Jimmy Haslam agrees to deposition, with caveats

8/17/2019 Jimmy Haslam agrees to deposition, with caveats

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AlaFileE-Notice

To: WALTERJOSEPHMCCORKLEJR.

[email protected]

02-CV-2015-000326.00

Judge:SARAHHICKSSTEWART

NOTICEOFELECTRONICFILING

INTHECIRCUITCOURTOFMOBILECOUNTY,ALABAMA

ThefollowingmatterwasFILEDon5/6/201612:50:25PM

WRIGHTTRANSPORTATIONINCVSPILOTCORPORATIONETAL

02-CV-2015-000326.00

OTHER

NoticeDate: 5/6/201612:50:25PM

[Filer:MCCORKLEWALTERJOSEPHJR]

JOJOSCHWARZAUER

CIRCUITCOURTCLERK

MOBILECOUNTY,ALABAMA

MOBILE,AL36644

251-574-8420

[email protected]

205GOVERNMENTSTREET

D003 HASLAM JAMES A III

D001 PILOT CORPORATION

D002 PILOT TRAVEL CENTERS LLC DBA PILOT FYLING J


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IN THE CIRCUIT COURT OF MOBILE COUNTY, ALABAMA

WRIGHT TRANSPORTATION, INC.

Plaintiff,

v.

PILOT CORPORATION;PILOT TRAVEL CENTERS LLC, d/b/a

PILOT FLYING J;

JAMES A. HASLAM III;

MARK HAZELWOOD;

BRIAN MOSHER; and,JOHN FREEMAN,

Defendants.

CV 2015-326

NOTICE OF FILING EVIDENTIARY MATERIALS IN SUPPORT OF DEFENDANTS’

SUPPLEMENTAL MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION FOR

A PROTECTIVE ORDER AND STAY OF DISCOVERY

Defendants James A. Haslam III, Pilot Corporation, and Pilot Travel Centers LLC submit

and designate the following evidentiary materials in support of their Supplemental Memorandum

in Support of Defendants’ Motion for a Protective Order and Stay of Discovery:

1. Exhibit A - Letter from Stephen D. Brody to Stephen M. Tunstall dated April 27,

2016;

2. Exhibit B - Memorandum In Support of Defendant James A. Haslam III’s Motion

to Reconsider, Alter, Amend, or Vacate the Court’s April 15, 2016 Order

Granting Plaintiff’s Petition for Letter Rogatory, with Notice of Filing

Evidentiary Materials.

ELECTRONICALLY FILED5/6/2016 12:49 PM

02-CV-2015-000326.00CIRCUIT COURT OF

MOBILE COUNTY, ALABAMAJOJO SCHWARZAUER, CLERK

DOCUMENT 156


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Dated: May 6, 2016 Respectfully submitted,

/s/ W. Joseph McCorkle, Jr. W. Joseph McCorkle, Jr.

Balch & Bingham LLP105 Tallapoosa St., Suite 200

Montgomery, AL 36104Tel: (334) 269-3134 [email protected]

Stephen D. Brody ( pro hac vice)

O’Melveny & Myers LLP 1625 Eye Street, NW

Washington D.C. 20006(202) [email protected]

Counsel for Defendant James A. Haslam III

/s/ M. Christian KingM. Christian King (KINGM4874)

[email protected], FRANKLIN & WHITE L.L.C. 400 20th Street North

Birmingham, AL 35203 (205) 581-0700

(205) 380-9115 (Facsimile)

One of the Attorneys for Defendants PilotCorporation and Pilot Travel Centers LLC

DOCUMENT 156


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Exhibit A




DOCUMENT 157


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BEIJING

BRUSSELS

CENTURY CITY

HONG KONG

LONDON

LOS ANGELES

NEWP ORT BEACH

1625 Ey e Street, NW Washingto n, D.C. 20 006-40 0 1

TELEPHONE (202) 383-5300FACSIMILE (202) 383-5414

www.omm.com

NEW YO RK

SAN FRA NCISCO

SEOUL

SHANGHAI

SILI CON VALLEY

SINGAPORE

TOKYO

W RI TER'S DI RECT DI AL

(20 2) 383-5167

W RI TER'S E- MAIL A DDRES S

[email protected]

April 27, 2016

VIA E-MAIL

Stephen M. TunstallStephen M. Tunstall, P.C.260 North Joachim Street

Post Office Box 152

Mobile, Alabama 36601

Re: Wright Transportation, Inc. v. Mark Hazelwood, CV 2015-236 (Mobile

County, Alabama)

Dear Stephen:

I write to address plaintiff Wright Transportation’s effort to subpoena defendant James A.Haslam, III for deposition in the above-referenced action. As you know, FST Express and HBLogistics, who are represented by the same counsel as Wright, have also filed a motion seeking

Mr. Haslam’s deposition in their case against Pilot Corp., which is pending in Franklin County,Ohio. Mr. Haslam does not believe a deposition is warranted in either case. Discovery takenduring MDL proceedings shows the absence of support for plaintiff’s claims against Mr. Haslamhere or for any need to take his deposition.

We can only guess that plaintiff views a deposition of Mr. Haslam as a threat designed

for some litigation advantage. We are disappointed by this gamesmanship, but eager to put it behind us. For that reason, Mr. Haslam is willing to schedule a deposition in the civil cases pending against Pilot Corp., Pilot Travel Centers LLC, and various individual defendants, solong as the deposition proceeds in the orderly manner outlined below.

The deposition should be coordinated across all of the currently pending civil cases, sothat Mr. Haslam is only deposed once. With the same counsel representing the plaintiffs in all ofthe remaining civil litigation, coordination ought to be easy. The deposition should also belimited to a single, seven-hour deposition day. We are willing to work with plaintiff here and in

the other, remaining civil action to identify a deposition date,1 but certain threshold matters

1 Mr. Haslam is not available for deposition on May 11, the date unilaterally selected by plaintiff

for its subpoena.

DOCUMENT 157


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April 27, 2016 - Page 2

should be resolved before the deposition occurs. Mr. Haslam’s pending 11th Circuit appeal ofthe Alabama federal court dismissal order will determine whether plaintiff’s claims against him proceed in state or federal court. That decision should be made prior to any deposition.

If the 11th Circuit affirms the dismissal order and plaintiff’s claims remain in state court,the court should have the opportunity to rule on Mr. Haslam’s pending motion to dismiss afterfull briefing. As you know, a ruling on the motion to dismiss will go a long way to defining thescope of this litigation, including deciding whether plaintiff should be permitted to re-plead

claims that were dismissed in the federal case and determining whether Mr. Haslam is subject to personal jurisdiction for claims in state court. In order to give the court the opportunity toconsider the pending arguments, we propose that a deposition be scheduled within 60 days ofany 11th Circuit’s decision that affirms the state court dismissal order. If the 11th Circuit

reverses the dismissal order and the case proceeds in federal district court, we will work toidentify a deposition date within 45 days of the decision.

The foregoing proposal will allow discovery to proceed in an orderly manner, while alsoeliminating needless motions practice. Toward that end, should plaintiff agree to this proposal,

the parties can advise the court at the outset of the hearing currently set for Friday, April 29,2016.

Thank you for your attention to the foregoing. Of course, if you should have anyquestions, you should not hesitate to contact me.

Very truly yours,

s/

Stephen D. Brody

cc: W. Joseph McCorkle, Jr., Esquire

DOCUMENT 157


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Exhibit B




DOCUMENT 158


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WRIGHT TRANSPORTATION, INC.

Plaintiff,

v.

PILOT CORPORATION;PILOT TRAVEL CENTERS LLC, d/b/a

PILOT FLYING J;

JAMES A. HASLAM III;

MARK HAZELWOOD;BRIAN MOSHER; and,

JOHN FREEMAN,

Defendants.

