1 1 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK 3 ------------------------------------------X DUNKIN' DONUTS FRANCHISED RESTAURANTS 4 LLC, a Delaware limited liability company, DUNKIN' DONUTS FRANCHISING LLC, a Delaware 5 limited liability company, DD IP HOLDER LLC, a Delaware limited liability company, 6 BASKIN-ROBBINS FRANCHISING LLC, a Delaware limited liability company and BR IP HOLDER 7 LLC, a Delaware limited liability company, 8 Plaintiffs, 9 -against- Docket No. 07 Civ. 2446 10 1700 CHURCH AVENUE CORP., a New York corporation, 244 FLATBUSH AVENUE LLC a 11 New York limited liability company, ASAM HABIB, a resident of New York, 12 and HINDY GLUCK, a resident of New York, 13 Defendants. ------------------------------------------X 14 15 EXAMINATION BEFORE TRIAL of the Plaintiff 16 DUNKIN' DONUTS FRANCHISED RESTAURANTS LLC, by 17 MARK MERRIMAN, pursuant to Notice, held at the 18 law offices of JAROSLAWICZ & JAROS, L.L.C., 225 19 Broadway, New York, New York, on March 26, 20 2008, commencing at 10:00 a.m., before ARTHUR 21 HECHT, a Court Reporter and Notary Public 22 within and for the State of New York. 23 24 REINIG REPORTING, INC. 192 Lexington Avenue 25 New York, New York 10016 (212) 684-7298 2 1 2 A P P E A R A N C E S: 3 4 GRAY PLANT MOOTY, ESQS. Attorneys for Plaintiffs 5 2600 Virginia Avenue, N.W. The Watergate, Suite 1111 6 Washington, DC 20037 7 BY: DAVID E. WORTHEN, ESQ. 8 9 JAROSLAWICZ & JAROS, L.L.C. Attorneys for Defendants 10 225 Broadway New York, New York 10007 11 BY: DAVID JAROSLAWICZ, ESQ. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REINIG REPORTING, INC. (212) 684-7298 3 1 2 IT IS HEREBY STIPULATED AND AGREED by 3 and between the attorneys for the respective 4 parties hereto that filing, sealing and 5 certification be and the same are hereby 6 waived. 7 IT IS FURTHER STIPULATED AND AGREED that 8 all objections, except as to the form of the 9 question, be reserved to the time of the trial. 10 IT IS FURTHER STIPULATED AND AGREED that 11 the within examination may be signed and sworn 12 to before any Notary Public with the same force 13 and effect as though signed and sworn to before 14 this Court. 15 16 17 18 19 20 21 22 23 24 25 REINIG REPORTING, INC. (212) 684-7298 4 1 Merriman 2 M A R K M E R R I M A N, having been duly 3 sworn by a Notary Public within 4 and for the State of New York, 5 and having stated his address as 20 6 Tulip Street, Cranford, New Jersey 7 07016, was examined and testified 8 under oath as follows: 9 EXAMINATION BY MR. JAROSLAWICZ: 10 Q What is your name? 11 A Mark Merriman. 12 Q Mr. Merriman, have you ever given 13 testimony under oath before? 14 A Yes, sir. 15 Q How many times? 16 A I don't recall the amount. 17 Q Was it more than once? 18 A Yes. 19 Q Was it more than five times? 20 A No. 21 Q Was all that testimony on behalf 22 of Dunkin' Donuts? 23 A No. 24 Q What other matters have you 25 testified in other than on behalf of Dunkin' REINIG REPORTING, INC. (212) 684-7298 5 1 Merriman 2 Donuts? 3 A I'm sorry, other than Dunkin' 4 Donuts? 5 Q Right. 6 A I worked with Days Inn years ago. 7 Q How many times did you testify for 8 Days Inn? 9 A Under five. 10 Q How many times have you testified 11 for Dunkin' Donuts? 12 A I don't recall the amount, but 13 it's under five. 14 Q Was all your testimony in 15 connection with terminating franchises? 16 A I don't want to guess, but I don't 17 necessarily recall, because one was a food 18 safety issue. 19 Q What is your date of birth, 20 please? 21 A It's 12/10/1965. 22 Q And what is your education 23 following high school? 24 A Following high school, I graduated 25 from the University of Tennessee. REINIG REPORTING, INC. (212) 684-7298 6 1 Merriman 2 Q With a degree in what? 3 A A degree bachelor of arts, 4 sociology. 5 Q Any other education? 6 A No, sir. 7 Q And when did you come to work for 8 Dunkin' Donuts? 9 A 2005. 10 Q Who did you work for before 11 Dunkin' Donuts? 12 A I've worked for Cendant 13 Hospitality. 14 Q And what did you do for Cendant? 15 A I did different jobs from 16 operations manager, quality assurance, 17 marketing. 18 Q Did that involve food service, did 19 that involve hotels or motels for Cendant? 20 A It involved hotels and some food 21 and beverage. 22 Q And where did you work out of when 23 you worked for Cendant? 24 A I'm sorry? 25 Q Where did you work out of when you REINIG REPORTING, INC. (212) 684-7298 7 1 Merriman 2 worked for Cendant? 3 A Parsippany, New Jersey. 4 Q And where do you live? 5 A I live in Cranford, New Jersey. 6 Q And what's your address? 7 A 20 Tulip Street, Cranford, New 8 Jersey, he's got it. 9 Q And what is your office address? 10 A Well, I work out of my home. 11 Q You have no office? 12 A Yeah, I have an office in my home. 13 Q You have no office anywhere at 14 Dunkin'? 15 A Well, my office is out of my home, 16 so I work -- 17 Q Do you also have an office 18 somewhere at Dunkin'? 19 A No, sir. 20 Q Do you report to anyone at Dunkin' 21 Donuts? 22 A Yes, sir. 23 Q And who do you report to? 24 A I report to Len Hohmann. 25 Q And what is Mr. Hohmann's title? REINIG REPORTING, INC. (212) 684-7298 8 1 Merriman 2 A His title is director of 3 operations. 4 Q Is he a lawyer? 5 A No, sir. 6 Q And what is your title at Dunkin'? 7 A My title is operations manager. 8 Q Has that always been your title 9 since you've worked at Dunkin'? 10 A Yes, sir. 11 Q And who is Tracy Foley? 12 A Tracy Foley, I don't want to 13 guess. 14 Q Well, do you know anyone by the 15 name of Tracy Foley? 16 A Yeah, I think she works up at the 17 corporate office. 18 Q Have you ever talked to Tracy 19 Foley? 20 A I hate to say I think we've 21 corresponded before, but I know the name for 22 sure, but there's a lot of people up in 23 Dunkin', so I'm sorry, I just don't recall that 24 conversation. 25 Q Is Tracy Foley a lawyer? REINIG REPORTING, INC. (212) 684-7298 9 1 Merriman 2 A Not that I know of, sir. 3 Q Did you look at any papers to 4 prepare for your testimony here today? 5 A Not that I recall. What do you 6 mean by papers? 7 Q Do you know what papers are? 8 A Are you talking about legal papers 9 or -- 10 Q Pieces of paper of any type 11 whatsoever. 12 A Right, well, yes. 13 Q Yes. How many pieces of paper did 14 you look at to prepare to give your testimony 15 here today? 16 A I just don't recall. 17 Q When did you look at these papers 18 that you don't recall how many you looked at? 19 A Yesterday. 20 Q And where did you look at those 21 papers that you don't recall how many you 22 looked at yesterday? 23 A Here. 24 Q In the lawyer's office? 25 A Yes. REINIG REPORTING, INC. (212) 684-7298 10 1 Merriman 2 Q The same lawyer's office we're 3 here today? 4 A Yes. 5 Q How many hours did you spend in 6 this lawyer's office yesterday looking at 7 pieces of paper? 8 A Pieces of paper -- I would say 9 maybe 15 minutes. 10 Q And who gave you those papers to 11 look at? 12 A David Worthen. 13 Q And did those papers refresh your 14 recollection as to what occurred between the 15 Defendants in this case and Dunkin' Donuts? 16 A Could you repeat that, I'm sorry. 17 MR. JAROSLAWICZ: Can you read 18 that back please. 19 (Whereupon, at this time, the last 20 question was read by the reporter.) 21 A Could you be more specific, like 22 is it just about them, is it just about Sam and 23 Cindy or -- 24 Q Well, you know why you're here 25 today, don't you? REINIG REPORTING, INC. (212) 684-7298 11 1 Merriman 2 A Yes, sir. 3 Q To give sworn testimony under 4 oath? 5 A Yes, sir. 6 Q And you know it concerns, as you 7 say, Sam and Cindy? 8 A Yes, sir. 9 Q And did you look at any papers 10 involving the franchise had between Dunkin' 11 Donuts and Sam and Cindy? 12 A Yes, sir. 13 Q What documents did you look at? 14 MR. WORTHEN: Objection. He's not 15 going to disclose what documents he 16 looked at. 17 Q Did those documents refresh your 18 recollection as to what happened with Sam and 19 Cindy? 20 A You said what happened, what do 21 you mean what happened? 22 Q You know Dunkin' Donuts is trying 23 to take away Sam and Cindy's franchise, do you 24 know that or don't you know that? 25 A I know that they're terminated, REINIG REPORTING, INC. (212) 684-7298 12 1 Merriman 2 sir. 3 Q Did you have anything to do with 4 the decision to terminate Sam and Cindy? 5 A No, sir. 6 Q Who made the decision to terminate 7 Sam and Cindy? 8 A I don't know, I wasn't the 9 operations manager. 10 Q Well, who was the operations 11 manager when the decision was made to terminate 12 Sam and Cindy? 13 A I don't recall, I don't recall 14 then. 15 Q Well, what was your position in 16 July of '07? 17 A I just -- I just got the -- I just 18 was -- came on with Sam and Cindy at that time. 19 Q And who was handling Sam and Cindy 20 before that? 21 A I don't recall the operations 22 manager at the time. 23 Q Do you take any medication that 24 affects your memory, sir? 25 A No, sir, I don't. REINIG REPORTING, INC. (212) 684-7298 13 1 Merriman 2 Q Have you been involved in an 3 accident or other mishap that affects your 4 memory? 5 A No, sir. 6 Q You just don't remember the name 7 of the operations managers for Sam and Cindy 8 before you took over? 9 A That's correct. 10 Q Well, how many stores did you take 11 over as operations manager? 12 A When would that be, I'm sorry? 13 Q Well, when did you take over as 14 Sam and Cindy's operations manager? 15 A I think it was about July of '07. 16 Q When you took over Sam and Cindy, 17 had their franchise been terminated by Dunkin'? 18 A Yes, sir, that's my recollection. 19 Q And how did you learn that Sam and 20 Cindy's franchise had been terminated before 21 you took over? 22 A I was asked to take the -- take 23 Sam and Cindy's stores, and they told me that 24 they had been terminated, or the company said 25 they had been terminated, so. REINIG REPORTING, INC. (212) 684-7298 14 1 Merriman 2 Q Who asked you to take Sam and 3 Cindy's stores? 4 A My director. 5 Q Who is that? 6 A Len Hohmann. 7 Q And what did Mr. Hohmann tell you 8 about Sam and Cindy's stores? 9 A I don't recall that, he just said 10 this is your knew stores and that was pretty 11 much it, they're terminated franchise. 12 Q What are you supposed to do with a 13 terminated franchise? 14 A Well, I'm not supposed to do 15 anything, I work on the operational piece, sir, 16 so whether they're terminated or not, what I 17 want to do is make sure that their operations 18 are -- they do as best they can and be 19 successful. 20 Q Well, who decides to terminate, 21 you have no idea? 22 A No, that's just not my position, 23 I'm sorry. 24 Q And is it your position to try to 25 help sell the store? REINIG REPORTING, INC. (212) 684-7298 15 1 Merriman 2 A No, sir. 3 Q Do you know someone called 4 Skrivanos, S-K-R-I-V-A-N-O-S? 5 A I'm sorry? 6 Q Do you know someone called 7 Skrivanos, S-K-R-I-V-A-N-O-S? 8 A Yes. 9 Q Who is Skrivanos? 10 A Mr. Skrivanos is another franchise 11 owner. 12 Q And how many stores does Skrivanos 13 have? 14 A I don't know, I'm sorry. 15 Q Were you the operations manager 16 for Skrivanos? 17 A No, sir. 18 Q Do you know what Mr. Skrivanos' 19 stores are? 20 A Do I know where they're at? 21 Q Yes. 22 A I know that some are in Brooklyn. 23 Q Well, do you know how many are in 24 Brooklyn? 25 A No, sir, I'm sorry. REINIG REPORTING, INC. (212) 684-7298 16 1 Merriman 2 Q Do you know if it's more than one 3 that's in Brooklyn? 4 A Yes. 5 Q Do you know if it's more than 6 three that are in Brooklyn? 7 A Yes, I think he has more than 8 three, yes. 9 Q Do you know if it's more than six 10 that are in Brooklyn? 11 A Yes, yeah, I think so. 12 Q Does he have more than ten in 13 Brooklyn? 14 A I don't know -- well, yes, I think 15 he does, yeah, he has more than ten. 16 Q Well, what's your best estimate as 17 to how many stores he has in Brooklyn, Mr. 18 Skrivanos? 19 A I'd be -- I'd be really guessing. 20 Do you really want me to really guess? 21 Q Are you the operations manager for 22 all Mr. Skrivanos' stores in Brooklyn? 