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Pagel Page 3 l SUPERIORCOURT OF NEWJERSl!:l:' LAWDIVISION - MIDDLESEXCOIINTY l I N D E X 2 DOCKETNO. L-6294-00 2 3 3 ------rj 4 WITNESS DIRECT CROSS RE-DIR RE-CROSS 5 5 Gary Null s r 6 I.JNIVERSALPROTEIN SUPPLEMENTS CORP., d/b/a IINIVERSAL 6 ( LABORATORIES,INC.. A New Jersey: Corporation, 7 8 Plaintiff, e 9 9 10 - V - DEPOSITIONOF: 10 ll GARYNULL ll 12 GARYNULL and GARYNULL & 12 13 ASSOCIATES,INC., 13 14 Defendants. l4 15 ------15 16 l 7 Transcript of proceedings taken on Thursday, 16

18 February 15, 2001 at 10:00 a.m. at the office of l 7 18 19 Feldman & Fiorello, Esqs., 65 IUllowbrook Boulevard,

20 Suite 401, Wayne, New Jersey 07470. 19 21 20

22 21 23 22 24 23 25 24 25 f' ( . Page 2 Page 4 A P P E A R A N C E S EXHIBITS FOR ID. DESCRIPTION PAGE 2 For the Plaintiff: YANl

l 7 16 P-15 Invoice #774 78 5 18 17 P-16 Invoice f6005 5 19 18 P-17 Invoice #77546 5

i~(, 20 19 P-18 Invoice t77725 5 21 20 P-19 Interrogatories 15 22 21 P-20 Order 20 r. 23 22 24 23

25 24 EXHIBITS FOR EV. 25 NONE Page 1 - Page4 Condenselt! ™ Page 5 Page7 \ 1 (At which time the documents were marked) 1 A. I understand. 2 Gary Null, N-U-L-L, sworn by the Notary Public, 2 Q. Your attorney is here. However, he's 3 testified as follows. 3 limited under the New Jersey Court Rules as to what 4 DIRECT EXAMINATION 4 he can or cannot do during the course of this 5 BY MR. GOLDSMITH: 5 deposition and I'm certain that he has told you that 6 Q. Mr. Null, my name is Richard Goldsmith. 6 once you are sworn you cannot confer with him. 7 I'm an attorney. I represent the plaintiff in this 7 A. Correct. 8 action, Universal Laboratories, who is suing you and 8 Q. Can you tell me how old are you? 9 a company known as Gary Null and Associates for the 9 A. Fifty-six. 10 collection of, approximately, $288,000 for 10 Q. Do you have any picture I.D. that can 11 merchandize produced for you and Gary Null and 11 identify yourself as Gary Null? Well, this is scary, 12 Associates. Are you aware of that litigation? 12 but it's a driver's license, Florida, Class E, 13 A. Yes. 13 indicating a Gary M. Null at 650, 25th Street, 14 Q. Have you had your deposition taken before 14 Southwest Naples, Florida 34117, birth date 1/6/45, 15 in any action? 15 height 6' 1. It has not expired. License number 16 A. Yes. 16 N400293450060. This is your driver's license, Mr. 17 Q. Approximately, how many times? 17 Null? 18 A. Memory serves me correctly, twice. 18 A. Yes. 19 Q. What kinds of actions were those? 19 Q. Is that the only driver's license that you 20 A. A real estate dispute in Texas in 1990. 20 have? 21 Q. The two times that your deposition was 21 A. Yes. 22 taken was in that particular action? 22 Q. Can you tell me where do you reside? 23 A. That was taken in that action and also in a 23 A. My permanent address is in Florida at 650, 25th 24 personal injury suit in New York. 24 Street." 25 Q. Those are the only times you've ever had 25 Q. Do you also have a resident in New York ( . Page6 Page 8 1 your deposition taken? 1 City? r~ 2 A. To the best of my knowledge. 2 A. Yes, 225 West 83rd Street, New York 10024. 3 Q. I'm certain that you've had an opportunity 3 Q. What is the telephone number at that 4 to confer with Mr. Feldman before this deposition; is 4 address? 5 that correct? 5 A. (212) 724-1378. 6 A. Yes. 6 Q. How much of the year do you reside in New 7 Q. I just want to be certain that you 7 York City? 8 understand that this is a discovery proceeding 8 A. Approximately, four months. 9 pursuant to court rules. It is not a trial. There 9 Q. The other eight months of the year? 10 is no jury. There's no Judge. The format is that 1o A. In Florida. 11 you are sworn to tell the truth. You understand 11 Q. Did you have a business operation located 12 that? 12 in Florida? 13 A. Absolutely. 13 A. My business is in New York. 14 Q. I will ask you questions and I want you to 14 Q. Is in New York City? 15 answer those questions to the best of your ability. 15 A. Yes. 16 Do you understand that? 16 Q. What is your role in the business? 17 A. Yes, I do. 17 A. I'm the CEO. 18 Q. If there is any question that I do ask you 18 Q. Can you tell me what is the business that 19 that you do not understand, I want you to indicate to 19 you are in? 20 me that you do not understand the question. 20 A. The business is involved in the dissemination of 21 A. Correct. 21 health information and product to the general public, 22 Q. If you do not indicate I understand that, 22 Q. Is this a profit or nonprofit business? 23 then it will be assumed from a reading of the 23 A. Profit. 24 transcript at a later time that you did understand 24 Q. Does it involve the sale of any goods? 25 the question? 25 A. Yes, sell vitamin supplements, books and audio Page 5 - Page 8 Condenselt! ™ Page9 Page 11 1 tapes. 1 litigation? 2 Q. I would like to ask you to keep your level 2 A Yes, his name is Gary Krupp. 3 of your voice up so that I can hear you clearly, your 3 Q. K-R-- 4 attorney can hear you clearly and the court reporter 4 A U-P-P. 5 can hear you. 5 Q. Who is he? 6 A Fine. 6 A. He is the coo of our company. 7 Q. When did you begin to conduct the business 7 Q. Would you please clue me in on COO? 8 of the sale of various food supplements and vitamins? 8 A The chief operating officer. Corporate 9 A. Approximately, 15 years ago. 9 operating officer. 10 Q. So, approximately, 1985; is that correct? 10 Q. Did you speak to him in regard to this 11 A. Yes, in that vicinity. 11 deposition? 12 Q. What was the location of your business at 12 A No. 13 that time? 13 Q. You just spoke to him in regard to this 14 A. My location then was 200 West 86th Street, New 14 case? 15 York, New York 10024. 15 A. Yes. 16 Q. Is that different than your present 16 Q. Is there any other individual that you 17 location? 17 spoke to in your company or an associate of yours in 18 A Yes, my present location is 139-141 Franklin 18 regard to this case? 19 Street, New York, New York 10013. 19 A. No. Not in any specific way. Anyone as far as 20 Q. When did you move to that address? 20 knowing that we had a case might have been collecting 21 A. Approximately,seven years ago. 21 information on _thecase. There is a Joseph Chunga. 22 Q. Is there a warehouse there? 22 C-H-U-N-G-A. 23 A. Yes, there is. 23 Q. What is that person's title? 24 Q. About how many square feet do you lease? 24 A He's comptroller. 25 A Approximately,4500. 25 Q. Are there any other persons that you had Page 10 · Page 12 1 Q. Approximately,how much merchandise do you I discussions with concerning this case? 2 inventory at any given time there? 2 A. Not any actual discussions I'm aware of. 3 A. Approximately,$250,000 at the high end. 3 MR. FELDMAN: Excuse me. If I can just 4 $100,000 at the low end. 4 interrupt, is Chunga with an A or O? 5 Q. Before coming here today, can you tell me 5 THE WITNESS: A. 6 what did you do to prepare for the depositiontoday? 6 Q. All right. I'll correct that. So other 7 A. Nothing. 7 than your attorneys, the only individuals you've 8 Q. You didn't speak to anyone? 8 discussed any aspect of this litigation, this claim, 9 A. First time I spoke with anyone was for a few 9 by Universal is with Gary Krupp and Joseph Chunga? 10 moments before we met. My cab was late getting here, 1o A. As far as discussing the actual merits of the 11 so I only had a few minutes to speak with him. I had 11 case, that is correct. As far as asking individuals 12 done nothing prior to this to prepare for this. 12 to collect data that you had requested, numerous 13 Q. Did you have any conversationwith 13 individuals in different areas would have been asked 14 Mr. Levine? 14 dependingupon their awareness of those documentsto 15 A. I have not spoken. 15 collect those documents. 16 Q. Mr. Small is another attorney you use? 16 Q. Let's talk about the other individuals. 17 A. No. 17 A. There is an Emily. 18 Q. So you haven't spoken to either of them 18 Q. These are individuals with whom you 19 concerningthis case? 19 instructed to gather information? 20 A. Concerningthe case, I haven't spoken with 20 A. I did not, no. 21 Mr. Levine except once at the very beginning and 21 MR. FELDMAN: Could we have a little 22 Mr. Small only on a few occasions and neither about 22 clearer question? .:. 23 this deposition. 23 MR. GOLDSMITH: Sure. 24 Q. Is there anyone, business associates of 24 Q. You mentioned a minute ago that there were 25 yours, which you've discussed the nature of this 25 other individuals that you had spoken to in terms of Page 9 - Page 12 Cond.enselt!™ Page 13 Page15 1· gatheringinformation that had been requested; is 1 MR. GOLDSMITH: Let's mark this as an 2 that correct? 2 exhibit. 3 A. Yes,but I wasnot clearon your question.Now 3 MR. FELDMAN: Why don't we mark a copy. 4 I'm a litter cleareron the question.I did not 4 That's an original. I will be sending these to 5 speak with these peopledirectly. I instructedJoe 5 you or you can take a copy today. Mark that. 6 and Gary Kruppto collectall documentsyou requested 6 (At which time the document was marked). 7 to havewith you from whoevermight be awareof the 7 A. I thought -- 8 nature and locationof thosedocuments. I havenot 8 MR. FELDMAN: There is no question pending 9 spokenwith those individuals personally. 9 right now. 10 Q. But you knowwho they are? 10 Q. That's P-19. 11 A. No, I don't 11 A. I thought you meant did I actually look at the 12 Q. You started -- 12 documents that were being sent to your office from 13 A. I knowone. I knowan Emily. 13 your discovery request and the answer is, no, I have 14 Q. What'sher last name? 14 not seen any of those documents. 15 A. I'm not sure. 15 Q. And would like to ask you whether you 16 Q. Whatis her position? 16 reviewed the document request that we prepared and 17 A. She worksin the fulfillmentdivision. Joseph 17 sent to your attorneys? 