Preview
FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022
1
1 SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK - CIVIL TERM: PART 3
2 --------------------------------------------X
YASEMIN TEKINER,
3
in her individual capacity, as a
4 beneficiary and a Trustee of the
Yasemin Tekiner 2011 Descendants
5 Trust and derivatively as a holder INDEX NO.
of equitable interests in a 657193/2020
6 shareholder or a member of the
Company Defendants,
7
Plaintiff.
8
-against-
9
BREMEN HOUSE INC., BREMEN HOUSE TEXAS,
10 INC., GERMAN NEWS COMPANY, INC., GERMAN
NEWS TEXAS, INC., 254-258 W. 35TH ST. LLC,
11 BERRIN TEKINER, GONCA TEKINER, and
BILLUR AKIPECK, in her capacity as a
12 Trustee of The Yasemin Tekiner 2011
Descendants Trust
13
Defendants.
14 --------------------------------------------X
ZEYNEP TEKINER,
15
in her individual capacity, as a
16 beneficiary and a Trustee of the
Zeynep Tekiner 2011 Descendants Trust
17 and derivatively as a holder of
equitable interests in a shareholder
18 or a member of the Company Defendants,
19 Intervenor-Plaintiff,
20 -against-
21 BREMEN HOUSE INC., BREMEN HOUSE TEXAS,
INC., GERMAN NEWS COMPANY, INC., GERMAN
22 NEWS TEXAS, INC., 254-258 W. 35TH ST. LLC,
BERRIN TEKINER, GONCA TEKINER, and
23 BILLUR AKIPECK, in her capacity as a
Trustee of The Yasemin Tekiner 2011
24 Descendants Trust,
25 Defendants.
--------------------------------------------X
William Cardenuto, CSR, Official Court Reporter
1 of 92
FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022
2
1
60 Centre Street - Room 208
2 New York, New York
August 15, 2022
3
B E F O R E:
4
THE HONORABLE JOEL M. COHEN, Justice
5
6 A P P E A R A N C E S:
7 PARKER, IBRAHIM & BERG LLC
Attorneys for Plaintiff Yasemin Tekiner
8 270 Davidson Avenue - Suite 600
Somerset, New Jersey 08873
9 BY: SCOTT PARKER, ESQ.
BY: SANJAY IBRAHIM, ESQ.
10
11 KAHN & GOLDBERG LLP
Attorneys for Plaintiff Zeynep Tekiner
12 555 Fifth Avenue - 11th Floor
New York, New York 10017
13 BY: MICHELE KAHN, ESQ.
14
FOLEY HOAG LLP (Appearing virtually)
15 Attorneys for the Plaintiffs
1301 Avenue of the Americas - 25th Floor
16 New York, New York 10019
BY: STEPHEN P. YOUNGER, ESQ.
17
18
PRYOR CASHMAN LLP
19 Attorneys for the Defendants
7 Times Square
20 New York, New York 10036
BY: TODD E. SOLOWAY, ESQ.
21 BY: MEGHAN E. HILL, ESQ.
BY: BRYAN T. MOHLER, ESQ.
22
23
William Cardenuto
24 Senior Court Reporter
25
William Cardenuto, CSR, Official Court Reporter
2 of 92
FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022
3
- Proceedings -
1 THE COURT: Good morning, everyone. Let's start
2 with appearances beginning with the Plaintiffs.
3 MR. IBRAHIM: Good morning, your Honor.
4 THE COURT: We have to turn the mics on whenever
5 we're talking. Otherwise, Mr. Younger won't hear us.
6 MR. IBRAHIM: Good morning. Sanjay Ibrahim from
7 Parker, Ibrahim, and Berg, on behalf of the Plaintiff,
8 Yasemin Tekiner.
9 MR. PARKER: Good morning, your Honor. Scott
10 Parker also from Parker, Ibrahim, and Berg.
11 MS. KAHN: Good morning, your Honor. Michelle
12 Kahn -- I'm sorry, Stephen. Go ahead.
13 MR. YOUNGER: Stephen Younger from Foley Hoag on
14 behalf of Plaintiffs as well.
