Preview
FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018
NYSCEF DOC. NO. 752 RECEIVED NYSCEF: 02/01/2023
EXHIBIT 7
Transcript Excerpts from Deposition of
Fiorello Co-CEO Susan Yoss, Dated
January 23, 2020
Index No. 652343/2018
FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018
NYSCEF DOC. NO. 752 RECEIVED NYSCEF: 02/01/2023
Page 1
1 SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
2
INDEX NO: 652343/2018
3
4 CRESCO LABS NEW YORK, LLC, a New York
limited liability company, and CRESCO LABS
5 LLC, an Illinois limited liability
company,
6
Plaintiff/Counterclaim Defendants,
7
vs.
8
FIORELLO PHARMACEUTICALS, INC., a New York
9 corporation,
10 Defendant/Counterclaim Plaintiffs,
11 and
12 ERIC SIROTA, an individual, SUSAN YOSS,
an individual, and JOHN DOES 1 -10,
13
Defendants.
14 ______________________________________________/
15
VERITEXT LEGAL SOLUTIONS
16 2 S. BISCAYNE BOULEVARD
SUITE 2200
17 MIAMI, FL 33131
Thursday, January 23, 2020
18 9:21 a.m. - 6:28 p.m.
19
VIDEOTAPED DEPOSITION OF SUSAN YOSS
20
21 Taken on behalf of the Plaintiff before
22 Elizabeth Cordoba, RMR, CRR, FPR, Notary Public in
23 and for the State of Florida at Large, pursuant to
24 Plaintiff's Notice of Taking Deposition in the above
25 cause.
Veritext Legal Solutions
212-279-9424 www.veritext.com 212-490-3430
FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018
NYSCEF DOC. NO. 752 RECEIVED NYSCEF: 02/01/2023
Page 30
1 after Fiorello signed the letter of intent? Did that --
2 MR. LEFTON: Objection. Overbroad, vague and
3 ambiguous --
4 THE WITNESS: Right.
5 MR. LEFTON: -- and incomprehensible.
6 BY MR. HIPP:
7 Q. Did Fiorello -- after signing the letter of
8 intent with Cresco, did Fiorello talk to other entities
9 interested in a sales transaction with Fiorello in
10 February of 2018?
11 MR. LEFTON: Also overbroad and vague.
12 You may answer if you understand it.
13 THE WITNESS: Once we signed the letter of
14 intent, we did not, during the period of the letter
15 of intent, speak to any other party.
16 BY MR. HIPP:
17 Q. Okay. And what do you mean by "speak to any
18 other party"?
19 A. We didn't discuss another transaction. Our
20 transaction that we had agreed to was to try to get the
21 Cresco transaction closed.
22 Q. Okay. So when you say "we didn't discuss
23 another transaction," that means in person, right?
24 MR. LEFTON: Objection. Mischaracterizes the
25 testimony.
Veritext Legal Solutions
212-279-9424 www.veritext.com 212-490-3430
FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018
NYSCEF DOC. NO. 752 RECEIVED NYSCEF: 02/01/2023
Page 31
1 BY MR. HIPP:
2 Q. Do you understand -- when you -- do you
3 understand -- did Fiorello -- during -- as you said,
4 during the period of the letter of intent, did Fiorello
5 speak to, in person, any other party about a transaction?
6 A. The answer is -- speak to in person? We didn't
7 discuss in writing anything. So I'm just trying to --
8 just trying to -- so the answer is, speak, no.
9 Q. No -- no in-person discussion?
10 A. About another transaction?
11 Q. Yes.
12 A. No.
13 Q. Okay. No phone calls about another
14 transaction?
15 A. I don't know what -- we didn't negotiate. We
16 didn't discuss another transaction as an alternative at
17 all. We were focused on the Cresco deal.
18 Q. Okay. And that was something that you -- that
19 was only -- you only -- that was something that changed
20 when you signed the letter of intent with Cresco, right?
21 A. We --
22 MR. LEFTON: Objection. She was talking about
23 the period covered by the letter of intent.