CV 2015-326

MEMORANDUM IN SUPPORT OF DEFENDANT JAMES A. HASLAM III’S MOTION

TO RECONSIDER, ALTER, AMEND, OR VACATE THE COURT’S APRIL 15, 2016

ORDER GRANTING PLAINTIFF’S PETITION FOR LETTER ROGATORY

Defendant James A. Haslam III1 respectfully submits this memorandum in support of his

motion to reconsider, alter, amend, or vacate the Court’s Order of April 15, 2016 granting

Plaintiff’s Petition for Letter Rogatory to take Mr. Haslam’s deposition in Plaintiff’s action

against another Defendant, James Hazelwood. As the Court is aware, on January 4, 2016, Mr.

Haslam filed a motion to dismiss or, in the alternative, to abate or stay Plaintiff’s claims against

him. That motion remains pending, as does Mr. Haslam’s appeal of Plaintiff’s federal court

action, which is set for oral argument in the Eleventh Circuit Court of Appeals during the week

1 By appearing through counsel here, Mr. Haslam does not consent or waive his objection to the

exercise of jurisdiction by this Court.




DOCUMENT 106DOCUMENT 158


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of June 6, 2016. The Court should not permit Plaintiff an end run around Alabama’s abatement

statute through its effort to depose Mr. Haslam as a “fact witness” in its case against Hazelwood.

FACTUAL BACKGROUND

This litigation began in July 2013, when Plaintiff filed a Complaint against the same

defendants in the United States District Court for the Southern District of Alabama. That court

dismissed the majority of Plaintiff’s claims, leaving only a breach of contract claim against Pilot

Corp. and Pilot Travel Centers LLC and an unjust enrichment claim against individual

defendants. There, as here, Plaintiff relied on the FBI Affidavit that forms the basis for the

majority of the allegations in its state court Complaint and Petition for Letter Rogatory.

Rejecting Plaintiff’s contention that the FBI Affidavit was sufficient to support its claims, Chief

Judge Steele held:

[T]he affidavit does not reference the plaintiff at all, much less assert that any

particular individual associated with any particular defendant made any particular

statement to any particular representative of the plaintiff in any particular messagetransmitted via any particular form of communication on any particular date at

any particular place.

Wright Transportation, Inc. v. Pilot Corp., No. 1:13-cv-000352, Dkt. No. 68 at 4 (S.D. Ala. Jan.

9, 2014).

The case was subsequently transferred to a multi-district litigation in the Eastern District

of Kentucky. There, more than a year after the majority of Plaintiff’s claims were dismissed,

Plaintiff sought leave to amend its complaint to add a claim for fraudulent inducement.

Plaintiff’s motion was denied on grounds of undue delay and prejudice to the defendants. In re

Flying J Rebate Contract Litig., No. 2:14-md-02515, Dkt. No. 228 (E.D. Ky. May 26, 2015).

In the meantime, discovery proceeded in the MDL. That discovery not only showed the

allegations in Plaintiff’s federal complaint to be unfounded, but it also directly contradicts the



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majority of the contentions in Plaintiff’s Petition for Letter Rogatory here. Indeed, rather than

showing that Mr. Haslam worked “to specifically target Wright,” conspired “to defraud Wright,”

or “facilitate[d]” some “scheme” targeting Plaintiff, the discovery showed the opposite. Pet. ¶ 2.

It specifically belies Plaintiff’s current contention that Mr. Haslam’s deposition testimony is

“critical” or even “relevant” to its claims. Id. ¶¶ 1-2.

Plaintiff’s president and sole owner, Patrick Wright, testified that Wright Transportation

communicated with only five Pilot employees about its fuel purchase agreement, and those

employees did not include Mr. Haslam. See Dep. of Patrick Wright (“P. Wright Dep.”), June 17,

2015 (Ex. 1) at 60:19-61:8. In deposition, Mr. Wright explained the two bases for his company’s

claims in his lawsuit. First, while he acknowledged that an April 22, 2009, letter from Pilot to

Plaintiff accurately set out the terms of Plaintiff’s fuel purchase agreement, he contended that a

pilot employee named Kevin Hanscomb “called me right after this to let me know they were

going to” provide more favorable terms than those set out in writing. Id. at 86:7-14, 87:19-23.

Mr. Wright has no document reflecting the alleged change and never asked for one; nor did he

ever try to confirm the alleged oral change in terms with anyone at Pilot. Id. at 86:15-22. He

relies solely on his recollection of the alleged telephone conversation with Mr. Hanscomb.

Second, Mr. Wright alleged that Pilot erroneously charged higher fuel prices than those

appearing in the “Optimizer” Plaintiff used to direct its drivers to locations with the lowest fuel

prices on drivers’ trucking routes. The Optimizer, used throughout the time Plaintiff had a

contract with Pilot, is a computer software program that determined where drivers should refuel

by comparing net fuel prices at truck stops operated by the different companies Wright

contracted with, including Pilot, Love’s, and Flying J. Id . at 113:6-12 (“Q: But how does

Wright determine who to buy fuel from? A: Well, the Optimizer.”); see id . at 113:13-21 (“Q:



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What’s an Optimizer? A: It’s a software program that tells you where to fill up. Q: And what

is the Optimizer doing? A: It tells you where, if you are going from here to Minnesota, if the

lowest cost locations are Memphis, Tennessee and southern Illinois, or whatever. It tells you

where to fill up.”); id. at 113:22-114:2 (“Q: And the -- so the Optimizer is designed to direct you

to the lowest priced available fuel? A: Yes. Q: And does Wright purchase the lowest available

fuel? A: Yes.”). Approximately 60% of the time, the lowest prices were available from Pilot.

Id. at 120:10-18; see also id. at 107:24-108:9. The rest of the time, when fuel was available from

another supplier for a lower cost, Plaintiff purchased fuel from that other supplier. Id. at 120:19-

121:7; see also id. at 113:22-24.

Plaintiff contends that for a short period of time, the Optimizer showed one price, but

Pilot billed at a different price. See, e.g., id. at 118:13-119:10. But Mr. Wright was unable to

identify a single transaction where Pilot overbilled Plaintiff for fuel, conceding that he never

audited Plaintiff’s fuel purchases to identify overcharges; that task, Mr. Wright said, was

performed by his son Daniel, also a Wright Transportation employee. Id. at 125:12-17; see id . at

202:25-203:12. In deposition the very next day, Daniel Wright explained that the problem with

the Optimizer was simply that “the numbers that were getting plugged into the system were

inaccurate.” Dep. of Daniel Wright (“D. Wright Dep.”), June 18, 2015 (Ex. 2), at 17:1-2. As he

further explained, it was not a matter of prices in the Optimizer being consistently lower or

higher than Plaintiff’s contract price with Pilot; instead, “[t]he whole system was off. I mean,

there was numbers were higher, numbers were lower.” Id. at 17:15-16. Whatever the source of

the problem, it was easily resolved: in order to be certain the prices shown in the Optimizer

matched Pilot pricing, Pilot began sending a daily direct pricing feed to IDSC, the company

running the Optimizer, with a copy to Plaintiff. Id. at 28:23-29:6.



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Notably, Plaintiff did not conclude that the Optimizer glitch ever caused Pilot to charge

more than it had contractually agreed to charge Plaintiff. Id. at 30:21-31:4. Just as notably, Mr.

Haslam had no involvement in this issue at all. Id. at 42:17-45:6. No one at Wright

Transportation has ever spoken to Mr. Haslam about anything, let alone communicated with him

concerning Plaintiff’s purchase of fuel from Pilot. P. Wright Dep. at 60:19-61:8; 346:17-125.

