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FILED: NEW YORK COUNTY CLERK 01/03/2023 10:51 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 01/03/2023
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1 SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: TRIAL TERM PART 3
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YASEMIN TEKINER,
3
in her individual capacity, as a beneficiary
4 and a Trustee of The Yasemin Tekiner 2011
Descendants Trust and derivatively as a
5 holder of equitable interests in a
shareholder or a member of the Company
6 Defendants,
Plaintiff,
7 INDEX NO.
- against - 657193/20
8
BREMEN HOUSE INC., GERMAN NEWS COMPANY, INC.,
9 BERRIN TEKINER, GONCA TEKINER and BILLUR AKIPEK,
in her capacity as a Trustee of The Yasemin
10 Tekiner 2011 Descendants Trust,
11 Defendants.
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12 ZEYNEP TEKINER,
13 In her individual capacity, as a beneficiary
And a Trustee of The Zeynep Tekiner 2011
14 Descendants Trust and derivately as a holder
Of equitable interests in a shareholder or
15 A member of the Company Defendants,
16 Intervenor-Plaintiff,
17 - against -
18 BREMEN HOUSE INC., GERMAN NEWS COMPANY, INC.,
BERRIN TEKINER, GONCA TEKINER and BILLUR AKIPEK,
19 In her capacity as a Trustee of The Zeynep
Tekiner 2011 Descendants Trust,
20
Defendants.
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60 Centre Street
22 New York, New York
December 19, 2022
23 PROCEEDINGS
24 BEFORE: HONORABLE JOEL M. COHEN,
Justice
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2 APPEARANCES:
3 KAHN & GOLDBERG, LLP
Attorneys for the Plaintiff
4 555 Fifth Avenue, 14th Floor
New York, New York 10017
5 BY: MICHELE KAHN, ESQ.
6
FOLEY HOAG
7 Attorneys for Plaintiff Yasemin Tekiner
1301 Avenue of the Americas
8 New York, New York 10019
BY: STEPHEN P. YOUNGER, ESQ.
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10 PRYOR CASHMAN LLP
Attorneys for the Defendants
11 7 Times Square
New York, New York 10036-6569
12 BY: TODD E. SOLOWAY, ESQ.
MEGHAN E. HILL, ESQ.
13 BRYAN T. MILLER, ESQ.
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22 Bonnie Piccirillo
Official Court Reporter
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2 THE COURT: Good morning, everyone. Let's start
3 with appearances in the second Tekiner case since that's the
4 first motion we have, starting with the plaintiff.
5 MS. KAHN: Yes, good morning, your Honor. Michele
6 Kahn, Kahn & Goldberg LLP, for Plaintiff, Zeynep Tekiner.
7 THE COURT: For the defense.
8 MR. SOLOWAY: Good morning, your Honor. Todd
9 Soloway, with my colleagues Bryan Mohler and Meghan Hill
10 from Pryor Cashman.
11 I just want to note for the record that my client
12 group is here in the courtroom, as well.
13 THE COURT: Good morning to all of you, as well.
14 I was going to start with the Trustee and
15 Trust-related motion anyway. So, Ms. Kahn, why don't you
16 start, if you can do it from the over there.
17 MS. KAHN: Will do.
18 THE COURT: That would be helpful. I have read
19 everything, including the interesting affidavits of counsel
20 from Delaware.
21 MS. KAHN: Thank you, your Honor.
22 So, I don't want to repeat myself since I know your
23 Honor reads the papers and you just said you did, so I want
24 to just lay the table for a minute.
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1 THE COURT: Why don't we just amend the
2 appearances.
3 Now, also for the other Plaintiff.
4 MR. YOUNGER: For the Plaintiff Yasemin Tekiner,
5 Steve Younger from Foley Hoag.
6 MS. KAHN: As I was saying, your Honor, if I may
7 continue?
8 THE COURT: Yes, please.
9 MS. KAHN: Just to lay the table, so the real crux
10 of this motion is that the defendants want you to be able to
11 ignore the instruction of Zeynep to stop the indemnity and
12 payment of attorneys' fees.
