Case 1:15-cv CMH-MSN Document 96 Filed 01/18/17 Page 1 of 69 PageID#

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1 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# 0 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION TIGERS LIMITED and TIGERS ) (USA) GLOBAL LOGISTICS, ) INC., ) Case No. :-cv- ) Alexandria, Virginia Plaintiffs, ) ) July, 0 v. ) 0:0 a.m. ) TAMERLANE GLOBAL SERVICES, ) ARTEMIS GLOBAL, INC., AND ) JAMES M. O'BRIEN, ) ) Defendants. ) Volume II TRANSCRIPT OF TRIAL BEFORE THE HONORABLE CLAUDE M. HILTON UNITED STATES DISTRICT JUDGE AND A JURY 0 APPEARANCES: For the Plaintiffs: For the Defendants: Court Reporter: Katherine L. McKnight, Esq. John C. McIlwee, Esq. Glenn H. Silver, Esq. Erik B. Lawson, Esq. Tracy L. Westfall, RPR, CMRS, CCR Proceedings reported by machine shorthand, transcript produced by computer-aided transcription.

2 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# 0 I N D E X Direct Cross Redirect Recross FOR THE DEFENDANT: C. Kennedy

3 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# C. Kennedy - Cross 0 0 P R O C E E D I N G S (The jury enters at 0:0 a.m.; Mr. O'Brien is not present) THE COURT: All right. CROSS-EXAMINATION BY MR. MCILWEE: Q. Good morning, Ms. Kennedy. How are you today? A. Good morning. Good. How are you? Q. Very well. Ms. Kennedy, you're testifying in this case as a witness for Artemis, correct? A. Correct. Q. Not in an individual capacity, correct? A. Exactly. Q. And yesterday you shared with the members of the jury your role in the company, Artemis, correct? A. Yes. Q. You shared with us some of the decisions that you made for Artemis, correct? A. Correct. Q. As an owner, right? A. Yes. Q. And an officer of the company, right? A. Yes. Q. Such as your decision to make notes on the invoices in Exhibits and, right? A. Yes.

4 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# C. Kennedy - Cross 0 0 Q. And when you make decisions for Artemis, you make them with a mind for honesty, right? A. Of course. Q. And integrity, right? A. Yes. Q. And you stand by the decisions that Artemis makes, correct? A. Yes. Q. One of the decisions Artemis made as a company was to identify Artemis as a woman-owned business, correct? A. Not exactly. Q. It's your testimony today for the members of the jury that you never represented to the U.S. government that you are a woman-owned business? A. I have never, no. MR. MCILWEE: Your Honor, may I have the court security officer present an exhibit to Ms. Kennedy? MR. SILVER: Approach the bench. (Conference at the bench, as follows:) MR. SILVER: If Your Honor please, he's trying to do exactly what he tried to do yesterday that you wouldn't allow him to do. He wants to go into this whole debarment thing. She was not a part of that. And there was no testimony yesterday anything about it being a woman-owned business or anything like that so it's not cross-examination. He's using her for some other purpose, but now trying

5 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# C. Kennedy - Cross 0 0 to impeach her while he is at the same time, I think, trying to use her as his own witness. But this is exactly what the Court wouldn't let them do yesterday, and he's trying to do it again. THE COURT: Well, he's question is whether or not she ever represented to the government that she had a -- that Artemis was a woman-owned business. MR. SILVER: But that wasn't part of the direct examination yesterday at all. There was nothing about that at all yesterday. THE COURT: There was testimony about Artemis and her operation of Artemis, and he can cross-examine over her operation of Artemis. MR. SILVER: Well -- THE COURT: So that objection is overruled. I don't know what this is, if there's something else that's objectionable about that. MR. SILVER: This is hearsay. They don't have a witness, Artemis. I was objected to when they put -- THE COURT: What he wants to do is to use it to refresh her recollection. MR. SILVER: If that's all he's doing. THE COURT: Apparently. MR. SILVER: That's fine. But if he's going into the debarment -- THE COURT: Well, that's all he's done so far. I mean,

6 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# C. Kennedy - Cross 0 0 I can't rule on these things that haven't happened yet. MR. SILVER: You're right. THE COURT: You can object if there's something that's objectionable, but that so far is not objectionable. MR. SILVER: I understand, Your Honor. Thank you. (Thereupon, the following proceedings continued in open court:) BY MR. MCILWEE: Q. Ms. Kennedy, the document in front of you, what is it? A. Documents that we received from, I believe, the Air Force. Q. The United States Air Force? A. Yes. Q. Is your company mentioned in these documents, Artemis? A. Yes. Q. Would you flip to page for me, please. On page, in subsection A, I want you to read fully the second paragraph. Look up when you've had a chance to read it. MR. SILVER: Your Honor, I'm going to object. It's hearsay, relevance, prejudicial. THE COURT: Objection overruled. THE WITNESS: Starting with "Based upon"? BY MR. MCILWEE: Q. I'm sorry. On page, if you could please read subsection A, the second paragraph beginning with "Furthermore." It's page of the memorandum.