15 MS. KAHN: Good morning, again, your Honor.
16 Michelle Kahn, Kahn and Goldberg for Plaintiff Zeynep
17 Tekiner.
18 MR. SOLOWAY: Good morning, your Honor. Todd
19 Soloway.
20 THE COURT: Is that on?
21 MR. SOLOWAY: Good morning, your Honor. Todd
22 Soloway with my colleagues, Brian Mohler and Meghan Hill,
23 for the Defendants who I have here, your Honor. I have
24 Berrin Tekiner; Gonca Tekiner is in the back as well;
25 Billur Akipeck is next to her as well as their spouses
William Cardenuto, CSR, Official Court Reporter
3 of 92
FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022
4
- Proceedings -
1 David and Gurer.
2 THE COURT: Good morning, everyone. We have a
3 lot to get through today. I saw some correspondence about
4 adjourning the oldest of the motions, Motion 21, for
5 contempt which I am not going to do. I think the papers
6 are pretty straight forward, but if the Plaintiff wants to
7 restate it briefly and then we can move on.
8 MR. PARKER: One second, your Honor.
9 THE COURT: We're going to have to be
10 extraordinarily efficient today. We have a lot to do.
11 That microphone doesn't sound like it's on either. To
12 make things more complicated, if you can turn off the desk
13 mics as well. That will help.
14 MR. PARKER: Your Honor, I'll keep this
15 extremely brief. With respect to the contempt motion,
16 we've met all the four elements that are required for the
17 motion. We have been negotiating with Defendants' counsel
18 with respect to trying to resolve the issues that have
19 been raised in the contempt motion which is why we were
20 seeking to adjourn it. We had an agreement where they
21 were to going to produce certain documents, where they
22 would start involving our client with company affairs, and
23 where they would hold a special meeting pursuant to the
24 by-laws, that that agreement continues to go on, but in
25 the meanwhile, we would suggest that for all the reasons
William Cardenuto, CSR, Official Court Reporter
4 of 92
FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022
5
- Proceedings -
1 in our papers contempt is appropriate, because the primary
2 issue that they raised in opposition in a letter to your
3 Honor last night is we're producing the documents, and
4 it's black letter law that you can't cure your contempt
5 after the contempt has occurred. While we are hopeful
6 that we may be able to resolve it, which is again why we
7 sought to adjourn, it doesn't matter for purposes of the
8 contempt motion. They are in contempt.
9 THE COURT: What's the particular parts of the
10 order with specificity?
11 MR. PARKER: She was reinstated as an officer
12 and director, your Honor. I believe your Honor made it
13 clear at the hearing on April 18th that she was to be
14 fully instated in her positions, and the company was to
15 resume its normal business practices, and up to the point
16 we filed the motion, Defendants have not done that. They
17 have not involved Yasemin in any meetings. They have
18 not --
19 THE COURT: Just remind me. What are the words
20 of the actual written order?
21 MR. PARKER: I don't have the order in front of
22 me, your Honor.
23 THE COURT: Okay. But --
24 MR. PARKER: Yes. And none of those things --
25 THE COURT: The thrust was that she be
William Cardenuto, CSR, Official Court Reporter
5 of 92
FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022
6
- Proceedings -
1 reinstated as an officer and director.
2 MR. PARKER: Exactly right, your Honor, and be
3 able to participate and have a say. I think your Honor
4 particularly said she's going to have a say on how this
5 business is run.
6 THE COURT: I understand various things I say
7 during hearings which add color, perhaps, but this is a
8 contempt motion. The question is what does the order say?
9 MR. PARKER: Yes, your Honor. Understood.
10 THE COURT: Let me hear from the defense.
11 MR. SOLOWAY: Twofold, your Honor. Do you want
12 me to go there?
13 THE COURT: It's easier for me and the
14 reporter.
15 MR. SOLOWAY: Sure. Good morning, your Honor.
16 Thank you. Todd Soloway from Pryor Cashman. Just
17 briefly. I know there's a lot to go through today. Your
18 Honor's question suggests something very important about a
19 contempt motion. It has to be a very clear and concise
20 order and failure to comply with the clear and concise
21 language of the order. There's no disputing that your
22 Honor ordered her to be reinstated. She was reinstated.
23 In fact, she was reinstated to the point where she can now
24 make all the demands that she's making for information.
