FILED: NEW YORK COUNTY CLERK 08/14/2020 01:18 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 376 RECEIVED NYSCEF: 08/14/2020

EXHIBIT 2

Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 1 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

MONICA S. HORVATH - SENIOR COURT REPORTER

1

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK: CIVIL TERM PART 

- - - - - - - - - - - - - - - - - - - - - X

BLT STEAK, LLC AND BLT FISH, LLC,

Plaintiff,

INDEX NUMBER: 

- against - 151293/13

LIBERTY POWER CORP., L.L.C. d/b/a 

LIBERTY POWER NEW YORK, and

LIBERTY POWER HOLDINGS, LLC.

Defendants. 

 - - - - - - - - - - - - - - - - - - - - - X

Teleconference 

New York, New York

August 12, 2020

BEFORE:

 HONORABLE SHLOMO HAGLER, Justice

 

APPEARANCES:

FINKELSTEIN, BLANKINSHIP, FREI-PEARSON & GARBER 

Attorney for the Plaintiffs

One North Broadway 

White Plains, New York 10601 

BY: TODD GARBER, ESQ., 

 BRADLEY SILVERMAN, ESQ.,

 

GREENBERG TRAURIG LLP 

Attorney for the Defendant

54 State Street 

Albany, New York 12207 

BY: CYNTHIA NEIDL, ESQ., 

APPEARANCES CONTINUED:

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 2 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

2

ECKERT, SEAMANS, CHERRIN & MELLOT

 Attorneys for the defendant

1717 Pennsylvania Avenue

Washington, D.C. 20006

BY: ROBERT GAFTNER, ESQ.,

 

MONICA HORVATH

 SENIOR COURT REPORTER 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 3 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

3

MR. GARBER: Your Honor, this is Todd Garber, from 

Finkelstein, Blankinship, Frei-Pearson & Garber, for the 

plaintiffs. And with me in the room is my associate -- 

sorry -- my colleague, Bradley Silverman. 

THE COURT: Okay, who's going to be speaking for 

the plaintiff? 

MR. GARBER: Mike Garber. 

Me, Your Honor. 

THE COURT: Okay. 

Counsel for the defendants? 

MS. NEIDL: Good morning, Your Honor.

This is Cynthia Neidl with Greenberg Traurig, for 

the defendant. 

THE COURT: You are alone? 

MR. GAFTNER: Rob Gaftner, with Eckert Seaman, also 

for the defendant. 

THE COURT: Okay, who is going to speak for the 

defendant? 

MS. NEIDL: Cynthia Neidl will. 

THE COURT: Okay. 

Anyone else on the phone? 

Counsel, Mr. Garber, we have to start again.

Can you just give your name, spell it and also your 

firm name and address? 

MR. GARBER: Yes, Your Honor.

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 4 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

4

Todd Garber, T-O-D-D, Garber, from Finkelstein, 

Blankinship, B-L-A-N-K-I-N-S-H-I-P, Frei-Pearson, 

F-R-E-I-P-E-A-R-S-O-N & Garber, we are located at One North 

Broadway, in White Plains, New York, 10601. 

THE COURT: Does your colleague want to state his 

appearance as well, Mr. Silverman? 

MR. SILVERMAN: Yes. 

This is Bradley Silverman, B-R-A-D-L-E-Y, last 

name, Silverman, S-I-L-V-E-R-M-A-N, same firm, also 

representing plaintiffs. 

THE COURT: Okay.

Defendant's counsel, Miss Neidl, you want to also 

give your information? 

MS. NEIDL: Sure. 

Cynthia Neidl, N-E-I-D-L, with the law firm of 

Greenberg, G-R-E-E-N-B-E-R-G, Traurig, T-R-A-U-R-I-G, LLP, 

the address is 54 State Street, in Albany, New York, 12207. 

THE COURT: And your colleague? 

MR. GAFTNER: This is Rob Gaftner, also here on 

behalf of the defendants. 

I'm here on behalf of Eckert Seamans, as well. My 

law firm is spelt, E-C-K-E-R-T, S-E-A-M-A-N, Cherin, 

C-H-E-R-I-N & Mellott, M-E-L-L-O-T-T. 

My last name Gaftner is spelt G-A-F-T-N-E-R. The 

address is 1717 Pennsylvania Avenue, Washington, DC, 20006. 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 5 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

5

THE COURT: Good morning. Welcome everyone. 

This is a motion for class certification by 

plaintiff. 

Mr. Garber, I guess you are going to proceed with 

the motion? 

MR. GARBER: Yes, Your Honor. 

THE COURT: Please, proceed. 

MR. GARBER: Your Honor, few cases are more 

appropriate for class certification than the present action. 

Liberty Power sold electricity to the plaintiffs 

and the other members of the class through uniformed 

contracts which represent that Liberty Power's variable rate 

will be based on an electricity market pricing. We already 

have evidence, evidence sufficient to defeat defendant's 

motion for summary judgment that Liberty did not in fact 

charge prices based on market pricing. 

So this is going to be a common question for the 

entire class; did Liberty breach the contract of its 

variable rate customers by not charging rates based on the 

electricity market; that is tried and true class 

certification breach of contract. 

Cases are legion certifying breach of contract 

class actions based on uniform misrepresentations such as 

the one alleged here. All the requirements of CPLR 901 and 

902 are plainly met. 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 6 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

6

Numerosity, is not even challenged with tens of 

thousands of Liberty's customers affected by their breach of 

contract. 

Commonality, is met and it's a common question for 

all the class members as to whether Liberty did in fact 

breach the contract by failing to charge a market based 

rate. 

Typicality, is similarly met because the similar 

course of conduct that affected the plaintiffs entering into 

contracts with Liberty Power, which represented that they 

would be charged a rate based on the market and Liberty not 

in fact charging such a rate applies equally to all of the 

other class members. 

Similarly, adequacy is met here as plaintiffs have 

diligently pursued these claims for upwards of seven years. 

They have sat for multiple depositions, responded to 

multiple rounds of discovery and retained counsel well 

versed in these kinds of cases. 

My firm is probably the leading firm in prosecuting 

these cases on behalf of classes across the country against 

these ESCO'S for similar conduct and Wachtel ESCO'S and 

similarly Wachtel Missry, the other counsel in this case has 

been pursuing these claims along with the plaintiffs for 

over seven years. 

The factors of 902 are met. 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 7 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

7

Similarly, the factors of 902, are met given the 

impracticability of individual claims brought by tens of 

thousands of Liberty's customers. 

This case, Your Honor, is on all fours with the 

Claridge case certified by the Honorable Judge Castiel of 

the Southern District of New York and I should know because 

I was counsel in that case. 

Defendant attempts to speak to that case in their 

papers on Page 37 stating that here unlike in Claridge, 

Liberty Power -- plaintiffs, did not allege that Liberty 

Power calculated its rate in a manner inconsistent with its 

contract. 

That's false, Your Honor. That is the claim here, 

that Liberty Power calculated its rate in a manner 

inconsistent with its contract. Identical to the 

allegations in Claridge. 

Similarly, defendants attempted to distinguish two 

other ESCO cases cited by plaintiffs which received 

certification at the settlement stage, that being the 

Edwards case and the Hamlet case. And defendants falsely 

state that those cases did not involve breach of contract 

claims, that this Court should disregard that. That is 

simply incorrect, and we point that out in our reply papers. 

In fact, every case for which we are aware that 

class certification has become an issue whether a contested 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 8 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

8

motion or at a settlement stage as it relates to breach of 

contract claims against an ESCO such as Liberty Power a 

court has certified the class. 

And, similarly, as I mentioned earlier, Your Honor, 

when you are dealing with uniform contracts, the cases that 

certify class actions are legion. So this Court would be 

breaking new ground by not certifying a class. 

Particularly, in light of the liberal reading given to 

901 and 902 pursuant to New York case law based on the 

legislative history when those statutes were enacted. And 

Your Honor recognized those -- that -- legislative history 

and the liberal view of 901 and 902 in your Hamsa decision. 

None of Liberty's arguments against certification 

hold water; they are just black letter, you know, playbook; 

oh, there's going to be unique defenses, it's going to be 

too onerous because there's too many class members. 

Your Honor, those are issues that defendants raise in every 

case and nothing special -- you know, there's nothing 

special here. 

The defendants raise, you know, standing and 

voluntary payment. Those are issues that have already been 

decided in this case and would apply in all class 

certifications anyway. So they are not a unique defendant, 

they actually support class certification, Your Honor. 

And Liberty's other main argument, Your Honor, is 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 9 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

9

that this Court should not certify a class because they 

essentially scammed too many customers and the data is too 

hard to get to so it would be too time consuming for them to 

get the data for all the class members. That would be a 

slippery slope, Your Honor, if courts start endorsing that 

defendants can avoid liability for their misdeeds based on 

poor recordkeeping and based on their being very effective 

in their breaches so that they affect tons and tons, 

thousands and thousands of people. 

Another argument that defendants raise that does 

not defeat certification is defendants claim that it matters 

in the manner in which class members signed up with 

Liberty Power but it doesn't, Your Honor. They say some 

people signed up because there was telemarketing, some 

people signed up door to door. All that matters is that 

eventually everyone was subjected to the same uniform 

contract which required Liberty Power to calculate its rate 

based on electricity market pricing and that Liberty Power 

did not comply with that contract and breached it equally 

for all class members. 

So what's left at that point Your Honor is 

calculating damages. And plaintiffs set forth in the expert 

declaration of Dr. Sinclair, two methodologies for 

calculating damages. One, based on the wholesale market 

price plus a reasonable margin. And, two, based on 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 10 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

10

comparison to the market supply charge which would be the 

potluck utility. Those are acceptable methodologies that 

comport with the expert's standards. 

Defendants attempt to backdoor a response not 

moving to strike or putting in a sur reply five months late, 

after the Court had already scheduled oral argument 

attempting to further address plaintiff's experts knowing 

that the plaintiff had fully addressed all the critiques 

that defendants had raised in their original opposition. 

All of which, Your Honor, don't go to the admissibility of 

the plaintiffs expert, they go to the weight to be applied. 

And notably even accepting the critique by the defendant's 

expert it doesn't show that the methodology could not be 

performed it would just make a different calculation at the 

end. But our expert surprisingly disagrees with the way in 

which the defendants think that we should calculate damages. 

So all of the standards of 901 and 902, are met. 

And, finally, Your Honor, as set forth in our 

papers when this Court certifies the class, this Court 

should hold that the burden of the cost of the notice should 

be borne by Liberty Power. 

With that, I invite any questions that the Court 

may have or I pass this on to defense counsel. 

THE COURT: Okay, opposition, please. 

MS. NEIDL: Thank you, Your Honor. 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 11 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

11

On this motion plaintiff's burden was to come 

forward with evidence establishing each of the various 

prerequisites for class certification. And the argument 

shows plaintiffs have come forward with nothing. 

What they say is, look, a lot of courts have 

certified classes like this against other ESCO'S involving 

other claims involving other contract provisions and you 

court would be wrong not to just blindly follow what those 

court's did. 

What is noticeable is that plaintiffs have failed 

to come forward with an affidavit from a single Liberty 

Power customer alleging that they understood that the rate 

chart of Liberty Power's terms and conditions guaranteed 

them a lower rate than what they were charged, a market 

based rate or anything that would support an inference that 

there is a class of aggrieved punitive plaintiffs out there. 

In support of their motions, plaintiffs primarily 

rely on other cases involving other ESCO'S and expert 

testimony that's based on assumptions that are unsupported 

and offering conclusions based on the expert's subjective 

opinion that ESCO's variable rates should be lower. 

This case is unlike any of the ESCO cases heavily 

relied on by the plaintiff. All the cases cited by 

plaintiff involve main plaintiffs who are consumers. None 

involve a sophisticated commercial enterprise with inhouse 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 12 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

12

counsel, a CFO, a building department and a class that is 

inclusive of both consumers and commercial entities. 

Here, the proposed class would include large 

commercial entities; entities that negotiated a variable 

rate and sophisticated consumers like Lowe's, JC Penny, IBM, 

Verizon, Ryder Truck Rental, Dollar Tree Store. Most of the 

cases relied on by plaintiff involve allegations of 

deceptive and misleading conduct. And if a contract claim 

were involved the allegations whether the ESCO failed to 

charge rates that were calculated according to the agreed 

upon factors that's not what they allege here. There's no 

dispute that the way that Liberty Power calculated the rate 

was consistent with a contract. 

Their expert uses the very same components that 

Liberty Power used. The difference is that the expert 

cherry picks the lowest fictional rate that he can come up 

with and says that's the rate that should have been charged 

even though none of the punitive class members could have 

gotten that rate anywhere either from another ESCO or from 

the utility. It's a fictional rate. 

In all the other class cases and in particular 

Claridge, which was cited, there there was a specific 

calculation. And through deposition testimony it was shown 

that the method of calculating the rate was completely 

different. That's not what we have here. This is just 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 13 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

13

plaintiff's attorneys and their expert saying, hey, the rate 

should have been lower. 

All but one of the class certification orders 

relied on by the plaintiffs involved an unopposed motion for 

certification of a settlement class, thus there were no 

disputes concerning any of the factors, any of the 

prerequisites, and there would be no trial. Issues of 

adequacy and management were simply nonexistent. 

The plaintiff has defined the class as including 

any New York Liberty Power customers subject to a variable 

rate at any time between 2009 and the present which would 

include tens of thousands of customers including residential 

customers, small, medium, large, commercial customers and 

industrial customers. Plaintiffs claim the number is around 

90,000 customers. 

Now, most of these customers enrolled with 

Liberty Power for a one to three year term and it was for a 

fixed rate contract, so the rate every month would be the 

same. Towards the end of that fixed rate contract they were 

told that if they failed to either reenroll for a new 

contract or leave Liberty Power, or do something then at the 

end of the term they would roll over to a variable rate. 

There were no representations about what that rate was, 

unlike Claridge and other cases. Liberty Power just said 

this is what's going to happen and encouraged customers to 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 14 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

14

reenroll in a fixed rate or take some other action. Most 

customers either reenrolled with Liberty Power at a fixed 

rate or left. Those that stayed on stayed on for various 

reasons and including that they wanted to wait until the 

rates dropped so that they can then get a fixed rate 

contract or either their business was going out of business; 

various reasons all stated in the record. But most stayed 

on or then switched or left after a few months. 

Plaintiff did not allege -- I'm sorry -- plaintiffs 

on the other hand -- the two named plaintiffs -- they didn't 

follow this course. They are nothing like the punitive 

class members. 

As you know, Your Honor -- you and I have been in 

this case from the beginning and -- what they alleged at 

first is that they were slammed, and then because of the 

statute of limitations had run they changed it to a breach 

of contract claim. Yet they have never testified that they 

were subject to a contract. To the contrary, they claimed 

that they never even saw a contract until after the 

litigation commenced. And when they did see the contract, 

their representative interpreted the rate term as meaning 

that the rate to be charged would move with the market. 

Which is exactly what Liberty Power's rate did. 

Now, the evidence establishes that individual 

trials would be required for both liability and damages. We 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 15 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

15

would have to determine what contract each individual or 

class member was subject to and whether it included the rate 

term or other relevant language. 

I cited in our briefs and attached to my affidavit 

various contracts that have different language or have the 

type of language that sort of warns that the rates will 

fluctuate and could be greater or lower than the utility. 

You have to determine the interpretation of the agreement. 

This is not a class of consumers where the courts found the 

language of the contract to be misleading or vague. To the 

contrary, the language is straightforward based on market 

pricing. At the same time, we don't know whether each 

customer saw the language or why they continued to stay with 

Liberty Power after their term expired. 

At trial, Liberty Power would be entitled to 

establish any of its individual defenses against any class 

member including waiver ratification, failure to mitigate 

damages. And while plaintiffs are too subject to some of 

these defenses the facts that underlie these defenses are 

completely different for the plaintiffs versus the rest of 

the class. 

Damages will also require an individual trial with 

respect to each individual because individual's rates are 

different depending on their usage, where they live, what 

class they are; a number of factors and then there has to be 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 16 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

16

some serious damages that plaintiffs have yet to come up 

with that follows their theory of the case and that would be 

applied to each individual customer. We are talking about 

maybe 90,000 customers. Damages will have to be calculated 

with respect to each individual for each month over the 

course of the period. 

The record establishes that the punitive class as 

defined by plaintiff would be subject to many different 

contracts. And if it's a medium or larger commercial 

customer then they negotiated the agreement. The classes 

defined would include those large customers, Lowe's, 

JC Penny, that negotiated the variable rate. And the 

agreements warned that the rates would fluctuate or be 

higher than the utility rate. 

Again, unlike Claridge, and similar ESCO cases, 

it's not alleged that the terms and conditions describe a 

particular method of calculating the rate. And please do 

read Claridge; it's not on all fours, it is entirely 

distinguishable. 

Here, it's not that we failed to calculate in a 

manner in which we said we would, it's that the components 

that we used were somehow too high, not based on comparison 

to other ESCO'S or anything else. Just, you know, in the 

expert's opinion they were just too high. 

The damages models that plaintiffs have come 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 17 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

17

forward use a fictional rate based upon the same components 

used by Liberty Power. That is unheard of in the industry. 

The plaintiff's expert doesn't say that that -- that his 

method of calculating damages or even coming up with this 

fictional rate comes in anywhere except in cases like these 

for plaintiffs who want to establish maximum damages. 

Plaintiffs in this case are anything but typical. 

They are sophisticated commercial customers with inhouse 

counsel, a building department, a CFO. They have used 

ESCO's in the past and continue to use them for related 

affiliates. 

They claim they never saw any contract. They claim 

they did not know Liberty Power was their provider. They 

also while they were still customers of Liberty Power, 

reached out to Liberty Power and said, hey, why are rates so 

high. And when they called a second time, Liberty Power, 

said, well, you are not subject to any contract so you can 

terminate and go to a fixed rate or leave. And they chose 

not to do so. 

The rest of the class includes residential 

consumers who were sold a fixed rate contract and told that 

they would go to a variable rate at the end of the term. 

Commercial and industrial customers may have been 

sold a fixed or variable rate. They might have negotiated a 

variable rate, and they would have knowledge of what would 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 18 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

18

happen at the end of the term. The record establishes that 

the majority of commercial customers in this industry use a 

broker or specialized department that negotiate energy 

contracts. 

And there are many defenses that would defeat class 

certifications because they would threaten to become the 

focus of the litigation and such that the named plaintiff 

would not act in the best interest of absent class members. 