24 BY MR. HIPP:
25 Q. Prior to executing the letter of intent, did
Veritext Legal Solutions
212-279-9424 www.veritext.com 212-490-3430
FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018
NYSCEF DOC. NO. 752 RECEIVED NYSCEF: 02/01/2023
Page 161
1 Q. Did you provide any -- do you remember anything
2 about any input that you provided?
3 A. The input that I specifically provided.
4 Q. Yes.
5 A. I don't know the input that I provided, that
6 Eric provided, or our counsel provided. I don't -- you
7 know, I can't distinguish between that.
8 Q. What input did Fiorello provide to Cresco in
9 the course of the negotiations?
10 A. We had an initial draft that we received in --
11 in December of 2017. We -- "we" meaning the Fiorello team
12 and counsel -- sent a markup back to Charlie Bachtell in
13 early January. Charlie Bachtell sent a markup back to us.
14 There are parts of it that I do remember that
15 were -- there are parts that I -- I -- that I do remember.
16 Some of the changes that were important to Fiorello, I
17 remember.
18 Q. What were those changes that were important?
19 A. We specifically took out the word "potential
20 financiers" in the confidentiality provision because we
21 were also -- if this deal didn't happen, this deal wasn't
22 successful in -- in -- in -- in finalizing definitive
23 documents, we needed to move forward our business. And so
24 we had a whole team working towards operationalizing our
25 business at that time.
Veritext Legal Solutions
212-279-9424 www.veritext.com 212-490-3430
FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018
NYSCEF DOC. NO. 752 RECEIVED NYSCEF: 02/01/2023
Page 171
1 Q. Do you recall that there was a discussion?
2 A. No. No. No.
3 Q. You said, "I don't recall what we discussed."
4 A. Oh. We didn't -- they sent us -- I don't know
5 whether there was a conversation. They sent us a
6 unsolicited offer during the period, that we rejected
7 because we had a transaction that we were looking -- that
8 we were working on to close with Cresco.
9 Q. How did you reject it?
10 A. We consulted with our outside counsel, in my
11 recollection.
12 MS. IZOWER-FADDÉ: Just be careful that you
13 don't get into any of your communications with
14 outside counsel --
15 THE WITNESS: Okay.
16 MS. IZOWER-FADDÉ: -- in answering the
17 question.
18 THE WITNESS: Is -- we sent an email, that
19 the -- that the board could not or would not discuss
20 any offer and that thank you very much. So it's --
21 there was -- so we -- we didn't consider anything,
22 and we told them that we could not discuss and will
23 not discuss it.
24 BY MR. HIPP:
25 Q. Before Fiorello sent that email, did -- did it
Veritext Legal Solutions
212-279-9424 www.veritext.com 212-490-3430
FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018
NYSCEF DOC. NO. 752 RECEIVED NYSCEF: 02/01/2023
Page 172
1 talk to Liberty or did it communicate with Liberty in any
2 way?
3 A. I recall a breakfast. I just don't know when
4 it was that we met the -- the principals of Liberty
5 Health, which was a meet and greet. We didn't discuss a
6 transaction of the company, so I --
7 Q. This was during the period with --
8 A. I --
9 Q. -- with the Cresco letter of intent was in
10 effect?
11 A. I don't -- I don't know when it was. It was
12 the date that Liberty -- that they were ringing the bell
13 on the stock exchange. So I -- I don't know the date it
14 was.
15 Q. What was discussed at that meeting? You said
16 it was a meet and greet?
17 A. I -- you know, our -- our backgrounds. You
18 know, it's a very small industry, and we didn't discuss --
19 we couldn't discuss our business. We didn't discuss our
20 business. And, you know, we discussed ourselves
21 personally. So . . .
22 Q. What did you tell -- what did you say at that
23 meeting?
24 A. I don't recall what I said.
25 Q. You talked about your personal life?
Veritext Legal Solutions
212-279-9424 www.veritext.com 212-490-3430
FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018
NYSCEF DOC. NO. 752 RECEIVED NYSCEF: 02/01/2023
Page 173
1 (Telephone interruption.)
2 THE WITNESS: I don't recall the specific
3 conversation.
