, in favor of her own (and Berrin’s) self-interest; and 3) Yasmin’s interests becoming materially adverse to Billur, Berrin (to whom Billur is beholden and from whom she receives her sole source of income), and Gonca (to whom Billur is also a fiduciary). As a result, it is impossible for Billur to loyally satisfy her fiduciary duties to Yasemin. Accordingly, Billur should be removed as the sole Trust Committee member for the Trust. 1 See NYSCEF Doc. 426 at 33:1-5 (“I’m not saying there is anything wrong about when it started” but “there comes a time…when, if conflicts arise, you can’t do it anymore.”); id. at 33:6-9 (“[I]f you’re a Trustee for three people who are no longer in any way rowing in the same direction, it’s unclear to me how one can serve those three masters.”) 1 6 of 19 FILED: NEW YORK COUNTY CLERK 06/29/2022 09:01 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 06/29/2022 I. YASEMIN’S MOTION IS NOT PREMATURE, NOR DOES IT SEEK A 2 PRELIMINARY OR MANDATORY INJUNCTION Yasemin is not seeking “ultimate relief” on her Complaint, nor is she seeking an injunction. (See NYSCEF Doc. 569 at 10.) Rather, Yasemin is simply availing herself of the remedies established by Delaware Law, which permits the removal of Billur under these circumstances. While Defendants allege that removal is only appropriate after a trial, they fail to identify any provision in 12 Del. C. § 3327 – or any other law – to support this contention. And while this Court is certainly free to hold an evidentiary hearing, there can be no genuine issue that Billur is inherently conflicted and that removal is proper. (See, e.g., Lynch v. Barba, No. 12083-MG, 2018 Del. Ch. LEXIS 109 [Del. Ch. Apr. 3, 2018] (where there is no genuine issue of material fact with respect to the effort to remove a trustee, judgment as a matter of law is appropriate).) Indeed, this Court has reached this conclusion before and should do so again now. Even if the Court were to find that Yasemin was not entitled to the relief requested in her Complaint, this would have no impact on the fact that Billur is presently inherently conflicted, self-interested, and hostile to Yasemin such that she cannot continue under Delaware law as the independent (and only) member of the Trust Committee. Thus, there is simply no basis to claim that Yasemin is somehow seeking “to circumvent this litigation” with her Motion. Accordingly, this Court should consider Yasemin’s Motion and, for the reasons below, remove Billur from her position as the independent member of Yasemin’s Trust Committee. II. BILLUR HAS ACTED IN HER OWN (AND BERRIN’S AND GONCA’S) SELF- INTEREST, AND REFUSED TO CONSIDER YASEMIN OR HER INTERESTS For the first time – more than a year into the case, and only in response to this motion – Billur claims that when Yasemin asked her to make a distribution, she did in fact consider Yasemin 2 Defendants do not dispute that this Court has jurisdiction to hear this Motion and remove Billur under the Trust Agreement. (See NYSCEF Doc. 422 at 9, fn 2.) 2 7 of 19 FILED: NEW YORK COUNTY CLERK 06/29/2022 09:01 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 06/29/2022 and her needs, but simply “d[id] not see” why Yasemin would need it after she had been fired, cut off, and threatened with eviction. (NYSCEF Doc. 557.) This Court should reject Defendants’ revisionist history, which is contradicted by Billur’s sworn deposition testimony. Billur’s testimony is clear: Billur did not “consult” with anyone about Yasemin’s request, she did not determine what her legal obligations and duties to Yasemin were, and indeed, she did not even “consider” Yasemin’s request or needs: “Frankly…I did not even consider that it would be appropriate.” (See NYSCEF Doc. 424 at 200:7-25; 198:11-25 (“I did not even explore the option” of whether it even could be done).) Now, however, Billur comes up with a new theory, not offered at her deposition: i.e., that Yasemin did not merit a distribution. (NYSCEF Doc. 557 at ¶ 19.) This is especially disingenuous given that Billur claims she decided that Yasemin did not need a distribution because Yasemin “receive[s]” a Company