So, Your Honor, you have decided motions to 

dismiss and a motion for summary judgement. Contrary to 

what was said earlier their claims have not established, 

what you found were questions of fact. So I don't think 

there has ever been an ESCO case like this or maybe even any 

class action where the named plaintiff hasn't even 

established that they were subject to the contract on which 

they are basing the class claims. 

You found that it could be the contract to which 

they originally signed, it could be the terms and conditions 

of the lower rate class, it could be some sort of agreement 

based in fact we billed on and they paid but that's a 

question of fact. 

And the Court has also not determined whether there 

has been a breach of the contract because the contract 

hasn't been -- the court hasn't identified what contract is 

applicable. 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 19 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

19

The Voluntary Payment Doctrine hasn't been decided. 

There's a question of fact about that. That will be 

litigated at trial. 

And, here, again -- the Court has heard this before 

but -- the plaintiff paid for seven years and the question 

is, well, did they know what they needed to know. 

In his affidavit, Chris Lamano said to the court 

that after an investigation they understood they had been 

overcharged. It was essentially conceded that it doesn't 

take some sophisticated expert to figure out that they were 

overcharged. And the amount of overcharge is irrelevant to 

a voluntary payment defense. They knew they were 

overcharged just by looking at what affiliates were billed 

by other ESCO'S or by the utility. And standing has not 

been decided. Standing is still an issue. So all of these 

are atypical defenses. 

I think I heard that "these are raised all the 

time." I don't know that they are raised all the time. I 

don't believe that they are raised all the time. These are 

very unique defenses because this case has been going on for 

seven years but none of the cases cited by the plaintiffs 

has ever been a class certification after seven years of 

litigation of individual claims. 

We also addressed adequacy of representation in our 

papers. All that the plaintiffs have put in is a 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 20 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

20

boilerplate seven paragraph affidavit from the plaintiff's 

CFO that is contradicted by his prior testimony. He says, 

oh, we will talk to the lawyers; I will talk to the lawyers; 

I will keep an eye on them. He testified at trial that he 

is not involved in that at all. 

There's no response to the fact that plaintiffs 

have litigated for years in this case without seeking to add 

class claims. So, how does that wash out at the end if 

there's a settlement or there's a trial? 

Obviously, the plaintiffs will be interested in 

recouping those funds but in a normal class situation they 

wouldn't be entitled to that. They may be entitled to a 

$5,000 named plaintiff award. 

So obviously the plaintiffs are inspired to win on 

their claims but not necessarily with respect to the class. 

They are so differently situated in the class. The class 

extent goes from 2009 to the present. 

Plaintiffs stopped being Liberty Power customers in 

2012. The evidence establishes that Liberty Power's method 

of calculating rates changed over time. 

Now, in this case, the main focus was on the margin 

that was charged by Liberty Power; the plaintiff said that 

it was too high. And they also complained that it was 

static. 

Well, they dropped the argument that being static 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 21 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

21

was impermissible since their own expert says, no, I'm going 

to use a static margin in that they say it is still too 

high. 

THE COURT: Counsel? 

MS. NEIDL: Yes. 

I'm just going through my notes. 

THE COURT: Oh, I thought I lost you for a second. 

MS. NEIDL: No, I am still here. 

THE COURT: I have a few questions once you have 

concluded. 

MS. NEIDL: Okay. 

I'm going to skip because I have been going a 

while. 

Because I haven't addressed certain things doesn't 

mean that I am now abandoning them or waiving them. I agree 

with the -- 

THE COURT: No. 

I have read all the papers. 

MS. NEIDL: I am sure that you did. 

And, so, if I can just add, the one more important 

thing is the management of the class action. 

Plaintiffs, you know, they concede that we are 

going to have to look at each of the 90,000 -- or whatever 

it is -- individual customers; what they were billed, try to 

figure out damages. This isn't a Labor Law case. We are 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 22 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

22

required to keep records for purposes of a class 

certification motion. 

The way that we store the data was, let's say for 

example someone came in and they were a fixed rate customer 

and their term expired and they went on the rollover rate 

for three months, and then they went back on a fixed rate 

program, I'm not sure what the records would show. They 

would probably show that they were a fixed rate customer 

throughout that period or it could show that they were on 

the rollover for three months, and they also might be 

credited for whatever they paid during that three months 

depending on what action Liberty Power took. 

So just because there are a lot of class members 

but just in the nature of what the claims are it raises a 

lot of issues. It will take a long time to figure out what 

contract governs each customer, what they were charged, what 

their usage was in figuring out damages. That goes to the 

management. 

And, with that, I understand you have questions. 

THE COURT: Yes. 

Okay, thank you very much. 

And, obviously, plaintiff will have a chance to 

reply, but I just have a number of questions. 

Numerosity. 

You challenged the first prong of numerosity. 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 23 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

23

MS. NEIDL: Well, let me say this, so the class is 

defined as "any customer in New York that was on the 

variable rate plan from 2009 to the present", and I believe 

that that number would be around 90,000 or you know 

somewhere over 40, so to that extent I don't challenge it, 

but I think that the class definition is way overly broad. 

And it was plaintiff's burden to come forward with some 

class definition that was reasonable and they haven't done 

that. As far as I'm concerned, it's a class of two, 

plaintiffs BLT and plaintiff BLT. 

THE COURT: Okay. 

So, thank you. 

Let's move on to the second element, commonality. 

Plaintiff, I believe, makes a simple argument in 

terms of what commonality is; that there was a breach of 

contract due to the failure to provide market based pricing. 

And I'm just summing it up; it's more complicated than that 

but I'm trying to make it as simple as possible. Why isn't 

that sufficient for a class action? 

MS. NEIDL: I think that's a very simple as you 

said superficial understanding of the facts of the case. 

And their job is to present this as, you know, as simple as 

possible. But that's just not what the facts are. 

There's multiple different contracts over a period 

of time when the rates changed and the method of calculating 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 24 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

24

the rate changed or where the components were the same. 

And, again, I have to say if you look at the cases 

they rely on, the allegation is that the contract said that 

the ESCO would calculate in a particular manner, and there 

was no dispute that they didn't calculate it in that manner. 

Here, we did exactly what the contract says. 

What they are now arguing is that, yeah, you did 

what it says but you should have charged less. You should 

have -- that's totally different from any other case. So 

that goes to, well, who believes that we should have charged 

less? No customers have come forward to say that. 

THE COURT: So, now, you are getting into the 

merits and we know that the Appellate Division found that 

there is questions of fact as you alluded to in your oral 

argument. I don't want to get into that; that was summary 

judgment. We went through that several years ago; I don't 

remember the exact date. I know the decision came down in 

2019. Actually, I have the case. Yes. So, I issued my 

decision in 2018 under -- yes, I will give you the official 

citation of the Appellate Division -- BLT Stake, LLC versus 

Liberty Power Corp., 172 AD3d 458. It affirmed my decision 

which is 2018 West Law 1316790. And I don't want to go 

through that now because we all know that decision. 

Later, I will go through that, but I want to just 

clarify one point. You are not alleging that there were 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 25 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

25

differences in the context as to how you are going to charge 

based upon the market based pricing; is that correct or 

incorrect? 

MS. NEIDL: That's incorrect. 

And I have -- there's at least two different types 

-- well, three. 

So, first, there is language where the contract 

might say that but it also might warn that the rate will 

fluctuate; not a guaranteed price. Something like that. 

THE COURT: That's not my questions. That's not my 

question. 

I understand you are saying that it fluctuates, but 

it's all based upon market based pricing. 

Is that incorrect or is it correct? 

You are correct in saying that this is not a 

situation where there is fraud that's being alleged like in 

some of the other cases that were cited by plaintiff's 

counsel in which you distinguished. However, the 

commonality of this case is that they are saying all the 

contracts that Liberty entered into with its customers had a 

market based price component due to the either a default 

variable rate or going after a fixed rate contract. 

MR. GARBER: That's correct, Your Honor. 

MS. NEIDL: Your Honor? 

THE COURT: Yes.

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 26 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

26

MS. NEIDL: If I could point you to Page 14 of my 

brief, at the bottom of the page. 

THE COURT: Which brief? 

MS. NEIDL: It's the opposition brief 

Docket Number 357; Page 14, at the bottom of the page. 

THE COURT: I have to comment about the volume of 

the brief; fifty-one pages is a little long, I must admit. 

I had to read the briefs of this case and I had to spend I 

can't tell you how many hours. I finally finished it about 

12:30 a.m. last night.

MS. NEIDL: It's a motion for class certification. 

THE COURT: I understand that. 

I said your briefs were very long. 

MS. NEIDL: There's a lot of issues, so. 

But, I'm sorry, so, we are at Page 14, at the 

bottom. 

I cite from a rate provision from a variable rate 

contract. It has the language. 

THE COURT: Page 14?

Let me get to there.

MS. NEIDL: It is 22 of 51. 

THE COURT: Okay. 

That's what I'm getting to. 

Okay, I have it. 

"The contract provides as follows"; is that what 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 27 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

27

you want me to look at? 

MS. NEIDL: No. 

At the bottom of the page, you will see the 

"Liberty Power Flex Plan includes." 

THE COURT: Yes, I see. 

MS. NEIDL: Okay.

That wasn't used by Liberty Powers during the term 

of the punitive class. 

THE COURT: How is it different? 

MS. NEIDL: It doesn't say anything about market 

rate. It's entirely different. 

THE COURT: How would they be charged; there would 

be a percentage; you would fill in the blank where it says, 

"the rate per kilowatt of electricity services" and it is 

just set at a certain amount? 

MS. NEIDL: Correct. 

THE COURT: Okay, so then that won't be applicable. 

Fine. 

We're talking about their response to market rate. 

Why is this an aberration; this may not be part of the class 

then. 

MR. GARBER: That's right, Your Honor. 

THE COURT: So, basically, that would not be part 

of -- so, you hit it on the head. The only people that 

would be on this class action were those based upon market 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 28 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

28

rate pricing. That's the commonality. And that's why I 

made it simple, because it's a very long argument but I like 

breaking it down to the least common denominator and every 

single member of the class would be subject to that issue. 

And if it doesn't then they are not part of the class. 

MS. NEIDL: Well, that's not how the class is 

defined. 

The class includes anyone on a variable rate. It 

doesn't say anything about subject to that rate provision. 

So there are companies -- most are appliances -- 

that one time were companies who would negotiate what could 

be either a fixed or a variable rate. 

THE COURT: So maybe we just have to make this 

more, more defined that a variable rate plan that's applied 

to a market based pricing. 

Would that satisfy you? 

MS. NEIDL: Well, on what issue? 

I mean, I don't know. I don't think that cures 

their motion, which I think is -- 

THE COURT: I think it does. I think it does. 

MR. GARBER: We didn't think that these were part 

of the class anyway. So if we need to tweak the class 

definition then that absolutely should ally any concerns by 

the Court. 

What we are getting at is exactly what the Court is 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 29 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

29

stating. All the contracts that apply to variable rate in 

which the contract said that the variable rate would be 

based upon electricity market pricing. 

I didn't think that the Liberty Power Flex Plan 

customers were in the class either. So defendants are just 

trying to muddying up the record by throwing it in there. 

So, the Court just hit it right on the head regarding which 

part should be part of the class and the intention of the 

plaintiff's brief. 

THE COURT: I can read that as well. 

I thought it was based upon market rate pricing but 

maybe we can clarify. I think it is just a little bit of a 

tweak. I think that was the cluster. But that's exactly a 

matter of fact. 

If you look at Page 1, the introduction of the 

memorandum in support of the motion, counsel says it very 

clearly -- and I will read if you get to the first page -- 

let me give you a minute to get there -- it's the paragraph 

-- the first paragraph and it's maybe about 9, 10 lines down 

and I will read the paragraph: 

"All these contracts have a common provision: 

Liberty is to charge a rate based upon electricity 

marked pricing, however in violation of that provision 

Liberty actually charged rates that bear no 

resemblance to electricity market prices." 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 30 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

30

That is the introduction and everything flows 

therefrom. 

Okay, let's move on. 

Let's go to typicality. 

Why isn't that sufficient to meet the typicality 

component which only requires that the plaintiff's claims 

arise from the same practice or course of conduct that gave 

rise to the claims of other class members; and it's based 

upon the same legal theory. And that's the standard. And 

it's the same thing it's similar to commonality. You don't 

look at whether or not the entity had $100 million worth of 

assets versus the consumer that is a residential consumer 

that has $1,000 in the bank for instance. That is not the 

way you look at typicality. It is whether or not the same 

acts as a course of conduct which gives rise to the claim 

and is based on the same legal theory. 

Isn't that typicality? 

MS. NEIDL: Well, I think the record reflects that 

the way that Liberty Power deals with different types of 

customers is very different and that these plaintiffs are 

different from the entire punitive class because they claim 

not to even had known that they were enrolled with Liberty 

Power. So I think that there is a distinction. And since 

this is a contract claim, I think that you do treat 

sophisticated entities quite different than you might treat 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 31 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

31

a consumer. 

THE COURT: Can you show me a case that says that; 

which case did you point to that fact? 

I didn't see one in your papers. 

MR. COHEN: Well, no one -- I think that in all of 

the ESCO cases they are consumers. They never tried this 

before. 

So you would be the first to say, sure, a 

sophisticated commercial company is typical of a residential 

consumer under these circumstances. 

I think in securities cases, certain cases maybe 

that could work, but in a breach of contract case, 

absolutely not. 

THE COURT: Which case stands for that proposition? 

I pulled a lot of cases and I read through them -- 

it took me hours -- I didn't see one which made that 

argument. 

Which case made that argument for you? 

MS. NEIDL: It is because this is the first one 

where a plaintiff has been a sophisticated company moving on 

behalf of a residential consumer. 

THE COURT: Okay, let's move on to adequacy. 

As you heard, counsel for plaintiff stated that at 

least the -- Mr. Garber, mentioned that he was the attorney 

on the Claridge versus North American Power and Gas. His 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 32 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

32

firm represented the movant, the claimant, and the case is 

under 2016 West Law 7009062. It is a Southern District, 

New York case from 2016. 

And then there are several others, where counsel 

represented the claimants against energy service company's 

ESCO'S. 

Why wouldn't he be adequate to lead as counsel? 

MS. NEIDL: If you look at our brief, we didn't 

challenge Mr. Garber's firm. What we challenged was the 

plaintiff's adequacy as well as the law firm of Wachtel. 

THE COURT: Oh, okay, fine. I wasn't sure. 

I apologize. 

I thought you had some problems as well. Maybe, I 

misread it. 

So what is the harm to have a firm that is quite 

frankly the firm that has been leading in these areas 

against energy service companies be together with a trial 

litigation firm? 

MS. NEIDL: Well, I think that you have to find 

each are adequate. And the reasons stated in our brief with 

respect to ourself militate against them being an adequate 

representative. 

THE COURT: Okay.

Let's move on to superiority; is the last 

component. 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 33 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

33

Why do you think that ninth count individual case 

being brought from Albany to Syracuse to Kings County to 

New York County and everywhere in between would be a better 

place than having one venue try all of the cases together? 

MS. NEIDL: Well, that, that presupposes that there 

are 90,000 customers who feel they are aggrieved. Which I 

think the evidence shows that there aren't. 

There are two plaintiffs and they are the named 

plaintiffs, but the fact that there is an alternative non 

litigation alternative, militates against this being a 

superior action. 

Why should it be in the Southern District of 

New York when it's people across the country? 

Someone in Albany who was with Liberty Power, you 

know, a year ago or whatever could file a claim here and get 

a quick decision and they would get 100 percent of whatever 

it was that they sought as opposed to giving a third or more 

of it to plaintiff's counsel. 

THE COURT: So you are stating that Liberty would 

prefer to handle however many cases there are -- I heard 

40,000 to 90,000 possible -- people in the class -- let's 

round it and make it 50,000 -- let's even make it 40,000; 

let's make it a lower number just to satisfy the plaintiff's 

need to reduce the class -- so you would prefer to have 

40,000 administrative proceedings or 40,000 cases in Albany, 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 34 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

34

Syracuse, New York County, everywhere in between and 

administrative cases than having in one place here in 

New York County.

Is that correct? 

MS. NEIDL: Liberty Power, would be happy to 

entertain any administrative case that's brought by a 

consumer who feels aggrieved. There are none. 

So those administrative procedures are here for 

consumers. And they are much quicker than a class action in 

the Southern District of New York. 

THE COURT: You believe that it would be superior 

because in those administrative hearings the consumer would 

not have counsel present because they may not get one? 

MS. NEIDL: I think in the administrative 

proceedings that I have been a part of then the PSE acts as 

a -- you know -- an advocate for the consumer. 

I don't think that that's an issue. 

THE COURT: Okay. 

Anything else you want to add to the record -- I 

may have reply -- because I need to get to another case. 

We just delayed the next case to 11:45. I have to 

be off the phone by 11:45. 

So, counsel, anything further? 

MS. NEIDL: Nothing further from the defendant. 

THE COURT: Counsel, reply. 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 35 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

35

MR. GARBER: Thank you, Your Honor. 

Your Honor hit a lot of our arguments right on the 

head, so I will keep this brief and simply address a few of 

Miss Neidl's comments that the Court did not outwardly 

address. 

Just the matter with the customers that were not 

told about the variable rates because this is a breach of 

contract case. So all of Miss Neidl's arguments about 

enrollment and what customers were told are irrelevant. 

Miss Neidl faults plaintiffs for not coming forward 

with an affidavit from a class member about how they were 

told that they were guaranteed a lower rate? 

Again, Your Honor, this is a breach of contract 

case. It doesn't matter what an absent class member was 

told. And that's the point of the class action mechanism, 

Your Honor; that these people can remain absent and that the 

class representative has picked up the baton for the entire 

class. 

Once again, Miss Neidl similar to in her papers 

misstates what this case is about. 

This case is about Liberty Power calculating its 

rate in a manner inconsistent with the contract. It is not 

about simply plaintiffs saying that they charged a rate that 

was too high. And Miss Neidl referenced a fictional rate 

that we are talking about. No, Your Honor, it's right there 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 36 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

36

in the expert report that we are going to use the utility 

rate as a comparison calculating what the damages are based 

on their representations of a rate based on a market based 

rate. That's one of the two ways in which we can calculate 

damages. 

