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FILED: NEW YORK COUNTY CLERK 05/25/2023 11:50 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1654 RECEIVED NYSCEF: 05/25/2023
EXHIBIT 9
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1 SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: CIVIL TERM: PART 3
2 ----------------------------------------------------X
YASEMIN TEKINER, in her Individual Capacity, as a
3 Beneficiary and a Trustee of the Yasemin Tekiner 2011
Descendants Trust and Derivatively as a Holder of
4 Equitable Interests in a Shareholder or a Member of
the Company Defendants,
5
Plaintiff,
6
- against - INDEX #
7 657193/2020
BREMEN HOUSE INC., GERMAN NEWS COMPANY, INC.,
8 BERRIN TEKINER, GONCA TEKINER and BILLUR AKIPEK,
in her Capacity as a Trustee of the Yasemin Tekiner 2011
9 Descendants Trust,
10 Defendants.
----------------------------------------------------X
11 ZEYNEP TEKINER, in her Individual Capacity, as a
Beneficiary and a Trustee of the Zeynep Tekiner 2011
12 Descendants Trust and Derivatively as a Holder of
Equitable Interests in a Shareholder or a Member of
13 the Company Defendants,
14
Intervenor - Plaintiff,
15
- against -
16
BREMEN HOUSE INC., GERMAN NEWS COMPANY, INC.,
17 BERRIN TEKINER, GONCA TEKINER and BILLUR AKIPEK,
in her Capacity as a Trustee of the Zeynep Tekiner
18 2011 Descendants Trust,
19
Defendants.
20 ----------------------------------------------------X
Motions
21
February 17, 2023
22 60 Centre Street
New York, New York 10007
23
24 B E F O R E: THE HONORABLE JOEL COHEN,
Justice of the Supreme Court
25
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1 A P P E A R A N C E S:
2 FOLEY HOAG LLP
Attorneys for the Plaintiff Yasemin
3 1301 Avenue of the Americas
New York, NY 10019
4 By: BENJAMIN WEISSMAN, ESQ.
ROBERT HANEY, ESQ.
5
6
KAHN & GOLDBERG LLP
7 Attorneys for the Plaintiff Zeynep
555 Fifth Avenue, 14th Floor
8 New York, NY 10017
By: MICHELE KAHN, ESQ.
9
10
11 PIB LAW
Attorneys for Plaintiff Yasemin
12 5 Penn Plaza, Suite 2371
New York, NY 10001
13 By: SANJAY IBRAHIM, ESQ.
SCOTT PARKER, ESQ.
14
15
HARWOOD LAW PLLC
16 Attorneys for Plaintiffs
260 Madison Avenue, 8th Floor
17 New York, NY 10016
By: ANTHONY HARWOOD, ESQ.
18
19
20 PRYOR CASHMAN LLP
Attorneys for the Defendants
21 7 Times Square
New York, NY 10036
22 By: TODD SOLOWAY, ESQ.
BRYAN MOHLER, ESQ.
23 MEGHAN HILL, ESQ.
RACHEL SHAW, ESQ.
24
25 MICHELE PANTELOUKAS
Senior Court Reporter
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1 THE COURT: Good afternoon, everyone.
2 Let's start with entry of appearance, beginning
3 with the plaintiffs.
4 MR. WEISSMAN: Sure. Benjamin Weissman for
5 Foley Hoag for plaintiff Yasemin Tekiner. And with me I
6 have Robert Haney.
7 MS. KAHN: Good afternoon, Your Honor. Michele
8 Kahn, Kahn and Goldberg for plaintiff Zeynep Tekiner.
9 THE COURT: Okay. And for the defense -- I am
10 sorry.
11 MR. IBRAHIM: Jay Ibrahim and Scott Parker from
12 Parker Ibrahim and Berg on behalf of plaintiff, Yasemin
13 Tekiner.
14 MR. HARWOOD: I am Tony Harwood, Harwood Law,
15 opposing the motion to withdraw.
16 THE COURT: Again on behalf of Yasemin?
17 MR. HARWOOD: Yasemin and Zeynep Tekiner.
18 THE COURT: Both?
19 MR. HARWOOD: Yes.
20 THE COURT: Okay.
21 And for the defense?
22 MR. SOLOWAY: Good afternoon, Your Honor.
23 Todd Soloway, Brian Mohler, Rachel Shaw and
24 Meghan Hill from Pryor Cashman, for the defendants.
25 THE COURT: All right. We have a lot to do.
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1 My inclination on the motion to withdraw is not
2 to take up the amount of time I suspect it will take to
3 deal with it, because I don't have a reply to a
4 substantial amount of new information that came in this
5 morning from the counsel who is seeking to withdraw. It
6 raises all sorts of issues that I have had no prior
7 exposure to. And it will just take a lot of time that the
8 parties have dedicated to motions that have been pending
9 for a while.
10 So, my suggestion on that is to give the movant,
11 the Parker Ibrahim folks, a week to file a reply to what
12 just came in. If you want to. If you don't want to, you
13 don't have to. And then resolve it either on the papers
14 or I'll have you back in. But from my perspective, the
15 client raises issues that I wasn't aware of, until today.
16 MR. IBRAHIM: Thank you, Your Honor. Actually I
17 am not sure if it will take up time, just based on a
18 couple of the standards.
19 First of all, we are at an acute disadvantage
20 because I am bound by the attorney/client privilege. It
21 is not my privilege to waive. Any nasty-grams, anyone who
22 wants to say anything, I am still bound by that. Whether
23 it has to do with a dispute as to the entitlement of fees,
24 that's not before -- that's not before Your Honor. That's
25 actually a subsequent action as to --
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1 THE COURT: Well, if the grounds for seeking to
2 withdraw are non-payment --
3 MR. IBRAHIM: And.
4 THE COURT: -- and payment -- and there is, in
5 fact, an argument that payment has already been made, that
6 goes to that question; does it not?
7 MR. IBRAHIM: No, Your Honor. There are
8 multiple grounds to move on. It is either that or
9 irreconcilable differences.
