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Filing # 111472043 E-Filed 08/07/2020 03:27:59 PM
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO.: CACE-18-000924 (09)
FOOD MARKETING CONSULTANTS, INC.
d/b/a SAN BERNARDO,
Plaintiff,
v.
NEW ALBERTSON’S LP f/n/a
NEW ALBERTSON’S, INC.,
Defendant.
/
DEFENDANT’S MOTION TO PRECLUDE AMENDMENT OF
EXPERT WITNESS REPORT AND TO PRECLUDE ADDITIONAL EXPERTS
Defendant NEW ALBERTSON’S LP f/n/fa NEW ALBERTSON’S, _ INC.
(“ALBERTSON’S”), by its undersigned counsel, hereby files its Motion to Preclude
Amendment of Expert Witness Report and to Preclude Additional Experts.
INTRODUCTION
Plaintiff FOOD MARKETING CONSULTANTS, INC. d/b/a SAN BERNARDO
(“SBI”) flouts its deadline to file expert reports. This Court ordered that SBI file its expert
witness report regarding damages by March 23, 2020. On the deadline, SBI filed a single expert
report, a damages analysis by Ms. Katie Gilden (“Gilden”), a CPA, which calculated $67,0000 in
alleged losses. (“Gilden Report”). On June 23, 2020, ALBERTSON’S deposed Gilden. SBI
contends the Gilden Report was only preliminary and asserts an open-ended right to modify the
report and add an additional expert to assist with the damages analysis. As allowing SBI to
circumvent the existing deadline would only encourage further gamesmanship and cause further
LEE & AMTZIS, P.L,
"ATTORNEYS a LAW
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/07/2020 03:27:58 PM.****CASE NO.: CACE-18-000924 (09)
prejudice, ALBERTSON’S requests that the Court enforce its March 23, 2020 deadline, preclude
SBI from supplementing the Gilden Report, and prevent SBI from filing additional or alternative
expert reports.
BACKGROUND
SBI Bases its Lawsuit on a 2017 Arrangement
SBI markets ice cream manufactured by a third-party in Michigan and private labeled as
San Bernardo Ice Cream. (Ex. 1, pp. 20-21).' The SBlI-labeled ice cream is primarily sold
directly to the cruise ship industry. (Ex. 1, p. 24). ALBERTSON’S operates grocery stores,
including the Safeway stores. Albertson’s/Safeway carried SBI products in stores in its Eastern
Division in 2016 pursuant to a written agreement (“2016 Agreement”) and carried some SBI
products in 2017 pursuant to a separate arrangement. SBI does not bring a claim based on the
2016 Agreement but rather brings this lawsuit based on the distinct, alleged agreement in 2017.
(Ex. 2, 9 13-17)? (Ex. 3, pp. 29-30, 42, 47-48).°
Q. Just so we’re clear, the lawsuit that’s been filed against Albertsons Safeway,
does it relate to the 2016 agreement?
A. No.
Q. So it only relates to the 20177
A. Yes. ...
(Ex. 3, pp. 47-48).
For years, SBI unsuccessfully tried to develop a larger retail market for its ice cream
products. (Ex. 1, pp. 35-40 ). In 2016, ALBERTSON’S agreed to place SBI’s ice cream products
Attached as Exhibit 1 are deposition excerpts from the deposition of SBI’s President, Jonathan Tammara.
? Attached as Exhibit 2 if the Second Amended Complaint.
* Attached as Exhibit 3 are the deposition excerpts of Robert Tammara.
LEE & AMTZIS, P.L.
‘AFIORNEYS AT LAWCASE NO.: CACE-18-000924 (09)
in certain stores in its Eastern Division. Pursuant to the 2016 Agreement, SBI agreed to pay a
$70,000 slotting fee (Ex. 3, pp. 65-66) (a standard practice in the industry to defray grocer’s
costs in cutting a new product into its stores and to cover financial risks that the product will not
sell). Claiming confusion regarding billings in 2016, SBI never paid ALBERTSON’S the
$70,000 slotting fee and failed to pay promotional fees of approximately $10,000 SBI chose to
incur in 2016. (Ex. 3, pp. 15-17).
In March of 2017, SBI met with ALBERTSON’S, promised to pay off SBI’s existing
debt of approximately $80,000, and asked ALBERTSON’S to reconsider its decision to stop
carrying SBI products. (Ex. 4).4 SBI made a number of proposals in March of 2017, including
that it provide ice cream for free to ALBERTSON’S. (Ex. 4). ALBERTSON’S never agreed to
SBI’s proposals for 2017. However, in order to give SBI another chance to perform,
ALBERTSON'S placed an order to buy a limited quantity of flavors from SBI and to stock those
in certain stores in 2017. (Ex. 5, pp. 71-72) 5 To that end, in 2017, ALBERTSON’S made a
$12,960.00 purchase of SBI ice cream and began placing that ice cream in some of its stores.
(Ex. 6).° However, SBI made only one payment on its debt and then stopped making payments.
(Ex. 5, pp. 85-86). SBI made false assertions to justify why it was not paying its debt.
ALBERTSON’S determined it was not willing to continue buying SBI product if SBI was not
willing to pay off SBI’s old debt. (Ex. 5, pp. 82-83).
Given SBI’s refusal to pay a debt that was not in dispute, ALBERTSON’S sent the debt
* Attached as Exhibit 4 is the April 2017 email chain.
* Attached as Exhibit 5 are the deposition excerpts of Matt Boyd.
° Attached as Exhibit 6 is the June 30, 2017 invoice.
LEE & AMTZIS, P.L.
‘AFIORNEYS AT LAWCASE NO.: CACE-18-000924 (09)
to third-party collection. (Ex. 7).’ Only after being contacted for collection, SBI filed this lawsuit
on February 14, 2018. For more than a year, this lawsuit languished with SBI taking no
meaningful action and generally being non-responsive to ALBERTSON’S efforts to move the
litigation forward. ALBERTSON’S served discovery on SBI seeking information regarding the
basis for the asserted damages. When SBI failed to appropriately respond to the discovery, on
July 2, 2019, ALBERTSON’S filed its Motion to Compel Production of Documents and
Answers to Interrogatories. (Ex. 8).*
Procedural History Relating to Deadline for Expert Report
The expert deadline was set after considerable briefing and argument. On November 27,
2019, this Court deferred ruling on the specific discovery requests identified in the Motion to
Compel, but ordered SBI to file an Expert Witness Report within 90 days (February 25, 2020).
(Ex. 9)? On January 8, 2020, SBI filed a Motion for Extension of Time again seeking to
postpone the deadline to file its expert report. Despite the fact that SBI’s damages calculation is
wholly dependent on information in SBI’s custody and control and despite failing to pursue
meaningful discovery for almost two years, SBI sought an extension to the expert deadline based
on the supposed need for discovery. On February 20, 2020, the Court addressed SBI’s motion
granting it in part and extending the expert deadline to March 23, 2020. (Ex. 10).'°
” Attached as Exhibit 7 is the December 13, 2017 letter to SBI.
8 Attached as Exhibit 8 is the Motion to Compel.
° Attached as Exhibit 9 is the November 27, 2019 Order.
* Attached as Exhibit 10 is the February 20, 2020 Order.
LEE & AMTZIS, P.L.
‘AFIORNEYS AT LAWCASE NO.: CACE-18-000924 (09)
The Gilden Report Purports to be Only a Preliminary Report
On March 23, 2020, SBI provided the Gilden Report. (Ex. 11).'' Despite the Court’s
clear deadline, the Gilden Report purports to be only preliminary. (Ex. 11 ). As the cover letter to
the Gilden Report indicates: “[a]s you will see there are pending unusual circumstances,
discovery remains open, and needed information that make this report preliminary and
limited.” (Ex. 11). Further, the Gilden Report indicates: “Plaintiffs expect to consult with an
industry expert in order to determine the amount of units plaintiff would have sold had
Defendant ordered, stocked, placed and priced Plaintiff’s product appropriately, as agreed by the
parties.” (Ex. 11).
On June 23, 2020, ALBERTSON’S deposed SBI’s expert, Gilden, who repeatedly
reiterated the report was only intended as a preliminary report that would be revised. (Ex. 12,
pp. 25, 29, 40, 41, 42, 81, 84). ”? She testified she was first contacted and retained in early March
2020, just a few weeks before the longstanding deadline. (Ex. 12, p. 63). Gilden further conceded
that her damages calculation of $67,000 (the sole opinion expressed in her report) was calculated
one business day before her report was due. (Ex. 12, pp. 83-84 ). In fact, she conceded that SBI
did not provide her with the underlying information for her calculation until March 20, 2020,
one business day before the report was due. (Ex. 12, pp. 83-84). She did not do any review or
due diligence regarding the information from SBI used in her calculation. (Ex. 12, pp. 84-85).
Gilden also could not explain, with any level of specificity, what additional information was
needed to supplement or expand her report. (Ex. 12, p. 29, 73). In her deposition, Gilden could
not explain why the information needed was not already in the possession of SBI. (Ex. 12, pp.
71-78).
” Attached as Exhibit 11 is the Gilden Report.
LEE & AMTZIS, P.L.
‘AFIORNEYS AT LAWCASE NO.: CACE-18-000924 (09)
ARGUMENT
“Admission or exclusion of the testimony of a witness in violation of a trial preparation
order is within the trial court’s discretion.” Valerowicz v. Armand-Hosang, 248 So.3d 140, 146
(Fla. 4th DCA 2018) (citation omitted). In Binger v. King Pest Control, 401 So. 2d 1310, 1314
(Fla. 1981), the Court stated:
The discretion to do so must not be exercised blindly, however, and should be
guided largely by a determination as to whether use of the undisclosed witness
will prejudice the objecting party. Prejudice in this sense refers to the surprise in
fact of the objecting party, and it is not dependent on the adverse nature of the
testimony. Other factors which may enter into the trial court's exercise of
discretion are: (i) the objecting party's ability to cure the prejudice or, similarly,
his independent knowledge of the existence of the witness; (ii) the calling party's
possible intentional, or bad faith, noncompliance with the pretrial order; and (iii)
the possible disruption of the orderly and efficient trial of the case (or other
cases).
Here, the factors outlined in Binger compel the relief ALBERTSON’S seeks. First, this
Court recognized the prejudice to ALBERTSON’S being forced to defend against a case without
any indication as to the amount of damages being sought by SBI. Even after two years and the
filing of the Gilden Report, SBI is still trying to dodge identifying its supposed damages. The
prejudice to ALBERTSON’S only increases as time passes if SBI is allowed to continue its
dodge.
Second, ALBERTSON’S cannot independently determine SBI’s damages. SBI
determines the damages theories it will pursue and possesses the evidence, if any exists, of its
damages. Third, SBI clearly has acted in bad faith regarding the deadline. SBI took no
meaningful steps to complete the analysis that SBI contends has yet to be done. SBI controls and
has access to all of the information needed to calculate its damages. SBI’s strategy was to file the
» Attached as Exhibit 12 are the deposition excerpts of Gilden.
LEE & AMTZIS, P.L.
‘AFIORNEYS AT LAWCASE NO.: CACE-18-000924 (09)
Gilden Report by the deadline to mislead the Court and then prepare an alternative damages
calculation at a later time of SBI’s choosing. The bad faith factor is clearly present.
Fourth, if SBI gets away with its “Preliminary Report” strategy, it will disrupt this
litigation. Depositions will need to be taken again. Additional discovery will be needed. Further,
SBI’s gamesmanship has already impacted the litigation as the Court-ordered mediation in the
matter could not be completed. If SBI is allowed to amend its Expert Witness Report,
ALBERTSON'S own trial preparations will be disrupted and delayed.