Miss Neidl, says that you'd have to calculate the 

individual rates for each individual class member. Yes, 

that's what happens in a class action, Your Honor. And the 

fact that an individual was charged a different rate; 

of course, they were, Your Honor. There's different utility 

zones. Just because one person was charged, you know, 

fifty cents and one person was charged forty cents, the 

manner in which that rate was calculated is identical and 

therefore the experts who calculated the overcharge for 

those individuals doesn't alter the case in and of itself. 

Finally, as this Court is familiar, individual 

damages does not preclude class certification. That's the 

Maddock case from the Court of Appeals. 

And that is all I have, Your Honor. 

Thank you. 

THE COURT: Thank you all. 

Normally, given the heated litigation between the 

parties, I would write a hopefully eight page decision but 

since this case has been on my calendar starting in late 

2019, and it is now August of 2020 -- it's been eight months 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 37 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

37

on my calendar. Unfortunately, this was delayed due to the 

pandemic -- I will issue a decision from the bench. 

As counsel for plaintiff alluded, I had written an 

exhaustive decision on class certification in Ansah, 

A-N-S-A-H v A.W.I. Security and Investigation, Inc.; I 

believe it's attached as an exhibit to the reply papers -- 

give me one moment -- 

MR. GARBER: Silverman 1, Your Honor, I believe, or 

Silverman 2. 

THE COURT: I'm sorry? 

MR. GARBER: Exhibit 1 to the Silverman 

affirmation. 

THE COURT: I'm looking for the number -- one 

second -- yes, it was NYSCEF 362 -- the Index Number in New 

York County is 151033 of 2012. The decision is dated March 

15, 2017. 

In this decision, this Court reviewed the standards 

for class certification. 

CPLR 901 (a) provides that:

"One or more members of a class may sue or be sued 

as representative party on behalf of all if:

One, the class is so numerous that joinder of all 

members rather otherwise required or permitted is 

impracticable. 

Two, there are questions of law or fact common to 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 38 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

38

the class which predominates over any question 

affecting only individual members.

Three, the claims or defenses of the representative 

parties are typical of the claims or defenses of the 

class.

Four, the representative party will fairly and 

adequately protect the interests of the class. 

And, finally,

Five, a class action is superior to other available 

methods for fair and efficient adjudication of the 

controversy." 

"Plaintiffs bear the burden of establishing these 

criteria by providing an evidentiary basis for class 

certification. Citing to Kudinov, K-U-D-I-N-O-V, v 

Kell, K-E-L-L-Tech, T-E-C-H Construction Inc., 

65 AD3d, 481, First Department, 2009. 

"Whether a particular loss is qualified as a class 

action rep would be in the sound discretion of the 

trial court, in exercising its discretion, a court 

must be mindful about holding that the class 

certification statute should be liberally construed." 

"Class action certification is not appropriate if 

on the surface there appears to be a cause of action 

which is not a sham." Citing to Pludeman,

P-L-U-D-E-M-A-N v Northern Leasing Systems Inc., 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 39 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

39

74 AD3d, 420 at Page 422, First Department, 2010." 

The first element is known as "numerosity." 

There is no mechanical test to determine whether 

numerosity has been met. Nor is there a set rule for 

the number or perspective class members which must 

exist before a class is certified." Citing to Friar, 

F-R-I-A-R v Van Guard Holding Corp., 72 AD2d 83 at 

Page 96, Second Department, 1980. 

"It has been held that the threshold for 

impracticality of joining needs to be around 40." 

Citing to Dornberger, D-O-R-N-B-E-R-G-E-R v 

Metropolitan Life Insurance Co., 182 FRD 72 at 

Page 77, Southern District, New York, 1998. As 

amended, 1999. 

Also, Globe Surgical Supply v GEICO Insurance Co., 

59 AD3d, 129, at Page 138, Second Department, 2008. 

In this case, for all intents and purposes, counsel 

has not challenged the numerosity element. There has 

been an estimate of the class to be between 40,000 to 

90,000. Counsel in opposition today believes that it's 

a class of two, however that is not really the case. 

It is estimated to be much larger. Therefore, 

plaintiff has met the burden with regard to the first 

element of numerosity. 

With regard to commonality, it requires, 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 40 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

40

"predominant not identity or unanimity among class 

members." Citing to Cherr, C-H-E-R-R v Resource 

America Inc., 15 AD3d, 1013, Fourth Department, 2005. 

Here, plaintiff has clearly stated that there is 

commonality which is amongst all class members. I read from 

the introduction of the memoire on Page 1. All contracts 

have a common provision. Liberty is to charge a rate based 

upon electricity market pricing. However, in violation of 

that provision Liberty actually charges rates where it knows 

went to the electricity market prices. 

So the commonality among the class is tied to 

market based pricing, and the class is stated also on 

Page 1, consisting of all of defendant's customers that were 

on a variable rate plan for the provision of electricity in 

New York State at any point from June 29, 2009 to the 

present including all customers charged Liberty defaults the 

variable rate. 

And in Foot Note Two, they exclude the class of a 

small number of very large customers that had variable rate 

contract that included a negotiated market cap that limited 

Liberty's markup -- and I will add another exclusion, which 

is -- it must be based upon -- the variable rate -- must be 

based upon market based pricing. Which I think is clear, 

but I think that I want it to be understood that we are not 

talking about plans where as was mentioned by counsel where 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 41 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

41

there is a fixed rate within the variable rate. I think 

that's clear from the memorandum and the arguments made in 

the memorandum as well as here in oral argument. 

Let's move on to the next element, "typicality." 

With respect to typicality, "if it is shown that 

plaintiff's claims derive from the same practice or 

course of conduct that gave rise to remaining claims 

of other class members and is based upon the same 

legal theory, the typicality requirement is 

satisfied." Citing to Pludeman, P-L-U-D-E-M-A-N, 

74 AD3d at 423. 

Here, again, the named plaintiffs alleged that all 

the class members were subject to the failure to comply with 

the market based pricing. Therefore, plaintiff's claims are 

typical of a class since they arise out of the same course 

of conduct. 

This Court rejects out of hand that there may be a 

distinguishing factor in this case like no other case in 

that the class members themselves may be divergent in their 

assets. 

I don't believe that is the standard. The standard 

is if it's the same practice or course of conduct. And, 

here, the typicality component is met because there is based 

upon the breach of contract due to the market based variable 

rate which was not complied with a market based pricing. It 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 42 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

42

has nothing to do with the members themselves. And counsel 

has not cited a case where that's to be the case. 

This Court will stick with the case law since it 

involved the same practice and course of conduct that would 

give rise to a typicality of the class and therefore the 

plaintiffs have met their burden with respect to typicality. 

The next element is "adequacy of representation." 

With respect to adequacy of representation, the 

Court considered the following factors:

One, whether there is a conflict of interest 

between the representative and the class members.

The representative's background and personal 

character.

The representative's familiarity with the lawsuit. 

The confidence, experience and vigor of class 

counsel.

And, five, the financial resources available to 

prosecute the action. Citing to Pruitt, P-R-U-I-T-T v 

Rockefeller Center Properties, 167 AD2d, 14 at Page 24, 

First Department, 1991. 

The First Department has noticed that an "obvious 

function of the class action representative is to act 

as a check on the attorneys as additional assurance 

that in any settlement or other disposition of the 

interest of the members of a class will take 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 43 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

43

precedence over those of the attorney." Citing to 

Panzer, P-A-N-Z-E-R v Turbodyne, T-U-R-B-O-D-Y-N-E 

Corp., 68 AD2d, 614 at Page 620, First Department, 1979. 

There is no evidence of any conflict of interest 

between main plaintiffs and the class members. 

Here, the plaintiffs possessed more than required 

general awareness of claims at issue. Citing to Seko 121 

AD3d at 542. 

In this case the plaintiffs had litigated for many 

years uncovered the allegation that there is a breach of 

contract on variable rate due to market based pricing. 

There could be no better plaintiff representative. There is 

no conflict of interest. And the representatives are 

familiar with the lawsuit. Counsel is competent and 

experienced and has vigorously litigated this case and the 

financial resources available to prosecute the action by 

plaintiff and their firm is sufficient. Therefore, 

plaintiff has met the burden of adequate representation. 

The next element is "superiority." 

This Court holds that a class action is the secure 

method of resolving this dispute. Indeed, the First 

Department has recognized that "a class action is the best 

method of adjudicating this controversy in light of the 

small amounts of potential recovery for each individual. 

Most of the individual differences can be resolved by 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 44 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

44

documentary evidence. Pesantez, P-E-S-A-N-T-E-Z v Boyle 

Environmental Services, 251 AD2d 11 at Page 12, First 

Department, 1998. 

I will cite to also the case that Mr. Garber's firm 

litigated, Claridge v North American Power and Gas LLC, 

2016 West Law 7009062, Southern District, 2016. 

In that case the Southern District Court justice, 

US District Judge Castiel found that this was also superior. 

It makes no sense to have 40,000 to 90,000 cases in all 

parts of the state; it would be more sufficient to do it 

here. 

Counsel states that there is a remedy in that class 

members can go and have their cases heard administratively. 

In the case of Nawrocki, N-A-W-R-O-C-K-I v Proto, P-R-O-T-O 

Construction and Development Corp., 82 AD2d 534, First 

Department, 2011. 

The court rejected the very argument. 

In that case they argued that they failed to 

exhaust administrative remedy in the Labor Law and the court 

found that plaintiff's argument was without merit. 

Moving on to the other parts of the standard. 

Even if the prerequisites are satisfied, the court 

must act as to the facts as set forth. 

CPLR 902: 

"One, the interest of the members of the class 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 45 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

45

individually controlling the prosecution or defense of 

separate action.

Two, the impracticality or inefficiency of 

prosecuting defendant's separate action.

Three, the extent and nature of any litigation 

concerning the controversy already commenced by or 

against the members of the class. 

The desirability or undesirability of 

concentrating, the litigation of the claim in a 

particular forum.

And,

Five, the difficulties likely to be incurred in the 

management of a class action." 

In this case, the plaintiffs have met the first 

element, consideration. And the second element it would be 

impractical and/or inefficient of prosecuting separate 

actions. 

It's clear here it makes more sense to have 

seasoned counsel who have prosecuted these types of cases 

rather than having them go improperly lawyer less to an 

administrative proceeding without knowing their rights. 

These cases have been prosecuted in other venues and there 

have been significant settlements with the ESCO'S. 

The extent and nature of the litigation concerning 

the controversy already commenced by the members of the 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 46 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

46

class is considerable. There have been years of litigation. 

There have been several Appellate cases that have reviewed 

this Court's decision going back now seven years. 

This Court already has opined that it is more 

desirable to have this case in this forum rather than it 

being spread out throughout the states. 

The last element is whether or not difficulties 

like the account in the management of class actions; I 

believe that class counsel is adequately able to manage the 

class. 

Counsel for Liberty's argument that it would be 

difficult for them to get the information in order to 

identify the class members would defeat the purpose of class 

actions. It is Liberty's duty to provide the documents. 

Quite frankly, it is able to communicate with their clients 

to obtain -- the clients are able to communicate in order to 

provide and obtain the notice required under the class. The 

defense would eviscerate the whole motion of class action. 

Let's move on to the defenses. 

Counsel argues that this will be the first case 

where a breach of contract case with regard to the ESCO'S. 

That is not the case; Claridge v North American Power and 

Gas is a breach of contract case. 

There are many cases cited by counsel. Edwards v 

North American Power and Gas is a breach of contract case. 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 47 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

47

And citation is 2018 West Law 3715273, US District Court, 

District of Connecticut, 2018. Silvis v Ambit Energy LP, 

326 FRD 419, Eastern District, Pennsylvania, 2018. 

I'm not going to cite more but there were more in 

the brief. But this is not the first case wherein there was 

a class action dealing with breach of contract. There are 

many. This would not be the first. 

Let's move on to other defenses. 

Counsel argues that there are unique defenses by 

plaintiff that could not be the same for the other class 

members. 

I just want to cite to the Appellate Division's 

affirmance of this Court's order at 172 AD3d 458. 

In this case the Court already had stated that 

plaintiffs contend that defendants violated the contractual 

terms applicable such as the buyers continue to be charged a 

default variable rate set by the defendants as to the 

expiration of the contract. That too gives rise to 

commonality of what the plaintiff class wants to certify. 

The Appellate Division further stated the motion 

court directly found issues of fact exist as to whether 

there is an enforceable contract between the parties with 

applicable terms and conditions covering the variable rate. 

Further issues of fact exist as to whether 

defendants breached any of these terms and conditions by 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 48 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

48

charging an exorbitant hidden margin fee not provided in the 

rate term. 

The Court correctly rejects defendant's arguments 

that the evidence demonstrates that plaintiff lacked 

standing to bring the breach of contract claim. The 

Appellate Division has spoken. 

With regard to the Voluntary Payment Doctrine, the 

Appellate Division found that the record does not 

demonstrate that plaintiffs made the payments with full 

knowledge of the facts that would have enabled them to 

conclude that they were being overcharged by defendants due 

to a hidden margin fee. That too is the res judicata and 

the holding of the Appellate Division. 

It seems that the voluntary payment doctrine is the 

same for all class members. It would not be unique, it 

would actually be the same rather than a distinguishing 

feature. So that would not be a reason to reject the class 

action. 

With respect to damages. 

The damages will all be dealt with pursuant to the 

same method of calculating the rates pursuant to the utility 

rate. That too must wait for another day. Remember that 

standard is lower than in the Federal Court. And in Federal 

Court at least three ESCO'S have had class actions due to 

breach of contract. The standard is lower here. The 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 49 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

49

Appellate Division has already ruled that there is an at 

least triable issue of fact; there is merit to the cause of 

action. Therefore this Court will certify the class as 

modified today in this Court's decision. 

Let's talk now to costs. 

I don't think I had the parties address that. 

Plaintiff's counsel. 

MR. GARBER: Thank you, Your Honor. 

As set forth in our briefing given the disparity of 

resources between the two sides and the case law as cited in 

our briefs, we believe it is appropriate for this Court to 

order that Liberty Power be required to bear the costs of 

the notice to the class in this case. 

THE COURT: Do you know what the cost should be; an 

estimate, please? 

MR. GARBER: I do not, Your Honor. 

Your Honor, I'm guessing that -- let's say the 

class -- you want to say 50,000 -- 

THE COURT: Let's say 50,000. That's a good round 

number. 

MR. GARBER: Let's say 50,000, Your Honor. It is 

going to be a bulk postcard rate most likely. We can do it 

via postcard for efficiency purposes. So I don't know what 

the postcard rate would be from the administrator. I'm 

guessing it would be twenty-three cents maybe per postcard, 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 50 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

50

you know, plus the administration fees for the claims 

administrator to administratively set up the website, that 

also has a long important notice on it and the like. 

Typically, in the settlement context, let's say in 

a settlement context for a similar postcard notice that I 

just did that had 118,000 class members, the claims 

administrator figured that notice going in would cost about 

$220,000 but you cut that at least in half given the size of 

the class here and then you also would cut that further 

because that estimate included the administration of the 

settlement itself, so they would be getting the postcard 

sent back, they would have class members submit claims and 

then they have to administer on the back end. 

Here, at least in the first instance we were just 

talking about the providing of the notice via postcard, and 

the establishment of a website and, you know, a 1-800 

number, so, you know, on the back of the envelope, I would 

say, 100,000 or so. 

THE COURT: Okay. 

And you wish the defendant to pay the costs? 

MR. GARBER: Yes, Your Honor. 

THE COURT: Okay. 

Anything further? 

MR. GARBER: No, Your Honor. 

THE COURT: Counsel in opposition. 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 51 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

51

MS. NEIDL: Uh, yeah. 

We would oppose that request. 

The plaintiffs have come forward with no evidence 

that the plaintiffs themselves are unable to pay for the 

request. 

As we noted in our papers it is a sophisticated 

enterprise operating multiple restaurants and at least one 

restaurant is still going. 

I have asked for since the beginning of the lawsuit 

information relating to the restaurant and I have never 

gotten that. So I would propose that before the Court rule 

on it, plaintiffs make available information from which the 

Court and defendants could judge whether they have the 

wherewithal to absorb that cost. 

THE COURT: Okay, what if I have a compromise and I 

do what they did in Volker, V-O-L-K-E-R v Empire Blue Cross 

and Blue Shield, 155 AD2d, 229, First Department, 1989? 

In that case the court had the defendants bear half 

the costs and then at the conclusion of the trial for 

reapportionment of the cost pursuant to CPLR 904 (d)(I). 

Anyone have a problem with that? 

MR. GARBER: No, not from plaintiffs, Your Honor. 

MS. NEIDL: For defendants, yes, we would object to 

that. 

THE COURT: Okay, at this juncture, the Court will 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 52 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

52

order half the cost of disseminating the class mail without 

prejudice to either party making application at the 

conclusion of trial for reapportionment of the cost pursuant 

to CPLR Section 904 (d)(I). 

So, I basically did a Solomonic approach. 

At this stage, I would prefer that both parties 

including the plaintiffs have some skin in the game; I want 

them to pay something, and, also, I think it's unfair to 

have them bear the entire costs, so I have Liberty bear half 

the cost and plaintiff bear the other half of the cost. I 

think that would be the best approach in this case given the 

circumstances. 

Is there anything else that you have to discuss 

today? 

MR. GARBER: Yes, Your Honor. 

As you are familiar, we had discussed and this 

Court granted additional discovery post this Court 

potentially which this Court has now granted class 

certification, and we just want to make sure that the Court 

is aware of that and we are prepared to get on the phone 

with defendants as early as tomorrow or certainly by the end 

of this week to discuss the production of those additional 

documents so that the case can continue to move forward. 

THE COURT: Okay.

So, I just have one request. 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 53 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

53

Since I did this order from my chair and my 

chambers, and I did not write a decision, I would actually 

ask you to submit an order that would memorialize the 

decision stated on the record today. 

I would like to see the class definition and the 

certification of the class. That was changed a little bit, 

correct? 

MR. GARBER: Yes, Your Honor. 

We will immediately -- I will endeavor to try to 

get the court reporter's name and get the transcript as soon 

as possible. So as soon as we get the transcript and even 

before that, we will start preparing a proposed order and 

share that with defense counsel, so hopefully the parties 

submit an agreed upon proposed order to the Court and then 

we can move on to discovery such as the list of the class 

members provided by defendants and other documents which we 

provided them a list of the stuff that we were going to ask 

for after class certification. So they have been aware of 

the information that we want for over a year now. 