salary. (Id.) At the time of Yasemin’s request, however, she was not receiving a salary – as Billur knew, having been involved in her firing. That Billur “considered” that Yasemin “live[s]” in a Company-owned property is similarly odd, given that Billur is seeking to evict Yasemin. (Id.) Finally, Billur claims to have relied on the fact that the Company turned over Yasemin’s retirement funds; those funds, of course, are not only subject to hefty withdrawal penalties, but were supposed to finance Yasemin’s retirement – not support her now. The fact is, Billur did not consider Yasemin’s needs because she did not want to fund this litigation – which is why Yasemin was fired in the first place. (See, e.g., id. at 196:2-6 (“[W]e were in litigation so I didn’t respond.”); id. at 196:10-13 (“I did not do the requested distribution and I did not respond because…she was already suing me.”); NYSCEF Doc. 217, at ¶ 23) ( “Billur said something to the effect of ‘you can’t give someone a loaded gun to use against you’ – meaning 3 8 of 19 FILED: NEW YORK COUNTY CLERK 06/29/2022 09:01 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 06/29/2022 that Yasemin should not receive a salary she could use to finance her lawsuit.”).) Defendants cannot avoid this by claiming in a self-serving affidavit that Billur’s sworn testimony was not true. In sum, the evidence shows that, instead of protecting Yasemin’s interests, Billur did the opposite: she worked to get Yasemin fired, terminate her salary, evict her from her home, deny her any benefit of her Trust’s one-third interest in the Company, and deprive her of the means necessary to pursue this action, which seeks to hold Billur, Berrin, and Gonca responsible for looting the Company for their benefit. Billur was (and is) thinking only about herself, Berrin, and Gonca – and she prioritized those needs over Yasemin’s interests. As the sole member of Yasemin’s Trust Committee, Billur owes Yasemin far more than that. III. WILLFUL MISCONDUCT IS NOT REQUIRED AND BERRIN DOES NOT HAVE “SOLE AND ABSOLUTE DISCRETION” TO REMOVE BILLUR Faced with the fact that Billur is both inherently conflicted and hostile towards Yasemin, Defendants first try to change the removal standard, arguing that Billur can only be removed for “willful misconduct” because the Trust “exclusively vest[s] the power to remove and appoint trust committee members” with Berrin. (NYSCEF Doc. 569, 14-18.) Defendants wildly misread (or intentionally misrepresent) the very agreement that their own counsel drafted. As relevant, Section 3303(a) provides that: [T]he terms of a governing instrument may expand, restrict, eliminate, or otherwise vary…any such laws pertaining to:… (2) The grounds for removal of a fiduciary…provided, however, that nothing contained in this section shall be construed to…preclude a court of competent jurisdiction from removing a fiduciary on account of the fiduciary’s willful misconduct. 12 Del. C. § 3303(a). Defendants claim that Berrin has “sole and absolute discretion” to appoint and remove Trust Committee members such that Section 3303(a) “restrict[s], eliminate[s], or otherwise var[ies]” Delaware law. (NYSCEF Doc. 569 at 12; see also id. at 18 (claiming these provisions “exclusively vest[s] the power” of removal in Berrin).) Defendants are wrong. 4 9 of 19 FILED: NEW YORK COUNTY CLERK 06/29/2022 09:01 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 06/29/2022 Indeed, the very provisions cited by Defendants make plain that, while Berrin has the “sole and absolute discretion” to appoint Trust Committee members (subject to the exception below), she only has the ability – and not exclusive authority – to remove them. (NYSCEF Doc. 431 at Art. EIGHT-NINTH.) Regarding appointments, the Agreement provides that Berrin, “[i]n [her] sole and absolute discretion, may appoint any person … to serve as an additional member of the Trust Committee….” (Id. at Art. NINTH(A)). Conversely, regarding removal, the Agreement provides only that Berrin “may remove one or more members of the Trust Committee….” (Id. at Art. EIGHTH(A).) Thus, Berrin merely has the ability to remove – not the “exclusive” power or the “sole and absolute discretion” to do so. Nor does Article Eight otherwise supplant Delaware Law or require “willful misconduct” for removal. (See id.) 3 Accordingly, Section 3303(a) is not implicated, and both Delaware’s statutory scheme for removal and this Court’s inherent authority to remove Billur remain unaffected. 