10 THE COURT: But the irreconcilable differences
11 seem to be about getting paid.
12 MR. IBRAHIM: No, Your Honor. I think just the
13 acrimonious tone of the surprising opposition would render
14 our ability to effectively navigate this litigation.
15 This should not take up that much time, Your
16 Honor. There is counsel that is present. As Your Honor's
17 docket will show, plenty has been happening in this case.
18 This is not a situation that in a reply -- I am just
19 bound -- I cannot state anything in opposition to whether
20 I believe what they say or not is or is not true. It is
21 really the subsequent action that will end up taking
22 place. It has nothing to do with this.
23 THE COURT: I am not sure. Look, your client
24 submitted for reasons known to her, on documents that are
25 probably privileged, in the submission that came in to me.
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1 This is more complicated than I expected. I don't want to
2 give it short shrift. And I am sure Mr. Harwood has
3 something he would like to say in response. And I have a
4 roomful of people here trying to litigate a case. So I am
5 going to defer this for the moment. If we have time at
6 the end I will deal with it.
7 MR. IBRAHIM: Sure.
8 THE COURT: If not, and if you don't want to put
9 in a reply, even if the reply is -- I mean, I think --
10 MR. IBRAHIM: We will put in a reply.
11 THE COURT: -- you can do the reply without
12 violating.
13 MR. IBRAHIM: Fair enough.
14 THE COURT: And bear in mind, your client put in
15 certain correspondence, so I think that potentially, at
16 least, gives you some leeway to defend yourself. But, I
17 don't really want to make this a prosecution. I am not a
18 big fan of forcing somebody to represent a client.
19 At the same time, you know, client interests are
20 paramount for all players, withdrawing lawyers as well.
21 And this particular set of papers raise some issues that
22 are different in most -- from most withdrawal motions.
23 I'll leave it at that.
24 So let's put a pin in that one.
25 MR. IBRAHIM: Sure.
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1 THE COURT: If we can get back to it later at
2 the end of this, that's fine. We only have six or 700
3 motions to do before then.
4 MR. IBRAHIM: Understood.
5 THE COURT: I don't have a tremendously good
6 idea about how to divide and organize this. These are all
7 motions by plaintiffs. My inclination is to give you, you
8 know, 30, 40 minutes and you just do whatever you want in
9 terms of how you want to organize and which motions you
10 want to address and in what order. And then I'll let the
11 defendants respond.
12 So, I mean, I have them organized in some way,
13 by the discovery motions, you know, for documents and
14 depositions and then those are 44, 45 and 47. And then
15 the motion to vacate note of issue, which is number 46,
16 which is kind of related. Then there is a motion to amend
17 by Zeynep, motion 48.
18 And I think that's it, other than the withdrawal
19 motion.
20 So you can -- I will let you all do whatever you
21 want.
22 MR. WEISSMAN: So I think, Your Honor --
23 THE COURT: You have an objection to that?
24 MR. SOLOWAY: No. I wanted to just, for the
25 record, Your Honor, I am not sure if Your Honor is aware
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1 that we had filed a letter and submitted it to Your Honor
2 this morning.
3 THE COURT: I have seen it.
4 MR. SOLOWAY: Okay. What I am concerned about
5 is that it affects the motions, that's what the
6 application was.
7 THE COURT: I don't think it does. I understand
8 the point. But I will tell you this, you know, even if I
9 believed that the reason for some things not occurring at
10 the end of the year was because of a dispute between
11 client and counsel, my own view of the world is that I
12 would not -- I would do whatever possible to avoid
13 prejudicing the client for something like that.
14 I didn't -- I understand your point. And it
15 did, in fact -- and again, I am not entirely sure why they
16 decided it was a good idea for me to see all of that. But
17 I -- I have already gone and understood and assumed that
18 all of this stuff should have happened during the end of
19 the year. And I am taking that into account anyway. If
20 anything, this provided a bit more color as to why maybe
21 it didn't. But in a way, you know, like I said, I don't
22 think clients should be prejudiced for this kind of stuff.
23 That same point, I understand that defendants
24 shouldn't be prejudiced either. But the reason for the
25 delay is not that important from your perspective.
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1 So, I have read your letter. I am taking it
2 into account. I am sure you found it as, sort of, odd as
3 I did to be reading some of this inside communication
4 among lawyers. And there it is.
5 So, how would you like to proceed, Mr. Weissman?
6 MR. WEISSMAN: Sure.
7 THE COURT: By the way, Mr. Younger is still
8 listed on NYSCEF, and he has changed his firm affiliation.
9 Is he still counsel or not? Or unclear?
10 MR. WEISSMAN: Unclear.
11 THE COURT: For today.
12 MR. WEISSMAN: But we, Foley Hoag, are still
13 counsel.
14 THE COURT: All right. Congratulations.
15 MR. WEISSMAN: Thank you.
16 THE COURT: Battlefield promotion is yours.
17 So can you argue from the lectern, please?
18 MR. WEISSMAN: Sure. I am just going to
19 introduce. So I think in our view, motions 44, 45, 46 and
20 47 are all interrelated.
21 THE COURT: Okay.
22 MR. WEISSMAN: I think Ms. Kahn will speak to
23 the motion to amend first, and then we will address the
24 rest.
25 THE COURT: Fine.
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1 MR. KAHN: If that's good with the Court.
2 THE COURT: Sure. The motion to amend is pretty
3 straightforward. I will tell you, I am inclined to grant
4 it subject to the defense attorney convincing me
5 otherwise. So you are just adding a claim that dovetails
6 with claims that Yasemin already has, right?
7 MR. KAHN: Yes, Your Honor. And if you want me
8 to sit and give me a chance to reply, that's great.
9 MR. SOLOWAY: Let's do this, we will consent.
10 The stipulation that we had previously was that it would
11 not -- there would be no new discovery based on the
12 amendment, and that way we can do away with one of the
13 motions.