THE COURT: Counsel, I just want to make it clear, 

that I certified the class, I appointed plaintiff as class 

representative, I appointed plaintiff's attorney as class 

counsel. And I'm ordering Liberty to provide a complete 

list of all the class members. And I'm ordering Liberty to 

pay for half of the cost of the notice to class, and that is 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 54 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

54

the five parts of the relief -- five branches -- of the 

relief that you are seeking in your motion. 

MR. GARBER: Yes, Your Honor. 

Understood. 

THE COURT: And then we have to set a discovery. 

Do you want to do that now or you will do it among 

yourselves? 

MR. GARBER: Your Honor, we are hopeful that we can 

do this among ourselves, and given the Court issuing the 

order from the bench, given the age of the case, we are 

prepared to move as expeditiously as possible and we will 

bring any disputes to the Court in an expedited matter as 

soon as possible. 

We are hopeful again given that the parties had 

outlined the additional discovery that we were going to seek 

should the Court grant the class certification that 

defendants are aware and that we can work through that and 

that it is just a matter of how long it will take them to 

get us that information. 

THE COURT: Okay. 

So is there anything else to discuss because I have 

to get to my next conference which is in about five minutes? 

MS. NEIDL: Your Honor, from the defendants, we are 

obviously going to appeal Your Honor's ruling. I would ask 

for a stay during the interim. 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 55 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

55

THE COURT: You have to make a motion and I'm 

denying any oral stays. I will more than likely not issue a 

stay, so you may have to just go to the Appellate Division. 

I don't normally stay my own decisions because then why 

would I issue my own decision. 

So I respect your request for a stay but given the 

circumstances that this case has been delayed for eight 

months and this case is three years old, this Court denies 

any oral application for a stay, and more than likely, I 

will deny a written application for a stay as well. 

So I would suggest humbly that if you wish a stay 

of my own order that you go to the Appellate Division and 

seek redress there. 

MS. NEIDL: Understood. 

Thank you. 

THE COURT: Anything else from counsel? 

MR. GARBER: Nothing from plaintiff, Your Honor.

THE COURT: I just want to add one more point which 

I think I did not add, and I think I failed on one issue -- 

let me just get my notes. I am doing this from my desk -- I 

just wanted to clarify that with regard to damages, that the 

need to conduct individualized damage increase does not 

obviate the utility of the class mechanism for this action 

given predominant common issues of liability. 

I want to add that to my decision. And I am 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 56 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Proceedings

MONICA S. HORVATH - SENIOR COURT REPORTER

56

quoting Borden, B-O-R-D-E-N v 400 East 55th Street 

Associates LP. 

Off the record.

(Whereupon, there was a discussion held off the 

record.)

Back on the record.

The citation is 105 AD3d, 630, First Department, 

2013. 

I wish you all the best. Be safe and healthy. 

Please, order the transcript and submit an order. 

MR. GARBER: Thank you, Your Honor. 

THE COURT: Thank you.

Have a good day. 

MR. GARBER: Thank you, Your Honor.

* * * 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 57 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

MONICA HORVATH - SENIOR COURT REPORTER

57

THE ABOVE IS CERTIFIED TO BE

A TRUE AND ACCURATE TRANSCRIPT

OF THE PROCEEDING RECORDED BY ME

 

MONICA HORVATH

SENIOR COURT REPORTER

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 58 of 69
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

MONICA S. HORVATH - SENIOR COURT REPORTER

1

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 59 of 69
$

$1,000 [1] - 30:13

$100 [1] - 30:11

$220,000 [1] - 50:8

$5,000 [1] - 20:13

1

1 [5] - 29:15, 37:8, 

37:11, 40:6, 40:13

1-800 [1] - 50:16

10 [1] - 29:19

100 [1] - 33:16

100,000 [1] - 50:18

1013 [1] - 40:3

105 [1] - 56:7

10601 [2] - 1:19, 4:4

11 [1] - 44:2

118,000 [1] - 50:6

11:45 [2] - 34:21, 

34:22

12 [2] - 1:11, 44:2

121 [1] - 43:7

12207 [2] - 1:23, 4:17

129 [1] - 39:16

12:30 [1] - 26:10

1316790 [1] - 24:22

138 [1] - 39:16

14 [5] - 26:1, 26:5, 

26:15, 26:19, 42:19

15 [2] - 37:16, 40:3

151033 [1] - 37:15

151293/13 [1] - 1:6

155 [1] - 51:17

167 [1] - 42:19

1717 [2] - 2:3, 4:25

172 [2] - 24:21, 47:13

182 [1] - 39:12

1979 [1] - 43:3

1980 [1] - 39:8

1989 [1] - 51:17

1991 [1] - 42:20

1998 [2] - 39:13, 44:3

1999 [1] - 39:14

2

2 [1] - 37:9

20006 [2] - 2:3, 4:25

2005 [1] - 40:3

2008 [1] - 39:16

2009 [5] - 13:11, 

20:17, 23:3, 38:16, 

40:15

2010 [1] - 39:1

2011 [1] - 44:16

2012 [2] - 20:19, 37:15

2013 [1] - 56:8

2016 [4] - 32:2, 32:3, 

44:6

2017 [1] - 37:16

2018 [5] - 24:19, 

24:22, 47:1, 47:2, 

47:3

2019 [2] - 24:18, 36:25

2020 [2] - 1:11, 36:25

22 [1] - 26:21

229 [1] - 51:17

24 [1] - 42:19

251 [1] - 44:2

29 [1] - 40:15

3

326 [1] - 47:3

357 [1] - 26:5

362 [1] - 37:14

37 [1] - 7:9

3715273 [1] - 47:1

4

40 [2] - 23:5, 39:10

40,000 [6] - 33:21, 

33:22, 33:25, 39:19, 

44:9

400 [1] - 56:1

419 [1] - 47:3

420 [1] - 39:1

422 [1] - 39:1

423 [1] - 41:11

458 [2] - 24:21, 47:13

481 [1] - 38:16

5

50,000 [4] - 33:22, 

49:18, 49:19, 49:21

51 [1] - 26:21

534 [1] - 44:15

54 [2] - 1:22, 4:17

542 [1] - 43:8

55th [1] - 56:1

59 [1] - 39:16

6

614 [1] - 43:3

620 [1] - 43:3

630 [1] - 56:7

65 [1] - 38:16

68 [1] - 43:3

7

7009062 [2] - 32:2, 

44:6

72 [2] - 39:7, 39:12

74 [2] - 39:1, 41:11

77 [1] - 39:13

8

82 [1] - 44:15

83 [1] - 39:7

9

9 [1] - 29:19

90,000 [8] - 13:15, 

16:4, 21:23, 23:4, 

33:6, 33:21, 39:20, 

44:9

901 [5] - 5:24, 8:9, 

8:12, 10:17, 37:19

902 [7] - 5:25, 6:25, 

7:1, 8:9, 8:12, 10:17, 

44:24

904 [2] - 51:20, 52:4

96 [1] - 39:8

A

a.m [1] - 26:10

A.W.I [1] - 37:5

abandoning [1] - 

21:15

aberration [1] - 27:20

able [3] - 46:9, 46:15, 

46:16

ABOVE [1] - 56:16

absent [3] - 18:8, 

35:14, 35:16

absolutely [2] - 28:23, 

31:13

absorb [1] - 51:14

acceptable [1] - 10:2

accepting [1] - 10:12

according [1] - 12:10

account [1] - 46:8

ACCURATE [1] - 

56:16

act [3] - 18:8, 42:22, 

44:23

action [28] - 5:9, 14:1, 

18:14, 21:21, 22:12, 

23:19, 27:25, 33:11, 

34:9, 35:15, 36:8, 

38:9, 38:18, 38:22, 

38:23, 42:18, 42:22, 

43:16, 43:20, 43:22, 

45:2, 45:4, 45:13, 

46:18, 47:6, 48:18, 

49:3, 55:23

actions [6] - 5:23, 8:6, 

45:17, 46:8, 46:14, 

48:24

acts [2] - 30:15, 34:15

AD2d [6] - 39:7, 42:19, 

43:3, 44:2, 44:15, 

51:17

AD3d [9] - 24:21, 

38:16, 39:1, 39:16, 

40:3, 41:11, 43:8, 

47:13, 56:7

add [7] - 20:7, 21:20, 

34:19, 40:21, 55:18, 

55:19, 55:25

additional [4] - 42:23, 

52:17, 52:22, 54:15

address [7] - 3:24, 

4:17, 4:25, 10:7, 

35:3, 35:5, 49:6

addressed [3] - 10:8, 

19:24, 21:14

adequacy [7] - 6:14, 

13:8, 19:24, 31:22, 

32:10, 42:7, 42:8

adequate [4] - 32:7, 

32:20, 32:21, 43:18

adequately [2] - 38:7, 

46:9

adjudicating [1] - 

43:23

adjudication [1] - 

38:10

administer [1] - 50:13

administration [2] - 

50:1, 50:10

administrative [8] - 

33:25, 34:2, 34:6, 

34:8, 34:12, 34:14, 

44:19, 45:21

administratively [2] - 

44:13, 50:2

administrator [3] - 

49:24, 50:2, 50:7

admissibility [1] - 

10:10

admit [1] - 26:7

advocate [1] - 34:16

affect [1] - 9:8

affected [2] - 6:2, 6:9

affecting [1] - 38:2

affidavit [5] - 11:11, 

15:4, 19:7, 20:1, 

35:11

affiliates [2] - 17:11, 

19:13

affirmance [1] - 47:13

affirmation [1] - 37:12

affirmed [1] - 24:21

age [1] - 54:10

aggrieved [3] - 11:16, 

33:6, 34:7

ago [2] - 24:16, 33:15

agree [1] - 21:15

agreed [2] - 12:10, 

MONICA S. HORVATH - SENIOR COURT REPORTER

1

53:14

agreement [3] - 15:8, 

16:10, 18:19

agreements [1] - 

16:13

Albany [5] - 1:23, 

4:17, 33:2, 33:14, 

33:25

allegation [2] - 24:3, 

43:10

allegations [3] - 7:16, 

12:7, 12:9

allege [3] - 7:10, 

12:11, 14:9

alleged [5] - 5:24, 

14:14, 16:16, 25:16, 

41:12

alleging [2] - 11:12, 

24:25

alluded [2] - 24:14, 

37:3

ally [1] - 28:23

alone [1] - 3:14

alter [1] - 36:15

alternative [2] - 33:9, 

33:10

Ambit [1] - 47:2

amended [1] - 39:14

America [1] - 40:3

American [4] - 31:25, 

44:5, 46:22, 46:25

amount [2] - 19:11, 

27:15

amounts [1] - 43:24

AND [2] - 1:4, 56:16

Ansah [1] - 37:4

ANSAH [1] - 37:5

anyway [2] - 8:23, 

28:22

apologize [1] - 32:12

appeal [1] - 54:24

Appeals [1] - 36:18

appearance [1] - 4:6

APPEARANCES [2] - 

1:16, 1:24

Appellate [11] - 24:13, 

24:20, 46:2, 47:12, 

47:20, 48:6, 48:8, 

48:13, 49:1, 55:3, 

55:12

appliances [1] - 28:10

applicable [4] - 18:25, 

27:17, 47:16, 47:23

application [3] - 52:2, 

55:9, 55:10

applied [3] - 10:11, 

16:3, 28:14

applies [1] - 6:12

apply [2] - 8:22, 29:1

appointed [2] - 53:21, 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 60 of 69
53:22

approach [2] - 52:5, 

52:11

appropriate [3] - 5:9, 

38:22, 49:11

areas [1] - 32:16

argued [1] - 44:18

argues [2] - 46:20, 

47:9

arguing [1] - 24:7

argument [14] - 8:25, 

9:10, 10:6, 11:3, 

20:25, 23:14, 24:15, 

28:2, 31:17, 31:18, 

41:3, 44:17, 44:20, 

46:11

arguments [5] - 8:13, 

35:2, 35:8, 41:2, 

48:3

arise [2] - 30:7, 41:15

assets [2] - 30:12, 

41:20

associate [1] - 3:3

Associates [1] - 56:2

assumptions [1] - 

11:19

assurance [1] - 42:23

attached [2] - 15:4, 

37:6

attempt [1] - 10:4

attempted [1] - 7:17

attempting [1] - 10:7

attempts [1] - 7:8

Attorney [2] - 1:18, 

1:22

attorney [3] - 31:24, 

43:1, 53:22

attorneys [2] - 13:1, 

42:23

Attorneys [1] - 2:2

atypical [1] - 19:16

August [2] - 1:11, 

36:25

available [4] - 38:9, 

42:17, 43:16, 51:12

Avenue [2] - 2:3, 4:25

avoid [1] - 9:6

award [1] - 20:13

aware [4] - 7:24, 

52:20, 53:18, 54:17

awareness [1] - 43:7

B

backdoor [1] - 10:4

background [1] - 

42:12

bank [1] - 30:13

based [46] - 5:13, 

5:16, 5:19, 5:23, 6:6, 

6:11, 8:9, 9:6, 9:7, 

9:18, 9:24, 9:25, 

11:15, 11:19, 11:20, 

15:11, 16:22, 17:1, 

18:20, 23:16, 25:2, 

25:13, 25:21, 27:25, 

28:15, 29:3, 29:11, 

29:22, 30:8, 30:16, 

36:2, 36:3, 40:7, 

40:12, 40:22, 40:23, 

41:8, 41:14, 41:23, 

41:24, 41:25, 43:11

basing [1] - 18:16

basis [1] - 38:13

baton [1] - 35:17

BE [1] - 56:16

bear [7] - 29:24, 

38:12, 49:12, 51:18, 

52:9, 52:10

become [2] - 7:25, 

18:6

BEFORE [1] - 1:13

beginning [2] - 14:14, 

51:9

behalf [5] - 4:20, 4:21, 

6:20, 31:21, 37:21

believes [2] - 24:10, 

39:20

bench [2] - 37:2, 

54:10

best [4] - 18:8, 43:22, 

52:11, 56:9

better [2] - 33:3, 43:12

between [9] - 13:11, 

33:3, 34:1, 36:22, 

39:19, 42:11, 43:5, 

47:22, 49:10

billed [3] - 18:20, 

19:13, 21:24

bit [2] - 29:12, 53:6

black [1] - 8:14

blank [1] - 27:13

BLANKINSHIP [2] - 

1:17, 4:2

Blankinship [2] - 3:2, 

4:2

blindly [1] - 11:8

BLT [5] - 1:4, 23:10, 

24:20

Blue [2] - 51:16, 51:17

boilerplate [1] - 20:1

Borden [1] - 56:1

BORDEN [1] - 56:1

borne [1] - 10:21

bottom [4] - 26:2, 

26:5, 26:16, 27:3

Boyle [1] - 44:1

Bradley [2] - 3:4, 4:8

BRADLEY [2] - 1:20, 

4:8

branches [1] - 54:1

breach [21] - 5:18, 

5:21, 5:22, 6:2, 6:6, 

7:21, 8:1, 14:16, 

18:23, 23:15, 31:12, 

35:7, 35:13, 41:24, 

43:10, 46:21, 46:23, 

46:25, 47:6, 48:5, 

48:25

breached [2] - 9:19, 

47:25

breaches [1] - 9:8

breaking [2] - 8:7, 

28:3

brief [9] - 26:2, 26:3, 

26:4, 26:7, 29:9, 

32:8, 32:20, 35:3, 

47:5

briefing [1] - 49:9

briefs [4] - 15:4, 26:8, 

26:13, 49:11

bring [2] - 48:5, 54:12

broad [1] - 23:6

Broadway [2] - 1:18, 

4:4

broker [1] - 18:3

brought [3] - 7:2, 

33:2, 34:6

building [2] - 12:1, 

17:9

bulk [1] - 49:22

burden [7] - 10:20, 

11:1, 23:7, 38:12, 

39:23, 42:6, 43:18

business [2] - 14:6

buyers [1] - 47:16

BY [4] - 1:19, 1:23, 

2:4, 56:17

C

calculate [7] - 9:17, 

10:16, 16:20, 24:4, 

24:5, 36:4, 36:6

calculated [7] - 7:11, 

7:14, 12:10, 12:12, 

16:4, 36:13, 36:14

calculating [10] - 9:22, 

9:24, 12:24, 16:17, 

17:4, 20:20, 23:25, 

35:21, 36:2, 48:21

calculation [2] - 

10:14, 12:23

calendar [2] - 36:24, 

37:1

cap [1] - 40:20

case [73] - 6:22, 7:4, 

7:5, 7:7, 7:8, 7:20, 

7:24, 8:9, 8:18, 8:22, 

11:22, 14:14, 16:2, 

17:7, 18:13, 19:20, 

20:7, 20:21, 21:25, 

23:21, 24:9, 24:18, 

25:19, 26:8, 31:2, 

31:3, 31:12, 31:14, 

31:18, 32:1, 32:3, 

33:1, 34:6, 34:20, 

34:21, 35:8, 35:14, 

35:20, 35:21, 36:15, 

36:18, 36:24, 39:17, 

39:21, 41:18, 42:2, 

42:3, 43:9, 43:15, 

44:4, 44:7, 44:14, 

44:18, 45:14, 46:5, 

46:20, 46:21, 46:22, 

46:23, 46:25, 47:5, 

47:14, 49:10, 49:13, 

51:18, 52:11, 52:23, 

54:10, 55:7, 55:8

cases [32] - 5:8, 5:22, 

6:18, 6:20, 7:18, 

7:21, 8:5, 11:18, 

11:22, 11:23, 12:7, 

12:21, 13:24, 16:15, 

17:5, 19:21, 24:2, 

25:17, 31:6, 31:11, 

31:15, 33:4, 33:20, 

33:25, 34:2, 44:9, 

44:13, 45:19, 45:22, 

46:2, 46:24

Castiel [2] - 7:5, 44:8

Center [1] - 42:19

cents [3] - 36:12, 

49:25

certain [3] - 21:14, 

27:15, 31:11

certainly [1] - 52:21

certification [24] - 5:2, 

5:9, 5:21, 7:19, 7:25, 

8:13, 8:24, 9:11, 

11:3, 13:3, 13:5, 

19:22, 22:2, 26:11, 

36:17, 37:4, 37:18, 

38:14, 38:21, 38:22, 

52:19, 53:6, 53:18, 

54:16

certifications [2] - 

8:23, 18:6

certified [5] - 7:5, 8:3, 

11:6, 39:6, 53:21

CERTIFIED [1] - 56:16

certifies [1] - 10:19

certify [4] - 8:6, 9:1, 

47:19, 49:3

certifying [2] - 5:22, 

8:7

CFO [3] - 12:1, 17:9, 

20:2

chair [1] - 53:1

challenge [2] - 23:5, 

MONICA S. HORVATH - SENIOR COURT REPORTER

2

32:9

challenged [4] - 6:1, 

22:25, 32:9, 39:18

chambers [1] - 53:2

chance [1] - 22:22

changed [5] - 14:16, 

20:20, 23:25, 24:1, 

53:6

character [1] - 42:13

charge [7] - 5:16, 6:6, 

10:1, 12:10, 25:1, 

29:22, 40:7

charged [16] - 6:11, 

11:14, 12:17, 14:22, 

20:22, 22:16, 24:8, 

24:10, 27:12, 29:24, 

35:23, 36:9, 36:11, 

36:12, 40:16, 47:16

charges [1] - 40:9

charging [3] - 5:19, 

6:12, 48:1

chart [1] - 11:13

check [1] - 42:23

Cherin [1] - 4:22

CHERIN [1] - 4:23

Cherr [1] - 40:2

CHERR [1] - 40:2

CHERRIN [1] - 2:2

cherry [1] - 12:16

chose [1] - 17:18

Chris [1] - 19:7

circumstances [3] - 

31:10, 52:12, 55:7

citation [3] - 24:20, 

47:1, 56:7

cite [4] - 26:17, 44:4, 

47:4, 47:12

cited [9] - 7:18, 11:23, 

12:22, 15:4, 19:21, 

25:17, 42:2, 46:24, 

49:10

citing [9] - 38:14, 

38:24, 39:6, 39:11, 

40:2, 41:10, 42:18, 

43:1, 43:7

CIVIL [1] - 1:2

claim [13] - 7:13, 9:11, 

12:8, 13:14, 14:17, 

17:12, 30:15, 30:21, 

30:24, 33:15, 45:9, 

48:5

claimant [1] - 32:1

claimants [1] - 32:5

claimed [1] - 14:18

claims [23] - 6:15, 

6:23, 7:2, 7:22, 8:2, 

11:7, 18:11, 18:16, 

19:23, 20:8, 20:15, 

22:14, 30:6, 30:8, 

38:3, 38:4, 41:6, 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 61 of 69
41:7, 41:14, 43:7, 

