Preview
No.: X07-HHD-CV16-6070473 : SUPERIOR COURT
:
PHL VARIABLE INSURANCE COMPANY : COMPLEX LITIGATION DOCKET
and PHOENIX LIFE INSURANCE COMPANY, :
n/k/a NASSAU LIFE INSURANCE COMPANY, :
: J.D. OF HARTFORD
Plaintiffs, :
:
v. : AT HARTFORD
:
McCARTER & ENGLISH, LLP and JAMES :
G. SCANTLING, :
:
Defendants. :
AFFIDAVIT OF DAVID S. GOLUB
David S. Golub, being duly sworn, does depose and say:
1. I am a member of the law firm of Silver Golub & Teitell LLP, attorneys for Plaintiffs
in this action. I submit this Affidavit to identify and authenticate exhibits referenced in
Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Summary Judgment, filed this
day.
2. Attached as Exhibit A1 and A2 are Defendant Scantling’s Revised Objections and
Responses to Plaintiffs’ Revised Requests for Admission (A1), and Defendant McCarter & English,
LLP’s Revised Objections and Responses to Plaintiffs’ Revised Requests for Admission (A2), served by
Defendants on May 24, 2023 in response to Plaintiffs’ Requests for Admission in this action.
3. Attached as Exhibit B is Defendants’ July 15, 2022 Answer and Special Defenses to
Plaintiffs’ Amended Complaint [Dkt. Entry # 194].
4. Attached as Exhibit C is the July 9, 2019 decision issued by the United States Court of
Appeals in PHL Variable Ins. Co. v. Town of Oyster Bay, 929 F.3d 79 (2d Cir. 2019).
5. Attached as Exhibit D is the August 19, 2020 decision of the New York Appellate
Division, Second Department, in Phoenix Life Ins. Co. v. Town of Oyster Bay, 129 N.Y.S.3d
451, 186 A.D.3d 763 (2d Dept. 2020).
6. Attached as Exhibit E is a Stipulation of the parties in this action concerning the authenticity
of the Mccarter & English LLP internal time records attached hereto as Exhibits F and G.
7. Attached as Exhibit F are defendant McCarter & English LLP's internal time records
pertaining to the Golf Course Loan transaction at issue in this action, produced by Mccarter during
discovery in this action (as discovery documents# ME 6649-54).
8. Attached as Exhibit G are defendant McCarter & English LLP 's internal time records
pertaining to the Beach Facility Loan transaction at issue in this action, produced by Mccarter
during discovery in this action (as discovery documents# ME 6643-48).
9. Attached as Exhibit His the Return of Service {Dkt. Entry# 100.30) filed in this action by
Conn St. Marshal John J. Murray attesting under oath that Defendants were served with Plaintiffs'
Summons and Complaint in this action on August 4, 2016.
/--//v=
DAVID S. GOLUB
Sworn and subscribed to, before me, this 18th day of July, 2023.
���
OF THE SUPERIOR COURT
2
EXHIBIT A-1
DOCKET NO. X07- HHD-CV-16-6070473-S : SUPERIOR COURT
:
PHOENIX LIFE INSURANCE COMPANY, : COMPLEX LITIGATION
ET AL. : DOCKET
: AT HARTFORD
V. :
:
MCCARTER & ENGLISH, LLP, ET AL. : MAY 24, 2023
DEFENDANT JAMES G. SCANTLING’S REVISED OBJECTIONS AND
RESPONSES TO PLAINTIFFS’ REVISED REQUESTS FOR ADMISSION
Defendant James G. Scantling (“Scantling”) responds to Plaintiffs’ Revised Requests for
Admission (“Requests for Admissions”) as follows:
Pursuant to Connecticut Practice Book §§ 13-22, 13-23 and 13-24, Defendant Scantling,
by and through his attorneys, hereby submits his objections and answers to Plaintiffs’ Requests
for Admissions. All objections and answers are based on current knowledge and belief.
Scantling makes his objections without waiver of any rights. Scantling expressly reserves the
right, but does not assume any obligation, to supplement, amend, or clarify the content of the
objections and answers herein, beyond those required by the Practice Book. Nothing in these
objections shall be deemed to be a waiver or admission of any act in any other stage of this
action. All objections are reserved and may be interposed at any time in the future. The
objections and answers are given without prejudice to Scantling’s right to supplement these
objections and answers pursuant to Practice Book § 13-15.
Requests
1. At all times from 2011 to date, New York State Town Law § 64(6) has provided
that New York town boards “[m]ay award contracts for any of the purposes authorized by law
and the same shall be executed by the supervisor in the name of the town after approval by the
1
town board.”
Response: Scantling objects to this Request on the basis that it calls for a legal
conclusion. To the extent an answer is required, Scantling admits that this
Request quotes from New York State Town Law § 64(6).
2. At all times from 2011 to date, New York case law has provided that “Town Law
64(6) demands that a formal resolution be passed by the Town Board and executed by the Town
Supervisor in the name of the Town before a Town can be bound by any contract.”
Response: Scantling objects to this Request on the basis that it calls for a legal
conclusion. Scantling further objects to this Request on the grounds that the
term “New York case law” is undefined, making this Request vague and
ambiguous. Scantling further objects to this Request on the grounds that it
purports to quote “New York case law” without citation or reference, making
the Request vague and ambiguous. Scantling further objects that this
Request is unduly burdensome, as it would require a complete survey of all
“New York case law” referencing Town Law 64(6).
3. At all times from 2011 to date, New York law has been “abundantly clear” that
“a [New York] town cannot be bound contractually unless the contract has been approved by the
town board and executed by the supervisor in the town’s name.”
Response: Scantling objects to this Request on the basis that it calls for a legal
conclusion. Scantling further objects to this Request on the grounds that it
purports to quote from a source or sources without citation or reference,
making the Request vague and ambiguous. Scantling further objects to this
Request on the grounds that the term “New York law” is undefined, making
this Request vague and ambiguous. Scantling further objects that this
Request is unduly burdensome, as it would require a complete survey of all
“New York law.”
4. At all times from 2011 to date, New York case law has provided that “absent
strict compliance with the formal requirements of [Town Law § 64(6)], no valid contract
binding a [New York] Town may be found to exist.”
Response: Scantling objects to this Request on the basis that it calls for a legal
conclusion. Scantling further objects to this Request on the grounds that the
term “New York case law” is undefined, making this Request vague and
2
ambiguous. Scantling further objects to this Request on the grounds that it
purports to quote “New York case law” without citation or reference, making
the Request vague and ambiguous. Scantling further objects that this
Request is unduly burdensome, as it would require a complete survey of all
“New York case law.”
5. Defendant James G. Scantling was unaware of the provisions of New York State
Town Law § 64(6) prior to January 1, 2013.
Response: Scantling admits he was unaware of the provisions of New York State Town
Law § 64(6).
6. The Town of Oyster Bay Town Board did not formally approve the amendment to
the Town’s concession agreement with S.R.B. Convention & Catering Corp. signed by Town
Attorney Leonard Genova on or about November 18, 2011.
Response: Scantling objects to this Request on the basis that it calls for a legal
conclusion. Scantling further objects to this Request on the grounds that the
terms “formally approve” are undefined, making this Request vague and
ambiguous. Without waiving the foregoing objections, Scantling denies this
Request.
7. The Town of Oyster Bay Town Board did not formally approve the amendment
to the Town’s concession agreement with S.R.B. Concession, Inc. signed by Town Attorney
Leonard Genova on or about June 22, 2012.
Response: Scantling objects to this Request on the basis that it calls for a legal
conclusion. Scantling further objects to this Request on the grounds that the
terms “formally approve” are undefined, making this Request vague and
ambiguous. Without waiving the foregoing objections, Scantling denies this
Request.
8. The Town of Oyster Bay Town Supervisor did not sign the amendment to
the Town’s concession agreement with S.R.B. Convention & Catering Corp. It was signed by
Town Attorney Leonard Genova on or about November 18, 2011.
Response: Scantling admits that TOBAY’s Town Supervisor did not sign the
amendment that was included in the closing package, which was signed by
3
Town Attorney Leonard Genova on or about November 18, 2011.
9. The Town of Oyster Bay Town Supervisor did not sign the
amendment to the Town’s concession agreement with S.R.B. Concession, Inc. It was signed by
Town Attorney Leonard Genova on or about June 22, 2012.
Response: Scantling admits that TOBAY’s Town Supervisor did not sign the
amendment that was included in the closing package, which was signed by
Town Attorney Leonard Genova on or about June 22, 2012.
10. In November 2011, defendant Scantling believed that the amendment to
the Town of Oyster Bay’s concession agreement with S.R.B. Convention & Catering Corp.
signed by Town of Oyster Bay Town Attorney Leonard Genova on or about November 18, 2011
was a valid and binding obligation upon the Town of Oyster Bay.
Response: Scantling admits this Request.
11. In November 2011, defendant Scantling advised PHL Variable Insurance
Company that the amendment to the Town of Oyster Bay’s concession agreement with S.R.B.
Convention & Catering Corp. signed by Town of Oyster Bay Town Attorney Leonard Genova
on or about November 18, 2011 was a valid and binding obligation upon the Town of Oyster
Bay.
Response: Scantling denies that he himself “advised” PHL. Scantling admits that he
relied upon the extensive advice of TOBAY’s New York counsel, Harris
Beach PLLC, and TOBAY’s own town attorneys as to the requirements of
New York law applicable to the November 18, 2011 transaction at issue in this
matter, including TOBAY’s obligations related to that transaction. Scantling
admits that the advice of Harris Beach PLLC and TOBAY’s town attorney,
Frederick Mei, was provided to Plaintiffs through their own involvement in
calls, and that of their agent, NDH, relating to that advice in and around
October 2011 and in final form, pursuant to their request for such opinions
from TOBAY, as part of the closing package for the November 18, 2011
transaction.
