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, 5 a Delaware limited liability company, DD IP HOLDER LLC, a Delaware limited 6 liability company, BASKIN-ROBBINS FRANCHISING LLC, a Delaware limited 7 liability company and BR IP HOLDER LLC, a Delaware limited liability company, 8 Plaintiffs, 9 Case No. -against- 07 Civ. 2446 10 1700 CHURCH AVENUE CORP., a New York 11 corporation, 244 FLATBUSH AVENUE LLC, a New York limited liability company, 12 ASAM HABIB, a resident of New York and HINDY GLUCK, a resident of New York, 13 Defendants. 14 -----------------------------------------x 15 DEPOSITION of the Plaintiff DUNKIN' 16 DONUTS FRANCHISED RESTAURANTS LLC, by JACK 17 LAUDERMILK, taken pursuant to Notice, held at 18 the law offices of JAROSLAWICZ & JAROS, ESQS., 19 225 Broadway, New York, New York, on May 20, 20 2008, commencing at 12:00 p.m., before Alison 21 Dunne, a Shorthand Reporter and Notary Public 22 of the State of New York. 23 REINIG REPORTING, INC. 24 192 Lexington Avenue, Suite 1004 New York, New York 10016 25 (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, D.C. 20037 7 BY: DAVID E. WORTHEN, ESQ. 8 9 JAROSLAWICZ & JAROS, ESQS. Attorneys for Defendants 10 225 Broadway, 24th Floor New York, New York 10007 11 BY: DAVID JAROSLAWICZ, ESQ. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 2 3 IT IS HEREBY STIPULATED AND 4 AGREED by and between the attorneys for the 5 respective parties hereto that the sealing, 6 filing and certification of the transcript of 7 the within examination before trial be, and 8 the same hereby are waived. 9 10 IT IS FURTHER STIPULATED AND 11 AGREED that said transcript may be signed and 12 sworn to before any Notary Public or 13 Commissioner of Deeds with the same force and 14 effect as if signed and sworn to before an 15 officer of this Court. 16 17 IT IS FURTHER STIPULATED AND 18 AGREED that all objections, except as to the 19 form of the questions, are reserved to the 20 time of the trial. 21 22 23 24 25 4 1 J. Laudermilk 2 J A C K L A U D E R M I L K, a witness 3 herein, residing at 39 Penny Lane, 4 Duxbury, Massachusetts 02332, after 5 having been first duly sworn by a Notary 6 Public of the State of New York, 7 testified as follows: 8 EXAMINATION BY MR. JAROSLAWICZ: 9 Q State your name for the record, 10 please. 11 A Jack Laudermilk. 12 Q State your address for the 13 record, please. 14 A 39 Penny Lane, Duxbury, 15 Massachusetts 02332. 16 Q What is your date of birth, 17 please? 18 A October 3, 1939. 19 Q What is your education following 20 high school, please? 21 A I attended college at Eastern 22 Nazarene College in Quincy, Massachusetts. I 23 graduated from Suffolk University. I attended 24 Georgetown Law Center in Washington, D.C. I 25 did my post-graduate work at Boston 5 1 J. Laudermilk 2 University. 3 Q In what year did you get your law 4 degree? 5 A 1968. 6 Q Are you a member of the bar? 7 A Yes. 8 Q Of what states, please? 9 A Massachusetts. 10 Q Who are you employed by, please? 11 A Dunkin' Brands, Inc. 12 Q How long have you been employed 13 by Dunkin' Brands, Inc.? 14 A Thirty-seven years, including the 15 company's predecessor companies. 16 Q What is your current position 17 with Dunkin'? 18 A Associate general counsel and 19 assistant secretary. 20 Q How long have you had that 21 position? 22 A About five years. 23 Q What was your position prior to 24 that? 25 A Legal counsel. 6 1 J. Laudermilk 2 Q In your job as legal counsel, did 3 you have anything to do with terminating 4 franchisees? 5 A Yes. 6 Q How long have you been involved 7 in terminating franchisees? 8 A Probably 1985, approximately. 9 Q Has there been any change in the 10 manner in which Dunkin' terminates franchisees 11 since 1985? 12 A No. 13 Q Do you know Mr. Luther? 14 A Yes. 15 Q Have you talked to Mr. Luther 16 about terminating franchisees? 17 A No. 18 Q Have you seen any articles that 19 Mr. Luther said he wants to terminate small 20 franchisees? 21 A No. 22 Q Has anyone told you about any 23 such articles that Mr. Luther wants to 24 terminate small franchisees? 25 A No. 7 1 J. Laudermilk 2 Q Today is the first time you heard 3 of it? 4 A Well, I'm not assuming it's a 5 fact. I'm hearing what you're saying. 6 Q The first time anyone told you 7 Mr. Luther wanted to terminate small 8 franchisees was when I asked you the question 9 today? 10 A Yes. 11 Q Did you ever meet Cindy Gluck? 12 A No. 13 Q Did you ever meet her son Habib? 14 A No. 15 Q Did you ever speak to Cindy 16 Gluck? 17 A No. 18 Q Did you ever speak to Mr. Habib? 19 A No. 20 Q Did you have anything to do with 21 attempting to terminate their franchise? 22 A Yes. 23 Q What did you have to do in 24 attempting to terminate their franchise? 25 A I reviewed the loss prevention 8 1 J. Laudermilk 2 investigation report, consulted with the 3 investigator, the director of the department, 4 the general counsel, our outside lawyers, and 5 made the decision to terminate. 6 Q Who are the outside lawyers? 7 A Gray Plant Mooty. 8 Q Who did you consult with? 9 A I don't remember exactly, but it 10 was probably David Worthen. 11 Q How long have you known Mr. 12 Worthen? 13 A Over twenty years. 14 Q Who is the general counsel that 15 you consulted with? 16 A Steven Horn. 17 Q Who is the investigator you 18 consulted with? 19 A Jack Sullivan. 20 Q What did Mr. Sullivan tell you 21 during this consultation? 22 A I did not take any notes on it 23 and I don't recall. We just discussed the 24 loss prevention investigation report. 25 Q Your conversation with Mr. 9 1 J. Laudermilk 2 Sullivan, was that in person or by telephone? 3 A In person. 4 Q Was anyone else present when you 5 spoke to Mr. Sullivan? 6 A I don't believe so. 7 Q How long did that meeting take 8 with Mr. Sullivan? 9 A I don't recall. 10 Q Are you on any medication that 11 affects your memory? 12 A No. 13 Q How long ago was this meeting 14 with Mr. Sullivan and you don't recall what 15 was said? 16 A Probably two years ago. 17 Q Do you remember anything Mr. 18 Sullivan said to you? 19 A We just discussed the report in 20 general, basically what the report says, the 21 investigation that was conducted. We just 22 discussed it in general terms. 