7 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# C. Kennedy - Cross MR. SILVER: Excuse me. THE WITNESS: My page is "Based upon information." Is this -- BY MR. MCILWEE: Q. Okay. Since you're counting from the first page and not the pages in the top of the right-hand corner -- A. I don't see there's a -- Q. Let me just see if I can count them off., -- A. I've got one page number here. Q. --,,,,,. It will be the ninth page into the exhibit marked at the upper right-hand corner, subsection A. A. I see. Q. Second paragraph, starting with "Furthermore." If you could read that and look up when you've had a chance to read it. A. Okay. Q. Does this refresh your recollection as to whether or not Artemis has ever represented itself as a woman-owned business on a government website called SAM? A. I'm familiar with SAM. And at one point on our website, we did note that we were a woman-owned business because I am. But we never tried to go after any contracts because it had to be a percent ownership, which it's not. Q. And you're aware that in this document, the United States Air Force found that Artemis -- MR. SILVER: Objection, Your Honor.

8 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# C. Kennedy - Cross 0 0 THE COURT: Objection sustained. Doesn't matter what they found. It's irrelevant. BY MR. MCILWEE: Q. You don't meet the definition of a woman-owned business, do you? A. No, I do not. Q. So that representation on the government website, that was incorrect? A. Actually, we did not notate that it was a woman-owned business. There was a paragraph where it was mentioned that I'm a 0 percent owner, and that was probably taken from the website. But again, we never went after a single contract, trying to gain anything based on being a veteran- or woman-owned business. Q. Another one of the decisions that Artemis made as a company was to represent itself on its website as a veteran-owned business, correct? A. Yes. Q. And that's not correct either, right? A. He is a veteran. However, we, again, never went after any business claiming any kind of entitlements or anything based on a veteran-owned business. Q. You are aware that, as a result of Mr. O'Brien's discharge from the military -- MR. SILVER: Objection, Your Honor. Relevancy. Lack

9 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# C. Kennedy - Cross 0 0 of foundation. MR. MCILWEE: Your Honor, may I be heard? THE COURT: Yes. MR. MCILWEE: Your Honor, the witness has just testified that Mr. O'Brien is a veteran. In this very same document, the U.S. Air Force has identified -- THE COURT: It doesn't matter what the Air Force did. That's completely hearsay. We have no idea who did it, who didn't do it, or whatever. Objection sustained. MR. MCILWEE: Your Honor, this meets an exception to hearsay, 0 -- THE COURT: Objection sustained. MR. MCILWEE: Very well. THE COURT: You can cross-examine this witness on her own statements, but not somebody else's statements. MR. MCILWEE: Your Honor, may I examine on the statements of Artemis as a business? THE COURT: You'll have to ask your question. I don't know. I can't answer those general questions. BY MR. MCILWEE: Q. Does Artemis as a business have any veterans that are able to claim veteran status? A. Have any employees or owners? Q. Any employees, owners, officers that are able to claim veteran status on a government website?

10 Case :-cv-00-cmh-msn Document Filed 0// Page 0 of PageID# C. Kennedy - Cross 0 0 A. No. Q. Ms. Kennedy, were you present in the courtroom yesterday while Mr. O'Brien was on the stand? A. Yes. Q. Then you heard his testimony, right? A. Yes. Q. And you heard him explain why Artemis designated him as a corporate representative for Artemis in this case? A. Yes. Q. And why Artemis chose not to designate you? A. Yes. MR. SILVER: Excuse me, Your Honor. That's -- I'm going to object. One, he is asking this witness to comment on some other witness, which I think is improper, but the designation was in the deposition, not at trial. THE COURT: Objection sustained. MR. MCILWEE: Your Honor, may I respond to the objection? THE COURT: Yeah. MR. MCILWEE: Your Honor, during cross-examination yesterday of Mr. O'Brien, Mr. O'Brien stated in detail why he was the corporate representative and not Ms. Kennedy. Ms. Kennedy has testified here this morning that she is offering her testimony on behalf of the company as its corporate representative. I believe I'm entitled to probe into that.

11 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# C. Kennedy - Cross 0 0 THE COURT: Well, you can't do it by cross-examining a witness on somebody else's testimony, just as you can't cross-examine a witness on somebody else's statements. You can cross-examine her on her own statements. MR. MCILWEE: Your Honor, these are agents of a corporation. Under 0(d)(), their statements are both binding upon the corporation. Therefore, it's not hearsay. When Mr. O'Brien -- THE COURT: Well, whatever their binding is, it has nothing to do with who you can cross-examine on what. You cannot cross-examine a witness on somebody else's statements. Objection sustained. MR. SILVER: Thank you, Your Honor. BY MR. MCILWEE: Q. Ms. Kennedy, you used to work with Tigers, correct? A. Yes. Q. You no longer work for Tigers, correct? A. Correct. Q. Do you have personal animosity towards Tigers' leadership? A. No. I wouldn't say that, no. Q. So if a person said that you had personal animosity towards Tigers, that would be an untrue statement? THE COURT: Now, that objection is sustained. Now, that's somebody else's statement, not hers. BY MR. MCILWEE:

12 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# Q. Isn't it true that you are not aware of the historic movements, the movements of LBG cargo in question? A. I did not handle them on a day-to-day basis. MR. MCILWEE: Thank you. No further questions. THE COURT: Do you have anything further? MR. SILVER: I have nothing further, Your Honor. And we rest. THE COURT: All right. Thank you. You may step down. (Witness stands down.) THE COURT: Do you-all have any other evidence? MR. SILVER: Excuse me, Your Honor. Before you ask that, I would like to renew my motion. THE COURT: All right. MS. MCKNIGHT: Your Honor, we have a motion as well. THE COURT: All right. You have no further evidence? MS. MCKNIGHT: We have no further evidence, Your Honor. THE COURT: All right. Ladies and gentlemen, I'll let you retire to the jury room for a few minutes while I deal with these motions, and we'll bring you back. (The jury exits at 0: a.m.) MR. SILVER: If it please the Court, I would like to renew my motion for a directed verdict at this time. In addition to what I argued yesterday in my motion, I'd like to ask the Court to reconsider the question of damages in this case. Last night, when I went back, I did a little

13 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# 0 0 research and I found three cases that I think are pretty much on point. The first case is out of the Supreme Court of Virginia, SunTrust Bank v. Farrar, F-A-R-R-A-R, found at Va., S.E.d, 00, where the Court held that the plaintiff bears the burden of proving with reasonable certainty the amount of damages and the cause from which they resulted. Speculation and conjecture cannot form the basis of the recovery. It says damages cannot be recovered if derived from uncertainties, contingencies, or speculation. The Virginia Supreme Court in a 00 case, Sunrise Continuing Care, LLC v. Wright, W-R-I-G-H-T, et al., at Va., S.E.d, said again, damages that are contingent, speculative, and uncertain are not recoverable because they cannot be established with reasonable certainty. This court, through Judge Lee in the matter of Vienna Metro, LLC, v. Pulte Home Corporation, F. Supp. d 0, relied on those two cases in finding that under Virginia law, plaintiff must prove damages with reasonable certainty. Contingent, speculative, and uncertain damages are not recoverable because they are uncertain. And this goes directly to their testimony, which they are bound by, that said the -- and the only thing I heard in this entire case about damages was this arbitration against them where Louis Berger Group is claiming 00-and-some-odd thousand

14 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# 0 0 dollars for the loss of Louis Berger's equipment in Pakistan or in Afghanistan, whichever stan it happens to be. And I asked him, do you admit that you owe the,000? He said no. I said how much do you owe, if anything? And he said I don't know. We have to leave that to the arbitration. Well, if that isn't speculative and if that isn't contingent, then I don't know what the Virginia Supreme Court or Judge Lee were talking about in refusing to allow those kind of damages to go forward in a case. The contract itself talks about the lesser of two figures, actual damages or $ a pound for what is lost. There was no testimony as to that. There simply was no testimony as to damages, and neither -- if this was being tried by this Court itself, the Court would, I think, be obliged to say under the case law this is contingent. You could end up with a windfall if, say, for instance, you prevailed in the arbitration and you -- and Louis Berger Group was awarded nothing. On the other hand, you could say, well, how am I supposed to decide whether you're entitled to zero or 00,000, because I don't know what would have happened in that arbitration? You could have gotten something halfway in between, percent or percent. It would call for absolute speculation on an amount

15 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# 0 0 that is contingent. It's contingent on what the arbitrator decides the evidence will show. So for that reason, in addition to the reasons you talked about yesterday, they failed in the -- in proving any damages, which is one of the prima facie elements of their case. Thank you, Your Honor. If the Court wants, I do have copies of the cases for the Court. THE COURT: I understand. I'm familiar what you're talking about. This is a jury trial, and the question is is there enough to go to the jury. You can talk to the jury about whether or not damages are speculative, can't you? MR. SILVER: Well, I think the Court can instruct them on it, and I think I can talk about it. But let's assume a jury came back and said, okay, we're awarding a million dollars, because that's what they said they lost -- what the attorneys say. But there's no evidence before them on which to base it. The Court would have to set it aside. So I think at this point in time I don't think the jury even gets to decide that issue because the prima facie element has not been proven, and if it was just the Court, the Court would say you haven't proven your damages. I have to dismiss the case. THE COURT: I understand. MR. SILVER: Thank you, Your Honor. THE COURT: I'm not inclined to change my ruling. I

16 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# 0 0 believe they've testified as to damages, and you can argue that issue to the jury. MR. SILVER: Thank you, Your Honor. MS. MCKNIGHT: Thank you, Your Honor. I'll first briefly respond to what he said. I understand that -- THE COURT: No reason. You've already won. MS. MCKNIGHT: Okay. I won't snatch victory -- THE COURT: -- jaws of victory. MS. MCKNIGHT: What I do want to address with you then is our own motion regarding their affirmative defenses. You'll note that they made a handful of affirmative defenses in their answer. There was no evidence -- first issue is there was no evidence put on about any -- THE COURT: They haven't asked anything about affirmative defenses. They didn't put it in the instructions, did they? MS. MCKNIGHT: There was one instruction that they put in belatedly, in late May, regarding force majeure that was not one of their named affirmative defenses, but it was an indication that they -- MR. SILVER: We will withdraw that, Your Honor. MS. MCKNIGHT: So we understand that affirmative defenses are not being pursued. THE COURT: I haven't gotten any instructions on it. MS. MCKNIGHT: Okay. That's all I need to talk to you

