Preview
FILED: NEW YORK COUNTY CLERK 01/31/2023 03:24 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1154 RECEIVED NYSCEF: 01/31/2023
EXHIBIT 22
INDEX NO. 657193/2020
To:
FILED: Topping,
NEWSean[sean.topping@nortonrosefulbright.com]
YORK COUNTY CLERK 01/31/2023 03:24 AM
Cc:
NYSCEF Corder,NO.
DOC. Victoria[victoria.corder@nortonrosefulbright.com];
1154 Archer, Judith A.[judith.archer@nortonrosefulbright.com];
RECEIVED NYSCEF: Evan
01/31/2023
Mandel[em@mandelbhandari.com]; Leah Vickers[lv@mandelbhandari.com]; Younger, Stephen P.[spyounger@foleyhoag.com]
From: Shomik Ghosh[sg@mandelbhandari.com]
Sent: Fri 10/15/2021 10:52:37 PM (UTC)
Subject: Re: Tekiner v. Bremen House et al.
Thanks Sean. We will get back to you regarding the timing of the M&C on Monday.
Have a good weekend,
Shomik
On Fri, Oct 15, 2021 at 6:25 PM Topping, Sean wrote:
Shomik,
Defendants are willing to meet-and-confer on the issues you set out below. Unfortunately, due to a number of conflicts on our
side over the next two weeks (including that I will be away at trial), the earliest we could do a call is the end of the week of the
25th. Please let us know if there are times on the 28th or 29th that work for you.
Best,
Sean
Sean Topping | Associate
Pronouns: he / him / his
Norton Rose Fulbright US LLP
1301 Avenue of the Americas, New York, New York 10019-6022, United States
Tel +1 212 318 3361 | Fax +1 212 318 3400
sean.topping@nortonrosefulbright.com
NORTON ROSE FULBRIGHT
Law around the world
nortonrosefulbright.com
From: Shomik Ghosh [mailto:sg@mandelbhandari.com]
Sent: Wednesday, October 13, 2021 12:16 PM
To: Corder, Victoria ; Topping, Sean ;
Archer, Judith A.
Cc: Evan Mandel ; Leah Vickers ; Younger, Stephen P.
Subject: Tekiner v. Bremen House et al.
[External Email – Use Caution]
Victoria,
FILED: NEW YORK COUNTY CLERK 01/31/2023 03:24 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1154 RECEIVED NYSCEF: 01/31/2023
We write with regards to Defendants’ privilege log. For the reasons described below, Defendants privilege log
indicates Defendants have wrongfully withheld thousands of non-privileged documents. Please let us know
when you are able to meet & confer regarding the issues outlined below.
1. Defendants' communications with the companies’ employees/officers and outside counsel
regarding the affairs of the companies created before January 5, 2021 have been improperly
withheld
The Defendants’ privilege log contains thousands of entries prior to January 11, 2021 within which employees,
agents, or officers of the companies purportedly engage in privileged communications (a) with outside counsel
or (b) among themselves. As a director of the companies at the time these documents were created, Plaintiff
was a joint client of the companies, had access to these communications, and thus cannot be excluded from
accessing them now. See, e.g., Kirby v. Kirby, No. CIV..A 8604, 1987 WL 14862, at *7 (Del. Ch. July 29,
1987) (“The directors are all responsible for the proper management of the corporation, and it seems
consistent with their joint obligations that they be treated as the “joint client” when legal advice is rendered to
the corporation through one of its officers or directors.”). Plaintiff’s right to access these documents is
especially pronounced given Defendants’ decision to raise counterclaims against Plaintiff asserting a variety
of breaches in her capacity as a director of the companies. Among other things, Defendants have alleged in
their counterclaims that Plaintiff:
· did not play a role at the companies and is not involved in the daily operations.
· recommended a real estate advisor who “failed to provide any useful advice or interim invoices
despite repeated requests, and ultimately billed the Companies an unreasonable amount that was
greatly in excess of the agreed-upon compensation.”;
· interfered in leasing and maintenance of commercial space to the detriment of the Companies;
· opposed extending leases to potentially lucrative prospective tenants based on personal whims
and opinions;
· objected to the Extell transaction after allegedly playing an integral role in its development.