14 THE COURT: Right. I probably wouldn't have
15 permitted any discovery anyway.
16 Are you seeking any discovery, Ms. Kahn?
17 MR. KAHN: No, Your Honor. As I said in my
18 papers, I already told them two times or three times that
19 the adding of the amendment, amended cause of action, will
20 not cause any additional discovery.
21 THE COURT: Well, maybe the fourth time was the
22 time that was necessary.
23 So the motion to amend is granted subject to,
24 you know, there is -- this will not be an independent
25 ground for new discovery. Okay?
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1 MS. KAHN: Thank you, Your Honor.
2 THE COURT: So making time up already.
3 So you are going to handle 44, 45?
4 MR. WEISSMAN: Forty-six and 47.
5 THE COURT: Okay. Let her rip.
6 MR. WEISSMAN: Thank you, Your Honor.
7 We put in extensive briefing, both parties have,
8 on these discovery issues. And I won't rehash all of them
9 now.
10 This is a case about the financial mismanagement
11 and self dealing at the defendant companies. And yet,
12 defendants have refused to produce the company bookkeeper
13 for deposition. They tried to substitute defendant Gonca,
14 who has now testified twice that she has no idea about the
15 company's books. Even earlier this week, when we
16 re-deposed her, she kept pointing to the company
17 bookkeeper as the only one with knowledge about suspicious
18 transactions in the bank records.
19 And on the bank records, we tried for a year to
20 get them directly from defendants. First, through
21 document requests, defendants refused. Then, once Yasemin
22 was reinstated as a director, through books and records
23 requests. And when that also didn't work, we subpoenaed
24 the bank directly. Defendants moved to quash that
25 subpoena, arguing that the bank records were, quote,
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1 "utterly irrelevant."
2 Now, in a case about financial mismanagement and
3 self dealing, I cannot imagine more relevant documents
4 than bank records.
5 So, we went back and forth with Santander, the
6 bank that held most of the company accounts for months,
7 and we finally received the bulk of their documents on
8 December 27.
9 We have now received the remainder of the bank
10 records from Santander in the past month. But per Your
11 Honor's order, we have not accessed them without
12 defendant's consent, and defendants have refused to grant
13 that consent.
14 And of course we now know why they have
15 resisted, having seen most of these bank records. Those
16 records revealed millions of dollars in self dealing and
17 corporate waste.
18 THE COURT: Didn't you just say that you haven't
19 read them?
20 MR. WEISSMAN: The ones produced up through
21 December 27.
22 THE COURT: Okay.
23 MR. WEISSMAN: And they paint a dire portrait of
24 the company's financials.
25 Defendants have also refused to produce
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1 defendant Billur for a second deposition. That's after
2 they withheld more than 8,000 supposedly privileged
3 documents for more than a year, producing the bulk of them
4 during and after Berrin and Gonca's deposition in October.
5 If this sounds familiar, it is because it is. Your Honor
6 already ruled that defendants would have to be re-deposed
7 based on any new documents produced after their first
8 depositions. Yet, defendants have flatout refused to
9 produce her for a second deposition. That cannot be
10 right.
11 And neither party has served expert reports.
12 This is a case that would benefit greatly from experts,
13 including experts on real estate valuation and forensic
14 accounting.
15 THE COURT: So wait a minute. So, the case
16 schedule, I will just make the assumption, had a period
17 for expert discovery prior to the note of issue date.
18 MR. WEISSMAN: Yes.
19 THE COURT: So are you saying that neither side
20 submitted expert reports or identified experts?
21 MR. WEISSMAN: Well, both sides have identified
22 experts, you know, the names and the scope of the
23 potential expert reports. Neither side has served an
24 expert report.
25 And so for us, in our view, those experts can't
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1 form their opinion until we have the underlying documents.
2 And so these are just a few of the key issues
3 raised in our motions to compel.
4 THE COURT: And have they been deposed?
5 MR. WEISSMAN: No.
6 THE COURT: Because there is no report?
7 MR. WEISSMAN: Correct.
8 THE COURT: Which means that expert discovery
9 didn't actually happen?
10 MR. WEISSMAN: Correct.
11 THE COURT: At all?
12 MR. WEISSMAN: Correct.
13 So, I would like to spend the rest of my time
14 talking about where we go from here.
15 Plaintiffs want to go to trial, but they need
16 adequate discovery to do so. Plaintiffs have no interest
17 in prolonging discovery beyond what is absolutely
18 necessary. On the contrary, every day that this case goes
19 on, is another day that the companies are paying
20 defendants' exorbitant legal bills. It is another day of
21 mismanagement and self dealing. And another day with the
22 risk that defendants decide on a whim to sell more of the
23 company's properties. In fact, earlier today plaintiffs
24 filed a motion to appoint a temporary receiver, for just
25 these reasons.
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1 Now, I don't want to speak for them, but I think
2 it is fair to say that defendants also want discovery to
3 be over. Since the last time we were before Your Honor we
4 have made significant progress. As discussed, there are
5 non-party document productions teed up from Santander, as
6 well as the corporate Trustee, WSFS Bank. Who is in the
7 same position, where they have now all but up to produced
8 the remaining documents to us.
9 But defendants have refused to consent. And we
10 are ready to receive those as soon as we are allowed. We
11 took Gonca's second deposition earlier this week. And we
12 took the real estate broker's deposition, that's John
13 Stewart, yesterday.
14 We also met and conferred with defendants and
15 offered a potential path forward. Defendants have not
16 gotten back to us on that. Instead they submitted their
17 gotcha letter that we just discussed.
18 THE COURT: Path forward on what?
19 MR. WEISSMAN: I am sorry?
20 THE COURT: You offered them a path forward on
21 what?
22 MR. WEISSMAN: A global resolution, as to a
23 stipulated amount of limited discovery, and a time period
24 to do it in. And let me describe what that path forward
25 would be.
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1 So first it would be granting 60 days to
2 complete fact discovery, so creating a limited time period
3 in which discovery would be completed. And that could be
4 accomplished either by granting our motion for discovery
5 post-note of issue, which we have already addressed at the
6 last hearing. Or by granting our motions to vacate the
7 notes of issue.