Moreover, asked to identify every communication Plaintiff has ever received from Mr. Haslam,

Plaintiff listed four: three “Dear Customer” letters and one Pilot press release, the earliest dated

July 12, 2013 (after the federal Complaint was filed), id . at 346:20-347:6, which Mr. Wright

described as “four documents somebody wrote for [Mr. Haslam].” Id. at 347:3; see id. at 325:1-

336:3 (identifying the four documents).2

Remarkably, Plaintiff now contends that those Dear Customer letters and press release,

which are attached for the Court’s reference (see Exs. 3-6), fraudulently induced Plaintiff to

remain a Pilot customer. See Compl. ¶¶ 80-82, 87-88. This allegation, too, was refuted by

Patrick Wright himself, when he explained that Plaintiff continues to purchase fuel from Pilot to

2 Plaintiff’s counsel separately argued in MDL pleadings that fuel prices under its contract with

Pilot should have been based on Pilot’s fuel acquisition cost, rather than an industry-standardindex known as “OPIS average.” See, e.g., Plaintiffs’ Motion to Extend Deadlines for Expert

Discovery and General Discovery, Dkt. No. 211 (May 11, 2015). But in deposition, Mr. Wright

admitted that he was fully aware that the cost component of Plaintiff’s pricing agreement withPilot was based on the OPIS index. P. Wright Dep. at 160:14-17 (“Q: So you thought that Pilot

was charging you OPIS as your cost, correct? A: Yes.”). While he contends that he thought the

OPIS index was Pilot’s actual cost, he conceded that any misunderstanding on his part stemmednot from Pilot, but from Pilot’s competitor Love’s. Mr. Wright “thought that [OPIS] was the

cost that Love’s paid for their fuel every day,” id. at 151:19-22, after he was “led to believe that

OPIS was [Love’s acquisition] cost” by one of Love’s sales representatives. Id. at 152:2-18; see

id. at 164:6-11 (“Q: But whether they said something specifically or you just misunderstood,you left your meeting with Love’s in 2007 with the impression that OPIS equaled acquisition

cost, correct? A: Yeah, I guess. Yeah.”).



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this day “[b]ecause the fuel is cheaper than other places.” P. Wright Dep. 180:7-13; see also id.

at 177:20-25; 178:22-179:10.3

The MDL was eventually dissolved, and Plaintiff’s case was remanded to the Southern

District of Alabama, which dismissed Plaintiff’s remaining claims based on a purported lack of

federal jurisdiction. On November 19, 2015, certain defendants, including Mr. Haslam, filed a

timely notice of appeal with the United States Court of Appeals for the Eleventh Circuit

challenging the dismissal.4 More than two weeks after the notice of appeal was filed, Plaintiff

filed the instant complaint, re-asserting numerous claims that were dismissed from the federal

action, namely, its claims for fraudulent misrepresentation (Count III), negligent

misrepresentation (Count IV), and suppression (Count V), as well as its claim for fraudulent

inducement (Count III), which the MDL court denied Plaintiff leave to include. Because Wright

was trying to proceed on duplicative actions in both state and federal court, all Defendants except

Hazelwood filed a motion to dismiss or stay under Alabama’s abatement statute, Ala. Code § 6-

5-440. See Defendants’ Joint Motion to Dismiss, Abate or Stay, Dkt. No. 22 (Jan. 4, 2016). This

Court has not ruled on that motion.

3 Plaintiff also misrepresents that Mr. Haslam’s motion for protective order was “denied” by “the

MDL court,” suggesting that the issue was finally and conclusively decided. Pet. ¶ 4. But as Mr.

Haslam has previously explained, the motion (which dealt with issues other than those raised

here), was denied by a magistrate judge and, pursuant to 28 U.S.C. § 636 and Federal Rule ofCivil Procedure 72, Mr. Haslam exercised his right to have that ruling reviewed by the “MDL

court,” i.e., the federal judge overseeing the MDL proceedings. See In Re: Flying J Rebate

Contract Litig., 2:14-md-2515, Dkt. No. 282 (E.D. Ky. July 14, 2015). That objection remained pending when the case was remanded to the Southern District of Alabama

4 Belying Plaintiff’s assertion that the appeal is “frivolous,” the Eleventh Circuit calendared the

case for oral argument the week of June 6, 2016. See Wright Transp., Inc. v. Pilot Corp., Dkt.

entry Apr. 1, 2016, (11th Cir. No. 15-15184).



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Nevertheless, on March 24, 2016, Plaintiff filed a motion purporting to seek to

commence discovery only as to its claims against Hazelwood, who did not join the federal appeal

and who filed an answer to Plaintiff’s complaint with this Court. See Wright Transportation,

Inc.’s Motion to Conduct Discovery Regarding Claims against Defendant Hazelwood, Dkt. No.

37 (Mar. 24, 2016). But the only discovery specifically referenced in Plaintiff’s motion was the

deposition of Mr. Haslam. Id. at 4-5. Defendants opposed Plaintiff’s request on the grounds

that: (a) Plaintiff is foreclosed by the abatement statute from taking Mr. Haslam’s deposition; (b)

Plaintiff’s request was premature; and (c) there is no basis for taking Mr. Haslam’s deposition as

a “fact witness” or otherwise and, at a minimum, Plaintiff would have to comply with

Tennessee’s Uniform Interstate Depositions and Discovery Act before taking Mr. Haslam’s

deposition because he is a resident of Tennessee. See Defendants’ Opposition to Plaintiff’s

Motion to Conduct Discovery Regarding Claims against Defendant Hazelwood, Dkt. No. 40

(Mar. 30, 2016). At the hearing on Plaintiff’s motion, the Court stated that it was not addressing

any of these arguments and that they would be taken up at a later date, once discovery was

initiated. The Court reasoned that the motion “was not necessary to file,” because the claims

against Hazelwood were before this Court due to Hazelwood’s failure to join the federal appeal.

Order, Dkt. No. 50 (Apr. 1, 2016).

Plaintiff now purports to seek Mr. Haslam’s deposition only in his capacity as a “fact

witness” for the claims against Mr. Hazelwood. But Plaintiff’s maneuvering is no more than an

ill-disguised attempt to evade Alabama’s abatement statute and proceed with discovery against

Mr. Haslam. Tellingly, the deposition of Mr. Haslam is the only discovery requested by Plaintiff

in connection with its claims against Hazelwood . Plaintiff has not sought to depose Mr.



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Hazelwood or any of the five Pilot employees with whom Plaintiff communicated about its fuel

purchase contract.

To this end, Plaintiff filed a Petition for Letter Rogatory on April 13, 2016, asking this

Court to request that the Circuit Court of Knox County, Tennessee issue a deposition subpoena

to Mr. Haslam for May 11, 2016. See Petition for Letter Rogatory (“Pet.”), Dkt. No. 78 (Apr.

13, 2016). As with Plaintiff’s other filings in this Court, Plaintiff’s petition was premised on

misstatements and mischaracterizations of the record. Before Mr. Haslam had a chance to renew

his arguments and point out Plaintiff’s misstatements to the Court, the petition was granted. See

Order, Dkt. No. 83 (Apr. 15, 2016). Mr. Haslam now seeks reconsideration and an order

preventing Plaintiff from taking discovery from him until the federal appeal is decided.

ARGUMENT

I. The Court Should Deny Plaintiff’s Petition for a Letter Rogatory and Issue an

Order Preventing the Taking of Discovery from Mr. Haslam until the Federal

Appeal is Resolved.

A trial court enjoys plenary authority to modify interlocutory decisions such as the one at

issue here. E.g., Rheams v. Rheams, 378 So.2d 1125, 1128 (Ala. Civ. App. 1979) (“An

interlocutory judgment is subject to modification at any time before final judgment.”). Likewise,

“[t]he Alabama Rules of Civil Procedure vest broad discretionary power in the trial court to

control the discovery process and to prevent its abuse.” Ex parte Nissei Sangyo Am., Ltd., 577

So.2d 912, 913 (Ala. 1991).

The Court should exercise its broad discretion, reconsider and vacate its prior order

granting Plaintiff’s petition for letter rogatory, and issue an order barring discovery from Mr.

Haslam until the federal appeal is resolved, for two reasons. First, Plaintiff’s request is an

obvious ploy to circumvent the abatement statute and take Mr. Haslam’s deposition in aid of



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Plaintiff’s claims against him, but the abatement statute forecloses Plaintiff from doing so.

Second , Plaintiff’s request is premature, because the Court has yet to resolve numerous threshold

issues that will determine the proper scope of this action should it proceed here rather than in

federal court after the Eleventh Circuit decides Defendants’ appeal.

A. The Abatement Statute Forecloses Plaintiff’s Attempt to Take Mr.

Haslam’s Deposition.