23 MR. WORTHEN: Objection. Asked 24 and answered. 25 Q You can answer. REINIG REPORTING, INC. (212) 684-7298 17 1 Merriman 2 A I'm not Mr. Skrivanos' operations 3 manager. 4 Q How did you come to know Mr. 5 Skrivanos has more than ten stores in Brooklyn? 6 A I don't recall, just, you know, 7 different conversations with different OMs, you 8 know, sometimes you get to hear about other 9 owners from time to time. 10 Q Do you know a man called 11 Greenberg? 12 A No, sir, I've never heard of a man 13 Greenberg, I'm sorry. 14 Q Do you know Linda Morris? 15 A Yes, Linda Morris works up in 16 Canton. 17 Q What does Linda Morris do in 18 Canton, to your knowledge? 19 A To my knowledge, she's part of the 20 legal team. 21 Q She's a lawyer? 22 A I don't know that. 23 Q How about someone called Basil 24 Kazepis, K-A-Z-E-P-I-S, who is Basil Kazepis? 25 A Basil works for the development REINIG REPORTING, INC. (212) 684-7298 18 1 Merriman 2 team. 3 Q What is a development team? 4 A They work with, you know, let's 5 say a new franchisee, let's say you wanted to 6 come into New York and wanted to be a 7 franchisee, and you were approved by Dunkin', 8 they would work with you on, let's say, where 9 locations might be. 10 Q Who is Jeremy and his team? 11 A Jeremy -- 12 Q You don't know any Jeremy at 13 Dunkin'? 14 A I know of a few Jeremys, I know 15 some personal and some work, so we're just 16 talking -- 17 Q When Basil Kazepis talked to you 18 about Jeremy and his team, did you understand 19 what he's talking about? 20 A Jeremy -- in that instance, I'm 21 guessing -- 22 MR. WORTHEN: Don't guess. 23 A All right, don't guess. 24 MR. WORTHEN: Just answer his 25 question. REINIG REPORTING, INC. (212) 684-7298 19 1 Merriman 2 A That would be Jeremy Vitarro. 3 Q Who is Jeremy Vitarro? 4 A He is a business manager. 5 Q What is a business manager? 6 A They help with transition, so 7 let's say you wanted to sell your store to me, 8 that team helps with all the leases and those 9 type of things. 10 Q And Jeremy Vitarro still works for 11 Dunkin', as far as you know? 12 A Yes, sir. 13 Q And where is he based, do you know 14 that? 15 A He's based in the central Atlantic 16 region, which is this region. 17 Q And do you know where his offices 18 would be? 19 A No, sir, I don't. 20 Q And who is David Nadolski, N-A-D- 21 O-L-S-K-I? 22 A I don't know, sir. 23 Q Do you know who Karen Gelzer is, 24 G-E-L-Z-E-R? 25 A I've heard of Karen, yes. REINIG REPORTING, INC. (212) 684-7298 20 1 Merriman 2 Q Who is Karen Gelzer? 3 A I don't want to guess, so I'm not 4 exactly sure what her role is. 5 Q Did you ever tell Tracy Foley that 6 Asam Habib has been terminated, and that she 7 should keep it to herself? 8 A Not that I recall, sir. 9 Q Well, did you ever e-mail Tracy 10 Foley and tell her Asam was terminated, so keep 11 it to yourself? 12 A I don't recall that. 13 Q Well, I'm going to show you a 14 document produced by your lawyers which is 15 Dunkin' 1595, which I'd like to mark as Exhibit 16 A, and ask if you've ever seen that before. 17 (Whereupon, at this time, the 18 reporter marked as Defendant's Exhibit A 19 the above-mentioned document Bates 20 stamped Dunkin' 1595 for 21 identification.) 22 (Mr. Jaroslawicz hands a document 23 to the witness.) 24 A Yes, I've seen it, it's been a 25 while. REINIG REPORTING, INC. (212) 684-7298 21 1 Merriman 2 Q Did you see it before, Exhibit A? 3 A I'm sorry? 4 Q Did you see that document before 5 today? 6 A I don't recall if I have or not. 7 Q Did you see it yesterday? 8 A I don't recall if I have or not, 9 really, this is an old e-mail from me, so. 10 Q And there is an e-mail from Tracy 11 to you, right? 12 A Okay. 13 Q And Tracy, to your knowledge, is 14 not a lawyer, is that right? 15 A Yeah. 16 Q Well, do you know what was 17 redacted and taken off that page? 18 A I don't know. 19 Q Do you know who redacted it? 20 A No, I don't, sir. 21 Q Do you know on what grounds it was 22 redacted? 23 A No, sir, I don't know any of that. 24 Q Is that your complete e-mail from 25 Tracy or to Tracy or were things taken out of REINIG REPORTING, INC. (212) 684-7298 22 1 Merriman 2 that page, Exhibit A? 3 A I don't know, I don't know, all I 4 know is what you're showing to me. 5 Q Well, let's look at the top of the 6 page. 7 A Sure. 8 Q It's from Tracy Foley to you, is 9 that right, an e-mail? 10 A Yeah, it looks like that's Tracy 11 to me. 12 Q And that's August 14, 2007? 13 A Yes. 14 Q And you received that e-mail? 15 A Yes. 16 Q And what was the subject of that 17 e-mail? 18 A The subject is NGSS POS 19 confirmation. 20 Q What does NGSS mean? 21 A That's the new generation sandwich 22 station, and the POS is the register system. 23 Q Did that have anything to do with 24 my client's store? 25 A Yeah, I mean, obviously she's -- REINIG REPORTING, INC. (212) 684-7298 23 1 Merriman 2 she was asking a question about NGSS. 3 Q And do you know if that thing was 4 redacted or blanked out on that page, Exhibit 5 A? 6 A I don't know anything about that, 7 I'm sorry. 8 Q How about the e-mail below that, 9 August 14, 2007 at 2:30, was that e-mail from 10 you to Ms. Foley? 11 A Oh, this one, I'm sorry. Yeah, 12 that's from me to Tracy. 13 Q And can you read into the read 14 what you said to Tracy, please? 15 A It says Asam was just terminated 16 and of course this is private, so please keep 17 that to yourself, it is too early and the 18 lawyers are talking, but nothing in the near 19 future there. 20 Q Why did you tell Tracy to keep it 21 private? 22 A Because it's, you know, the 23 store's terminated, so, you know, this person 24 is just talking about a new generation sandwich 25 system or POS, and so, you know, frankly, I REINIG REPORTING, INC. (212) 684-7298 24 1 Merriman 2 just wanted her to make sure that, look, it's a 3 terminated site, and for instances, say I would 4 say right here, is a good reason to -- you 5 know, that in a termination, you just want to 6 be as careful as possible. 7 Q Who told you to be as careful as 8 possible in a termination? 9 A No one. 10 Q You just decided that? 11 A Yeah, I would think that would be 12 what you should do. 13 Q And then you go on to say it is 14 too early and the lawyers are talking, how did 15 you find out the lawyers were talking? 16 A Asam and Cindy said that they 17 were -- my recollection, that they were talking 18 to the lawyers, because this is about, you 19 know, buying the new generation sandwich 20 station. 21 Q So Asam and Cindy told you the 22 lawyers were talking? 23 A Yes, sir. 24 Q And then you say it is too early, 25 what does it is too early mean, too early to REINIG REPORTING, INC. (212) 684-7298 25 1 Merriman 2 sell them the system? 3 A No. 4 Q Too early for what? 5 A I hate to say I think, but what 6 we're trying to get here is to get Sam and 7 Cindy to install the new generation sandwich 8 station, so the NGSS, the requirements were 9 just -- were just starting at that time for 10 futuristic to install, and so to me it was just 11 too early for Asam and them to -- actually, to 12 me it was they had other issues and let's worry 13 about one thing at a time for Cindy and Sam, it 14 was almost more protection for them. 15 Q You were trying to protect Cindy 16 and Sam? 17 A Not protect, I think it's more of 18 a support. The NGSS stuff was coming a little 19 bit later, and I think that Tracy was looking 20 for some answers, and I said, you know, right 21 now, let's take one thing at a time. 22 Q NGSS stuff Sam and Cindy would 23 have to pay for, right? 24 A Yes, sir. 25 Q And Dunkin' would make a profit on REINIG REPORTING, INC. (212) 684-7298 26 1 Merriman 2 that? 3 A I'm sorry? 4 Q Dunkin' would make a profit on 5 that? 6 A No, Cindy and Sam would make a 7 profit on that, which in turn we would all make 8 a profit on. 9 Q If Cindy and Sam bought the new 10 station, who would they pay for it? 11 A I'm sorry? 12 Q Who would they pay for this new 13 sandwich station? 14 A The sandwich station is a company 15 called Turbo Chef. 16 Q And Dunkin' makes no money on that 17 when they sell it? 18 A Oh, I don't know anything like 19 that. 20 Q That's not within your range of 21 knowledge? 22 A That's correct, I'm sorry. 23 Q And when you said to Tracy Foley, 24 but nothing in the near future there, they 25 weren't going to buy a sandwich station until REINIG REPORTING, INC. (212) 684-7298 27 1 Merriman 2 this mess was cleared up, is that what you 3 meant by that? 4 A No, sir, it was just too early in 5 the process for NGSS. 6 Q Now, Ms. Foley had asked you did 7 anyone buy Asam's stores or are they closing, 8 did you see that e-mail? 9 A Yeah, I see it right here. 10 Q And did you respond to that? 11 A I don't recall responding to it. 12 Q Well -- 13 A I may have, I mean. 14 Q Do you know if Cindy and Sam's 15 stores are closing? 16 A No, they're not closing. 17 Q Did you do anything to help them 18 stay open? 19 A Well, it's not about them staying 20 open, sir, there's no reason for them to close. 21 Q What are they supposed to do when 22 the franchise is terminated, are they supposed 23 to stay open? 24 A Well, yes, they stay open, because 25 as far as I look at it, they're a franchise REINIG REPORTING, INC. (212) 684-7298 28 1 Merriman 2 with the sign up taking care of customers, and 3 the termination is part of the legal piece, and 4 as far as I'm concerned, it's operation as 5 usual. 6 Q Well, do you know that there was a 7 lawsuit filed in the United States District 8 Court requesting them to stop using the Dunkin' 9 name and trademark? 10 A No, I don't know that. 11 Q Well, did Cindy and Sam ever tell 12 you there was a lawsuit filed against them by 13 Dunkin' Donuts telling them to stop using the 14 Dunkin' trademark? 15 A No, they just said that there was 16 a lawsuit against them. 17 Q You never saw the lawsuit? 18 A No, sir. 19 Q You just told Cindy and Sam to 20 continue doing business as usual? 21 A Yes, and that I was working with 22 them, and I wanted them to do the best that 23 they could and be as successful as possible, 24 because you never know what happens. 25 Q And you told Cindy and Sam to keep REINIG REPORTING, INC. (212) 684-7298 29 1 Merriman 2 using the Dunkin' name? 3 A No, I never said that, I just said 4 it's operation as usual. 5 Q Did you tell them to take off the 6 Dunkin' name? 7 A No, sir. 8 Q Did you tell them to take off the 9 Baskin-Robbins name? 10 A No, sir. Do you mind if I take 11 just a sip? I'm sorry. 12 Q No, go right ahead. Since you 13 became operations manager in the summer of '07, 14 you've told Cindy and Sam to just carry on as 15 usual, is that right? 16 A Yes, sir. 17 Q And on the bottom of that page, 18 Exhibit A, there's something else taken out, do 19 you know what that is that's taken out? 20 A No, sir, I don't. 21 Q Does that refer to my clients, 22 Cindy and Sam? 23 A I wouldn't know, sir. 24 Q Well, after you told Cindy and Sam 25 to carry on as usual, did Cindy ever send you REINIG REPORTING, INC. (212) 684-7298 30 1 Merriman 2 an e-mail and say please, can you help me sell 3 my stores? 4 A I don't remember her e-mailing me, 5 I remember her calling me, though. 6 Q And when Cindy called you, did she 7 ask you for help in selling her stores? 8 A Yes, she did. 9 Q And when was that phone call when 10 Cindy asked you to help sell the stores? 11 A I don't remember the date. 12 Q Do you have a record of it 13 anywhere? 14 A Not that I know of. 15 Q And where did Cindy call you, at 16 your home, on your cell phone? 17 A My guess is on my -- would be on 18 my cell. 19 Q You gave Cindy your cell phone? 20 A Yes, sir, I wanted her to be able 21 to call me if she needed support of any kind. 22 Q And did you help Cindy in any way 23 to sell her stores? 