8 And the law is clear that Your Honor has
9 discretion to vacate the notes of issue where the case is
10 not ready for trial.
11 THE COURT: Well, my understanding of what today
12 was, was that all of the discovery plaintiff wants, fact
13 discovery, was all teed up for today.
14 MR. WEISSMAN: Yes.
15 THE COURT: To decide what you get, what you
16 don't get.
17 MR. WEISSMAN: Yes.
18 THE COURT: And that's it.
19 MR. WEISSMAN: Yes.
20 THE COURT: So there is no new umbrella, 60 days
21 for some unspecified discovery. What we are going to
22 decide today is what you can get, and then we will set a
23 schedule for that being done.
24 MR. WEISSMAN: Good. That makes total sense and
25 that is what we propose.
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1 THE COURT: I didn't think I needed to provide
2 for expert discovery, because I hadn't realized that
3 nobody had done it. Maybe I should have, and maybe you
4 told me that last time, but I forgot.
5 MR. WEISSMAN: So we would submit that after
6 whatever limited discovery, you know, circumscribed
7 discovery that Your Honor grants plaintiffs, there would
8 be a time for expert -- disclosure of expert reports,
9 rebuttal expert reports and then expert depositions.
10 THE COURT: Just so I am clear, there is nothing
11 in your proposed plan that envisions discovery other than
12 that sought in these pile of motions?
13 MR. WEISSMAN: Correct.
14 THE COURT: Okay, fine.
15 MR. WEISSMAN: Correct.
16 And on those items, just to be clear, kind of,
17 what we are talking about, there is a limited universe of
18 document production and depositions that we really, really
19 need. So it should include the critical financial
20 discovery. And that's the productions that are already
21 teed up from Santander and WSFS Bank. And it has to
22 include, from our perspective, the critical testimony of
23 the company bookkeeper, which has been withheld from us.
24 It has also got to include testimony from the defendant
25 Billur, based on documents that were withheld, and then
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FILED: NEW YORK COUNTY CLERK 05/25/2023 11:50 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1654 RECEIVED NYSCEF: 05/25/2023 EXHIBIT 9 FILED: NEW FILED: NEW YORK YORK COUNTY COUNTY CLERK CLERK 05/25/2023 03/03/2023 11:50 07:05 PM PM INDEX NO. INDEX NO. 657193/2020 657193/2020 NYSCEF DOC. NYSCEF DOC. NO. NO. 1654 1366 RECEIVED NYSCEF: RECEIVED NYSCEF: 05/25/2023 03/03/2023 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: CIVIL TERM: PART 3 2 ----------------------------------------------------X YASEMIN TEKINER, in her Individual Capacity, as a 3 Beneficiary and a Trustee of the Yasemin Tekiner 2011 Descendants Trust and Derivatively as a Holder of 4 Equitable Interests in a Shareholder or a Member of the Company Defendants, 5 Plaintiff, 6 - against - INDEX # 7 657193/2020 BREMEN HOUSE INC., GERMAN NEWS COMPANY, INC., 8 BERRIN TEKINER, GONCA TEKINER and BILLUR AKIPEK, in her Capacity as a Trustee of the Yasemin Tekiner 2011 9 Descendants Trust, 10 Defendants. ----------------------------------------------------X 11 ZEYNEP TEKINER, in her Individual Capacity, as a Beneficiary and a Trustee of the Zeynep Tekiner 2011 12 Descendants Trust and Derivatively as a Holder of Equitable Interests in a Shareholder or a Member of 13 the Company Defendants, 14 Intervenor - Plaintiff, 15 - against - 16 BREMEN HOUSE INC., GERMAN NEWS COMPANY, INC., 17 BERRIN TEKINER, GONCA TEKINER and BILLUR AKIPEK, in her Capacity as a Trustee of the Zeynep Tekiner 18 2011 Descendants Trust, 19 Defendants. 20 ----------------------------------------------------X Motions 21 February 17, 2023 22 60 Centre Street New York, New York 10007 23 24 B E F O R E: THE HONORABLE JOEL COHEN, Justice of the Supreme Court 25 mlp 1 of 70 FILED: NEW FILED: NEW YORK YORK COUNTY COUNTY CLERK CLERK 05/25/2023 03/03/2023 11:50 07:05 PM PM INDEX NO. INDEX NO. 657193/2020 657193/2020 NYSCEF DOC. NYSCEF DOC. NO. NO. 1654 1366 RECEIVED NYSCEF: RECEIVED NYSCEF: 05/25/2023 03/03/2023 1 A P P E A R A N C E S: 2 FOLEY HOAG LLP Attorneys for the Plaintiff Yasemin 3 1301 Avenue of the Americas New York, NY 10019 4 By: BENJAMIN WEISSMAN, ESQ. ROBERT HANEY, ESQ. 5 6 KAHN & GOLDBERG LLP 7 Attorneys for the Plaintiff Zeynep 555 Fifth Avenue, 14th Floor 8 New York, NY 10017 By: MICHELE KAHN, ESQ. 9 10 11 PIB LAW Attorneys for Plaintiff Yasemin 12 5 Penn Plaza, Suite 2371 New York, NY 10001 13 By: SANJAY IBRAHIM, ESQ. SCOTT PARKER, ESQ. 14 15 HARWOOD LAW PLLC 16 Attorneys for Plaintiffs 260 Madison Avenue, 8th Floor 17 New York, NY 10016 By: ANTHONY HARWOOD, ESQ. 18 19 20 PRYOR CASHMAN LLP Attorneys for the Defendants 21 7 Times Square New York, NY 10036 22 By: TODD SOLOWAY, ESQ. BRYAN MOHLER, ESQ. 23 MEGHAN HILL, ESQ. RACHEL SHAW, ESQ. 24 25 MICHELE PANTELOUKAS Senior Court Reporter mlp 2 of 70 FILED: NEW FILED: NEW YORK YORK COUNTY COUNTY CLERK CLERK 05/25/2023 03/03/2023 11:50 07:05 PM PM INDEX NO. INDEX NO. 657193/2020 657193/2020 NYSCEF DOC. NYSCEF DOC. NO. NO. 1654 1366 NYSCEF: 3 RECEIVED NYSCEF: RECEIVED 03/03/2023 05/25/2023 Proceedings 1 THE COURT: Good afternoon, everyone. 2 Let's start with entry of appearance, beginning 3 with the plaintiffs. 