Each of the factors support the conclusion that SBI should not be permitted to amend the
Expert Witness Report or to submit a report of an additional expert witness.
CONCLUSION
ALBERTSON’S respectfully requests that this Court enter an Order reaffirming its prior
Order, precluding SBI from amending or supplementing its Expert Witness Report and/or adding
an additional expert in this matter, together with such other and further relief as the Court may
deem just and proper.
CERTIFICATE OF SERVICE
Thereby certify that on this date, a copy of the foregoing has been furnished to counsel or
unrepresented parties on the attached Service List in accordance with Florida Rule of Judicial
Administration 2.516(a), 2.516(b)(1), and Supreme Court of Florida Administrative Order No.
AOSC13-49 through utilization of the Florida Court E-Filing Portal or in accordance with
Florida Rule of Judicial Administration 2.516(b)(2) by email and/or U.S. Mail and/or hand
delivery as further designated on the Service List.
LEE & AMTZIS, P.L.
‘AFIORNEYS AT LAWCASE NO.: CACE-18-000924 (09)
Dated: July 31, 2020
Boca Raton, Florida
lee@leeamlaw.com
Lee & Amizis, P.L.
5550 Glades Road, Suite 401
Boca Raton, FL 33431
Telephone: (561) 981-9988
and
ERIK STIDHAM (admitted pro hac vice)
efstidham@hollandhart.com
Holland & Hart LLP
800 W. Main Street, Suite 1750
Boise, ID 83702
Telephone: (208) 342-5000
Attorneys for Defendant
NEW ALBERTSON’S LP f/n/a
NEW ALBERTSON’S, INC.
LEE & AMTZIS, P.L.
‘AFIORNEYS AT LAWCASE NO.: CACE-18-000924 (09)
SERVICE LIST
Attorneys for Plaintiff
FOOD MARKETING CONSULTANTS, INC.
d/b/a SAN BERNARDO
(E-Filing Portal)
Silverberg & Weiss, P.A.
Paul Silverberg, Esq.
1290 Weston Rd., Ste. 218
Weston, FL 33326
Primary Email Address
notices@pkslegal.com
15131691_y2
LEE & AMTZIS, P.L.
‘AFIORNEYS AT LAWEXHIBIT 110
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IN THE CIRCUIT COURT OF THE
17TH JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA
CASE NO: CACE-18-000924 (09)
Se x
FOOD MARKETING CONSULTANTS, INC.,
d/b/a SAN BERNARDO,
Plaintiff,
-against-
NEW ALBERTSON'S LP f/k/a
NEW ALBERTSON'S, INC.,
Defendant.
SS x
June 17, 2020
11:00 a.m.
Deposition of JONATHAN TAMMARA, pursuant to
notice, Via ZOOM teleconference, before Jack
Finz, a Shorthand Reporter and Notary Public
within and for the State of Florida.
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to as back-of-the-house sales directly to
restaurants or other establishments; right?
A. Yes.
Q. Where was the ice cream manufactured
in 2010?
A. I believe that in 2010 it was made
in Michigan, where we still make a large portion
of it with our co-packing relationship today, but
I cannot speak to a certainty that there was not
any other supply relationship back then because,
again, I had just stepped in.
Q. Fair enough.
So you mentioned a co-packing
relationship. Could you tell me what a co-packing
relationship is in the context of San Bernardo's
ice cream business?
A. A company owns the equipment, and
another company essentially rents line time on
their equipment in order to make something under
their label. It is a fairly common practice in
the food industry and across other areas of
consumer packaged goods and, you know, other areas
of industry.
Q. You mentioned a co-packing
relationship that San Bernardo has with an entity
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in Michigan. Does San Bernardo still have that
co-packing relationship with the Michigan company
up to today?
A. Yes.
Q. What's the name of the Michigan
company?
A. House of Flavors.
Q. And am I correct in understanding
that House of Flavors, the Michigan company, their
business is to work with companies like San
Bernardo that don't have manufacturing capability,
and then to make ice cream or other goods that are
then labeled as San Bernardo products?
A. They make ice cream for companies
that need ice cream made. There are companies
that have their own -- theoretically, a company
could have their own equipment and just not have
the capacity to make enough of what they need.
Q. Fair enough.
Does San Bernardo have any
manufacturing capabilities separate from their
relationship with House of Flavor? Did I say that
right, House of Flavor in Michigan?
A. House of Flavors, with an S on the
end.
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and Eric Lee have in place. I will just
tell you at the outset, I have got no
problem going back, after the deposition,
and giving you and your client some time to
designate as to information that you
contend is business confidential, and we of
course would not make any use of it until
you have had a chance to designate what
should be protected.
MR. SILVERBERG: Fair enough.
To the extent you know, Jon, you can
answer.
A. About 60 percent. We are the
largest ice cream supplier to cruise lines in the
world.
Q. And what is the gross revenues from
the sales to cruise lines? Let's start with 2016.
A. I don't know. I mean, again, I
apologize, I didn't, you know, study chapter and
verse, you know, every employee roles and, you
know, different category channels of the business
for this deposition.
Q. That's fine.
Tell me, in 2016, what was your
title?
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the cruise lines; correct?
A. That's a guess.
Q. What was the other 35 to 30 percent
in 2016, where did that go?
A. Everywhere else.
Q. Where is everywhere else?
A. A little bit of retail, a little bit
of export, more traditional food service, which
would include casinos, and restaurants, and
colleges and universities.
Q. You identified retail. What
percentage of sales in 2015 -- let me ask you this
with regard to '15. Were you selling any ice
cream that was labeled as San Bernardo ice cream
in a retail outlet?
A. We had just introduced the San
Bernardo pints, so I don't know.
Q. What about 2016; were you selling
any ice cream labeled as San Bernardo ice cream in
retail outlets in 2016?
A. Somewhere in that time, yes, there
would have been some other sales, yes.
Q. In the 2016 time frame -- well,
obviously, do you have an understanding of what
this lawsuit is about?
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A. I do.
Q. What is your understanding as to
what the lawsuit is about?
A. There was an agreement, and the
agreement was not honored, and here we are.
Q. Who was the agreement with?
A. I don't want to use the wrong name
of the entity, so --
Q. To your understanding, who was the
agreement with?
A. Whatever the correct legal entity
name, et cetera, of the Safeway/Albertson's
whatever, and Food Marketing/San Bernardo.
Q. When did San Bernardo first have an
agreement of any kind with Safeway/Albertson's?
A. I met with Jeff Roberts the end of
'15, I think it was.
Q. Who is Jeff Roberts?
A. He worked for Safeway.
Q. So you met with Jeff Roberts in
about 2015.
A. 2016. Sorry. No, I think it was
"15. It was '15.
Q. So you met with Jeff Roberts in
2015, to the best of your recollection; correct?
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A. Yes.
Q. Prior to that meeting with Jeff
Roberts, had San Bernardo sold any of its ice
cream through a retail outlet?
A. I believe so.
Q. Can you identify the sales that San
Bernardo had had through retail outlets prior to
2015, when you met with Jeff Roberts?
A. Can you clarify what you mean by
identify the sales?
Q. Can you identify for me which retail
outlets sold San Bernardo product prior to your
meeting with Jeff Roberts?
A. We had sold through ShopRite. We
had sold some through Big Y. We had sold some
through Key Foods.
Q. Can you estimate for me, in terms of
dollars, how much San Bernardo had had in retail
sales prior to your meeting with Jeff Roberts in
approximately 2015?
A. I can't, because I don't recall if
some of it was '15 and some of it was '16, and I
just, you know, I didn't review that information.
Q. Fair enough.
When to your recollection is the
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first point in time at which San Bernardo sold its
product, had any sales, through a retail outlet?
A. I don't recall specifically when we
did.
Q. Let me see if we can at least box it
ina little bit. Was the first time San Bernardo
engaged in any retail sales in the 2015-2016 time
frame?
A. Most likely pretty close to that,
yes.
Q. Can you estimate for me in 2016 what
the sales numbers were for San Bernardo through
retail outlets?
A. Again, I didn't look at that
information. I don't know.
Q. Do you know whether it was less than
a million dollars?
A. Again, I just didn't look at any of
these numbers.
Q. So in your role as president, do you
look at the financials of the company?
A. I do.
Q. What do you do -- and you are a
finance major; correct?
A. I am.
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Q. So what do you look at in the course
of your duties as far as financial reports on a
regular basis as president of the company?
A. What do you mean?
Q. Do you look at monthly financial
reports as president?
A. I do.
Q. And were you looking at monthly
financial reports in 2015 as president of the
company?
A. Probably.
Q. And what type of financial reporting
do you review on a monthly basis as president of
the company since at least 2015?
A. I would look at sales figures. But
you are asking me to recall something from four or
five years ago.
Q. Do you know whether you had more
than $2 million in retail sales in 2015?
A. We did not.
Q. Have you ever had more than a
million dollars in retail sales in any year since
you have been with San Bernardo?
And let me strike that question so I
can ask it hopefully more clearly.
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Have you ever had more than $100,000
in sales through a retail store like Albertson's
or Safeway?
A. Yes.
Q. In a year, in any year.
A. Yes.
Q. Have you ever had more than $300,000
in retail sales through any retail stores in any
year?
A. Yes.
Q. Have you ever had more than a
million dollars in retail sales through any retail
stores?
A. I don't know.
Q. What was the year in which San
Bernardo had the most in retail sales of its ice
cream?
A. There are a couple of years that
were pretty close.
Q. What years were those?
A. 2015 and 2018 were both very good.
Q. In 2015, which retail outlets were
you selling ice cream through?
A. Safeway -- not Safeway -- ShopRite,
and we had some going through Key Food. I just
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Q. So in the 2015 time frame, am I
correct in understanding that you personally were
involved in efforts to get the San Bernardo dairy
ice cream in retail stores?
A. Yes.
Q. Did you have any success, other than
the Jeff Roberts meeting in 2015, reaching any
agreements to get San Bernardo dairy ice cream in
more stores, in the 2015 and 2016 time frame?
A. We just listed the retailers that we
were in.
Q. No, I'm sorry. In 2016 were you
trying to get the San Bernardo dairy ice cream in
new and additional stores beyond just Safeway and
Albertson's?
A. We were always trying to get
products in additional stores.
Q. And were you able to -- and we will
talk about the Safeway/Albertson's arrangement in
a bit. But were you able to secure any new
relationships, let's say from 2015 on, for
placement of San Bernardo ice cream in retail
stores?
A. Everything we just listed was 2015
on, so I don't understand the question.
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Q. Let's say 2016, 2016 on.
A. Well, some of those are 2016, sir.
Q. So have we identified all of the
retail stores that you sold San Bernardo dairy ice
cream in so far in your testimony?
A. I don't represent that my memory is
perfect, so I am not representing that it is
exhaustive.
Q. So did you have any meetings in
2015, '16, '17 and '18 with retail stores to find
an outlet for sale of your ice cream and those
meetings were unsuccessful?
A. Could you repeat the question?
Q. Sure.
Did you meet with and engage other
retail stores, in 2015 to present, with the
objective of getting your San Bernardo dairy ice
cream sold in their stores and those meetings just
didn't turn into anything, you were unsuccessful?
A. Between 2015 and now?
Q. Yes.
A. Did we meet with any retailers,
present San Bernardo, and they said no. Is that
the question?