18 Chungawould know the individualsthat he was working 18 A. Yes, I did. 19 with. 19 Q. What did you do after you reviewed it? 20 Q. DoesEmily work in the officeon Franklin 20 A. I gave it to him. I said supply them with 21 Street? 21 whatever they request. 22 A. Yes,she does. 22 Q. You said that you reviewed a piece of 23 Q. Is she sortof a secretaryto you? 23 paper that's a document request? 24 A. No,she is not. 24 A. Yes. 25 Q. Do you havea secretary? 25 Q. And then what did you do? Page 14 Page 16 1 A. No, I do not. 1 A. I asked that whatever you required be fulfilled. 2 Q. Do you have an assistant? 2 Q. Who did you ask that of! 3 A. No, I do not. 3 A. I believe that was Marvin Small. 4 Q. You type your own letters? 4 - Q. Who's one of your attorneys? 5 A. Yes, I do. 5 A. Yes. 6 Q. Would you after this depositionget the 6 Q. Did you have any discussion then with any 7 last name of Emily and advise your attorney? 7 employee? 8 A. Yes, I will. 8 A. No, I did not. 9 Q. Have you personally been involved with the 9 Q. Now a moment ago I asked you whetheryou 10 collectionof any documents that were requestedby 10 had reviewed interrogatories,written questionsthat 11 the plaintiff in connectionwith this action? 11 the plaintiff had request.e4and you first indicated 12 A. No, I have not. 12 no and now you've corrected that to indicate that you 13 Q. Have you reviewed any of the 13 have reviewed them? 14 interrogatoriesin this case that were propounded 14 A. Yes, I have. I was not clear on what 15 upon the plaintiff? 15 interrogatorieswere. I'm not a lawyer. 16 A. No, I have not. 16 Q. The interrogatoriesthat counsel has just 17 MR. FELDMAN: Excuse me. I think there 17 produced have been marked P-19. You've seen these 18 may be some confusion here. We have obtained 18 before? 19 Answers to Interrogatorieswhich Mr. Null, I 19 A. Yes. 20 suggestedthis morning signed. I think there 20 MR. FELDMAN: Just for the record, they're 21 may be some confusion. This is the document 21 just the answers to the interrogatories. The ( . 22 that the questionrefers to. 22 questions are separate. 23 THE WITNESS: I didn't understand what 23 Q. Did you review the questions, as well? 24 the questionwas. I reviewed this document. 24 These are the answers. 25 MR. FELDMAN: Perhaps we should -- 25 A. Yes. Page 13 - Page It Condenselt! ™ Page 17 Page 19 1 Q. When did you review them? 1 I think the question was just -- 2 A. Sometime ago when they were first given to our 2 MR. GOLDSMITH: Was he aware of an order 3 attorney. 3 entered November 28th that required him to 4 Q. ·Months ago? 4 appear for a deposition within 60 days and to 5 MR. FELDMAN: For the first time? 5 produce Answers to Interrogatories within 30? 6 MR. GOLDSMITH: Yes. 6 That's the question. 7 A. That would have been -- I will have to -- so as 7 MR. FELDMAN: At what time? 8 to be more clear on that date, I would like to confer 8 MR. GOLDSMITH: Let's find out if he was 9 with the attorney about the date. 9 aware. 10 Q. So you don't know right now? 10 Q. Were you aware at any time that such an 11 A. Not at this moment. I would like to be accurate 11 order was entered? 12 in my answer. 12 A. I was not aware that I had to answer anything 13 Q. Fine. If you don't know, just state you 13 within 30 days. 14 don't know. Did you after you reviewed the written 14 Q. Were you aware that you had to appear 15 interrogatory questions, did you personally write out 15 within 60 days? 16 any answers? 16 A. I'm a little confused because let me refresh my 17 A. No, I did not. 17 memory. I was out of the city on tour and there was 18 Q. Did you dictate any answers? 18 a mention of a date and that there was some 19 A. Yes, I did. 19 discussion of where the venue would be, either New 20 Q. On a dictating tape machine? 20 York or New Jersey. 21 A. No, I did not. 21 MR. FELDMAN: Meaning, for your 22 Q. How did you dictate them? 22 deposition? 23 A. They were done with Marvin Small. 23 THE WITNESS: Yes. 24 Q. You dictated them to your New York 24 A. At that time where the whole trial would take 25 attorney's secretary? 25 place and everything else and I was not really clear Page 18 Page 20 1 A. No, to him personally. 1 on specifics beyond that assuming those were going to 2 Q. He takes shorthand or took notes? 2 be happening down the road a bit. 3 A. Took notes. 3 Q. So you're saying you weren't clear when 4 Q. So he didn't transcribe them verbatim? 4 you were to have to appear? 5 A. No. 5 A. No, I don't. That is not something that's fresh 6 Q. Did he go over question by question? 6 in my memory. 7 A. Yes, he did. 7 MR. GOLDSMITH: Can we mark this order 8 Q. Have you carefully reviewed all of these 8 P-20? 9 questions that counsel has just presented and has 9 (At which time the document was marked). 10 been marked P-19? 10 Q. You say that you were not aware that you 11 A. Yes, I have. 11 had to produce Answers to Interrogatories within 30 12 Q. Are they all completely accurate? 12 days of November 28th. Is that what you're saying 13 A. Yes, they are. 13 today? 14 Q. Were you aware that an order had been 14 A. I'm saying I cannot be specific. That is not 15 entered by the court November 28, 2000 that required 15 something that I would want to give you an inaccurate 16 that you appear for depositions within 60 days of 16 answer and I do not have those facts at hand at the 17 that order and that you also provide Answers to 17 moment. 18 Interrogatories within 30 days of that order? 18 Q. The Answers to Interrogatories that you 19 A. I'm not clear as to the exact time, but I was 19 have signed and have been marked when were they 20 out of the city at that time and when my attorney let 20 signed? Were they signed today? 21 me know that we would have a court appearance -- 21 A. That's today's date. {_ 22 MR. FELDMAN: Let me caution you, Mr. 22 Q. I indicated to your attorney,. Mr. Feldman, ' - 23 Null, not to get into any discussions between 23 before today that in view of the fact that you had r 24 you and any of the attorneys, either myself or 24 not produced any documents as required by the court 25 Mr. Small because they are privileged matters. 25 order and in view of the fact that you had not Page 17 - Page 20 Condenselt! ™ Page 21 Page23 1 provided Answers to Interrogatories, today's 1 A Yes, it was. 2 deposition could not be completed and that we would 2 Q. What state were you in? 3 want to redepose you after we had the opportunity to 3 A California, Denver, L.A., Charlotte, South 4 review the documents as well as the Answers to 4 Carolina, Memphis, Tennessee; Atlanta, Georgia; Fort s Interrogatories. s Lauderdale, Florida; Detroit, Michigan, among other 6 MR. GOLDSMITH:I would like to know on 6 places. 7 the record whether or not we can stipulate that 7 Q. Do you get paid for the appearances or is 8 this wilness will appear again voluntarily after · 8 it strictly for promotions of the books? 9 the documents have been produced that were 9 A It's no pay. 10 required under the court order and I've an 10 Q. Do you sell the books at the appearances? 11 opportunity to review the interrogatory answers 11 A At some I do. I personally do not. The venues, 12 . that have been produced today? 12 Barnes and Noble, would sell them for instance. 13 MR. FELDMAN: I don't know that that is a 13 Q. When you have a speaking engagementdon't 14 proper deposition question for the witness. 14 you sell some of the books? 15 MR. GOLDSMITH:It's not to the witness. 15 A Generally, I do not 16 It's to you. 16 Q. Someone would sell them? 17 MR. FELDMAN: We had previously discussed 17 A No, they do not. Unless, it's a book store. 18 that and I have previously told you we intend to 18 Q. You mentioned that you had spoken to Gary 19 give you the right to redepose the witness. 19 Krupp, chief operating officer of the company? 20 MR. GOLDSMITH:With that understanding, I 20 A Yes, I had. 21 don't want to finding out his excuses as to 21 Q. How long has he been employed? 22 where he was and so forth. I do have one ~2 A. Approximately, six months. 23 question about what he meant about being on 23 Q. Does he have any firsthand knowledge of 24 tour. Other than that, I won't belabor that 24 facts relating to this litigation? 25 issue. 25 A Yes, he would. Page 22 Page24 I MR. FELDMAN: That is welcoming news. 1 Q. What would those facts be? 2 MR. GOLDSMITH:As long as there is an 2 A. I'm not clear as to all of his firsthand 3 understandingthat there would be a further 3 knowledge, but he has spoken with individuals 4 deposition of Mr. Null. 4 concerning the short counting of the vitamins we s MR. FELDMAN: It's understood that you 5 purchased from Universal and the results of 6 will have an opportunity to redepose after 6 independent laboratory analysis of discrepanciesin 7 you've reviewed documents. 7 the potencies that we requested from Universal versus s Q. What do you mean you were on tour? 8 those that were delivered from Universal. 9 A. I'm an author and authors are required to go out 9 Q. You also indicated that you spoke to 10 around the United States or go to various locations 10 Joseph Chunga? 11 to do lectures and book signings and media events to 11 A. That's correct. 12 help in the promotion or dissemination of the 12 Q. What knowledge would he have concerning 13 infonnation of your books. 13 this litigation? 14 Q. Is that a requirement of your publisher? 14 A. He would have been comptroller during the period 15 A. Yes. 15 of time th~t the challenges of the quality of potency 16 Q. Who is your publisher? 16 and issues concerning the fees for storing vitamins 17 A. Seven Stories Press. 17 between Gary Null and Associates, Inc. and Universal 18 Q. Do you have any ownership interest in that 18 and Gary Sacks occurred. 19 company? 19 Q. How long was he employed? 20 A. No, I do not. 20 A Five years, six years. 21 Q. What were the dates of your tour? 21 Q. What's his function? 