13 They want to continue to be able to pay their
14 attorneys with Zeynep and Yasemin's money, right. They're
15 two-thirds shareholders. They want this Court to find that
16 Zeynep had no right to act as the sole member of the Trust
17 Committee when in fact she did.
18 So what's happening here, again, just to lay the
19 table, I will get to the law that supports us.
20 So, two-thirds of the shareholders they want to,
21 again, no voice at the table and they want one-third to say,
22 We're going to use your money, corporate money, two-thirds
23 which is yours, to defend ourselves against you so we can
24 hide ourselves dealing in diversion of funds.
25 So, that's fundamentally a bit --
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1 THE COURT: The mechanical issue in terms of even
2 if the Trustee should have followed your client's guidance;
3 so this was a, what was it more than a year ago resolution
4 that was passed and you're asking -- your client was asking
5 the Trustee to withdraw consent to a resolution that was
6 already passed more than a year ago.
7 So that there is a question even if the Trust had
8 done that, is that really effective? I mean, I could see
9 you could ask the Trust to make a new proposal for a new
10 resolution because that's a new corporate act; but it is
11 kind of like you voted for a director and then a year later
12 you want to take your vote back, I don't think that works.
13 MS. KAHN: So I can address that. Perhaps in a
14 corporation that runs like a corporation that might be what
15 was done, right; but they -- first of all, just so we're
16 clear, the only way they would be able to authorize
17 indemnification of attorney's fees, the by-laws say three
18 ways:
19 One is a vote of directors who are disinterested.
20 That was not possible.
21 Two is written opinion of counsel. We can all
22 imagine no counsel would ever give that opinion.
23 And, three is by vote of the shareholders, and they
24 chose to proceed by unanimous consent of the shareholders.
25 So I'm not going I into the history of Zeynep being
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1 browbeaten by her mother and others.
2 THE COURT: Well, there was a record of that when
3 -- back when the question was removing Yasemin from the
4 Board, but I don't recall there being a similar record here,
5 that that's why she agreed to the other consent.
6 MS. KAHN: Well, I believe, she does say that in
7 her moving or reply affidavit, I can look for the cite in a
8 minute. But, in any event, if Yasemin -- so, yes, it's true
9 there was a unanimous written consent. We maintain that
10 Zeynep's signature, approving Zeynep's Trust direction to
11 the Trustee to enter into unanimous consent, no.
12 So the shareholders are the three Trusts and the
13 mother. The Trust Committee had to direct Christiana Trust
14 to enter into the consent.
15 So, that's -- those are the technical steps. But
16 you can't say posthoc I don't agree and I want to undo that;
17 but you can absolutely withdraw your consent to something
18 going forward.
19 THE COURT: Is that sort of now for then, you know,
20 nunc pro tunc? You can do that as if it never happened?
21 Because that resolution already passed. That's a done deal.
22 You're seeking to, basically, dissolve an existing
23 resolution of the company, which is not something the
24 Trustee can do on their own.
25 How do you get that -- how do you cross that
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1 bridge?
2 MS. KAHN: So, first of all, I'm not asking for it
3 nunc pro tunc. I'm saying from the day she directed that
4 there should be no more indemnification and advancement of
5 attorneys' fees, that's valid until they change it.
6 THE COURT: Let's play this out a little bit. So
7 you have three shareholders. They all agree on something.
8 The company has a resolution. We're going to go forward.
9 This is now the new company position.
10 You think that anytime in the future anyone of the
11 minority members can, basically, say, you know what, I
12 change my mind about that vote a year and a half ago; I no
13 longer want that? Do you think that all corporate
14 resolutions have that kind of fragility where any of the
15 people that voted on it can then say, you know what, I
16 change my mind and then that throws the brakes on
17 everything?
18 MS. KAHN: I think in this it has to. Let's take a
19 look at what's gone on in the running of this corporation.
20 Seven months ago in May 19, 2022, Zeynep and
21 Yasemin asked for a special meeting of the Board of
22 Directors. They are two directors and the president or
23 secretary is required by the bylaws to call the meeting upon
24 the request of two directors.