Q. Yes.
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800-726-7007 305-376-8800EXHIBIT 2Filing # 78944568 E-Filed 10/05/2018 02:03:47 PM
IN THE CIRCUIT COURT OF THE 17™
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
FOOD MARKETING CONSULTANTS, INC.
d/b/a SAN BERNARDO,
Plaintiff,
vs. CASE NO. CACE18-000924
NEW ALBERTSON’S LP f/n/a
NEW ALBERTSON’S, INC.
Defendants.
/
SECOND AMENDED COMPLAINT
Plaintiff Food Marketing Consultants, Inc. d/b/a San Bernardo (“Plaintiff”), by and
through their undersigned counsel, hereby sues Defendant New Albertson’s LP f/n/a New
Albertson’s Inc. (“New Albertson”), and do state:
THE PARTIES, JURISDICTION AND VENUE
1. This is an action for damage, Plaintiff seeks damages within the
jurisdictional limits of this Court with costs, and fees, plus special damages.
2. Food Marketing Consultants, Inc. d/b/a San Bernardo (“SBI”) is a Florida
corporation with operations in Broward County, Florida.
3. New Albertson’s LP f/n/a New Albertson’s Inc. (“New Albertson”) is a
foreign entity with nexus and regular connections to the State of Florida.
4, This Court has jurisdiction of the parties as each of the parties are either
located, registered and/or operate within the State of Florida or under Florida’s Long Arm
Statute.5. Venue is proper in Broward County the causes of action accrued in this
County and the misrepresentations were made to Plaintiff in the County.
6. All conditions precedent to the bringing of this action have been performed,
waived or excused.
GENERAL ALLEGATIONS
7. Plaintiff sells its ice cream products under its brand San Bernardo.
8. Part of Plaintiff's sales are retail, like grocery stores.
9. During all relevant times, Plaintiff was selling its ice cream in varying sizes,
including pints and half gallons.
10. In Plaintiff's communications regarding ice cream product sales related to
the Defendant, Plaintiff would receive communications from Albertsons regardless of the
end location of the product in a Safeway store.
11. Plaintiff has previously in this action named Albertson’s, LLC and Safeway,
Inc. Counsel for Defendants has stated that the wrong parties were named, submitted an
affidavit as to the same and this Court dismissed that action without prejudice based on
wrong parties,
12. Prior to March 2017, SBI had a vendor — vendee business relationship
through a distributor known as C&S Wholesale for sales to Safeway stores.
13. In March 2017, SBI discussed its prior business arrangement, certain
invoices and new business,
14. Due to instructions related to Defendant for Plaintiff not 10 pay and other
business arrangements, SBI did not pay invoices pre-dating March 2017 (the “Invoices”).15. SBI agreed to pay a slotting fee totaling up to $70,000 in monthly
installments (the “Slotting Fee”) in exchange for a restart on the financial arrangements of
their ice cream sales business, including the Invoices, and placement of SBI’s ice cream in
all of the Safeway stores in the Eastern Division from April until December 2017.
16. Additionally, an understanding on pricing, promotions, flavors and
advertising of the SBI’s ice cream in the subject stores was reached.
17. In June 2017, the first and only order of SBI’s ice cream was made related
to Safeway stores (the “Only Order”).
18. The Only Order was for less than $15,000.
19, The Only Order was for only three (3) flavors.
20. SBI is known for its flavors, including enticing names and ingredients, by
example Sea Salt Carmel Truffle.
21. The Only Order related to Defendant was essentially the flavors of vanilla,
chocolate and cookies and cream (the “Ordered Flavors”).
22. In July 2017, SBI paid $10,000 for the first month of the Slotting Fee.
23. No other order was placed related to Defendant.
24. SBI’s ice cream was never placed in all of the Safeway stores in the Eastern
Division.
25. SBI’s ice cream was never placed in most of Safeway stores in the Eastern
Division.
26. Promotional pricing was never given, although agreed, until SBI learned of
the disadvantageous pricing on its product.
27. SBI’s ice cream was priced higher than the retail agreed price.28. Defendant failed to maintain normal inventory on SBI’s product in the
stores that carried the products.
29. Plaintiff performed their obligations prior to any wrongful acts of Defendant
or related entities.
30. Plaintiff repeatedly demanded performance by Defendant or its related
entities.
31. After Plaintiff's demands and notification of wrongdoing, Defendant or its
related entities began to demand payment from SBI,
32. The amounts claimed due from SBI are not actually due and owing.
33. Plaintiff has retained the undersigned attorneys to represent them in this
case, and is obligated to pay a reasonable attorney fee for their services.
COUNT I
CLAIM FOR VIOLATION OF FLORIDA’S DECEPTIVE
AND UNFAIR TRADE PRACTICES ACT
Plaintiff sues Defendant for a violation of Florida’s Deceptive and Unfair Trade
Practices Act, and realleges and reasserts each and every allegation as stated in paragraphs
1-33 above:
34. Certain acts related to Defendant caused Plaintiff to agree to a Slotting Fee
that far exceed the Only Order placed for Defendant.
35. Plaintiff is a consumer as that term is defined in Section 501.203 of the
Florida Statutes, and the prevailing case law supporting that Statute.
36. The Only Order was for less than $15,000 and SBI paid $10,000 for the first
month of the Slotting Fee.37. As the Only Order was essentially the flavors of vanilla, chocolate and
cookies and cream, these Ordered Flavors provided limited opportunity for SBI’s ice cream
to be distinctive and appealing to customers willing to try a different brand.
38. Defendant provided limited availability of the SBI’s ice cream across the
Safeway stores in the Eastern Division.
39. Defendant engaged in unfair and unconscionable acts or practices, and unfair
and deceptive acts or practices in their trade or commerce to the detriment of the Plaintiff.
40. To gain a significant Slotting Fee, Plaintiff was misinformed as its ordering,
product availability in stores, promotional pricing and advertising of SBI’s ice cream.
41. The discussions related to the Slotting Fee had material facts omitted,
including but not limited to the fact there would not be additional orders of product after
the Only Order, products would be in limited Safeway stores in the division, no maintenance
of inventory and very limited flavor selection. .,
42. The conduct related to the Slotting Fee constitutes an unconscionable act or
practice and/or unfair and deceptive action in violation of Florida law, and contrary to the
purposes of the Florida Deceptive and Unfair Trade Practices Act.
43. SBIrelied on the representations and lack of being informed of the omissions
in agreeing the Slotting Fee and terms,
44. The deceptive and unfair trade practices by and related to Defendant have
caused actual damages to Plaintiff.
45. These actions were likely to mislead SBI acting reasonably in reaching an
agreement on the Slotting Fee and terms.46. SBI acted reasonably in the circumstances of the Slotting Fee and business
relationship of the parties.
47. SBl are entitled to recover its reasonable attorney’s fees and costs pursuant
to the Florida Deceptive and Unfair Trade Practices Act.
WHEREFORE, Plaintiff demands judgment against Defendant for damage, special
damages, lost profits, interest, costs, attorneys’ fees per statute, and other such further relief
as may be deemed appropriate.
COUNT IT
BREACH OF CONTRACT
Plaintiff sues Defendant for Breach of Contract, and realleges and reasserts each
and every allegation as stated in paragraphs 1-33 above:
48. The oral contract was confirmed via e-mail (“the E-Mail Contract”). A true
and correct copy of the E-mail Contract is attached hereto and incorporated as Exhibit A.
49. SBI agreed to pay a slotting fee totaling up to $70,000 in monthly
installments (the “Slotting Fee”) in exchange for a restart on the financial arrangements of
the business, including the Invoices, and placement of SBI’s ice cream in all of the Safeway
stores in the Eastern Division from April until December 2017.
50. Additionally, an agreement was reached on pricing, promotions, flavors and
advertising of the SBI’s ice cream in the stores.
51. Atall times pertinent, the parties operated under its contract until Defendant
breached it,
52. Plaintiff and Defendant performed in part consistent with the E-Mail
Contract and the oral arrangement.
53. Plaintiff was performing until Defendant breached.54, Defendant failed to properly perform under the E-Mail Contract and
arrangement, including but not limited to:
a not placing product in all Safeway stores in the Eastern Division;
b insufficient orders;
c lack of market and advertising;
d failing to properly price;
e attempting to collect the Invoices and
f not providing promotional pricing;
55. Plaintiff has been damaged as a direct and proximate result of Defendant’s
breach of the E-Mail Contract and oral arrangement.
WHEREFORE, Plaintiff demands judgment against Defendant for damages, costs
and other such further relief as may be deemed appropriate.
COUNT Til
NEGLIGENTLY SUPPLIED INFORMATION
Plaintiff sues Defendant and realleges and reasserts each and every allegation as
stated in paragraphs 1-33 above:
56. Defendant supplied false information to SBI in the course of SBI’s business.
57. The supplied false information, including:
a Defendant was going to place orders of SBI’s ice cream to fill
Safeway stores in the Bastern Division and maintain inventory to properly evaluate the
products and sales.
b Defendant was going to place SBI’s ice cream in multiple flavors in
all of Safeway stores in the Eastern Division.c Defendant was going to promote via favorable pricing and
advertising SBI’s ice cream.
d Defendant was going to provide a good faith effort as to SBI’s ice
cream.
58. Defendant was negligent in supplying false information.
59. SBI was an entity for whose benefit and guidance the false information was
given to for use in the Slotting Fee and business relationship of the parties.
60. Defendant intended the false information to influence SBI in this business
relationship.
61. Defendant intended to receive the Slotting Fee based on its false
information.
62. SBI justifiably relied on the false information,
63. SBI’s reliance upon the false information caused SBI economic damages.
WHEREFORE, Plaintiff demands judgment against Defendant for damages, costs
and other such further relief as may be deemed appropriate.
COUNT IV
PROMISSORY ESTOPPEL
Plaintiff sues Defendant for Promissory Estoppel, and realleges and reasserts each
and every allegation as stated in paragraphs 1-33 above:
64. In the alternative to a contractual based claim, SBI asserts Promissory
Estoppel against Defendant.
65. Plaintiff was promised that Defendant would stock certain Safeway stores
with varictics of SBI’s ice cream to determine over seven months if it wanted to continue
the sale of the products.66. Plaintiff was promised promotion of its ice cream via favorable pricing and
advertising.
67. Part of that promise was SBI’s agreement to sell the ice cream and pay the
Slotting Fee over seven months.
68. SBI detrimentally relied on the promises.
69. Defendant reasonably should have expected that this promise would induce
reliance and action by SBI, including payment of a Stocking Fee.
70. To the extent that Defendant has claimed that there were no obligations on
its part besides the Only Order to receive the Stocking Fee is a detrimental change in
position.
71. Injustice can be avoided by enforcing the promise and providing remedy to
SBL
WHEREFORE, Plaintiff judgment against Defendant for damages, costs, and other
such further relief as may be deemed appropriate.
DEMAND FOR JURY TRIAL
Plaintiff, by and through his undersigned counsel, hereby demands a trial by jury
of all issues so triable as a matter of law.
Respectfully Submitted,
SILVERBERG & WEISS, P.A.
Attorneys for Plaintiff
1290 Weston Rd, Suite 218
Weston, Florida 33326
Notices@pkslegal.com
(954) 384-0998 tel.
(954) 384-5390 fax.
By: ___ Paul K. Silverberg
Paul K. Silverberg, Esq.