25 There was a lot of back and forth prior to our coming into
William Cardenuto, CSR, Official Court Reporter
6 of 92
FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022
7
- Proceedings -
1 the case about whether this was just disguised as
2 discovery. I would submit to you, your Honor, that the
3 items that they listed as the bases for the contempt are
4 actually nothing more than an attempt to use this contempt
5 as a cudgel to gather information that they wouldn't
6 otherwise be entitled to, but which we agreed to give
7 them, because I would submit, your Honor, you're going to
8 see from us here that this is a big nothing in terms of
9 the information and what they are claiming has happened
10 here, and we're happy to provide it. So we've been
11 providing information. They listed that we're not
12 permitted to call a special meeting. We've agreed to have
13 a special meeting, and what we said is that we'll do that,
14 but you're going to have to give us the questions two
15 weeks in advance. I don't want to show up in a meeting
16 where it's going to evolve. I could see what would happen
17 in that kind of impromptu meeting. They said we are not
18 allowed to review the companies' books and records. We
19 provided two rounds of information to them already. This
20 is the first time I've been in court for two and a half
21 years. Excuse my excitement. They have been given two
22 rounds of books and records. The first round they
23 complained that it was duplicative of documents that had
24 been produced, but we were at a disadvantage, because we
25 had yet to obtain the library information from the Norton
William Cardenuto, CSR, Official Court Reporter
7 of 92
FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022
8
- Proceedings -
1 Rose firm. It showed two things. No. 1, we were
2 providing information. No. 2, it was duplicative of
3 discovery. No. 3, no one doubts that those were the books
4 and records. No. 4, we've also provided further books and
5 records, and we're continuing to do that, and then they
6 said they're prohibited from communicating directly with
7 Billur. That has proven to be incorrect. They've emailed
8 her directly asking questions about what's happening, if
9 anything is happening. Quite frankly, your Honor, the
10 only thing that is really happening with this company,
11 other than the sale of the property up in Bronxville,
12 which we will report to them as things develop that are
13 material and necessary for them to know, is this
14 litigation. So I would submit, your Honor, the order was
15 her reinstatment. She was reinstated. No one is
16 disputing that. The law on contempt is that it has to be
17 a clear order and a clear violation of the clear order.
18 To your Honor's question from before, there was color to
19 those things, and we certainly are not looking to
20 undermine the basis for the order, and that's why the
21 information is being provided, and I would just simply
22 submit, your Honor, there was never contempt in the first
23 place, and the contempt motion is being used as an effort
24 to try to gather information which we're happy to give,
25 because they are going to get that in discovery anyway.
William Cardenuto, CSR, Official Court Reporter
8 of 92
FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022
9
- Proceedings -
1 THE COURT: I'm not going to go into what the
2 rationale for the motion was. This case has been
3 characterized by, I would say, an over exuberance of
4 motion practice. This motion is denied. The substance of
5 this motion is not really a contempt motion. At least it
6 seems to me that the order was complied with by
7 reinstating the Plaintiff as director and officer, and to
8 the extent that Defendants have engaged in actions that
9 encroach on Plaintiff's right as a director going forward
10 or from her instatement, then that's a question of whether
11 they violated the by-laws or other applicable corporate
12 law, not anything in my order. My order was not a
13 regulatory order setting forth exactly how things should
14 go. No one should take this as me blessing whatever has
15 gone on, but this is not a contempt situation. It can't
16 be the situation that anytime an action is taken the
17 Plaintiffs -- that affects Plaintiff's role as a director
18 is a continuing violation of the order reinstating her. I
19 understand the point of it. Part of this was probably
20 about discovery. Part of this was probably about
21 educating me as to what is going on, and part of it, no
22 doubt, was just about torturing the other side which seems
23 to me to be one of the common themes among the motions
24 going on today, but in any event, the motion is denied.