4 BY MR. HIPP:
5 Q. Do you remember anything that George Scorsis
6 said?
7 MR. LEFTON: Hello?
8 THE WITNESS: The thing that I remember is they
9 were going to -- they were in town to ring the bell
10 on a initial public offering that morning. That's
11 what -- that's what I remember.
12 BY MR. HIPP:
13 Q. Who was at that meeting?
14 A. George Scorsis, Rene Gulliver, Eric Sirota, and
15 myself.
16 Q. And so Scorsis or Gulliver talked about
17 ringing -- ringing the bell?
18 A. I don't recall the -- the conversations. I
19 just -- that's what I recall.
20 Q. You don't remember anything that Scorsis said?
21 A. No. Just recall that.
22 Q. You don't remember anything that Gulliver said?
23 A. No.
24 Q. Anything that Sirota said?
25 A. No.
Veritext Legal Solutions
212-279-9424 www.veritext.com 212-490-3430
FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018
NYSCEF DOC. NO. 752 RECEIVED NYSCEF: 02/01/2023
Page 174
1 Q. Did you learn that Liberty was interested in a
2 deal with Fiorello?
3 A. At that meeting?
4 Q. At that meeting.
5 A. No.
6 MR. HIPP: I'm going to show you a document
7 that's already been marked Siegel Exhibit 8.
8 (Previously marked Siegel Exhibit 8 February
9 15, 2018 Email Chain, was referred to.)
10 MR. LEFTON: Add it to my list, please.
11 I apologize about the phone. I thought I had
12 turned it off. I actually turned it on.
13 Where are your glasses?
14 MR. HIPP: I apologize for the small print.
15 This is --
16 THE WITNESS: I can't see this.
17 MR. LEFTON: Are they in the other room?
18 THE WITNESS: Yeah. Maybe if I -- it may be
19 too small.
20 MS. IZOWER-FADDÉ: Okay. Wait.
21 So we're going to go off the record for a
22 couple minutes so that the witness can locate her
23 glasses.
24 THE VIDEOGRAPHER: We're off the record. The
25 time is 3:09 p.m.
Veritext Legal Solutions
212-279-9424 www.veritext.com 212-490-3430
Preview
FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 752 RECEIVED NYSCEF: 02/01/2023 EXHIBIT 7 Transcript Excerpts from Deposition of Fiorello Co-CEO Susan Yoss, Dated January 23, 2020 Index No. 652343/2018 FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 752 RECEIVED NYSCEF: 02/01/2023 Page 1 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK 2 INDEX NO: 652343/2018 3 4 CRESCO LABS NEW YORK, LLC, a New York limited liability company, and CRESCO LABS 5 LLC, an Illinois limited liability company, 6 Plaintiff/Counterclaim Defendants, 7 vs. 8 FIORELLO PHARMACEUTICALS, INC., a New York 9 corporation, 10 Defendant/Counterclaim Plaintiffs, 11 and 12 ERIC SIROTA, an individual, SUSAN YOSS, an individual, and JOHN DOES 1 -10, 13 Defendants. 14 ______________________________________________/ 15 VERITEXT LEGAL SOLUTIONS 16 2 S. BISCAYNE BOULEVARD SUITE 2200 17 MIAMI, FL 33131 Thursday, January 23, 2020 18 9:21 a.m. - 6:28 p.m. 19 VIDEOTAPED DEPOSITION OF SUSAN YOSS 20 21 Taken on behalf of the Plaintiff before 22 Elizabeth Cordoba, RMR, CRR, FPR, Notary Public in 23 and for the State of Florida at Large, pursuant to 24 Plaintiff's Notice of Taking Deposition in the above 25 cause. Veritext Legal Solutions 212-279-9424 www.veritext.com 212-490-3430 FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 752 RECEIVED NYSCEF: 02/01/2023 Page 30 1 after Fiorello signed the letter of intent? Did that -- 2 MR. LEFTON: Objection. Overbroad, vague and 3 ambiguous -- 4 THE WITNESS: Right. 5 MR. LEFTON: -- and incomprehensible. 6 BY MR. HIPP: 7 Q. Did Fiorello -- after signing the letter of 8 intent with Cresco, did Fiorello talk to other entities 9 interested in a sales transaction with Fiorello in 10 February of 2018? 11 MR. LEFTON: Also overbroad and vague. 12 You may answer if you understand it. 13 THE WITNESS: Once we signed the letter of 14 intent, we did not, during the period of the letter 15 of intent, speak to any other party. 