Fla. Bar No. 147877Bob Tammara
From: Bob Tammara
Sent: Friday, March 24, 2017 1:62 PM
To: ‘Jeff Robert’; Matthew Boyd
Ce: Jonathan Tammara
Subject: FW: summary
Good afternoon,
‘Thank you for taking the time to meet with me this week, | really enjoyed the opportunity to meet with you and
sincerely hope we can develop a mutually beneficial and profitable relationshlp,
We shall send samples of the new items to your office on Tuesday or Wecinesday, You shall receive by separate email
the items, upc, pricing ete. for the items we propose for the stores,
San Bernardo shall submit a program for payment for slotting ($70,000 less the amount deducted by C & S from previous
invoices. Product shall be supplied free to charge until such time that the slotting is paid less as stated below.. In
addition San Bernardo shall pay Safeway $3,000 per month for 7 months which sum is to applied to the slotting fee, San
Bernardo ice cream shall be in all Safeway stores from April until December, 2017, At that time the sales shall be
evaluated to determine if the performance is satisfactory to be retained.
San Bernardo shall participate in varlous advertising and promotional activities that Safeway currently does such as
reduced prices in print, social media, digital coupons, etc, We shall also run radio and supply you with the schedule
when finalized,
We shall send you, also by separate email, our records indicating payments and deduction by C & S indicating slotting
and advertising deductions.
| believe this represents our discussions, Please review this and let me know if [have omitted anything.
Please note we have new e-mail addresses, Please update your address book to btammara@SBlceCream.com,
Bob Tammara
San Bernardo Ice Cream
{0} 954-322-2668 x103
(c) 954-729-9315
btammara@sbicecream.com
www.SanBernardolceCream.com
LIKE US ON FACEBOOK AT FACEBOOK.COM/SANBERNARDOICECREAM
FOLLOW US ON TWITTER @SBICECREAM.COM
This electronic messtage contains tafornation fiom faed fimwkellay Consultants, lav vba San Bernurdy tee Creaa, The contents ney be paviteged gad confidential
ind are intended Jor the use of the intendod audrassaegs) eauly wud fol thed fateaded parpuses only. If ya are not an intended caldresser, note that any diselositc,
EXHIBITA
iBob Tammara
From: Matthew Boyd [Matthew. Boyd@safeway.com]
Sent: Tuesday, July 25, 2017 2:31 PM
To: Bob Tammara
Ce: RONALD A Stone
Subject: RE: EXTERNAL: please help
Bob-
Work with Ron on timing, Her gets back from vacation next week,
Matt
From: Bob Tammara [mailto:BTammara@SBlceCream.com]
Sel uesday, July 25, 2017 12:41 PM
To: Matthew Boyd
Subject: RE: EXTERNAL; please help
$1.50 cost per pint, $12.00 per case, Done. can we do one as soon as possible and then another for the holiday?
Please note we have new e-moil addresses. Please update your address book to btammara@SBlceCream.com.
Bob Tammara
San Bernardo Ice Cream
(0) 954-322-2668 x103
(c) 954-729-9315
btammara@sbicecream.com
www.SanBernardolceCream.com
LIKE US ON FACEBOOK AT FACEBOOK.COM/SANBERNARDOICECREAM
FOLLOW US ON TWITTER @SBICECREAM.COM
This electronic message contains information from Food Marketing Consultants, tnc-~ dba San Bernardo Ice Crecim, ‘The contents may he privileged and confidentiat
‘nd are Intended for the tse of the intended cdi +) only and for thelr intended purposes only, Ifyou are not an intended addressee, note thot any disclosure,
conying, distribution, or use of the contenls of this mnessuge is prohibited. If you huve received this e-mail in error, btammara@sbicecream.com should be contacted
immediately,
From: Matthew Boyd [mailto:Matthew.Boyd@safeway.com]
Sent: Tuesday, July 25, 2017 12:40 PM
To: Bob Tammara
Ce: RONALD A Stone
Subject: RE: EXTERNAL: please help
We need a 25% MARGIN.
MattFrom: Bob Tammara [mailto:BTammara@SBlceCream.com.
Sent: Tuesday, July 25, 2017 12:39 PM
To: Matthew Boyd
Cc: RONALD A Stone
Subject: RE: EXTERNAL: please help
Thank you.
Can | get help in setting up a bo/go? What do you have to pay to get it down to 2/$3.99?_ | do not know how far out
you go but we really want to make this work.
Please note we have new e-mail addresses. Please update your address book to btammara@SBiceCream.com.
Bob Tammara
San Bernardo Ice Cream
(0) 954-322-2668 x103
(c) 954-729-9315
btammara@sbicecream.com
www.SanBernardolceCream.com
LIKE US ON FACEBOOK AT FACEBOOK.COM/SANBERNARDOICECREAM
FOLLOW US ON TWITTER @SBICECREAM.COM
This electronic message contains information from Food Marketing Consultants, Inc dba San Bernardo Ice Cream. The contents may be privileged and confidential
and are intended for the use of the intended addressee(s) only and for their intended purposes only. If you are not an intended addressee, note that any disclosure,
copying, distribution, or use of the contents of this message Is prohibited. If you have received this e-mail in error, btammara@sbicecream.com should be contacted
anincdiately.
From: Matthew Boyd [mailto:Matthew.Boyd@safeway.com]
Sent: Tuesday, July 25, 2017 12:35 PM
To: Bob Tammara
Subject: RE: EXTERNAL: please help
Bob- We are adjusting today. You should see the $3.99 retail on the stores this weekend.
Thanks for bringing it to my attention.
Matt
From: Bob Tammara [mailto:BTammara@SBlceCream.com]
Sent: Tuesday, July 25, 2017 10:16 AM
To: Matthew Boyd
Subject: EXTERNAL: please help
Dear Mr. Boyd:
| understand that San Bernardo is a small company that you can survive without us. We greatly appreciate the
opportunity you have given us.Somehow the retail for San Bernardo Ice Cream is $5.49 in your stores. | recommended $3.29 to $3.49 when I met with
Jeff. He told me that he would be putting it out at $2.99. Somehow $5.49 is the price.
Please tell me with whom I can speak to get this corrected. $5.49 will most likely kill any chance we have to be
successful.
Thank you once again for the opportunity to serve your stores.
Please note we have new e-mail addresses. Please update your address book to btammara@SBlceCream.com.
Bob Tammara
San Bernardo Ice Cream
(0) 954-322-2668 x103
(c) 954-729-9315
btammara@sbicecream.com
LIKE US ON FACEBOOK AT FACEBOOK.COM/SANBERNARDOICECREAM
FOLLOW US ON TWITTER @SBICECREAM.COM
This electronic message contains information from Food Marketing Consultants, ine ~ dba San Bernardo Ice Cream. The contents may be privileged and confidentiat
and are intended for the use of the intended addressee(s) only and for their intended purposes only, Ifyou are not an intended addressee, note that any disclosure,
copying, distribution, or use of the contents of this message is prohibited. Ifyou have received this e-mail in error, btammara@sbicecream.com should be contacted
immediately.
Warning: All e-mail sent to this address will be received by the corporate e-mail system, and is subject to
atchival and review by someone other than the recipient. This e-mail may contain proprietary information and is
intended only for the use of the intended recipient(s). If the reader of this message is not the intended
recipient(s), you are notified that you have received this message in error and that any review, dissemination,
distribution or copying of this message is strictly prohibited. If you have received this message in error, please
notify the sender immediately.
Warning: All e-mail sent to this address will be received by the corporate e-mail system, and is subject to
archival and review by someone other than the recipient. This e-mail may contain proprietary information and is
intended only for the use of the intended recipient(s). If the reader of this message is not the intended
recipient(s), you are notified that you have received this message in error and that any review, dissemination,
distribution or copying of this message is strictly prohibited. If you have received this message in error, please
notify the sender immediately.
Warning: All e-mail sent to this address will be received by the corporate e-mail system, and is subject to
archival and review by someone other than the recipient. This e-mail may contain proprietary information and is
intended only for the use of the intended recipient(s). If the reader of this message is not the intended
recipient(s), you are notified that you have received this message in error and that any review, dissemination,
distribution or copying of this message is strictly prohibited. If you have received this message in error, please
notify the sender immediately.EXHIBIT 3ww
ord nn
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IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL
CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO: CACE 18-000924 (09)
FOOD MARKETING CONSULTANTS, INC. d/b/a
SAN BERNARDO,
Plaintiff,
vs.
NEW ALBERTSON'S LP £/n/a NEW ALBERTSON'S,
INC.,
Defendant.
Fort Lauderdale, Florida
August 20, 2019
10:12 - 2:49 p.m.
DEPOSITION OF ROBERT TAMMARA
Taken on behalf of the Defendant before Karen
Ann Smith, RPR, Notary Public in and for the State of
Florida at Large, pursuant to Second Re-Notice of Taking
Deposition in the above cause.
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Page 15
A. Yes, sir.
Q. It indicates that there was instructions not
to pay. What instructions were there not to pay
invoices?
A. On various invoices from - I don't know if
invoice is the right word - from Albertsons Safeway,
on the top right-hand side there were instructions do
not pay whatever was listed below.
Q. All right. And then on item number 15 it says
there was an agreement to pay a slotting fee totaling up
to $70,000.00. Do you see that?
A. I didn't bring my glasses so I apologize. I
forgot. Yes.
Q. That $70,000.00 slotting fee, when was that
agreed upon?
A. Well, that was agreed upon at the March
meeting and it depends upon the question.
MR. SILVERBERG: Do you want to try mine and
see if they help? Does it help?
THE WITNESS: Oh, yeah. Now I can't see it at
all.
Q. So it doesn't help. Prior to March 17 had
there already been an agreement in place for your
company to pay $70,000.00 in slotting fees?
A. Yes.
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Q. When was that agreement?
A. 2015, 2016.
Q. And this March, 2017 agreement regarding the
slotting fees, was that to break it into monthly
installments to pay?
A. That was to reinstitute the $70,000.00
agreement .
Q. What do you mean by reinstitute? Wasn't the
$70,000.00 already owing?
A. The original -- You're talking about different
agreements. Just tell me what date are you talking
about, sir.
Q. Originally there was a $70,000.00 slotting fee
agreed to in 2016, correct?
A. Yes.
Q. And then in March, 2017 there was a
discussion -- Is this a new slotting fee or was it the
old slotting fee that you were paying?
A. It was a new slotting fee to cover the old
slotting fee.
Q. So there was some agreement by Albertsons
Safeway to waive the old slotting fee?
A. The communications from Albertsons indicated
that the fee should not be paid by us, that it would be
deducted from various Safeway payments, so on and so
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forth, and then we received a
communication - communications from Albertsons that the
slotting fee was paid and that we owed no money.
Q. You received communications from Albertsons
that the $70,000.00 2016 slotting fee had been paid?
A. Yes, sir.
Q. Who paid it?
A. I assumed that it was -- The answer is I don't
know. I assumed it was -- They sent me a document,
which we have supplied to you, that said you have paid
in full the slotting allowance.
Q. What document is that? Is it an email? Is it
a receipt?
A. I believe it was an email.
Q. There's an email that says your company paid
the 70,000.
A. Yes, sir.
Q. And how was that paid? Did you write a check?
A. It was to have been paid by deductions from
C&S. C&S deducted any payment or deduction for slotting
and any payment or deduction for advertising or any
promotion or allowances so I was under the impression it
was fully paid.
Q. Well, did you have more than $70,000.00 in
sales in 2016 through Safeway?
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Q. So on the ordering form and on the package of
ice cream it actually just said vanilla?
