Contract analysis

I. Background of the Action BRB filed the original Verified Complaint in this action on August 12, 2024, seeking, among other relief: (i) enforcement of a Forbearance and Modification Agreement dated October 6, 2023 (the "Forbearance Agreement") between BRB and Triton Harbor; (ii) judgment on the personal guaranties executed by Marcus J. Kappel and Elaine D. Kappel (the "Guaranties"); and (iii) recovery of the defici

II. The Counterclaims On October 18, 2024, Defendants filed an Answer with Counterclaims, asserting the following four counterclaims against BRB: (1) fraudulent inducement; (2) negligent misrepresentation; (3) breach of the implied covenant of good faith and fair dealing; and (4) rescission of the Forbearance Agreement and the amended Guaranties. Counterclaim-plaintiffs seek compensatory damages in an amount not less

III. BRB's Proposed discovery Schedule BRB respectfully proposes the following discovery schedule and case management framework for the Court's consideration. BRB believes this schedule provides a fair and efficient path to resolving the disputes in this action while affording both parties sufficient time to conduct meaningful discovery. A. Document Production BRB proposes that the parties exchange their initial docu

1. Derek Whitmore (Senior Vice President and Head of Special Assets Group, BRB) — February 18, 2025

2. Joanna Reeves (Vice President, Special Assets Group, BRB) — February 25, 2025

3. Philip Aaronson (Executive Vice President and Chief Credit Officer, BRB) — March 4, 2025

4. Marcus J. Kappel (Founder, Chief Executive Officer, and 72% Member, Triton Harbor Industries, LLC) — March 11, 2025

5. Elaine D. Kappel (Chief Financial Officer and 28% Member, Triton Harbor Industries, LLC) — March 18, 2025 The proposed dates set forth above are subject to refinement based on counsel availability and witness schedules, and BRB is prepared to discuss alternative dates with opposing counsel to accommodate scheduling concerns. In addition to the depositions identified above, BRB anticipates that depositions of certa

IV. Anticipated discovery Disputes BRB respectfully brings to the Court's attention several discovery issues that BRB anticipates may require the Court's intervention. BRB raises these issues at this early stage in the interests of efficiency and to permit the Court to establish a framework for resolving any disputes promptly as they arise. A. Privilege Issues — The Aaronson Memorandum (August 22, 2023) A significant

V. BRB's Position on Anticipated Motion Practice In addition to the discovery matters described above, BRB wishes to advise the Court of anticipated pre-trial motion practice. First, BRB intends to file a motion pursuant to CPLR 3211(a)(7) to dismiss Triton Harbor's demand for punitive damages. BRB contends that the demand for punitive damages is unsupported as a matter of law because the alleged conduct at issue — r

VI. Status of Settlement Discussions BRB respectfully advises the Court that no settlement discussions have taken place between the parties to date. BRB does not object to a referral to mediation or a judicial settlement conference at an appropriate time in the litigation; however, BRB respectfully submits that meaningful settlement discussions are premature at this juncture. The parties' factual disputes, particular

VII. Proposed Preliminary Conference Order For the Court's convenience, BRB respectfully requests that the Court enter a preliminary conference order incorporating the following schedule: BRB has conferred with opposing counsel, Mr. Huang and Ms. Orlov, regarding this proposed schedule. As of the date of this letter, the parties are in general agreement regarding the proposed timeline for document production and fact