24 A No, I haven't -- I don't recall 25 helping her sell her stores, because the stores REINIG REPORTING, INC. (212) 684-7298 31 1 Merriman 2 aren't selling, correct? I mean, I don't -- I 3 didn't know she was selling her stores right 4 now. 5 Q Well, did Cindy ever tell you 6 please, please give me a list of Dunkin' Donuts 7 franchises in the five boroughs so that I could 8 sell my store? 9 A Yes, sir, she did ask for that. 10 Q What did you do in response to 11 that? 12 A I told her that she needed to 13 contact her lawyer to contact our lawyers to 14 ask for that request. 15 Q Did Cindy say anything else? 16 A She said she would contact her 17 lawyer about it. 18 Q How did you respond to her, by 19 e-mail? 20 A I don't remember. 21 Q Let me show you a document Bates 22 stamped 1610, marked as Exhibit B, and ask if 23 this is an e-mail you got from Cindy Gluck. 24 (Whereupon, at this time, the 25 reporter marked as Defendant's Exhibit B REINIG REPORTING, INC. (212) 684-7298 32 1 Merriman 2 the above-mentioned document Bates 3 stamped 1610 for identification.) 4 (Mr. Jaroslawicz hands a document 5 to the witness.) 6 Q Is that an e-mail you received 7 from Cindy Gluck? 8 A Yes, it looks so. 9 Q Did you respond to that e-mail, 10 Exhibit B? 11 A I don't remember responding. I 12 know that I think her and I spoke about it. I 13 think that was -- well, I remember speaking to 14 her for sure. 15 Q Did you speak to her once or more 16 than once about helping her find someone to 17 sell her store to? 18 A Well, she called me more than 19 once, so, yeah, I remember her asking me more 20 than once. 21 Q How many times did she ask you to 22 help sell her stores? 23 A I can't remember the amount, but I 24 would say maybe two times. 25 Q And whenever she asked you to help REINIG REPORTING, INC. (212) 684-7298 33 1 Merriman 2 sell her stores, you told her to have her 3 lawyers call Duncan's lawyers? 4 A I told her that many times, and 5 this is the reason that she's, I guess, coming 6 back to me, so. 7 Q Who is Mike Rose, Michael Rose? 8 A Mike Rose is an operations manager 9 in the New York area. 10 Q Do you report to him? 11 A No, sir. 12 Q Is he your equal, does he report 13 to you? 14 A He doesn't report to me. 15 Q Well, how would you describe him? 16 A He's an operations manager, I'm 17 not sure if we're on the exact same level or 18 not. 19 Q Well, did you ever discuss Cindy 20 and Sam's stores with Mike Rose? 21 A I don't recall. I'm sorry, it's 22 just been a long time. 23 Q Well, how about in July of '07, 24 did you discuss Cindy and Sam with Mike Rose? 25 A I don't recall. REINIG REPORTING, INC. (212) 684-7298 34 1 Merriman 2 Q But July of '07 would be a long 3 time for you? 4 A Well, I just don't recall. 5 There's -- you know, you have conversations 6 over a year in business all the time, so, I 7 mean, I just wouldn't recall. 8 Q Do you know what special services 9 are? 10 A Yes. 11 Q What are special services? 12 A Special services works with 13 terminated sites and underperforming 14 operational store. 15 Q Was Sam and Cindy's an under- 16 performing store? 17 A I don't recall if it was or not. 18 Q Did you ever have any problem with 19 Sam? 20 A Not that I know of. 21 Q Did you ever have any problem with 22 Cindy? 23 A Not that I recall. 24 Q Did you see any article in the 25 newspaper about Sam and Cindy? REINIG REPORTING, INC. (212) 684-7298 35 1 Merriman 2 A Yes, she actually called me about 3 it for me to read. 4 Q Did you read it? 5 A Yes. 6 Q Did you speak to anyone at Dunkin' 7 about that article? 8 A I don't -- I don't recall speaking 9 to -- I don't recall that at the time. 10 Q That article was a long time ago? 11 A Well, I'm not sure exactly how 12 long ago it was, but it was -- 13 Q But long ago for you not to 14 remember if you spoke to anyone at Dunkin' 15 about it? 16 A Well, it was just about them -- he 17 being a Muslim and she's Hasidic, and just 18 about them working for Dunkin' together. 19 Q Did you speak to anyone at Dunkin' 20 about it? 21 A I don't recall, sir. 22 Q Did anyone at Dunkin' speak to you 23 about it? 24 A I'm sorry, I just don't remember. 25 It was a nice article, though. REINIG REPORTING, INC. (212) 684-7298 36 1 Merriman 2 Q Did you see an article in this 3 Sunday's Post talking about Cindy and Sam and 4 Dunkin' trying to drive them out of business, 5 did you see that article? 6 A Yes, I saw that. 7 Q How did you come to see that 8 article? 9 A Actually, Basil had sent it to me. 10 Q Who's Basil? 11 A Basil's the development guy. 12 Q Does he have a last name, Basil? 13 A I can't remember his last -- I 14 don't know how to spell his last name, I can't 15 remember. I just call him Basil. 16 Q Where does Basil operate out of? 17 A He's out of the New York area. 18 Q Does he have an office? 19 A Not that I -- I don't know if he 20 has an office or not. 21 Q Does Basil have an e-mail, to your 22 knowledge? 23 A Yes, we were just talking about it 24 previously. 25 Q Does Basil have a cell phone that REINIG REPORTING, INC. (212) 684-7298 37 1 Merriman 2 you know of? 3 A Yeah, I'm sure he does. 4 Q Do you know Basil's cell phone? 5 A I don't have -- I don't know it 6 right now. 7 Q Do you know Basil's e-mail? 8 A If I wanted to send him an e-mail, 9 I would do what I would normally do with 10 anybody in the company, I would just look it up 11 and send it to him. 12 Q Now, do you know why Mike Rose 13 would send you an e-mail concerning Sam and his 14 transition to special services? 15 A It would probably be to transfer 16 the stores over, to transfer the stores over to 17 me. 18 Q And you work for special services? 19 A I work operations manager in 20 special services. 21 Q So you do work in special 22 services? 23 A That's -- that's part -- yeah, 24 that's it. It's operations -- it's an 25 operations manager job, and it's special REINIG REPORTING, INC. (212) 684-7298 38 1 Merriman 2 services. 3 Q Do you work in special services or 4 don't you? 5 A Yeah, it's operations manager -- 6 Q Now, you didn't say that -- 7 MR. WORTHEN: Let him finish -- 8 Q -- before, did you? 9 MR. JAROSLAWICZ: Don't point your 10 finger at me. You can go back where you 11 came from. Don't you dare point a 12 finger at me. 13 MR. WORTHEN: Sit down. 14 MR. JAROSLAWICZ: You sit down and 15 behave yourself. 16 MR. WORTHEN: Let the record 17 reflect -- 18 MR. JAROSLAWICZ: Your client was 19 just caught lying and you helped him. 20 And don't you interrupt him and coach 21 him, I won't tolerate it. 22 MR. WORTHEN: Are you out of your 23 mind? 24 MR. JAROSLAWICZ: You please keep 25 making your scurrilous remarks and go REINIG REPORTING, INC. (212) 684-7298 39 1 Merriman 2 back to Baltimore or wherever you came 3 from, I won't tolerate that type of 4 behavior at a deposition. 5 MR. WORTHEN: You interrupted him 6 before he was done -- 7 MR. JAROSLAWICZ: I did not, 8 you've been coaching him and I'm not 9 going to permit it. 10 MR. WORTHEN: Sir -- 11 Q Now, do you work -- 12 MR. WORTHEN: -- you're out of your 13 mind. 14 MR. JAROSLAWICZ: Do you want to 15 make any other scurrilous and 16 unprofessional remarks? 17 MR. WORTHEN: Sir, your comment is 18 coming from someone who jumped across 19 the table and wagged his hand at me, and 20 has been screaming for the last two 21 minutes. 22 MR. JAROSLAWICZ: You are 23 fabricating, I'm not going to permit you 24 to disrupt this deposition. You want to 25 do it at the courthouse, I'll be happy REINIG REPORTING, INC. (212) 684-7298 40 1 Merriman 2 to do it. 3 Q Now, I ask you, do you work for 4 special services? 5 A My job is an operations manager in 6 special services. 7 Q Now, you didn't mention special 8 services before, did you, when I asked you who 9 you worked for? 10 A You asked me what -- you asked me 11 my title, I said it's operations manager, that 12 is my title. 13 Q And what are special services? 14 A Well, it's what I told you before, 15 it's -- you work with stores that are 16 terminated and stores that are underperforming 17 operationally. 18 Q Now, were you assigned Sam and 19 Cindy's store because they were under- 20 performing operationally? 21 A No, sir. 22 Q You were assigned Sam and Cindy's 23 store because Dunkin' was seeking to terminate 24 them? 25 A They were given to me because they REINIG REPORTING, INC. (212) 684-7298 41 1 Merriman 2 were terminated, sir. 3 Q And who gave them to you because 4 they were terminated? 5 A Well, I discussed that with my 6 boss, went home and then, you know, the 7 directors, I guess, they just talk about it and 8 then they send it over to me, and I guess 9 that's what Mike was doing. 10 Q So when you say you're the 11 operations manager, you're sort of the hatchet 12 man? 13 MR. WORTHEN: Objection. 14 A I wouldn't say that. 15 Q You wouldn't? 16 A No, I wouldn't say that. 17 Q Well, did you describe to Sam and 18 Cindy who you were and what your job was? 19 A I told them that I was going to 20 work with them operationally and help them be 21 successful during the time that they were 22 terminated. 23 Q When is their time that they were 24 terminated over? 25 A I'm sorry? REINIG REPORTING, INC. (212) 684-7298 42 1 Merriman 2 Q When is their termination over so 3 they have to close the store or sell it? 4 A I don't deal with that piece, but 5 they're not closed. 6 Q Well, who deals with that close of 7 trying to sell the store or close them down? 8 A Well, that would be the legal 9 team. 10 Q Nothing to do with you? 11 A Nothing, sir. I'm sorry. 12 Q Now, did you have a conversation 13 with Mike Rose about Sam and Cindy's store in 14 July of '07? 15 A I don't recall one. I mean, it 16 could happen, but I just don't recall. I don't 17 want to guess -- 18 Q You're just trying to be honest 19 and forthright. 20 A I'm trying to. 21 Q Yes, it's obvious to me. Are 22 there certain matters that Dunkin' instructs 23 you not to put in e-mails but to talk only on 24 the phone about? 25 A I don't recall that. REINIG REPORTING, INC. (212) 684-7298 43 1 Merriman 2 Q You don't recall? Let me show you 3 a document from Len Hohmann to you, an e-mail 4 dated October 4, '07, which I'd like to mark as 5 Exhibit C, which says please do not e-mail LP 6 regarding such matters, let's communicate via 7 phone. Does that refresh your recollection 8 that Dunkin' tells you not to put certain 9 things in writing but to only talk on a phone 10 about it? 11 A I'd have to see it, if that's 12 okay. 13 Q This doesn't refresh your 14 recollection when I tell you about it? 15 A No, it doesn't right now. 16 Q You want to see what I have and 17 then maybe you won't be able to wiggle out of 18 it, is that what you're telling me? 19 A No, sir. 20 MR. WORTHEN: Objection. 21 MR. JAROSLAWICZ: Well, please 22 mark this as Exhibit C. 23 (Whereupon, at this time, the 24 reporter marked as Defendant's Exhibit C 25 the above-mentioned e-mail from Len REINIG REPORTING, INC. (212) 684-7298 44 1 Merriman 2 Hohmann to the witness dated October 4, 3 '07 for identification.) 4 Q Now, looking at Exhibit C, can you 5 look at the e-mail on the top of that page, 6 sir, and that's the page that's Bates stamped, 7 let's me just make sure I read that in the 8 record correctly, 1553, do you see that? 9 (Mr. Jaroslawicz hands a document 10 to the witness.) 11 A 1553, I'm sorry -- 12 Q That's the stamp on the bottom of 13 the page. 14 A Okay, I'm sorry. 15 Q And on the top of the page, it 16 says Len Hohmann, you know who he is? 17 A Yes, sir. 18 Q He's your boss? 19 A Right. 20 Q And he sent you an e-mail on or 21 about October 4, '07, is that right? 22 A Yes, sir. 23 Q And that was a day after Cindy 24 asked you to help her sell her store? 25 A I don't remember that. REINIG REPORTING, INC. (212) 684-7298 45 1 Merriman 2 Q Well, let me show you Exhibit B. 3 Now, do you agree with me that October 4th is 4 the day after October 3rd? 5 A Yes, sir. 6 Q Okay, at least we agree on that. 7 Now, can you read what Mr. Hohmann e-mailed to 8 you on Exhibit C at 9:11 a.m.? 9 A You want me to read it, sir? 10 Q Please, so the record is clear. 