17 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# about, Your Honor. Thank you. THE COURT: All right. Well, I'll go through the instructions I'm going to give the jury. And I'm not going to tell you exactly what I'm going to say. But after I instruct the jury, I'll give you an opportunity to object to what I've said. I'm going through this for the purpose of -- for you to tell me if there's anything else that I need to instruct. MR. SILVER: I did provide counsel this morning with two new instructions on damages, which is exactly the language which I quoted to the Court in my motion. So I'd like to add these two jury instructions. THE COURT: Let me see them. MS. MCKNIGHT: Your Honor, we would object to them. We're happy to discuss further after you have a chance to look at them. THE COURT: I have a feeling you're going to hand me a couple of finding instructions. I've got a general damage instruction, which is the one I normally give. And you-all can argue to the jury what they ought to do with that. I don't want to give a finding instruction for either party. MR. SILVER: I don't think it's a finding instruction. Excuse me. There's one other one. THE COURT: I'm sure you don't. (Pause.) THE COURT: That's a matter of your argument. I'll

18 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# 0 0 instruct the jury on damages. You can argue whether or not they have proved them from the evidence. MR. SILVER: Can I mention the -- never mind, Your Honor. THE COURT: I'll tell the jury about breach of contract and the elements involved, define material breach. Tell them to construe the contract as a whole. Talk about that a corporation acts through its agents. I'll talk to them about vicarious liability, piercing the corporate veil. MR. SILVER: Your Honor, the vicarious liability and piercing the corporate veil I don't believe are part of this case anymore. THE COURT: Well, we've got two corporations, and it's still alleged that one of them was operating through the other one. MR. SILVER: Actually, in the complaint it says something totally different. What it says is that O'Brien was acting as the alter ego of the two corporations. They don't say anything more about -- THE COURT: Well, just because the evidence didn't confirm to that -- or didn't confirm that, they can go forward with the evidence they've presented here in the courtroom as I have found. MR. SILVER: I understand, Your Honor. But what their evidence is -- I think what they're trying to show is that

19 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# 0 0 Tamerlane has a contract it breached and that Artemis had a contract it breached, not that you can pierce one to get to the other. I think that they allege that they've proven that they were two separate corporations, that each had a relationship and each breached that relationship. I think -- THE COURT: I think that there's evidence here that the one corporation was folded into the other one and was operating there, and so that they would be entitled to pierce that veil and go after that money. MR. SILVER: I don't think that's -- THE COURT: They sent money from the first corporation -- due to the first corporation to the second. MR. SILVER: Correct. And I agree with all that, Your Honor. I think you're absolutely correct. But I don't think that's what their complaint says, and I think they're bound by the complaint. THE COURT: Well, they're bound by the evidence presented here in the courtroom, I believe. MR. SILVER: I think both. THE COURT: All right. MR. SILVER: Thank you, Your Honor. THE COURT: Is there anything else I need to instruct on other than my general instructions? MS. MCKNIGHT: Your Honor, just briefly. This isn't -- this doesn't have to do with the instructions, but on the point

20 Case :-cv-00-cmh-msn Document Filed 0// Page 0 of PageID# 0 0 that opposing counsel -- we'd just like to preserve for the record that we are prepared to move to amend the pleadings under Rule (b)() of the Federal Rules of Civil Procedure. I note that I agree with your position. I think that we are bound by the evidence that's been presented here, but we're apt and ready to amend the pleadings as necessary. Again, we don't think it's necessary, Your Honor. THE COURT: Well, I don't believe it's necessary. I mean, if you want to amend, you can do so, but I don't think it makes a big difference. MS. MCKNIGHT: Thank you, Your Honor. THE COURT: All right. How long do you-all want to argue? Ten minutes a side? MR. MCILWEE: Your Honor, I'll need 0 minutes. THE COURT: You don't want that much, do you? MR. SILVER: No. Ten minutes is probably all I need. THE COURT: All right. Well, I'll tell you. I'll give you and, and I'll give you 0. Give you the same that he has. MR. SILVER: That will be fine. Thank you, Your Honor. THE COURT: All right. MR. SILVER: I will try to be briefer than that. THE COURT: Good. Very good. If there's nothing else, I'll take a brief recess and we'll come back and call the jury out and begin closing arguments.

21 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# 0 0 (Recess taken at 0: a.m.; the jury enters at 0: a.m.) MR. MCILWEE: May it please the Court, Counsel. Thank you, members of the jury, for your time and attention here yesterday and today. When my co-counsel first spoke with you yesterday morning, she told you that this was a case about accountability, holding a company accountable for the promises it makes and the individuals who make them. Accountability is probably something that you've thought a lot about as you've listened to the evidence, and that's because justice requires it in this case. There are two basic issues left for you to decide. First, did Tamerlane breach its contract with Tigers causing Tigers to suffer financial injuries? Second, should Artemis and Tamerlane be treated as the same with respect to Tamerlane's breach of contract? The evidence that you have heard has shown the answer to both questions is yes. Now let's talk about why. Was there a contract? Yes. No one disputes that. You'll be able to take the contract with you as you go back to the jury room to deliberate. It's Plaintiffs' Exhibit and Plaintiffs' Exhibit. Did Tigers perform its end of the bargain? This is also not in dispute. O'Brien admits that the only final invoice that he provided to Tigers through Tamerlane -- or Artemis