25 To the extent more color is necessary, any conduct such as
William Cardenuto, CSR, Official Court Reporter
9 of 92
FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022
10
- Proceedings -
1 locking people out of the office or other nonsense like
2 that is going to be extremely counterproductive. Perhaps,
3 with new counsel in place maybe there's a new day going
4 on, but none of what I read made me terribly enthusiastic
5 about how Ms. Tekiner was welcomed back to the company,
6 but it's not contempt; so that motion is denied.
7 Let's move on to No. 22 which is the first of
8 two discovery motions, I believe. This is the Yasemin
9 Tekiner's motion to compel and a cross motion for a
10 protective order and where I see I've been given the
11 opportunity to review almost 10,000 documents in camera
12 which I'm looking forward to. Who wants to go first?
13 MR. PARKER: So, your Honor, this is our
14 client's motion for the production of documents that are
15 subject to the fiduciary exception to the attorney/client
16 privilege.
17 THE COURT: I want -- I've read the papers. I
18 want to get a sense for what, maybe you don't know, what
19 these documents are, because in viewing all of these
20 exceptions and the like, you know, documents that may be
21 privileged that relate to the business of the company,
22 real estate closings and the like, that seems to me to be
23 a fairly easy category. Documents where they are
24 discussing the claims brought by your client, maybe that's
25 at the other extreme where the adversity exception to the
William Cardenuto, CSR, Official Court Reporter
10 of 92
FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022
11
- Proceedings -
1 exception might apply, but what -- I mean, I know there's
2 this whole color coded thing, and it's very hard for me to
3 get through all of this just with myself and Ms. Klinger
4 over here; so why don't you just give me the categories a
5 little more clearly.
6 MR. PARKER: Sure, your Honor. Well, part of
7 the problem, of course, is we can't -- other than the
8 description that we have been provided, we can't tell what
9 these documents are, but based upon the descriptions that
10 we've seen, it all seems to relate to issues, such as,
11 finance, accounting, asset management, management of the
12 trust. I mean --
13 THE COURT: So that is another question I had.
14 MR. PARKER: Yes.
15 THE COURT: Are these documents that are
16 privileged in connection with the trust or the company or
17 both?
18 MR. PARKER: It could be both. Again, it can't
19 be determined which is, again, why we go back to the in
20 camera request, but that's why we think the fiduciary
21 exception applies, because Yasemin is actually the client.
22 She's the beneficiary. The fiduciaries are Berrin and
23 Billur. So that's why the fiduciary exception exists.
24 THE COURT: Except in so far as it's about the
25 dispute. I agree with you. I have read through all of
William Cardenuto, CSR, Official Court Reporter
11 of 92
FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022
12
- Proceedings -
1 those cases, and you know, the exception to the fiduciary
2 rule, which only applies in certain circumstances to begin
3 with, is if there's a dispute with the fiduciary, and the
4 fiduciary is seeking counsel to try to figure out what his
5 or her obligations are, and there you can see why that --
6 in that adversarial context that might be privileged, but
7 it seems to me those should be relatively straight forward
8 to identify. That's the ones that I find most compelling
9 in terms of withholding them is, obviously, been, you
10 know, some very specific legal disputes among these
11 parties, and communications about that I think I have
12 indicated periodically could be protected, but the rest of
13 it I just don't get.
14 MR. PARKER: You don't get in terms --
15 THE COURT: I'm going to be curious to see what
16 the Defendants' argument for privilege is insofar as it
17 relates to a person who is a director of a corporation
18 with respect to corporate matters and insofar as it's a
19 little less obvious to me if it's about things that the
20 trustee is doing for the beneficiary transaction or
21 whatever, that would seem also not to be secret from the
22 beneficiary, and it seems to me just putting them into
23 those two piles, in my opinion, is the main thing, is what
24 relates to this litigation and surrounding disputes and
25 what does not.