11 A Sure, all right. Mark, thanks for 12 following up on these matters, and let's 13 continue to push so we can resolve. Moving 14 forward, please do not e-mail LP regarding such 15 matters and let's communicate via phone. 16 Q What is LP? 17 A That would be loss prevention. 18 Q Do you work for loss prevention? 19 A No, sir. 20 Q Do you know anyone who works in 21 loss prevention? 22 A Yes, sir. 23 Q Who do you know in loss 24 prevention? 25 A Jack Sullivan. REINIG REPORTING, INC. (212) 684-7298 46 1 Merriman 2 Q Who is Jack Sullivan? 3 A He is the director of loss 4 prevention. 5 Q Did you ever discuss Sam and 6 Cindy's store with Jack Sullivan? 7 A Not that I recall. 8 Q Did you ever e-mail Jack Sullivan 9 or get an e-mail from Jack Sullivan about Sam 10 and Cindy's store? 11 A Well, it shows here that I 12 e-mailed Jack. 13 Q That's on the bottom of Exhibit C, 14 right? 15 A Right. 16 Q Other than what's on the bottom of 17 Exhibit C, did you ever talk to Jack Sullivan 18 about Sam and Cindy's store? 19 A Not that I recall. 20 Q Did you send Jack Sullivan any 21 other e-mails other than the one on Exhibit C 22 about Sam and Cindy's store? 23 A Not that I recall. 24 Q Do you know what was taken out 25 where it says redacted on Exhibit C? REINIG REPORTING, INC. (212) 684-7298 47 1 Merriman 2 A No, sir, I don't. 3 Q Do you know who removed that? 4 A I don't. 5 Q Do you know the reason that was 6 removed? 7 A I don't, sir. 8 Q Did you understand what Mr. 9 Hohmann was referring to when he said cases and 10 resolutions as the subject of his e-mail to you 11 on Exhibit C? 12 A Well, let me read -- 13 Q Right here -- 14 A I know. 15 Q -- it says cases and resolutions, 16 do you know what he's talking about? 17 A Yeah, I guess he's talking about 18 the termination cases. 19 Q And did you understand him to be 20 talking about Sam and Cindy's store in that 21 e-mail on Exhibit C? 22 A Could you just say what you said 23 again, I'm sorry? 24 Q That e-mail that you just read 25 into the record -- REINIG REPORTING, INC. (212) 684-7298 48 1 Merriman 2 A Right. 3 Q -- is that referring to Sam and 4 Cindy's store or is that referring to some 5 other Dunkin' Donuts store? 6 A It's referring to Sam and Cindy. 7 Q Now, do you know why Mr. Hohmann 8 told you to e-mail loss prevention regarding 9 such matters? 10 A Well, he wants me to communicate 11 via phone. 12 Q And did you ask Mr. Hohmann what's 13 wrong with using e-mail, why do you want me to 14 do it via phone? 15 A No, sir, I didn't. 16 Q Did Mr. Hohmann ever tell you he 17 didn't want a paper record of what he said 18 about putting franchisees out of business? 19 A No, sir. 20 Q Well, anything else Mr. Hohmann 21 told you not to use the phone for and not 22 e-mail? 23 A I'm sorry? 24 Q Is there anything else that Mr. 25 Hohmann told you not to use e-mail for and only REINIG REPORTING, INC. (212) 684-7298 49 1 Merriman 2 communicate via phone? 3 A No, sir, not that I know of. 4 Q So following this directive from 5 your boss, Mr. Hohmann, on October 4, '07 as 6 reflected on Exhibit C, did you send any other 7 e-mails to anyone with regard to Sam and 8 Cindy's store? 9 A I don't recall. 10 Q After October 4, '07, did you 11 follow your boss' instructions and communicate 12 only via telephone? 13 A I mean, I communicated via phone, 14 but with regards to e-mail, I've e-mailed Sam 15 and Cindy from time to time regarding, you 16 know, support for them and things like that. 17 Q Did you e-mail anyone at loss 18 prevention or special services regarding Sam 19 and Cindy's store after you were told not to on 20 October 4, '07 by your boss, Mr. Hohmann? Yes 21 or no would be a good answer. 22 A Not that I recall. 23 Q Well, did you communicate on the 24 phone with anyone after October 4, '07 about 25 Sam and Cindy's store which your boss directed REINIG REPORTING, INC. (212) 684-7298 50 1 Merriman 2 you to do on Exhibit C? 3 A Not that I recall. 4 Q So after October 4, '07, you had 5 no telephone conversation with anyone about Sam 6 and Cindy's stores, is that correct? 7 A No, you asked me if I had talked 8 to loss prevention. 9 Q Did you talk to anyone? 10 A I just don't want to guess, I'm 11 sorry. I don't remember. 12 Q Well, do you remember even one 13 conversation you had with anyone at Dunkin' 14 Donuts about Sam and Cindy's store on the 15 telephone of October 4, '07 when your boss 16 directed you to only use the telephone to 17 communicate about Sam and Cindy's stores? 18 A I mean, I could have, there's a 19 lot of operational things like NGSS and 20 register systems to support things like that, 21 so, I mean, I could have. My job is to help 22 them, so -- I don't recall it, but I definitely 23 could have. 24 Q Did you ever ask Mr. Hohmann why 25 you should only communicate via telephone and REINIG REPORTING, INC. (212) 684-7298 51 1 Merriman 2 not use e-mail when communicating about Sam and 3 Cindy's store? 4 MR. WORTHEN: Objection. Asked 5 and answered. Go ahead. 6 A No. 7 Q Did Mr. Hohmann ever direct you 8 not to use e-mail before but only communicate 9 via telephone with respect to Sam and Cindy's 10 store? 11 A I don't recall if he has or not. 12 Q Did you find it unusual that Mr. 13 Hohmann told you not to use e-mail but only to 14 communicate via telephone about Sam and Cindy's 15 store? 16 A I really don't know. I really 17 don't know. 18 Q You just didn't think about it at 19 all? 20 A No, I just -- 21 Q You're a good soldier, you do what 22 you're told, is that right? 23 MR. WORTHEN: Objection. 24 Q You can answer that. 25 A I just try to do the best I can REINIG REPORTING, INC. (212) 684-7298 52 1 Merriman 2 with operations to help Cindy and Sam. 3 Q Now, you sent an e-mail to Jack 4 Sullivan on October 1, '07 at 10:04, do you 5 remember that, with a copy to Mr. Hohmann? 6 A Yeah, it's on the paper. 7 Q And item three was Sam Habib's 8 store? 9 A Right, right, that's what I just 10 looked at. 11 Q And you said to Mr. Sullivan do we 12 have an agreement with them, what sort of 13 agreement were you referring to on Exhibit C? 14 A An agreement with them -- I don't 15 recall exactly agreement with them, I'd be 16 guessing a little bit now with what I was doing 17 then. 18 Q Well, you sent that on October 19 1st. 20 A The reason I say that is I know 21 that Cindy had been asking me about selling her 22 stores, and I know that she had told me that 23 she was working on a resolution with Dunkin', 24 and she was trying very hard about that, so 25 that could have been -- that could have been REINIG REPORTING, INC. (212) 684-7298 53 1 Merriman 2 part of the e-mail. 3 Q And you -- 4 A Because I know that Cindy had been 5 asking me as well, so. 6 Q So you said to Mr. Sullivan do we 7 have an agreement with them to sell, is that 8 what you said? 9 A That's what it says. 10 Q And what was the penalty, what 11 penalty are you referring to? 12 A The penalty, sometimes people, and 13 in talking with Cindy, she was talking about -- 14 she was saying that she was talking about 15 settling with Dunkin', and I said, well, good 16 luck to you. And so the penalty, my guess, 17 would be settling prior to that with Dunkin'. 18 Q You've never heard Dunkin' use the 19 word penalty with Cindy and 1578? 20 A I don't recall. 21 Q And when you used the word 22 penalty, that was just a word that popped into 23 your head at that time? 24 A No, it wasn't, actually. I 25 remember Cindy talking to me about it. REINIG REPORTING, INC. (212) 684-7298 54 1 Merriman 2 Q Did Cindy tell you that Dunkin' 3 wanted to charge her a penalty of $75,000? 4 A I don't recall that. 5 Q Well, did you understand what 6 penalty Dunkin' wanted? 7 A I didn't know the amount, I just 8 wanted to know was the -- was there a 9 resolution so that I could help them. 10 Q And when you said what was the 11 penalty, you didn't want to know the amount? 12 A No. 13 Q You were just trying to help them? 14 A Right. 15 Q And did you say in your e-mail 16 when you were trying to help them has there 17 been a resolution so I could help them or did 18 you say what was the penalty? 19 A I put down there what was the 20 penalty. 21 Q But you didn't mean what was the 22 penalty, you meant what was the resolution so I 23 can help them, is that what you're testifying 24 to under oath? 25 A What I was trying to ask is what REINIG REPORTING, INC. (212) 684-7298 55 1 Merriman 2 was the penalty. 3 Q Well, what do you mean by what was 4 the penalty? 5 A Well, I don't know that. You 6 know, Cindy was asking about the penalty, so I 7 asked pretty much what she was asking. 8 Q And did you get a response from 9 Mr. Sullivan? 10 A Not that I recall. 11 Q In fact, the response you got was 12 from Mr. Hohmann saying don't talk about this 13 stuff in e-mails, do it on the phone, isn't 14 that what you got? 15 A That's what -- yeah, that's what 16 it says. 17 Q And then you went on to say in 18 your e-mail which they told you not to talk 19 about in e-mails anymore, if myself and Jeremy 20 Vitarro can be updated so we can effectively 21 move them along faster, that would be great, is 22 that what you wrote? 23 A Yeah, that's what it says. 24 Q And Jeremy Vitarro is who again? 25 A He's the business management team. REINIG REPORTING, INC. (212) 684-7298 56 1 Merriman 2 Q He's the one who takes over the 3 stores or sells them? 4 A No, he doesn't take over the 5 stores. 6 Q What does he do? 7 A If you remember what I said 8 before, that group, what they do is they help 9 stores sell their stores, sometimes stores, 10 when they -- like you sell your store to me, 11 they help with all the leases and all those 12 things. 13 Q And do they charge a fee for that 14 help that they give the franchisee? 15 A Not that I know of. 16 Q You wanted to, quote, effectively 17 move them along faster, who were you trying to 18 effectively move them along faster? 19 A Oh, that would be Sam and Cindy's 20 store, whether it's -- whether the termination 21 goes or the termination doesn't go, so that 22 they can, you know, they're in the system, so. 23 Q What were you trying to move them 24 along faster for? 25 A It's not -- I don't think it's REINIG REPORTING, INC. (212) 684-7298 57 1 Merriman 2 move them along faster as in -- it's more of, 3 you know, what is the -- is there a resolution 4 with them. If there's a resolution, that way 5 we can help Sam and Cindy, and that's what they 6 were asking for. So they told me they wanted 7 to move quickly, so this was just really in 8 response to what she was asking. 9 Q Cindy wanted to move quickly? 10 A Sam and Cindy both did, that's 11 what they said. 12 Q And this was in October of '07, 13 right? 14 A That's what it says, sir. 15 Q And it's now about six months 16 later, am I right? 17 A Yes, sir. 18 Q And during those six months, what 19 did you do personally to help them move along 20 faster and sell their stores? 21 A I don't think I did anything, sir, 22 I'm sorry, that's just -- 23 Q Do you know anybody at Dunkin' who 24 did anything to help Sam and Cindy sell their 25 stores since October 1, '07? REINIG REPORTING, INC. (212) 684-7298 58 1 Merriman 2 A I know that Cindy had asked for 3 names in the boroughs, and she was asking for 4 help with that, and I told her I couldn't help 5 with that, but I know that she ended up getting 6 it. She was very happy with that, but I can't 7 really say that I helped her with it, but I 8 know that she talked about being happy about 9 that. 10 Q Talked about being happy about 11 what? 12 A Getting the names so that she 13 could sell her stores. 14 Q And did you get her the names? 15 A No, sir. 16 Q Did you get her any addresses of 17 people who own Dunkin' stores? 18 A No, sir. 19 Q Do you know if anybody did? 20 A I know that she said that she 21 received them. 22 Q Do you know how she got them? 23 A No, I don't. 24 Q Now, did you ever tell Mr. Hohmann 25 that you wanted to turn Sam and Cindy's stores REINIG REPORTING, INC. (212) 684-7298 59 1 Merriman 2 around quickly? 