Lebewohl et al v. Heart Attack Grill LLC et al

Filing 47

ENDORSED LETTER: addressed to Judge Paul E. Engelmayer from William W. Chuang dated 1/11/2012 re: Therefore, Plaintiffs ask far! JAG to identify all members of the Diet Center LLC. Furthermore, as Plaintiff will be deposing Mr. Basso and the corporate defendants this Friday, January 13, Counsel requests that the Court compel HAG to disclose the identities of their members before that date. ENDORSEMENT: HAG is required to identify any persons when Mr. Basso referenced as part-owners. Any investor who is other than a purely passive investor must be identified. An investor who has the power, whether or not to act on behalf of HAG, or it's affiliates including by signing an agreement, must be identified. If this information is not forthcoming during tomorrow's deposition, the parties may call the Court. In the event of non-compliance tomorrow with the Court's orders, the Court will schedule a second certification date for the deposition. (Signed by Judge Paul A. Engelmayer on 1/12/2012) (js)

JAKUBOWITZ & CHUANG LLP

ATI"ORNEYS AT LAW
401

BROADWAY, SUITE 408
I\'EW YORK. NY 10013

WILLIAM W. CHUANG
TOVIA ]AKUBOWITZ

[phone]
[phone]

[e-mail]
[e-mail]

usn. SIl,\,V

January 11, 2012

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BY HAND

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Hon. Judge Paul A. Engelmayer
U.S. District Judge
United States Courthouse
500 Pearl St.
New York, NY 10007-1312
RE:

Lebewohl et al. v. Heart Attack Grill LLC, et al., Case No. ll-cv-3153.

Dear Judge Engelmayer:
My firm represents the Plaintiffs in this case. HAG has sought clarification of the Court's
Order compelling HAG to disclose all "HAG owners and managers." HAG asserts that an LLC
does not have any owners but rather only "owner-members" who are investors, and that
only a person with "active managerial input" is a manager.
There is no merit to HAG's arguments. The Diet Center LLC, in its Operating Agreement,
states that its members are managers. HAG has previously dismissed the relevant
Operating Agreement clauses as merely "legal words" but legal words have legal effects.
Consequently, the members ofthe Diet Center LLC are managers regardless of how
members of a limited liability company are generally treated otherwise.
As to owners, Jon Basso submitted a declaration in support of HAG's Motion To
Telephonically Appear At Mediation. In the first paragraph of that declaration, Mr. Basso
states that the Diet Center LLC is "partly owned by others." Plaintiffs seek the disclosure of
those other owners.
To be clear, members of the Diet Center LLC are not passive investors. The Operating
Agreement allows members to enter into contracts on behalf of the company. In fact, Fred
MossIer, who Plaintiffs believe to be a member, signed the licensing agreement for the HAG
Marks on behalf of the Diet Cen~er. Even if Mr. Mossier does not possess active managerial
input, he certainly has relevant knowledge concerning the HAG Marks at dispute.
Therefore, Plaintiffs ask far! JAG to identify all members of the Diet Center LLC.

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Furthermore, as PIamtiffs will b
.
.
.
~nday, January 13 we b pectfully request Mr. Basso andt the corporate defendants this
res
e deposmg
Identities of their
that the Co
m ers before that date.
ur compel HAG to disclose the

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Very Truly Yours,

M.!-. /J/J . ­
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William W. Chuang, Esq.
Enclosure
CC:

Rob ert C. Kain, Jr. (bye-mail)
Darren Spielman (bye-mail)

UNITED STATES DISTRICT JUDOB

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