25 I have in my affidavit Exhibit C, which shows at
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1 least nine followup letters and e-mails over the last seven
2 months from my clients -- well, my client and Yasemin and my
3 co-counsel, Parker Ibrahim, to call the meeting and
4 defendants refused in return to call a meeting.
5 First, they said, We can only communicate with the
6 lawyers. Then the Court said, No, that's true. Then they
7 said, Well, we'll only hold a special meeting if you submit
8 written questions. So while reserving rights, we submitted
9 written questions. Then they said, Well, these questions
10 aren't good enough. Now so they have other questions. So
11 reserving rights, we submitted other questions.
12 So then contrast that, your Honor, is when they
13 wanted to sell the Tanglewylde property. They had no
14 problem calling a special meeting; and, in fact, they yelled
15 at my client who asked for a one-day adjournment because she
16 was at the funeral in Turkey of her ex-husband, the father
17 of her children, and they yelled hat her for being a
18 terrible person for not attending the meeting that they
19 called when it suited their purposes.
20 The Court is aware of other instances of the way
21 this corporation is not properly run. To say that Zeynep
22 would have had to have formally requested a shareholder's
23 meeting to withdraw her consent in this case --
24 THE COURT: No, that's not what I'm suggesting.
25 I'm suggesting more than that. That decision is done. That
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1 was a corporate board resolution.
2 You can -- the shareholders can suggest another
3 resolution to undo it. I'm just not sure -- you know, they
4 make the argument that even if your client was in a position
5 during that period when there was no other member of the
6 Trust Committee to direct the Trustee to do certain things,
7 that -- the Trusts' powers are still limited by the General
8 Corporate Law.
9 The assumption in your motion seems to be that if
10 the Trust had said, called up the defendants and said, you
11 know what, we're withdrawing our consent from a year and a
12 half ago -- or a whatever it is -- and then directing you're
13 no longer to indemnify. Those are two very different things
14 because the -- that resolution was already done.
15 It seems to me you can ask to try to revisit the
16 vote and have a new vote, but you can't just undo what has
17 already been done by changing your mind. At least, I'd like
18 to understand what the law would be because if that were
19 true, you could undo all corporate board resolutions and
20 corporate actions anytime a minority shareholder says, You
21 know what, I voted for this before, I don't agree anymore.
22 So, therefore, it no longer exists. Right?
23 MS. KAHN: So, again, I'm not looking to undo nunc
24 pro tunc.
25 THE COURT: Well, you are looking to undo -- this
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1 has operated -- you know, the corporation voted through its
2 board, through its shareholders to indemnify these directors
3 in this lawsuit. That's done.
4 You can try to undo it by having a new resolution.
5 I don't know that everybody can just sort of, unilaterally,
6 create a new vote by just withdrawing their old vote. Maybe
7 there is. If there's something in the bylaws or something
8 that would allow a person who prevailed in a vote to,
9 unilaterally, call a new one, then I'd be interested in
10 hearing it.
11 MS. KAHN: Well, if they could have gotten the
12 shareholders meeting or directors meeting, they could have
13 tried to address this; but let me see if I understand your
14 Honor's question.
15 Yes, I think Zeynep had every right to withdraw her
16 consent. It wasn't her consent. It was her direction to
17 the Trustee to consent to the unanimous resolution.
18 THE COURT: So that one shareholder's vote would
19 have changed.
20 MS. KAHN: Yes, and I'm not saying -- I mean, there
21 are many reasons why the payment of millions and millions of
22 dollars in attorneys' fees from the corporate funds is
23 wrong, including, your Honor, they have never even sought
24 this resolution for a year until they had been paid
25 attorneys' fees already.
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1 So, I can move to disgorge those fees on other
2 grounds; but what I'm saying is Zeynep, when she was in that
3 position of the sole member of the Trust Committee had every
4 right to withdraw her consent to that resolution going
5 forward. Meaning that she instruct -- and she had every
6 right to give instruction to her Trustee.
7 THE COURT: So you think it is -- it operates as a
8 continuing thing that can be terminated by anyone of the
9 voters after any time, as opposed to it being a decision by
10 the company which is a decision of the company until the
11 company -- not an individual shareholder -- changes its
12 mind.