50:1, 50:6, 50:12

Claridge [10] - 7:5, 

7:9, 7:16, 12:22, 

13:24, 16:15, 16:18, 

31:25, 44:5, 46:22

clarify [3] - 24:25, 

29:12, 55:21

class [151] - 5:2, 5:9, 

5:11, 5:18, 5:20, 

5:23, 6:5, 6:13, 7:25, 

8:3, 8:6, 8:7, 8:16, 

8:22, 8:24, 9:1, 9:4, 

9:12, 9:20, 10:19, 

11:3, 11:16, 12:1, 

12:3, 12:18, 12:21, 

13:3, 13:5, 13:9, 

14:12, 15:2, 15:9, 

15:16, 15:21, 15:25, 

16:7, 17:20, 18:5, 

18:8, 18:14, 18:16, 

18:19, 19:22, 20:8, 

20:11, 20:15, 20:16, 

21:21, 22:1, 22:13, 

23:1, 23:6, 23:8, 

23:9, 23:19, 26:11, 

27:8, 27:20, 27:25, 

28:4, 28:5, 28:6, 

28:8, 28:22, 29:5, 

29:8, 30:8, 30:21, 

33:21, 33:24, 34:9, 

35:11, 35:14, 35:15, 

35:17, 35:18, 36:7, 

36:8, 36:17, 37:4, 

37:18, 37:20, 37:22, 

38:1, 38:5, 38:7, 

38:9, 38:13, 38:17, 

38:20, 38:22, 39:5, 

39:6, 39:19, 39:21, 

40:1, 40:5, 40:11, 

40:12, 40:18, 41:8, 

41:13, 41:15, 41:19, 

42:5, 42:11, 42:15, 

42:22, 42:25, 43:5, 

43:20, 43:22, 44:12, 

44:25, 45:7, 45:13, 

46:1, 46:8, 46:9, 

46:10, 46:13, 46:17, 

46:18, 47:6, 47:10, 

47:19, 48:15, 48:17, 

48:24, 49:3, 49:13, 

49:18, 50:6, 50:9, 

50:12, 52:1, 52:18, 

53:5, 53:6, 53:15, 

53:18, 53:21, 53:22, 

53:24, 53:25, 54:16, 

55:23

classes [3] - 6:20, 

11:6, 16:10

clear [4] - 40:23, 41:2, 

45:18, 53:20

clearly [2] - 29:17, 

40:4

clients [2] - 46:15, 

46:16

cluster [1] - 29:13

Co [2] - 39:12, 39:15

COHEN [1] - 31:5

colleague [3] - 3:4, 

4:5, 4:18

coming [2] - 17:4, 

35:10

commenced [3] - 

14:20, 45:6, 45:25

comment [1] - 26:6

comments [1] - 35:4

commercial [9] - 

11:25, 12:2, 12:4, 

13:13, 16:9, 17:8, 

17:23, 18:2, 31:9

common [7] - 5:17, 

6:4, 28:3, 29:21, 

37:25, 40:7, 55:24

commonality [10] - 

6:4, 23:13, 23:15, 

25:19, 28:1, 30:10, 

39:25, 40:5, 40:11, 

47:19

communicate [2] - 

46:15, 46:16

companies [3] - 

28:10, 28:11, 32:17

company [2] - 31:9, 

31:20

company's [1] - 32:5

comparison [3] - 10:1, 

16:22, 36:2

competent [1] - 43:14

complained [1] - 

20:23

complete [1] - 53:23

completely [2] - 

12:24, 15:20

complicated [1] - 

23:17

complied [1] - 41:25

comply [2] - 9:19, 

41:13

component [4] - 

25:21, 30:6, 32:25, 

41:23

components [4] - 

12:14, 16:21, 17:1, 

24:1

comport [1] - 10:3

compromise [1] - 

51:15

concede [1] - 21:22

conceded [1] - 19:9

concentrating [1] - 

45:9

concerned [1] - 23:9

concerning [3] - 13:6, 

45:6, 45:24

concerns [1] - 28:23

conclude [1] - 48:11

concluded [1] - 21:10

conclusion [2] - 

51:19, 52:3

conclusions [1] - 

11:20

conditions [5] - 11:13, 

16:16, 18:18, 47:23, 

47:25

conduct [10] - 6:9, 

6:21, 12:8, 30:7, 

30:15, 41:7, 41:16, 

41:22, 42:4, 55:22

conference [1] - 54:22

confidence [1] - 42:15

conflict [3] - 42:10, 

43:4, 43:13

Connecticut [1] - 47:2

considerable [1] - 

46:1

consideration [1] - 

45:15

considered [1] - 42:9

consistent [1] - 12:13

consisting [1] - 40:13

Construction [2] - 

38:15, 44:15

construed [1] - 38:21

consumer [8] - 30:12, 

31:1, 31:10, 31:21, 

34:7, 34:12, 34:16

consumers [7] - 

11:24, 12:2, 12:5, 

15:9, 17:21, 31:6, 

34:9

consuming [1] - 9:3

contend [1] - 47:15

contested [1] - 7:25

context [3] - 25:1, 

50:4, 50:5

continue [3] - 17:10, 

47:16, 52:23

continued [1] - 15:13

CONTINUED [1] - 1:24

contract [57] - 5:18, 

5:21, 5:22, 6:3, 6:6, 

7:12, 7:15, 7:21, 8:2, 

9:17, 9:19, 11:7, 

12:8, 12:13, 13:18, 

13:19, 13:21, 14:6, 

14:17, 14:18, 14:19, 

14:20, 15:1, 15:10, 

17:12, 17:17, 17:21, 

18:15, 18:17, 18:23, 

18:24, 22:16, 23:16, 

24:3, 24:6, 25:7, 

25:22, 26:18, 26:25, 

29:2, 30:24, 31:12, 

35:8, 35:13, 35:22, 

40:20, 41:24, 43:11, 

46:21, 46:23, 46:25, 

47:6, 47:18, 47:22, 

48:5, 48:25

contracts [11] - 5:12, 

6:10, 8:5, 15:5, 16:9, 

18:4, 23:24, 25:20, 

29:1, 29:21, 40:6

contractual [1] - 47:15

contradicted [1] - 

20:2

contrary [3] - 14:18, 

15:11, 18:10

controlling [1] - 45:1

controversy [4] - 

38:11, 43:23, 45:6, 

45:25

Corp [4] - 24:21, 39:7, 

43:3, 44:15

CORP [1] - 1:7

correct [7] - 25:2, 

25:14, 25:15, 25:23, 

27:16, 34:4, 53:7

correctly [1] - 48:3

cost [10] - 10:20, 

49:14, 50:7, 51:14, 

51:20, 52:1, 52:3, 

52:10, 53:25

costs [5] - 49:5, 49:12, 

50:20, 51:19, 52:9

counsel [39] - 3:10, 

3:22, 4:12, 6:17, 

6:22, 7:7, 10:23, 

12:1, 17:9, 21:4, 

25:18, 29:16, 31:23, 

32:4, 32:7, 33:18, 

34:13, 34:23, 34:25, 

37:3, 39:17, 39:20, 

40:25, 42:1, 42:16, 

43:14, 44:12, 45:19, 

46:9, 46:11, 46:20, 

46:24, 47:9, 49:7, 

50:25, 53:13, 53:20, 

53:23, 55:16

count [1] - 33:1

country [2] - 6:20, 

33:13

County [5] - 33:2, 

33:3, 34:1, 34:3, 

37:15

COUNTY [1] - 1:2

course [10] - 6:9, 

14:11, 16:6, 30:7, 

30:15, 36:10, 41:7, 

41:15, 41:22, 42:4

Court [41] - 7:22, 8:6, 

MONICA S. HORVATH - SENIOR COURT REPORTER

3

9:1, 10:6, 10:19, 

10:22, 18:22, 19:4, 

28:24, 28:25, 29:7, 

35:4, 36:16, 36:18, 

37:17, 41:17, 42:3, 

42:9, 43:20, 44:7, 

46:4, 47:1, 47:14, 

48:3, 48:23, 48:24, 

49:3, 49:11, 51:11, 

51:13, 51:25, 52:17, 

52:18, 52:19, 53:14, 

54:9, 54:12, 54:16, 

55:8

COURT [63] - 1:2, 

2:22, 3:5, 3:9, 3:14, 

3:17, 3:20, 4:5, 4:11, 

4:18, 5:1, 5:7, 10:24, 

21:4, 21:7, 21:9, 

21:17, 22:20, 23:11, 

24:12, 25:10, 25:25, 

26:3, 26:6, 26:12, 

26:19, 26:22, 27:5, 

27:9, 27:12, 27:17, 

27:23, 28:13, 28:20, 

29:10, 31:2, 31:14, 

31:22, 32:11, 32:23, 

33:19, 34:11, 34:18, 

34:25, 36:21, 37:10, 

37:13, 49:14, 49:19, 

50:19, 50:22, 50:25, 

51:15, 51:25, 52:24, 

53:20, 54:5, 54:20, 

55:1, 55:16, 55:18, 

56:12, 56:19

court [12] - 8:3, 11:8, 

18:24, 19:7, 38:19, 

44:17, 44:19, 44:22, 

47:21, 51:18, 53:10

Court's [3] - 46:3, 

47:13, 49:4

court's [1] - 11:9

courts [3] - 9:5, 11:5, 

15:9

covering [1] - 47:23

CPLR [5] - 5:24, 

37:19, 44:24, 51:20, 

52:4

credited [1] - 22:11

criteria [1] - 38:13

critique [1] - 10:12

critiques [1] - 10:8

Cross [1] - 51:16

cures [1] - 28:18

customer [8] - 11:12, 

15:13, 16:3, 16:10, 

22:4, 22:8, 22:16, 

23:2

customers [31] - 5:19, 

6:2, 7:3, 9:2, 13:10, 

13:12, 13:13, 13:14, 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 62 of 69
13:15, 13:16, 13:25, 

14:2, 16:4, 16:11, 

17:8, 17:14, 17:23, 

18:2, 20:18, 21:24, 

24:11, 25:20, 29:5, 

30:20, 33:6, 35:6, 

35:9, 40:13, 40:16, 

40:19

cut [2] - 50:8, 50:9

CYNTHIA [1] - 1:23

Cynthia [3] - 3:12, 

3:19, 4:15

D

d)(I) [2] - 51:20, 52:4

D.C [1] - 2:3

d/b/a [1] - 1:7

damage [1] - 55:22

damages [19] - 9:22, 

9:24, 10:16, 14:25, 

15:18, 15:22, 16:1, 

16:4, 16:25, 17:4, 

17:6, 21:25, 22:17, 

36:2, 36:5, 36:17, 

48:19, 48:20, 55:21

data [3] - 9:2, 9:4, 22:3

date [1] - 24:17

dated [1] - 37:15

DC [1] - 4:25

dealing [2] - 8:5, 47:6

deals [1] - 30:19

dealt [1] - 48:20

deceptive [1] - 12:8

decided [4] - 8:22, 

18:9, 19:1, 19:15

decision [17] - 8:12, 

24:17, 24:19, 24:21, 

24:23, 33:16, 36:23, 

37:2, 37:4, 37:15, 

37:17, 46:3, 49:4, 

53:2, 53:4, 55:5, 

55:25

decisions [1] - 55:4

declaration [1] - 9:23

default [2] - 25:21, 

47:17

defaults [1] - 40:16

defeat [4] - 5:14, 9:11, 

18:5, 46:13

defendant [8] - 2:2, 

3:13, 3:16, 3:18, 7:8, 

8:23, 34:24, 50:20

Defendant [1] - 1:22

defendant's [6] - 4:12, 

5:14, 10:12, 40:13, 

45:4, 48:3

defendants [24] - 

3:10, 4:20, 7:17, 

7:20, 8:17, 8:20, 9:6, 

9:10, 9:11, 10:4, 

10:9, 10:16, 29:5, 

47:15, 47:17, 47:25, 

48:11, 51:13, 51:18, 

51:23, 52:21, 53:16, 

54:17, 54:23

Defendants [1] - 1:9

defense [5] - 10:23, 

19:12, 45:1, 46:18, 

53:13

defenses [12] - 8:15, 

15:16, 15:19, 18:5, 

19:16, 19:20, 38:3, 

38:4, 46:19, 47:8, 

47:9

defined [6] - 13:9, 

16:8, 16:11, 23:2, 

28:7, 28:14

definition [4] - 23:6, 

23:8, 28:23, 53:5

delayed [3] - 34:21, 

37:1, 55:7

demonstrate [1] - 48:9

demonstrates [1] - 

48:4

denies [1] - 55:8

denominator [1] - 

28:3

deny [1] - 55:10

denying [1] - 55:2

department [3] - 12:1, 

17:9, 18:3

Department [13] - 

38:16, 39:1, 39:8, 

39:16, 40:3, 42:20, 

42:21, 43:3, 43:22, 

44:3, 44:16, 51:17, 

56:7

deposition [1] - 12:23

depositions [1] - 6:16

derive [1] - 41:6

describe [1] - 16:16

desirability [1] - 45:8

desirable [1] - 46:5

desk [1] - 55:20

determine [3] - 15:1, 

15:8, 39:3

determined [1] - 18:22

Development [1] - 

44:15

difference [1] - 12:15

differences [2] - 25:1, 

43:25

different [17] - 10:14, 

12:25, 15:5, 15:20, 

15:24, 16:8, 23:24, 

24:9, 25:5, 27:9, 

27:11, 30:19, 30:20, 

30:21, 30:25, 36:9, 

36:10

differently [1] - 20:16

difficult [1] - 46:12

difficulties [2] - 45:12, 

46:7

diligently [1] - 6:15

directly [1] - 47:21

disagrees [1] - 10:15

discovery [5] - 6:17, 

52:17, 53:15, 54:5, 

54:15

discretion [2] - 38:18, 

38:19

discuss [3] - 52:13, 

52:22, 54:21

discussed [1] - 52:16

discussion [1] - 56:4

dismiss [1] - 18:10

disparity [1] - 49:9

disposition [1] - 42:24

dispute [3] - 12:12, 

24:5, 43:21

disputes [2] - 13:6, 

54:12

disregard [1] - 7:22

disseminating [1] - 

52:1

distinction [1] - 30:23

distinguish [1] - 7:17

distinguishable [1] - 

16:19

distinguished [1] - 

25:18

distinguishing [2] - 

41:18, 48:16

District [11] - 7:6, 

32:2, 33:12, 34:10, 

39:13, 44:6, 44:7, 

44:8, 47:1, 47:2, 

47:3

divergent [1] - 41:19

Division [9] - 24:13, 

24:20, 47:20, 48:6, 

48:8, 48:13, 49:1, 

55:3, 55:12

Division's [1] - 47:12

Docket [1] - 26:5

Doctrine [2] - 19:1, 

48:7

doctrine [1] - 48:14

documentary [1] - 

44:1

documents [3] - 

46:14, 52:23, 53:16

Dollar [1] - 12:6

done [1] - 23:8

door [2] - 9:15

Dornberger [1] - 39:11

DORNBERGER [1] - 

39:11

down [3] - 24:17, 28:3, 

29:19

Dr [1] - 9:23

dropped [2] - 14:5, 

20:25

due [7] - 23:16, 25:21, 

37:1, 41:24, 43:11, 

48:11, 48:24

during [3] - 22:11, 

27:7, 54:25

duty [1] - 46:14

E

early [1] - 52:21

East [1] - 56:1

Eastern [1] - 47:3

ECKERT [2] - 2:2, 

4:22

Eckert [2] - 3:15, 4:21

Edwards [2] - 7:20, 

46:24

effective [1] - 9:7

efficiency [1] - 49:23

efficient [1] - 38:10

eight [3] - 36:23, 

36:25, 55:7

either [8] - 12:19, 

13:20, 14:2, 14:6, 

25:21, 28:12, 29:5, 

52:2

electricity [11] - 5:10, 

5:13, 5:20, 9:18, 

27:14, 29:3, 29:22, 

29:25, 40:8, 40:10, 

40:14

element [10] - 23:13, 

39:2, 39:18, 39:24, 

41:4, 42:7, 43:19, 

45:15, 46:7

Empire [1] - 51:16

enabled [1] - 48:10

enacted [1] - 8:10

encouraged [1] - 

13:25

end [8] - 10:15, 13:19, 

13:22, 17:22, 18:1, 

20:8, 50:13, 52:21

endeavor [1] - 53:9

endorsing [1] - 9:5

Energy [1] - 47:2

energy [3] - 18:3, 

32:5, 32:17

enforceable [1] - 

47:22

enrolled [2] - 13:16, 

30:22

enrollment [1] - 35:9

entered [1] - 25:20

entering [1] - 6:9

enterprise [2] - 11:25, 

MONICA S. HORVATH - SENIOR COURT REPORTER

4

51:7

entertain [1] - 34:6

entire [4] - 5:18, 

30:21, 35:17, 52:9

entirely [2] - 16:18, 

27:11

entities [4] - 12:2, 

12:4, 30:25

entitled [3] - 15:15, 

20:12

entity [1] - 30:11

envelope [1] - 50:17

Environmental [1] - 

44:2

equally [2] - 6:12, 9:19

ESCO [9] - 7:18, 8:2, 

11:22, 12:9, 12:19, 

16:15, 18:13, 24:4, 

31:6

ESCO's [2] - 11:21, 

17:10

ESCO'S [10] - 6:21, 

11:6, 11:18, 16:23, 

19:14, 32:6, 45:23, 

46:21, 48:24

ESQ [4] - 1:19, 1:20, 

1:23, 2:4

essentially [2] - 9:2, 

19:9

establish [2] - 15:16, 

17:6

established [2] - 

18:11, 18:15

establishes [4] - 

14:24, 16:7, 18:1, 

20:19

establishing [2] - 

11:2, 38:12

establishment [1] - 

50:16

estimate [3] - 39:19, 

49:15, 50:10

estimated [1] - 39:22

eventually [1] - 9:16

everywhere [2] - 33:3, 

34:1

evidence [10] - 5:14, 

11:2, 14:24, 20:19, 

33:7, 43:4, 44:1, 

48:4, 51:3

evidentiary [1] - 38:13

eviscerate [1] - 46:18

exact [1] - 24:17

exactly [4] - 14:23, 

24:6, 28:25, 29:13

example [1] - 22:4

except [1] - 17:5

exclude [1] - 40:18

exclusion [1] - 40:21

exercising [1] - 38:19

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 63 of 69
exhaust [1] - 44:19