William Cardenuto, CSR, Official Court Reporter
12 of 92
FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022
13
- Proceedings -
1 MR. PARKER: And as we noted, your Honor, you
2 know, we don't believe that the adversarial exception
3 would apply to anything prior to the lawsuit actually
4 being filed. We understand that -- we understand that
5 Defendants' position is that, perhaps, for a period where
6 Yasemin was terminated and then reinstated it might, but
Preview
FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022 1 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - CIVIL TERM: PART 3 2 --------------------------------------------X YASEMIN TEKINER, 3 in her individual capacity, as a 4 beneficiary and a Trustee of the Yasemin Tekiner 2011 Descendants 5 Trust and derivatively as a holder INDEX NO. of equitable interests in a 657193/2020 6 shareholder or a member of the Company Defendants, 7 Plaintiff. 8 -against- 9 BREMEN HOUSE INC., BREMEN HOUSE TEXAS, 10 INC., GERMAN NEWS COMPANY, INC., GERMAN NEWS TEXAS, INC., 254-258 W. 35TH ST. LLC, 11 BERRIN TEKINER, GONCA TEKINER, and BILLUR AKIPECK, in her capacity as a 12 Trustee of The Yasemin Tekiner 2011 Descendants Trust 13 Defendants. 14 --------------------------------------------X ZEYNEP TEKINER, 15 in her individual capacity, as a 16 beneficiary and a Trustee of the Zeynep Tekiner 2011 Descendants Trust 17 and derivatively as a holder of equitable interests in a shareholder 18 or a member of the Company Defendants, 19 Intervenor-Plaintiff, 20 -against- 21 BREMEN HOUSE INC., BREMEN HOUSE TEXAS, INC., GERMAN NEWS COMPANY, INC., GERMAN 22 NEWS TEXAS, INC., 254-258 W. 35TH ST. LLC, BERRIN TEKINER, GONCA TEKINER, and 23 BILLUR AKIPECK, in her capacity as a Trustee of The Yasemin Tekiner 2011 24 Descendants Trust, 25 Defendants. --------------------------------------------X William Cardenuto, CSR, Official Court Reporter 1 of 92 FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022 2 1 60 Centre Street - Room 208 2 New York, New York August 15, 2022 3 B E F O R E: 4 THE HONORABLE JOEL M. COHEN, Justice 5 6 A P P E A R A N C E S: 7 PARKER, IBRAHIM & BERG LLC Attorneys for Plaintiff Yasemin Tekiner 8 270 Davidson Avenue - Suite 600 Somerset, New Jersey 08873 9 BY: SCOTT PARKER, ESQ. BY: SANJAY IBRAHIM, ESQ. 10 11 KAHN & GOLDBERG LLP Attorneys for Plaintiff Zeynep Tekiner 12 555 Fifth Avenue - 11th Floor New York, New York 10017 13 BY: MICHELE KAHN, ESQ. 14 FOLEY HOAG LLP (Appearing virtually) 15 Attorneys for the Plaintiffs 1301 Avenue of the Americas - 25th Floor 16 New York, New York 10019 BY: STEPHEN P. YOUNGER, ESQ. 17 18 PRYOR CASHMAN LLP 19 Attorneys for the Defendants 7 Times Square 20 New York, New York 10036 BY: TODD E. SOLOWAY, ESQ. 21 BY: MEGHAN E. HILL, ESQ. BY: BRYAN T. MOHLER, ESQ. 22 23 William Cardenuto 24 Senior Court Reporter 25 William Cardenuto, CSR, Official Court Reporter 2 of 92 FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022 3 - Proceedings - 1 THE COURT: Good morning, everyone. Let's start 2 with appearances beginning with the Plaintiffs. 3 MR. IBRAHIM: Good morning, your Honor. 4 THE COURT: We have to turn the mics on whenever 5 we're talking. Otherwise, Mr. Younger won't hear us. 6 MR. IBRAHIM: Good morning. Sanjay Ibrahim from 7 Parker, Ibrahim, and Berg, on behalf of the Plaintiff, 8 Yasemin Tekiner. 9 MR. PARKER: Good morning, your Honor. Scott 10 Parker also from Parker, Ibrahim, and Berg. 11 MS. KAHN: Good morning, your Honor. Michelle 12 Kahn -- I'm sorry, Stephen. Go ahead. 13 MR. YOUNGER: Stephen Younger from Foley Hoag on 14 behalf of Plaintiffs as well. 15 MS. KAHN: Good morning, again, your Honor. 16 Michelle Kahn, Kahn and Goldberg for Plaintiff Zeynep 17 Tekiner. 18 MR. SOLOWAY: Good morning, your Honor. Todd 19 Soloway. 20 THE COURT: Is that on? 21 MR. SOLOWAY: Good morning, your Honor. Todd 22 Soloway with my colleagues, Brian Mohler and Meghan Hill, 23 for the Defendants who I have here, your Honor. I have 24 Berrin Tekiner; Gonca Tekiner is in the back as well; 25 Billur Akipeck is next to her as well as their spouses William Cardenuto, CSR, Official Court Reporter 3 of 92 FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022 4 - Proceedings - 1 David and Gurer. 2 THE COURT: Good morning, everyone. We have a 3 lot to get through today. I saw some correspondence about 4 adjourning the oldest of the motions, Motion 21, for 5 contempt which I am not going to do. I think the papers 6 are pretty straight forward, but if the Plaintiff wants to 7 restate it briefly and then we can move on. 8 MR. PARKER: One second, your Honor. 