A. Okay. No. It said Tahitian Vanilla.
Q. What about chocolate?
A. It was Quadruple Chocolate.
Q. And cookies and cream?
A. I don't recall. It was Cookies - More Cookies
and Cream, something like that. Okay. This is not the
exact flavor title on the carton, but it's the flavor of
the ice cream.
Q. And under number 40, would you just take a
look at that allegation?
A. Yes.
Q. The first part says "to gain a significant
slotting fee". What are you referring to?
A. The $70,000.00 that San Bernardo was to - or
Food Marketing Consultants was to pay to Safeway for
putting the products in their stores.
Q. Is that the 2016 slotting fee?
A. This refers to 2017, I believe. It's my
unders
Preview
Filing # 111472043 E-Filed 08/07/2020 03:27:59 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-18-000924 (09) FOOD MARKETING CONSULTANTS, INC. d/b/a SAN BERNARDO, Plaintiff, v. NEW ALBERTSON’S LP f/n/a NEW ALBERTSON’S, INC., Defendant. / DEFENDANT’S MOTION TO PRECLUDE AMENDMENT OF EXPERT WITNESS REPORT AND TO PRECLUDE ADDITIONAL EXPERTS Defendant NEW ALBERTSON’S LP f/n/fa NEW ALBERTSON’S, _ INC. (“ALBERTSON’S”), by its undersigned counsel, hereby files its Motion to Preclude Amendment of Expert Witness Report and to Preclude Additional Experts. INTRODUCTION Plaintiff FOOD MARKETING CONSULTANTS, INC. d/b/a SAN BERNARDO (“SBI”) flouts its deadline to file expert reports. This Court ordered that SBI file its expert witness report regarding damages by March 23, 2020. On the deadline, SBI filed a single expert report, a damages analysis by Ms. Katie Gilden (“Gilden”), a CPA, which calculated $67,0000 in alleged losses. (“Gilden Report”). On June 23, 2020, ALBERTSON’S deposed Gilden. SBI contends the Gilden Report was only preliminary and asserts an open-ended right to modify the report and add an additional expert to assist with the damages analysis. As allowing SBI to circumvent the existing deadline would only encourage further gamesmanship and cause further LEE & AMTZIS, P.L, "ATTORNEYS a LAW *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/07/2020 03:27:58 PM.****CASE NO.: CACE-18-000924 (09) prejudice, ALBERTSON’S requests that the Court enforce its March 23, 2020 deadline, preclude SBI from supplementing the Gilden Report, and prevent SBI from filing additional or alternative expert reports. BACKGROUND SBI Bases its Lawsuit on a 2017 Arrangement SBI markets ice cream manufactured by a third-party in Michigan and private labeled as San Bernardo Ice Cream. (Ex. 1, pp. 20-21).' The SBlI-labeled ice cream is primarily sold directly to the cruise ship industry. (Ex. 1, p. 24). ALBERTSON’S operates grocery stores, including the Safeway stores. Albertson’s/Safeway carried SBI products in stores in its Eastern Division in 2016 pursuant to a written agreement (“2016 Agreement”) and carried some SBI products in 2017 pursuant to a separate arrangement. SBI does not bring a claim based on the 2016 Agreement but rather brings this lawsuit based on the distinct, alleged agreement in 2017. (Ex. 2, 9 13-17)? (Ex. 3, pp. 29-30, 42, 47-48).° Q. Just so we’re clear, the lawsuit that’s been filed against Albertsons Safeway, does it relate to the 2016 agreement? A. No. Q. So it only relates to the 20177 A. Yes. ... (Ex. 3, pp. 47-48). For years, SBI unsuccessfully tried to develop a larger retail market for its ice cream products. (Ex. 1, pp. 35-40 ). In 2016, ALBERTSON’S agreed to place SBI’s ice cream products Attached as Exhibit 1 are deposition excerpts from the deposition of SBI’s President, Jonathan Tammara. ? Attached as Exhibit 2 if the Second Amended Complaint. * Attached as Exhibit 3 are the deposition excerpts of Robert Tammara. LEE & AMTZIS, P.L. ‘AFIORNEYS AT LAWCASE NO.: CACE-18-000924 (09) in certain stores in its Eastern Division. Pursuant to the 2016 Agreement, SBI agreed to pay a $70,000 slotting fee (Ex. 3, pp. 65-66) (a standard practice in the industry to defray grocer’s costs in cutting a new product into its stores and to cover financial risks that the product will not sell). Claiming confusion regarding billings in 2016, SBI never paid ALBERTSON’S the $70,000 slotting fee and failed to pay promotional fees of approximately $10,000 SBI chose to incur in 2016. (Ex. 3, pp. 15-17). In March of 2017, SBI met with ALBERTSON’S, promised to pay off SBI’s existing debt of approximately $80,000, and asked ALBERTSON’S to reconsider its decision to stop carrying SBI products. (Ex. 4).4 SBI made a number of proposals in March of 2017, including that it provide ice cream for free to ALBERTSON’S. (Ex. 4). ALBERTSON’S never agreed to SBI’s proposals for 2017. However, in order to give SBI another chance to perform, ALBERTSON'S placed an order to buy a limited quantity of flavors from SBI and to stock those in certain stores in 2017. (Ex. 5, pp. 71-72) 5 To that end, in 2017, ALBERTSON’S made a $12,960.00 purchase of SBI ice cream and began placing that ice cream in some of its stores. (Ex. 6).° However, SBI made only one payment on its debt and then stopped making payments. (Ex. 5, pp. 85-86). SBI made false assertions to justify why it was not paying its debt. ALBERTSON’S determined it was not willing to continue buying SBI product if SBI was not willing to pay off SBI’s old debt. (Ex. 5, pp. 82-83). Given SBI’s refusal to pay a debt that was not in dispute, ALBERTSON’S sent the debt * Attached as Exhibit 4 is the April 2017 email chain. * Attached as Exhibit 5 are the deposition excerpts of Matt Boyd. ° Attached as Exhibit 6 is the June 30, 2017 invoice. LEE & AMTZIS, P.L. ‘AFIORNEYS AT LAWCASE NO.: CACE-18-000924 (09) to third-party collection. (Ex. 7).’ Only after being contacted for collection, SBI filed this lawsuit on February 14, 2018. For more than a year, this lawsuit languished with SBI taking no meaningful action and generally being non-responsive to ALBERTSON’S efforts to move the litigation forward. ALBERTSON’S served discovery on SBI seeking information regarding the basis for the asserted damages. When SBI failed to appropriately respond to the discovery, on July 2, 2019, ALBERTSON’S filed its Motion to Compel Production of Documents and Answers to Interrogatories. (Ex. 8).* Procedural History Relating to Deadline for Expert Report The expert deadline was set after considerable briefing and argument. On November 27, 2019, this Court deferred ruling on the specific discovery requests identified in the Motion to Compel, but ordered SBI to file an Expert Witness Report within 90 days (February 25, 2020). (Ex. 9)? On January 8, 2020, SBI filed a Motion for Extension of Time again seeking to postpone the deadline to file its expert report. Despite the fact that SBI’s damages calculation is wholly dependent on information in SBI’s custody and control and despite failing to pursue meaningful discovery for almost two years, SBI sought an extension to the expert deadline based on the supposed need for discovery. On February 20, 2020, the Court addressed SBI’s motion granting it in part and extending the expert deadline to March 23, 2020. (Ex. 10).'° ” Attached as Exhibit 7 is the December 13, 2017 letter to SBI. 8 Attached as Exhibit 8 is the Motion to Compel. ° Attached as Exhibit 9 is the November 27, 2019 Order. * Attached as Exhibit 10 is the February 20, 2020 Order. LEE & AMTZIS, P.L. ‘AFIORNEYS AT LAWCASE NO.: CACE-18-000924 (09) The Gilden Report Purports to be Only a Preliminary Report On March 23, 2020, SBI provided the Gilden Report. (Ex. 11).'' Despite the Court’s clear deadline, the Gilden Report purports to be only preliminary. (Ex. 11 ). As the cover letter to the Gilden Report indicates: “[a]s you will see there are pending unusual circumstances, discovery remains open, and needed information that make this report preliminary and limited.” (Ex. 11). Further, the Gilden Report indicates: “Plaintiffs expect to consult with an industry expert in order to determine the amount of units plaintiff would have sold had Defendant ordered, stocked, placed and priced Plaintiff’s product appropriately, as agreed by the parties.” (Ex. 11). On June 23, 2020, ALBERTSON’S deposed SBI’s expert, Gilden, who repeatedly reiterated the report was only intended as a preliminary report that would be revised. (Ex. 12, pp. 25, 29, 40, 41, 42, 81, 84). ”? She testified she was first contacted and retained in early March 2020, just a few weeks before the longstanding deadline. (Ex. 12, p. 63). Gilden further conceded that her damages calculation of $67,000 (the sole opinion expressed in her report) was calculated one business day before her report was due. (Ex. 12, pp. 83-84 ). In fact, she conceded that SBI did not provide her with the underlying information for her calculation until March 20, 2020, one business day before the report was due. (Ex. 12, pp. 83-84). She did not do any review or due diligence regarding the information from SBI used in her calculation. (Ex. 12, pp. 84-85). Gilden also could not explain, with any level of specificity, what additional information was needed to supplement or expand her report. (Ex. 12, p. 29, 73). In her deposition, Gilden could not explain why the information needed was not already in the possession of SBI. (Ex. 12, pp. 71-78). ” Attached as Exhibit 11 is the Gilden Report. LEE & AMTZIS, P.L. ‘AFIORNEYS AT LAWCASE NO.: CACE-18-000924 (09) ARGUMENT “Admission or exclusion of the testimony of a witness in violation of a trial preparation order is within the trial court’s discretion.” Valerowicz v. Armand-Hosang, 248 So.3d 140, 146 (Fla. 4th DCA 2018) (citation omitted). In Binger v. King Pest Control, 401 So. 2d 1310, 1314 (Fla. 1981), the Court stated: The discretion to do so must not be exercised blindly, however, and should be guided largely by a determination as to whether use of the undisclosed witness will prejudice the objecting party. Prejudice in this sense refers to the surprise in fact of the objecting party, and it is not dependent on the adverse nature of the testimony. Other factors which may enter into the trial court's exercise of discretion are: (i) the objecting party's ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness; (ii) the calling party's possible intentional, or bad faith, noncompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the case (or other cases). Here, the factors outlined in Binger compel the relief ALBERTSON’S seeks. First, this Court recognized the prejudice to ALBERTSON’S being forced to defend against a case without any indication as to the amount of damages being sought by SBI. Even after two years and the filing of the Gilden Report, SBI is still trying to dodge identifying its supposed damages. The prejudice to ALBERTSON’S only increases as time passes if SBI is allowed to continue its dodge. Second, ALBERTSON’S cannot independently determine SBI’s damages. SBI determines the damages theories it will pursue and possesses the evidence, if any exists, of its damages. Third, SBI clearly has acted in bad faith regarding the deadline. SBI took no meaningful steps to complete the analysis that SBI contends has yet to be done. SBI controls and has access to all of the information needed to calculate its damages. SBI’s strategy was to file the » Attached as Exhibit 12 are the deposition excerpts of Gilden. LEE & AMTZIS, P.L. ‘AFIORNEYS AT LAWCASE NO.: CACE-18-000924 (09) Gilden Report by the deadline to mislead the Court and then prepare an alternative damages calculation at a later time of SBI’s choosing. The bad faith factor is clearly present. Fourth, if SBI gets away with its “Preliminary Report” strategy, it will disrupt this litigation. Depositions will need to be taken again. Additional discovery will be needed. Further, SBI’s gamesmanship has already impacted the litigation as the Court-ordered mediation in the matter could not be completed. If SBI is allowed to amend its Expert Witness Report, ALBERTSON'S own trial preparations will be disrupted and delayed. Each of the factors support the conclusion that SBI should not be permitted to amend the Expert Witness Report or to submit a report of an additional expert witness. CONCLUSION ALBERTSON’S respectfully requests that this Court enter an Order reaffirming its prior Order, precluding SBI from amending or supplementing its Expert Witness Report and/or adding an additional expert in this matter, together with such other and further relief as the Court may deem just and proper. CERTIFICATE OF SERVICE Thereby