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IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE T. CHRISTOPHER BURCH, JCB INVESTMENTS LLC, and C. WONDER LLC, Plaintiffs, v TORY BURCH, EDUARDO HOLSCHNEIDER, JOHN S. HAMLIN, GLEN SENK, ERNESTO ZEPEDA, MARIA ASUNCION ARAMBURUZABALA LARREGUI, ISLA CORAL, S.A. DE C.V., and TORY BURCH LLC, Defendants. - - Chancery Courtroom No. 12A New Castle County Courthouse 500 North King Street Wilmington, Delaware Thursday, November 1, 2012 2:06 p.m. - - BEFORE: HON. LEO E. STRINE, JR., Chancellor. - - IN-COURTROOM SCHEDULING CONFERENCE - - : : : : : : : : : : : : : : :

Civil Action No. 7921-CS

-----------------------------------------------------CHANCERY COURT REPORTERS New Castle County Courthouse 500 North King Street - Suite 11400 Wilmington, Delaware 19801 (302) 255-0524

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APPEARANCES: KEVIN G. ABRAMS, ESQ. Abrams & Bayliss LLP -andANDREW J. ROSSMAN, ESQ. of the New York Bar Quinn, Emanuel, Urquhart & Sullivan, LLP for Plaintiffs WILLIAM M. LAFFERTY, ESQ. Morris, Nichols, Arsht & Tunnell LLP -andMARC WOLINSKY, ESQ. STEPHEN R. DiPRIMA, ESQ. S. CHRISTOPHER SZCZERBAN, ESQ. of the New York Bar Wachtell, Lipton, Rosen & Katz LLP -andROBERT ISEN, ESQ. Chief Legal Officer Tory Burch for Defendants Tory Burch and Tory Burch LLC WILLIAM B. CHANDLER III, ESQ. Wilson, Sonsini, Goodrich & Rosati, P.C. -andMICHAEL S. SOMMER, ESQ. of the New York Bar Wilson, Sonsini, Goodrich & Rosati, P.C. for Defendants John S. Hamlin and Glen Senk GREGORY P. WILLIAMS, ESQ. Richards, Layton & Finger, P.A. -andROBERT H. BARON, ESQ. of the New York Bar Cravath, Swaine & Moore LLP for Defendants Eduardo Holschneider and Maria Asuncion Aramburuzabala Larregui - - -

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 conference.

MR. ABRAMS:

Your Honor, I appreciate

the time taken by the Court to address the plaintiffs' motion to expedite. Andrew Rossman from Quinn Emanuel

has joined us from New York and, with Your Honor's permission, he'll speak on behalf of the plaintiffs. He has been admitted pro hac vice. THE COURT: You know, why don't we

just talk about whether we have much of a disagreement left. MR. LAFFERTY: to speak on behalf of -THE COURT: Yeah. I mean, what's -- I Mr. Wolinsky is going

don't want -- I don't want to spoil the drama of the trial. Sit down. MR. LAFFERTY: THE COURT: Sure.

This is like a scheduling It's just in a -- you

That's all it is.

know, it's a grander room because of the things that hang on the wall. Otherwise it's like a Hechinger

test kitchen, the different colors that -- none that I would ever select but were selected for us. I don't -- I didn't see any reason to burden anyone's Hanukkah, New Year's, Christmas, CHANCERY COURT REPORTERS

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Kwanzaa, Festivus with this preppy clothing dispute. I don't know why -- I guess I did this to myself, but somebody in the room started the other tradition of giving -- where, for some reason, I get all the preppy clothier cases, because I've had J. Crew. I've had --

I think because I'm culturally steeped in it since I was nine years old and learned what was hard for a kid from Baltimore, duck shoes? What's a duck shoe? You

know, and then you see all these freaks wearing this really ugly -- I like L. L. Bean, but those duck shoes are ugly. I mean, there's no way around it. So I think for both sides, it might come as news, you know, there's really nothing all that new about bright clothing and all that kind of stuff. So the novelty of any of this may be something

that I have to discover for myself, although I do think the juxtaposition of Two Fat Guys and Talbot's in Greenville is just a beautiful thing. So I guess what I'd like to understand from the defendants is what's really wrong with the revised proposal from the plaintiffs, if any, given that -- and I think the papers have been a little bit vague because I'm not sure anybody showed me exactly what the consent right is. But my understanding is