As a result of these alleged actions, Defendants allege that Plaintiff—in relevant part—breached her fiduciary
duties by “disrupting the companies’ business by picking fights with its staff or her family members or
demanding the companies make decisions based on Yasemin’s personal whims and opinions, instead of
sound business judgment.” Defendants also accuse Plaintiff of “caus[ing] the Companies to waste or give
away valuable corporate assets without the Companies’ receiving adequate compensation in return, or
caus[ing] the Companies to divert company assets in uneconomical ways that benefit Yasemin but not the
Companies.”
Defendants’ injection of these issues into the litigation further amplifies Plaintiff’s right to access these
documents. As the Appellate Division has explained: “Under both New York and Delaware laws, the fact that
[the directors] are no longer directors is not fatal to their motion to compel, since their conduct while directors
has been called into question and the inspection is needed to prepare their defenses.” People ex. rel. Spitzer
v. Greenberg, 50 A.D.3d 195, 202 (1st Dep’t 2008). Because Defendants have chosen to call into question
Plaintiff’s conduct as director, Defendants must allow Plaintiff to inspect documents regarding the issues listed
above to prepare for her defense.
INDEX NO. 657193/2020
FILED: 2. Berrin,
NEW YORKBillur, and Christiana
COUNTY CLERKTrust’s communications
01/31/2023 03:24have AM been improperly withheld
NYSCEF DOC. NO. 1154 RECEIVED NYSCEF: 01/31/2023
Defendants’ log includes thousands of emails in which Billur, Berrin, or the Christiana Trust were participants.
As Defendants well know, Billur, Berrin, and Christiana Trust all owe fiduciary duties to Plaintiff as a result of
their roles in The Yasemin Tekiner 2011 Descendants Trust (the “Trust”). As a result of these relationships,
Billur, Berrin, and Christiana Trust’s communications regarding matters that have relevance to the Trust
cannot be withheld from Plaintiff (the beneficiary of the Trust). As the First Department has explained, the
fiduciary exception to the attorney-client privilege holds that “when a trustee seeks legal advice in executing
his or her fiduciary duties, he or she is acting ultimately on behalf of the beneficiaries of the trust and,
accordingly, cannot cloak his or her actions from them, the attorney's real clients.” Nama Holdings, LLC v.
Greenberg Traurig LLP, 133 A.D.3d 46, 53 (1st Dep’t 2015). When Billur, Berrin, and Christiana Trust
communicated regarding the companies, they were necessarily also acting as fiduciaries of the Trust
regardless of whatever obligations they had to the companies themselves. As a result, under the well-
recognized fiduciary exception, Berrin, Billur, and Christiana Trust’s communications cannot be withheld from
Plaintiff. See e.g., Stenovich v. Wachtell, Lipton, Rosen & Katz, 195 Misc. 2d 99, 113, 756 N.Y.S.2d 367, 381
(Sup. Ct. 2003) (finding that when a fiduciary communicates with an attorney to “advise him or her in the
exercise of his or her fiduciary responsibilities, his or her communications with that attorney are not absolutely
protected from inquiry by the beneficiaries for whom the fiduciary performs.”).
3. Defendants' communications with numerous third parties have been improperly withheld
It is hornbook law that "communications made between a defendant and counsel in the known presence of a
third party are not privileged." People v. Osorio, 75 N.Y.2d 80, 84 (Court of Appeals, 1989). Here, Defendants
have wrongfully withheld communications with a number of third-parties, including—but not limited
to—Marcus Millichap (a real estate brokerage company), Corocan (a real estate brokerage company),
Warburg Pincus (a private equity firm), Paul Schwartzman (the head of a software company), Beck &
Baumann (an accounting firm), Chick-Fil-A (a fast food company), Marks Paneth (an accounting firm),
Swissotel (a hotel chain), Paul Howard (an IT professional), and Steven Levine (an accountant). To the extent
Defendants are claiming these individuals are agents of the companies, Defendants’ privilege assertion still
fails because none of these individuals were “made to a person serving as a translator or interpreter in order
to facilitate communications between the lawyer and the client.” Delta Fin. Corp. v. Morrison, N.Y.S.2d 745,
748 (Sup. Ct. 2006). Defendants' communications with these third parties thus should not have been
withheld.