certify that on this date, a copy of the foregoing has been furnished to counsel or unrepresented parties on the attached Service List in accordance with Florida Rule of Judicial Administration 2.516(a), 2.516(b)(1), and Supreme Court of Florida Administrative Order No. AOSC13-49 through utilization of the Florida Court E-Filing Portal or in accordance with Florida Rule of Judicial Administration 2.516(b)(2) by email and/or U.S. Mail and/or hand delivery as further designated on the Service List. LEE & AMTZIS, P.L. ‘AFIORNEYS AT LAWCASE NO.: CACE-18-000924 (09) Dated: July 31, 2020 Boca Raton, Florida lee@leeamlaw.com Lee & Amizis, P.L. 5550 Glades Road, Suite 401 Boca Raton, FL 33431 Telephone: (561) 981-9988 and ERIK STIDHAM (admitted pro hac vice) efstidham@hollandhart.com Holland & Hart LLP 800 W. Main Street, Suite 1750 Boise, ID 83702 Telephone: (208) 342-5000 Attorneys for Defendant NEW ALBERTSON’S LP f/n/a NEW ALBERTSON’S, INC. LEE & AMTZIS, P.L. ‘AFIORNEYS AT LAWCASE NO.: CACE-18-000924 (09) SERVICE LIST Attorneys for Plaintiff FOOD MARKETING CONSULTANTS, INC. d/b/a SAN BERNARDO (E-Filing Portal) Silverberg & Weiss, P.A. Paul Silverberg, Esq. 1290 Weston Rd., Ste. 218 Weston, FL 33326 Primary Email Address notices@pkslegal.com 15131691_y2 LEE & AMTZIS, P.L. ‘AFIORNEYS AT LAWEXHIBIT 110 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO: CACE-18-000924 (09) Se x FOOD MARKETING CONSULTANTS, INC., d/b/a SAN BERNARDO, Plaintiff, -against- NEW ALBERTSON'S LP f/k/a NEW ALBERTSON'S, INC., Defendant. SS x June 17, 2020 11:00 a.m. Deposition of JONATHAN TAMMARA, pursuant to notice, Via ZOOM teleconference, before Jack Finz, a Shorthand Reporter and Notary Public within and for the State of Florida. Veritext Legal Solutions 800-726-7007 Page 1 305-376-880010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 20 to as back-of-the-house sales directly to restaurants or other establishments; right? A. Yes. Q. Where was the ice cream manufactured in 2010? A. I believe that in 2010 it was made in Michigan, where we still make a large portion of it with our co-packing relationship today, but I cannot speak to a certainty that there was not any other supply relationship back then because, again, I had just stepped in. Q. Fair enough. So you mentioned a co-packing relationship. Could you tell me what a co-packing relationship is in the context of San Bernardo's ice cream business? A. A company owns the equipment, and another company essentially rents line time on their equipment in order to make something under their label. It is a fairly common practice in the food industry and across other areas of consumer packaged goods and, you know, other areas of industry. Q. You mentioned a co-packing relationship that San Bernardo has with an entity Veritext Legal Solutions 800-726-7007 305-376-880010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 21 in Michigan. Does San Bernardo still have that co-packing relationship with the Michigan company up to today? A. Yes. Q. What's the name of the Michigan company? A. House of Flavors. Q. And am I correct in understanding that House of Flavors, the Michigan company, their business is to work with companies like San Bernardo that don't have manufacturing capability, and then to make ice cream or other goods that are then labeled as San Bernardo products? A. They make ice cream for companies that need ice cream made. There are companies that have their own -- theoretically, a company could have their own equipment and just not have the capacity to make enough of what they need. Q. Fair enough. Does San Bernardo have any manufacturing capabilities separate from their relationship with House of Flavor? Did I say that right, House of Flavor in Michigan? A. House of Flavors, with an S on the end. Veritext Legal Solutions 800-726-7007 305-376-880010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 24 and Eric Lee have in place. I will just tell you at the outset, I have got no problem going back, after the deposition, and giving you and your client some time to designate as to information that you contend is business confidential, and we of course would not make any use of it until you have had a chance to designate what should be protected. MR. SILVERBERG: Fair enough. To the extent you know, Jon, you can answer. A. About 60 percent. We are the largest ice cream supplier to cruise lines in the world. Q. And what is the gross revenues from the sales to cruise lines? Let's start with 2016. A. I don't know. I mean, again, I apologize, I didn't, you know, study chapter and verse, you know, every employee roles and, you know, different category channels of the business for this deposition. Q. That's fine. Tell me, in 2016, what was your title? Veritext Legal Solutions 800-726-7007 305-376-880010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 35 the cruise lines; correct? A. That's a guess. Q. What was the other 35 to 30 percent in 2016, where did that go? A. Everywhere else. Q. Where is everywhere else? A. A little bit of retail, a little bit of export, more traditional food service, which would include casinos, and restaurants, and colleges and universities. Q. You identified retail. What percentage of sales in 2015 -- let me ask you this with regard to '15. Were you selling any ice cream that was labeled as San Bernardo ice cream in a retail outlet? A. We had just introduced the San Bernardo pints, so I don't know. Q. What about 2016; were you selling any ice cream labeled as San Bernardo ice cream in retail outlets in 2016? A. Somewhere in that time, yes, there would have been some other sales, yes. Q. In the 2016 time frame -- well, obviously, do you have an understanding of what this lawsuit is about? Veritext Legal Solutions 800-726-7007 305-376-880010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 36 A. I do. Q. What is your understanding as to what the lawsuit is about? A. There was an agreement, and the agreement was not honored, and here we are. Q. Who was the agreement with? A. I don't want to use the wrong name of the entity, so -- Q. To your understanding, who was the agreement with? A. Whatever the correct legal entity name, et cetera, of the Safeway/Albertson's whatever, and Food Marketing/San Bernardo. Q. When did San Bernardo first have an agreement of any kind with Safeway/Albertson's? A. I met with Jeff Roberts the end of '15, I think it was. Q. Who is Jeff Roberts? A. He worked for Safeway. Q. So you met with Jeff Roberts in about 2015. A. 2016. Sorry. No, I think it was "15. It was '15. Q. So you met with Jeff Roberts in 2015, to the best of your recollection; correct? Veritext Legal Solutions 800-726-7007 305-376-880010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 37 A. Yes. Q. Prior to that meeting with Jeff Roberts, had San Bernardo sold any of its ice cream through a retail outlet? A. I believe so. Q. Can you identify the sales that San Bernardo had had through retail outlets prior to 2015, when you met with Jeff Roberts? A. Can you clarify what you mean by identify the sales? Q. Can you identify for me which retail outlets sold San Bernardo product prior to your meeting with Jeff Roberts? A. We had sold through ShopRite. We had sold some through Big Y. We had sold some through Key Foods. Q. Can you estimate for me, in terms of dollars, how much San Bernardo had had in retail sales prior to your meeting with Jeff Roberts in approximately 2015? A. I can't, because I don't recall if some of it was '15 and some of it was '16, and I just, you know, I didn't review that information. Q. Fair enough. When to your recollection is the Veritext Legal Solutions 800-726-7007 305-376-880010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 38 first point in time at which San Bernardo sold its product, had any sales, through a retail outlet? A. I don't recall specifically when we did. Q. Let me see if we can at least box it ina little bit. Was the first time San Bernardo engaged in any retail sales in the 2015-2016 time frame? A. Most likely pretty close to that, yes. Q. Can you estimate for me in 2016 what the sales numbers were for San Bernardo through retail outlets? A. Again, I didn't look at that information. I don't know. Q. Do you know whether it was less than a million dollars? A. Again, I just didn't look at any of these numbers. Q. So in your role as president, do you look at the financials of the company? A. I do. Q. What do you do -- and you are a finance major; correct? A. I am. Veritext Legal Solutions 800-726-7007 305-376-880010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 39 Q. So what do you look at in the course of your duties as far as financial reports on a regular basis as president of the company? A. What do you mean? Q. Do you look at monthly financial reports as president? A. I do. Q. And were you looking at monthly financial reports in 2015 as president of the company? A. Probably. Q. And what type of financial reporting do you review on a monthly basis as president of the company since at least 2015? A. I would look at sales figures. But you are asking me to recall something from four or five years ago. Q. Do you know whether you had more than $2 million in retail sales in 2015? A. We did not. Q. Have you ever had more than a million dollars in retail sales in any year since you have been with San Bernardo? And let me strike that question so I can ask it hopefully more clearly. Veritext Legal Solutions 800-726-7007 305-376-880010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 40 Have you ever had more than $100,000 in sales through a retail store like Albertson's or Safeway? A. Yes. Q. In a year, in any year. A. Yes. Q. Have you ever had more than $300,000 in retail sales through any retail stores in any year? A. Yes. Q. Have you ever had more than a million dollars in retail sales through any retail stores? A. I don't know. Q. What was the year in which San Bernardo had the most in retail sales of its ice cream? A. There are a couple of years that were pretty close. Q. What years were those? A. 2015 and 2018 were both very good. Q. In 2015, which retail outlets were you selling ice cream through? A. Safeway -- not Safeway -- ShopRite, and we had some going through Key Food. I just Veritext Legal Solutions 800-726-7007 305-376-880010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 65 Q. So in the 2015 time frame, am I correct in understanding that you personally were involved in efforts to get the San Bernardo dairy ice cream in retail stores? A. Yes. Q. Did you have any success, other than the Jeff Roberts meeting in 2015, reaching any agreements to get San Bernardo dairy ice cream in more stores, in the 2015 and 2016 time frame? A. We just listed the retailers that we were in. Q. No, I'm sorry. In 2016 were you trying to get the San Bernardo dairy ice cream in new and additional stores beyond just Safeway and Albertson's? A. We were always trying to get products in additional stores. Q. And were you able to -- and we will talk about the Safeway/Albertson's arrangement in a bit. But were you able to secure any new relationships, let's say from 2015 on, for placement of San Bernardo ice cream in retail stores? A. Everything we just listed was 2015 on, so I don't understand the question. Veritext Legal Solutions 800-726-7007 305-376-880010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 66 Q. Let's say 2016, 2016 on. A. Well, some of those are 2016, sir. Q. So have we identified all of the retail stores that you sold San Bernardo dairy ice cream in so far in your testimony? A. I don't represent that my memory is perfect, so I am not representing that it is exhaustive. Q. So did you have any meetings in 2015, '16, '17 and '18 with retail stores to find an outlet for sale of your ice cream and those meetings were unsuccessful? A. Could you repeat the question? Q. Sure. Did you meet with and engage other retail stores, in 2015 to present, with the objective of getting your San Bernardo dairy ice cream sold in their stores and those meetings just didn't turn into anything, you were unsuccessful? A. Between 2015 and now? Q. Yes. A. Did we meet with any retailers, present San Bernardo, and they said no. Is that the question? Q. Yes. Veritext Legal Solutions 800-726-7007 305-376-8800EXHIBIT 2Filing # 78944568 E-Filed 10/05/2018 02:03:47 PM IN THE CIRCUIT COURT OF THE 17™ JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA FOOD MARKETING CONSULTANTS, INC. d/b/a SAN BERNARDO, Plaintiff, vs. CASE NO. CACE18-000924 NEW ALBERTSON’S LP f/n/a NEW ALBERTSON’S, INC. Defendants. / SECOND AMENDED COMPLAINT Plaintiff Food Marketing Consultants, Inc. d/b/a San Bernardo (“Plaintiff”), by and through their undersigned counsel, hereby sues Defendant New Albertson’s LP f/n/a New Albertson’s Inc. (“New Albertson”), and do state: THE PARTIES, JURISDICTION AND VENUE 1. This is an action for damage, Plaintiff seeks damages within the jurisdictional limits of this Court with costs, and fees, plus special damages. 