16 BY MR. HIPP: 17 Q. Okay. And what do you mean by "speak to any 18 other party"? 19 A. We didn't discuss another transaction. Our 20 transaction that we had agreed to was to try to get the 21 Cresco transaction closed. 22 Q. Okay. So when you say "we didn't discuss 23 another transaction," that means in person, right? 24 MR. LEFTON: Objection. Mischaracterizes the 25 testimony. Veritext Legal Solutions 212-279-9424 www.veritext.com 212-490-3430 FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 752 RECEIVED NYSCEF: 02/01/2023 Page 31 1 BY MR. HIPP: 2 Q. Do you understand -- when you -- do you 3 understand -- did Fiorello -- during -- as you said, 4 during the period of the letter of intent, did Fiorello 5 speak to, in person, any other party about a transaction? 6 A. The answer is -- speak to in person? We didn't 7 discuss in writing anything. So I'm just trying to -- 8 just trying to -- so the answer is, speak, no. 9 Q. No -- no in-person discussion? 10 A. About another transaction? 11 Q. Yes. 12 A. No. 13 Q. Okay. No phone calls about another 14 transaction? 15 A. I don't know what -- we didn't negotiate. We 16 didn't discuss another transaction as an alternative at 17 all. We were focused on the Cresco deal. 18 Q. Okay. And that was something that you -- that 19 was only -- you only -- that was something that changed 20 when you signed the letter of intent with Cresco, right? 21 A. We -- 22 MR. LEFTON: Objection. She was talking about 23 the period covered by the letter of intent. 24 BY MR. HIPP: 25 Q. Prior to executing the letter of intent, did Veritext Legal Solutions 212-279-9424 www.veritext.com 212-490-3430 FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 752 RECEIVED NYSCEF: 02/01/2023 Page 161 1 Q. Did you provide any -- do you remember anything 2 about any input that you provided? 3 A. The input that I specifically provided. 4 Q. Yes. 5 A. I don't know the input that I provided, that 6 Eric provided, or our counsel provided. I don't -- you 7 know, I can't distinguish between that. 8 Q. What input did Fiorello provide to Cresco in 9 the course of the negotiations? 10 A. We had an initial draft that we received in -- 11 in December of 2017. We -- "we" meaning the Fiorello team 12 and counsel -- sent a markup back to Charlie Bachtell in 13 early January. Charlie Bachtell sent a markup back to us. 14 There are parts of it that I do remember that 15 were -- there are parts that I -- I -- that I do remember. 16 Some of the changes that were important to Fiorello, I 17 remember. 18 Q. What were those changes that were important? 19 A. We specifically took out the word "potential 20 financiers" in the confidentiality provision because we 21 were also -- if this deal didn't happen, this deal wasn't 22 successful in -- in -- in -- in finalizing definitive 23 documents, we needed to move forward our business. And so 24 we had a whole team working towards operationalizing our 25 business at that time. Veritext Legal Solutions 212-279-9424 www.veritext.com 212-490-3430 FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 752 RECEIVED NYSCEF: 02/01/2023 Page 171 1 Q. Do you recall that there was a discussion? 2 A. No. No. No. 3 Q. You said, "I don't recall what we discussed." 4 A. Oh. We didn't -- they sent us -- I don't know 5 whether there was a conversation. They sent us a 6 unsolicited offer during the period, that we rejected 7 because we had a transaction that we were looking -- that 8 we were working on to close with Cresco. 9 Q. How did you reject it? 10 A. We consulted with our outside counsel, in my 11 recollection. 