13 MS. KAHN: I think in a regularly-run corporation,
14 yes. In this corporation, your Honor, she would have no
15 chance to even get a meeting of shareholders. There was
16 nobody to act for the Yasemin Trust except for the Trustee
17 Christiana Trust, which is in -- follows the direction,
18 shall we say, of Berrin and is not -- that's not before the
19 Court, but evidence I think in the record shows that they're
20 not doing the beneficiaries any favors, at least the
21 beneficiaries of Yasemin and Zeynep Trusts.
22 So, here, I think that she took the action that she
23 was authorized to take in the best way she could. I
24 understand your Honor's point. I'm not going to stand here
25 and say no, that's not the point, but she had no choice.
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1 THE COURT: It's a hurdle. I don't think you have
2 quite the same hurdle as far as the request for information
3 part. That gets to the pure question, which we should turn
4 to now.
5 During this period, at least, before Berrin
6 appointed a substitute Trustee, when your look at the
7 various provisions of the Trust document, was she able to
8 act as the Trust Committee to cause the Trustee to do
9 things?
10 MS. KAHN: Oh, that I think is crystal clear the
11 answer is yes. We --
12 THE COURT: Basically, what they have is more my
13 question for them, I think, they have -- the way the
14 agreement reads, there's supposed to always be an
15 independent member of the Trust Committee. Although, that's
16 really for Berrin to do, not for anyone else.
17 And so the question is what happens if she doesn't
18 do that, does the Trust -- is the Trust crippled? They say,
19 well, no, the document says if there's nobody capable, then
20 the Trustee becomes, essentially, acts as the Trust
21 Committee.
22 You point to language, which I think is also
23 interesting in the 20th paragraph, I think, which says when
24 the only members of the Trust Committee are beneficiaries,
25 then the only thing they can't do is just give themselves a
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1 bunch of money.
2 So, it is an interesting reading of all these
3 paragraphs together and what you do with it.
4 MS. KAHN: Right, it is, your Honor. And if I may
5 just comment on Article 15-D, which is what the defendants
6 rely on, it says, and I quote:
7 "Any provision hereof to the contrary
8 notwithstanding if at anytime there shall be no member of
9 the Trust Committee who was qualified in acting hereunder
10 and the powers granting to have the Trust Committee --" now
11 I'm paraphrasing -- shall be exercised by the Trustee.
12 It doesn't say no independent member, and there's a
13 bunch of clauses that say "no member" and they want you to
14 insert the word "independent" where it just doesn't exist
15 and that is not how Delaware or New York for that matter
16 construe documents.
17 You just can't add words because they want to add
18 words, and that is what I think they're asking you to do,
19 your Honor.
20 THE COURT: Yeah, they add words to the third
21 paragraph, too, when it says that it shall always have an
22 independent member, they add "The Trust shall not operate
23 unless," which also is not in there.
24 MS. KAHN: Right, it's clearly not in there. I
25 don't know if your Honor wants to hear m
Preview
FILED: NEW YORK COUNTY CLERK 01/03/2023 10:51 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 01/03/2023 1 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: TRIAL TERM PART 3 2 - - - - - - - - - - - - - - - - - - - - - X YASEMIN TEKINER, 3 in her individual capacity, as a beneficiary 4 and a Trustee of The Yasemin Tekiner 2011 Descendants Trust and derivatively as a 5 holder of equitable interests in a shareholder or a member of the Company 6 Defendants, Plaintiff, 7 INDEX NO. - against - 657193/20 8 BREMEN HOUSE INC., GERMAN NEWS COMPANY, INC., 9 BERRIN TEKINER, GONCA TEKINER and BILLUR AKIPEK, in her capacity as a Trustee of The Yasemin 10 Tekiner 2011 Descendants Trust, 11 Defendants. - - - - - - - - - - - - - - - - - - - - - X 12 ZEYNEP TEKINER, 13 In her individual capacity, as a beneficiary And a Trustee of The Zeynep Tekiner 2011 14 Descendants Trust and derivately as a holder Of equitable interests in a shareholder or 15 A member of the Company Defendants, 16 Intervenor-Plaintiff, 17 - against - 18 BREMEN HOUSE INC., GERMAN NEWS COMPANY, INC., BERRIN TEKINER, GONCA TEKINER and BILLUR AKIPEK, 19 In her capacity as a Trustee of The Zeynep Tekiner 2011 Descendants Trust, 20 Defendants. 