4 Thus, Billur’s removal is imperative because: 1) she has breached her fiduciary duties and is inherently conflicted; 2) under 12 Del. C. § 3327(3), there have been substantial changes in circumstance created by this lawsuit; and 3) under 12 Del. C. § 3327(3), there is significant “hostility” between Billur and Yasemin, which makes it impossible for Billur to perform her duties 3 Notably, there are portions of the Agreement that do supplant Delaware Law under Section 3303(a). For example, the Agreement provides that, “[i]n accordance with the provisions of 12 Del. C. § 3303(a), the Trustee shall be under no duty to inform any person under the age of fifty having a beneficial interest in any trust created hereunder of the existence of any such trust….” (Id. at Art. TWENTY-SIX(D); id. at Art. THIRTEEN (“Except in the event of a demonstrated abuse of discretion…no court may direct the Trustee or the Trust Committee to make any discretionary distribution….”).) The Agreement, however, contains no such language concerning removal of a Trust Committee Member. (Id. at Art. EIGHTH(A).) 4 Given this, that Yasemin signed documents concerning the formation of the Trust is of no moment. In any event, Yasemin was never offered independent counsel and was erroneously led to believe that defense counsel was representing her interests. (See Affidavit of Yasemin Tekiner dated June 29, 2022 (“Yasemin Aff”) at ¶ 9.) 5 10 of 19 FILED: NEW YORK COUNTY CLERK 06/29/2022 09:01 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 06/29/2022 on the Trust Committee. 5 IV. BILLUR SHOULD BE REMOVED BECAUSE SHE IS INHERENTLY CONFLICTED AND HAS BREACHED HER FIDUCIARY DUTIES Defendants next claim that Delaware law “does not permit removal” based upon a conflict of interest. (See NYSCEF Doc. 569). This is not true. Indeed, as the cases Defendants themselves cite make plain, “[a] conflict of interest is an appropriate ground for the removal of a trustee.” (United Bhd. of Carpenters Pension Plan v Fellner, No. 9475-VCN, 2015 Del. Ch. LEXIS 53, at *8 [Ch. Feb. 26, 2015] (citing Gans v MDR Liquidating Corp., 1991 Del. Ch. LEXIS 110, 1991 WL 114514, at *3 [Ch June 25, 1991, Civil Action No. 9630] ; In re Tr. Estate of Catell, 28 Del Ch 115, 122, 38 A2d 466, 470 [1944] (“[A] court will usually remove a trustee if his duties as such are in conflict with his individual or other interests.”).) In fact, Gans (on which Defendants heavily rely) fully supports Billur’s removal. In Gans, the Court ordered the appointment of “an impartial trustee” because “the totality of the circumstances clearly compels [the Trustees’] removal”: Although the Trustees’ conflict of interest is not a per se disqualification, they obviously have a conflict…The Trustees have been less than cooperative in providing plaintiffs with information about the Liquidating Trust and how they plan to fulfill their obligations to the plaintiffs. They have acted so that they appear to be more concerned with the interests of themselves as the stockholder beneficiaries than with the interest of the plaintiff beneficiaries….Also, there is such animosity between the plaintiffs and the Trustees that a great deal of time and money is being 5 Even if “willful misconduct” were the standard (and it is not), Billur’s conduct would satisfy it. Willful misconduct is an “intentional wrongdoing, not mere negligence.” (In re Jeremy Paradise Dynasty Tr., No. 2021-0354-KSJM, 2021 Del. Ch. LEXIS 278, at *20 [Del. Ch. Nov. 29, 2021].) “[W]rongdoing” is “malicious conduct or conduct designed to defraud or seek an unconscionable advantage.” (Id.). Here, in response to Yasemin’s valid concerns about the Company, Billur intentionally abandoned her duties to Yasemin in favor of her own self-interest – pressuring Zeynep to fire Yasemin, and refusing to even “consider” Yasemin’s needs as a beneficiary, all because Yasemin filed this lawsuit. (See NYSCEF Doc. 422 at Facts.) This goes well-beyond “mere negligence” and qualifies as “malicious conduct or conduct designed to…seek an unconscionable advantage” – that advantage being to bankrupt Yasemin so she would be unable to pursue this case. (NYSCEF Doc. 217, ¶ 23 (“[Y]ou can’t give someone a loaded gun to use against you.”).) 