12 MS. IZOWER-FADDÉ: Just be careful that you 13 don't get into any of your communications with 14 outside counsel -- 15 THE WITNESS: Okay. 16 MS. IZOWER-FADDÉ: -- in answering the 17 question. 18 THE WITNESS: Is -- we sent an email, that 19 the -- that the board could not or would not discuss 20 any offer and that thank you very much. So it's -- 21 there was -- so we -- we didn't consider anything, 22 and we told them that we could not discuss and will 23 not discuss it. 24 BY MR. HIPP: 25 Q. Before Fiorello sent that email, did -- did it Veritext Legal Solutions 212-279-9424 www.veritext.com 212-490-3430 FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 752 RECEIVED NYSCEF: 02/01/2023 Page 172 1 talk to Liberty or did it communicate with Liberty in any 2 way? 3 A. I recall a breakfast. I just don't know when 4 it was that we met the -- the principals of Liberty 5 Health, which was a meet and greet. We didn't discuss a 6 transaction of the company, so I -- 7 Q. This was during the period with -- 8 A. I -- 9 Q. -- with the Cresco letter of intent was in 10 effect? 11 A. I don't -- I don't know when it was. It was 12 the date that Liberty -- that they were ringing the bell 13 on the stock exchange. So I -- I don't know the date it 14 was. 15 Q. What was discussed at that meeting? You said 16 it was a meet and greet? 17 A. I -- you know, our -- our backgrounds. You 18 know, it's a very small industry, and we didn't discuss -- 19 we couldn't discuss our business. We didn't discuss our 20 business. And, you know, we discussed ourselves 21 personally. So . . . 22 Q. What did you tell -- what did you say at that 23 meeting? 24 A. I don't recall what I said. 25 Q. You talked about your personal life? Veritext Legal Solutions 212-279-9424 www.veritext.com 212-490-3430 FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 752 RECEIVED NYSCEF: 02/01/2023 Page 173 1 (Telephone interruption.) 2 THE WITNESS: I don't recall the specific 3 conversation. 4 BY MR. HIPP: 5 Q. Do you remember anything that George Scorsis 6 said? 7 MR. LEFTON: Hello? 8 THE WITNESS: The thing that I remember is they 9 were going to -- they were in town to ring the bell 10 on a initial public offering that morning. That's 11 what -- that's what I remember. 12 BY MR. HIPP: 13 Q. Who was at that meeting? 14 A. George Scorsis, Rene Gulliver, Eric Sirota, and 15 myself. 16 Q. And so Scorsis or Gulliver talked about 17 ringing -- ringing the bell? 18 A. I don't recall the -- the conversations. I 19 just -- that's what I recall. 20 Q. You don't remember anything that Scorsis said? 21 A. No. Just recall that. 22 Q. You don't remember anything that Gulliver said? 23 A. No. 24 Q. Anything that Sirota said? 25 A. No. Veritext Legal Solutions 212-279-9424 www.veritext.com 212-490-3430 FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 752 RECEIVED NYSCEF: 02/01/2023 Page 174 1 Q. Did you learn that Liberty was interested in a 2 deal with Fiorello? 3 A. At that meeting? 4 Q. At that meeting. 5 A. No. 6 MR. HIPP: I'm going to show you a document 7 that's already been marked Siegel Exhibit 8. 8 (Previously marked Siegel Exhibit 8 February 9 15, 2018 Email Chain, was referred to.) 10 MR. LEFTON: Add it to my list, please. 11 I apologize about the phone. I thought I had 12 turned it off. I actually turned it on. 13 Where are your glasses? 14 MR. HIPP: I apologize for the small print. 15 This is -- 16 THE WITNESS: I can't see this. 17 MR. LEFTON: Are they in the other room? 18 THE WITNESS: Yeah. Maybe if I -- it may be 19 too small. 20 MS. IZOWER-FADDÉ: Okay. Wait. 21 So we're going to go off the record for a 22 couple minutes so that the witness can locate her 23 glasses. 24 THE VIDEOGRAPHER: We're off the record. The 25 time is 3:09 p.m. Veritext Legal Solutions 212-279-9424 www.veritext.com 212-490-3430