Alabama’s abatement statute, Ala. Code § 6-5-440, forecloses Plaintiff from pursuing

discovery with respect to its claims against Mr. Haslam. See Ex parte J.E. Estes Wood Co., 42

So.3d 104, 108 (Ala. 2010); L.A. Draper & Son, Inc. v. Wheelabrator-Frye, Inc., 454 So.2d 506,

508 (Ala. 1984). Recognizing as much, Plaintiff asked this Court to permit it to take Mr.

Haslam’s deposition in his purported capacity as a “fact witness” for Plaintiff’s claims against

Hazelwood. But the abatement statute is not so easily circumvented.

Because Plaintiff’s claims against Mr. Haslam are barred by the abatement statute,

Plaintiff cannot take discovery against Mr. Haslam in service of those claims. Indeed, condoning

Plaintiff’s procedural maneuvering would undermine the clear purpose of the abatement statute:

“to prevent a party from having to defend against two suits in different courts at the same time

brought by the same plaintiff on the same cause of action,” L.A. Draper , 454 So.2d at 508; “to

avoid multiplicity of suits and vexatious litigation,” Johnson v. Brown-Service Ins. Co., 307

So.2d 518, 520 (Ala. 1974); and to preserve “scarce judicial resources” and avoid “piecemeal

litigation,” Ex parte Breman Lake View Resort, L.P., 729 So.2d 849, 851 (Ala. 1999). The

discovery request is vexatious; Mr. Haslam will be required to devote substantial attention and

resources to it; and granting Plaintiff’s petition would almost certainly result in piecemeal

litigation. Moreover, any deposition would occur on almost the eve of the Eleventh Circuit



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argument that will result in submission of Mr. Haslam’s appeal for decision—a decision that will

determine whether Plaintiff’s claims against Mr. Haslam proceed in federal or state court.

Because the abatement statute prevents Plaintiff from taking Mr. Haslam’s deposition,

Plaintiff’s discovery request should be denied.

B. Plaintiff’s Requested Discovery is Premature.

The Court should prevent the taking of discovery from Mr. Haslam for the independent

reason that taking his deposition at this juncture would be premature because there are numerous

threshold issues that this Court has yet to resolve that will determine the proper scope of this

action, should it proceed here. As explained in defendants’ motion to dismiss or stay, Mr.

Haslam and his co-defendants have well-founded grounds for dismissal of some or all of

Plaintiff’s claims and, if the Court agrees with defendants, this issues will be narrowed

considerably or the litigation dismissed in its entirety. See Defendants’ Joint Motion to Dismiss,

Abate or Stay, Dkt. No. 22, at ¶¶ 19-24 (Jan. 4, 2016).

Among the threshold issues, Plaintiff’s claims for fraudulent misrepresentation, negligent

misrepresentation, and suppression are due to be dismissed because they are barred by

Alabama’s two-year statute of limitations for causes of action sounding in fraud. Ala. Code § 6-

2-38(l). The limitations period began to run on these claims when Plaintiff discovered, or should

have discovered, facts which would put a reasonably prudent person on notice that further

inquiry was warranted; actual knowledge of the fraud is not required. See, e.g., Foremost Ins.

Co. v. Parham, 693 So.2d 409, 421 (Ala. 1997). According to Plaintiff’s Complaint, that was no

later than April 18, 2013, as Pilot alleges that it had actual knowledge of the facts giving rise to

these claims when the FBI affidavit (which forms the basis for Plaintiff’s claims) was unsealed

on that date. See, e.g., Compl. ¶ 105 (alleging that the “material information was first revealed



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to Plaintiff during April 2013 when the FBI affidavit was unsealed”); see also id. ¶¶ 10, 106

(same).5

Plaintiff’s fraudulent inducement claim is similarly time barred. Plaintiff alleges that,

beginning “[o]n or about July 12, 2013,” Mr. Haslam sent Dear Customer letters to all Pilot

trucking customer, including Plaintiff, which fraudulently induced Wright to continue purchasing

diesel fuel from Pilot. Compl. ¶¶ 79-88. Plaintiff makes this allegation notwithstanding Patrick

Wright’s testimony that he “first conclude[d] that Pilot was engaged . . . in misconduct” in “May

2013,” continued to purchase fuel from Pilot at that time, P. Wright Dep. 201:3-15, and

continues to do so to this day, not because of any mass mailing from Pilot, but because Pilot

offers Plaintiff the best prices, id. at 177:20-25; 178:22-179:10; 180:7-13.

Irrespective of its lack of merit, the fraudulent inducement claim is time barred.6 It is

also indisputable that the fraudulent inducement claim is barred by res judicata, because “the

denial of leave to amend constitutes res judicata on the merits of the claims ‘which were the

subject of the proposed amended pleading’” in federal court. Christman v. St. Lucie Cnty., 509

5 These claims are time barred regardless of the application of the federal tolling statute, 28

U.S.C. § 1367(d) (state-law claims that are “pending” in federal court under supplemental jurisdiction are tolled “while the claims is pending and for a period of 30 days after” dismissal).

Plaintiff’s claims were “pending” in federal court from July 10, 2013 until January 9, 2014, when

the Southern District of Alabama dismissed them. Thus, the federal tolling statute, assuming it

applies, would have tolled the statute of limitations for 213 days: 183 while the claims were pending “and for a period of 30 days after [they were] dismissed.” Weinrib v. Duncan, 962

So.2d 167, 169-70 (Ala. 2007). Plaintiff commenced this action on November 24, 2015, 950

days after it was put on notice of its claims by the unsealing of the FBI affidavit, and thus itsclaims were filed more than two years after its claims accrued, regardless of whether federal

tolling applies.

6 Federal tolling cannot apply to this claim because it was never “pending” in federal court, as

Plaintiff was denied leave to amend its complaint to add this claim. But even if the statute of

limitations were tolled for the 18 days between May 8, 2015, when Plaintiff filed its motion forleave to amend, and May 26, 2015, when Plaintiff’s motion was denied, plus an additional 30

days, the claim would still be time-barred.



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F. App’x 878, 879 (11th Cir. 2013) (quoting King v. Hoover Grp., Inc., 958 F.2d 219, 222-223

(8th Cir. 1992)); see also Restatement (Second) of Judgments § 87 (1982) (“Federal law

determines the effects under the rules of res judicata of a judgment of a federal court.”).

In addition, Plaintiff has failed to plead its fraud-based claims with particularity,

including its claims for fraudulent misrepresentation and inducement, negligent

misrepresentation, and suppression. Ala. R. Civ. P. 9(b). Defendants also intend to seek

dismissal on the ground that Plaintiff has failed to state any claim upon which relief can be

granted. Ala. R. Civ. P. 12(b)(6).

It is self-evident that resolution of these issues is necessary to define the scope of the

litigation—and therefore discovery—before any deposition occurs. If defendants are correct on

some or all of their arguments, the majority if not all of Plaintiff’s claims must be dismissed and

the parameters of this litigation, and thus permissible discovery, would be significantly

narrowed. This Court should preclude Plaintiff from taking Mr. Haslam’s deposition until these

preliminary issues are resolved.

CONCLUSION

For the foregoing reasons, the Court need go no further than to hold that the requested

discovery, at least at present, should not proceed. Accordingly, Mr. Haslam requests an order

denying Plaintiff’s Petition for Letter Rogatory and precluding the taking of any discovery from

him until after the federal court resolves the pending appeal.

Respectfully submitted, this the 22nd

day of April, 2016.



20/90

13

/s/ W. Joseph McCorkle, Jr.

W. Joseph McCorkle, Jr. (MCC056)

[email protected] BALCH & BINGHAM LLP

Post Office Box 78

Montgomery, AL 36101-0078Telephone: (334) 834-6500

Facsimile: (334) 269-3115

Attorney for Defendant James A. Haslam, III

CERTIFICATE OF SERVICE

I hereby certify that on April 22, 2016, I electronically filed the foregoing with the Clerk

of the Court using the AlaFile system which will send notification of such filing to all registered

parties of record.