4 MR. WEISSMAN: Sure. Benjamin Weissman for 5 Foley Hoag for plaintiff Yasemin Tekiner. And with me I 6 have Robert Haney. 7 MS. KAHN: Good afternoon, Your Honor. Michele 8 Kahn, Kahn and Goldberg for plaintiff Zeynep Tekiner. 9 THE COURT: Okay. And for the defense -- I am 10 sorry. 11 MR. IBRAHIM: Jay Ibrahim and Scott Parker from 12 Parker Ibrahim and Berg on behalf of plaintiff, Yasemin 13 Tekiner. 14 MR. HARWOOD: I am Tony Harwood, Harwood Law, 15 opposing the motion to withdraw. 16 THE COURT: Again on behalf of Yasemin? 17 MR. HARWOOD: Yasemin and Zeynep Tekiner. 18 THE COURT: Both? 19 MR. HARWOOD: Yes. 20 THE COURT: Okay. 21 And for the defense? 22 MR. SOLOWAY: Good afternoon, Your Honor. 23 Todd Soloway, Brian Mohler, Rachel Shaw and 24 Meghan Hill from Pryor Cashman, for the defendants. 25 THE COURT: All right. We have a lot to do. mlp 3 of 70 FILED: NEW FILED: NEW YORK YORK COUNTY COUNTY CLERK CLERK 05/25/2023 03/03/2023 11:50 07:05 PM PM INDEX NO. INDEX NO. 657193/2020 657193/2020 NYSCEF DOC. NYSCEF DOC. NO. NO. 1654 1366 NYSCEF: 4 RECEIVED NYSCEF: RECEIVED 03/03/2023 05/25/2023 Proceedings 1 My inclination on the motion to withdraw is not 2 to take up the amount of time I suspect it will take to 3 deal with it, because I don't have a reply to a 4 substantial amount of new information that came in this 5 morning from the counsel who is seeking to withdraw. It 6 raises all sorts of issues that I have had no prior 7 exposure to. And it will just take a lot of time that the 8 parties have dedicated to motions that have been pending 9 for a while. 10 So, my suggestion on that is to give the movant, 11 the Parker Ibrahim folks, a week to file a reply to what 12 just came in. If you want to. If you don't want to, you 13 don't have to. And then resolve it either on the papers 14 or I'll have you back in. But from my perspective, the 15 client raises issues that I wasn't aware of, until today. 16 MR. IBRAHIM: Thank you, Your Honor. Actually I 17 am not sure if it will take up time, just based on a 18 couple of the standards. 19 First of all, we are at an acute disadvantage 20 because I am bound by the attorney/client privilege. It 21 is not my privilege to waive. Any nasty-grams, anyone who 22 wants to say anything, I am still bound by that. Whether 23 it has to do with a dispute as to the entitlement of fees, 24 that's not before -- that's not before Your Honor. That's 25 actually a subsequent action as to -- mlp 4 of 70 FILED: NEW FILED: NEW YORK YORK COUNTY COUNTY CLERK CLERK 05/25/2023 03/03/2023 11:50 07:05 PM PM INDEX NO. INDEX NO. 657193/2020 657193/2020 NYSCEF DOC. NYSCEF DOC. NO. NO. 1654 1366 NYSCEF: 5 RECEIVED NYSCEF: RECEIVED 03/03/2023 05/25/2023 Proceedings 1 THE COURT: Well, if the grounds for seeking to 2 withdraw are non-payment -- 3 MR. IBRAHIM: And. 4 THE COURT: -- and payment -- and there is, in 5 fact, an argument that payment has already been made, that 6 goes to that question; does it not? 7 MR. IBRAHIM: No, Your Honor. There are 8 multiple grounds to move on. It is either that or 9 irreconcilable differences. 10 THE COURT: But the irreconcilable differences 11 seem to be about getting paid. 12 MR. IBRAHIM: No, Your Honor. I think just the 13 acrimonious tone of the surprising opposition would render 14 our ability to effectively navigate this litigation. 15 This should not take up that much time, Your 16 Honor. There is counsel that is present. As Your Honor's 17 docket will show, plenty has been happening in this case. 18 This is not a situation that in a reply -- I am just 19 bound -- I cannot state anything in opposition to whether 20 I believe what they say or not is or is not true. It is 21 really the subsequent action that will end up taking 22 place. It has nothing to do with this. 23 THE COURT: I am not sure. Look, your client 24 submitted for reasons known to her, on documents that are 25 probably privileged, in the submission that came in to me. mlp 5 of 70 FILED: NEW FILED: NEW YORK YORK COUNTY COUNTY CLERK CLERK 05/25/2023 03/03/2023 11:50 07:05 PM PM INDEX NO. INDEX NO. 657193/2020 657193/2020 NYSCEF DOC. NYSCEF DOC. NO. NO. 1654 1366 NYSCEF: 6 RECEIVED NYSCEF: RECEIVED 03/03/2023 05/25/2023 Proceedings 1 This is more complicated than I expected. I don't want to 2 give it short shrift. And I am sure Mr. Harwood has 3 something he would like to say in response. And I have a 4 roomful of people here trying to litigate a case. So I am 5 going to defer this for the moment. If we have time at 6 the end I will deal with it. 7 MR. IBRAHIM: Sure. 8 THE COURT: If not, and if you don't want to put 9 in a reply, even if the reply is -- I mean, I think -- 10 MR. IBRAHIM: We will put in a reply. 11 THE COURT: -- you can do the reply without 12 violating. 13 MR. IBRAHIM: Fair enough. 14 THE COURT: And bear in mind, your client put in 15 certain correspondence, so I think that potentially, at 16 least, gives you some leeway to defend yourself. But, I 17 don't really want to make this a prosecution. I am not a 18 big fan of forcing somebody to represent a client. 19 At the same time, you know, client interests are 20 paramount for all players, withdrawing lawyers as well. 21 And this particular set of papers raise some issues that 22 are different in most -- from most withdrawal motions. 