23 Q Do you remember anything else 24 said to you other than general terms? 25 A No. 10 1 J. Laudermilk 2 Q Do you remember what you said to 3 him? 4 A No. 5 Q Do you remember how long this 6 meeting took? 7 A No. 8 Q Where was this meeting with you 9 and Mr. Sullivan? 10 A It was near my office or his 11 office in Canton, Massachusetts, at the 12 headquarters. 13 Q Do you remember what date this 14 meeting took place? 15 A No. 16 Q Do you have a calendar or diary 17 that shows when you met with Mr. Sullivan? 18 A No. 19 Q Have you looked at any documents 20 to refresh your recollection before testifying 21 here today? 22 A Just some documents that counsel 23 sent me, the notice of termination, loss 24 prevention investigation report, the opinion 25 of Judge Go, a few things like that. 11 1 J. Laudermilk 2 Q What else? 3 A That's all that I recall. 4 Q Do you have those with you? 5 A Yes. 6 Q May I see those, please. 7 THE WITNESS: They're underlined, 8 David. 9 MR. WORTHEN: No. He has 10 identified him. 11 Q Did you make the underlining? 12 A Yes. 13 Q Then I would like to see them. 14 MR. WORTHEN: We are not going to 15 turn over the documents to you. 16 MR. JAROSLAWICZ: Then let's call 17 the magistrate. 18 MR. WORTHEN: Let's. 19 (A discussion was held off the 20 record.) 21 MR. JAROSLAWICZ: What I'm going 22 to do is ask the reporter to mark the 23 documents without my looking at them so 24 we have a record of what they are when 25 we talk to the magistrate and they don't 12 1 J. Laudermilk 2 disappear while I go get the number. 3 MR. WORTHEN: If you would like 4 the identification of the documents 5 while he reads them, we will do that. 6 MR. JAROSLAWICZ: I would like to 7 mark the documents by the reporter 8 without looking at them so we can then 9 tell the magistrate what it is we are 10 fighting over. I want the record to 11 reflect that one document has already 12 been removed by the witness. 13 THE WITNESS: This has notes all 14 over it. 15 MR. JAROSLAWICZ: Those are the 16 notes that I want to see, those notes. 17 Please don't remove them. I'm going to 18 ask the reporter to mark them. 19 MR. WORTHEN: No. Call the 20 magistrate now, please. 21 MR. JAROSLAWICZ: You are 22 refusing to have the documents marked so 23 that we know what we're fighting over 24 and so they don't disappear? 25 MR. WORTHEN: They are not going 13 1 J. Laudermilk 2 to disappear. We are here. We are not 3 going to leave the room. 4 MR. JAROSLAWICZ: Well, I saw the 5 witness try to hide a document in his 6 briefcase, who is a lawyer, and I saw it 7 myself. 8 MR. WORTHEN: You are 9 mischaracterizing the record. The 10 documents are in his briefcase. 11 MR. JAROSLAWICZ: Why don't we 12 mark them on the reverse side by the 13 reporter so we can have a record. 14 THE WITNESS: Keep your voice 15 down or we will end this deposition. 16 MR. JAROSLAWICZ: Don't you 17 threaten me. I don't work for you. I 18 am not intimidated by you. I am not 19 some guy you follow around to see if he 20 has a girlfriend, so don't you pull that 21 with me. 22 THE WITNESS: Let's end this 23 right now. Talk to the magistrate and 24 we'll end this right now. 25 MR. JAROSLAWICZ: Let's go over 14 1 J. Laudermilk 2 to see the magistrate and do it at the 3 courthouse. 4 MR. WORTHEN: Off the record. 5 (A discussion was held off the 6 record.) 7 (Whereupon, at this time, a 8 telephone call is placed to the 9 magistrate. Judge Go was not available 10 and the law clerk said that she will 11 call back.) 12 MR. WORTHEN: Let me state on the 13 record right now that any further 14 outbursts like the one we just 15 experienced, we are not going to stick 16 around. There is a level of civility to 17 which we are entitled and to which we 18 will return. However, you are screaming 19 at the witness, which is completely 20 inappropriate. 21 MR. JAROSLAWICZ: You can make 22 your false record any way you like. The 23 fact of the matter is my client 24 testified that you referred to me as a 25 "asshole," that you were abusive during 15 1 J. Laudermilk 2 the last deposition and you are trying 3 to cover it up by making a phony record. 4 I have been through this before with 5 people like you and it won't work. Your 6 client is a lawyer. He is being 7 deliberately evasive, and he hid the 8 documents in his briefcase and I caught 9 him at it. 10 MR. WORTHEN: He put the document 11 back in his briefcase from which it 12 came. 13 MR. JAROSLAWICZ: He's trying to 14 now be smug and accuse me of doing 15 something improper so he can hide behind 16 that and not answer the questions under 17 oath. It won't work. We called the 18 magistrate. We'll call her again. If 19 we have to, we'll go to the courthouse 20 and do the deposition there. 21 MR. WORTHEN: That would be fine. 22 MR. JAROSLAWICZ: It's fine with 23 me. If you want to go over to the 24 courthouse, fine. 25 MR. WORTHEN: Why don't we wait 16 1 J. Laudermilk 2 until the magistrate, Magistrate Go, 3 comes back and if she is willing to sit 4 through this deposition, we are more 5 than happy to do that. 6 MR. JAROSLAWICZ: I cannot tell 7 you what the judge is going to do or 8 say. 9 You don't want to continue until 10 the judge calls; is that what you're 11 telling me? 12 MR. WORTHEN: No. I do want to 13 continue. Let's get this over with as 14 soon as possible. 15 CONTINUED EXAMINATION BY MR. JAROSLAWICZ: 16 Q Did you speak to Mr. Horn? 17 A Yes. 18 Q Where did that meeting take place 19 between you and Mr. Horn? 20 A In his office. 21 Q Where was that located? 22 A At the headquarters in Canton, 23 Massachusetts. 24 Q Was anyone else present when you 25 met with Mr. Horn? 17 1 J. Laudermilk 2 A I don't think so. 3 Q What did you say to Mr. Horn and 4 what did he say to you? 5 A I don't recall. It's been two 6 years. 7 Q Do you recall anything that was 8 said? 9 A No. We just reviewed the case. 10 Q Reviewed the case doesn't give me 11 much information. Do you remember anything 12 you said to him or what he said to you in 13 words or in substance? 14 A No. 15 Q Did you speak to Mr. Worthen? 