22 'A. The tour started in November and I was still 22 A. His function is to assist in reviewing accounts 23 doing lectures as late as a week ago. 23 payable, accounts receivable and reconciliation of 24 Q. Was this out of the State of New York and 24 our statements. 25 New Jersey? 25 Q. Did he review the particular bills that Page 21 - Page 24 Condenselt!™ Page 25 Page27 1 are at issue in this case? 1 remember it took months to try to go back and review 2 A. I believe he did. 2 all of those invoices. It was not somethingthey 3 Q. Did he review them with you? 3 could do in a day. It took months to .reviewall 4 MR. FELDMAN: Excuse me. I'd like to note 4 those to see how much we had been billed and added r 5 an objection to the form of this current line of 5 into a figure that had been paid and it was a ( 6 questioning directed to what the wi1ness 6 substantial amount of money and also he asked me a 7 believes Mr. Chunga knows or doesn't know. The 7 question. He said had we actually ordered all the 8 wi1nessreally can only speak authoritatively of 8 product that Universal had claimed we ordered and I 9 what tie knows and as to anyone else, there's 9 said check our records and we could not see anywhere 10 inevitably an element of surmise, unless 10 in our company nor did I have any knowledge of many 11 Mr. Chunga told him what he knows or doesn't 11 of the items that Gary Sacks' company was owed them 12 know and to that extent I want to note the 12 that represented this amount that you referred to, so 13 objection. 13 we did not feel that we were responsible for paying 14 Q. Mr. Null, when you answer a question you 14 that amount. 15 have to answer based upon your own knowledge or if IS Q. Any of it? 16 you had a direct conversation with Mr. Krupp or 16 A. To my knowledge, none of it. The amount that 17 Mr. Chunga. 17 was owed to you referred to the overcharges was 18 A. I understand that. 18 substantially over the amount that was being alleged 19 Q. We don't want you to guess. We don't want 19 that we owed them. 20 you to conjecture what, maybe, Mr. Krupp or 20 Q. The overcharges that you're referring to, 21 Mr. Chunga did, so let's back up for a second? 21 you're talking about some storage charges? 22 A. I appreciate the clarification. 22 A. Storage charges-that Gary Null and Associates 23 Q. You state that Mr. Chunga is your 23 never approved. 24 comptroller, a financial person with the company? 24 Q. Did you have direct contact with any 25 A Yes. 25 individuals at Universal? Page 26 Page28 1 Q. Universal is suing you and associates for 1 A Yes, I did. 2 $288,000? 2 Q. Approximately, how many years were you 3 A. Yes. 3 purchasing product from Universal? 4 Q. Did you have any discussion with 4 A. Approximately, give or take, a few years, 12 S Mr. Chunga regarding that particular claim? s years. 6 A. No. 6 Q. Do you have any idea as to how much in 7 Q. Do you know whether Mr. Chunga reviewed 7 terms of dollar value a product you purchased over 8 the invoices that are the subject of this lawsuit? 8 that period of time? 9 A. Yes, he did. 9 A. I would have to review our sales figures. I 10 Q. Did he report to you as to whether or not 10 cannot make that statement without them. 11 they should or should not be paid or are due? 11 Q. Do you have an idea, an estimate, as to 12 A. He is stating that they should not be paid. 12 the number of products that Universal manufactured 13 Q. Did he go through item by item with you? 13 foryou? 14 A No. 14 A I would be guessing and want to be specific in IS Q. What was his basis for telling you that IS my answer. 16 the invoices should not be paid? 16 Q. You don't know whether it was a doz.en, 17 A. To the degree that I can recall specific 17 100, 200? 18 conversationsthere was not one conversation. It was 18 A I would be guessing because at different times, 19 a series as information evolved. He apprised me of 19 we would add amounts on. It wasn't as if we started 20 it that we had been charged a service fee for storing 20 at day one with our relationship with the same amount 21 vitamins that I had never approved of and no one else 21 that we have today. 22 in the company was aware of. I, as Gary Null, 22 Q. Can you describe either individually or 23 representingGary Null and Associates. Not as I, 23 through the company, the relationship with Universal 24 Gary Null, individually as the CEO of the company. I 24 from the beginning? 25 then asked him how much did that come to and I 25 A. I can certainly describe my company. I have had Page 25 - Page2: Condenselt! ™ Page 29 Page31 1 no relationship with Universal whatsoever or anyone 1 Q. More than one? 2 there. But as a representative of my company, yes, 2 A. We had two. 3 that I can be clear on. 3 Q. Who were they? 4 Q. Right Let's step back. What you're 4 A. One was a company called Synergy. 5 saying is that you dealt with them, but you're saying 5 Q. And the other? ( 6 you dealt with them on behalf of Gary Null and 6 A. I believe it was Nature's Products. Excuse me. 7 Associates? 7 At that time we did not have -- we had one. That's 8 A. Exclusively. 8 right 9 Q. Do you promote yourself only as an agent 9 Q. That was? 10 of this company? 1o A Synergy. 11 MR. FELDMAN: Object to the form. I don't 11 MR. FELDMAN: Just for clarity. We're 12 know what it means when you say when he promotes 12 talking about a period of 15, 12 years ago? 13 himself. 13 THE WITNESS: About 12 years ago. 14 Q. You promote products under your individual 14 Q. Around 1989? 15 name; is that correct? 15 A. Give or take a couple years. 16 A. No vitamins, no. They're under Gary Null and 16 Q. There was this meeting in New York and as 17 Associates. 17 a result of that meeting you were looking for another 18 Q. Did you have an early meeting with 18 supplier or a substitute supplier? 19 Universal when you first started to purchase product 19 A. Actually, I was looking for someone who could do 20 from them? 20 some of the products that my existing company 21 A. Yes. 21 couldn't do. They were not capable of doing certain 22 Q. You personally were there; is that right? 22 powders and I looked in one of the trade magazines 23 A. I was personally there representing my company. 23 and saw Universal and I went to them I had no 24 Q. Tell me when that was. 24 knowledge of them before that. 25 A. To the best of my knowledge that was around 1989 25 Q. Did the existing company, Synergy, prepare ( u Page 30 Page 32 1 in that area. 1 products pursuant to your specifications? 2 Q. Where was the meeting? 2 A. Yes, they did. 3 A. The first meeting was in New York City where 3 Q. Did they bottle the products? 4 Gary Sacks met with me in my office. 4 A. Yes, they did. 5 Q. Were there other meetings in that first, 5 Q. Did they affix labels to the products? 6 say, six months after that initial contact? 6 A. Yes, they did. 7 A. There was a meeting where I visited him at his 7 Q. Did they print the labels? 8 plant in New Jersey. 8 A Yes, they did. 9 Q. In New Brunswick? 9 Q. Did you provide that company with all of 10 A. Yes. 10 the content on the labels? 11 Q. Any other meetings during the first six 11 A. I didn't provide them with anything. I'm not in 12 months? 12 the vitamin manufacturing business. They are. I 13 A. Not that I can recall. 13 gave them the formulations. 14 Q. At the first meeting, who else was 14 Q. Then did you approve of the labels before 15 present? 15 they were affixed to the bottles? 16 A. I do not recall anyone else being present. 16 A. Yes. 17 Q. What was discussed? 17 Q. Were you looking for a total replacement 18 A. My concerns about what he could do to supply my 18 of Synergy at that time? 19 company with the highest quality standard of vitamins 19 A. No, I was not. 20 available anywhere. 20 Q. Did the discussions with Universal result 21 Q. Were you already selling vitamins at that 21 in a replacement of Synergy or were they an { ~' :. 22 time? 22 additional supplier? 23 A. Yes, we were. 23 A. They were additional. 24 Q. Did you have an existing supplier? 24 Q. At that initial meeting what did you 25 A. Yes, we did. 25 discuss? Page 29 - Page 3: Condenselt! ™ Page 33 Page35 1 A. We discussed what was their standards. recollection. 2 Specifically, I was interested in lmowing what were 2 Q. Anything else discussed at the first 3 the standards that could assure that whatever product 3 meeting to the best of your recollection? 4 they prepared for Gary Null and Associates was my 4 A. Yes, there was an extensive discussion with Gary 5 standards and high end of the industry and I was 5 Sacks on proof of verification, something that I had 6 given assurance by Gary Sacks that they we would meet 6 asked him would he be able to do assays, which is a 7 and Twin Labs, who was a vitamin maker, who is an 7 method of testing whether or not the material in 8 industry leader and I said, I will give you bottles 8 question and on the label and at the potency, 9 of Twin Labs vitamins and they said we lmow all about 9 aclmowledgeit's 100 mils Vitamin C that I'm 1o Twin Labs and we believe that we can meet or exceed 10 selling. I am getting that in the product. I had 11 their level of quality. 11 great concerns because there had been some scandals 12 Q. You still think Twin Labs is still good 12 concerning companies selling products under potency 13 quality? 13 and that was a severe concern of mine with any 14 A. I have no reason to question this. I had no 14 manufacturer. He stated that his company had to 15 communicationwith Twin Labs in 20 years. There are 15 provide assays for all raw materials that they 16 other companies today that I would go into. 16 received. He, as a manufacturer. If there was a 17 Q. I'm sorry I distracted you. Let's go back 17 contaminated, bad batch or alteration, they had to 18 to what we're talking about. At this initial 18 know where the batch came from, if they got this 19 meeting, was pricing discussed? 