3 A I don't recall, but I know that 4 Cindy had asked for it, so. 5 Q And what did you mean by turn them 6 around quickly? 7 A Well, Cindy and Sam had said that 8 what they wanted to do was to sell the stores, 9 and to get out of the system as soon as they 10 could. 11 Q And what did you say to them? 12 A I said, well, that's -- you're 13 terminated site, so, you know, if things are -- 14 if there's a resolution between you and 15 Dunkin', I'll try to support you in moving it 16 along as soon as I can for you? 17 Q What other stores do you have in 18 Brooklyn around Sam and Cindy's stores? 19 A I'm not really from the Brooklyn 20 area, but I've got some stores. I can't say 21 the distance, I'd be guessing, but I have some 22 in Brooklyn. 23 Q Well, did you say to Mr. Hohmann 24 that Sam and Cindy's stores are in Brooklyn 25 around my other stores? REINIG REPORTING, INC. (212) 684-7298 60 1 Merriman 2 A I don't recall that, but I know 3 I've got some stores around them. 4 Q Well, how many stores do you have 5 around them? 6 A I don't know. 7 Q Do you have a record somewhere of 8 how many stores you have around them? 9 A No, not around them. 10 Q Well, do you have a record of how 11 many stores you have in Brooklyn? 12 A No, sir. Let me rephrase that. I 13 don't recall the exact number. I mean, I've 14 got -- I've got a number I could look at and 15 see here's all the stores that are addressed to 16 Brooklyn, yes, I do have that, but I don't know 17 the exact amount. 18 Q Well, what area do you cover for 19 special services? 20 A My role goes from -- I have some 21 in New Jersey and I have some in New York and 22 Long Island. 23 Q And how do you get paid, do you 24 get a basic salary? 25 A Yes, sir. REINIG REPORTING, INC. (212) 684-7298 61 1 Merriman 2 Q Do you get a bonus? 3 A We get a bonus, it's really 4 directed on, like, company goals and things 5 like that. 6 Q Who's in charge of deciding 7 whether or not you get a bonus? 8 A I don't know the exact person 9 that's in charge of the bonus structure for 10 Dunkin' Donuts, I would say the president, but 11 that would be guessing. 12 Q Did you get a bonus last year? 13 A I did get a bonus last year. 14 Q Did you get a bonus the year 15 before that? 16 A Yes, sir, I got a bonus the year 17 before that. 18 Q Do you expect to get a bonus this 19 year? 20 A I sure hope so. 21 Q Do you have any document from 22 Dunkin' that describes how your bonus is paid? 23 A I don't recall the structure of 24 how it's paid. 25 Q Well, do you know what you have to REINIG REPORTING, INC. (212) 684-7298 62 1 Merriman 2 do to earn that bonus? 3 A Well, yeah, you work on goals and 4 things that the company sets, you know, sales 5 goals and, you know, things like that. 6 Q Is one of the goals how many 7 stores are terminated and sold to other stores? 8 A No, sir, not that I know of. 9 Q No one ever told you that? 10 A No, sir. 11 Q First time you heard that was 12 today? 13 A From you. 14 Q Never heard that before from 15 anyone at the company? 16 A Not about terminated stores and 17 being sold, no, sir. 18 Q Do you know if the company takes 19 money from the seller on a sale of a store to 20 another franchisee? 21 A I know there's a penalty, but I 22 don't know the amounts. 23 Q But the penalty goes to Dunkin' 24 Donuts, you do know that? 25 A I don't know that, I just know REINIG REPORTING, INC. (212) 684-7298 63 1 Merriman 2 there's a penalty. 3 Q Well, who do you think it goes to, 4 the Red Cross? 5 MR. WORTHEN: Objection. 6 A I don't know. 7 Q You don't know? 8 A I don't know, sir. 9 Q Your educated guess as you sit 10 here is the money goes to Dunkin', is that 11 correct? 12 MR. WORTHEN: Objection. 13 A I would say yes, sir. 14 Q But you never asked anybody and 15 you really don't know? 16 MR. WORTHEN: Objection. 17 A I don't know exactly where the 18 penalty money goes, sir. 19 Q And when you say "penalty money," 20 is that the same penalty you're referring to in 21 Exhibit C in writing to Jack Sullivan? 22 A I would say that would be yes, 23 sir. 24 Q Do you know any of the Gray Plant 25 guys? REINIG REPORTING, INC. (212) 684-7298 64 1 Merriman 2 A Yes, sir, I do. 3 Q Who are the Gray Plant boys? 4 A They're some of our legal 5 representation. 6 Q And you've dealt with them before? 7 A I have. 8 Q Did Mr. Sullivan tell you to call 9 the Gray Plant guys about Cindy and Sam? 10 A I don't recall if he has or not. 11 Q I'm going to show you a document 12 Bates stamped 1711, Exhibit D, and ask if this 13 is an e-mail that you sent on July 6, '07 at 14 9:44 a.m. 15 (Whereupon, at this time, the 16 reporter marked as Defendant's Exhibit D 17 the above-mentioned document Bates 18 stamped 1711 for identification.) 19 (Mr. Jaroslawicz hands a document 20 to the witness.) 21 A Yes, sir. 22 Q And can you read that into the 23 record, please, what you sent? 24 A Yeah, it says Len, these stores 25 are in Brooklyn around my other stores. I'm REINIG REPORTING, INC. (212) 684-7298 65 1 Merriman 2 adding these to my group. I hope we can turn 3 them around quickly since they have been 4 terminated. 5 Q Now, did Dunkin' Donuts want to 6 preserve this location of Sam and Cindy's 7 stores? 8 A Preserve it? Right now, it's with 9 Sam and Cindy, so there would be no reason 10 to -- right now, it's with Sam and Cindy, so. 11 Q Did you ever get an e-mail from 12 Mr. Hohmann saying that Dunkin' Donuts wanted 13 to preserve the location of Sam and Cindy's 14 stores, yes or no? 15 A I don't recall. 16 Q Do you know what it means to 17 preserve the location in Dunkin' Donuts talk? 18 A Preserve would mean to keep the -- 19 to keep the location as a Dunkin' Donuts 20 franchise, that would be my understanding. 21 Q So after you terminate a 22 franchisee, how would Dunkin' Donuts go about 23 preserving the location as a Dunkin' Donuts 24 franchise? 25 A Preserving would be to -- I don't REINIG REPORTING, INC. (212) 684-7298 66 1 Merriman 2 know exactly, but right now, I would say what 3 we want to do is keep the operations going as 4 good as possible to make sure that the store 5 and the clients, the customers, are very happy 6 about going there. It's hard to preserve 7 stores sometimes if the operations go down. 8 Q And by preserve the location, you 9 mean keep the location as a Dunkin' Donuts? 10 A Yeah, I would want to keep those 11 Dunkin' Donuts, yeah. 12 Q So you want to keep the location, 13 you just want the franchisee out of there, is 14 that how it works? 15 A No, not that I -- no, sir, not at 16 all. Sam and Cindy are not out of there. 17 Q Well, is Dunkin' Donuts trying to 18 throw them out of there and terminate their 19 franchise agreement? 20 MR. WORTHEN: Objection. 21 A There's a termination set forth 22 with them, but that's -- I'm not worried about 23 their termination, I just want to make sure 24 their operations are in good shape as well. 25 Q Well, the termination means that REINIG REPORTING, INC. (212) 684-7298 67 1 Merriman 2 Dunkin' Donuts wants to end their franchise 3 agreement, do you understand that? 4 A I do, I do, sir. 5 Q And do you also understand that at 6 the same time, Dunkin' wants to keep the 7 location as a Dunkin' Donuts, do you understand 8 that? 9 A Yes, we would want to keep that as 10 a Dunkin' Donuts, whether it's Sam or Cindy or 11 whoever else. 12 Q So what Dunkin' Donuts is trying 13 to do is throw Sam and Cindy out and force them 14 to sell the Dunkin' Donuts to someone else, the 15 location, because they want to keep the 16 location, is that right? 17 A I wouldn't say force them out. I 18 know that there's a termination set forth, 19 so -- I don't know the legalities, I'm sorry 20 about that. 21 Q You don't know what a termination 22 means? 23 A Yes, I understand, sir. 24 Q Termination means it's over, your 25 franchise is over, get out. REINIG REPORTING, INC. (212) 684-7298 68 1 Merriman 2 A Right. 3 Q Do you understand what that means? 4 A I understand that termination 5 means that you're terminated, but it doesn't 6 mean to close the shops. 7 Q Well, what does it mean? 8 A Well, we're terminating the 9 store -- I mean, we're terminating the 10 franchise agreement with Sam and Cindy. 11 Q And what are they supposed to do 12 with the store? 13 A Well, they're supposed to operate 14 it just like they would, that doesn't mean 15 they're gone. 16 Q How long are they supposed to 17 operate it just as they would before they get 18 the termination? 19 A Before they get the termination -- 20 well, they've operated before they terminated, 21 that never changed. 22 Q So they're supposed to keep 23 operating the store after the termination 24 agreement the same as they did before the 25 termination agreement? REINIG REPORTING, INC. (212) 684-7298 69 1 Merriman 2 A Yes, sir. 3 Q And they're supposed to keep using 4 the Dunkin' name, is that right? 5 A Yes, sir. 6 Q And use the Dunkin' signs and the 7 Dunkin' trademark, is that right? 8 A Yeah, I don't think that changes. 9 Q And that's what you told Sam and 10 Cindy to do, just keep doing what you're doing? 11 A I just talked to them about their 12 operations and to try to do the best that they 13 can to be as successful as they can. 14 Q Well, did you tell them to stop 15 using the Dunkin' trademark? 16 A No, sir, I didn't. 17 Q You told them to continue using 18 it, is that right? 19 MR. WORTHEN: Objection. These 20 have been asked and answered. 21 A No, I never said anything about 22 the trademarks. 23 Q Well, how many times have you been 24 at the store? 25 A I don't recall. REINIG REPORTING, INC. (212) 684-7298 70 1 Merriman 2 Q Would it be more than once? 3 A Yes, sir. 4 Q Would it be more than five times? 5 A I would -- I would say -- I would 6 say yes. 7 Q And that's since July of '07 8 you've been there more than five times? 9 A I would think so, yes. 10 Q Have you been there more than ten 11 times since July of '07? 12 A I don't -- I don't know for sure 13 how many times, I'm sorry. 14 Q And when you go there, you 15 encouraged them to just keep doing business, is 16 that right? 17 A We told them all the things that 18 they could do to keep improving their business. 19 Q Using the Dunkin' brand? 20 A They're a Dunkin' Donuts, so 21 they're -- they are trying to do the best they 22 can operationally, and I want to help them with 23 that. 24 Q Did you and Sam and Cindy ever 25 talk about when they would be gone because REINIG REPORTING, INC. (212) 684-7298 71 1 Merriman 2 there was a termination in effect? 3 A I know that Sam and Cindy had 4 talked about it, because they had talked to me 5 about selling the stores, and that they wanted 6 to move this along as soon as possible, that 7 was their request. 8 Q And what you said was talk to your 9 lawyers? 10 A I said the best way for you to do 11 that is talk to your lawyers, and have your 12 lawyer talk to the Dunkin' lawyers and good 13 luck. 14 Q Do you know what an LOA is? 15 A I know the abbreviation, I think 16 -- it's a lease option agreement. 17 Q Do you know if there's an LOA on 18 Sam and Cindy's store? 19 A I'm not -- I'm not exactly sure if 20 there's a lease option agreement. 21 Q Well, in or about December of '07, 22 did you discuss with Mr. Hohmann if there was a 23 lease option agreement on Sam and Cindy's 24 store? 25 A I don't recall the month, but I REINIG REPORTING, INC. (212) 684-7298 72 1 Merriman 2 know that I did talk to Len about there was 3 something going on, I think, with the landlord 4 for them, something was going on with Cindy and 5 Sam and the landlord, so. 6 Q And you talked to Len on the 7 telephone? 8 A Yes, Cindy told me to call the 9 landlord and -- because she had thought that 10 she had taken care of the items. 11 Q Well, did you talk to Len about 12 whether or not you had a lease option 13 agreement -- 14 A I don't remember. 15 Q -- on Sam and Cindy's store? 16 A I don't necessarily recall that. 17 I remember talking about maybe the landlord 18 piece. I could have, but I just don't recall, 19 sorry. 