16 A Yes. 17 Q Do you remember what he said to 18 you? 19 MR. WORTHEN: I would instruct 20 you not to disclose the content of any 21 conversation we had. You can identify 22 the fact that we had the conversation, 23 the date and the general subject matter, 24 but not to disclose the content of the 25 conversation. Go ahead and answer. 18 1 J. Laudermilk 2 A No. 3 Q When did you speak to Mr. Worthen 4 about terminating Sam and Cindy's franchise? 5 A I don't recall. It would have 6 been shortly before we terminated. 7 Q How did you go about terminating 8 the franchise? 9 A Gray Plant Mooty drafted the 10 notice of termination and I believe David 11 Worthen signed it. 12 Q Did you authorize him to do that? 13 A Yes. 14 Q Did you give him a draft of that 15 letter? 16 A No. 17 Q Do you know the reason that you 18 sought to terminate Sam and Cindy's franchise? 19 A Yes. 20 Q What is that reason? 21 A Breech of the franchise agreement 22 terms with respect to transfer of an interest 23 in a franchise, misrepresentations in 24 connection with the franchise of Flatbush 25 Avenue, fraud committed on the company in 19 1 J. Laudermilk 2 connection with the transfers and 3 misrepresentation. I think those are the 4 three main elements. 5 Q What were the misrepresentations? 6 A Misrepresentation as to who the 7 owners were, the Flatbush store. 8 Q Who were the real owners of the 9 Flatbush store? 10 A Mr. Habib and Ms. Gluck. 11 Q What was the misrepresentation? 12 A There was some interest 13 transferred to two other people, Natif and Ali 14 are their last names, that we came to 15 discover. 16 Q Are you familiar with the Dunkin' 17 franchise agreement? 18 A Yes. 19 Q Are you familiar with a provision 20 that any purported or proposed transfer is a 21 nullity without Dunkin's approval? 22 A Yes. I'm sure it says something 23 to that effect. I don't believe those are the 24 words that we would have used. 25 Q Are you saying there was a 20 1 J. Laudermilk 2 proposed transfer or a transfer? 3 A There was an unauthorized 4 transfer. 5 Q Without Dunkin's approval, can 6 there be a transfer? 7 A Not one that we recognized, but 8 there can certainly be a transfer. 9 Q What type of transfer can there 10 be without Dunkin' recognizing it? 11 A The transfer of an interest for 12 consideration. 13 Q Any other misrepresentations? 14 A With respect to the ownership and 15 the Flatbush store? 16 Q Yes. 17 A That's the one that we terminated 18 them for. 19 Q Any other misrepresentations that 20 you are aware of? 21 A No, not that I recall. 22 Q Any misrepresentations with 23 respect to the Church Avenue store? 24 A Other than what I just said about 25 the transfer of an interest in that store that 21 1 J. Laudermilk 2 we were not aware of and did not approve, no. 3 Q What is the other reason that you 4 terminated? 5 A I have given you the reasons. 6 Q No other reasons other than what 7 you said? 8 A No. 9 Q Do you know what a penalty is? 10 MR. WORTHEN: Objection. It goes 11 beyond the scope of the 30(b)6 12 deposition which Judge Go ordered. Go 13 ahead and answer. 14 A Some people call it a penalty. 15 We call it a negotiated settlement payment. 16 We sometimes refer to it and use to settle 17 these cases. 18 Q When you say these cases, which 19 case are you referring to? 20 A Cases that we terminated that 21 have resulted in termination of the franchise 22 as a result of loss prevention department 23 activity. 24 Q Did you discuss imposing a 25 penalty on Sam and Cindy with Jack Sullivan? 22 1 J. Laudermilk 2 A Yes. 3 Q What did you and Mr. Sullivan 4 discuss about this penalty on Sam and Cindy? 5 A We probably discussed the amount. 6 Q What amount did you discuss? 7 A I believe we arrived at $75,000. 8 Q How did you arrive at that 9 amount? 10 MR. WORTHEN: Excuse me. Can I 11 have a standing objection to all your 12 questions on penalty? 13 MR. JAROSLAWICZ: You can have a 14 standing objection to everything that I 15 do. 16 MR. WORTHEN: Thank you. Go 17 ahead. 18 A What was the question again, 19 please. 20 MR. JAROSLAWICZ: Can you read 21 that back. 22 (Whereupon, at this time, the 23 requested question was read by the 24 reporter.) 25 A 75,000. 23 1 J. Laudermilk 2 Q Who arrived at that amount for 3 the termination, you or Mr. Sullivan? 4 A It was arrived at in a discussion 5 between Mr. Horn and me. 6 Q Mr. Sullivan had nothing to do 7 with the penalty? 8 A No. We discussed it, but he 9 would not have had a voice in that decision. 10 Q What did you discuss with Mr. 11 Sullivan? 12 A Just the fact that that's what we 13 were going to do. 14 (Whereupon, at this time, Judge 15 Go returns the telephone call.) 16 MR. JAROSLAWICZ: Your Honor, 17 this is David Jaroslawicz with David 18 Worthen. We are on a speakerphone. 19 MR. WORTHEN: Good afternoon, 20 your Honor. 21 THE JUDGE: Is this matter being 22 reported by a court reporter or shall I 23 put on my tape? 24 MR. JAROSLAWICZ: No. The court 25 reporter is here. 24 1 J. Laudermilk 2 THE JUDGE: I understand that the 3 dispute centers around a document that 4 the witness has referred to prior to 5 this deposition? 6 MR. JAROSLAWICZ: Referred to and 7 made notes on it apparently dealing with 8 this deposition. I asked to see the 9 document or at least mark it on the 10 reverse side so we can show it to your 11 Honor and they refused to do that, so we 12 called the court since the witness is 13 from out of state. 14 MR. WORTHEN: Your Honor, we were 15 willing to identify the documents that 16 were reviewed, but because there are 17 notations and Mr. Laudermilk is an 18 attorney, the notations themselves are 19 work product. 20 MR. JAROSLAWICZ: Mr. Laudermilk 21 was produced as a Rule 30(b)6 witness 22 and I mentioned to the court that he 23 would play this game of saying nothing 24 because I am a lawyer, so now we have 25 the Rule 30(b)6 witness who says what I 25 1 J. Laudermilk 2 did, I am not telling you, so what's the 3 point of the deposition? 4 THE JUDGE: This witness is a 5 lawyer who is in the general counsel's 6 office for the plaintiff? 7 MR. WORTHEN: Correct, your 8 Honor. 