12. In June 2012, defendant Scantling believed that the amendment to the Town of
4
Oyster Bay’s concession agreement with S.R.B. Concession, Inc. signed by Town of Oyster Bay
Town Attorney Leonard Genova on or about June 22, 2012 was a valid and binding obligation
upon the Town of Oyster Bay.
Response: Scantling admits this Request.
13. In June 2012, defendant Scantling advised Phoenix Life Insurance Company that
the amendment to the Town of Oyster Bay’s concession agreement with S.R.B. Concession, Inc.
signed by Town of Oyster Bay Town Attorney Leonard Genova on or about June 22, 2012 was a
valid and binding obligation upon the Town of Oyster Bay.
Response: Scantling denies that he himself “advised” Phoenix. Scantling admits that he
relied upon the extensive advice of TOBAY’s New York counsel, Harris
Beach PLLC, and TOBAY’s own town attorneys as to the requirements of
New York law applicable to the November 18, 2011 transaction at issue in this
matter, including TOBAY’s obligations related to that transaction. Scantling
admits that the advice of Harris Beach PLLC and TOBAY’s town attorney,
Frederick Mei, was provided to Plaintiffs through their own involvement in
calls, and that of their agent, NDH, relating to that advice and in final form,
pursuant to their request for such opinions from TOBAY, as part of the
closing package for the June 22, 2012 transaction.
14. Because the amendment to the Town of Oyster Bay’s concession agreement
with S.R.B. Convention & Catering Corp. signed by Town of Oyster Bay Town Attorney
Leonard Genova on or about November 18, 2011 was never formally approved by the Town of
Oyster Bay, it was not a valid and binding obligation of the Town and was unenforceable.
Response: Scantling objects to this Request on the basis that it calls for a legal
conclusion. Scantling further objects to this Request on the grounds that the
terms “formally approved” are undefined, making this Request vague and
ambiguous. Without waiving the foregoing objection, and to the extent an
answer is required, Scantling denies this Request.
15. Because the amendment to the Town of Oyster Bay’s concession agreement
with S.R.B. Concession, Inc. signed by Town of Oyster Bay Town Attorney Leonard Genova on
5
or about June 22, 2012 was never formally approved by the Town of Oyster Bay, it was not a
valid and binding obligation of the Town and was unenforceable.
Response: Scantling objects to this Request on the basis that it calls for a legal
conclusion. Scantling further objects to this Request on the grounds that the
terms “formally approved” are undefined, making this Request vague and
ambiguous. Without waiving the foregoing objection, and to the extent an
answer is required, Scantling denies this Request.
Dated: May 24, 2023
DEFENDANT,
JAMES G. SCANTLING
By: /s/ Timothy A. Diemand
Timothy A. Diemand
Joshua N. Taylor
Wiggin and Dana LLP
20 Church Street
Hartford, CT 06103
(860) 297-3700
(860) 297-3799 (fax)
tdiemand@wiggin.com
jtaylor@wiggin.com
Juris No. 67700
Its attorneys
6
CERTIFICATION
I hereby certify that on May 24, 2023, a copy of the foregoing was delivered electronically
or sent via first class mail to all counsel of record as follows:
David S. Golub
Paul A. Slager
SILVER GOLUB & TEITELL LLP
One Landmark Square, 15th Floor
Stamford, CT 06901
dgolub@sgtlaw.com
pslager@sgtlaw.com
/s/ Timothy A. Diemand
Timothy A. Diemand
22888\2\4858-0075-1462.v1
7
EXHIBIT A-2
DOCKET NO. X07- HHD-CV-16-6070473-S : SUPERIOR COURT
:
PHOENIX LIFE INSURANCE COMPANY, : COMPLEX LITIGATION
ET AL. : DOCKET
: AT HARTFORD
V. :
:
MCCARTER & ENGLISH, LLP, ET AL. : MAY 24, 2023
DEFENDANT MCCARTER & ENGLISH, LLP’S REVISED OBJECTIONS AND
RESPONSES TO PLAINTIFFS’ REVISED REQUESTS FOR ADMISSION
Defendant McCarter & English, LLP (“McCarter”) responds to Plaintiffs’ Revised
Requests for Admission (“Requests for Admissions”) as follows:
Pursuant to Connecticut Practice Book §§ 13-22, 13-23 and 13-24, Defendant McCarter,
by and through its attorneys, hereby submits its objections and answers to Plaintiffs’ Requests
for Admissions. All objections and answers are based on current knowledge and belief.
McCarter makes its objections without waiver of any rights. McCarter expressly reserves the
right, but does not assume any obligation, to supplement, amend, or clarify the content of the
objections and answers herein, beyond those required by the Practice Book. Nothing in these
objections shall be deemed to be a waiver or admission of any act in any other stage of this
action. All objections are reserved and may be interposed at any time in the future. The
objections and answers are given without prejudice to McCarter’s right to supplement these
objections and answers pursuant to Practice Book § 13-15.
Requests
1. At all times from 2011 to date, New York State Town Law § 64(6) has provided
that New York town boards “[m]ay award contracts for any of the purposes authorized by law
and the same shall be executed by the supervisor in the name of the town after approval by the
1
town board.”
Response: McCarter objects to this Request on the basis that it calls for a legal
conclusion. To the extent an answer is required, McCarter admits that this
Request quotes from New York State Town Law § 64(6).
2. At all times from 2011 to date, New York case law has provided that “Town Law
64(6) demands that a formal resolution be passed by the Town Board and executed by the Town
Supervisor in the name of the Town before a Town can be bound by any contract.”
Response: McCarter objects to this Request on the basis that it calls for a legal
conclusion. McCarter further objects to this Request on the grounds that the
term “New York case law” is undefined, making this Request vague and
ambiguous. McCarter further objects to this Request on the grounds that it
purports to quote “New York case law” without citation or reference, making
the Request vague and ambiguous. McCarter further objects that this
Request is unduly burdensome, as it would require a complete survey of all
“New York case law” referencing Town Law 64(6).
3. At all times from 2011 to date, New York law has been “abundantly clear” that
“a [New York] town cannot be bound contractually unless the contract has been approved by the
town board and executed by the supervisor in the town’s name.”
Response: McCarter objects to this Request on the basis that it calls for a legal
conclusion. McCarter further objects to this Request on the grounds that it
purports to quote from a source or sources without citation or reference,
making the Request vague and ambiguous. McCarter further objects to this
Request on the grounds that the term “New York law” is undefined, making
this Request vague and ambiguous. McCarter further objects that this
Request is unduly burdensome, as it would require a complete survey of all
“New York law.”
4. At all times from 2011 to date, New York case law has provided that “absent
strict compliance with the formal requirements of [Town Law § 64(6)], no valid contract
binding a [New York] Town may be found to exist.”
Response: McCarter objects to this Request on the basis that it calls for a legal
conclusion. McCarter further objects to this Request on the grounds that the
term “New York case law” is undefined, making this Request vague and
2
ambiguous. McCarter further objects to this Request on the grounds that it
purports to quote “New York case law” without citation or reference, making
the Request vague and ambiguous. McCarter further objects that this
Request is unduly burdensome, as it would require a complete survey of all
“New York case law.”
5. Defendant James G. Scantling was unaware of the provisions of New York State
Town Law § 64(6) prior to January 1, 2013.
Response: McCarter admits that Attorney Scantling was unaware of the provisions of
New York State Town Law § 64(6).
6. The Town of Oyster Bay Town Board did not formally approve the amendment to
the Town’s concession agreement with S.R.B. Convention & Catering Corp. signed by Town
Attorney Leonard Genova on or about November 18, 2011.
Response: McCarter objects to this Request on the basis that it calls for a legal
conclusion. McCarter further objects to this Request on the grounds that the
terms “formally approve” are undefined, making this Request vague and
ambiguous. Without waiving the foregoing objections, McCarter denies this
Request.
7. The Town of Oyster Bay Town Board did not formally approve the amendment
to the Town’s concession agreement with S.R.B. Concession, Inc. signed by Town Attorney
Leonard Genova on or about June 22, 2012.
Response: McCarter objects to this Request on the basis that it calls for a legal
conclusion. McCarter further objects to this Request on the grounds that the
terms “formally approve” are undefined, making this Request vague and
ambiguous. Without waiving the foregoing objections, McCarter denies this
Request.
8. The Town of Oyster Bay Town Supervisor did not sign the amendment to
the Town’s concession agreement with S.R.B. Convention & Catering Corp. It was signed by
Town Attorney Leonard Genova on or about November 18, 2011.
Response: McCarter admits that TOBAY’s Town Supervisor did not sign the
amendment that was included in the closing package, which was signed by
3
Town Attorney Leonard Genova on or about November 18, 2011.
9. The Town of Oyster Bay Town Supervisor did not sign the
amendment to the Town’s concession agreement with S.R.B. Concession, Inc. It was signed by
Town Attorney Leonard Genova on or about June 22, 2012.
Response: McCarter admits that TOBAY’s Town Supervisor did not sign the
amendment that was included in the closing package, which was signed by
Town Attorney Leonard Genova on or about June 22, 2012.
