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 UNITED STATES DISTRICT COURT

 FOR THE DISTRICT OF NEW JERSEY

______________________________

CITY SELECT AUTO SALES, INC., 

Plaintiff, 

vs. NO. 1:11-CV-02658-JBS-KMW 

DAVID RANDALL ASSOCIATES, INC., 

et al,

Defendants.

______________________________

UNITED STATES COURTHOUSE

ONE JOHN F. GERRY PLAZA

4TH AND COOPER STREETS

CAMDEN, NEW JERSEY 08101

MAY 24, 2016 

B E F O R E: THE HONORABLE JEROME B. SIMANDLE

 UNITED STATES DISTRICT JUDGE

A P P E A R A N C E S:

BOCK & HATCH 

BY: DANIEL J. COHEN, ESQUIRE

TOD A. LEWIS, ESQUIRE

Counsel for Plaintiff

FLAMM WALTON HEIMBACH & LAMM P.C.

BY: F. EMMETT FITZPATRICK, III, ESQUIRE 

Counsel for Defendants

Certified as true and correct as required by Title 28, 

U.S.C., Section 753.

/S/ Karen Friedlander, CRR, RMR

/S/ Robert Tate, CRR, RMR

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W I T N E S S I N D E X

 WITNESS PAGE 

APRIL CLEMMER 28

DIRECT EXAMINATION OF APRIL CLEMMER BY MR. COHEN: 29

VOIR DIRE EXAMINATION OF APRIL CLEMMER BY MR. 

FITZPATRICK:

101

CONTINUED DIRECT EXAMINATION EXAMINATION OF APRIL 

CLEMMER BY MR. COHEN:

102

VOIR DIRE EXAMINATION OF APRIL CLEMMER BY MR. 

FITZPATRICK:

109

CROSS-EXAMINATION OF APRIL CLEMMER BY MR. 

FITZPATRICK:

113

REDIRECT EXAMINATION OF APRIL CLEMMER BY MR. COHEN: 138

RECROSS EXAMINATION OF APRIL CLEMMER BY MR. 

FITZPATRICK:

149

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E X H I B I T I N D E X

EXHIBIT NUMBER PAGE

PLAINTIFF EXHIBIT P-1 WAS RECEIVED IN EVIDENCE 40

PLAINTIFF EXHIBIT P-2 WAS RECEIVED IN EVIDENCE 43

PLAINTIFF EXHIBIT P-4 WAS RECEIVED IN EVIDENCE 46

PLAINTIFF EXHIBIT P-3 WAS RECEIVED IN EVIDENCE 46

PLAINTIFF EXHIBIT P-5 WAS RECEIVED IN EVIDENCE 48

PLAINTIFF EXHIBIT P-6 WAS RECEIVED IN EVIDENCE 49

PLAINTIFF EXHIBIT P-7 WAS RECEIVED IN EVIDENCE 50

PLAINTIFF EXHIBIT P-34 WAS RECEIVED IN EVIDENCE 53

PLAINTIFF EXHIBITS P-8 AND P-9 WERE RECEIVED IN 

EVIDENCE

58

PLAINTIFF EXHIBIT P-10 WAS RECEIVED IN EVIDENCE 61

PLAINTIFF EXHIBIT P-11 WAS RECEIVED IN EVIDENCE 64

PLAINTIFF EXHIBIT P-12 WAS RECEIVED IN EVIDENCE 66

PLAINTIFF EXHIBIT P-13 WAS RECEIVED IN EVIDENCE 70

PLAINTIFF EXHIBIT P-14 WAS RECEIVED IN EVIDENCE 74

PLAINTIFF EXHIBIT P-15 WAS RECEIVED IN EVIDENCE 75

PLAINTIFF EXHIBIT P-16 WAS RECEIVED IN EVIDENCE 83

PLAINTIFF EXHIBIT P-17 WAS RECEIVED IN EVIDENCE 84

PLAINTIFF EXHIBIT P-18 WAS RECEIVED IN EVIDENCE 87

PLAINTIFF EXHIBIT P-19 WAS RECEIVED IN EVIDENCE 88

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PLAINTIFF EXHIBIT P-10 WAS RECEIVED IN EVIDENCE 91

PLAINTIFF EXHIBIT P-21 WAS RECEIVED IN EVIDENCE 92

PLAINTIFF EXHIBIT P-22 WAS RECEIVED IN EVIDENCE 94

PLAINTIFF EXHIBIT P-23 WAS RECEIVED IN EVIDENCE 99

PLAINTIFF EXHIBIT P-40 WAS RECEIVED IN EVIDENCE 101

PLAINTIFF EXHIBIT P-24 WAS RECEIVED IN EVIDENCE 104

PLAINTIFF EXHIBIT P-25 WAS RECEIVED IN EVIDENCE 106

PLAINTIFF EXHIBIT P-26 WAS RECEIVED IN EVIDENCE 107

PLAINTIFF EXHIBIT P-27 WAS RECEIVED IN EVIDENCE 108

PLAINTIFF EXHIBIT P-28 WAS RECEIVED IN EVIDENCE 113

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THE DEPUTY CLERK: All rise. 

(OPEN COURT, May 24, 2016, 9:46 a.m.)

RESPONSE: Good morning, Your Honor. 

THE COURT: Good morning. Be seated, please. 

Overnight, as I promised, I looked into the issue of 

sender liability more and then this morning, there arrived a 

supplemental trial brief from the plaintiffs on that issue, 

and Mr. Fitzpatrick, have you reviewed the plaintiff's brief? 

MR. FITZPATRICK: I have not, sir. I only received 

it this morning, as well. 

THE COURT: Okay. What I had done, overnight 

actually before seeing the brief, was to rethink the nature of 

why sender is used in the statute and to revise the 

description of the case and the summary of applicable law, so 

that we can begin this trial. And so I've handed out what's 

called Draft No. 3, description of the case and summary of 

applicable law. 

What this does is to recognize that David Randall 

Associates was determined to be a sender and that if Mr. Miley 

is acting on behalf of the sender, then that would satisfy -- 

that would satisfy that. And so the revision clarifies the 

summary of applicable law and it boils down to trial issue to 

the personal responsibility of Defendant Miley. 

So have you had an opportunity to review Draft No. 3? 

MR. COHEN: Plaintiff has. 

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THE COURT: All right. 

MR. FITZPATRICK: Yes, we have, sir. 

THE COURT: All right. Any objections? 

MR. COHEN: None from plaintiff. 

MR. FITZPATRICK: No, sir. 

THE COURT: Okay. Then that will be the basis of 

the -- 

MR. FITZPATRICK: May I just add -- 

THE COURT: -- of instruction. 

MR. FITZPATRICK: -- just to be clear, none that 

weren't stated yesterday and we've already -- Your Honor has 

already ruled upon them. 

THE COURT: Yes, I understand. 

MR. FITZPATRICK: Okay. 

THE COURT: Also, you should have a copy of the order 

that I signed that enters the partial summary judgement. 

Yesterday, I think you had a draft version of it. It's been 

slightly tweaked in light of the sender clarification, and so 

this morning's version is the version that is going on the 

CMECF system right now, because I've actually signed it.

Any other questions before we bring the jury in? 

MR. COHEN: No, Your Honor. 

THE COURT: Okay. Let me say a word about opening 

statements. I want to remind counsel on both sides of the 

purpose and nature of an opening statement. It's not 

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argument. It's not argument in trying to persuade the jury of 

how they should line up facts that they haven't heard any 

evidence on yet. It's properly meant to be a prediction of 

what you hope the evidence will be, what the counterevidence 

might be, and what you have to prove or what you have to make 

sure the other side doesn't prove, as the case may be.

Anything that's helpful to orient the jury into what it 

is they're going to be seeing and hearing, and it's really not 

a time to quote much law either. That will come at the end of 

the case when we have our final instructions and for those, as 

far as I'm concerned, you can quote them verbatim to the jury. 

You can put them up on the screen if you want or whatever you 

want to do as to the applicable law, because you will have the 

final version of the instructions before you do your closings.

Any questions about openings? 

MR. COHEN: Judge, I wouldn't intend to pontificate 

on law in opening, but I assume we can go to the simple point 

of explaining the TCPA prohibits the sending of unsolicited 

fax advertisements. 

THE COURT: Absolutely, you can orient them as to the 

law, try to be faithful to the language of the statute or of 

this summary and the finer points of the law, I'll be 

explaining to them at the end. 

MR. COHEN: Understood, Judge, thank you. 

THE COURT: Oh, you'll also notice in the draft, I 

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should be sure to point this out, Draft No. 3 contains the 

definition of the class that was missing yesterday. Paragraph 

No. 2 recites the class definition, so that when we refer to 

the word "class," the jury will know what is the class. 

Okay. I believe we're ready to start then. And all I 

ask is that you be respectful of the process and play fair. 

I'll try not to intervene and I enjoy letting attorneys, you 

know, practice their craft, try their case. 

THE DEPUTY CLERK: All rise. 

(JURY ENTERS; 9:54 a.m.) 

THE COURT: Be seated, please. Good morning, ladies 

and gentlemen, welcome back. 

RESPONSE: Good morning. 

THE COURT: You'll recall that you were sworn as 

jurors yesterday and I'll now give you some preliminary 

instructions to guide you in your participation in this trial.

What's the duty of the jury? It will be your duty to 

find from the evidence what the facts are. You, and you alone 

are the judges of the facts. You will then have to apply to 

those facts the law as the Court will give it to you. You 

must follow that law, whether you agree with it or not. Now, 

nothing that I may say or do during the course of the trial is 

intended to indicate or should be taken by you as indicating 

what your verdict should be. 

What is evidence? The evidence from which you will 

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find the facts will consist of the testimony of witnesses, 

documents and other things received into the record as 

exhibits and any facts that the lawyers agree or stipulate to 

or that the Court may instruct you to find. 

Certain things are not evidence and must not be 

considered by you and I'll list them for you now: First, the 

statements, arguments and questions by the lawyers are not 

evidence. 

Second, objections to questions are not evidence. 

Lawyers have an obligation to their clients to make an 

objection when they believe evidence being offered is improper 

under the rules of evidence. You should not be influenced by 

the objection or by the Court's ruling on it. If the 

objection is sustained, that is, if I find that the objection 

has merit, then you should ignore the question. If I overrule 

the objection, then treat the question and the answer like any 

other. If you're instructed that some item of evidence is 

received for a limited purpose only, then you must follow my 

limiting instruction. 

Third, testimony that the Court excludes or tells you 

to disregard is not evidence and may not be considered. 

Sometimes it will happen that a witness will volunteer 

information that's not part of the question that that witness 

has been asked, and that would not be proper, and so I would 

instruct you to disregard what the witness just said that went 

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beyond the question that the witness was asked. That's one 

example, and there may be others. 

And fourth, anything that you see or hear outside the 

courtroom is not evidence and must be disregarded. You are to 

decide the case solely on the evidence presented here in the 

courtroom. 

Now, there are two kinds of evidence: Direct evidence 

and circumstantial evidence. Direct evidence is direct proof 

of a fact, such as testimony of an eyewitness. Circumstantial 

evidence is proof of facts from which you may infer or 

conclude that other facts exist. And I'll give you further 

instructions on these, as well as other matters at the end of 

the case, but have in mind that you may indeed consider both 

kinds of evidence, both circumstantial and direct evidence, 

and it will be up to you to decide which witnesses to believe, 

which witnesses not to believe and how much of any witness's 

testimony to accept or reject. And I'll give you some 

guidelines for determining the credibility of witnesses at the 

end of the case. 

But bear in mind, in weighing credibility and the 

weight that you give to evidence, that you bring your common 

sense into this courtroom. You can consider in weighing 

credibility the appearance and demeanor of the witness while 

on the witness stand, whether the witness has done or said 

something previously that contradicts what the witness is 

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testifying to now, whether that contradiction is major or 

something that you deem insignificant. 

You can weigh credibility by comparing what the witness 

says to other evidence in the case in which you hold a greater 

degree of confidence. In short, you can evaluate a witness 

the same way that you would evaluate others in transactions 

that are of importance to you. 

Let me say a word about pretrial discovery. You may 

hear during the trial that information was given or received 

during the discovery phase of a case before trial. Pretrial 

discovery means the exchange of relevant information about the 

facts of this case that is permitted under the Court's rules 

as the parties are preparing for trial or other resolution of 

their dispute. 

Discovery normally takes place in up to three types of 

procedures. First, Interrogatories. You may hear that a 

party has answered Interrogatories. These are written 

questions to a party which are answered in writing under 

penalty of perjury. 

You may hear about document production. A party may 

obtain copies of certain relevant documents from another party 

or even from a third party for possible use at trial. 

And, third, you may hear of depositions. At a 

deposition, a party may obtain testimony under oath from 

another party or a witness about the case and a written 

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transcript is prepared for possible use at trial. 

Let me discuss the burden of proof. This, as you know, 

is a civil case. The plaintiff, City Select Auto Sales, 

Incorporated and the plaintiff class has the burden of proving 

their case by what is called the preponderance of the 

evidence. That means that the plaintiff has to produce 

evidence which, considered in the light of all the facts, 

leads you to believe that what the plaintiff claims is more 

likely true than not. 

To put it differently, if you were to put the evidence 

favorable to the plaintiff and the evidence favorable to the 

defendant on opposite sides of a balance scale, the plaintiff 

would have to make the scales tip somewhat on the plaintiff's 

side. If the plaintiff fails to meet this burden, the verdict 

must be for the defendant. 

Now those of you who have sat on a criminal jury will 

have heard about proof beyond a reasonable doubt. That 

requirement does not apply in a civil case and you should 

therefore put it out of your mind. A fact is deemed to be 

established if you find that it is supported by a 

preponderance of the evidence. 

So I'd like to give you a very brief description of the 

case and the summary of the applicable law, and in a moment, 

the attorneys will talk to you more by way of introduction 

about the case. 

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In 2006, a commercial roofing company, David Randall 

Associates, Incorporated, engaged a company known as Business 

to Business Solutions, or B2B, to send facsimile 

advertisements on its behalf. In this case, City Select Auto 

Sales, Incorporated, which is the plaintiff, claims that these 

fax advertisements violated the Telephone Consumer Protection 

Act and the plaintiff seeks to hold the former president of 

David Randall, namely, Mr. Raymond Miley, III personally and 

individually responsible for these transmissions. 

A class of plaintiffs has been certified in this case, 

with City Select Auto Sales, Inc., serving as the class 

representative. The class is defined as follows: Quote, all 

persons and entities with whom David Randall Associates did 

not have an established business relationship, who were 

successfully sent one or more unsolicited faxes during the 

period March 29th, 2006 through May 16th, 2006, stating roof 

leaks, repairs available, just give us a call and let our 

professional service technicians make the repairs and call 

David Randall Associates, Incorporated, today, close quote. 

That's the definition of the class. 

The Telephone Consumer Protection Act or TCPA makes it 

unlawful for any person to send any unsolicited advertisement 

to a fax machine unless the advertisements meet certain 

exceptions and it awards $500 in damages for each violation of 

the statute. A TCPA claim generally requires proof that 

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first, the defendant utilized or caused to be utilized a 

telephone facsimile machine to send one or more faxes; second, 

that the transmission constituted advertisements, or 

advertisements; third, that the defendant sent the 

transmission without the recipient's consent and outside of 

any one of the statutory exceptions; fourth, that the 

defendant qualifies as a sender for purposes of the TCPA, that 

is, the entity on whose behalf a facsimile unsolicited 

advertisement is sent or whose goods or services are 

advertised or promoted in the unsolicited advertisement or a 

person acting on behalf of that entity; and in the case of an 

individual, No. 5, that the individual defendant had a high 

level of personal involvement in the unlawful fax 

transmissions. 

In this case, I instruct you that certain facts are not 

in dispute and may be regarded as proved; namely, No. 1, that 

a telephone facsimile machine was successfully used to 

transmit the subject faxes; No. 2, that the fax transmissions 

constituted advertisements within the meaning of the TCPA; 

No. 3, that the subject fax transmissions were sent without 

the consent or authorization of the recipients; and No. 4, 

that David Randall Associates, Inc., is a sender under the 

TCPA. 

On the other hand, it is disputed whether Defendant 

Miley acted on behalf of David Randall Associates and whether 

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he had a high level of personal involvement in the lawful fax 

transmissions. Such personal involvement requires plaintiff 

to demonstrate that Defendant Miley personally participated in 

or specifically authorized the facsimile advertisements that 

have been found to be unlawful. 

I'll give you more detailed instructions on the law at 

the end of the case and those instructions will control your 

deliberations and decision. In order to help you follow the 

evidence, however, I'll now give you a brief summary of the 

specific showing that the plaintiff, City Select, must make by 

a preponderance of the evidence to prove its case for the 

personal liability of Mr. Miley.

As a general matter, if a corporation is found to have 

violated a federal statute, its officers will not be 

personally liable solely because of their status as officers. 

Under the TCPA, however, an individual acting on behalf of a 

corporation may, under certain limited circumstances, be held 

personally or individually liable for the corporation's 

violation of the TCPA if the individual, first, had direct 

personal participation in the conduct found to have violated 

the TCPA; or second, personally authorized the conduct found 

to have violated the TCPA. Thus, the personal liability of a 

corporate director or officer must be founded upon active 

oversight of or control over the conduct that violated the 

TCPA, rather than merely tangential involvement. 

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Your involvement, as the jury, will be to determine 

whether Mr. Miley acted on behalf of David Randall and whether 

Mr. Miley's activities relative to the unlawful facsimile 

advertisements meet these requirements based upon the evidence 

presented to you during this trial. 

If the plaintiff class fails to prove any of these 

elements, then your verdict must be for Defendant Miley. If, 

however, you find that the plaintiff class has met these 

elements, then you will determine the quantity of unlawful 

facsimile advertisements for which Defendant Miley is liable.

Now, I'd like to share a few words about your conduct 

as jurors. First, I instruct you that during the trial, 

you're not to discuss the case with anyone or permit anyone to 

discuss it with you. Until you retire to the jury room at the 

end of the case to deliberate on your verdict, you are simply 

not to talk about your impressions of this case. 

Second, do not read or listen to anything touching on 

this case in any way. If anyone should try to talk to you 

about it, bring it to the Court's attention promptly. 

Third, do not try to do any research or make any 

investigation about the case on your own. For example, do not 

even think about trying to find relevant information on the 

internet. It would violate your oath as a juror to do so.

This means that you may not communicate about this case 

by cell phone or any other modality. You may not chat about 

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it, you may not post it on your Facebook page about it, and 

you may not, in short, use any sort of social media to portray 

your participation in this case as a juror, your impressions 

of the case or anything else. 

Also, please be aware that this is a small courthouse. 

The people in the elevators, the lobby and the hallways may 

well be attorneys or witnesses connected with this case. 

Please do not engage in any conversation with others and do 

not have any discussion with one another that can be 

overheard. And similarly, when you're at lunch, please do not 

discuss the case. 

Do not form any opinion until all the evidence is in. 

Keep an open mind until you start your deliberations at the 

end of the case. 

Finally, if any member of the jury has a friend or a 

family member who is in attendance at this public trial, that 

visitor must first register with my clerk, Marnie Macciarella, 

because special rules will govern their attendance. You may 

not discuss any aspect of this case with your visitor nor may 

you permit the visitor to discuss it with you. 

A word about taking notes. You will recall that during 

the jury selection process, I indicated that you're permitted 

to take notes in this case if it will help you to remember. 

If you wish, you may take notes of the testimony. My clerk 

will distribute notebooks to each of you which you are free to 

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use or not use and remember that they are for your own 

personal use. They're not to be given or read to anyone else. 

Many jurors do find it helpful to jot down the name of the 

witness who is testifying and a few of the points of the 

witness's testimony that you wish to remember. 

This can be helpful when you're trying to recall later 

on exactly what it was that a witness said or failed to say. 

You don't get copies of the transcripts. In fact, there is no 

transcript of the case as we go along, and so it's up to you 

to use your best recollection collectively, as members of the 

jury, to recall the evidence when you are analyzing it and 

deliberating at the end of the case. 

I'd like to say a word about asking questions. As 

jurors, you will have the opportunity to ask questions of 

witnesses in writing. When a witness has been examined and 

cross-examined by counsel and after I ask any clarifying 

questions of the witness, then I will ask whether any juror 

has any questions for the witness. If so, you will take a 

moment to write your question on a piece of paper without 

discussing your question with any other juror and hand it to 

my deputy clerk. I will review your question with the 

attorneys at the sidebar and determine whether the question is 

appropriate under the rules of court. If so, that question 

and perhaps reasonable follow-up questions will be asked of 

the witness. If not, then the question will not be asked and 

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I normally don't give an explanation of why it's not being 

asked. 

Remember in forming your question, that this 

opportunity is for the purpose of clarifying testimony to aid 

your understanding, and certainly, no one is required to 

formulate any questions. But if you have questions, that's 

the procedure for getting them answered. 

The trial will now begin. First, each side will make 

an opening statement. An opening statement is not evidence 

and it's not even argument. You don't hear argument until the 

end of the case. But it is an outline of what that party 

intends to prove, offered to help you to follow the evidence. 

Next, the plaintiff and plaintiff class will present 

their witnesses and the defendant, through counsel, may 

cross-examine them. Then the defendant, Mr. Miley, will 

present his witnesses, and plaintiff, through their attorneys, 

may cross-examine them. After that, the attorneys will make 

their closing arguments to summarize and interpret the 

evidence for you and the Court will give you instructions on 

the law, and then you will retire to deliberate on your 

verdict. You will be able, again, to see the exhibits, that 

is, the documents that are received in evidence at trial. 

You do not receive transcripts of the trial testimony, 

so you must concentrate during the trial and rely on your 

recollection of the testimony. 

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Also, as I previously said, if at any time you can't 

hear a witness or you can't see an exhibit, put up your hand 

so that we can do a better job of making sure that you hear it 

and see it. But if you say nothing, then we just won't know 

if you're not getting it. 

We take regular breaks, as I mentioned yesterday, and 

if at any time aside from that, you feel you need a break, 

again, just put up your hand and I'll honor that request. 

And so that completes these preliminary instructions. 

Is there anything else that counsel would have me share with 

the jury at this time? 

MR. COHEN: No, Your Honor. 

MR. FITZPATRICK: No, Your Honor. 

THE COURT: Okay. Very well. 

Then, ladies and gentlemen, and I'll call upon 

Mr. Daniel Cohen who will speak with you on behalf of the 

plaintiff class. Mr. Cohen. 

MR. COHEN: Thank you, Judge. May it please the 

Court, Counsel. Good morning. My name is Dan Cohen and I'm 

joined by my co-counsel Tod Lewis and together we represent 

City Select Auto Sales. We are joined by Mr. Pellegrini who 

is the owner and he's here on -- both his own behalf as the 

owner of the plaintiff company and on behalf of the class of 

people and companies that were similarly situated to his, in 

that they received via legal fax advertisements, advertising 

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David Randall Associates' goods and services. 

This is -- I will anticipate this is going to be a 

short trial. I anticipate the trial might end tomorrow. I 

apologize if I turn out to be wrong, but I do anticipate we 

will be done tomorrow, because we're going to put a witness on 

the stand today and we may or may not finish with her, but 

when we're done, I anticipate the defendant will put one 

witness on the stand and when that witness is done, I believe 

the evidence is going to be concluded, and I simply don't 

think that's going to go beyond tomorrow. 

What I'm going to tell you now is undisputed. In 

March, April and May of 2006, a company called Business to 

Business Solutions, or B2B, and they also operated under a 

marketing logo called Maxi-Leads. They issued four separate 

independent broadcast blasts of faxes; one in March and in 

April and in May, total of four separate broadcast blasts. 

Each broadcast was in the number of thousands and thousands of 

fax transmissions. Each broadcast advertised the goods and 

services of David Randall Associates. 

Mr. Miley, the defendant in this case, in this 

courtroom at this time, at that time was an owner and the 

managing officer of David Randall Associates. 

All four of those fax broadcasts and all of the 

thousands of fax transmissions in each of those fax broadcasts 

violated the Telephone Consumer Protection Act, or the TCPA, 

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because it's unlawful under the TCPA to send unsolicited fax 

advertisements. 

The Court has already found that the company David 

Randall Associates is liable for all four of those broadcasts 

and all of the many thousands of fax transmissions in each of 

those broadcasts, and that $500 per fax transmission, the 

Court has entered judgment against the company, David Randall 

Associates, in the approximate amount of $22 million. 

In this case, the issue is whether Mr. Miley, the 

former owner and managing officer of David Randall Associates, 

is also individually liable for those violations and for 

damages. In fact, that is the only issue, and that's why one 

of the questions that was asked of you when we were selecting 

the jury yesterday morning was Question No. 20, which noted 

that under certain limited circumstances, the law provides 

that an owner or officer of the company can be held personally 

liable for the unlawful actions of his company if he directly 

participated in or personally authorized such unlawful 

actions, and the Court asked, would you be able to follow my 

instructions as to the law of individual liability, and each 

of you indicated you would. 

And this entire trial ends up being about that Question 

No. 20, because as the Court has already foreshadowed for all 

of us, in order to hold Mr. Miley liable for the four fax 

broadcasts on behalf of -- shouldn't forget the name of the 

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defendant, but I apologize -- on behalf of the company, the 

evidence has to prove that he had direct personal 

participation in the fax broadcasting process or that he 

personally authorized those fax broadcasts. 

And that kind of involvement, either/or, the 

participation or the authorization, the Court has already 

contrasted for you against what the Court described as merely 

tangential involvement, collateral, off to the side, not 

significant. 

What the evidence is going to be is that Mr. Miley not 

only had significant direct participation in the fax 

broadcasting decisions and the whole process, but that he was 

the central figure at David Randall Associates doing it all. 

He was acting through a staff member, a woman named April 

Clemmer, who will be coming in to testify. She was in the 

nature of a secretary, office manager, but with very limited 

authority, and she was the one communicating with the fax 

broadcaster, B2B, but you're going to hear from her that at 

all times, she was merely doing what Mr. Miley told her to do. 

She was merely communicating that which Mr. Miley had 

indicated, instructed, authorized and approved. 

As the Judge indicated, we conduct discovery before 

trial and we get to gather documents, we get to take 

depositions. Ms. Clemmer has been deposed. She was deposed a 

long time ago and she walked through her involvement and 

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participation in these fax broadcasts and she was very clear 

at all times. 

Among other things, I expect what she will tell you 

when she comes in here and testifies today, is that in her 

capacity with the company, David Randall Associates, she did 

not have authority to enter into contracts. She did not have 

authority to bind the company contractually or to pay money on 

behalf of the company. She did not have the authority to sign 

on the checking account of David Randall Associates, that when 

it came to marketing and advertising, Mr. Miley handled that. 

That when Business to Business Solutions, or B2B, fax 

broadcasting company, contacted David Randall Associates, it 

was Mr. Miley who came to Ms. Clemmer and brought it to her 

attention that there was this offer of fax broadcasting 

advertising services, and he asked her to follow up with B2B 

to find out what the cost would be, how many faxes for a 

particular price and what other information B2B would need to 

proceed with the broadcasts. 

At his request and instruction, she spoke with B2B and 

then she reported back to Mr. Miley with the information she 

had learned. And Mr. Miley responded, quote, it sounded like 

something we'd be interested in doing for service repairs. 

And the meaning of service repairs is Mr. Miley and David 

Randall Associates was a roofing contractor, so the idea was 

if you're not installing a roof, you're repairing a roof, and 

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the idea was this would be a good advertisement method for our 

roofing repairs service.

Ms. Clemmer will tell you that it was Mr. Miley's idea 

for the first of these four broadcasts to wait until a rainy 

day. The idea being, if you have a roof that leaks, that's 

when you'll encounter the problem, and if you happen to get a 

fax on that day that offers roofing services, you're likely to 

get a call. 

And he asked Ms. Clemmer to touch base with the fax 

broadcaster B2B to see how much lead time B2B would need so 

that everything would be set up and ready to go so when the 

rainy day hit, they could contact B2B and say, do it now. 

And Ms. Clemmer, at Mr. Miley's request and 

instruction, worked that out with B2B and she will tell you 

that throughout the process, she kept Mr. Miley aware of what 

she was doing at all times and of what B2B was telling her at 

all times, and that all of her contact with B2B at all times 

was on Mr. Miley's behalf. 

And I anticipate she's going to confirm for you that 

Mr. Miley himself individually and personally reviewed the ad 

that the fax broadcaster B2B came up with advertising David 

Randall Associates' goods and services, that he was the 

ultimate decision-maker in approving the form of that ad, that 

he determined for each of the four broadcasts the number of 

faxes to be sent, that he determined when each of those four 

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fax broadcasts would issue, and that he determined the desired 

or intended geographic scope of each of the broadcasts. 

The fax broadcasts were paid for with a company check 

and the method of handling it was in sending in to B2B by fax, 

the final approval to go ahead, they would make a copy of the 

check, it would be fully filled out that it would say void, 

and they would fax a copy of the completed check payable to 

B2B, they would fax it to B2B and then B2B would create an 

electronic check using the routing information from what was 

faxed to them. Mr. Miley approved the sending of the copy of 

the check in order that B2B could create an electronic check 

and make an electronic deposit and withdrawal. 

All of her communications with B2B were at Mr. Miley's 

request. The okay to send broadcasts, all four of them on 

particular days, came from Mr. Miley. And she'll tell you 

that all of her communications with B2B were done with the 

full knowledge, approval and authorization of Mr. Miley. 

I could be wrong, but I think it's fair to say the 

opening statement, what I've just shared with you and when 

Mr. Fitzpatrick gets up and gets to talk to you, what he will 

share with you, is going to be the most exciting part of this 

trial because the subject matter itself already isn't exciting 

and presenting the evidence is going to be even less so, 

because what we have are 28 to 30 documents that were 

contemporaneous with the time of Ms. Clemmer and Mr. Miley's 

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interaction with B2B that reflect the process of gearing up 

and getting each of these broadcasts done. 

And it's in large part what Ms. Clemmer relies on to 

refresh her recollection of what happened when, and these are 

documents she created and she will tell you, I created them at 

his request, but it's going to take a little while to walk 

through all these documents with her. It is going to be 

boring, but it is going to be relevant and probative. These 

are the documents that together with Ms. Clemmer's testimony 

support the case and prove that Mr. Miley had direct personal 

participation and personally authorized these broadcasts. 

Mr. Miley is no longer an owner of David Randall 

Associates. The company still exists under different 

ownership and that company is subject to a $22 million 

judgment, and we are here in this courtroom and in this trial 

asking you to find and hold that Mr. Miley himself bears 

personal individual responsibility for the conduct that has 

placed his former company under that judgment. 

I'll look forward to presenting our evidence. Thank 

you very much. 

THE COURT: Okay. Thank you, Mr. Cohen. 

Ladies and gentlemen, I'd now like to call upon 

Mr. Emmett Fitzpatrick. Mr. Fitzpatrick will speak with you 

on behalf of the defendant, Raymond Miley, III. 

MR. FITZPATRICK: I appreciate that, Your Honor. 

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Excuse me, but I'd like to reserve opening at this point and I 

request that the jury be given a brief description of that 

procedural selection. 

THE COURT: All right. Very well. 

No party is required to make an opening statement and 

what Mr. Fitzpatrick is electing is to defer his opening 

statement. So you won't be hearing an opening from the 

defendant. And since that's a party's right, you should bear 

it no particular notice. 

And so we'll now begin -- ready, then, to have the 

first witness called. Who will go first, Mr. Cohen? 

MR. COHEN: Yes. We will call Ms. Clemmer, April 

Clemmer. 

THE COURT: Okay. Please bring Ms. Clemmer to the 

witness stand. 

Okay. Please come to the witness stand. 

THE DEPUTY CLERK: Ma'am, can you please place your 

left hand on the Bible right there and raise your right hand. 

(APRIL CLEMMER, having been duly sworn as a witness, testified 

as follows:) 

THE DEPUTY CLERK: I need you to state your name, 

ma'am, and I need you to spell your first and last name, 

please. 

THE WITNESS: April Clemmer, A-P-R-I-L, 

C-L-E-M-M-E-R.

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

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THE DEPUTY CLERK: Thank you, ma'am. You can be 

seated and please speak into the microphone. Thank you. 

MR. COHEN: And, Judge, we are going to, if it's all 

right, put a copy of Ms. Clemmer's deposition just in case it 

becomes necessary, and also a binder of all of the exhibits 

which I'll ask Ms. Clemmer not to refer to unless and until I 

bring it to her attention, but that will keep me from having 

to constantly walk back and forth with the exhibits, if that's 

okay. 

THE COURT: Yes, very well. 

MR. COHEN: Thank you. 

May I proceed, Judge? 

THE COURT: Yes. 

MR. COHEN: Thank you.

(DIRECT EXAMINATION OF APRIL CLEMMER BY MR. COHEN:) 

Q. Good morning. Would you please introduce yourself. 

A. I'm April Clemmer. 

Q. Ms. Clemmer, you understand we're here to ask you some 

questions today about some stuff that happened back in 2006? 

A. Yes. 

Q. Are you currently employed by David Randall Associates? 

A. No. 

Q. By whom are you currently employed? 

A. Lockhart & Associates. 

Q. And how long have you been employed by them? 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

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A. Nine-and-a-half years. 

Q. The events at issue in this lawsuit occurred in March, 

April, May of 2006. Were you employed with David Randall 

Associates at that point in time? 

A. Yes. 

Q. Do you recall the month in 2006 when you moved to your 

current employment where you've been for nine-plus years? 

A. September of 2006. 

Q. When you left David Randall Associates, was that 

voluntary of your own accord? 

A. Yes. 

Q. Was there any negative events, hostilities, antagonisms, 

anything when you left the company? 

A. No. 

Q. Did we have you served with a subpoena essentially 

requiring you to come testify in court? 

A. Yes. 

Q. And I mentioned it to the jury, did you give a deposition 

in this case back in March of 2011, a little more than five 

years ago? 

A. Yes. 

Q. Have you had an opportunity to review that testimony to 

refresh your recollection for purposes of testifying today?

A. Yes. 

Q. And in fact, we sent that to you so you'd have it? 

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CLEMMER - DIRECT - COHEN

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A. Yes. 

Q. Did you see anything in there that you thought was 

incorrect or you wanted to change? 

A. No. 

Q. When you with David Randall Associates, what was your 

position? 

A. I was considered the office manager. 

Q. And what kinds of responsibilities did you have? 

A. Basic secretarial duties. I would have answered the 

phone, taken care of, like, office supplies. I did also work 

with the service department. I would take requests for 

service -- servicing the roofs. 

Q. Who did you report to? 

A. To Randy Miley. 

Q. And technically, formally his name is Raymond Miley, III. 

When you reference Randy Miley, are you referring to 

Mr. Miley? 

A. Yes. 

Q. In your capacity, your employment position with David 

Randall Associates, did you have authority to enter into 

contracts for the company? 

A. No. 

Q. Did you have authority to bind the company contractually, 

or to pay money? 

A. No. 

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CLEMMER - DIRECT - COHEN

United States District Court

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Q. Could you sign on the David Randall Associates' bank 

account? 

A. No. 

Q. Within the company, who was responsible -- well, let me 

ask you first, were you responsible as a job assigned to you, 

that you had authority over -- for the marketing and 

advertising? 

A. I was not responsible for it, but I helped with it. 

Q. Who was the person with the responsibility that you 

helped? 

A. Mr. Miley. 

Q. You understand what's at issue in this case, focusing on 

March, April and May of 2006, is some fax advertising that 

occurred where the goods or services of David Randall 

Associates was advertised by fax? 

A. Yes. 

Q. Do you have recollection and knowledge of some of those 

events? 

A. Yeah. I would say I wouldn't have remembered much, 

except I do have the paperwork that you supplied. 

Q. And to the extent that refreshed your recollection, your 

testimony and the documents you reviewed back in 2011, that's 

great. 

If at any point, your recollection is not as good today 

as it was then, we might ask you to take a look at what you 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

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said back in 2011 and you can tell us if that seems to be 

true. Okay? 

A. Okay. 

Q. How did -- as far as you recall, how did the whole 

concept of possibly advertising by fax come to your attention? 

A. Mr. Miley. 

Q. Now, there's a company I've told the jury about, Business 

to Business Solutions or B2B, and that they go under the name 

Maxi-Leads at times. 

Are you familiar with those terms? 

A. I remember them, yes. 

Q. When Mr. Miley approached you and talked to you about the 

possibility of advertising by fax, was it in relation to B2B 

or Maxi-Leads? 

A. Yes. 

Q. Do you recall what, if anything, he asked you to do at 

that time? 

A. I believe we had gotten a fax advertisement and we just 

kind of looked at that and he thought that that might be a way 

of advertising he would like to pursue. 

Q. And did he then ask you to follow up and do anything in 

furtherance of that? 

A. Yes. I was supposed to just check in with them and see 

what kind of cost was involved and what exactly they offered. 

Q. Did you do that? 

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CLEMMER - DIRECT - COHEN

United States District Court

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A. Yes. 

Q. And after you spoke with a person at B2B -- was that a 

gentleman? 

A. I believe it was, yes. 

Q. There's a name we might see in some documents, Kevin 

Wilson. Does that ring a bell? 

A. It does because of the paperwork. I do know it was a 

gentleman, but, yes, yes. 

Q. After you spoke with Mr. Wilson at B2B at Mr. Miley's 

request and you gathered information that Mr. Miley had asked 

you to gather, did you report back to Mr. Miley what you had 

learned? 

A. Yes. 

Q. In terms of whether that was something that sounded like 

a prospect to go forward with versus something we're not 

interested in, what, if anything, do you recall Mr. Miley 

saying after you shared that information with him? 

A. That it was something that we would look into pursuing. 

Q. Is that -- and I'm focusing on what your employment 

responsibility was, what your authority was at David Randall 

Associates. The decision to pursue that, to go forward with 

that with B2B, is that something you could have done on your 

own without Mr. Miley's knowledge and approval? 

A. No. 

Q. Was there any consideration given by Mr. Miley to the 

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CLEMMER - DIRECT - COHEN

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best timing of a fax broadcast advertising his roofing 

services? 

A. Yes. I mean, we thought that it -- if it would go out on 

a rainy day, if the person had a roof leak, that that would be 

a good opportunity for them to consider using David Randall 

Associates. 

Q. And you can't always predict a rainy day. Did Mr. Miley 

give you any instructions to follow up with the company about 

how to try to coordinate or figure out what could be done in 

that regard? 

A. Yes. I just checked in with them to see if we could get 

everything set up so that we could just let them know a 

specific date when it would be raining that they could send 

those out. 

Q. As far as the first, and actually, it may apply to all -- 

may well apply to all four of the broadcasts, but were there 

geographic limitations or restrictions, whether it be a 

certain radius around David Randall Associates or certain area 

codes or ZIP codes, was there any geographic restriction 

associated with each of the broadcasts? 

A. I'm not sure if I understand what you mean by 

"restriction." We had chosen -- we had chosen ZIP codes that 

would be around our servicing area. 

Q. Okay. 

MR. FITZPATRICK: I just have an objection, Your 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

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Honor, to the leading nature of the question. 

THE COURT: All right. 

MR. FITZPATRICK: The witness hasn't said anything 

about broadcasts and we're already having words put in her 

mouth about that. 

THE COURT: All right. Could we -- could we go back 

and could you redevelop it without leading questions. 

MR. COHEN: Certainly.

BY MR. COHEN:

Q. At some point, as far as you understand, was there a fax 

advertisement sent out on behalf of David Randall Associates? 

A. Yes. 

Q. You mentioned a moment ago ZIP codes. Were ZIP codes 

used? 

A. Yes. 

Q. Who decided what ZIP codes would be used as a restriction 

or an instruction for the issuance of the fax advertisement? 

A. Mr. Miley. 

MR. FITZPATRICK: Again, Your Honor, I object to the 

leading nature of the question. The witness didn't testify 

that -- in the words that counsel is using that there were 

geographic restrictions and instructions given to some -- 

anything. 

THE COURT: Overruled. The particular question is 

not leading. I'll permit it.

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BY MR. COHEN:

Q. The ZIP codes that you've talked about for the 

broadcasts, was that communicated to B2B? 

A. Yes. 

Q. Who communicated it? 

A. I would have. 

Q. But whose decision was it? 

A. Mr. Miley's. 

Q. When you would communicate with B2B and Kevin Wilson, and 

if you need to parse this out, sometimes yes, sometimes no, 

please feel free. But when you would communicate with B2B, 

you would communicate information to them, or you would 

receive information from them, would you pass that along to 

Mr. Miley? 

A. Yes. 

Q. When you contacted -- communicated with, interacted with 

B2B, were you doing it on your own behalf or on Mr. Miley's 

behalf? 

A. On Mr. Miley's behalf. 

Q. Do you know whether Mr. Miley reviewed the fax 

advertisement proposal that the broadcaster B2B came up with? 

A. I'm not sure what you mean by "proposal." 

Q. At some point, did B2B propose an ad? 

A. Yeah, right, yes, and he would have reviewed it. 

Q. And at some point, was the ad that would be used in the 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

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fax advertisement, at some point, was that decided upon? 

A. Yes. 

Q. Who was the ultimate decision-maker in approving the form 

and content of the ad that was ultimately used? 

A. Mr. Miley. 

Q. As far as you recall, and based upon your recollection of 

your deposition and the documents attached to it, and we will 

be going through those, but was there more than one broadcast? 

A. Yes. 

Q. We'll talk about how many there were in a moment, but to 

the extent that each broadcast of an advertisement of David 

Randall Associates' goods and services, to the extent that 

each broadcast involved a certain number of fax transmissions, 

who decided how many faxes should be sent out for each 

broadcast? 

A. Mr. Miley. 

Q. As far as the timing of the broadcasts, when they would 

issue, who decided when they would issue? 

A. Mr. Miley. 

Q. Do you recall how David Randall Associates made payments 

for the fax broadcasts by B2B? 

A. Via check. 

Q. Maybe you can explain for us how that was actually 

handled in terms of creating the check and what was done with 

the check? 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

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A. I believe that we did a -- had to send a copy of the 

check to the -- B2B, Business to Business Solutions and they 

would do an electronic withdrawal or whatever based on that 

check, we never physically sent the check. 

Q. Do you know whether Mr. Miley was aware that that was 

being done? 

A. Yes. 

Q. Did Mr. Miley approve of that? 

A. Yes. 

Q. Did you have any communications with B2B about fax 

broadcasting, advertising David Randall Associates' goods and 

services, did you have any such communications with B2B that 

were not at Mr. Miley's request and with his knowledge and 

approval? 

A. No. 

Q. Were you successful in getting the first broadcast from 

B2B to happen on a rainy day? 

A. Yes. 

Q. And did the okay to send that first broadcast on that 

specific rainy day come from Mr. Miley? 

A. Yes. 

Q. And were there subsequent broadcasts after that? 

A. Yes. 

Q. Ms. Clemmer, in front of you, you have a very big 

three-ring binder and it's got tabs in it that number the 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

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exhibits, and what I'm wondering if you could do, is flip to 

the tab for Exhibit No. 1. 

A. Mm-hmm. 

Q. And I'll represent to you that the first 28 exhibits are 

the same 28 exhibits in your deposition. 

A. Okay. 

Q. So there is going to be a symmetry about that. 

Do you recognize Plaintiff's Exhibit 1? 

A. Yes. 

Q. The first page of Plaintiff's Exhibit 1, is that a 

document that you would have created as a communication from 

you to somebody at B2B or Maxi-Leads? 

A. Yes. 

Q. And if you look through the three pages comprising 

Exhibit 1, is this a true and accurate copy of that fax 

transmission? 

A. Yes.

MR. COHEN: We would move for admission of 

Plaintiff's Exhibit 1. 

THE COURT: Any objection? 

MR. FITZPATRICK: No objections. 

THE COURT: Okay. Plaintiff's Exhibit 1 is received 

into evidence. 

(PLAINTIFF EXHIBIT P-1 WAS RECEIVED IN EVIDENCE) 

MR. COHEN: Request permission to publish, Judge? 

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United States District Court

Camden, New Jersey

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THE COURT: Yes, you may. 

MR. COHEN: Thank you.

BY MR. COHEN:

Q. I'm drawing your attention to Page 1 of Plaintiff's 

Exhibit 1, to Christine at Maxi-Leads from April Clemmer. 

That's you? 

A. Yes. 

Q. And it indicates a date, 3-21-06. Would that be the date 

on which you did this? 

A. Yes. 

Q. Under comments, where it says: Attached is the 

information you requested to work up an ad for us, I've also 

enclosed an ad we came up with, I'll wait -- I will await your 

price list and additional information regarding whom we want 

to target for this ad campaign. Thank you for your help, 

April. 

Was Mr. Miley aware you were communicating that 

information to Maxi-Leads? 

A. Yes. 

Q. Where it indicates: The information you requested to 

work up an ad, who put together that information? 

A. Mr. Miley would have supplied the information. 

Q. And where it says: "I've also enclosed an ad we came up 

with," who came up with that ad? 

A. Mr. Miley. 

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United States District Court

Camden, New Jersey

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Q. You say in the second sentence or third sentence, "I'll 

await your price list and additional information regarding 

whom we want to target for this ad campaign." 

Who wanted the price list? 

A. Mr. Miley. 

Q. And who wanted information bearing on the target? 

A. Mr. Miley. 

Q. Page 2 of Exhibit 1, at the top, it says, "Tell us what 

to write in your free ad," and then it's got some information 

and instructions and then it's got the template information, 

your name, company name, et cetera. 

Was this a template document from B2B? 

A. Yes. 

Q. And we covered it a little bit a moment ago, but all of 

the information responding to the particulars about David 

Randall Associates, who provided that information? 

A. Mr. Miley. 

Q. And then the third page of Exhibit 1, that's an 

advertisement, Roof Leaks, and you indicated earlier about an 

ad that you -- we came up with, and you indicated Mr. Miley.

Is Page 3 of Exhibit 1 the advertisement that Mr. Miley 

came up with for you to send to B2B? 

A. Yes. 

Q. Ma'am, if you could turn to Exhibit No. 2. 

Do you recognize the first page of Plaintiff's 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

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Exhibit No. 2? 

A. Yes. 

Q. Is this a document you created as a communication to 

Kevin Wilson at Maxi-Leads or B2B? 

A. Yes. 

Q. And looking both at the cover page and the attached page, 

are these true and accurate copies of the originals of these 

documents? 

A. Yes. 

MR. COHEN: Your Honor, we would move for admission 

of Plaintiff's Exhibit 2. 

MR. FITZPATRICK: No objection, sir. 

THE COURT: Okay. Plaintiff's Exhibit 2 is received 

into evidence. 

(PLAINTIFF EXHIBIT P-2 WAS RECEIVED IN EVIDENCE) 

MR. COHEN: Thank you. May I publish? 

THE COURT: Yes. 

MR. COHEN: And Judge, I always ask, shall I assume I 

may publish these as we go? 

THE COURT: Yes, you may, but only after they've been 

actually officially received into evidence. 

MR. COHEN: Certainly. Thank you.

BY MR. COHEN:

Q. So we see here from April Clemmer to Kevin Wilson at 

Maxi-Leads on March 23, 2006, that would be two days later?

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United States District Court

Camden, New Jersey

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A. Mm-hmm, yes. 

Q. And it states, under comments, "Kevin, I just received 

part of the fax you sent me. I only received Pages 1, 2, half 

of 3, see attached, and no Page 4 at all. Please re-fax 

Pages 3 and 4 so I may review and approve. I would appreciate 

your doing this ASAP. We would like to get everything set up 

for a mass faxing to go out on Monday, March 27th." 

