Preview
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
YASEMIN TEKINER,
in her individual capacity, as a beneficiary
and a Trustee of The Yasemin Tekiner
2011 Descendants Trust and derivatively as Index No.: 657193/2020
a holder of equitable interests in a
shareholder or a member of the Company
Defendants, Motion Sequence No. ___
Plaintiff,
-against-
BREMEN HOUSE INC., GERMAN NEWS
COMPANY, INC., BERRIN TEKINER, GONCA
TEKINER, and BILLUR AKIPEK, in her capacity
as a Trustee of The Yasemin Tekiner 2011
Descendants Trust,
Defendants.
ZEYNEP TEKINER,
in her individual capacity, as a beneficiary
and a Trustee of The Zeynep Tekiner 2011
Descendants Trust and derivatively as a
holder of equitable interests in a
shareholder or a member of the Company
Defendants,
Intervenor-Plaintiff,
-against-
BREMEN HOUSE INC., GERMAN NEWS
COMPANY, INC., BERRIN TEKINER, GONCA
TEKINER, and BILLUR AKIPEK, in her capacity
as a Trustee of The Zeynep Tekiner 2011
Descendants Trust,
Defendants.
1 of 23
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022
ZEYNEP TEKINER’S MEMORANDUM OF LAW IN SUPPORT
OF HER ORDER TO SHOW CAUSE MOTION FOR AN ORDER
DIRECTING DEFENDANTS TO FOLLOW THE DIRECTIONS OF
ZEYNEP TEKINER AS THE SOLE MEMBER OF THE TRUST
COMMITTEE OF THE ZEYNEP TEKINER 2011 DESCENDANTS TRUST
KAHN & GOLDBERG, LLP
Michele Kahn, Esq.
Attorneys for Co-Plaintiff
Zeynep Tekiner
555 Fifth Avenue, 14th Floor
New York, New York 10017
(212) 687-5066
mk@kahngoldberg.com
2 of 23
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022
TABLE OF CONTENTS
I. PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . 1
II. FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3
A. Defendants’ Various Misrepresentations and Ongoing
Destruction of the Companies . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . .. . . 3
B. Christiana Trust Rejects Zeynep’s Withdrawal
of Her Consent to Indemnify Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
..4
C. This Court Removes Billur as Trustee of Zeynep’s and Yasemin’s Trusts ..... ... 5
D. As the Sole Member of the Trust Committee of
Her Trust, Zeynep Has Full Authority to Exercise Its Powers . . . . . . . . . . . . . . . . . . . 6
E. Zeynep Sends Multiple Directions and Requests to Defendants
and Christiana Trust, Who Refuse to Comply with Any of Them . . . . . . . . . . .. . . .
7
III. LEGAL ARGUMENT
A. This Court Should Issue an Order – In Furtherance of Its Prior Order Removing
Billur as the Trustee for Zeynep’s Trust – Directing Defendants to Follow the
Instructions of Zeynep, as the Sole Member of the Trust Committee of Her Trust. . 10
1. Delaware Law and the Terms of the Trust Require
Defendants to Follow the Directions of the Sole
Trust Committee Member of the Zeynep Trust . . . . . . . . . . . . . . . . . . . . . . 10
2. Article NINTH (D)(2) and (3) Do Not Preclude
Zeynep from Exercising the Power of the Trust Committee . . . . . . . . . . . . . . 12
3. Article TWENTY-FIRST (B) Makes Plain That
the Trust Committee Continues to Act Even If Its Only
Member or Members Are Not “Independent Member(s)” . . . . . . . . ....... 13
4. Numerous Specific Provisions of the Trust Make
Plain That the Trust Committee Continues to Act Even If
Its Sole Member or Members Are Not “Independent” . . . . . . . . . . . . . . . . . 14
B. Berrin’s Blatant Refusal to Follow the Court’s
Trustee Removal Order Does Not Affect Zeynep’s Power
to Exercise All the Powers of Her Trust Committee . . . . . . . . . . . . . . . . . . . . . . . . . . 17
IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
18
iii
3 of 23
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022
TABLE OF AUTHORITIES
The Samuel J. Heyman 1981 Continuing Tr. for Lazarus S. Heyman v. Ashland LLC,
2022 Del. LEXIS 277 (De. 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
In re Peierls Family Inter Vivos Trusts, 77 A.3d 249 (Del. 2013) . . . . . . . . . . . . . . . . . . . . . . 11
DCV Holdings, Inc. v. Con Agra, Inc., 889 A. 2nd 954 (Del. 2005) . . . . . . . . . . . . . . . . . . . . . 12
In re Trusts F/B/O Marie C. Thomas Under Agreement of Charles D. Thomas
Dated Dec. 17, 1986 (Del. Ch. 2021, C. A. No. 2020-0698-MTZ) . . . . . . . . . . . . . . . . . . . . . 11
iv
4 of 23
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022
Co-Plaintiff Zeynep Tekiner (“Zeynep”) submits this memorandum of law in support of
Zeynep’s Order to Show Cause Motion for an Order – in furtherance of this Court’s November 19,
2022 Decisions and Orders – directing defendants Berrin Tekiner (“Berrin”), Gonca Chelsea, and
Billur Akipek (“Billur”) (collectively, the “Defendants”) to follow the directions of Zeynep
Tekiner as the sole member of the Trust Committee of the Zeynep Tekiner 2011 Descendants Trust
(“Zeynep Trust”).
I. PRELIMINARY STATEMENT
On October 19, 2022, this Court issued a Decision and Order (“Trustee Removal Order”;
NYSCEF Doc. No. 800), removing Billur Akipek as a member of the Trust Committee of the
Zeynep Trust. 1 As a result of the Trustee Removal Order, Zeynep is now the sole member of the
Trust Committee of the Zeynep Trust. As such, Zeynep is authorized by the Trust Agreement to
exercise all of the expansive powers given to the Trust Committee by the Trust Agreement,
including without limitation to direct investments and direct the management and disposition of
assets. (See NYSCEF Doc. No. 669, Article FIFTEENTH). 2
In light of that authorization – and in accordance with the powers granted to her under the
Trust – Zeynep has exercised her authority as the sole member of the Trust Committee, by both
1
The Trustee Removal Order incorporated by reference this Court’s Decision and Order (NYSCEF
Doc. No. 799) removing Billur as a member of the Trustee Committee of the Yasemin Tekiner
2011 Descendants Trust (“Yasemin Trust”).
2
As set forth in sections II D and III A, infra, because Zeynep is a beneficiary of the Zeynep Trust,
the only powers she cannot exercise on behalf of the Trust Committee are that she cannot: (i) direct
the Trustee to make discretionary distributions to satisfy any legal support obligation that she may
owe to a beneficiary, (ii) direct the Trustee to make discretionary distributions to herself, and (iii)
direct the Trustee to permit herself or caretakers to occupy Trust-owned real property. (NYSCEF
Doc. No. 669, Articles TWENTY-FIRST (A), (B) and (C); Article FIFTEENTH (B)(13).)
1
5 of 23
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022
giving directions and requesting documents and information. Defendants, however, have refused
to either comply with Zeynep’s directions or give her anything in response to her requests 3.