21 - - - - - - - - - - - - - - - - - - - - - - X 60 Centre Street 22 New York, New York December 19, 2022 23 PROCEEDINGS 24 BEFORE: HONORABLE JOEL M. COHEN, Justice 25 Bonnie Piccirillo - Official Court Reporter 1 of 68 FILED: NEW YORK COUNTY CLERK 01/03/2023 10:51 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 01/03/2023 2 1 2 APPEARANCES: 3 KAHN & GOLDBERG, LLP Attorneys for the Plaintiff 4 555 Fifth Avenue, 14th Floor New York, New York 10017 5 BY: MICHELE KAHN, ESQ. 6 FOLEY HOAG 7 Attorneys for Plaintiff Yasemin Tekiner 1301 Avenue of the Americas 8 New York, New York 10019 BY: STEPHEN P. YOUNGER, ESQ. 9 10 PRYOR CASHMAN LLP Attorneys for the Defendants 11 7 Times Square New York, New York 10036-6569 12 BY: TODD E. SOLOWAY, ESQ. MEGHAN E. HILL, ESQ. 13 BRYAN T. MILLER, ESQ. 14 15 16 17 18 19 20 21 22 Bonnie Piccirillo Official Court Reporter 23 24 25 Bonnie Piccirillo - Official Court Reporter 2 of 68 FILED: NEW YORK COUNTY CLERK 01/03/2023 10:51 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 01/03/2023 3 Proceedings 1 2 THE COURT: Good morning, everyone. Let's start 3 with appearances in the second Tekiner case since that's the 4 first motion we have, starting with the plaintiff. 5 MS. KAHN: Yes, good morning, your Honor. Michele 6 Kahn, Kahn & Goldberg LLP, for Plaintiff, Zeynep Tekiner. 7 THE COURT: For the defense. 8 MR. SOLOWAY: Good morning, your Honor. Todd 9 Soloway, with my colleagues Bryan Mohler and Meghan Hill 10 from Pryor Cashman. 11 I just want to note for the record that my client 12 group is here in the courtroom, as well. 13 THE COURT: Good morning to all of you, as well. 14 I was going to start with the Trustee and 15 Trust-related motion anyway. So, Ms. Kahn, why don't you 16 start, if you can do it from the over there. 17 MS. KAHN: Will do. 18 THE COURT: That would be helpful. I have read 19 everything, including the interesting affidavits of counsel 20 from Delaware. 21 MS. KAHN: Thank you, your Honor. 22 So, I don't want to repeat myself since I know your 23 Honor reads the papers and you just said you did, so I want 24 to just lay the table for a minute. 25 Bonnie Piccirillo - Official Court Reporter 3 of 68 FILED: NEW YORK COUNTY CLERK 01/03/2023 10:51 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 01/03/2023 4 Proceedings 1 THE COURT: Why don't we just amend the 2 appearances. 3 Now, also for the other Plaintiff. 4 MR. YOUNGER: For the Plaintiff Yasemin Tekiner, 5 Steve Younger from Foley Hoag. 6 MS. KAHN: As I was saying, your Honor, if I may 7 continue? 8 THE COURT: Yes, please. 9 MS. KAHN: Just to lay the table, so the real crux 10 of this motion is that the defendants want you to be able to 11 ignore the instruction of Zeynep to stop the indemnity and 12 payment of attorneys' fees. 13 They want to continue to be able to pay their 14 attorneys with Zeynep and Yasemin's money, right. They're 15 two-thirds shareholders. They want this Court to find that 16 Zeynep had no right to act as the sole member of the Trust 17 Committee when in fact she did. 18 So what's happening here, again, just to lay the 19 table, I will get to the law that supports us. 20 So, two-thirds of the shareholders they want to, 21 again, no voice at the table and they want one-third to say, 22 We're going to use your money, corporate money, two-thirds 23 which is yours, to defend ourselves against you so we can 24 hide ourselves dealing in diversion of funds. 25 So, that's fundamentally a bit -- Bonnie Piccirillo - Official Court Reporter 4 of 68 FILED: NEW YORK COUNTY CLERK 01/03/2023 10:51 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 01/03/2023 5 Proceedings 1 THE COURT: The mechanical issue in terms of even 2 if the Trustee should have followed your client's guidance; 3 so this was a, what was it more than a year ago resolution 4 that was passed and you're asking -- your client was asking 5 the Trustee to withdraw consent to a resolution that was 6 already passed more than a year ago. 7 So that there is a question even if the Trust had 8 done that, is that really effective? I mean, I could see 9 you could ask the Trust to make a new proposal for a new 10 resolution because that's a new corporate act; but it is 11 kind of like you voted for a director and then a year later 12 you want to take your vote back, I don't think that works. 