4. Defendants' communications with one another should not have been withheld.
Defendants' log also includes a number of entries where the individual defendants are communicating with no
lawyer present. For example, there are numerous entries between only Billur and Berrin, Billur
and luzesther82@yahoo.com, and Sadan Gurbuzturk where no attorneys are present. While Defendants
claim that the parties to the emails were discussing "legal advice," they do not disclose from whom the legal
advice was provided or why the documents could not be redacted. Such information is required for Plaintiff (as
well as the Court) to determine whether privilege has been properly claimed here.
Thanks,
INDEX NO. 657193/2020
Shomik
FILED: NEW YORK COUNTY CLERK 01/31/2023 03:24 AM
NYSCEF DOC. NO. 1154 RECEIVED NYSCEF: 01/31/2023
--
Shomik Ghosh
Mandel Bhandari LLP
80 Pine Street, NY, NY 10005
e sg@mandelbhandari.com
p 203-285-4398
CONFIDENTIALITY NOTICE: This email, including any attachments, is confidential and may be privileged. If you are not the intended
recipient please notify the sender immediately, and please delete it; you should not copy it or use it for any purpose or disclose its contents
to any other person. Norton Rose Fulbright entities reserve the right to monitor all email communications through their networks.
Norton Rose Fulbright Australia, Norton Rose Fulbright LLP, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa Inc
and Norton Rose Fulbright US LLP are separate legal entities and all of them are members of Norton Rose Fulbright Verein, a Swiss
verein. Norton Rose Fulbright Verein helps coordinate the activities of the members but does not itself provide legal services to clients.
Details of each entity, with certain regulatory information, are available at nortonrosefulbright.com.
--
Shomik Ghosh
Mandel Bhandari LLP
80 Pine Street, NY, NY 10005
e sg@mandelbhandari.com
p 203-285-4398
Preview
FILED: NEW YORK COUNTY CLERK 01/31/2023 03:24 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1154 RECEIVED NYSCEF: 01/31/2023 EXHIBIT 22 INDEX NO. 657193/2020 To: FILED: Topping, NEWSean[sean.topping@nortonrosefulbright.com] YORK COUNTY CLERK 01/31/2023 03:24 AM Cc: NYSCEF Corder,NO. DOC. Victoria[victoria.corder@nortonrosefulbright.com]; 1154 Archer, Judith A.[judith.archer@nortonrosefulbright.com]; RECEIVED NYSCEF: Evan 01/31/2023 Mandel[em@mandelbhandari.com]; Leah Vickers[lv@mandelbhandari.com]; Younger, Stephen P.[spyounger@foleyhoag.com] From: Shomik Ghosh[sg@mandelbhandari.com] Sent: Fri 10/15/2021 10:52:37 PM (UTC) Subject: Re: Tekiner v. Bremen House et al. Thanks Sean. We will get back to you regarding the timing of the M&C on Monday. Have a good weekend, Shomik On Fri, Oct 15, 2021 at 6:25 PM Topping, Sean wrote: Shomik, Defendants are willing to meet-and-confer on the issues you set out below. Unfortunately, due to a number of conflicts on our side over the next two weeks (including that I will be away at trial), the earliest we could do a call is the end of the week of the 25th. Please let us know if there are times on the 28th or 29th that work for you. Best, Sean Sean Topping | Associate Pronouns: he / him / his Norton Rose Fulbright US LLP 1301 Avenue of the Americas, New York, New York 10019-6022, United States Tel +1 212 318 3361 | Fax +1 212 318 3400 sean.topping@nortonrosefulbright.com NORTON ROSE FULBRIGHT Law around the world nortonrosefulbright.com From: Shomik Ghosh [mailto:sg@mandelbhandari.com] Sent: Wednesday, October 13, 2021 12:16 PM To: Corder, Victoria ; Topping, Sean ; Archer, Judith A. Cc: Evan Mandel ; Leah Vickers ; Younger, Stephen P. Subject: Tekiner v. Bremen House et al. [External Email – Use Caution] Victoria, FILED: NEW YORK COUNTY CLERK 01/31/2023 03:24 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1154 RECEIVED NYSCEF: 01/31/2023 We write with regards to Defendants’ privilege log. For the reasons described below, Defendants privilege log indicates Defendants have wrongfully withheld thousands of non-privileged documents. Please let us know when you are able to meet & confer regarding the issues outlined below. 