Lebewohl et al v. Heart Attack Grill LLC et al

Filing 45

ENDORSED LETTER addressed to Judge Paul A. Engelmayer from Robert Karin, Jr. dated 1/10/2012 re: Counsel for the defendants write to seek clarification of the Court's Order, D.E. 42, compelling HAG to disclose all "HAG owners and manager[s]." ENDORSEMENT: HAG is warned that the identity of a shareholder who has no role in managing HAG's business need not be disclosed. (Signed by Judge Paul A. Engelmayer on 1/12/2012) (ft)

900 Southeast Third Avenue. Suite 205
Fort Lauderdale, Florida 33316
Telephone: [phone]
Facsimile: [phone]

Kain & Associates
Attorneys at Law
Complex I P. com®

www.ComplexIP.com

Patent - Trademark - Copyright - Computer Law
Trade Secret - Domain Disputes

Robert C. Kain. Jr.
[e-mail]
Darren Spielman [e-mail]

USJ)(" SI)"";"

January 10,2012
(Federal Express)

noel \1l'1
[UfTIH)' 1i \ LL Y Fll EO

not ::: __.__________._

Paul A. Enge1mayer
United States District Judge
United States District Court
Southern District ofNew York
500 Pearl Street, Room 670
New York, NY 10007
[phone]
Re:

DAll:. HU,D:

Lebewohl. 2nd Ave Deli v. Heart Attack Grill, LLC .. HAG. LLC. and Jon Basso
U.S. District Court, S.D. New York, Case No. ll-CIV-3153-PAE-JCF

Our Ref.: 5087-23

Dear Judge Engelmayer:
We represent Defendants HAG in this action. HAG seeks clarification of Your Honor's
Order, D.E. 42, compelling HAG to disclose all "HAG owners and manager[s]." HAG seeks
guidance given the fact that:
(a) in an earlier Order, the Court stated that "investors" need not be disclosed to Plaintiffs
2nd AVE DELI (see Order, D.E. 39 "As to interrogatories that call for the identification of (or
communication among) HAG investors, the Court declines to enforce those interrogatories";
(b) in the Order D.E. 42 subject to clarification herein, the Court groups owners, managers
and investors together ("Thus, ifan owner or manager is also an investor, their identity as an owner
or manager cannot be hidden under the cloak ofinvestor status"). At the hearing on January 4, 2012,
counsel for HAG was under the impression that disclosure of "any person having an active
managerial input" was required, whether that person also is classified as an owner or an investor.
HAG has made such disclosure to 2nd AVE DELI; but
(c) the current Order, D.E. 42, compels disclosure of all owners and managers.

1

January lO, 2012
Page 2
HAG has no issue regarding "managers" and affirms that its current interrogatory answers
fully disclose all persons who have any input into the management of the Defendant LLCs without
regard to whether that person is an owner, a member or an investor.
HAG's concern is that the word "owner" in the Order D.E. 42 has no specific legal meaning
in the context of this litigation. The owner or owners of a corporation are shareholders. Owner­
shareholders may also be involved in the management of the corporation. Corporations have
directors serving as managers and executive officers as managers. However, the owners ofa limited
liability company (LLC) are "members." Therefore, investors in an LLC are owner-members.
HAG has no concern over disclosure ofanyone who has managerial input into the operation
of the LLC Defendants. Such disclosure has been made.
However, given the uncertain meaning ofthe term "owner" used in the Order D.E. 42, HAG
seeks clarification ofthe Order.
If the Court believes all owners of the corporate HAG defendants must be disclosed, this
Order then covers all LLC members and all LLC investors (all LLC investors are LLC members).
However, ifthe Order is directed to anyone who has managerial input into the operation ofthe LLC
Defendants, then HAG has complied with this disclosure order weeks ago.
WHEREFORE, HAG seeks clarification ofthe scope of"owner" in the disclosure Order D.E.
42.
Sincerely,

lsI RobertKain /")

Robert C. Kain, Jr., for the Firm

Counsel for Defendants HAG

G:IRCK\CUENTS\Heart-Attack(HAG)\Lebewohl-2nd-Ave-Deli-v-Hean-Attack\Ltr-Kain-to-Court-J-Engelmayer-recon-20120110.wpd

HA C;
1(\ MAA'!J~

IS IfJrrict
HAG

-tf,.,~

-fi11

,Jy,t'7 uf ':' s~l{l!'l;o IrJev ~ IMr

b"/ni~S l\etI "ot

be dtsrMJd/

I

UNlTBD STATES DISTRICT JUDOB

2