Did I read that correctly? 

A. Yes. 

Q. Where it says in the second line there, "Please re-fax 

Pages 3 and 4 so I may review and approve." 

Were you going to be the person at David Randall 

Associates that approved? 

A. No. 

Q. Who were you speaking of in terms of the use of the word, 

"approve?" 

A. Randy. 

Q. Mr. Miley? 

A. Mr. Miley. 

Q. And it says, "I would appreciate your doing this ASAP. 

We would like to get everything set up for a faxing to go out 

March 27th." 

Who is the "we," who wanted to get it set up to go out? 

A. Mr. Miley. 

Q. Page 2 of Exhibit 2, is this the cutoff page you were 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

45

referring to? 

A. I assume so. 

Q. Because it said half of three -- on Page 1, it says, "I 

only received Pages 1, 2, half of 3. See attached." 

Is that why you say you assume so? 

A. Yes. 

Q. Would you please turn to Plaintiff's Exhibit No. 3, 

ma'am. 

Exhibit No. 3 appears to be the same document as 

Exhibit 2, at least the cover page, correct? 

A. Yes. 

Q. But when we look at the second page of Exhibit 3, we see 

a cutoff fax. 

A. Yes. 

Q. As far as you know, is this actually the Page 3 that was 

cut off? 

A. It appears so, yes. 

Q. If you could turn to Plaintiff's Exhibit 4. 

Are you familiar with this document? 

A. Yes. 

Q. Is this a fax communication from you to Mr. Wilson at B2B 

on March 23rd, 2007? 

A. Yes. 

Q. So that's the same day as Exhibits 2 and 3? 

A. Yes. 

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United States District Court

Camden, New Jersey

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MR. COHEN: We would move for admission of 

Plaintiff's Exhibit 4. 

THE COURT: Okay. Any objection? 

MR. FITZPATRICK: No, sir. 

THE COURT: Okay. Plaintiff's Exhibit 4 is received 

into evidence. 

(PLAINTIFF EXHIBIT P-4 WAS RECEIVED IN EVIDENCE) 

THE COURT: Did you mean to move Plaintiff's 3 into 

evidence as well? 

MR. COHEN: I forgot to do that, Judge. We would 

move for admission of Plaintiff's Exhibit 3. 

THE COURT: Any objection? 

MR. FITZPATRICK: No. 

THE COURT: Okay. P-3 is also received into 

evidence.

(PLAINTIFF EXHIBIT P-3 WAS RECEIVED IN EVIDENCE) 

MR. COHEN: Thank you, Judge. 

BY MR. COHEN:

Q. Ms. Clemmer, drawing your attention to Page 1 of 

Plaintiff's Exhibit 4 from you to Mr. Wilson, March 23, 2006, 

and regarding Ad for Fax Blast. 

Under comments, you put, "Thanks for your ads, but I 

think we prefer the simplicity of our ad. Please keep the top 

heading and picture. You may play a little with the font and 

layout of the information part. Please note the change in our 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

47

second line -- see attached. I will await your changes. 

Thanks for your prompt help, April." 

Was that your communication to B2B at that time? 

A. Yes. 

Q. In the first line of your comment, where you say, "I 

think we prefer the simplicity of our ad," who's the "we," who 

preferred and made the decision that the simplicity of the 

David Randall-created ad was better? 

A. Mr. Miley.

Q. And if we look at the second page of Exhibit 4, what the 

jury is looking at right now, is this the attachment to that 

fax you sent to B2B? 

A. Yes. 

Q. Here where it says in the second line, "Our commercial 

roofing company," and it looks like some stuff has been whited 

out and handwritten, "Established in 1989, services," who 

decided that should be inserted? 

A. Mr. Miley. 

Q. If you would turn to Plaintiff's Exhibit 5 in your 

binder. By the way, do you have water? Do you need water? 

A. I'm fine, thanks. 

Q. Is this a document you're familiar with? 

A. Yes. 

Q. Is this a communication by facsimile from you to Kevin 

Wilson at B2B or MaxiLeads dated one day later, March 24 of 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

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2006? 

A. Yes. 

Q. And if you look at both page 1 and the attachment, page 

2, are these true and accurate copies of the originals? 

A. Yes. 

MR. COHEN: We would move for admission of 

Plaintiff's Exhibit 5, Judge. 

MR. FITZPATRICK: No objection, sir. 

THE COURT: Okay. Plaintiff's Exhibit 5 is received 

into evidence. 

MR. COHEN: Thank you. 

(PLAINTIFF EXHIBIT P-5 WAS RECEIVED IN EVIDENCE.) 

BY MR. COHEN:

Q. Ma'am, drawing your attention to the cover page of 

Plaintiff's Exhibit 5, indicating from you to Mr. Wilson, 

March 24th, 2006, under comments, you put, "Here is another 

revision. We decided we should put our toll free number on 

the ad and add the phrase 'repairs available' in the top 

section. We also noted yesterday a change to the second 

sentence in the first paragraph." Did I read that correctly? 

A. Yes. 

Q. When you're referring to we, we decided the toll free 

number, we decided to add the phrase "repairs available," we 

noted a change yesterday, who is the we? 

A. Mr. Miley. 

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United States District Court

Camden, New Jersey

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Q. And the second page of Exhibit 5, is this what you were 

referring to? 

A. Yes. 

Q. And, ma'am, if you could take a look at Plaintiff's 

Exhibit 6, does Plaintiff's Exhibit 6 appear to be essentially 

the same thing as Plaintiff's Exhibit 5? 

A. Yes. 

Q. And just to remind you, Plaintiff's Exhibit 5, because we 

didn't focus on it, up here at the top it has faxed, a fax 

stamp with the date and time, and are those your initials? 

A. Yes. 

Q. Okay. Plaintiff's Exhibit 6, same document, does it not 

have that stamp, but then it's actually got the actual fax 

transmission confirmation header at the top? 

A. Yes. 

MR. COHEN: We move for admission of Plaintiff's 

Exhibit 6, Judge. 

MR. FITZPATRICK: No objection. 

THE COURT: Exhibit P-6 is received into evidence. 

(PLAINTIFF EXHIBIT P-6 WAS RECEIVED IN EVIDENCE.) 

BY MR. COHEN:

Q. And just so the ladies and gentlemen of the jury see, is 

that the difference between 5 and 6, 6 has the fax header at 

the top but not your stamp? 

A. Yes. 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

50

Q. Thank you. Ma'am, if I could draw your attention to 

Plaintiff's Exhibit 7. Do you recognize this document? 

A. Yes. 

Q. Is this a fax transmission from you to Kevin Wilson at 

MaxiLeads or B2B again on the same date as the last one, March 

24th of 2008? 

A. Yes. 

Q. And if you look at both the cover page and the page 

attached, are these true and accurate copies of the originals 

as you recall them? 

A. Yes. 

MR. COHEN: We move for admission of Plaintiff's 

Exhibit 7, Judge. 

MR. FITZPATRICK: No objection, sir. 

THE COURT: Okay. Exhibit P-7 is received into 

evidence. 

(PLAINTIFF EXHIBIT P-7 WAS RECEIVED IN EVIDENCE.) 

BY MR. COHEN:

Q. So, we show April Clemmer to Kevin Wilson, March 24th, 

2006, and under comments, it says, "Attached is the approved 

ad. We would like the following ZIP codes solicited for 

businesses," and then it's got seven lines of ZIP codes. It 

says, "We are looking at doing at least the 5,000 plus 

additional 1,000, 6,000 total, but possibly even 10,000, plus 

2,000 additional, equals totaling 12,000. How many business 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

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faxes would the above list of ZIP codes include? I will wait 

to hear from you regarding proceeding with this." First of 

all, did I read that correctly? 

A. Yes. 

Q. In the first sentence under comments, "Attached is the 

approved ad," what I'm placing on the screen now, which is 

page 2 of this exhibit, is that the ad that was approved? 

A. Yes. 

Q. And on page 2 of this exhibit where it says in 

handwriting "client," and it's got "K032107, ad Ok," is that 

your handwriting? 

A. Yes. 

Q. Was that what you needed to do under B2B's instructions 

to give them the final approval? 

A. Yes. 

Q. And under comments on page 1 of this exhibit where it 

says, "Attached is the approved ad," who approved it? 

A. Mr. Miley. 

Q. Where it then says, "We would like the following ZIP 

codes solicited for businesses," and it's got seven lines of 

ZIP codes, did you come up with those ZIP codes? 

A. No. 

Q. Who came up with those ZIP codes and gave them to you? 

A. Mr. Miley. 

Q. Who instructed you to communicate those ZIP codes to B2B? 

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United States District Court

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A. Mr. Miley. 

Q. Where it says, we are looking at doing at least 5,000 

plus an additional 1,000 for 6,000, but maybe even 10,000 plus 

2,000 for a total of 12,000, who decided those were the 

numbers or the volumes or the quantities that David Randall 

Associates was looking at doing? 

A. Mr. Miley. That was the increments that MaxiLeads 

offered, so he was deciding between the 5,000 and 10,000, 

depending on how many would be affected by that ZIP code area. 

Q. So, B2B or MaxiLeads had ideas, 5,000 plus an extra one, 

or 10,000 plus an extra two, the question was what did David 

Randall Associates want to do? 

A. Yeah. He didn't make a decision yet. He is basing it on 

their answer. 

Q. You then ask, "How many business faxes would the above 

list of ZIP codes include?" Who came up with that question; 

who wanted to know that? 

A. Mr. Miley. 

Q. Ma'am, would you take a look at, and this is going to 

require you to flip, kind of jump a lot of exhibits, can you 

go to Plaintiff's Exhibit 34? 

Are you there? 

A. Yes, I'm sorry, yes. 

Q. Okay. There is some handwriting at the bottom right of 

this document, Plaintiff's Exhibit 34. Do you see that? 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

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A. Yes. 

Q. Whose handwriting is that? 

A. Both mine and Mr. Miley's. 

Q. Is this a document that you would have received, 

reviewed, you put your handwriting on it, then Mr. Miley put 

his handwriting on it? 

A. Yes. 

Q. And both page 1 and page 2, are these true and accurate 

copies of the originals as you recall them to have been? 

A. Yes. 

MR. COHEN: We would move for the admission of 

Plaintiff's Exhibit 34. 

MR. FITZPATRICK: No objection, your Honor. 

THE COURT: Okay. Exhibit P-34 is received into 

evidence. 

(PLAINTIFF EXHIBIT P-34 WAS RECEIVED IN EVIDENCE.) 

BY MR. COHEN:

Q. Most of the, maybe all of the stuff we have looked at so 

far has been outgoing faxes from you to B2B. This may be the 

first one we've looked at which was an incoming fax. Was this 

an incoming fax to you at David Randall Associates from Kevin 

Wilson at MaxiLeads or B2B? 

A. Yes. 

Q. And it indicates it's dated March 24, 2006. As far as 

you can recall, would that be accurate? 

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United States District Court

Camden, New Jersey

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A. Yes. 

Q. It says, "Following, find the revised ad written for your 

business. If still needed, make corrections, additions, or 

changes on the fax itself and fax it back to us immediately 

at," and it's got a number. "If the ad now meets with your 

approval, please write 'client number: K032107, ad OK' on it 

and fax the approved ad back to us. We will call you to make 

the final arrangements for your advertising campaign." Did I 

read that correctly? 

A. Yes. 

Q. Just to jump back to what we had as page 2 of Exhibit 7, 

Exhibit 7 was your fax to Mr. Wilson with the ZIP codes, and 

page 2 was the ad with "client number" and "ad Ok," were those 

the instructions of Mr. Wilson that you were complying with 

when you wrote the client number and ad Ok? 

A. Yes. 

Q. And actually attached as page 2 to Exhibit 34, is that 

same ad, correct? 

A. Yes. 

Q. With the same "client number" and "ad Ok" circled? 

A. Yes. 

Q. At the bottom, the bottom right of Plaintiff's Exhibit 

34, the handwriting that is yours, would you please read that. 

A. "Randy, are we okay with this ad?" 

Q. And Randy was Mr. Miley? 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

55

A. Yes. 

Q. Did you have authority to approve that ad without getting 

the approval from Mr. Miley? 

A. No. 

Q. Is that why you were approaching Mr. Miley and seeking 

his decision and approval? 

A. Yes. 

Q. There is a word under it circled with a date and an 

initial. Whose handwriting is that? 

A. Mr. Miley's. 

Q. And what was his answer to your question, are we okay 

with this ad? 

A. Yes. 

Q. Is the initial M for Miley? 

A. Yes. 

Q. And is that date, 3/24/06, is that your date or his? 

A. His. 

Q. When you communicated back to Kevin Wilson in what we 

have already seen was Exhibit 7 that the attached ad is 

approved, was the approval what we see at the bottom right of 

Exhibit 34? 

A. Yes. 

Q. From Mr. Miley? 

A. Yes. 

Q. Now, you indicated earlier that there were subsequent fax 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

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broadcasts, and we'll see some documents about how many and 

the details of them. Did you obtain from Mr. Miley approval 

for each and every fax broadcast that you then communicated to 

B2B that it was okay to go ahead? 

A. Yes. 

THE COURT: Excuse me, Mr. Cohen. Let me know when 

it comes time for a mid morning break. 

MR. COHEN: Judge, this would be just fine. 

THE COURT: Is it? Okay. 

So, ladies and gentlemen, let's take about 10 minutes 

and then we will resume. 

You may step down. 

THE DEPUTY COURT CLERK: All rise. 

(Whereupon the jury exited the courtroom.) 

THE COURT: Okay. So, we will resume at 11:30. 

MR. FITZPATRICK: Thank you, your Honor. 

(Recess at 11:18 a.m.) 

(In open court at 11:33 a.m.) 

THE DEPUTY COURT CLERK: All rise. 

THE COURT: Okay. Are we ready to proceed? 

MR. COHEN: Yes, your Honor. 

THE COURT: Please bring the jury. 

THE DEPUTY COURT CLERK: All rise. 

(Whereupon the jury entered the courtroom.) 

THE COURT: Be seated, please. 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

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Mr. Cohen, you may continue. 

MR. COHEN: Thank you, Judge. 

BY MR. COHEN: 

Q. Ms. Clemmer, we looked at Plaintiff's 7, and then we 

jumped to Plaintiff's 34. I'm going to ask you to look back 

now at Plaintiff's 8. Is this a document that you recognize? 

A. Yes. 

Q. There is handwriting on this document. Do you know whose 

that is? 

A. That's mine. 

Q. Is this a true and accurate copy of the document that you 

received at David Randall Associates from Kevin Wilson on 

March 27th of 2006? 

A. Yes. 

Q. Except you then added your handwriting on it? 

A. Correct. 

Q. And if you could flip to Plaintiff's Exhibit 9, is this 

the same incoming fax from Kevin Wilson on March 27, 2006, 

that we saw in Plaintiff's Exhibit 8, again with handwriting 

by you but a variation in the handwriting? 

A. Yes. 

MR. COHEN: We would move for admission of 

Plaintiff's Exhibits 8 and 9. 

THE COURT: Any objection? 

MR. FITZPATRICK: No objection, your Honor. 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

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THE COURT: Okay. Exhibit P-8 and Exhibit P-9 are 

received into evidence. 

(PLAINTIFF EXHIBITS P-8 AND P-9 WERE RECEIVED IN EVIDENCE.) 

BY MR. COHEN:

Q. It indicates March 27, 2006, from Kevin Wilson to you, 

"Welcome aboard. We now have everything needed to start your 

faxing campaign, except payment." On the third line it 

references, "We accept payment by fax check." Is that what 

you were talking about earlier when you talked about sending 

them a check and they do an electronic withdrawal? 

A. Yes. 

Q. In the second paragraph, it says, "As agreed, you pay 

only $438 for us sending 10,000 faxes, $20 for the required 

toll free remove number use, and $2 per 1,000 faxes sent, $20 

for incoming remove calls. This is a total of $478. To begin 

your program immediately, follow these simple instructions." 

Did I read that correctly? 

A. Yes. 

Q. Over here to the right of the "$20 for the required toll 

free remove number use," your handwriting, what does that say? 

A. "Waived as club member." 

Q. And then the next section down below where we've been 

reading, it says, "Starting your campaign," and then you've 

got some handwriting to the right that reads, "Priority Club 

member." That's your handwriting? 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

59

A. Yes. 

Q. And is that the club member you are referring to a little 

up higher? 

A. Yes. 

Q. And just below "Starting your campaign," it's got some 

handwriting. What does that say? 

A. "$394 okayed per Kevin Wilson 4/3/2006." 

Q. We are looking at this document, and it says it's dated 

March 27, 2006, as the incoming fax to you. When you're 

handwriting on it talking about a different price okayed by 

Kevin Wilson and you're putting 4/3/06, what does that tell us 

about when this was okayed by Mr. Wilson? 

MR. FITZPATRICK: Judge, do you want me to state my 

objection in front of the jury? 

THE COURT: Well, is it an objection as to form? 

MR. FITZPATRICK: Yes. 

THE COURT: Okay. I agree. Could you please 

rephrase the question and break it down into its parts? 

BY MR. COHEN:

Q. When you put 4/3/06 as a date, what were you referring to 

as corresponding to that date? 

A. The date that it was okayed. 

Q. By Mr. Wilson? 

A. By Mr. Wilson. 

Q. And we see the 394 and it's right above an area that 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

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seems to have something whited out. As we sit here today, 

without looking at Exhibit 9, do you -- if we didn't have 

Exhibit 9, would you know what was originally typed in there? 

A. I assume a dollar value, but I don't know what it would 

have been. 

Q. If we then look at Exhibit 9, the same document just with 

some different handwriting, it's still got the "waived as club 

member"? 

A. Yes. 

Q. And it's still got Priority Club member and everything 

about okayed per Kevin Wilson. 

A. Yes. 

Q. But instead of saying $394, it says $422. 

A. Yes. 

Q. And the 478 is crossed through, but it's not whited out. 

A. Yes. 

Q. So we can see that. Do you remember as we sit here 

today, before we get to some other document, which of these 

two came first, the one where you thought it was 394 or the 

one where you thought it was 422? 

A. I don't recall. 

Q. Would you take a look at Plaintiff's Exhibit 10, please. 

Do you see that? 

A. Yes. 

Q. Is this an e-mail from you to Mr. Wilson dated March 28th 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

61

of 2006? 

A. Yes. 

Q. The typed part, is that a true and accurate copy of the 

original? 

A. Yes. 

Q. There's also some handwriting. Whose handwriting is 

that? 

A. That's mine. 

MR. COHEN: Your Honor, we would move for admission 

of Plaintiff's Exhibit 10. 

MR. FITZPATRICK: No objection, sir. 

THE COURT: Okay. P-10 is received into evidence. 

(PLAINTIFF EXHIBIT P-10 WAS RECEIVED IN EVIDENCE.) 

BY MR. COHEN:

Q. It states, "Kevin, we would like to join the Priority 

Club. I understand there is a $28 membership fee. Is that 

for a year, a lifetime, or what? I believe that would drop 

our price for the 10,000 faxes to $394 and would already 

include the toll free remove number use. What is that? Also, 

what is the $2 per 1,000 fax charge for incoming remove calls? 

Is that also included in the Priority Club pricing, too? The 

Priority Club also entitles us to 2,000 free additional faxes, 

1,000 free for every 5,000 faxes ordered. To cover those, you 

can add the following ZIP codes to our list," and it lists six 

ZIP codes. "I believe our total should be $422. Please send 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

62

us a new bill immediately for me to give to our accounting 

department for processing. I will try to get this faxed back 

to you today if you do your part promptly. We want the faxes 

sent in the morning, not in the afternoon or evening, possibly 

even tomorrow, Wednesday, 29th, if we get this finalized." 

There's a second paragraph about wanting some 

verification the faxes were sent, and invoice with 

description, and I'll wait to hear from you. Was that your 

communication to Mr. Wilson? 

A. Yes. 

Q. In the first line where you say, "We would like to join 

the Priority Club," who made the decision to join the Priority 

Club? 

A. Mr. Miley. 

Q. The questions, the requests for additional information 

about some of these things, who needed to understand in order 

to make decisions? 

A. Mr. Miley. 

Q. The additional ZIP codes added to the previous list that 

you had sent, did you come up with those additional ZIP codes? 

A. No. 

Q. Who would have come up with them? 

A. Mr. Miley. 

Q. In the first paragraph towards the bottom, it says, "We 

want the faxes sent in the morning, not afternoon or evening." 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

63

Who wanted the faxes sent in the morning? 

A. Mr. Miley. 

Q. And then you have circled "morning," and in that 

sentence, "we want the faxes sent in the morning," you've got 

an arrow down and it says, with an asterisk, "Note this on fax 

when sending check." That's your handwriting? 

A. Yes. 

Q. Was this communication by you to Mr. Wilson by e-mail on 

March 28th, 2006, done in accordance with Mr. Miley's 

knowledge, approval and instruction? 

A. Yes. 

Q. If you could take a look at Plaintiff's Exhibit 11, 

please. 

A. Yes. 

Q. Is this another fax transmission from you to Mr. Wilson 

at B2B on March 28th, 2006? 

A. Yes. 

Q. And it indicates -- it's two pages including the cover 

page. The second page, is that the attachment? 

A. Yes. 

Q. Are these true and accurate copies of the originals? 

A. Yes. 

MR. COHEN: We would move for admission of 

Plaintiff's Exhibit 11, Judge. 

MR. FITZPATRICK: No objection, sir. 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

64

THE COURT: Okay. Exhibit P-11 is received into 

evidence. 

(PLAINTIFF EXHIBIT P-11 WAS RECEIVED IN EVIDENCE.) 

BY MR. COHEN:

Q. It's from you to Mr. Wilson on March 28th, 2006. "Kevin, 

as per our conversation, here is our check for $422 for our 

campaign for 12,000 faxes to be sent, Priority Club price of 

$394 for 10,000 plus 2,000 free plus the $28 membership fee. 

Please note: Fax should be sent Wednesday morning, 29th, not 

in the afternoon or evening. We authorize only one debit to 

our account for the amount on this check, as this is a payment 

in full for services rendered! Please send us a receipt for 

our records." Is that your communication to Mr. Wilson? 

A. Yes. 

Q. And then page 2, the attachment, is that actually the 

copy of the David Randall Associates check for the $422 

payable to Business to Business Solutions? 

A. Yes. 

Q. Did you have authority to prepare and issue a check like 

this? 

A. No. 

Q. Who authorized the creation and issuance of this check? 

A. Mr. Miley. 

Q. So, I know it would be hard to remember volumes and 

quantities 10 years ago for fax broadcasts, but based upon 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

65

your communication to Mr. Wilson in Exhibit 11 dated 3/28/06 

ordering a fax broadcast on 3/29/06 in the morning, can you 

tell us how many fax transmissions were to be included in that 

first fax broadcast? 

A. 12,000. 

Q. Who decided it should be 12,000? 

A. Mr. Miley. 

Q. Now, we've seen the advertisement that was used. Did it 

advertise anything about April Clemmer? 

A. No. 

Q. Did it advertise anything about Mr. Miley personally? 

A. No. 

Q. What -- who or what did it advertise? 

A. The roofing company David Randall Associates. 

Q. These things that you were doing and that Mr. Miley was 

having you do, were these on behalf of David Randall 

Associates? 

A. Yes. 

Q. The decision that it should be sent Wednesday morning, 

not afternoon or evening, whose decision was that? 

A. Mr. Miley. 

Q. The language, "We authorize only one debit to our account 

as this is a payment in full," who wanted that caveat, that 

warning? 

A. Mr. Miley. 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

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Q. And when it says "we authorize," who is the person 

authorizing? 

A. Mr. Miley. 

Q. Would you please turn to Plaintiff's Exhibit 12 now. 

A. Yes. 

Q. Do you recognize this document? 

A. Yes. 

Q. Is Plaintiff's 12 a fax transmission from you to Mr. 

Wilson at B2B dated March 29th, 2006? 

A. Yes. 

Q. So, just corresponding this exhibit, P-12, to the one we 

just looked at, P-11, P-11 was the 28th ordering a broadcast 

on the 29th, and then P-12 is on the 29th? 

A. Yes. 

Q. And the attachments, there's two pages of attachments, 

were these the original attachments or copies of the original 

attachments to that fax? 

A. Yes. 

MR. COHEN: Your Honor, we would move for the 

admission of Plaintiff's 12. 

MR. FITZPATRICK: No objection. 

THE COURT: Okay. P-12 is received into evidence. 

(PLAINTIFF EXHIBIT P-12 WAS RECEIVED IN EVIDENCE.) 

BY MR. COHEN:

Q. In this fax from you to Mr. Wilson at B2B on March 29th, 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

67

apparently, if you look at the top, you see it's March 29th at 

1600 hours? 

A. Yes. 

Q. 4:00 p.m.? 

A. Yes. 

Q. Under comments, "Kevin, please remove the following 

numbers, see attached notices and numbers below, from your 

call list. They obviously don't want to be bothered and are 

annoyed by the many faxes they received from your company. 

Thanks, April Clemmer." Did I read that right? 

A. Yes. 

Q. And then there's handwriting. Is that your handwriting? 

A. Yes. 

Q. And it's 1, 2, 3, and it's got three fax numbers? 

A. Yes. 

Q. And then there is the second page of this exhibit and 

it's handwritten and it reads, "Remove from fax list," and 

it's got two fax numbers, "or we will contact the FCC." Do 

you see that? 

A. Yes. 

Q. Was this a fax that David Randall Associates received 

after the first broadcast on March 29th, 2006? 

A. Yes. 

Q. And were you including that as an attachment to your 

communication, Exhibit 12, to Mr. Wilson so he would remove 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

68

those two numbers as well? 

A. Yes. 

Q. And then the third page of Exhibit 12 appears to be the 

actual fax advertisement that B2B sent on behalf of David 

Randall? 

A. Yes. 

Q. But it's got handwriting at the bottom. Was this a fax 

that David Randall Associates received from somebody who had 

received the B2B advertisement? 

A. Yes. 

Q. And I'm assuming this handwriting -- is the handwriting 

at the very bottom yours? 

A. Yes. 

Q. So, it says, "That fax number wants removed"? 

A. That's mine, yes. 

Q. But above that, it says, "This is not true. No approval 

was given from our business. We are tenants, not roof owners. 

Stop future time and paper waste." Do you see that? 

A. Yes. 

Q. That's what whoever received this and then sent it on to 

David Randall wrote? 

A. Yes. 

Q. As these faxes came in, either people calling in, the 

numbers listed on the first page of Exhibit 12, or the second 

and the third page where people are faxing in, did you make 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

69

Mr. Miley aware of these? 

A. Yes. 

Q. And when you then communicated by page 1 of Exhibit 12 to 

Mr. Wilson to remove these people, was Mr. Miley aware you 

were doing that? 

A. Yes. 

Q. Did you decide to do that on your own, or was that 

something Mr. Miley would have told you to do? 

A. That I don't recall. 

Q. Was he aware you were doing it, though? 

A. Yes. 

Q. Would you please turn to Plaintiff's Exhibit 13, ma'am. 

A. Okay. 

Q. Is this a fax from you to Kevin Wilson at B2B dated March 

31st of 2006? 

A. Yes. 

Q. So, this is two days after the first fax broadcast? 

A. Yes. 

Q. And two days after David Randall Associates had received 

the six complaints? 

A. Yes. 

Q. And is the second page of Plaintiff's Exhibit 13 

something that was, in fact, attached to the fax transmission? 

A. Yes. 

MR. COHEN: Judge, we would move for the admission of 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

70

Plaintiff's Exhibit 13. 

MR. FITZPATRICK: No objection, sir. 

THE COURT: Okay. P-13 is received into evidence. 

(PLAINTIFF EXHIBIT P-13 WAS RECEIVED IN EVIDENCE.) 

BY MR. COHEN: 

Q. So, you see it's from you to Mr. Wilson at B2B on March 

31st, 2006. "Kevin, we would like to do another fax marketing 

blitz. We'll use the same ad as we used on 3/29/06, copy 

attached. Should we reference the same client number as 

before, or will you assign a new one? We can issue a check as 

soon as we hear back from you. We would like to send this out 

next week on a rainy day, hopefully Wednesday or Thursday. 

Will you hold off on sending the fax until we notify you? We 

would call you by 8:30 a.m. on the day we want them to go out 

and would like them sent immediately that morning. Do you do 

that? We were looking at sending 12,000 again, 10,000 plus 

the 2,000 free, since we are Priority Club members. We would 

like the following areas solicited for this campaign, can you 

do it by counties?" And then it's got New Jersey, Delaware 

and Pennsylvania with specific counties listed off to the 

side. Did I read all that correctly? 

A. Yes. 

Q. In the first paragraph, first sentence, "We would like to 

do another fax marketing blitz," who made the decision to do 

another fax marketing blitz? 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

71

A. Mr. Miley. 

Q. And just to be clear, that's on March 31st of 2006, two 

days after you had received those complaints. Mr. Miley, had 

you made him aware of those complaints? 

A. Yes. 

Q. "We'll use the same ad as we used on 3/29/06." Who made 

the decision that the second broadcast would use the same ad 

as the first? 

A. Mr. Miley. 

Q. "We can issue a check as soon as we hear back from you." 

Who would be the only person that could issue a check? 

A. Mr. Miley. 

Q. "We would like to send this out next week on a rainy 

day." Whose decision was that? 

A. Mr. Miley. 

Q. This is the third paragraph, "We were looking at sending 

12,000 again." Whose decision was that? 

A. Mr. Miley. 

Q. "We would like the following areas solicited for this 

campaign," and the list of states and counties, whose decision 

was that? 

A. Mr. Miley. 

Q. And is that your handwriting at the bottom? 

A. Yes. 

Q. "$394 for 10,000 plus 2,000 free faxes"? 

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United States District Court

Camden, New Jersey

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A. Yes. 

Q. And then page 2 is a map with ZIP codes at the bottom? 

A. Yes. 

Q. Did you come up with that list of additional ZIP codes to 

try? 

A. No. 

Q. Where would that kind of information have come from? 

A. Mr. Miley. 

Q. And when I ask you things like that, because we're 

talking about 10 years ago, do you recall interacting with 

anyone else at David Randall Associates about this stuff? 

A. No. 

Q. Anyone else that you can think of that you would have 

gotten this kind of ZIP code information from? 

A. No. 

Q. Would you look at Exhibit 14, please, ma'am. 

A. Yes. 

Q. Except for a few differences which we will discuss, is 14 

the same as 13? 

A. Yes. 

MR. FITZPATRICK: Your Honor. 

THE COURT: Yes. 

MR. FITZPATRICK: Do you want my objection stated? 

THE COURT: Yes. 

MR. FITZPATRICK: I think the question should be 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

73

asked does the witness know if there are any differences 

between 14 and 13, not the premise there are some differences. 

It's not her testifying. 

MR. COHEN: I can rephrase that, Judge. 

THE COURT: Okay. Please rephrase.

BY MR. COHEN: 

Q. Ma'am, are there differences between 14 and 13? 

A. Actually, I do see the page 2 is different. 

Q. And what about actually page 1, the contents of page 1, 

are there any differences in page 1? 

A. I don't think so, no. 

MR. COHEN: Judge, we would move for admission of 

Plaintiff's Exhibit 14. 

THE COURT: Any objection? 

MR. FITZPATRICK: I just didn't hear her say she 

recognized it and it's accurate. 

THE WITNESS: Page 1, yes. 

THE COURT: Well, I'll ask Mr. Cohen to develop the 

foundation for this briefly. 

BY MR. COHEN:

Q. Is Plaintiff's Exhibit 14 a fax transmission from you to 

Mr. Wilson on March 31st of 2006? 

A. Yes. 

Q. And both the cover page and the attachment, are these 

true and accurate copies? 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

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A. Yes. 

MR. COHEN: We would move for admission of 

Plaintiff's 14. 

MR. FITZPATRICK: No objection, sir. 

THE COURT: Okay. P-14 is received into evidence. 

(PLAINTIFF EXHIBIT P-14 WAS RECEIVED IN EVIDENCE.) 

BY MR. COHEN:

Q. So, what I'm going to do, ma'am, just for comparative 

purposes, is remind the jury, Plaintiff's Exhibit 13 was your 

fax to Mr. Wilson on March 31st that talked about "We would 

like another marketing blitz," and it listed the state and 

counties, correct, we talked about that? 

A. Yes. 

Q. And up at the top of P-13, we have your faxed stamp with 

the date, time and your initials? 

A. Yes. 

Q. P-14, is that the same fax cover sheet? 

A. Yes. It just doesn't have the faxed stamp on it. 

Q. But all the text and content is the same? 

A. Yes. 

Q. And we had also talked about the fact that P-13 had that 

handwriting at the bottom that was yours, right? 

A. Yes. 

Q. And P-14, even though it's the same text, the same typed 

stuff, it doesn't have your handwriting, correct? 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

75

A. Yes. 

Q. And we had talked about the fact that P-13 had an 

attachment that was a map. Do you recall? 

A. Yes. 

Q. And then P-14, even though it's the same fax cover sheet, 

had another copy of the ad that was approved, correct? 

A. Yes. 

Q. Would you please take a look at Plaintiff's 15. 

A. Okay. 

Q. Do you recognize this document? 

A. Yes. 

Q. Is this, at least page 1, a fax cover sheet from you to 

Mr. Wilson on April 3rd of 2006? 

A. Yes. 

Q. And there is an attachment. Would that have been the 

attachment to this fax when you sent it? 

A. Yes. 

MR. COHEN: We would move for the admission of 

Plaintiff's Exhibit 15. 

MR. FITZPATRICK: No objection, sir. 

THE COURT: Okay. Exhibit P-15 is received into 

evidence. 

(PLAINTIFF EXHIBIT P-15 WAS RECEIVED IN EVIDENCE.) 

BY MR. COHEN:

Q. So, it's from you to Mr. Wilson on April 3rd of 2006, and 

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United States District Court

Camden, New Jersey

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regarding second fax blast, correct? 

A. Yes. 

Q. It reads, "Kevin, as per our conversation this morning, 

please find enclosed our check for $394 for our second 

campaign for another 12,000 faxes. Please notify me of the 

areas, counties or ZIP codes hit by this fax blitz so we can 

know which ones to target for next time. Again, we authorize 

only one debit to our account for the amount on this check, as 

this is payment in full for services rendered. Please send us 

a receipt for our records verifying services rendered." And 

then -- first of all, was that included in what you sent to 

Mr. Wilson? 

A. Yes. 

Q. And at the bottom, it says, "Note: This fax is to be 

sent Tuesday morning, 4/4/06. Please include us in fax so we 

know it was sent." Did I read that correctly? 

A. Yes. 

Q. When we go back down -- or back up to the start of this, 

"As per our conversation this morning," I'm getting the 

impression from some of the exhibits we've seen so far and 

this one that you would actually speak to Mr. Wilson on the 

phone sometimes? 

A. I think so, yes. 

MR. FITZPATRICK: Judge, I have an objection. May we 

see you at sidebar? 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

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THE COURT: Okay. Sidebar please. 

(Sidebar.) 

MR. FITZPATRICK: I object to the continual leading 

and improper form of questioning by this attorney. That was a 

whole premise that he laid out and then said I'm getting the 

impression that blah-blah-blah. He's not asking questions. 

Every single question he's asking, he's laying his own 

premise, which is really just a speech to the jury. I have 

tried to keep from jumping up to bring unnecessary attention 

to it, but this is going too far. Nobody cares about his 

impression and it's not a legitimate subject for a question to 

this witness. 

THE COURT: Mr. Cohen. 

MR. COHEN: Judge, I've been doing this 25 years, and 

usually you get through the basic stuff that doesn't actually 

have any particular probative relevance one way or the other 

except that it lays the groundwork for a relevant question. 

We had just covered the fact she said "per our conversation" 

this morning. What else could it have been? 

I'm keeping it conversational because it's so boring. 

I'm thrilled the jury is still awake. And, I mean, if we 

always have to go in the absolute open-ended format, then it 

just drags it out. But if -- if the Court wants to indulge 

what I believe is a technically appropriate objection, then 

I'll do my best to painfully drag it out with the witness. 

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United States District Court

Camden, New Jersey

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It's not like I am asking the witness anything that is going 

to bear upon the issue that the jury has to resolve in a 

leading manner. I'm just trying to get us through 28 painful 

documents. 

THE COURT: Well, it's not that painful. But the 

preface that "I'm getting the impression" is improper, and so 

you should refrain from doing that. 

MR. COHEN: Okay. 

THE COURT: Where everybody knows that a particular 

document is what it is and there's not a dispute about it, I 

always permit a certain amount of leading. Every question 

just about that's asked in almost any trial has a certain 

amount of leading because, from the entire universe, you're 

focusing on something and suggesting what it is to the witness 

and asking if they agree, and that's not improper. But I'll 

sustain the objection to the original predicate of the 

sentence; in other words, I'm agreeing that counsel shouldn't 

share with the jury what his impression is. 

I think it was only conversational. I don't see it 

doing any harm. But on the other hand, the defendant is 

entitled to reasonably insist there be no leading questions. 

MR. FITZPATRICK: We're entitled to hear what's her 

own recollection and not counsel's words ahead of time. This 

is 10 years old. 

THE COURT: This is a disputed area about the fact 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

79

that she had conversations with Kevin Wilson? 

MR. FITZPATRICK: I don't think she has any 

independent recollection of this. She didn't have it five 

years ago and she doesn't have it now. It's just that she was 

prepped and it's all leading. 

THE COURT: Then all the more reason to rely upon the 

witness's own recollection. If she needs her recollection 

refreshed by any document, then, of course, there's a 

procedure for that, but counsel shouldn't suggest any answers 

to supply what is missing from her recollection as we go 

forward. I don't find you have done any of that so far, but 

if we're getting into an area that might be contentious, then 

that's the best way to proceed. 

MR. COHEN: I'll do better, Judge. Thank you. 

THE COURT: Okay. Thank you. 

(End of sidebar.) 

THE COURT: All right. Ladies and gentlemen, the 

last question, there was a predicate which I am striking where 

Mr. Cohen said "it's my impression that." That would be 

leading and so you shouldn't consider that as part of the 

question. And I'll ask that the question be reframed and 

asked again. 

MR. COHEN: Thank you, Judge. 

BY MR. COHEN:

Q. Ma'am, in Exhibit 15, your fax to Mr. Wilson dated April 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

80

3rd of 2006 where you state in the first sentence, "Kevin, as 

per our conversation this morning," what are you referring to 

when you refer to our conversation this morning? 

A. I don't recall. 

Q. And when you say you don't recall, what is it you don't 

recall? 

A. The conversation. 

Q. Okay. 

A. I have no idea. 

Q. Were your communications with Kevin Wilson, start to 

finish over a period of time, however much time passed, and 

we'll get through that in the documents, was your 

communication with him limited to faxing and e-mails? 

A. I don't believe so. It appears that I talked to him on 

the phone. 

Q. "As per our conversation this morning, please find 

enclosed our check for $394." If you had a conversation with 

Mr. Wilson by telephone at any time, that morning or at any 

other time, would you have communicated to Mr. Miley the 

contents? 

A. Yes. 

Q. "For our second campaign for another 12,000 faxes." Who 

made a decision to go forward with the request for 12,000 

faxes and the issuance of a check for $394 for those 12,000 

faxes? 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

81

A. Mr. Miley. 

Q. It says, "Please notify me of the areas, counties or ZIP 

codes hit by this fax blitz so we can know which ones to 

target for next time." Who wanted to know so they could 

target for next time? 

A. Mr. Miley. 

Q. The bottom where it said, "This fax is to be sent Tuesday 

morning, 4/4/06," with an exclamation point, who was it that 

decided to make it important that the fax broadcast issued on 

Tuesday morning, 4/4/06? 

A. Mr. Miley. 

Q. And what I've put up on the screen, page 2 of Exhibit 15, 

is this a copy of the David Randall Associates check in the 

amount of $394 to pay for that second fax broadcast? 

A. Yes. 

Q. And who would have prepared that check? 

MR. FITZPATRICK: Objection, your Honor. 

THE COURT: Well, please reframe. Does she recall 

who prepared it, you should ask. 

BY MR. COHEN:

Q. Do you know or recall who would have prepared that check? 

MR. FITZPATRICK: Objection. 

THE COURT: Sustained. It's the word "would have." 

MR. COHEN: Oh, I apologize. I didn't understand the 

focus of it. 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

82

BY MR. COHEN:

Q. Do you know or recall who prepared that check? 

A. It would have been the accountant in the office, but at 

Mr. Miley's request. 

Q. In your experience working at David Randall Associates, 

did anybody other than Mr. Miley have the authority to 

authorize the issuance of a check? 

A. Not the issuance of. 

Q. Can you turn to Plaintiff's Exhibit 16 now? 

A. Yes. 

Q. Are you familiar with this document? 

A. Yes. 

Q. And what is this document? 

A. This is confirmation from the marketing that they 

received our check and they were going to be cashing it. 

Q. Is this a document that you received at David Randall 

Associates in the course and scope of your work and the 

business of David Randall Associates? 

A. Yes. 

Q. Relating to the fax broadcasting issues? 

A. Yes. 

MR. COHEN: We would move for its admission, Judge. 

MR. FITZPATRICK: No objection, sir. 

THE COURT: Okay. Exhibit P-16 is received into 

evidence. 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

83

(PLAINTIFF EXHIBIT P-16 WAS RECEIVED IN EVIDENCE.) 

BY MR. COHEN:

Q. What do we see at the top of Plaintiff's Exhibit 16, the 

pay to the order part? 

A. Pay to the order of Business to Business Solutions. 

Q. Right. Is that the same check -- is that the actual same 

identical check which was an exhibit to the last exhibit, the 

David Randall Associates check? 

A. It's a similar copy, but it doesn't look like the exact 

same thing. 

Q. And then Mr. Wilson says, on Tuesday, April 4th, "Please 

find above a copy of the check we will deposit into Apple Bank 

on Tuesday, April 4th, or within the next two business days." 

And at the bottom, "For your information, in this run we sent 

12,000 faxes to numbers in Hunterdon, Mercer, Burlington, and 

Camden Counties in New Jersey." Did I read that correctly? 

A. Yes. 

Q. Ma'am, would you please turn to Plaintiff's Exhibit 17. 

Do you recognize this document? 

A. Yes. 

Q. Is this a fax from you to Kevin Wilson dated April 12, 

2006? 

A. Yes. 

Q. And there's some handwriting on it. Do you know whose 

handwriting that is? 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

84

A. Mine. 

MR. COHEN: Your Honor, we would move for the 

admission of Plaintiff's Exhibit 17. 

MR. FITZPATRICK: No objection, your Honor. 

THE COURT: Exhibit P-17 is received into evidence. 

(PLAINTIFF EXHIBIT P-17 WAS RECEIVED IN EVIDENCE.) 

BY MR. COHEN:

Q. What we see at the top there, is that that same stamp 

that we have seen before, your stamp and then you handwrote in 

4/12/06 at 11:50 a.m.? 

MR. FITZPATRICK: Objection, your Honor. 

MR. COHEN: Judge, I'll withdraw and rephrase. He is 

correct. 

THE COURT: All right. 

BY MR. COHEN:

Q. Ma'am, you indicated that's your handwriting. Can you 

tell us what your handwriting says in the -- in and below the 

faxed stamp? 

A. It has the date 4/12/06 at 11:50 a.m. and my initials. 

Q. And what's the significance of the handwritten part; what 

does it tell us? 

A. When it was faxed. 

Q. And what does the re caption or line indicate? 

A. I'm sorry, what? Oh, the regarding? 

Q. Yes. 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

85

A. Another ad for fax blast. 

Q. It reads, "Kevin, we would like to do one more fax using 

the original area we solicited on March 29th of '06 plus 

adding the Reading/Allentown, Pennsylvania areas." Did I read 

that correctly? 

A. Yes. 

Q. Who was the person who decided to do one more fax using 

the original areas plus adding two more areas? 

A. Mr. Miley. 

Q. The next sentence reads, "We are hoping for 18,000 to be 

sent, 15,000 at Priority Club pricing of $565 plus the 3,000 

free." Did I read that correctly? 

A. Yes. 

Q. Who was it that decided on the volume 18,000 to be sent 

on this third broadcast? 

A. Mr. Miley. 

Q. "We would like the fax to go out this Friday morning 

4/14/06." Who decided on the date that the fax broadcast 

should issue? 

A. Mr. Miley. 

Q. The handwriting below that and to the right, can you tell 

me us what that says? 

A. "Area codes 610, 484." 

Q. Do you know what the significance of those two area codes 

is as it relates to the typed content of the letter? 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

86

A. Just that those are phone numbers that would be in the 

Reading and Allentown areas. 

Q. Below your name, it says, "Note: You must remove the 

following numbers from the list for Friday's fax," and it's 

got five fax numbers on there? 

A. Yes. 

Q. And it says, "These are the people who called me last 

time asking to be removed. I do not want to get another call 

from them for receiving unsolicited faxes from us. Thank 

you." Did I read that correctly? 

A. Yes. 

Q. Did you communicate to Mr. Miley the fact that five more 

people had called complaining about receiving faxes from the 

second broadcast? 

A. I would have made him aware. I don't know which ones 

these were from, but these were ones that I would have saved 

as had called to be removed. 

Q. And I guess my question is, if that information came to 

you, somebody is complaining -- 

A. I made Mr. Miley aware. 

Q. Would you please take a look at Exhibit 18, ma'am. Are 

you familiar with this one? 

A. Yes. 

Q. Is this another fax from you to Mr. Wilson on 4/12/06? 

A. Yes. 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

87

Q. And the attachment, is that a true and accurate copy of 

what was attached to the original fax at that time? 

A. Yes. 

MR. COHEN: We would move for the admission of 

Plaintiff's 18. 

MR. FITZPATRICK: No objection, your Honor. 

THE COURT: Exhibit P-18 is received into evidence. 

(PLAINTIFF EXHIBIT P-18 WAS RECEIVED IN EVIDENCE.) 

BY MR. COHEN:

Q. Ma'am, this may require you to do a quick comparison 

between 17 and 18, but what can you tell us about the 

similarity or differences between 17 and 18? 

A. They look similar. It just doesn't have my area code 

written in. 

Q. And then page 2 of 18, what is that? 

A. A copy of the ad. 

Q. Which ad? 

A. The fax, the ad to go out for the fax, yes. 

Q. For that third broadcast? 

A. Yes. 

Q. Did Mr. Miley know what ad was going to be used for the 

third broadcast? 

A. Yes. 

Q. Who decided which ad would be used for the third 

broadcast? 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

88

A. Mr. Miley. 

Q. Ma'am, would you please look at Exhibit 19. 

A. Okay. 

Q. Do you recognize this document? 

A. Yes. 

Q. Is this a fax from you to Mr. Wilson at B2B on April 

12th, 2006, relating to the third broadcast? 

A. Yes. 

Q. And the attachment, is that a true and accurate copy of 

the attachment that accompanied your original fax at the time? 

A. Yes. 

MR. COHEN: We would move for the admission of 

Plaintiff's Exhibit 19, Judge. 

THE COURT: Any objection? 

MR. FITZPATRICK: No, sir. 

THE COURT: Okay. Exhibit P-19 is received into 

evidence. 

(PLAINTIFF EXHIBIT P-19 WAS RECEIVED IN EVIDENCE.) 

BY MR. COHEN:

Q. April Clemmer to Kevin Wilson, 4/12/06, regarding third 

fax blast, and it reads, "Kevin, as per our conversation 

today, please find enclosed our check for $565 for our third 

campaign for another 18,000 faxes." Would Mr. Miley have been 

aware that you were sending this communication? 

A. Yes. 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

89

MR. FITZPATRICK: Objection. 