1. Defendants' communications with the companies’ employees/officers and outside counsel regarding the affairs of the companies created before January 5, 2021 have been improperly withheld The Defendants’ privilege log contains thousands of entries prior to January 11, 2021 within which employees, agents, or officers of the companies purportedly engage in privileged communications (a) with outside counsel or (b) among themselves. As a director of the companies at the time these documents were created, Plaintiff was a joint client of the companies, had access to these communications, and thus cannot be excluded from accessing them now. See, e.g., Kirby v. Kirby, No. CIV..A 8604, 1987 WL 14862, at *7 (Del. Ch. July 29, 1987) (“The directors are all responsible for the proper management of the corporation, and it seems consistent with their joint obligations that they be treated as the “joint client” when legal advice is rendered to the corporation through one of its officers or directors.”). Plaintiff’s right to access these documents is especially pronounced given Defendants’ decision to raise counterclaims against Plaintiff asserting a variety of breaches in her capacity as a director of the companies. Among other things, Defendants have alleged in their counterclaims that Plaintiff: · did not play a role at the companies and is not involved in the daily operations. · recommended a real estate advisor who “failed to provide any useful advice or interim invoices despite repeated requests, and ultimately billed the Companies an unreasonable amount that was greatly in excess of the agreed-upon compensation.”; · interfered in leasing and maintenance of commercial space to the detriment of the Companies; · opposed extending leases to potentially lucrative prospective tenants based on personal whims and opinions; · objected to the Extell transaction after allegedly playing an integral role in its development. As a result of these alleged actions, Defendants allege that Plaintiff—in relevant part—breached her fiduciary duties by “disrupting the companies’ business by picking fights with its staff or her family members or demanding the companies make decisions based on Yasemin’s personal whims and opinions, instead of sound business judgment.” Defendants also accuse Plaintiff of “caus[ing] the Companies to waste or give away valuable corporate assets without the Companies’ receiving adequate compensation in return, or caus[ing] the Companies to divert company assets in uneconomical ways that benefit Yasemin but not the Companies.” Defendants’ injection of these issues into the litigation further amplifies Plaintiff’s right to access these documents. As the Appellate Division has explained: “Under both New York and Delaware laws, the fact that [the directors] are no longer directors is not fatal to their motion to compel, since their conduct while directors has been called into question and the inspection is needed to prepare their defenses.” People ex. rel. Spitzer v. Greenberg, 50 A.D.3d 195, 202 (1st Dep’t 2008). Because Defendants have chosen to call into question Plaintiff’s conduct as director, Defendants must allow Plaintiff to inspect documents regarding the issues listed above to prepare for her defense. INDEX NO. 657193/2020 FILED: 2. Berrin, NEW YORKBillur, and Christiana COUNTY CLERKTrust’s communications 01/31/2023 03:24have AM been improperly withheld NYSCEF DOC. NO. 1154 RECEIVED NYSCEF: 01/31/2023 Defendants’ log includes thousands of emails in which Billur, Berrin, or the Christiana Trust were participants. As Defendants well know, Billur, Berrin, and Christiana Trust all owe fiduciary duties to Plaintiff as a result of their roles in The Yasemin Tekiner 2011 Descendants Trust (the “Trust”). As a result of these relationships, Billur, Berrin, and Christiana Trust’s communications regarding matters that have relevance to the Trust cannot be withheld from Plaintiff (the beneficiary of the Trust). As the First Department has explained, the fiduciary exception to the attorney-client privilege holds that “when a trustee seeks legal advice in executing his or her fiduciary duties, he or she is acting