19 Vitamin C from Hoffman and LaRoche -- I've just 20 A. Yes, it was. 20 ordered this Vitamin Kand it's under potency, they 21 Q. Did you ask what kinds of prices Universal 21 would determine that they had an assay on file that 22 would charge you? 22 they could then use as a basis within their own lab. 23 A. They said that they would have an industry 23 He talked about his labs and showed me his 24 competitiveprice. 24 lab which is one of the reasons I went to his 25 Q. Did you discuss with them at that first 25 company. I went to see his laboratory. He had a ( Page 34 Page 36 1 meeting their payment terms? 1 laboratory and I considered it impressive and spoke 2 A. Yes, we did, but over a period of time that 2 with the gentleman who was running his lab, that they 3 changed. There would be many alterations to that 3 did assays on the products which gave me a great 4 payment. 4 sense of confidence that if I order a product at a 5 Q. Do you remember what the payment terms 5 certain potency, I would get that potency. That made 6 were as stated at the first meeting? 6 the ultimate determination to go with Universal. 7 A. I do not recall that. 7 That was most of what we discussed at the meetingwas 8 Q. Do you know whether or not you supplied 8 my concern of my being able to fulfill my obligation 9 them with any type of financial statement? 9 on the product. 10 A. I don't know. 10 Q. Did you ask for copies of assays at that 11 Q. Did you supply them with any names of 11 meeting? 12 banks or credit references? 12 A. I did not ask for copies at that time, but he 13 A. If they would have asked, I would have. 13 assured me that when I saw the lab, I would see that 14 Q. Do you know whether or not, to your best 14 they had all the assays, products and when I visited 15 recollection,you supplied them with information 15 the lab, he actually took me through each step of the 16 concerningcredit references? 16 process and again, I found it impressive I was more 17 A. I do not. 17 than confident that if I ordered a product they would 18 Q. I'm referring to either personal or 18 first know that when it came to them as raw materials 19 corporate, either one? 19 it was what they ordered. They would do an 20 A. I do not. 20 independent -- make it quarantined and formulated and j 2i MR. FELDMAN: Just for clarity, the 21 by the end of formulation, they would take sample \ ,. 22 wi1nesssaid, I do not. I think what he's 22 batches that they said they were required to do by 23 saying is I do not recall. 23 FDA standards and keep a sample of that for a long 24 THE WITNESS: That's correct. 24 time on any in case. If there was a problem, they ' 25 MR. GOLDSMITH: Right. He has no 25 can go back to that batch and I saw nothing there Page 33 - Page 3( Condenselt! ™ Page 37 Page 39 l that would discourage me from believing in the 1 Q. They affix a label that you have approved? 2 processing and my having high standards that he was 2 A. Yes. ( . 3 stating at that time. 3 Q. Now you resell those products; is that r· 4 Q. Did he tell you that assays would 4 right? 5 continually be done on every product that Universal 5 A. Yes. 6 produced for you? 6 Q. Maybe at Vitamin Shoppe, maybe some other 7 A. Yes and no. Yes, he said that there would be an 7 place. Don't you have an obligation and an ongoing 8 ongoing assaying of product. It was required for 8 quality control of testing and assay the products 9 liability insurance. No, he did not say that every 9 that you purchase from your suppliers? 10 time I received a shipment of a product that it would 10 MR. FELDMAN: Objection to form. 11 have an individual assay of that shipment. We were 11 MR. GOLDSMITH: I want to know whetherhe 12 ordering batches in small quantities. I was a very 12 does that. I'll rephrase it. Withdraw that. 13 small company then and could not make a big run of a 13 Q. Do you have as part of your regular 14 vitamin line. I couldn't order 10,000 bottles of 14 practice a periodic testing of the products that you 15 something. So I would order 1,000 bottles. Initial 15 purchase to be certain that they conform to the 16 materials that were used in that batch would be 16 label? 17 assayed. I wasn't -- 17 A. We have done independent analysis of products 18 Q. Those are two different types of assays. 18 manufactured for us to proof potency. Do I believe 19 I want to make sure that the record reflects there's 19 that it's our responsibility to do so? It's our 20 one as an on bulk material purchased by Universal 20 responsibility, I believe, to make sure whatever 21 such as your examining something comes from Hoffman 21 proof we can offer to the consumer that these 22 LaR.oche. That's an entirely different individual 22 products are assayed levels have been done, but a lot 23 assay or analysis on a given product? 23 of that is based upon working with the manufacturer 24 A. I understand your question. I appreciate the 24 as well assuming that you have an open and an honest 25 difference in them. I was assured that product that 25 relationship with the manufacturer. ( a Page 38 Page4( 1 came in bulk was assayed prior to it getting there 1 Q. The question that I'm asking you, not 2 and he actually showed me the paperwork from the bulk 2 whether you did an assay once or twice on a product 3 material, but then he said and my question at the 3 you purchased or manufactured by Universal or 4 time was a legitimate argument, what if they deceived 4 manufactured by Synergy or someone else. The 5 you. He said we do that ourselves. We do our 5 question is whether or not you have in place or you 6 separate testing to make sure that our assays are 6 had in place -- 7 correct. Then for the individual runs, if I was 7 A. No, I do not. 8 going to have a run of VitaJUin C as an example on a 8 Q. Let me finish. 9 regular basis, there would be a sample assay taken 9 A. I understand the question. 10 now. Regular meant that it would be periodic, not 10 Q. Had in place a regular quality control 11 every single batch. 11 procedure to determine that the products that you 12 Q. Your company is a distributor of a 12 were selling conformed to the label? 13 product? 13 A. Our quality control was in place. As far as 14 A. Yes. 14 reviewing the literature and the statements given to 15 Q. Or many products; is that right? 15 us by the manufacturer, do we have a laboratory, 16 A. That's correct. 16 ourself, no. 17 Q. You use a company such as Synergy or 17 Q. I didn't ask you whether you had a 18 Universal to do private labeling for you. Is that a 18 laboratory or not. There are many, many laboratories 19 fair statement? 19 that do analysis of food supplements, food drugs, 20 A. Yes, it is. 20 et cetera, did you use one? 21 Q. So that what they do is they manufacture a 21 A. No. On a regular basis, no. 22 product pursuant to your specifications? 22 Q. To what extent did you use one? If not on 23 A. Yes. 23 a regular basis, tell me how much you did use 24 Q. They put it in a bottle? 24 independent laboratories to check on the quality of 25 A. Yes. 25 material you were purchasing, whether from Universal

Page 37 - Page i Condenselt! ™ Page 41 Page 43 1 or from any other company? 1 to how the original business relationship gelled 2 A. I would be happy to do that, but I must refer to 2 between yourself and Universal, so we're back in ( . 3 our records to do that to give you an accurate 3 1989. We were talking about an initial meeting that 4 answer. I would not lmow that off the top of my 4 you had with Gary Sacks in New York City anything r 5 head. 5 else that you haven't told me that transpired in that 6 Q. You can't name a single company that did 6 initial meeting? 7 analytical work for your company? 7 MR. FELDMAN: Just note for the record you 8 A. That was not my responsibility as the individual 8 pinpointed 1989. 9 within my company. 9 MR. GOLDSMITH: He said, approximately, 12 10 Q. Are you lmowledgeable as to whether there 10 years. That was the year that he used. It 11 were some analyses done on products manufactured by 11 could be a year before. 12 Universal for your company that indicated that the 12 MR. FELDMAN: Exactly. 13 product fully complied with the content label? 13 A. To the best of my recollection, I've given you 14 A. Yes. 14 at least those things that stick most prominently in 15 MR. FELDMAN: Object to form. I think 15 mymind. 16 that's kind of convoluted. 16 Q. Now the next contact, was it the meeting 17 MR. GOLDSMITH: And I think he answered 17 in New Brunswick, New Jersey or was it something in 18 it. 18 between? 19 MR. FELDMAN: You understand it? 19 A. I believe we had phone conversations and then I 20 THE WITNESS: Yes. 20 asked to see his factory which he encouraged me to do 21 Q. Do you recall that a letter was written to 21 so and I went out to visit him. 22 Universal and they were told that their products 22 Q. Had you supplied him at this point with 23 would be periodically spot checked along with other 23 any of the specific products that you wanted 24 products by independent labs for content and quality? 24 Universal to manufacture for you? ( . 25 MR. FELDMAN: You're asking. 25 A. I believe that we gave him some ideas of the • < Page 42 Page 44 1 MR. GOLDSMITH: Does he recall that there 1 formulas that we were interested in and also asked 2 was in the past that type of communication from 2 for his input on those formulas. 3 your company to Universal? 3 Q. Don't you have some type of consultant to 4 MR. FELDMAN: Object to fonn, but you can 4 help you devise a formula for a product? 5 answer it. 5 A. No. 6 A. I'm not aware of that com.muniGation. I don't 6 Q. Who devises the formulas for your 7 recall it. 7 products? 8 Q. Have you found that products • that you have 8 A. I do. 9 sold over the last 12 years, other than the ones that 9 Q. Now is there some kind of printed document 10 have been manufactured by Universal that are at issue 10 which represents the formula for each product that 11 in this suit, did not conform to label requirements? 