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that the consent right is a right belonging to Tory Burch LLC? MR. WOLINSKY: No, no. The -- I --

Your Honor, the -- the dispute right now is about 10 weeks, mid-March versus -- excuse me; end of March versus the beginning -- the middle of June. the bid-and-ask spread. THE COURT: to get at is -MR. WOLINSKY: THE COURT: Yeah. But -- but what I'm trying That's

-- there's some -No.

MR. WOLINSKY: THE COURT: Mr. Burch -MR. WOLINSKY: THE COURT:

There's a reason why

Right.

-- can't sell. There are two reasons,

MR. WOLINSKY: in essence.

The bidders all came in -- and this is There were

the -- the reason that counts is this one:

three bidders at the end of the process that had submitted term sheets. to the LLC agreement. They all required amendments Amendments to the LLC agreement

require the consent of Tory Burch, as the person, and Isla Coral, the member. Those -- those are their

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equity interests.

They also require board approval.

So assuming, which obviously we completely dispute, that the board was just on a personal vendetta, had no justification whatsoever, Isla Coral and Ms. Burch, in their individual capacities, have the right to say "Look, we just" -"there's not going to be a deal here." In fact, they

have the right to say "If you want" -- "If you want to exit, you have to shut down C. Wonder." THE COURT: Right. To the extent --

what I'm getting at now is if Mr. Burch just went out and found somebody -MR. WOLINSKY: THE COURT: Right.

-- who did not demand any

change to the LLC agreement -MR. WOLINSKY: board approval. THE COURT: Okay. There's a board consent Then they still need

MR. WOLINSKY:

right that expires in July -- I think July 2014. July 2014, then the board can't unreasonably withhold consent. Prior to July 2014 the board has -- the

directors, in their sole and absolute discretion, have the right to agree -- to approve or disapprove a sale. CHANCERY COURT REPORTERS

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So there's board-level approval -MR. LAFFERTY: MR. WOLINSKY: approval. And member level. -- and member-level

Member-level approval at this point is a

block, given the way that the bidders have structured the -THE COURT: Right. What I'm saying --

I'm not trying to get into the -- look, I believe it's hotly contested between the parties about why some of these demands are being made. to resolve the why. So today is not the day

It's just to observe that, you

know, there's a dispute about that. We're now at what I guess -- what I'm saying is ... I don't really understand, given -what -- why can't we go to trial in the first week in April, last week in March? MR. WOLINSKY: We don't -- we just

don't think there's enough time to get done what we have to do and -THE COURT: makes no sense to me. Why? Because that really

I mean, I'm sorry, but -Here's the why. I

MR. WOLINSKY: mean, I'll give you the why.

The why is this is not

just a case about what five directors did and why they CHANCERY COURT REPORTERS

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voted the way they did and why three -- three bidders structured their bids the way they did. It's also -And

we're going to be asserting counterclaims.

everyone agrees the counterclaims should be tried with the -- with the affirmative claims. And they're And we want

essentially mirror images of each other.

to prove -- and we expect to prove -- that Mr. Burch intentionally copied the company's intellectual property. And that proof is not going to be

developed -- we can put a shoe next to -- their shoe next to our shoe. We can put a picture of our store

next to our store, but the ultimate proof under -- one of the ultimate elements of proof in an unfair competition claim is intent. And we want to prove

that he intentionally copied our styles and store design. And that -THE COURT: And, again -And that --

MR. WOLINSKY: THE COURT:

-- I'm sorry, but this

is -- this is not a case about intercontinental ballistic missiles. MR. WOLINSKY: THE COURT: The copying --

And ... Yeah.