10. In November 2011, defendant Scantling believed that the amendment to
the Town of Oyster Bay’s concession agreement with S.R.B. Convention & Catering Corp.
signed by Town of Oyster Bay Town Attorney Leonard Genova on or about November 18, 2011
was a valid and binding obligation upon the Town of Oyster Bay.
Response: McCarter admits this Request.
11. In November 2011, defendant Scantling advised PHL Variable Insurance
Company that the amendment to the Town of Oyster Bay’s concession agreement with S.R.B.
Convention & Catering Corp. signed by Town of Oyster Bay Town Attorney Leonard Genova
on or about November 18, 2011 was a valid and binding obligation upon the Town of Oyster
Bay.
Response: McCarter denies that Scantling himself “advised” PHL. McCarter admits
that Attorney Scantling relied upon the extensive advice of TOBAY’s New
York counsel, Harris Beach PLLC, and TOBAY’s own town attorneys as to
the requirements of New York law applicable to the November 18, 2011
transaction at issue in this matter, including TOBAY’s obligations related to
that transaction. McCarter admits that the advice of Harris Beach PLLC and
TOBAY’s town attorney, Frederick Mei, was provided to Plaintiffs through
their own involvement in calls, and that of their agent, NDH, relating to that
advice in and around October 2011 and in final form, pursuant to their
request for such opinions from TOBAY, as part of the closing package for the
November 18, 2011 transaction.
12. In June 2012, defendant Scantling believed that the amendment to the Town of
4
Oyster Bay’s concession agreement with S.R.B. Concession, Inc. signed by Town of Oyster Bay
Town Attorney Leonard Genova on or about June 22, 2012 was a valid and binding obligation
upon the Town of Oyster Bay.
Response: McCarter admits this Request.
13. In June 2012, defendant Scantling advised Phoenix Life Insurance Company that
the amendment to the Town of Oyster Bay’s concession agreement with S.R.B. Concession, Inc.
signed by Town of Oyster Bay Town Attorney Leonard Genova on or about June 22, 2012 was a
valid and binding obligation upon the Town of Oyster Bay.
Response: McCarter denies that Scantling himself “advised” Phoenix. McCarter admits
that Attorney Scantling relied upon the extensive advice of TOBAY’s New
York counsel, Harris Beach PLLC, and TOBAY’s own town attorneys as to
the requirements of New York law applicable to the November 18, 2011
transaction at issue in this matter, including TOBAY’s obligations related to
that transaction. McCarter admits that the advice of Harris Beach PLLC and
TOBAY’s town attorney, Frederick Mei, was provided to Plaintiffs through
their own involvement in calls, and that of their agent, NDH, relating to that
advice and in final form, pursuant to their request for such opinions from
TOBAY, as part of the closing package for the June 22, 2012 transaction.
14. Because the amendment to the Town of Oyster Bay’s concession agreement
with S.R.B. Convention & Catering Corp. signed by Town of Oyster Bay Town Attorney
Leonard Genova on or about November 18, 2011 was never formally approved by the Town of
Oyster Bay, it was not a valid and binding obligation of the Town and was unenforceable.
Response: McCarter objects to this Request on the basis that it calls for a legal
conclusion. McCarter further objects to this Request on the grounds that the
terms “formally approved” are undefined, making this Request vague and
ambiguous. Without waiving the foregoing objection, and to the extent an
answer is required, McCarter denies this Request.
15. Because the amendment to the Town of Oyster Bay’s concession agreement
with S.R.B. Concession, Inc. signed by Town of Oyster Bay Town Attorney Leonard Genova on
5
or about June 22, 2012 was never formally approved by the Town of Oyster Bay, it was not a
valid and binding obligation of the Town and was unenforceable.
Response: McCarter objects to this Request on the basis that it calls for a legal
conclusion. McCarter further objects to this Request on the grounds that the
terms “formally approved” are undefined, making this Request vague and
ambiguous. Without waiving the foregoing objection, and to the extent an
answer is required, McCarter denies this Request.
16. Subsequent to June 22, 2012, it was necessary for McCarter & English LLP to
revise the Participation Agreement.
Response: McCarter objects to this Request on the grounds that the term “revise” is
undefined, making this Request vague and ambiguous. Without waiving the
foregoing objection, McCarter admits this Request. The parties to the June
22, 2012 transaction agreed to correct certain incorrect payment dates listed
on one page and on one exhibit of the Participation Agreement and delivered
substitute pages for Phoenix to retain in its files. On July 10, 2012, NDH’s in-
house lawyer, Howard Kurtzberg, emailed Attorney Scantling and Sharon
Mason to say that NDH had noticed an error in the payment dates for the
Beach Loan and that Kurtzberg would circulate a replacement page for the
parties to authorize. Thereafter, on the same day, the parties to the
promissory note underlying the Beach Loan, S.R.B. Concession and NDH,
consented to substituting replacement pages with the correct dates.
17. It was not until August 17, 2012 that McCarter & English LLP notified plaintiff
Phoenix Life Insurance Company of the revision to the Participation Agreement and forwarded to
plaintiff Phoenix Life Insurance Company the completed and corrected paperwork applicable to
the assignment to plaintiff Phoenix Life Insurance Company of the Beach Facility loan
transaction.
Response: McCarter objects to this Request as compound and confusing. McCarter
further objects to this Request to the extent that it improperly attempts to
characterize what took place with regard to the June 22, 2012 transaction.
Without waiving the foregoing objections, McCarter denies this Request
except to admit that Sharon Mason sent a cover letter dated August 17, 2012,
to Phoenix stating that certain incorrect payment dates listed on one page and
on one exhibit of the Participation Agreement had been corrected and that
6
she was delivering substitute pages, along with a closing binder and closing
CD, for Phoenix’s files.
Dated: May 24, 2023
DEFENDANT,
MCCARTER & ENGLISH, LLP
By: /s/ Timothy A. Diemand
Timothy A. Diemand
Joshua N. Taylor
Wiggin and Dana LLP
20 Church Street
Hartford, CT 06103
(860) 297-3700
(860) 297-3799 (fax)
tdiemand@wiggin.com
jtaylor@wiggin.com
Juris No. 67700
Its attorneys
7
CERTIFICATION
I hereby certify that on May 24, 2023, a copy of the foregoing was delivered electronically
or sent via first class mail to all counsel of record as follows:
David S. Golub
Paul A. Slager
SILVER GOLUB & TEITELL LLP
One Landmark Square, 15th Floor
Stamford, CT 06901
dgolub@sgtlaw.com
pslager@sgtlaw.com
/s/ Timothy A. Diemand
Timothy A. Diemand
22888\2\4853-3203-7478.v3
8
EXHIBIT B
DOCKET NO. X07- HHD-CV-16-6070473-S : SUPERIOR COURT
:
PHOENIX LIFE INSURANCE COMPANY, : COMPLEX LITIGATION
ET AL. : DOCKET
: AT HARTFORD
V. :
:
MCCARTER & ENGLISH, LLP, ET AL. : JULY 15, 2022
MCCARTER & ENGLISH, LLP’S AND JAMES SCANTLING’S
ANSWER AND SPECIAL DEFENSES
Defendants McCarter & English, LLP (“McCarter”) and James Scantling (together,
“Defendants”), by and through counsel, hereby answer and respond to the numbered
paragraphs of Plaintiffs’ May 5, 2022 Amended Complaint (the “Complaint”), as follows:
I. PARTIES
1. At all times mentioned herein, plaintiff Phoenix Life Insurance Company
(“Phoenix”) was a corporation organized under the laws of the State of New York, with its
principal place of business in the State of Connecticut. In 2018, Phoenix changed its name
to Nassau Life Insurance Company.
ANSWER: Defendants lack sufficient knowledge or information upon which to
form a belief and therefore leave Plaintiffs to their proof.
2. At all times mentioned herein, plaintiff PHL Variable Insurance Company
(“PHL”) was an affiliate of Phoenix and a corporation organized under the laws of the State
of Connecticut, with its principal place of business in the State of Connecticut.
ANSWER: Defendants lack sufficient knowledge or information upon which to
form a belief and therefore leave Plaintiffs to their proof.
1
3. Defendant McCarter & English LLP (“McCarter”) is a New Jersey limited
liability partnership and a law firm of approximately 400 lawyers. McCarter holds itself out
as employing an approach to the practice of law which requires “dedication” and “constant
attention to many details,” and boasts of having teams of attorneys who “regularly guide
clients” through the “many facets” and “challenges” of state and local contracting and who
have substantial experience representing “lenders and borrowers in substantial public and
private financings, both secured and unsecured.” At all times relevant hereto, McCarter
maintained offices in Boston, Hartford, Stamford, New York, Newark, East Brunswick,
Philadelphia, Wilmington and Washington, DC.
ANSWER: Admit that McCarter & English LLP is a New Jersey limited liability
partnership and a law firm of approximately 400 lawyers, McCarter currently
maintains offices in Boston, Hartford, Stamford, New York, Newark, East
Brunswick, Philadelphia, Wilmington and Washington, DC. Deny remaining
allegations and refer to the materials quoted by Plaintiffs which speak for
themselves.
4. Defendant James G. Scantling (“Scantling”) is an attorney admitted to
practice in the State of Connecticut and has been engaged in the practice of law as a partner
with McCarter in its Hartford, Connecticut office since July 2008. On information and
belief, Scantling is not admitted to the practice of law in the State of New York.
2
ANSWER: Admit that James Scantling is an attorney duly licensed and admitted
to practice in Connecticut, is not admitted in New York, and at the times relevant in
the Complaint was a partner in McCarter’s Hartford office.