9 THE JUDGE: Did he identify the 10 documents? 11 MR. WORTHEN: He did to the best 12 of his ability and his recollection. We 13 were willing to supplement that, your 14 Honor, by actually identifying the very 15 documents. He does have them with him. 16 However, he has made notations on them 17 and that is what we object to 18 disclosing. 19 MR. JAROSLAWICZ: If the witness 20 looked at a document to refresh his 21 recollection, I am entitled to it, your 22 Honor. 23 THE JUDGE: That is not what Rule 24 612 says, Mr. Jaroslawicz. The rule 25 also applies to deposition testimony. 26 1 J. Laudermilk 2 It's required only if the witness relied 3 on the document and influenced 4 testimony. 5 MR. JAROSLAWICZ: He obviously 6 brought them with him in his briefcase 7 and read them to prepare for the 8 deposition. They did not just happen to 9 come from his office in Massachusetts to 10 New York if he did not rely on them and 11 read them and make notes on them, which 12 he said he did. Therefore, I am 13 entitled to see them or at least to have 14 the court reporter mark them on the 15 reverse side without my seeing them so 16 we can show them to your Honor and your 17 Honor can rule on them. 18 THE JUDGE: I think it would be 19 useful to have them identified and you 20 can ask him about the documents. It 21 strikes me that the notations may 22 reflect his thought processes and I 23 think it would be hard to show that he 24 relied on his notes in refreshing his 25 recollection in answering the questions. 27 1 J. Laudermilk 2 MR. JAROSLAWICZ: I don't think 3 so. Why else would he make notes but to 4 refresh his recollection? 5 THE JUDGE: I think you are 6 putting the cart before the horse, Mr. 7 Jaroslawicz. You have come to me 8 prematurely. I need more facts. I 9 think you should question the witness 10 further and if there's still a problem, 11 then come back to me. 12 MR. JAROSLAWICZ: How about 13 marking the documents on the reverse 14 side without my looking at them so that 15 we know what we're talking about? 16 THE JUDGE: You can mark them, 17 but I think it would be useful and you 18 heard Mr. Worthen say that he has no 19 problem with the identification of the 20 documents. 21 MR. JAROSLAWICZ: Unfortunately, 22 that's not right because I saw the 23 witness try to hide a document with red 24 writing in his briefcase and that's why 25 I want to mark them on the reverse side, 28 1 J. Laudermilk 2 so that we can show them to your Honor. 3 I see no harm in doing that. 4 MR. WORTHEN: Your Honor, that is 5 a grotesque mischaracterization of what 6 happened. Mr. Laudermilk pulled the 7 documents out of his briefcase where 8 they were stored. When I instructed him 9 that we were not going to turn them 10 over, he put them back in the briefcase. 11 There was no attempt to hide or do 12 anything. 13 MR. JAROSLAWICZ: He took one 14 piece of paper with red writing and 15 sought to stuff it in his briefcase and 16 I saw him do it while he had the other 17 documents in his hand. What Mr. Worthen 18 said is inaccurate and that's why I want 19 to mark the documents. 20 MR. WORTHEN: Those were the 21 notes, your Honor, that we objected to 22 turning over. 23 THE JUDGE: Do you object to 24 turning over all the documents or are 25 you objecting to turning over documents 29 1 J. Laudermilk 2 with the notes? 3 MR. WORTHEN: The notes, your 4 Honor. That's what we want to protect. 5 We will identify the documents. If 6 there are documents without notes, we 7 will turn those over. 8 THE JUDGE: May I make a 9 suggestion. I assume you are in a 10 location where you can make copies? 11 MR. JAROSLAWICZ: Yes, your 12 Honor. 13 THE JUDGE: Make copies of those 14 documents. Copy the documents with 15 notes, with the notes redacted and 16 indicate that the notes have been 17 redacted and then you will come back to 18 me if there is a further need to look at 19 the notes. 20 As I said before, if the notes 21 were written only recently, it would be 22 hard to show that you qualify under Rule 23 612 to require the production of the 24 notes. It is not automatic. 25 Where is the deposition being 30 1 J. Laudermilk 2 taken? 3 MR. JAROSLAWICZ: At my offices, 4 225 Broadway. 5 THE JUDGE: Are there yellow 6 stickies available? 7 MR. JAROSLAWICZ: Yes. 8 THE JUDGE: You can put them on 9 the documents. Take out the documents. 10 I will ask plaintiff's counsel to put 11 yellow stickies over where the notes are 12 and you will write redacted or whatever, 13 then have copies made. 14 MR. JAROSLAWICZ: I again ask 15 your Honor that we mark the back of the 16 original of these documents so we don't 17 have a problem with documents 18 disappearing. 19 MR. WORTHEN: Your Honor, the 20 documents are not going to disappear. 21 Mr. Laudermilk will keep them in his 22 possession. I will keep them if you 23 prefer in my possession, but they are 24 not going to disappear. 25 MR. JAROSLAWICZ: What's the harm 31 1 J. Laudermilk 2 in marking them? 3 THE JUDGE: Mr. Jaroslawicz, you 4 can question the witness and come back 5 to me and get a ruling if it is 6 necessary. In the meantime, while the 7 documents are being copied, I suggest 8 you read Rule 612. That's the federal 9 rule for that. 10 MR. WORTHEN: Your Honor, thank 11 you. 12 While we are here, can I raise 13 another issue briefly with you? As you 14 recall, your order of April 23rd granted 15 in large part the motion for protective 16 order that we had sought. You obviously 17 allowed the deposition today to go 18 forward on the sole issue of the 19 decision to terminate the franchises of 20 the defendants. There were three other 21 topic areas that you denied any inquiry 22 into, one of which, and I'm reading it 23 from the notice, the manner in which a 24 penalty was imposed and to determine the 25 penalty upon the defendants and the 32 1 J. Laudermilk 2 amount of that penalty. 3 The last five minutes of 4 examination were on exactly that topic. 5 I did place an objection on the record 6 to this line of inquiry, but since you 7 are here, I would like to cut it off, as 8 well as if Mr. Jaroslawicz intends on 9 going into Items 3 and 4, because again 10 those were the subject of your order. 