exhaustive [1] - 37:4

Exhibit [1] - 37:11

exhibit [1] - 37:6

exist [3] - 39:6, 47:21, 

47:24

exorbitant [1] - 48:1

expedited [1] - 54:12

expeditiously [1] - 

54:11

experience [1] - 42:15

experienced [1] - 

43:15

expert [12] - 9:22, 

10:11, 10:13, 10:15, 

11:18, 12:14, 12:15, 

13:1, 17:3, 19:10, 

21:1, 36:1

expert's [3] - 10:3, 

11:20, 16:24

experts [2] - 10:7, 

36:14

expiration [1] - 47:18

expired [2] - 15:14, 

22:5

extent [4] - 20:17, 

23:5, 45:5, 45:24

eye [1] - 20:4

F

fact [18] - 5:15, 6:5, 

6:12, 7:24, 18:12, 

18:20, 18:21, 19:2, 

20:6, 24:14, 29:14, 

31:3, 33:9, 36:9, 

37:25, 47:21, 47:24, 

49:2

factor [1] - 41:18

factors [6] - 6:25, 7:1, 

12:11, 13:6, 15:25, 

42:9

facts [5] - 15:19, 

23:21, 23:23, 44:23, 

48:10

failed [6] - 11:10, 12:9, 

13:20, 16:20, 44:18, 

55:19

failing [1] - 6:6

failure [3] - 15:17, 

23:16, 41:13

fair [1] - 38:10

fairly [1] - 38:6

false [1] - 7:13

falsely [1] - 7:20

familiar [3] - 36:16, 

43:14, 52:16

familiarity [1] - 42:14

far [1] - 23:9

faults [1] - 35:10

feature [1] - 48:17

Federal [2] - 48:23

fee [2] - 48:1, 48:12

fees [1] - 50:1

few [4] - 5:8, 14:8, 

21:9, 35:3

fictional [5] - 12:16, 

12:20, 17:1, 17:5, 

35:24

fifty [2] - 26:7, 36:12

fifty-one [1] - 26:7

figure [3] - 19:10, 

21:25, 22:15

figured [1] - 50:7

figuring [1] - 22:17

file [1] - 33:15

fill [1] - 27:13

finally [4] - 10:18, 

26:9, 36:16, 38:8

financial [2] - 42:17, 

43:16

fine [2] - 27:18, 32:11

finished [1] - 26:9

Finkelstein [2] - 3:2, 

4:1

FINKELSTEIN [1] - 

1:17

firm [14] - 3:24, 4:9, 

4:15, 4:22, 6:19, 

32:1, 32:9, 32:10, 

32:15, 32:16, 32:18, 

43:17, 44:4

First [10] - 38:16, 39:1, 

42:20, 42:21, 43:3, 

43:21, 44:2, 44:15, 

51:17, 56:7

first [14] - 14:15, 

22:25, 25:7, 29:17, 

29:19, 31:8, 31:19, 

39:2, 39:23, 45:14, 

46:20, 47:5, 47:7, 

50:14

FISH [1] - 1:4

five [7] - 10:5, 38:9, 

42:17, 45:12, 54:1, 

54:22

fixed [14] - 13:18, 

13:19, 14:1, 14:2, 

14:5, 17:18, 17:21, 

17:24, 22:4, 22:6, 

22:8, 25:22, 28:12, 

41:1

Flex [2] - 27:4, 29:4

flows [1] - 30:1

fluctuate [3] - 15:7, 

16:13, 25:9

fluctuates [1] - 25:12

focus [2] - 18:7, 20:21

follow [2] - 11:8, 14:11

following [1] - 42:9

follows [2] - 16:2, 

26:25

Foot [1] - 40:18

forth [4] - 9:22, 10:18, 

44:23, 49:9

forty [1] - 36:12

forum [2] - 45:10, 46:5

forward [9] - 11:2, 

11:4, 11:11, 17:1, 

23:7, 24:11, 35:10, 

51:3, 52:23

four [1] - 38:6

fours [2] - 7:4, 16:18

Fourth [1] - 40:3

frankly [2] - 32:16, 

46:15

fraud [1] - 25:16

FRD [2] - 39:12, 47:3

Frei [2] - 3:2, 4:2

FREI [1] - 1:17

Frei-Pearson [2] - 3:2, 

4:2

FREI-PEARSON [1] - 

1:17

FREIPEARSON [1] - 

4:3

Friar [1] - 39:6

FRIAR [1] - 39:7

full [1] - 48:9

fully [1] - 10:8

function [1] - 42:22

funds [1] - 20:11

G

G-A-F-T-N-E-R [1] - 

4:24

GAFTNER [3] - 2:4, 

3:15, 4:19

Gaftner [3] - 3:15, 

4:19, 4:24

game [1] - 52:7

GARBER [26] - 1:17, 

1:19, 3:1, 3:7, 3:25, 

5:6, 5:8, 25:23, 

27:22, 28:21, 35:1, 

37:8, 37:11, 49:8, 

49:16, 49:21, 50:21, 

50:24, 51:22, 52:15, 

53:8, 54:3, 54:8, 

55:17, 56:11, 56:14

Garber [9] - 3:1, 3:2, 

3:7, 3:22, 4:1, 4:3, 

5:4, 31:24

Garber's [2] - 32:9, 

44:4

Gas [4] - 31:25, 44:5, 

46:23, 46:25

GEICO [1] - 39:15

general [1] - 43:7

given [11] - 7:1, 8:8, 

36:22, 49:9, 50:8, 

52:11, 54:9, 54:10, 

54:14, 55:6, 55:24

Globe [1] - 39:15

governs [1] - 22:16

grant [1] - 54:16

granted [2] - 52:17, 

52:18

greater [1] - 15:7

Greenberg [2] - 3:12, 

4:16

GREENBERG [2] - 

1:21, 4:16

ground [1] - 8:7

guaranteed [3] - 

11:13, 25:9, 35:12

Guard [1] - 39:7

guess [1] - 5:4

guessing [2] - 49:17, 

49:25

H

HAGLER [1] - 1:14

half [6] - 50:8, 51:18, 

52:1, 52:9, 52:10, 

53:25

Hamlet [1] - 7:20

Hamsa [1] - 8:12

hand [2] - 14:10, 

41:17

handle [1] - 33:20

happy [1] - 34:5

hard [1] - 9:3

harm [1] - 32:15

head [3] - 27:24, 29:7, 

35:3

healthy [1] - 56:9

heard [5] - 19:4, 

19:17, 31:23, 33:20, 

44:13

hearings [1] - 34:12

heated [1] - 36:22

heavily [1] - 11:22

held [2] - 39:9, 56:4

hidden [2] - 48:1, 

48:12

high [6] - 16:22, 

16:24, 17:16, 20:23, 

21:3, 35:24

higher [1] - 16:14

history [2] - 8:10, 8:11

hit [3] - 27:24, 29:7, 

35:2

hold [2] - 8:14, 10:20

holding [2] - 38:20, 

48:13

Holding [1] - 39:7

HOLDINGS [1] - 1:8

MONICA S. HORVATH - SENIOR COURT REPORTER

5

holds [1] - 43:20

Honor [48] - 3:1, 3:8, 

3:11, 3:25, 5:6, 5:8, 

7:4, 7:13, 8:4, 8:11, 

8:17, 8:24, 8:25, 9:5, 

9:13, 9:21, 10:10, 

10:18, 10:25, 14:13, 

18:9, 25:23, 25:24, 

27:22, 35:1, 35:2, 

35:13, 35:16, 35:25, 

36:8, 36:10, 36:19, 

37:8, 49:8, 49:16, 

49:17, 49:21, 50:21, 

50:24, 51:22, 52:15, 

53:8, 54:3, 54:8, 

54:23, 55:17, 56:11, 

56:14

Honor's [1] - 54:24

Honorable [1] - 7:5

HONORABLE [1] - 

1:14

hopeful [2] - 54:8, 

54:14

hopefully [2] - 36:23, 

53:13

HORVATH [2] - 2:22, 

56:19

hours [2] - 26:9, 31:16

humbly [1] - 55:11

I

IBM [1] - 12:5

identical [2] - 7:15, 

36:13

identified [1] - 18:24

identify [1] - 46:13

identity [1] - 40:1

immediately [1] - 53:9

impermissible [1] - 

21:1

important [2] - 21:20, 

50:3

impracticability [1] - 

7:2

impracticable [1] - 

37:24

impractical [1] - 45:16

impracticality [2] - 

39:10, 45:3

improperly [1] - 45:20

Inc [4] - 37:5, 38:15, 

38:25, 40:3

include [3] - 12:3, 

13:12, 16:11

included [3] - 15:2, 

40:20, 50:10

includes [3] - 17:20, 

27:4, 28:8

including [6] - 13:9, 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 64 of 69
13:12, 14:4, 15:17, 

