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02-CV-2015-000326.00
Judge: SARAH HICKS STEWART
To: WALTER JOSEPH MCCORKLE JR.
jmccorkle@balch.com
5/6/2016 12:50:25 PM
JOJO SCHWARZAUER
CIRCUIT COURT CLERK
MOBILE COUNTY, ALABAMA
205 GOVERNMENT STREET
MOBILE, AL 36644
251-574-8420
charles.lewis@alacourt.gov
DOCUMENT 156
ELECTRONICALLY FILED
5/6/2016 12:49 PM
02-CV-2015-000326.00
CIRCUIT COURT OF
MOBILE COUNTY, ALABAMA
JOJO SCHWARZAUER, CLERK
CV 2015-326
v.
PILOT CORPORATION;
PILOT TRAVEL CENTERS LLC, d/b/a
PILOT FLYING J;
JAMES A. HASLAM III;
MARK HAZELWOOD;
BRIAN MOSHER; and,
JOHN FREEMAN,
Defendants.
Exhibit A - Letter from Stephen D. Brody to Stephen M. Tunstall dated April 27,
2016;
2.
DOCUMENT 156
Respectfully submitted,
DOCUMENT 157
ELECTRONICALLY FILED
5/6/2016 12:49 PM
02-CV-2015-000326.00
CIRCUIT COURT OF
MOBILE COUNTY, ALABAMA
JOJO SCHWARZAUER, CLERK
Exhibit A
DOCUMENT 157
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VIA E-MAIL
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Stephen M. Tunstall
Stephen M. Tunstall, P.C.
260 North Joachim Street
Post Office Box 152
Mobile, Alabama 36601
Re:
Dear Stephen:
I write to address plaintiff Wright Transportations effort to subpoena defendant James A.
Haslam, III for deposition in the above-referenced action. As you know, FST Express and HB
Logistics, who are represented by the same counsel as Wright, have also filed a motion seeking
Mr. Haslams deposition in their case against Pilot Corp., which is pending in Franklin County,
Ohio. Mr. Haslam does not believe a deposition is warranted in either case. Discovery taken
during MDL proceedings shows the absence of support for plaintiffs claims against Mr. Haslam
here or for any need to take his deposition.
We can only guess that plaintiff views a deposition of Mr. Haslam as a threat designed
for some litigation advantage. We are disappointed by this gamesmanship, but eager to put it
behind us. For that reason, Mr. Haslam is willing to schedule a deposition in the civil cases
pending against Pilot Corp., Pilot Travel Centers LLC, and various individual defendants, so
long as the deposition proceeds in the orderly manner outlined below.
The deposition should be coordinated across all of the currently pending civil cases, so
that Mr. Haslam is only deposed once. With the same counsel representing the plaintiffs in all of
the remaining civil litigation, coordination ought to be easy. The deposition should also be
limited to a single, seven-hour deposition day. We are willing to work with plaintiff here and in
the other, remaining civil action to identify a deposition date,1 but certain threshold matters
1
Mr. Haslam is not available for deposition on May 11, the date unilaterally selected by plaintiff
for its subpoena.
DOCUMENT 157
should be resolved before the deposition occurs. Mr. Haslams pending 11th Circuit appeal of
the Alabama federal court dismissal order will determine whether plaintiffs claims against him
proceed in state or federal court. That decision should be made prior to any deposition.
If the 11th Circuit affirms the dismissal order and plaintiffs claims remain in state court,
the court should have the opportunity to rule on Mr. Haslams pending motion to dismiss after
full briefing. As you know, a ruling on the motion to dismiss will go a long way to defining the
scope of this litigation, including deciding whether plaintiff should be permitted to re-plead
claims that were dismissed in the federal case and determining whether Mr. Haslam is subject to
personal jurisdiction for claims in state court. In order to give the court the opportunity to
consider the pending arguments, we propose that a deposition be scheduled within 60 days of
any 11th Circuits decision that affirms the state court dismissal order. If the 11th Circuit
reverses the dismissal order and the case proceeds in federal district court, we will work to
identify a deposition date within 45 days of the decision.
The foregoing proposal will allow discovery to proceed in an orderly manner, while also
eliminating needless motions practice. Toward that end, should plaintiff agree to this proposal,
the parties can advise the court at the outset of the hearing currently set for Friday, April 29,
2016.
Thank you for your attention to the foregoing. Of course, if you should have any
questions, you should not hesitate to contact me.
Very truly yours,
/s/
Stephen D. Brody
cc:
DOCUMENT 158
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02-CV-2015-000326.00
CIRCUIT COURT OF
MOBILE COUNTY, ALABAMA
JOJO SCHWARZAUER, CLERK
Exhibit B
DOCUMENT 158
106
ELECTRONICALLY FILED
4/22/2016 5:07 PM
02-CV-2015-000326.00
CIRCUIT COURT OF
MOBILE COUNTY, ALABAMA
JOJO SCHWARZAUER, CLERK
CV 2015-326
v.
PILOT CORPORATION;
PILOT TRAVEL CENTERS LLC, d/b/a
PILOT FLYING J;
JAMES A. HASLAM III;
MARK HAZELWOOD;
BRIAN MOSHER; and,
JOHN FREEMAN,
Defendants.
By appearing through counsel here, Mr. Haslam does not consent or waive his objection to the
exercise of jurisdiction by this Court.
1
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of June 6, 2016. The Court should not permit Plaintiff an end run around Alabamas abatement
statute through its effort to depose Mr. Haslam as a fact witness in its case against Hazelwood.
FACTUAL BACKGROUND
This litigation began in July 2013, when Plaintiff filed a Complaint against the same
defendants in the United States District Court for the Southern District of Alabama. That court
dismissed the majority of Plaintiffs claims, leaving only a breach of contract claim against Pilot
Corp. and Pilot Travel Centers LLC and an unjust enrichment claim against individual
defendants. There, as here, Plaintiff relied on the FBI Affidavit that forms the basis for the
majority of the allegations in its state court Complaint and Petition for Letter Rogatory.
Rejecting Plaintiffs contention that the FBI Affidavit was sufficient to support its claims, Chief
Judge Steele held:
[T]he affidavit does not reference the plaintiff at all, much less assert that any
particular individual associated with any particular defendant made any particular
statement to any particular representative of the plaintiff in any particular message
transmitted via any particular form of communication on any particular date at
any particular place.
Wright Transportation, Inc. v. Pilot Corp., No. 1:13-cv-000352, Dkt. No. 68 at 4 (S.D. Ala. Jan.
9, 2014).
The case was subsequently transferred to a multi-district litigation in the Eastern District
of Kentucky. There, more than a year after the majority of Plaintiffs claims were dismissed,
Plaintiff sought leave to amend its complaint to add a claim for fraudulent inducement.
Plaintiffs motion was denied on grounds of undue delay and prejudice to the defendants. In re
Flying J Rebate Contract Litig., No. 2:14-md-02515, Dkt. No. 228 (E.D. Ky. May 26, 2015).
In the meantime, discovery proceeded in the MDL. That discovery not only showed the
allegations in Plaintiffs federal complaint to be unfounded, but it also directly contradicts the
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majority of the contentions in Plaintiffs Petition for Letter Rogatory here. Indeed, rather than
showing that Mr. Haslam worked to specifically target Wright, conspired to defraud Wright,
or facilitate[d] some scheme targeting Plaintiff, the discovery showed the opposite. Pet. 2.
It specifically belies Plaintiffs current contention that Mr. Haslams deposition testimony is
critical or even relevant to its claims. Id. 1-2.