Of Counsel


mailto:[email protected]:[email protected]:[email protected]


21/90

244438.3


WRIGHT TRANSPORTATION, INC.,

Plaintiff,

v.

PILOT CORP., et al.,

Defendants.

)

)

)

)

)

)

)

)

)

CIVIL ACTION NO. CV-2015-326

NOTICE OF FILING EVIDENTIARY MATERIALS

IN SUPPORT OF DEFENDANT JAMES A HASLAM, III’S

MOTION TO RECONSIDER, ALTER, AMEND OR VACATE

Defendant James A. Haslam, III (“Haslam”) submits and designates the following

evidentiary materials in support of his Motion to Reconsider, Alter, Amend or Vacate:

1. Exhibit 1 - Excerpts of the deposition of Patrick Wright, conducted June 17, 2015;

2. Exhibit 2 - Excerpts of the deposition of Daniel Wright, conducted June 18, 2015;

3. Exhibit 3 - Exhibit 19, a “Dear Customer” letter from Mr. Haslam to Pilot FlyingJ customers dated July 12, 2013, from the Deposition of Patrick Wright,

conducted June 17, 2015;

4. Exhibit 4 - Exhibit 20, a “Dear Customer” letter from Mr. Haslam to Pilot Flying

J customers dated July 25, 2013, from the Deposition of Patrick Wright,

conducted June 17, 2015;

5. Exhibit 5 - Exhibit 21, a “Dear Customer” letter from Mr. Haslam to Pilot FlyingJ customers dated October 7, 2013, from the Deposition of Patrick Wright,

conducted June 17, 2015; and

6. Exhibit 6 - Exhibit 22, a Pilot Flying J press release dated July 14, 2014, from the

Deposition of Patrick Wright, conducted June 17, 2015.

Respectfully submitted, this the 22nd day of April, 2016.






22/90

244438.3 2


W. Joseph McCorkle, Jr. (MCC056)

[email protected] BALCH & BINGHAM LLP

Post Office Box 78

Montgomery, AL 36101-0078Telephone: (334) 834-6500

Facsimile: (334) 269-3115

Attorney for Defendant James A. Haslam, III

CERTIFICATE OF SERVICE

I hereby certify that on April 22, 2016, I electronically filed the foregoing with the Clerk

of the Court using the AlaFile system which will send notification of such filing to all registered

parties of record.


Of Counsel


mailto:[email protected]:[email protected]:[email protected]


23/90

·1· · · · ·IN THE UNITED STATES DISTRICT COURT

·2· · · · FOR THE EASTERN DISTRICT OF KENTUCKY

·3· IN RE: PILOT FLYING J· · · · · · MDL Docket No.2515· · REBATE LITIGATION· · · · · · · · Judge Amul Thapar·4· · · · · ·IN THE UNITED STATES DISTRICT COURT·5· · · · · ·FOR THE NORTHERN DISTRICT OF ALABAMA·6· · · · · · · · · · SOUTHERN DIVISION·7· · HB LOGISTICS, LLC·8· 2040 Atlas Street· · Columbus, Ohio 43228,·9· · · Plaintiff,

10· v.· · · · · · · · · · · · · · · · · · CASE NO.:· · · · · · · · · · · · · · · · · · · 2:14-cv-00102-ART11· PILOT TRAVEL CENTERS, LLC· · d/b/a Pilot Flying J12· 5508 Lonas Drive· · Knoxville, Tennessee 37909,13· · · Defendant.

14· · · · · · · · · · · DEPOSITION OF:15

· · · · · · · · · · · PATRICK WRIGHT16

17· · · · · · · ·S T I P U L A T I O N S

18· · · IT IS STIPULATED AND AGREED, by and between

19· the parties through their respective counsel, that

20· the deposition of:

21· · · · · · · · · ·PATRICK WRIGHT

22· may be taken before Lisa Bailey, Notary Public,

23· State at Large, at 150 Government Street, Mobile,

24· Alabama on June 17, 2015 commencing at

25· approximately 9:38 a.m.





PATRICK WRIGHT - 06/17/2015

1-800-325-3376Merrill Corporation - New York

www.merrillcorp.com/law/

PATRICK WRIGHT - 06/17/2015 Page 1



http://www.merrillcorp.com/lawhttp://www.merrillcorp.com/lawhttp://www.merrillcorp.com/lawhttp://www.merrillcorp.com/lawhttp://www.merrillcorp.com/lawhttp://www.merrillcorp.com/lawhttp://www.merrillcorp.com/law


24/90

·1· · · Q.· · Do you remember any statements made from

·2· Pilot about fuel?

·3· · · A.· · Not the -- the meeting where we received

·4· more information about Pilot was April 2009.

·5· · · Q.· · My question is what do you remember

·6· being discussed in 2007?

·7· · · A.· · And I've told you, it hasn't changed

·8· that.· I don't remember the conversation at that

·9· meeting other than we discussed fuel.

10· · · Q.· · Did you take any notes at the meeting?

11· · · A.· · I don't know.

12· · · · · · MS. SEABROOK:· Glenn, I'm sorry to

13· · · interrupt.· They're having a hard time

14· · · hearing.· Is the volume maybe turned down?

15· · · · · · MR. BRODY:· It's turned backwards.

16· · · · · · MS. SEABROOK:· Turn the phone around.

17· · · It's turned facing away.· Thank you.

18· BY MR. KURTZ:

19· · · Q.· · Can you identify all employees at Pilot

20· that have been involved in the Wright relationship?

21· · · A.· · I can tell you the ones that I

22· remember.· Kevin Hanscomb, Chris Andrews, Holly

23· Radford.· Freeman.· What's the guy, Holland,

24· something Holland.

25· · · Q.· · Jason Holland?







www.merrillcorp.com/law/YVer 1f

http://www.merrillcorp.com/lawhttp://www.merrillcorp.com/lawhttp://www.merrillcorp.com/lawhttp://www.merrillcorp.com/lawhttp://www.merrillcorp.com/lawhttp://www.merrillcorp.com/lawhttp://www.merrillcorp.com/lawhttp://www.merrillcorp.com/law


25/90

·1· · · A.· · Yes.· One of the things about fuel

·2· vendors --

·3· · · Q.· · Anything else?

·4· · · A.· · -- you don't see them that often so it's

·5· not a big relationship type thing.

·6· · · Q.· · Okay.· Anyone else at Pilot that has

·7· been involved in the Wright relationship?

·8· · · A.· · I don't know of anyone else.

·9· · · Q.· · And what was Kevin Hanscomb's

10· involvement in the relationship with Wright?

11· · · A.· · Sales.

12· · · Q.· · And can you be a little more specific?

13· · · A.· · Negotiating price.

14· · · Q.· · Was Mr. Hanscomb the Wright primary

15· contact?

16· · · A.· · Yes.

17· · · Q.· · And what was your interactions, if any,

18· with Mr. Hanscomb?

19· · · A.· · Just negotiating the price and going

20· over the different lanes we run and what pricing

21· they have at different locations.

22· · · Q.· · And what was Mr. Freeman's role in

23· connection with the Wright relationship?

24· · · A.· · He came in one time in '09.

25· · · Q.· · And so you've met with Mr. Freeman one










26/90

·1· Exhibit Number 4, a Pilot letter dated April 22nd

·2· 2009 to Wright.· It bears Bates number Wright

·3· 6253.· Do you recognize that letter?

·4· · · · · · (Exhibit Number 4 was marked for

·5· · · · · · ·identification.)

·6· · · A.· · Yes, I do.

·7· · · Q.· · Is that a letter you received from Pilot

·8· on or about April 22, 2009?

·9· · · A.· · Yes.

10· · · Q.· · And did that accurately reflect the

11· pricing terms at that time?

12· · · A.· · For a few days, yes.· They called me

13· right after this to let me know they were going to

14· cost minus two across the board.

15· · · Q.· · Do you have any document reflecting a

16· change in terms to cost minus two across the board?

17· · · A.· · No.

18· · · Q.· · Did you ever ask for a document?