23 I'll leave it at that. 24 So let's put a pin in that one. 25 MR. IBRAHIM: Sure. mlp 6 of 70 FILED: NEW FILED: NEW YORK YORK COUNTY COUNTY CLERK CLERK 05/25/2023 03/03/2023 11:50 07:05 PM PM INDEX NO. INDEX NO. 657193/2020 657193/2020 NYSCEF DOC. NYSCEF DOC. NO. NO. 1654 1366 NYSCEF: 7 RECEIVED NYSCEF: RECEIVED 03/03/2023 05/25/2023 Proceedings 1 THE COURT: If we can get back to it later at 2 the end of this, that's fine. We only have six or 700 3 motions to do before then. 4 MR. IBRAHIM: Understood. 5 THE COURT: I don't have a tremendously good 6 idea about how to divide and organize this. These are all 7 motions by plaintiffs. My inclination is to give you, you 8 know, 30, 40 minutes and you just do whatever you want in 9 terms of how you want to organize and which motions you 10 want to address and in what order. And then I'll let the 11 defendants respond. 12 So, I mean, I have them organized in some way, 13 by the discovery motions, you know, for documents and 14 depositions and then those are 44, 45 and 47. And then 15 the motion to vacate note of issue, which is number 46, 16 which is kind of related. Then there is a motion to amend 17 by Zeynep, motion 48. 18 And I think that's it, other than the withdrawal 19 motion. 20 So you can -- I will let you all do whatever you 21 want. 22 MR. WEISSMAN: So I think, Your Honor -- 23 THE COURT: You have an objection to that? 24 MR. SOLOWAY: No. I wanted to just, for the 25 record, Your Honor, I am not sure if Your Honor is aware mlp 7 of 70 FILED: NEW FILED: NEW YORK YORK COUNTY COUNTY CLERK CLERK 05/25/2023 03/03/2023 11:50 07:05 PM PM INDEX NO. INDEX NO. 657193/2020 657193/2020 NYSCEF DOC. NYSCEF DOC. NO. NO. 1654 1366 NYSCEF: 8 RECEIVED NYSCEF: RECEIVED 03/03/2023 05/25/2023 Proceedings 1 that we had filed a letter and submitted it to Your Honor 2 this morning. 3 THE COURT: I have seen it. 4 MR. SOLOWAY: Okay. What I am concerned about 5 is that it affects the motions, that's what the 6 application was. 7 THE COURT: I don't think it does. I understand 8 the point. But I will tell you this, you know, even if I 9 believed that the reason for some things not occurring at 10 the end of the year was because of a dispute between 11 client and counsel, my own view of the world is that I 12 would not -- I would do whatever possible to avoid 13 prejudicing the client for something like that. 14 I didn't -- I understand your point. And it 15 did, in fact -- and again, I am not entirely sure why they 16 decided it was a good idea for me to see all of that. But 17 I -- I have already gone and understood and assumed that 18 all of this stuff should have happened during the end of 19 the year. And I am taking that into account anyway. If 20 anything, this provided a bit more color as to why maybe 21 it didn't. But in a way, you know, like I said, I don't 22 think clients should be prejudiced for this kind of stuff. 23 That same point, I understand that defendants 24 shouldn't be prejudiced either. But the reason for the 25 delay is not that important from your perspective. mlp 8 of 70 FILED: NEW FILED: NEW YORK YORK COUNTY COUNTY CLERK CLERK 05/25/2023 03/03/2023 11:50 07:05 PM PM INDEX NO. INDEX NO. 657193/2020 657193/2020 NYSCEF DOC. NYSCEF DOC. NO. NO. 1654 1366 NYSCEF: 9 RECEIVED NYSCEF: RECEIVED 03/03/2023 05/25/2023 Proceedings 1 So, I have read your letter. I am taking it 2 into account. I am sure you found it as, sort of, odd as 3 I did to be reading some of this inside communication 4 among lawyers. And there it is. 5 So, how would you like to proceed, Mr. Weissman? 6 MR. WEISSMAN: Sure. 7 THE COURT: By the way, Mr. Younger is still 8 listed on NYSCEF, and he has changed his firm affiliation. 9 Is he still counsel or not? Or unclear? 10 MR. WEISSMAN: Unclear. 11 THE COURT: For today. 12 MR. WEISSMAN: But we, Foley Hoag, are still 13 counsel. 14 THE COURT: All right. Congratulations. 15 MR. WEISSMAN: Thank you. 16 THE COURT: Battlefield promotion is yours. 17 So can you argue from the lectern, please? 18 MR. WEISSMAN: Sure. I am just going to 19 introduce. So I think in our view, motions 44, 45, 46 and 20 47 are all interrelated. 21 THE COURT: Okay. 22 MR. WEISSMAN: I think Ms. Kahn will speak to 23 the motion to amend first, and then we will address the 24 rest. 25 THE COURT: Fine. mlp 9 of 70 FILED: NEW FILED: NEW YORK YORK COUNTY COUNTY CLERK CLERK 05/25/2023 03/03/2023 11:50 07:05 PM PM INDEX NO. INDEX NO. 657193/2020 657193/2020 NYSCEF DOC. NYSCEF DOC. NO. NO. 1654 1366 NYSCEF:10 RECEIVED NYSCEF: RECEIVED 03/03/2023 05/25/2023 Proceedings 1 MR. KAHN: If that's good with the Court. 2 THE COURT: Sure. The motion to amend is pretty 3 straightforward. I will tell you, I am inclined to grant 4 it subject to the defense attorney convincing me 5 otherwise. So you are just adding a claim that dovetails 6 with claims that Yasemin already has, right? 7 MR. KAHN: Yes, Your Honor. And if you want me 8 to sit and give me a chance to reply, that's great. 9 MR. SOLOWAY: Let's do this, we will consent. 10 The stipulation that we had previously was that it would 11 not -- there would be no new discovery based on the 12 amendment, and that way we can do away with one of the 13 motions. 14 THE COURT: Right. I probably wouldn't have 15 permitted any discovery anyway. 