11 THE JUDGE: When I drafted the 12 order, I don't think my general topic of 13 the reasons for termination necessarily 14 overlapped with Mr. Jaroslawicz's 15 deposition notice. Clearly, as I said, 16 the efforts to find ulterior motives is 17 just not an appropriate area of inquiry. 18 I cannot give you perspective guidance 19 other than to say questioning regarding 20 termination may or may not -- I don't 21 have the deposition notice in front of 22 me -- overlap with those areas. As far 23 as the penalties imposed, you will have 24 to tell me about that. 25 MR. WORTHEN: That actually, your 33 1 J. Laudermilk 2 Honor, has to do with post suit 3 settlement negotiations, all of which, 4 of course, are barred by Rule 408, but 5 nevertheless, it has been an area of 6 inquiry by the defendants through their 7 documents and through their original 8 30(b)6 notice. That was part of the 9 basis that we sought a protective order 10 with a penalty, as he phrased it, or 11 negotiated settlement, which are 12 irrelevant and not the proper area of 13 inquiry. 14 THE JUDGE: Is that the penalty 15 you are talking about, Mr. Jaroslawicz? 16 MR. JAROSLAWICZ: The way I 17 understand it, as part of the 18 termination they were seeking a 19 "penalty" and that's what I'm talking 20 about. The penalty imposed as part of 21 the termination. 22 THE JUDGE: I don't understand. 23 What penalty? What penalty can they 24 impose other than terminating and 25 seeking any payment? 34 1 J. Laudermilk 2 MR. JAROSLAWICZ: They wanted 3 money. 4 THE JUDGE: Payments due. 5 MR. JAROSLAWICZ: Not payments 6 due, but a penalty they called it. 7 THE JUDGE: Liquidated damages? 8 MR. JAROSLAWICZ: Not liquidated. 9 They called it a penalty and that's what 10 I am inquiring into. 11 THE JUDGE: That's in the 12 agreement, the license agreement? 13 MR. WORTHEN: No, your Honor. 14 It's certainly not. That was part of a 15 negotiated settlement amount. 16 Occasionally we will ask, as I think we 17 discussed before you in terms of 18 settlement, often times we will seek not 19 only attorneys fees, but if the 20 franchisee is going to be permitted to 21 sell the shop, as part of a negotiated 22 settlement that there would be a fee 23 associated with that. 24 THE JUDGE: That's the penalty 25 that you're talking about, Mr. 35 1 J. Laudermilk 2 Jaroslawicz? 3 MR. JAROSLAWICZ: I am not sure. 4 They said a penalty. Where it comes 5 from, I don't know. We think it's an 6 attempt to take advantage of the 7 franchisee, but they refer to it as a 8 penalty as part of the termination. 9 THE JUDGE: This penalty that you 10 are talking and questioning the witness 11 about, a penalty in connection with 12 settlement discussions, Mr. Jaroslawicz? 13 MR. JAROSLAWICZ: In connection 14 with the termination. 15 THE JUDGE: No. No. With the 16 settlement negotiations and related by 17 Mr. Worthen? 18 MR. JAROSLAWICZ: There was a 19 proposed settlement which also included 20 a demand for a penalty, but that does 21 not obviate the right to ask him about a 22 penalty they imposed as part of the 23 franchise termination, the way I 24 understand it. 25 MR. WORTHEN: Your Honor, we have 36 1 J. Laudermilk 2 no objection. If Mr. Jaroslawicz wants 3 to ask Mr. Laudermilk if there is a 4 penalty associated with the termination, 5 because that is the one area that this 6 deposition is supposed to be about, we 7 have no objection in him asking that 8 question. However, I think what he -- I 9 don't want to characterize what's going 10 to be said. 11 THE JUDGE: Mr. Jaroslawicz, is 12 the penalty that you are seeking to 13 question Mr. Laudermilk about the 14 penalty that was referred to by the 15 plaintiff in connection with the 16 settlement negotiations after the 17 termination? 18 MR. JAROSLAWICZ: That's not the 19 one I was referring to, but I don't know 20 if there are two penalties or more 21 because no one is willing to tell me 22 anything so far. 23 THE JUDGE: Mr. Jaroslawicz, any 24 penalties relating to settlement 25 discussions that have nothing to do with 37 1 J. Laudermilk 2 the license agreement and any penalties 3 imposed on the license agreement cannot 4 be inquired into. However you phrase 5 liquidated damages or penalties that are 6 permitted in connection with the 7 termination, that you can question the 8 witness about. You have a choice of 9 foundation. I don't know what exactly 10 you're seeking information about. If it 11 is as related by Mr. Worthen, then I 12 agree with him. It goes beyond the 13 scope of the questioning as permitted 14 and it relates to evidence that is not 15 going to be admissible. 16 Anything else? 17 MR. WORTHEN: Not from the 18 plaintiff's perspective, your Honor. 19 Thank you. 20 MR. JAROSLAWICZ: Your Honor, are 21 you denying my application to mark these 22 documents on the reverse side? 23 THE JUDGE: Yes. We have 24 counsel's representation that they will 25 be maintained. We certainly will have 38 1 J. Laudermilk 2 copies of the documents without the 3 notes and if after further questioning 4 of the witness there is a need to come 5 back to me with a new application or a 6 disclosure of the documents, then I will 7 entertain it, but please review Rule 612 8 before you make your next application. 9 The documents will be copied without the 10 notes and turned over to the defendants. 11 MR. WORTHEN: Thank you, your 12 Honor. 13 MR. JAROSLAWICZ: Your Honor, can 14 I inquire as to when he made those 15 notes? 16 THE JUDGE: Yes. You can make 17 inquiry of the documents and you can lay 18 your foundation. Just don't ask him 19 what he wrote. 20 MR. JAROSLAWICZ: Thank you. 21 MR. WORTHEN: Thank you. 22 CONTINUED EXAMINATION BY MR. JAROSLAWICZ: 23 Q Mr. Laudermilk, when did you make 24 notes on these documents? 25 A On the train down here this 39 1 J. Laudermilk 2 morning. 3 Q What was your purpose in making 4 those notes? 5 A To refresh my memory. 6 Q To refresh your memory to prepare 7 to testify at this deposition; is that right? 8 A That's right. 9 Q How many such pages of notes did 10 you make? 11 A I just went through the documents 12 and made notes when I thought it was 13 appropriate. 