19· · · A.· · No.

20· · · Q.· · Did you ever try to confirm those terms

21· with anyone at Pilot?

22· · · A.· · No.

23· · · · · · MR. TUNSTALL:· Object to the form.

24· · · Q.· · Do you believe --

25· · · A.· · Typically when a vendor tells me










27/90

·1· something, they do it.· And shame on me for

·2· thinking they were honest.

·3· · · Q.· · But Pilot had -- this was the second

·4· time Pilot sent you a document recording the terms

·5· for your pricing, correct?

·6· · · A.· · Right.

·7· · · Q.· · And a writing makes it clear that

·8· everyone knows what the pricing is supposed to be,

·9· correct?

10· · · A.· · I agree.


12· · · Q.· · Are there any terms of your contractual

13· arrangement with Pilot as of April 22nd 2009 that

14· are not reflected in Wright Exhibit Number 4?


16· · · A.· · Everything looks like what we discussed.

17· · · Q.· · Are there any missing terms?

18· · · A.· · No, not as of that date.

19· · · Q.· · Now you say -- how many days later do

20· you say the arrangement changed?

21· · · A.· · Just a couple -- a week or two later

22· they called back.· Kevin Hanscomb called back and

23· said they were going across the board.

24· · · Q.· · And what did Mr. Hanscomb say?

25· · · A.· · They were going across the board, cost










28/90

·1· OPIS index?

·2· · · A.· · No.

·3· · · Q.· · So you're not buying from Love's?

·4· · · A.· · No, I'm buying from Love's.

·5· · · Q.· · You're buying from Love's?

·6· · · A.· · One of things is -- the huge difference

·7· is for me to go back and look and see that the

·8· Love's contract has got OPIS written all over it,

·9· you know.· And the Pilot contract doesn't.

10· · · Q.· · Did you --

11· · · A.· · Pilot, you know, is the one that came in

12· telling me how great and wonderful and how much

13· cheaper they were going to be because their cost,

14· you know, their cost, not standard industry cost,

15· but their cost.

16· · · Q.· · But has Pilot been able to supply fuel

17· to Wright at the best possible prices?


19· · · Q.· · Available to Wright?

20· · · A.· · I don't know the answer to that. I

21· mean, it's one of those that I'll never know in

22· 2009 in Fairfax, Virginia what cost was and what

23· the price was.

24· · · Q.· · Does Pilot frequently provide to Wright

25· the lowest priced fuel that is available to Wright?










29/90

·1· · · · · · MR. TUNSTALL:· Object to the form.

·2· · · A.· · Probably 50, 60 percent of the time.

·3· But one of the things, though, is that Pilot has

·4· changed their pricing in an effort to keep our

·5· business.· And it's one that their price -- they

·6· continued to discount our prices.· And to me it's

·7· fairly obvious that they're trying to continue to

·8· have the lowest prices through this negotiation, if

·9· you will.

10· · · Q.· · How many -- do you have -- how many

11· times has Wright signed a contract with Love's?

12· · · A.· · Two or three.· I'm not sure.

13· · · Q.· · And you have a --

14· · · A.· · I mean, typically in that case you're

15· going to sign one to start and, you know --

16· · · Q.· · How many Love's contracts do you still

17· have?

18· · · A.· · I don't know the answer to that.

19· · · Q.· · And is there one signed contract with

20· Davidson Fuel?

21· · · A.· · Yes.

22· · · Q.· · And you have a copy of that?

23· · · A.· · Yes.· The one thing that's different is

24· Davidson Fuels and Oil is they only have one

25· location and that's my yard.· So that there










30/90

·1· · · A.· · The Internet.

·2· · · Q.· · And why did you do that?

·3· · · A.· · To try to make some sense out of

·4· everything that I've been told.· To try to figure

·5· out who to believe.

·6· · · Q.· · How did Wright determine the vendor from

·7· which it would purchase fuel, among its multiple

·8· options?

·9· · · A.· · The majority is cost based.

10· · · Q.· · But how does Wright determine who to buy

11· fuel from?

12· · · A.· · Well, the Optimizer.

13· · · Q.· · What's an Optimizer?

14· · · A.· · It's a software program that tells you

15· where to fill up.

16· · · Q.· · And what is the Optimizer doing?

17· · · A.· · It tells you where, if you are going

18· from here to Minnesota, if the lowest cost

19· locations are Memphis, Tennessee, and southern

20· Illinois, or whatever.· It tells you where to fill

21· up.

22· · · Q.· · And the -- so the Optimizer is designed

23· to direct you to the lowest priced available fuel?

24· · · A.· · Yes.

25· · · Q.· · And does Wright purchase the lowest










31/90

·1· available fuel?

·2· · · A.· · Yes.


·4· · · Q.· · And who puts the information into the

·5· Optimizer?

·6· · · A.· · Well, the vendor in this case, Pilot

·7· sends the information to the IDSC Optimizer company

·8· on their changes.

·9· · · Q.· · Does Wright send any information to the

10· Optimizer?

11· · · A.· · No.· I think we have in the past sent

12· changes.· But the fuel vendors, if they're going

13· down on price, they have a direct shot to send it

14· direct to IDSC.

15· · · Q.· · And when has Wright provided information

16· or data to the Optimizer?

17· · · A.· · I don't know the answer to that.

18· Because I, for the most part we depend on the

19· vendors to send that information straight to the

20· Optimizer.

21· · · Q.· · Does Wright have the right to know what

22· information was provided to the Optimizer?

23· · · A.· · I would assume so.

24· · · Q.· · And does Wright ever check the

25· information to make sure it's accurate?










32/90

·1· · · · · · MR. TUNSTALL:· He's being rude and

·2· · · unprofessional in interrupting you.· Go

·3· · · ahead.· Go ahead and complete your answer.

·4· · · It's okay.· Don't let him throw you off.· Go

·5· · · ahead and complete your answer.

·6· · · A.· · I'm all right.

·7· · · Q.· · Did Wright choose to purchase fuel based

·8· on the overall -- strike that.

·9· · · · · · Did Wright choose to purchase fuel based

10· on the overall sale price that was shown or was it

11· based on some formula?

12· · · A.· · It was based on the Optimizer.

13· · · Q.· · And did the Optimizer tell you the

14· lowest overall sale price for fuel?

15· · · A.· · The Optimizer told me where the lowest

16· price was supposed to be, but that didn't

17· necessarily mean that was what we were going to be

18· charged.

19· · · Q.· · Okay.· But you --

20· · · A.· · So the question is could we have bought

21· -- if we would have known that Pilot was changing

22· the rates we could have purchased somebody else's

23· fuel because it wouldn't have been the optimizer's

24· choice.

25· · · Q.· · My question is just whether your










33/90

·1· decision-making was to purchase fuel with the

·2· lowest overall sale price as opposed to which had

·3· the most favorable looking formula?

·4· · · A.· · The entire Optimizer is going to tell

·5· you based on what your vendors submitted the lowest

·6· location.· The best place to fuel.

·7· · · Q.· · For overall price?

·8· · · A.· · It doesn't know whether or not Pilot is

·9· going to go in in the next 24 hours and change the

10· rates because they're not making enough money.

11· · · Q.· · I'm trying to focus on your

12· decision-making.· I'm just saying from the

13· standpoint --

14· · · A.· · My decision-making is based on IDSC but

15· --

16· · · Q.· · Let me get the question out.· Is it your

17· decision-making to buy the fuel offered at the

18· lowest overall price as opposed to what looks like

19· the best pricing formula?

20· · · · · · MR. TUNSTALL:· Object to form.

21· · · A.· · The overall best price.

22· · · Q.· · Okay.

23· · · A.· · But that assumes that you're not dealing

24· with a company that's changing the rates after you

25· purchase it.










34/90

·1· · · · · · THE WITNESS:· I'd like a 30 second break

·2· · · to get some water.

·3· · · · · · MR. KURTZ:· Sure.

·4· · · · · · THE VIDEOGRAPHER:· We're off the

·5· · · record.· The time is approximately 12:07 p.m.