16 Are you seeking any discovery, Ms. Kahn? 17 MR. KAHN: No, Your Honor. As I said in my 18 papers, I already told them two times or three times that 19 the adding of the amendment, amended cause of action, will 20 not cause any additional discovery. 21 THE COURT: Well, maybe the fourth time was the 22 time that was necessary. 23 So the motion to amend is granted subject to, 24 you know, there is -- this will not be an independent 25 ground for new discovery. Okay? mlp 10 of 70 FILED: NEW FILED: NEW YORK YORK COUNTY COUNTY CLERK CLERK 05/25/2023 03/03/2023 11:50 07:05 PM PM INDEX NO. INDEX NO. 657193/2020 657193/2020 NYSCEF DOC. NYSCEF DOC. NO. NO. 1654 1366 NYSCEF:11 RECEIVED NYSCEF: RECEIVED 03/03/2023 05/25/2023 Proceedings 1 MS. KAHN: Thank you, Your Honor. 2 THE COURT: So making time up already. 3 So you are going to handle 44, 45? 4 MR. WEISSMAN: Forty-six and 47. 5 THE COURT: Okay. Let her rip. 6 MR. WEISSMAN: Thank you, Your Honor. 7 We put in extensive briefing, both parties have, 8 on these discovery issues. And I won't rehash all of them 9 now. 10 This is a case about the financial mismanagement 11 and self dealing at the defendant companies. And yet, 12 defendants have refused to produce the company bookkeeper 13 for deposition. They tried to substitute defendant Gonca, 14 who has now testified twice that she has no idea about the 15 company's books. Even earlier this week, when we 16 re-deposed her, she kept pointing to the company 17 bookkeeper as the only one with knowledge about suspicious 18 transactions in the bank records. 19 And on the bank records, we tried for a year to 20 get them directly from defendants. First, through 21 document requests, defendants refused. Then, once Yasemin 22 was reinstated as a director, through books and records 23 requests. And when that also didn't work, we subpoenaed 24 the bank directly. Defendants moved to quash that 25 subpoena, arguing that the bank records were, quote, mlp 11 of 70 FILED: NEW FILED: NEW YORK YORK COUNTY COUNTY CLERK CLERK 05/25/2023 03/03/2023 11:50 07:05 PM PM INDEX NO. INDEX NO. 657193/2020 657193/2020 NYSCEF DOC. NYSCEF DOC. NO. NO. 1654 1366 NYSCEF:12 RECEIVED NYSCEF: RECEIVED 03/03/2023 05/25/2023 Proceedings 1 "utterly irrelevant." 2 Now, in a case about financial mismanagement and 3 self dealing, I cannot imagine more relevant documents 4 than bank records. 5 So, we went back and forth with Santander, the 6 bank that held most of the company accounts for months, 7 and we finally received the bulk of their documents on 8 December 27. 9 We have now received the remainder of the bank 10 records from Santander in the past month. But per Your 11 Honor's order, we have not accessed them without 12 defendant's consent, and defendants have refused to grant 13 that consent. 14 And of course we now know why they have 15 resisted, having seen most of these bank records. Those 16 records revealed millions of dollars in self dealing and 17 corporate waste. 18 THE COURT: Didn't you just say that you haven't 19 read them? 20 MR. WEISSMAN: The ones produced up through 21 December 27. 22 THE COURT: Okay. 23 MR. WEISSMAN: And they paint a dire portrait of 24 the company's financials. 25 Defendants have also refused to produce mlp 12 of 70 FILED: NEW FILED: NEW YORK YORK COUNTY COUNTY CLERK CLERK 05/25/2023 03/03/2023 11:50 07:05 PM PM INDEX NO. INDEX NO. 657193/2020 657193/2020 NYSCEF DOC. NYSCEF DOC. NO. NO. 1654 1366 NYSCEF:13 RECEIVED NYSCEF: RECEIVED 03/03/2023 05/25/2023 Proceedings 1 defendant Billur for a second deposition. That's after 2 they withheld more than 8,000 supposedly privileged 3 documents for more than a year, producing the bulk of them 4 during and after Berrin and Gonca's deposition in October. 5 If this sounds familiar, it is because it is. Your Honor 6 already ruled that defendants would have to be re-deposed 7 based on any new documents produced after their first 8 depositions. Yet, defendants have flatout refused to 9 produce her for a second deposition. That cannot be 10 right. 11 And neither party has served expert reports. 12 This is a case that would benefit greatly from experts, 13 including experts on real estate valuation and forensic 14 accounting. 15 THE COURT: So wait a minute. So, the case 16 schedule, I will just make the assumption, had a period 17 for expert discovery prior to the note of issue date. 18 MR. WEISSMAN: Yes. 19 THE COURT: So are you saying that neither side 20 submitted expert reports or identified experts? 21 MR. WEISSMAN: Well, both sides have identified 22 experts, you know, the names and the scope of the 23 potential expert reports. Neither side has served an 24 expert report. 25 And so for us, in our view, those experts can't mlp 13 of 70 FILED: NEW FILED: NEW YORK YORK COUNTY COUNTY CLERK CLERK 05/25/2023 03/03/2023 11:50 07:05 PM PM INDEX NO. INDEX NO. 657193/2020 657193/2020 NYSCEF DOC. NYSCEF DOC. NO. NO. 1654 1366 NYSCEF:14 RECEIVED NYSCEF: RECEIVED 03/03/2023 05/25/2023 Proceedings 1 form their opinion until we have the underlying documents. 2 And so these are just a few of the key issues 3 raised in our motions to compel. 4 THE COURT: And have they been deposed? 5 MR. WEISSMAN: No. 6 THE COURT: Because there is no report? 7 MR. WEISSMAN: Correct. 