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FILED: NEW YORK COUNTY CLERK 02/09/2023 06:34 PM INDEX NO. 650788/2023
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 02/09/2023
EXHIBIT G
FILED: NEW YORK COUNTY CLERK 02/09/2023 06:34 PM INDEX NO. 650788/2023
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 02/09/2023
New York Financial District Headquarters
225 Broadway 17th Fl, New York, NY 10007
+ 1 3 4 7. 8 9 7. 61 9 9
August 16, 2022
Via Electronic Mail: Jbrinen@brinenlaw.com
Joshua D. Brinen, Esq.
Brinen & Associates, LLC
90 Broad Street, Tenth Floor
New York, NY 10004
RE: Dispute Between Members of NU Media Holdings LLC (“Company”)
Dear Mr. Brinen:
Please be advised that we are incoming counsel for Ms. Linyu Hu, Ms. Yihua Jiang, and
MoreViews Inc. (together as “Nu Media”) in connection with the claims and allegations brought
by your client Universal Processing, LLC. (“Universal”). We have just been retained and are in
the process of obtaining the complete case file from prior counsel, Mr. James Beckstrom, Esq. As
such, we anticipate being able to provide a substantive response to your client’s demands on or
before September 6, 2022.
As a preliminary matter, however, please take notice that your letters dated August 12,
2022 1 (“August 12 Letters”) are insufficient to satisfy the pre-litigation demand requirement under
BCL § 626(c) for several reasons. First, the parties have been and continue to engage in active
discussions regarding your client’s allegations and demands. In correspondence between counsels
in the month of August, my clients offered to take substantial actions in response to concerns raised
by Universal. While the parties’ settlement discussions have not yielded a satisfactory resolution,
my clients have and continue to make good-faith efforts to avoid unnecessary litigation, and it is
entirely premature to declare such ongoing efforts futile.
Second, the short four-day deadline contained in your August 12 Letters “makes the pre-
suit demand appear perfunctory and, therefore, undermines the purposes of the demand
requirement.” D. Karnofsky, Inc. v. Rozof, No. 450427/2018, 2020 WL 3000556, at *1 (N.Y. Sup.
Ct. Apr. 04, 2020) (dismissing a shareholder’s derivative claims filed “five days after sending the
[d]emand [l]etter.”)
Third, given your substantial involvement in drafting Company’s Operating Agreement,
your past representation of Company, and Company’s potential obligation to indemnify its
1
We note that the August 12 Letters were sent directly to my clients Ms. Hu and Mr. Zhao, who you
knew to be represented by counsel, without any indication that their then counsel, Mr. Beckstrom, was
copied on those communication. The fact that you thereafter forwarded the letters to Mr. Beckstrom does
not cure the unauthorized communication. See NYRPC Rule 4.2(a). Please ensure such unauthorized
communication with parties represented by counsel does not happen again.
FILED: NEW YORK COUNTY CLERK 02/09/2023 06:34 PM INDEX NO. 650788/2023
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 02/09/2023
J os hua D. B ri n en , Es q.
A u gus t 1 6, 2 0 22
members pursuant to Section 5.5 of the Operating Agreement, you and your firm would be
disqualified from representing the Company, even in a derivative capacity. See 1186 Broadway
Tenant LLC v. Kenneth Friedman, Biergarten, LLC, No. 595995/2018, 2019 WL 6217275, at *3
(N.Y. Sup. Ct. Nov. 21, 2019) (disqualifying counsel from simultaneously representing a plaintiff
shareholder and the company in a derivative action because the potential exists for company to
indemnify the defendant shareholders.) Moreover, potential conflict of interest also exists to the
extent your firm may represent a current client, Universal, against a former client, Company. See
22 NYCRR 1200.27.
Lastly, please be advised that, to the extent Universal alleges that Company failed to
comply with GAAP and other accounting irregularities, we reserve the right to assert appropriate
claims against Universal for its role in maintaining the books and records and performing
accounting functions for the Company. Indeed, Company’s accounting functions are performed
entirely by employees of Universal, who have acted as the Company’s accountant, maintained
Company’s financial records, as well as processed monthly member distributions during all
relevant times.
While my clients neither seek nor fear litigation, we continue to believe that the parties
can work together to resolve this dispute amicably. Please do not hesitate to contact me if you
would like to discuss further. Thank you.