THE COURT: Sustained. I'll strike the question and 

answer. 

Please rephrase, not whether he would have been, but 

was he. 

BY MR. COHEN:

Q. Was Mr. Miley aware that you were sending this 

communication? 

A. Yes. 

Q. Would you ever have sent a communication of this type 

while working at David Randall Associates without the 

knowledge, approval, instruction and authorization of Mr. 

Miley? 

A. No. 

MR. FITZPATRICK: Objection. 

THE COURT: I'll permit it. 

You may answer. 

THE WITNESS: No. 

BY MR. COHEN:

Q. At the bottom of Exhibit 19, it says, "Note: This fax is 

to be sent Friday morning, 4/14/06." Who decided on the date? 

A. Mr. Miley. 

Q. And at the very bottom, three asterisks, "You must remove 

the following numbers from the list for this campaign," and 

it's got I guess five fax numbers. What were those fax 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

90

numbers? 

A. Those are the persons who called to say they wanted to be 

removed. 

Q. If you knew those people called in complaining, did you 

communicate that to Mr. Miley? 

A. Yes. 

Q. And then the attachment to this exhibit, can you tell us 

what that is? 

A. That's the payment check. 

Q. Did Mr. Miley authorize the issuance of this payment? 

A. Yes. 

Q. If you could look at Exhibit 20, please. 

A. Yes. 

Q. Is this also a fax cover page from you to Mr. Wilson 

dated April 12th? 

A. Yes. 

Q. Also regarding the third fax blast? 

A. Yes. 

Q. Can you identify similarities or differences between 

Exhibits 19 and 20? 

A. They look the same. 

MR. COHEN: We would move for the admission of 20, 

Judge. 

MR. FITZPATRICK: I'm not sure if they're the same. 

Why would he have two? 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

91

MR. COHEN: We're going to identify potential 

differences, but I don't want to lead the witness. 

THE COURT: Okay. Very well. I'll permit it. Is 

there any objection otherwise to 20? 

MR. FITZPATRICK: It -- 

THE COURT: I would admit it into evidence subject to 

it being proved up that there are differences. 

MR. COHEN: Thank you, Judge. 

(PLAINTIFF EXHIBIT P-10 WAS RECEIVED IN EVIDENCE) 

BY MR. COHEN: 

Q. Ma'am, showing you again what we had as 19. 

19 has your fax stamp? 

A. Yes. 

Q. And is that your handwriting? 

A. Yes. 

Q. And then as far as the text, the typed part, do you see 

any differences between 19 and 20, the typed part? 

A. The content is the same. 

Q. Does 20 have your fax stamp? 

A. 20 does not. 

Q. And 20, at the top, the fax header, is that shown at the 

top of 19? 

A. No. 

Q. Could you please take a look at Exhibit 21. 

A. Yes. 

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Camden, New Jersey

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Q. Do you recognize this document? 

A. Yes. 

Q. Is this a communication received by you at David Randall 

Associates from Business to Business Solutions pertaining to 

the third fax broadcast? 

A. Yes. 

MR. COHEN: We would move for the introduction of 

Plaintiff's 21, Judge. 

MR. FITZPATRICK: No objection, sir. 

THE COURT: Okay. Exhibit P-21 is received into 

evidence. 

(PLAINTIFF EXHIBIT P-21 WAS RECEIVED IN EVIDENCE)

BY MR. COHEN:

Q. And in general, what is this document that you received 

at David Randall Associates from Business to Business 

Solutions? 

A. It's another confirmation that they're going to be 

depositing a check for that third blast. 

Q. As payment for, does it indicate what? 

A. Payment for faxing 18,000 ads. 

THE COURT: Excuse me, Mr. Cohen, we're a little past 

12:30. Let me know when you come to a good point to stop. 

MR. COHEN: Judge, I think it's probably a perfect 

time. 

THE COURT: Okay. Then, ladies and gentlemen, let's 

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United States District Court

Camden, New Jersey

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take our luncheon recess. I'll ask you to report downstairs 

to the jury assembly room in an hour, about 1:35 p.m. and then 

we'll get started as soon as everybody is ready. 

So enjoy your lunch. 

THE DEPUTY CLERK: All rise. 

(JURY EXITS; 12:37 p.m.) 

THE COURT: Okay. Anything else before we leave? 

MR. COHEN: Just for, I guess, housekeeping, I'm 

sometimes off on how long things will take, but I think I'm 

probably about 20 to 30 minutes away from being done with the 

direct, if that helps the Court, if that helps for 

Mr. Fitzpatrick to plan his time. 

THE COURT: That's good. All right. Thank you. 

MR. FITZPATRICK: That you, sir. 

THE DEPUTY CLERK: All rise. 

(OPEN COURT; 1:46 p.m.) 

THE COURT: Good afternoon, are we ready to continue? 

MR. COHEN: Yes. 

THE COURT: Okay. Please bring in the jury. 

THE DEPUTY CLERK: All rise. 

(JURY ENTERS; 1:47 p.m.) 

THE COURT: Good afternoon, everybody. Welcome back. 

Please be seated.

We're ready to continue with Ms. Clemmer's testimony. 

MR. COHEN: Thank you, Judge.

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BY MR. COHEN:

Q. Welcome back. Ma'am, when we stopped for lunch, we were 

about to address Plaintiff's Exhibit 22. 

Do you have that in front of you? 

A. Yes. 

Q. Can you identify this as a copy of a fax cover sheet from 

you to Kevin Wilson at Maxi-Leads or B2B dated May 12th of 

2006? 

A. Yes. 

Q. And do you, in fact, recognize this fax? 

A. Yes. 

Q. Is this a true and accurate copy of the original? 

A. Yes. 

MR. COHEN: We would move for admission of 

Plaintiff's Exhibit 22. 

MR. FITZPATRICK: No objection, sir. 

THE COURT: Okay. Exhibit P-22 is received into 

evidence.

(PLAINTIFF EXHIBIT P-22 WAS RECEIVED IN EVIDENCE)

BY MR. COHEN:

Q. First of all, ma'am, you have an area at the top, we've 

seen it before. What is this again? You've told us before, 

but what is that? 

A. It's just an identification of the time and date that I 

would have faxed something. 

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United States District Court

Camden, New Jersey

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Q. And how do you take a page that doesn't have this 

originally and get that to be on there? 

A. It was a stamp. 

Q. And it's got some handwriting. Is that yours? 

A. Yes. 

Q. And what does that say? 

A. First is copy at the top, then it has the date, 5-12-06, 

my initials and time, 8:50 a.m., and at the end, PA area. 

Q. And I missed what you said, the last thing? 

A. PA area at the bottom. 

Q. Ah, I wasn't even showing that yet. 

Is that what you are referring to at the bottom? 

A. Yes. 

Q. What does PA stand for? 

A. Pennsylvania. 

Q. Approximately how long did you work for David Randall 

Associates? 

A. A little over a year. 

Q. And you said you left September of 2006, so approximately 

when do you think you started? 

A. About August. 

Q. Of? 

A. Of 2005. 

Q. How did you come to have a stamp that allowed you to do 

that, where you would stamp something faxed and then handwrite 

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United States District Court

Camden, New Jersey

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in the stuff like you've been showing and telling us about? 

A. It was just a stamp that was at the office there by the 

fax machine. 

Q. Was it there from the day you got there? 

A. I don't recall. 

Q. Do you -- and I guess what I'm wondering, do you have any 

ability to speak to whether you had just started using a fax 

stamp like that, right around the March, April, May, 2006 time 

period, or whether that had been something you had been doing 

for quite some time already? 

A. I honestly don't remember. I'm sorry. 

Q. Did you only -- strike that. 

When would you use the fax stamp? Was it for just 

outgoing, for outgoing and incoming? Explain to us when you 

would use it. 

A. I would use it when I faxed something as proof of the 

date and time that I actually sent it. 

Q. Did you have any other stamps that you would use? 

A. I don't recall. 

Q. When you faxed something out, what procedure, if any, did 

you follow with regard to giving a copy of it to somebody who 

needed to know? 

A. I don't remember having anything that I specifically had 

to do. 

Q. Good enough. So we've got April Clemmer to Kevin Wilson, 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

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May 12th of 2006, and the text: "Kevin, we would like to send 

another fax blast to the original area we targeted in March. 

I have enclosed a check in the amount of $394 for 12,000 faxes 

to be sent as quoted in the Priority Club which we joined. 

You should have a record of the areas targeted, but I believe 

we included the following ZIP codes," and then it's got seven 

lines of ZIP codes, correct? 

A. Yes. 

Q. And it says: "Please have this faxed out Monday morning, 

May 15th." 

A. Yes. 

Q. Whose decision was it to send another fax blast, which 

would be a fourth broadcast? 

A. Mr. Miley. 

Q. And whose decision was it that this fourth fax broadcast 

would be to the original area targeted in the first broadcast 

in March? 

A. Mr. Miley. 

Q. Who would have agreed to the payment of $394 for this -- 

I'll rephrase that. 

Did you authorize the issuance of a check in the amount 

of $394 for this fourth broadcast? 

A. No. 

Q. Who authorized it? 

A. Mr. Miley. 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

98

Q. Who decided that this fourth broadcast would be for 

12,000 faxes? 

A. Mr. Miley. 

Q. Would you have ever obligated the company, David Randall 

Associates, for an obligation to pay for something, for faxing 

to thousands of people, 12,000 persons or entities without 

Mr. Miley's approval? 

A. No. 

Q. Ms. Clemmer, if you could turn to Exhibit 23. 

A. Okay. 

Q. Do you recognize this document? 

A. Yes. 

Q. Is this also a fax from you to Mr. Wilson dated May 12th, 

2006, relating to the fourth broadcast? 

A. Yes. 

Q. And it has two documents attached. Were these documents 

that are attached part of the original fax transmission? 

A. Yes. 

MR. COHEN: We would move to the introduction of 

Exhibit 23. 

MR. FITZPATRICK: Could we just have some 

clarification, sir? This looks like Exhibit 22 with a few 

additional pages. 

MR. COHEN: I would have clarified that except that 

would have been leading. 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

99

THE COURT: Well, the question is whether there's any 

objection to the cover sheet plus the two attachments. Do you 

wish to -- 

MR. FITZPATRICK: I have no objection to that, Your 

Honor. I'm just confused and if the witness is not, I am. 

THE COURT: Okay. You can explore it on cross. 

Exhibit P-23 will be received into evidence. 

(PLAINTIFF EXHIBIT P-23 WAS RECEIVED IN EVIDENCE)

BY MR. COHEN: 

Q. Ma'am, if we look at P-22 again, where you talked about 

your fax stamp and your handwriting, and up there at the top 

where it says, "Copy," whose handwriting is that? 

A. Mine. 

Q. If we're looking at Exhibit 23, can we tell if the 

typewritten text of the cover fax page is the same as 22? 

A. Yes. 

Q. Does it have your fax stamp? 

A. No. 

Q. Does it have the handwritten word, "Copy?" 

A. No. 

Q. We talked about the fact that Exhibit 23 has two pages 

attached. 

How many pages does your fax cover sheet for Exhibit 23 

indicate are being sent, including the cover page? 

A. Three. 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

100

Q. And if we look at the second page of Exhibit 23, and I 

know we've seen it before, but tell us, what is this? 

A. This is the advertisement that was going to go out for 

the marketing. 

Q. Who approved and decided that that would be the ad 

accompanying the fourth broadcast? 

A. Mr. Miley. 

Q. And the third page of Exhibit 23, what is that? 

A. That's the payment of that blast. 

Q. And I missed the last few words. 

A. For the fax blast. 

Q. For the fourth broadcast? Is that a yes? 

A. Yes. 

Q. Who authorized the issuance of this payment? 

A. Mr. Miley. 

Q. Could I ask you to flip to Plaintiff's Exhibit 40. 

A. Okay. 

Q. Do you have that in front of you? 

A. Yes. 

Q. There is handwriting on this document. Can you identify 

whose handwriting that is? 

A. That's mine. 

Q. Does this document pertain to the payment for the fourth 

broadcast we were just talking about? 

A. I don't recall which one it would be for. 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

101

Q. Does this -- what does the -- except for your 

handwriting, setting aside your handwriting, what is the -- 

what is the content of this document, Exhibit 40? 

A. It is a payment for one of the fax blasts to Business to 

Business Solutions. 

Q. And if you look at the date -- 

MR. COHEN: Well, Judge, we would move for the 

admission of Plaintiff's Exhibit 40 based upon the witness's 

identification of it and the fact that it has her handwriting 

on it. 

THE COURT: Any objection to P-40? 

MR. FITZPATRICK: May I just ask the witness a 

follow-up question? 

THE COURT: Yes, you may. You may voir dire.

(VOIR DIRE EXAMINATION OF APRIL CLEMMER BY MR. FITZPATRICK:) 

Q. Did you say that you know what this is or you don't know 

what it is? 

A. I don't recall exactly which payment that would have been 

for. 

Q. But you recognize the document? 

A. I recognize it. 

MR. FITZPATRICK: Okay. Thank you, sir. No 

objections. 

THE COURT: P-40 is received into evidence.

(PLAINTIFF EXHIBIT P-40 WAS RECEIVED IN EVIDENCE) 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

102

MR. COHEN: Thank you, Judge. 

(CONTINUED DIRECT EXAMINATION EXAMINATION OF APRIL CLEMMER BY 

MR. COHEN:) 

Q. So if we look at the date that was from an actual David 

Randall Associates check up at the top, what date is showing? 

A. April 3rd. 

Q. Of 2006? 

A. 2006, mm-hmm. 

Q. Thank you. 

Do you see down on the front side of the check on 

Exhibit 40, what the original date was typed in? 

A. April 3rd, 2006. 

Q. The same as the date on the receipt slip? 

A. Yes. 

Q. But that's crossed out and there's handwriting. Whose 

handwriting is that? 

A. That's mine. 

Q. And what date did you handwrite in? 

A. May 12th, 2006. 

Q. Okay. So if we turn this over, and again, this is off to 

the right side of the page, we've turned it vertical so we can 

read it, but that's your handwriting? 

A. Yes. 

Q. What does that say? 

A. "I will need a check in the amount of $394 payable as 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

103

shown here and note no signature required. Put void on 

signature line." 

Q. Could you have issued a check yourself? 

A. No. 

Q. We see this for the May 12th payment. Could you have 

issued any of the other three payments yourself? 

A. No. 

Q. We were looking at Exhibit 23 a moment ago. If we put 

Exhibit 23 back up, what date do we see for Exhibit 23? 

A. May 12th, 2006. 

Q. Is that the same date you had handwritten in on 

Exhibit 40? 

A. Yes. 

Q. And on Exhibit 23, the slip for this check, it explained 

the description that -- is this your handwriting? 

A. No. 

Q. Okay. The person whose handwriting it is, what did they 

use to -- what did they say to describe what this was for? 

A. Fax marketing. 

Q. Would you please turn to Exhibit 24, ma'am. 

A. Okay. 

Q. Do you recognize this document, at least the first page, 

as a fax cover from you to Mr. Wilson dated May 15th of 2006? 

A. Yes. 

Q. And it indicates that there's two pages including the 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

104

cover. Looking at the second page, can you identify that as 

the page that accompanied the fax at the time? 

A. Yes. 

MR. COHEN: Your Honor, we would move for the 

introduction of Plaintiff's Exhibit 24. 

MR. FITZPATRICK: No objection. 

THE COURT: Okay. Exhibit P-24 is received into 

evidence. 

(PLAINTIFF EXHIBIT P-24 WAS RECEIVED IN EVIDENCE) 

BY MR. COHEN:

Q. So I have a fax from you to Mr. Wilson dated May 15th of 

2006: "Kevin, I left two messages for you this morning and 

haven't heard back from you yet. I got the answer to my first 

question already. A fax must have gone out this morning since 

I have gotten several calls from people asking to have their 

numbers removed from your list. However, I am questioning the 

area where they were sent. It appears they were sent to 

New Jersey instead of Pennsylvania. My request -- see 

attached -- was to target the original area we sent to which 

was for businesses within a ten-mile radius of our company, 

which is in Pennsylvania. If you mistakenly sent to 

New Jersey, I am asking you to resend to the correct area at 

no additional charge. Can this be done yet today or first 

thing tomorrow morning? I will wait for your response."

Was that the content of the fax transmission and 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

105

communication you sent to Mr. Wilson? 

A. Yes. 

Q. In the second paragraph towards the bottom, it says: "If 

you mistakenly sent to New Jersey, I'm asking you to resend to 

the correct area at no additional charge." 

Would you take it upon yourself to make the decision 

about how to handle this problem without speaking to somebody 

else in the company? 

MR. FITZPATRICK: Objection, Your Honor. 

THE COURT: Sustained. 

MR. COHEN: I'll rephrase. 

THE COURT: Okay. 

BY MR. COHEN:

Q. Did you take it upon yourself to draft this fax and 

decide on your own how to handle the apparent possible 

screw-up by B2B in sending to New Jersey instead of 

Pennsylvania? Did you take it upon yourself how to handle 

that and send this without communicating with Mr. Miley? 

A. No. 

Q. Was this communication sent with the knowledge, approval 

and instruction of Mr. Miley? 

A. Yes. 

Q. If you would turn to Exhibit 25. 

A. Okay. 

Q. Is there any difference in the substance of the typed 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

106

text between Exhibits 24 and 25? 

A. No. 

Q. Both of them talk about: "My requests, see attached, was 

to target the original area."

Does Exhibit 25 have attached your original request 

setting forth all of those ZIP codes? 

A. Yes. 

MR. COHEN: Judge, we would move for admission of 

Exhibit 25. 

MR. FITZPATRICK: No objection, sir. 

THE COURT: All right. Exhibit P-25 was received 

into evidence. 

(PLAINTIFF EXHIBIT P-25 WAS RECEIVED IN EVIDENCE) 

BY MR. COHEN:

Q. Can you take a look at Plaintiff's Exhibit 26, please. 

A. Okay. 

Q. Is this the document received by you at David Randall 

Associates from Kevin Wilson on or about May 15th of 2006? 

A. Yes. 

Q. Pertaining to the fourth fax blast?

A. Yes. 

MR. COHEN: We would move for the introduction of 

Plaintiff's Exhibit 26. 

THE COURT: Any objection? 

MR. FITZPATRICK: No, sir. I'm sorry. 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

107

THE COURT: Okay. P-26 will be received into 

evidence. 

(PLAINTIFF EXHIBIT P-26 WAS RECEIVED IN EVIDENCE) 

BY MR. COHEN:

Q. We've seen documents like this as to other of the 

broadcasts, the earlier. 

When you communicated with B2B in whatever format, 

whether you were sending them a fax, whether they were sending 

you a fax, whether you were sending them an e-mail, whether 

they were sending you an e-mail, and whether you said 

something to Kevin Wilson on the phone or he said something to 

you on the phone, did you convey that information to 

Mr. Miley? 

A. Yes. 

Q. Ma'am, would you please turn to Plaintiff's Exhibit 27. 

A. Okay. 

Q. Do you recognize this document? 

A. Yes. 

Q. Is this a fax cover sheet which attached documents from 

you to Mr. Wilson at B2B dated April 17th of 2006? 

A. Yes. 

Q. And the documents that are attached, what are these 

documents that are attached? 

A. They are copies of the notices that we received from 

different persons saying they wanted to be removed from the 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

108

fax list. 

Q. And were you forwarding and communicating that 

information to Mr. Wilson so that he would remove their names, 

their numbers from any future fax broadcast? 

A. Yes. 

MR. COHEN: Your Honor, we would move for the 

admission of Plaintiff's Exhibit 27. 

MR. FITZPATRICK: No objection, sir. 

THE COURT: All right. Exhibit P-27 is received into 

evidence. 

(PLAINTIFF EXHIBIT P-27 WAS RECEIVED IN EVIDENCE)

BY MR. COHEN:

Q. Before you took these communications you received from 

people asking to have their phone numbers removed from any 

further fax broadcast lists, had you made Mr. Miley aware of 

it? 

A. Yes. 

Q. And so just looking at Bates Page 63, 0063, one of the 

attachments where it says: "Remove the following fax number 

from your list," and it has a fax number and it says: "We do 

not want any further faxes from you. Why don't you provide an 

800 number to call. I believe it's the law to do so." 

Before forwarding this as part of the attachment to 

Mr. Wilson, Mr. Miley was made aware of this? 

A. Yes. 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

109

Q. And this was on April 17th of 2006, well before the 

fourth broadcast, correct? 

A. Yes.

Q. Ma'am, last, I'd ask you to take a look at Exhibit 28. 

A. Okay. 

Q. And so you know and for the record, I have removed Bates 

Page 0050. 

Do you recognize these, these pages? 

A. Yes. 

Q. What are these? 

A. These are my lists of leads that we got from the fax 

advertising that we did. 

Q. So to the extent that you advertise hoping to get a 

response and possible business, you got it. 

A. Yes.

MR. COHEN: Judge, we would move for the introduction 

of Plaintiff's Exhibit 28, limited to Bates Pages 48, 49 and 

57. 

THE COURT: Any objection? 

MR. FITZPATRICK: May I just voir dire her on one 

question? 

THE COURT: Yes. 

(VOIR DIRE EXAMINATION OF APRIL CLEMMER BY MR. FITZPATRICK:) 

Q. What was removed from this? What is Bates No. 0050? 

A. An in-house lead form. 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

110

Q. Why was that removed? 

A. I don't know. 

MR. COHEN: Judge, how could she know why I asked to 

have it removed?

BY MR. FITZPATRICK:

Q. Was the in-house lead form part of this package, to your 

recollection? 

A. If it was with these papers, I would imagine so, but I 

don't recall. 

Q. Is the in-house lead form something that you generated? 

A. I did not. It's not my handwriting. 

Q. Do you know who did? 

A. It doesn't have -- no, it doesn't have a name on it.

Q. Do -- 

A. Oh, it says, "Received by April," but it's not my 

handwriting. 

Q. Is that a document that was part of the in-house lead 

forms that comprise this package of documents? 

MR. COHEN: Judge, may we approach?

THE COURT: All right. Sidebar, please.

(SIDEBAR AS FOLLOWS:) 

THE COURT: Why was Bates 50 withdrawn? 

MR. COHEN: Because he objected to it. Because when 

we submitted our exhibit list and he submitted his objections, 

he said he had no objection to any page but Bates 50 because 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

111

in her deposition, she couldn't authenticate it, but she 

authenticated all the others in her deposition, so he had no 

objection to any of the others. So as an appeasement and 

acquiescence to his objection and her deposition inability to 

authenticate this document, I took it out. Now the witness is 

being chastised, I'm being implicated with somehow withholding 

something, when all I did was accommodate his objection. 

THE COURT: Best thing to do if it happens is just to 

explain to counsel before you use it, that, you know, you are 

acquiescing to his objection. Do you recall that? 

MR. FITZPATRICK: No, but my -- more importantly on 

-- I do recall that she's unable to identify certain of these 

documents and I just wanted to show that this witness, in 

these documents, did not have a recollection of a document 

that should be included in that package. 

MR. COHEN: No. 

MR. FITZPATRICK: I think it should have been 

presented to her and she would have testified that she didn't 

recognize it. 

MR. COHEN: Judge, that's incorrectly describing the 

history. In the production of documents in this case, from 

defendant, we got the documents that were at Exhibit 28. They 

didn't necessarily come as a packet. They did not necessarily 

come as a representation these all go together. We thought 

they went together. We put them together. We marked them as 

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CLEMMER - DIRECT - COHEN

United States District Court

Camden, New Jersey

112

Exhibit 28 in her deposition. We showed them to her and she 

said, yes, the first page, the second page and the fourth 

page, that's my notes. She said the third page, the in-house 

leads, I didn't create that, I really can't say anything about 

it. 

So when he made an objection to our designation 

Exhibit 28 for trial, I looked at his objection, I went to 

Bates 50, I said, you know, it is what she said in her depo, 

she can't authenticate that, so I took it out. 

THE COURT: Okay. Do you accept that? 

MR. FITZPATRICK: I do. 

THE COURT: Okay. Then what shall we say, that you 

have no objection to the three pages of Exhibit 28? 

MR. FITZPATRICK: I will say I have no further 

objections to -- yeah, to the admission of the ones that are 

marked. 

THE COURT: Okay. 

MR. COHEN: That's fine. 

THE COURT: All right. 

(END OF SIDEBAR.) 

MR. FITZPATRICK: Your Honor. Just for the record, I 

have no objection to the documents that have been marked as 

Exhibit 28 with the one that has been removed. 

THE COURT: All right. And so Exhibit P-28 is 

received into evidence, consisting of three pages that are 

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CLEMMER - CROSS - FITZPATRICK

United States District Court

Camden, New Jersey

113

Bates-stamped 0048, 49 and 57. 

(PLAINTIFF EXHIBIT P-28 WAS RECEIVED IN EVIDENCE) 

BY MR. COHEN:

Q. Ms. Clemmer, at the time you worked for David Randall 

Associates, who was the top managing officer in that company? 

A. Mr. Miley. 

Q. Just so the jury understands, have you ever been 

threatened with litigation? Have you ever been involved in 

this lawsuit? Have you ever been exposed or at risk or felt 

exposed or at risk of liability in any way that would affect 

your testimony? 

A. No.

MR. COHEN: I do appreciate your time, ma'am. 

Nothing further. 

THE COURT: Okay. Very well. 

Cross-examination, Mr. Fitzpatrick. 

MR. FITZPATRICK: Thank you, Your Honor.

(CROSS-EXAMINATION OF APRIL CLEMMER BY MR. FITZPATRICK:) 

Q. Ms. Clemmer, you were deposed in this case five years 

ago? 

A. Yes. 

Q. Right? 

And at that time, did you have any problem recollecting 

any of the events that you were asked about? 

A. Yes. They were five years old. 

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United States District Court

Camden, New Jersey

114

Q. At that time. 

A. Mm-hmm. 

Q. And now they're ten years old. 

A. Right. 

Q. When you started out testifying today, you mentioned that 

you had not a complete recollection of these events, other 

than from your having read documents and prepared for coming 

here today, is that right? 

A. Yes, yes. 

Q. Okay. So what you're testifying about today is based 

upon your review of documents with plaintiff's counsel before 

your testimony. 

A. Yes. 

Q. And did you review your deposition from 2011? 

A. I did. 

Q. Now, the fax broadcasting that's the subject of this 

litigation, did David Randall Associates ever engage in fax 

broadcasting before or after March, April and May of 2006? 

A. Not while I was there. 

Q. And before this fax broadcasting, the acts that are 

charged in this case, David Randall didn't do any advertising 

or marketing, did it? 

A. No. 

Q. Okay. So there was no advertising and marketing 

department in the company? 

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CLEMMER - CROSS - FITZPATRICK

United States District Court

Camden, New Jersey

115

A. Correct. 

Q. The company did have departments, though, right?

A. Yes. 

Q. It was organized with different areas of responsibility? 

A. Yes. 

Q. What were they? 

A. There was the accounting and then there was a service 

department and then there was new installation. 

Q. And you mentioned, I believe, that you worked with the 

service department? 

A. Yes. 

Q. That was part of your job? 

A. Yes. 

Q. What did you do with them? 

A. Basically, I just took -- if someone would call in with a 

leak and needed servicing, then I would just take the 

information and pass it along to the manager there. 

Q. Who was the manager? 

A. George -- I don't remember his last name. 

Q. Okay. And was a part of your job to pass along any leads 

that would come into the company? 

A. If anything came in, those would go to the installation 

division. 

Q. Would those calls get routed to you in the first 

instance? 

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CLEMMER - CROSS - FITZPATRICK

United States District Court

Camden, New Jersey

116

A. Some may and some may not, but I generally answered the 

phones so -- 

Q. Okay.

A. -- I probably would have. 

Q. And you took -- as the office manager, you received any 

faxes that came in that were not specifically addressed? 

A. Correct. 

Q. Okay. And the fax that came in that wasn't specifically 

addressed, that was the solicitation from B2B that led to the 

acts which are -- have been discussed here today. 

A. Mm-hmm. 

Q. That went to you. 

A. I don't remember it specifically, but I would imagine 

that I would have seen it, mm-hmm. 

Q. Did you see that before coming here today? 

A. No, I didn't see it. The original? 

Q. Yes. 

A. I didn't see it. 

Q. Do you remember that? 

A. I don't remember the initial marketing piece. 

Q. Do you remember what it said? 

A. No, I don't. 

Q. Do you remember testifying in your deposition about what 

it said? 

A. No. 

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CLEMMER - CROSS - FITZPATRICK

United States District Court

Camden, New Jersey

117

MR. FITZPATRICK: May I refresh her recollection, 

Your Honor? 

THE COURT: Yes.

BY MR. FITZPATRICK:

Q. Do you remember being -- 

THE COURT: Well, just a moment, I think rather than 

read that, since she's not a party, show it to her. 

MR. FITZPATRICK: Sure. 

THE COURT: Ask her to read it to herself and see if 

it refreshes her recollection. 

MR. FITZPATRICK: Very well, Your Honor.

BY MR. FITZPATRICK:

Q. The question begins at Line 8 on Page 9 of your 

deposition, and the answer is below. 

A. Okay. Thank you. 

Q. Do you recall being asked that question? 

A. Yeah. 

Q. Okay. The question was: How did you become aware of the 

fax advertising while you were employed at David Randall?

Your answer was: We got a fax one -- got a fax 

advertisement saying that they would do a marketing. It was a 

marketing firm that would help you with whatever your business 

was.

Do you remember that? 

A. Mm-hmm. 

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CLEMMER - CROSS - FITZPATRICK

United States District Court

Camden, New Jersey

118

THE REPORTER: You have to say yes or no. 

THE WITNESS: I'm sorry, yes.

BY MR. FITZPATRICK:

Q. And you passed that along to Mr. Miley, right? 

A. Yes. 

Q. And he told you to follow up and find out about it? 

A. Yes. 

Q. Did you do that? 

A. Yes. 

Q. What did you find out? 

A. I got pricing and found out what kind of area they would 

do and how quickly it would be done and what needed to happen 

to get that process started. 

Q. Okay. And before you received that fax, did you have any 

plan or make any suggestion to do fax advertising -- 

A. No. 

Q. -- for David Randall? 

A. No. 

Q. And Mr. Miley didn't come up with that plan? 

A. No. 

Q. This all resulted from your receipt of that fax? 

A. Yes. 

Q. Now, after Mr. Miley told you to look into it, you did so 

-- do you recall telling him that you felt that B2B was 

legitimate? 

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CLEMMER - CROSS - FITZPATRICK

United States District Court

Camden, New Jersey

119

A. I don't recall that. 

Q. Do you recall doing any investigation where you -- where 

you decided that? 

A. I would just have followed up with them, in talking with 

them, but I don't remember. 

Q. Okay. Do you remember being asked that at your 

deposition? 

A. No, I'm sorry, I don't. 

MR. FITZPATRICK: May I, Your Honor? 

THE COURT: Yes.

BY MR. FITZPATRICK:

Q. I'd ask you to look at Line 19 on Page 14 of your 

deposition, the question and answer. 

A. Oh, up here, okay. 

Q. Do you now recall? 

A. Yes. 

Q. So the question was: Do you recall what you said to him 

or what he said to you when you first made contact with him?

Answer: I just asked them a little bit about their 

marketing strategies and what they were offering. It sounded 

legitimate.

Do you recall telling us that? 

A. Yes. 

Q. And is that what you told Mr. Miley? 

A. Yes, I suppose. I mean, I don't remember exactly what I 

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CLEMMER - CROSS - FITZPATRICK

United States District Court

Camden, New Jersey

120

would have said, but I would have passed that along, yes. 

Q. Okay. And then did you follow up after that? 

A. Yes. 

Q. And I believe you were asked today about the creation of 

the ad? 

A. Yes. 

Q. The first ad? 

A. Mm-hmm. 

Q. And you told us that Mr. Miley created that? 

A. Mm-hmm -- yes. 

Q. Do you remember saying otherwise five years ago? 

A. No. But like I said, it's been awhile. 

Q. So as you sit here today, is your -- what was the basis 

of your declaration that Mr. Miley made this first fax, 

recollection? 

A. Just that he was the one that would give any instruction 

for things to do. Now, I know I helped him prepare something. 

He asked for a layout and we worked together on some things, 

but he was the one that would have initially decided how he 

wanted it laid out. 

Q. Okay. Throughout your testimony today, you have been 

asked questions about would have, that used the term "would 

have," and you just used the term "would have" in describing 

your answers twice. 

A. Okay. 

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CLEMMER - CROSS - FITZPATRICK

United States District Court

Camden, New Jersey

121

Q. When you say, "would have," you're not testifying from 

your own memory of events that actually occurred, are you? 

A. No. 

Q. You're just saying you believe that because -- 

A. The way things worked, this is what my recollection -- 

Q. But you have no actual recollection that that's how 

things worked in this case. 

A. Correct. 

Q. Is there a reason why you didn't tell us that earlier? 

A. No. 

Q. Do you recall when you were first asked this five years 

ago, that you said you created the ad copy? 

MR. COHEN: Judge, I would ask, if he's referencing 

prior testimony, I think we need to know where he's taking it 

from. 

MR. FITZPATRICK: Sure, I'm about to do that. 

THE COURT: Very well. 

BY MR. FITZPATRICK: 

Q. I'd ask you to read the question at Line 2 on Page 16 of 

your deposition and your answer. 

A. Okay. Do you want me to read it? 

Q. Do you recall being asked: Did you or someone at the 

company work up an ad copy that was provided to the fax 

broadcaster?

Answer: I believe we did, yes. 

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CLEMMER - CROSS - FITZPATRICK

United States District Court

Camden, New Jersey

122

Question: Who did that? 

Answer: I probably did the initial and then would come 

up with an initial layout or whatever. 

A. There again, it's a probably, so I didn't have full 

recollection. 

Q. But you testified today that Mr. Miley did that, not you, 

right? 

A. Yes. You're right, I did. 

Q. There was no -- excuse me. 

Just to be very clear, no one from David Randall ever 

communicated with anybody from B2B or Maxi-Leads, whatever 

they called themselves, except you? 

A. Correct. 

Q. Right? By fax, e-mail and phone? 

A. Correct. 

Q. Now, you were also asked today about Exhibit 7. Would 

you look at that? 

A. Okay. Yes. 

Q. That's a letter from you to Kevin Wilson of Maxi-Leads, 

right?

A. Yes. 

Q. A fax, I should say. And this fax includes seven lines, 

as counsel said, of ZIP codes, right? 

A. Yes, mm-hmm. 

Q. Okay. And Mr. Cohen asked you who gave you those ZIP 

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CLEMMER - CROSS - FITZPATRICK

United States District Court

Camden, New Jersey

123

codes. 

Do you recall that? 

A. Yes. 

Q. Do you recall answering to him and the jury that 

Mr. Miley gave them to you? 

A. Yes. 

Q. Do you recall testifying to the contrary five years 

before? 

A. No, I don't. Sorry. 

Q. I'm going to ask you to read the question beginning at 

Line 19 and then the answer and the question beginning at Line 

22 and then the answer. 

MR. COHEN: Of what page, sir? 

MR. FITZPATRICK: Oh, I'm sorry. 48.

THE WITNESS: I'm sorry, where should I start again?

BY MR. FITZPATRICK: 

Q. Question: You wanted them sent to businesses within 

these area codes, is that correct? 

Answer: Yes. 

Do you remember giving that answer? 

A. Yes. 

Q. And when it says, "you wanted them sent," it was 

referencing fax advertisements, correct? You wanted them 

sent?

A. Yes, yes. 

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CLEMMER - CROSS - FITZPATRICK

United States District Court

Camden, New Jersey

124

Q. And then it says: Who provided you with the ZIP codes 

that are listed on the top page of Exhibit 7? 

A. Okay. And I -- at that time, I said I don't know. 

Q. At that time you said you don't know. 

A. Yeah. 

Q. You still don't know, do you? 

A. I guess I don't, if -- no. 

Q. You don't. 

A. No. 

Q. But you testified that Randy Miley gave them to you 

earlier today, right? 

A. Am I allowed to clarify? Yes, I mean, you're right, I 

did. My -- anything that I would have done was under the 

instruction of Mr. Miley at the time that I worked there. 

However, you're right, when it came to specific, I suppose I 

don't remember him specifically giving me those numbers. 

Q. But you do agree that you did testify earlier today to 

this jury that you did specifically remember and he gave them 

to you at the exclusion of someone else, right? 

A. Yes. 

Q. Would you please take a look at Exhibit 13. 

A. Yes. 

Q. That's another exhibit you testified about earlier today, 

correct?

A. Okay. Yes. 

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United States District Court

Camden, New Jersey

125

Q. That's not your handwriting at the bottom? 

A. Yes. 

Q. It is your handwriting? 

A. It is. 

Q. It is. You did testify about that? 

A. I'm sure I did. 

Q. Okay. And would you look at Page 2 of that same exhibit? 

A. Yes. 

Q. That's a map with some ZIP codes below it, correct? 

A. Correct. 

Q. That's not your handwriting, is it? 

A. The ZIP codes? 

Q. The handwritten portion. 

A. The handwritten numbers are mine. 

Q. The handwritten numbers at the bottom? 

A. Try -- and it has all these ZIP code numbers. 

Q. You provided them? 

A. I wrote them down, yes. 

Q. Okay. All right. Thank you. 

Now, along with these ads that you testified were 

ordered from B2B, you sent all the payments, correct? 

A. I would have sent a copy of those checks, correct. 

Q. You sent payment to B2B via the checks, as you testified? 

A. Yes. 

Q. You were the person that sent them, right? 

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CLEMMER - CROSS - FITZPATRICK

United States District Court

Camden, New Jersey

126

A. Yes. 

Q. And you testified about communications that you had with 

Mr. Wilson about prices? 

A. Yes. 

Q. Right? And you negotiated some prices down, right? 

A. Yes. 

Q. And you also included in these purchases, a price paid 

for a quote unquote toll-free removal number, right? 

A. Yeah, there was wording in that, yes. I don't know what 

it was, but yes. 

Q. But you know you paid for it as well? 

A. Yes. 

Q. Okay. Now, you then on several occasions communicated to 

Mr. Wilson that he was to remove certain fax numbers from his 

broadcast lists, right? 

A. Yes. 

Q. Would you look at Exhibit 12. 

A. Yes. 

Q. That's a fax from you to him of March 29th, '06, right? 

A. Yes. 

Q. And that fax is only about removal, right? 

A. Yes. 

Q. There's nothing else that's the subject of that fax? 

A. Correct. 

Q. Okay. And you instruct him to remove three numbers. Is 

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United States District Court

Camden, New Jersey

127

that your handwriting? 

A. Yes. 

Q. And you said: They obviously don't want to be bothered 

and they are annoyed by the many faxes they receive from your 

company.

A. Yes. 

Q. And "annoyed" is underlined. Was that your emphasis? 

A. Yes. 

Q. So that's something you did on your own? 

A. Yes. 

Q. Okay. Then would you look at Exhibit 17. 

A. Okay. 

Q. That's another exhibit that you testified you recalled. 

It's a fax from you -- 

A. Yes. 

Q. -- to Mr. Wilson dated 4-12-06. 

A. Yes. 

Q. And at the bottom of that fax, it states: You must 

remove the following numbers from this list for Friday's fax, 

and you list five numbers, right? 

A. Yes. 

Q. And "note" is all capitals and all bold, right? 

A. Yes. 

Q. And "remove" is all capitals and all bold? 

A. "Must remove," yes. 

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Camden, New Jersey

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Q. You must remove. You put that emphasis on there, didn't 

you? 

A. I'm sure that was mine, yes. 

Q. So you earlier had testified about -- that at times when 

you were writing to someone and you said, "I," you actually 

meant "we." 

Do you remember testifying about that? 

A. No, but okay. 

Q. Well, when you say "I" in these faxes -- 

A. Oh, okay. 

Q. Do you mean yourself or do you mean somebody else? 

A. Generally, when I'm saying "we," it's Mr. Miley and I. 

Q. And if it's "I," is it you? 

A. If it's "I," as in what example? 

Q. I'm just asking you in the faxes about what you've 

testified in your direct testimony. Many of those faxes use 

the term "I" and some use the term "we." You testified that 

when you said "we," you meant you and Mr. Miley, right? 

A. Mm-hmm, yes. 

Q. And when you said "I" and didn't say "we," what did you 

mean? 

MR. COHEN: Judge, I would object. The witness asked 

for him to direct her to a specific example and she would 

address what it said there. I believe demanding the witness 

to answer what it means across all the exhibits without 

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United States District Court

Camden, New Jersey

129

focusing her in is improper. 

THE COURT: Well, if Ms. Clemmer understands the 

question and can answer it, then she can. If you need a 

specific example, then say that. 

THE WITNESS: I guess I would like an example to be 

able to clarify. 

MR. FITZPATRICK: I'll be happy to do that, Your 

Honor. 

BY MR. FITZPATRICK:

Q. Let's take a look, for example, at Exhibit 27. 

A. Okay. 

Q. That uses the term "I." Who were you referring to there? 

A. Our company, David Randall. 

Q. Your company? 

A. I have -- I had received numerous requests, so they came 

into the company. 

Q. Okay. Would you look at 25. What does "I" mean there? 

A. "I left two messages for you this morning." 

So that was me, a phone call. 

Q. So "I" can mean you or it can mean the company? 

A. Correct. 

Q. And "we" can mean you and Mr. Miley or you and somebody 

else? How are we to determine what you're talking about in 

these faxes when you're using the terms "I" and "we?" That's 

what I'm asking you today. 

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CLEMMER - CROSS - FITZPATRICK

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A. Well, they can mean different things in different 

situations, I suppose. 

Q. Would you take a look again at Exhibit 19? 

A. Okay. 

Q. This is a fax from you to Kevin Wilson dated April 12th, 

2006? 

A. Yes. 

Q. Would you look at the bottom, it has three asterisks and 

it's all capitals and all bold. 

A. Mm-hmm. 

Q. Did you type this fax? 

A. Yes. 

Q. And that says "you must remove" and "must remove" is 

underlined, right? 

A. Yes. 

Q. "The following numbers from the list for this campaign," 

and you list five numbers, right? 

A. Yes. 

Q. You emphatically were telling Mr. Wilson at that time to 

remove fax numbers --

A. Yes. 

Q. -- right? Would you look at Exhibit 12, please, the last 

page of that attachment. Well, I'll show you the exhibit 

first.

Exhibit 12 is another letter from you to Kevin Wilson 

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CLEMMER - CROSS - FITZPATRICK

United States District Court

Camden, New Jersey

131

of B2B, correct? 

A. Yes. 

Q. That's the one where you underlined the word "annoyed." 

A. Yes. 

Q. And you sent him several attachments. 

A. Yes. 

Q. And one of the attachments was a handwritten note about 

which you testified earlier, that says: "Remove from fax 

list," puts two numbers and it says: "Or we will contact the 

FCC," right? 

A. Yes. 

Q. So you had received this and then you sent it to Kevin 

Wilson? 

A. Yes. 

Q. Emphatically telling him to remove those numbers. 

A. Yes. 

Q. What was the FCC? 

A. I don't know what that stands for. I've heard of it, 

but... 

Q. What was your understanding of that communication when 

you forwarded it to Mr. Wilson? 

A. That he needed to remove those numbers. 

Q. Because why? 

A. Because it seemed like he was doing something that was 

not proper. If somebody asked to be removed, that they should 

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CLEMMER - CROSS - FITZPATRICK

United States District Court

Camden, New Jersey

132

be removed. 

Q. And at that point, did you become fearful that you had 

done something wrong that would -- for which you would be 

charged with a violation of law? 

A. No. 

Q. Now, you sent another fax notice to Mr. Wilson in which 

another -- you told him to remove and another recipient said 

that it's a -- I believe it's a violation of the law, right? 

A. Yes. 

Q. And at that point, did you become aware that -- that any 

of the activities with B2B could be a violation of the law? 

A. No. 

Q. And did you become fearful that you might become 

embroiled in such a charge? 

A. No. 

Q. Then why did you emphasize to Mr. Wilson that he must 

remove? Why did you increasingly bold, underlined, bold, 

underlined, in your communications with him? 

A. I was just more concerned about them being annoyed, not 

so much that I would be in trouble for something that they 

weren't doing. I'm just trying to pass along the annoyance of 

the person to say we don't want to be included on your fax 

numbers, so please remove us from your list. 

Q. And you testified earlier that Mr. Miley -- that you had 

communicated your receipt of these messages from people who 

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CLEMMER - CROSS - FITZPATRICK

United States District Court

Camden, New Jersey

133

wanted to be removed -- 

A. Mm-hmm. 

Q. -- with Mr. Miley, right? 

A. Yes. 

Q. On every occasion you told us? 

A. Yes. 

Q. Okay. And so let's talk about the first communication on 

that -- the attachments on Exhibit 12. 

A. On this one? Okay. 

Q. What did you communicate to Mr. Miley about your receipt 

of those communications? 

A. I would have just shown him what we received. 

Q. Okay. I'd like to ask you what you did, not what you 

would have. Do you have any recollection of actually having 

discussed that with him? 

A. Do I have a recollection? No. 

Q. Okay. Do you have a recollection of his telling you 

anything in response? 

A. No. 

Q. You do know that if you had such a conversation and he 

did respond, he didn't tell you to do other than you did 

correctly -- correct, which was to notify the fax broadcast 

company, right? 

A. Correct. 

Q. But again, this is just would have. This is just 

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CLEMMER - CROSS - FITZPATRICK

United States District Court

Camden, New Jersey

134

speculation sitting here today. You have no independent 

recollection of this. 

A. It was ten years ago. 

Q. But you didn't tell us that in your direct testimony, 

right? 

A. Right. 

Q. Would you look at Exhibit No. 24, please. 

A. Okay. 

Q. This is your e-mail to -- I'm sorry, your fax to Kevin 

Wilson of May 15th, 2008, correct? 

A. Yes. 

Q. Now, which fax broadcast -- these activities have been 

described as four fax broadcasts, right? 

A. Correct. 

Q. Which one was this referring to? 

A. This one doesn't specifically say. I would just have to 

go by the dates and figure it out. 

Q. Well, what's your recollection? 

A. Maybe would have been the third or fourth one. 

Q. Do you know which? 

A. Not without looking back at the dates specifically. 

Q. Okay. But in that communication, you conveyed your 

knowledge to Mr. -- or your belief to Mr. Wilson that B2B had 

made a big mistake, right? 

A. It appears so, yes. 

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CLEMMER - CROSS - FITZPATRICK

United States District Court

Camden, New Jersey

135

Q. In fact, you're telling him, you didn't do anything that 

I ordered, right? 

A. It looks like they went to New Jersey and the request had 

been for Pennsylvania. 

Q. The request that you had given him? 

A. That I had given him on behalf of Mr. Miley. 

Q. Understood. But on that occasion for all of those 

specific faxes that are encompassed by whether it was three or 

four, you don't know -- excuse me -- they didn't go as you 

instructed. 

A. Correct. 

Q. So they weren't authorized by you or Mr. Miley or anybody 

at David Randall, right? 

A. Well, what was actually sent was not, correct. 

Q. Okay. And then you asked to have them resent, right? 

A. Yes. 

Q. You don't know that they ever were, do you? 

A. No. 

Q. Did you tell us that in your direct testimony? 

MR. COHEN: Judge, she wasn't asked that. 

BY MR. FITZPATRICK:

Q. Is there a reason why you didn't tell us that, that you 

don't know that they went through? 

MR. COHEN: Judge, I object. Suggesting a witness 

has done something wrong. 