2. Food Marketing Consultants, Inc. d/b/a San Bernardo (“SBI”) is a Florida corporation with operations in Broward County, Florida. 3. New Albertson’s LP f/n/a New Albertson’s Inc. (“New Albertson”) is a foreign entity with nexus and regular connections to the State of Florida. 4, This Court has jurisdiction of the parties as each of the parties are either located, registered and/or operate within the State of Florida or under Florida’s Long Arm Statute.5. Venue is proper in Broward County the causes of action accrued in this County and the misrepresentations were made to Plaintiff in the County. 6. All conditions precedent to the bringing of this action have been performed, waived or excused. GENERAL ALLEGATIONS 7. Plaintiff sells its ice cream products under its brand San Bernardo. 8. Part of Plaintiff's sales are retail, like grocery stores. 9. During all relevant times, Plaintiff was selling its ice cream in varying sizes, including pints and half gallons. 10. In Plaintiff's communications regarding ice cream product sales related to the Defendant, Plaintiff would receive communications from Albertsons regardless of the end location of the product in a Safeway store. 11. Plaintiff has previously in this action named Albertson’s, LLC and Safeway, Inc. Counsel for Defendants has stated that the wrong parties were named, submitted an affidavit as to the same and this Court dismissed that action without prejudice based on wrong parties, 12. Prior to March 2017, SBI had a vendor — vendee business relationship through a distributor known as C&S Wholesale for sales to Safeway stores. 13. In March 2017, SBI discussed its prior business arrangement, certain invoices and new business, 14. Due to instructions related to Defendant for Plaintiff not 10 pay and other business arrangements, SBI did not pay invoices pre-dating March 2017 (the “Invoices”).15. SBI agreed to pay a slotting fee totaling up to $70,000 in monthly installments (the “Slotting Fee”) in exchange for a restart on the financial arrangements of their ice cream sales business, including the Invoices, and placement of SBI’s ice cream in all of the Safeway stores in the Eastern Division from April until December 2017. 16. Additionally, an understanding on pricing, promotions, flavors and advertising of the SBI’s ice cream in the subject stores was reached. 17. In June 2017, the first and only order of SBI’s ice cream was made related to Safeway stores (the “Only Order”). 18. The Only Order was for less than $15,000. 19, The Only Order was for only three (3) flavors. 20. SBI is known for its flavors, including enticing names and ingredients, by example Sea Salt Carmel Truffle. 21. The Only Order related to Defendant was essentially the flavors of vanilla, chocolate and cookies and cream (the “Ordered Flavors”). 22. In July 2017, SBI paid $10,000 for the first month of the Slotting Fee. 23. No other order was placed related to Defendant. 24. SBI’s ice cream was never placed in all of the Safeway stores in the Eastern Division. 25. SBI’s ice cream was never placed in most of Safeway stores in the Eastern Division. 26. Promotional pricing was never given, although agreed, until SBI learned of the disadvantageous pricing on its product. 27. SBI’s ice cream was priced higher than the retail agreed price.28. Defendant failed to maintain normal inventory on SBI’s product in the stores that carried the products. 29. Plaintiff performed their obligations prior to any wrongful acts of Defendant or related entities. 30. Plaintiff repeatedly demanded performance by Defendant or its related entities. 31. After Plaintiff's demands and notification of wrongdoing, Defendant or its related entities began to demand payment from SBI, 32. The amounts claimed due from SBI are not actually due and owing. 33. Plaintiff has retained the undersigned attorneys to represent them in this case, and is obligated to pay a reasonable attorney fee for their services. COUNT I CLAIM FOR VIOLATION OF FLORIDA’S DECEPTIVE AND UNFAIR TRADE PRACTICES ACT Plaintiff sues Defendant for a violation of Florida’s Deceptive and Unfair Trade Practices Act, and realleges and reasserts each and every allegation as stated in paragraphs 1-33 above: 34. Certain acts related to Defendant caused Plaintiff to agree to a Slotting Fee that far exceed the Only Order placed for Defendant. 35. Plaintiff is a consumer as that term is defined in Section 501.203 of the Florida Statutes, and the prevailing case law supporting that Statute. 36. The Only Order was for less than $15,000 and SBI paid $10,000 for the first month of the Slotting Fee.37. As the Only Order was essentially the flavors of vanilla, chocolate and cookies and cream, these Ordered Flavors provided limited opportunity for SBI’s ice cream to be distinctive and appealing to customers willing to try a different brand. 38. Defendant provided limited availability of the SBI’s ice cream across the Safeway stores in the Eastern Division. 39. Defendant engaged in unfair and unconscionable acts or practices, and unfair and deceptive acts or practices in their trade or commerce to the detriment of the Plaintiff. 40. To gain a significant Slotting Fee, Plaintiff was misinformed as its ordering, product availability in stores, promotional pricing and advertising of SBI’s ice cream. 41. The discussions related to the Slotting Fee had material facts omitted, including but not limited to the fact there would not be additional orders of product after the Only Order, products would be in limited Safeway stores in the division, no maintenance of inventory and very limited flavor selection. ., 42. The conduct related to the Slotting Fee constitutes an unconscionable act or practice and/or unfair and deceptive action in violation of Florida law, and contrary to the purposes of the Florida Deceptive and Unfair Trade Practices Act. 43. SBIrelied on the representations and lack of being informed of the omissions in agreeing the Slotting Fee and terms, 44. The deceptive and unfair trade practices by and related to Defendant have caused actual damages to Plaintiff. 45. These actions were likely to mislead SBI acting reasonably in reaching an agreement on the Slotting Fee and terms.46. SBI acted reasonably in the circumstances of the Slotting Fee and business relationship of the parties. 47. SBl are entitled to recover its reasonable attorney’s fees and costs pursuant to the Florida Deceptive and Unfair Trade Practices Act. WHEREFORE, Plaintiff demands judgment against Defendant for damage, special damages, lost profits, interest, costs, attorneys’ fees per statute, and other such further relief as may be deemed appropriate. COUNT IT BREACH OF CONTRACT Plaintiff sues Defendant for Breach of Contract, and realleges and reasserts each and every allegation as stated in paragraphs 1-33 above: 48. The oral contract was confirmed via e-mail (“the E-Mail Contract”). A true and correct copy of the E-mail Contract is attached hereto and incorporated as Exhibit A. 49. SBI agreed to pay a slotting fee totaling up to $70,000 in monthly installments (the “Slotting Fee”) in exchange for a restart on the financial arrangements of the business, including the Invoices, and placement of SBI’s ice cream in all of the Safeway stores in the Eastern Division from April until December 2017. 50. Additionally, an agreement was reached on pricing, promotions, flavors and advertising of the SBI’s ice cream in the stores. 51. Atall times pertinent, the parties operated under its contract until Defendant breached it, 52. Plaintiff and Defendant performed in part consistent with the E-Mail Contract and the oral arrangement. 53. Plaintiff was performing until Defendant breached.54, Defendant failed to properly perform under the E-Mail Contract and arrangement, including but not limited to: a not placing product in all Safeway stores in the Eastern Division; b insufficient orders; c lack of market and advertising; d failing to properly price; e attempting to collect the Invoices and f not providing promotional pricing; 55. Plaintiff has been damaged as a direct and proximate result of Defendant’s breach of the E-Mail Contract and oral arrangement. WHEREFORE, Plaintiff demands judgment against Defendant for damages, costs and other such further relief as may be deemed appropriate. COUNT Til NEGLIGENTLY SUPPLIED INFORMATION Plaintiff sues Defendant and realleges and reasserts each and every allegation as stated in paragraphs 1-33 above: 56. Defendant supplied false information to SBI in the course of SBI’s business. 57. The supplied false information, including: a Defendant was going to place orders of SBI’s ice cream to fill Safeway stores in the Bastern Division and maintain inventory to properly evaluate the products and sales. b Defendant was going to place SBI’s ice cream in multiple flavors in all of Safeway stores in the Eastern Division.c Defendant was going to promote via favorable pricing and advertising SBI’s ice cream. d Defendant was going to provide a good faith effort as to SBI’s ice cream. 58. Defendant was negligent in supplying false information. 59. SBI was an entity for whose benefit and guidance the false information was given to for use in the Slotting Fee and business relationship of the parties. 60. Defendant intended the false information to influence SBI in this business relationship. 61. Defendant intended to receive the Slotting Fee based on its false information. 62. SBI justifiably relied on the false information, 63. SBI’s reliance upon the false information caused SBI economic damages. WHEREFORE, Plaintiff demands judgment against Defendant for damages, costs and other such further relief as may be deemed appropriate. COUNT IV PROMISSORY ESTOPPEL Plaintiff sues Defendant for Promissory Estoppel, and realleges and reasserts each and every allegation as stated in paragraphs 1-33 above: 64. In the alternative to a contractual based claim, SBI asserts Promissory Estoppel against Defendant. 65. Plaintiff was promised that Defendant would stock certain Safeway stores with varictics of SBI’s ice cream to determine over seven months if it wanted to continue the sale of the products.66. Plaintiff was promised promotion of its ice cream via favorable pricing and advertising. 67. Part of that promise was SBI’s agreement to sell the ice cream and pay the Slotting Fee over seven months. 68. SBI detrimentally relied on the promises. 69. Defendant reasonably should have expected that this promise would induce reliance and action by SBI, including payment of a Stocking Fee. 70. To the extent that Defendant has claimed that there were no obligations on its part besides the Only Order to receive the Stocking Fee is a detrimental change in position. 