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( J N, ~ I " X-,.A ~1k, COURT OF APPEALS STATE OF NEW YORK ) 1- ti °t --7 ~ - ROBERT BRIAN ASSOCIATES, INC., N.Y. County Clerk's Index No. 6859-77 Plaintiff-Respondent, -against- AFFIDAVIT OF LEONARD R. GLASS LOEWS THEATRES, INC., IN OPPOSITION TO MOTION FOR LEAVE ' Defendant-Appellant. TO APPEAL. STATE OF NEW YORK ) ~ COb-NTY OF NEW YORK ) ss.. LEONARD R. GLASS, being duly, sworn, deposes and says: Defendant Lorillard's assertion to this Court that plaintiff Robert Brian's second cause of action to recover a 257e override on the fees paid by Lorillard to the Blue Ribbon Company'for re-judging the Kent Castle Con_est was not within the terms of Robert Brian's contract with Lorillard, is a fact issue that was tried by the jury and subsequently passed on by the Appellate Division below. Contrary the assertion in Lorillard's motion papers, the terms of that contract were not'somehow overlooked by the Appellate Division; they were specifically raised by both parties and considered by the Appellate Division when it unanimously affirmed the jury's award to plaintiff of plaintiff's commission on those expenses. ~ O C.: O N O ~ - W

Lorillard misleadingly attempts to suggest an inconsistency where none in fact exists, when it asserts (affid. p. 5) that "there is no dispute" that the_purchases of the re-judging services "were made by Lorillard - not Robert Brian." Lorillard thereby miscasts the issue that was tried below. There is no dispute that Robert Brian did in fact hire Blue Ribbon, the judging firm, for Lorillard in connection with the Kent Castle contest. And there is no dispute that the re-4udging performed for Lorillard by Blue Ribbon was an outgrowth of the identical contest project conceived by plaintiff for defenClan*_. The services performed by Blue Ribbon were the same;_ the contest was the same; the firm performing the services was the same. The courts below agreed with plaintiff's interpretation of their contract that it was unnecessary for plaintiff to have to hire Blue Ribbon more than once, in order for it to qualify to collect its override on all the services performed by Blue Ribbon for Lorillard in connection with that contest, instead of merely some of them. Under the guise of presenting a question of law based on a non-existent "inconsistency," what defendant has attempted to 4 do in its motion papers is to reargue at length all of the issues p N of fact that were adjudicated against it and in plaintiff's favor ~ ~ by the courts below. Thus, while Lorillard cloaks itself in the guise of outrage at being called on to pay a commission on the cost to it of what if views as a penalty, in reality the re-judging fee was merely what Lorillard should have paid for a proper judging in the first place, on which plaintiff is entitled to its commission.

Originally Blue Ribbon agreed to do all the work in connection with the contest for $4,000 (Rec. 99). An additional $12,000 was agreed upon when the $4,000 appeared clearly too low (Rec. 112). The supplemental fee was nevertheless still grossly insufficient to pay for reading and checking the very large number of enormously long entries which overwhelmed Blue Ribbon, and the firm therefore resorted to short cuts in judging which departed from the rules it had published (Rec. 109-10). As a result the FTC lodged a complaint of misconduct against defendant, which entered into a consent decree acknowledging misconduct. Plaintiff refused to consent to any decree and was never found guilty of anything (Rec. 33-34, 106-08). The contest had to be re~ udged because defendant pinched pennies to minimize the cost of the contest to it and Blue Ribbon grossly underestimated the amount of work it would have to do, and when it found that what it was being paid could not begin to cover that work, it took some improper short cuts that disregarded the contest rules (Rec. 109-10). The amount originally paid by Lorillard was a tiny fraction of what it cost to properly judge the contest (Rec. 112-13). The $40,000 (ten times the original estimate and several times the supplementation to the original estimate) ultimately paid for re-~udging is obviously what it would have cost to do the judging properly in the .first place. The jury agreed that plaintiff was entitled to its commission on the real cost of the judging,* and the Appellate Division agreed that there was no reason to interfere with that O ~ f inding . O N O C!i . ~.

. r C As pointed out to the courts below, what happened was altogether different from the description in defendant's motion papers. After the Blue Ribbon firm's improper procedures surfaced, and the FTC began an investigation, Lorillard's counsel asked plaintiff to "cooperate" as a witness on Lorillard's behalf before the FTC, but plaintiff refused to accept responsibility for something for which it was not responsible (Rec. 107-08). Instead, plaintiff turned over its file to the FTC and left.it to the FTC to find who was responsible (Rec. 283). This event caused a significant rift between plaintiff and defendant. The Commission compelled Lorillard to have the contest re-judged (Rec. 280-81). Robert Brian's refusal to "cooperate" rankled in Lorillard's president's breast (Rec. 280) until he finally discharged plaintiff as a result of personal pique over plaintiff's publication of an appointment given it by one of Lorillard's subordinate officers which Lorillard's president insisted only he had the power to give (Rec. 392-93, 722-23).* Lorillard further incorrectly states that Robert Brian's override on Blue Ribbon's fees when it originally hired Blue Ribbon was for services performed by Robert Brian in "supervising" Blue Ribbon's work (mem,. 23, 26-27), whereas when Blue Ribbon was asked by Lorillard to re-judge the same contest properly, "Robert Brian refused to assist Lorillard further" (mem. 21) and for that reason as well should not have been awarded its commission (mem. 29). The 0 record is directly to the contrary: Sandelman, Robert Brian's president, testified on point: . * See plaintiff-respondent's brief in the Appellate Division at p. 9.

( "That is not true. You misstate the facts. We were fired by Curt Judge [of Lorillard] long before that situation" (Rec. 280). In fact, as pointed out in Robert Brian's brief to the Appellate Division (p. 28), and as the record_shows (Rec. 277-79, 269, 101) Robert Brian never did any work - by supervision or otherwise - in connection with the original judging performed the firm which it obtained for defendant, either. It wQuld ~,ve been prohibited from doing so by law (Rec. 244, 300). LD_illard never disputed!that it was obligated to pay - and did in fact pay - plaintiff 25% of the amount paid by it to Blue Ribbon as cverride to which plaintiff was entitled under their contract. Defendant's contention that the court should have reduced the amount of plaintiff's override "by the expenses it avoided by not supervising the re-judging" (mem. 30), is based on its same disregard for the facts proved in and found by the courts below. The simple fact is that Robert Brian never did any supervising or work of any kind in connection with the 25% paid by Lorillard foi the services of others procured for it by Robert Brian in connection with projects conceived by Robert Brian (Rec. 278-79). It was - as Lorillard itself describes it - an override, pure and simple. There were therefore never any expenses to deduct from it. In summary, the claim tried below on plaintiff's second cause of action was based on plaintiff's contention that the contract language concerning an override should be understood to a- . -5-

0 N ., exter.3 to whatever work the firm which plaintiff originally hired to jLAse the contest had to do while the contest was still going on. The jury agreed with that contention, and so did a unanimous Appellate Division. There is simply nothing in that question of fact dese::_ng of the further appeal to this Court which defendant seeks. For the further enlightenment of the Court, we submit a copy of plaintiff-respondent's brief in the Appellate For the reasons set forth hereinabove and in respondent's we submit that defendant's motion for leave to appeal =arz of the Appellate Division's order affirming the judgment on plaintiff's second cause of action should be denied. to before the this day of November, 1979. ~. ~ ;r~ : ~':'%:•f'T f~~~ Notary Pu i c LO:."S F. P!IpKF - ~ ~.. ... • - Y^:'w ;.y a- -6-