II. GENERAL BACKGROUND
5. In or around July 9, 2008, shortly after defendant Scantling joined McCarter,
McCarter, acting through Scantling, and Phoenix, acting through its in-house counsel,
Bradford H. Buck, entered into a general engagement letter (the “Engagement Letter”)
pursuant to which McCarter agree to serve as legal counsel to Phoenix “and its affiliates.”
ANSWER: Admit that McCarter and Phoenix entered into an engagement
agreement, deny that this was a “general” engagement letter and rather that it
contemplated representation in various discrete matters, and refer to letter which
speaks for itself.
6. The Engagement Letter does not identify a particular matter for which
McCarter has been engaged as legal counsel, but instead states: “We have been engaged to
advise your company on various equipment and software leases and financings and similar
matters.”
ANSWER: Admit that McCarter and Phoenix entered into an engagement
agreement, which speaks for itself.
7. The Engagement Letter also states that Scantling “will be the lawyer at the
firm with the primary responsibility for this representation.”
3
ANSWER: Admit that McCarter and Phoenix entered into an engagement
agreement, which speaks for itself.
8. The Engagement Letter recites further that, in prior engagements,
Scantling’s normal practice had been “to look to third parties, rather than to Phoenix, to
pay” the legal fees incurred in the representation of Phoenix and its affiliates, and that
“[McCarter] will continue to do so.”
ANSWER: Admit that McCarter and Phoenix entered into an engagement
agreement, which speaks for itself.
9. Pursuant to the terms of the Engagement Letter, McCarter established an
ongoing attorney-client relationship with Phoenix and its affiliates that began on or about
July 9, 2008 and continued at least through 2013.
ANSWER: Deny any suggestion that McCarter established an ongoing attorney-
client relationship with Phoenix and its affiliates regarding the transactions at issue
that continued through 2013.
10. The reference in the Engagement Letter to McCarter looking to third parties,
rather than Phoenix, to pay the legal fees incurred in McCarter’s representation of Phoenix
and its affiliates describes the usual practice in commercial lending transactions in which
the lender (here, Phoenix or PHL) would have the borrower pay the legal fees incurred by
the lender. In such transactions, it is also commonplace to have a broker or agent, to whom
McCarter’s invoices for legal services would be directed for payment, close the loan and
thereafter assign the loan documents to Phoenix or one of its affiliates.
4
ANSWER: Admit that McCarter and Phoenix entered into an engagement
agreement, which speaks for itself. Leave Plaintiffs to their proof regarding the
“commonplace” and “usual practice” of a borrower paying legal fees incurred by a
lender.
11. NDH Capital Corporation (“NDH”) is a company that had, as of the time of
the events at issue in this lawsuit, established a relationship with PHL and Phoenix as a
loan broker, pursuant to which NDH would identify prospective commercial loan
transactions to present to PHL and Phoenix as potential commercial lending opportunities.
ANSWER: Defendants lack sufficient knowledge or information upon which to
form a belief and therefore leave Plaintiffs to their proof.
12. In the event that Phoenix or PHL elected to proceed with a commercial loan
transaction presented by NDH, the transaction would proceed with NDH as the nominal
lender and with an understanding that NDH would receive a transaction fee for its services
and, immediately after closing, assign the loan documents to Phoenix or the operative
affiliate (here PHL) as the lender.
ANSWER: Defendants lack sufficient knowledge or information upon which to
form a belief and therefore leave Plaintiffs to their proof.
13. The present case involves two loan transactions presented by NDH to
Phoenix and PHL, where NDH acted as the nominal lender with the understanding that
Phoenix or PHL would be the assignee of the loan documents immediately after closing,
and in which McCarter was engaged as legal counsel to represent and to protect the
5
interests of Phoenix or PHL, as the case may be, in the transactions and in which McCarter
would present its invoices for legal services in such transactions to NDH for payment.
ANSWER: Admit that the two loan transactions in this action involved NDH, and
that McCarter represented Phoenix and PHL in the two loan transactions. Deny the
remaining allegations.
14. In particular, this action concerns McCarter and Scantling’s acts, omissions
and contractual undertakings on behalf of PHL and Phoenix in connection with:
a. A certain loan agreement entered into in 2011 (the “Golf Course
Loan”) pursuant to which NDH, acting as the nominal lender and as a
broker for PHL, made a loan in the amount of $7,843,138.08,
inclusive of interest, to S.R.B. Convention and Catering Corp. a/k/a
SRB Convention, Inc. (“SRB Catering”) as the borrower, which loan
was funded by PHL and subsequent to funding was assigned by NDH
to PHL; and
b. A certain loan agreement entered into in 2012 (the “Beach Loan”),
pursuant to which NDH, acting as the nominal lender and as a broker
for Phoenix, made a loan in the amount of $12,273,748.80, inclusive
of interest, to SRB Concession, Inc. (“SRB Concession”) as the
borrower, which loan was funded by Phoenix and subsequent to
funding was assigned by NDH to Phoenix.
ANSWER: Admit that this action involves the Golf Course Loan and Beach Loan,
and refers to the loan documents which speak for themselves. Deny the remaining
allegations.
15. The Golf Course Loan and the Beach Loan were transactions in which the
borrowers obtained financing in order to perform their respective obligations in connection
with agreements each had entered into with the Town of Oyster Bay, NY (“TOBAY”), a
6
New York municipality located within Nassau County, NY, to operate certain facilities,
construct certain capital improvements, and provide certain services to TOBAY.
ANSWER: Admit that the Golf Course Loan and Beach Loan were transactions
involving the Town of Oyster Bay (“TOBAY”) and refer to the documents
associated with those loans which speak for themselves.
III. THE GOLF COURSE AGREEMENT AND LOAN
A. The Golf Course Agreement Between TOBAY and SRB Catering
16. At all times relevant hereto, TOBAY has owned and operated a municipal
golf course, which is the site of several dining and concession facilities (hereinafter
collectively referred to as the “Golf Course Facilities”).
ANSWER: Admit.
17. On or about October 30, 2000, TOBAY entered into an agreement with SRB
Catering to operate and to improve the Golf Course Facilities (the “Golf Course
Agreement”).
ANSWER: Admit.
18. Pursuant to the Golf Course Agreement, SRB Catering was to operate the
Golf Course Facilities and to remit payments to TOBAY for the privilege of doing so.
ANSWER: Admit that TOBAY and SRB Catering entered the Golf Course
Agreement and refer to that agreement which speaks for itself.
7
19. The Golf Course Agreement had a twenty year term, commencing on
January 1, 2001 and ending on December 31, 2020. It was also further subject to an option,
exercisable only by TOBAY, for one ten (10) year renewal.
ANSWER: Admit that TOBAY and SRB Catering entered the Golf Course
Agreement and refer to that agreement which speaks for itself.
20. Pursuant to the Golf Course Agreement, SRB Catering was required to make
specific capital improvements to the Golf Course Facilities with a total value of
approximately $2,097,000. These improvements were to be made within the first three (3)
years of the initial term of the Golf Course Agreement, pursuant to plans, specifications
and a schedule approved by TOBAY. Upon their completion and acceptance, TOBAY
would own all of these improvements.
ANSWER: Admit that TOBAY and SRB Catering entered the Golf Course
Agreement and refer to that agreement which speaks for itself.
21. On or about April 19, 2005, TOBAY and SRB Catering executed an
amendment to the Golf Course Agreement (“Golf Course Agreement Amendment I”). One
of Golf Course Amendment I’s stated purposes was “to accept the major capital
improvements heretofore performed” and “to provide for future improvements.”
ANSWER: Admit that TOBAY and SRB Catering entered the Golf Course
Agreement Amendment I and refer to that agreement which speaks for itself.
22. Golf Course Amendment I explicitly represented that, even though SRB
Catering had, pursuant to the terms of the Golf Course Agreement, only been obligated to
8
make $2,097,000 in capital improvements, it had already, by the time Golf Course
Agreement Amendment I was signed, made total improvements having a value of
$4,600,000.00. Golf Course Agreement Amendment I exercised TOBAY's ten year
renewal term as contained within the Golf Course Agreement.
ANSWER: Admit that TOBAY and SRB Catering entered the Golf Course
Agreement Amendment I and refer to that agreement which speaks for itself.
23. Subsequent to TOBAY and SRB's Catering’s execution of Golf Course
Agreement Amendment I, SRB Catering purportedly made further improvements to the
Golf Course Facilities totaling approximately $360,000 and, in addition, expressed a desire
and a willingness to make further improvements to the Golf Course Facilities.
ANSWER: Defendants lack sufficient knowledge or information upon which to
form a belief and therefore leave Plaintiffs to their proof.
24. Consequently, on or about September 16, 2008, TOBAY and SRB Catering
executed a further amendment to the Golf Course Agreement (“Golf Course Agreement
Amendment II”).
ANSWER: Admit that TOBAY and SRB Catering entered the Golf Course
Agreement Amendment II and refer to that agreement which speaks for itself.
25. Pursuant to Golf Course Agreement Amendment II, SRB Catering obligated
itself to make an additional $3,250,000 in improvements to the Golf Course Facilities
before December 31, 2011. Golf Course Amendment II further extended the term of the
Golf Course Agreement by an additional twenty (20) years, through December 31, 2049.
9
ANSWER: Admit that TOBAY and SRB Catering entered the Golf Course
Agreement Amendment II and refer to that agreement which speaks for itself.
B. The Golf Course Loan
26. SRB Catering determined that it would require financing to complete the
improvements required by the terms of the (amended) Golf Course Agreement and entered
into negotiations with NDH to obtain such financing.