71. Injustice can be avoided by enforcing the promise and providing remedy to SBL WHEREFORE, Plaintiff judgment against Defendant for damages, costs, and other such further relief as may be deemed appropriate. DEMAND FOR JURY TRIAL Plaintiff, by and through his undersigned counsel, hereby demands a trial by jury of all issues so triable as a matter of law. Respectfully Submitted, SILVERBERG & WEISS, P.A. Attorneys for Plaintiff 1290 Weston Rd, Suite 218 Weston, Florida 33326 Notices@pkslegal.com (954) 384-0998 tel. (954) 384-5390 fax. By: ___ Paul K. Silverberg Paul K. Silverberg, Esq. Fla. Bar No. 147877Bob Tammara From: Bob Tammara Sent: Friday, March 24, 2017 1:62 PM To: ‘Jeff Robert’; Matthew Boyd Ce: Jonathan Tammara Subject: FW: summary Good afternoon, ‘Thank you for taking the time to meet with me this week, | really enjoyed the opportunity to meet with you and sincerely hope we can develop a mutually beneficial and profitable relationshlp, We shall send samples of the new items to your office on Tuesday or Wecinesday, You shall receive by separate email the items, upc, pricing ete. for the items we propose for the stores, San Bernardo shall submit a program for payment for slotting ($70,000 less the amount deducted by C & S from previous invoices. Product shall be supplied free to charge until such time that the slotting is paid less as stated below.. In addition San Bernardo shall pay Safeway $3,000 per month for 7 months which sum is to applied to the slotting fee, San Bernardo ice cream shall be in all Safeway stores from April until December, 2017, At that time the sales shall be evaluated to determine if the performance is satisfactory to be retained. San Bernardo shall participate in varlous advertising and promotional activities that Safeway currently does such as reduced prices in print, social media, digital coupons, etc, We shall also run radio and supply you with the schedule when finalized, We shall send you, also by separate email, our records indicating payments and deduction by C & S indicating slotting and advertising deductions. | believe this represents our discussions, Please review this and let me know if [have omitted anything. Please note we have new e-mail addresses, Please update your address book to btammara@SBlceCream.com, Bob Tammara San Bernardo Ice Cream {0} 954-322-2668 x103 (c) 954-729-9315 btammara@sbicecream.com www.SanBernardolceCream.com LIKE US ON FACEBOOK AT FACEBOOK.COM/SANBERNARDOICECREAM FOLLOW US ON TWITTER @SBICECREAM.COM This electronic messtage contains tafornation fiom faed fimwkellay Consultants, lav vba San Bernurdy tee Creaa, The contents ney be paviteged gad confidential ind are intended Jor the use of the intendod audrassaegs) eauly wud fol thed fateaded parpuses only. If ya are not an intended caldresser, note that any diselositc, EXHIBITA iBob Tammara From: Matthew Boyd [Matthew. Boyd@safeway.com] Sent: Tuesday, July 25, 2017 2:31 PM To: Bob Tammara Ce: RONALD A Stone Subject: RE: EXTERNAL: please help Bob- Work with Ron on timing, Her gets back from vacation next week, Matt From: Bob Tammara [mailto:BTammara@SBlceCream.com] Sel uesday, July 25, 2017 12:41 PM To: Matthew Boyd Subject: RE: EXTERNAL; please help $1.50 cost per pint, $12.00 per case, Done. can we do one as soon as possible and then another for the holiday? Please note we have new e-moil addresses. Please update your address book to btammara@SBlceCream.com. Bob Tammara San Bernardo Ice Cream (0) 954-322-2668 x103 (c) 954-729-9315 btammara@sbicecream.com www.SanBernardolceCream.com LIKE US ON FACEBOOK AT FACEBOOK.COM/SANBERNARDOICECREAM FOLLOW US ON TWITTER @SBICECREAM.COM This electronic message contains information from Food Marketing Consultants, tnc-~ dba San Bernardo Ice Crecim, ‘The contents may he privileged and confidentiat ‘nd are Intended for the tse of the intended cdi +) only and for thelr intended purposes only, Ifyou are not an intended addressee, note thot any disclosure, conying, distribution, or use of the contenls of this mnessuge is prohibited. If you huve received this e-mail in error, btammara@sbicecream.com should be contacted immediately, From: Matthew Boyd [mailto:Matthew.Boyd@safeway.com] Sent: Tuesday, July 25, 2017 12:40 PM To: Bob Tammara Ce: RONALD A Stone Subject: RE: EXTERNAL: please help We need a 25% MARGIN. MattFrom: Bob Tammara [mailto:BTammara@SBlceCream.com. Sent: Tuesday, July 25, 2017 12:39 PM To: Matthew Boyd Cc: RONALD A Stone Subject: RE: EXTERNAL: please help Thank you. Can | get help in setting up a bo/go? What do you have to pay to get it down to 2/$3.99?_ | do not know how far out you go but we really want to make this work. Please note we have new e-mail addresses. Please update your address book to btammara@SBiceCream.com. Bob Tammara San Bernardo Ice Cream (0) 954-322-2668 x103 (c) 954-729-9315 btammara@sbicecream.com www.SanBernardolceCream.com LIKE US ON FACEBOOK AT FACEBOOK.COM/SANBERNARDOICECREAM FOLLOW US ON TWITTER @SBICECREAM.COM This electronic message contains information from Food Marketing Consultants, Inc dba San Bernardo Ice Cream. The contents may be privileged and confidential and are intended for the use of the intended addressee(s) only and for their intended purposes only. If you are not an intended addressee, note that any disclosure, copying, distribution, or use of the contents of this message Is prohibited. If you have received this e-mail in error, btammara@sbicecream.com should be contacted anincdiately. From: Matthew Boyd [mailto:Matthew.Boyd@safeway.com] Sent: Tuesday, July 25, 2017 12:35 PM To: Bob Tammara Subject: RE: EXTERNAL: please help Bob- We are adjusting today. You should see the $3.99 retail on the stores this weekend. Thanks for bringing it to my attention. Matt From: Bob Tammara [mailto:BTammara@SBlceCream.com] Sent: Tuesday, July 25, 2017 10:16 AM To: Matthew Boyd Subject: EXTERNAL: please help Dear Mr. Boyd: | understand that San Bernardo is a small company that you can survive without us. We greatly appreciate the opportunity you have given us.Somehow the retail for San Bernardo Ice Cream is $5.49 in your stores. | recommended $3.29 to $3.49 when I met with Jeff. He told me that he would be putting it out at $2.99. Somehow $5.49 is the price. Please tell me with whom I can speak to get this corrected. $5.49 will most likely kill any chance we have to be successful. Thank you once again for the opportunity to serve your stores. Please note we have new e-mail addresses. Please update your address book to btammara@SBlceCream.com. Bob Tammara San Bernardo Ice Cream (0) 954-322-2668 x103 (c) 954-729-9315 btammara@sbicecream.com LIKE US ON FACEBOOK AT FACEBOOK.COM/SANBERNARDOICECREAM FOLLOW US ON TWITTER @SBICECREAM.COM This electronic message contains information from Food Marketing Consultants, ine ~ dba San Bernardo Ice Cream. The contents may be privileged and confidentiat and are intended for the use of the intended addressee(s) only and for their intended purposes only, Ifyou are not an intended addressee, note that any disclosure, copying, distribution, or use of the contents of this message is prohibited. Ifyou have received this e-mail in error, btammara@sbicecream.com should be contacted immediately. Warning: All e-mail sent to this address will be received by the corporate e-mail system, and is subject to atchival and review by someone other than the recipient. This e-mail may contain proprietary information and is intended only for the use of the intended recipient(s). If the reader of this message is not the intended recipient(s), you are notified that you have received this message in error and that any review, dissemination, distribution or copying of this message is strictly prohibited. If you have received this message in error, please notify the sender immediately. Warning: All e-mail sent to this address will be received by the corporate e-mail system, and is subject to archival and review by someone other than the recipient. This e-mail may contain proprietary information and is intended only for the use of the intended recipient(s). If the reader of this message is not the intended recipient(s), you are notified that you have received this message in error and that any review, dissemination, distribution or copying of this message is strictly prohibited. If you have received this message in error, please notify the sender immediately. Warning: All e-mail sent to this address will be received by the corporate e-mail system, and is subject to archival and review by someone other than the recipient. This e-mail may contain proprietary information and is intended only for the use of the intended recipient(s). If the reader of this message is not the intended recipient(s), you are notified that you have received this message in error and that any review, dissemination, distribution or copying of this message is strictly prohibited. If you have received this message in error, please notify the sender immediately.EXHIBIT 3ww ord nn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 1 IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO: CACE 18-000924 (09) FOOD MARKETING CONSULTANTS, INC. d/b/a SAN BERNARDO, Plaintiff, vs. NEW ALBERTSON'S LP £/n/a NEW ALBERTSON'S, INC., Defendant. Fort Lauderdale, Florida August 20, 2019 10:12 - 2:49 p.m. DEPOSITION OF ROBERT TAMMARA Taken on behalf of the Defendant before Karen Ann Smith, RPR, Notary Public in and for the State of Florida at Large, pursuant to Second Re-Notice of Taking Deposition in the above cause. Veritext Legal Solutions 800-726-7007 305-376-880010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 15 A. Yes, sir. Q. It indicates that there was instructions not to pay. What instructions were there not to pay invoices? A. On various invoices from - I don't know if invoice is the right word - from Albertsons Safeway, on the top right-hand side there were instructions do not pay whatever was listed below. Q. All right. And then on item number 15 it says there was an agreement to pay a slotting fee totaling up to $70,000.00. Do you see that? A. I didn't bring my glasses so I apologize. I forgot. Yes. Q. That $70,000.00 slotting fee, when was that agreed upon? A. Well, that was agreed upon at the March meeting and it depends upon the question. MR. SILVERBERG: Do you want to try mine and see if they help? Does it help? THE WITNESS: Oh, yeah. Now I can't see it at all. Q. So it doesn't help. Prior to March 17 had there already been an agreement in place for your company to pay $70,000.00 in slotting fees? A. Yes. Veritext Legal Solutions 800-726-7007 305-376-880010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 16 Q. When was that agreement? A. 2015, 2016. Q. And this March, 2017 agreement regarding the slotting fees, was that to break it into monthly installments to pay? A. That was to reinstitute the $70,000.00 agreement . Q. What do you mean by reinstitute? Wasn't the $70,000.00 already owing? A. The original -- You're talking about different agreements. Just tell me what date are you talking about, sir. Q. Originally there was a $70,000.00 slotting fee agreed to in 2016, correct? A. Yes. Q. And then in March, 2017 there was a discussion -- Is this a new slotting fee or was it the old slotting fee that you were paying? A. It was a new slotting fee to cover the old slotting fee. Q. So there was some agreement by Albertsons Safeway to waive the old slotting fee? A. The communications from Albertsons indicated that the fee should not be paid by us, that it would be deducted from various Safeway payments, so on and so Veritext Legal Solutions 800-726-7007 305-376-880010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 17 forth, and then we received a communication - communications from Albertsons that the slotting fee was paid and that we owed no money. Q. You received communications from Albertsons that the $70,000.00 2016 slotting fee had been paid? A. Yes, sir. Q. Who paid it? A. I assumed that it was -- The answer is I don't know. I assumed it was -- They sent me a document, which we have supplied to you, that said you have paid in full the slotting allowance. Q. What document is that? Is it an email? Is it a receipt? A. I believe it was an email. Q. There's an email that says your company paid the 70,000. A. Yes, sir. Q. And how was that paid? Did you write a check? A. It was to have been paid by deductions from C&S. C&S deducted any payment or deduction for slotting and any payment or deduction for advertising or any promotion or allowances so I was under the impression it was fully paid. Q. Well, did you have more than $70,000.00 in sales in 2016 through Safeway? Veritext Legal Solutions 800-726-7007 305-376-880010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 29 Q. So on the ordering form and on the package of ice cream it actually just said vanilla? A. Okay. No. It said Tahitian Vanilla. Q. What about chocolate? A. It was Quadruple Chocolate. Q. And cookies and cream? A. I don't recall. It was Cookies - More Cookies and Cream, something like that. Okay. This is not the exact flavor title on the carton, but it's the flavor of the ice cream. Q. And under number 40, would you just take a look at that allegation? A. Yes. Q. The first part says "to gain a significant slotting fee". What are you referring to? A. The $70,000.00 that San Bernardo was to - or Food Marketing Consultants was to pay to Safeway for putting the products in their stores. Q. Is that the 2016 slotting fee? A. This refers to 2017, I believe. It's my unders