22 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# rather -- was paid within weeks of mailing it. Did Tamerlane fail to perform its obligations under the contract? Definitely. The evidence that you have heard has shown at least three violations of the contract. First, Tamerlane completely botched move one, the international move. What was supposed to happen was that Tamerlane was supposed to pack up the cargo in Kunduz and deliver it to the port of Karachi in Pakistan. That never happened. Mr. O'Brien himself had to admit to you that this move was unsuccessful. But it was more than just unsuccessful. Mr. Bongean explained to you that this cargo was destined for Dubai in 0, but because Tamerlane never paid his Afghani trucking subcontractor, Ghazanfar, and because the trucking subcontractor confiscated the cargo pending payment, at best the cargo sits in Afghanistan to this day, or more likely it has been scrapped, resold, stolen, or destroyed. What's worse, O'Brien admits that he never told Tigers about the debt to Ghazanfar or the impact that that had on the contract. That means Tigers did not know about unpaid invoices. Tigers did not know that Ghazanfar rejected the way that Tamerlane chose to move the cargo. And if Tigers had any way to fix the issues with Ghazanfar, Tamerlane never gave it the opportunity. But Tamerlane is not just at fault for keeping its mouth shut when it should have been talking to its business

23 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# partner, Tigers. Tamerlane actually lied to Tigers. O'Brien told Tigers some fantastical story about a Pakistani cargo seizure, a heist by truckers, and an epic journey to Pakistan to negotiate the release of the cargo with war profiteers. All lies. Tamerlane is at fault for telling lies. Why did Tamerlane lie to Tigers? The evidence has shown you why. Because it got Tigers to urgently send money for move two, a move that O'Brien says, in his own words, was nothing short of a disaster. Now, we understand that the movement of cargo took place in what's been referred to as a war zone, and we understand things can go wrong in this type of environment. But let's not lose sight of why Tigers chose to do business with Tamerlane. Mr. Bongean told you that we partnered with O'Brien because he had experience moving cargo in the Middle East. He knew what problems would arise and how to fix them when they arose. But when problems arose in this case, what did Mr. O'Brien do? Threw up his hands and said not my problem. But in signing the contract with Tigers and in undertaking the LBG moves, Tamerlane made it its problem. And though Tamerlane won't take responsibility for its mishandling of move one, you have the power to hold it accountable to Tigers by finding in our favor. Second, you know that Tamerlane breached its contract

24 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# because Tamerlane bungled move two as well. While no one argues whether or not the trucks made it to their destination -- they did -- the cargo inside the trucks, what actually mattered to Tigers and LBG, what Tamerlane was responsible for safeguarding, what happened to that cargo? Well, you heard it was vandalized, damaged, some of it was even stolen. Remember, O'Brien himself describes this move as nothing short of a disaster. Once the cargo was delivered to its destination, a police investigation conducted by the military was necessary. In a rare moment of candor for the defendant, O'Brien admitted to Ghazanfar in an that this movement single-handedly cost Tigers and Tamerlane the multi-million dollar, -country contract with LBG. He was not wrong about that. But what did Tigers do? Tigers made right by its business partner. It paid Tamerlane, or Artemis, in full immediately even though it didn't receive any value for it. Third, you know that Tamerlane breached its contract because O'Brien lied about the status of his company, Tamerlane. Remember that the contract, Exhibit, explicitly requires any party on the verge of liquidation to advise the other party that it would not be able to perform under the contract. When you take the contract back to the jury room, this is provision E. What evidence have you heard then that Tamerlane

25 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# breached this part of the contract? O'Brien admitted to you yesterday that Tamerlane lost a jury verdict for nearly $ million at the -- in the fall of 0. That means that O'Brien's business, Tamerlane, went $ million into debt overnight. When that happened, did O'Brien quit and come clean with Tigers? No. O'Brien propped up a new company, Artemis, secretly sent its best clients to Artemis, and left Tamerlane with no income and a devastating judgment. O'Brien did not tell Tigers a word about Tamerlane going out of business. He just changed the sign on the door and hoped that no one would notice. But Mr. Bongean noticed the name change. Exhibit, a November 0 . The jig was up. Right? I wish that we could say that that was the case. O'Brien continued to lie. He told Mr. Bongean that the status of Tamerlane as a company had not changed. If O'Brien simply came clean with all the information that you've heard yesterday and today, we would not be in this courtroom. Tigers never would have continued to do business with him. But he covered up the liquidation of his company, Tamerlane, and the resulting breach of the contract. And shame on us. We trusted him. While the evidence of any one of these breaches alone is sufficient for you to find that Tamerlane breached its contract, the combination of all three should remove any doubt

26 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# in your mind. Then all that is left is to prove damages on the breach of contract. Did Tigers suffer damages as a result of Tamerlane's breach of contract? Yes. We know that it did. Because O'Brien botched move one and because the cargo that he promised to deliver through his company, Tamerlane, to -- was left in Afghanistan, LBG has sued Tigers for $,000 plus interest and their attorneys' fees. You heard Mr. Bongean tell you that this demand is equal to the replacement cost of move one. Because the cargo that Tamerlane was supposed to deliver has been declared a total loss by Tigers, Tamerlane owes us every penny of this amount. You can read the agreement, Exhibit, section. Tamerlane agreed that in the event of a breach that resulted in misconduct, it would hold harmless Tigers from any damage, delay, loss, or expense regarding shipments handled by his company, Tamerlane. Hold harmless is just a legal term of art. It means that O'Brien agrees to pay a hundred percent of the damages, delay, loss, and expense cost. And expense includes the full amount of the $,000, the interest on that amount, and the fees that LBG has been made to spend. Indemnity provision aside, Tamerlane's fair share of such a loss under the contract is at least half that, $,000. Now, defendants will argue that these numbers that the evidence has provided to you are not damages that we deserve.