40:16, 52:7

inclusive [1] - 12:2

inconsistent [3] - 

7:11, 7:15, 35:22

incorrect [4] - 7:23, 

25:3, 25:4, 25:14

increase [1] - 55:22

incurred [1] - 45:12

indeed [1] - 43:21

INDEX [1] - 1:5

Index [1] - 37:14

individual [18] - 7:2, 

14:24, 15:1, 15:16, 

15:22, 15:23, 16:3, 

16:5, 19:23, 21:24, 

33:1, 36:7, 36:9, 

36:16, 38:2, 43:24, 

43:25

individual's [1] - 

15:23

individualized [1] - 

55:22

individually [1] - 45:1

individuals [1] - 36:15

industrial [2] - 13:14, 

17:23

industry [2] - 17:2, 

18:2

inefficiency [1] - 45:3

inefficient [1] - 45:16

inference [1] - 11:15

information [6] - 4:13, 

46:12, 51:10, 51:12, 

53:19, 54:19

inhouse [2] - 11:25, 

17:8

inspired [1] - 20:14

instance [2] - 30:13, 

50:14

Insurance [2] - 39:12, 

39:15

intention [1] - 29:8

intents [1] - 39:17

interest [6] - 18:8, 

42:10, 42:25, 43:4, 

43:13, 44:25

interested [1] - 20:10

interests [1] - 38:7

interim [1] - 54:25

interpretation [1] - 

15:8

interpreted [1] - 14:21

introduction [3] - 

29:15, 30:1, 40:6

Investigation [1] - 

37:5

investigation [1] - 

19:8

invite [1] - 10:22

involve [4] - 7:21, 

11:24, 11:25, 12:7

involved [4] - 12:9, 

13:4, 20:5, 42:4

involving [3] - 11:6, 

11:7, 11:18

irrelevant [2] - 19:11, 

35:9

IS [1] - 56:16

issue [11] - 7:25, 

19:15, 28:4, 28:17, 

34:17, 37:2, 43:7, 

49:2, 55:2, 55:5, 

55:19

issued [1] - 24:18

issues [8] - 8:17, 8:21, 

13:7, 22:15, 26:14, 

47:21, 47:24, 55:24

issuing [1] - 54:9

itself [2] - 36:15, 50:11

J

JC [2] - 12:5, 16:12

job [1] - 23:22

joinder [1] - 37:22

joining [1] - 39:10

Judge [2] - 7:5, 44:8

judge [1] - 51:13

judgement [1] - 18:10

judgment [2] - 5:15, 

24:16

judicata [1] - 48:12

juncture [1] - 51:25

June [1] - 40:15

justice [1] - 44:7

Justice [1] - 1:14

K

K-E-L-L-Tech [1] - 

38:15

keep [3] - 20:4, 22:1, 

35:3

Kell [1] - 38:15

kilowatt [1] - 27:14

kinds [1] - 6:18

Kings [1] - 33:2

knowing [2] - 10:7, 

45:21

knowledge [2] - 

17:25, 48:10

known [2] - 30:22, 

39:2

knows [1] - 40:9

Kudinov [1] - 38:14

KUDINOV [1] - 38:14

L

L.L.C [1] - 1:7

Labor [2] - 21:25, 

44:19

lacked [1] - 48:4

Lamano [1] - 19:7

language [8] - 15:3, 

15:5, 15:6, 15:10, 

15:11, 15:13, 25:7, 

26:18

large [4] - 12:3, 13:13, 

16:11, 40:19

larger [2] - 16:9, 39:22

last [5] - 4:8, 4:24, 

26:10, 32:24, 46:7

late [2] - 10:5, 36:24

Law [6] - 21:25, 24:22, 

32:2, 44:6, 44:19, 

47:1

law [7] - 4:15, 4:22, 

8:9, 32:10, 37:25, 

42:3, 49:10

lawsuit [3] - 42:14, 

43:14, 51:9

lawyer [1] - 45:20

lawyers [2] - 20:3

lead [1] - 32:7

leading [2] - 6:19, 

32:16

Leasing [1] - 38:25

least [8] - 25:5, 28:3, 

31:24, 48:24, 49:2, 

50:8, 50:14, 51:7

leave [2] - 13:21, 

17:18

left [3] - 9:21, 14:3, 

14:8

legal [3] - 30:9, 30:16, 

41:9

legion [2] - 5:22, 8:6

legislative [2] - 8:10, 

8:11

less [3] - 24:8, 24:11, 

45:20

letter [1] - 8:14

liability [3] - 9:6, 

14:25, 55:24

liberal [2] - 8:8, 8:12

liberally [1] - 38:21

Liberty [56] - 5:10, 

5:12, 5:15, 5:18, 6:5, 

6:10, 6:11, 7:10, 

7:14, 8:2, 9:13, 9:17, 

9:18, 10:21, 11:11, 

11:13, 12:12, 12:15, 

13:10, 13:17, 13:21, 

13:24, 14:2, 14:23, 

15:14, 15:15, 17:2, 

17:13, 17:14, 17:15, 

17:16, 20:18, 20:19, 

20:22, 22:12, 24:21, 

25:20, 27:4, 27:7, 

29:4, 29:22, 29:24, 

30:19, 30:22, 33:14, 

33:19, 34:5, 35:21, 

40:7, 40:9, 40:16, 

49:12, 52:9, 53:23, 

53:24

LIBERTY [3] - 1:7, 1:7, 

1:8

Liberty's [7] - 6:2, 7:3, 

8:13, 8:25, 40:21, 

46:11, 46:14

Life [1] - 39:12

light [2] - 8:8, 43:23

likely [4] - 45:12, 

49:22, 55:2, 55:9

limitations [1] - 14:16

limited [1] - 40:20

lines [1] - 29:19

list [3] - 53:15, 53:17, 

53:24

litigated [5] - 19:3, 

20:7, 43:9, 43:15, 

44:5

litigation [10] - 14:20, 

18:7, 19:23, 32:18, 

33:10, 36:22, 45:5, 

45:9, 45:24, 46:1

live [1] - 15:24

LLC [5] - 1:4, 1:8, 

24:20, 44:5

LLP [2] - 1:21, 4:16

located [1] - 4:3

look [8] - 11:5, 21:23, 

24:2, 27:1, 29:15, 

30:11, 30:14, 32:8

looking [2] - 19:13, 

37:13

loss [1] - 38:17

lost [1] - 21:7

Lowe's [2] - 12:5, 

16:11

lower [9] - 11:14, 

11:21, 13:2, 15:7, 

18:19, 33:23, 35:12, 

48:23, 48:25

lowest [1] - 12:16

LP [2] - 47:2, 56:2

M

M-E-L-L-O-T-T [1] - 

4:23

Maddock [1] - 36:18

mail [1] - 52:1

main [4] - 8:25, 11:24, 

20:21, 43:5

majority [1] - 18:2

MONICA S. HORVATH - SENIOR COURT REPORTER

6

manage [1] - 46:9

management [5] - 

13:8, 21:21, 22:18, 

45:13, 46:8

manner [8] - 7:11, 

7:14, 9:12, 16:21, 

24:4, 24:5, 35:22, 

36:13

March [1] - 37:15

margin [5] - 9:25, 

20:21, 21:2, 48:1, 

48:12

marked [1] - 29:23

market [32] - 5:13, 

5:16, 5:20, 6:6, 6:11, 

9:18, 9:24, 10:1, 

11:14, 14:22, 15:11, 

23:16, 25:2, 25:13, 

25:21, 27:10, 27:19, 

27:25, 28:15, 29:3, 

29:11, 29:25, 36:3, 

40:8, 40:10, 40:12, 

40:20, 40:23, 41:14, 

41:24, 41:25, 43:11

markup [1] - 40:21

matter [5] - 29:14, 

35:6, 35:14, 54:12, 

54:18

matters [2] - 9:11, 

9:15

maximum [1] - 17:6

ME [1] - 56:17

mean [2] - 21:15, 

28:18

meaning [1] - 14:21

mechanical [1] - 39:3

mechanism [2] - 

35:15, 55:23

medium [2] - 13:13, 

16:9

meet [1] - 30:5

MELLOT [1] - 2:2

Mellott [1] - 4:23

member [6] - 15:2, 

15:17, 28:4, 35:11, 

35:14, 36:7

members [36] - 5:11, 

6:5, 6:13, 8:16, 9:4, 

9:12, 9:20, 12:18, 

14:12, 18:8, 22:13, 

30:8, 37:20, 37:23, 

38:2, 39:5, 40:2, 

40:5, 41:8, 41:13, 

41:19, 42:1, 42:11, 

42:25, 43:5, 44:13, 

44:25, 45:7, 45:25, 

46:13, 47:11, 48:15, 

50:6, 50:12, 53:16, 

53:24

memoire [1] - 40:6

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 65 of 69
memorandum [3] - 

29:16, 41:2, 41:3

memorialize [1] - 53:3

mentioned [3] - 8:4, 

31:24, 40:25

merit [2] - 44:20, 49:2

merits [1] - 24:13

met [13] - 5:25, 6:4, 

6:8, 6:14, 6:25, 7:1, 

10:17, 39:4, 39:23, 

41:23, 42:6, 43:18, 

45:14

method [8] - 12:24, 

16:17, 17:4, 20:19, 

23:25, 43:21, 43:23, 

48:21

methodologies [2] - 

9:23, 10:2

methodology [1] - 

10:13

methods [1] - 38:10

Metropolitan [1] - 

39:12

might [5] - 17:24, 

22:10, 25:8, 30:25

Mike [1] - 3:7

militate [1] - 32:21

militates [1] - 33:10

million [1] - 30:11

mindful [1] - 38:20

minute [1] - 29:18

minutes [1] - 54:22

misdeeds [1] - 9:6

misleading [2] - 12:8, 

15:10

misread [1] - 32:14

misrepresentations

[1] - 5:23

Miss [7] - 4:12, 35:4, 

35:8, 35:10, 35:19, 

35:24, 36:6

Missry [1] - 6:22

misstates [1] - 35:20

mitigate [1] - 15:17

models [1] - 16:25

modified [1] - 49:4

moment [1] - 37:7

MONICA [2] - 2:22, 

56:19

month [2] - 13:18, 

16:5

months [7] - 10:5, 

14:8, 22:6, 22:10, 

22:11, 36:25, 55:8

morning [2] - 3:11, 5:1

most [7] - 12:6, 13:16, 

14:1, 14:7, 28:10, 

43:25, 49:22

motion [15] - 5:2, 5:5, 

5:15, 8:1, 11:1, 13:4, 

18:10, 22:2, 26:11, 

28:19, 29:16, 46:18, 

47:20, 54:2, 55:1

motions [2] - 11:17, 

18:9

movant [1] - 32:1

move [11] - 14:22, 

23:13, 30:3, 31:22, 

32:24, 41:4, 46:19, 

47:8, 52:23, 53:15, 

54:11

moving [3] - 10:5, 

31:20, 44:21

MR [28] - 3:1, 3:7, 

3:15, 3:25, 4:7, 4:19, 

5:6, 5:8, 25:23, 

27:22, 28:21, 31:5, 

35:1, 37:8, 37:11, 

49:8, 49:16, 49:21, 

50:21, 50:24, 51:22, 

52:15, 53:8, 54:3, 

54:8, 55:17, 56:11, 

56:14

MS [35] - 3:11, 3:19, 

4:14, 10:25, 21:5, 

21:8, 21:11, 21:19, 

23:1, 23:20, 25:4, 

25:24, 26:1, 26:4, 

26:11, 26:14, 26:21, 

27:2, 27:6, 27:10, 

27:16, 28:6, 28:17, 

30:18, 31:19, 32:8, 

32:19, 33:5, 34:5, 

34:14, 34:24, 51:1, 

51:23, 54:23, 55:14

muddying [1] - 29:6

multiple [4] - 6:16, 

6:17, 23:24, 51:7

must [7] - 26:7, 38:20, 

39:5, 40:22, 44:23, 

48:22

N

name [5] - 3:23, 3:24, 

4:9, 4:24, 53:10

named [6] - 14:10, 

18:7, 18:14, 20:13, 

33:8, 41:12

nature [3] - 22:14, 

45:5, 45:24

Nawrocki [1] - 44:14

NAWROCKI [1] - 

44:14

necessarily [1] - 20:15

need [4] - 28:22, 

33:24, 34:20, 55:22

needed [1] - 19:6

needs [1] - 39:10

negotiate [2] - 18:3, 

28:11

negotiated [5] - 12:4, 

16:10, 16:12, 17:24, 

40:20

NEIDL [37] - 1:23, 

3:11, 3:19, 4:14, 

4:15, 10:25, 21:5, 

21:8, 21:11, 21:19, 

23:1, 23:20, 25:4, 

25:24, 26:1, 26:4, 

26:11, 26:14, 26:21, 

27:2, 27:6, 27:10, 

27:16, 28:6, 28:17, 

30:18, 31:19, 32:8, 

32:19, 33:5, 34:5, 

34:14, 34:24, 51:1, 

51:23, 54:23, 55:14

Neidl [8] - 3:12, 3:19, 

4:12, 4:15, 35:10, 

35:19, 35:24, 36:6

Neidl's [2] - 35:4, 35:8

never [5] - 14:17, 

14:19, 17:12, 31:6, 

51:10

new [2] - 8:7, 13:20

NEW [3] - 1:2, 1:2, 1:7

New [19] - 1:11, 1:19, 

1:23, 4:4, 4:17, 7:6, 

8:9, 13:10, 23:2, 

32:3, 33:3, 33:13, 

34:1, 34:3, 34:10, 

37:14, 39:13, 40:15

next [5] - 34:21, 41:4, 

42:7, 43:19, 54:22

night [1] - 26:10

ninth [1] - 33:1

non [1] - 33:9

none [5] - 8:13, 11:24, 

12:18, 19:21, 34:7

nonexistent [1] - 13:8

normal [1] - 20:11

normally [2] - 36:22, 

55:4

North [6] - 1:18, 4:3, 

31:25, 44:5, 46:22, 

46:25

Northern [1] - 38:25

notably [1] - 10:12

Note [1] - 40:18

noted [1] - 51:6

notes [2] - 21:6, 55:20

nothing [7] - 8:18, 

11:4, 14:11, 34:24, 

42:1, 55:17

notice [8] - 10:20, 

46:17, 49:13, 50:3, 

50:5, 50:7, 50:15, 

53:25

noticeable [1] - 11:10

noticed [1] - 42:21

Number [2] - 26:5, 

37:14

NUMBER [1] - 1:5

number [10] - 13:14, 

15:25, 22:23, 23:4, 

33:23, 37:13, 39:5, 

40:19, 49:20, 50:17

numerosity [7] - 6:1, 

22:24, 22:25, 39:2, 

39:4, 39:18, 39:24

numerous [1] - 37:22

NYSCEF [1] - 37:14

O

object [1] - 51:23

obtain [2] - 46:16, 

46:17

obviate [1] - 55:23

obvious [1] - 42:21

obviously [4] - 20:10, 

20:14, 22:22, 54:24

OF [4] - 1:2, 1:2, 56:17

offering [1] - 11:20

official [1] - 24:19

old [1] - 55:8

once [2] - 21:9, 35:19

one [28] - 5:24, 9:24, 

13:3, 13:17, 21:20, 

24:25, 26:7, 28:11, 

31:4, 31:5, 31:16, 

31:19, 33:4, 34:2, 

34:13, 36:4, 36:11, 

36:12, 37:7, 37:13, 

37:20, 37:22, 42:10, 

44:25, 51:7, 52:25, 

55:18, 55:19

One [2] - 1:18, 4:3

onerous [1] - 8:16

operating [1] - 51:7

opined [1] - 46:4

opinion [2] - 11:21, 

16:24

oppose [1] - 51:2

opposed [1] - 33:17

opposition [5] - 10:9, 

10:24, 26:4, 39:20, 

50:25

oral [5] - 10:6, 24:14, 

41:3, 55:2, 55:9

order [13] - 46:12, 

46:16, 47:13, 49:12, 

52:1, 53:1, 53:3, 

53:12, 53:14, 54:10, 

55:12, 56:10

ordering [2] - 53:23, 

53:24

orders [1] - 13:3

original [1] - 10:9

originally [1] - 18:18

MONICA S. HORVATH - SENIOR COURT REPORTER

7

otherwise [1] - 37:23

ourself [1] - 32:21

ourselves [1] - 54:9

outlined [1] - 54:15

outwardly [1] - 35:4

overcharge [2] - 

19:11, 36:14

overcharged [4] - 

19:9, 19:11, 19:13, 

48:11

overly [1] - 23:6

own [4] - 21:1, 55:4, 

55:5, 55:12

P

Page [15] - 7:9, 26:1, 

26:5, 26:15, 26:19, 

29:15, 39:1, 39:8, 

39:13, 39:16, 40:6, 

40:13, 42:19, 43:3, 

44:2

page [5] - 26:2, 26:5, 

27:3, 29:17, 36:23

pages [1] - 26:7

paid [3] - 18:20, 19:5, 

22:11

pandemic [1] - 37:2

Panzer [1] - 43:2

PANZER [1] - 43:2

papers [9] - 7:9, 7:23, 

10:19, 19:25, 21:18, 

31:4, 35:19, 37:6, 

51:6

paragraph [4] - 20:1, 

29:18, 29:19, 29:20

PART [1] - 1:2

part [7] - 27:20, 27:23, 

28:5, 28:21, 29:8, 

34:15

particular [5] - 12:21, 

16:17, 24:4, 38:17, 

45:10

particularly [1] - 8:8

parties [7] - 36:23, 

38:4, 47:22, 49:6, 

52:6, 53:13, 54:14

parts [3] - 44:10, 

44:21, 54:1

party [3] - 37:21, 38:6, 

52:2

pass [1] - 10:23

past [1] - 17:10

pay [4] - 50:20, 51:4, 

52:8, 53:25

payment [3] - 8:21, 

19:12, 48:14

Payment [2] - 19:1, 

48:7

payments [1] - 48:9

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 66 of 69
PEARSON [1] - 1:17

Pearson [2] - 3:2, 4:2

Pennsylvania [3] - 

2:3, 4:25, 47:3

Penny [2] - 12:5, 

16:12

people [7] - 9:9, 9:14, 

9:15, 27:24, 33:13, 

33:21, 35:16

per [2] - 27:14, 49:25

percent [1] - 33:16

percentage [1] - 27:13

performed [1] - 10:14

period [3] - 16:6, 22:9, 

23:24

permitted [1] - 37:23

person [2] - 36:11, 

36:12

personal [1] - 42:12

perspective [1] - 39:5

Pesantez [1] - 44:1

PESANTEZ [1] - 44:1

phone [3] - 3:21, 

34:22, 52:20

picked [1] - 35:17

picks [1] - 12:16

place [2] - 33:4, 34:2

plainly [1] - 5:25

Plains [2] - 1:19, 4:4

plaintiff [31] - 3:6, 5:3, 

10:8, 11:23, 11:24, 

12:7, 13:9, 14:9, 

16:8, 18:7, 18:14, 

19:5, 20:13, 20:22, 

22:22, 23:10, 23:14, 

31:20, 31:23, 37:3, 

39:23, 40:4, 43:12, 

43:17, 43:18, 47:10, 

47:19, 48:4, 52:10, 

53:21, 55:17

Plaintiff [1] - 1:5

plaintiff's [17] - 10:7, 

11:1, 13:1, 17:3, 

20:1, 23:7, 25:17, 

29:9, 30:6, 32:10, 

33:18, 33:23, 41:6, 

41:14, 44:20, 49:7, 

53:22

Plaintiffs [1] - 1:18

plaintiffs [52] - 3:3, 

4:10, 5:10, 6:9, 6:14, 

6:23, 7:10, 7:18, 

9:22, 10:11, 11:4, 

11:10, 11:16, 11:17, 

11:24, 13:4, 13:14, 

14:9, 14:10, 15:18, 

15:20, 16:1, 16:25, 

17:6, 17:7, 19:21, 

19:25, 20:6, 20:10, 

20:14, 20:18, 21:22, 

23:10, 30:20, 33:8, 

33:9, 35:10, 35:23, 

38:12, 41:12, 42:6, 

43:5, 43:6, 43:9, 

45:14, 47:15, 48:9, 

51:3, 51:4, 51:12, 

51:22, 52:7

plan [3] - 23:3, 28:14, 

40:14

Plan [2] - 27:4, 29:4

plans [1] - 40:25

playbook [1] - 8:14

Pludeman [2] - 38:24, 

41:10

PLUDEMAN [2] - 

38:25, 41:10

plus [2] - 9:25, 50:1

point [8] - 7:23, 9:21, 

24:25, 26:1, 31:3, 

35:15, 40:15, 55:18

poor [1] - 9:7

possessed [1] - 43:6

possible [6] - 23:18, 

23:23, 33:21, 53:11, 

54:11, 54:13

post [1] - 52:17

postcard [7] - 49:22, 

49:23, 49:24, 49:25, 

50:5, 50:11, 50:15

potential [1] - 43:24

potentially [1] - 52:18

potluck [1] - 10:2

Power [41] - 5:10, 

6:10, 7:10, 7:11, 

7:14, 8:2, 9:13, 9:17, 

9:18, 10:21, 11:12, 

12:12, 12:15, 13:10, 

13:17, 13:21, 13:24, 

14:2, 15:14, 15:15, 

17:2, 17:13, 17:14, 

17:15, 17:16, 20:18, 

20:22, 22:12, 24:21, 

27:4, 29:4, 30:19, 

30:23, 31:25, 33:14, 

34:5, 35:21, 44:5, 

46:22, 46:25, 49:12

POWER [3] - 1:7, 1:7, 

1:8

Power's [4] - 5:12, 

11:13, 14:23, 20:19

Powers [1] - 27:7

practice [4] - 30:7, 

41:6, 41:22, 42:4

precedence [1] - 43:1

preclude [1] - 36:17

predominant [2] - 

40:1, 55:24

predominates [1] - 

38:1

prefer [3] - 33:20, 

33:24, 52:6

prejudice [1] - 52:2

prepared [2] - 52:20, 

54:11

preparing [1] - 53:12

prerequisites [3] - 

11:3, 13:7, 44:22

present [7] - 5:9, 

13:11, 20:17, 23:3, 

23:22, 34:13, 40:16

presupposes [1] - 

33:5

price [3] - 9:25, 25:9, 

25:21

prices [3] - 5:16, 

29:25, 40:10

pricing [18] - 5:13, 

5:16, 9:18, 15:12, 

23:16, 25:2, 25:13, 

28:1, 28:15, 29:3, 

29:11, 29:23, 40:8, 

40:12, 40:23, 41:14, 

41:25, 43:11

primarily [1] - 11:17

problem [1] - 51:21

problems [1] - 32:13

procedures [1] - 34:8

proceed [2] - 5:4, 5:7

proceeding [1] - 45:21

PROCEEDING [1] - 

56:17

proceedings [2] - 

33:25, 34:15

production [1] - 52:22

program [1] - 22:7

prong [1] - 22:25

Properties [1] - 42:19

propose [1] - 51:11

proposed [3] - 12:3, 

53:12, 53:14

proposition [1] - 

31:14

prosecute [2] - 42:18, 

43:16

prosecuted [2] - 

45:19, 45:22

prosecuting [3] - 

6:19, 45:4, 45:16

prosecution [1] - 45:1

protect [1] - 38:7

Proto [1] - 44:14

PROTO [1] - 44:14

provide [4] - 23:16, 

46:14, 46:17, 53:23

provided [3] - 48:1, 

53:16, 53:17

provider [1] - 17:13

provides [2] - 26:25, 

37:19

providing [2] - 38:13, 

50:15

provision [7] - 26:17, 

28:9, 29:21, 29:23, 

40:7, 40:9, 40:14

provisions [1] - 11:7

Pruitt [1] - 42:18

PRUITT [1] - 42:18

PSE [1] - 34:15

pulled [1] - 31:15

punitive [6] - 11:16, 

12:18, 14:11, 16:7, 

27:8, 30:21

purpose [1] - 46:13

purposes [3] - 22:1, 

39:17, 49:23

pursuant [5] - 8:9, 

48:20, 48:21, 51:20, 

52:3

pursued [1] - 6:15

pursuing [1] - 6:23

put [1] - 19:25

putting [1] - 10:5

Q

qualified [1] - 38:17

questions [8] - 10:22, 

18:12, 21:9, 22:19, 

22:23, 24:14, 25:10, 

37:25

quick [1] - 33:16

quicker [1] - 34:9

quite [3] - 30:25, 

32:15, 46:15

quoting [1] - 56:1

R

raise [3] - 8:17, 8:20, 

9:10

raised [4] - 10:9, 

19:17, 19:18, 19:19

raises [1] - 22:14

rate [90] - 5:12, 5:19, 

6:7, 6:11, 6:12, 7:11, 

7:14, 9:17, 11:12, 

11:14, 11:15, 12:5, 

12:12, 12:16, 12:17, 

12:19, 12:20, 12:24, 

13:1, 13:11, 13:18, 

13:19, 13:22, 13:23, 

14:1, 14:3, 14:5, 

14:21, 14:22, 14:23, 

15:2, 16:12, 16:14, 

16:17, 17:1, 17:5, 

17:18, 17:21, 17:22, 

17:24, 17:25, 18:19, 

22:4, 22:5, 22:6, 

22:8, 23:3, 24:1, 

25:8, 25:22, 26:17, 

MONICA S. HORVATH - SENIOR COURT REPORTER

8

27:11, 27:14, 27:19, 

28:1, 28:8, 28:9, 

28:12, 28:14, 29:1, 

29:2, 29:11, 29:22, 

35:12, 35:22, 35:23, 

35:24, 36:2, 36:3, 

36:4, 36:9, 36:13, 

40:7, 40:14, 40:17, 

40:19, 40:22, 41:1, 

41:25, 43:11, 47:17, 

47:23, 48:2, 48:22, 

49:22, 49:24

rates [15] - 5:19, 

11:21, 12:10, 14:5, 

15:6, 15:23, 16:13, 

17:15, 20:20, 23:25, 

29:24, 35:7, 36:7, 

40:9, 48:21

rather [4] - 37:23, 

45:20, 46:5, 48:16

ratification [1] - 15:17

reached [1] - 17:15

read [8] - 16:18, 

21:18, 26:8, 29:10, 

29:17, 29:20, 31:15, 

40:5

reading [1] - 8:8

really [1] - 39:21

reapportionment [2] - 

51:20, 52:3

reason [1] - 48:17

reasonable [2] - 9:25, 

23:8

reasons [3] - 14:4, 

14:7, 32:20

received [1] - 7:18

recognized [2] - 8:11, 

43:22

record [11] - 14:7, 

16:7, 18:1, 29:6, 

30:18, 34:19, 48:8, 

53:4, 56:3, 56:5, 

56:6

RECORDED [1] - 

56:17

recordkeeping [1] - 

9:7

records [2] - 22:1, 

22:7

recouping [1] - 20:11

recovery [1] - 43:24

redress [1] - 55:13

reduce [1] - 33:24

reenroll [2] - 13:20, 

14:1

reenrolled [1] - 14:2

referenced [1] - 35:24

reflects [1] - 30:18

regard [5] - 39:23, 

39:25, 46:21, 48:7, 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 67 of 69
55:21