14 Q Did you make notes on the 15 documents or separate page of notes? 16 A On the documents. 17 Q Did you also make a separate page 18 of notes? 19 A No. 20 Q Do you know how many such 21 documents there are? 22 A No. 23 Q Do you know how many such pages 24 there are? 25 A No. 40 1 J. Laudermilk 2 Q Would you please count the pages 3 so we can put it on the record? 4 MR. WORTHEN: Go ahead. 5 How many pages of the documents 6 or how many pages of the notes? 7 MR. JAROSLAWICZ: Can you read 8 back the question. 9 (Whereupon, at this time, the 10 requested question was read by the 11 reporter.) 12 A There are forty-three pages. 13 Q Does that include the single 14 handwritten sheet that you put into those 15 papers? 16 A Yes. That was just part of the 17 documents that I had pulled out just for ease 18 of sticking it in my jacket. 19 Q That's the one with the red 20 writing on it? 21 A Yes. 22 Q When you discussed this "penalty" 23 with Jack Sullivan, was it before or after the 24 notice of termination went out? 25 A After. 41 1 J. Laudermilk 2 Q Did you discuss the penalty with 3 Jack Sullivan before the notice of termination 4 went out? 5 A No. 6 Q Did you discuss the penalty with 7 Mr. Horn before the notice of termination went 8 out? 9 A No. 10 Q Did you discuss the penalty with 11 anyone before the notice of termination went 12 out? 13 A No. 14 Q As part of the notice of 15 termination, were you seeking any liquidated 16 damages or penalty of any sort? 17 A No. 18 Q As part of the notice of 19 termination, did you tell the franchisee what 20 they could do with their store? 21 A There's a paragraph in the note 22 that says termination which addresses that. 23 Q That is the one the lawyers 24 wrote? 25 A Yes. 42 1 J. Laudermilk 2 MR. JAROSLAWICZ: Do you want to 3 give me those documents without the 4 notes on them, please? 5 MR. WORTHEN: Can we go off the 6 record for a moment. It's going to take 7 a while. 8 (A discussion was held off the 9 record.) 10 MR. WORTHEN: We will copy them 11 downstairs and bring them back. 12 (Whereupon, a recess was taken.) 13 MR. WORTHEN: We are back on the 14 record. 15 (Mr. Worthen hands documents to 16 Mr. Jaroslawicz.) 17 MR. JAROSLAWICZ: Can I have 18 these documents marked as Defendants' 19 Exhibit A of this deposition. 20 (Whereupon, at this time, the 21 reporter marked the above-mentioned 22 documents as Defendants' Exhibit A for 23 identification.) 24 CONTINUED EXAMINATION BY MR. JAROSLAWICZ: 25 Q Did you ever discuss Cindy and 43 1 J. Laudermilk 2 Sam with Karen Gelzer, G-E-L-Z-E-R? 3 A No. 4 Q Do you know who Karen Gelzer is? 5 A Yes. 6 Q Who is Karen Gelzer? 7 A I believe she's a loss prevention 8 investigator. 9 Q Are you authorized to terminate a 10 franchise without consulting with anyone? 11 A Yes. 12 Q Is that in writing somewhere? 13 A No. 14 Q When you terminate a franchise, 15 do you make a note anywhere in writing or 16 enter it into the computer system? 17 A No. 18 Q How does the company know that 19 you have terminated a franchisee? 20 A I have a litigation file in cases 21 that involved termination that I don't make a 22 note upon terminating a franchisee. 23 Q How does the company learn that 24 you decided to terminate a franchisee? 25 A I don't know what you mean by the 44 1 J. Laudermilk 2 company. Do you mean my superior? 3 Q Your supervisors, people that 4 report to you, how do they know that you have 5 decided to terminate a franchisee? 6 A The person I report to, I usually 7 have a conversation with him about it before I 8 do anything. 9 Q Who is that person? 10 A The general counsel, Steven Horn. 11 Q You already told us that you 12 don't remember what Mr. Horn said to you and 13 what you said to him about terminating Cindy 14 and Sam. 15 When you say you don't remember, 16 you don't remember the substance of anything 17 you said, as well as the words? 18 A That's correct. 19 Q You don't remember how long this 20 conversation took with Mr. Horn? 21 A No. 22 Q Did you ever speak to Cindy or 23 Sam about terminating their franchise? 24 A No. 25 Q Did you ever go to the stores in 45 1 J. Laudermilk 2 Brooklyn before deciding to terminate their 3 franchise? 4 A No. 5 Q You based it solely upon what 6 your investigation unit told you? 7 A That's correct. 8 Q In the years you have been with 9 Dunkin' Donuts, has your investigation unit 10 ever made a mistake, to your knowledge? 11 A No. 12 Q Before you terminated Cindy and 13 Sam, did you attempt to find out from them 14 what had happened? 15 A No. That would be the function 16 of the loss prevention department through the 17 interviews they conducted. 18 Q Did you make your decision solely 19 upon what's given to you by the loss 20 prevention department? 21 A Yes. 22 Q The person you spoke to in the 23 loss prevention department was Jack Sullivan? 24 A That's correct. 25 Q You have no recollection at all 46 1 J. Laudermilk 2 of what he said to you and what you said to 3 him? 4 A That's correct. 5 Q Did you ever speak to Mr. 6 Merriman (phonetic) about Cindy and Sam's 7 stores? 8 A No. 9 Q Did you ever speak to Mr. Hohmann 10 about Cindy and Sam's stores? 11 A No. 12 Q Do you know who Mr. Merriman is? 13 A Yes. 14 Q Who is Mr. Merriman? 15 A An operations manager. 16 Q Do you know how Mr. Merriman 17 found out to take over Cindy and Sam's stores? 18 A No. 19 Q Did you ever have a conversation 20 with Mr. Merriman saying not to put in writing 21 anything regarding the termination of Cindy 22 and Sam's stores? 23 A No. 24 Q Do you know that Mr. Hohmann 25 directed Merriman not to use e-mail regarding 47 1 J. Laudermilk 2 the termination of Cindy and Sam's stores? 3 A I don't know that. 4 Q Have you ever seen any e-mails 5 sent from Mr. Hohmann to Mr. Merriman in this 6 case? 7 A No. 8 Q When you terminate a franchise, 9 is there some form that you fill out? 10 A No. 11 Q Do you have to have anyone's 12 approval at all before you terminate a 13 franchise? 14 A No. 15 Q Solely your decision? 16 A Yes. 17 Q When you terminate a franchise, 18 do you give them an opportunity to sell the 19 store? 