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CLEMMER - CROSS - FITZPATRICK

United States District Court

Camden, New Jersey

136

MR. FITZPATRICK: I'm not trying to suggest that, 

Your Honor. I'm asking her about her knowledge. 

THE COURT: Okay. You can ask her if she testified 

to the contrary. Generally witnesses are not permitted to 

volunteer extra information. If she was asked and said 

something contrary, you can explore that or you can ask her 

now what the facts are. 

I'll sustain the objection. 

BY MR. FITZPATRICK:

Q. So standing here today, you do know that that referenced 

fax ad request was not carried out, right? 

A. Correct. 

Q. And you don't know if it ever was carried out. 

A. Correct. 

Q. I'm going to show you Exhibit 28 about which you 

testified to. Do you remember that fax marketing leads? 

A. Yes. 

Q. And there are some attached pages with handwriting on 

them. 

A. Yes. 

Q. Whose handwriting is that? 

A. Mine. 

Q. And whose handwriting is on the third page, in-house lead 

form? 

A. That's the one they took out. I'm not sure. 

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CLEMMER - CROSS - FITZPATRICK

United States District Court

Camden, New Jersey

137

Q. Oh, that's the one -- I'm sorry. 

A. Yeah. 

Q. Then that's not -- no, that's not the one that was taken 

out. 

A. Oh. 

Q. This is Bates No. 72. So you're really not sure -- 

A. I'm sorry. 

Q. -- who that is? 

A. "Lead given to Don," so I think he was the one that 

filled it out. 

MR. FITZPATRICK: 72 is in mine. 

MR. COHEN: I mean, I just pulled it out and I told 

you I was removing it. 

MR. FITZPATRICK: Oh, I apologize, that's my error, 

sir, there's two Bates numbers on here. I was looking at the 

bottom. Okay. Thank you. 

THE COURT: Okay. 

BY MR. FITZPATRICK:

Q. On any of the faxes that you generated and testified 

about today that you sent to B2B, faxes and e-mails, Raymond 

Miley is not copied on any of them, is he? 

A. I don't know about e-mails. I don't remember ever 

copying him on them. Faxes would have just been the fax sent. 

Q. Well, again, I'm not asking you would have been. I'm 

asking you about the exhibits about which you testified here 

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CLEMMER - REDIRECT - COHEN

United States District Court

Camden, New Jersey

138

today. 

Can you tell the jury that Mr. Miley was copied on any 

of those faxes? 

A. He was not copied, but he would have seen them. 

Q. Again, would have, but you don't know. 

A. Correct. 

MR. FITZPATRICK: May I just take a moment, Your 

Honor? 

THE COURT: Yes. 

MR. FITZPATRICK: Thank you, sir.

That's all I have, sir. Thank you. 

THE COURT: Okay. Thank you. Any redirect? 

MR. COHEN: Briefly, Judge. 

(REDIRECT EXAMINATION OF APRIL CLEMMER BY MR. COHEN:)

Q. Ma'am, I just wanted to cover a couple things that you 

just discussed with Mr. Fitzpatrick. 

Do you recall in his questioning at the beginning, he 

talked about reviewing documents with plaintiff's counsel. 

Just so you know, we're plaintiff's counsel. Do you recall 

that? 

A. Yes. 

Q. Have you ever sat down with me or Mr. Lewis or any of the 

attorneys representing the plaintiffs in class in this case? 

A. I have not sat down with you, no. I was just provided 

the information that I had given before. 

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CLEMMER - REDIRECT - COHEN

United States District Court

Camden, New Jersey

139

Q. We sent it to you? 

A. Sent it to me. 

Q. Did we ever have a conversation with you over the phone 

to get ready for your testimony, where we pow-wowed about 

specifics and details and strategy? 

A. No, you just gave me instruction of where to be and so 

forth. 

Q. When to get here. 

A. When to get here. 

Q. Mr. Fitzpatrick drew your attention to some prior 

testimony you gave in your deposition five years ago, focusing 

on the question of the initiating fax from B2B that started 

this whole ball rolling, who got it, who brought it to whom 

and he had you read page -- 

MR. COHEN: May I approach the witness, Judge? 

THE COURT: Yes. 

BY MR. COHEN:

Q. He had you read at Page 9 and he specified starting at 

Line 8, and he said -- end at 18. So that would be: 

Question: How did you become aware of the fax 

advertising while you were employed at David Randall?

Answer: We got a fax one -- got a fax advertisement 

saying that they would do a marketing. It was a marketing 

firm that would help you with whatever your business was.

Question: So you received some type of solicitation by 

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CLEMMER - REDIRECT - COHEN

United States District Court

Camden, New Jersey

140

an ad that was faxed over the company fax machine? 

Answer: I believe so, yes.

Did I read that correctly? 

A. Yes. 

Q. And that's what Mr. Fitzpatrick asked you to read 

earlier. 

I'd like to ask you to read, starting at the same page, 

Page 9 at Line 22 continuing over to the top of Page 10. 

Question: Is that something you would have received or 

Mr. Miley received or someone else? 

Answer: The company would have received it. I believe 

Mr. Miley brought it to my attention.

Did I read that correctly? 

A. Yes. 

Q. Was that the answer you gave five years ago about the 

question, who actually got that first fax and who brought it 

to whose attention? 

A. That was my recollection at that time, yes. 

Q. And is that consistent with what you testified here 

today? 

A. Yes. 

Q. This issue of the ZIP codes, this issue of a lot of 

things, but let's start with the ZIP codes, in terms of what 

you specifically remember and what you, quote, would have done 

or what would have happened. 

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CLEMMER - REDIRECT - COHEN

United States District Court

Camden, New Jersey

141

Is there anybody else in David Randall Associates that 

you went to to get the ZIP code information that was included 

in your communications with B2B? 

A. No. 

Q. Did you pull out all that ZIP code information yourself, 

make your own decision about what the scope of this fax -- 

these fax broadcasts would be and instruct B2B to follow that 

ZIP code limitation without talking to Mr. Miley? 

A. No. 

Q. Did Mr. Miley know the ZIP codes, the volumes, the dates 

of the broadcasts, all of them? 

A. Yes. 

Q. Did you make all these decisions and he just 

rubber-stamped them or was he the one giving you the 

instructions? 

MR. FITZPATRICK: Your Honor, may we have a 

specification of what we're talking about here? Are we still 

talking about ZIP codes or some other "would have"? 

MR. COHEN: I'll be more clear. 

THE COURT: Okay. 

BY MR. COHEN:

Q. The details of each of the broadcasts, the geographic 

scope, the number of them, the date that they would issue, was 

that something -- were those the things that you decided upon 

and he merely agreed to, or was that what he decided upon and 

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CLEMMER - REDIRECT - COHEN

United States District Court

Camden, New Jersey

142

you followed his instructions? 

A. Those had been his decisions and I followed through. 

Q. There was something I wasn't sure about and then I 

thought I got the point. 

On these specific faxes that are exhibits that 

Mr. Fitzpatrick went through with you where you were alerting 

B2B to the fact that you had received complaints, David 

Randall had received complaints and David Randall wanted these 

numbers removed, there was a point where he was saying, was 

that you, you specifically, and I think you said yes, and I 

wasn't sure. 

When you said yes, that was me, were you talking about 

the emphasis, the underlining, the capitalization, or were you 

talking about the decision to notify B2B to remove them was 

just your decision alone? 

A. All the emphasis was mine, yeah. 

Q. The decision to notify B2B that you had received that -- 

that David Randall had received these complaints, these 

requests to have the number removed and that B2B should remove 

them, did that decision originate with you or did it originate 

with Mr. Miley? 

A. That, I don't know specifically. Sorry. 

Q. Fair enough, and I appreciate that. 

Wherever that decision originated, when you 

communicated to B2B on behalf of David Randall Associates, 

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CLEMMER - REDIRECT - COHEN

United States District Court

Camden, New Jersey

143

we've received these complaints, removed these numbers, did 

Mr. Miley know about it? 

A. Yes.

Q. I think we've just got two other things to cover real 

quick. Mr. Fitzpatrick asked you some questions about the 

fourth broadcast not going to the people that -- 

MR. COHEN: I'm sorry, what's the objection? 

MR. FITZPATRICK: The objection is the witness was 

unable to tell us whether it was the third or the fourth 

broadcast. I did not ask about -- I asked her which it was. 

I didn't say which it was and she didn't say which it was. 

Mr. Cohen is suggesting a specific broadcast. 

MR. COHEN: I can rephrase it. 

THE COURT: All right. Please do. 

BY MR. COHEN:

Q. Mr. Fitzpatrick was asking you about one of the 

broadcasts where, apparently, based on what the exhibit 

showed, you were communicating to B2B that apparently the 

broadcast went to New Jersey instead of Pennsylvania when the 

instructions had been to go to Pennsylvania. 

Do you recall that? 

A. Yes. 

Q. Do you recall one of the exhibits we put up there 

earlier, we covered it, was that the -- that broadcast was to 

go to the same targets as the first broadcast? 

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CLEMMER - REDIRECT - COHEN

United States District Court

Camden, New Jersey

144

A. Yes. 

Q. So to the extent the first broadcast was to recipients 

who didn't want it and it was TCPA violations, if B2B had 

followed your instructions or Mr. Miley's instructions on the 

broadcast that went to New Jersey instead of Pennsylvania, 

would it have changed the outcome? 

MR. FITZPATRICK: Objection. 

THE COURT: Sustained. It would be a hypothetical 

question. 

MR. COHEN: I appreciate that, Judge. 

BY MR. COHEN:

Q. And here's my last question. There was questions by me 

because we're talking about something ten years ago about what 

would have done -- what you would have done, what would have 

happened and then Mr. Fitzpatrick brought out some of your 

testimony was what would have happened, what you would have 

done. 

When you worked at David Randall Associates, were there 

procedures, were there routines that were followed? 

A. Yes. 

Q. Were they standard operating practices about how certain 

things would be handled to ensure uniformity and smooth flow? 

A. Yes. 

Q. Did that include that Mr. Miley saw outgoing faxes? 

A. Yes. 

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CLEMMER - REDIRECT - COHEN

United States District Court

Camden, New Jersey

145

Q. In following the routine, the custom, the habit that was 

standard daily operating practice for you at David Randall 

Associates during the period of time you were there in March, 

April and May of 2006, would you have done any of these things 

with B2B, sent them the communications you did, provided them 

the information you did and had these broadcast issues without 

Mr. Miley specifically knowing about it and authorizing it? 

MR. FITZPATRICK: Objection, Your Honor. 

THE COURT: Sustained. The question again should be 

along the lines of, did you do any of these things without 

Mr. Miley's authorization. 

MR. FITZPATRICK: And I have an additional objection, 

sir. This is becoming argument in the form of repeated 

questions, would, would have, et cetera. 

THE COURT: Let me see counsel at sidebar.

(SIDEBAR AS FOLLOWS:) 

THE COURT: As to the latter point, I don't think 

it's argumentative. It's important questioning, but as to the 

other point, I may change my ruling, but I want to hear from 

both sides. You've attempted to establish a pattern and 

practice of their normal operating procedures. 

I think you asked a question about whether they had a 

normal procedure about who sees faxes, outgoing faxes, does 

Mr. Miley see outgoing faxes. So it's okay to ask that 

question. 

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CLEMMER - REDIRECT - COHEN

United States District Court

Camden, New Jersey

146

The question that was objected to was along the lines 

of, would you have ever done this without following the right 

procedure. That's not exactly a question about what the 

procedures were. It would have to be reversed, did you follow 

the right procedure in doing this in all circumstances. As 

long as you've laid the foundation of there having an office 

procedure, it's proper to ask her, did you always follow that 

procedure or was there ever a time when you did not follow the 

procedure. Either of those questions would work. But would 

you have always followed the procedure, I still have qualms 

about. 

MR. COHEN: And Judge, I appreciate that and I think 

I didn't lay a sufficient foundation on following procedure 

and I can do that. But I was, as I think the Court can see, 

trying to go to the routine, custom and habit routine under 

the Federal Rules of Evidence. 

THE COURT: Right, right. 

MR. COHEN: And I think I may not have laid a 

sufficient predicate for that, but I think I can still do 

that. 

THE COURT: It's still your witness and, you know, 

you can continue your questioning along the lines of the 

routine, custom and habit. 

That only can be pushed so far, though, because she 

said that they never had a fax advertising campaign before or 

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CLEMMER - REDIRECT - COHEN

United States District Court

Camden, New Jersey

147

after this. So I don't know what the routines for a campaign 

would be, but the routines for how pieces of paper move 

through the office, who saw them, who approved them, I think 

all of that is in play. Is there anything else? 

MR. FITZPATRICK: No, sir. 

THE COURT: Okay. 

MR. FITZPATRICK: I just -- may I just add one other 

thing? 

THE COURT: Yes. 

MR. FITZPATRICK: I don't want to have to be seen as 

jumping up and making obvious objections. I don't want to 

hear him ask again "would have." That is inappropriate in any 

structured question to this witness, I believe. "Would you 

have done this" is not a proper question. 

MR. COHEN: Well, first of all, when he spent several 

questions dealing with the witness about would have, 

criticizing her for it, I can bring out what she meant by it 

and let her explain herself, and second of all, when you are 

going down the routine, custom and habit route of laying an 

evidentiary foundation to speak to what did or didn't happen, 

that's actually the way you do it, you establish what the 

routine, custom and habit is and you ask, would you follow 

that. 

THE COURT: No, I agree, and I think what was missing 

is the first "would have" question is what is the 

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establishment of the routine, custom and habit. 

MR. COHEN: I agree. 

THE COURT: So you have an opportunity to lay that 

foundation now. 

MR. FITZPATRICK: Thank you, sir.

(END OF SIDEBAR.) 

THE COURT: Okay. I've sustained the objection to 

the present question, but I'm permitting it to be rephrased by 

laying a proper foundation for the custom and habit. 

MR. COHEN: Thank you, Judge. 

BY MR. COHEN:

Q. In the routine day-to-day standard operating procedure at 

David Randall Associates while you were there performing the 

function and the job with the responsibilities you did and 

had, were there some things you would take it upon yourself to 

do independently, unilaterally, without needing to notify 

somebody, but other things that you would not do on your own 

and that you would make sure Mr. Miley knew that he was 

notified and that he made the decision? 

A. Yes. 

Q. With regard to these fax broadcasts, all of your 

interaction with B2B, all of what you sent them that led to 

the broadcasts, does that fall within the category that as a 

matter of your routine, custom and habit, that's the kind of 

thing you do on your own, or is that the kind of thing you 

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would only do with Mr. Miley's full knowledge, instruction and 

approval? 

A. With Mr. Miley, yes. 

Q. And is that what you did here? 

A. Yes. 

MR. COHEN: Thank you, ma'am. 

THE COURT: Any recross within that scope? 

(RECROSS EXAMINATION OF APRIL CLEMMER BY MR. FITZPATRICK:)

Q. Are you now testifying that every fax that was generated 

at David Randall was copied to Mr. Miley? 

A. I think we already talked -- I don't know that -- what 

you mean by "copied to Mr. Miley." 

Q. I mean only what Mr. Cohen just asked you and your 

response. I understood your response to -- 

A. Regarding the fact -- 

Q. One moment. 

A. Sorry. 

Q. The term he used was, was Mr. Miley included in outgoing 

faxes, in all outgoing faxes, and you answered yes. 

Do you remember that? 

A. Did he ask that? 

Q. Do you remember just being asked that? 

A. He just asked if anything regarding the faxing would have 

been with the knowledge of Mr. Miley and I said yes. 

Q. No. In an earlier question, this is what I'm asking you 

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about, Mr. Cohen asked you whether it was the custom that all 

outgoing faxes went to Mr. Miley to be seen by him, and you 

answered yes. 

MR. COHEN: And Judge, I object, I don't believe 

that's the phrasing of my question and it would make a 

difference but... 

THE COURT: Well, I don't recall. The witness may 

answer. 

BY MR. FITZPATRICK:

Q. Is it your testimony today, just so we're perfectly clear 

before you leave here -- 

A. Mm-hmm. 

Q. -- is it now your testimony that Mr. Miley, in the 

ordinary course of business when you worked there, received 

and reviewed copies of all of your outgoing faxes? 

A. No. He would not have seen everything.

MR. FITZPATRICK: Thank you. Nothing further, sir. 

THE COURT: Anything else? 

MR. COHEN: No, Your Honor. 

THE COURT: All right. I have -- I have one 

clarifying question and before I ask it, let me say two 

things. 

Under the rules of evidence, the jury should know that 

a judge can ask clarifying questions along the way and 

sometimes I do and sometimes I don't. And also the attorneys 

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should know that if the judge ever asks a question that you 

feel is objectionable, to voice the objection and we will go 

to sidebar right away, or to raise the objection at the first 

available moment after that. 

And the question is this. Could you go back to 

Exhibit 27 in the book?

THE WITNESS: Yes. 

THE COURT: What were your normal work hours when you 

were working for David Randall?

THE WITNESS: 8 to 4:30. 

THE COURT: And on Exhibit 27, do you see your fax 

stamp at the top of the page?

THE WITNESS: Yes. 

THE COURT: And do you see the time that you say you 

wrote there?

THE WITNESS: Yep. It says a.m. That should have 

been p.m., I'm sure. 

THE COURT: So it's not 3:25 a.m.?

THE WITNESS: I'm sure it should have been p.m. 

THE COURT: Did you ever work in the middle of the 

night like that? 

THE WITNESS: No. 

THE COURT: All right. I was just curious. 

Now, I don't have any other questions. First, do the 

attorneys have any follow-up questions raised by mine? 

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MR. FITZPATRICK: No, sir. 

MR. COHEN: No, Your Honor. 

THE COURT: And now is there any member of the jury 

that has a question for Ms. Clemmer? If so, raise your hand 

and I'll give you a minute to write it down. Any questions? 

Nope? 

Okay, well, thank you, Ms. Clemmer, you're done. Thank 

you. You may step down. 

THE WITNESS: Am I done to leave, as well, or -- 

THE COURT: Yes. 

MR. COHEN: We would ask that she be released from 

the subpoena unless Mr. Fitzpatrick has an expectation of 

possibly wanting to call her back. 

MR. FITZPATRICK: I don't envision needing her back. 

THE COURT: All right. Then you are excused and 

thank you for responding to your subpoena. 

Is this a good time for a break? 

MR. FITZPATRICK: Yes. 

MR. COHEN: Yes. 

THE COURT: Let's take our mid-afternoon break, 

ladies and gentlemen. We will resume in about ten minutes. 

THE DEPUTY CLERK: All rise. 

(JURY EXITS 3:17 p.m.) 

(RECESS TAKEN; 3:17 p.m.) 

THE DEPUTY CLERK: All rise. 

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(OPEN COURT; 3:32 p.m.) 

THE COURT: Okay. Be seated, please. Okay. My 

deputy clerk tells me that plaintiff is prepared to rest. 

MR. COHEN: That is correct, Judge. 

THE COURT: And so you will be able to do that in a 

moment in front of the jury, but if you're going to rest and 

if there's going to be a motion at the close of plaintiff's 

case, then I should probably hear that out of the jury's 

presence and before we bring them in. Is that acceptable to 

both sides? 

MR. COHEN: It is, Judge. 

MR. FITZPATRICK: Before they rest? 

THE COURT: No, no. 

MR. FITZPATRICK: Oh, yeah, yeah. Sure, it has to be 

heard outside their presence. 

THE COURT: Okay. But rather than my bringing the 

jury in, just so that they hear the words "I rest," that the 

record will reflect that the plaintiff is resting now, no 

matter what happens in the Rule 50 motion. 

Is that acceptable or do you want to see the jury's 

faces? 

MR. COHEN: Judge, what I would propose, as long as 

when the jury comes in, I can do the show, for lack of a 

better word of standing up and saying "plaintiff rests," I 

will state now for the record, to make all of Mr. 

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Fitzpatrick's procedural concerns nonexistent, plaintiff 

rests. 

THE COURT: Okay. Very well. Then the record 

reflects plaintiff has rested and Mr. Fitzpatrick, is there a 

motion? 

MR. FITZPATRICK: There is, Your Honor. I have a 

motion for directed verdict. 

THE COURT: And the basis? 

MR. FITZPATRICK: The basis is that the evidence the 

plaintiffs presented cannot possibly meet the requirements of 

proof of the elements required by the law, in particular, the 

claim of Mr. Miley's active material involvement. This 

plaintiff's witness, extraordinarily, on cross-examination 

admitted that none of what she testified about on direct exam 

was -- did she have any personal knowledge of that and she was 

making suppositions throughout that Mr. Miley, quote unquote 

would have done this, I would have done this, I would have 

done that, this would have been this, this would have been 

that, without any personal recollection at all. 

And this jury -- to permit this jury to consider that 

as -- in terms of determining a preponderance of the evidence, 

it doesn't even meet the threshold test. It is completely, 

completely abjectly suspect by that witness's own admission. 

And there's no -- no bounds -- no grounds for submitting it to 

the jury, and it's not -- the claim -- the picture that the 

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plaintiff's counsel presents through this witness's direct 

testimony is not bolstered by her review of the faxes that she 

asserted that she recognized and were accurate at the time 

because there's not a single fax in there, as she admitted 

that she knows was ever sent to Mr. Miley. 

The only two people that have knowledge about the 

circumstances of this case are Randy Miley and April Clemmer 

and she does not have a sufficient basis for sending the case 

to the jury, therefore, I move for directed verdict on behalf 

of the defendant David -- I'm sorry, Raymond Miley, III. 

THE COURT: All right. Thank you. Mr. Cohen? 

MR. COHEN: Yes, Judge, there are several problems 

with Mr. Fitzpatrick's argument. The first is that he did a 

nice job on a point-by-point basis of attempting to undercut 

the credibility of her direct testimony about what Mr. Miley's 

knowledge, participation, authorization and involvement was. 

If we started from the premise that on each point he 

challenged her, that he was so effective he completely negated 

the probative value of her direct testimony on that point, we 

would still be dealing with the situation where he did not 

point-by-point negate all of her direct testimony about her 

interaction with Mr. Miley and Mr. Miley's involvement. 

He took her to task on specific things and on specific 

things, he got her to admit that as to that specific thing, 

she did not specifically recall. 

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If he wanted to go through with her and try to get her 

to negate every single thing she said on direct, we would be 

dealing with something a little different. But he didn't, so 

from the starting point, he only took away at all from a 

portion, a fraction of her total direct testimony, and he 

wants it to seem as if it deflated the whole ship. It didn't. 

Beyond that, whatever he did, did not negate the 

probative value of her testimony on direct as a matter of law. 

It's not as if somebody says, A is true and then on cross, you 

get them to admit something that's weaker than that and their 

direct testimony ceases to be probative at all. That's not 

the law. 

But then finally, on everything that he got her to 

admit, she did not specifically recall, on redirect, I got her 

to testify to her routine, custom, practice and habit at David 

Randall Associates, and in particular, that there are things 

she did on her own without seeking input and approval and 

there are things she didn't do, and that her involvement 

relative to B2B and the fax broadcasting was not the kind of 

thing she did unilaterally, and she did have knowledge, 

approval and authorization from Mr. Miley for all of it. 

So whatever the effect of Mr. Fitzpatrick's 

cross-examination, which isn't nearly as substantial as he 

thinks it was, it was completely mooted by the redirect, which 

reestablished the submissibility of every aspect of her prior 

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testimony. Thank you, Judge. 

THE COURT: All right. Thank you. 

I'm going to deny the motion under Rule 50 and permit 

the case to go forward. The witness had, in my view, 

sufficient recollection that she is a competent witness. Were 

I to strike all of her testimony, then there would be 

literally no evidence. But her testimony is for the jury to 

-- to sort out. She testified as to her office custom, habit 

and practice, and generally, the steps that she followed with 

Mr. Miley. 

She testified with some certainty about Mr. Miley's 

knowledge. On some details, she didn't recall or she admitted 

on cross that she didn't specifically recall whether certain 

ideas came from Mr. Miley or came from her, didn't recall any 

specific conversations where Mr. Miley said certain words 

verbatim. 

But overall, the jury is free to find from this 

evidence that she acted at all times at Mr. Miley's direction, 

that the fax campaign was his idea, that he had knowledge of 

what was being set up, that he had knowledge of what was in 

the ads and of the numbers of fax transmissions that were 

being authorized in each of the transmittals, that she 

testified that only he could approve the expenditure of the 

funds that were used to pay, and that he approved of each of 

the four. 

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And so I'm unable to say that a reasonable jury could 

never find a legally sufficient basis to find for the 

plaintiff on these issues. The jury will have to sort through 

this witness's testimony as any other, but certainly, she's 

not a witness who, for instance, has amnesia about everything 

that she testified about, where I would have a duty to 

instruct the jury to disregard her testimony or that she's 

simply making it up. 

And also, there were instances where -- when 

plaintiff's counsel showed her her deposition from five years 

ago, that it actually was consistent, not inconsistent with 

what she testified to before this jury today. 

There were inconsistencies and they were brought out on 

cross-examination, but under Rule 50(a)(1), I'm going to deny 

the motion for judgment as a matter of law and I'll permit the 

case to go forward. 

MR. FITZPATRICK: I have an additional motion, Your 

Honor. 

THE COURT: Yes. 

MR. FITZPATRICK: A motion for judgment as a matter 

of law with regard to the fourth fax broadcast campaign, which 

is alleged in this case. The plaintiff's only witness 

admitted that, A, the faxes that were sent in that fourth 

campaign, she didn't use fourth, she couldn't say third or 

fourth, but we know from the dates, as she said, we can tell 

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from the dates that it was the fourth, and the records that 

are her own faxes and the other records that the plaintiff 

submitted confirm that B2B did not carry out any instructions 

that were given by Randy Miley or attributable -- or Raymond 

Miley were attributable to Mr. Miley at all in that -- in the 

transmissions that were -- that have been considered in this 

case as the fourth transmissions. 

They were erroneously sent and she complained about it 

and she requested that they be resent, but she admitted 

unequivocally that she had no confirmation that they were ever 

resent. And, in fact, there's nothing in this record at all 

that indicates that those faxes -- that the fourth tranche 

that's alleged to have been sent with Mr. Miley's 

authorization or participation or whatever they want to call 

it, that didn't happen. 

So we -- we're entitled to a judgment as a matter of 

law as to that claim. 

THE COURT: Was the fourth one the one that was 

supposed to be the same as the first one? 

MR. COHEN: Yes. 

THE COURT: And the first one, did that include any 

New Jersey faxes or was it all Pennsylvania? 

MR. COHEN: I believe it was all Pennsylvania. I'm 

not positive. I'll have to check. 

MR. FITZPATRICK: And I don't want to go on anybody's 

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belief, Your Honor. 

THE COURT: Let's take a look at the documents for 

the first one. Okay. 

I'm looking at P-7, the list of ZIP codes. I can take 

judicial notice they are all Pennsylvania ZIP codes. Does 

everyone agree? 

MR. FITZPATRICK: Yes, Your Honor. 

THE COURT: All New Jersey ZIP codes start with 0, 08 

or 07, and all of these start with 18 or 19. So if this 

March 24th, '08 list of ZIP codes was the first broadcast, 

then they were all Pennsylvania. 

If we know that the fourth broadcast had at least some 

sent to New Jersey, does that mean that the entire fourth 

broadcast should be disregarded? 

Is there any circumstantial evidence that some were 

sent to New Jersey and some to Pennsylvania, for instance? 

MR. FITZPATRICK: No. They all must be disregarded 

in our view because we know that the instructions, which are 

the core allegation of this Complaint, we know they were not 

followed. They were not followed. Wherever faxes may have 

been sent in that fourth campaign, she affirmed and confirmed 

that they were not sent in accordance with the instructions 

that she gave to B2B. She complained about it and she asked 

for a renewed tranche and there's no evidence before this 

Court anywhere in the record and none can be surmised that 

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indicates that a subsequent fax advertising broadcast went out 

in accordance with her request. There's just not evidence at 

all of that. 

THE COURT: All right. So the question, then, is, is 

there evidence that the fourth broadcast was sent as 

authorized and directed by Mr. Miley? 

MR. COHEN: And may I respond, Judge? 

THE COURT: Yes. 

MR. COHEN: Because there's a factual issue and 

there's a legal issue. The factual issue is that we have 

clear instructions to broadcast in Pennsylvania to the same 

targets as on the first broadcast, and the only indication we 

have that may not have happened is Ms. Clemmer's supposition 

that because she got some calls from people in New Jersey, 

that maybe some or all of this broadcast maybe went to 

New Jersey instead of Pennsylvania, as if somehow that 

constitutes now an established fact. It doesn't. It just 

can't. 

I mean -- but there's a far bigger issue than that, and 

we would ask for the opportunity to brief this and I can 

submit this -- I can submit this this evening. The Court will 

have it and Mr. Fitzpatrick will have it. And the Court can 

make its resolution, perhaps taking Mr. Fitzpatrick's motion 

as to the fourth broadcast under advisement and resolve it 

before closing argument. 

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First, I will candidly acknowledge that there are some 

TCPA cases that are flatly wrong in holding that where the 

broadcaster broadcasts to a geography or a population other 

than that which the sender wanted them to broadcast, that you 

can't hold the sender liable for that. They're absolutely 

incorrect decisions under the TCPA because nothing about the 

TCPA changes the federal common law of principal and agency, 

when it comes to the concept that negligent performance by an 

agent of the agency given to him by his principal, that ends 

up harming an innocent third party does not absolve or protect 

the principal from liability for what the agent did, and the 

case law goes beyond that and says that an agent's failure to 

abide by a specific limiting instructions or restrictions 

known only to the agent, given to the agent by the principal, 

the failures -- the agent's failure to follow those 

instructions and restrictions that ends up leading to harm to 

an innocent third party, the principal is liable for what its 

agent did, even though it did it in violation of instructions. 

That's the common law that applies here. We have 

plenty of case law to cite the Court to for that premise, 

including a U.S. Supreme Court authority, but beyond that, it 

ends up being an overwhelmingly -- 

THE COURT: Well, it might still be an unlawful fax 

transmission, no matter where it ends up, but what -- what is 

there in that transmission that would have been authorized by 

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Mr. Miley, if Mr. Miley said, send these to Pennsylvania and 

instead, they are sent to New Jersey? 

MR. COHEN: Well, we would get to the issue of what 

is -- what is the -- excuse me. What is it that the 

individual must authorize? Must they authorize a broadcast 

that violated in the end a TCPA or must they authorize the 

broadcast the way it was done? And I think that's relevant 

because we've actually briefed this in front of Judge Tharp in 

the Northern District of Illinois and his ruling was, it's not 

who they were sent to, it's the broadcast. Did the defendant 

authorize the broadcaster to issue a broadcast? And quite 

frankly, we lost that case on the merits to a jury in front of 

Judge Tharp, the jury decided the defendant did not authorize 

a broadcast at all, but Judge Tharp's holding was, it's not 

about authorizing as to the specific recipients. 

One of the biggest problems associated with this kind 

of an argument by the defendant in a TCPA case is that no 

matter who the faxes were sent to, it was going to be TCPA 

violations. 

So when Mr. Miley, under our evidence, authorized the 

fourth broadcast of 12,000 additional faxes, that was going to 

be 12,000 TCPA violations, whether B2B followed his 

instructions and did it in Pennsylvania or didn't and did it 

in New Jersey. 

No matter, it's almost like you hire somebody and you 

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say burn down that guy's house and he gets it wrong and he 

burns down that guy's house and you say, well, I'm not 

responsible because that's not the house I told him to burn 

down. No matter what, there were TCPA violations that were 

going to come from the authorization that Mr. Miley gave, and 

I don't think it's a -- an absolution of that liability on the 

fourth broadcast that the wrong people had their rights taken 

away, not the 12,000 he meant, but I've candidly told you, 

there are some decisions out there that go against us. I 

would simply like the opportunity to submit our case law to 

Your Honor. 

THE COURT: All right. I'll grant you that 

opportunity. I'll reserve decision until Mr. Fitzpatrick and 

I have the opportunity to see your brief. 

MR. FITZPATRICK: Let me just briefly say this. I 

don't need a brief on this. Because this is not a TCPA issue. 

This is trial practice law 101. What I'm saying to you is 

aside from -- they haven't shown authority. That's a 

fundamental fatal flaw that they can't make up for. They 

cannot and have not proved that there was a fourth tranche 

sent. That's their burden of proof. They cannot prove. 

This witness said she does not know. She knows that 

there were errors made and she does not know -- she admitted 

on the stand in response to my question that she does not know 

that the fourth -- that a subsequent fifth tranche, which 

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they're trying to supply as a fourth, was ever sent. That -- 

that's failure of evidence. 

THE COURT: It's correct that there's no evidence 

that a fifth batch was sent, not from this witness and not 

from any other document. There is evidence that a fourth 

batch was sent because returns were coming from New Jersey, 

and so it could be -- 

MR. FITZPATRICK: That was unauthorized. It could 

have been somebody's instructions that we don't even know. It 

could have been somebody else's fax that we don't know. We 

can't speculate that. There's no evidence of that fourth 

tranche. 

THE COURT: Does the plaintiff need this fourth 

tranche for some reason? 

MR. FITZPATRICK: For money. 

THE COURT: Well, just a moment. If there's -- if 

there's 30,000 or so transmissions in play in the first three, 

if those are proven, does this really matter in terms of the 

evidence in the case and what this jury should be -- should be 

deciding? 

MR. COHEN: There are a couple aspects of that and 

the first I want to make clear, and I don't know how far 

Mr. Fitzpatrick meant when he said to go, there is not only 

evidence that the fourth broadcast was issued and was 

successfully sent, but the Court's summary judgment ruling 

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against David Randall found that. 

So they can then say, yes, but we didn't raise the 

issue of the wrong recipients. And that, I appreciate, they 

can make that argument now and I've told the Court I think 

they're wrong and I'll get the Court the briefing on that. 

But there's no doubt, there was a successfully sent 

fourth broadcast. To the Court's point -- 

THE COURT: All right. I'm giving you, sir, the 

opportunity to brief it. 

MR. COHEN: I appreciate that. To the Court's point, 

when a plaintiff stands up and makes an argument -- well, when 

a plaintiff stands up and states his claim to the jury in 

opening statement and presents evidence and the evidence is A, 

B, C and D, I would never want to give up D when I don't think 

I have to on the notion, well, you know, isn't it sufficient 

with A, B and C, because it can impact my credibility with the 

jury. 

So we made a conscious decision recognizing 

Mr. Fitzpatrick would make this argument about the fourth 

transmission to still proceed on all four. If the Court holds 

that we have not as a matter of law made our claim on the 

fourth transmission, we will have to abide by that and it may 

well impact our credibility in closing and in the jury's 

deliberations. I don't want to voluntarily accept and invite 

that problem to my credibility. 

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THE COURT: All right. That's fair. And so I think 

you've already briefed an issue similar to this. 

How much time do you need for this supplemental brief 

tonight? 

MR. COHEN: Judge, we can have that to the Court 

within two hours after we leave the courthouse. 

Do you think less? 

I mean, this is briefing that has been done. We just 

need to pull it from other cases and we can supply it. 

THE COURT: Well, do your best. Tonight, if 

possible, tomorrow morning at the latest. 

MR. COHEN: Oh, it will definitely be this evening, 

Judge, definitely. 

THE COURT: That will be fine. Make sure 

Mr. Fitzpatrick gets a copy instantly. 

MR. COHEN: Will do. 

THE COURT: Okay. Then I will reserve on this aspect 

of whether there's sufficient evidence of a fourth authorized 

transmission. 

MR. FITZPATRICK: Your Honor, under those 

circumstances, I request that we just let the jury go tonight. 

It's almost four clock and I'll open tomorrow. They can 

close, I'll open and then put Mr. Miley on, once I know the 

Court's response on that ruling. 

MR. COHEN: And I appreciate that. I have no 

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objection. The Court, obviously, will decide. There was a 

point I did not make. I can make it, I believe, in 15 seconds 

and it just slipped my mind. 

Assuming that the Court does not agree with me on the 

law of authorization and principal responsibility when an 

agent violates the instructions, the individual liability 

standard for Mr. Miley is two-pronged and it's either/or. 

It's direct participation or personal authorization, and when 

it's either/or, they can't mean the same thing and one can't 

negate the other. 

So I believe as to all of these, and definitely the 

fourth as well, we satisfy the direct and personal 

participation even if the Court holds that we don't satisfy 

the authorization, and we will include that briefly in our 

briefing. 

THE COURT: All right. Then I'll take a look at 

those cases and we'll return tomorrow morning. 

Okay. I'll excuse the jury then today. It's 4 o'clock 

already, and then in any event, Mr. Fitzpatrick should be 

prepared to open tomorrow morning, whether it's as to 

defending against the three transmissions or the four. 

MR. FITZPATRICK: And just to note one other thing 

that -- if Your Honor is -- I believe has arisen as a result 

of this evidentiary deficiency, that if Your Honor is inclined 

to allow the jury to consider whether there was a fourth 

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tranche attributable to Mr. Miley, then we would also need an 

amendment of the proposed verdict sheet to have them make a 

specific finding that there was a fourth tranche. 

THE COURT: We will talk about the jury sheet 

tomorrow and, however it ends up, it will be consistent with 

the final jury instructions. 

MR. FITZPATRICK: Thank you. I just wanted to bring 

it to your attention while I was thinking about it. 

THE COURT: Okay. All right. So why don't we bring 

the jury in and Mr. Cohen will have the opportunity to rise 

before the jury and say the plaintiff rests and then -- 

MR. COHEN: Thank you. 

THE COURT: I will explain that we will pick up 

tomorrow morning at 9:30. 

So you can please bring the jury in. 

MR. COHEN: Judge, would the Court like us to leave 

the originals of exhibits somewhere in the courtroom or just 

make sure -- 

THE COURT: Keep them, keep them safe until both 

sides have rested, and then you will go through them with 

Marnie and make sure that all the exhibits that are in 

evidence, that she has the original copy of for the jury. 

MR. COHEN: Great. 

THE COURT: So for tonight, just hang onto them. 

MR. COHEN: Thank you. 

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THE DEPUTY CLERK: All rise. 

(JURY ENTERS; 4:03 p.m.) 

THE COURT: Be seated, please.

Okay. Ladies and gentlemen, thank you. I'm sorry the 

break was a little bit extended. 

Mr. Cohen, do you have any other witnesses on behalf of 

the plaintiff and its class? 

MR. COHEN: Your Honor, at this time the plaintiff 

rests. 

THE COURT: Okay. Ladies and gentlemen, the 

plaintiff has rested. 

You've heard the evidence in the plaintiff's case and 

when we return tomorrow, we will start the defendant's case, 

and so I'll ask you once again to continue to keep an open 

mind until all the evidence is in, to not discuss the case or 

permit anyone to discuss it with you, to not attempt to do any 

research on your own about anything touching upon this case.

And thank you for paying such good attention today and 

for being here. Tomorrow morning, I'll ask you to report back 

downstairs at 9:15 in the morning and we hope to be started by 

9:30 and I anticipate a full day. 

Do you have any questions about the schedule or 

anything else? Okay. Thank you and have a safe trip home. 

See you tomorrow. 

THE DEPUTY CLERK: All rise. 

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(JURY EXITS; 4:04 p.m.) 

THE COURT: Okay. Be seated, please. So the jury 

has been excused for the day. Is there anything else before 

we adjourn? 

MR. COHEN: Just in terms of predictions, and I'm not 

seeking to hold Mr. Fitzpatrick to anything, I'm trying to 

figure out if we think we will get to closing arguments 

tomorrow afternoon. 

THE COURT: Okay. Mr. Fitzpatrick? 

MR. FITZPATRICK: I wouldn't see why not. We don't 

have 50 pages of documents to go through with the exhibits, 

so... 

THE COURT: Okay. Is Mr. Miley your only witness or 

are there others? 

MR. FITZPATRICK: He's the only one I expect right 

now. 

THE COURT: Okay. I don't have the draft jury charge 

for you tonight, but hopefully, it will be on your desk 

tomorrow morning as a working copy of what the jury 

instructions will be, and then we will go through it first. I 

say informally, meaning we go through, we figure out what 

needs to be in there, what shouldn't be in there, see where 

there's agreement and we see where there's disagreement and 

then as to any matters of disagreement where we need to make a 

record, then I would go on the record and have the final jury 

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charge conference and make rulings. 

That won't happen until after the parties rest. I do 

have your proposed jury instructions from both sides and of 

course I'm working with those. 

Might be -- well, we will see how the day unfolds. 

I'll finish up what I can on the jury instructions tonight and 

we will see how long the witness or witnesses take tomorrow. 

It might not be until Thursday that we're actually able to put 

the case into the jury's hands, but that's fine. I'm not 

trying to rush the case. But I think that's a good 

prediction. 

It may be tomorrow with some luck, depends how many 

disputes there are about the jury charges. Anything else? 

MR. COHEN: Not tonight, sir. 

THE COURT: Okay. Thanks a lot. Good night. 

(4:07 p.m.) 