Plaintiffs president and sole owner, Patrick Wright, testified that Wright Transportation
communicated with only five Pilot employees about its fuel purchase agreement, and those
employees did not include Mr. Haslam. See Dep. of Patrick Wright (P. Wright Dep.), June 17,
2015 (Ex. 1) at 60:19-61:8. In deposition, Mr. Wright explained the two bases for his companys
claims in his lawsuit. First, while he acknowledged that an April 22, 2009, letter from Pilot to
Plaintiff accurately set out the terms of Plaintiffs fuel purchase agreement, he contended that a
pilot employee named Kevin Hanscomb called me right after this to let me know they were
going to provide more favorable terms than those set out in writing. Id. at 86:7-14, 87:19-23.
Mr. Wright has no document reflecting the alleged change and never asked for one; nor did he
ever try to confirm the alleged oral change in terms with anyone at Pilot. Id. at 86:15-22. He
relies solely on his recollection of the alleged telephone conversation with Mr. Hanscomb.
Second, Mr. Wright alleged that Pilot erroneously charged higher fuel prices than those
appearing in the Optimizer Plaintiff used to direct its drivers to locations with the lowest fuel
prices on drivers trucking routes. The Optimizer, used throughout the time Plaintiff had a
contract with Pilot, is a computer software program that determined where drivers should refuel
by comparing net fuel prices at truck stops operated by the different companies Wright
contracted with, including Pilot, Loves, and Flying J. Id. at 113:6-12 (Q: But how does
Wright determine who to buy fuel from? A: Well, the Optimizer.); see id. at 113:13-21 (Q:
3
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Whats an Optimizer? A: Its a software program that tells you where to fill up. Q: And what
is the Optimizer doing? A: It tells you where, if you are going from here to Minnesota, if the
lowest cost locations are Memphis, Tennessee and southern Illinois, or whatever. It tells you
where to fill up.); id. at 113:22-114:2 (Q: And the -- so the Optimizer is designed to direct you
to the lowest priced available fuel? A: Yes. Q: And does Wright purchase the lowest available
fuel? A: Yes.). Approximately 60% of the time, the lowest prices were available from Pilot.
Id. at 120:10-18; see also id. at 107:24-108:9. The rest of the time, when fuel was available from
another supplier for a lower cost, Plaintiff purchased fuel from that other supplier. Id. at 120:19121:7; see also id. at 113:22-24.
Plaintiff contends that for a short period of time, the Optimizer showed one price, but
Pilot billed at a different price. See, e.g., id. at 118:13-119:10. But Mr. Wright was unable to
identify a single transaction where Pilot overbilled Plaintiff for fuel, conceding that he never
audited Plaintiffs fuel purchases to identify overcharges; that task, Mr. Wright said, was
performed by his son Daniel, also a Wright Transportation employee. Id. at 125:12-17; see id. at
202:25-203:12. In deposition the very next day, Daniel Wright explained that the problem with
the Optimizer was simply that the numbers that were getting plugged into the system were
inaccurate. Dep. of Daniel Wright (D. Wright Dep.), June 18, 2015 (Ex. 2), at 17:1-2. As he
further explained, it was not a matter of prices in the Optimizer being consistently lower or
higher than Plaintiffs contract price with Pilot; instead, [t]he whole system was off. I mean,
there was numbers were higher, numbers were lower. Id. at 17:15-16. Whatever the source of
the problem, it was easily resolved: in order to be certain the prices shown in the Optimizer
matched Pilot pricing, Pilot began sending a daily direct pricing feed to IDSC, the company
running the Optimizer, with a copy to Plaintiff. Id. at 28:23-29:6.
4
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Notably, Plaintiff did not conclude that the Optimizer glitch ever caused Pilot to charge
more than it had contractually agreed to charge Plaintiff. Id. at 30:21-31:4. Just as notably, Mr.
Haslam had no involvement in this issue at all. Id. at 42:17-45:6. No one at Wright
Transportation has ever spoken to Mr. Haslam about anything, let alone communicated with him
concerning Plaintiffs purchase of fuel from Pilot. P. Wright Dep. at 60:19-61:8; 346:17-125.
Moreover, asked to identify every communication Plaintiff has ever received from Mr. Haslam,
Plaintiff listed four: three Dear Customer letters and one Pilot press release, the earliest dated
July 12, 2013 (after the federal Complaint was filed), id. at 346:20-347:6, which Mr. Wright
described as four documents somebody wrote for [Mr. Haslam]. Id. at 347:3; see id. at 325:1336:3 (identifying the four documents). 2
Remarkably, Plaintiff now contends that those Dear Customer letters and press release,
which are attached for the Courts reference (see Exs. 3-6), fraudulently induced Plaintiff to
remain a Pilot customer. See Compl. 80-82, 87-88. This allegation, too, was refuted by
Patrick Wright himself, when he explained that Plaintiff continues to purchase fuel from Pilot to
Plaintiffs counsel separately argued in MDL pleadings that fuel prices under its contract with
Pilot should have been based on Pilots fuel acquisition cost, rather than an industry-standard
index known as OPIS average. See, e.g., Plaintiffs Motion to Extend Deadlines for Expert
Discovery and General Discovery, Dkt. No. 211 (May 11, 2015). But in deposition, Mr. Wright
admitted that he was fully aware that the cost component of Plaintiffs pricing agreement with
Pilot was based on the OPIS index. P. Wright Dep. at 160:14-17 (Q: So you thought that Pilot
was charging you OPIS as your cost, correct? A: Yes.). While he contends that he thought the
OPIS index was Pilots actual cost, he conceded that any misunderstanding on his part stemmed
not from Pilot, but from Pilots competitor Loves. Mr. Wright thought that [OPIS] was the
cost that Loves paid for their fuel every day, id. at 151:19-22, after he was led to believe that
OPIS was [Loves acquisition] cost by one of Loves sales representatives. Id. at 152:2-18; see
id. at 164:6-11 (Q: But whether they said something specifically or you just misunderstood,
you left your meeting with Loves in 2007 with the impression that OPIS equaled acquisition
cost, correct? A: Yeah, I guess. Yeah.).
5
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this day [b]ecause the fuel is cheaper than other places. P. Wright Dep. 180:7-13; see also id.
at 177:20-25; 178:22-179:10. 3
The MDL was eventually dissolved, and Plaintiffs case was remanded to the Southern
District of Alabama, which dismissed Plaintiffs remaining claims based on a purported lack of
federal jurisdiction. On November 19, 2015, certain defendants, including Mr. Haslam, filed a
timely notice of appeal with the United States Court of Appeals for the Eleventh Circuit
challenging the dismissal. 4 More than two weeks after the notice of appeal was filed, Plaintiff
filed the instant complaint, re-asserting numerous claims that were dismissed from the federal
action, namely, its claims for fraudulent misrepresentation (Count III), negligent
misrepresentation (Count IV), and suppression (Count V), as well as its claim for fraudulent
inducement (Count III), which the MDL court denied Plaintiff leave to include. Because Wright
was trying to proceed on duplicative actions in both state and federal court, all Defendants except
Hazelwood filed a motion to dismiss or stay under Alabamas abatement statute, Ala. Code 65-440. See Defendants Joint Motion to Dismiss, Abate or Stay, Dkt. No. 22 (Jan. 4, 2016). This
Court has not ruled on that motion.
Plaintiff also misrepresents that Mr. Haslams motion for protective order was denied by the
MDL court, suggesting that the issue was finally and conclusively decided. Pet. 4. But as Mr.