·6· · · · · · · · · · ·(Break held.)

·7· · · · · · THE VIDEOGRAPHER:· Back on the record.

·8· · · The time is approximately 12:15 p.m.

·9· BY MR. KURTZ:

10· · · Q.· · Okay.· So the Optimizer directs you to

11· the lowest overall price, correct?

12· · · A.· · Yes.

13· · · Q.· · And you said some 60 percent of the time

14· it was Pilot offering the best overall price?

15· · · A.· · That's probably a good number.

16· · · Q.· · And does that mean about 60 percent of

17· your purchases were from Pilot?

18· · · A.· · Yes.

19· · · Q.· · And were the other 40 percent of your

20· purchases from Love's or Davidson?

21· · · A.· · Well --


23· · · A.· · One of the things that we've --

24· · · · · · MR. TUNSTALL:· What time period?

25· · · A.· · We went -- we put in our own tanks so










35/90

·1· that number has changed over time.· We are doing as

·2· much as we can with our own tanks.· And so the

·3· number probably is still 50/50, or 60/40 between

·4· Love's and Pilot.

·5· · · Q.· · What percentage of your fuel purchases

·6· now is from Davidson?

·7· · · A.· · I would say 35, 40 percent.

·8· · · Q.· · And was Flying J your exclusive supplier

·9· of fuel between 1999 and 2007?

10· · · A.· · Love's -- I can't remember what year,

11· but Flying J was the majority of our purchases in

12· the earlier years.

13· · · Q.· · Were they -- were you purchasing from

14· someone other than Flying J between 1999 and 2007

15· when you started to purchase from Love's?

16· · · A.· · I think it was all Flying J if I'm not

17· mistaken.

18· · · Q.· · Are you suggesting that the number --

19· strike that.

20· · · · · · Are you suggesting that the fuel price

21· reflected in the Optimizer from Pilot was

22· inaccurate in any way?

23· · · A.· · It was inaccurate by the time we paid

24· the bill in many cases, yes.

25· · · Q.· · It's your contention that the price that










36/90

·1· · · Q.· · Have you personally --

·2· · · A.· · And they -- that's what I'm saying, they

·3· were going over that on a regular basis with the

·4· e-mails to try to figure out what was going on.

·5· · · Q.· · Have you --

·6· · · A.· · Unfortunately my son ruled out that

·7· Pilot's crooked and their bogusing up the numbers

·8· and so it took a little longer than the average

·9· person, you know, to figure out that --

10· · · Q.· · Did you audit --

11· · · A.· · Pardon?

12· · · Q.· · Did you audit the account and determine

13· any instance in which Pilot allegedly charged more

14· than reflected in the Optimizer?

15· · · A.· · Daniel did, yes.

16· · · Q.· · Did you do that?· I'm asking you.

17· · · A.· · No.

18· · · Q.· · Do you have any personal knowledge of

19· whether Pilot ever charged more than the Optimizer?


21· · · A.· · Yes.· Yes.

22· · · Q.· · And what is your personal knowledge,

23· what is the basis of your personal knowledge?


25· · · Asked and answered.










37/90

·1· 2007?

·2· · · A.· · My contention all along was OPIS was

·3· cost.

·4· · · Q.· · My question is, how did you become aware

·5· of OPIS in 2007?

·6· · · A.· · Their contract.

·7· · · Q.· · Love's contract?

·8· · · A.· · Uh-huh.

·9· · · Q.· · Yes?

10· · · A.· · Yes.

11· · · Q.· · And when did Love's contract -- what was

12· it about Love's contract that made you aware of

13· OPIS?

14· · · A.· · It said OPIS on there.

15· · · Q.· · Okay.· And when you say --

16· · · A.· · Unlike Pilot.

17· · · Q.· · When you said OPIS is cost, what do you

18· mean?· Strike that.

19· · · · · · When you said you thought OPIS was cost,

20· what did you mean?

21· · · A.· · I thought that was the cost that Love's

22· paid for their fuel every day.

23· · · Q.· · And why --

24· · · A.· · In their transaction.

25· · · Q.· · Why did you think that?










38/90

·1· · · A.· · I was led to believe that.· And --

·2· · · Q.· · Who led you to believe that Love's

·3· was -- acquisition cost was OPIS?


·5· · · A.· · You know, I was just -- like I said, I

·6· was led to believe that OPIS was their cost.

·7· · · Q.· · Who led you to believe that OPIS was

·8· Love's acquisition cost?

·9· · · A.· · I don't know who their rep was.· I'm not

10· sure.

11· · · Q.· · Did somebody at Love's tell you that

12· OPIS was their acquisition cost?

13· · · A.· · Their actual contract says OPIS minus

14· two or plus two or whatever.

15· · · Q.· · Sir, my question is, did an OPIS rep

16· tell you that Love's acquisition cost was OPIS?

17· · · A.· · Yes, I would assume so.· But I don't

18· know who the rep would be.

19· · · Q.· · Do you recall anyone from Love's telling

20· you their acquisition cost was OPIS?

21· · · A.· · I don't know who.· But their --

22· · · Q.· · My question --

23· · · A.· · Their contract, though, was in writing

24· and --

25· · · Q.· · Sir.










39/90


40/90

·1· believe that, correct?

·2· · · A.· · I mean, I don't know if they did

·3· anything to lead me to believe it or if I in the

·4· course of time used OPIS for one account and cost

·5· for another.

·6· · · Q.· · But whether they said something

·7· specifically or you just misunderstood, you left

·8· your meeting with Love's in 2007 with the

·9· impression that OPIS equaled acquisition cost,

10· correct?

11· · · A.· · Yeah, I guess.· Yeah.

12· · · · · · MR. KURTZ:· Do you want to take lunch

13· · · now?· It's 1:00.

14· · · · · · THE VIDEOGRAPHER:· We're off the

15· · · record.· The time is approximately 1:03 p.m.

16· · · · · · · · · · ·(Break held.)

17· · · · · · THE VIDEOGRAPHER:· Back on the record.

18· · · The time is approximately 2:15 p.m.

19· · · · · · MR. TUNSTALL:· This is Stephen Tunstall

20· · · for Wright Transportation.· Pursuant to Judge

21· · · Wehrman's instruction by e-mail earlier today,

22· · · Plaintiffs produced through me to Mr. Kurtz on

23· · · behalf of Pilot the unredacted agreements with

24· · · Love's.· One would be a 2009 written agreement

25· · · and then the other would be a 2013 written










41/90

·1· · · · · · MR. TUNSTALL:· I do.

·2· · · Q.· · You're accepting your counsel's

·3· instruction?

·4· · · A.· · Yes.

·5· · · Q.· · Is Wright still purchasing fuel from

·6· Pilot?

·7· · · A.· · Yes.

·8· · · Q.· · Why?

·9· · · A.· · The -- once the Feds moved in, Pilot's

10· company was totally changed.· The rates match.· The

11· discounts are better than they've ever been.· And

12· it's quite obvious that they've changed everything

13· in an effort to salvage the company.· And, you

14· know, in that case, we're getting better discounts

15· than we've ever gotten.· And like I stated earlier

16· today, it's either one of those, they are trying to

17· salvage the company or trying to create a reason,

18· you know, as far as you guys best thing you can

19· have is for me to still be doing business.

20· · · Q.· · So Wright has determined to continue to

21· purchase fuel from Pilot even though it now is

22· fully aware that Pilot is calculating cost on the

23· basis of an OPIS contract average and not its

24· actual cost; is that right?

25· · · A.· · Yes.










42/90

·1· · · Q.· · And Wright --

·2· · · A.· · There again I just found that out,

·3· though --

·4· · · Q.· · That's not the question.· And Wright is

·5· perfectly happy purchasing from Pilot under those

·6· terms?


·8· · · A.· · No.

·9· · · Q.· · Then why is Wright making those

10· purchases?

11· · · A.· · What I thought was going to happen was

12· once we put in our tanks at the office that we

13· wouldn't need Pilot or Flying J or any of them.