MR. WOLINSKY:

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THE COURT:

What you also have to

explain is how you get to hold him hostage with a self-imposed setoff and then dictate a schedule. Now,

you're looking quizzically at me, Mr. Wolinsky, but you're too bright to look at me quizzically. exactly what I mean -MR. WOLINSKY: THE COURT: Yeah. You know

-- by "self-imposed

setoff," which is you have all the time in your world to go hammer and tong after Mr. Burch at your leisure. But you bound up claims you have not proven in a consent right in a situation where the LLC agreement allows competition. So the mere fact they're competing and the mere fact -- again, honestly, there are hundreds of people in New Castle County who could make a bunch of clothes if you gave them the catalogs. I'm not

saying Mr. Burch -- it's going to be interesting, because there's what Tory Burch was before she met Christopher Burch, and there's what Christopher Burch was after Tory Burch became the Tory Burch in The New York Times, and there's maybe influences that go in a lot of directions here. There probably are lots of There are all kinds of

catalogs people could see.

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dream images of the world.

The WASPs; right?

The

Lifschitz world, do we know that one? MR. WOLINSKY: MR. CHANDLER: THE COURT: name. MR. WOLINSKY: whispered it to me. THE COURT: Yeah. That's, you know -Oh, okay. Somebody I don't know that one. Ralph Lauren.

Ralph Lauren's original

I mean, again somebody in the room knows that there was -- in Sussex County, Delaware, for years you could go on the Boardwalk and go to Gershman's. know what Gershman's had on the Boardwalk? remember that, Mr. Williams? MR. WILLIAMS: I think they had, like, And you Anybody

slightly irregular alligator shirts. THE COURT: Exactly, Izods and Polos. Frankly, anybody

They were right from the factory.

who was a real WASP would shop at Gershman's because real WASPs actually don't go and pay full Polo price; right, Mr. Abrams? Macy's. No way. They don't pay full Polo price at They actually will find a bargain. But you

That's how they got to be, you know, WASPs. went to Gershman's.

And there were little -- there

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was Lilly Pulitzer, there was Talbot's. I'm just saying I don't really get that. And I know that you want -- you've been proving How do

up this case against Mr. Burch for awhile now. I know that?

Just so -- no, I'm not going to recuse,

but I'm actually -- you know, I subscribe to The Atlantic, The New Yorker, The New Republic, The Sunday Times, other things. I'm not unaware of the world.

So, you know, no one -- when Tory Burch became popular, no one said "Oh, my gosh, this is the newest thing that ever happened." LP person; right? Do we know that one? You've got to help me. There's that

MR. WOLINSKY: THE COURT:

Lilly -Lilly Pulitzer, yeah. I mean, some of

MR. WOLINSKY: THE COURT:

Right.

these things go around that the people who were wearing the originals, you know, I mean, with all the drugs and all; but they're, like -- they're going to be on Willard Scott, but they're -- they're tied around the halls finding each other but very -- it's easier with the bright -- you know, you need the brightly colored clothes the older you get because you can't -- you need to see your target, maybe. CHANCERY COURT REPORTERS It can

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be just a smear, like Easter egg colors, and you just know I'm in the right genre. But my point is if that's all you've got, then we're going to go on their schedule because -- no. You're going to. So it's not -- I've

listened to your arguments. MR. WOLINSKY: on that one. THE COURT: figure it out.

You're going to. I wasn't going to argue

What I'm saying is you can

You can get going. MR. WOLINSKY: THE COURT: Right.

There's obvious choice for

the plaintiffs here. here.

I mean, the counterclaimants

MR. WOLINSKY: THE COURT:

Right.

Which is it's -- it's not

exactly clear why one would want a competitor owning a substantial equity stake in perpetuity. It may be

nice to have leverage, but -- and you get to exert it. But what I mean about in terms of setting a schedule, you don't get to exert it and then have your own schedule based on your setoff, when you've taken your setoff -- you've taken it. And so

you already have obviously a head start on it because CHANCERY COURT REPORTERS

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you've concluded that someone else's legal rights should be influenced by your determination. And we

say this a lot of times in takeover cases, right, which I've done on each side with everybody in the room, right. Like, if you want to get out of a merger

agreement, you're kind of supposed to know the reasons why you're getting out of the merger agreement -MR. WOLINSKY: THE COURT: Right.