Haslam has previously explained, the motion (which dealt with issues other than those raised
here), was denied by a magistrate judge and, pursuant to 28 U.S.C. 636 and Federal Rule of
Civil Procedure 72, Mr. Haslam exercised his right to have that ruling reviewed by the MDL
court, i.e., the federal judge overseeing the MDL proceedings. See In Re: Flying J Rebate
Contract Litig., 2:14-md-2515, Dkt. No. 282 (E.D. Ky. July 14, 2015). That objection remained
pending when the case was remanded to the Southern District of Alabama
4
Belying Plaintiffs assertion that the appeal is frivolous, the Eleventh Circuit calendared the
case for oral argument the week of June 6, 2016. See Wright Transp., Inc. v. Pilot Corp., Dkt.
entry Apr. 1, 2016, (11th Cir. No. 15-15184).
6
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Hazelwood or any of the five Pilot employees with whom Plaintiff communicated about its fuel
purchase contract.
To this end, Plaintiff filed a Petition for Letter Rogatory on April 13, 2016, asking this
Court to request that the Circuit Court of Knox County, Tennessee issue a deposition subpoena
to Mr. Haslam for May 11, 2016. See Petition for Letter Rogatory (Pet.), Dkt. No. 78 (Apr.
13, 2016). As with Plaintiffs other filings in this Court, Plaintiffs petition was premised on
misstatements and mischaracterizations of the record. Before Mr. Haslam had a chance to renew
his arguments and point out Plaintiffs misstatements to the Court, the petition was granted. See
Order, Dkt. No. 83 (Apr. 15, 2016). Mr. Haslam now seeks reconsideration and an order
preventing Plaintiff from taking discovery from him until the federal appeal is decided.
ARGUMENT
I.
The Court Should Deny Plaintiffs Petition for a Letter Rogatory and Issue an
Order Preventing the Taking of Discovery from Mr. Haslam until the Federal
Appeal is Resolved.
A trial court enjoys plenary authority to modify interlocutory decisions such as the one at
issue here. E.g., Rheams v. Rheams, 378 So.2d 1125, 1128 (Ala. Civ. App. 1979) (An
interlocutory judgment is subject to modification at any time before final judgment.). Likewise,
[t]he Alabama Rules of Civil Procedure vest broad discretionary power in the trial court to
control the discovery process and to prevent its abuse. Ex parte Nissei Sangyo Am., Ltd., 577
So.2d 912, 913 (Ala. 1991).
The Court should exercise its broad discretion, reconsider and vacate its prior order
granting Plaintiffs petition for letter rogatory, and issue an order barring discovery from Mr.
Haslam until the federal appeal is resolved, for two reasons. First, Plaintiffs request is an
obvious ploy to circumvent the abatement statute and take Mr. Haslams deposition in aid of
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Plaintiffs claims against him, but the abatement statute forecloses Plaintiff from doing so.
Second, Plaintiffs request is premature, because the Court has yet to resolve numerous threshold
issues that will determine the proper scope of this action should it proceed here rather than in
federal court after the Eleventh Circuit decides Defendants appeal.
A.
Alabamas abatement statute, Ala. Code 6-5-440, forecloses Plaintiff from pursuing
discovery with respect to its claims against Mr. Haslam. See Ex parte J.E. Estes Wood Co., 42
So.3d 104, 108 (Ala. 2010); L.A. Draper & Son, Inc. v. Wheelabrator-Frye, Inc., 454 So.2d 506,
508 (Ala. 1984). Recognizing as much, Plaintiff asked this Court to permit it to take Mr.
Haslams deposition in his purported capacity as a fact witness for Plaintiffs claims against
Hazelwood. But the abatement statute is not so easily circumvented.
Because Plaintiffs claims against Mr. Haslam are barred by the abatement statute,
Plaintiff cannot take discovery against Mr. Haslam in service of those claims. Indeed, condoning
Plaintiffs procedural maneuvering would undermine the clear purpose of the abatement statute:
to prevent a party from having to defend against two suits in different courts at the same time
brought by the same plaintiff on the same cause of action, L.A. Draper, 454 So.2d at 508; to
avoid multiplicity of suits and vexatious litigation, Johnson v. Brown-Service Ins. Co., 307
So.2d 518, 520 (Ala. 1974); and to preserve scarce judicial resources and avoid piecemeal
litigation, Ex parte Breman Lake View Resort, L.P., 729 So.2d 849, 851 (Ala. 1999). The
discovery request is vexatious; Mr. Haslam will be required to devote substantial attention and
resources to it; and granting Plaintiffs petition would almost certainly result in piecemeal
litigation. Moreover, any deposition would occur on almost the eve of the Eleventh Circuit
9
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argument that will result in submission of Mr. Haslams appeal for decisiona decision that will
determine whether Plaintiffs claims against Mr. Haslam proceed in federal or state court.
Because the abatement statute prevents Plaintiff from taking Mr. Haslams deposition,
Plaintiffs discovery request should be denied.
B.
The Court should prevent the taking of discovery from Mr. Haslam for the independent
reason that taking his deposition at this juncture would be premature because there are numerous
threshold issues that this Court has yet to resolve that will determine the proper scope of this
action, should it proceed here. As explained in defendants motion to dismiss or stay, Mr.
Haslam and his co-defendants have well-founded grounds for dismissal of some or all of
Plaintiffs claims and, if the Court agrees with defendants, this issues will be narrowed
considerably or the litigation dismissed in its entirety. See Defendants Joint Motion to Dismiss,
Abate or Stay, Dkt. No. 22, at 19-24 (Jan. 4, 2016).
Among the threshold issues, Plaintiffs claims for fraudulent misrepresentation, negligent
misrepresentation, and suppression are due to be dismissed because they are barred by
Alabamas two-year statute of limitations for causes of action sounding in fraud. Ala. Code 62-38(l). The limitations period began to run on these claims when Plaintiff discovered, or should
have discovered, facts which would put a reasonably prudent person on notice that further
inquiry was warranted; actual knowledge of the fraud is not required. See, e.g., Foremost Ins.
Co. v. Parham, 693 So.2d 409, 421 (Ala. 1997). According to Plaintiffs Complaint, that was no
later than April 18, 2013, as Pilot alleges that it had actual knowledge of the facts giving rise to
these claims when the FBI affidavit (which forms the basis for Plaintiffs claims) was unsealed
on that date. See, e.g., Compl. 105 (alleging that the material information was first revealed
10
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to Plaintiff during April 2013 when the FBI affidavit was unsealed); see also id. 10, 106
(same). 5
Plaintiffs fraudulent inducement claim is similarly time barred. Plaintiff alleges that,
beginning [o]n or about July 12, 2013, Mr. Haslam sent Dear Customer letters to all Pilot
trucking customer, including Plaintiff, which fraudulently induced Wright to continue purchasing
diesel fuel from Pilot. Compl. 79-88. Plaintiff makes this allegation notwithstanding Patrick
Wrights testimony that he first conclude[d] that Pilot was engaged . . . in misconduct in May
2013, continued to purchase fuel from Pilot at that time, P. Wright Dep. 201:3-15, and
continues to do so to this day, not because of any mass mailing from Pilot, but because Pilot
offers Plaintiff the best prices, id. at 177:20-25; 178:22-179:10; 180:7-13.
Irrespective of its lack of merit, the fraudulent inducement claim is time barred. 6 It is
also indisputable that the fraudulent inducement claim is barred by res judicata, because the
denial of leave to amend constitutes res judicata on the merits of the claims which were the
subject of the proposed amended pleading in federal court. Christman v. St. Lucie Cnty., 509
5
These claims are time barred regardless of the application of the federal tolling statute, 28
U.S.C. 1367(d) (state-law claims that are pending in federal court under supplemental
jurisdiction are tolled while the claims is pending and for a period of 30 days after dismissal).