27 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# You'll hear words like uncertain or speculative or remote. None of those apply. We did not just pull these dollar amounts out of thin air. The sum of our damages is simply the amount that is attributable to Tamerlane's breaches, which in this case is what the owner of the cargo said it will cost to replace its belongings, seven truckloads of cargo, plus interest for being without use of the cargo for over three years, and the attorneys' fees that this whole mess has cost them. These damages are certain. They are exact. They are reasonable. They are directly falling from Tamerlane's breach of contract. When you heard -- hear defendants argue about damages though, I want you to remember one thing. The amount of money that it would take to now finish what Tamerlane and Tigers promised LBG that it would do is a number that Tamerlane is solely responsible because of its failures. Just because LBG has provided Mr. Bongean a number that Tigers has to pay to make things right doesn't mean that you have to distrust that number or find it unreasonable. Common sense tells you the value of seven truckloads of cargo in the Middle East and being without the use of that cargo for nearly three years, that adds up. O'Brien himself had to tell you that the fuel that was in these generators was so valuable, that was even worth stealing. You can also believe Mr. Bongean is accurately

28 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# reporting that number because he is the only person that you have heard from in this case that is willing to finish the job that he started. You have the power to decide who and what to believe. And you have the power to help Tigers finish the job by awarding Tigers the full amount that we have asked. If you find that the defendants' misconduct caused the damages in evidence, we ask that you award us a hundred percent the damages,,000 for the cost to replace the goods, interest on that amount, and a sum to offer LBG for their attorneys' fees that would never be necessary without Tamerlane's failures. If you find, however, that the damages and evidence do not relate to misconduct, we still ask you to hold Tamerlane responsible for their fair share, $,000. All right. So you know that Tamerlane breached the contract resulting in financial injuries to Tigers. So let's talk about why you should treat Artemis and Tamerlane as a single entity. First, consider what O'Brien and Artemis admitted long before this lawsuit was even filed. Remember O'Brien's to Bongean where he said Tamerlane and Artemis are the one and the same. This is Exhibit dated February, 0. Remember the first invoice that Artemis sent to Tigers that said Tamerlane Global Services officially became Artemis Global, Inc. This is Exhibit, page. Then Artemis' revised invoice -- remember that they

29 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# said it again. Tamerlane Global Services was officially absorbed by Artemis Global. This is the last page of Exhibit. What can you take from these statements? Well, long before Tigers and Tamerlane entered litigation, before there was a question as to the identity of Tigers -- as to Tamerlane and Artemis, O'Brien wanted us to believe that his companies were the same. It wasn't until problems starting to stack up that O'Brien began backing away from his statements that Tamerlane and Artemis were the same. Hiding behind Artemis as a separate company is a recent development, and it started when issues between Tigers and Tamerlane began to mount. When you go back to the jury room, take a look at defendants' statements in Exhibits,, and and remind yourself of O'Brien's own words: Tamerlane and Artemis are one and the same. Second, consider defendants' common interest in ownership. When you think about what defines a company, what do you think about? Who owns the company? Where does the company work? Who works for the company? What does the company do? Who are the company's clients? O'Brien told you yesterday that he owns Tamerlane and he owns Artemis. O'Brien told you that Tamerlane works in Virginia. So does Artemis. O'Brien told you that he and Ms. Kennedy work for Tamerlane. He and Ms. Kennedy work for

30 Case :-cv-00-cmh-msn Document Filed 0// Page 0 of PageID# Artemis. O'Brien told you that Tamerlane specialized in the movement of cargo in Afghanistan and that Artemis does the same. Maersk was Tamerlane's biggest client. Maersk is Artemis' only client. The expression is an old one, but it's true in this case. If it a walks like a duck and quacks like a duck, it's a duck. Tamerlane and Artemis are one and the same. Third, consider why Artemis was created in the first place. Tamerlane was about to or had just received a jury verdict in the amount of $. million. So what did O'Brien do? He convinced his best client, Maersk, to sign up with his new client, Artemis. Tamerlane was stripped of all of its income, and O'Brien went on to keep doing what he does judgment-free. O'Brien did not let Tigers know about the status of Tamerlane because he knew that that would jeopardize his chances of getting money out of Tigers and LBG. The judgment alone against Tamerlane and the resulting liquidation of Tamerlane was an independent breach of contract. O'Brien's actions do not just show how he dominated and controlled Tamerlane and Artemis, but it also shows that Artemis is a mere sham used to hide Tamerlane's adverse jury verdict so that O'Brien could keep making meaningless distinctions to avoid liability in this case. Even while conducting business, Artemis never treated itself as a separate entity from O'Brien -- or Tamerlane rather. You heard O'Brien's testimony on Artemis' bank account. The