8 THE COURT: Which means that expert discovery 9 didn't actually happen? 10 MR. WEISSMAN: Correct. 11 THE COURT: At all? 12 MR. WEISSMAN: Correct. 13 So, I would like to spend the rest of my time 14 talking about where we go from here. 15 Plaintiffs want to go to trial, but they need 16 adequate discovery to do so. Plaintiffs have no interest 17 in prolonging discovery beyond what is absolutely 18 necessary. On the contrary, every day that this case goes 19 on, is another day that the companies are paying 20 defendants' exorbitant legal bills. It is another day of 21 mismanagement and self dealing. And another day with the 22 risk that defendants decide on a whim to sell more of the 23 company's properties. In fact, earlier today plaintiffs 24 filed a motion to appoint a temporary receiver, for just 25 these reasons. mlp 14 of 70 FILED: NEW FILED: NEW YORK YORK COUNTY COUNTY CLERK CLERK 05/25/2023 03/03/2023 11:50 07:05 PM PM INDEX NO. INDEX NO. 657193/2020 657193/2020 NYSCEF DOC. NYSCEF DOC. NO. NO. 1654 1366 NYSCEF:15 RECEIVED NYSCEF: RECEIVED 03/03/2023 05/25/2023 Proceedings 1 Now, I don't want to speak for them, but I think 2 it is fair to say that defendants also want discovery to 3 be over. Since the last time we were before Your Honor we 4 have made significant progress. As discussed, there are 5 non-party document productions teed up from Santander, as 6 well as the corporate Trustee, WSFS Bank. Who is in the 7 same position, where they have now all but up to produced 8 the remaining documents to us. 9 But defendants have refused to consent. And we 10 are ready to receive those as soon as we are allowed. We 11 took Gonca's second deposition earlier this week. And we 12 took the real estate broker's deposition, that's John 13 Stewart, yesterday. 14 We also met and conferred with defendants and 15 offered a potential path forward. Defendants have not 16 gotten back to us on that. Instead they submitted their 17 gotcha letter that we just discussed. 18 THE COURT: Path forward on what? 19 MR. WEISSMAN: I am sorry? 20 THE COURT: You offered them a path forward on 21 what? 22 MR. WEISSMAN: A global resolution, as to a 23 stipulated amount of limited discovery, and a time period 24 to do it in. And let me describe what that path forward 25 would be. mlp 15 of 70 FILED: NEW FILED: NEW YORK YORK COUNTY COUNTY CLERK CLERK 05/25/2023 03/03/2023 11:50 07:05 PM PM INDEX NO. INDEX NO. 657193/2020 657193/2020 NYSCEF DOC. NYSCEF DOC. NO. NO. 1654 1366 NYSCEF:16 RECEIVED NYSCEF: RECEIVED 03/03/2023 05/25/2023 Proceedings 1 So first it would be granting 60 days to 2 complete fact discovery, so creating a limited time period 3 in which discovery would be completed. And that could be 4 accomplished either by granting our motion for discovery 5 post-note of issue, which we have already addressed at the 6 last hearing. Or by granting our motions to vacate the 7 notes of issue. 8 And the law is clear that Your Honor has 9 discretion to vacate the notes of issue where the case is 10 not ready for trial. 11 THE COURT: Well, my understanding of what today 12 was, was that all of the discovery plaintiff wants, fact 13 discovery, was all teed up for today. 14 MR. WEISSMAN: Yes. 15 THE COURT: To decide what you get, what you 16 don't get. 17 MR. WEISSMAN: Yes. 18 THE COURT: And that's it. 19 MR. WEISSMAN: Yes. 20 THE COURT: So there is no new umbrella, 60 days 21 for some unspecified discovery. What we are going to 22 decide today is what you can get, and then we will set a 23 schedule for that being done. 24 MR. WEISSMAN: Good. That makes total sense and 25 that is what we propose. mlp 16 of 70 FILED: NEW FILED: NEW YORK YORK COUNTY COUNTY CLERK CLERK 05/25/2023 03/03/2023 11:50 07:05 PM PM INDEX NO. INDEX NO. 657193/2020 657193/2020 NYSCEF DOC. NYSCEF DOC. NO. NO. 1654 1366 NYSCEF:17 RECEIVED NYSCEF: RECEIVED 03/03/2023 05/25/2023 Proceedings 1 THE COURT: I didn't think I needed to provide 2 for expert discovery, because I hadn't realized that 3 nobody had done it. Maybe I should have, and maybe you 4 told me that last time, but I forgot. 5 MR. WEISSMAN: So we would submit that after 6 whatever limited discovery, you know, circumscribed 7 discovery that Your Honor grants plaintiffs, there would 8 be a time for expert -- disclosure of expert reports, 9 rebuttal expert reports and then expert depositions. 10 THE COURT: Just so I am clear, there is nothing 11 in your proposed plan that envisions discovery other than 12 that sought in these pile of motions? 13 MR. WEISSMAN: Correct. 14 THE COURT: Okay, fine. 15 MR. WEISSMAN: Correct. 16 And on those items, just to be clear, kind of, 17 what we are talking about, there is a limited universe of 18 document production and depositions that we really, really 19 need. So it should include the critical financial 20 discovery. And that's the productions that are already 21 teed up from Santander and WSFS Bank. And it has to 22 include, from our perspective, the critical testimony of 23 the company bookkeeper, which has been withheld from us. 24 It has also got to include testimony from the defendant 25 Billur, based on documents that were withheld, and then mlp 17 of 70 FILED: NEW FILED: NEW YORK YORK COUNTY COUNTY CLERK CLERK 05/25/2023 03/03/2023 11:50 07:05 PM PM INDEX NO.