Plaintiffs claims were pending in federal court from July 10, 2013 until January 9, 2014, when
the Southern District of Alabama dismissed them. Thus, the federal tolling statute, assuming it
applies, would have tolled the statute of limitations for 213 days: 183 while the claims were
pending and for a period of 30 days after [they were] dismissed. Weinrib v. Duncan, 962
So.2d 167, 169-70 (Ala. 2007). Plaintiff commenced this action on November 24, 2015, 950
days after it was put on notice of its claims by the unsealing of the FBI affidavit, and thus its
claims were filed more than two years after its claims accrued, regardless of whether federal
tolling applies.
6
Federal tolling cannot apply to this claim because it was never pending in federal court, as
Plaintiff was denied leave to amend its complaint to add this claim. But even if the statute of
limitations were tolled for the 18 days between May 8, 2015, when Plaintiff filed its motion for
leave to amend, and May 26, 2015, when Plaintiffs motion was denied, plus an additional 30
days, the claim would still be time-barred.
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F. Appx 878, 879 (11th Cir. 2013) (quoting King v. Hoover Grp., Inc., 958 F.2d 219, 222-223
(8th Cir. 1992)); see also Restatement (Second) of Judgments 87 (1982) (Federal law
determines the effects under the rules of res judicata of a judgment of a federal court.).
In addition, Plaintiff has failed to plead its fraud-based claims with particularity,
including its claims for fraudulent misrepresentation and inducement, negligent
misrepresentation, and suppression. Ala. R. Civ. P. 9(b). Defendants also intend to seek
dismissal on the ground that Plaintiff has failed to state any claim upon which relief can be
granted. Ala. R. Civ. P. 12(b)(6).
It is self-evident that resolution of these issues is necessary to define the scope of the
litigationand therefore discoverybefore any deposition occurs. If defendants are correct on
some or all of their arguments, the majority if not all of Plaintiffs claims must be dismissed and
the parameters of this litigation, and thus permissible discovery, would be significantly
narrowed. This Court should preclude Plaintiff from taking Mr. Haslams deposition until these
preliminary issues are resolved.
CONCLUSION
For the foregoing reasons, the Court need go no further than to hold that the requested
discovery, at least at present, should not proceed. Accordingly, Mr. Haslam requests an order
denying Plaintiffs Petition for Letter Rogatory and precluding the taking of any discovery from
him until after the federal court resolves the pending appeal.
12
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CERTIFICATE OF SERVICE
I hereby certify that on April 22, 2016, I electronically filed the foregoing with the Clerk
of the Court using the AlaFile system which will send notification of such filing to all registered
parties of record.
/s/ W. Joseph McCorkle, Jr.
Of Counsel
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02-CV-2015-000326.00
CIRCUIT COURT OF
MOBILE COUNTY, ALABAMA
JOJO SCHWARZAUER, CLERK
)
)
)
)
)
)
)
)
)
Exhibit 1 - Excerpts of the deposition of Patrick Wright, conducted June 17, 2015;
2.
Exhibit 2 - Excerpts of the deposition of Daniel Wright, conducted June 18, 2015;
3.
Exhibit 3 - Exhibit 19, a Dear Customer letter from Mr. Haslam to Pilot Flying
J customers dated July 12, 2013, from the Deposition of Patrick Wright,
conducted June 17, 2015;
4.
Exhibit 4 - Exhibit 20, a Dear Customer letter from Mr. Haslam to Pilot Flying
J customers dated July 25, 2013, from the Deposition of Patrick Wright,
conducted June 17, 2015;
5.
Exhibit 5 - Exhibit 21, a Dear Customer letter from Mr. Haslam to Pilot Flying
J customers dated October 7, 2013, from the Deposition of Patrick Wright,
conducted June 17, 2015; and
6.
Exhibit 6 - Exhibit 22, a Pilot Flying J press release dated July 14, 2014, from the
Deposition of Patrick Wright, conducted June 17, 2015.
244438.3
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CERTIFICATE OF SERVICE
I hereby certify that on April 22, 2016, I electronically filed the foregoing with the Clerk
of the Court using the AlaFile system which will send notification of such filing to all registered
parties of record.
/s/ W. Joseph McCorkle, Jr.
Of Counsel
244438.3
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Page 1ALABAMA
JOJO SCHWARZAUER, CLERK
10
11
12
13
v. CASE NO.:
2:14-cv-00102-ART
PILOT TRAVEL CENTERS, LLC
d/b/a Pilot Flying J
5508 Lonas Drive
Knoxville, Tennessee 37909,
Defendant.
14
DEPOSITION OF:
15
PATRICK WRIGHT
16
17 S T I P U L A T I O N S
18 IT IS STIPULATED AND AGREED, by and between
19 the parties through their respective counsel, that
20 the deposition of:
21 PATRICK WRIGHT
22 may be taken before Lisa Bailey, Notary Public,
23 State at Large, at 150 Government Street, Mobile,
24 Alabama on June 17, 2015 commencing at
25 approximately 9:38 a.m.
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1 OPIS index?
2 A. No.
3 Q. So you're not buying from Love's?
4 A. No, I'm buying from Love's.
5 Q. You're buying from Love's?
6 A. One of things is -- the huge difference
7 is for me to go back and look and see that the
8 Love's contract has got OPIS written all over it,
9 you know. And the Pilot contract doesn't.
10 Q. Did you -11 A. Pilot, you know, is the one that came in
12 telling me how great and wonderful and how much
13 cheaper they were going to be because their cost,
14 you know, their cost, not standard industry cost,
15 but their cost.
16 Q. But has Pilot been able to supply fuel
17 to Wright at the best possible prices?
18 MR. TUNSTALL: Object to the form.
19 Q. Available to Wright?
20 A. I don't know the answer to that.
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1 A. The Internet.
2 Q. And why did you do that?
3 A. To try to make some sense out of
4 everything that I've been told. To try to figure
5 out who to believe.
6 Q. How did Wright determine the vendor from
7 which it would purchase fuel, among its multiple
8 options?
9 A. The majority is cost based.
10 Q. But how does Wright determine who to buy
11 fuel from?
12 A. Well, the Optimizer.
13 Q. What's an Optimizer?
14 A. It's a software program that tells you
15 where to fill up.
16 Q. And what is the Optimizer doing?
17 A. It tells you where, if you are going
18 from here to Minnesota, if the lowest cost
19 locations are Memphis, Tennessee, and southern
20 Illinois, or whatever. It tells you where to fill
21 up.
22 Q. And the -- so the Optimizer is designed
23 to direct you to the lowest priced available fuel?
24 A. Yes.
25 Q. And does Wright purchase the lowest
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1 available fuel?
2 A. Yes.
3 MR. TUNSTALL: Object to the form.
4 Q. And who puts the information into the
5 Optimizer?
6 A. Well, the vendor in this case, Pilot
7 sends the information to the IDSC Optimizer company
8 on their changes.
9 Q. Does Wright send any information to the
10 Optimizer?
11 A. No. I think we have in the past sent
12 changes. But the fuel vendors, if they're going
13 down on price, they have a direct shot to send it
14 direct to IDSC.
15 Q. And when has Wright provided information
16 or data to the Optimizer?