11 you sell? 12 A. Not that I am aware of. 12 A. Yes, I would give Gary -- at that time I would 13 Q. Did you ever sell products that you !mew 13 send over a note and he would then review it and he 14 did not conform to label requirements? 14 would call me back. I can do this. I can't do 15 A. No. 15 that. Let's change this, change that because he lmew 16 MR. FELDMAN: Object to fonn. Do you mean 16 what was available in the marketplace or whether or 17 that he !mew of at the time of sale were 17 not it was cost effective and based upon those 18 nonconforming? 18 considerations we would either do a product or not do 19 MR. GOLDSMITH: That he !mew when they 19 a product. 20 were shipped out that the content did not 20 Q. What you're saying is a formula might be 21 conform to label requirements. 21 altered for price considerations or market 22 A. No. 22 availability? 23 Q. Never? 23 A. That is correct. 24 A. Not to my lmowledge. 24 Q. About how close was your visit to that New 25 Q. Now if we can go back to our discussion as 25 Brunswick manufacturing facility to that original Page 41 - Page 44 Condenselt! ™ Page 45 Page 47 1 meeting in time? 1 A. I will have to get the address. I don't have it 2 A. To the best of my recollection probably within a 2 off the top of my head. 3 three-monthperiod. 3 Q. Have you gone through that company's 4 Q. When you went to the manufacturing 4 facility? 5 facility, did they walk you through the large rooms 5 A. I have not, but representatives of my company 6 to look at the machinery and all of those kinds of 6 have on several occasions. 7 things? 7 Q. Who would that be? 8 A. Yes, they did. 8 A. I believe it was Emily and I believe it was Gary 9 Q. Do you remember the appearance of the 9 Krupp. 10 facility? 10 Q. Do you have any other suppliers besides 11 A. It was fine. I had no objections. 11 that company? 12 Q. Let's be better than fine. Was it clean 12 A. I have a supplier on Long Island. They recently 13 or dirty? 13 changed their name and I will get you the name of 14 MR. FELDMAN: Object to form. 14 that supplier. 15 Q. What was the appearance of the 15 Q. You don't know? 16 manufacturing facility? 16 A. No, they have a name change, Nature's Bounty, I 17 A. Looked like almost all manufacturing 17 believe, it is, but I can -- I do not want to give 18 facilities. It had lots of drums and the rooms that 18 you an inaccurate answer and I have visited them on 19 I was most concerned with were the blending room, the 19 numerous occasions. 20 quarantine rooms were what I considered sterile, 20 Q. Had Arcohan been a supplier of yours while 21 clean environments. The rest of it was like giant 21 Universal was also supplying you? 22 warehouse. 22 A. I believe they did supply us for a period of 23 Q. Did they have modern equipment? 23 time prior to them taking over the items from 24 A. I don't know. I couldn't tell if it was modern 24 Universal. 25 or old. 25 Q. You indicated Mr. Krupp, to your { . \ Page 46 Page 48 1 Q. Did you ever go to Synergy and look at 1 knowledge, went and inspected this company? 2 their equipment? 2 A. I believe so, to the best of my knowledge. That 3 A. Yes, I did. 3 I will confirm with him and see how many people have 4 Q. Did it have the same appearance as 4 been there and try to get their reports for you. 5 Universal' s manufacturing facility? 5 Q. Do you know when Mr. Krupp actually 6 A. It was a smaller facility and much smaller 6 started in your employee? 7 facility and the difference there was that the 7 A. He originally came on as a consultant two years 8 scientists at Synergy did the entire tour with me and 8 ago for a period of time and then came back full time 9 we spent almost an entire day there going over every 9 about six months ago. 10 little aspect. Oh, I was very familiar what they 10 Q. Do you recall when you discontinued 11 were doing. They gave me scientific and technical 11 purchasing material from Universal? 12 literature what they were doing and why their 12 A. To the best of my recollection it was sometime 13 standards were such and such, but as far as the r~st, 13 in June through -- I'm going to guesstimate. I'm not 14 their plants, those two rooms, pretty much the same. 14 going to guesstimate. Best of my medication June 15 Q. Are you still using Synergy? 15 through August, but it may have been earlier. 16 A. No, no, Synergy sold -- 16 Q. Of last year? 17 MR. FELDMAN: That answers the question. 17 A. Yes. 18 Q. Did you find a substitute supplier when 18 Q. At that second meeting with Mr. Sacks was 19 you discontinued purchasing from Universal? 19 there more discussion as to the terms of Universal 20 A. Yes, we did. 20 manufacturing product for you? 21 Q. Who was that? 21 A. Not that I can recall. (. 22 A. Arcohan Vitamins. 22 Q. Did you agree at that time that they 23 Q. Where are they located? 23 should, that you wanted them to start manufacturing 24 A. New Jersey. 24 for you? 25 Q. Where in New Jersey? 25 A. Yes. Page 45 - Page 48 Condenselt! ™ Page 49 Page 51 1 Q. Did you give them orders at that time or 1 and representatives of my company. 2 had you already given them some orders? 2 Q. Mr. Miller? 3 A. I do not believe I gave them orders before that 3 MR. FELDMAN: I think you met Mitchell. ( 4 time. To the best of my recollection we would have 4 THE WITNESS: Mitchell. Sorry. ~ 5 done it after that time. 5 Q. Do you have people that are in charge of 6 Q. Do you know what the terms of payment 6 purchasing that work for you? 7 were? 7 A. Yes, I do. 8 A. No, I do not recall. 8 Q. Who are they? 9 Q. Do you know whether that was discussed 9 A. There is one person. Her name is Emily. 10 between yourself and Mr. Sacks? 10 Q. How long has she been employed? 11 MR. FELDMAN: That second meeting? 11 A. I believe, approximately, five or six years. 12 A. No, my only recollection at that second meeting 12 Q. Have there been other people in the past 13 was examining his actual facility. 13 12 years during this period of time that you've had a 14 Q. Did anyone accompany you that visit? 14 commercial relationship with Universal who were in 15 A. No, they did not. 15 Emily's position? 16 Q. Were other people in the meeting with you 16 A. There was one person named Richard Havachek. 17 and Mr. Sacks? 17 Q. What was his role? 18 A. No, they were not. 18 A. Same as Emily's. 19 Q. Did you meet other people? 19 Q. Is he presently employed by you? 20 A. I met people as far as walking through the 20 A. No, he's not. 21 different divisions and saying hello, but I didn't 21 Q. Do you know what his present address is? 22 actually have a conversation with anyone. 22 A. No, I do not. 23 Q. Did you ever meet Dave Mitchell? 23 Q. Do you keep personnel files on employees? 24 A. I don't recall who he is. I don't recall 24 A. We do to the degree that we have needed them. I 25 meeting him. I may have. 25 will try to find you his address. ( Page 50 Page 52 1 Q. Do you know who he is? 1 Q. I would like you to provide the last known r 2 A. No, I'm sorry. I do not know who he is. 2 address of Mr. Hanachek. 3 Q. Did you ever hear his name before? 3 MR. FELDMAN: I would ask that any such 4 A. No, the only person I've ever communicatedwith 4 requests be confirmed with a letter. 5 at Universal was Gary Sacks. 5 MR. GOLDSMITH: I'm mentioning it now for 6 Q. Are you aware that he is a third-party 6 the record in case I've forgotten. 7 defendantand claims have been made that he conspired 7 MR. FELDMAN: For the record, I'm making 8 with Gary Sacks to induce you to purchase product 8 that statement for myself. I always ask that 9 that did not conform to the order? 9 any such requests be confirmed with a letter 10 A. Yes, I am. 10 because otherwise we might both forget. 11 Q. But you never had any dealings with him? 11 Q. Going back to that second meeting when you 12 A. I, as a representative of my company, did not. 12 inspected the manufacturing facility, you stated that 13 Q. Who did? 13 you were impressed with the appearance of the 14 A. I will find out that from people within my 14 facility; is that correct? 15 company. 15 A. Yes. 16 Q. So you don't know today sitting here who 16 Q. At that point you started a relationship 17 in your company ever had any dealings or contact with 17 that spanned, approximately, 12 years in terms of 18 David Mitchell? 18 purchasing product from Universal for your company; 19 A. I believe again, it's not, I believe. I don't 19 is that correct? 20 want to give you anything other than the most 20 A. Yes. 21 accurate information I can and it behooves me to take 21 Q. Who were the individuals who handled this ( . 22 the time to speak to Gary Krupp, who has been 22 account, was it yourself? 23 instrumental in our investigation of these charges 23 A. Initially, yes. 24 and counterchargesto determine all the communication 24 Q. Tell me, initially, you were the person in 25 that occurred between this Mr. Miller and individuals 25 charge? Page 49 - Page 52 Condenselt!™ Page 53 Page 55 1 A. Yes. 1 A. Yes. 2 Q. What did you do with respect to this . 2 Q. Are you placing the orders back in the 3 particular relationship between yourself, the 3 beginning? 4 company, Gary Null and Associates and Universal? 4 A. Yes. 5 A. It was just Universal and Gary Null and 5 Q. You're picking up the telephone? 6 Associates. They would supply the products and ship 6 A. Yes. 7 it to me and as I sold it, saw that we had some 7 Q. Are any of the orders written? 8 demands. I would order it again. It was a 8 A. Wasn't any reason to write them. Gary from 9 relatively small operation. 9 Universal, myself and my company had spoken 10 Q. Let's be specific as to how it worked 10 innumerable times. There were calls. He would get 11 you're involved? 11 back to me very promptly and/or I would communicate 12 A. We would supply them I would call Gary and say 12 with him promptly. 