ANSWER: Defendants lack sufficient knowledge or information upon which to
form a belief and therefore leave Plaintiffs to their proof.
27. NDH, in actuality, was acting as a loan broker for PHL, a fact that was fully
disclosed to SRB Catering from the inception of the negotiations and was fully disclosed
and known to all parties involved in the transactions and their counsel, including McCarter
and Scantling.
ANSWER: Admit that Defendants knew of NDH’s role as PHL’s agent.
Defendants lack sufficient knowledge or information upon which to form a belief as
to the remaining allegations and therefore leave Plaintiffs to their proof.
28. Throughout the loan negotiation processes, SRB Cat
Preview
No.: X07-HHD-CV16-6070473 : SUPERIOR COURT : PHL VARIABLE INSURANCE COMPANY : COMPLEX LITIGATION DOCKET and PHOENIX LIFE INSURANCE COMPANY, : n/k/a NASSAU LIFE INSURANCE COMPANY, : : J.D. OF HARTFORD Plaintiffs, : : v. : AT HARTFORD : McCARTER & ENGLISH, LLP and JAMES : G. SCANTLING, : : Defendants. : AFFIDAVIT OF DAVID S. GOLUB David S. Golub, being duly sworn, does depose and say: 1. I am a member of the law firm of Silver Golub & Teitell LLP, attorneys for Plaintiffs in this action. I submit this Affidavit to identify and authenticate exhibits referenced in Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Summary Judgment, filed this day. 2. Attached as Exhibit A1 and A2 are Defendant Scantling’s Revised Objections and Responses to Plaintiffs’ Revised Requests for Admission (A1), and Defendant McCarter & English, LLP’s Revised Objections and Responses to Plaintiffs’ Revised Requests for Admission (A2), served by Defendants on May 24, 2023 in response to Plaintiffs’ Requests for Admission in this action. 3. Attached as Exhibit B is Defendants’ July 15, 2022 Answer and Special Defenses to Plaintiffs’ Amended Complaint [Dkt. Entry # 194]. 4. Attached as Exhibit C is the July 9, 2019 decision issued by the United States Court of Appeals in PHL Variable Ins. Co. v. Town of Oyster Bay, 929 F.3d 79 (2d Cir. 2019). 5. Attached as Exhibit D is the August 19, 2020 decision of the New York Appellate Division, Second Department, in Phoenix Life Ins. Co. v. Town of Oyster Bay, 129 N.Y.S.3d 451, 186 A.D.3d 763 (2d Dept. 2020). 6. Attached as Exhibit E is a Stipulation of the parties in this action concerning the authenticity of the Mccarter & English LLP internal time records attached hereto as Exhibits F and G. 7. Attached as Exhibit F are defendant McCarter & English LLP's internal time records pertaining to the Golf Course Loan transaction at issue in this action, produced by Mccarter during discovery in this action (as discovery documents# ME 6649-54). 8. Attached as Exhibit G are defendant McCarter & English LLP 's internal time records pertaining to the Beach Facility Loan transaction at issue in this action, produced by Mccarter during discovery in this action (as discovery documents# ME 6643-48). 9. Attached as Exhibit His the Return of Service {Dkt. Entry# 100.30) filed in this action by Conn St. Marshal John J. Murray attesting under oath that Defendants were served with Plaintiffs' Summons and Complaint in this action on August 4, 2016. /--//v= DAVID S. GOLUB Sworn and subscribed to, before me, this 18th day of July, 2023. ��� OF THE SUPERIOR COURT 2 EXHIBIT A-1 DOCKET NO. X07- HHD-CV-16-6070473-S : SUPERIOR COURT : PHOENIX LIFE INSURANCE COMPANY, : COMPLEX LITIGATION ET AL. : DOCKET : AT HARTFORD V. : : MCCARTER & ENGLISH, LLP, ET AL. : MAY 24, 2023 DEFENDANT JAMES G. SCANTLING’S REVISED OBJECTIONS AND RESPONSES TO PLAINTIFFS’ REVISED REQUESTS FOR ADMISSION Defendant James G. Scantling (“Scantling”) responds to Plaintiffs’ Revised Requests for Admission (“Requests for Admissions”) as follows: Pursuant to Connecticut Practice Book §§ 13-22, 13-23 and 13-24, Defendant Scantling, by and through his attorneys, hereby submits his objections and answers to Plaintiffs’ Requests for Admissions. All objections and answers are based on current knowledge and belief. Scantling makes his objections without waiver of any rights. Scantling expressly reserves the right, but does not assume any obligation, to supplement, amend, or clarify the content of the objections and answers herein, beyond those required by the Practice Book. Nothing in these objections shall be deemed to be a waiver or admission of any act in any other stage of this action. All objections are reserved and may be interposed at any time in the future. The objections and answers are given without prejudice to Scantling’s right to supplement these objections and answers pursuant to Practice Book § 13-15. Requests 1. At all times from 2011 to date, New York State Town Law § 64(6) has provided that New York town boards “[m]ay award contracts for any of the purposes authorized by law and the same shall be executed by the supervisor in the name of the town after approval by the 1 town board.” Response: Scantling objects to this Request on the basis that it calls for a legal conclusion. To the extent an answer is required, Scantling admits that this Request quotes from New York State Town Law § 64(6). 2. At all times from 2011 to date, New York case law has provided that “Town Law 64(6) demands that a formal resolution be passed by the Town Board and executed by the Town Supervisor in the name of the Town before a Town can be bound by any contract.” Response: Scantling objects to this Request on the basis that it calls for a legal conclusion. Scantling further objects to this Request on the grounds that the term “New York case law” is undefined, making this Request vague and ambiguous. Scantling further objects to this Request on the grounds that it purports to quote “New York case law” without citation or reference, making the Request vague and ambiguous. Scantling further objects that this Request is unduly burdensome, as it would require a complete survey of all “New York case law” referencing Town Law 64(6). 3. At all times from 2011 to date, New York law has been “abundantly clear” that “a [New York] town cannot be bound contractually unless the contract has been approved by the town board and executed by the supervisor in the town’s name.” Response: Scantling objects to this Request on the basis that it calls for a legal conclusion. Scantling further objects to this Request on the grounds that it purports to quote from a source or sources without citation or reference, making the Request vague and ambiguous. Scantling further objects to this Request on the grounds that the term “New York law” is undefined, making this Request vague and ambiguous. Scantling further objects that this Request is unduly burdensome, as it would require a complete survey of all “New York law.” 4. At all times from 2011 to date, New York case law has provided that “absent strict compliance with the formal requirements of [Town Law § 64(6)], no valid contract binding a [New York] Town may be found to exist.” Response: Scantling objects to this Request on the basis that it calls for a legal conclusion. Scantling further objects to this Request on the grounds that the term “New York case law” is undefined, making this Request vague and 2 ambiguous. Scantling further objects to this Request on the grounds that it purports to quote “New York case law” without citation or reference, making the Request vague and ambiguous. Scantling further objects that this Request is unduly burdensome, as it would require a complete survey of all “New York case law.” 5. Defendant James G. Scantling was unaware of the provisions of New York State Town Law § 64(6) prior to January 1, 2013. Response: Scantling admits he was unaware of the provisions of New York State Town Law § 64(6). 6. The Town of Oyster Bay Town Board did not formally approve the amendment to the Town’s concession agreement with S.R.B. Convention & Catering Corp. signed by Town Attorney Leonard Genova on or about November 18, 2011. Response: Scantling objects to this Request on the basis that it calls for a legal conclusion. Scantling further objects to this Request on the grounds that the terms “formally approve” are undefined, making this Request vague and ambiguous. Without waiving the foregoing objections, Scantling denies this Request. 7. The Town of Oyster Bay Town Board did not formally approve the amendment to the Town’s concession agreement with S.R.B. Concession, Inc. signed by Town Attorney Leonard Genova on or about June 22, 2012. Response: Scantling objects to this Request on the basis that it calls for a legal conclusion. Scantling further objects to this Request on the grounds that the terms “formally approve” are undefined, making this Request vague and ambiguous. Without waiving the foregoing objections, Scantling denies this Request. 8. The Town of Oyster Bay Town Supervisor did not sign the amendment to the Town’s concession agreement with S.R.B. Convention & Catering Corp. It was signed by Town Attorney Leonard Genova on or about November 18, 2011. Response: Scantling admits that TOBAY’s Town Supervisor did not sign the amendment that was included in the closing package, which was signed by 3 Town Attorney Leonard Genova on or about November 18, 2011. 9. The Town of Oyster Bay Town Supervisor did not sign the amendment to the Town’s concession agreement with S.R.B. Concession, Inc. It was signed by Town Attorney Leonard Genova on or about June 22, 2012. Response: Scantling admits that TOBAY’s Town Supervisor did not sign the amendment that was included in the closing package, which was signed by Town Attorney Leonard Genova on or about June 22, 2012. 10. In November 2011, defendant Scantling believed that the amendment to the Town of Oyster Bay’s concession agreement with S.R.B. Convention & Catering Corp. signed by Town of Oyster Bay Town Attorney Leonard Genova on or about November 18, 2011 was a valid and binding obligation upon the Town of Oyster Bay. Response: Scantling admits this Request. 