13 MS. KAHN: So I can address that. Perhaps in a 14 corporation that runs like a corporation that might be what 15 was done, right; but they -- first of all, just so we're 16 clear, the only way they would be able to authorize 17 indemnification of attorney's fees, the by-laws say three 18 ways: 19 One is a vote of directors who are disinterested. 20 That was not possible. 21 Two is written opinion of counsel. We can all 22 imagine no counsel would ever give that opinion. 23 And, three is by vote of the shareholders, and they 24 chose to proceed by unanimous consent of the shareholders. 25 So I'm not going I into the history of Zeynep being Bonnie Piccirillo - Official Court Reporter 5 of 68 FILED: NEW YORK COUNTY CLERK 01/03/2023 10:51 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 01/03/2023 6 Proceedings 1 browbeaten by her mother and others. 2 THE COURT: Well, there was a record of that when 3 -- back when the question was removing Yasemin from the 4 Board, but I don't recall there being a similar record here, 5 that that's why she agreed to the other consent. 6 MS. KAHN: Well, I believe, she does say that in 7 her moving or reply affidavit, I can look for the cite in a 8 minute. But, in any event, if Yasemin -- so, yes, it's true 9 there was a unanimous written consent. We maintain that 10 Zeynep's signature, approving Zeynep's Trust direction to 11 the Trustee to enter into unanimous consent, no. 12 So the shareholders are the three Trusts and the 13 mother. The Trust Committee had to direct Christiana Trust 14 to enter into the consent. 15 So, that's -- those are the technical steps. But 16 you can't say posthoc I don't agree and I want to undo that; 17 but you can absolutely withdraw your consent to something 18 going forward. 19 THE COURT: Is that sort of now for then, you know, 20 nunc pro tunc? You can do that as if it never happened? 21 Because that resolution already passed. That's a done deal. 22 You're seeking to, basically, dissolve an existing 23 resolution of the company, which is not something the 24 Trustee can do on their own. 25 How do you get that -- how do you cross that Bonnie Piccirillo - Official Court Reporter 6 of 68 FILED: NEW YORK COUNTY CLERK 01/03/2023 10:51 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 01/03/2023 7 Proceedings 1 bridge? 2 MS. KAHN: So, first of all, I'm not asking for it 3 nunc pro tunc. I'm saying from the day she directed that 4 there should be no more indemnification and advancement of 5 attorneys' fees, that's valid until they change it. 6 THE COURT: Let's play this out a little bit. So 7 you have three shareholders. They all agree on something. 8 The company has a resolution. We're going to go forward. 9 This is now the new company position. 10 You think that anytime in the future anyone of the 11 minority members can, basically, say, you know what, I 12 change my mind about that vote a year and a half ago; I no 13 longer want that? Do you think that all corporate 14 resolutions have that kind of fragility where any of the 15 people that voted on it can then say, you know what, I 16 change my mind and then that throws the brakes on 17 everything? 18 MS. KAHN: I think in this it has to. Let's take a 19 look at what's gone on in the running of this corporation. 20 Seven months ago in May 19, 2022, Zeynep and 21 Yasemin asked for a special meeting of the Board of 22 Directors. They are two directors and the president or 23 secretary is required by the bylaws to call the meeting upon 24 the request of two directors. 25 I have in my affidavit Exhibit C, which shows at Bonnie Piccirillo - Official Court Reporter 7 of 68 FILED: NEW YORK COUNTY CLERK 01/03/2023 10:51 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 01/03/2023 8 Proceedings 1 least nine followup letters and e-mails over the last seven 2 months from my clients -- well, my client and Yasemin and my 3 co-counsel, Parker Ibrahim, to call the meeting and 4 defendants refused in return to call a meeting. 