17 A. I don't know the answer to that.
18 Because I, for the most part we depend on the
19 vendors to send that information straight to the
20 Optimizer.
21 Q. Does Wright have the right to know what
22 information was provided to the Optimizer?
23 A. I would assume so.
24 Q. And does Wright ever check the
25 information to make sure it's accurate?
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1 Q. Have you personally -2 A. And they -- that's what I'm saying, they
3 were going over that on a regular basis with the
4 e-mails to try to figure out what was going on.
5 Q. Have you -6 A. Unfortunately my son ruled out that
7 Pilot's crooked and their bogusing up the numbers
8 and so it took a little longer than the average
9 person, you know, to figure out that -10 Q. Did you audit -11 A. Pardon?
12 Q. Did you audit the account and determine
13 any instance in which Pilot allegedly charged more
14 than reflected in the Optimizer?
15 A. Daniel did, yes.
16 Q. Did you do that? I'm asking you.
17 A. No.
18 Q. Do you have any personal knowledge of
19 whether Pilot ever charged more than the Optimizer?
20 MR. TUNSTALL: Object to the form.
21 A. Yes. Yes.
22 Q. And what is your personal knowledge,
23 what is the basis of your personal knowledge?
24 MR. TUNSTALL: Object to the form.
25 Asked and answered.
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1 2007?
2 A. My contention all along was OPIS was
3 cost.
4 Q. My question is, how did you become aware
5 of OPIS in 2007?
6 A. Their contract.
7 Q. Love's contract?
8 A. Uh-huh.
9 Q. Yes?
10 A. Yes.
11 Q. And when did Love's contract -- what was
12 it about Love's contract that made you aware of
13 OPIS?
14 A. It said OPIS on there.
15 Q. Okay. And when you say -16 A. Unlike Pilot.
17 Q. When you said OPIS is cost, what do you
18 mean? Strike that.
19 When you said you thought OPIS was cost,
20 what did you mean?
21 A. I thought that was the cost that Love's
22 paid for their fuel every day.
23 Q. And why -24 A. In their transaction.
25 Q. Why did you think that?
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1 A. I was led to believe that. And -2 Q. Who led you to believe that Love's
3 was -- acquisition cost was OPIS?
4 MR. TUNSTALL: Object to the form.
5 A. You know, I was just -- like I said, I
6 was led to believe that OPIS was their cost.
7 Q. Who led you to believe that OPIS was
8 Love's acquisition cost?
9 A. I don't know who their rep was. I'm not
10 sure.
11 Q. Did somebody at Love's tell you that
12 OPIS was their acquisition cost?
13 A. Their actual contract says OPIS minus
14 two or plus two or whatever.
15 Q. Sir, my question is, did an OPIS rep
16 tell you that Love's acquisition cost was OPIS?
17 A. Yes, I would assume so. But I don't
18 know who the rep would be.
19 Q. Do you recall anyone from Love's telling
20 you their acquisition cost was OPIS?
21 A. I don't know who. But their -22 Q. My question -23 A. Their contract, though, was in writing
24 and -25 Q. Sir.
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1 A. Right.
2 Q. And Wright is doing so because in those
3 instances in which Pilot's price is the lowest
4 available option, correct?
5 A. Yes.
6 Q. And Wright's is purchasing from Pilot
7 even though it knows Pilot is using OPIS contract
8 average, not its actual cost, because it's offering
9 the best price, correct?
10 A. Yes.
11 Q. And Wright has always been interested in
12 purchasing fuel at the lowest price, correct?
13 A. Wright has always been interested in
14 purchasing fuel at the price that's displayed, the
15 price that you've been guaranteed. That didn't
16 happen until the Feds moved in.
17 Q. Okay. But Wright -18 A. Before we thought we were getting the
19 best price. We thought we were getting what we
20 should be getting.
21 Q. Wright always intended to purchase fuel
22 from the seller that provided the best price,
23 correct?
24 A. Yes.
25 Q. Why is it that Wright now accepts --
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1 strike that.
2 Why is it that now Wright purchases fuel
3 from Pilot and accepts the fact that Pilot
4 calculates cost on the basis of the OPIS contract
5 average rather than actual cost?
6 A. Repeat that.
7 Q. Yeah. Why is Wright now willing to
8 accept and buy from Pilot fuel knowing full well
9 that Pilot is calculating the cost on that fuel on
10 the basis of OPIS contract average and not based on
11 actual cost?
12 A. Because the fuel is cheaper than other
13 places.
14 Q. Would it -15 A. But it doesn't give them the right to
16 advertise one price and charge you another.
17 Q. I'm not asking -- for the record. Since
18 the inception of the business in 1999, would Wright
19 have purchased fuel at the lowest price
20 irrespective of whether Pilot was calculating cost
21 on the basis of OPIS contract average rather than
22 actual cost?
23 A. The message is to purchase at the lowest
24 cost. But if there's an advertised cost, it
25 doesn't give the vendor the right to change the
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1 A. Yes.
2 Q. And when did you first conclude that?
3 A. Well, the first thing once we started
4 hearing what was going on it made sense why we were
5 having so much trouble with Pilot.
6 Q. My question is when did you first
7 conclude that Pilot was engaged, in your view, in
8 misconduct?
9 A. I don't have a specific date.
10 Q. Do you have an approximate date?
11 A. May 2013.
12 Q. And did you continue to purchase fuel
13 from Pilot after concluding that Pilot was engaged
14 in misconduct?
15 A. Yes.
16 Q. Why?
17 A. Great question. I didn't think at that
18 time -- I didn't think at that time that we were in
19 the middle of it. And as we dug we realized this
20 is exactly what all these bills that aren't
21 correct, all that led back to every bit of the
22 invoices that weren't right.
23 Q. Did you trust Pilot in May of 2013?
24 A. No. I said that. We were -25 Q. Where are --
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1 A. We were in the process of putting the -2 when we found out what was going on we started
3 putting pumps in to get our own fuel.
4 Q. Where are the bills that you say were
5 incorrect from Pilot?
6 A. Where are the bills?
7 Q. Yeah.
8 A. The invoices?
9 Q. Sure. You have -- how many invoices do
10 you have that you believe were incorrect by Pilot?
11 Strike that.
12 How many times do you think Pilot
13 incorrectly invoiced Wright?
14 MR. TUNSTALL: Object to the form.
15 A. Thousands.
16 Q. From when to when?
17 A. If I had to say, 2008 through '13.
18 Q. And you're saying every single invoice
19 was incorrect?
20 A. No. No, I'm not saying that.
21 Q. How many of those -22 A. They picked. They picked -23 Q. How many of these -24 A. -- transactions and -25 Q. How many invoices were incorrect?
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1 A. Yes.
2 Q. 17 refers to an electronic communication
3 of July 12, 2013, correct?
4 A. Yes.
5 Q. And it identifies that communication by
6 Bates number at the end of the paragraph, correct?
7 A. Yes.
8 Q. That date, July 12, 2013, was
9 approximately three months after the date of the
10 FBI affidavit; is that right?
11 A. Yes.
12 Q. And it was I think about two days after
13 you had filed your lawsuit that brings us here
14 today; is that right?
15 A. I don't know what the -- our date of the
16 lawsuit -- we discussed that earlier today. And I
17 didn't know the answer then. I still don't know
18 the date of our contract in this lawsuit.
19 Q. Is it -- let me ask you this. Is it
20 fair to say that -- I know you were unclear when
21 Mr. Kurtz asked the question about the exact date
22 that you retained Mr. Tunstall.
23 A. Right.
24 Q. And that your attorney-client
25 relationship with him began. Is it fair to say
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1 interrogatory?