Instead, and contrary to the Court’s Trustee Removal Order, Defendants claim that Billur’s
removal as a member of the Trust Committee precludes the Trust Committee from taking any
actions at all. Their absurd theory is that: (1) the Trust Committee cannot act without an
independent trustee; and (2) Zeynep is not an independent trustee because she is a beneficiary4.
Defendants grossly misinterpret the Trust, both legally and factually.
Indeed, according to Defendants, they have the right to hold Zeynep’s Trust hostage in
perpetuity by simply refusing to appoint an independent member to the Trust Committee. Neither
the Trust Agreement nor Delaware law support such an outrageous position. Accepting
Defendants’ baseless argument would prevent the Trust from performing its most basic functions
– including for example, but not limited to, investing or reinvesting securities held by entities of
which the Trust is a shareholder, managing and repairing property, or leasing out property, (See Trust,
NYSCEF Doc. No. 669, Article FIFTEENTH (1), (2), and (15).
Further, Defendants’ actions fly in the face of this Court’s repeated instruction that, while
they are before this Court, Defendants are required to follow corporate formalities. (See, e.g.,
NYSCEF Doc. No. 370, 4/18/22 Tr. 94:4-7 (“[Y]ou’re now under the klieg lights in court, and so
anybody acting in a way that undermines the operation of this company is going to be subject to
the same scrutiny.”); id., Tr. 94:21-22 (“There’s a Board of Directors. It's going to operate the way
Boards of Directors are supposed to operate.”).)
3 Christiana Trust has apparently taken the same position as Defendants.
4
Zeynep agrees that she is not an independent member of the Trustee Committee.
2
6 of 23
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022
Because Defendants have chosen to ignore this Court’s Orders, Zeynep brings this
application for an Order – in furtherance of this Court’s prior Order removing Billur as a trustee
from Zeynep’s Trust – directing Defendants to comply with the Court’s Orders and to follow the
directions of the sole member of the Trust Committee of Zeynep’s Trust.
II. FACTUAL BACKGROUND
Given that the Court is aware of the lengthy history of disputes between and among various
Tekiner family members and others relating to the operations of the Company Defendants, Zeynep
will not repeat that history here, but instead only sets forth the most salient facts below.
A. Defendants’ Various Misrepresentation
and Ongoing Destruction of the Companies
At the outset of this case, Defendants represented to this Court that the Companies were in
excellent shape: “The companies have grown. They’ve acquired more property, including outside
of New York, including Texas. Right now there are 22 commercial and residential
properties. Assets in excess of 75 million, and they are fairly underleveraged with $20 million
debt.” (See NYSCEF Doc. No. 97, Tr. 34:18-22.) However, the exact opposite was true: less than
three weeks before Defendants made this representation to the Court, Billur wrote an email to a
vendor stating: “[t]he current market conditions forced us to sell ½ of our buildings and assets, in
order to survive until the market picks up.” (Affirmation of Michele Kahn, dated November 28,
2022 (“Kahn Aff.”) ¶ 4 & Ex. L.)
Moreover, during the course of this case, Defendants have repeatedly represented that
distributions of profits to each of the sister’s trusts were never contemplated. However,
numerous documents among the nearly 10,000 documents that were recently produced by
Defendants – and wrongfully withheld for almost the entire length of this case – establish
precisely the opposite.
3
7 of 23
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022
On January 5, 2020, Billur wrote an e-mail to multiple individuals – including Phil
Michaels at Norton Rose, and the Companies’ outside accountants – confirming several items
that Berrin wanted to address. Among this list of key issues was calculating a “fair distribution”
to Yasemin’s and Zeynep’s trusts. (See Kahn Aff. ¶ 5 & Ex. M; NYSCEF Doc. No 857
(10/27/22), Tr. 10:7-14.) Of course, no such distribution has been made, despite Billur’s
admission that such a distribution was needed.
And, this Court is now fully familiar with Defendants’ repeated representations – made
both to this Court and to plaintiffs -- that they would not transfer any funds from the sale of the
Tanglewylde property to themselves. Despite these explicit promises, Defendants indeed
transferred proceeds of the Tanglewylde sale to themselves. (See NYSCEF Doc. Nos. 754, 857 at
Tr. 12:11-13:7.)
In sum, and as set forth in greater detail below, Defendants’ refusal to honor Zeynep’s
repeated directions is simply the latest iteration of Defendants’ years-long attempt to prevent
Zeynep and Yasemin from having any say in the Companies and to prevent them and the Court
from seeing the full extent of their defalcations.
B. Christiana Trust Rejects Zeynep’s Withdrawal
of Her Consent to Indemnify Defendants
On November 9, 2021, under pressure from Berrin and others, Zeynep wrote to Jessica
Mojica at Christiana Trust, a Division of Wilmington Savings Fund Society, FSB (“Christiana
Trust”) (i.e., the corporate trustee for Zeynep’s Trust), directing Christiana Trust to execute written
consents that approved the indemnification and advancement for certain officers and/or directors
of the Companies in relation to the instant litigation. (See Affidavit of Zeynep Tekiner, dated
November 28, 2022 (“Zeynep Aff.”), ¶ 8 & Ex. A.)
4
8 of 23
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022
On March 28, 2022 – after Zeynep moved to join her sister Yasemin as a co-plaintiff –
Zeynep wrote to Jessica Mojica at Christiana Trust, withdrawing her November 9, 2021 instruction
for indemnification. (See Zeynep Aff., ¶ 9 & Ex. B.)
On March 30, 2022, Zeynep’s own corporate trustee, Christiana Trust rejected Zeynep’s
withdrawal of her November 9, 2021 instruction for indemnification, claiming that “any future
actions with respect to the Written Consents, including a withdrawal, would require unanimous
direction from the Trust Committee as is required under the trust agreement.” (Zeynep Aff., ¶ 10
& Ex. C.)
C. This Court Removes Billur as Trustee of Zeynep’s and Yasemin’s Trusts
On June 7, 2022, Plaintiff Yasemin Tekiner (“Yasemin”) moved the Court for an Order
removing Billur as a member of the Trust Committee of the Yasemin Tekiner 2011 Descendants
Trust (“Yasemin Trust”). (See NYSCEF Doc. No. 421.) And on June 29, 2022, Zeynep likewise
moved the Court for an order removing Billur as a member of the Trust Committee of the Zeynep
Tekiner 2011 Descendants Trust (“Zeynep Trust”). (See NYSCEF Doc. No. 602.)
On October 19, 2022, the Court issued two orders. In the first order, this Court granted the
branch of Yasemin’s motion to remove Billur as a member of the Trust Committee of Yasemin’s
trust, in light of Billur’s inherently conflicted position:
The evidence before the Court clearly demonstrates that Billur cannot serve as
Trustee for all three Trusts, at least under current circumstances. Billur is inherently
in a position of conflict, which the Court has noted many times during this grim
dispute. The court finds that the relationship between the plaintiff and the
defendant family members is so hostile and confrontational as to prevent Billur
from being able to administer the trust in accordance with her fiduciary duties.