20 Q Well, did anyone ever tell you 21 that, quote, we do not have a lease for this 22 location? 23 A I don't recall that, I'm sorry. I 24 mean, it could, but I don't remember. 25 Q Do you know Linda McKenna, M-c-K- REINIG REPORTING, INC. (212) 684-7298 73 1 Merriman 2 E-N-N-A? 3 A I've seen her name a few times. 4 We have people that turn over up in Canton from 5 time to time, so I don't necessarily recall the 6 name, but -- I know the name, I'm just not sure 7 exactly what department she's in right now. 8 Q Well, did Linda Morris ever e-mail 9 you and say Mark, let me know if you need me to 10 do anything? 11 A I don't recall that, but, I mean, 12 she could, I mean. 13 Q Did you ever respond to Linda and 14 tell her what you wanted her to do, if 15 anything? 16 A I don't recall at this point, I'm 17 sorry. 18 Q Well, did Ms. Morris ever ask you 19 is this a store that we are interested in 20 exercising under if the default is not cured, 21 do you know what exercising under mean? 22 A Exercising -- what I think that 23 you're saying to me is what you're reading is 24 about if the landlord -- if the landlord takes 25 away their agreement, do we want to exercise REINIG REPORTING, INC. (212) 684-7298 74 1 Merriman 2 with the landlord for the store. 3 Q Did you respond to Linda Morris 4 and tell her if you want to exercise for Sam 5 and Cindy's store? 6 A I don't recall. I mean, I could 7 have, but I don't remember right now, but I 8 could have. 9 Q Well, did you form an opinion in 10 your own mind whether Dunkin' should exercise 11 for Sam and Cindy's store? 12 A I don't remember at this time my 13 response. 14 Q Well, would you please answer my 15 question, did you form an opinion in your mind 16 whether or not you responded to Linda Morris 17 whether Dunkin' should exercise and take over 18 Sam and Cindy's store? 19 A I don't recall having an opinion. 20 I mean, it's like I could -- I mean, I could 21 have, I'm just not exactly sure what you're 22 asking, so could you ask again? 23 Q As you sit here today -- 24 A Right. 25 Q -- do you have an opinion as to REINIG REPORTING, INC. (212) 684-7298 75 1 Merriman 2 whether Dunkin' should take over Sam and 3 Cindy's store or they should just let the lease 4 lapse and lose the location? 5 A Yeah, we definitely would want to 6 exercise, we wouldn't want to -- you know, that 7 would hurt customers as well who had been used 8 to coming to the store. 9 Q And what is the reason you would 10 definitely want to exercise? 11 A Well, it's just like I said, you 12 know, customers are used to coming to that 13 location, and for us to remove the stores, you 14 know, we would definitely have customer 15 complaints and things like that, so we would 16 definitely want to exercise if there's an 17 issue. 18 Q Does Dunkin' have any company- 19 operated stores other than franchises? 20 A Not that I know of. 21 Q So in order to operate the store, 22 Dunkin' would have to sell it to another 23 franchisee? 24 A It would definitely need to be 25 another franchisee, it wouldn't be us. REINIG REPORTING, INC. (212) 684-7298 76 1 Merriman 2 Q And when you get a new franchisee 3 or an old franchisee opens a new store, do they 4 pay Dunkin' a fee? 5 A If a new -- if a new or old 6 franchisee opens a new store, I know that 7 there's a fee, I just don't know the amount. I 8 think all franchise companies do that. 9 Q Did Mr. Hohmann ever tell you that 10 you would have to make some, quote, quick 11 decisions regarding Sam and Cindy's location? 12 A I don't recall at the time. 13 Q Did Mr. Hohmann tell you to call 14 him in his office to discuss the next steps? 15 A I mean, he could have, I just 16 don't recall right now. 17 Q Well, did you call Mr. Hohmann in 18 his office to discuss what to do in Sam and 19 Cindy's location in December of '07? 20 A I don't recall from right now. 21 Q Well, that would be about three 22 months ago, December of '07, right? 23 A I would think so, right. 24 Q That's too far for you to 25 remember? REINIG REPORTING, INC. (212) 684-7298 77 1 Merriman 2 A There's just a lot of 3 conversations I have all the time, I mean. 4 Q And all the stores you deal with 5 are ones that have been terminated? 6 A No, sir. 7 Q All the stores you deal with are 8 in special services? 9 A Yes, sir. 10 Q So they're either underperforming 11 or terminated? 12 A I think so, yes, sir. 13 Q Now I'm going to mark this as 14 Exhibit E and ask if you recall receiving this 15 e-mail from Mr. Hohmann on or about December 16 10, 2007 at 2:35 p.m., and that's Bates stamped 17 1629. 18 (Whereupon, at this time, the 19 reporter marked as Defendant's Exhibit E 20 the above-mentioned document Bates 21 stamped 1629 for identification.) 22 (Mr. Jaroslawicz hands a document 23 to the witness.) 24 A Okay, now, I'm sorry, what can I 25 answer? REINIG REPORTING, INC. (212) 684-7298 78 1 Merriman 2 Q Is that an e-mail that you 3 received from Mr. Hohmann on or about December 4 10, '07? 5 A I was CC'd on it, sir. 6 Q Did you receive that e-mail? 7 A Yes, yes, I received it. 8 Q And who was it sent to that you 9 were CC'd on? 10 A It was sent to Jeremy Vitarro. 11 Q And did you respond to that e-mail 12 to Mr. Hohmann? 13 A I don't recall responding to the 14 e-mail, I could have, but I just don't 15 remember. 16 Q Do I recall your testimony 17 accurately that you were not given this store 18 until July of '07, is that correct? 19 A I think it was in July of '07, I'm 20 not exactly sure the date. 21 Q Well, did you have anything at all 22 to do with this store in May of '06? 23 A No, sir, not that I know, no, sir. 24 Q Do you know who a Rich Magee is? 25 A Yes, sir. REINIG REPORTING, INC. (212) 684-7298 79 1 Merriman 2 Q Who is Rich Magee? 3 A Rich Magee is another operations 4 manager. 5 Q Do you know why Rich Magee would 6 discuss Sam and Cindy's store with you in May 7 of '06? 8 A In May of '06, I don't know. 9 Q Do you know of someone called 10 Parik, P-A-R-I-K? 11 A Parik? 12 Q P-A-R-I-K. 13 A That's Parik, I'm sorry. 14 Q Parik. 15 A Parik, I know a franchisee Parik, 16 yes. 17 Q And was Parik a terminated 18 franchise or underperforming franchise in May 19 of '06? 20 A I'm not exactly sure what the 21 position that Parik was in at that time. I'm 22 not sure if he was a franchisee or not at that 23 time. 24 Q Let me show you this e-mail -- 25 A Sure. REINIG REPORTING, INC. (212) 684-7298 80 1 Merriman 2 Q -- dated May 24, '06, Exhibit F, 3 from Rich Magee to Mark Merriman and ask if you 4 received this in May of '06. 5 (Whereupon, at this time, the 6 reporter marked as Defendant's Exhibit F 7 the above-mentioned e-mail dated May 24, 8 '06 from Rich Magee to Mark Merriman 9 for identification.) 10 (Mr. Jaroslawicz hands a document 11 to the witness.) 12 A Okay. 13 Q Do you recall receiving that 14 e-mail, Exhibit F? 15 A I see it here, yes. 16 Q Now, back in May of '06, did you 17 know who Sam Habib was? 18 A I had no idea who he was. 19 Q Did you respond to Mr. Magee in 20 May of '06? 21 A I don't recall, but I would hope I 22 would have. 23 Q I'm going to show you a document 24 Bates stamped 1713 marked as Exhibit G and ask 25 if you've seen that before. REINIG REPORTING, INC. (212) 684-7298 81 1 Merriman 2 (Whereupon, at this time, the 3 reporter marked as Defendant's Exhibit G 4 the above-mentioned document Bates 5 stamped 1713 for identification.) 6 (Mr. Jaroslawicz hands a document 7 to the witness.) 8 A I don't remember seeing this sir, 9 I'm sorry. 10 Q Never seen that before? 11 A I don't recall seeing it. 12 Q Didn't look at it yesterday? 13 A No, sir. 14 Q Do you know what a request is for 15 a network to be placed with special services? 16 A The request would probably go to 17 his director. 18 Q And special services would be you? 19 A That's -- yeah, operations 20 manager, special services, yes. 21 Q And under what circumstances would 22 the operations manager request a network be 23 placed with special services? 24 A If they are terminated or if 25 they're underperforming operation. REINIG REPORTING, INC. (212) 684-7298 82 1 Merriman 2 Q And that's your specialty? 3 A That's what I do. 4 Q Well, how many of the stores that 5 are terminated are sold to other Dunkin' 6 franchisees that you've been involved in? 7 A I don't -- I don't know the number 8 of that. 9 Q Well, how many have you been 10 involved in? 11 A I have no idea how many. 12 Q Would it be over a hundred? 13 A Not that I know of. 14 Q Would you keep a record of what 15 happens to these stores in special services 16 that you're in charge of? 17 A The ones that I have now, yes. 18 Q Well, how many do you have now? 19 A In special services, I have -- I 20 don't know the exact amount, but I think it's 21 in the low 60s. 22 Q And how many have you had over the 23 past two years while you've been working in 24 special services? 25 A I really don't know. REINIG REPORTING, INC. (212) 684-7298 83 1 Merriman 2 Q Well, do you have a record of that 3 somewhere? 4 A I have a record of the stores I 5 have. 6 Q Well, would you have a record of 7 the stores that you worked on in special 8 services for the past two or three years? 9 A I would have a -- yes, I would 10 have for the last two years, I think so, yes, 11 sir. 12 Q What record would that be? 13 A Just a spreadsheet with just the 14 stores on them, what my -- what my -- just the 15 list of the stores and the addresses and things 16 like that. 17 Q Would that also show what happened 18 with the stores? 19 A No, sir. 20 Q Would it show if the store's been 21 out of business, your spreadsheet? 22 A The spreadsheet I'm talking about 23 really has the -- it has the PC number, which 24 is this right here (indicating), and it has, 25 like, the address, right here (indicating), and REINIG REPORTING, INC. (212) 684-7298 84 1 Merriman 2 that's all it is. 3 Q What is a PC number? 4 A It's their property code. It's 5 like whenever they, like, order from, you know, 6 to get all their equipment and things like 7 that, it's easily for what's called the DCP to 8 send them items and things like that. 9 Q What is DCP? 10 A It's the distribution center, the 11 franchisees own it. It's like the cups and the 12 coffee and things like that, so PC number 13 definitely makes it easy to send things out to. 14 Q Would your spreadsheet indicate 15 what happened to the store, if it was closed or 16 sold to another franchisee, what happened to 17 it? 18 MR. WORTHEN: Objection. Asked 19 and answered. 20 A It just says -- this spreadsheet, 21 it just says the PC number and the franchisee 22 and their address. 23 Q How would you find out when you're 24 no longer handling the store? 25 A How would I find out when I'm no REINIG REPORTING, INC. (212) 684-7298 85 1 Merriman 2 longer handling the store -- I guess, you know, 3 someone from my boss or legal would call me and 4 say, you know, whether, you know, the suit is 5 taken care of or not, whatever the resolution 6 would be. 7 Q Well, how would you find out about 8 it, would you get something in writing? 9 A I don't know. Usually some 10 people -- sometimes it's just a call, and the 11 resolution is just told to me. 12 Q And then you just stop going to 13 that store? 14 A No, not necessarily I would have 15 continued to work with the store. If the 16 store -- if the resolution is for the client 17 and their operations are in good shape, they 18 could go back to a guy like, you know, your 19 Rich Magees or your Mike Rose. 20 Q Do you know if any of the stores 21 were closed that you worked on in the last 22 three years? 23 A What do you mean by -- I mean, 24 just plain outright closed? 25 Q Closed, outright closed. REINIG REPORTING, INC. (212) 684-7298 86 1 Merriman 2 A Outright closed. I know I worked 3 with a store that was closed, I do know of one 4 that was closed. I know the landlord had shut 5 down, shut -- demolished the building. 6 Q Where was that store? 7 A It's in Brooklyn somewhere, I 8 don't know the exact address. I haven't had 9 the franchisee very long, but the landlord was 10 demolishing the building. 