-- and the discovery

process is not allowed -- is not a chance for you to search for your material adverse effect or your breach of rep and warranty. You're supposed to know it.

No one knows more in the world about who knew what -- Ms. Burch knows just as much as Mr. Burch and vice versa. infringement -MR. WOLINSKY: THE COURT: Right. If she believes it's an

-- she's the best person

in the world to explain the uniqueness of her design, why -- again, I think, on both sides, all these things, right, there's a level of no one who's in any form of art, including if you call this art, can claim entire originality to anything. inspired. You're always

And the least original people are the CHANCERY COURT REPORTERS

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people who will, you know, claim, you know -- I don't think there's any way that you would hear Bob Dillon or Paul McCartney or someone like that say "Well, I had no influences." So -- especially in this area. we can just have a fashion show from our own community. I can send Mr. Abrams, Mr. Williams out in Again,

the -- in the time of the trial and have -- and just, kind of, bring people in. I can watch the pull-up at

my kids' school which is just -- I got a kid who bought topsiders. I'm like, what is this? I mean,

you know, how do you actually want to wear these things? So I'm sorry if you don't think you can prove up that world. You can allocate time. I

think there's another solution, you know; but I think that the proposal on the defense side is a reasonable compromise. I think the three-day proposal, that Just looking at the

probably seems a little lean.

lawyers in the room, there's no way that's going to happen. But -- and, again, I'm not wed to the first

week of April versus the second week of April versus the third week of April versus the fourth week of March. But that time frame. CHANCERY COURT REPORTERS

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Honor. decide today?

MR. WOLINSKY: THE COURT:

Okay.

What else do we need to

MR. WOLINSKY:

One other thing.

We've

been asking the other side to commit to make their China-based witnesses available for deposition in Hong Kong or in a jurisdiction where we can take those depositions, and we haven't gotten that commitment yet. MR. ROSSMAN: I can address that, Your

And thank you for taking the time -THE COURT: Could you identify

yourself just in case -MR. ABRAMS: Yes. It's Andrew Rossman

with Quinn Emanuel for the plaintiffs. What I told Mr. Wolinsky and I'll tell the Court is we're happy to discuss that issue. And

we're open to doing everything that we can do to try to make discovery go as quickly as we can. Our -- my

very considerable concern there is expense and time. I'm informed that you can't take depositions in China -- it's actually illegal -- even if the parties agree to take depositions in China. So it will necessitate

getting parties to leave the country and go to Hong CHANCERY COURT REPORTERS

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Kong, Macao, or come to the United States for the deposition. THE COURT: he could go to Hong Kong. MR. ROSSMAN: that. Right. I understand I think Mr. Wolinsky said

What I don't know is, if we're talking about

three witnesses, two witnesses, I don't see us having any issue at all. If we're talking about 20

witnesses, then I think we're talking about a very considerable expense. And, you know, one thing that I asked Mr. Wolinsky, which he has consistently refused to tell me, is what exactly are his counterclaims so I can get a sense of what they're trying to understand in China so I can participate in a constructive way in that conversation and tell him, you know, who I think is knowledgeable and -THE COURT: Well, what's the bid Sorry for

and -- what's the bid and -- excuse me. talking over you. answer? MR. WOLINSKY: THE COURT: file your answer? CHANCERY COURT REPORTERS I'm sorry.

What's the bid-and-ask on an

On?

When are you proposing to

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MR. WOLINSKY: Friday or Monday. THE COURT:

I'm going to file it

And how many depositions

MR. WOLINSKY: names I know today. there may be others.

I can -- there are two

Nick Matfus and Gao Jing, but And I can't really tell that

there aren't others until either they answer the interrogatories or produce some documents. MR. ROSSMAN: Mr. Matfus I've spoken

I can tell you, the Court now that I'm sure that I have not

we'll make him available for deposition. spoken with Mr. Jing.