20 A Not unless it's in the settlement 21 discussion. 22 Q What happens if there's no 23 settlement discussion, what happens to the 24 stores if you terminate a franchise? 25 A If the court agrees with our 48 1 J. Laudermilk 2 decision, they are terminated and closed. 3 Q The stores are closed? 4 A They will close if the court 5 agrees with our termination notice. 6 Q When you say the stores will 7 close, does that mean Dunkin' Donuts gives up 8 their franchise? 9 A That means the franchisees give 10 up their franchise. 11 Q What happens to the stores? 12 A They close. 13 Q When you say close, do you mean 14 you close them down physically? 15 A We don't do it -- there's an 16 order from the court, generally speaking, 17 enjoining their continued operation. 18 Q Do you know when Cindy and Sam, 19 when they got the termination notice, they 20 agreed to stop using the Dunkin' brands? 21 A I don't recall. 22 Q No one told you that until today? 23 A I don't believe so. 24 Q If the person who terminated the 25 franchise would be acceptable to you for Cindy 49 1 J. Laudermilk 2 and Sam to give up using the Dunkin' name? 3 A Acceptable to us to resolve this 4 case? 5 Q You terminated the franchise. 6 What do you want them to do once you terminate 7 the franchise? 8 A We want them to stop using our 9 trademarks, close the store, pay our legal 10 fees and any damages that we might have. 11 Q Do you know that Mr. Merriman 12 told Cindy and Sam to continue operating the 13 store? 14 A No. 15 Q If Mr. Merriman did that, that 16 would be wrong on his part? 17 A He should not be giving advice. 18 It's inconsistent with the legal position that 19 the company is taking. 20 Q Do you know if, in fact, Mr. 21 Merriman told Cindy and Sam to keep running 22 the store just the way they were doing? 23 A No. 24 Q Do you know that Cindy and Sam 25 wrote through counsel saying we are willing to 50 1 J. Laudermilk 2 take off the Dunkin' name? 3 A That would not be acceptable to 4 the company, but no, I did not know that. 5 Q What would be acceptable to the 6 company once you terminate a franchise? What 7 is the franchisee supposed to do? 8 A To take off the Dunkin' name and 9 respect and honor the post-term restrictions 10 on the compensation. In other words, they 11 cannot continue to run a coffee and donut 12 business, which is probably what they were 13 suggesting of Mr. Merriman. 14 Q Anything else they're supposed to 15 do other than take off the Dunkin' name and 16 not run a coffee and donut business? 17 A The termination provisions of the 18 franchise agreement speak for themselves. 19 They require turning or returning manuals to 20 the company. There is a whole series of 21 things when the business relationship ends and 22 it's incumbent upon them to do it. 23 Q Do you know if Cindy and Sam 24 offered to do that? 25 A No. 51 1 J. Laudermilk 2 Q Who did Cindy and Sam talk to to 3 give all the stuff back? 4 A Mr. Merriman. 5 Q What were Cindy and Sam to do if 6 Mr. Merriman told them to continue running the 7 store just like they had been? 8 A I don't know if that's true, but 9 if it's true, you know, they have lawyers. 10 They have advice of counsel. They can make 11 decisions on what they wish to do 12 independently of Mr. Merriman. 13 Q Is it your position that after 14 the franchise was terminated, they should not 15 have listened to Mr. Merriman? 16 A Right. If that's what Mr. 17 Merriman told them to do, he shouldn't have 18 told them that and they should have 19 acknowledged the termination notice and 20 followed the instructions of the termination 21 notice, which is close the store. If you 22 continue to operate, we will let the court 23 decide whether or not the termination notice 24 should be enforced. 25 Q Did you put that anywhere in your 52 1 J. Laudermilk 2 termination notice, that you want them to 3 close the store? 4 A Yes. 5 Q Who at Dunkin' are Cindy and Sam 6 supposed to contact about closing the store 7 and returning everything? 8 A I believe I answered that, Mr. 9 Merriman. 10 Q Anybody else other than Mr. 11 Merriman? 12 A No. He's the primary contact for 13 the franchisees regarding the operations. 14 Q If Merriman told them to continue 15 operating the store the way they should have 16 been, they should not listen to Mr. Merriman? 17 A That's true. 18 Q Do you have any writing to Cindy 19 and Sam that tells them that if Merriman tells 20 them to continue operating the store, they 21 shouldn't listen to him? 22 A No. If Mr. Merriman said as long 23 as you're going to operate the store, operate 24 it in accordance with our standards, that's 25 one thing. That would be an appropriate thing 53 1 J. Laudermilk 2 for him to say to them, which is not 3 inconsistent with the termination notice which 4 says close, but if you continue to operate 5 we'll let a court decide whether or not the 6 notice should be enforced. 7 Q Are you now claiming that 8 Merriman told them to operate in accordance 9 with Dunkin', but he did not tell them to 10 continue to operate? 11 A I don't know what he told. I'm 12 just giving you the company policy. 13 Q Is there any writing in the 14 company policy that was given to Cindy and Sam 15 so they would know what to do? 16 A The termination notice instructs 17 them what to do. 18 Q If Merriman told them to continue 19 operating the store, is there any writing to 20 tell them to disregard Merriman? 21 A No, but that's if he told them to 22 continue operating the store. I don't know if 23 that's true. I already said that if he said 24 that, he should not be giving advice. It's 25 inconsistent with the legal department's 54 1 J. Laudermilk 2 notice of termination and position. 3 Q Have you ever read Mr. Merriman's 4 testimony in this case? 5 A No. 6 Q Has anyone told you what's in Mr. 7 Merriman's testimony? 8 A No. 9 Q Did you ever ask Mr. Merriman 10 what he told Cindy and Sam to do when they 11 were terminated? 12 A No. 13 MR. JAROSLAWICZ: I have no 14 further questions, subject to getting 15 the notes. 16 MR. WORTHEN: I have a couple of 17 questions. 