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. do 94 . k M ~. 'ii : SUPREME COURT OF THI: STATE OF NEW YORK COUNTY OF NEW YORK ROBERT BRIAN ASSQCIA,TES,. INC., Pxaintiff, -against- LOEWS THEATRES, INC., DPfendant. NOTICE OF MOTION Paul, Weiss, Rifkind, Wharton & CarrisoQ Attorneys for Defendant. 03709369 i 345 Paaic Avr.rtuE. Nrw YortK, N. Y. f'Oq22 644-8000 to All communications should be referred Neal Johristvn, Esq. R

Re: ROBT. BRIAN V. LOEWS NEAL JOHNSTON AFFIDAVIT 0 A a . I I I, ft

SUPREME COURT OF THE STATE OF NEW YORi{ COUNTY OF L1EW Y0:'K - - - - - - - - - - - - - - - - - - -x ROBERT BRIAN ASSOCIATES, INC., Plaintiff, Note of Issue Filed Not Assigned to an I.C. Part -against- . Index No. 6859/1977 LOEWS THEATRES, INC., Defendant. - - - - - - - - - - - - - - - - - - -x STATE OF NE,,l YORn ) COUNTY OF NEW YORIK ) ss.. AFFIDAVIT OF NEAL JOHNSTON NEAL JOHNSTON, being duly sworn, deposes and says_: 1. I am a member of the bar of the State of New York and am associated with the firm of Paul, taeiss, Rifkind, Wharton &' Garrison, attorneys for defendant in this action. I am fully familiar with the facts relating to this action. 2. This is to certify that I have attempted to confer with counsel fo-- plaintiff in an effort, in good faith, to resolve by agreement thE issues raised by this motion without the inter- vention of this Court and have been unable to reach such an agree- me n t . 037090370 3. The issues which remain pending relate to plain- tiff's failure to supply certain documentsrelating to its damage calculatioon, which plaintiff agreed on the record to supply to

s us but which have nevertheless never been produced, despite con- tinuous requests for them, and plaintiff's refusal to supply its income tax returns for the relevant years so that we might know the actual percentage of net profits enjoyed by plaintiff upon its gross revenues for such years. Neal johnston Sworn to before me this 28th day of October, 1977. ELIZABGTH i'ICC:C~E N°~3rv Y~; t Y~rk C~unN Cor. is on :xvir_ ;.1a,ch J, 1i73 r

f 1 J 0 SUPREb1E COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - - - - - - - - - - - - - - - - - - -x ROBERT BRIAN ASSOCIATES, INC., Note of Issue Filed Plaintiff, . Not Assigned to an I.C. Part Index No. 6859/1977 -against- . LOEWS THEATRES, INC., : NOTICE OF MOTION Defendant. , - - - - - - - x PLEASE TAKE NOTICE that upon the annexed affidavit of Veal Johnston, swro rn to October 28, 1977 and the Exhibits at- tached to it, we shall move this Court at Special Term, Part IA to be held in the County Courthouse, 60 Centre Street, in the Borough of Manhattan, City of New York, on vove**tber 9, 1977, or as soon aLter that time as counsel can be heard, for an order pursuant to Rule 3124 of the Civil Practice Law and Rules, di- recting plaintiff to produce, without further delay, all material in its possessioh relating to its calculation of damages herein, together with a written statement setting forth the specific C C.: damages claimed by plaintiff with respect to each of the four --j ~ r,r promotional ideas which plaintiff alleges were appropriated by L~ ~ defendant, separately stating the lost profits claimed relat- N ing to the preparation of finished art work and the lost profits claimed with respect to actual production of each such promotional

14 , scheme, and further ordering production by plaintiff of its tax returns for the calendar year 1971-1974. PLEASE TAKE FURTHER NOTICE that any answering papers to this Notice of Motion must be served pursuant to Rule 2214(b) at least five days before November 9, 1977. Dated: New York, New York October 28, 1977 Yours, etc., PAUL, WEISS, RIFKIND, WHARTON & GARRISON Attorneys for Defendant Loews Theatres, Inc. 345 Park Avenue New York, New York 10022 (212) 644-8000 TO: GLASS, GREENBERG, IRWIN, PELLMP_-N & SLADE Attorneys for Plaintiff Robert Brian Associates, Inc. 540 Madison Avenue New York, New York (212) 8 3 8 - 6 6 7 0 r