11 Q Other than the one where the 12 landlord demolished the building, any other 13 franchisees close? 14 A Yes, I think -- one or two that 15 I've seen that they just -- they left and 16 closed. 17 Q Were those that you were in charge 18 of that they left and closed? 19 A Yes. One -- the one I'm thinking 20 about, yeah, that was -- it was in special 21 services, and he decided to close the store. 22 Q Do you know what that store was? 23 A Yeah, it's in -- it's on Long 24 Island. 25 Q Do you know the name of the person REINIG REPORTING, INC. (212) 684-7298 87 1 Merriman 2 or people operating? 3 A The name of the people that 4 were -- I know the owner's name at the time. 5 Q Who is that? 6 A His name was Ben Kuncman. 7 Q How about the three stores in the 8 Bronx and Westchester that went bankrupt, are 9 those your stores that are now for sale? 10 A The three stores -- I'm sorry? 11 Q In the Bronx and Westchester. 12 A No, sir. 13 Q Those are not your stores? 14 A No, sir, I'm sorry. 15 Q And do you know how many of the 16 stores you worked on in the last three years 17 were taken over by other Dunkin' franchisees? 18 A I don't remember the number, sir, 19 I'm sorry. 20 Q You have no idea how many stores 21 were taken over by other Dunkin' franchisees 22 that you worked on? 23 MR. WORTHEN: Objection. Asked 24 and answered. 25 A I don't know the exact amount. REINIG REPORTING, INC. (212) 684-7298 88 1 Merriman 2 Q I didn't ask you the exact amount, 3 I asked you approximately how many. 4 A Approximately -- that would be 5 hard -- that would be hard to approximate. I 6 don't want to guess. 7 Q Well, how about in the last three 8 months, any stores taken over by other 9 franchisees that you've been handling for 10 special services? 11 A Okay, so a franchisee turning over 12 to another franchisee, I would say, you know, 13 definitely under ten. 14 Q That's in the last three months? 15 A Yeah. 16 Q How about in the last six months? 17 A I just don't -- I don't know the 18 number, I'm sorry. 19 Q Would it be more than ten? 20 A I just couldn't say. 21 Q Would there be a record somewhere 22 at Dunkin' Donuts? 23 A I'm sure there would be. 24 Q How would you ask for that record 25 if you wanted it? REINIG REPORTING, INC. (212) 684-7298 89 1 Merriman 2 A I would just, you know, just 3 research it and try to find out and look it up. 4 Q Well, where would you look it up? 5 A I can always call the legal 6 department and ask them for that, for the 7 information. 8 Q Who would you call in the legal 9 department? 10 A I may call up, you know, Arthur 11 Anastos. 12 Q Who's Arthur Anastos? 13 A He's a lawyer up in Canton. 14 Q He's the guy you deal with? 15 A I deal with different ones from 16 different times. 17 Q Did you ever deal with Mr. 18 Rodriguez? 19 A Could you tell -- I'm sure there's 20 more than one -- 21 Q Do you know the president of 22 Dunkin' Donuts? 23 A Yes, his name is Will Kussell. 24 Q Before Mr. Kussell? 25 A Yes, Mr. Rodriguez. REINIG REPORTING, INC. (212) 684-7298 90 1 Merriman 2 Q Did you ever speak to Mr. 3 Rodriguez about Sam and Cindy's store? 4 A No, sir. 5 Q I'm going to show you a document 6 Bates stamped 1615 marked Exhibit H and ask if 7 you've ever received a copy of this e-mail from 8 Basil Kazepis dated October 31, '07? 9 (Whereupon, at this time, the 10 reporter marked as Defendant's Exhibit H 11 the above-mentioned document Bates 12 stamped 1615 for identification.) 13 (Mr. Jaroslawicz hands a document 14 to the witness.) 15 A Okay, sir. 16 Q Did you receive that e-mail on 17 October 31, '07 from Mr. Basil? 18 A Yes, sir, I did, I was CC'd on it. 19 Q Did you read it? 20 A Now that I'm looking at it, yes, I 21 remember reading it. 22 Q Did you respond to it? 23 A I don't remember responding to it, 24 sir, I'm sorry. 25 Q Any parts of that e-mail dated REINIG REPORTING, INC. (212) 684-7298 91 1 Merriman 2 October 31, '07 at 12:13 p.m. which you didn't 3 understand when you read it? 4 A I mean, it's between Basil and 5 Linda. I'm in operations, so I know that 6 they're -- I mean, they're talking something 7 other than the operation of the stores, that's 8 for sure. 9 Q Did you understand that e-mail 10 when you got it? 11 A I don't -- let me look. 12 Q Are there any big words in there 13 or hard words -- 14 A No. 15 Q -- that you don't understand? 16 MR. WORTHEN: Objection. 17 A There's not a problem of big 18 words, but it doesn't go into the exact meaning 19 of everything in here, so -- 20 Q Well, did you ask anybody to 21 explain that e-mail to you when you got it on 22 or about October 31, '07? 23 A No, sir. 24 Q So you understood it well enough 25 not to have to ask anybody what it meant? REINIG REPORTING, INC. (212) 684-7298 92 1 Merriman 2 A Well, it wasn't really to me, so 3 it didn't really pertain to me, so I didn't 4 really think about it. 5 Q Did you ask anybody why they sent 6 you a copy of this e-mail? 7 A No. 8 Q Did you understand what Basil 9 meant when he said yes, we want to keep it? 10 A Well, since it's not too far after 11 that landlord discussion, that's what I would 12 guess it would be talking about. But that's a 13 guess, so I'm sorry, but I don't think it's 14 that far out from what you had showed me 15 before. So that's -- and Linda Morris was on 16 those previous ones, so that's what I would 17 think it would be talking about. 18 Q And when it refers to they would 19 be negotiating with Jeremy and his team, who's 20 the they it's referring to? 21 A I really don't know. I mean, it 22 could be the legal team of Sam and Cindy, it 23 could be -- 24 Q You have no idea, that's your 25 sworn testimony? REINIG REPORTING, INC. (212) 684-7298 93 1 Merriman 2 A I'm just not sure. 3 Q Now, when it says Jeremy, do you 4 know who that refers to? 5 A Yeah, that's Jeremy Vitarro. 6 Q And when it says let's jump on 7 this, do you know what let's jump on this 8 means? 9 A No, sir, I'm not exactly sure what 10 he's talking about when he says let's jump on 11 this. 12 Q And then when he goes on to say, 13 I'm pretty sure Skrivanos is interested in the 14 two stores they have, did you understand what 15 that meant? 16 A I understand that, it's just not 17 in my scope of what I do, so. 18 Q Well, what did you understand that 19 to mean? 20 A It sounds like Skrivanos is 21 interested in the two stores. 22 Q That's Sam and Cindy's two stores? 23 A That would be what I would think. 24 Q Do you have a full name for 25 Skrivanos? REINIG REPORTING, INC. (212) 684-7298 94 1 Merriman 2 A His name is Const Skrivanos. 3 Q How do you spell that first name? 4 A I'm not sure, I'm sorry. 5 Q Have you ever spoken to this Const 6 Skrivanos? 7 A I just don't recall. 8 Q Do you know what his address is? 9 A I don't, sir, I'm sorry. 10 Q Does Dunkin' have his full name 11 and address somewhere in its files? 12 A I would hope so. 13 Q But you don't have them in your 14 files? 15 A I don't, sir. This is a violation 16 notice, so that's probably what he was talking 17 about, so that sounds like they were talking 18 about the landlord. 19 Q Did you investigate Sam's stores 20 to see if they were selling doughnuts to 21 someone who took them to Chock Full O'Nuts? 22 A I don't recall if I did or not, 23 I'm not sure. 24 Q Do you remember Mike Rose asking 25 you to investigate if Chock Full O'Nuts Dunkin' REINIG REPORTING, INC. (212) 684-7298 95 1 Merriman 2 Donuts came from Sam Habib's stores? 3 A I just don't -- I don't recall 4 that he did. I mean, he may have, I just 5 don't -- I don't remember at this time. I 6 remember Chock Full O'Nuts and there was some 7 issue, but I don't remember the whole thing 8 right now offhand. 9 Q Well, do you know one of the 10 reasons that Dunkin' wanted to terminate Sam 11 and Cindy is because of doughnuts at Chock Full 12 O'Nuts? 13 A Not that I know of. 14 Q Well, how is Sam supposed to 15 prevent someone from buying doughnuts and then 16 reselling them to Chock Full O'Nuts? 17 A Can you repeat that? 18 Q If someone comes into Sam's store 19 and buys two dozen doughnuts, how is Sam 20 supposed to know if he's going to take them 21 home, bring them to a birthday party or sell 22 them to Chock Full O'Nuts? 23 A I don't know. 24 Q You being part of special services 25 never thought about that problem? REINIG REPORTING, INC. (212) 684-7298 96 1 Merriman 2 A I think the company thinks about 3 that problem as a whole, but sometimes you 4 don't hear about it, and then sometimes if you 5 do, you know, you don't want that to happen 6 anymore, of course. 7 Q Did you ever get an e-mail from 8 Mike Rose addressed to you saying they might 9 have come from Asam Habib's restaurants? 10 A I don't recall. 11 MR. JAROSLAWICZ: Let me show you 12 a document Bates stamped 1527 dated 13 August 3, '07 as Exhibit I. 14 (Whereupon, at this time, the 15 reporter marked as Defendant's Exhibit I 16 the above-mentioned document Bates 17 stamped 1527 for identification.) 18 (Mr. Jaroslawicz hands a document 19 to the witness.) 20 Q Do you recall receiving that 21 e-mail from Mr. Rose, Exhibit I? 22 A Yeah, now that I'm looking at it, 23 yes. I knew there was something about Chock 24 Full O'Nuts 25 Q Now that you look at it, do you REINIG REPORTING, INC. (212) 684-7298 97 1 Merriman 2 remember what happened with Chock Full 3 O'Nuts? 4 A I don't recall what the end 5 outcome was, no, sir. 6 Q Did you ever send an e-mail to 7 Cindy? 8 A I don't recall, I'm sorry, sir. I 9 mean, I may have just to, you know, because 10 obviously Mike says this might have come from 11 Sam, so he wasn't sure, so I may have 12 corresponded with them or not, I'm just not 13 sure just to see, I don't know. 14 Q Well, on or about December 13, 15 '07, did you send an e-mail to Cindy which said 16 have Sam send off the documentation since the 17 documents sent to us to take over the store 18 will not wait for you to get back, did you ever 19 send that e-mail to Cindy? 20 A I don't recall that, I'm sorry. 21 Q You don't recall what happened in 22 December '07, some three months ago? 23 A I'm not exactly sure about what 24 documentation you're talking about, I'm sorry, 25 sir. REINIG REPORTING, INC. (212) 684-7298 98 1 Merriman 2 Q Well, did you ever get an e-mail 3 from Cindy saying what documents are you 4 referring to, you mentioned taking store back, 5 please advise? 6 A I'm not exactly sure what that's 7 about. Is that about the landlord piece? 8 Q You don't know. 9 A I don't know, sir. 10 Q You wrote the e-mail. 11 A I don't know, I'd have to see it, 12 sir, I'm sorry. 13 Q Well, let me show you a document 14 labeled Bates stamped 1582 and 1583 as Exhibit 15 J1 and J2, I point you to the bottom of 1582 16 and the top of 1583 which is your e-mail to 17 Cindy Gluck, did you send that? 18 (Whereupon, at this time, the 19 reporter marked as Defendant's Exhibits 20 J1 & J2 the above-mentioned documents 21 Bates stamped 1582 and 1583 for 22 identification.) 23 (Mr. Jaroslawicz hands documents to 24 the witness.) 25 A Could you just repeat what you REINIG REPORTING, INC. (212) 684-7298 99 1 Merriman 2 wanted, sir, I'm sorry? 3 Q Did you send that e-mail on the 4 bottom of the J1 going onto the top of page 2, 5 J2? 6 A Yes, sir, I think so, yes, yes, I 7 did. 8 Q What were you referring to about 9 taking the store back? 10 A What I was trying to do is help 11 Cindy and Sam understand the importance of the 12 landlord, of him trying to take the store, or 13 evict them, I guess, of some kind. So I was 14 just letting them know the importance so that 15 they wouldn't lose it. 16 Q Did you have a law degree? 17 A No, sir. 18 Q Were you giving Sam and Cindy 19 legal advice? 20 A No, sir. 21 Q On what basis were you giving 22 them advice as to what the landlord's actions 23 meant? 24 A Really I was just trying to 25 support them. We had been talking about the REINIG REPORTING, INC. (212) 684-7298 100 1 Merriman 2 landlord and that case. 3 Q You were just trying to be 4 helpful? 