6 11 of 19 FILED: NEW YORK COUNTY CLERK 06/29/2022 09:01 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 06/29/2022 wasted in legal maneuvering…In the interests of all concerned, therefore, the Trustees should be replaced by an impartial trustee or trustees. (Gans, 1991 Del. Ch. LEXIS 110, at *14-15; see also Catell, 38 A.2d at 740 (declining to remove the fiduciary not because Delaware law “does not permit removal” due to a conflict, but because that there was nothing improper or conflicted about the complained of actions.).) Thus, at best, these cases support the finding that, while the mere existence of a potential conflict may be insufficient on its own, removal is appropriate when, as here, the conflict has impacted the administration of the Trust or combines with other issues, such as hostility. (See also Fellner, 2015 Del. Ch. LEXIS 53, at *8 (“Actions taken while operating under a conflict of interest would likely breach a duty of loyalty.”).) Indeed, this is exactly what Yasemin argues. (See NYSCEF Doc. 422 at 12 (Billur’s “inherent conflict, combined with the facts learned through discovery regarding Billur’s self- dealing and disregard for Yasemin’s interest, warrant her immediate removal….”) (emphasis added).) As explained, removal is not just appropriate because Billur is “conflicted” (although she is). It is that Billur is conflicted and has already taken numerous actions for her (and Berrin’s) benefit and to Yasemin’s detriment including: 1) actively participating Yasemin’s firing, including coercing Zeynep to go along with it; 2) admittedly failing to even “consider” Yasemin’s needs or her request for distributions because Yasemin filed this lawsuit; 3) refusing to respond to Yasemin and taking the position that Yasemin cannot contact her without wasting time and money by going through attorneys; 4) that Billur is – as Berrin admitted – beholden to Berrin and will do anything she says; and 5) that Billur is also a fiduciary of Gonca’s trust, whose interests (including how her trust would likely vote as a shareholder of the Company) are materially adverse to Yasemin’s. (See NYSCEF at Doc. 442 at Facts; id. at Argument(I); NYSCEF Doc. 217 at ¶¶ 21-23.) And while Defendants now claim, self-interestedly and without support, that Berrin has 7 12 of 19 FILED: NEW YORK COUNTY CLERK 06/29/2022 09:01 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 06/29/2022 never instructed Billur make any decision, that contradicts Berrin’s prior admission that Billur has “nothing to do with decision-making” and “only execute[s]” what Berrin wants. (See Yasemin Aff. at ¶ 15, Ex. C; see also id. at Ex. D (“Billur is just a messenger and not involved in the decision.”).) Accordingly, this Court should remove Billur based on her conflicts of interest and her numerous breaches of her duties to Yasemin. (See, e.g., Paradee v Paradee, No. 4988-VCL, 2010 Del. Ch. LEXIS 212, at *25 [Ch Oct. 5, 2010]); McNeil v Bennett, 792 A2d 190, 212 [Del Ch 2001] ; Fellner, 2015 Del. Ch. LEXIS 53); Gans, 1991 Del. Ch. LEXIS 110, at *14-15.) 