13 Gary, I need ten dozen of this Vitamin A. He would 13 Q. Either of you use a fax machine? 14 ship it out and he said all right. You'll get it 14 A. I didn't own a fax machine. 15 four weeks, month or two months. 15 Q. Did you write any letters? 16 Q. Doesn't he need to see the formula? 16 A. No. 17 A. No, this is after the formulas were prepared. 17 Q. So, essentially, it's all calling back and 18 Q. You to supply him formulas for each 18 forth on the phone? 19 product? 19 A. Yes, until about six, seven years ago. 20 A. Yes, or he would come to me and say, Gary, there 20 Q. What happened then six or seven years ago? 21 is a particular formula that I think you should be 21 A. That's when I had someone who started doing that 22 aware of that you may be able to do very well with 22 work for me. 23 and I would look at.it and agree or disagree. 23 Q. Who is that? 24 Q. How did the labels get created? 24 A. Richard Havachek and then Emily. 25 A. His art department would create the labels. 25 Q. I see. They sort of took over a function Page 54 Page 56 1 Q. Based upon the formula that you provided 1 that you had been doing up to that point? 2 him? 2 A. Yes. 3 A. That's correct. 3 Q. Were there discussions that you had with 4 Q. Did you then review the layouts of the art 4 Gary Sacks relating to the company manufacturing 5 work? 5 excessive quantities of product with your label on it 6 A. Yes, I did. 6 so that it would be available and ready for delivery? 7 Q. You, personally? 7 A. No. 8 A. Me, personally. 8 Q. You didn't have any such discussions? 9 Q. Did you approve of each layout of art work 9 A. There were no such discussions. 10 for a label before it was printed? 10 Q. How do you know that no one else had such 11 A. Yes. 11 discussions? 12 Q. Was that something that was ongoing every 12 A. No one else could make those choices but me. 13 time there was a new label for a new product that you 13 Q. Is that something that was given to the 14 had to review it? 14 company in writing that you were the only person that 15 A. Yes. 15 could make that decision? 16 Q. So this is something that spanned 12 years 16 A. That was clarified repeatedly that I alone would 17 or so? 17 be making those decisions. 18 A. Yes. 18 Q. Is there something in writing that says 19 Q. And providing him with the formulas each 19 that? 20 time there was a new product, you'd provide him with 20 A. I would have to recall by looking at our files 21 a new formula? 21 to see if I had immortalized anything early on, but 22 A. Yes, with his input. 22 to the best of my recollection, I can't provide you 23 Q. So now it's all we're talking about is 23 with that at this moment. 24 this initial establishment of the formulas, the 24 Q. Were you aware of any lag time between the 25 approval for labels and now orders have to be placed? 25 time that an order would be placed and a product Page 53 - Page 56 Condenselt! ™ Page 57 Page 59 1 could be put through the manufacturing run and get it 1 Q. If you ordered a particular product that 2 actually prepared? 2 you might have ordered, let's say, you ordered some 3 A. Yes. 3 600 Prostate Pro 60 Capsules? ( 4 Q. What was that? 4 A. Yes. 5 A. It could go anywhere depending on the 5 Q. That's a pretty small quantity I would 6 availability of products. It was standard. It could 6 think? 7 go a few days or few months. Gary, I'd ask how long 7 A. I could order less than that. 8 before this product comes out once it's available. 8 Q. Didn't you understand that when they 9 Then I would offer it for sale until I couldn't. 9 manufactured that product, they manufactured 10 Q. Was it product that you ordered specially 10 thousands and then held the balance pending your 11 manufactured for you? 11 request for it? 12 A. Yes. 12 A. Absolutely the opposite. Gary Sacks never 13 Q. They weren't off-the-shelf kinds of 13 infonned me of any such thing to the contrary. He 14 products? 14 said they could easily do small quantities and I said 15 A. No. 15 fine because I was doing -- I'm not a big company in 16 Q. Did you ever discuss with Mr. Sacks that 16 the sense of, you know, Schiffel products or one of 17 there are minimum amounts of quantities that still 17 these other companies. 18 can be made on a particular manufacturing run? 18 Q. You have no knowledge as Universal was 19 A. Yes and no. Yes, that we discussed that I could 19 asked to hold merchandise pending specific orders, 20 order some minimum quantity so that they could 20 but that had been especially manufactured for you. 21 actually afford to do their run, but it was a small 21 Is that your testimony? 22 quantity. He said he would make exceptions in my 22 A. That is correct. 23 case and make a smaller run for me, but no there was 23 Q. Are there any other employees that you 24 no upper limit established. Ever. 24 would identify who had contact with Universal over 25 Q. I'm not certain what you mean by upper 25 the last 12 years other than those you've already ( ~ Page 58 Page 60 1 limit. 1 identified? 2 A. He never said if you don't give me an order for 2 A. There is also a gentleman named Michael Miernick 3 200,000 or something, I can't ship it to you. 3 and a Lee Sandifer. We do not know where Lee's at. 4 Q. Did he discuss -- 4 I actually tried to reach him on another matter. His 5 A. That was one of the reasons I agreed to go with 5 address is no longer forwarding mail. We don't have 6 him because there were no minimums. 6 a forwarding phone number. I don't know where Mike 7 Q. Did you understand from going through the 7 is, but I will provide you with his address in our 8 manufacturing process that there are different types 8 file. 9 of equipment that can produce different quantities of 9 Q. What was Mr. Miernick's responsibilities? 1o particular types of products? Did anyone ever show 10 A. He and Lee were both the same. 11 you that depending upon how many thousands of 11 Q. What were they? 12 particular tablets or capsules they use different 12 A. Purchasing. They were the same as Richard 13 types of equipment? 13 Havachek and Emily. 14 A. No. 14 Q. So the request is for last known addresses 15 Q. Did anyone ever discuss with you that 15 of both of these individuals. Who is Margo Subari? 16 quality control is affected by whether or not 16 A. Former office manager. 17 somethingis a ~all nm or a large run? 17 Q. Let me find out, Mr. Hanachek, when was he 18 A. No, in fact, just the opposite. I was assured 18 last employed? 19 by Gary that quality would be the same no matter 19 A. I cannot be certain to that date. I can get my 20 what. Gary made it very clear to me that he was more 20 files and tell you. 21 than willing not just for me, but he said over 100 21 Q. Mr. Miernick, when was he last employed? ( . 22 other small private companies that he specialized in 22 A. Again, let me get specific dates for you. 23 doing low runs. Where other companies that I wanted 23 Q. What about Leland Sandifer, do you know 24 to do business with, I couldn't because they didn't 24 that? 25 do small runs. 25 A. Exact dates, I do not. To the best of my Page 57 - Page 60 Condenselt! ™ Page 61 Page 63 1 recollection, it was about four years ago. 1 A. No. 2 MR. GOLDSMITH: So my request will not 2 Q. No knowledge? 3 just be for the last known address, but also the 3 A. No knowledge. 4 date of termination. 4 Q. Did you ever have any discussions with 5 Q. Now we were discussing Margo Subari? 5 respect to those two products in Universal Gary Sacks 6 A. Yes. 6 in particular? 7 Q. Who was she? 7 A. Very possibly. 8 A. The person who helped with the office duties in 8 Q. Do you remember those? 9 our downtown office. 9 A. I don't remember those, but it's entirely 10 Q. Is she still employed? 10 possible. 11 A. No. 11 Q. Did Universal ever purchase either those 12 Q. When was she last employed? 12 two products? 13 A. To the best of my recollection she left in 13 A. Supreme Health Formula. 14 September of 1997. 14 Q. Suprema Health Formula? 15 Q. What kind of office duties did she do? 15 A. They did. I believe Suprema C. I am not aware 16 A. Primarily the accounts receivable and accounts 16 that they manufacture our Supreme Health. 17 payable. She also did some hiring and firing of some 17 Q. Do you know who manufactured those for 18 employees. 18 you? 19 Q. What about Lucy Alvarez. Did she work for 19 A. I do recall that Universal did at one time 20 you? 20 manufacture the Suprema Health Formula. 21 A. I believe she was a volunteer. 21 Q. You think they did? 22 Q. Can you look through your personnel files 22 A. Yes. 23 to find out her last address? 23 Q. Do you have any other recollection about 24 A. Yes. 24 Universal and that product? 25 Q. You have volunteers working for you? 25 A. No. ( . Page 62 Page 64 1 A. No, there was someone -- there were one or two 1 Q. You have no recollection about a problem 2 people at one time who I was working on an 2 with the content of your product and the label on 3 environmental health report and some people had asked 3 those two products? 4 could they volunteer because they were interested in 4 A. No. 5 the area of my research. 5 Q. Did you have some problems in terms of 6 Q. What about Emily Abela? 6 your relationship with Universal prior to the final 7 A. That's the Emily we're referring to. 7 termination problems that occurred here? 8 Q. That's her last name? 8 A. We have in the past on a few occasions have had 9 A. Yes. 9 questions concerning products that they have 10 Q. Is that her A-B-E-L-A? 1o manufactured for us. 11 A. I guess it is, yes. 11 Q. Do you remember when those problems arose? 12 Q. Have you ever had any problems with your 12 A. I cannot give you an exact date, but to the best 13 quality of the product that you sell called Supreme C 13 of my recollection about five years ago we had a 14 Powder? 14 question concerning one of the products and we 15 MR. FELDMAN: Objection to the form. I 15 notified them of our concern. 