(NYSCEF Doc. No. 799, at 2.)
This first order also held that Billur is “to be replaced by Berrin Tekiner in accordance with the
terms of the Trust Agreement.” (NYSCEF Doc. No. 799, at 16.)
5
9 of 23
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022
In the second order, this Court granted Zeynep’s motion in part, and: (1) removed Billur
as a member of the Trust Committee for Zeynep’s Trust, and (2) held that Billur is “to be replaced
by Berrin Tekiner in accordance with the terms of the Trust.” (NYSCEF Doc. No. 800, at 2.)
D. As the Sole Member of the Trust Committee of Her Trust,
Zeynep Has Full Authority to Exercise Its Powers
After this Court removed Billur as a trustee from Zeynep’s Trust, Zeynep became the sole
member of the Trust Committee of the Zeynep Trust. As the sole member of the Trust Committee,
Zeynep has full authority to exercise any and all of the Trust Committee’s powers, including those
set forth in Article FIFTEENTH of the Trust. For example, Zeynep has the following powers,
which are to be “construed in the broadest possible manner”:
(1) To invest or reinvest . . . in such securities or other property, real or personal . . .
or such interest therein . . .
(2) To retain, acquire, hold, exchange, manage, . . . repair, improve, alter, demolish,
subdivide, partition, develop, sell, mortgage, abandon . . . lease, sublease, assign . . .
foreclose, prepay, subordinate, renew or otherwise modify mortgages with respect to,
convert to cooperative or condominium ownership or otherwise deal with any real
property or interest in real property as they shall determine. . . .
(4) To retain for such period as they shall determine any property at any time received
or acquired by the Trustee or the Trust Committee.
(5) To sell any interest in any property at public or private sale . . . upon such terms as
they shall determine.
(6) To borrow such sums for such periods, from such sources (including, without
limitation, themselves) and upon such terms as they shall determine, and to secure any
such loan by mortgage or pledge.
(7) To authorize the Trustees to execute any documents necessary to guarantee any
debt incurred by any trust created hereunder or by any beneficiary of any trust
created hereunder.
(8) To lend any assets to any person or entity (other than the Grantor), with or
without security, upon such terms as they shall determine . . .
(9) To apply any property for the benefit of the beneficiary thereof by the payment
of any or all of his expenses . . . .
6
10 of 23
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022
(14) To retain for such period as they shall determine any interest which the Trustee
may own at any time in any closely-held company, or in any successor entity, and
to purchase additional interests in any such entity ...
(15) To retain, acquire, commence, continue or permit the continuation of any
business . . . or to sell or liquidate any business, in whole or in part . . . including,
without limitation, power (a) to invest any part or even all of the assets of such trust
in any business; (b) to select any person or persons as directors, officers or other
employees of any such business, and to compensate such persons from such
business for services rendered without regard to any other compensation to which
any such person may be entitled, whether or not any such person is also serving as
and is thus also compensated as a member of the Trust Committee or as a Trustee .
..
(16) To enter into, terminate, comply with or modify any shareholders' agreement,
limited partnership agreement, limited liability company agreement, buy-sell
agreement or option agreement, to obtain, exercise, not exercise, grant or transfer
options or rights of first refusal, and to take such action as they shall determine in
connection with subscription, voting, conversion or other rights or any
reorganization, recapitalization, merger, liquidation or other similar action . . .
Under the Trust instrument, the only limitations upon Zeynep are that she cannot: (i) direct
the Trustee to make discretionary distributions to satisfy any legal support obligation that she may
owe to a beneficiary, (ii) direct the Trustee to make discretionary distributions to herself, and (iii)
direct the Trustee to permit herself or caretakers to occupy Trust-owned real property. (NYSCEF
Doc. No. 669, Articles TWENTY-FIRST (A), (B) and (C); Article FIFTEENTH (B)(13).)
E. Zeynep Sends Multiple Directions and Requests to Defendants and
Christiana Trust, Who Refuse to Comply with Any of Them
Zeynep gave Defendants time to comply with the Court’s Trustee Removal Order. When
Berrin failed to do so, Zeynep had no choice but to act in her role as the sole member of the Trust
Committee. In light of her vested powers as the sole trustee of her own Trust, Zeynep issued a
series of directions to the Defendants and to Christiana Trust, and requested certain
documentation to which she is entitled. Unfortunately, neither Defendants nor Christiana Trust
complied with any of Zeynep’s instructions or requests.
7
11 of 23
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022
On October 24, 2022, after Zeynep had become the sole member of the Trust Committee,
Zeynep wrote to Ms. Mojica at Christiana Trust. Zeynep once again withdrew her instruction
(which prior withdrawal Christiana Trust ignored) that her corporate trustee sign written consents
approving indemnification for defendants’ attorneys’ fees. Further, Zeynep directed Christiana
Trust “not to consent to or permit any: (a) payments to or withdrawals by Berrin Tekiner, Gonca
Tekiner, Billur Akipek, or anyone else from the Trust or the Companies other than salaries and
ordinary benefits in the usual course and equivalent with the salaries and benefits of all other
shareholders, officers, directors, and employees; or (b) any extraordinary transactions in the
Companies.” Zeynep included a copy of this Court’s Order removing Billur as trustee from the
Trust Committee of Zeynep’s Trust. (See Zeynep Aff., ¶ 12 & Ex. D.)
In response, on October 26, 2022, Ms. Mojica advised that Christiana Trust could not take
“any actions at the direction of the Trust Committee” until Christiana Trust first retained Delaware
counsel to interpret this Court’s order. Ms. Mojica asked Zeynep to consent to release $25,000
from the Trust in order to pay for that counsel. (See Zeynep Aff., ¶ 15 & Ex. F.) 5
Between October 30, 2022 and November 17, 2022, Zeynep sent a series of directions to
Christiana Trust and the Defendants, which included requests for certain documentation:
• October 30, 2022: Zeynep wrote to both Christiana Trust and the Defendants:
(1) instructing that defendants’ law firms not be paid, and (2) advising as to her
preference that independent counsel be appointed to represent the company.
5
Interestingly, before Billur was removed as a trustee from Zeynep’s Trust, Christina Trust had
not hesitated to respond to Zeynep. Two days after Zeynep first withdrew her consent to indemnify
Defendants on March 28, 2022, and without the need to seek money from Zeynep’s Trust to consult
Delaware counsel –Ms. Mojica advised that “any future actions with respect to the Written
Consents, including a withdrawal, would require unanimous direction from the Trust Committee
as is required under the trust agreement.” (Zeynep Aff., ¶ 10 & Ex. C.) Now, of course, Zeynep
has provided that “unanimous direction of the Trust Committee” that Christina Trust specifically
requested in March 2022. Despite this, Christiana Trust has still refused to take any action that
Zeynep has directed as the sole member of her Trust Committee.
8
12 of 23
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022
• November 4, 2022: Zeynep wrote to Ms. Mojica at Christiana Trust, instructing
that she should not participate in or permit: (1) any substantial or non-routine
expenditures of money from the Trust; and (2) any transactions other than those in
the routine and usual course of business.