18 EXAMINATION BY MR. WORTHEN: 19 Q You testified about what is a 20 franchisee supposed to do in the event of 21 termination just a few minutes ago. 22 Do you know what a lease rider 23 is? 24 A Yes. 25 Q Can you explain to us what that 55 1 J. Laudermilk 2 is? 3 A A lease rider is a document that 4 in some locations we have and others we don't, 5 but if we have it, it permits us to take over 6 the lease and cure any defaults of the 7 franchisee if we decide to do that at the time 8 under the circumstances. 9 Q Do you know whether either of the 10 defendants' shops have lease riders? 11 A I don't know. 12 Q When is a decision made on 13 whether to exercise the company's rights under 14 a lease rider? 15 A We wouldn't make that decision 16 until after the court rules. 17 Q If the court was to rule 18 enforcing the termination and you wished to 19 exercise or the company wished to exercise its 20 lease option rights, they would do so at that 21 time? 22 A Yes. 23 MR. WORTHEN: No further questions. 24 CONTINUED EXAMINATION BY MR. JAROSLAWICZ: 25 Q Where is that in writing, that 56 1 J. Laudermilk 2 the company can wait until the court rules 3 before exercising its lease option? 4 A The landlord would have to give 5 us possession and the landlord cannot give us 6 possession under the lease rider until the 7 store closes, the franchisee shuts down the 8 business, and that's not going to happen, 9 unless they decide voluntarily to do it, which 10 they haven't, until the court rules. 11 Q What happens to the fixtures that 12 the franchisee put in? 13 A They belong to the franchisee. 14 Q So the franchisee can remove the 15 fixtures? 16 A Yes. 17 Q What happens to the improvements 18 that the franchisee put in? 19 A The same answer. 20 Q A franchisee can remove all of 21 that? 22 A That's between the franchisee, 23 the landlord, and his financing institution, 24 but we are not a party to that. 25 Q This lease rider, did you ever 57 1 J. Laudermilk 2 tell Cindy and Sam that you were going to 3 exercise it or not when you sent them the 4 termination notice? 5 A No. There's a provision in the 6 notice that says that if we have one, we will 7 decide later whether we are going to exercise 8 it. 9 Q How are Cindy and Sam supposed to 10 know if you claim there is a lease rider? 11 A It's really not important to them 12 whether we have the right to take over the 13 lease. 14 Q Does Cindy and Sam have a right 15 to sell their store when they terminate the 16 franchise? 17 A If we have a lease rider, they 18 would lose their right to occupy the premises. 19 They have a right to the signs, the equipment, 20 perhaps the leasehold improvements, but they 21 have no right to sell the franchise. 22 Q Do they have a right to sell the 23 store, the fixtures, the improvements? 24 A That which they own they can 25 sell. All we own is the franchise and if 58 1 J. Laudermilk 2 that's terminated, they cannot sell the 3 franchise. If we have a right to take over 4 the lease, then we're going to take over the 5 lease. 6 Q How long can you wait to take 7 over the lease; a year, two years, three 8 years? 9 A Our operating principle is within 10 thirty days after the court rules and the 11 store closes and the landlord is in a position 12 to transfer possession of the lease to us. 13 Q How long has it taken for the 14 court to rule in the past? Did it take them a 15 year, two years, three years? 16 A It can take all of those. 17 Q In the meantime, the franchisee 18 stays in there and works? 19 A If they wish to. 20 Q What happens if they don't wish 21 to? 22 A Then they can close and we will 23 end the relationship, and make a decision on 24 the lease rider. 25 Q But they have to close first? 59 1 J. Laudermilk 2 A Yes. 3 Q Did you tell that to Cindy and 4 Sam, that they have to close first? 5 A It's not a concern for Cindy and 6 Sam. We have a private right to take over 7 that lease. It would not affect their 8 decision in this case at all whether or not we 9 have the right to take over the lease since 10 they have a restriction in continuing to 11 operate for two years at that location and 12 sell coffee and donuts. If they want to 13 continue there and we don't have a right to 14 take over the lease and sell pizza, then they 15 can do that. 16 Q And you told them that? 17 A No. We don't have to give them 18 legal advice. We would not give them legal 19 advice. It's for the lawyers. 20 MR. JAROSLAWICZ: I have no 21 further questions. 22 MR. WORTHEN: Nothing further. 23 (Time noted: 2:00 p.m.) 24 25 60 1 2 A C K N O W L E D G E M E N T 3 4 STATE OF ) 5 ) ss 6 COUNTY OF ) 7 8 I, JACK LAUDERMILK, hereby 9 certify that I have read the transcript of my 10 testimony taken under oath in my deposition of 11 May 20, 2008; that the transcript is a true, 12 complete and correct record of my testimony, 13 and that the answers on the record as given by 14 me are true and correct. 15 16 17 _______________________ 18 JACK LAUDERMILK 19 20 Signed and Subscribed to 21 before me this _____ day 22 of ______________, 2008. 23 ________________________________ 24 Notary Public, State of 25 61 1 2 I_N_D_E_X _ _ _ _ _ 3 WITNESS PAGE _______ ____ 4 JACK LAUDERMILK 5 Examination by: 6 Mr. Jaroslawicz 4, 55 7 Mr. Worthen 54 8 9 E X H I B I T S _ _ _ _ _ _ _ _ 10 DEFENDANTS' DESCRIPTION PAGE ___________ ___________ ____ 11 A 43-Page Document 42 12 13 14 15 16 17 18 19 20 21 22 23 24 25 68 1 2 C E R T I F I C A T E 3 4 STATE OF NEW YORK ) 5 ) ss 6 COUNTY OF NEW YORK ) 7 8 I, ALISON DUNNE, a Shorthand Reporter 9 and Notary Public within and for the State of 10 New York, do hereby certify: 11 That JACK LAUDERMILK, the witness whose 12 examination is hereinbefore set forth, was 13 duly sworn by me and that this transcript of 14 such examination is a true record of the 15 testimony given by such witness. 16 I further certify that I am not related 17 to any of the parties to this action by blood 18 or marriage and that I am in no way interested 19 in the outcome of this matter. 20 IN WITNESS WHEREOF, I have hereunto set 21 my hand this 5th day of June, 2008. 22 23 24 ______________________ ALISON DUNNE 25