16 don't know what you mean by problems. 16 Q. Was there a meeting? 17 Q. I asked whether or not there were other 17 A. There was not with me, but there was a phone 18 products before that you had sold that did not 18 meeting with me and Gary Sacks assured me that the 19 conform with the label. Did you have any problems 19 information that he had gotten from an independent 20 with Supreme C Powder? 20 assay was incorrect and that he supplied us with a 21 A. I'm not aware of any problems that we had as far 21 letter from his laboratory showing that the amount l • 22 as potency. 22 stated on the label and the amount in the assay were 23 Q. How about the quantity? 23 one in the same which then satisfied me that it was 24 A. To the best of my knowledge, no. 24 no longer a problem. I accepted him at his word. " 25 Q. What about Suprema Health Formula? 25 Q. Do you have any recollection of a letter Page 61 - Page 64 Condenselt! ™ Page 65 Page 67 1 being sent in 1995 by Michael Miernick to Mr. Sacks 1 look at that for a minute. 2 indicating that you authoriz.ed him to have 2 A. Okay. What am I supposed to be looking for? 3 independent assays done on the complete product line 3 Q. This is one of the invoices which has been 4 and that letter indicated that each month different 4 unpaid and is part of the lawsuit. 5 products will be selected for assays and advised 5 A. All right. 6 Mr. Sacks that the IDtimate Antioxidant and the Super 6 Q. Part of the $288,000 that Universal is 7 COQ 10 were the first products analyz.ed and he's 7 suing for. I'd like you to look at those items and 8 happy to report that the results were satisfactory? 8 tell me whether any of those particular items that 9 Do you have recollection of that? 9 you see there were defective in any way. IO A. No. IO A. Well, I cannot determine at this time without 11 Q. Do you have any reason to believe that 11 looking at my notes, but I would challenge one of 12 didn't occur? 12 these items, yes. 13 A. No. 13 Q. That's what I want you to do. I want to 14 Q. Did Universal ever tell you that if you 14 show which item you claim is defective? 15 weren't satisfied with any of their products that you 15 A. I would refer to my the IDtimate Antioxidants. 16 should return? 16 Q. Is the first one? 17 A. Yes. 17 A. Yes. 18 Q. Did they have a standing policy? Were you 18 Q. 600 Antioxidants Plus Two? 19 aware of a policy of Universal to accept all returns 19 A. Yes. 20 without question for 100 percent credit? 20 Q. So you think there was something wrong 21 A. Yes. 21 with that one; is that right? 22 Q. Did you return any products from time to 22 A. Possibly, yes. 23 time to them for credit? 23 Q. Well, what do you mean possibly? 24 A. I can't recall that off the top of my head. I 24 A. If I can see the potencies on current products 25 assume if we did, we would have, yes. In fact, I do 25 that we have, have not met standards then I must ( " ,, Page 66 Page 68 1 know once. I do remember one instance where 1 assume that previous products also may not have met 2 nutrition bars that were made for us were melting in 2 standards. 3 the store. So we were treating them as returns in 3 Q. When we look at this particular product is 4 the store from people and those were not returned. 4 there a product that you have and you did not sell? 5 We did not get a credit on that. There was a 5 A. I have no idea which of these we have not sold. 6 contention on that. 6 I would not have seen this bill. There would be no 7 Q. Contention -- 7 reason for me to have seen this bill. I would not 8 A. Gary Sacks said that the temperatures in the 8 have seen any of the these bills. I don't get the 9 stores were too hot and they should have turned on 9 bills. I'm not physically in the fulfillment center 10 the air conditioner. I said, you told me they would 10 in the office where all these transactions occur. 11 last no matter what temperature and he said that's 11 Q. In this lawsuit, are you claiming that 12 the store's problem and I don't believe that we ever 12 some of the $288,000 of products sold to you were 13 got credit on those. 13 defective? 14 Q. Any other products that you returned? 14 A. Yes. 15 A. I would not know that on a day-to-day basis. 15 Q. You haven't paid for those products; is 16 Q. I have marked some invoices that are the 16 that right? 17 subject matter of this lawsuit as exhibits and I'd 17 A. That's correct. 18 like to review some of them with you. 18 Q. You also didn't pay for a lot of the other 19 A. Sure. 19 products; is that right? 20 MR. FELDMAN: Before you start this line, 20 A. We have not paid for the amounts billed, but we 21 do you think you're nearing the end? 21 also did not receive or were billed :for products that ( . 22 MR. GOLDSMITH: No, I'll give you the hour 22 we never received that were held in storage and we 23 notice. 23 never authoriz.ed that storage. So in effect a lot of 24 Q. Here's an invoice and delivery statement. 24 that 200 something bill has nothing to do with us to " 25 It's been marked as Exhibit P-1. I'd like you to 25 specify products that we were able to sell, plus the Page 65 - Page 68 Condenselt! ™ Page 69 Page 71 1 products that we did receive we are now challenging 1 question. 2 and charging in our countersu.itthat those were not 2 (Requested information was read back by the 3 at standard. 3 reporter). 4 Q. What I want to do know and I have marked 4 Q. Mr. Null, it is not a trick or surprise 5 here and so, you know, what we're going to do, we 5 question in a collection case when someone hasn't 6 have 18 invoices. 6 paid for some goods and you ask them why they didn't 7 A. I will have seen none of those invoices. 7 pay for it. 8 Q. You're going to see them today. You're 8 A. I understand. 9 going to see the products. These are the invoices 9 Q. Basically -- 10 that comprise $288,000 and what I want you to do is 10 A. Legitimate question. 11 to look at each sheet, one by one and identify for me 11 Q. -- that question was in the 12 if there is a product that you claim that was 12 interrogatories that answers were not provided until 13 delivered to you that was defective. 13 this morning and I glanced at the answers and the 14 A. All right. 14 answers are inadequate as to, basically, why you 15 MR. FELDMAN: Just for clarity, you want 15 didn't pay for some of the these things I was asking 16 him to identify items that were delivered and 16 to answers 18 and 19 in particular, "State all facts, 17 that were defective? 17 reasons why defendant has not paid plaintiff for the 18 MR. GOLDSMITH: Yes. 18 goods sold and delivered. Attach any documents which 19 A. I'd be happy to. 19 support this contention." So I really don't accept 20 Q. On the first sheet? 20 your answer that you could not anticipate this 21 A. I don't know. The Ultimate Antioxidants. 21 question or not prepare for it. That's what a 22 Q. You identified the antioxidant? 22 deposition is for. 23 A. Yes. 23 MR. FELDMAN: I am going to object that. 24 Q. You say that that was defective? 24 I did not recogniz.ea question. 25 A. Yes, I was questioning the Supreme Health 25 MR. GOLDSMITH: It's not a question. I ( .. Page 70 Page 72 1 Formula. will continue with a question, but I expect this 2 Q. Now I want to ask you on these products 2 witness to have some answers or we're wasting a 3 that you claim were defective, were they returned to 3 lot of time. 4 you first? Did you sell them? 4 A. I'm being as forthright as I can. I'm not being 5 MR. FELDMAN: I think before you even get 5 evasive. 6 to that I object. I think first we have to 6 Q. We're looking at the first invoice that's 7 determine whether they were actually received 7 been marked P-1, the first of 18 invoices that 8 by-- 8 comprise the claim in this suit of $288,000. Now is 9 A. I don't know. 9 there an issue about whether you received these goods 10 MR. GOLDSMITH: We have a bill of lading 1o that hasn't been stated in your Answers to 11 attached to it and he can say he doesn't know, 11 Interrogatories. Is there some issue as to that? 12 but I'm going to just have him identify the 12 MR. FELDMAN: I thinkthe interrogatories 13 products and I'm going to assume that they were 13 are not as you characteriz.ethem, but the record 14 delivered. 14 should reflect just in fairness that we gave you 15 Q. Unless you can show that they were not 15 the opportunity to postpone this deposition 16 delivered, are you claiming that these products were 16 after he had a chance to review the Answers to 17 not delivered to you? 17 Interrogatories and the documents which will be 18 A. I don't know. I can't answer that at this 18 produced I believe on Monday, I just received 19 moment. If not knowing what you were going to ask, I 19 them today and I have to review them and I'll 20 have no way of preparing an answer for your 20 tum them over to you. It might have been a 21 questions. Now I know what your question is, I can 21 more orderly way to proceed, you get them first ( . 22 ask the receiving department, did you receive these 22 and if you had problems with particular answers 23 products. 23 to let us know and so forth and we could have .. 24 (At which time there was a short recess taken). 24 dealt with it at that time prior to the 25 MR. GOLDSMITH: Please read back the last 25 deposition, but Mr. Null was not directly Page 69 - Page 72 Condenselt! TM Page 73 Page 75 I involved in the preparing of interrogatories and 1 Formula? 2 it's not fair to berate him because you're not 2 A. Yes, as of today, but we are doing additional ( 3 happy with Answers to Interrogatories that you 3 testing on other products. '· 4 previously not reviewed or communicated with me 4 Q. Do you know whether or not the products 5 about. 5 that are shown on P-1 were subsequently resold by 6 MR. GOLDSMITH: But I want the witness to 6 Gary Null and Associates? 7 answer. 