31 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# money pays for exes to run up AmEx bills and drive luxury cars. This money pays for O'Brien's personal Visa. This money pays for Tamerlane employees and Artemis employees from the same account. It is an account that serves one purpose: O'Brien's whim. As a business, Artemis does not file taxes, hold regular board meetings or complete annual financial statements. To treat Artemis and Tamerlane as being different defies the evidence. It defies common sense. You have six in one hand and a half dozen in the other. When you find Tamerlane liable, you find Artemis jointly liable. In a moment the defendants will present their closing arguments, and they will likely argue that Tamerlane and Artemis are really different companies. But consider the source of the information for their arguments: Mr. O'Brien and Ms. Kennedy. Have the defendants really provided you with a reliable source for information? Not a chance. I must have had to remind Mr. O'Brien of what he said in his deposition under oath or what he wrote about in s during the time this contract was performed over ten times. And because of O'Brien's misrepresentations and inconsistent statements that you have personally witnessed during this case, we don't expect you to fall for his lies. As far as Ms. Kennedy is concerned, Mr. O'Brien himself told you that she was not selected as Artemis' corporate

32 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# representative in this case because she didn't know about the history of the LBG moves, and O'Brien did, but the defendants present her today and yesterday as a witness to talk about the LBG moves. They can't even get their stories straight in court. And remember the testimony that Ms. Kennedy provided about her business, Artemis, about the decisions that it makes and how she makes decisions for that company with honesty and integrity. But you heard that that company has represented itself as a woman-owned business. It does not qualify as a woman-owned business. You heard that that company represents itself as a veteran-owned business. You heard testimony that there are no veterans within that business, employed by that business, that are able to claim such status. Before I sit back down, I want you to understand what the burden of proof is in this case. It is a burden that we, as the plaintiffs, must meet, and it is a burden that we have exceeded in this case. As the Honorable Judge Hilton will instruct you, we must prove our claims by a preponderance of the evidence. Another way of saying this is just a greater weight of the evidence. As an illustration, imagine two reams of printer paper. These two reams of printer paper represent proof put forth by either side. Now, if we, as plaintiffs, have, in your minds, as much as put a Post-it note of additional proof on our ream of

33 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# paper and weighed our papers on the scales of justice against their proof, then we have met our burden of proof and you must find in our favor. We have done that and more. Members of the jury, we are asking you to find in our favor, to hold defendants responsible for the actions of Tamerlane and to award Tigers its damages. If you find the defendants' misconduct caused the damages in evidence, we ask you to award us a hundred percent of the damages, the $,000 for the cost to cover the replacement of the cargo in move one, the interest on that amount, and a sum to offer LBG for their attorneys' fees which would never be necessary if the cargo were actually delivered. If you find, however, that the damages and evidence do not relate to misconduct, though they do, we still ask you to hold Tamerlane and Artemis responsible for $,000 as a share of replacing the move one cargo. These amounts are what the defendants are obligated to pay under the contract, the amounts that will put Tigers in the position it was in where the defendants' breach, the amounts that will help make things right with our client, LBG. They are only amounts that the evidence supports and that justice demands. Find that Tigers has met its burden of proof. Find defendants liable. Thank you. MR. SILVER: Good morning, ladies and gentlemen of the jury. I first want to thank you for your attentiveness in this case. The testimony in this case was enough to make anybody's

34 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# eyes glaze over, and you-all did not glaze over. You paid attention, and I appreciate that and I thank you for it. My clients thank you for it, as do the plaintiffs' counsel and their clients. This is an important case for all the parties, and we expect you, the jury, to be fair. That is your duty in this case. As we told you at the beginning, what the lawyers tell you -- what I tell you, what counsel tells you -- that's not what you go by. You go by what you remember, what you saw, and what you heard. You determine who's credible and who's not credible. Now, I'll suggest to you there were three witnesses in this case, and I thought they were all credible witnesses. I thought Mr. Bongean did a good job on behalf of Tigers. He told the truth. In fact, when I asked him how were you damaged, in what amounts, he was very honest and candid. He said, well, we got sued for,000. I said do you owe it? He said no. How much do you owe? I don't know. That's got to be decided in the arbitration. Well, if it's got to be decided in the arbitration, then you as jurors don't know what that number is either. And you can't substitute your judgment for the arbitrator who's going to make a decision, as the decision may be zero, it may be 00,000, it may be 00,000. It could even be the,000. Counsel has said to you he wants to award the

35 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# attorneys' fees that might be awarded in the arbitration. Did he offer any evidence of what these attorneys' fees were? I didn't hear it. If you heard it, then go with what you heard. Did he tell you -- did they offer evidence of what this cargo actually was in Afghanistan or Pakistan or wherever it ended up? And did you hear that it was two bulldozers and three cranes or four missile launchers or whatever? I didn't hear it. So we don't know what that cargo is and we don't know what that cargo was worth. The only thing we have is some other company, Louis Berger Company, has said we're suing you for $,000. Well, anybody can sue anybody for any amount of money. It's what you prove is what you get. And the one thing that you ought to take away from this case is they haven't proven anything as far as damages. And that is one of the elements of the case is -- it's the most important element. I can prove to you that my house burned down, and I can tell you the house and its contents were worth a million dollars. But if I don't have some kind of proof of what was in that house, go particular-by-particular and tell you what each item was worth, I haven't proven my case. Now, the Court will instruct you, I'm sure, that in order for the plaintiffs to win on this case, they have to prove there was a contract, there was a breach of contract, and there were damages. If any one of those elements is missing, you have to find in favor of the defendants.