6 V. BILLUR’S REMOVAL IS PROPER DUE TO THE SUBSTANTIAL CHANGE IN CIRCUMSTANCES CREATED BY THIS LAWSUIT Defendants next argue that there has not been a “substantial change in circumstance” to warrant removal, because Billur’s “role, and any ‘services’ she provides…has been limited since the Yasemin Trust was created, and those services have not changed.” (NYSCEF Doc. 569 at 18.) Defendants misstate the law and facts. Despite what Defendants claim, it is not that the literal “services” must change in order for there to be a “substantial change in circumstances” (i.e., that the fiduciary was once in charge of distributions and no longer is). Rather, it is whether there has been a change in the character of the services provided, in how the services are administered (i.e., that the fiduciary was once administering services in a non-conflicted, non-self-interested way but now, as a result of changed circumstances, is no longer doing so). Here, there has undoubtedly been a change in the character 6 Defendants barely address Yasemin’s argument that Billur breached her duties, arguing only in a footnote that “acting in compliance with the terms of the agreement cannot constitute ‘breach of trust.’” (NYSCEF Doc. 569 at 20.) Defendants ignore, however, that even if the agreement permits an action, the fiduciary’s actions are still “twice-tested.” (See, e.g., Mennen v. Wilmington Tr. Co., 2015 WL 1914599, at *21 [Del. Ch. Apr. 24, 2015] (citing 12 Del. C. § 3303(a).) Meaning, the Court first considers whether the fiduciary was empowered under the agreement and then considers whether those permitted actions were nonetheless a breach of the fiduciary’s duty. (See Mennen, 2015 WL 1914599, at *74.) 8 13 of 19 FILED: NEW YORK COUNTY CLERK 06/29/2022 09:01 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 06/29/2022 of the services provided the Trust and to Yasemin in response to this litigation: Billur has abandoned her duties to Yasemin in favor of her own self-interest; Yasemin’s interests are now materially adverse to Billur, Berrin, and Gonca; and Billur has insisted all communications with Yasemin go through counsel. (See NYSCEF Doc. 422 at Argument(II).) Additionally, it is not credible for Defendants to claim that Billur only serves a “limited” role performing “clerical matters.” (NYSCEF Doc. 569 at 18, 20.) Rather, Billur is (now solely) responsible for making all decisions relating to, inter alia, “distributions,” whether to “invest or reinvest” , whether to “sell any interest in any property,” whether to “borrow” any sums or lend assets, and whether “to renounce or release…any interest in any property or any power with respect to [the Trust].” (NYSCEF Doc. 431 at Art. FIFTEENTH.) Billur also has sole control over the Trust’s vote as shareholder of the Company. 7 Accordingly, there has clearly been “a substantial change in circumstances” sufficient to warrant Billur’s removal. (See id; see also du Pont v Wilmington Tr. Co., 2017 Del. Ch. LEXIS 768, at *8 [Ch Oct. 6, 2017, No. 12836-VCS] .) VI. REMOVAL IS PROPER DUE TO HOSTILITY BETWEEN BILLUR AND YASEMIN It is difficult to deny that removal of Billur is appropriate based on the hostility between her and Yasemin that this litigation has engendered. Instead, Defendants raises red herrings. First, contrary to Defendants’ claim, Yasemin did not “create” the hostility by exercising her rights – and, in fact, fulfilling her duty – to call out the mismanagement and self-dealing that 7 Incredibly, Defendants try to downplay the import of Billur’s services vis-à-vis her ability to make distributions, by claiming that “the Company pay salaries in lieu of distribution, which Yasemin receives and which [Billur] has no role in determining.” (NYSCEF Doc. 569 at 18). This, of course, disregards the fact that the only reason Yasemin is receiving a salary is because this Court ordered it. (See NYSCEF Doc. 356.) Prior to, Yasemin was not receiving her salary because she had been fired– a retaliatory decision that Billur participated in. (See, e.g., NYSCEF Doc. 217 at ¶¶ 21-23) 9 14 of 19 FILED: NEW YORK COUNTY CLERK 06/29/2022 09:01 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 06/29/2022 was harming the Company and Yasemin’s Trust. (NYSCEF Doc. 569 at 19.) Billur’s actions in response to this lawsuit, and her decision to engage in the same self-dealing that has plagued the Company for years, are entirely her own. She cannot now blame her bad behavior on Yasemin’s decision to do the right thing – and Defendants cite no case law that supports this position. Tigani v. Tigani has no bearing here. (No. 2017-0786-KSJM, 2021 Del. Ch. LEXIS 60, at *46 [Del. Ch. Mar. 30, 2021].) In Tigani, the court did not find that “insidious litigation” cannot form