• November 10, 2022: Zeynep wrote to the Defendants, providing the same
instruction that she sent to Ms. Mojica on November 4.
• November 17, 2022: Zeynep wrote to Berrin, Gonca, and Billur, requesting that
they send Zeynep certain documentation relating to 254-258 West 35th Street LLC,
for which Bremen House, Inc. is the managing agent.
(See Zeynep Aff., ¶¶ 16 - 20 & Exs. G, H, I, and K.)
All of these directions and requests were ignored. Neither Christiana Trust nor the
Defendants followed any of Zeynep’s directions, nor did they provide any of the requested
documentation. Indeed, the only response that Zeynep received from Defendants to any of her
instructions and requests was on November 11, 2022 6. That day, Zeynep received a letter from
Berrin, which claimed that the Trust Committee had no power to act absent “at least one
independent member” – and that Zeynep was not an “independent member” because she is a
beneficiary of her Trust. (See Zeynep Aff., ¶ 19 & Ex J.)
Berrin’s letter cited Articles NINTH (D) (3) and NINTH (D) (2).
Article NINTH (D)(3) provides, “The Grantor directs that there shall at all times be
at least one independent member of the Trust Committee qualified and acting under
this instrument.” …
Article NINTH (D)(2) merely defines an independent member of the Trust
Committee as “a person who has no beneficial interest whatsoever in such trust,”
and Zeynep agrees that she is not an independent member of the Trust Committee.
6
Berrin copied Christiana Trust on this letter – her obvious intention being to convince Christiana
Trust that it should consent or acquiesce in the Zeynep Trust continuing to pay the Individual
Defendants’ legal fees and expenses in this matter, as well as to allow the Individual Defendants
to continue to inappropriately raid the Zeynep Trust as they have done for years.
9
13 of 23
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022
Zeynep now moves for an Order compelling Defendants to comply with this Court’s Orders
removing Billur as trustee, and to follow Zeynep’s directions as the sole member of the Trust
Committee of her Trust.
III. ARGUMENT
A. This Court Should Issue an Order – In Furtherance of
Its Prior Order Removing Billur as the Trustee for Zeynep’s Trust
– Directing Defendants to Follow the Directions of Zeynep,
as the Sole Member of the Trust Committee of Her Trust
Contrary to Berrin’s faulty, unsupported conclusion, Zeynep has authority to exercise the
full powers of the Trust Committee, precisely because she is the sole member of the Trust
Committee. She has this authority even though she is the beneficiary of her own Trust.
As the sole member of the Trust Committee, Zeyenp has the explicit right under her Trust
to exercise all of the extensive powers of the Trust Committee. The only limitation upon these
powers is that Zeynep cannot: (i) direct the Trustee to make discretionary distributions to satisfy
any legal support obligation that she may owe to a beneficiary, (ii)direct the Trustee to make
discretionary distributions to herself, and (iii) direct the Trustee to permit herself or caretakers to
occupy Trust-owned real property. (NYSCEF Doc. No. 669, Articles TWENTY-FIRST (A), (B)
and (C); Article FIFTEENTH (B)(13).) 7
1. Delaware Law and the Terms of the Trust Require
Defendants to Follow the Directions of the Sole
Trust Committee Member of the Zeynep Trust
Delaware courts construe the meaning of Delaware trusts according to rules very similar
to the rules for contract construction. As the Delaware Chancery Court recently instructed:
7
As set forth herein, this is confirmed not only by the Trust instrument and Delaware law, but
also by distinguished Delaware trust counsel, Gary Tannenbaum, Esq.
10
14 of 23
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022
“When construing a trust, this Court attempts to discern the settlor's intent as
expressed by the instrument, read as a whole, in light of the circumstances
surrounding its creation. With that in mind, ‘[t]he words used in the [trust]
generally are given their ordinary meaning and the Court will not consider extrinsic
evidence to vary or contradict express provisions of a trust instrument that are clear,
unambiguous and susceptible of only one interpretation.’ To determine the ordinary
meaning of words not defined in the instrument, the Court will turn to the dictionary
for assistance. In determining the settlor's intent the ‘court will prefer an
interpretation that gives effect to each term of an agreement . . . to any interpretation
that would result in a conclusion that some terms are uselessly repetitive.’”
(In re Trusts F/B/O Marie C. Thomas Under Agreement of Charles D. Thomas Dated Dec. 17,
1986 (Del. Ch. 2021, C. A. No. 2020-0698-MTZ) (citations omitted).
As the Delaware Supreme Court instructed in In re Peierls Family Inter Vivos Trusts, 77
A.3d 249 (Del. 2013), the intention behind the trust “must be determined by considering the
language of the trust instrument, read as an entirety, in light of the circumstances surrounding its
creation. If this analysis fails to resolve the conflict, we resort to rules of construction”).
Similarly, in The Samuel J. Heyman 1981 Continuing Tr. for Lazarus S. Heyman v. Ashland
LLC, 2022 Del. LEXIS 277 (De. 2022), the Court explained that under Delaware law, “’a
contract's construction should be that which would be understood by an objective, reasonable third
party.’ ‘When interpreting a contract, this Court 'will give priority to the parties' intentions as
reflected in the four corners of the agreement,' construing the agreement as a whole and giving
effect to all its provisions.’ Furthermore, ‘a court must determine the intent of the parties from the
language of the contract.’ This approach places great weight on the plain terms of a disputed
contractual provision, and we ‘interpret clear and unambiguous terms according to their ordinary
meaning.’ Courts should also assure that ‘all contract provisions [are] harmonized and given effect
where possible.’ We do not consider extrinsic evidence unless we find that the text is ambiguous.
Ambiguity is present ‘only when the provisions in controversy are reasonably or fairly susceptible
of different interpretations or may have two or more different meanings.’ Critically, a contractual
11
15 of 23
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022
provision is ‘not rendered ambiguous simply because the parties in litigation differ" as to the proper
interpretation . . .”
In addition, under settled rules of construction, specific terms of a trust trump more
general terms. (See, e.g., DCV Holdings, Inc. v. Con Agra, Inc., 889 A. 2d 954 (Del. 2005)
(“Well-settled rules of contract construction require that a contract be construed as a whole,
giving effect to the parties' intentions. Specific language in a contract controls over general
language, and where specific and general provisions conflict, the specific provision ordinarily
qualifies the meaning of the general one.”).)
2. Article NINTH (D)(2) and (3) Do Not Preclude Zeynep
From Exercising the Power of the Trust Committee
Contrary to Berrin’s position, neither Article NINTH (D) (2) nor (3) prevent Zeynep from
exercising her full powers under the Trust – and Berrin’s suggestion otherwise is meritless.
Significantly, Article NINTH (D) (2) merely provides that whoever replaces Billur on the
Trust Committee must be independent. That clause defines “independent” as someone who is not
a beneficiary – and Zeynep does not claim to be independent. Article NINTH (D) (3) states that
“[t]he Grantor directs that there shall at all times be at least one independent member of the Trust
Committee qualified and acting under this instrument.”