Case 1:11-cv-02658-JBS-KMW Document 246 Filed 06/24/16 Page 172 of 195 PageID: 9206
$

$20 [3] - 58:13, 58:14, 

58:19

$22 [2] - 22:8, 27:14

$28 [2] - 61:16, 64:8

$394 [13] - 59:7, 

60:13, 61:18, 64:8, 

71:25, 76:4, 80:17, 

80:24, 81:14, 97:3, 

97:19, 97:22, 102:25

$422 [4] - 60:13, 

61:25, 64:6, 64:16

$438 [1] - 58:13

$478 [1] - 58:15

$500 [2] - 13:24, 22:6

$565 [2] - 85:11, 88:22

'

'06 [2] - 85:3, 126:19

'08 [1] - 160:10

'client [1] - 54:6

'repairs [1] - 48:18

/

/S [2] - 1:24, 1:25

0

0 [1] - 160:8

0048 [1] - 113:1

0050 [2] - 109:7, 

109:24

0063 [1] - 108:18

07 [1] - 160:9

08 [1] - 160:8

08101 [1] - 1:9

1

1 [26] - 14:16, 40:2, 

40:8, 40:10, 40:15, 

40:19, 40:22, 41:4, 

41:5, 42:8, 42:18, 

42:21, 44:3, 45:3, 

45:4, 46:19, 48:3, 

51:16, 53:8, 67:14, 

69:3, 73:9, 73:10, 

73:17, 75:12

1,000 [5] - 50:24, 52:3, 

58:14, 61:20, 61:23

10 [7] - 56:10, 60:22, 

61:10, 64:25, 72:10, 

78:24, 140:8

10,000 [9] - 50:24, 

52:3, 52:8, 52:11, 

58:13, 61:18, 64:8, 

70:16, 71:25

101 [3] - 2:6, 4:5, 

164:17

102 [1] - 2:8

104 [1] - 4:6

106 [1] - 4:7

107 [1] - 4:8

108 [1] - 4:9

109 [1] - 2:10

11 [3] - 63:12, 63:24, 

65:1

113 [2] - 2:12, 4:10

11:18 [1] - 56:17

11:30 [1] - 56:15

11:33 [1] - 56:18

11:50 [2] - 84:10, 

84:19

12 [12] - 66:4, 66:8, 

66:20, 67:25, 68:3, 

68:24, 69:3, 83:21, 

126:17, 130:22, 

130:25, 133:8

12,000 [18] - 50:25, 

52:4, 64:7, 65:5, 

65:6, 70:16, 71:17, 

76:5, 80:22, 80:23, 

80:24, 83:15, 97:3, 

98:2, 98:6, 163:21, 

163:22, 164:8

12:30 [1] - 92:22

12:37 [1] - 93:6

12th [9] - 88:7, 90:15, 

94:7, 97:1, 98:13, 

102:19, 103:5, 

103:10, 130:5

13 [8] - 69:12, 69:22, 

70:1, 72:19, 73:2, 

73:7, 74:9, 124:21

138 [1] - 2:14

14 [8] - 72:16, 72:18, 

73:2, 73:7, 73:13, 

73:21, 74:3, 119:12

149 [1] - 2:15

15 [5] - 75:8, 75:19, 

79:25, 81:12, 168:2

15,000 [1] - 85:11

15th [5] - 97:10, 

103:23, 104:11, 

106:18, 134:10

16 [3] - 82:9, 83:3, 

121:19

1600 [1] - 67:2

16th [1] - 13:16

17 [5] - 83:18, 84:3, 

87:11, 87:12, 127:11

17th [2] - 107:20, 

109:1

18 [7] - 86:21, 87:5, 

87:11, 87:12, 87:15, 

139:19, 160:9

18,000 [4] - 85:10, 

85:14, 88:23, 92:20

19 [12] - 88:2, 88:13, 

89:20, 90:20, 91:11, 

91:12, 91:17, 91:22, 

119:12, 123:11, 

130:3, 160:9

1989 [1] - 47:16

1:11-CV-02658-JBSKMW [1] - 1:4

1:35 [1] - 93:2

1:46 [1] - 93:16

1:47 [1] - 93:21

2

2 [30] - 8:3, 14:18, 

42:8, 42:24, 43:1, 

43:11, 43:13, 44:3, 

44:25, 45:4, 45:10, 

45:24, 48:4, 51:7, 

51:9, 53:8, 54:11, 

54:13, 54:17, 58:14, 

61:20, 64:15, 67:14, 

72:2, 73:8, 81:12, 

87:15, 121:19, 125:7

2,000 [6] - 50:25, 52:4, 

61:22, 64:8, 70:17, 

71:25

20 [11] - 22:14, 22:23, 

90:12, 90:20, 90:22, 

91:4, 91:17, 91:19, 

91:20, 91:21, 93:10

2005 [1] - 95:23

2006 [52] - 13:1, 

13:16, 21:12, 29:19, 

30:3, 30:6, 30:8, 

32:13, 43:25, 46:20, 

48:1, 48:16, 50:20, 

53:24, 57:13, 57:18, 

58:5, 59:9, 61:1, 

63:9, 63:16, 64:5, 

66:9, 67:22, 69:15, 

70:7, 71:2, 73:22, 

75:13, 75:25, 80:1, 

83:22, 88:7, 94:8, 

95:19, 96:8, 97:1, 

98:14, 102:7, 102:8, 

102:12, 102:19, 

103:10, 103:23, 

104:12, 106:18, 

107:20, 109:1, 

114:18, 130:6, 145:4

2007 [1] - 45:22

2008 [2] - 50:6, 134:10

2011 [4] - 30:19, 

32:22, 33:1, 114:14

2016 [2] - 1:10, 5:2

21 [2] - 91:24, 92:8

22 [6] - 94:3, 94:15, 

98:22, 99:15, 

123:12, 140:8

23 [13] - 43:25, 46:20, 

98:9, 98:20, 99:14, 

99:21, 99:23, 100:1, 

100:8, 103:8, 103:9, 

103:14

23rd [1] - 45:22

24 [8] - 1:10, 5:2, 

47:25, 53:24, 

103:20, 104:5, 

106:1, 134:7

24th [4] - 48:16, 50:6, 

50:19, 160:10

25 [6] - 77:14, 105:23, 

106:1, 106:5, 106:9, 

129:17

26 [2] - 106:15, 106:23

27 [8] - 57:18, 58:5, 

59:9, 107:15, 108:7, 

129:10, 151:6, 

151:11

27th [3] - 44:7, 44:22, 

57:13

28 [14] - 1:23, 2:4, 

26:24, 40:4, 40:5, 

78:3, 109:4, 109:17, 

111:22, 112:1, 

112:7, 112:13, 

112:23, 136:15

28th [5] - 60:25, 63:9, 

63:16, 64:5, 66:12

29 [1] - 2:5

29th [11] - 13:16, 62:5, 

64:9, 66:9, 66:13, 

66:25, 67:1, 67:22, 

85:3, 126:19

3

3 [17] - 5:16, 5:24, 8:1, 

14:20, 42:21, 44:4, 

44:5, 44:11, 45:4, 

45:7, 45:9, 45:12, 

45:15, 45:24, 46:8, 

46:11, 67:14

3,000 [1] - 85:11

3-21-06 [1] - 41:8

3/24/06 [1] - 55:16

3/28/06 [1] - 65:1

3/29/06 [3] - 65:2, 

70:8, 71:6

30 [2] - 26:24, 93:10

30,000 [1] - 165:17

31st [5] - 69:15, 70:7, 

United States District Court

Camden, New Jersey

173

71:2, 73:22, 74:10

34 [7] - 52:21, 52:25, 

53:12, 54:17, 54:23, 

55:21, 57:5

394 [2] - 59:25, 60:19

3:17 [2] - 152:23, 

152:24

3:25 [1] - 151:18

3:32 [1] - 153:1

3rd [5] - 75:13, 75:25, 

80:1, 102:6, 102:12

4

4 [10] - 14:21, 44:4, 

44:5, 44:11, 45:18, 

46:2, 46:5, 46:20, 

47:10, 168:18

4-12-06 [1] - 127:16

4/12/06 [4] - 84:10, 

84:19, 86:24, 88:20

4/14/06 [2] - 85:18, 

89:21

4/3/06 [2] - 59:11, 

59:20

4/3/2006 [1] - 59:7

4/4/06 [3] - 76:15, 

81:8, 81:10

40 [6] - 3:6, 100:16, 

101:3, 101:8, 

102:11, 103:12

422 [1] - 60:20

43 [1] - 3:7

46 [2] - 3:8, 3:9

478 [1] - 60:15

48 [3] - 3:10, 109:17, 

123:14

484 [1] - 85:23

49 [3] - 3:11, 109:17, 

113:1

4:00 [1] - 67:4

4:03 [1] - 170:2

4:04 [1] - 171:1

4:07 [1] - 172:16

4:30 [1] - 151:10

4TH [1] - 1:9

4th [2] - 83:11, 83:13

5

5 [9] - 14:12, 47:19, 

48:7, 48:9, 48:15, 

49:1, 49:6, 49:8, 

49:23

5,000 [5] - 50:23, 52:2, 

52:8, 52:10, 61:23

5-12-06 [1] - 95:7

50 [7] - 3:12, 110:22, 

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110:25, 112:8, 

153:19, 157:3, 

171:11

50(a)(1 [1] - 158:14

53 [1] - 3:13

57 [2] - 109:18, 113:1

58 [1] - 3:14

6

6 [6] - 49:5, 49:12, 

49:17, 49:23

6,000 [2] - 50:24, 52:3

61 [1] - 3:16

610 [1] - 85:23

63 [1] - 108:18

64 [1] - 3:17

66 [1] - 3:18

7

7 [8] - 50:2, 50:13, 

54:11, 54:12, 55:19, 

57:4, 122:16, 124:2

70 [1] - 3:19

72 [2] - 137:6, 137:11

74 [1] - 3:20

75 [1] - 3:21

753 [1] - 1:23

8

8 [6] - 57:6, 57:19, 

57:23, 117:13, 

139:19, 151:10

800 [1] - 108:22

83 [1] - 3:22

84 [1] - 3:23

87 [1] - 3:24

88 [1] - 3:25

8:30 [1] - 70:14

8:50 [1] - 95:8

9

9 [8] - 57:17, 57:23, 

60:2, 60:3, 60:6, 

117:13, 139:18, 

140:8

91 [1] - 4:1

92 [1] - 4:2

94 [1] - 4:3

99 [1] - 4:4

9:15 [1] - 170:20

9:30 [2] - 169:14, 

170:21

9:46 [1] - 5:2

9:54 [1] - 8:10

A

a.m [10] - 5:2, 8:10, 

56:17, 56:18, 70:14, 

84:10, 84:19, 95:8, 

151:16, 151:18

abide [2] - 162:13, 

166:22

ability [1] - 96:7

abjectly [1] - 154:23

able [5] - 19:21, 22:19, 

129:6, 153:5, 172:8

aboard [1] - 58:6

absolute [1] - 77:22

absolutely [2] - 7:20, 

162:5

absolution [1] - 164:6

absolve [1] - 162:10

accept [4] - 10:17, 

58:8, 112:10, 166:24

acceptable [2] - 

153:9, 153:20

accommodate [1] - 

111:7

accompanied [2] - 

88:10, 104:2

accompanying [1] - 

100:6

accord [1] - 30:10

accordance [3] - 63:9, 

160:22, 161:2

account [5] - 24:9, 

32:2, 64:11, 65:22, 

76:8

accountant [1] - 82:3

accounting [2] - 62:1, 

115:7

accurate [15] - 40:15, 

43:7, 48:4, 50:9, 

53:8, 53:25, 57:11, 

61:3, 63:21, 73:16, 

73:25, 87:1, 88:9, 

94:12, 155:3

acknowledge [1] - 

162:1

acquiescence [1] - 

111:4

acquiescing [1] - 

111:10

Act [3] - 13:7, 13:21, 

21:25

acted [3] - 14:25, 16:2, 

157:18

acting [4] - 5:20, 

14:11, 15:16, 23:14

actions [2] - 22:17, 

22:19

active [2] - 15:23, 

154:12

activities [3] - 16:3, 

132:11, 134:12

acts [2] - 114:20, 

116:10

actual [5] - 49:13, 

68:4, 83:6, 102:4, 

121:6

Ad [1] - 46:21

ad [53] - 25:20, 25:23, 

37:23, 37:25, 38:4, 

41:12, 41:13, 41:15, 

41:21, 41:23, 41:24, 

42:3, 42:9, 42:20, 

46:23, 47:6, 47:8, 

48:18, 50:21, 51:6, 

51:7, 51:10, 51:17, 

54:2, 54:5, 54:6, 

54:7, 54:13, 54:15, 

54:18, 54:20, 54:24, 

55:2, 55:12, 55:19, 

70:8, 71:6, 71:7, 

75:6, 85:1, 87:16, 

87:17, 87:18, 87:21, 

87:24, 100:5, 120:5, 

120:7, 121:12, 

121:23, 136:11, 

140:1

add [5] - 6:8, 48:18, 

48:23, 61:24, 147:7

added [2] - 57:15, 

62:19

adding [2] - 85:4, 85:8

additional [16] - 41:14, 

42:2, 50:24, 50:25, 

52:3, 61:22, 62:15, 

62:19, 62:20, 72:4, 

98:23, 104:23, 

105:5, 145:12, 

158:17, 163:21

additions [1] - 54:3

address [2] - 94:3, 

128:24

addressed [2] - 116:6, 

116:9

adjourn [1] - 171:4

admission [27] - 

40:18, 43:10, 46:1, 

46:11, 48:6, 49:16, 

50:12, 53:11, 57:22, 

61:9, 63:23, 66:20, 

69:25, 73:12, 74:2, 

75:18, 82:22, 84:3, 

87:4, 88:12, 90:22, 

94:14, 101:8, 106:8, 

108:7, 112:15, 

154:23

admit [4] - 91:6, 

155:24, 156:10, 

156:14

admitted [6] - 154:14, 

155:4, 157:12, 

158:23, 159:9, 

164:23

ads [4] - 46:22, 92:20, 

125:20, 157:21

advertise [4] - 65:9, 

65:11, 65:13, 109:13

advertised [3] - 14:10, 

21:18, 32:15

advertisement [18] - 

13:22, 14:9, 14:10, 

25:1, 33:18, 36:11, 

36:17, 37:21, 38:1, 

38:11, 42:19, 42:21, 

65:8, 68:4, 68:9, 

100:3, 117:21, 

139:22

advertisements [13] - 

7:19, 13:4, 13:6, 

13:23, 14:3, 14:4, 

14:19, 15:4, 16:4, 

16:10, 20:25, 22:2, 

123:23

advertising [20] - 

20:25, 24:10, 24:15, 

25:21, 32:7, 32:13, 

33:5, 33:13, 33:20, 

35:1, 39:11, 54:8, 

109:12, 114:21, 

114:24, 117:19, 

118:15, 139:21, 

146:25, 161:1

advisement [1] - 

161:24

affect [1] - 113:10

affected [1] - 52:9

affirmed [1] - 160:21

afternoon [8] - 62:4, 

62:25, 64:10, 65:20, 

93:17, 93:22, 

152:20, 171:8

agency [2] - 162:7, 

162:9

agent [6] - 162:9, 

162:11, 162:14, 

162:18, 168:6

agent's [2] - 162:12, 

162:15

ago [16] - 23:25, 

30:20, 36:13, 42:14, 

64:25, 72:10, 79:4, 

103:8, 113:20, 

120:11, 121:12, 

134:3, 139:11, 

140:15, 144:13, 

158:11

agree [9] - 8:21, 9:3, 

59:17, 78:15, 

United States District Court

Camden, New Jersey

174

124:17, 147:24, 

148:2, 160:6, 168:4

agreed [3] - 58:12, 

97:19, 141:25

agreeing [1] - 78:17

agreement [1] - 

171:23

ahead [3] - 26:5, 56:4, 

78:23

aid [1] - 19:4

al [1] - 1:6

alerting [1] - 142:6

allegation [1] - 160:19

alleged [2] - 158:22, 

159:13

Allentown [1] - 86:2

allow [1] - 168:25

allowed [2] - 95:24, 

124:12

almost [3] - 78:12, 

163:25, 167:22

alone [2] - 8:18, 

142:15

amendment [1] - 

169:2

amnesia [1] - 158:5

amount [9] - 22:8, 

64:11, 76:8, 78:11, 

78:13, 81:14, 97:3, 

97:21, 102:25

analyzing [1] - 18:11

AND [3] - 1:9, 3:14, 

58:3

annoyance [1] - 

132:21

annoyed [5] - 67:9, 

127:4, 127:7, 131:3, 

132:19

answer [17] - 9:16, 

52:14, 55:11, 89:3, 

89:17, 104:13, 

117:14, 117:20, 

119:13, 121:20, 

123:11, 123:12, 

123:20, 128:25, 

129:3, 140:15, 150:8

Answer [7] - 119:19, 

121:25, 122:2, 

123:19, 139:22, 

140:2, 140:11

answered [7] - 11:17, 

11:18, 19:7, 31:9, 

116:1, 149:19, 150:3

answering [1] - 123:4

answers [2] - 79:9, 

120:24

antagonisms [1] - 

30:12

anticipate [6] - 21:2, 

21:3, 21:4, 21:7, 

Case 1:11-cv-02658-JBS-KMW Document 246 Filed 06/24/16 Page 174 of 195 PageID: 9208
25:19, 170:21

apologize [4] - 21:4, 

23:1, 81:24, 137:14

apparent [1] - 105:15

appear [1] - 49:5

appearance [1] - 

10:23

appeasement [1] - 

111:3

Apple [1] - 83:12

applicable [5] - 5:14, 

5:17, 5:22, 7:13, 

12:23

applies [1] - 162:19

apply [4] - 8:19, 12:18, 

35:15, 35:16

appreciate [10] - 

27:25, 44:5, 44:20, 

113:13, 142:23, 

144:10, 146:12, 

166:3, 166:10, 

167:25

approach [2] - 110:19, 

139:15

approached [1] - 

33:12

approaching [1] - 

55:5

appropriate [2] - 

18:23, 77:24

approval [18] - 26:5, 

26:17, 34:23, 39:14, 

51:14, 54:6, 55:3, 

55:6, 55:20, 56:2, 

63:10, 68:16, 89:12, 

98:7, 105:20, 149:2, 

156:17, 156:21

approve [6] - 39:8, 

44:5, 44:11, 44:16, 

55:2, 157:23

approved [14] - 23:21, 

26:10, 44:13, 50:20, 

51:6, 51:7, 51:17, 

54:7, 55:20, 75:6, 

100:5, 147:3, 157:24

approving [2] - 25:23, 

38:3

approximate [1] - 22:8

APRIL [17] - 2:4, 2:5, 

2:6, 2:8, 2:10, 2:12, 

2:14, 2:15, 28:19, 

28:24, 29:15, 

101:15, 102:2, 

109:23, 113:18, 

138:14, 149:8

April [35] - 21:12, 

21:16, 23:14, 28:12, 

28:24, 29:17, 30:3, 

32:13, 41:5, 41:16, 

43:24, 47:2, 50:19, 

65:9, 67:10, 75:13, 

75:25, 79:25, 83:11, 

83:13, 83:21, 88:6, 

88:20, 90:15, 96:8, 

96:25, 102:6, 

102:12, 107:20, 

109:1, 110:15, 

114:18, 130:5, 

145:4, 155:7

area [22] - 35:18, 

35:23, 52:9, 59:25, 

78:25, 79:12, 85:3, 

85:23, 85:24, 87:13, 

94:21, 95:8, 95:10, 

97:2, 97:16, 104:17, 

104:19, 104:22, 

105:5, 106:4, 

118:11, 123:18

areas [10] - 70:18, 

71:19, 76:6, 81:2, 

85:4, 85:8, 86:2, 

97:5, 115:4

argument [11] - 7:1, 

19:10, 145:13, 

155:13, 161:25, 

163:17, 166:4, 

166:11, 166:19

argumentative [1] - 

145:18

arguments [3] - 9:7, 

19:18, 171:7

arisen [1] - 168:23

arrangements [1] - 

54:8

arrived [1] - 5:6

arrow [1] - 63:5

AS [2] - 110:21, 

145:16

ASAP [2] - 44:6, 44:20

aside [3] - 20:7, 101:2, 

164:18

aspect [3] - 17:19, 

156:25, 167:17

aspects [1] - 165:21

assembly [1] - 93:2

asserted [1] - 155:3

assign [1] - 70:10

assigned [1] - 32:5

associated [2] - 

35:20, 163:16

ASSOCIATES [1] - 1:5

Associates [62] - 5:19, 

13:2, 13:13, 13:19, 

14:22, 14:25, 21:19, 

21:22, 22:4, 22:8, 

22:10, 23:13, 24:5, 

24:9, 24:12, 24:24, 

27:13, 29:21, 29:24, 

30:4, 30:9, 31:5, 

31:20, 32:15, 34:21, 

35:6, 35:18, 36:11, 

38:20, 42:16, 44:13, 

52:6, 52:12, 53:21, 

57:12, 64:16, 65:14, 

65:17, 67:21, 68:8, 

69:19, 72:11, 81:13, 

82:5, 82:17, 82:18, 

83:8, 89:11, 92:4, 

92:15, 95:17, 98:5, 

102:5, 106:18, 

113:5, 114:17, 

141:1, 142:25, 

144:18, 145:3, 

148:13, 156:16

Associates' [5] - 21:1, 

25:22, 32:1, 38:12, 

39:11

assume [5] - 7:17, 

43:18, 45:2, 45:5, 

60:4

assuming [2] - 68:11, 

168:4

asterisk [1] - 63:5

asterisks [2] - 89:23, 

130:8

attached [26] - 38:7, 

41:11, 43:6, 44:4, 

45:4, 47:1, 50:9, 

50:20, 51:5, 51:17, 

54:17, 55:19, 67:7, 

69:23, 70:9, 87:2, 

98:16, 98:17, 99:22, 

104:19, 106:3, 

106:5, 107:19, 

107:22, 107:23, 

136:18

attachment [15] - 

47:11, 48:3, 63:19, 

64:15, 67:24, 73:24, 

75:3, 75:15, 75:16, 

87:1, 88:9, 88:10, 

90:7, 108:23, 130:23

attachments [9] - 

66:15, 66:16, 66:17, 

99:2, 108:19, 131:5, 

131:7, 133:8

attempt [1] - 170:16

attempted [1] - 145:20

attempting [1] - 

155:14

attendance [2] - 

17:16, 17:18

attention [14] - 16:19, 

24:14, 29:7, 33:5, 

41:4, 46:19, 48:14, 

50:1, 77:9, 139:10, 

140:12, 140:17, 

169:8, 170:18

attorney [1] - 77:4

attorneys [9] - 8:7, 

12:24, 17:7, 18:22, 

19:16, 19:17, 

138:23, 150:25, 

151:25

attributable [3] - 

159:4, 159:5, 169:1

August [1] - 95:21

authenticate [3] - 

111:1, 111:5, 112:9

authenticated [1] - 

111:2

authority [13] - 23:17, 

24:6, 24:7, 24:8, 

31:20, 31:23, 32:6, 

34:20, 55:2, 64:19, 

82:6, 162:21, 164:18

authorization [12] - 

14:21, 23:6, 26:17, 

89:12, 145:11, 

155:16, 156:21, 

159:14, 164:5, 

168:5, 168:8, 168:14

authorize [12] - 64:10, 

65:22, 66:1, 76:7, 

82:7, 90:10, 97:21, 

163:5, 163:6, 

163:11, 163:13

authorized [15] - 15:4, 

15:21, 22:18, 23:4, 

23:21, 27:11, 64:22, 

97:24, 100:14, 

135:12, 157:22, 

161:6, 162:25, 

163:20, 167:18

authorizing [3] - 66:2, 

145:7, 163:15

Auto [4] - 12:3, 13:4, 

13:11, 20:21

AUTO [1] - 1:2

available [3] - 13:17, 

48:23, 151:4

available' [1] - 48:18

await [3] - 41:13, 42:2, 

47:1

awake [1] - 77:21

awards [1] - 13:24

aware [17] - 17:5, 

25:15, 39:5, 41:17, 

69:1, 69:4, 69:10, 

71:4, 86:15, 86:20, 

88:24, 89:7, 108:15, 

108:24, 117:18, 

132:10, 139:20

awhile [1] - 120:12

B

B2B [89] - 13:3, 21:13, 

23:18, 24:11, 24:15, 

United States District Court

Camden, New Jersey

175

24:17, 24:19, 25:10, 

25:12, 25:14, 25:16, 

25:17, 25:21, 26:4, 

26:8, 26:11, 26:13, 

26:16, 27:1, 33:8, 

33:13, 34:2, 34:9, 

34:22, 37:3, 37:9, 

37:11, 37:17, 37:21, 

37:23, 38:21, 39:2, 

39:10, 39:12, 39:17, 

40:12, 42:12, 42:22, 

43:4, 45:21, 47:3, 

47:12, 47:25, 50:5, 

51:25, 52:10, 53:19, 

53:22, 56:4, 63:16, 

66:9, 66:25, 68:4, 

68:9, 69:14, 70:6, 

88:6, 94:7, 105:16, 

107:7, 107:20, 

116:9, 118:24, 

122:11, 125:21, 

125:23, 131:1, 

132:11, 134:23, 

137:20, 139:12, 

141:3, 141:7, 142:7, 

142:14, 142:17, 

142:19, 142:25, 

143:18, 144:3, 

145:5, 148:22, 

156:19, 159:3, 

160:23, 163:22

B2B's [1] - 51:13

balance [1] - 12:12

ball [1] - 139:13

bank [1] - 32:1

Bank [1] - 83:12

base [1] - 25:9

based [7] - 16:4, 38:6, 

39:3, 64:25, 101:8, 

114:10, 143:17

basic [2] - 31:9, 77:15

basing [1] - 52:13

basis [7] - 6:6, 120:13, 

154:8, 154:9, 155:8, 

155:14, 158:2

batch [2] - 165:4, 

165:6

Bates [10] - 108:18, 

109:6, 109:17, 

109:24, 110:22, 

110:25, 112:8, 

113:1, 137:6, 137:15

Bates-stamped [1] - 

113:1

bear [3] - 10:20, 28:8, 

78:2

bearing [1] - 42:6

bears [1] - 27:16

become [6] - 117:18, 

132:2, 132:10, 

Case 1:11-cv-02658-JBS-KMW Document 246 Filed 06/24/16 Page 175 of 195 PageID: 9209
132:13, 139:20

becomes [1] - 29:5

becoming [1] - 145:13

begin [4] - 5:15, 19:8, 

28:10, 58:15

beginning [3] - 

123:10, 123:11, 

138:17

begins [1] - 117:13

behalf [25] - 5:20, 

13:4, 14:8, 14:11, 

14:25, 15:16, 16:2, 

20:16, 20:22, 20:23, 

22:25, 23:1, 24:8, 

25:18, 27:24, 36:11, 

37:17, 37:18, 37:19, 

65:16, 68:4, 135:6, 

142:25, 155:9, 170:6

belief [2] - 134:23, 

160:1

bell [1] - 34:6

below [8] - 58:22, 

59:5, 67:7, 84:17, 

85:21, 86:3, 117:14, 

125:9

best [6] - 18:10, 35:1, 

77:25, 79:13, 111:8, 

167:10

better [4] - 20:3, 47:8, 

79:14, 153:24

between [9] - 49:23, 

52:8, 73:2, 73:7, 

87:11, 87:12, 90:19, 

91:17, 106:1

beyond [6] - 10:1, 

12:17, 21:10, 156:7, 

162:12, 162:21

Bible [1] - 28:18

big [2] - 39:24, 134:24

bigger [1] - 161:19

biggest [1] - 163:16

bill [1] - 62:1

bind [2] - 24:7, 31:23

binder [3] - 29:5, 

39:25, 47:20

bit [3] - 42:14, 119:19, 

170:5

blah [3] - 77:6

blah-blah-blah [1] - 

77:6

Blast [1] - 46:21

blast [10] - 76:1, 85:1, 

88:21, 90:17, 92:18, 

97:2, 97:12, 100:9, 

100:11, 106:20

blasts [3] - 21:15, 

21:16, 101:4

blitz [6] - 70:8, 70:24, 

70:25, 74:11, 76:6, 

81:3

BOCK [1] - 1:13

boils [1] - 5:22

bold [5] - 127:22, 

127:24, 130:9, 

132:17

bolstered [1] - 155:2

book [1] - 151:6

boring [2] - 27:8, 

77:20

bothered [2] - 67:8, 

127:3

bottom [23] - 52:24, 

54:22, 55:20, 62:24, 

68:7, 68:12, 71:23, 

72:2, 74:22, 76:14, 

81:7, 83:14, 89:20, 

89:23, 95:10, 95:12, 

105:3, 125:1, 

125:15, 127:18, 

130:8, 137:16

bounds [1] - 154:24

break [6] - 20:7, 56:7, 

59:18, 152:17, 

152:20, 170:5

breaks [1] - 20:6

brief [11] - 5:7, 5:8, 

5:12, 12:22, 15:9, 

28:2, 161:20, 

164:14, 164:16, 

166:9, 167:3

briefed [2] - 163:8, 

167:2

briefing [3] - 166:5, 

167:8, 168:15

briefly [4] - 73:19, 

138:13, 164:15, 

168:14

bring [13] - 6:21, 

10:21, 16:19, 28:14, 

29:7, 56:22, 77:9, 

93:19, 147:17, 

153:9, 169:7, 169:9, 

169:15

bringing [1] - 153:16

broadcast [72] - 

21:15, 21:16, 21:17, 

21:18, 35:1, 38:8, 

38:11, 38:13, 38:15, 

39:16, 39:19, 56:3, 

65:2, 65:4, 66:12, 

67:22, 69:17, 71:7, 

81:9, 81:14, 85:15, 

85:18, 86:14, 87:19, 

87:22, 87:25, 88:7, 

92:5, 97:13, 97:15, 

97:16, 97:22, 98:1, 

98:14, 100:6, 

100:12, 100:24, 

108:4, 108:15, 

109:2, 126:15, 

133:22, 134:12, 

143:6, 143:10, 

143:12, 143:19, 

143:24, 143:25, 

144:2, 144:5, 145:6, 

158:21, 160:10, 

160:12, 160:14, 

161:1, 161:5, 

161:11, 161:12, 

161:15, 161:24, 

162:4, 163:5, 163:7, 

163:10, 163:11, 

163:14, 163:21, 

164:7, 165:24, 166:7

broadcaster [7] - 

23:18, 25:10, 25:21, 

37:21, 121:24, 

162:3, 163:11

broadcasting [10] - 

23:3, 23:12, 24:12, 

24:14, 39:11, 82:20, 

114:16, 114:18, 

114:20, 156:19

broadcasts [34] - 

21:23, 21:24, 22:4, 

22:6, 22:25, 23:4, 

24:1, 24:18, 25:4, 

25:24, 26:1, 26:2, 

26:3, 26:14, 27:2, 

27:11, 35:16, 35:20, 

36:4, 37:3, 38:17, 

38:21, 39:22, 56:1, 

64:25, 107:6, 

134:13, 141:7, 

141:11, 141:22, 

143:17, 148:21, 

148:23, 162:3

brought [6] - 24:13, 

139:13, 140:12, 

140:16, 144:15, 

158:13

burden [4] - 12:2, 

12:4, 12:14, 164:21

Burlington [1] - 83:15

burn [2] - 164:1, 164:3

burns [1] - 164:2

Business [20] - 13:2, 

13:3, 21:12, 21:13, 

24:11, 33:7, 33:8, 

39:2, 64:17, 83:5, 

92:4, 92:15, 101:4, 

101:5

business [11] - 13:14, 

50:25, 52:15, 54:3, 

68:17, 82:18, 83:13, 

109:14, 117:22, 

139:24, 150:14

businesses [4] - 

50:22, 51:20, 

104:20, 123:17

but.. [2] - 131:19, 

150:6

BY [74] - 1:14, 1:16, 

2:5, 2:6, 2:9, 2:10, 

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

29:15, 36:9, 37:1, 

41:3, 43:23, 46:18, 

48:13, 49:21, 50:18, 

53:17, 57:3, 58:4, 

59:19, 61:14, 64:4, 

66:24, 70:5, 73:6, 

73:20, 74:7, 75:24, 

79:24, 81:20, 82:1, 

83:2, 84:7, 84:15, 

87:9, 88:19, 89:6, 

89:19, 91:10, 92:13, 

94:1, 94:20, 99:9, 

101:15, 102:2, 

104:10, 105:13, 

106:14, 107:4, 

108:12, 109:23, 

110:5, 113:3, 

113:18, 117:4, 

117:12, 118:3, 

119:11, 121:18, 

123:16, 129:9, 

135:21, 136:9, 

137:18, 138:14, 

139:17, 141:21, 

143:15, 144:11, 

148:11, 149:8, 150:9

C

C-L-E-M-M-E-R [1] - 

28:25

CAMDEN [1] - 1:9

Camden [1] - 83:16

campaign [20] - 41:15, 

42:3, 54:8, 58:7, 

58:23, 59:5, 64:7, 

70:18, 71:20, 76:5, 

80:22, 88:23, 89:24, 

130:16, 146:25, 

147:1, 157:19, 

158:21, 158:24, 

160:21

candidly [2] - 162:1, 

164:8

cannot [3] - 154:10, 

164:20, 164:21

capacity [2] - 24:5, 

31:19

capitalization [1] - 

142:13

capitals [3] - 127:22, 

127:24, 130:9

caption [1] - 84:23

care [1] - 31:10

cares [1] - 77:10

United States District Court

Camden, New Jersey

176

carried [2] - 136:11, 

136:13

carry [1] - 159:3

case [69] - 5:14, 5:16, 

7:6, 7:10, 8:8, 10:5, 

10:13, 10:19, 11:4, 

11:10, 11:12, 11:25, 

12:3, 12:5, 12:18, 

12:23, 12:25, 13:4, 

13:10, 14:11, 14:15, 

15:7, 15:11, 16:13, 

16:15, 16:16, 16:18, 

16:21, 16:24, 17:3, 

17:4, 17:7, 17:11, 

17:14, 17:19, 17:23, 

18:9, 18:12, 19:11, 

21:20, 22:9, 27:10, 

29:4, 30:19, 32:12, 

111:21, 113:19, 

114:21, 121:7, 

138:23, 153:8, 

155:7, 155:8, 157:4, 

158:16, 158:22, 

159:7, 162:12, 

162:20, 163:12, 

163:17, 164:10, 

165:19, 170:12, 

170:13, 170:15, 

170:17, 172:9, 

172:10

cases [3] - 162:2, 

167:9, 168:17

cashing [1] - 82:15

category [1] - 148:23

caused [1] - 14:1

caveat [1] - 65:23

ceases [1] - 156:11

cell [1] - 16:25

central [1] - 23:13

certain [16] - 9:5, 

11:21, 13:23, 14:15, 

15:17, 22:15, 35:18, 

38:13, 78:11, 78:12, 

111:12, 126:14, 

144:21, 157:13, 

157:15

certainly [4] - 19:5, 

36:8, 43:22, 158:4

certainty [1] - 157:11

Certified [1] - 1:23

certified [1] - 13:10

cetera [2] - 42:11, 

145:14

challenged [1] - 

155:18

change [5] - 31:3, 

46:25, 48:19, 48:24, 

145:19

changed [1] - 144:6

changes [3] - 47:1, 

Case 1:11-cv-02658-JBS-KMW Document 246 Filed 06/24/16 Page 176 of 195 PageID: 9210
54:4, 162:7

charge [6] - 61:20, 

104:23, 105:5, 

132:14, 171:17, 

172:1

charged [2] - 114:21, 

132:4

charges [1] - 172:13

chastised [1] - 111:6

chat [1] - 16:25

check [49] - 26:3, 

26:6, 26:7, 26:9, 

26:11, 33:23, 38:22, 

38:24, 38:25, 39:2, 

39:4, 58:8, 58:10, 

63:6, 64:6, 64:11, 

64:16, 64:19, 64:22, 

70:10, 71:10, 71:11, 

76:4, 76:8, 80:17, 

80:24, 81:13, 81:16, 

81:21, 82:2, 82:7, 

82:15, 83:6, 83:7, 

83:8, 83:12, 88:22, 

90:9, 92:18, 97:3, 

97:21, 102:5, 

102:10, 102:25, 

103:3, 103:14, 

159:24

checked [1] - 35:11

checking [1] - 24:9

checks [2] - 125:22, 

125:23

chosen [2] - 35:22

Christine [1] - 41:5

circled [3] - 54:20, 

55:8, 63:3

circumstances [5] - 

15:17, 22:15, 146:5, 

155:7, 167:21

circumstantial [4] - 

10:8, 10:9, 10:14, 

160:15

cite [1] - 162:20

City [5] - 12:3, 13:4, 

13:11, 15:10, 20:21

CITY [1] - 1:2

civil [2] - 12:3, 12:18

claim [6] - 13:25, 

154:12, 154:25, 

159:17, 166:12, 

166:21

claims [2] - 12:8, 13:5

clarification [2] - 6:18, 

98:22

clarified [1] - 98:24

clarifies [1] - 5:21

clarify [2] - 124:12, 

129:6

clarifying [4] - 18:16, 

19:4, 150:21, 150:24

class [16] - 8:2, 8:3, 

8:4, 12:4, 13:10, 

13:11, 13:12, 13:20, 

16:6, 16:8, 19:13, 

20:17, 20:23, 

138:23, 170:7

clear [8] - 6:10, 24:1, 

71:2, 122:10, 

141:19, 150:10, 

161:11, 165:22

CLEMMER [16] - 2:4, 

2:5, 2:6, 2:9, 2:10, 

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

28:19, 29:15, 

101:15, 102:2, 

109:23, 113:18, 

138:14, 149:8

Clemmer [32] - 23:15, 

23:24, 24:13, 25:3, 

25:9, 25:13, 26:25, 

27:3, 28:12, 28:13, 

28:14, 28:24, 29:6, 

29:17, 29:18, 39:24, 

41:5, 43:24, 46:19, 

50:19, 57:4, 65:9, 

67:10, 88:20, 96:25, 

98:9, 113:4, 113:19, 

129:2, 152:4, 152:7, 

155:7

Clemmer's [4] - 27:9, 

29:4, 93:24, 161:13

CLERK [15] - 5:1, 8:9, 

28:17, 28:21, 29:1, 

56:13, 56:19, 56:23, 

93:5, 93:15, 93:20, 

152:22, 152:25, 

170:1, 170:25

clerk [4] - 17:17, 

17:24, 18:21, 153:3

client [5] - 51:10, 

54:13, 54:15, 54:20, 

70:9

clients [1] - 9:10

clock [1] - 167:22

close [3] - 13:19, 

153:7, 167:23

closing [4] - 19:18, 

161:25, 166:23, 

171:7

closings [1] - 7:14

Club [10] - 60:10, 

61:16, 61:21, 61:22, 

62:12, 62:13, 64:7, 

70:17, 85:11, 97:4

club [4] - 58:21, 58:24, 

59:2, 60:7

CMECF [1] - 6:20

co [1] - 20:20

co-counsel [1] - 20:20

code [7] - 52:9, 72:14, 

87:13, 125:16, 

141:2, 141:5, 141:8

codes [44] - 35:19, 

35:22, 36:13, 36:16, 

37:2, 50:21, 50:22, 

51:1, 51:20, 51:21, 

51:23, 51:25, 52:16, 

54:12, 61:24, 61:25, 

62:19, 62:20, 72:2, 

72:4, 76:6, 81:3, 

85:23, 85:24, 97:6, 

97:7, 106:6, 122:23, 

123:1, 123:18, 

124:1, 125:9, 

125:12, 140:22, 

140:23, 141:10, 

141:18, 160:4, 

160:5, 160:8, 160:10

COHEN [173] - 1:14, 

2:5, 2:9, 2:14, 5:25, 

6:4, 6:22, 7:16, 7:24, 

20:12, 20:18, 28:12, 

29:3, 29:11, 29:14, 

29:15, 36:8, 36:9, 

37:1, 40:18, 40:25, 

41:2, 41:3, 43:10, 

43:16, 43:18, 43:22, 

43:23, 46:1, 46:10, 

46:17, 46:18, 48:6, 

48:11, 48:13, 49:16, 

49:21, 50:12, 50:18, 

53:11, 53:17, 56:8, 

56:21, 57:2, 57:3, 

57:22, 58:4, 59:19, 

61:9, 61:14, 63:23, 

64:4, 66:19, 66:24, 

69:25, 70:5, 73:4, 

73:6, 73:12, 73:20, 

74:2, 74:7, 75:18, 

75:24, 77:14, 78:8, 

79:14, 79:23, 79:24, 

81:20, 81:24, 82:1, 

82:22, 83:2, 84:2, 

84:7, 84:12, 84:15, 

87:4, 87:9, 88:12, 

88:19, 89:6, 89:19, 

90:22, 91:1, 91:8, 

91:10, 92:7, 92:13, 

92:23, 93:8, 93:18, 

93:25, 94:1, 94:14, 

94:20, 98:19, 98:24, 

99:9, 101:7, 102:1, 

102:3, 104:4, 

104:10, 105:11, 

105:13, 106:8, 

106:14, 106:22, 

107:4, 108:6, 

108:12, 109:16, 

110:3, 110:19, 

110:23, 111:16, 

111:20, 112:18, 

113:3, 113:13, 

121:13, 123:13, 

128:22, 135:20, 

135:24, 137:12, 

138:13, 138:14, 

139:15, 139:17, 

141:19, 141:21, 

143:7, 143:13, 

143:15, 144:10, 

144:11, 146:12, 

146:18, 147:15, 

148:2, 148:10, 

148:11, 149:6, 

150:4, 150:19, 

152:2, 152:11, 

152:19, 153:4, 

153:11, 153:22, 

155:12, 159:20, 

159:23, 161:7, 

161:9, 163:3, 

165:21, 166:10, 

167:5, 167:12, 

167:16, 167:25, 

169:12, 169:16, 

169:23, 169:25, 

170:8, 171:5, 172:14

Cohen [18] - 20:16, 

20:17, 20:19, 27:21, 

28:11, 56:6, 57:1, 

73:18, 77:13, 79:19, 

92:21, 122:25, 

143:12, 149:13, 

150:1, 155:11, 

169:10, 170:6

collateral [1] - 23:8

collectively [1] - 18:10

coming [4] - 23:15, 

114:7, 116:15, 165:6

comment [1] - 47:5

comments [8] - 41:11, 

44:2, 46:22, 48:16, 

50:20, 51:5, 51:16, 

67:6

commercial [2] - 13:1, 

47:14

common [3] - 10:21, 

162:7, 162:19

communicate [8] - 

16:24, 37:9, 37:11, 

37:12, 51:25, 86:12, 

90:5, 133:10

communicated [12] - 

37:3, 37:5, 37:16, 

55:18, 56:3, 69:3, 

80:19, 107:7, 

122:11, 126:13, 

132:25, 142:25

communicating [6] - 

23:17, 23:20, 41:17, 

105:18, 108:2, 

United States District Court

Camden, New Jersey

177

143:18

communication [20] - 

40:11, 43:3, 45:21, 

47:3, 47:24, 62:9, 

63:8, 64:13, 65:1, 

67:25, 80:13, 88:24, 

89:8, 89:10, 92:3, 

105:1, 105:20, 

131:20, 133:7, 

134:22

communications [11]

- 26:13, 26:16, 

39:10, 39:12, 80:10, 

108:13, 126:2, 

132:18, 133:11, 

141:3, 145:5

companies [1] - 20:24

company [43] - 13:1, 

13:2, 20:23, 21:12, 

22:3, 22:7, 22:16, 

22:17, 23:1, 24:5, 

24:7, 24:8, 24:12, 

26:3, 27:13, 27:14, 

27:18, 30:13, 31:21, 

31:23, 32:4, 33:7, 

35:8, 42:11, 47:15, 

65:14, 67:9, 98:4, 

104:20, 105:8, 

113:5, 114:25, 

115:2, 115:21, 

121:23, 127:5, 

129:13, 129:14, 

129:16, 129:20, 

133:23, 140:1, 

140:11

comparative [1] - 74:8

comparing [1] - 11:3

comparison [1] - 

87:10

competent [1] - 157:5

complained [2] - 

159:8, 160:23

complaining [3] - 

86:13, 86:19, 90:4

Complaint [1] - 

160:19

complaints [7] - 

69:20, 71:3, 71:4, 

142:7, 142:8, 

142:18, 143:1

complete [1] - 114:6

completed [1] - 26:7

completely [4] - 

154:22, 154:23, 

155:18, 156:24

completes [1] - 20:9

complying [1] - 54:14

comprise [1] - 110:18

comprising [1] - 40:14

concentrate [1] - 

Case 1:11-cv-02658-JBS-KMW Document 246 Filed 06/24/16 Page 177 of 195 PageID: 9211
19:24

concept [2] - 33:5, 

162:8

concerned [2] - 7:11, 

132:19

concerns [1] - 154:1

conclude [1] - 10:11

concluded [1] - 21:9

conduct [6] - 15:20, 

15:21, 15:24, 16:11, 

23:22, 27:17

conference [1] - 172:1

confidence [1] - 11:5

confirm [2] - 25:19, 

159:3

confirmation [4] - 

49:14, 82:14, 92:17, 

159:10

confirmed [1] - 160:21

confused [1] - 99:5

connected [1] - 17:7

conscious [1] - 

166:18

consent [2] - 14:5, 

14:21

consider [6] - 10:13, 

10:22, 35:5, 79:20, 

154:20, 168:25

consideration [1] - 

34:25

considered [5] - 9:6, 

9:21, 12:7, 31:7, 

159:6

consist [1] - 9:1

consistent [3] - 

140:19, 158:11, 

169:5

consisting [1] - 

112:25

constantly [1] - 29:8

constituted [2] - 14:3, 

14:19

constitutes [1] - 

161:17

Consumer [3] - 13:6, 

13:21, 21:25

contact [5] - 25:12, 

25:17, 67:18, 

119:18, 131:9

contacted [2] - 24:12, 

37:16

contains [1] - 8:1

contemporaneous [1]

- 26:25

content [6] - 38:4, 

74:19, 85:25, 91:18, 

101:3, 104:25

contentious [1] - 

79:12

contents [2] - 73:9, 

80:20

continual [1] - 77:3

continue [5] - 57:1, 

93:17, 93:24, 

146:22, 170:14

CONTINUED [2] - 2:8, 

102:2

continuing [1] - 140:8

contractor [1] - 24:24

contracts [2] - 24:6, 

31:21

contractually [2] - 

24:7, 31:23

contradiction [1] - 

11:1

contradicts [1] - 10:25

contrary [3] - 123:7, 

136:4, 136:6

contrasted [1] - 23:7

control [2] - 15:7, 

15:24

conversation [13] - 

17:8, 64:6, 76:3, 

76:19, 77:18, 80:2, 

80:3, 80:7, 80:16, 

80:17, 88:21, 

133:20, 139:3

conversational [2] - 

77:20, 78:19

conversations [2] - 

79:1, 157:15

convey [1] - 107:12

conveyed [1] - 134:22

COOPER [1] - 1:9

coordinate [1] - 35:9

copied [5] - 137:21, 

138:2, 138:4, 

149:10, 149:12

copies [11] - 11:21, 

18:8, 43:7, 48:4, 

50:9, 53:9, 63:21, 

66:16, 73:25, 

107:24, 150:15

Copy [2] - 99:12, 

99:19

copy [28] - 6:15, 26:5, 

26:7, 26:10, 29:4, 

39:1, 40:15, 57:11, 

61:3, 64:16, 70:8, 

75:6, 81:13, 83:9, 

83:12, 87:1, 87:16, 

88:9, 94:6, 94:12, 

95:7, 96:21, 121:12, 

121:23, 125:22, 

167:15, 169:22, 

171:19

copying [1] - 137:23

core [1] - 160:19

corporate [1] - 15:23

corporation [2] - 

15:13, 15:17

corporation's [1] - 

15:18

Correct [9] - 115:1, 

116:7, 122:13, 

125:10, 126:24, 

129:21, 134:14, 

136:12, 136:14

correct [30] - 1:23, 

45:10, 54:18, 57:16, 

74:12, 74:25, 75:6, 

76:1, 84:13, 97:7, 

104:22, 105:5, 

109:2, 121:8, 

122:15, 123:18, 

123:23, 124:24, 

125:9, 125:21, 

125:22, 131:1, 

133:22, 133:24, 

134:10, 135:11, 

135:14, 138:6, 

153:4, 165:3

corrections [1] - 54:3

correctly [14] - 44:8, 

48:20, 51:3, 54:9, 

58:17, 70:21, 76:16, 

83:16, 85:5, 85:12, 

86:10, 133:22, 

140:3, 140:13

corresponding [2] - 

59:21, 66:11

cost [2] - 24:16, 33:24

counsel [16] - 6:24, 

18:16, 19:14, 20:10, 

20:20, 36:21, 78:17, 

79:9, 111:9, 114:11, 

122:23, 138:18, 

138:19, 145:15, 

155:1, 158:10

Counsel [3] - 1:15, 

1:17, 20:19

counsel's [1] - 78:23

counterevidence [1] - 

7:4

counties [6] - 70:19, 

70:20, 71:20, 74:12, 

76:6, 81:2

Counties [1] - 83:16

couple [2] - 138:15, 

165:21

course [5] - 8:22, 

79:8, 82:17, 150:14, 

172:4

court [3] - 18:23, 

30:16, 56:18

COURT [193] - 1:1, 

5:2, 5:4, 5:11, 6:1, 

6:3, 6:6, 6:9, 6:13, 

6:15, 6:23, 7:20, 

7:25, 8:11, 8:14, 

20:14, 27:21, 28:4, 

28:14, 29:10, 29:13, 

36:2, 36:6, 36:24, 

40:20, 40:22, 41:1, 

43:13, 43:17, 43:20, 

46:3, 46:5, 46:8, 

46:12, 46:14, 48:9, 

49:19, 50:15, 53:14, 

56:6, 56:9, 56:13, 

56:15, 56:19, 56:20, 

56:22, 56:23, 56:25, 

57:24, 58:1, 59:15, 

59:17, 61:12, 64:1, 

66:22, 70:3, 72:22, 

72:24, 73:5, 73:14, 

73:18, 74:5, 75:21, 

77:1, 77:13, 78:5, 

78:9, 78:25, 79:6, 

79:15, 79:17, 81:18, 

81:23, 82:24, 84:5, 

84:14, 87:7, 88:14, 

88:16, 89:2, 89:16, 

91:3, 91:6, 92:10, 

92:21, 92:25, 93:7, 

93:13, 93:16, 93:17, 

93:19, 93:22, 94:17, 

99:1, 99:6, 101:11, 

101:14, 101:24, 

104:7, 105:10, 

105:12, 106:11, 

106:24, 107:1, 

108:9, 109:19, 

109:22, 110:20, 

110:22, 111:8, 

112:10, 112:12, 

112:17, 112:19, 

112:24, 113:15, 

117:3, 117:6, 117:9, 

119:10, 121:17, 

129:2, 136:3, 

137:17, 138:9, 

138:12, 139:16, 

141:20, 143:14, 

144:8, 145:9, 

145:15, 145:17, 

146:17, 146:21, 

147:6, 147:9, 

147:24, 148:3, 

148:7, 149:7, 150:7, 

150:18, 150:20, 

151:8, 151:11, 

151:14, 151:18, 

151:20, 151:23, 

152:3, 152:10, 

152:15, 152:20, 

153:1, 153:2, 153:5, 

153:13, 153:16, 

154:3, 154:8, 

155:11, 157:2, 

158:19, 159:18, 

159:21, 160:2, 

United States District Court

Camden, New Jersey

178

160:8, 161:4, 161:8, 

162:23, 164:12, 

165:3, 165:13, 

165:16, 166:8, 

167:1, 167:10, 

167:14, 167:17, 

168:16, 169:4, 

169:9, 169:13, 

169:19, 169:24, 

170:3, 170:10, 

171:2, 171:9, 

171:13, 171:17, 

172:15

Court [27] - 8:20, 9:4, 

9:20, 19:19, 20:19, 

22:3, 22:7, 22:19, 

22:23, 23:6, 23:7, 

77:23, 93:11, 

146:14, 160:25, 

161:21, 161:22, 

162:20, 162:21, 

166:4, 166:5, 

166:20, 167:5, 

168:1, 168:4, 

168:13, 169:16

Court's [7] - 9:13, 

11:12, 16:19, 

165:25, 166:7, 

166:10, 167:24

courthouse [2] - 17:5, 

167:6

COURTHOUSE [1] - 

1:8

courtroom [8] - 10:4, 

10:6, 10:22, 21:21, 

27:15, 56:14, 56:24, 

169:17

cover [21] - 43:6, 

45:10, 48:14, 50:8, 

61:23, 63:18, 73:24, 

74:17, 75:5, 75:12, 

90:14, 94:6, 99:2, 

99:15, 99:23, 99:24, 

103:23, 104:1, 

107:19, 138:15, 

143:4

covered [3] - 42:14, 

77:18, 143:24

craft [1] - 8:8

create [3] - 26:8, 

26:11, 112:4

created [7] - 27:5, 

40:11, 43:3, 47:8, 

120:9, 121:12

creating [1] - 38:24

creation [2] - 64:22, 

120:4

credibility [8] - 10:18, 

10:20, 10:23, 11:3, 

155:15, 166:16, 

Case 1:11-cv-02658-JBS-KMW Document 246 Filed 06/24/16 Page 178 of 195 PageID: 9212
166:23, 166:25