9 THE COURT: We're going to have to be 10 extraordinarily efficient today. We have a lot to do. 11 That microphone doesn't sound like it's on either. To 12 make things more complicated, if you can turn off the desk 13 mics as well. That will help. 14 MR. PARKER: Your Honor, I'll keep this 15 extremely brief. With respect to the contempt motion, 16 we've met all the four elements that are required for the 17 motion. We have been negotiating with Defendants' counsel 18 with respect to trying to resolve the issues that have 19 been raised in the contempt motion which is why we were 20 seeking to adjourn it. We had an agreement where they 21 were to going to produce certain documents, where they 22 would start involving our client with company affairs, and 23 where they would hold a special meeting pursuant to the 24 by-laws, that that agreement continues to go on, but in 25 the meanwhile, we would suggest that for all the reasons William Cardenuto, CSR, Official Court Reporter 4 of 92 FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022 5 - Proceedings - 1 in our papers contempt is appropriate, because the primary 2 issue that they raised in opposition in a letter to your 3 Honor last night is we're producing the documents, and 4 it's black letter law that you can't cure your contempt 5 after the contempt has occurred. While we are hopeful 6 that we may be able to resolve it, which is again why we 7 sought to adjourn, it doesn't matter for purposes of the 8 contempt motion. They are in contempt. 9 THE COURT: What's the particular parts of the 10 order with specificity? 11 MR. PARKER: She was reinstated as an officer 12 and director, your Honor. I believe your Honor made it 13 clear at the hearing on April 18th that she was to be 14 fully instated in her positions, and the company was to 15 resume its normal business practices, and up to the point 16 we filed the motion, Defendants have not done that. They 17 have not involved Yasemin in any meetings. They have 18 not -- 19 THE COURT: Just remind me. What are the words 20 of the actual written order? 21 MR. PARKER: I don't have the order in front of 22 me, your Honor. 23 THE COURT: Okay. But -- 24 MR. PARKER: Yes. And none of those things -- 25 THE COURT: The thrust was that she be William Cardenuto, CSR, Official Court Reporter 5 of 92 FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022 6 - Proceedings - 1 reinstated as an officer and director. 2 MR. PARKER: Exactly right, your Honor, and be 3 able to participate and have a say. I think your Honor 4 particularly said she's going to have a say on how this 5 business is run. 6 THE COURT: I understand various things I say 7 during hearings which add color, perhaps, but this is a 8 contempt motion. The question is what does the order say? 9 MR. PARKER: Yes, your Honor. Understood. 10 THE COURT: Let me hear from the defense. 11 MR. SOLOWAY: Twofold, your Honor. Do you want 12 me to go there? 13 THE COURT: It's easier for me and the 14 reporter. 15 MR. SOLOWAY: Sure. Good morning, your Honor. 16 Thank you. Todd Soloway from Pryor Cashman. Just 17 briefly. I know there's a lot to go through today. Your 18 Honor's question suggests something very important about a 19 contempt motion. It has to be a very clear and concise 20 order and failure to comply with the clear and concise 21 language of the order. There's no disputing that your 22 Honor ordered her to be reinstated. She was reinstated. 23 In fact, she was reinstated to the point where she can now 24 make all the demands that she's making for information. 25 There was a lot of back and forth prior to our coming into William Cardenuto, CSR, Official Court Reporter 6 of 92 FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022 7 - Proceedings - 1 the case about whether this was just disguised as 2 discovery. I would submit to you, your Honor, that the 3 items that they listed as the bases for the contempt are 4 actually nothing more than an attempt to use this contempt 5 as a cudgel to gather information that they wouldn't 6 otherwise be entitled to, but which we agreed to give 7 them, because I would submit, your Honor, you're going to 8 see from us here that this is a big nothing in terms of 9 the information and what they are claiming has happened 10 here, and we're happy to provide it. So we've