ultimately on behalf of the beneficiaries of the trust and, accordingly, cannot cloak his or her actions from them, the attorney's real clients.” Nama Holdings, LLC v. Greenberg Traurig LLP, 133 A.D.3d 46, 53 (1st Dep’t 2015). When Billur, Berrin, and Christiana Trust communicated regarding the companies, they were necessarily also acting as fiduciaries of the Trust regardless of whatever obligations they had to the companies themselves. As a result, under the well- recognized fiduciary exception, Berrin, Billur, and Christiana Trust’s communications cannot be withheld from Plaintiff. See e.g., Stenovich v. Wachtell, Lipton, Rosen & Katz, 195 Misc. 2d 99, 113, 756 N.Y.S.2d 367, 381 (Sup. Ct. 2003) (finding that when a fiduciary communicates with an attorney to “advise him or her in the exercise of his or her fiduciary responsibilities, his or her communications with that attorney are not absolutely protected from inquiry by the beneficiaries for whom the fiduciary performs.”). 3. Defendants' communications with numerous third parties have been improperly withheld It is hornbook law that "communications made between a defendant and counsel in the known presence of a third party are not privileged." People v. Osorio, 75 N.Y.2d 80, 84 (Court of Appeals, 1989). Here, Defendants have wrongfully withheld communications with a number of third-parties, including—but not limited to—Marcus Millichap (a real estate brokerage company), Corocan (a real estate brokerage company), Warburg Pincus (a private equity firm), Paul Schwartzman (the head of a software company), Beck & Baumann (an accounting firm), Chick-Fil-A (a fast food company), Marks Paneth (an accounting firm), Swissotel (a hotel chain), Paul Howard (an IT professional), and Steven Levine (an accountant). To the extent Defendants are claiming these individuals are agents of the companies, Defendants’ privilege assertion still fails because none of these individuals were “made to a person serving as a translator or interpreter in order to facilitate communications between the lawyer and the client.” Delta Fin. Corp. v. Morrison, N.Y.S.2d 745, 748 (Sup. Ct. 2006). Defendants' communications with these third parties thus should not have been withheld. 4. Defendants' communications with one another should not have been withheld. Defendants' log also includes a number of entries where the individual defendants are communicating with no lawyer present. For example, there are numerous entries between only Billur and Berrin, Billur and luzesther82@yahoo.com, and Sadan Gurbuzturk where no attorneys are present. While Defendants claim that the parties to the emails were discussing "legal advice," they do not disclose from whom the legal advice was provided or why the documents could not be redacted. Such information is required for Plaintiff (as well as the Court) to determine whether privilege has been properly claimed here. Thanks, INDEX NO. 657193/2020 Shomik FILED: NEW YORK COUNTY CLERK 01/31/2023 03:24 AM NYSCEF DOC. NO. 1154 RECEIVED NYSCEF: 01/31/2023 -- Shomik Ghosh Mandel Bhandari LLP 80 Pine Street, NY, NY 10005 e sg@mandelbhandari.com p 203-285-4398 CONFIDENTIALITY NOTICE: This email, including any attachments, is confidential and may be privileged. If you are not the intended recipient please notify the sender immediately, and please delete it; you should not copy it or use it for any purpose or disclose its contents to any other person. Norton Rose Fulbright entities reserve the right to monitor all email communications through their networks. Norton Rose Fulbright Australia, Norton Rose Fulbright LLP, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa Inc and Norton Rose Fulbright US LLP are separate legal entities and all of them are members of Norton Rose Fulbright Verein, a Swiss verein. Norton Rose Fulbright Verein helps coordinate the activities of the members but does not itself provide legal services to clients. Details of each entity, with certain regulatory information, are available at nortonrosefulbright.com. -- Shomik Ghosh Mandel Bhandari LLP 80 Pine Street, NY, NY 10005 e sg@mandelbhandari.com p 203-285-4398