criminal [1] - 12:16

criticizing [1] - 147:17

CROSS [2] - 2:12, 

113:18

cross [10] - 18:16, 

19:15, 19:17, 99:6, 

113:16, 154:13, 

156:9, 156:23, 

157:13, 158:14

cross-examination

[4] - 113:16, 154:13, 

156:23, 158:14

CROSSEXAMINATION [2] - 

2:12, 113:18

cross-examine [2] - 

19:15, 19:17

cross-examined [1] - 

18:16

crossed [2] - 60:15, 

102:15

CRR [2] - 1:24, 1:25

curious [1] - 151:23

current [1] - 30:7

custom [11] - 145:1, 

146:15, 146:23, 

147:19, 147:22, 

148:1, 148:9, 

148:24, 150:1, 

156:15, 157:8

cut [1] - 45:16

cutoff [2] - 44:25, 

45:13

D

daily [1] - 145:2

damages [2] - 13:24, 

22:12

Dan [1] - 20:19

DANIEL [1] - 1:14

Daniel [1] - 20:16

date [27] - 35:13, 41:8, 

49:10, 50:5, 55:8, 

55:16, 59:20, 59:21, 

59:22, 74:15, 84:19, 

85:18, 89:21, 94:24, 

95:7, 96:17, 101:6, 

102:4, 102:5, 

102:11, 102:13, 

102:18, 103:9, 

103:11, 141:23

dated [17] - 47:25, 

53:24, 59:8, 60:25, 

65:1, 66:9, 69:14, 

79:25, 83:21, 90:15, 

94:7, 98:13, 103:23, 

104:11, 107:20, 

127:16, 130:5

dates [5] - 134:17, 

134:21, 141:10, 

158:25, 159:1

David [85] - 5:18, 13:1, 

13:8, 13:13, 13:19, 

14:22, 14:25, 16:2, 

21:1, 21:19, 21:22, 

22:3, 22:7, 22:10, 

23:13, 24:5, 24:9, 

24:12, 24:23, 25:21, 

27:12, 29:21, 30:3, 

30:9, 31:5, 31:19, 

32:1, 32:14, 34:20, 

35:5, 35:18, 36:11, 

38:11, 38:20, 39:11, 

42:15, 44:12, 47:8, 

52:5, 52:11, 53:21, 

57:12, 64:16, 65:14, 

65:16, 67:21, 68:4, 

68:8, 68:21, 69:19, 

72:11, 81:13, 82:5, 

82:16, 82:18, 83:8, 

89:11, 92:3, 92:15, 

95:16, 98:4, 102:4, 

106:17, 113:4, 

114:17, 114:21, 

117:19, 118:17, 

122:10, 129:13, 

135:13, 139:21, 

141:1, 142:7, 142:8, 

142:18, 142:25, 

144:18, 145:2, 

148:13, 149:10, 

151:9, 155:10, 

156:15, 166:1

DAVID [1] - 1:5

day-to-day [1] - 

148:12

days [6] - 26:15, 

43:25, 69:17, 69:19, 

71:3, 83:13

dealing [3] - 147:16, 

155:20, 156:3

debit [3] - 64:10, 

65:22, 76:8

decide [5] - 10:5, 

10:15, 69:7, 105:15, 

168:1

decided [23] - 36:16, 

38:1, 38:14, 38:18, 

47:17, 48:17, 48:22, 

48:23, 52:4, 65:6, 

81:9, 85:7, 85:14, 

85:18, 87:24, 89:21, 

98:1, 100:5, 119:3, 

120:19, 141:24, 

141:25, 163:13

deciding [2] - 52:8, 

165:20

decision [29] - 15:8, 

25:23, 34:21, 37:7, 

38:3, 47:7, 52:13, 

55:6, 62:12, 65:19, 

65:20, 70:24, 71:7, 

71:14, 71:17, 71:20, 

80:23, 97:12, 97:15, 

105:6, 141:6, 

142:14, 142:15, 

142:17, 142:20, 

142:24, 148:19, 

164:13, 166:18

decision-maker [2] - 

25:23, 38:3

decisions [6] - 23:12, 

62:17, 141:13, 

142:2, 162:6, 164:9

declaration [1] - 

120:14

deem [1] - 11:2

deemed [1] - 12:19

defendant [19] - 

12:12, 12:15, 14:1, 

14:4, 14:7, 14:12, 

19:14, 19:15, 21:7, 

21:20, 23:1, 27:24, 

28:8, 78:20, 111:22, 

155:10, 163:10, 

163:13, 163:17

Defendant [5] - 5:23, 

14:24, 15:3, 16:7, 

16:10

defendant's [1] - 

170:13

Defendants [2] - 1:7, 

1:17

defending [1] - 168:21

defer [1] - 28:6

deficiency [1] - 

168:24

defined [1] - 13:12

definitely [3] - 167:12, 

167:13, 168:11

definition [3] - 8:2, 

8:3, 13:20

deflated [1] - 156:6

degree [1] - 11:5

Delaware [1] - 70:19

deliberate [2] - 16:15, 

19:20

deliberating [1] - 

18:12

deliberations [3] - 

15:8, 17:13, 166:24

demanding [1] - 

128:24

demeanor [1] - 10:23

demonstrate [1] - 

15:3

deny [2] - 157:3, 

158:14

department [5] - 

31:11, 62:2, 114:25, 

115:8, 115:10

departments [1] - 

115:2

depo [1] - 112:8

deposed [3] - 23:24, 

113:19

deposit [2] - 26:12, 

83:12

depositing [1] - 92:18

deposition [17] - 

11:24, 29:4, 30:18, 

38:7, 40:5, 111:1, 

111:2, 111:4, 112:1, 

114:14, 116:23, 

117:14, 119:7, 

119:13, 121:20, 

139:11, 158:10

depositions [2] - 

11:23, 23:24

DEPUTY [15] - 5:1, 

8:9, 28:17, 28:21, 

29:1, 56:13, 56:19, 

56:23, 93:5, 93:15, 

93:20, 152:22, 

152:25, 170:1, 

170:25

deputy [2] - 18:21, 

153:3

describe [1] - 103:18

described [2] - 23:7, 

134:13

describing [2] - 

111:20, 120:23

description [6] - 5:14, 

5:16, 12:22, 28:2, 

62:8, 103:15

designation [1] - 

112:6

desired [1] - 26:1

desk [1] - 171:18

detailed [1] - 15:6

details [4] - 56:2, 

139:5, 141:22, 

157:12

determine [4] - 16:1, 

16:9, 18:22, 129:23

determined [4] - 5:19, 

25:24, 25:25, 26:1

determining [2] - 

10:18, 154:21

develop [1] - 73:18

difference [3] - 49:23, 

105:25, 150:6

differences [10] - 

72:18, 73:1, 73:2, 

73:7, 73:10, 87:12, 

90:19, 91:2, 91:7, 

United States District Court

Camden, New Jersey

179

91:17

different [9] - 27:13, 

59:10, 60:7, 73:8, 

107:25, 115:4, 

130:1, 156:3

differently [1] - 12:10

DIRE [4] - 2:6, 2:10, 

101:15, 109:23

dire [2] - 101:14, 

109:20

direct [24] - 10:7, 10:8, 

10:14, 15:19, 23:2, 

23:11, 27:10, 93:11, 

128:16, 128:23, 

134:4, 135:19, 

154:14, 155:1, 

155:15, 155:19, 

155:21, 156:2, 

156:5, 156:8, 

156:11, 168:8, 

168:12

DIRECT [4] - 2:5, 2:8, 

29:15, 102:2

directed [3] - 154:7, 

155:9, 161:6

direction [1] - 157:18

directly [1] - 22:17

director [1] - 15:23

disagreement [2] - 

171:23, 171:24

discovery [5] - 11:8, 

11:10, 11:11, 11:15, 

23:22

discuss [9] - 12:2, 

16:13, 16:14, 17:11, 

17:19, 17:20, 72:18, 

170:15, 170:16

discussed [3] - 

116:10, 133:15, 

138:16

discussing [1] - 18:20

discussion [1] - 17:9

dispute [3] - 11:14, 

14:16, 78:10

disputed [2] - 14:24, 

78:25

disputes [1] - 172:13

disregard [3] - 9:21, 

9:25, 158:7

disregarded [3] - 

10:4, 160:14, 160:17

distribute [1] - 17:25

District [1] - 163:9

DISTRICT [3] - 1:1, 

1:1, 1:11

division [1] - 115:23

document [40] - 

11:20, 40:11, 42:12, 

43:3, 45:9, 45:19, 

47:22, 49:12, 50:2, 

Case 1:11-cv-02658-JBS-KMW Document 246 Filed 06/24/16 Page 179 of 195 PageID: 9213
52:25, 53:4, 57:6, 

57:8, 57:11, 59:8, 

60:6, 60:18, 66:6, 

75:10, 78:10, 79:8, 

82:11, 82:13, 82:16, 

83:19, 88:4, 92:1, 

92:14, 98:11, 

100:20, 100:23, 

101:3, 101:20, 

103:22, 106:17, 

107:17, 110:17, 

111:5, 111:14, 165:5

documents [32] - 9:2, 

11:21, 19:22, 23:23, 

26:24, 27:5, 27:7, 

27:9, 32:22, 34:5, 

38:7, 43:8, 56:1, 

78:4, 80:12, 98:16, 

107:5, 107:19, 

107:22, 107:23, 

110:18, 111:13, 

111:14, 111:21, 

111:22, 112:22, 

114:7, 114:11, 

138:18, 160:2, 

171:11

dollar [1] - 60:4

Don [1] - 137:9

done [33] - 5:11, 

10:24, 21:5, 21:7, 

21:8, 26:16, 27:2, 

34:22, 35:9, 38:24, 

39:6, 63:9, 79:11, 

93:10, 104:23, 

118:12, 124:13, 

132:3, 135:25, 

140:24, 144:14, 

144:17, 145:4, 

146:2, 147:14, 

152:7, 152:9, 

154:17, 154:18, 

163:7, 167:8

doubt [2] - 12:17, 

166:6

down [18] - 5:22, 18:3, 

56:12, 58:22, 59:18, 

63:5, 76:18, 102:10, 

125:18, 126:5, 

138:22, 138:24, 

147:19, 152:5, 

152:8, 164:1, 164:2, 

164:4

downstairs [2] - 93:1, 

170:20

Draft [3] - 5:16, 5:24, 

8:1

draft [4] - 6:17, 7:25, 

105:14, 171:17

drag [1] - 77:25

drags [1] - 77:23

draw [1] - 50:1

drawing [3] - 41:4, 

46:19, 48:14

drew [1] - 139:10

drop [1] - 61:17

duly [1] - 28:19

during [9] - 8:22, 11:9, 

11:10, 13:15, 16:5, 

16:12, 17:21, 19:24, 

145:3

duties [1] - 31:9

duty [3] - 8:17, 158:6

E

e-mail [6] - 60:25, 

63:8, 107:9, 107:10, 

122:14, 134:9

e-mails [3] - 80:13, 

137:20, 137:22

effect [1] - 156:22

effective [1] - 155:18

either [3] - 7:9, 68:23, 

146:9

either/or [3] - 23:5, 

168:7, 168:9

electing [1] - 28:6

electronic [5] - 26:9, 

26:11, 26:12, 39:3, 

58:10

elements [3] - 16:7, 

16:9, 154:11

elevators [1] - 17:6

embroiled [1] - 132:14

Emmett [1] - 27:23

EMMETT [1] - 1:16

emphasis [4] - 127:7, 

128:1, 142:13, 

142:16

emphasize [1] - 

132:16

emphatically [2] - 

130:19, 131:15

employed [6] - 29:21, 

29:23, 29:25, 30:3, 

117:19, 139:21

employment [3] - 

30:7, 31:19, 34:19

enclosed [6] - 41:13, 

41:23, 76:4, 80:17, 

88:22, 97:3

encompassed [1] - 

135:8

encounter [1] - 25:6

END [2] - 112:20, 

148:6

end [14] - 7:9, 7:23, 

10:12, 10:19, 15:7, 

16:15, 17:14, 18:12, 

19:11, 21:3, 79:16, 

95:8, 139:19, 163:6

ended [1] - 77:22

ends [6] - 22:22, 

162:9, 162:16, 

162:22, 162:24, 

169:5

engage [2] - 17:8, 

114:17

engaged [1] - 13:2

enjoy [2] - 8:7, 93:4

ensure [1] - 144:22

enter [2] - 24:6, 31:20

entered [2] - 22:7, 

56:24

ENTERS [3] - 8:10, 

93:21, 170:2

enters [1] - 6:16

entire [3] - 22:22, 

78:13, 160:13

entities [2] - 13:13, 

98:6

entitled [3] - 78:21, 

78:22, 159:16

entitles [1] - 61:22

entity [2] - 14:8, 14:11

envision [1] - 152:14

equals [1] - 50:25

erroneously [1] - 

159:8

error [1] - 137:14

errors [1] - 164:23

ESQUIRE [3] - 1:14, 

1:14, 1:16

essentially [2] - 30:15, 

49:5

establish [2] - 145:20, 

147:21

established [4] - 

12:20, 13:14, 47:16, 

161:17

establishment [1] - 

148:1

et [3] - 1:6, 42:11, 

145:14

evaluate [2] - 11:5, 

11:6

evening [6] - 62:4, 

62:25, 64:10, 65:20, 

161:21, 167:12

event [1] - 168:19

events [6] - 30:2, 

30:12, 32:18, 

113:24, 114:6, 121:2

evidence [95] - 7:3, 

7:4, 8:18, 8:25, 9:5, 

9:8, 9:9, 9:11, 9:12, 

9:17, 9:21, 10:4, 

10:5, 10:7, 10:8, 

10:10, 10:14, 10:21, 

11:4, 12:6, 12:7, 

12:10, 12:11, 12:21, 

15:9, 15:11, 16:4, 

17:12, 18:11, 19:9, 

19:12, 19:19, 19:22, 

21:9, 23:2, 23:10, 

26:23, 27:19, 40:23, 

43:14, 43:21, 46:6, 

46:9, 46:15, 48:10, 

49:19, 50:16, 53:15, 

58:2, 61:12, 64:2, 

66:22, 70:3, 74:5, 

75:22, 82:25, 84:5, 

87:7, 88:17, 91:6, 

92:11, 94:18, 99:7, 

101:24, 104:8, 

106:12, 107:2, 

108:10, 112:25, 

150:23, 154:9, 

154:21, 157:7, 

157:18, 160:15, 

160:24, 161:2, 

161:5, 163:20, 

165:2, 165:3, 165:5, 

165:11, 165:19, 

165:24, 166:13, 

167:18, 169:22, 

170:12, 170:15

EVIDENCE [58] - 3:6, 

3:7, 3:8, 3:9, 3:10, 

3:11, 3:12, 3:13, 

3:15, 3:16, 3:17, 

3:18, 3:19, 3:20, 

3:21, 3:22, 3:23, 

3:24, 3:25, 4:1, 4:2, 

4:3, 4:4, 4:5, 4:6, 

4:7, 4:8, 4:9, 4:10, 

40:24, 43:15, 46:7, 

46:16, 48:12, 49:20, 

50:17, 53:16, 58:3, 

61:13, 64:3, 66:23, 

70:4, 74:6, 75:23, 

83:1, 84:6, 87:8, 

88:18, 91:9, 92:12, 

94:19, 99:8, 101:25, 

104:9, 106:13, 

107:3, 108:11, 113:2

Evidence [1] - 146:16

evidentiary [2] - 

147:20, 168:24

exact [1] - 83:9

exactly [5] - 18:7, 

33:24, 101:18, 

119:25, 146:3

exam [1] - 154:14

examination [4] - 

113:16, 154:13, 

156:23, 158:14

EXAMINATION [16] - 

2:5, 2:6, 2:8, 2:10, 

United States District Court

Camden, New Jersey

180

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

29:15, 101:15, 

102:2, 109:23, 

113:18, 138:14, 

149:8

examine [2] - 19:15, 

19:17

examined [2] - 18:15, 

18:16

example [7] - 10:2, 

16:21, 128:14, 

128:23, 129:4, 

129:5, 129:10

except [8] - 32:20, 

57:15, 58:7, 72:18, 

77:17, 98:24, 101:1, 

122:12

exceptions [2] - 

13:24, 14:6

exchange [1] - 11:11

exciting [2] - 26:21, 

26:22

exclamation [1] - 81:8

excludes [1] - 9:20

exclusion [1] - 124:19

excuse [7] - 28:1, 

56:6, 92:21, 122:9, 

135:9, 163:4, 168:18

excused [2] - 152:15, 

171:3

exhibit [17] - 20:2, 

51:7, 51:9, 51:16, 

66:11, 67:16, 83:7, 

88:16, 90:7, 99:7, 

110:24, 124:23, 

125:7, 127:13, 

130:23, 143:17

EXHIBIT [57] - 3:4, 

3:6, 3:7, 3:8, 3:9, 

3:10, 3:11, 3:12, 

3:13, 3:16, 3:17, 

3:18, 3:19, 3:20, 

3:21, 3:22, 3:23, 

3:24, 3:25, 4:1, 4:2, 

4:3, 4:4, 4:5, 4:6, 

4:7, 4:8, 4:9, 4:10, 

40:24, 43:15, 46:7, 

46:16, 48:12, 49:20, 

50:17, 53:16, 61:13, 

64:3, 66:23, 70:4, 

74:6, 75:23, 83:1, 

84:6, 87:8, 88:18, 

91:9, 92:12, 94:19, 

99:8, 101:25, 104:9, 

106:13, 107:3, 

108:11, 113:2

Exhibit [147] - 40:2, 

40:8, 40:10, 40:15, 

40:19, 40:22, 41:5, 

42:8, 42:18, 42:21, 

Case 1:11-cv-02658-JBS-KMW Document 246 Filed 06/24/16 Page 180 of 195 PageID: 9214
42:24, 43:1, 43:11, 

43:13, 44:25, 45:7, 

45:9, 45:10, 45:12, 

45:18, 46:2, 46:5, 

46:11, 46:20, 47:10, 

47:19, 48:7, 48:9, 

48:15, 49:1, 49:5, 

49:6, 49:8, 49:12, 

49:17, 49:19, 50:2, 

50:13, 50:15, 52:21, 

52:25, 53:12, 53:14, 

54:11, 54:12, 54:17, 

54:22, 55:19, 55:21, 

57:17, 57:19, 58:1, 

60:2, 60:3, 60:6, 

60:22, 61:10, 63:12, 

63:24, 64:1, 65:1, 

66:4, 67:25, 68:3, 

68:24, 69:3, 69:12, 

69:22, 70:1, 72:16, 

73:13, 73:21, 74:9, 

75:19, 75:21, 79:25, 

81:12, 82:9, 82:24, 

83:3, 83:18, 84:3, 

84:5, 86:21, 87:7, 

88:2, 88:13, 89:20, 

90:12, 91:24, 92:10, 

94:3, 94:15, 94:17, 

98:9, 98:20, 98:22, 

99:14, 99:21, 99:23, 

100:1, 100:8, 

100:16, 101:3, 

101:8, 102:11, 

103:8, 103:9, 

103:12, 103:14, 

103:20, 104:5, 

104:7, 105:23, 

106:5, 106:9, 

106:11, 106:15, 

106:23, 107:15, 

108:7, 108:9, 109:4, 

109:17, 111:22, 

112:1, 112:7, 

112:13, 112:23, 

112:24, 122:16, 

124:2, 124:21, 

126:17, 127:11, 

129:10, 130:3, 

130:22, 130:25, 

133:8, 134:7, 

136:15, 151:6, 

151:11

Exhibits [4] - 45:24, 

57:23, 90:20, 106:1

exhibits [16] - 9:3, 

19:21, 29:5, 29:8, 

40:1, 40:4, 40:5, 

52:20, 76:20, 

128:25, 137:25, 

142:5, 143:23, 

169:17, 169:21, 

171:11

EXHIBITS [2] - 3:14, 

58:3

exist [1] - 10:11

exists [1] - 27:13

exited [1] - 56:14

EXITS [3] - 93:6, 

152:23, 171:1

expect [2] - 24:3, 

171:15

expectation [1] - 

152:12

expenditure [1] - 

157:23

experience [1] - 82:5

explain [5] - 38:23, 

96:14, 111:9, 

147:18, 169:13

explained [1] - 103:14

explaining [2] - 7:18, 

7:23

explanation [1] - 19:1

explore [2] - 99:6, 

136:6

exposed [2] - 113:9, 

113:10

extended [1] - 170:5

extent [5] - 32:21, 

38:11, 38:12, 

109:13, 144:2

extra [3] - 52:10, 

52:11, 136:5

extraordinarily [1] - 

154:13

eyewitness [1] - 10:9

F

Facebook [1] - 17:1

faces [1] - 153:21

facsimile [8] - 13:3, 

14:2, 14:8, 14:17, 

15:4, 16:3, 16:10, 

47:24

fact [19] - 10:9, 12:19, 

18:8, 22:12, 30:25, 

69:23, 74:21, 75:2, 

77:18, 78:25, 86:12, 

94:10, 99:21, 101:9, 

135:1, 142:7, 

149:15, 159:11, 

161:17

facts [12] - 7:2, 8:18, 

8:19, 8:20, 9:1, 9:3, 

10:10, 10:11, 11:12, 

12:7, 14:15, 136:7

factual [2] - 161:9, 

161:10

failed [1] - 18:7

fails [2] - 12:14, 16:6

failure [3] - 162:12, 

162:15, 165:2

failures [1] - 162:15

fair [4] - 8:6, 26:18, 

142:23, 167:1

faithful [1] - 7:21

fall [1] - 148:23

familiar [5] - 33:10, 

45:19, 47:22, 82:11, 

86:22

family [1] - 17:16

far [16] - 7:11, 33:4, 

35:15, 36:10, 38:6, 

38:17, 45:15, 53:19, 

53:24, 76:20, 77:10, 

79:11, 91:16, 

146:24, 161:19, 

165:22

fatal [1] - 164:19

favorable [2] - 12:11

Fax [1] - 46:21

fax [220] - 7:19, 13:6, 

13:23, 14:13, 14:18, 

14:20, 15:1, 20:25, 

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

22:1, 22:5, 22:6, 

22:24, 23:3, 23:4, 

23:11, 23:17, 24:1, 

24:11, 24:14, 25:7, 

25:9, 25:21, 26:1, 

26:3, 26:4, 26:7, 

26:8, 32:13, 32:15, 

33:5, 33:13, 33:18, 

35:1, 36:10, 36:17, 

37:20, 38:1, 38:13, 

38:21, 39:10, 40:15, 

44:3, 44:4, 44:10, 

45:13, 45:21, 47:12, 

49:9, 49:13, 49:23, 

50:4, 53:20, 53:21, 

54:4, 54:7, 54:12, 

55:25, 56:3, 57:18, 

58:8, 59:9, 61:20, 

63:5, 63:15, 64:9, 

64:25, 65:2, 65:3, 

65:4, 66:8, 66:17, 

66:25, 67:14, 67:17, 

67:18, 67:21, 68:4, 

68:7, 68:14, 69:14, 

69:17, 69:23, 70:7, 

70:13, 70:24, 70:25, 

73:21, 74:10, 74:17, 

75:5, 75:12, 75:16, 

76:1, 76:6, 76:14, 

76:15, 79:25, 81:3, 

81:7, 81:9, 81:14, 

82:20, 83:21, 85:1, 

85:2, 85:7, 85:17, 

85:18, 86:4, 86:5, 

86:24, 87:2, 87:18, 

88:6, 88:10, 88:21, 

89:20, 89:25, 90:14, 

90:17, 91:12, 91:19, 

91:21, 92:5, 94:6, 

94:10, 96:3, 96:7, 

96:13, 97:2, 97:12, 

97:15, 98:13, 98:17, 

99:11, 99:15, 99:17, 

99:23, 100:11, 

101:4, 103:19, 

103:23, 104:2, 

104:11, 104:14, 

104:25, 105:14, 

106:20, 107:8, 

107:9, 107:19, 

108:1, 108:4, 

108:15, 108:19, 

108:20, 109:11, 

114:16, 114:17, 

114:20, 116:8, 

117:19, 117:20, 

118:14, 118:15, 

118:21, 120:14, 

121:23, 122:14, 

122:22, 123:23, 

126:14, 126:19, 

126:21, 126:23, 

127:14, 127:18, 

127:19, 130:5, 

130:11, 130:20, 

131:8, 132:6, 

132:22, 133:22, 

134:9, 134:12, 

134:13, 136:11, 

136:16, 137:23, 

139:12, 139:20, 

139:22, 140:1, 

140:16, 141:6, 

141:7, 146:25, 

148:21, 149:9, 

151:11, 155:4, 

156:19, 157:19, 

157:21, 158:21, 

161:1, 162:23, 

165:10

faxed [13] - 26:10, 

49:9, 62:2, 74:14, 

74:18, 84:18, 84:22, 

94:25, 95:25, 96:16, 

96:20, 97:9, 140:1

faxes [63] - 13:15, 

14:2, 14:18, 21:15, 

24:16, 25:25, 38:14, 

51:1, 52:15, 53:19, 

58:13, 58:14, 61:18, 

61:22, 61:23, 62:3, 

62:7, 62:25, 63:1, 

63:4, 64:7, 67:9, 

68:23, 71:25, 76:5, 

80:22, 80:24, 80:25, 

United States District Court

Camden, New Jersey

181

83:15, 86:9, 86:13, 

88:23, 97:3, 98:2, 

108:21, 116:6, 

127:4, 128:9, 

128:15, 128:16, 

129:24, 135:8, 

137:19, 137:20, 

137:23, 138:3, 

142:5, 144:24, 

145:23, 145:24, 

149:19, 150:2, 

150:15, 155:2, 

158:23, 159:2, 

159:12, 159:22, 

160:20, 163:18, 

163:21

faxing [8] - 44:7, 

44:21, 58:7, 68:25, 

80:13, 92:20, 98:5, 

149:23

FCC [3] - 67:18, 

131:10, 131:17

fearful [2] - 132:2, 

132:13

federal [2] - 15:14, 

162:7

Federal [1] - 146:16

fee [2] - 61:16, 64:8

felt [2] - 113:9, 118:24

few [5] - 16:11, 18:4, 

72:18, 98:22, 100:10

fifth [2] - 164:25, 

165:4

figure [5] - 23:13, 

35:9, 134:17, 171:7, 

171:21

filled [2] - 26:6, 137:10

final [7] - 7:10, 7:14, 

26:5, 51:14, 54:8, 

169:6, 171:25

finalized [1] - 62:5

finally [2] - 17:15, 

156:13

fine [5] - 47:21, 56:8, 

112:18, 167:14, 

172:9

finer [1] - 7:22

finish [3] - 21:6, 

80:11, 172:6

firm [2] - 117:22, 

139:24

first [66] - 9:6, 11:16, 

14:1, 15:19, 16:12, 

17:17, 19:8, 25:4, 

28:11, 28:22, 32:5, 

35:15, 39:16, 39:19, 

40:4, 40:10, 42:25, 

47:5, 48:20, 51:2, 

51:5, 53:20, 60:19, 

62:11, 62:24, 65:4, 

Case 1:11-cv-02658-JBS-KMW Document 246 Filed 06/24/16 Page 181 of 195 PageID: 9215
67:22, 68:24, 69:17, 

70:23, 71:8, 76:11, 

80:1, 94:21, 95:7, 

97:16, 103:22, 

104:13, 104:23, 

112:2, 115:24, 

119:18, 120:7, 

120:14, 121:11, 

130:24, 133:7, 

140:16, 143:25, 

144:2, 147:15, 

147:25, 151:3, 

151:24, 155:13, 

159:19, 159:21, 

160:3, 160:10, 

161:12, 162:1, 

165:17, 165:22, 

171:20

FITZPATRICK [130] - 

1:16, 2:7, 2:11, 2:13, 

2:16, 5:9, 6:2, 6:5, 

6:8, 6:10, 6:14, 

20:13, 27:25, 35:25, 

36:3, 36:19, 40:21, 

43:12, 46:4, 46:13, 

48:8, 49:18, 50:14, 

53:13, 56:16, 57:25, 

59:13, 59:16, 61:11, 

63:25, 66:21, 70:2, 

72:21, 72:23, 72:25, 

73:15, 74:4, 75:20, 

76:24, 77:3, 78:22, 

79:2, 81:17, 81:22, 

82:23, 84:4, 84:11, 

87:6, 88:15, 89:1, 

89:15, 90:24, 91:5, 

92:9, 93:14, 94:16, 

98:21, 99:4, 101:12, 

101:15, 101:22, 

104:6, 105:9, 

106:10, 106:25, 

108:8, 109:20, 

109:23, 110:5, 

111:11, 111:17, 

112:11, 112:14, 

112:21, 113:17, 

113:18, 117:1, 

117:4, 117:8, 

117:11, 117:12, 

118:3, 119:9, 

119:11, 121:16, 

121:18, 123:14, 

123:16, 129:7, 

129:9, 135:21, 

136:1, 136:9, 

137:11, 137:14, 

137:18, 138:7, 

138:10, 141:16, 

143:8, 144:7, 145:8, 

145:12, 147:5, 

147:7, 147:10, 

148:5, 149:8, 150:9, 

150:17, 152:1, 

152:14, 152:18, 

153:12, 153:14, 

154:6, 154:9, 

158:17, 158:20, 

159:25, 160:7, 

160:17, 164:15, 

165:8, 165:15, 

167:20, 168:22, 

169:7, 171:10, 

171:15

Fitzpatrick [24] - 5:8, 

26:20, 27:23, 28:6, 

93:12, 113:16, 

138:16, 139:10, 

140:5, 142:6, 143:5, 

143:16, 144:15, 

152:12, 154:4, 

161:22, 164:13, 

165:23, 166:19, 

167:15, 168:19, 

171:6, 171:9

Fitzpatrick's [4] - 

154:1, 155:13, 

156:22, 161:23

five [15] - 30:19, 79:3, 

86:5, 86:12, 89:25, 

113:19, 113:25, 

120:11, 121:11, 

123:7, 127:20, 

130:17, 139:11, 

140:15, 158:10

FLAMM [1] - 1:16

flatly [1] - 162:2

flaw [1] - 164:19

flip [4] - 40:1, 52:20, 

57:17, 100:16

flow [1] - 144:22

focus [2] - 49:9, 81:25

focusing [5] - 32:12, 

34:19, 78:14, 129:1, 

139:11

follow [21] - 8:21, 

9:18, 15:8, 18:24, 

19:12, 22:19, 24:15, 

33:21, 35:8, 58:16, 

96:21, 101:13, 

118:6, 120:2, 141:7, 

146:4, 146:7, 146:8, 

147:22, 151:25, 

162:15

follow-up [3] - 18:24, 

101:13, 151:25

followed [10] - 119:4, 

142:1, 142:2, 144:4, 

144:19, 146:10, 

157:9, 160:20, 

163:22

following [16] - 50:21, 

51:19, 54:2, 61:24, 

67:6, 70:18, 71:19, 

86:4, 89:24, 97:6, 

108:19, 127:19, 

130:16, 145:1, 

146:2, 146:13

FOLLOWS [2] - 

110:21, 145:16

follows [2] - 13:12, 

28:20

font [1] - 46:24

FOR [1] - 1:1

foreshadowed [1] - 

22:23

forget [1] - 22:25

forgot [1] - 46:10

form [10] - 17:12, 

25:23, 38:3, 59:15, 

77:4, 109:25, 110:6, 

110:10, 136:24, 

145:13

formally [1] - 31:15

format [2] - 77:22, 

107:7

former [3] - 13:7, 

22:10, 27:18

forming [1] - 19:3

forms [1] - 110:18

formulate [1] - 19:6

forth [3] - 29:8, 106:6, 

139:7

forward [7] - 27:19, 

34:15, 34:21, 79:11, 

80:23, 157:4, 158:16

forwarded [1] - 131:21

forwarding [2] - 

108:2, 108:23

foundation [6] - 

73:19, 146:6, 

146:13, 147:20, 

148:4, 148:9

founded [1] - 15:23

four [16] - 21:14, 

21:16, 21:23, 22:4, 

22:24, 25:4, 25:24, 

25:25, 26:14, 35:16, 

134:13, 135:9, 

157:25, 166:20, 

167:22, 168:21

fourth [45] - 10:3, 

14:6, 97:13, 97:15, 

97:22, 98:1, 98:14, 

100:6, 100:12, 

100:23, 106:20, 

109:2, 112:2, 

134:19, 143:6, 

143:9, 158:21, 

158:23, 158:24, 

158:25, 159:1, 

159:7, 159:12, 

159:18, 160:12, 

160:13, 160:21, 

161:5, 161:24, 

163:21, 164:7, 

164:20, 164:25, 

165:1, 165:5, 

165:11, 165:13, 

165:24, 166:7, 

166:19, 166:22, 

167:18, 168:12, 

168:25, 169:3

fraction [1] - 156:5

frankly [1] - 163:12

free [16] - 17:25, 

37:11, 42:9, 48:17, 

48:22, 58:14, 58:20, 

61:19, 61:22, 61:23, 

64:8, 70:17, 71:25, 

85:12, 126:8, 157:17

Friday [2] - 85:17, 

89:21

Friday's [2] - 86:4, 

127:19

Friedlander [1] - 1:24

friend [1] - 17:15

front [8] - 39:24, 

59:14, 94:4, 100:18, 

102:10, 153:6, 

163:8, 163:12

full [7] - 26:17, 64:12, 

65:23, 76:9, 122:4, 

149:1, 170:21

fully [1] - 26:6

function [1] - 148:14

fundamental [1] - 

164:19

funds [1] - 157:24

furtherance [1] - 

33:22

future [2] - 68:18, 

108:4

G

gather [2] - 23:23, 

34:11

gathered [1] - 34:10

gearing [1] - 27:1

general [2] - 15:13, 

92:14

generally [5] - 13:25, 

116:1, 128:12, 

136:4, 157:9

generated [3] - 

110:10, 137:19, 

149:9

gentleman [2] - 34:3, 

34:8

gentlemen [10] - 8:12, 

United States District Court

Camden, New Jersey

182

20:15, 27:22, 49:22, 

56:10, 79:17, 92:25, 

152:21, 170:4, 

170:10

geographic [5] - 26:2, 

35:17, 35:19, 36:22, 

141:22

geography [1] - 162:3

George [1] - 115:19

GERRY [1] - 1:8

given [13] - 11:9, 18:2, 

28:2, 34:25, 36:22, 

68:17, 135:5, 135:6, 

137:9, 138:25, 

159:4, 162:9, 162:14

goods [7] - 14:9, 21:1, 

21:18, 25:22, 32:14, 

38:12, 39:11

govern [1] - 17:18

grant [1] - 164:12

great [2] - 32:23, 

169:23

greater [1] - 11:4

grounds [1] - 154:24

groundwork [1] - 

77:17

guess [6] - 86:18, 

89:25, 93:8, 96:6, 

124:7, 129:5

guide [1] - 8:16

guidelines [1] - 10:18

H

habit [10] - 145:1, 

146:15, 146:23, 

147:19, 147:22, 

148:1, 148:9, 

148:24, 156:15, 

157:8

half [4] - 30:1, 44:3, 

45:3, 45:4

hallways [1] - 17:6

hand [8] - 14:24, 

18:20, 20:2, 20:8, 

28:18, 78:20, 152:4

handed [1] - 5:15

handle [3] - 105:7, 

105:15, 105:17

handled [3] - 24:10, 

38:24, 144:22

handling [1] - 26:4

hands [1] - 172:9

handwrite [2] - 95:25, 

102:18

handwriting [57] - 

51:10, 51:11, 52:24, 

53:2, 53:5, 53:6, 

54:23, 55:9, 57:8, 

Case 1:11-cv-02658-JBS-KMW Document 246 Filed 06/24/16 Page 182 of 195 PageID: 9216
57:15, 57:19, 57:20, 

58:20, 58:24, 58:25, 

59:6, 59:10, 60:7, 

61:6, 63:6, 67:12, 

68:7, 68:11, 71:23, 

74:22, 74:25, 83:24, 

83:25, 84:16, 84:17, 

85:21, 91:14, 95:4, 

99:11, 99:12, 

100:20, 100:21, 

101:2, 101:9, 

102:15, 102:16, 

102:22, 103:15, 

103:17, 110:11, 

110:16, 125:1, 

125:3, 125:11, 

127:1, 136:18, 

136:21, 136:23

handwritten [9] - 

47:16, 67:17, 84:20, 

99:19, 103:11, 

125:13, 125:14, 

125:15, 131:7

handwrote [1] - 84:9

hang [1] - 169:24

happy [1] - 129:7

hard [1] - 64:24

harm [2] - 78:20, 

162:16

harming [1] - 162:10

HATCH [1] - 1:13

header [3] - 49:14, 

49:23, 91:21

heading [1] - 46:24

hear [19] - 10:3, 11:9, 

11:16, 11:20, 11:23, 

19:10, 20:2, 20:3, 

23:18, 51:2, 62:8, 

70:11, 71:10, 73:15, 

78:22, 145:19, 

147:12, 153:8, 

153:17

heard [6] - 7:2, 12:17, 

104:13, 131:18, 

153:15, 170:12

hearing [2] - 7:8, 28:7

HEIMBACH [1] - 1:16

held [2] - 15:17, 22:16

help [7] - 15:8, 17:23, 

19:12, 41:15, 47:2, 

117:22, 139:24

helped [3] - 32:8, 

32:10, 120:17

helpful [3] - 7:7, 18:3, 

18:6

helps [2] - 93:11

herself [2] - 117:9, 

147:18

high [2] - 14:12, 15:1

higher [1] - 59:3

himself [2] - 25:20, 

27:16

hire [1] - 163:25

history [1] - 111:21

hit [3] - 25:12, 76:6, 

81:3

hmm [14] - 40:3, 44:1, 

102:8, 114:2, 

116:11, 116:14, 

117:25, 120:8, 

120:10, 122:24, 

128:19, 130:10, 

133:2, 150:12

hold [7] - 11:4, 13:7, 

22:24, 27:16, 70:13, 

162:5, 171:6

holding [2] - 162:2, 

163:14

holds [2] - 166:20, 

168:13

home [1] - 170:23

honestly [1] - 96:11

Honor [46] - 5:3, 6:11, 

6:22, 20:12, 20:13, 

27:25, 36:1, 36:19, 

43:10, 53:13, 56:16, 

56:21, 57:25, 61:9, 

66:19, 72:21, 81:17, 

84:2, 84:4, 84:11, 

87:6, 99:5, 104:4, 

105:9, 108:6, 

112:21, 113:17, 

117:2, 117:11, 

119:9, 129:8, 136:2, 

138:8, 141:16, 

145:8, 150:19, 

152:2, 154:6, 

158:18, 160:1, 

160:7, 164:11, 

167:20, 168:23, 

168:24, 170:8

honor [1] - 20:8

HONORABLE [1] - 

1:11

hope [2] - 7:4, 170:20

hopefully [2] - 70:12, 

171:18

hoping [2] - 85:10, 

109:13

hostilities [1] - 30:12

hour [1] - 93:2

hours [3] - 67:2, 

151:8, 167:6

house [9] - 109:25, 

110:6, 110:10, 

110:17, 112:3, 

136:23, 164:1, 

164:2, 164:3

housekeeping [1] - 

93:8

Hunterdon [1] - 83:15

hypothetical [1] - 

144:8

I

idea [6] - 24:24, 25:1, 

25:3, 25:5, 80:9, 

157:19

ideas [2] - 52:10, 

157:14

identical [1] - 83:7

identification [2] - 

94:24, 101:9

identify [6] - 90:19, 

91:1, 94:6, 100:20, 

104:1, 111:12

ignore [1] - 9:15

III [5] - 1:16, 13:8, 

27:24, 31:15, 155:10

Illinois [1] - 163:9

imagine [2] - 110:8, 

116:13

immediately [4] - 

54:4, 58:16, 62:1, 

70:15

impact [2] - 166:16, 

166:23

implicated [1] - 111:6

importance [1] - 11:7

important [2] - 81:9, 

145:18

importantly [1] - 

111:11

impression [6] - 

76:20, 77:6, 77:11, 

78:6, 78:18, 79:19

impressions [2] - 

16:16, 17:3

improper [5] - 9:11, 

77:4, 78:6, 78:15, 

129:1

IN [58] - 3:6, 3:7, 3:8, 

3:9, 3:10, 3:11, 3:12, 

3:13, 3:14, 3:16, 

3:17, 3:18, 3:19, 

3:20, 3:21, 3:22, 

3:23, 3:24, 3:25, 4:1, 

4:2, 4:3, 4:4, 4:5, 

4:6, 4:7, 4:8, 4:9, 

4:10, 40:24, 43:15, 

46:7, 46:16, 48:12, 

49:20, 50:17, 53:16, 

58:3, 61:13, 64:3, 

66:23, 70:4, 74:6, 

75:23, 83:1, 84:6, 

87:8, 88:18, 91:9, 

92:12, 94:19, 99:8, 

101:25, 104:9, 

106:13, 107:3, 

108:11, 113:2

in-house [6] - 109:25, 

110:6, 110:10, 

110:17, 112:3, 

136:23

inability [1] - 111:4

inappropriate [1] - 

147:12

Inc [2] - 13:11, 14:22

INC [2] - 1:2, 1:5

inclined [1] - 168:24

include [7] - 51:1, 

52:16, 61:19, 76:15, 

144:24, 159:21, 

168:14

included [9] - 61:21, 

65:3, 76:11, 97:6, 

111:15, 126:7, 

132:22, 141:2, 

149:18

includes [1] - 122:22

including [5] - 63:18, 

67:24, 99:24, 

103:25, 162:21

incoming [7] - 53:20, 

53:21, 57:18, 58:15, 

59:9, 61:20, 96:14

inconsistencies [1] - 

158:13

inconsistent [1] - 

158:11

Incorporated [4] - 

12:4, 13:2, 13:5, 

13:19

incorrect [2] - 31:3, 

162:6

incorrectly [1] - 

111:20

increasingly [1] - 

132:17

increments [1] - 52:7

indeed [1] - 10:13

independent [3] - 

21:15, 79:3, 134:1

independently [1] - 

148:16

indicate [4] - 8:23, 

84:23, 92:19, 99:24

indicated [8] - 17:22, 

22:21, 23:21, 23:22, 

42:19, 42:20, 55:25, 

84:16

indicates [8] - 41:8, 

41:20, 53:24, 58:5, 

63:18, 103:25, 

159:12, 161:1

indicating [2] - 8:23, 

48:15

indication [1] - 161:12

United States District Court

Camden, New Jersey

183

individual [8] - 14:12, 

15:16, 15:19, 22:20, 

27:17, 163:5, 168:6

individually [4] - 13:9, 

15:18, 22:11, 25:20

indulge [1] - 77:23

infer [1] - 10:10

influenced [1] - 9:12

informally [1] - 171:21

information [37] - 

9:23, 11:9, 11:11, 

16:22, 24:17, 24:20, 

26:9, 34:10, 34:17, 

37:12, 37:13, 41:12, 

41:14, 41:18, 41:20, 

41:21, 41:22, 42:2, 

42:6, 42:9, 42:10, 

42:15, 42:16, 46:25, 

62:15, 72:7, 72:14, 

83:14, 86:18, 

107:12, 108:3, 

115:17, 136:5, 

138:25, 141:2, 

141:5, 145:6

initial [5] - 55:9, 55:14, 

116:20, 122:2, 122:3

initials [4] - 49:10, 

74:15, 84:19, 95:8

initiating [1] - 139:12

innocent [2] - 162:10, 

162:17

input [1] - 156:17

inserted [1] - 47:17

insignificant [1] - 11:2

insist [1] - 78:21

installation [2] - 

115:8, 115:22

installing [1] - 24:25

instance [3] - 115:25, 

158:5, 160:16

instances [1] - 158:9

instantly [1] - 167:15

instead [7] - 60:13, 

104:18, 105:16, 

143:19, 144:5, 

161:16, 163:2

instruct [7] - 9:4, 9:25, 

14:15, 16:12, 

126:25, 141:7, 158:7

instructed [4] - 9:17, 

23:21, 51:25, 135:10

instruction [12] - 6:9, 

9:19, 24:19, 25:14, 

36:17, 63:10, 89:12, 

105:21, 120:16, 

124:14, 139:6, 149:1

instructions [34] - 

7:10, 7:14, 8:16, 

10:12, 15:6, 15:7, 

19:19, 20:9, 22:20, 

Case 1:11-cv-02658-JBS-KMW Document 246 Filed 06/24/16 Page 183 of 195 PageID: 9217
35:8, 36:22, 42:10, 