regarding [1] - 29:7

reject [1] - 48:17

rejected [1] - 44:17

rejects [2] - 41:17, 

48:3

related [1] - 17:10

relates [1] - 8:1

relating [1] - 51:10

relevant [1] - 15:3

relied [3] - 11:23, 

12:7, 13:4

relief [2] - 54:1, 54:2

rely [2] - 11:18, 24:3

remain [1] - 35:16

remaining [1] - 41:7

remedy [2] - 44:12, 

44:19

remember [2] - 24:17, 

48:22

Rental [1] - 12:6

rep [1] - 38:18

reply [6] - 7:23, 10:5, 

22:23, 34:20, 34:25, 

37:6

report [1] - 36:1

REPORTER [2] - 2:22, 

56:19

reporter's [1] - 53:10

represent [1] - 5:12

representation [4] - 

19:24, 42:7, 42:8, 

43:18

representations [2] - 

13:23, 36:3

representative [10] - 

14:21, 32:22, 35:17, 

37:21, 38:3, 38:6, 

42:11, 42:22, 43:12, 

53:22

representative's [2] - 

42:12, 42:14

representatives [1] - 

43:13

represented [3] - 6:10, 

32:1, 32:5

representing [1] - 

4:10

request [4] - 51:2, 

51:5, 52:25, 55:6

require [1] - 15:22

required [7] - 9:17, 

14:25, 22:1, 37:23, 

43:6, 46:17, 49:12

requirement [1] - 41:9

requirements [1] - 

5:24

requires [2] - 30:6, 

39:25

res [1] - 48:12

resemblance [1] - 

29:25

residential [5] - 13:12, 

17:20, 30:12, 31:9, 

31:21

resolved [1] - 43:25

resolving [1] - 43:21

Resource [1] - 40:2

resources [3] - 42:17, 

43:16, 49:10

respect [9] - 15:23, 

16:5, 20:15, 32:21, 

41:5, 42:6, 42:8, 

48:19, 55:6

responded [1] - 6:16

response [3] - 10:4, 

20:6, 27:19

rest [2] - 15:20, 17:20

restaurant [2] - 51:8, 

51:10

restaurants [1] - 51:7

retained [1] - 6:17

reviewed [2] - 37:17, 

46:2

rights [1] - 45:21

rise [5] - 30:8, 30:15, 

41:7, 42:5, 47:18

Rob [2] - 3:15, 4:19

ROBERT [1] - 2:4

Rockefeller [1] - 42:19

roll [1] - 13:22

rollover [2] - 22:5, 

22:10

room [1] - 3:3

round [2] - 33:22, 

49:19

rounds [1] - 6:17

rule [2] - 39:4, 51:11

ruled [1] - 49:1

ruling [1] - 54:24

run [1] - 14:16

Ryder [1] - 12:6

S

safe [1] - 56:9

sat [1] - 6:16

satisfied [2] - 41:10, 

44:22

satisfy [2] - 28:16, 

33:23

saw [3] - 14:19, 15:13, 

17:12

scammed [1] - 9:2

scheduled [1] - 10:6

SEAMAN [1] - 4:22

Seaman [1] - 3:15

Seamans [1] - 4:21

SEAMANS [1] - 2:2

seasoned [1] - 45:19

second [5] - 17:16, 

21:7, 23:13, 37:14, 

45:15

Second [2] - 39:8, 

39:16

Section [1] - 52:4

secure [1] - 43:20

securities [1] - 31:11

Security [1] - 37:5

see [6] - 14:20, 27:3, 

27:5, 31:4, 31:16, 

53:5

seek [2] - 54:15, 55:13

seeking [2] - 20:7, 

54:2

Seko [1] - 43:7

SENIOR [2] - 2:22, 

56:19

sense [2] - 44:9, 45:18

sent [1] - 50:12

separate [3] - 45:2, 

45:4, 45:16

serious [1] - 16:1

service [2] - 32:5, 

32:17

Services [1] - 44:2

services [1] - 27:14

set [9] - 9:22, 10:18, 

27:15, 39:4, 44:23, 

47:17, 49:9, 50:2, 

54:5

settlement [8] - 7:19, 

8:1, 13:5, 20:9, 

42:24, 50:4, 50:5, 

50:11

settlements [1] - 

45:23

seven [7] - 6:15, 6:24, 

19:5, 19:21, 19:22, 

20:1, 46:3

several [3] - 24:16, 

32:4, 46:2

sham [1] - 38:24

share [1] - 53:13

Shield [1] - 51:17

SHLOMO [1] - 1:14

show [5] - 10:13, 22:7, 

22:8, 22:9, 31:2

shown [2] - 12:23, 

41:5

shows [2] - 11:4, 33:7

sides [1] - 49:10

signed [4] - 9:12, 

9:14, 9:15, 18:18

significant [1] - 45:23

SILVERMAN [3] - 

1:20, 4:7, 4:9

Silverman [7] - 3:4, 

4:6, 4:8, 4:9, 37:8, 

37:9, 37:11

Silvis [1] - 47:2

similar [6] - 6:8, 6:21, 

16:15, 30:10, 35:19, 

50:5

similarly [6] - 6:8, 

6:14, 6:22, 7:1, 7:17, 

8:4

simple [5] - 23:14, 

23:18, 23:20, 23:22, 

28:2

simply [4] - 7:23, 13:8, 

35:3, 35:23

Sinclair [1] - 9:23

single [2] - 11:11, 28:4

situated [1] - 20:16

situation [2] - 20:11, 

25:16

size [1] - 50:8

skin [1] - 52:7

skip [1] - 21:12

slammed [1] - 14:15

slippery [1] - 9:5

slope [1] - 9:5

small [3] - 13:13, 

40:19, 43:24

sold [3] - 5:10, 17:21, 

17:24

Solomonic [1] - 52:5

someone [2] - 22:4, 

33:14

somewhere [1] - 23:5

soon [3] - 53:10, 

53:11, 54:13

sophisticated [8] - 

11:25, 12:5, 17:8, 

19:10, 30:25, 31:9, 

31:20, 51:6

sorry [4] - 3:4, 14:9, 

26:15, 37:10

sort [2] - 15:6, 18:19

sought [1] - 33:17

sound [1] - 38:18

Southern [7] - 7:6, 

32:2, 33:12, 34:10, 

39:13, 44:6, 44:7

speaking [1] - 3:5

special [2] - 8:18, 8:19

specialized [1] - 18:3

specific [1] - 12:22

spell [1] - 3:23

spelt [2] - 4:22, 4:24

spend [1] - 26:8

spoken [1] - 48:6

spread [1] - 46:6

stage [3] - 7:19, 8:1, 

52:6

Stake [1] - 24:20

standard [6] - 30:9, 

41:21, 44:21, 48:23, 

48:25

MONICA S. HORVATH - SENIOR COURT REPORTER

9

standards [3] - 10:3, 

10:17, 37:17

standing [4] - 8:20, 

19:14, 19:15, 48:5

stands [1] - 31:14

start [3] - 3:22, 9:5, 

53:12

starting [1] - 36:24

STATE [1] - 1:2

state [3] - 4:5, 7:21, 

44:10

State [3] - 1:22, 4:17, 

40:15

states [2] - 44:12, 46:6

static [3] - 20:24, 

20:25, 21:2

stating [3] - 7:9, 29:1, 

33:19

statute [2] - 14:16, 

38:21

statutes [1] - 8:10

stay [8] - 15:13, 54:25, 

55:3, 55:4, 55:6, 

55:9, 55:10, 55:11

stayed [3] - 14:3, 14:7

stays [1] - 55:2

STEAK [1] - 1:4

stick [1] - 42:3

still [5] - 17:14, 19:15, 

21:2, 21:8, 51:8

stopped [1] - 20:18

Store [1] - 12:6

store [1] - 22:3

straightforward [1] - 

15:11

Street [3] - 1:22, 4:17, 

56:1

strike [1] - 10:5

stuff [1] - 53:17

subject [10] - 13:10, 

14:18, 15:2, 15:18, 

16:8, 17:17, 18:15, 

28:4, 28:9, 41:13

subjected [1] - 9:16

subjective [1] - 11:20

submit [4] - 50:12, 

53:3, 53:14, 56:10

sue [1] - 37:20

sued [1] - 37:20

sufficient [5] - 5:14, 

23:19, 30:5, 43:17, 

44:10

suggest [1] - 55:11

summary [3] - 5:15, 

18:10, 24:15

summing [1] - 23:17

superficial [1] - 23:21

superior [4] - 33:11, 

34:11, 38:9, 44:8

superiority [2] - 32:24, 

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 68 of 69
43:19

supply [1] - 10:1

Supply [1] - 39:15

support [4] - 8:24, 

11:15, 11:17, 29:16

SUPREME [1] - 1:2

sur [1] - 10:5

surface [1] - 38:23

Surgical [1] - 39:15

surprisingly [1] - 

10:15

switched [1] - 14:8

Syracuse [2] - 33:2, 

34:1

Systems [1] - 38:25

T

Tech [1] - 38:15

TECH [1] - 38:15

Teleconference [1] - 

1:10

telemarketing [1] - 

9:14

tens [3] - 6:1, 7:2, 

13:12

term [10] - 13:17, 

13:22, 14:21, 15:3, 

15:14, 17:22, 18:1, 

22:5, 27:7, 48:2

TERM [1] - 1:2

terminate [1] - 17:18

terms [7] - 11:13, 

16:16, 18:18, 23:15, 

47:16, 47:23, 47:25

test [1] - 39:3

testified [2] - 14:17, 

20:4

testimony [3] - 11:19, 

12:23, 20:2

THE [63] - 1:2, 3:5, 

3:9, 3:14, 3:17, 3:20, 

4:5, 4:11, 4:18, 5:1, 

5:7, 10:24, 21:4, 

21:7, 21:9, 21:17, 

22:20, 23:11, 24:12, 

25:10, 25:25, 26:3, 

26:6, 26:12, 26:19, 

26:22, 27:5, 27:9, 

27:12, 27:17, 27:23, 

28:13, 28:20, 29:10, 

31:2, 31:14, 31:22, 

32:11, 32:23, 33:19, 

34:11, 34:18, 34:25, 

36:21, 37:10, 37:13, 

49:14, 49:19, 50:19, 

50:22, 50:25, 51:15, 

51:25, 52:24, 53:20, 

54:5, 54:20, 55:1, 

55:16, 55:18, 56:12, 

56:16, 56:17

themselves [3] - 

41:19, 42:1, 51:4

theory [4] - 16:2, 30:9, 

30:16, 41:9

therefore [6] - 36:14, 

39:22, 41:14, 42:5, 

43:17, 49:3

therefrom [1] - 30:2

third [1] - 33:17

thousands [5] - 6:2, 

7:3, 9:9, 13:12

threaten [1] - 18:6

three [10] - 13:17, 

22:6, 22:10, 22:11, 

25:6, 38:3, 45:5, 

48:24, 49:25, 55:8

threshold [1] - 39:9

throughout [2] - 22:9, 

46:6

throwing [1] - 29:6

tied [1] - 40:11

TO [1] - 56:16

today [4] - 39:20, 49:4, 

52:14, 53:4

Todd [2] - 3:1, 4:1

TODD [2] - 1:19, 4:1

together [2] - 32:17, 

33:4

tomorrow [1] - 52:21

tons [2] - 9:8

took [2] - 22:12, 31:16

totally [1] - 24:9

towards [1] - 13:19

TRANSCRIPT [1] - 

56:16

transcript [3] - 53:10, 

53:11, 56:10

TRAURIG [2] - 1:21, 

4:16

Traurig [2] - 3:12, 4:16

treat [2] - 30:24, 30:25

Tree [1] - 12:6

triable [1] - 49:2

trial [10] - 13:7, 15:15, 

15:22, 19:3, 20:4, 

20:9, 32:17, 38:19, 

51:19, 52:3

trials [1] - 14:25

tried [2] - 5:20, 31:6

Truck [1] - 12:6

true [1] - 5:20

TRUE [1] - 56:16

try [3] - 21:24, 33:4, 

53:9

trying [2] - 23:18, 29:6

TURBODYNE [1] - 

43:2

Turbodyne [1] - 43:2

tweak [2] - 28:22, 

29:13

twenty [1] - 49:25

twenty-three [1] - 

49:25

two [12] - 7:17, 9:23, 

9:25, 14:10, 23:9, 

25:5, 33:8, 36:4, 

37:25, 39:21, 45:3, 

49:10

Two [1] - 40:18

type [1] - 15:6

types [3] - 25:5, 30:19, 

45:19

typical [4] - 17:7, 31:9, 

38:4, 41:15

typicality [11] - 6:8, 

30:4, 30:5, 30:14, 

30:17, 41:4, 41:5, 

41:9, 41:23, 42:5, 

42:6

typically [1] - 50:4

U

unable [1] - 51:4

unanimity [1] - 40:1

uncovered [1] - 43:10

under [4] - 24:19, 

31:10, 32:2, 46:17

underlie [1] - 15:19

understood [5] - 

11:12, 19:8, 40:24, 

54:4, 55:14

undesirability [1] - 

45:8

unfair [1] - 52:8

unfortunately [1] - 

37:1

unheard [1] - 17:2

uniform [3] - 5:23, 8:5, 

9:16

uniformed [1] - 5:11

unique [5] - 8:15, 

8:23, 19:20, 47:9, 

48:15

unlike [4] - 7:9, 11:22, 

13:24, 16:15

unopposed [1] - 13:4

unsupported [1] - 

11:19

up [10] - 9:12, 9:14, 

9:15, 12:16, 16:1, 

17:4, 23:17, 29:6, 

35:17, 50:2

upwards [1] - 6:15

US [2] - 44:8, 47:1

usage [2] - 15:24, 

22:17

uses [1] - 12:14

utility [9] - 10:2, 

12:20, 15:7, 16:14, 

19:14, 36:1, 36:10, 

48:21, 55:23

V

vague [1] - 15:10

Van [1] - 39:7

variable [28] - 5:12, 

5:19, 11:21, 12:4, 

13:10, 13:22, 16:12, 

17:22, 17:24, 17:25, 

23:3, 25:22, 26:17, 

28:8, 28:12, 28:14, 

29:1, 29:2, 35:7, 

40:14, 40:17, 40:19, 

40:22, 41:1, 41:24, 

43:11, 47:17, 47:23

various [4] - 11:2, 

14:3, 14:7, 15:5

venue [1] - 33:4

venues [1] - 45:22

Verizon [1] - 12:6

versed [1] - 6:18

versus [4] - 15:20, 

24:20, 30:12, 31:25

via [2] - 49:23, 50:15

view [1] - 8:12

vigor [1] - 42:15

vigorously [1] - 43:15

violated [1] - 47:15

violation [2] - 29:23, 

40:8

Volker [1] - 51:16

VOLKER [1] - 51:16

volume [1] - 26:6

Voluntary [2] - 19:1, 

48:7

voluntary [3] - 8:21, 

19:12, 48:14

W

Wachtel [3] - 6:21, 

6:22, 32:10

wait [2] - 14:4, 48:22

waiver [1] - 15:17

waiving [1] - 21:15

wants [1] - 47:19

warn [1] - 25:8

warned [1] - 16:13

warns [1] - 15:6

wash [1] - 20:8

Washington [2] - 2:3, 

4:25

water [1] - 8:14

ways [1] - 36:4

website [2] - 50:2, 

50:16

week [1] - 52:22

MONICA S. HORVATH - SENIOR COURT REPORTER

10

weight [1] - 10:11

welcome [1] - 5:1

West [4] - 24:22, 32:2, 

44:6, 47:1

wherein [1] - 47:5

wherewithal [1] - 

51:14

White [2] - 1:19, 4:4

whole [1] - 46:18

wholesale [1] - 9:24

win [1] - 20:14

wish [3] - 50:20, 

55:11, 56:9

worth [1] - 30:11

write [2] - 36:23, 53:2

written [2] - 37:3, 

55:10

Y

year [3] - 13:17, 33:15, 

53:19

years [11] - 6:15, 6:24, 

19:5, 19:21, 19:22, 

20:7, 24:16, 43:10, 

46:1, 46:3, 55:8

YORK [3] - 1:2, 1:2, 

1:7

York [19] - 1:11, 1:19, 

1:23, 4:4, 4:17, 7:6, 

8:9, 13:10, 23:2, 

32:3, 33:3, 33:13, 

34:1, 34:3, 34:10, 

37:15, 39:13, 40:15

yourselves [1] - 54:7

Z

zones [1] - 36:11

FILED: NEW YORK COUNTY CLERK 09/25/2020 12:12 PM INDEX NO. 151293/2013

NYSCEF DOC. NO. 379 RECEIVED NYSCEF: 09/25/2020 Case 21-13797-SMG Doc 948-2 Filed 06/30/23 Page 69 of 69