I don't know what subjects they

want to explore, but I'm happy to take that up and give him an answer next week after seeing their counterclaim. MR. WOLINSKY: Your Honor, there's a And

substantive issue here on the foreign witnesses. it shouldn't be -- I'm sure it's not lost on you. What happens in the world is that Chinese manufacturers knock off American

manufacturers, and you can't get them because of the lack of process in China. THE COURT: Oh, no, no. I get it.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 got in the way.

MR. WOLINSKY:

And, you know, a little

bit of what we've -- what I think is going on here is that. And the essence of the counterclaim here is not He knows it. The claim is

lost on Mr. -- Mr. Burch. that he took -THE COURT:

Again -Okay.

MR. WOLINSKY: THE COURT:

You-all wish to have more

time to -- as I recall it, they wanted your answer by now, or they were hoping. MR. WOLINSKY: THE COURT: your answer by now? MR. WOLINSKY: THE COURT: Yeah. I got to -- I got So were we.

You were hoping to have

Okay.

some proposal to extend time. MR. WOLINSKY: Yeah. The hurricane

THE COURT:

I think they get that.

There's a difference between -- I didn't hear -that's what I said. for a living -MR. WOLINSKY: THE COURT: Yeah. I know you guys get all feisty

-- and ... is I didn't

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hear -- what I heard from Mr. Rossman was no resistance to some reasonable production of witnesses but a concern about overkill and wanting to understand what you're looking at; that the name -- the one person that they've already talked to. to costs. I am sensitive

We're not going to take -- and, you know, You

this -- we're going to size what is at stake. know, I don't know. what is this?

How many stores are there for --

--Wonder Bread, C. Wonder? MR. ROSSMAN: THE COURT: MR. ROSSMAN: C. Wonder, Your Honor. C. Wonder. I believe there are

about 12 stores in existence right now. THE COURT: Okay. And how many Tory

Burch establishments are there? MR. WOLINSKY: department store outlets. THE COURT: So, you know, nice-growing 85 stores, a thousand

enterprises, not yet Amazon, not Wal-Mart. So I think the parties need to discuss things. That's all I heard. I don't have a dispute.

I mean, I -- what I'm saying is I -- I think the fact that somebody's manufacturing in China does not exempt them from anything, and I -- you know, this Court is CHANCERY COURT REPORTERS

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pretty good at asking, like -- remember, there used to be a time period where people's investment banks would refuse to testify, the sell-side advisor around the -"Well, I won't testify without a commission," you know. Fine. Then you just say to defendants, "Okay.

So you have no reliance on a banker defense or anything like that. process." I'm assuming Mr. Burch, who controls this enterprise, if he's got people working in China, is going to make a reasonable number of them available if their testimony is relevant. MR. WOLINSKY: THE COURT: That's all we need. We just take it out of the

What you need to do is And be sensitive to

proceed incrementally, you know. the goose-and-gander rule. schedule.

But I think now you have a

You can talk about that. And, you know, in terms of people in

China never leaving China, they do leave China. That's how they get these deals. gamble. They leave to have fun. They also leave to And so, you know,

you might even be able to do some of these in New York. And they could have personal shoppers at

Bergdorf Goodman who are specially trained to speak CHANCERY COURT REPORTERS

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their dialect.

Which dialect does Mr. Matfus speak? MR. ROSSMAN: THE COURT: English. He doesn't -- he's not --

I only know restaurant Chinese like Szechwan, Cantonese, Mandarin. that. Is there anything else we really need to do today if we've got that established? MR. LAFFERTY: Your Honor, should we But talk to each other about

just coordinate with Your Honor's assistant about an exact week for the trial? THE COURT: Yeah. But what I want

before you -- you know, one is I'm assuming we're going to trial. MR. WOLINSKY: THE COURT: Right.

We're not doing

dispositive motions; right, both people? MR. WOLINSKY: THE COURT: Yes, correct.