51:13, 54:14, 58:16, 

141:15, 142:1, 

143:20, 144:4, 

159:3, 160:18, 

160:22, 161:11, 

162:13, 162:16, 

162:18, 163:23, 

165:9, 168:6, 169:6, 

171:20, 172:3, 172:6

intend [1] - 7:16

intended [2] - 8:23, 

26:2

intends [1] - 19:12

interacted [1] - 37:16

interacting [1] - 72:10

interaction [3] - 27:1, 

148:22, 155:22

interested [2] - 24:22, 

34:16

internet [1] - 16:23

interpret [1] - 19:18

Interrogatories [2] - 

11:16, 11:17

intervene [1] - 8:7

introduce [1] - 29:16

introduction [6] - 

12:24, 92:7, 98:19, 

104:5, 106:22, 

109:16

investigation [2] - 

16:21, 119:2

invite [1] - 166:24

invoice [1] - 62:7

involved [3] - 33:24, 

38:13, 113:8

involvement [12] - 

14:13, 15:1, 15:2, 

15:25, 16:1, 23:5, 

23:8, 23:25, 154:12, 

155:16, 155:22, 

156:18

issuance [8] - 36:17, 

64:22, 80:24, 82:7, 

82:8, 90:10, 97:21, 

100:14

issue [28] - 5:5, 5:7, 

5:22, 22:9, 22:12, 

26:1, 30:2, 32:12, 

38:18, 64:19, 70:10, 

71:10, 71:11, 78:2, 

85:19, 140:22, 

141:23, 161:9, 

161:10, 161:19, 

163:3, 163:11, 

164:16, 166:3, 167:2

issued [5] - 21:14, 

81:9, 103:3, 103:6, 

165:24

issues [3] - 82:20, 

145:6, 158:3

item [1] - 9:17

itself [2] - 26:22, 54:4

J

JEROME [1] - 1:11

Jersey [18] - 70:19, 

83:16, 104:18, 

104:22, 105:4, 

105:16, 135:3, 

143:19, 144:5, 

159:22, 160:8, 

160:13, 160:16, 

161:14, 161:16, 

163:2, 163:24, 165:6

JERSEY [2] - 1:1, 1:9

job [6] - 20:3, 32:5, 

115:12, 115:20, 

148:14, 155:14

JOHN [1] - 1:8

join [3] - 61:15, 62:11, 

62:12

joined [3] - 20:20, 

20:21, 97:4

jot [1] - 18:3

Judge [52] - 7:16, 

7:24, 20:18, 23:22, 

29:3, 29:12, 40:25, 

43:18, 46:10, 46:17, 

48:7, 49:17, 50:13, 

57:2, 63:24, 73:4, 

79:14, 79:23, 82:22, 

88:13, 90:23, 91:8, 

92:8, 92:23, 93:25, 

101:7, 102:1, 106:8, 

109:16, 110:3, 

110:19, 111:20, 

121:13, 128:22, 

135:20, 138:13, 

139:15, 144:10, 

146:12, 148:10, 

150:4, 153:4, 

153:11, 153:22, 

155:12, 157:1, 

161:7, 163:8, 

163:13, 163:14, 

167:5, 167:13

judge [11] - 56:8, 

59:13, 69:25, 73:12, 

76:24, 77:14, 84:12, 

135:24, 150:24, 

151:1, 169:16

JUDGE [1] - 1:11

judgement [1] - 6:16

judges [1] - 8:19

judgment [7] - 22:7, 

27:15, 27:18, 

158:15, 158:20, 

159:16, 165:25

judicial [1] - 160:5

jump [2] - 52:20, 

54:11

jumped [1] - 57:5

jumping [2] - 77:9, 

147:11

juror [4] - 16:23, 17:3, 

18:17, 18:20

jurors [4] - 8:15, 

16:12, 18:3, 18:14

jury [70] - 6:21, 7:1, 

7:7, 7:11, 8:4, 8:17, 

12:16, 16:1, 16:14, 

17:15, 17:22, 18:11, 

20:11, 22:14, 28:2, 

30:18, 33:7, 47:11, 

49:22, 56:14, 56:22, 

56:24, 59:14, 74:9, 

77:8, 77:21, 78:2, 

78:18, 93:2, 93:19, 

113:7, 123:4, 

124:18, 138:2, 

150:23, 152:3, 

153:6, 153:17, 

153:23, 154:20, 

154:25, 155:9, 

157:7, 157:17, 

158:1, 158:3, 158:7, 

158:12, 163:12, 

163:13, 165:19, 

166:12, 166:17, 

167:21, 168:18, 

168:25, 169:4, 

169:6, 169:10, 

169:11, 169:15, 

169:22, 171:2, 

171:17, 171:19, 

171:25, 172:3, 

172:6, 172:13

JURY [6] - 8:10, 93:6, 

93:21, 152:23, 

170:2, 171:1

jury's [4] - 153:8, 

153:20, 166:23, 

172:9

K

K032107 [2] - 51:10, 

54:6

Karen [1] - 1:24

keep [7] - 17:13, 29:7, 

46:23, 77:9, 169:19, 

170:14

keeping [1] - 77:20

kept [1] - 25:15

Kevin [40] - 34:5, 37:9, 

43:4, 43:24, 44:2, 

47:24, 50:4, 50:19, 

53:21, 55:18, 57:12, 

57:18, 58:5, 59:7, 

59:11, 60:11, 61:15, 

64:5, 67:6, 69:14, 

70:7, 76:3, 79:1, 

80:1, 80:10, 83:21, 

85:2, 88:20, 88:21, 

94:7, 96:25, 97:1, 

104:12, 106:18, 

107:11, 122:19, 

130:5, 130:25, 

131:12, 134:9

kind [11] - 23:5, 33:19, 

33:24, 52:20, 72:7, 

72:14, 118:11, 

148:24, 148:25, 

156:19, 163:16

kinds [3] - 10:7, 10:14, 

31:8

knowing [1] - 145:7

knowledge [18] - 

26:17, 32:17, 34:23, 

39:13, 63:10, 89:12, 

105:20, 134:23, 

136:2, 149:1, 

149:24, 154:15, 

155:6, 155:16, 

156:20, 157:12, 

157:19, 157:20

known [2] - 13:2, 

162:14

knows [3] - 78:9, 

155:5, 164:22

L

lack [1] - 153:23

ladies [10] - 8:11, 

20:15, 27:22, 49:22, 

56:10, 79:17, 92:25, 

152:21, 170:4, 

170:10

laid [4] - 77:5, 120:20, 

146:6, 146:18

LAMM [1] - 1:16

language [2] - 7:21, 

65:22

large [1] - 27:3

last [11] - 28:22, 50:5, 

79:18, 83:7, 86:7, 

95:9, 100:10, 109:4, 

115:19, 130:22, 

144:12

latest [1] - 167:11

latter [1] - 145:17

law [33] - 5:14, 5:17, 

5:22, 7:9, 7:13, 7:17, 

7:21, 7:22, 8:20, 

8:21, 12:23, 15:6, 

19:20, 22:15, 22:20, 

108:22, 132:4, 

United States District Court

Camden, New Jersey

184

132:8, 132:11, 

154:11, 156:8, 

156:12, 158:15, 

158:21, 159:17, 

162:7, 162:12, 

162:19, 162:20, 

164:10, 164:17, 

166:21, 168:5

lawful [1] - 15:1

lawsuit [2] - 30:2, 

113:9

lawyers [3] - 9:3, 9:7, 

9:10

lay [2] - 146:13, 148:3

laying [3] - 77:7, 

147:19, 148:9

layout [3] - 46:25, 

120:18, 122:3

lays [1] - 77:17

lead [8] - 25:10, 91:2, 

109:25, 110:6, 

110:10, 110:17, 

136:23, 137:9

leading [13] - 36:1, 

36:7, 36:20, 36:25, 

77:3, 78:3, 78:11, 

78:13, 78:21, 79:5, 

79:20, 98:25, 162:16

Leads [11] - 21:14, 

33:9, 33:14, 40:12, 

41:5, 41:18, 43:4, 

43:25, 94:7, 122:11, 

122:19

leads [5] - 12:8, 

109:11, 112:4, 

115:20, 136:16

leak [2] - 35:4, 115:16

leaks [2] - 13:17, 25:5

Leaks [1] - 42:19

learned [2] - 24:21, 

34:12

least [6] - 45:10, 

50:23, 52:2, 75:12, 

103:22, 160:12

leave [5] - 93:7, 

150:11, 152:9, 

167:6, 169:16

led [2] - 116:9, 148:22

left [6] - 28:18, 30:9, 

30:13, 95:19, 

104:12, 129:18

legal [2] - 20:25, 

161:10

legally [1] - 158:2

legitimate [3] - 77:11, 

118:25, 119:21

less [2] - 26:23, 167:7

letter [3] - 85:25, 

122:19, 130:25

letting [1] - 8:7

Case 1:11-cv-02658-JBS-KMW Document 246 Filed 06/24/16 Page 184 of 195 PageID: 9218
level [2] - 14:13, 15:1

Lewis [2] - 20:20, 

138:22

LEWIS [1] - 1:14

liability [8] - 5:6, 

15:12, 15:22, 22:20, 

113:10, 162:11, 

164:6, 168:6

liable [9] - 15:15, 

15:18, 16:10, 22:4, 

22:11, 22:17, 22:24, 

162:5, 162:17

lifetime [1] - 61:17

light [2] - 6:18, 12:7

likely [2] - 12:9, 25:7

limitation [1] - 141:8

limitations [1] - 35:17

limited [6] - 9:18, 

15:17, 22:15, 23:16, 

80:13, 109:17

limiting [2] - 9:19, 

162:13

Line [7] - 117:13, 

119:12, 121:19, 

123:11, 139:19, 

140:8

line [9] - 7:2, 44:10, 

47:1, 47:5, 47:14, 

58:7, 62:11, 84:23, 

103:2

lines [7] - 50:22, 

51:20, 97:7, 122:22, 

145:10, 146:1, 

146:22

list [26] - 9:6, 41:14, 

42:2, 42:4, 51:1, 

52:16, 61:24, 62:19, 

67:8, 67:17, 71:20, 

72:4, 86:4, 89:24, 

104:16, 108:1, 

108:20, 110:24, 

127:19, 127:20, 

130:16, 130:17, 

131:9, 132:23, 

160:4, 160:10

listed [4] - 68:24, 

70:20, 74:11, 124:2

listen [1] - 16:17

lists [4] - 61:24, 

108:15, 109:11, 

126:15

literally [1] - 157:7

litigation [2] - 113:8, 

114:17

lobby [1] - 17:6

Lockhart [1] - 29:24

logo [1] - 21:14

look [45] - 27:19, 

32:25, 34:18, 40:14, 

45:12, 47:10, 48:3, 

49:4, 50:8, 52:19, 

57:5, 60:6, 60:22, 

63:12, 67:1, 72:16, 

75:8, 83:9, 86:21, 

87:13, 88:2, 90:12, 

90:21, 91:24, 99:10, 

100:1, 101:6, 102:4, 

106:15, 109:4, 

118:23, 119:12, 

122:17, 124:21, 

125:7, 126:17, 

127:11, 129:10, 

129:17, 130:3, 

130:8, 130:22, 

134:7, 160:2, 168:16

looked [7] - 5:5, 

33:19, 53:18, 53:20, 

57:4, 66:12, 112:7

looking [16] - 43:6, 

47:11, 50:23, 52:2, 

52:6, 59:8, 60:2, 

70:16, 71:16, 99:14, 

103:8, 104:1, 

108:18, 134:21, 

137:15, 160:4

looks [3] - 47:15, 

98:22, 135:3

lost [1] - 163:12

luck [1] - 172:12

lunch [3] - 17:10, 

93:4, 94:2

luncheon [1] - 93:1

M

ma'am [29] - 28:17, 

28:22, 29:1, 42:24, 

45:8, 48:14, 49:4, 

50:1, 52:19, 69:12, 

72:16, 73:7, 74:8, 

79:25, 83:18, 84:16, 

86:21, 87:10, 88:2, 

91:11, 94:2, 94:21, 

99:10, 103:20, 

107:15, 109:4, 

113:13, 138:15, 

149:6

Macciarella [1] - 17:17

machine [5] - 13:23, 

14:2, 14:17, 96:3, 

140:1

mail [6] - 60:25, 63:8, 

107:9, 107:10, 

122:14, 134:9

mails [3] - 80:13, 

137:20, 137:22

major [1] - 11:1

maker [2] - 25:23, 

38:3

manager [5] - 23:16, 

31:7, 115:17, 

115:18, 116:5

managing [3] - 21:22, 

22:10, 113:5

manner [1] - 78:3

map [3] - 72:2, 75:3, 

125:9

March [41] - 13:16, 

21:12, 21:15, 30:2, 

30:19, 32:13, 43:25, 

44:7, 44:22, 45:22, 

46:20, 47:25, 48:16, 

50:5, 50:19, 53:24, 

57:13, 57:18, 58:5, 

59:9, 60:25, 63:9, 

63:16, 64:5, 66:9, 

66:25, 67:1, 67:22, 

69:14, 70:6, 71:2, 

73:22, 74:10, 85:3, 

96:8, 97:2, 97:17, 

114:18, 126:19, 

145:3, 160:10

marked [3] - 111:25, 

112:16, 112:22

marketing [19] - 

21:14, 24:10, 32:6, 

70:7, 70:24, 70:25, 

74:11, 82:14, 100:4, 

103:19, 114:22, 

114:24, 116:20, 

117:21, 117:22, 

119:20, 136:16, 

139:23

Marnie [2] - 17:17, 

169:21

mass [1] - 44:7

material [1] - 154:12

matter [14] - 15:13, 

26:22, 148:24, 

153:19, 156:8, 

158:15, 158:20, 

159:16, 162:24, 

163:18, 163:25, 

164:4, 165:18, 

166:21

matters [2] - 10:12, 

171:24

Maxi [11] - 21:14, 

33:9, 33:14, 40:12, 

41:5, 41:18, 43:4, 

43:25, 94:7, 122:11, 

122:19

Maxi-Leads [11] - 

21:14, 33:9, 33:14, 

40:12, 41:5, 41:18, 

43:4, 43:25, 94:7, 

122:11, 122:19

MaxiLeads [5] - 47:25, 

50:5, 52:7, 52:10, 

53:22

MAY [1] - 1:10

mean [22] - 35:3, 

35:21, 37:22, 46:8, 

77:21, 119:25, 

124:12, 128:11, 

128:21, 129:17, 

129:20, 129:22, 

130:1, 137:12, 

149:12, 149:13, 

160:13, 161:19, 

167:8, 168:9

meaning [3] - 14:19, 

24:23, 171:21

means [4] - 11:11, 

12:6, 16:24, 128:25

meant [6] - 7:3, 128:6, 

128:18, 147:17, 

164:8, 165:23

media [1] - 17:2

meet [5] - 12:14, 

13:23, 16:4, 154:10, 

154:22

meets [1] - 54:5

member [9] - 17:15, 

17:16, 23:14, 58:21, 

58:25, 59:2, 60:8, 

60:10, 152:3

members [2] - 18:10, 

70:17

membership [2] - 

61:16, 64:8

memory [1] - 121:2

mentioned [5] - 20:6, 

30:18, 36:13, 114:5, 

115:9

Mercer [1] - 83:15

merely [5] - 15:25, 

23:7, 23:19, 23:20, 

141:25

merit [1] - 9:15

merits [1] - 163:12

messages [3] - 

104:12, 129:18, 

132:25

met [1] - 16:8

method [2] - 25:1, 

26:4

microphone [1] - 29:2

mid [2] - 56:7, 152:20

mid-afternoon [1] - 

152:20

middle [1] - 151:20

might [10] - 7:5, 21:3, 

32:25, 33:19, 34:5, 

79:12, 132:13, 

162:23, 172:5, 172:8

mile [1] - 104:20

Miley [187] - 5:19, 

5:23, 13:8, 14:25, 

15:3, 15:12, 16:2, 

United States District Court

Camden, New Jersey

185

16:7, 16:10, 19:15, 

21:20, 22:9, 22:24, 

23:10, 23:19, 23:20, 

24:10, 24:13, 24:20, 

24:21, 24:23, 25:15, 

25:20, 26:10, 26:15, 

26:17, 27:10, 27:12, 

27:16, 27:24, 31:14, 

31:15, 31:16, 31:17, 

32:11, 33:6, 33:12, 

34:10, 34:11, 34:16, 

34:25, 35:7, 36:18, 

37:14, 37:20, 38:5, 

38:16, 38:19, 39:5, 

39:8, 39:20, 41:17, 

41:22, 41:25, 42:5, 

42:7, 42:17, 42:20, 

42:21, 44:18, 44:19, 

44:24, 47:9, 47:18, 

48:25, 51:18, 51:24, 

52:1, 52:7, 52:18, 

53:5, 54:25, 55:3, 

55:5, 55:14, 55:23, 

56:2, 62:14, 62:18, 

62:23, 63:2, 64:23, 

65:7, 65:11, 65:15, 

65:21, 65:25, 66:3, 

69:1, 69:4, 69:8, 

71:1, 71:3, 71:9, 

71:12, 71:15, 71:18, 

71:22, 72:8, 80:19, 

81:1, 81:6, 81:11, 

82:6, 85:9, 85:16, 

85:20, 86:12, 86:20, 

87:21, 88:1, 88:23, 

89:7, 89:13, 89:22, 

90:5, 90:10, 97:14, 

97:18, 97:25, 98:3, 

100:7, 100:15, 

105:18, 105:21, 

107:13, 108:15, 

108:24, 113:6, 

118:4, 118:19, 

118:23, 119:24, 

120:9, 120:14, 

122:6, 123:5, 

124:10, 124:14, 

128:12, 128:18, 

129:22, 132:24, 

133:3, 133:10, 

135:6, 135:12, 

137:21, 138:2, 

140:10, 140:12, 

141:8, 141:10, 

142:21, 143:2, 

144:24, 145:7, 

145:24, 148:18, 

149:3, 149:10, 

149:12, 149:18, 

149:24, 150:2, 

150:13, 154:16, 

Case 1:11-cv-02658-JBS-KMW Document 246 Filed 06/24/16 Page 185 of 195 PageID: 9219
155:5, 155:7, 

155:10, 155:22, 

156:21, 157:10, 

157:14, 157:15, 

159:4, 159:5, 161:6, 

163:1, 163:20, 

164:5, 167:23, 

168:7, 169:1, 171:13

Miley's [26] - 16:3, 

25:3, 25:13, 25:18, 

26:13, 26:25, 34:9, 

34:23, 37:8, 37:17, 

37:19, 39:13, 53:3, 

55:10, 63:9, 82:4, 

98:7, 144:4, 145:11, 

149:1, 154:12, 

155:15, 155:22, 

157:11, 157:18, 

159:13

million [2] - 22:8, 

27:14

mind [6] - 10:13, 

10:20, 12:19, 17:13, 

168:3, 170:15

mine [14] - 53:3, 

57:10, 61:8, 68:15, 

84:1, 99:13, 100:22, 

102:17, 125:14, 

128:3, 136:22, 

137:11, 142:16, 

151:25

minute [1] - 152:5

minutes [3] - 56:10, 

93:10, 152:21

missed [2] - 95:9, 

100:10

missing [3] - 8:2, 

79:10, 147:24

mistake [1] - 134:24

mistakenly [2] - 

104:21, 105:4

modality [1] - 16:25

moment [12] - 12:23, 

18:19, 36:13, 38:10, 

42:14, 103:8, 117:6, 

138:7, 149:16, 

151:4, 153:6, 165:16

Monday [2] - 44:7, 

97:9

money [3] - 24:7, 

31:24, 165:15

month [1] - 30:6

mooted [1] - 156:24

morning [43] - 5:3, 

5:4, 5:6, 5:10, 8:11, 

8:13, 20:19, 22:14, 

29:16, 56:7, 62:4, 

62:25, 63:1, 63:3, 

63:4, 64:9, 65:2, 

65:19, 70:15, 76:3, 

76:15, 76:19, 77:19, 

80:2, 80:3, 80:16, 

80:18, 81:8, 81:10, 

85:17, 89:21, 97:9, 

104:12, 104:14, 

104:24, 129:18, 

167:11, 168:17, 

168:20, 169:14, 

170:19, 170:20, 

171:19

morning's [1] - 6:19

most [2] - 26:21, 

53:18

motion [9] - 153:7, 

153:19, 154:5, 

154:7, 157:3, 

158:15, 158:17, 

158:20, 161:23

mouth [1] - 36:5

move [33] - 40:18, 

43:10, 46:1, 46:8, 

46:11, 48:6, 49:16, 

50:12, 53:11, 57:22, 

61:9, 63:23, 66:19, 

69:25, 73:12, 74:2, 

75:18, 82:22, 84:2, 

87:4, 88:12, 90:22, 

92:7, 94:14, 98:19, 

101:7, 104:4, 106:8, 

106:22, 108:6, 

109:16, 147:2, 155:9

moved [1] - 30:6

MR [301] - 2:5, 2:6, 

2:9, 2:10, 2:12, 2:14, 

2:15, 5:9, 5:25, 6:2, 

6:4, 6:5, 6:8, 6:10, 

6:14, 6:22, 7:16, 

7:24, 20:12, 20:13, 

20:18, 27:25, 28:12, 

29:3, 29:11, 29:14, 

29:15, 35:25, 36:3, 

36:8, 36:9, 36:19, 

37:1, 40:18, 40:21, 

40:25, 41:2, 41:3, 

43:10, 43:12, 43:16, 

43:18, 43:22, 43:23, 

46:1, 46:4, 46:10, 

46:13, 46:17, 46:18, 

48:6, 48:8, 48:11, 

48:13, 49:16, 49:18, 

49:21, 50:12, 50:14, 

50:18, 53:11, 53:13, 

53:17, 56:8, 56:16, 

56:21, 57:2, 57:3, 

57:22, 57:25, 58:4, 

59:13, 59:16, 59:19, 

61:9, 61:11, 61:14, 

63:23, 63:25, 64:4, 

66:19, 66:21, 66:24, 

69:25, 70:2, 70:5, 

72:21, 72:23, 72:25, 

73:4, 73:6, 73:12, 

73:15, 73:20, 74:2, 

74:4, 74:7, 75:18, 

75:20, 75:24, 76:24, 

77:3, 77:14, 78:8, 

78:22, 79:2, 79:14, 

79:23, 79:24, 81:17, 

81:20, 81:22, 81:24, 

82:1, 82:22, 82:23, 

83:2, 84:2, 84:4, 

84:7, 84:11, 84:12, 

84:15, 87:4, 87:6, 

87:9, 88:12, 88:15, 

88:19, 89:1, 89:6, 

89:15, 89:19, 90:22, 

90:24, 91:1, 91:5, 

91:8, 91:10, 92:7, 

92:9, 92:13, 92:23, 

93:8, 93:14, 93:18, 

93:25, 94:1, 94:14, 

94:16, 94:20, 98:19, 

98:21, 98:24, 99:4, 

99:9, 101:7, 101:12, 

101:15, 101:22, 

102:1, 102:3, 104:4, 

104:6, 104:10, 

105:9, 105:11, 

105:13, 106:8, 

106:10, 106:14, 

106:22, 106:25, 

107:4, 108:6, 108:8, 

108:12, 109:16, 

109:20, 109:23, 

110:3, 110:5, 

110:19, 110:23, 

111:11, 111:16, 

111:17, 111:20, 

112:11, 112:14, 

112:18, 112:21, 

113:3, 113:13, 

113:17, 113:18, 

117:1, 117:4, 117:8, 

117:11, 117:12, 

118:3, 119:9, 

119:11, 121:13, 

121:16, 121:18, 

123:13, 123:14, 

123:16, 128:22, 

129:7, 129:9, 

135:20, 135:21, 

135:24, 136:1, 

136:9, 137:11, 

137:12, 137:14, 

137:18, 138:7, 

138:10, 138:13, 

138:14, 139:15, 

139:17, 141:16, 

141:19, 141:21, 

143:7, 143:8, 

143:13, 143:15, 

144:7, 144:10, 

144:11, 145:8, 

145:12, 146:12, 

146:18, 147:5, 

147:7, 147:10, 

147:15, 148:2, 

148:5, 148:10, 

148:11, 149:6, 

149:8, 150:4, 150:9, 

150:17, 150:19, 

152:1, 152:2, 

152:11, 152:14, 

152:18, 152:19, 

153:4, 153:11, 

153:12, 153:14, 

153:22, 154:6, 

154:9, 155:12, 

158:17, 158:20, 

159:20, 159:23, 

159:25, 160:7, 

160:17, 161:7, 

161:9, 163:3, 

164:15, 165:8, 

165:15, 165:21, 

166:10, 167:5, 

167:12, 167:16, 

167:20, 167:25, 

168:22, 169:7, 

169:12, 169:16, 

169:23, 169:25, 

170:8, 171:5, 

171:10, 171:15, 

172:14

must [23] - 8:21, 9:5, 

9:18, 10:4, 12:15, 

15:10, 15:23, 16:7, 

17:17, 19:24, 86:3, 

89:23, 104:14, 

127:18, 127:25, 

128:1, 130:13, 

132:16, 160:17, 

163:5, 163:6

N

name [13] - 18:3, 

20:19, 22:25, 28:21, 

28:22, 31:15, 33:8, 

34:5, 42:11, 86:3, 

110:13, 115:19

named [1] - 23:14

namely [2] - 13:8, 

14:16

names [1] - 108:3

nature [5] - 5:12, 6:25, 

23:16, 36:1, 36:20

nearly [1] - 156:23

necessarily [2] - 

111:23

necessary [1] - 29:5

United States District Court

Camden, New Jersey

186

need [16] - 20:7, 

24:17, 25:10, 28:21, 

28:22, 37:10, 47:20, 

102:25, 121:14, 

129:3, 164:16, 

165:13, 167:3, 

167:9, 169:1, 171:24

needed [8] - 51:13, 

54:3, 58:6, 62:16, 

96:22, 115:16, 

118:12, 131:22

needing [2] - 148:16, 

152:14

needs [2] - 79:7, 

171:22

negate [4] - 155:21, 

156:2, 156:7, 168:10

negated [1] - 155:18

negative [1] - 30:12

negligent [1] - 162:8

negotiated [1] - 126:5

never [4] - 39:4, 

146:25, 158:2, 

166:14

NEW [2] - 1:1, 1:9

new [3] - 62:1, 70:10, 

115:8

New [18] - 70:19, 

83:16, 104:18, 

104:22, 105:4, 

105:16, 135:3, 

143:19, 144:5, 

159:22, 160:8, 

160:13, 160:16, 

161:14, 161:16, 

163:2, 163:24, 165:6

next [9] - 19:13, 58:22, 

70:12, 71:13, 76:7, 

81:4, 81:5, 83:13, 

85:10

nice [1] - 155:14

night [2] - 151:21, 

172:15

nine [2] - 30:1, 30:7

nine-and-a-half [1] - 

30:1

nine-plus [1] - 30:7

NO [1] - 1:4

nobody [1] - 77:10

none [4] - 6:4, 6:10, 

154:14, 160:25

nonexistent [1] - 

154:1

normal [3] - 145:21, 

145:23, 151:8

normally [2] - 11:15, 

19:1

Northern [1] - 163:9

note [10] - 46:25, 63:5, 

64:9, 76:14, 86:3, 

Case 1:11-cv-02658-JBS-KMW Document 246 Filed 06/24/16 Page 186 of 195 PageID: 9220
89:20, 103:1, 

127:22, 131:7, 

168:22

notebooks [1] - 17:25

noted [3] - 22:14, 

48:19, 48:24

notes [4] - 17:21, 

17:23, 17:24, 112:3

nothing [7] - 8:22, 

20:4, 113:14, 

126:23, 150:17, 

159:11, 162:6

notice [4] - 7:25, 28:9, 

132:6, 160:5

notices [2] - 67:7, 

107:24

notified [1] - 148:19

notify [7] - 70:13, 

76:5, 81:2, 133:22, 

142:14, 142:17, 

148:16

notion [1] - 166:15

number [22] - 21:17, 

25:24, 38:13, 39:25, 

48:17, 48:23, 54:5, 

54:6, 54:13, 54:15, 

54:20, 58:14, 58:20, 

61:19, 68:14, 70:9, 

108:19, 108:20, 

108:22, 126:8, 

141:23, 142:19

NUMBER [1] - 3:4

numbers [36] - 52:5, 

67:7, 67:14, 67:18, 

68:1, 68:24, 83:15, 

86:1, 86:4, 86:5, 

89:24, 89:25, 90:1, 

104:16, 108:4, 

108:14, 124:16, 

125:14, 125:15, 

125:16, 126:14, 

126:25, 127:19, 

127:20, 130:16, 

130:17, 130:20, 

131:9, 131:15, 

131:22, 132:23, 

137:15, 142:9, 

143:1, 157:21

numerous [1] - 129:15

O

o'clock [1] - 168:18

oath [2] - 11:24, 16:23

object [5] - 36:19, 

77:3, 128:22, 

135:24, 150:4

objected [2] - 110:23, 

146:1

objection [69] - 9:11, 

9:13, 9:14, 9:16, 

35:25, 40:20, 43:12, 

46:3, 46:12, 48:8, 

49:18, 50:14, 53:13, 

57:24, 57:25, 59:14, 

59:15, 61:11, 63:25, 

66:21, 70:2, 72:23, 

73:14, 74:4, 75:20, 

76:24, 77:24, 78:16, 

81:17, 81:22, 82:23, 

84:4, 84:11, 87:6, 

88:14, 89:1, 89:15, 

91:4, 92:9, 94:16, 

99:2, 99:4, 101:11, 

104:6, 105:9, 

106:10, 106:24, 

108:8, 109:19, 

110:25, 111:3, 

111:4, 111:7, 

111:10, 112:6, 

112:7, 112:13, 

112:22, 136:8, 

143:7, 143:8, 144:7, 

145:8, 145:12, 

148:7, 151:2, 151:3, 

168:1

objectionable [1] - 

151:2

objections [7] - 6:3, 

9:9, 40:21, 101:23, 

110:24, 112:15, 

147:11

obligated [1] - 98:4

obligation [2] - 9:10, 

98:5

obtain [3] - 11:21, 

11:24, 56:2

obvious [1] - 147:11

obviously [3] - 67:8, 

127:3, 168:1

occasion [2] - 133:5, 

135:7

occasions [1] - 

126:13

occurred [3] - 30:2, 

32:14, 121:2

OF [17] - 1:1, 2:5, 2:6, 

2:8, 2:10, 2:12, 2:14, 

2:15, 29:15, 101:15, 

102:2, 109:23, 

112:20, 113:18, 

138:14, 148:6, 149:8

offer [1] - 24:14

offered [4] - 9:11, 

19:12, 33:24, 52:8

offering [1] - 119:20

offers [1] - 25:7

office [9] - 23:16, 

31:7, 31:10, 82:3, 

96:2, 116:5, 146:6, 

147:3, 157:8

officer [5] - 15:23, 

21:22, 22:10, 22:16, 

113:5

officers [2] - 15:14, 

15:15

officially [1] - 43:21

OK' [1] - 54:6

okayed [5] - 59:7, 

59:10, 59:12, 59:22, 

60:11

old [3] - 78:24, 113:25, 

114:3

once [2] - 167:23, 

170:14

ONE [1] - 1:8

one [62] - 10:1, 13:15, 

14:2, 14:6, 17:9, 

19:5, 21:7, 21:15, 

22:12, 23:17, 38:8, 

47:25, 50:5, 52:10, 

53:20, 60:19, 60:20, 

64:10, 65:22, 66:11, 

70:10, 76:8, 76:21, 

77:16, 85:2, 85:7, 

86:22, 100:25, 

101:4, 108:18, 

109:20, 112:23, 

117:20, 120:16, 

120:19, 122:10, 

131:3, 131:7, 133:9, 

134:15, 134:16, 

134:19, 136:25, 

137:1, 137:3, 137:9, 

139:22, 141:14, 

143:16, 143:23, 

147:7, 149:16, 

150:20, 159:18, 

159:19, 159:21, 

160:3, 163:16, 

168:9, 168:22, 

171:15

ones [5] - 76:7, 81:3, 

86:15, 86:16, 112:15

open [7] - 17:13, 

56:18, 77:22, 

167:22, 167:23, 

168:20, 170:14

OPEN [3] - 5:2, 93:16, 

153:1

open-ended [1] - 

77:22

opening [11] - 6:23, 

6:25, 7:17, 19:9, 

26:19, 28:1, 28:5, 

28:6, 28:7, 166:13

openings [1] - 7:15

operated [1] - 21:13

operating [4] - 144:21, 

145:2, 145:21, 

148:12

opinion [1] - 17:12

opportunity [12] - 

5:24, 18:14, 19:4, 

30:22, 35:5, 148:3, 

161:20, 164:10, 

164:13, 164:14, 

166:9, 169:10

opposite [1] - 12:12

order [7] - 6:15, 15:8, 

22:24, 26:11, 62:16, 

83:4, 83:5

ordered [3] - 61:23, 

125:21, 135:2

ordering [2] - 65:2, 

66:12

ordinary [1] - 150:14

organized [1] - 115:4

orient [2] - 7:7, 7:20

original [18] - 61:4, 

66:16, 78:16, 85:3, 

85:8, 87:2, 88:10, 

94:12, 97:2, 97:16, 

98:17, 102:11, 

104:19, 106:4, 

106:5, 116:16, 

169:22

originally [2] - 60:3, 

95:2

originals [6] - 43:7, 

48:4, 50:9, 53:9, 

63:21, 169:17

originate [2] - 142:20

originated [1] - 142:24

otherwise [2] - 91:4, 

120:11

outcome [1] - 144:6

outgoing [10] - 53:19, 

96:14, 144:24, 

145:23, 145:24, 

149:18, 149:19, 

150:2, 150:15

outline [1] - 19:11

outside [3] - 10:3, 

14:5, 153:15

overall [1] - 157:17

overheard [1] - 17:10

overnight [2] - 5:5, 

5:11

overrule [1] - 9:15

overruled [1] - 36:24

oversight [1] - 15:24

overwhelmingly [1] - 

162:22

own [20] - 16:21, 18:1, 

20:22, 30:10, 34:23, 

37:17, 69:7, 77:7, 

78:23, 79:7, 105:15, 

121:2, 127:9, 141:6, 

United States District Court

Camden, New Jersey

187

148:17, 148:25, 

154:23, 156:17, 

159:2, 170:17

owner [6] - 20:22, 

20:23, 21:21, 22:10, 

22:16, 27:12

owners [1] - 68:17

ownership [1] - 27:14

P

P-1 [2] - 3:6, 40:24

P-10 [5] - 3:16, 4:1, 

61:12, 61:13, 91:9

P-11 [5] - 3:17, 64:1, 

64:3, 66:12

P-12 [5] - 3:18, 66:11, 

66:13, 66:22, 66:23

P-13 [6] - 3:19, 70:3, 

70:4, 74:14, 74:21, 

75:2

P-14 [6] - 3:20, 74:5, 

74:6, 74:17, 74:24, 

75:5

P-15 [3] - 3:21, 75:21, 

75:23

P-16 [3] - 3:22, 82:24, 

83:1

P-17 [3] - 3:23, 84:5, 

84:6

P-18 [3] - 3:24, 87:7, 

87:8

P-19 [3] - 3:25, 88:16, 

88:18

P-2 [2] - 3:7, 43:15

P-21 [3] - 4:2, 92:10, 

92:12

P-22 [4] - 4:3, 94:17, 

94:19, 99:10

P-23 [3] - 4:4, 99:7, 

99:8

P-24 [3] - 4:6, 104:7, 

104:9

P-25 [3] - 4:7, 106:11, 

106:13

P-26 [3] - 4:8, 107:1, 

107:3

P-27 [3] - 4:9, 108:9, 

108:11

P-28 [3] - 4:10, 

112:24, 113:2

P-3 [3] - 3:9, 46:14, 

46:16

P-34 [3] - 3:13, 53:14, 

53:16

P-4 [2] - 3:8, 46:7

P-40 [4] - 4:5, 101:11, 

101:24, 101:25

P-5 [2] - 3:10, 48:12

Case 1:11-cv-02658-JBS-KMW Document 246 Filed 06/24/16 Page 187 of 195 PageID: 9221
P-6 [3] - 3:11, 49:19, 

49:20

P-7 [4] - 3:12, 50:15, 

50:17, 160:4

P-8 [3] - 3:14, 58:1, 

58:3

P-9 [3] - 3:14, 58:1, 

58:3

P.C [1] - 1:16

p.m [13] - 67:4, 93:2, 

93:6, 93:16, 93:21, 

151:17, 151:19, 

152:23, 152:24, 

153:1, 170:2, 171:1, 

172:16

PA [3] - 95:8, 95:10, 

95:14

package [3] - 110:6, 

110:18, 111:15

packet [1] - 111:23

Page [17] - 41:4, 42:8, 

42:21, 44:4, 44:25, 

45:3, 45:15, 46:19, 

108:18, 109:7, 

117:13, 119:12, 

121:19, 125:7, 

139:18, 140:8

page [65] - 17:1, 

40:10, 42:18, 42:25, 

43:6, 44:25, 45:10, 

45:12, 47:10, 48:3, 

48:14, 49:1, 50:8, 

51:7, 51:9, 51:16, 

53:8, 54:11, 54:13, 

54:17, 63:19, 64:15, 

67:16, 68:3, 68:24, 

68:25, 69:3, 69:22, 

72:2, 73:8, 73:9, 

73:10, 73:17, 73:24, 

75:12, 81:12, 87:15, 

90:14, 95:1, 99:15, 

99:24, 100:1, 100:8, 

102:21, 103:22, 

104:1, 104:2, 

110:25, 112:2, 

112:3, 123:13, 

124:2, 130:23, 

136:23, 139:14, 

140:7, 151:12

PAGE [2] - 2:3, 3:4

pages [12] - 40:14, 

63:18, 66:15, 98:23, 

99:21, 99:23, 

103:25, 109:8, 

112:13, 112:25, 

136:18, 171:11

Pages [5] - 44:3, 44:5, 

44:11, 45:4, 109:17

paid [3] - 26:3, 126:7, 

126:11

painful [2] - 78:3, 78:5

painfully [1] - 77:25

paper [3] - 18:19, 

68:18, 147:2

papers [1] - 110:8

paperwork [2] - 32:20, 

34:7

paragraph [8] - 8:2, 

48:20, 58:12, 62:6, 

62:24, 70:23, 71:16, 

105:3

parse [1] - 37:10

part [18] - 9:23, 26:21, 

27:3, 44:3, 46:25, 

61:3, 62:3, 79:20, 

83:4, 84:20, 91:16, 

91:17, 98:17, 

108:23, 110:6, 

110:17, 115:12, 

115:20

partial [1] - 6:16

participated [2] - 15:3, 

22:18

participation [12] - 

8:16, 15:20, 17:3, 

23:3, 23:6, 23:11, 

24:1, 27:11, 155:16, 

159:14, 168:8, 

168:13

particular [8] - 24:17, 

26:15, 28:9, 36:24, 

77:16, 78:9, 154:11, 

156:16

particulars [1] - 42:15

parties [2] - 11:13, 

172:2

parts [1] - 59:18

party [12] - 11:17, 

11:18, 11:20, 11:21, 

11:22, 11:24, 11:25, 

19:11, 28:5, 117:7, 

162:10, 162:17

party's [1] - 28:8

pass [4] - 37:13, 

115:17, 115:20, 

132:21

passed [3] - 80:11, 

118:4, 120:1

past [1] - 92:21

pattern [1] - 145:20

pay [8] - 24:7, 31:24, 

58:12, 81:14, 83:4, 

83:5, 98:5, 157:24

payable [3] - 26:7, 

64:17, 102:25

paying [1] - 170:18

payment [17] - 58:7, 

58:8, 64:11, 65:23, 

76:9, 90:9, 90:10, 

92:19, 92:20, 97:19, 

100:9, 100:14, 

100:23, 101:4, 

101:18, 103:5, 

125:23

payments [3] - 38:20, 

103:6, 125:21

Pellegrini [1] - 20:21

penalty [1] - 11:19

Pennsylvania [19] - 

70:20, 85:4, 95:15, 

104:18, 104:21, 

105:17, 135:4, 

143:19, 143:20, 

144:5, 159:22, 

159:23, 160:5, 

160:11, 160:16, 

161:11, 161:16, 

163:1, 163:23

people [16] - 17:6, 

20:24, 68:23, 68:25, 

69:4, 86:7, 86:13, 

90:4, 98:6, 104:15, 

108:14, 132:25, 

143:6, 155:6, 

161:14, 164:7

per [12] - 22:6, 58:14, 

59:7, 60:11, 61:20, 

64:6, 76:3, 76:19, 

77:18, 80:2, 80:16, 

88:21

perfect [1] - 92:23

perfectly [1] - 150:10

performance [1] - 

162:8

performing [1] - 

148:13

perhaps [2] - 18:24, 

161:23

period [4] - 13:16, 

80:11, 96:9, 145:3

perjury [1] - 11:19

permission [1] - 40:25

permit [10] - 16:13, 

17:20, 36:25, 78:11, 

89:16, 91:3, 154:20, 

157:3, 158:15, 

170:16

permitted [3] - 11:12, 

17:22, 136:4

permitting [1] - 148:8

person [12] - 13:22, 

14:11, 32:9, 34:2, 

35:4, 44:12, 66:1, 

71:11, 85:7, 103:17, 

125:25, 132:22

personal [15] - 5:23, 

14:13, 15:1, 15:2, 

15:12, 15:20, 15:22, 

18:2, 23:2, 27:10, 

27:17, 154:15, 

154:19, 168:8, 

168:12

personally [11] - 13:8, 

15:3, 15:15, 15:18, 

15:21, 22:16, 22:18, 

23:4, 25:20, 27:11, 

65:11

persons [4] - 13:13, 

90:2, 98:6, 107:25

persuade [1] - 7:1

pertain [1] - 100:23

pertaining [2] - 92:4, 

106:20

phase [1] - 11:10

phone [11] - 16:25, 

31:10, 76:22, 80:15, 

86:1, 107:11, 

107:12, 108:14, 

122:14, 129:19, 

139:3

phones [1] - 116:2

phrase [2] - 48:18, 

48:23

phrasing [1] - 150:5

physically [1] - 39:4

pick [1] - 169:13

picture [2] - 46:24, 

154:25

piece [2] - 18:19, 

116:20

pieces [1] - 147:2

place [2] - 11:15, 

28:17

placed [1] - 27:18

placing [1] - 51:6

Plaintiff [2] - 1:3, 1:15

plaintiff [34] - 5:25, 

6:4, 12:3, 12:4, 12:6, 

12:8, 12:11, 12:12, 

12:14, 13:5, 13:7, 

15:2, 15:10, 16:6, 

16:8, 19:13, 19:16, 

20:17, 20:23, 153:3, 

153:18, 153:24, 

154:1, 154:4, 158:3, 

159:2, 165:13, 

166:11, 166:12, 

169:11, 170:7, 

170:8, 170:11

PLAINTIFF [58] - 3:6, 

3:7, 3:8, 3:9, 3:10, 

3:11, 3:12, 3:13, 

3:14, 3:16, 3:17, 

3:18, 3:19, 3:20, 

3:21, 3:22, 3:23, 

3:24, 3:25, 4:1, 4:2, 

4:3, 4:4, 4:5, 4:6, 

4:7, 4:8, 4:9, 4:10, 

40:24, 43:15, 46:7, 

46:16, 48:12, 49:20, 

United States District Court

Camden, New Jersey

188

50:17, 53:16, 58:3, 

61:13, 64:3, 66:23, 

70:4, 74:6, 75:23, 

83:1, 84:6, 87:8, 

88:18, 91:9, 92:12, 

94:19, 99:8, 101:25, 

104:9, 106:13, 

107:3, 108:11, 113:2

Plaintiff's [69] - 40:8, 

40:10, 40:19, 40:22, 

41:4, 42:25, 43:11, 

43:13, 45:7, 45:18, 

46:2, 46:5, 46:8, 

46:11, 46:20, 47:19, 

48:7, 48:15, 49:4, 

49:5, 49:6, 49:8, 

49:12, 49:16, 50:2, 

50:12, 52:21, 52:25, 

53:12, 54:22, 57:4, 

57:5, 57:6, 57:17, 

57:19, 57:23, 60:22, 

61:10, 63:12, 63:24, 

66:4, 66:8, 66:20, 

69:12, 69:22, 70:1, 

73:13, 73:21, 74:3, 

74:9, 75:8, 75:19, 

82:9, 83:3, 83:18, 

84:3, 87:5, 88:13, 

92:8, 94:3, 94:15, 

100:16, 101:8, 

104:5, 106:15, 

106:23, 107:15, 

108:7, 109:17

plaintiff's [12] - 5:8, 

12:13, 48:9, 114:11, 

138:18, 138:19, 

153:7, 154:13, 

155:1, 158:10, 

158:22, 170:12

plaintiffs [4] - 5:7, 

13:10, 138:23, 

154:10

plan [3] - 93:12, 

118:15, 118:19

play [4] - 8:6, 46:24, 

147:4, 165:17

PLAZA [1] - 1:8

plenty [1] - 162:20

plus [15] - 30:7, 50:23, 

50:24, 52:3, 52:10, 

52:11, 64:8, 70:16, 

71:25, 85:3, 85:8, 

85:11, 99:2

point [27] - 7:17, 8:1, 

28:1, 30:4, 32:24, 

36:10, 37:23, 37:25, 

38:1, 81:8, 92:22, 

132:2, 132:10, 

142:4, 142:9, 

145:17, 145:19, 

Case 1:11-cv-02658-JBS-KMW Document 246 Filed 06/24/16 Page 188 of 195 PageID: 9222
155:14, 155:17, 