the basis of a hostility finding. Rather, the court found there was no hostility because, despite litigation, the trustee (who was beneficiary’s father) “credibly testified that he want[ed] his family to heal,” demonstrated his “affection” for his son, and showed that he was acting in his son’s best interest. (Id.) None of those facts are present here. And, in fact, Billur’s behavior has only gotten worse, with Billur making up lies about Yasemin as part of this lawsuit. (See Yasemin Aff. at ¶ 6.) Billur is also beholden to Berrin while simultaneously owing Gonca a fiduciary duty, both of whose interests are diametrically opposed to Yasemin’s – as this Court has noted, these interests are “no longer in any way rowing in the same direction,” making it impossible for Billur to loyally serve. (NYSCEF Doc. 426 at 33:6-9.) Second, Yasemin is not arguing that removal is proper simply because Billur “refuse[d] to make a distribution” or “disagreed” with Yasemin. (NYSCEF Doc. 569 at 19-20.) Rather, removal is proper based on Billur’s pattern of activity that is directly adverse to Yasemin and her interests. And while Billur claims otherwise (for the first time) in this motion, she already admitted that she: 1) did not “consult” with anyone about Yasemin’s request for a distribution; 2) did not determine her legal obligations to Yasemin; and, indeed, 3) did not even “consider” Yasemin’s request or needs – all because Yasemin had filed this lawsuit. (See NYSCEF Doc. 442 at Facts.) Instead, Billur used her power to push for Yasemin’s firing, participated in the coercion of Zeynep 10 15 of 19 FILED: NEW YORK COUNTY CLERK 06/29/2022 09:01 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 604 RECEIVED NYSCEF: 06/29/2022 to achieve this end, sought to ensure that Yasemin had no funds to pay for this case, and filed a retaliatory counterclaim, seeking to evict Yasemin from her home – all to advance her own (and Berrin’s, and Gonca’s) self-interests. This goes well beyond a “mere disagreement” or “lack of confidence.” (See, e.g., Smith v Biggs Boiler Works Co., 91 A2d 193, 199 [Del. Ch. 1952] ; du Pont, 2017 Del. Ch. LEXIS 768 at*8.) 8 VII. THERE IS SUFFICIENT LEGAL BASIS FOR THIS COURT TO APPOINT AN INDEPENDENT MEMBER OF THE TRUST COMMITTEE Finally, Defendants are wrong that there “is no law permitting the Court to appoint a replacement fiduciary ifone is removed.” (NYSCEF Doc. 569.) Indeed, Defendants admit as much, later admitting that this Court has the “residual authority [over] appointment of trustees.” (Id. (citing McNeil v. McNeil, 798 A.2d 503, 513 [Del. 2002].) Defendants are correct that, where the trust documents provide for a mechanism of replacement, the Court should only use this authority in “rare circumstances” – but this is one of those “rare circumstances” where it is imperative that the Court do so. (McNeil, 798 A.2d at 514.) For example, appointment of a successor by the Court (even when the trust provides for a mechanism of replacement) is appropriate where, as here, following the trust agreement “would frustrate the purpose of the trust or be detrimental to the interests of the beneficiaries.” (Id. (citing Matter of Guardianship of Brown, 436 N.E.2d 877, 889 [Ind. App. 1982]).) Here, the Trust Agreement provides that Berrin is permitted to appoint members to the Trust Committee. 8 What Defendants continue to ignore , and what case law makes plain, is that while certain actions (e.g., refusing a distribution or refusing to communicate with Yasemin) may not be sufficient on their own to remove Billur as trustee, when viewed in conjunction with other hostile actions and Billur’s conflicts of interest, these actions are more than sufficient to find that Billur simply cannot continue as the sole member of Yasemin’s Trust Committee. She simply cannot be the only person in charge of Yasemin’s Trust. (See, e.g., Gans, 1991 Del. Ch. LEXIS 110, at *14-15 (ordering appointment of “an impartial trustee” because the “totality of the circumstances [e.g., conflict of interest combined with hostilities] clearly compels [the Trustees’] removal”). 11 16 of 19 FILED: NEW YORK COUNTY