11. In November 2011, defendant Scantling advised PHL Variable Insurance Company that the amendment to the Town of Oyster Bay’s concession agreement with S.R.B. Convention & Catering Corp. signed by Town of Oyster Bay Town Attorney Leonard Genova on or about November 18, 2011 was a valid and binding obligation upon the Town of Oyster Bay. Response: Scantling denies that he himself “advised” PHL. Scantling admits that he relied upon the extensive advice of TOBAY’s New York counsel, Harris Beach PLLC, and TOBAY’s own town attorneys as to the requirements of New York law applicable to the November 18, 2011 transaction at issue in this matter, including TOBAY’s obligations related to that transaction. Scantling admits that the advice of Harris Beach PLLC and TOBAY’s town attorney, Frederick Mei, was provided to Plaintiffs through their own involvement in calls, and that of their agent, NDH, relating to that advice in and around October 2011 and in final form, pursuant to their request for such opinions from TOBAY, as part of the closing package for the November 18, 2011 transaction. 12. In June 2012, defendant Scantling believed that the amendment to the Town of 4 Oyster Bay’s concession agreement with S.R.B. Concession, Inc. signed by Town of Oyster Bay Town Attorney Leonard Genova on or about June 22, 2012 was a valid and binding obligation upon the Town of Oyster Bay. Response: Scantling admits this Request. 13. In June 2012, defendant Scantling advised Phoenix Life Insurance Company that the amendment to the Town of Oyster Bay’s concession agreement with S.R.B. Concession, Inc. signed by Town of Oyster Bay Town Attorney Leonard Genova on or about June 22, 2012 was a valid and binding obligation upon the Town of Oyster Bay. Response: Scantling denies that he himself “advised” Phoenix. Scantling admits that he relied upon the extensive advice of TOBAY’s New York counsel, Harris Beach PLLC, and TOBAY’s own town attorneys as to the requirements of New York law applicable to the November 18, 2011 transaction at issue in this matter, including TOBAY’s obligations related to that transaction. Scantling admits that the advice of Harris Beach PLLC and TOBAY’s town attorney, Frederick Mei, was provided to Plaintiffs through their own involvement in calls, and that of their agent, NDH, relating to that advice and in final form, pursuant to their request for such opinions from TOBAY, as part of the closing package for the June 22, 2012 transaction. 14. Because the amendment to the Town of Oyster Bay’s concession agreement with S.R.B. Convention & Catering Corp. signed by Town of Oyster Bay Town Attorney Leonard Genova on or about November 18, 2011 was never formally approved by the Town of Oyster Bay, it was not a valid and binding obligation of the Town and was unenforceable. Response: Scantling objects to this Request on the basis that it calls for a legal conclusion. Scantling further objects to this Request on the grounds that the terms “formally approved” are undefined, making this Request vague and ambiguous. Without waiving the foregoing objection, and to the extent an answer is required, Scantling denies this Request. 15. Because the amendment to the Town of Oyster Bay’s concession agreement with S.R.B. Concession, Inc. signed by Town of Oyster Bay Town Attorney Leonard Genova on 5 or about June 22, 2012 was never formally approved by the Town of Oyster Bay, it was not a valid and binding obligation of the Town and was unenforceable. Response: Scantling objects to this Request on the basis that it calls for a legal conclusion. Scantling further objects to this Request on the grounds that the terms “formally approved” are undefined, making this Request vague and ambiguous. Without waiving the foregoing objection, and to the extent an answer is required, Scantling denies this Request. Dated: May 24, 2023 DEFENDANT, JAMES G. SCANTLING By: /s/ Timothy A. Diemand Timothy A. Diemand Joshua N. Taylor Wiggin and Dana LLP 20 Church Street Hartford, CT 06103 (860) 297-3700 (860) 297-3799 (fax) tdiemand@wiggin.com jtaylor@wiggin.com Juris No. 67700 Its attorneys 6 CERTIFICATION I hereby certify that on May 24, 2023, a copy of the foregoing was delivered electronically or sent via first class mail to all counsel of record as follows: David S. Golub Paul A. Slager SILVER GOLUB & TEITELL LLP One Landmark Square, 15th Floor Stamford, CT 06901 dgolub@sgtlaw.com pslager@sgtlaw.com /s/ Timothy A. Diemand Timothy A. Diemand 22888\2\4858-0075-1462.v1 7 EXHIBIT A-2 DOCKET NO. X07- HHD-CV-16-6070473-S : SUPERIOR COURT : PHOENIX LIFE INSURANCE COMPANY, : COMPLEX LITIGATION ET AL. : DOCKET : AT HARTFORD V. : : MCCARTER & ENGLISH, LLP, ET AL. : MAY 24, 2023 DEFENDANT MCCARTER & ENGLISH, LLP’S REVISED OBJECTIONS AND RESPONSES TO PLAINTIFFS’ REVISED REQUESTS FOR ADMISSION Defendant McCarter & English, LLP (“McCarter”) responds to Plaintiffs’ Revised Requests for Admission (“Requests for Admissions”) as follows: Pursuant to Connecticut Practice Book §§ 13-22, 13-23 and 13-24, Defendant McCarter, by and through its attorneys, hereby submits its objections and answers to Plaintiffs’ Requests for Admissions. All objections and answers are based on current knowledge and belief. McCarter makes its objections without waiver of any rights. McCarter expressly reserves the right, but does not assume any obligation, to supplement, amend, or clarify the content of the objections and answers herein, beyond those required by the Practice Book. Nothing in these objections shall be deemed to be a waiver or admission of any act in any other stage of this action. All objections are reserved and may be interposed at any time in the future. The objections and answers are given without prejudice to McCarter’s right to supplement these objections and answers pursuant to Practice Book § 13-15. Requests 1. At all times from 2011 to date, New York State Town Law § 64(6) has provided that New York town boards “[m]ay award contracts for any of the purposes authorized by law and the same shall be executed by the supervisor in the name of the town after approval by the 1 town board.” Response: McCarter objects to this Request on the basis that it calls for a legal conclusion. To the extent an answer is required, McCarter admits that this Request quotes from New York State Town Law § 64(6). 2. At all times from 2011 to date, New York case law has provided that “Town Law 64(6) demands that a formal resolution be passed by the Town Board and executed by the Town Supervisor in the name of the Town before a Town can be bound by any contract.” Response: McCarter objects to this Request on the basis that it calls for a legal conclusion. McCarter further objects to this Request on the grounds that the term “New York case law” is undefined, making this Request vague and ambiguous. McCarter further objects to this Request on the grounds that it purports to quote “New York case law” without citation or reference, making the Request vague and ambiguous. McCarter further objects that this Request is unduly burdensome, as it would require a complete survey of all “New York case law” referencing Town Law 64(6). 3. At all times from 2011 to date, New York law has been “abundantly clear” that “a [New York] town cannot be bound contractually unless the contract has been approved by the town board and executed by the supervisor in the town’s name.” Response: McCarter objects to this Request on the basis that it calls for a legal conclusion. McCarter further objects to this Request on the grounds that it purports to quote from a source or sources without citation or reference, making the Request vague and ambiguous. McCarter further objects to this Request on the grounds that the term “New York law” is undefined, making this Request vague and ambiguous. McCarter further objects that this Request is unduly burdensome, as it would require a complete survey of all “New York law.” 4. At all times from 2011 to date, New York case law has provided that “absent strict compliance with the formal requirements of [Town Law § 64(6)], no valid contract binding a [New York] Town may be found to exist.” Response: McCarter objects to this Request on the basis that it calls for a legal conclusion. McCarter further objects to this Request on the grounds that the term “New York case law” is undefined, making this Request vague and 2 ambiguous. McCarter further objects to this Request on the grounds that it purports to quote “New York case law” without citation or reference, making the Request vague and ambiguous. McCarter further objects that this Request is unduly burdensome, as it would require a complete survey of all “New York case law.” 5. Defendant James G. Scantling was unaware of the provisions of New York State Town Law § 64(6) prior to January 1, 2013. Response: McCarter admits that Attorney Scantling was unaware of the provisions of New York State Town Law § 64(6). 6. The Town of Oyster Bay Town Board did not formally approve the amendment to the Town’s concession agreement with S.R.B. Convention & Catering Corp. signed by Town Attorney Leonard Genova on or about November 18, 2011. Response: McCarter objects to this Request on the basis that it calls for a legal conclusion. McCarter further objects to this Request on the grounds that the terms “formally approve” are undefined, making this Request vague and ambiguous. Without waiving the foregoing objections, McCarter denies this Request. 7. The Town of Oyster Bay Town Board did not formally approve the amendment to the Town’s concession agreement with S.R.B. Concession, Inc. signed by Town Attorney Leonard Genova on or about June 22, 2012. Response: McCarter objects to this Request on the basis that it calls for a legal conclusion. McCarter further objects to this Request on the grounds that the terms “formally approve” are undefined, making this Request vague and ambiguous. Without waiving the foregoing objections, McCarter denies this Request. 8. The Town of Oyster Bay Town Supervisor did not sign the amendment to the Town’s concession agreement with S.R.B. Convention & Catering Corp. It was signed by Town Attorney Leonard Genova on or about November 18, 2011. Response: McCarter admits that TOBAY’s Town Supervisor did not sign the amendment that was included in the closing package, which was signed by 3 Town Attorney Leonard Genova on or about November 18, 2011. 9. The Town of Oyster Bay Town Supervisor did not sign the amendment to the Town’s concession agreement with S.R.B. Concession, Inc. It was signed by Town Attorney Leonard Genova on or about June 22, 2012. Response: McCarter admits that TOBAY’s Town Supervisor did not sign the amendment that was included in the closing package, which was signed by Town Attorney Leonard Genova on or about June 22, 2012. 10. In November 2011, defendant Scantling believed that the amendment to the Town of Oyster Bay’s concession agreement with S.R.B. Convention & Catering Corp. signed by Town of Oyster Bay Town Attorney Leonard Genova on or about November 18, 2011 was a valid and binding obligation upon the Town of Oyster Bay. Response: McCarter admits this Request. 