2 A. I'm not -- I don't have an answer to
3 that.
4 Q. Well, is there anything else or not?
5 That's a pretty simple question.
6 MR. TUNSTALL: Objection.
7 Mischaracterization.
8 Q. Are there any other communications?
9 A. With Jimmy Haslam?
10 Q. Correct.
11 A. Jimmy Haslam hasn't done anything. It's
12 one of those, I would love to meet Jimmy Haslam.
13 What's crazy is I was the one that got beat out of
14 the money, and I have to go to these meetings. I'm
15 up here on a firing line like I've done something
16 wrong.
17 Q. You said you'd love to meet him. You
18 never have, have you?
19 A. No.
20 Q. And you identified in your answer to
21 that interrogatory every communication that Wright
22 Transportation has ever received from Jimmy Haslam,
23 correct?
24 A. Which is two letters somebody wrote for
25 him.
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1 C E R T I F I C A T E
2
3 STATE OF ALABAMA )
4 JEFFERSON COUNTY )
5
6 I hereby certify that the above and
7 foregoing deposition was taken down by me in
8 stenotype, and the questions and answers thereto
9 were reduced to computer print under my
10 Supervision, and that the foregoing represents a
11 true and correct transcript of the deposition
12 given by said witness upon said hearing.
13 I further certify that I am neither of
14 counsel nor of kin to the parties to the action,
15 nor am I in anywise interested in the result of
16 said cause.
17
18 /s/Lisa Bailey
19 Lisa Bailey, CCR #289
20 CCR #289, Expires 9/30/15
21 Commissioner for the
22 State of Alabama at Large
23
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ELECTRONICALLY FILED
4/22/2016 5:18 PM
02-CV-2015-000326.00
CIRCUIT COURT OF
MOBILE COUNTY,
Page 1ALABAMA
JOJO SCHWARZAUER, CLERK
10
11
12
13
v. CASE NO.:
2:14-cv-00102-ART
PILOT TRAVEL CENTERS, LLC
d/b/a Pilot Flying J
5508 Lonas Drive
Knoxville, Tennessee 37909,
Defendant.
14 DEPOSITION OF:
15 DANIEL WRIGHT
16 S T I P U L A T I O N S
17 IT IS STIPULATED AND AGREED, by and between
18 the parties through their respective counsel, that
19 the deposition of:
20 DANIEL WRIGHT
21 may be taken before Lisa Bailey, Notary Public,
22 State at Large, at 150 Government Street, Mobile,
23 Alabama on June 18, 2015 commencing at
24 approximately 9:25 a.m.
25
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1 overcharged Wright?
2 A. I don't -3 MR. TUNSTALL: Object to the form.
4 Asked and answered.
5 Q. Is that fair?
6 A. I don't know.
7 Q. I can't hear.
8 A. I don't know.
9 Q. You don't know anyone who had?
10 MR. TUNSTALL: It's not what he said.
11 He said, "I don't know."
12 MR. KURTZ: Counsel.
13 MR. TUNSTALL: I object to the form.
14 You changed his answer.
15 MR. KURTZ: Stop with your coaching.
16 MR. TUNSTALL: You just changed his
17 answer. I object to that.
18 BY MR. KURTZ:
19 Q. Can you identify anybody at Wright's who
20 concluded that Pilot had overcharged Wright on any
21 transaction?
22 MR. TUNSTALL: Object to the form.
23 A. I don't know.
24 Q. And are you aware of anybody who has
25 ever indicated that Pilot overcharged Wright with
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1 C E R T I F I C A T E
2
3 STATE OF ALABAMA )
4 JEFFERSON COUNTY )
5
6 I hereby certify that the above and
7 foregoing deposition was taken down by me in
8 stenotype, and the questions and answers thereto
9 were reduced to computer print under my
10 Supervision, and that the foregoing represents a
11 true and correct transcript of the deposition
12 given by said witness upon said hearing.
13 I further certify that I am neither of
14 counsel nor of kin to the parties to the action,
15 nor am I in anywise interested in the result of
16 said cause.
17
18 /s/Lisa Bailey
19 Lisa Bailey, CCR #289
20 CCR #289, Expires 9/30/15
21 Commissioner for the
22 State of Alabama at Large
23
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ELECTRONICALLY FILED
4/22/2016 5:18 PM
02-CV-2015-000326.00
CIRCUIT COURT OF
MOBILE COUNTY, ALABAMA
JOJO SCHWARZAUER, CLERK
Exhibit 3
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...
x..Actount~Kew. account:z
X-UIOl.t UID355149..1165849029
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Attached is a revised letter. I understand the letter previously sent was potentiaHy going into
Junk Mai!bo:.<es so we have formatted fn a fashion to reach voure-m.an. Thanks for your
business.
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...
ourprogr~s~
1) We instn.H.::ted m~.r entire .inte.rnal f1e1d audlt te.;.nn (2S ph\'$ ~.~mploye.es} \Jj;!ck ts.?
Knox:vnh~ to re;<'iew all of <>m' diesel fuel accounts, nearly 5,m.m, st;:::rting. with our
manttaJ diesel reb;ate customers, which were highlighted in the Nn'iJ 18. federat
affidavit"
Our audit te~nl completed theiv initial manual diesel rebate Xl~View on Jtt.ne
30. Vt/e hav~:: mailed letters t<> <lH of tJ\Jr m:anua! diesel rebate t'Ustonu=m;
e:<plaining the results ofour ~ltldit. Thos~ accounts wh'<l h<~.d a dis~repancy in
d11'~ cust<.mH.~rs favor receivted ch~cks f~Jt the amounts $f the d!screpa!H::iesi
p!us interest. We have invited ~-~H manualdresd r~bat~ -cn~to.mets to db;cus~
or verify our findings,
lt is il'nportant to not~ that then~ =.vere numerous !11~tnuai diesel teb~Re
accounts fb.at had a zero hahmc~ and even son'ie a.cco~mts th:<1t owed r!:wney'
to PHot Flying J.
We have begun to audit ail nth m ateo.;.rnts with any typ of dirf.!{...t bill tw
rebate reiatitH1ship with Pilot flying J. This a:ull\irwm r~v1ew accounts fn.Jm
c: David Hughes has been nam.nd Vice President of Sai;~s. D<:vid has .15
years' experienre \n the trucking industry. giving him a strong
foundation tu ht"~lp tead our sales team. Prior to )Glning P!lot Flying J
in 2012, he \Vo.rked with Covenant Transportation Grm.~p in
Chattan~o1cga,
c:
TN.
Scott Nelson has bten hil'ed as ;:1. Vie~ President. Scott wili join Sc.att
Won:bold with our National A-ccount team and h"s an outstanding
Wright 06154
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Sales, He
Pr~.Istclent
for Fh~et
Sales.
'l'his has been a very difficulttitrte for ntembers of our diest>l t\val. sales team
v;ho rem~ln ln piace. 'I1n:se team 1nernbers hav~. been re:al troopars, staying
foc~1sed, ;and ;Joing th~ir job:s.. Taki11g ea re ~f the ~l.lStome'r temains their
pdnnrr)' ff.tC~ls .
Nevl P<>lides ilnd procedures have bef.m pr;t tn pl~~te and ess~HifiaUy aH
manually ~aJculat:ed dli:JSel reb~tes at Pi!ot Flying l havt: been eliminated..
~m,msel
tc' Work with out !ntiN'ital cmnJ$et t.o CN!ate and staffa
position ofCJ->iiefComp!iance Ofiicet.