Notably, neither NINTH (D) (2) or (3) – nor any other provision within the Trust instrument
– state that the Trust Committee lacks power to act without at least one independent member. Thus,
the terms of the Trust instrument constrain this Court to reject Berrin’s position that “[t]he Trust
Committee has no power to act absent ‘at least one independent member.”
12
16 of 23
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022
3. Article TWENTY-FIRST (B) Makes Plain That
Preview
FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK YASEMIN TEKINER, in her individual capacity, as a beneficiary and a Trustee of The Yasemin Tekiner 2011 Descendants Trust and derivatively as Index No.: 657193/2020 a holder of equitable interests in a shareholder or a member of the Company Defendants, Motion Sequence No. ___ Plaintiff, -against- BREMEN HOUSE INC., GERMAN NEWS COMPANY, INC., BERRIN TEKINER, GONCA TEKINER, and BILLUR AKIPEK, in her capacity as a Trustee of The Yasemin Tekiner 2011 Descendants Trust, Defendants. ZEYNEP TEKINER, in her individual capacity, as a beneficiary and a Trustee of The Zeynep Tekiner 2011 Descendants Trust and derivatively as a holder of equitable interests in a shareholder or a member of the Company Defendants, Intervenor-Plaintiff, -against- BREMEN HOUSE INC., GERMAN NEWS COMPANY, INC., BERRIN TEKINER, GONCA TEKINER, and BILLUR AKIPEK, in her capacity as a Trustee of The Zeynep Tekiner 2011 Descendants Trust, Defendants. 1 of 23 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022 ZEYNEP TEKINER’S MEMORANDUM OF LAW IN SUPPORT OF HER ORDER TO SHOW CAUSE MOTION FOR AN ORDER DIRECTING DEFENDANTS TO FOLLOW THE DIRECTIONS OF ZEYNEP TEKINER AS THE SOLE MEMBER OF THE TRUST COMMITTEE OF THE ZEYNEP TEKINER 2011 DESCENDANTS TRUST KAHN & GOLDBERG, LLP Michele Kahn, Esq. Attorneys for Co-Plaintiff Zeynep Tekiner 555 Fifth Avenue, 14th Floor New York, New York 10017 (212) 687-5066 mk@kahngoldberg.com 2 of 23 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022 TABLE OF CONTENTS I. PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . 1 II. FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3 A. Defendants’ Various Misrepresentations and Ongoing Destruction of the Companies . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . .. . . 3 B. Christiana Trust Rejects Zeynep’s Withdrawal of Her Consent to Indemnify Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..4 C. This Court Removes Billur as Trustee of Zeynep’s and Yasemin’s Trusts ..... ... 5 D. As the Sole Member of the Trust Committee of Her Trust, Zeynep Has Full Authority to Exercise Its Powers . . . . . . . . . . . . . . . . . . . 6 E. Zeynep Sends Multiple Directions and Requests to Defendants and Christiana Trust, Who Refuse to Comply with Any of Them . . . . . . . . . . .. . . . 7 III. LEGAL ARGUMENT A. This Court Should Issue an Order – In Furtherance of Its Prior Order Removing Billur as the Trustee for Zeynep’s Trust – Directing Defendants to Follow the Instructions of Zeynep, as the Sole Member of the Trust Committee of Her Trust. . 10 1. Delaware Law and the Terms of the Trust Require Defendants to Follow the Directions of the Sole Trust Committee Member of the Zeynep Trust . . . . . . . . . . . . . . . . . . . . . . 10 2. Article NINTH (D)(2) and (3) Do Not Preclude Zeynep from Exercising the Power of the Trust Committee . . . . . . . . . . . . . . 12 3. Article TWENTY-FIRST (B) Makes Plain That the Trust Committee Continues to Act Even If Its Only Member or Members Are Not “Independent Member(s)” . . . . . . . . ....... 13 4. Numerous Specific Provisions of the Trust Make Plain That the Trust Committee Continues to Act Even If Its Sole Member or Members Are Not “Independent” . . . . . . . . . . . . . . . . . 14 B. Berrin’s Blatant Refusal to Follow the Court’s Trustee Removal Order Does Not Affect Zeynep’s Power to Exercise All the Powers of Her Trust Committee . . . . . . . . . . . . . . . . . . . . . . . . . . 17 IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 iii 3 of 23 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022 TABLE OF AUTHORITIES The Samuel J. Heyman 1981 Continuing Tr. for Lazarus S. Heyman v. Ashland LLC, 2022 Del. LEXIS 277 (De. 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 In re Peierls Family Inter Vivos Trusts, 77 A.3d 249 (Del. 2013) . . . . . . . . . . . . . . . . . . . . . . 11 DCV Holdings, Inc. v. Con Agra, Inc., 889 A. 2nd 954 (Del. 2005) . . . . . . . . . . . . . . . . . . . . . 12 In re Trusts F/B/O Marie C. Thomas Under Agreement of Charles D. Thomas Dated Dec. 17, 1986 (Del. Ch. 2021, C. A. No. 2020-0698-MTZ) . . . . . . . . . . . . . . . . . . . . . 11 iv 4 of 23 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022 Co-Plaintiff Zeynep Tekiner (“Zeynep”) submits this memorandum of law in support of Zeynep’s Order to Show Cause Motion for an Order – in furtherance of this Court’s November 19, 2022 Decisions and Orders – directing defendants Berrin Tekiner (“Berrin”), Gonca Chelsea, and Billur Akipek (“Billur”) (collectively, the “Defendants”) to follow the directions of Zeynep Tekiner as the sole member of the Trust Committee of the Zeynep Tekiner 2011 Descendants Trust (“Zeynep Trust”). I. PRELIMINARY STATEMENT On October 19, 2022, this Court issued a Decision and Order (“Trustee Removal Order”; NYSCEF Doc. No. 800), removing Billur Akipek as a member of the Trust Committee of the Zeynep Trust. 1 As a result of the Trustee Removal Order, Zeynep is now the sole member of the Trust Committee of the Zeynep Trust. As such, Zeynep is authorized by the Trust Agreement to exercise all of the expansive powers given to the Trust Committee by the Trust Agreement, including without limitation to direct investments and direct the management and disposition of assets. (See NYSCEF Doc. No. 669, Article FIFTEENTH). 2 In light of that authorization – and in accordance with the powers granted to her under the Trust – Zeynep has exercised her authority as the sole member of the Trust Committee, by both 1 The Trustee Removal Order incorporated by reference this Court’s Decision and Order (NYSCEF Doc. No. 799) removing Billur as a member of the Trustee Committee of the Yasemin Tekiner 2011 Descendants Trust (“Yasemin Trust”). 2 As set forth in sections II D and III A, infra, because Zeynep is a beneficiary of the Zeynep Trust, the only powers she cannot exercise on behalf of the Trust Committee are that she cannot: (i) direct the Trustee to make discretionary distributions to satisfy any legal support obligation that she may owe to a beneficiary, (ii) direct the Trustee to make discretionary distributions to herself, and (iii) direct the Trustee to permit herself or caretakers to occupy Trust-owned real property. (NYSCEF Doc. No. 669, Articles TWENTY-FIRST (A), (B) and (C); Article FIFTEENTH (B)(13).) 