5 First, they said, We can only communicate with the 6 lawyers. Then the Court said, No, that's true. Then they 7 said, Well, we'll only hold a special meeting if you submit 8 written questions. So while reserving rights, we submitted 9 written questions. Then they said, Well, these questions 10 aren't good enough. Now so they have other questions. So 11 reserving rights, we submitted other questions. 12 So then contrast that, your Honor, is when they 13 wanted to sell the Tanglewylde property. They had no 14 problem calling a special meeting; and, in fact, they yelled 15 at my client who asked for a one-day adjournment because she 16 was at the funeral in Turkey of her ex-husband, the father 17 of her children, and they yelled hat her for being a 18 terrible person for not attending the meeting that they 19 called when it suited their purposes. 20 The Court is aware of other instances of the way 21 this corporation is not properly run. To say that Zeynep 22 would have had to have formally requested a shareholder's 23 meeting to withdraw her consent in this case -- 24 THE COURT: No, that's not what I'm suggesting. 25 I'm suggesting more than that. That decision is done. That Bonnie Piccirillo - Official Court Reporter 8 of 68 FILED: NEW YORK COUNTY CLERK 01/03/2023 10:51 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 01/03/2023 9 Proceedings 1 was a corporate board resolution. 2 You can -- the shareholders can suggest another 3 resolution to undo it. I'm just not sure -- you know, they 4 make the argument that even if your client was in a position 5 during that period when there was no other member of the 6 Trust Committee to direct the Trustee to do certain things, 7 that -- the Trusts' powers are still limited by the General 8 Corporate Law. 9 The assumption in your motion seems to be that if 10 the Trust had said, called up the defendants and said, you 11 know what, we're withdrawing our consent from a year and a 12 half ago -- or a whatever it is -- and then directing you're 13 no longer to indemnify. Those are two very different things 14 because the -- that resolution was already done. 15 It seems to me you can ask to try to revisit the 16 vote and have a new vote, but you can't just undo what has 17 already been done by changing your mind. At least, I'd like 18 to understand what the law would be because if that were 19 true, you could undo all corporate board resolutions and 20 corporate actions anytime a minority shareholder says, You 21 know what, I voted for this before, I don't agree anymore. 22 So, therefore, it no longer exists. Right? 23 MS. KAHN: So, again, I'm not looking to undo nunc 24 pro tunc. 25 THE COURT: Well, you are looking to undo -- this Bonnie Piccirillo - Official Court Reporter 9 of 68 FILED: NEW YORK COUNTY CLERK 01/03/2023 10:51 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 01/03/2023 10 Proceedings 1 has operated -- you know, the corporation voted through its 2 board, through its shareholders to indemnify these directors 3 in this lawsuit. That's done. 4 You can try to undo it by having a new resolution. 5 I don't know that everybody can just sort of, unilaterally, 6 create a new vote by just withdrawing their old vote. Maybe 7 there is. If there's something in the bylaws or something 8 that would allow a person who prevailed in a vote to, 9 unilaterally, call a new one, then I'd be interested in 10 hearing it. 11 MS. KAHN: Well, if they could have gotten the 12 shareholders meeting or directors meeting, they could have 13 tried to address this; but let me see if I understand your 14 Honor's question. 15 Yes, I think Zeynep had every right to withdraw her 16 consent. It wasn't her consent. It was her direction to 17 the Trustee to consent to the unanimous resolution. 18 THE COURT: So that one shareholder's vote would 19 have changed. 20 MS. KAHN: Yes, and I'm not saying -- I mean, there 21 are many reasons why the payment of millions and millions of 22 dollars in attorneys' fees from the corporate funds is 23 wrong, including, your Honor, they have never even sought 24 this resolution for a year until they had been paid 25 attorneys' fees already. Bonnie Piccirillo - Official Court Reporter 10 of 68 FILED: NEW YORK COUNTY CLERK 01/03/2023 10:51 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 01/03/2023 11 Proceedings 1 So, I can move to disgorge those fees on other 2 grounds; but what I'm saying is Zeynep, when she was in that 3 position of the sole member of the Trust Committee had every 4 right to withdraw her consent to that resolution going 5 forward. Meaning that she instruct -- and she had every 6 right to give instruction to her Trustee. 