been 11 providing information. They listed that we're not 12 permitted to call a special meeting. We've agreed to have 13 a special meeting, and what we said is that we'll do that, 14 but you're going to have to give us the questions two 15 weeks in advance. I don't want to show up in a meeting 16 where it's going to evolve. I could see what would happen 17 in that kind of impromptu meeting. They said we are not 18 allowed to review the companies' books and records. We 19 provided two rounds of information to them already. This 20 is the first time I've been in court for two and a half 21 years. Excuse my excitement. They have been given two 22 rounds of books and records. The first round they 23 complained that it was duplicative of documents that had 24 been produced, but we were at a disadvantage, because we 25 had yet to obtain the library information from the Norton William Cardenuto, CSR, Official Court Reporter 7 of 92 FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022 8 - Proceedings - 1 Rose firm. It showed two things. No. 1, we were 2 providing information. No. 2, it was duplicative of 3 discovery. No. 3, no one doubts that those were the books 4 and records. No. 4, we've also provided further books and 5 records, and we're continuing to do that, and then they 6 said they're prohibited from communicating directly with 7 Billur. That has proven to be incorrect. They've emailed 8 her directly asking questions about what's happening, if 9 anything is happening. Quite frankly, your Honor, the 10 only thing that is really happening with this company, 11 other than the sale of the property up in Bronxville, 12 which we will report to them as things develop that are 13 material and necessary for them to know, is this 14 litigation. So I would submit, your Honor, the order was 15 her reinstatment. She was reinstated. No one is 16 disputing that. The law on contempt is that it has to be 17 a clear order and a clear violation of the clear order. 18 To your Honor's question from before, there was color to 19 those things, and we certainly are not looking to 20 undermine the basis for the order, and that's why the 21 information is being provided, and I would just simply 22 submit, your Honor, there was never contempt in the first 23 place, and the contempt motion is being used as an effort 24 to try to gather information which we're happy to give, 25 because they are going to get that in discovery anyway. William Cardenuto, CSR, Official Court Reporter 8 of 92 FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022 9 - Proceedings - 1 THE COURT: I'm not going to go into what the 2 rationale for the motion was. This case has been 3 characterized by, I would say, an over exuberance of 4 motion practice. This motion is denied. The substance of 5 this motion is not really a contempt motion. At least it 6 seems to me that the order was complied with by 7 reinstating the Plaintiff as director and officer, and to 8 the extent that Defendants have engaged in actions that 9 encroach on Plaintiff's right as a director going forward 10 or from her instatement, then that's a question of whether 11 they violated the by-laws or other applicable corporate 12 law, not anything in my order. My order was not a 13 regulatory order setting forth exactly how things should 14 go. No one should take this as me blessing whatever has 15 gone on, but this is not a contempt situation. It can't 16 be the situation that anytime an action is taken the 17 Plaintiffs -- that affects Plaintiff's role as a director 18 is a continuing violation of the order reinstating her. I 19 understand the point of it. Part of this was probably 20 about discovery. Part of this was probably about 21 educating me as to what is going on, and part of it, no 22 doubt, was just about torturing the other side which seems 23 to me to be one of the common themes among the motions 24 going on today, but in any event, the motion is denied. 25 To the extent more color is necessary, any conduct such as William Cardenuto, CSR, Official Court Reporter 9 of 92 FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022 10 - Proceedings - 1 locking people out of the office or other nonsense like 2 that is going to be extremely counterproductive. Perhaps, 3 with new counsel in place maybe there's a new day going 4 on, but none of what I read made me terribly enthusiastic 5 about how Ms. Tekiner was welcomed back to the company, 6 but it's not contempt; so that motion is denied. 