155:19, 155:21, 

156:4, 166:7, 

166:10, 168:2

point-by-point [2] - 

155:14, 155:21

points [2] - 7:22, 18:4

pontificate [1] - 7:16

population [1] - 162:3

portion [2] - 125:13, 

156:5

portray [1] - 17:2

position [2] - 31:6, 

31:19

positive [1] - 159:24

possibility [1] - 33:13

possible [5] - 11:22, 

12:1, 105:15, 

109:14, 167:11

possibly [5] - 33:5, 

50:24, 62:4, 152:13, 

154:10

post [1] - 17:1

potential [1] - 91:1

pow [1] - 139:4

pow-wowed [1] - 

139:4

practice [6] - 8:8, 

145:2, 145:21, 

156:15, 157:9, 

164:17

practices [1] - 144:21

predicate [3] - 78:16, 

79:18, 146:19

predict [1] - 35:7

prediction [2] - 7:3, 

172:11

predictions [1] - 171:5

preface [1] - 78:6

prefer [2] - 46:23, 47:6

preferred [1] - 47:7

preliminary [2] - 8:15, 

20:9

premise [5] - 73:2, 

77:5, 77:8, 155:17, 

162:20

prepare [2] - 64:19, 

120:17

prepared [8] - 12:1, 

81:16, 81:19, 81:21, 

82:2, 114:7, 153:3, 

168:20

preparing [1] - 11:13

preponderance [4] - 

12:5, 12:21, 15:11, 

154:21

prepped [1] - 79:5

presence [2] - 153:9, 

153:15

present [3] - 19:13, 

19:16, 148:8

presented [4] - 10:5, 

16:5, 111:18, 154:10

presenting [2] - 26:23, 

27:19

presents [2] - 155:1, 

166:13

president [1] - 13:7

pretrial [2] - 11:8, 

11:10

previous [1] - 62:19

previously [2] - 10:25, 

20:1

price [8] - 24:17, 

41:14, 42:2, 42:4, 

59:10, 61:18, 64:7, 

126:7

prices [2] - 126:3, 

126:5

pricing [3] - 61:21, 

85:11, 118:11

principal [6] - 162:7, 

162:9, 162:11, 

162:14, 162:17, 

168:5

Priority [10] - 60:10, 

61:15, 61:21, 61:22, 

62:12, 64:7, 70:17, 

85:11, 97:4

priority [1] - 58:24

probative [5] - 27:8, 

77:16, 155:19, 

156:8, 156:11

problem [4] - 25:6, 

105:7, 113:23, 

166:25

problems [2] - 155:12, 

163:16

procedural [2] - 28:3, 

154:1

procedure [12] - 19:7, 

79:9, 96:20, 145:23, 

146:3, 146:5, 146:7, 

146:8, 146:9, 

146:10, 146:13, 

148:12

procedures [4] - 

11:16, 144:19, 

145:21, 146:4

proceed [5] - 24:18, 

29:12, 56:20, 79:13, 

166:20

proceeding [1] - 51:2

process [7] - 8:6, 

17:22, 23:3, 23:12, 

25:15, 27:1, 118:13

processing [1] - 62:2

produce [1] - 12:6

production [2] - 

11:20, 111:21

professional [1] - 

13:18

program [1] - 58:16

prohibits [1] - 7:18

promised [1] - 5:5

promoted [1] - 14:10

prompt [1] - 47:2

promptly [2] - 16:19, 

62:3

pronged [1] - 168:7

proof [8] - 10:8, 10:10, 

12:2, 12:17, 13:25, 

96:16, 154:11, 

164:21

proper [5] - 9:24, 

131:25, 146:7, 

147:14, 148:9

properly [1] - 7:3

proposal [2] - 37:21, 

37:22

propose [2] - 37:23, 

153:22

proposed [2] - 169:2, 

172:3

prospect [1] - 34:15

protect [1] - 162:10

Protection [3] - 13:6, 

13:21, 21:25

prove [8] - 7:5, 7:6, 

15:11, 16:6, 19:12, 

23:2, 27:10, 164:21

proved [3] - 14:16, 

91:7, 164:20

proven [1] - 165:18

provide [1] - 108:21

provided [6] - 42:16, 

121:23, 124:1, 

125:17, 138:24, 

145:5

provides [1] - 22:15

proving [1] - 12:4

public [1] - 17:16

publish [3] - 40:25, 

43:16, 43:19

pull [2] - 141:5, 167:9

pulled [1] - 137:12

purchases [1] - 126:7

purpose [3] - 6:25, 

9:18, 19:4

purposes [3] - 14:7, 

30:23, 74:9

pursue [2] - 33:20, 

34:21

pursuing [1] - 34:18

pushed [1] - 146:24

put [25] - 7:12, 12:10, 

12:19, 20:2, 20:8, 

21:5, 21:7, 29:4, 

36:4, 41:21, 46:22, 

48:16, 48:17, 53:5, 

59:20, 81:12, 103:1, 

103:8, 111:25, 

128:1, 143:23, 

167:23, 172:8

puts [1] - 131:9

putting [1] - 59:11

Q

qualifies [1] - 14:7

qualms [1] - 146:10

quantities [2] - 52:5, 

64:25

quantity [1] - 16:9

questioning [5] - 77:4, 

104:16, 138:17, 

145:18, 146:22

questions [29] - 6:21, 

7:15, 9:7, 9:9, 11:18, 

18:13, 18:14, 18:17, 

18:18, 18:24, 19:6, 

22:13, 29:19, 36:7, 

62:15, 77:6, 78:21, 

120:22, 143:5, 

144:12, 145:14, 

146:9, 147:16, 

150:24, 151:24, 

151:25, 152:5, 

170:22

quick [2] - 87:10, 

143:5

quickly [1] - 118:12

quite [2] - 96:10, 

163:11

quote [8] - 7:9, 7:11, 

13:12, 13:19, 24:21, 

126:8, 140:24, 

154:16

quoted [1] - 97:4

R

radius [2] - 35:18, 

104:20

raining [1] - 35:13

rainy [8] - 25:4, 25:12, 

35:4, 35:7, 39:17, 

39:20, 70:12, 71:13

raise [4] - 28:18, 

151:3, 152:4, 166:2

raised [1] - 151:25

RANDALL [1] - 1:5

Randall [84] - 5:18, 

13:1, 13:8, 13:13, 

13:19, 14:22, 14:25, 

16:2, 21:1, 21:19, 

21:22, 22:4, 22:7, 

22:10, 23:13, 24:5, 

24:9, 24:12, 24:24, 

United States District Court

Camden, New Jersey

189

25:22, 27:12, 29:21, 

30:3, 30:9, 31:5, 

31:20, 32:1, 32:14, 

34:20, 35:5, 35:18, 

36:11, 38:12, 38:20, 

39:11, 42:16, 44:12, 

47:8, 52:5, 52:12, 

53:21, 57:12, 64:16, 

65:14, 65:16, 67:21, 

68:5, 68:8, 68:21, 

69:19, 72:11, 81:13, 

82:5, 82:16, 82:18, 

83:8, 89:11, 92:3, 

92:15, 95:16, 98:4, 

102:5, 106:17, 

113:4, 114:17, 

114:21, 117:19, 

118:17, 122:10, 

129:13, 135:13, 

139:21, 141:1, 

142:8, 142:18, 

142:25, 144:18, 

145:2, 148:13, 

149:10, 151:9, 

156:16, 166:1

Randall-created [1] - 

47:8

Randy [8] - 31:14, 

31:16, 44:17, 54:24, 

54:25, 124:10, 

155:7, 159:4

rather [3] - 15:25, 

117:6, 153:16

Raymond [6] - 13:8, 

27:24, 31:15, 

137:20, 155:10, 

159:4

re [3] - 44:4, 44:10, 

84:23

re-fax [2] - 44:4, 44:10

read [28] - 16:17, 18:2, 

44:8, 48:20, 51:3, 

54:9, 54:23, 58:17, 

67:10, 70:21, 76:16, 

83:16, 85:4, 85:12, 

86:10, 102:22, 

114:7, 117:7, 117:9, 

121:19, 121:21, 

123:10, 139:14, 

139:18, 140:3, 

140:5, 140:7, 140:13

reading [1] - 58:23

Reading [1] - 86:2

Reading/Allentown

[1] - 85:4

reads [6] - 58:24, 

67:17, 76:3, 85:2, 

85:10, 88:21

ready [8] - 8:5, 25:11, 

28:10, 56:20, 93:3, 

Case 1:11-cv-02658-JBS-KMW Document 246 Filed 06/24/16 Page 189 of 195 PageID: 9223
93:17, 93:24, 139:4

real [1] - 143:4

really [5] - 7:8, 77:8, 

112:4, 137:6, 165:18

reason [4] - 79:6, 

121:9, 135:22, 

165:14

reasonable [3] - 

12:17, 18:24, 158:1

reasonably [1] - 78:21

recalled [1] - 127:13

receipt [6] - 64:12, 

76:10, 102:13, 

118:21, 132:25, 

133:10

receive [3] - 19:23, 

37:13, 127:4

received [69] - 5:9, 

9:2, 9:18, 11:9, 

19:22, 20:25, 40:22, 

43:13, 43:21, 44:2, 

44:3, 45:4, 46:5, 

46:14, 48:9, 49:19, 

50:15, 53:4, 53:14, 

57:12, 58:2, 61:12, 

64:1, 66:22, 67:9, 

67:21, 68:8, 68:9, 

68:20, 69:19, 70:3, 

71:3, 74:5, 75:21, 

82:15, 82:16, 82:24, 

84:5, 87:7, 88:16, 

92:3, 92:10, 92:14, 

94:17, 99:7, 101:24, 

104:7, 106:11, 

106:17, 107:1, 

107:24, 108:9, 

108:13, 112:25, 

116:5, 118:14, 

129:15, 131:12, 

133:12, 139:25, 

140:9, 140:10, 

140:11, 142:7, 

142:8, 142:17, 

142:18, 143:1, 

150:14

Received [1] - 110:15

RECEIVED [58] - 3:6, 

3:7, 3:8, 3:9, 3:10, 

3:11, 3:12, 3:13, 

3:14, 3:16, 3:17, 

3:18, 3:19, 3:20, 

3:21, 3:22, 3:23, 

3:24, 3:25, 4:1, 4:2, 

4:3, 4:4, 4:5, 4:6, 

4:7, 4:8, 4:9, 4:10, 

40:24, 43:15, 46:7, 

46:16, 48:12, 49:20, 

50:17, 53:16, 58:3, 

61:13, 64:3, 66:23, 

70:4, 74:6, 75:23, 

83:1, 84:6, 87:8, 

88:18, 91:9, 92:12, 

94:19, 99:8, 101:25, 

104:9, 106:13, 

107:3, 108:11, 113:2

receiving [2] - 86:9, 

86:13

Recess [1] - 56:17

recess [1] - 93:1

RECESS [1] - 152:24

recipient [1] - 132:7

recipient's [1] - 14:5

recipients [4] - 14:21, 

144:2, 163:15, 166:3

recites [1] - 8:3

recognize [18] - 5:18, 

40:8, 42:25, 50:2, 

57:6, 66:6, 75:10, 

83:19, 88:4, 92:1, 

94:10, 98:11, 

101:20, 101:21, 

103:22, 107:17, 

109:8, 111:19

recognized [2] - 

73:16, 155:3

recognizing [1] - 

166:18

recollecting [1] - 

113:23

recollection [30] - 

18:10, 19:25, 27:4, 

30:23, 32:17, 32:21, 

32:24, 38:6, 78:23, 

79:3, 79:7, 79:10, 

110:7, 111:14, 

114:6, 117:1, 

117:10, 120:15, 

121:5, 121:6, 122:5, 

133:14, 133:16, 

133:17, 134:2, 

134:18, 140:18, 

154:19, 157:5

record [11] - 9:2, 97:5, 

109:6, 112:21, 

153:18, 153:25, 

154:3, 159:11, 

160:25, 171:25

records [4] - 64:13, 

76:10, 159:1, 159:2

recross [1] - 149:7

RECROSS [2] - 2:15, 

149:8

redevelop [1] - 36:7

redirect [3] - 138:12, 

156:14, 156:24

REDIRECT [2] - 2:14, 

138:14

reestablished [1] - 

156:25

refer [3] - 8:3, 29:6, 

80:3

reference [2] - 31:16, 

70:9

referenced [1] - 

136:10

references [1] - 58:8

referencing [2] - 

121:13, 123:23

referring [10] - 31:16, 

45:1, 48:22, 49:2, 

59:2, 59:20, 80:2, 

95:12, 129:12, 

134:15

reflect [2] - 27:1, 

153:18

reflects [1] - 154:4

refrain [1] - 78:7

reframe [1] - 81:18

reframed [1] - 79:21

refresh [3] - 27:4, 

30:23, 117:1

refreshed [2] - 32:21, 

79:8

refreshes [1] - 117:10

regard [4] - 35:10, 

96:21, 148:21, 

158:21

regarded [1] - 14:16

regarding [10] - 41:14, 

42:2, 46:21, 51:2, 

76:1, 84:24, 88:20, 

90:17, 149:15, 

149:23

register [1] - 17:17

regular [1] - 20:6

reject [1] - 10:17

relates [1] - 85:25

relating [3] - 82:20, 

88:7, 98:14

relation [1] - 33:13

relationship [1] - 

13:14

relative [2] - 16:3, 

156:19

released [1] - 152:11

relevance [1] - 77:16

relevant [6] - 11:11, 

11:21, 16:22, 27:8, 

77:17, 163:7

relies [1] - 27:3

rely [2] - 19:24, 79:6

remember [30] - 

17:23, 18:1, 18:5, 

19:3, 33:11, 60:17, 

64:24, 96:11, 96:23, 

115:19, 116:13, 

116:19, 116:20, 

116:21, 116:23, 

117:5, 117:24, 

119:5, 119:6, 

119:25, 120:11, 

123:20, 124:16, 

124:18, 128:7, 

136:16, 137:22, 

140:24, 149:20, 

149:22

remembered [1] - 

32:19

remind [3] - 6:24, 

49:8, 74:9

removal [2] - 126:8, 

126:21

Remove [1] - 108:19

remove [29] - 58:14, 

58:15, 58:20, 61:19, 

61:20, 67:6, 67:17, 

67:25, 69:4, 86:3, 

89:23, 108:3, 

126:14, 126:25, 

127:19, 127:24, 

127:25, 128:1, 

130:13, 130:20, 

131:8, 131:15, 

131:22, 132:7, 

132:17, 132:23, 

142:14, 142:19

removed [18] - 68:14, 

86:8, 86:17, 90:3, 

104:16, 107:25, 

108:14, 109:6, 

109:24, 110:1, 

110:4, 112:23, 

131:25, 132:1, 

133:1, 142:9, 

142:19, 143:1

removing [1] - 137:13

rendered [3] - 64:12, 

76:9, 76:10

renewed [1] - 160:24

repairing [1] - 24:25

repairs [6] - 13:17, 

13:18, 24:22, 24:23, 

25:2, 48:23

repeated [1] - 145:13

rephrase [8] - 59:18, 

73:4, 73:5, 84:12, 

89:4, 97:20, 105:11, 

143:13

rephrased [1] - 148:8

report [4] - 31:13, 

34:11, 93:1, 170:19

reported [1] - 24:20

REPORTER [1] - 

118:1

represent [2] - 20:20, 

40:4

representation [1] - 

111:24

representative [1] - 

13:12

United States District Court

Camden, New Jersey

190

representing [1] - 

138:23

request [18] - 20:8, 

24:19, 25:13, 26:14, 

27:6, 28:2, 34:10, 

39:13, 40:25, 80:23, 

82:4, 104:18, 106:5, 

135:3, 135:5, 

136:11, 161:2, 

167:21

requested [3] - 41:12, 

41:20, 159:9

requests [5] - 31:11, 

62:15, 106:3, 

129:15, 142:19

require [2] - 52:20, 

87:10

required [7] - 1:23, 

19:5, 28:5, 58:13, 

58:19, 103:1, 154:11

requirement [1] - 

12:18

requirements [2] - 

16:4, 154:10

requires [2] - 13:25, 

15:2

requiring [1] - 30:16

research [2] - 16:20, 

170:17

resend [2] - 104:22, 

105:4

resent [3] - 135:15, 

159:9, 159:11

reserve [3] - 28:1, 

164:13, 167:17

resolution [2] - 11:13, 

161:23

resolve [2] - 78:2, 

161:24

respectful [1] - 8:6

respond [2] - 133:21, 

161:7

responded [1] - 24:21

responding [2] - 

42:15, 152:16

RESPONSE [2] - 5:3, 

8:13

response [7] - 104:24, 

109:14, 133:18, 

149:14, 164:24, 

167:24

responsibilities [2] - 

31:8, 148:14

responsibility [6] - 

5:23, 27:17, 32:9, 

34:20, 115:4, 168:5

responsible [5] - 13:9, 

32:4, 32:5, 32:8, 

164:3

rest [5] - 153:3, 153:6, 

Case 1:11-cv-02658-JBS-KMW Document 246 Filed 06/24/16 Page 190 of 195 PageID: 9224
153:12, 153:17, 

172:2

rested [3] - 154:4, 

169:20, 170:11

resting [1] - 153:18

restriction [3] - 35:19, 

35:22, 36:16

restrictions [4] - 

35:17, 36:22, 

162:13, 162:16

rests [4] - 153:24, 

154:2, 169:11, 170:9

result [1] - 168:23

resulted [1] - 118:21

resume [3] - 56:11, 

56:15, 152:21

rethink [1] - 5:12

retire [2] - 16:14, 

19:20

return [2] - 168:17, 

170:13

returns [1] - 165:6

reversed [1] - 146:4

review [8] - 5:24, 

18:21, 30:22, 44:5, 

44:11, 114:11, 

114:14, 155:2

reviewed [7] - 5:8, 

25:20, 32:22, 37:20, 

37:24, 53:5, 150:15

reviewing [1] - 138:18

revise [1] - 5:13

revised [1] - 54:2

revision [2] - 5:21, 

48:17

rights [1] - 164:7

ring [2] - 34:6, 39:25

rise [13] - 5:1, 8:9, 

56:13, 56:19, 56:23, 

93:5, 93:15, 93:20, 

152:22, 152:25, 

169:10, 170:1, 

170:25

risk [2] - 113:9, 113:10

RMR [2] - 1:24, 1:25

Robert [1] - 1:25

rolling [1] - 139:13

Roof [1] - 42:19

roof [6] - 13:16, 24:25, 

25:5, 35:4, 68:17

roofing [7] - 13:1, 

24:24, 25:2, 25:7, 

35:1, 47:15, 65:14

roofs [1] - 31:12

room [2] - 16:14, 93:2

route [1] - 147:19

routed [1] - 115:24

routine [10] - 145:1, 

146:15, 146:23, 

147:19, 147:22, 

148:1, 148:12, 

148:24, 156:15

routines [3] - 144:19, 

147:1, 147:2

routing [1] - 26:9

rubber [1] - 141:14

rubber-stamped [1] - 

141:14

Rule [3] - 153:19, 

157:3, 158:14

ruled [1] - 6:12

rules [5] - 9:12, 11:12, 

17:18, 18:23, 150:23

Rules [1] - 146:16

ruling [5] - 9:13, 

145:19, 163:9, 

165:25, 167:24

rulings [1] - 172:1

run [1] - 83:14

rush [1] - 172:10

S

safe [2] - 169:19, 

170:23

SALES [1] - 1:2

Sales [4] - 12:3, 13:5, 

13:11, 20:21

sat [3] - 12:16, 138:22, 

138:24

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

168:12, 168:13

saved [1] - 86:16

saw [3] - 57:19, 

144:24, 147:3

scale [1] - 12:12

scales [1] - 12:13

schedule [1] - 170:22

scope [5] - 26:2, 

82:17, 141:6, 

141:23, 149:7

screen [3] - 7:12, 

51:6, 81:12

screw [1] - 105:16

screw-up [1] - 105:16

seated [8] - 5:4, 8:11, 

29:2, 56:25, 93:23, 

153:2, 170:3, 171:2

second [29] - 9:9, 

14:2, 15:21, 16:17, 

42:1, 44:10, 45:12, 

47:1, 47:10, 47:14, 

48:19, 49:1, 58:12, 

62:6, 63:19, 67:16, 

68:24, 69:22, 71:7, 

76:1, 76:4, 80:22, 

81:14, 86:14, 100:1, 

104:1, 105:3, 112:2, 

147:18

seconds [1] - 168:2

secretarial [1] - 31:9

secretary [1] - 23:16

section [2] - 48:19, 

58:22

Section [1] - 1:23

see [54] - 10:3, 19:21, 

20:2, 20:4, 25:10, 

31:2, 33:23, 34:5, 

35:11, 43:24, 44:4, 

45:4, 45:12, 47:1, 

49:22, 52:25, 55:20, 

56:1, 59:25, 60:17, 

60:23, 67:1, 67:7, 

67:19, 68:18, 70:6, 

73:8, 76:25, 78:19, 

83:3, 84:8, 91:16, 

102:10, 103:5, 

103:9, 104:18, 

106:3, 116:15, 

116:16, 116:18, 

117:9, 145:15, 

145:24, 146:14, 

151:11, 151:14, 

153:20, 164:14, 

170:24, 171:10, 

171:22, 171:23, 

172:5, 172:7

seeing [2] - 5:12, 7:8

seeking [3] - 55:5, 

156:17, 171:6

seeks [1] - 13:7

seem [1] - 156:6

sees [1] - 145:23

Select [5] - 12:3, 13:4, 

13:11, 15:10, 20:21

SELECT [1] - 1:2

selecting [1] - 22:13

selection [2] - 17:22, 

28:3

send [18] - 13:3, 

13:22, 14:2, 22:1, 

26:14, 35:13, 39:1, 

39:19, 42:22, 61:25, 

64:12, 70:11, 71:13, 

76:9, 97:1, 97:12, 

105:18, 163:1

sender [9] - 5:6, 5:13, 

5:19, 5:20, 6:18, 

14:7, 14:22, 162:4, 

162:5

sending [17] - 7:18, 

26:4, 26:10, 58:9, 

58:13, 63:6, 70:13, 

70:16, 71:16, 88:24, 

89:7, 105:16, 107:8, 

107:9, 107:10, 155:8

sense [1] - 10:22

sent [79] - 13:15, 14:4, 

14:9, 14:20, 25:25, 

30:25, 36:11, 38:14, 

39:4, 44:3, 47:12, 

58:14, 62:4, 62:7, 

62:20, 62:25, 63:1, 

63:4, 64:7, 64:9, 

65:19, 68:4, 68:20, 

70:15, 75:16, 76:11, 

76:15, 76:16, 81:7, 

83:14, 85:11, 85:14, 

89:10, 89:21, 96:17, 

97:4, 99:24, 104:17, 

104:19, 104:21, 

105:1, 105:4, 

105:20, 123:17, 

123:22, 123:24, 

125:21, 125:22, 

125:23, 125:25, 

131:5, 131:12, 

132:6, 135:14, 

137:20, 137:23, 

139:1, 139:2, 145:5, 

148:22, 155:5, 

158:23, 159:8, 

159:13, 160:13, 

160:16, 160:21, 

160:22, 161:5, 

163:2, 163:10, 

163:18, 164:21, 

165:1, 165:4, 165:6, 

165:25, 166:6

sentence [9] - 42:1, 

48:20, 51:5, 63:4, 

70:23, 78:17, 80:1, 

85:10

separate [2] - 21:14, 

21:16

September [2] - 30:8, 

95:19

served [1] - 30:15

service [8] - 13:18, 

24:22, 24:23, 25:2, 

31:11, 31:12, 115:7, 

115:10

services [14] - 14:9, 

21:1, 21:19, 24:15, 

25:7, 25:22, 32:14, 

35:2, 38:12, 39:12, 

47:16, 64:12, 76:9, 

76:10

servicing [3] - 31:12, 

35:23, 115:16

serving [1] - 13:11

set [6] - 25:11, 35:12, 

44:6, 44:21, 44:23, 

157:20

setting [2] - 101:2, 

106:6

seven [4] - 50:22, 

51:20, 97:6, 122:22

several [5] - 104:15, 

United States District Court

Camden, New Jersey

191

126:13, 131:5, 

147:15, 155:12

shall [2] - 43:18, 

112:12

share [4] - 16:11, 

20:10, 26:21, 78:18

shared [2] - 26:19, 

34:17

sheet [9] - 74:17, 75:5, 

75:12, 94:6, 99:2, 

99:23, 107:19, 

169:2, 169:4

ship [1] - 156:6

short [3] - 11:5, 17:2, 

21:3

show [6] - 50:19, 

111:13, 117:7, 

130:23, 136:15, 

153:23

showed [3] - 112:1, 

143:18, 158:10

showing [5] - 15:10, 

91:11, 95:11, 96:1, 

102:5

shown [4] - 91:21, 

103:1, 133:12, 

164:18

side [7] - 7:6, 12:14, 

19:8, 23:8, 70:21, 

102:10, 102:21

sidebar [8] - 18:22, 

76:25, 77:1, 77:2, 

79:16, 110:20, 

145:15, 151:3

SIDEBAR [4] - 110:21, 

112:20, 145:16, 

148:6

sides [6] - 6:24, 12:12, 

145:20, 153:10, 

169:20, 172:3

sign [2] - 24:8, 32:1

signature [2] - 103:1, 

103:2

signed [2] - 6:16, 6:20

significance [2] - 

84:20, 85:24

significant [2] - 23:9, 

23:11

SIMANDLE [1] - 1:11

similar [3] - 83:9, 

87:13, 167:2

similarities [1] - 90:19

similarity [1] - 87:12

similarly [2] - 17:10, 

20:24

simple [2] - 7:17, 

58:16

simplicity [3] - 46:23, 

47:6, 47:7

simply [4] - 16:15, 

Case 1:11-cv-02658-JBS-KMW Document 246 Filed 06/24/16 Page 191 of 195 PageID: 9225
21:9, 158:8, 164:10

single [3] - 77:7, 

155:4, 156:2

sit [3] - 60:1, 60:17, 

120:13

sitting [1] - 134:1

situated [1] - 20:24

situation [1] - 155:20

situations [1] - 130:2

six [2] - 61:24, 69:20

slightly [1] - 6:18

slip [2] - 102:13, 

103:14

slipped [1] - 168:3

small [1] - 17:5

smooth [1] - 144:22

so.. [1] - 171:12

social [1] - 17:2

solely [2] - 10:5, 15:15

solicitation [2] - 

116:9, 139:25

solicited [5] - 50:21, 

51:20, 70:18, 71:19, 

85:3

Solutions [10] - 13:3, 

21:13, 24:11, 33:8, 

39:2, 64:17, 83:5, 

92:4, 92:16, 101:5

someone [5] - 115:15, 

121:22, 124:19, 

128:5, 140:10

sometimes [7] - 9:22, 

37:10, 76:22, 93:9, 

150:25

somewhat [1] - 12:13

somewhere [1] - 

169:17

soon [3] - 70:11, 

71:10, 93:3

sorry [17] - 52:23, 

84:24, 96:11, 

106:25, 118:2, 

119:8, 123:9, 

123:14, 123:15, 

134:9, 137:1, 137:7, 

142:22, 143:7, 

149:17, 155:10, 

170:4

sort [3] - 17:2, 157:8, 

158:3

sounded [3] - 24:21, 

34:14, 119:20

speaking [2] - 44:15, 

105:7

special [1] - 17:18

specific [17] - 15:10, 

35:13, 39:20, 70:20, 

124:15, 128:23, 

129:4, 135:8, 142:5, 

143:12, 155:23, 

155:24, 157:15, 

162:13, 163:15, 

169:3

specifically [16] - 

15:4, 96:23, 116:6, 

116:8, 116:13, 

124:16, 124:18, 

134:16, 134:21, 

140:24, 142:10, 

142:22, 145:7, 

155:25, 156:14, 

157:13

specification [1] - 

141:17

specifics [1] - 139:5

specified [1] - 139:18

speculate [1] - 165:11

speculation [1] - 

134:1

speech [1] - 77:8

spell [1] - 28:22

spent [1] - 147:15

staff [1] - 23:14

stamp [19] - 49:10, 

49:13, 49:24, 74:14, 

74:18, 84:8, 84:9, 

84:18, 91:12, 91:19, 

95:3, 95:24, 95:25, 

96:2, 96:8, 96:13, 

99:11, 99:17, 151:12

stamped [2] - 113:1, 

141:14

stamps [1] - 96:18

stand [7] - 10:24, 

21:6, 21:8, 28:15, 

28:16, 95:14, 164:24

standard [4] - 144:21, 

145:2, 148:12, 168:7

standing [2] - 136:10, 

153:24

stands [3] - 131:18, 

166:11, 166:12

start [10] - 8:5, 17:13, 

58:6, 76:18, 80:10, 

123:15, 140:23, 

160:8, 160:9, 170:13

started [8] - 93:3, 

95:20, 96:7, 114:5, 

118:13, 139:12, 

155:17, 170:20

starting [5] - 58:23, 

59:5, 139:18, 140:7, 

156:4

state [5] - 28:21, 

59:13, 74:11, 80:1, 

153:25

statement [7] - 6:25, 

19:9, 26:19, 28:5, 

28:7, 166:13

statements [2] - 6:24, 

9:7

STATES [3] - 1:1, 1:8, 

1:11

states [5] - 44:2, 

61:15, 71:20, 

127:18, 166:12

stating [1] - 13:16

status [1] - 15:15

statute [4] - 5:13, 

7:21, 13:25, 15:14

statutory [1] - 14:6

step [2] - 56:12, 152:8

steps [1] - 157:9

still [13] - 27:13, 54:3, 

60:7, 60:10, 77:21, 

124:6, 141:17, 

146:10, 146:19, 

146:21, 155:20, 

162:23, 166:20

stipulate [1] - 9:3

stop [2] - 68:18, 92:22

stopped [1] - 94:2

strategies [1] - 119:20

strategy [1] - 139:5

STREETS [1] - 1:9

strike [3] - 89:2, 

96:12, 157:6

striking [1] - 79:18

structured [1] - 

147:13

stuff [7] - 29:19, 

47:15, 53:18, 72:11, 

74:25, 77:15, 96:1

subject [8] - 14:18, 

14:20, 26:22, 27:14, 

77:11, 91:6, 114:16, 

126:23

submissibility [1] - 

156:25

submit [3] - 161:21, 

164:10

submitted [3] - 

110:24, 159:3

submitting [1] - 

154:24

subpoena [3] - 30:15, 

152:12, 152:16

subsequent [4] - 

39:22, 55:25, 161:1, 

164:25

substance [1] - 

105:25

substantial [1] - 

156:23

successful [1] - 39:16

successfully [4] - 

13:15, 14:17, 

165:25, 166:6

sufficient [7] - 146:13, 

146:19, 155:8, 

157:5, 158:2, 

166:15, 167:18

suggest [2] - 79:9, 

136:1

suggesting [3] - 

78:14, 135:24, 

143:12

suggestion [1] - 

118:15

summarize [1] - 19:18

summary [8] - 5:14, 

5:16, 5:22, 6:16, 

7:22, 12:23, 15:9, 

165:25

supplemental [2] - 

5:7, 167:3

supplied [2] - 32:20, 

41:22

supplies [1] - 31:10

supply [3] - 79:10, 

165:1, 167:9

support [1] - 27:10

supported [1] - 12:20

suppose [3] - 119:25, 

124:15, 130:2

supposed [2] - 33:23, 

159:19

supposition [1] - 

161:13

suppositions [1] - 

154:16

Supreme [1] - 162:21

surmised [1] - 160:25

suspect [1] - 154:23

sustain [2] - 78:16, 

136:8

sustained [7] - 9:14, 

81:23, 89:2, 105:10, 

144:8, 145:9, 148:7

sworn [2] - 8:14, 

28:19

symmetry [1] - 40:7

system [1] - 6:20

T

tab [1] - 40:2

tabs [1] - 39:25

TAKEN [1] - 152:24

tangential [2] - 15:25, 

23:8

target [8] - 41:15, 

42:3, 42:6, 76:7, 

81:4, 81:5, 104:19, 

106:4

targeted [3] - 97:2, 

97:5, 97:16

targets [2] - 143:25, 

161:12

United States District Court

Camden, New Jersey

192

task [1] - 155:23

Tate [1] - 1:25

TCPA [23] - 7:18, 

13:21, 13:25, 14:7, 

14:19, 14:23, 15:16, 

15:19, 15:21, 15:22, 

15:25, 21:25, 22:1, 

144:3, 162:2, 162:6, 

162:7, 163:6, 

163:17, 163:18, 

163:22, 164:4, 

164:16

technically [2] - 

31:15, 77:24

technicians [1] - 

13:18

telephone [3] - 14:2, 

14:17, 80:18

Telephone [3] - 13:6, 

13:21, 21:25

template [2] - 42:10, 

42:12

ten [5] - 104:20, 114:3, 

134:3, 144:13, 

152:21

ten-mile [1] - 104:20

tenants [1] - 68:17

term [6] - 120:22, 

120:23, 128:17, 

129:12, 149:18

terms [9] - 33:10, 

34:14, 38:24, 44:15, 

129:24, 140:23, 

154:21, 165:18, 

171:5

test [1] - 154:22

testified [25] - 28:19, 

111:18, 122:6, 

124:10, 124:23, 

125:20, 125:23, 

126:2, 127:13, 

128:4, 128:16, 

128:17, 131:8, 

132:24, 136:3, 

136:16, 137:19, 

137:25, 140:19, 

154:14, 157:8, 

157:11, 157:23, 

158:6, 158:12

testifies [1] - 24:4

testify [6] - 23:15, 

30:16, 36:20, 

124:17, 125:5, 

156:15

testifying [11] - 11:1, 

18:4, 30:23, 73:3, 

114:5, 114:10, 

116:23, 121:1, 

123:7, 128:7, 149:9

testimony [38] - 9:1, 

Case 1:11-cv-02658-JBS-KMW Document 246 Filed 06/24/16 Page 192 of 195 PageID: 9226
9:20, 10:9, 10:17, 

11:24, 17:24, 18:5, 

19:4, 19:23, 19:25, 

27:9, 30:22, 32:22, 

93:24, 113:11, 

114:12, 120:21, 

121:14, 128:16, 

134:4, 135:19, 

139:4, 139:11, 

144:16, 150:10, 

150:13, 155:2, 

155:15, 155:19, 

155:21, 156:5, 

156:8, 156:11, 

157:1, 157:6, 157:7, 

158:4, 158:7

text [6] - 74:19, 74:24, 

91:16, 97:1, 99:15, 

106:1

Tharp [2] - 163:8, 

163:13

Tharp's [1] - 163:14

THE [217] - 1:1, 1:11, 

5:1, 5:4, 5:11, 6:1, 

6:3, 6:6, 6:9, 6:13, 

6:15, 6:23, 7:20, 

7:25, 8:9, 8:11, 8:14, 

20:14, 27:21, 28:4, 

28:14, 28:17, 28:21, 

28:24, 29:1, 29:10, 

29:13, 36:2, 36:6, 

36:24, 40:20, 40:22, 

41:1, 43:13, 43:17, 

43:20, 46:3, 46:5, 

46:8, 46:12, 46:14, 

48:9, 49:19, 50:15, 

53:14, 56:6, 56:9, 

56:13, 56:15, 56:19, 

56:20, 56:22, 56:23, 

56:25, 57:24, 58:1, 

59:15, 59:17, 61:12, 

64:1, 66:22, 70:3, 

72:22, 72:24, 73:5, 

73:14, 73:17, 73:18, 

74:5, 75:21, 77:1, 

77:13, 78:5, 78:9, 

78:25, 79:6, 79:15, 

79:17, 81:18, 81:23, 

82:24, 84:5, 84:14, 

87:7, 88:14, 88:16, 

89:2, 89:16, 89:18, 

91:3, 91:6, 92:10, 

92:21, 92:25, 93:5, 

93:7, 93:13, 93:15, 

93:17, 93:19, 93:20, 

93:22, 94:17, 99:1, 

99:6, 101:11, 

101:14, 101:24, 

104:7, 105:10, 

105:12, 106:11, 

106:24, 107:1, 

108:9, 109:19, 

109:22, 110:20, 

110:22, 111:8, 

112:10, 112:12, 

112:17, 112:19, 

112:24, 113:15, 

117:3, 117:6, 117:9, 

118:1, 118:2, 

119:10, 121:17, 

123:15, 129:2, 

129:5, 136:3, 

137:17, 138:9, 

138:12, 139:16, 

141:20, 143:14, 

144:8, 145:9, 

145:15, 145:17, 

146:17, 146:21, 

147:6, 147:9, 

147:24, 148:3, 

148:7, 149:7, 150:7, 

150:18, 150:20, 

151:7, 151:8, 

151:10, 151:11, 

151:13, 151:14, 

151:16, 151:18, 

151:19, 151:20, 

151:22, 151:23, 

152:3, 152:9, 

152:10, 152:15, 

152:20, 152:22, 

152:25, 153:2, 

153:5, 153:13, 

153:16, 154:3, 

154:8, 155:11, 

157:2, 158:19, 

159:18, 159:21, 

160:2, 160:8, 161:4, 

161:8, 162:23, 

164:12, 165:3, 

165:13, 165:16, 

166:8, 167:1, 

167:10, 167:14, 

167:17, 168:16, 

169:4, 169:9, 

169:13, 169:19, 

169:24, 170:1, 

170:3, 170:10, 

170:25, 171:2, 

171:9, 171:13, 

171:17, 172:15

themselves [1] - 

122:12

therefore [2] - 12:19, 

155:9

they've [1] - 43:20

thinking [1] - 169:8

thinks [1] - 156:24

third [29] - 9:20, 11:22, 

11:23, 14:4, 16:20, 

42:1, 42:18, 58:7, 

68:3, 68:25, 71:16, 

85:15, 87:19, 87:22, 

87:24, 88:7, 88:20, 

88:22, 90:17, 92:5, 

92:18, 100:8, 112:3, 

134:19, 136:23, 

143:9, 158:24, 

162:10, 162:17

thousands [5] - 21:17, 

21:24, 22:5, 98:6

threatened [1] - 113:8

three [15] - 11:15, 

39:25, 40:14, 45:3, 

67:14, 89:23, 99:25, 

103:6, 112:13, 

112:25, 126:25, 

130:8, 135:8, 

165:17, 168:21

three-ring [1] - 39:25

threshold [1] - 154:22

thrilled [1] - 77:21

throughout [3] - 

25:15, 120:21, 

154:16

Thursday [2] - 70:12, 

172:8

timing [2] - 35:1, 

38:17

tip [1] - 12:13

Title [1] - 1:23

Tod [1] - 20:20

TOD [1] - 1:14

today [34] - 13:19, 

21:6, 24:4, 29:19, 

30:23, 32:24, 60:1, 

60:18, 62:3, 88:22, 

104:23, 114:5, 

114:8, 114:10, 

116:10, 116:15, 

120:4, 120:13, 

120:21, 122:6, 

122:16, 124:11, 

124:17, 124:23, 

129:25, 134:1, 

136:10, 137:20, 

138:1, 140:20, 

150:10, 158:12, 

168:18, 170:18

together [7] - 20:20, 

27:9, 41:21, 111:24, 

111:25, 120:18

toll [6] - 48:17, 48:22, 

58:14, 58:19, 61:19, 

126:8

toll-free [1] - 126:8

tomorrow [18] - 21:3, 

21:5, 21:10, 62:5, 

104:24, 167:11, 

167:22, 168:17, 

168:20, 169:5, 

169:14, 170:13, 

170:19, 170:24, 

171:8, 171:19, 

172:7, 172:12

tonight [7] - 167:4, 

167:10, 167:21, 

169:24, 171:18, 

172:6, 172:14

took [8] - 108:13, 

111:5, 112:9, 

115:15, 116:5, 

136:25, 155:23, 

156:4

top [20] - 42:8, 46:23, 

48:18, 49:9, 49:14, 

49:24, 67:1, 74:14, 

83:3, 84:8, 91:21, 

91:22, 94:21, 95:7, 

99:11, 102:5, 113:5, 

124:2, 140:8, 151:12

total [6] - 21:16, 

50:24, 52:4, 58:15, 

61:25, 156:5

totaling [1] - 50:25

touch [1] - 25:9

touching [2] - 16:17, 

170:17

towards [2] - 62:24, 

105:3

tranche [8] - 159:12, 

160:24, 164:20, 

164:25, 165:12, 

165:14, 169:1, 169:3

transactions [1] - 11:6

transcript [2] - 12:1, 

18:9

transcripts [2] - 18:8, 

19:23

transmission [17] - 

14:3, 14:5, 22:6, 

40:16, 49:14, 50:4, 

63:15, 66:8, 69:23, 

73:21, 98:17, 

104:25, 162:24, 

162:25, 166:20, 

166:22, 167:19

transmissions [15] - 

13:9, 14:14, 14:18, 

14:20, 15:2, 21:18, 

21:24, 22:5, 38:13, 

65:3, 157:21, 159:6, 

159:7, 165:17, 

168:21

transmit [1] - 14:18

transmittals [1] - 

157:22

treat [1] - 9:16

trial [26] - 5:7, 5:15, 

5:22, 8:16, 8:22, 

11:9, 11:10, 11:13, 

United States District Court

Camden, New Jersey

193

11:22, 12:1, 16:5, 

16:12, 17:16, 19:8, 

19:22, 19:23, 19:24, 

21:3, 22:22, 23:23, 

26:22, 27:15, 78:12, 

112:7, 164:17

tried [1] - 77:9

trip [1] - 170:23

trouble [1] - 132:20

true [17] - 1:23, 12:9, 

33:2, 40:15, 43:7, 

48:4, 50:9, 53:8, 

57:11, 61:3, 63:21, 

68:16, 73:25, 87:1, 

88:9, 94:12, 156:9

try [10] - 7:21, 8:7, 8:8, 

16:18, 16:20, 35:9, 

62:2, 72:5, 125:16, 

156:1

trying [10] - 7:1, 16:22, 

18:6, 78:3, 132:21, 

136:1, 146:15, 

165:1, 171:6, 172:10

Tuesday [5] - 76:15, 

81:7, 81:10, 83:11, 

83:13

turn [14] - 21:4, 42:24, 

45:7, 45:18, 47:19, 

66:4, 69:12, 82:9, 

83:18, 98:9, 102:20, 

103:20, 105:23, 

107:15

turned [1] - 102:21

tweaked [1] - 6:18

twice [1] - 120:24

two [28] - 10:7, 43:25, 

52:11, 60:19, 63:18, 

66:15, 67:18, 68:1, 

69:17, 69:19, 71:2, 

83:13, 85:8, 85:24, 

90:25, 98:16, 99:2, 

99:21, 103:25, 

104:12, 129:18, 

131:9, 137:15, 

143:4, 150:21, 

155:6, 167:6, 168:7

two-pronged [1] - 

168:7

type [3] - 89:10, 

130:11, 139:25

typed [8] - 60:3, 61:3, 

74:24, 85:25, 91:16, 

91:17, 102:11, 

105:25

types [1] - 11:15

typewritten [1] - 99:15

Case 1:11-cv-02658-JBS-KMW Document 246 Filed 06/24/16 Page 193 of 195 PageID: 9227
U

U.S [1] - 162:21

U.S.C [1] - 1:23

ultimate [2] - 25:23, 

38:3

ultimately [1] - 38:4

unable [3] - 111:12, 

143:9, 158:1

unauthorized [1] - 

165:8

under [33] - 9:12, 

11:12, 11:18, 11:24, 

14:22, 15:16, 15:17, 

18:23, 21:13, 22:1, 

22:15, 27:13, 27:18, 

33:8, 41:11, 44:2, 

46:22, 48:16, 50:20, 

51:5, 51:13, 51:16, 

55:8, 67:6, 124:13, 

146:15, 150:23, 

157:3, 158:14, 

161:24, 162:6, 

163:20, 167:20

undercut [1] - 155:14

underlined [5] - 127:7, 

130:14, 131:3, 

132:17, 132:18

underlining [1] - 

142:13

understood [3] - 7:24, 

135:7, 149:14

undisputed [1] - 21:11

unequivocally [1] - 

159:10

unfolds [1] - 172:5

uniformity [1] - 144:22

unilaterally [2] - 

148:16, 156:20

UNITED [3] - 1:1, 1:8, 

1:11

universe [1] - 78:13

unlawful [9] - 13:22, 

14:13, 15:5, 16:3, 

16:9, 22:1, 22:17, 

22:18, 162:23

unless [3] - 13:23, 

29:6, 152:12

unnecessary [1] - 

77:9

unquote [2] - 126:8, 

154:16

unsolicited [7] - 7:18, 

13:15, 13:22, 14:8, 

14:10, 22:1, 86:9

up [70] - 7:2, 7:12, 

10:15, 11:15, 18:9, 

18:24, 20:2, 20:8, 

22:22, 24:15, 25:11, 

25:21, 26:20, 27:1, 

33:21, 35:8, 35:12, 

37:21, 41:12, 41:13, 

41:21, 41:23, 41:24, 

42:20, 42:22, 44:6, 

44:21, 44:23, 49:9, 

51:21, 51:23, 52:16, 

59:3, 62:20, 62:22, 

72:4, 74:14, 76:18, 

77:9, 81:12, 91:7, 

99:11, 101:13, 

102:5, 103:9, 

105:16, 118:6, 

118:19, 119:4, 

119:14, 120:2, 

121:23, 122:3, 

143:23, 147:11, 

151:25, 153:24, 

157:20, 158:8, 

162:10, 162:16, 

162:22, 162:24, 

164:19, 166:11, 

166:12, 166:14, 

169:5, 169:13, 172:6

uses [1] - 129:12

utilized [2] - 14:1

V

value [3] - 60:4, 

155:19, 156:8

variation [1] - 57:20

verbatim [2] - 7:11, 

157:16

verdict [8] - 8:24, 

12:14, 16:7, 16:15, 

19:21, 154:7, 155:9, 

169:2

verification [1] - 62:7

verifying [1] - 76:10

version [4] - 6:17, 

6:19, 7:14

versus [1] - 34:15

vertical [1] - 102:21

via [3] - 20:25, 38:22, 

125:23

view [2] - 157:4, 

160:18

violate [1] - 16:23

violated [7] - 13:6, 

15:14, 15:20, 15:22, 

15:24, 21:25, 163:6

violates [1] - 168:6

violation [6] - 13:24, 

15:19, 132:4, 132:8, 

132:11, 162:18

violations [5] - 22:11, 

144:3, 163:19, 

163:22, 164:4

visitor [3] - 17:17, 

17:19, 17:20

voice [1] - 151:2

void [2] - 26:6, 103:1

VOIR [4] - 2:6, 2:10, 

101:15, 109:23

voir [2] - 101:14, 

109:20

volume [1] - 85:14

volumes [3] - 52:5, 

64:24, 141:10

voluntarily [1] - 

166:24

voluntary [1] - 30:10

volunteer [2] - 9:22, 

136:5

vs [1] - 1:4

W

wait [5] - 25:4, 41:13, 

51:1, 62:8, 104:24

waived [2] - 58:21, 

60:7

walk [2] - 27:6, 29:8

walked [1] - 23:25

WALTON [1] - 1:16

wants [3] - 68:14, 

77:23, 156:6

warning [1] - 65:24

WAS [56] - 3:6, 3:7, 

3:8, 3:9, 3:10, 3:11, 

3:12, 3:13, 3:16, 

3:17, 3:18, 3:19, 

3:20, 3:21, 3:22, 

3:23, 3:24, 3:25, 4:1, 

4:2, 4:3, 4:4, 4:5, 

4:6, 4:7, 4:8, 4:9, 

4:10, 40:24, 43:15, 

46:7, 46:16, 48:12, 

49:20, 50:17, 53:16, 

61:13, 64:3, 66:23, 

70:4, 74:6, 75:23, 

83:1, 84:6, 87:8, 

88:18, 91:9, 92:12, 

94:19, 99:8, 101:25, 

104:9, 106:13, 

107:3, 108:11, 113:2

waste [1] - 68:18

water [2] - 47:20

weaker [1] - 156:10

Wednesday [4] - 62:5, 

64:9, 65:19, 70:12

week [2] - 70:12, 

71:13

weigh [1] - 11:3

weighing [2] - 10:20, 

10:22

weight [1] - 10:21

welcome [4] - 8:12, 

58:6, 93:22, 94:2

WERE [2] - 3:14, 58:3

whited [3] - 47:15, 

60:1, 60:15

whole [5] - 23:12, 

33:4, 77:5, 139:13, 

156:6

Wilson [77] - 34:6, 

34:9, 37:9, 43:4, 

43:24, 45:21, 46:20, 

47:25, 48:15, 50:4, 

50:19, 53:22, 54:12, 

54:14, 55:18, 57:12, 

57:18, 58:5, 59:7, 

59:11, 59:12, 59:23, 

59:24, 60:11, 60:25, 

62:9, 63:8, 63:15, 

64:5, 64:13, 65:1, 

66:9, 66:25, 67:25, 

69:4, 69:14, 70:6, 

73:22, 74:10, 75:13, 

75:25, 76:12, 76:21, 

79:1, 79:25, 80:10, 

80:18, 83:11, 83:21, 

86:24, 88:6, 88:20, 

90:14, 94:7, 96:25, 

98:13, 103:23, 

104:11, 105:1, 

106:18, 107:11, 

107:20, 108:3, 

108:24, 122:19, 

126:3, 126:14, 

127:16, 130:5, 

130:19, 130:25, 

131:13, 131:21, 

132:6, 132:16, 

134:10, 134:23

wish [3] - 17:24, 18:5, 

99:3

withdraw [1] - 84:12

withdrawal [3] - 

26:12, 39:3, 58:10

withdrawn [1] - 

110:22

withholding [1] - 

111:6

witness [55] - 9:22, 

9:23, 9:25, 10:1, 

10:23, 10:24, 10:25, 

11:3, 11:5, 11:25, 

18:4, 18:7, 18:15, 

18:17, 18:18, 18:25, 

20:2, 21:5, 21:8, 

28:11, 28:15, 28:16, 

28:19, 36:3, 36:20, 

73:1, 77:12, 77:25, 

78:1, 78:14, 91:2, 

99:5, 101:12, 111:5, 

111:13, 128:22, 

United States District Court

Camden, New Jersey

194

128:24, 135:24, 

139:15, 143:8, 

146:21, 147:13, 

147:16, 150:7, 

154:13, 157:4, 

157:5, 158:5, 

158:22, 164:22, 

165:4, 171:13, 172:7

WITNESS [14] - 2:3, 

28:24, 73:17, 89:18, 

118:2, 123:15, 

129:5, 151:7, 

151:10, 151:13, 

151:16, 151:19, 

151:22, 152:9

witness's [7] - 10:16, 

18:5, 79:7, 101:8, 

154:23, 155:1, 158:4

witnesses [11] - 9:1, 

10:15, 10:16, 10:18, 

17:7, 18:15, 19:14, 

19:16, 136:4, 170:6, 

172:7

woman [1] - 23:14

wondering [2] - 40:1, 

96:6

word [11] - 6:23, 8:4, 

11:8, 17:21, 18:13, 

44:15, 55:8, 81:23, 

99:19, 131:3, 153:24

wording [1] - 126:9

words [8] - 16:11, 

36:4, 36:21, 78:17, 

78:23, 100:10, 

153:17, 157:15

wowed [1] - 139:4

write [4] - 18:19, 42:9, 

54:6, 152:5

writing [3] - 11:18, 

18:15, 128:5

written [4] - 11:17, 

11:25, 54:2, 87:14

wrote [4] - 54:15, 

68:21, 125:18, 

151:15

Y

year [2] - 61:17, 95:18

years [19] - 30:1, 30:7, 

30:20, 64:25, 72:10, 

77:14, 78:24, 79:4, 

113:19, 113:25, 

114:3, 120:11, 

121:11, 123:7, 

134:3, 139:11, 

140:15, 144:13, 

158:10

yesterday [8] - 6:11, 

6:17, 8:2, 8:15, 20:6, 

Case 1:11-cv-02658-JBS-KMW Document 246 Filed 06/24/16 Page 194 of 195 PageID: 9228
United States District Court

Camden, New Jersey

195

22:14, 48:19, 48:24

yourself [9] - 29:16, 

103:3, 103:6, 105:6, 

105:14, 105:17, 

128:11, 141:5, 

148:15

Z

ZIP [46] - 35:19, 35:22, 

36:13, 36:16, 37:2, 

50:21, 50:22, 51:1, 

51:19, 51:21, 51:23, 

51:25, 52:9, 52:16, 

54:12, 61:24, 61:25, 

62:19, 62:20, 72:2, 

72:4, 72:14, 76:6, 

81:2, 97:6, 97:7, 

106:6, 122:23, 

122:25, 124:1, 

125:9, 125:12, 

125:16, 140:22, 

140:23, 141:2, 

141:5, 141:8, 

141:10, 141:18, 

160:4, 160:5, 160:8, 

160:10

Case 1:11-cv-02658-JBS-KMW Document 246 Filed 06/24/16 Page 195 of 195 PageID: 9229