(Continuing) -- is flesh

out your briefing schedule and then contact Ms. Boulden. Everybody's been telling us, like, when Never. I mean, the reality is you

do we want things.

get to a point in life -- and it's been at least a decade or more now when do you want something? CHANCERY COURT REPORTERS I

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really don't need any of it.

I mean, probably like

you guys in the room, I mean, once your billables for the year fill up a certain amount and you're past that anxiety stage, it's pretty cool if it just goes away. So the question for me is not when do we want it. The question is when are you ready for it

to happen so that we can, you know -- I think we can try to do is aim for being ready by that -- you know, the, sort of, middle of the third week of March. think for some of you in the room and some of your team, the last two weeks of March are not a very smart time to do a trial unless you want to have your domestic relations situation altered, so that it might be better to go into April. I'm thinking -- I'm I

looking at Mr. Lafferty, but he's probably not the only one in that situation. So why don't you think about -MR. WOLINSKY: THE COURT: sense. MR. LAFFERTY: And, Your Honor, is it Yeah.

-- that, if that makes

your preference to have two pretrial briefs from each side or is one acceptable? THE COURT: Again, I don't really

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care. briefs.

My sense is I don't want any more than four It's been my experience that, especially in a

case like this, where everybody is playing offense and defense, that it's a lot easier to put together the schedule in a compact way if everybody -- if there's a two-brief sequence rather than a three-brief sequence. If we -- I really give -- and, you know -- so my -typically that works for me, if it works for everybody else. brief." I have plaintiffs say "No. I want the three

Then it's their obligation, if they want

that, to go a lot earlier than everybody else because -- but I think when you both have claims against each other, a two-brief sequence will allow you to do what you need to do with a little more breathing room. Mr. Rossman. MR. ABRAMS: Your Honor, do you happen But if that works for Mr. Abrams and

to know the Court's availability in the third week of March or fourth week of March? THE COURT: What I would say is I

would tend to stay away from those two weeks. MR. ABRAMS: was using that by way -THE COURT: What I'm saying is I will Well, any two weeks. I

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figure out a way to make you -- to get you a trial in April, like beginning -- and as early in April as I can. MR. WOLINSKY: THE COURT: Okay.

Until you-all do all the

building blocks, though -- and they have to work -and I think they will work -- then I can talk to Ms. Boulden. I also will tell you I reserve the right

to double-book you, which is to give you two start dates or three start dates in that month, realizing that, you know -- I mean, we once had one thing last year where we had eight preliminary injunction hearings scheduled in six days. something like that. And I think it was

Elane said to me, you know, And I said, "I

"You're going to die if it happens." don't think it's going to happen.

I think what the

world is going to get is just more high-quality disclosure." And darn, if it didn't just go down like

bowling pins have never gone down for me in a bowling ally. It just all went away, and people learned much

more about the comparable companies in small cap deals. So what I'm saying is you might get a couple dates that you'll have to hold, but we'll get CHANCERY COURT REPORTERS

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you in in April. MR. CHANDLER: Your Honor, can I

interrupt and ask for a clarification on one point of your schedule? THE COURT: Sure. And I apologize. I

MR. CHANDLER:

have to introduce my partner from the New York office, Michael Sommer, who has the question. MR. SOMMER: Yes, Your Honor. The

scheduling order proposed by plaintiffs -- we represent two of the directors, Mr. Hamlin and Mr. Senk. THE COURT: MR. SOMMER: Uh-huh. The proposed scheduling Mr. Senk's

order has Mr. Hamlin's answer due today. is due November 15th. counterclaim.

We're not filing any

So my request is that the Hamlin date

be made the same as the Senk date, or if that's objectionable -- if there's no objection, then I'll sit down. MR. ABRAMS: I advised Mr. Sommer's

partner earlier this week that we would discuss the appropriate date for their answer at the conclusion of this conference. CHANCERY COURT REPORTERS

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 beard? that is. like that. the room. That's fine.

MR. SOMMER: I'll sit down. THE COURT: going to file counterclaims. discussion. MR. SOMMER: THE COURT:

Oh.