7 Let's move on to No. 22 which is the first of 8 two discovery motions, I believe. This is the Yasemin 9 Tekiner's motion to compel and a cross motion for a 10 protective order and where I see I've been given the 11 opportunity to review almost 10,000 documents in camera 12 which I'm looking forward to. Who wants to go first? 13 MR. PARKER: So, your Honor, this is our 14 client's motion for the production of documents that are 15 subject to the fiduciary exception to the attorney/client 16 privilege. 17 THE COURT: I want -- I've read the papers. I 18 want to get a sense for what, maybe you don't know, what 19 these documents are, because in viewing all of these 20 exceptions and the like, you know, documents that may be 21 privileged that relate to the business of the company, 22 real estate closings and the like, that seems to me to be 23 a fairly easy category. Documents where they are 24 discussing the claims brought by your client, maybe that's 25 at the other extreme where the adversity exception to the William Cardenuto, CSR, Official Court Reporter 10 of 92 FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022 11 - Proceedings - 1 exception might apply, but what -- I mean, I know there's 2 this whole color coded thing, and it's very hard for me to 3 get through all of this just with myself and Ms. Klinger 4 over here; so why don't you just give me the categories a 5 little more clearly. 6 MR. PARKER: Sure, your Honor. Well, part of 7 the problem, of course, is we can't -- other than the 8 description that we have been provided, we can't tell what 9 these documents are, but based upon the descriptions that 10 we've seen, it all seems to relate to issues, such as, 11 finance, accounting, asset management, management of the 12 trust. I mean -- 13 THE COURT: So that is another question I had. 14 MR. PARKER: Yes. 15 THE COURT: Are these documents that are 16 privileged in connection with the trust or the company or 17 both? 18 MR. PARKER: It could be both. Again, it can't 19 be determined which is, again, why we go back to the in 20 camera request, but that's why we think the fiduciary 21 exception applies, because Yasemin is actually the client. 22 She's the beneficiary. The fiduciaries are Berrin and 23 Billur. So that's why the fiduciary exception exists. 24 THE COURT: Except in so far as it's about the 25 dispute. I agree with you. I have read through all of William Cardenuto, CSR, Official Court Reporter 11 of 92 FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022 12 - Proceedings - 1 those cases, and you know, the exception to the fiduciary 2 rule, which only applies in certain circumstances to begin 3 with, is if there's a dispute with the fiduciary, and the 4 fiduciary is seeking counsel to try to figure out what his 5 or her obligations are, and there you can see why that -- 6 in that adversarial context that might be privileged, but 7 it seems to me those should be relatively straight forward 8 to identify. That's the ones that I find most compelling 9 in terms of withholding them is, obviously, been, you 10 know, some very specific legal disputes among these 11 parties, and communications about that I think I have 12 indicated periodically could be protected, but the rest of 13 it I just don't get. 14 MR. PARKER: You don't get in terms -- 15 THE COURT: I'm going to be curious to see what 16 the Defendants' argument for privilege is insofar as it 17 relates to a person who is a director of a corporation 18 with respect to corporate matters and insofar as it's a 19 little less obvious to me if it's about things that the 20 trustee is doing for the beneficiary transaction or 21 whatever, that would seem also not to be secret from the 22 beneficiary, and it seems to me just putting them into 23 those two piles, in my opinion, is the main thing, is what 24 relates to this litigation and surrounding disputes and 25 what does not. William Cardenuto, CSR, Official Court Reporter 12 of 92 FILED: NEW YORK COUNTY CLERK 08/18/2022 09:07 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 685 RECEIVED NYSCEF: 08/18/2022 13 - Proceedings - 1 MR. PARKER: And as we noted, your Honor, you 2 know, we don't believe that the adversarial exception 3 would apply to anything prior to the lawsuit actually 4 being filed. We understand that -- we understand that 5 Defendants' position is that, perhaps, for a period where 6 Yasemin was terminated and then reinstated it might, but