Very truly yours,
Thomas Hsien Chih Kung, Esq.
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FILED: NEW YORK COUNTY CLERK 02/09/2023 06:34 PM INDEX NO. 650788/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 02/09/2023 EXHIBIT G FILED: NEW YORK COUNTY CLERK 02/09/2023 06:34 PM INDEX NO. 650788/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 02/09/2023 New York Financial District Headquarters 225 Broadway 17th Fl, New York, NY 10007 + 1 3 4 7. 8 9 7. 61 9 9 August 16, 2022 Via Electronic Mail: Jbrinen@brinenlaw.com Joshua D. Brinen, Esq. Brinen & Associates, LLC 90 Broad Street, Tenth Floor New York, NY 10004 RE: Dispute Between Members of NU Media Holdings LLC (“Company”) Dear Mr. Brinen: Please be advised that we are incoming counsel for Ms. Linyu Hu, Ms. Yihua Jiang, and MoreViews Inc. (together as “Nu Media”) in connection with the claims and allegations brought by your client Universal Processing, LLC. (“Universal”). We have just been retained and are in the process of obtaining the complete case file from prior counsel, Mr. James Beckstrom, Esq. As such, we anticipate being able to provide a substantive response to your client’s demands on or before September 6, 2022. As a preliminary matter, however, please take notice that your letters dated August 12, 2022 1 (“August 12 Letters”) are insufficient to satisfy the pre-litigation demand requirement under BCL § 626(c) for several reasons. First, the parties have been and continue to engage in active discussions regarding your client’s allegations and demands. In correspondence between counsels in the month of August, my clients offered to take substantial actions in response to concerns raised by Universal. While the parties’ settlement discussions have not yielded a satisfactory resolution, my clients have and continue to make good-faith efforts to avoid unnecessary litigation, and it is entirely premature to declare such ongoing efforts futile. Second, the short four-day deadline contained in your August 12 Letters “makes the pre- suit demand appear perfunctory and, therefore, undermines the purposes of the demand requirement.” D. Karnofsky, Inc. v. Rozof, No. 450427/2018, 2020 WL 3000556, at *1 (N.Y. Sup. Ct. Apr. 04, 2020) (dismissing a shareholder’s derivative claims filed “five days after sending the [d]emand [l]etter.”) Third, given your substantial involvement in drafting Company’s Operating Agreement, your past representation of Company, and Company’s potential obligation to indemnify its 1 We note that the August 12 Letters were sent directly to my clients Ms. Hu and Mr. Zhao, who you knew to be represented by counsel, without any indication that their then counsel, Mr. Beckstrom, was copied on those communication. The fact that you thereafter forwarded the letters to Mr. Beckstrom does not cure the unauthorized communication. See NYRPC Rule 4.2(a). Please ensure such unauthorized communication with parties represented by counsel does not happen again. FILED: NEW YORK COUNTY CLERK 02/09/2023 06:34 PM INDEX NO. 650788/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 02/09/2023 J os hua D. B ri n en , Es q. A u gus t 1 6, 2 0 22 members pursuant to Section 5.5 of the Operating Agreement, you and your firm would be disqualified from representing the Company, even in a derivative capacity. See 1186 Broadway Tenant LLC v. Kenneth Friedman, Biergarten, LLC, No. 595995/2018, 2019 WL 6217275, at *3 (N.Y. Sup. Ct. Nov. 21, 2019) (disqualifying counsel from simultaneously representing a plaintiff shareholder and the company in a derivative action because the potential exists for company to indemnify the defendant shareholders.) Moreover, potential conflict of interest also exists to the extent your firm may represent a current client, Universal, against a former client, Company. See 22 NYCRR 1200.27. Lastly, please be advised that, to the extent Universal alleges that Company failed to comply with GAAP and other accounting irregularities, we reserve the right to assert appropriate claims against Universal for its role in maintaining the books and records and performing accounting functions for the Company. Indeed, Company’s accounting functions are performed entirely by employees of Universal, who have acted as the Company’s accountant, maintained Company’s financial records, as well as processed monthly member distributions during all relevant times. While my clients neither seek nor fear litigation, we continue to believe that the parties can work together to resolve this dispute amicably. Please do not hesitate to contact me if you would like to discuss further. Thank you. Very truly yours, Thomas Hsien Chih Kung, Esq.