I'm uninformed.

Okay.

But you're not

That may simplify the

Right. Okay. You guys can use

If you want to have a mock trial, have Mr.

Szczerban show his stuff, see whether Sallie's boys -you know, what he's learned at Wachtell. up so much. He's grown

Is it -- how many bearded partners do you

have, Mr. Wolinsky? MR. WOLINSKY: managing partner is bearded. THE COURT: Who's that? Meyer Koplow. And Wow. Well, our

MR. WOLINSKY:

Mirvis, of course, has the Samson, you know, look but ... THE COURT: Yeah. You call that a

Like, you're just trying to figure out how It's a Hasidic rattail, I mean, or something

MR. WOLINSKY: we'll all be in trouble.

If it's dreadlocks,

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THE COURT:

Well, you know, I mean, He

who knows what he does really in the Hamptons. hasn't ever shared it fully. We should have a

video -- a Ted cam, and then we can tell whether he does some sort of combination Maimonides/Marley Fest together and ... So we got -- is there anything else that you -- but, again, you can all talk to each other. Any other questions about the

(No response) THE COURT: So, again, I wasn't

really -- to be honest and just so -- not that Mr. Abrams or Mr. Rossman would. When I was saying

looking at the schedule, when I leave the room and you-all talk about this, I wasn't talking about any particulars. I was talking my sense of what was at

stake -- and I was fully aware of the coming infringement claim -- is the general time frame of the trial. I wasn't wed to any of these particular dates.

I figured that's something you-all could work out. MR. WOLINSKY: Just to throw out the

things on the table, they proposed a hundred-hour CHANCERY COURT REPORTERS

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limitation of depositions on each side. something -- we would object to that. THE COURT: the entirety of depositions? MR. WOLINSKY: THE COURT:

Is that

A hundred hours for -- for

Yeah, for each side.

You know, again, I don't

have -- I think that's where you-all have to be sensible. I mean ... you know, I don't see -- that

doesn't logically -- I mean, I could see how each side could get done with fewer than a hundred hours; but I could also see, you know -- if everybody needed 15 -if you had 15 deponents on a side, that could be tight, depending on who the witness is. encouraging much more than that. to be a blend. I wouldn't be

I mean, there ought

And there ought to be things like, you

know, if China -- I take it you can't even video a deposition because that would be illegal? right? Someone would be killed; right? Is that One of our

Internet providers would report the name, and someone would be executed? All in the name of commerce.

But there are ways to do things efficiently. I mean, it's a shame that that's --

like, for example, the ideal thing to do with some of the Chinese witnesses would have been if you had a CHANCERY COURT REPORTERS

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couple you need to do in Hong Kong, but there might be a couple you do telephonically. So I'm not hep to a hundred hours. What I am here to do, though, is if, frankly, somebody on either side proposes 19 deponents where it seems clear that it's more of an economic leverage strategy than a discovery strategic, I'll shut that down. MR. WOLINSKY: I hope you don't have

the impression that that's -- that we're trying to use litigation -- the costs of litigation as a weapon. THE COURT: I'm not asking -- I'm not

asking anybody to reveal any guilt or anything -betray any sense of guilt. MR. WOLINSKY: point. THE COURT: don't worry. Okay. Then don't -- then I have none on that

What I'm saying is it could be -- if you

can all get the depositions done in 62.3 hours on each side, you should. artificial thing. I also don't know -- for example, depositions are often longer than they should be, not because the person is taking a long time asking questions, because somebody says "Objection." CHANCERY COURT REPORTERS But a hundred hours is just an

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Mr. Abrams knows that the real reasons why the board did this were blank and blank and blank. And it's

distracting the witness from the fact that they're blank and blank and blank, and the witness' inability to answer for himself blank and blank and blank and blank has now been corrected by me, indicating that the real reasons he did what he did is blank and blank. I mean, I've seen plenty -- everybody in

Chancery has seen plenty of transcripts -- and you've been at those depositions -- where, frankly, it's much more from the obstreperous defense side than there is from the asking side. So I don't really know enough about the case. I will say this -- and part of my instinct

about it is I really don't think you're going to have a ginormous number of key witnesses. who a lot of the key witnesses are. I think you know There's going to

be a group of people who Ms. Burch knows Mr. Burch started this business with, and you're going to want to focus on them and how they created the stores in the way they did and the products they did. certainly knows who he's suing. Mr. Burch

And so if you

actually focus in a real way on what your core things are, you'll probably get there. CHANCERY COURT REPORTERS

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 line? line as well. client.