36 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# So let's take a look at some of the other evidence in the case. And counsel has told you that move one was a disaster, and he said Mr. O'Brien said so. Well, Mr. O'Brien said so in the deposition. He said three weeks later he found that he was mistaken, that everything turned out just the way it was supposed to have gone. It was not a disaster. He explained that to you. In their complaint at paragraph, they say after move one was completed, Tigers learned that move two cargo was not delivered. Now, that's a true statement. The $,000 that was paid was for the completion of move one. They didn't say move one -- you know, Tamerlane breached the contract because it didn't do move one or they weren't entitled to the money. They said after move one was completed, Tigers learned that cargo -- move two cargo was not delivered. So we get the,000, but we didn't do move number two, and we didn't get paid for it. And you didn't hear any testimony from Tigers that we were paid for anything but move number one, which was completed. Now, in counsel's closing statement all of a sudden you heard for the first time the number $,000. Where does that come from other than as one-half of the,000 that Louis Berger was claiming? Why? We don't know. We don't know why he split that in half. Yet he's saying, well, maybe you could

37 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# award the, but if you don't agree with that -- because we really don't know where that number comes from -- give them half of that,. We don't know where that comes from either, but it is half of the. Can you, as jurors, think back to any testimony that told you what the damages were in this case, how they were calculated, what elements went into them, what pieces of cargo made up the part of it? You didn't hear -- you didn't hear any evidence as to did Louis Berger Group get their cargo back. Maybe they did. We don't know and you don't know because there was no testimony. Did they call anybody from Louis Berger Group to testify, yeah, we didn't get it back and this is what it was worth? No. You have to ask yourself, why not? They talk about Artemis and Tamerlane being one and the same because there was one invoice and the revision to that invoice that said one was absorbed by the other. You heard Candice Kennedy testify -- and I thought she was a very good witness and I thought she was credible -- and she said we were told to do it that way so that Louis Berger Group would pay Tigers who would then pay us. And I asked her, and who told you to do that? Brooks Isoldi. Who is he? He was the person most intimately involved with this entire contract with Tamerlane and Artemis. Did you hear them call Brooks Isoldi as a witness? You

38 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# didn't. Why not? He was their employee. Did you hear Mr. Bongean -- and Mr. Bongean I thought was a very good witness, and I thought that he was very credible. Did you hear him say anything about that? If you did, go by what you remember. I don't remember anything myself. Counsel said to you that O'Brien said -- well, I already went through that. I'm not going to go through it again. Well, let's take a look at the contracts themselves, and that's Plaintiffs' Exhibit Number. You're going to be taking that back to you. And I urge you, take a look at the contract. Take a look at who the parties are to that contract. You're going to find that the parties to the contract are Tigers Hong Kong and Tamerlane. Are you going to find Artemis' name in that? Nowhere. You will not find one document in this case that is a contractual document that Artemis has signed. You will find in the -- their Exhibit Number, which is the -- one of the -- I'll call it a task order. You're going to see Tigers (USA) and in -- and Louis Berger in partnership with Tamerlane. Do you know what the partnership was? Did Tamerlane sign that? No. In fact, Mr. O'Brien testified I never even saw that before this litigation. Yet they want to take all this stuff and they want to say not only is Tamerlane responsible, but Artemis is too.

39 Case :-cv-00-cmh-msn Document Filed 0// Page of PageID# Well, we agree that Tamerlane is responsible. We agree Tamerlane did not complete move number two, but neither did they. Had they completed move number two, would they have been damaged? I don't know. I don't think you know either. But they didn't do it. It's been two years. They can't tell you where the stuff is. Louis Berger Group may have it. It may have been paid for. That may be the defenses to the arbitration. But they have told you, we don't agree with the numbers that we're being sued for. I don't agree with either. I don't think they ought to pay anything. And if they don't pay anything, you should not award them anything for something they may or may not pay. It's called speculative. It's called conjecture. It's called contingent. As the Court will instruct you, if their damages are speculative, remote, contingent or -- what was the other word I used? -- whatever it was, they don't get it. And if you don't get it, they don't get it either. I kind of sound like a Washington Post ad when I say that, but those are the facts. The facts are what you remember, and in this case, they've thrown numbers at you and they're saying this is a bad guy and that's a bad guy so give us money. You can't do that. You need to be fair to everybody. You need to follow what the judge says, tells you the law is. And if you find that Artemis is not part of any contract, if its name is not signed to a contract, you can't find against Artemis

40 Case :-cv-00-cmh-msn Document Filed 0// Page 0 of PageID# unless you agree that Artemis and Tamerlane are one and the same. Yet they allege in their lawsuit that they are two separate companies. If you look at the defense exhibits -- I forget which ones they are, but you'll see the charges from two separate companies. You've got Candice Kennedy testifying we are two separate companies, and I specifically would not get involved with Tamerlane because it had this big judgment against it and I wasn't investing in a company that's going out of business. Do people start up new companies when some company they've -- prior companies go bad? Ask Donald Trump. This has been done all the time. It is part of the system. There's no sense working for a company that is never going to make any money, that has judgments against it. What do you do? Well, you just sit at home and do nothing or you start up a new company. Nothing wrong with that. They want you to believe there's something wrong with that. Nothing is wrong with that. Ladies and gentlemen of the jury, I think you understand this case as well as the two of us. I think you understand the facts probably better than we do. And I ask you to look at all the facts, consider what we've given, think about it. Did they prove any damages? Did they show -- I asked did they show what the partnership damages were if there was a partnership, which is what one of the contracts said, BPA.