i/ SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORI{ 1 - - - - - - - - - - - - - - - - - - -x Note of Issue Filed ROBERT BRIAN ASSOCI ATES , INC., . Not Ass i gned to an I.C. Part Plaintiff, . Index No. 6859/1977 -against- . AFFIDAVIT OF NEAL JOHNSTON LOEWS THEATRES, INC., Defendant. - - - - - - - - - - - - - - - - - - -x STATE OF NEW YORK ) ss.. COUNTY OF NEW YORK ) NEAL JOHNSTON, being duly sworn, deposes and says: 1. I am a member of the bar of the State of New York and am associated with the firm of Paul, Weiss, Rifkind, Wharton & Garrison, attorneys for defendant in this action. I submit this affidavit in support of defendant's motion for an order compelling plaintiff to produce certain material relating to its damage claim, more fully described below. 03"7093'74 2. The bulk of the material in issue here was promised to defendant by plaintiff months ago. There is no dispute that defendant is entitled to this material. On several occasions, we have been assured the material would be supplied by some date cer- tain, but qn each occasion plaintiff has simply failed to fulfill its promise, without explanation or apoloay.

,1 . ,. , 3. Plaintiff (hereafter "Robert Brian") is a sales promotion agency which had been retaine d by the Lorillard division of defendant during the period June 1970 through August 1971, and again for the first two or three months of 1972 to generate sales promotion ideas for defendant's cigarette lines. The principal line involved in this case is Kent cigarettes. Robert Brian claims that during the period in question, it submitted four sales promotion ideas to Lorillard, which were subsequently employed by Lorillard without credit or benefit to Robert Brian; Lorillard denies that it appropriated any of the four promotional ideas in question. 4. Three of the four promotional ideas involved in this case were allegedly presented to Lorillard by Robert Brian while the latter was under retainer. As to these three claims, Robert Brian claims that it was entitled (under the retainer agreement) to prepare finished art work and to submit a bid for actual production work on the promotion. does not claim that it was entitled to perform Robert Brian such production work even if it submitted the lowest bid, but has instead conceded that Lorillard remained free to select whatever production agency it desired. 03"7(:`~3'7:i 5. As to these three promotional schemes, Robert Brian claims, as damages, its lost profits with respect to the prep- aration of finished art work which was never in fact prepared by it, toqether with lost profits on actual production. r 6. The fourth promotional scheme was allegedly

submitted to Lorillard by Robert Brian at a time when the latter was not under retainer. As to this scheme, which involved the distribution of steak-knife premiums, Robert Brian claims not only a right to prepare finished art, work, but also an absolute right to execute actual production of the promotion. Plaintiff seeks lost profits on botY~, the art work and production. 7. Plaintiff's ad damnum clause claims $235,000 in damages with respect to all four promotions. The complaint does not distinguish damages relating to any specific promotion, nor does the complaint distinguish damages relating to the prepara- tion of art work from damages relating to promotion production. 8. Lorillard has sought,to obtain information break- ing down the damage claim into its component parts. In addition, since Robert Brian could only recover its lost profits, if lia- bil.ity were established, but could not recover its gross billings, Lorillard has attempted to obtain information revealing the rela- tionship between Robert Brian's gross billings and its net profits during the relevant period. In all of this, Lorillard has been wholly stymied. _ O370-95r7f; 9. On April 11, 1977, Robert Brian served and filed a Note of Issue and Statement of Readiness. Although Lorillard had not yet in fact completed its discovery of plaintiff at that time, Lorillard agreed not to move to strike the Note of Issue upon Robert Brian's promise that Lorillard's discovery could go for- d ward while the case was calendared. Robert Brian was expressly advised that one principal area of open discovery was the question

of its damage calculation. Attached is Exhibit A to a copy of my letter of April 27, 1977 to Robert Brian's attorney which sets forth the understanding of counsel and then expresses our concern with damage discovery. 10. Since filing its Note of Issue, however, Robert Brian has, with one exception, effectively resisted all of our almost continuous efforts to complete the discovery we require. The one exception is that on August 2, 1977, after many delays at plaintiff's request, we were allowed to continue our oral examination of plaintiff by its president and sole owner, Mr. Robert Sandelman. On that occasion, it was obvious that Mr. Sandelman, despite our already noted interest in the subject, was simply not prepared to provide us any useful information on Robert Brian's calculation of damages. Mr. Sandel:nan testi- fied that there did exist some written materials relating to damage calculations, that some of these written materials ante- dated the complaint and that other damage calculation materials had apparently been created in contemplation of the complaint. None of these materials have ever been produced to us. With respect to damage claims relating to some of the four promo- tional schemes in question, however, it appears that no written calculations had ever been prepared. 03709Z77 . 11. During the August 2nd deposition, Robert Brian's attorney agreed to supply to us copies of all pre-existing r materials relating to the calculation of damages and, in addi- tion, to supply to us a written statement revealing the means