1 5 of 23 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022 giving directions and requesting documents and information. Defendants, however, have refused to either comply with Zeynep’s directions or give her anything in response to her requests 3. Instead, and contrary to the Court’s Trustee Removal Order, Defendants claim that Billur’s removal as a member of the Trust Committee precludes the Trust Committee from taking any actions at all. Their absurd theory is that: (1) the Trust Committee cannot act without an independent trustee; and (2) Zeynep is not an independent trustee because she is a beneficiary4. Defendants grossly misinterpret the Trust, both legally and factually. Indeed, according to Defendants, they have the right to hold Zeynep’s Trust hostage in perpetuity by simply refusing to appoint an independent member to the Trust Committee. Neither the Trust Agreement nor Delaware law support such an outrageous position. Accepting Defendants’ baseless argument would prevent the Trust from performing its most basic functions – including for example, but not limited to, investing or reinvesting securities held by entities of which the Trust is a shareholder, managing and repairing property, or leasing out property, (See Trust, NYSCEF Doc. No. 669, Article FIFTEENTH (1), (2), and (15). Further, Defendants’ actions fly in the face of this Court’s repeated instruction that, while they are before this Court, Defendants are required to follow corporate formalities. (See, e.g., NYSCEF Doc. No. 370, 4/18/22 Tr. 94:4-7 (“[Y]ou’re now under the klieg lights in court, and so anybody acting in a way that undermines the operation of this company is going to be subject to the same scrutiny.”); id., Tr. 94:21-22 (“There’s a Board of Directors. It's going to operate the way Boards of Directors are supposed to operate.”).) 3 Christiana Trust has apparently taken the same position as Defendants. 4 Zeynep agrees that she is not an independent member of the Trustee Committee. 2 6 of 23 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022 Because Defendants have chosen to ignore this Court’s Orders, Zeynep brings this application for an Order – in furtherance of this Court’s prior Order removing Billur as a trustee from Zeynep’s Trust – directing Defendants to comply with the Court’s Orders and to follow the directions of the sole member of the Trust Committee of Zeynep’s Trust. II. FACTUAL BACKGROUND Given that the Court is aware of the lengthy history of disputes between and among various Tekiner family members and others relating to the operations of the Company Defendants, Zeynep will not repeat that history here, but instead only sets forth the most salient facts below. A. Defendants’ Various Misrepresentation and Ongoing Destruction of the Companies At the outset of this case, Defendants represented to this Court that the Companies were in excellent shape: “The companies have grown. They’ve acquired more property, including outside of New York, including Texas. Right now there are 22 commercial and residential properties. Assets in excess of 75 million, and they are fairly underleveraged with $20 million debt.” (See NYSCEF Doc. No. 97, Tr. 34:18-22.) However, the exact opposite was true: less than three weeks before Defendants made this representation to the Court, Billur wrote an email to a vendor stating: “[t]he current market conditions forced us to sell ½ of our buildings and assets, in order to survive until the market picks up.” (Affirmation of Michele Kahn, dated November 28, 2022 (“Kahn Aff.”) ¶ 4 & Ex. L.) Moreover, during the course of this case, Defendants have repeatedly represented that distributions of profits to each of the sister’s trusts were never contemplated. However, numerous documents among the nearly 10,000 documents that were recently produced by Defendants – and wrongfully withheld for almost the entire length of this case – establish precisely the opposite. 3 7 of 23 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022 On January 5, 2020, Billur wrote an e-mail to multiple individuals – including Phil Michaels at Norton Rose, and the Companies’ outside accountants – confirming several items that Berrin wanted to address. Among this list of key issues was calculating a “fair distribution” to Yasemin’s and Zeynep’s trusts. (See Kahn Aff. ¶ 5 & Ex. M; NYSCEF Doc. No 857 (10/27/22), Tr. 10:7-14.) Of course, no such distribution has been made, despite Billur’s admission that such a distribution was needed. And, this Court is now fully familiar with Defendants’ repeated representations – made both to this Court and to plaintiffs -- that they would not transfer any funds from the sale of the Tanglewylde property to themselves. Despite these explicit promises, Defendants indeed transferred proceeds of the Tanglewylde sale to themselves. (See NYSCEF Doc. Nos. 754, 857 at Tr. 12:11-13:7.) In sum, and as set forth in greater detail below, Defendants’ refusal to honor Zeynep’s repeated directions is simply the latest iteration of Defendants’ years-long attempt to prevent Zeynep and Yasemin from having any say in the Companies and to prevent them and the Court from seeing the full extent of their defalcations. B. Christiana Trust Rejects Zeynep’s Withdrawal of Her Consent to Indemnify Defendants On November 9, 2021, under pressure from Berrin and others, Zeynep wrote to Jessica Mojica at Christiana Trust, a Division of Wilmington Savings Fund Society, FSB (“Christiana Trust”) (i.e., the corporate trustee for Zeynep’s Trust), directing Christiana Trust to execute written consents that approved the indemnification and advancement for certain officers and/or directors of the Companies in relation to the instant litigation. (See Affidavit of Zeynep Tekiner, dated November 28, 2022 (“Zeynep Aff.”), ¶ 8 & Ex. A.) 4 8 of 23 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022 On March 28, 2022 – after Zeynep moved to join her sister Yasemin as a co-plaintiff – Zeynep wrote to Jessica Mojica at Christiana Trust, withdrawing her November 9, 2021 instruction for indemnification. (See Zeynep Aff., ¶ 9 & Ex. B.) On March 30, 2022, Zeynep’s own corporate trustee, Christiana Trust rejected Zeynep’s withdrawal of her November 9, 2021 instruction for indemnification, claiming that “any future actions with respect to the Written Consents, including a withdrawal, would require unanimous direction from the Trust Committee as is required under the trust agreement.” (Zeynep Aff., ¶ 10 & Ex. C.) C. This Court Removes Billur as Trustee of Zeynep’s and Yasemin’s Trusts On June 7, 2022, Plaintiff Yasemin Tekiner (“Yasemin”) moved the Court for an Order removing Billur as a member of the Trust Committee of the Yasemin Tekiner 2011 Descendants Trust (“Yasemin Trust”). (See NYSCEF Doc. No. 421.) And on June 29, 2022, Zeynep likewise moved the Court for an order removing Billur as a member of the Trust Committee of the Zeynep Tekiner 2011 Descendants Trust (“Zeynep Trust”). (See NYSCEF Doc. No. 602.) On October 19, 2022, the Court issued two orders. In the first order, this Court granted the branch of Yasemin’s motion to remove Billur as a member of the Trust Committee of Yasemin’s trust, in light of Billur’s inherently conflicted position: The evidence before the Court clearly demonstrates that Billur cannot serve as Trustee for all three Trusts, at least under current circumstances. Billur is inherently in a position of conflict, which the Court has noted many times during this grim dispute. The court finds that the relationship between the plaintiff and the defendant family members is so hostile and confrontational as to prevent Billur from being able to administer the trust in accordance with her fiduciary duties. (NYSCEF Doc. No. 799, at 2.) This first order also held that Billur is “to be replaced by Berrin Tekiner in accordance with the terms of the Trust Agreement.” (NYSCEF Doc. No. 799, at 16.) 