14· And it hasn't been that way.· It's one of those

15· that I'm in the process of making changes right

16· now.· Once I got the tanks put in, you know, I

17· thought that would eliminate 90 percent of the

18· purchase fuel on the road.

19· · · Q.· · Okay.· But Wright still needs to

20· purchase fuel from fuel sellers, correct?

21· · · A.· · Yes.

22· · · Q.· · And Wright is purchasing fuel from Pilot

23· even though it is aware that Pilot is calculating

24· the cost on the basis of an OPIS index and not on

25· its actual cost, correct?










43/90

·1· · · A.· · Right.

·2· · · Q.· · And Wright is doing so because in those

·3· instances in which Pilot's price is the lowest

·4· available option, correct?

·5· · · A.· · Yes.

·6· · · Q.· · And Wright's is purchasing from Pilot

·7· even though it knows Pilot is using OPIS contract

·8· average, not its actual cost, because it's offering

·9· the best price, correct?

10· · · A.· · Yes.

11· · · Q.· · And Wright has always been interested in

12· purchasing fuel at the lowest price, correct?

13· · · A.· · Wright has always been interested in

14· purchasing fuel at the price that's displayed, the

15· price that you've been guaranteed.· That didn't

16· happen until the Feds moved in.

17· · · Q.· · Okay.· But Wright --

18· · · A.· · Before we thought we were getting the

19· best price.· We thought we were getting what we

20· should be getting.

21· · · Q.· · Wright always intended to purchase fuel

22· from the seller that provided the best price,

23· correct?

24· · · A.· · Yes.

25· · · Q.· · Why is it that Wright now accepts --










44/90

·1· strike that.

·2· · · · · · Why is it that now Wright purchases fuel

·3· from Pilot and accepts the fact that Pilot

·4· calculates cost on the basis of the OPIS contract

·5· average rather than actual cost?

·6· · · A.· · Repeat that.

·7· · · Q.· · Yeah.· Why is Wright now willing to

·8· accept and buy from Pilot fuel knowing full well

·9· that Pilot is calculating the cost on that fuel on

10· the basis of OPIS contract average and not based on

11· actual cost?

12· · · A.· · Because the fuel is cheaper than other

13· places.

14· · · Q.· · Would it --

15· · · A.· · But it doesn't give them the right to

16· advertise one price and charge you another.

17· · · Q.· · I'm not asking -- for the record.· Since

18· the inception of the business in 1999, would Wright

19· have purchased fuel at the lowest price

20· irrespective of whether Pilot was calculating cost

21· on the basis of OPIS contract average rather than

22· actual cost?

23· · · A.· · The message is to purchase at the lowest

24· cost.· But if there's an advertised cost, it

25· doesn't give the vendor the right to change the










45/90

·1· · · A.· · Yes.

·2· · · Q.· · And when did you first conclude that?

·3· · · A.· · Well, the first thing once we started

·4· hearing what was going on it made sense why we were

·5· having so much trouble with Pilot.

·6· · · Q.· · My question is when did you first

·7· conclude that Pilot was engaged, in your view, in

·8· misconduct?

·9· · · A.· · I don't have a specific date.

10· · · Q.· · Do you have an approximate date?

11· · · A.· · May 2013.

12· · · Q.· · And did you continue to purchase fuel

13· from Pilot after concluding that Pilot was engaged

14· in misconduct?

15· · · A.· · Yes.

16· · · Q.· · Why?

17· · · A.· · Great question.· I didn't think at that

18· time -- I didn't think at that time that we were in

19· the middle of it.· And as we dug we realized this

20· is exactly what all these bills that aren't

21· correct, all that led back to every bit of the

22· invoices that weren't right.

23· · · Q.· · Did you trust Pilot in May of 2013?

24· · · A.· · No.· I said that.· We were --

25· · · Q.· · Where are --










46/90

·1· · · A.· · We were in the process of putting the --

·2· when we found out what was going on we started

·3· putting pumps in to get our own fuel.

·4· · · Q.· · Where are the bills that you say were

·5· incorrect from Pilot?

·6· · · A.· · Where are the bills?

·7· · · Q.· · Yeah.

·8· · · A.· · The invoices?

·9· · · Q.· · Sure.· You have -- how many invoices do

10· you have that you believe were incorrect by Pilot?

11· Strike that.

12· · · · · · How many times do you think Pilot

13· incorrectly invoiced Wright?


15· · · A.· · Thousands.

16· · · Q.· · From when to when?

17· · · A.· · If I had to say, 2008 through '13.

18· · · Q.· · And you're saying every single invoice

19· was incorrect?

20· · · A.· · No.· No, I'm not saying that.

21· · · Q.· · How many of those --

22· · · A.· · They picked.· They picked --

23· · · Q.· · How many of these --

24· · · A.· · -- transactions and --

25· · · Q.· · How many invoices were incorrect?










47/90

·1· · · A.· · I don't know the answer to that.


·3· · · Q.· · And these are the invoices that you said

·4· your son Daniel was looking at?

·5· · · A.· · He was pulling out invoices to try to

·6· figure out what was going on, why the Optimizer

·7· wasn't matching the actual price.

·8· · · Q.· · And was Daniel the one that has

·9· knowledge of what invoices Wright claims are

10· incorrect?

11· · · A.· · He has some that he was working on.

12· Sure.· Now, how many he was actually working on --

13· because he -- we were all thinking that's

14· something -- and Pilot referred to it as a glitch.

15· And we're like, a glitch.· What is that?· And in

16· hindsight a glitch meant that they were changing

17· prices.

18· · · Q.· · How many times do you think -- well,

19· strike that.

20· · · · · · How many times are you contending that

21· Pilot changed a price that it had otherwise

22· provided to the Optimizer?


24· · · A.· · I don't know the answer.

25· · · Q.· · Do you have any approximation?










48/90

·1· · · Q.· · And you were asked to identify all

·2· communications between Wright Transportation, Inc.

·3· and James A. Haslam, III regarding Wright

·4· Transportation Inc.'s alleged fuel rebate and/or

·5· discount contract with Pilot, Flying J, between

·6· approximately 2005 and the present day including

·7· the date of any such communications and the name,

·8· address, and telephone number of each individual at

·9· Wright Transportation, Inc. who made the

10· communication.· Do you see that?

11· · · A.· · Uh-huh.

12· · · Q.· · Is that a yes?

13· · · A.· · Yes.

14· · · Q.· · And initially there wasn't a specific

15· response given other than to refer to documents and

16· information that says, Previously provided in

17· Wright Transportation Inc.'s response to Defendant

18· Travel Center, Pilot Travel Centers LLC, request

19· for production number seven, right?

20· · · · · · MR. TUNSTALL:· Object to

21· · · characterization of testimony.· You can

22· · · answer.

23· · · Q.· · Do you see that?· It's under Answer.

24· · · A.· · I see it.

25· · · Q.· · And then immediately under that there's










49/90

·1· a supplemental answer.· Do you see that?

·2· · · A.· · Yes.

·3· · · Q.· · And the supplemental answer says, Please

·4· see Plaintiff's amended complaint including

·5· paragraphs 17, 18, 19, and 24 filed on May 8, 2015

·6· setting forth communications with defendant

·7· Haslam.· Do you see that?

·8· · · A.· · Yes.

·9· · · Q.· · And you understand that the Court denied

10· Wright Transportation's motion for leave to amend

11· its complaint in this case, right?

12· · · A.· · I don't understand that, no.

13· · · Q.· · Were you aware that Wright

14· Transportation filed a motion asking for the

15· Court's permission to file an amended complaint?

16· · · A.· · Yes.

17· · · Q.· · And are you aware that the Court denied

18· that motion and said that Wright Transportation

19· could not file that amended complaint in this case?

20· · · · · · MR. TUNSTALL:· Object to the form of the

21· · · question, characterization of the order.· The

22· · · order speaks for itself.

23· · · A.· · I mean, you're talking above my head as

24· far as understanding what --

25· · · Q.· · Are you aware that that amended -- the








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Jimmy Haslam agrees to deposition, with caveats

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