And I'm always going to be available to talk about it. As I said, if you want to have a

extended conference -- if you want to have a conference that's more focused after you-all talk about it. But I think you should exchange lists and And -- and then

those -- and those sorts of things. just let me know. April.

But otherwise, we'll talk about

It's actually a very good time of year for I mean, it's not a real

this kind of clothing.

January-February line in either store, is it? MR. WOLINSKY: I'm looking to my

MR. ISEN:

We do have a good holiday

THE COURT:

You have a good holiday I'm not

I was talking about January-February.

sure that's holiday. MR. ISEN: THE COURT: Resort. Resort. Ah. Never heard. It is all

Lilly Pulitzer never did that, though. unprecedented.

You know, I've actually -- totally unrelated to this case, I've been deep in it, in an autumnal Cheever phase. And so I've been reading all

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kinds of Cheever.

So I'll have to just keep that up Have you read your I mean, it's --

through the -- through the case. Cheever lately?

You know who he is?

you know, and Mad Men will be coming back at some point in time. So I think if you read Cheever, go see

the new Virginia Woolf revival and watch Mad Men. We'll be all geared up and in the mood for this sort of drunken WASP fest. Burches WASPs? Are they WASPs? Are the

Do we know? MR. ISEN: I don't know how to answer

that question. THE COURT: Well, it's some sort of --

it's not -- I mean, it's nothing wrong -- it's called White Anglo-Saxon Protestant. MR. ISEN: THE COURT: MR. ISEN: So you don't know.

No -So, I mean --- I mean, Tory Burch is

Jewish and Chris is not Jewish. THE COURT: Okay. But not Jewish

doesn't make you a WASP, because it could make you an equally excluded faith like Catholic; right? that's not a WASP. I mean, So,

You know, a WASP is a WASP.

you know -- I think you're going to have to have interrogatories about who's a WASP. And I'll

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certainly be attacked as anti-WASP, probably, and then I love all WASPs. I'm bringing actually Rodman Ward,

Jr. in as my expert because I always used to tell Rod that he actually had a lineage chart in his basement which had all of the DuPont family trees on it. was like some people have war rooms. It

He had that to

determine how they were actually related to the DuPont family. So I think we might be able to have some And I think Mr. Williams

unique experts in Delaware.

is bringing some of his former partners back. MR. WILLIAMS: THE COURT: (Inaudible)

Morris Nichols was more of

an upstart firm, but I think they had -- they did have some -- some people who would claim that; right? So I won't say anything more on the -on the transcript. I'm going to go off the transcript

and then talk about which former partners we actually want to have come back. Thank you. Thank you, Your Honor.

ALL COUNSEL:

(Discussion off the stenographic record from 2:47 p.m. until 2:49 p.m.) THE COURT: Have a good day.

(The proceedings concluded at 2:49 p.m.) - - CHANCERY COURT REPORTERS

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CERTIFICATE

I, NEITH D. ECKER, Official Court Reporter for the Court of Chancery of the State of Delaware, do hereby certify that the foregoing pages numbered 3 through 33 contain a true and correct transcription of the proceedings as stenographically reported by me at the hearing in the above cause before the Chancellor of the State of Delaware, on the date therein indicated. IN WITNESS WHEREOF I have hereunto set my hand at Wilmington, this 2nd day of November 2012.

/s/ Neith D. Ecker ---------------------------Official Court Reporter of the Chancery Court State of Delaware

Certificate Number: 113-PS Expiration: Permanent

CHANCERY COURT REPORTERS