This' pto<:ess has ttl~$n m or~ time tha:n ex.p~ete.d du.t-'l to the ifnfivrtanee of
getting. the right persr.1n f<H' this jo'6. We hav~ \ds~tecl with other yornpa:nh~s
who have hest pi(H.;tl~es comp!ian(;e poiicits and offl.:;ers in place. We hope
Reid Weingarten. uf the national iavv firm Step.tne & Jnhnson1 has his
inv~stigatirm underway.
Weing~rten and .his: ream,
coop.et~t1ng
with
ln sumrM.ry:
Wright06155
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l~inaUyj
VIe unde!"stiitnd that Pii.ot Flyfi1g I $tH! ht.-s lots of work to d~) !o r~gain }fOUl' trust. We
are taking aggressive measures to reJ>tor:e. prese.rve and protect our custo1ner
reiat.lor.ships, We wm contiW.le to wor~ "~e.r.y hard evBty day to overtome past
issues and ensur~ they f.;re rit1t rep.eah:H:t Thank you f(>r your P<\tJen~e as we work
througl:uhis process,
In the l.neantlme, our r..ompany i.$. contim:ih;::g to make great stdde!iin delivering the
best po.ss5b!e s;rv:ic~ tq ym.1 and your driv\~rs. it is our goal to have DUF in <:1U our
.stores, evmx lane. by Se~1ternber 1.; to cr;mpler~~ ou:r $.SO n'llH!.on shower
impnwement proj~~ct by the middle of oext y~ar: and t~ op.e:n 16 ntlW stores in the
US and Canada this. yea:r,
.
Thank you fot ,Y(H~r COl"Jtinued :suppt;rt We. wm ?v~Orl): hard to f'1:)gah~ YiJUr trust,
Pilot Flying) ~s conm1itted 36S drws a year, 24~7, t<; provide you.r driv~rs with the.
best possible fueH!1g experi~nce.
Sin.cerely,
l!mmy Haslarn
Wright 06156
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ELECTRONICALLY FILED
4/22/2016 5:18 PM
02-CV-2015-000326.00
CIRCUIT COURT OF
MOBILE COUNTY, ALABAMA
JOJO SCHWARZAUER, CLERK
Exhibit 4
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MlME-Ver5ion: 1. 0
Piiot Flying J offidaliy announced today a new website. to provide 1nfurmauon to you regarding
the rebate program and the federal investigation. The webslte can be found at
www.rebateeducation.pHotflyingj.corn.
We take this investigation seriously and are taking the appropriate steps to rebuUd your trust.
One way to de that is to keep the lines of communication open, so we can make information
readily available to you and reaffirm your confidence in us.
Information about Piiot Flying Ys day-to-day bu.siness operations, inducllng travei center
locations, directions and more vvitl continue to be available at www.pliotflyingj.com,
EXHIBIT
tiJo
Jimmy Haslam
lf](,~f""
Pilot Flying J
Wright 06151
DOCUMENT 158
113
ELECTRONICALLY FILED
4/22/2016 5:18 PM
02-CV-2015-000326.00
CIRCUIT COURT OF
MOBILE COUNTY, ALABAMA
JOJO SCHWARZAUER, CLERK
Exhibit 5
DOCUMENT 158
113
.attached a
your convenience.
We <:ontinu~~ to take thi~ inv~.stig~tirm s<:.riom;ly and want to er1lRU.\~ 1iW apprt1pria:te. st~..>ps
are taken to rebuild y~.;ur trtlSL ...,;vc atso wam: m .k'-':ep the li.1.1e~ <,)f cormm..micm.io:n <:Jpen, ,tf
yen have any que-stions or CCltnn1e1;.ts, pica:;e feef i'n<:e to emaH us at
Since.re ly.
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Jimmy H~.:slarn
!
Wright 06146
DOCUMENT 158
113
0 iloli.~,
r:AVI!t. CIJNTERS
lo date t;;n.aH that \Vc'\:~ been doingl~f<~ at PHot Flying J <:l'<~el~ the
deu! with th<: mexp~cred mn1 0f e\1etttS that b<'~g;<tn unt1'.1lding this
past ApriL.
f1irst h~f me say Pik;t F~ying J '>'iill t~merge from thiS <:haUerrgC', as difHcu!t <t.B it ha~ been.
an even bettQ.r z~mnp<'~l~)'> a ,.oqlpany nH1de up (;)f people commhted tQ providing the hest
~erv~ce in Hllrind.l.lSil'Y t.o.Altl~Ca's pwtoosi.,mal drivers and the mottnir1g public.
I amlncr;:.dihiy proud <.~f (,Rlr :24;00t1 plus tearn members wh)) absorbed tlw shcJck Qftha
news of nur c.un;e~n ciretunsmm:es. hnmediutely pi~ke(i thetT\,.~{ve~ l.tp, and went right
back to work do:ng their J~'il,,$. Dt~~pitt the actr:~.atian~ swiding i.}roum.i i.n th~;~. weeks after
April l5. ous team !'l)fnJi;uns c.:m.1.e to work ev~ry day with theit beads held high, and,
through their acti()ns, showed tha\ PiiotFiying J is a t,~o;:r.lpany tlmt they b~lieve in..
Since Apnl l :5, we have dc1ne our best to investigate the aik~gations rna~ ~~gr.inst S<;)me
members oftYur diesel fuel 5aks team, u.; ldcntifJ.' any wrot'tgd~"'ing, (1nd h; a,~\"$:.rtce \Jur
customers that we wm net tOlerate th;at kind .of be.haviN: any1..vhere !u. our ~~oml:l;u~y and
we wiH i'!i[ike.:rig.ht WO% any error\'i w'e diM:ove:r.
\Ve ha"<~e rnatie great progrt%:s on a.U frollt$. Le{ me g<> through them one by one in tbe
sa:m~ order in wruch I annouaced theln on April 22.
1) On A:p:dl 22l Iannoune~d 'Wt were bringing onr t1etd audit wam to Kno:!l:vine
to review an ~)f our mann~tf aecm.tuts with our diesel fncl truckil.,g ~ompanj'
~..~ustomers.
Wright06147
DOCUMENT 158
113
Our field auditteatn crJni.pie'tf.~ the. review ~)fall of our w.af)tlai rebate accounts on
JtH'ie 30. noti.fied. ab.nos.t e:very customer itl whose acct.)Ufl:t ""''~':. f{.>t)i)d a
pjus int~rest.
We an:! m)w fin~l.iztt\g ;.mr audit()f<~ll ofz)ur other die~J fuel ~x..:o~m;;S with any
rype of direct diS\:'()Uttt agre:enwnt from 2005 ~o t~ate aoo ~xpe<:t to cr.rm.pletf' this
......
,., ... " h>. t.,,. &>n J nf' ''"'"'
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p~,J~"~~ v,.r .~,\v: ~ ,u v
t..H~- J'"'<~ .
l \:anut)t ~e S:pe<:tfic, tn.~(t C'~l genen:\l\ze tf"H~t \WS. are fit1ding disctepantieS ill ~
rt1ativeiy s-n1aU number {mt almost 7/X)() die~d fl.lei s.ales. ct\S~Qmer Mcotwu.s
auditf.\i, and that the <i!nount we've p:uid w c~.1p:ect thc>se tHscrepande:-; n~pres{~Ul:Y
a very small percentage of \)Ut(rverall diesel ft}t~l saks.
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customer's choi.!.~e h> pruTidpate-. 1'.\'f not participate itJ t:hi~ dass .actim.1 s~.tth:ment
We beheve it is a fair and just se:ulemcm and. a.Hows r.m: C\~stt>rners ro be mi.i.de
whoie s~)tmcr rather than later.