11. In November 2011, defendant Scantling advised PHL Variable Insurance Company that the amendment to the Town of Oyster Bay’s concession agreement with S.R.B. Convention & Catering Corp. signed by Town of Oyster Bay Town Attorney Leonard Genova on or about November 18, 2011 was a valid and binding obligation upon the Town of Oyster Bay. Response: McCarter denies that Scantling himself “advised” PHL. McCarter admits that Attorney Scantling relied upon the extensive advice of TOBAY’s New York counsel, Harris Beach PLLC, and TOBAY’s own town attorneys as to the requirements of New York law applicable to the November 18, 2011 transaction at issue in this matter, including TOBAY’s obligations related to that transaction. McCarter admits that the advice of Harris Beach PLLC and TOBAY’s town attorney, Frederick Mei, was provided to Plaintiffs through their own involvement in calls, and that of their agent, NDH, relating to that advice in and around October 2011 and in final form, pursuant to their request for such opinions from TOBAY, as part of the closing package for the November 18, 2011 transaction. 12. In June 2012, defendant Scantling believed that the amendment to the Town of 4 Oyster Bay’s concession agreement with S.R.B. Concession, Inc. signed by Town of Oyster Bay Town Attorney Leonard Genova on or about June 22, 2012 was a valid and binding obligation upon the Town of Oyster Bay. Response: McCarter admits this Request. 13. In June 2012, defendant Scantling advised Phoenix Life Insurance Company that the amendment to the Town of Oyster Bay’s concession agreement with S.R.B. Concession, Inc. signed by Town of Oyster Bay Town Attorney Leonard Genova on or about June 22, 2012 was a valid and binding obligation upon the Town of Oyster Bay. Response: McCarter denies that Scantling himself “advised” Phoenix. McCarter admits that Attorney Scantling relied upon the extensive advice of TOBAY’s New York counsel, Harris Beach PLLC, and TOBAY’s own town attorneys as to the requirements of New York law applicable to the November 18, 2011 transaction at issue in this matter, including TOBAY’s obligations related to that transaction. McCarter admits that the advice of Harris Beach PLLC and TOBAY’s town attorney, Frederick Mei, was provided to Plaintiffs through their own involvement in calls, and that of their agent, NDH, relating to that advice and in final form, pursuant to their request for such opinions from TOBAY, as part of the closing package for the June 22, 2012 transaction. 14. Because the amendment to the Town of Oyster Bay’s concession agreement with S.R.B. Convention & Catering Corp. signed by Town of Oyster Bay Town Attorney Leonard Genova on or about November 18, 2011 was never formally approved by the Town of Oyster Bay, it was not a valid and binding obligation of the Town and was unenforceable. Response: McCarter objects to this Request on the basis that it calls for a legal conclusion. McCarter further objects to this Request on the grounds that the terms “formally approved” are undefined, making this Request vague and ambiguous. Without waiving the foregoing objection, and to the extent an answer is required, McCarter denies this Request. 15. Because the amendment to the Town of Oyster Bay’s concession agreement with S.R.B. Concession, Inc. signed by Town of Oyster Bay Town Attorney Leonard Genova on 5 or about June 22, 2012 was never formally approved by the Town of Oyster Bay, it was not a valid and binding obligation of the Town and was unenforceable. Response: McCarter objects to this Request on the basis that it calls for a legal conclusion. McCarter further objects to this Request on the grounds that the terms “formally approved” are undefined, making this Request vague and ambiguous. Without waiving the foregoing objection, and to the extent an answer is required, McCarter denies this Request. 16. Subsequent to June 22, 2012, it was necessary for McCarter & English LLP to revise the Participation Agreement. Response: McCarter objects to this Request on the grounds that the term “revise” is undefined, making this Request vague and ambiguous. Without waiving the foregoing objection, McCarter admits this Request. The parties to the June 22, 2012 transaction agreed to correct certain incorrect payment dates listed on one page and on one exhibit of the Participation Agreement and delivered substitute pages for Phoenix to retain in its files. On July 10, 2012, NDH’s in- house lawyer, Howard Kurtzberg, emailed Attorney Scantling and Sharon Mason to say that NDH had noticed an error in the payment dates for the Beach Loan and that Kurtzberg would circulate a replacement page for the parties to authorize. Thereafter, on the same day, the parties to the promissory note underlying the Beach Loan, S.R.B. Concession and NDH, consented to substituting replacement pages with the correct dates. 17. It was not until August 17, 2012 that McCarter & English LLP notified plaintiff Phoenix Life Insurance Company of the revision to the Participation Agreement and forwarded to plaintiff Phoenix Life Insurance Company the completed and corrected paperwork applicable to the assignment to plaintiff Phoenix Life Insurance Company of the Beach Facility loan transaction. Response: McCarter objects to this Request as compound and confusing. McCarter further objects to this Request to the extent that it improperly attempts to characterize what took place with regard to the June 22, 2012 transaction. Without waiving the foregoing objections, McCarter denies this Request except to admit that Sharon Mason sent a cover letter dated August 17, 2012, to Phoenix stating that certain incorrect payment dates listed on one page and on one exhibit of the Participation Agreement had been corrected and that 6 she was delivering substitute pages, along with a closing binder and closing CD, for Phoenix’s files. Dated: May 24, 2023 DEFENDANT, MCCARTER & ENGLISH, LLP By: /s/ Timothy A. Diemand Timothy A. Diemand Joshua N. Taylor Wiggin and Dana LLP 20 Church Street Hartford, CT 06103 (860) 297-3700 (860) 297-3799 (fax) tdiemand@wiggin.com jtaylor@wiggin.com Juris No. 67700 Its attorneys 7 CERTIFICATION I hereby certify that on May 24, 2023, a copy of the foregoing was delivered electronically or sent via first class mail to all counsel of record as follows: David S. Golub Paul A. Slager SILVER GOLUB & TEITELL LLP One Landmark Square, 15th Floor Stamford, CT 06901 dgolub@sgtlaw.com pslager@sgtlaw.com /s/ Timothy A. Diemand Timothy A. Diemand 22888\2\4853-3203-7478.v3 8 EXHIBIT B DOCKET NO. X07- HHD-CV-16-6070473-S : SUPERIOR COURT : PHOENIX LIFE INSURANCE COMPANY, : COMPLEX LITIGATION ET AL. : DOCKET : AT HARTFORD V. : : MCCARTER & ENGLISH, LLP, ET AL. : JULY 15, 2022 MCCARTER & ENGLISH, LLP’S AND JAMES SCANTLING’S ANSWER AND SPECIAL DEFENSES Defendants McCarter & English, LLP (“McCarter”) and James Scantling (together, “Defendants”), by and through counsel, hereby answer and respond to the numbered paragraphs of Plaintiffs’ May 5, 2022 Amended Complaint (the “Complaint”), as follows: I. PARTIES 1. At all times mentioned herein, plaintiff Phoenix Life Insurance Company (“Phoenix”) was a corporation organized under the laws of the State of New York, with its principal place of business in the State of Connecticut. In 2018, Phoenix changed its name to Nassau Life Insurance Company. ANSWER: Defendants lack sufficient knowledge or information upon which to form a belief and therefore leave Plaintiffs to their proof. 2. At all times mentioned herein, plaintiff PHL Variable Insurance Company (“PHL”) was an affiliate of Phoenix and a corporation organized under the laws of the State of Connecticut, with its principal place of business in the State of Connecticut. ANSWER: Defendants lack sufficient knowledge or information upon which to form a belief and therefore leave Plaintiffs to their proof. 1 3. Defendant McCarter & English LLP (“McCarter”) is a New Jersey limited liability partnership and a law firm of approximately 400 lawyers. McCarter holds itself out as employing an approach to the practice of law which requires “dedication” and “constant attention to many details,” and boasts of having teams of attorneys who “regularly guide clients” through the “many facets” and “challenges” of state and local contracting and who have substantial experience representing “lenders and borrowers in substantial public and private financings, both secured and unsecured.” At all times relevant hereto, McCarter maintained offices in Boston, Hartford, Stamford, New York, Newark, East Brunswick, Philadelphia, Wilmington and Washington, DC. ANSWER: Admit that McCarter & English LLP is a New Jersey limited liability partnership and a law firm of approximately 400 lawyers, McCarter currently maintains offices in Boston, Hartford, Stamford, New York, Newark, East Brunswick, Philadelphia, Wilmington and Washington, DC. Deny remaining allegations and refer to the materials quoted by Plaintiffs which speak for themselves. 4. Defendant James G. Scantling (“Scantling”) is an attorney admitted to practice in the State of Connecticut and has been engaged in the practice of law as a partner with McCarter in its Hartford, Connecticut office since July 2008. On information and belief, Scantling is not admitted to the practice of law in the State of New York. 2 ANSWER: Admit that James Scantling is an attorney duly licensed and admitted to practice in Connecticut, is not admitted in New York, and at the times relevant in the Complaint was a partner in McCarter’s Hartford office. II. GENERAL BACKGROUND 5. In or around July 9, 2008, shortly after defendant Scantling joined McCarter, McCarter, acting through Scantling, and Phoenix, acting through its in-house counsel, Bradford H. Buck, entered into a general engagement letter (the “Engagement Letter”) pursuant to which McCarter agree to serve as legal counsel to Phoenix “and its affiliates.” ANSWER: Admit that McCarter and Phoenix entered into an engagement agreement, deny that this was a “general” engagement letter and rather that it contemplated representation in various discrete matters, and refer to letter which speaks for itself. 