5 A Yes, sir, I was. 6 Q Now, did Tracy Foley ever ask you 7 if anyone bought Asam's stores or they were 8 closing? 9 A Yeah, we -- I think you showed 10 that to me not too long ago today about 11 that. 12 Q And you told Tracy that Sam has 13 been terminated, he will not be investing? 14 A I don't remember the exact words, 15 but I think you're -- 16 Q What do you mean by he will not be 17 investing? 18 A Investing in the -- we're talking 19 about the new generation sandwich station 20 piece, if you recall. 21 Q Have you ever seen an 22 investigative report or investigative findings 23 about Sam and Cindy's store? 24 A No, sir. 25 Q No one ever showed you that? REINIG REPORTING, INC. (212) 684-7298 101 1 Merriman 2 A No, sir. 3 Q And up to today, you've never seen 4 it? 5 A No, sir. 6 Q Did you ever talk to anyone named 7 Najum Latif, N-A-J-U-M, new word, L-A-T-I-F? 8 A No, sir. 9 Q Do you know who Najum Latif is? 10 A No, sir, I don't. 11 Q Never heard his name before today? 12 A No, sir, I haven't. 13 Q Did you ever hear of a man called 14 Arif, A-R-I-F, Ali, A-L-I? 15 A No, sir. 16 Q Never heard of him before today? 17 A No, sir. 18 Q Do you know of a man by the name 19 Najum Latif or Arif Ali who works for a Dunkin' 20 Donuts franchise in Brooklyn? 21 A I don't recall them, sir, I'm 22 sorry. 23 Q Do you know a man called Kevin 24 Cummings? 25 A No, sir, I don't. REINIG REPORTING, INC. (212) 684-7298 102 1 Merriman 2 Q Do you know what the loss 3 prevention center is at Dunkin' Donuts? 4 A Loss prevention is a department up 5 in Canton. 6 Q Did you ever deal with anyone at 7 loss prevention at Dunkin' Donuts? 8 A Yes, sir, like I said, I've spoken 9 to Jack Sullivan before. 10 Q Other than Jack Sullivan, did you 11 ever speak to anyone else about Sam and Cindy 12 at loss prevention at Dunkin' Donuts? 13 MR. WORTHEN: Objection. 14 A Not that I recall, sir. 15 Q Other than what you've already 16 told us, do you remember anything else you said 17 to Jack Sullivan about Sam and Cindy's stores, 18 or what Jack Sullivan said to you? 19 A No, sir, not that I recall. 20 Q Now, when's the last time you 21 spoke to Sam or Cindy? 22 A I know I did a -- I remember Sam 23 calling me back in February, I think. He had 24 talked to me in February. I'd come out and I 25 did a follow up on a food safety inspection, REINIG REPORTING, INC. (212) 684-7298 103 1 Merriman 2 and then Sam had called me after that. 3 Q Do you have any certification in 4 food safety? 5 A No, just the training that I've 6 received. 7 Q You have no certificates? 8 A No, sir. 9 Q In February, about a month ago, 10 February of '08. 11 A Yes, sir. 12 Q In February, you mean about a 13 month ago, February '08? 14 A Yes, sir. 15 Q Did you discuss the termination of 16 the franchise with Sam when you were there in 17 February '08? 18 A Not the termination, I think we 19 were pretty much talking about the food safety 20 piece and, you know, what the report was and 21 things like that. 22 Q When you were there in February 23 '08, did you see the Dunkin' Donuts sign up? 24 A Yes, sir. 25 Q Did you tell them to take it down? REINIG REPORTING, INC. (212) 684-7298 104 1 Merriman 2 A No, sir. 3 Q When's the last time you talked to 4 Cindy? 5 A It's been a little bit longer, I 6 can't remember how long it's been, and I don't 7 want to guess, but it could be January or 8 December, something like that. 9 Q Do you recall what you said to 10 Cindy when you last spoke to her? 11 A No, sir. 12 Q Do you recall what Cindy said to 13 you when you last spoke to her? 14 A No, sir. 15 Q Did you ever tape record any 16 conversations between Sam and yourself or Cindy 17 and yourself? 18 A No, sir, I haven't. 19 Q Do you know if Sam or Cindy 20 ever tape recorded any conversations with 21 you? 22 A No, sir, I don't. 23 Q Did you make any notes when you 24 met with Sam or Cindy? 25 A If I -- if I go to the store and, REINIG REPORTING, INC. (212) 684-7298 105 1 Merriman 2 you know, we're working on operations and 3 improvement and things like that, we go over it 4 together. 5 Q Do you make any notes when you 6 meet with Sam or Cindy? 7 A Well, I make notes on the report, 8 yes. 9 Q What type of report is that? 10 A Like the food safety, food safety 11 report. Other times, it's a general restaurant 12 visit where I'm just coming in and we go over 13 just improvements for the operations. 14 Q Do you hand write those reports? 15 A Yes, sir. 16 Q What do you do with those 17 reports? 18 A What it is, is it's a, you know, 19 typed report with lines, and you just -- you 20 can put check boxes in and, you know, how 21 they're doing and how they can improve and 22 things like that. So, you know, if they 23 weren't doing -- let's say team service, I try 24 to help them so they can be faster to make more 25 money, things like that. REINIG REPORTING, INC. (212) 684-7298 106 1 Merriman 2 Q Do you know if they were making 3 any money in their store, Sam and Cindy. 4 A I don't know what the amount of 5 their leases are compared to what their debt 6 services are, so I wouldn't know how much money 7 they make. 8 Q Do Sam and Cindy file any reports 9 with Dunkin' showing how much money they make 10 or don't make? 11 A What they do is they fill out 12 their normal sales on how they did week to week 13 and send those in. 14 Q Do you review those? 15 A From time to time, and Sam and I, 16 you know, talk about their sales and how things 17 are going with their operations and things like 18 that. 19 Q Well, how are they doing in their 20 operations? 21 A I would say okay. 22 Q What does okay mean? 23 A I wouldn't say it was good, but I 24 wouldn't say it was bad either. 25 Q Well, what would you consider REINIG REPORTING, INC. (212) 684-7298 107 1 Merriman 2 bad? 3 A Bad would be, you know, extreme 4 amount of problems at the store, whether it's 5 food safety or customer complaints and things 6 like that, which they have had, but they have 7 been quick to -- we've worked together on those 8 things to take care of. 9 Q How about doing bad financially, 10 are they doing bad financially? 11 A I don't know that, sir, I'm sorry. 12 Q Well, don't you get the numbers? 13 A Well, we discuss it, but we 14 haven't discussed how much debt they owe and 15 things like that and what their -- what that 16 break even point may look like. 17 Q Forget about how much debt they 18 have, the numbers that they file with Dunkin' 19 Donuts, that they pay royalties on, have you 20 looked at those? 21 A Yeah, I've looked at them. 22 Q Do those numbers show a successful 23 store or an unsuccessful store? 24 A Well, sir, what I want to try to 25 explain to you is that certain stores have REINIG REPORTING, INC. (212) 684-7298 108 1 Merriman 2 different issues, like some people may have a 3 higher lease and they may have a higher debt 4 service than others, so the amount per week 5 that they make, you can make $10,000 in the 6 store if your lease is low and that may make 7 money. You could make $25,000 a week in a 8 store, but if your debt service and your lease 9 is high, so I'm not exactly sure about what 10 that break even point is with them. 11 I mean, I know what they're making 12 week to week and Sam hasn't said anything about 13 any major troubles about making his payments to 14 me. 15 Q Well, Sam filed his lease with 16 Dunkin', didn't he? 17 A I don't know that, sir. 18 Q You never looked at the lease? 19 A Not that I recall. 20 Q Okay. 21 A I think that's with this landlord. 22 Q Well, on a pure sales basis, did 23 they do as much as the average store, less than 24 the average store? 25 A Well, their store is an inline REINIG REPORTING, INC. (212) 684-7298 109 1 Merriman 2 store, you've got some stores that are stand 3 alone or drive-throughs, and you have some 4 stores that are inline stores, so to say they 5 are higher or lower, you would have to be 6 apples to apples, and you would have to look at 7 the stores that are more inline stores with 8 them, and I don't have that. I mean -- 9 Q You don't have any other inline 10 stores that you take care of? 11 A Yeah, I do, I'm just saying -- 12 Q Well, compared to the other inline 13 stores, how do they compare? 14 A I would say average to maybe a 15 little below average, but, you know, again, I'm 16 approximating. 17 Q Now, have you found anything to 18 show that Sam and Cindy haven't been paying the 19 appropriate royalties to Dunkin' Donuts? 20 A Not that I recall. I'm sure that 21 would be an error department type of thing. 22 Q A what department? 23 A Accounts receivable. 24 Q Did you discuss Sam and Cindy's 25 store with anyone at accounts receivable? REINIG REPORTING, INC. (212) 684-7298 110 1 Merriman 2 A Not that I recall. 3 Q Do you recall anything else that 4 you said to your boss about Sam and Cindy's 5 store or that he said to you other than what 6 you've said today? 7 A Not that I recall, I'm sorry. 8 Q Now, your boss is Mr. Hohmann? 9 A Yes. 10 Q And he is based where? 11 A He's based out of his home. 12 Q And where is his home? 13 A It's out in Pennsylvania, sir. 14 Q Do you know where? 15 A I don't know the exact town, but I 16 think it's around Quakertown area. 17 Q And you have his number, I take 18 it? 19 A Yes, sir. 20 Q And you want to call him, you call 21 him on a cell phone? 22 A Yes, sir. 23 Q And you recall nothing you've said 24 to him after you told him not to put anything 25 else in e-mails about Sam and Cindy? REINIG REPORTING, INC. (212) 684-7298 111 1 Merriman 2 A Not that I recall, sir. 3 MR. JAROSLAWICZ: I have no more 4 questions. 5 MR. WORTHEN: No questions. We'll 6 read and sign. 7 MR. JAROSLAWICZ: I'm going to ask 8 for a different witness, for 30(b)(6), 9 because this witness is obviously a 10 know-nothing witness. 11 (Time noted: 11:55 a.m.) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REINIG REPORTING, INC. (212) 684-7298 112 1 2 A C K N O W L E D G M E N T 3 4 STATE OF NEW YORK ) 5 : ss 6 COUNTY OF ) 7 8 I, MARK MERRIMAN, hereby certify 9 that I have read the transcript of my testimony 10 taken under oath in my deposition of March 26, 11 2008; that the transcript is a true, complete 12 and correct record of my testimony, and that 13 the answers on the record as given by me are 14 true and correct. 15 16 _______________________ 17 MARK MERRIMAN 18 19 Signed and Subscribed to 20 before me, this ____ day 21 of _______________, 2008 22 23 ________________________________ 24 Notary Public, State of New York 25 REINIG REPORTING, INC. (212) 684-7298 113 1 2 I N D E X 3 WITNESS PAGE 4 MARK MERRIMAN 5 Examination by: MR. JAROSLAWICZ 4 6 7 E X H I B I T S 8 DEFENDANT'S DESCRIPTION 9 A document Bates stamped 20 10 Dunkin' 1595 11 B document Bates stamped 32 1610 12 C e-mail from Len Hohmann 43 13 to the witness dated October 4, '07 14 D document Bates stamped 64 15 1711 16 E document Bates stamped 77 1629 17 F e-mail dated May 24, '06 80 18 from Rich Magee to Mark Merriman 19 G document Bates stamped 81 20 1713 21 H document Bates stamped 90 1615 22 I document Bates stamped 96 23 1527 24 J1 & J2 documents Bates stamped 98 1582 and 1583 25 REINIG REPORTING, INC. (212) 684-7298 123 1 2 C E R T I F I C A T E 3 4 STATE OF NEW YORK ) 5 ) SS. 6 COUNTY OF QUEENS ) 7 8 I, ARTHUR E. HECHT, a Stenotype 9 Shorthand Reporter and Notary Public within and 10 for the State of New York, do hereby certify: 11 THAT MARK MERRIMAN, the witness 12 whose examination is herein before set forth, 13 was duly sworn by me and that this transcript 14 of such examination is a true record of the 15 testimony given by such witness. 16 I further certify that I am not 17 related to any of the parties to this action by 18 blood or marriage and that I am in no way 19 interested in the outcome of this matter. 20 21 IN WITNESS WHEREOF, I have hereunto set my hand 22 this 9th day of April, 2008. 23 24 ___________________________ 25 Arthur E. Hecht REINIG REPORTING, INC. (212) 684-7298