5 9 of 23 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022 In the second order, this Court granted Zeynep’s motion in part, and: (1) removed Billur as a member of the Trust Committee for Zeynep’s Trust, and (2) held that Billur is “to be replaced by Berrin Tekiner in accordance with the terms of the Trust.” (NYSCEF Doc. No. 800, at 2.) D. As the Sole Member of the Trust Committee of Her Trust, Zeynep Has Full Authority to Exercise Its Powers After this Court removed Billur as a trustee from Zeynep’s Trust, Zeynep became the sole member of the Trust Committee of the Zeynep Trust. As the sole member of the Trust Committee, Zeynep has full authority to exercise any and all of the Trust Committee’s powers, including those set forth in Article FIFTEENTH of the Trust. For example, Zeynep has the following powers, which are to be “construed in the broadest possible manner”: (1) To invest or reinvest . . . in such securities or other property, real or personal . . . or such interest therein . . . (2) To retain, acquire, hold, exchange, manage, . . . repair, improve, alter, demolish, subdivide, partition, develop, sell, mortgage, abandon . . . lease, sublease, assign . . . foreclose, prepay, subordinate, renew or otherwise modify mortgages with respect to, convert to cooperative or condominium ownership or otherwise deal with any real property or interest in real property as they shall determine. . . . (4) To retain for such period as they shall determine any property at any time received or acquired by the Trustee or the Trust Committee. (5) To sell any interest in any property at public or private sale . . . upon such terms as they shall determine. (6) To borrow such sums for such periods, from such sources (including, without limitation, themselves) and upon such terms as they shall determine, and to secure any such loan by mortgage or pledge. (7) To authorize the Trustees to execute any documents necessary to guarantee any debt incurred by any trust created hereunder or by any beneficiary of any trust created hereunder. (8) To lend any assets to any person or entity (other than the Grantor), with or without security, upon such terms as they shall determine . . . (9) To apply any property for the benefit of the beneficiary thereof by the payment of any or all of his expenses . . . . 6 10 of 23 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022 (14) To retain for such period as they shall determine any interest which the Trustee may own at any time in any closely-held company, or in any successor entity, and to purchase additional interests in any such entity ... (15) To retain, acquire, commence, continue or permit the continuation of any business . . . or to sell or liquidate any business, in whole or in part . . . including, without limitation, power (a) to invest any part or even all of the assets of such trust in any business; (b) to select any person or persons as directors, officers or other employees of any such business, and to compensate such persons from such business for services rendered without regard to any other compensation to which any such person may be entitled, whether or not any such person is also serving as and is thus also compensated as a member of the Trust Committee or as a Trustee . .. (16) To enter into, terminate, comply with or modify any shareholders' agreement, limited partnership agreement, limited liability company agreement, buy-sell agreement or option agreement, to obtain, exercise, not exercise, grant or transfer options or rights of first refusal, and to take such action as they shall determine in connection with subscription, voting, conversion or other rights or any reorganization, recapitalization, merger, liquidation or other similar action . . . Under the Trust instrument, the only limitations upon Zeynep are that she cannot: (i) direct the Trustee to make discretionary distributions to satisfy any legal support obligation that she may owe to a beneficiary, (ii) direct the Trustee to make discretionary distributions to herself, and (iii) direct the Trustee to permit herself or caretakers to occupy Trust-owned real property. (NYSCEF Doc. No. 669, Articles TWENTY-FIRST (A), (B) and (C); Article FIFTEENTH (B)(13).) E. Zeynep Sends Multiple Directions and Requests to Defendants and Christiana Trust, Who Refuse to Comply with Any of Them Zeynep gave Defendants time to comply with the Court’s Trustee Removal Order. When Berrin failed to do so, Zeynep had no choice but to act in her role as the sole member of the Trust Committee. In light of her vested powers as the sole trustee of her own Trust, Zeynep issued a series of directions to the Defendants and to Christiana Trust, and requested certain documentation to which she is entitled. Unfortunately, neither Defendants nor Christiana Trust complied with any of Zeynep’s instructions or requests. 7 11 of 23 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022 On October 24, 2022, after Zeynep had become the sole member of the Trust Committee, Zeynep wrote to Ms. Mojica at Christiana Trust. Zeynep once again withdrew her instruction (which prior withdrawal Christiana Trust ignored) that her corporate trustee sign written consents approving indemnification for defendants’ attorneys’ fees. Further, Zeynep directed Christiana Trust “not to consent to or permit any: (a) payments to or withdrawals by Berrin Tekiner, Gonca Tekiner, Billur Akipek, or anyone else from the Trust or the Companies other than salaries and ordinary benefits in the usual course and equivalent with the salaries and benefits of all other shareholders, officers, directors, and employees; or (b) any extraordinary transactions in the Companies.” Zeynep included a copy of this Court’s Order removing Billur as trustee from the Trust Committee of Zeynep’s Trust. (See Zeynep Aff., ¶ 12 & Ex. D.) In response, on October 26, 2022, Ms. Mojica advised that Christiana Trust could not take “any actions at the direction of the Trust Committee” until Christiana Trust first retained Delaware counsel to interpret this Court’s order. Ms. Mojica asked Zeynep to consent to release $25,000 from the Trust in order to pay for that counsel. (See Zeynep Aff., ¶ 15 & Ex. F.) 5 Between October 30, 2022 and November 17, 2022, Zeynep sent a series of directions to Christiana Trust and the Defendants, which included requests for certain documentation: • October 30, 2022: Zeynep wrote to both Christiana Trust and the Defendants: (1) instructing that defendants’ law firms not be paid, and (2) advising as to her preference that independent counsel be appointed to represent the company. 5 Interestingly, before Billur was removed as a trustee from Zeynep’s Trust, Christina Trust had not hesitated to respond to Zeynep. Two days after Zeynep first withdrew her consent to indemnify Defendants on March 28, 2022, and without the need to seek money from Zeynep’s Trust to consult Delaware counsel –Ms. Mojica advised that “any future actions with respect to the Written Consents, including a withdrawal, would require unanimous direction from the Trust Committee as is required under the trust agreement.” (Zeynep Aff., ¶ 10 & Ex. C.) Now, of course, Zeynep has provided that “unanimous direction of the Trust Committee” that Christina Trust specifically requested in March 2022. Despite this, Christiana Trust has still refused to take any action that Zeynep has directed as the sole member of her Trust Committee. 8 12 of 23 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022 • November 4, 2022: Zeynep wrote to Ms. Mojica at Christiana Trust, instructing that she should not participate in or permit: (1) any substantial or non-routine expenditures of money from the Trust; and (2) any transactions other than those in the routine and usual course of business. • November 10, 2022: Zeynep wrote to the Defendants, providing the same instruction that she sent to Ms. Mojica on November 4. • November 17, 2022: Zeynep wrote to Berrin, Gonca, and Billur, requesting that they send Zeynep certain documentation relating to 254-258 West 35th Street LLC, for which Bremen House, Inc. is the managing agent. (See Zeynep Aff., ¶¶ 16 - 20 & Exs. G, H, I, and K.) All of these directions and requests were ignored. Neither Christiana Trust nor the Defendants followed any of Zeynep’s directions, nor did they provide any of the requested documentation. Indeed, the only response that Zeynep received from Defendants to any of her instructions and requests was on November 11, 2022 6. That day, Zeynep received a letter from Berrin, which claimed that the Trust Committee had no power to act absent “at least one independent member” – and that Zeynep was not an “independent member” because she is a beneficiary of her Trust. (See Zeynep Aff., ¶ 19 & Ex J.) Berrin’s letter cited Articles NINTH (D) (3) and NINTH (D) (2). Article NINTH (D)(3) provides, “The Grantor directs that there shall at all times be at least one independent member of the Trust Committee qualified and acting under this instrument.” … Article NINTH (D)(2) merely defines an independent member of the Trust Committee as “a person who has no beneficial interest whatsoever in such trust,” and Zeynep agrees that she is not an independent member of the Trust Committee. 