6. The Engagement Letter does not identify a particular matter for which McCarter has been engaged as legal counsel, but instead states: “We have been engaged to advise your company on various equipment and software leases and financings and similar matters.” ANSWER: Admit that McCarter and Phoenix entered into an engagement agreement, which speaks for itself. 7. The Engagement Letter also states that Scantling “will be the lawyer at the firm with the primary responsibility for this representation.” 3 ANSWER: Admit that McCarter and Phoenix entered into an engagement agreement, which speaks for itself. 8. The Engagement Letter recites further that, in prior engagements, Scantling’s normal practice had been “to look to third parties, rather than to Phoenix, to pay” the legal fees incurred in the representation of Phoenix and its affiliates, and that “[McCarter] will continue to do so.” ANSWER: Admit that McCarter and Phoenix entered into an engagement agreement, which speaks for itself. 9. Pursuant to the terms of the Engagement Letter, McCarter established an ongoing attorney-client relationship with Phoenix and its affiliates that began on or about July 9, 2008 and continued at least through 2013. ANSWER: Deny any suggestion that McCarter established an ongoing attorney- client relationship with Phoenix and its affiliates regarding the transactions at issue that continued through 2013. 10. The reference in the Engagement Letter to McCarter looking to third parties, rather than Phoenix, to pay the legal fees incurred in McCarter’s representation of Phoenix and its affiliates describes the usual practice in commercial lending transactions in which the lender (here, Phoenix or PHL) would have the borrower pay the legal fees incurred by the lender. In such transactions, it is also commonplace to have a broker or agent, to whom McCarter’s invoices for legal services would be directed for payment, close the loan and thereafter assign the loan documents to Phoenix or one of its affiliates. 4 ANSWER: Admit that McCarter and Phoenix entered into an engagement agreement, which speaks for itself. Leave Plaintiffs to their proof regarding the “commonplace” and “usual practice” of a borrower paying legal fees incurred by a lender. 11. NDH Capital Corporation (“NDH”) is a company that had, as of the time of the events at issue in this lawsuit, established a relationship with PHL and Phoenix as a loan broker, pursuant to which NDH would identify prospective commercial loan transactions to present to PHL and Phoenix as potential commercial lending opportunities. ANSWER: Defendants lack sufficient knowledge or information upon which to form a belief and therefore leave Plaintiffs to their proof. 12. In the event that Phoenix or PHL elected to proceed with a commercial loan transaction presented by NDH, the transaction would proceed with NDH as the nominal lender and with an understanding that NDH would receive a transaction fee for its services and, immediately after closing, assign the loan documents to Phoenix or the operative affiliate (here PHL) as the lender. ANSWER: Defendants lack sufficient knowledge or information upon which to form a belief and therefore leave Plaintiffs to their proof. 13. The present case involves two loan transactions presented by NDH to Phoenix and PHL, where NDH acted as the nominal lender with the understanding that Phoenix or PHL would be the assignee of the loan documents immediately after closing, and in which McCarter was engaged as legal counsel to represent and to protect the 5 interests of Phoenix or PHL, as the case may be, in the transactions and in which McCarter would present its invoices for legal services in such transactions to NDH for payment. ANSWER: Admit that the two loan transactions in this action involved NDH, and that McCarter represented Phoenix and PHL in the two loan transactions. Deny the remaining allegations. 14. In particular, this action concerns McCarter and Scantling’s acts, omissions and contractual undertakings on behalf of PHL and Phoenix in connection with: a. A certain loan agreement entered into in 2011 (the “Golf Course Loan”) pursuant to which NDH, acting as the nominal lender and as a broker for PHL, made a loan in the amount of $7,843,138.08, inclusive of interest, to S.R.B. Convention and Catering Corp. a/k/a SRB Convention, Inc. (“SRB Catering”) as the borrower, which loan was funded by PHL and subsequent to funding was assigned by NDH to PHL; and b. A certain loan agreement entered into in 2012 (the “Beach Loan”), pursuant to which NDH, acting as the nominal lender and as a broker for Phoenix, made a loan in the amount of $12,273,748.80, inclusive of interest, to SRB Concession, Inc. (“SRB Concession”) as the borrower, which loan was funded by Phoenix and subsequent to funding was assigned by NDH to Phoenix. ANSWER: Admit that this action involves the Golf Course Loan and Beach Loan, and refers to the loan documents which speak for themselves. Deny the remaining allegations. 15. The Golf Course Loan and the Beach Loan were transactions in which the borrowers obtained financing in order to perform their respective obligations in connection with agreements each had entered into with the Town of Oyster Bay, NY (“TOBAY”), a 6 New York municipality located within Nassau County, NY, to operate certain facilities, construct certain capital improvements, and provide certain services to TOBAY. ANSWER: Admit that the Golf Course Loan and Beach Loan were transactions involving the Town of Oyster Bay (“TOBAY”) and refer to the documents associated with those loans which speak for themselves. III. THE GOLF COURSE AGREEMENT AND LOAN A. The Golf Course Agreement Between TOBAY and SRB Catering 16. At all times relevant hereto, TOBAY has owned and operated a municipal golf course, which is the site of several dining and concession facilities (hereinafter collectively referred to as the “Golf Course Facilities”). ANSWER: Admit. 17. On or about October 30, 2000, TOBAY entered into an agreement with SRB Catering to operate and to improve the Golf Course Facilities (the “Golf Course Agreement”). ANSWER: Admit. 18. Pursuant to the Golf Course Agreement, SRB Catering was to operate the Golf Course Facilities and to remit payments to TOBAY for the privilege of doing so. ANSWER: Admit that TOBAY and SRB Catering entered the Golf Course Agreement and refer to that agreement which speaks for itself. 7 19. The Golf Course Agreement had a twenty year term, commencing on January 1, 2001 and ending on December 31, 2020. It was also further subject to an option, exercisable only by TOBAY, for one ten (10) year renewal. ANSWER: Admit that TOBAY and SRB Catering entered the Golf Course Agreement and refer to that agreement which speaks for itself. 20. Pursuant to the Golf Course Agreement, SRB Catering was required to make specific capital improvements to the Golf Course Facilities with a total value of approximately $2,097,000. These improvements were to be made within the first three (3) years of the initial term of the Golf Course Agreement, pursuant to plans, specifications and a schedule approved by TOBAY. Upon their completion and acceptance, TOBAY would own all of these improvements. ANSWER: Admit that TOBAY and SRB Catering entered the Golf Course Agreement and refer to that agreement which speaks for itself. 21. On or about April 19, 2005, TOBAY and SRB Catering executed an amendment to the Golf Course Agreement (“Golf Course Agreement Amendment I”). One of Golf Course Amendment I’s stated purposes was “to accept the major capital improvements heretofore performed” and “to provide for future improvements.” ANSWER: Admit that TOBAY and SRB Catering entered the Golf Course Agreement Amendment I and refer to that agreement which speaks for itself. 22. Golf Course Amendment I explicitly represented that, even though SRB Catering had, pursuant to the terms of the Golf Course Agreement, only been obligated to 8 make $2,097,000 in capital improvements, it had already, by the time Golf Course Agreement Amendment I was signed, made total improvements having a value of $4,600,000.00. Golf Course Agreement Amendment I exercised TOBAY's ten year renewal term as contained within the Golf Course Agreement. ANSWER: Admit that TOBAY and SRB Catering entered the Golf Course Agreement Amendment I and refer to that agreement which speaks for itself. 23. Subsequent to TOBAY and SRB's Catering’s execution of Golf Course Agreement Amendment I, SRB Catering purportedly made further improvements to the Golf Course Facilities totaling approximately $360,000 and, in addition, expressed a desire and a willingness to make further improvements to the Golf Course Facilities. ANSWER: Defendants lack sufficient knowledge or information upon which to form a belief and therefore leave Plaintiffs to their proof. 24. Consequently, on or about September 16, 2008, TOBAY and SRB Catering executed a further amendment to the Golf Course Agreement (“Golf Course Agreement Amendment II”). ANSWER: Admit that TOBAY and SRB Catering entered the Golf Course Agreement Amendment II and refer to that agreement which speaks for itself. 25. Pursuant to Golf Course Agreement Amendment II, SRB Catering obligated itself to make an additional $3,250,000 in improvements to the Golf Course Facilities before December 31, 2011. Golf Course Amendment II further extended the term of the Golf Course Agreement by an additional twenty (20) years, through December 31, 2049. 9 ANSWER: Admit that TOBAY and SRB Catering entered the Golf Course Agreement Amendment II and refer to that agreement which speaks for itself. B. The Golf Course Loan 26. SRB Catering determined that it would require financing to complete the improvements required by the terms of the (amended) Golf Course Agreement and entered into negotiations with NDH to obtain such financing. ANSWER: Defendants lack sufficient knowledge or information upon which to form a belief and therefore leave Plaintiffs to their proof. 27. NDH, in actuality, was acting as a loan broker for PHL, a fact that was fully disclosed to SRB Catering from the inception of the negotiations and was fully disclosed and known to all parties involved in the transactions and their counsel, including McCarter and Scantling. ANSWER: Admit that Defendants knew of NDH’s role as PHL’s agent. Defendants lack sufficient knowledge or information upon which to form a belief as to the remaining allegations and therefore leave Plaintiffs to their proof. 28. Throughout the loan negotiation processes, SRB Cat