Contract analysis

I. Purpose and Overview The purpose of this memorandum is to prepare the entire engagement team for oral argument before Judge Calloway on January 19, 2024, concerning the cross-motions for summary judgment pending in Verimark Hospitality Group Inc. v. Coastal Palms Franchise Holdings LLC et al., Case No. 1021-00006. Specifically, the Court will hear argument on two motions: (1) Verimark's Motion for Partial Summary

II. Procedural Posture An understanding of the procedural history is essential context for the argument. The key procedural milestones are as follows: Complaint and Responsive Pleadings. Verimark filed its Complaint on March 7, 2022, asserting ten counts against three defendants: Coastal Palms Franchise Holdings LLC ("Coastal Palms"), Randall Brecker (individually, as managing member of Coastal Palms), and Suncoast R

III. Core Legal Issues for Oral Argument The Court's analysis of the cross-motions will turn on four interlocking legal issues. We anticipate that Judge Calloway will move through these issues in roughly the order presented below, though the Court may choose to address the cross-motion issues first or interleave questions about both motions. The team should be prepared to address these issues in any order. A. Issue 1

IV. Anticipated Questions from Judge Calloway Based on our review of Judge Calloway's prior rulings on summary-judgment motions, his questioning style during oral argument, and the issues raised in the briefing, we anticipate the following questions. Each team member should internalize the recommended responses below. A. On the GRR Definition (§ 4.1) Question 1: "Counsel, why shouldn't this Court look at the property

V. Key Authorities The team should have the following authorities readily accessible during argument. Carlos Espinoza will prepare a tabbed binder organized by topic. A. Contract Interpretation — Unambiguous Terms The foundational principle is that, under Florida law, when a contract term is clear and unambiguous, the court must enforce the contract according to its plain meaning and may not resort to extrinsic evide

VI. Talking Points — Affirmative Presentation Priya Anand will present the oral argument for Verimark. The following talking points are organized in the order in which they should be presented, subject to modification based on the Court's questions and the flow of argument. Douglas Carmichael will serve as second chair and should be prepared to step in on any point if needed. A. Opening Framing (2–3 Minutes) The open

VII. Concessions to Avoid The following directives are critical. During oral argument, the team must avoid making any of the following concessions, whether explicitly or implicitly. If the Court presses on any of these points, the recommended approach is to acknowledge the question, redirect to Verimark's affirmative position, and avoid any formulation that could be construed as a concession.

1. Do NOT concede that § 4.1 is ambiguous or susceptible to more than one reasonable interpretation. If the Court begins probing potential ambiguity — asking, for example, whether the phrase "regardless of the entity collecting such revenue" could be read to apply only to OTA intermediaries — redirect firmly to the plain language. Emphasize that the phrase is categorical and all-encompassing, that it uses the word "r

2. Do NOT concede that Verimark had knowledge of or acquiesced to the revenue-exclusion practice. This distinction is critical: knowledge that Suncoast existed as a management entity is not equivalent to knowledge that Suncoast-collected revenues were being excluded from GRR reports. Maintain this distinction at all times. Do not allow the Court or opposing counsel to conflate these two propositions.

3. Do NOT concede the validity of Prof. Hargrove's $6.2 million damages figure. If the Court asks about the gap between the parties' damages positions, emphasize that damages are not before the Court on Verimark's motion and that Hargrove's methodology improperly narrows the GRR definition in a manner inconsistent with the contract language. Do not validate Hargrove's analysis in any way.

4. Do NOT volunteer analysis of the enforceability of the § 15.3 liquidated-damages provision. If the Court asks, state affirmatively that the provision is a reasonable pre-estimate of harm and is enforceable under Florida law, but emphasize that this issue is deferred and is not necessary for resolution of the pending motion. Do not open the door to a discussion that could derail the argument.

5. Do NOT concede that Coastal Palms' counterclaim has any evidentiary basis. If the Court raises the counterclaim in the context of Coastal Palms' cross-motion, note the absence of expert support, the absence of specific factual foundation in the deposition testimony, and the absence of any quantitative damages analysis. The counterclaim should be characterized as a litigation tactic, not a meritorious claim.

6. Do NOT agree to resolve damages at summary judgment. If the Court suggests that it would be efficient to address damages now, maintain the position that genuine factual disputes on quantum — as demonstrated by the $6.2 million versus $150 million gap — require trial. Express willingness to try damages promptly if liability is established, but do not invite the Court to rule on damages at this stage.

VIII. Rebuttal Preparation — Anticipated Defense Arguments Based on the briefing and our assessment of Nathan Whitfield III's likely presentation style, we anticipate the following arguments from Coastal Palms during the hearing. The recommended rebuttals are set forth below. A. "Verimark Knew About Suncoast" Anticipated Argument: Coastal Palms will argue that Verimark was aware of Suncoast's existence because Suncoa

IX. Logistics and Format A. Hearing Details • Date: Friday, January 19, 2024 • Time: To be confirmed with Judge Calloway's chambers. We should assume a morning calendar slot, most likely 9:00 a.m. or 9:30 a.m. Douglas Carmichael will confirm with the judicial assistant by telephone no later than January 16, 2024, and will circulate the confirmed time to the team. • Location: Broward County Courthouse, 201 SE 6th Stre

1. Tabbed binder of key authorities cited in Verimark's briefing, organized by topic (contract interpretation, material breach, waiver/estoppel), with relevant passages highlighted.

2. Copies of all 22 FLAs. A representative FLA should be flagged with tabs at the following provisions: § 4.1 (GRR definition and royalty obligation), § 4.2 (marketing-fund contribution), § 4.6 (late-payment interest), § 8.2 (audit rights), § 14.1 (general breach provisions), § 14.2(c) (systematic underreporting — material breach incapable of cure), and § 15.3 (liquidated damages).

3. Key deposition transcript excerpts: Randall Brecker (Days 1 and 2, January 9–10, 2023) — flagged at admissions regarding direction to exclude Suncoast revenues; Janet Kerrigan (January 23, 2023) — flagged at testimony regarding instructions from Brecker; and selected property-level managers — flagged at testimony corroborating the underreporting practice.

4. Dr. Sharon Kettlewell's expert report (April 14, 2023) and rebuttal report (June 9, 2023) — with damages summary tables bookmarked for quick reference.

5. Prof. Grant Hargrove's expert report (May 15, 2023) — with the methodology section flagged for impeachment purposes if the Court raises the damages dispute or if opposing counsel relies on Hargrove's conclusions.

6. Courtroom copy of Verimark's Statement of Undisputed Material Facts (127 paragraphs, filed September 29, 2023).

7. One-page summary chart for courtroom reference, presenting the following figures: Note: This chart is for internal reference and to have available if the Court requests a summary. It should not be handed up to the Court unless specifically requested, as Verimark's motion addresses liability only and we wish to avoid drawing undue attention to the damages figures — particularly the liquidated-damages component — du

X. Summary of Recommended Approach In closing, the following principles should guide every aspect of the team's preparation and performance at the January 19, 2024 hearing: Lead with the plain language of FLA § 4.1. The "regardless of the entity collecting such revenue" clause makes this case straightforward. Every other argument — on both sides — flows from the interpretation of this provision. If we win on contract