\Ve will no~ be ::,atisfi:ed untH :,ve hav~ identified ev'ery .singk discrepancy. nu.u1e.
e~ery affected cuBtomer whole, and mgaim::d the contldcm~e nf~H of our
c~r~ton~er~~
.2) 1 anoounc\.'il on Aprlt 22 that we had pta~ed sevel'a! m~nlbers of our diesel
fuel sate-s team on administrativE leave and already ttad beg~m re.t;trl,1eturlng
that team.
Currently.
~eve.11
~.\busing our
customers' trust and have resigned or been terminated. Others have been placed
on admimstratlve leave pending lh~ r~~sults of the ong{)1ng investifa:rlon.
You km~v. \Vho ~ome of t.hese ernp1oy,~;::s. urz through y(J'-lr own n~pordng; but
wnsistent with QUr poiicy as a private cmnpany. w'e are not going t6 publidy
discuss any ,;pedfic empl.oyee matters.
David Hughes, Sieve Vr.:.nderink and Mikt HlH, aH ~.enior mernt-t;rs ofour team,
have been moved w diesei tud sates and an:. doin2. outstan.Jim~............1obs '1-:Grkin~""'"' w;th
3
Wright06148
DOCUMENT 158
113
existing mernb~ of our diesel $~tl~~s tt;u.rn !O sel the &ales def~artmem~s. n.ew
cv~1r~e.
In addiri~n, \'1-:'e h:;;ve no,_~,. ptnced aitt'l~'ist evti)' custt,met contract in "~'riting and
"viH eorrtinu~; to d.~l :;;o gomg forward. Odr gm:il iffi.H.{) make cettain ~av'ecy custnmcr
is imtkatciv""' irrvolw.d with wh!tt hi~.. r;r.ber co111ratt savs
., ?;Q th!i.t .,..r>oxtle..~;. aiwavs
""
know the exact ex!XX~f.ation
of(!ach comracl..
..
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3) On April 22~ r direct'(!a the t:.'O.UYernion of .an (If. eu:r diesd fuel t~~~Sti)ffi~rS- tll
13"lectrl)nk t~akl.d~tk~n af\d payJ:n(lnt~ eUn~inatiJlg a!] ma~tu.an:v
mattag~
f~<:e(Hlnts.
4) We asked 'l')Ur (mtshl.e connst~.to help u..~ tt.n-ate and statl' a cmnptianct- tlffi,~e
ttl r~p<}ift to the companf.s g~nenli counsel w tnsm:e that this type' ~jfacth1ty
n\'!ver lm.rulens
at Pilot. F1-vina
J.
r r . a<tn!n
5
as
Ex:ev.~taive.
f~:~r
ingrtim ln{hlSJrks.
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flatwelL PLC
Thec~'lntntiuee,
~nd proe~~$e:>
. ..
t l1mg.
5)
Finally~ on
A~
you kn~.-;-<A, the bi:)atd a:nnotmc~d on Muy i lt had hi.red Reid Wcingart~n, one
H>O mosi: int1ue1st1ai tawy.ers &C:<:ord!ng fi"> the NiltSi<>tlal4:\~Y.}Qtii1ml.
t1f t:he
M.r. We.inganen artd his t~~arn Jwvt & fldl uwestig..ation UlKierway and wm mak.;
their re.p,)ft dite.etiy to the board iJKlf: its COl1ipck~tinr:.. 1d) not know whe:n 1\-k
Wright06149
DOCUMENT 158
113
Weinga:rter1 ,'l~d his terun ,:vm i.mmpie:t~ their wGrk or ifthe bq~.rd will ~hnose t\)
m<~ke
!t i"JUbli\;.
As I have nrevtnus~v said when eon11r.~ bef.\)revou Hkethis.l \~ould like. to ten vouin
y:t;).U would l.~ke to ~sk,. btU r
A
l appre(:i~lte your conttnued interest in <.)tlt(;.t'>l"l1p~ny and our iamil.'>'. Thi$ co!~tin~ws tt) be
the most cbfficulnhing we've. t;ver bt:!'en.thnmgh.
disappohithig, ernbarrassi.ng, ~nd
infuri~ting <'!I thnes, but I have be~I; truly ln~pircd by how much gotld comes mrt t)f
a.d versity ~
We. ~11-e taking this neg~~tive ttnd tt.~rnlng h imi) a 'Stn:i1gth that wHl stand. us l.n good stead
for years to <:orne. We ac.e cQmJnitted to e~~suri.:'lg this.
nf>t <;tt\l' h:xppen ~i~akn.
I want f.O thank our cu~fOlYt~rs f<Jr thdr: CCl1tinueci h:!Yllhv.
our f.;:ev ~;unnHt.~rli\
~
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y
,
. for evervthiwi
. , "'~
~
they have dot~t t:md co()mlnue ttl d.:.'J.fl'!.' IS$. ~nd ;;)Ul' reatt'l memb~rs for t!'ti'i~focu.s, h;a:rd
wcxk and commitme.m tl> Pii<)t Fiyi11g J.
,
<i
Although we hav~ focused a great deal on the aH~gf~tions rn:.1de in Api'il, we have not loot
sight of the broader busi11ess we opera{;;.:. \Ve have made changes w aHo.,.v us to servenur
\~usto!ne.rs betteL indudimi ext'l<UH.HtH:. our 6()().,strona
!Wtwork uf stores with more th:.m
w
15 new !ocatkms throl~ghout tnt United St<'ltes and Canada. in n'>r:;p{.m$e to the needs of
our cust.omers, \Ve plan trJ :provkk; four ~drlhkmal opportunh~es for rmr custl:)t11ers ~o fucel
with us in Kentucky, HHnois, Ohlo and Texas.
-
~-
Thank you.
5
Wright 06150
DOCUMENT 158
114
ELECTRONICALLY FILED
4/22/2016 5:18 PM
02-CV-2015-000326.00
CIRCUIT COURT OF
MOBILE COUNTY, ALABAMA
JOJO SCHWARZAUER, CLERK
Exhibit 6
DOCUMENT 158
114
Piloli..
NEWS RELEASE
July 14, 2014
FOR IMMEDIATE RELEASE
For further information,
Contact: Rachel Albright
The Ingram Group
615-345-9200 (o)
615-734-9686 (c)
"We, as a company, look forward to putting this whole unfortunate episode behind
us, continuing our efforts to rectify the damage done, regaining our customers' trust,
and getting on with our business," said CEO Jimmy Haslam. "We've been committed
from the beginning of this to doing the right thing, and that remains our
commitment."
"The past 15 months, since the federal government served a search warrant on the
company's headquarters, have been very trying for all involved," said Aubrey
Harwell, Pilot Flying J's attorney. "The company has cooperated fully with the
government and will continue to do so. As to its customers, the company has gone
to extraordinary lengths to understand and identify any wrongdoing and make it
right."
"Under the terms of the agreement," Harwell added, "the company has certain
obligations, which it fully intends to fulfill. We appreciate the diligence the U. S.
Attorney's office has shown in this matter. It certainly has been no less diligent than
our own internal investigation. I believe this agreement is the result of the good
intentions of both sides to do the right thing."
EXHIBIT
~?--
\U(t'K'At'
DOCUMENT 158
114
Pilot Flying J currently is ranked No. 7 on Forbes' list of America's largest private
companies with reported annual revenues of more than $30 billion.
To learn more about Pilot Flying J, visit www.pilotflyingj.com.
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