6 Berrin copied Christiana Trust on this letter – her obvious intention being to convince Christiana Trust that it should consent or acquiesce in the Zeynep Trust continuing to pay the Individual Defendants’ legal fees and expenses in this matter, as well as to allow the Individual Defendants to continue to inappropriately raid the Zeynep Trust as they have done for years. 9 13 of 23 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022 Zeynep now moves for an Order compelling Defendants to comply with this Court’s Orders removing Billur as trustee, and to follow Zeynep’s directions as the sole member of the Trust Committee of her Trust. III. ARGUMENT A. This Court Should Issue an Order – In Furtherance of Its Prior Order Removing Billur as the Trustee for Zeynep’s Trust – Directing Defendants to Follow the Directions of Zeynep, as the Sole Member of the Trust Committee of Her Trust Contrary to Berrin’s faulty, unsupported conclusion, Zeynep has authority to exercise the full powers of the Trust Committee, precisely because she is the sole member of the Trust Committee. She has this authority even though she is the beneficiary of her own Trust. As the sole member of the Trust Committee, Zeyenp has the explicit right under her Trust to exercise all of the extensive powers of the Trust Committee. The only limitation upon these powers is that Zeynep cannot: (i) direct the Trustee to make discretionary distributions to satisfy any legal support obligation that she may owe to a beneficiary, (ii)direct the Trustee to make discretionary distributions to herself, and (iii) direct the Trustee to permit herself or caretakers to occupy Trust-owned real property. (NYSCEF Doc. No. 669, Articles TWENTY-FIRST (A), (B) and (C); Article FIFTEENTH (B)(13).) 7 1. Delaware Law and the Terms of the Trust Require Defendants to Follow the Directions of the Sole Trust Committee Member of the Zeynep Trust Delaware courts construe the meaning of Delaware trusts according to rules very similar to the rules for contract construction. As the Delaware Chancery Court recently instructed: 7 As set forth herein, this is confirmed not only by the Trust instrument and Delaware law, but also by distinguished Delaware trust counsel, Gary Tannenbaum, Esq. 10 14 of 23 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022 “When construing a trust, this Court attempts to discern the settlor's intent as expressed by the instrument, read as a whole, in light of the circumstances surrounding its creation. With that in mind, ‘[t]he words used in the [trust] generally are given their ordinary meaning and the Court will not consider extrinsic evidence to vary or contradict express provisions of a trust instrument that are clear, unambiguous and susceptible of only one interpretation.’ To determine the ordinary meaning of words not defined in the instrument, the Court will turn to the dictionary for assistance. In determining the settlor's intent the ‘court will prefer an interpretation that gives effect to each term of an agreement . . . to any interpretation that would result in a conclusion that some terms are uselessly repetitive.’” (In re Trusts F/B/O Marie C. Thomas Under Agreement of Charles D. Thomas Dated Dec. 17, 1986 (Del. Ch. 2021, C. A. No. 2020-0698-MTZ) (citations omitted). As the Delaware Supreme Court instructed in In re Peierls Family Inter Vivos Trusts, 77 A.3d 249 (Del. 2013), the intention behind the trust “must be determined by considering the language of the trust instrument, read as an entirety, in light of the circumstances surrounding its creation. If this analysis fails to resolve the conflict, we resort to rules of construction”). Similarly, in The Samuel J. Heyman 1981 Continuing Tr. for Lazarus S. Heyman v. Ashland LLC, 2022 Del. LEXIS 277 (De. 2022), the Court explained that under Delaware law, “’a contract's construction should be that which would be understood by an objective, reasonable third party.’ ‘When interpreting a contract, this Court 'will give priority to the parties' intentions as reflected in the four corners of the agreement,' construing the agreement as a whole and giving effect to all its provisions.’ Furthermore, ‘a court must determine the intent of the parties from the language of the contract.’ This approach places great weight on the plain terms of a disputed contractual provision, and we ‘interpret clear and unambiguous terms according to their ordinary meaning.’ Courts should also assure that ‘all contract provisions [are] harmonized and given effect where possible.’ We do not consider extrinsic evidence unless we find that the text is ambiguous. Ambiguity is present ‘only when the provisions in controversy are reasonably or fairly susceptible of different interpretations or may have two or more different meanings.’ Critically, a contractual 11 15 of 23 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022 provision is ‘not rendered ambiguous simply because the parties in litigation differ" as to the proper interpretation . . .” In addition, under settled rules of construction, specific terms of a trust trump more general terms. (See, e.g., DCV Holdings, Inc. v. Con Agra, Inc., 889 A. 2d 954 (Del. 2005) (“Well-settled rules of contract construction require that a contract be construed as a whole, giving effect to the parties' intentions. Specific language in a contract controls over general language, and where specific and general provisions conflict, the specific provision ordinarily qualifies the meaning of the general one.”).) 2. Article NINTH (D)(2) and (3) Do Not Preclude Zeynep From Exercising the Power of the Trust Committee Contrary to Berrin’s position, neither Article NINTH (D) (2) nor (3) prevent Zeynep from exercising her full powers under the Trust – and Berrin’s suggestion otherwise is meritless. Significantly, Article NINTH (D) (2) merely provides that whoever replaces Billur on the Trust Committee must be independent. That clause defines “independent” as someone who is not a beneficiary – and Zeynep does not claim to be independent. Article NINTH (D) (3) states that “[t]he Grantor directs that there shall at all times be at least one independent member of the Trust Committee qualified and acting under this instrument.” Notably, neither NINTH (D) (2) or (3) – nor any other provision within the Trust instrument – state that the Trust Committee lacks power to act without at least one independent member. Thus, the terms of the Trust instrument constrain this Court to reject Berrin’s position that “[t]he Trust Committee has no power to act absent ‘at least one independent member.” 12 16 of 23 FILED: NEW YORK COUNTY CLERK 11/28/2022 03:48 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 882 RECEIVED NYSCEF: 11/28/2022 3. Article TWENTY-FIRST (B) Makes Plain That