7 THE COURT: So you think it is -- it operates as a 8 continuing thing that can be terminated by anyone of the 9 voters after any time, as opposed to it being a decision by 10 the company which is a decision of the company until the 11 company -- not an individual shareholder -- changes its 12 mind. 13 MS. KAHN: I think in a regularly-run corporation, 14 yes. In this corporation, your Honor, she would have no 15 chance to even get a meeting of shareholders. There was 16 nobody to act for the Yasemin Trust except for the Trustee 17 Christiana Trust, which is in -- follows the direction, 18 shall we say, of Berrin and is not -- that's not before the 19 Court, but evidence I think in the record shows that they're 20 not doing the beneficiaries any favors, at least the 21 beneficiaries of Yasemin and Zeynep Trusts. 22 So, here, I think that she took the action that she 23 was authorized to take in the best way she could. I 24 understand your Honor's point. I'm not going to stand here 25 and say no, that's not the point, but she had no choice. Bonnie Piccirillo - Official Court Reporter 11 of 68 FILED: NEW YORK COUNTY CLERK 01/03/2023 10:51 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 01/03/2023 12 Proceedings 1 THE COURT: It's a hurdle. I don't think you have 2 quite the same hurdle as far as the request for information 3 part. That gets to the pure question, which we should turn 4 to now. 5 During this period, at least, before Berrin 6 appointed a substitute Trustee, when your look at the 7 various provisions of the Trust document, was she able to 8 act as the Trust Committee to cause the Trustee to do 9 things? 10 MS. KAHN: Oh, that I think is crystal clear the 11 answer is yes. We -- 12 THE COURT: Basically, what they have is more my 13 question for them, I think, they have -- the way the 14 agreement reads, there's supposed to always be an 15 independent member of the Trust Committee. Although, that's 16 really for Berrin to do, not for anyone else. 17 And so the question is what happens if she doesn't 18 do that, does the Trust -- is the Trust crippled? They say, 19 well, no, the document says if there's nobody capable, then 20 the Trustee becomes, essentially, acts as the Trust 21 Committee. 22 You point to language, which I think is also 23 interesting in the 20th paragraph, I think, which says when 24 the only members of the Trust Committee are beneficiaries, 25 then the only thing they can't do is just give themselves a Bonnie Piccirillo - Official Court Reporter 12 of 68 FILED: NEW YORK COUNTY CLERK 01/03/2023 10:51 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 01/03/2023 13 Proceedings 1 bunch of money. 2 So, it is an interesting reading of all these 3 paragraphs together and what you do with it. 4 MS. KAHN: Right, it is, your Honor. And if I may 5 just comment on Article 15-D, which is what the defendants 6 rely on, it says, and I quote: 7 "Any provision hereof to the contrary 8 notwithstanding if at anytime there shall be no member of 9 the Trust Committee who was qualified in acting hereunder 10 and the powers granting to have the Trust Committee --" now 11 I'm paraphrasing -- shall be exercised by the Trustee. 12 It doesn't say no independent member, and there's a 13 bunch of clauses that say "no member" and they want you to 14 insert the word "independent" where it just doesn't exist 15 and that is not how Delaware or New York for that matter 16 construe documents. 17 You just can't add words because they want to add 18 words, and that is what I think they're asking you to do, 19 your Honor. 20 THE COURT: Yeah, they add words to the third 21 paragraph, too, when it says that it shall always have an 22 independent member, they add "The Trust shall not operate 23 unless," which also is not in there. 24 MS. KAHN: Right, it's clearly not in there. I 25 don't know if your Honor wants to hear m