7 A. I don't know. 8 A. I am not aware whether these were received or 8 Q. Do you have an inventory of these 9 not received. I see that you do attach a bill of 9 particular products that are shown on P-1 in your 10 lading. I just, for example, asked my office is IO warehouse? 11 there ever a problem receiving products as stated on 11 A. Yes. 12 the shipping invoice from Universal and she said all 12 Q. Is there an inventory document reflecting 13 the time. I said any major problems. Yes, we have 13 the quantities of each product, how much there is at 14 numerous occasions invoices such as this bill of 14 the warehouse? 15 lading says products on this were sent that were not 15 A. Yes. 16 received. 16 Q. Have you produced that document? 17 So that's why I had a concern because 17 A. No. 18 there had been a history of products being billed for 18 Q. Did you offer to return any of those goods 19 that we had not receive. On this particular issue 19 to Universal? 20 one that you've given me, the antioxidant and the 20 A. I'm sorry. I don't understand your question. 21 Supreme Health Formula, we have a contention 21 Could you repeat that? Do you mean return all these 22 concerningwhether or not they contain the 22 items? 23 ingredients and potencies as stated on the label and 23 Q. The only items that you claim on P-1 are 24 that's a part of our countersuit, therefore, until 24 the Antioxidant Plus Two and the Supreme Health 25 such time the court can resolve the matter that was 25 Formula, right? ( ' Page 74 Page 76 1 one of the issues that we had in the payment. 1 A. Yes. 2 Q. With respect to whether you've received 2 Q. You have some inventory of those products 3 these products before the next deposition, I'd like 3 in your warehouse? 4 you to advise your attorney and amend your Answers to 4 A. Yes. 5 Interrogatoriesto tell us what products that are 5 Q. Did you ever seek to return those and 6 being sued for you claim were not delivered. 6 reject the order? 7 A. I will do that. 7 A. From what I understand. 8 Q. Is that a fair question? 8 MR. FELDMAN: Object to form to the extent 9 A. Very fair. 9 it calls for legal conclusion. It assumes the IO MR. FELDMAN: I'd ask you to confinn that IO knowledge. 11 with a letter. 11 MR. GOLDSMITH: I will restatethe 12 A. I'm sorry. I would have had that information 12 question. 13 had I known that was going to be one of your 13 Q. Did you ever return it and say these are 14 questions. 14 no good. I don't want them. Give me credit. That's 15 Q. Is there any information that you have 15 layman's language. 16 here sitting here today that would indicate that the 16 A. In a conversation that I had with Gary Sacks. I 17 products listed in the invoice marked P-1 were not 17 brought to him our concern over the products that we 18 deliveredto the company? 18 had tested, being either not at the vitamin count 19 A. I do not have any such documentation. 19 that was in the product. That's the difference. 20 MR. FELDMAN: Today? With him today? 20 One, is vitamin count rather vitamin potency as well 21 MR. GOLDSMITH: I understand. Today. 21 as potencies. His argument was, if we test them, I ( . 22 Q. With respect to P-1 in front of you are 22 know we're going to test fine. I said, Gary, I when 23 the only products that you are making a contention 23 you said you tested them and you test them fme, I • 24 may have been defective for one reason or another is 24 believed you. I accepted your word. Now I have two 25 the Antioxidant Plus Two and the Supreme Health 25 labs that are telling me that the potency is not Page 73 - Page 76 Condenselt! ™ Page 77 Page 79 1 right on multiple batches and I'm very concerned that 1 A. Consumers. 2 this is going on and at that time I said I expect you 2 Q. How long do you keep that file? How many 3 to handle whatever problem may have occurred at your 3 years back do you keep that? ( 4 end. I had no personal further conversations Gary 4 A. I don't know because we have a special customer 5 Sacks. Never attempted to call me personally or 5 service person who just tries to resolve all the 6 speak to me after that and so had me chose to pick up 6 problems as they occur. 7 a telephone or even write me a personal letter, 7 Q. You're in the field of selling to the 8 neither of which he did, we may not be where we are 8 consumer; isn't that right? 9 today, but that was not my failure to communicate 9 A. Yes. 10 with him. 10 Q. In that field there is always some 11 If he would have said to me return 11 customer complaints; aren't there? 12 everything that we've shipped you, I would have and 12 A. Not always, but when they do occur, whenever 13 let him prove to me that everything that he's saying 13 they occur, we like to solve them to the customer's 14 is correct, but that's not what was going to happen. 14 benefit. 15 In fact, when I even asked him would he test the 15 Q. Do you sell mail order? 16 products in question. He said no. He says those are 16 A. Yes. 17 going to cost and I'm not going to pay for them and 17 Q. In the mail order business, isn't there 18 that's it. He says if you have a pill count that's 18 usually a fairly significant amount of returns for, 19 short, you return it and so I was very concerned with 19 you know, money back guaranteed, no questions asked 20 the attitude that he struck with me and the posture 20 in 30 days? Do you sell under those terms? 21 that he had held so that's why I then became 21 A. We give the person an opportunity to return the 22 concerned that where else there may be a problem. 22 product for whatever they're not happy at a 100 23 Q. When was this conversation that you had 23 percent return. 24 with Mr. Sacks? 24 Q. What's the return on your product? 25 A. To the best of my recollection, maybe, six 25 A. Infinitesimal. ( Q Page 78 Page 80 I months ago or more. 1 Q. One percent? 2 Q. Six months ago you were talking to him 2 A. Yes. 3 about the number of pills, tablets, in a bottle? 3 Q. Do you have some documented complaints 4 A. Yes, we were getting complaints from people that 4 from customers who purchased products manufactured by 5 the tablets were short. We're getting short counts. 5 Universal as to count? 6 Q. Had you ever had that kind of discussion a 6 A. Yes. 7 year or two, three years ago? 7 Q. How many? 8 A. I've had that discussion with him on one 8 A. Thus far, I believe two or possibly three. 9 previous occasion that I can recall. 9 Q. Two or three. Do you know which products 1o Q. When was that? 10 they're talking about on counts? 11 A. That was a couple of years ago. 11 A. I do not know. It was not, to the best of my 12 Q. Do you know how much the count was off? 12 recollection, one of the products that had a 13 A. I do not recall how many it was off, but it was 13 difference in potency. 14 off, but you must put yourself in the position of 14 Q. Do you know what product? 15 being a consumer. If a consumer says that's off two 15 A. I do not. Again, it would be secondhand 16 tablets, it may not seem like a lot, but what if you 16 infonnation. I would prefer to get the exact. If I 17 have 2000 customers off two. Then they start 17 told you Oil of Primrose, which I think it was, I 18 complaining then we have to make good. 18 could be wrong. 19 Q. Did you ever get 2000 customers 19 Q. How is that 140s? What's the siz.e of the 20 complaining that pills were short? 20 individual bottle? 21 A. No, I did not. 21 A. I believe it's 30 or 60 capsules. ( . 22 Q. Did you keep a file on customer 22 Q. So on the two complaints, how many did 23 complaints? 23 they complain it was short? 24 A. We have a file. Yes; we do. 24 A. I'm not sure. I would have to ask. 25 Q. Are these consumer complaints? 25 Q. You have no idea? Page 77 - Page 80 Condenselt! ™ Page 81 Page 83 1 A. I do not. 1 A. Dan White, I don't know the rest of the last 2 Q. Is there one file that you maintain with 2 names. 3 all customer complaints on all products that you 3 Q. Would you supply that to your attorney, 4 sell, consumer complaints? 4 the name of the employees who are uptown? What's the 5 A. I believe that's the case. 5 name on those offices uptown? What does it say there 6 Q. Who maintains that file? 6 on the door? 7 A. A gentleman in our office, Andre Turan. 7 A. Gary Null's Anti-aging Center. 8 T-U-R-A-N. 8 Q. How does that relate to Gary Null and 9 Q. Twhat? 9 Associates? IO A. T-U-R-A-N. 10 A. Well, it doesn't. It's just that we ran out of 11 Q. What's his position? 11 room downtown. So one room of this uptown space we 12 A. He's the office manager. 12 rent for taking orders. 13 Q. Where is his file of customer complaints 13 Q. I mean, wha:t is Gary Null's Anti-aging 14 then maintained, on Franklin Street? 14 Center? 15 A. I'm not sure. Either uptown or downtown. 15 A. That's where we film our documentaries. 16 Q. What's uptown? 16 Q. Filming studio? 17 A. Uptown, we have where we will actually take the 17 A. Yes. 18 orders when people call in and downtown is where we 18 Q. Do you spend time uptown? 19 do our fulfillment. 19 A. Not often. Rarely. I work from 225 West 83rd 20 Q. That's where your warehouse is? That's 20 Street. I don't think I've been downtown at all. 21 where you mail it out? 21 Q. You work downtown; is that right, 22 A. Yes, that's where the business of the company is 22 Franklin? 23 done. 23 A. No, I work at 225 West 83rd Street. 24 Q. Is that just your mail order business? 24 Q. But you don't know the names of the five 25 You sell to vitamin shops? 25 employees in that office that you work in? Page 82 Page 84 1 A. That's everything. 1 A. I know the first names. Not last names. 2 Q. You don't ship out of Franklin Street to 2 Q. Give us the first names. 3 vitamin shops; do you? 3 A. John. 4 A. Yes, we do. 4 MR. FELDMAN: Why don't you submit a 5 Q. So your suppliers don't do any direct 5 request for that information, rather play an 6 shipping for you? 6 memory game with the witness? 7 A. They could and have, but we don't find that 7 MR. GOLDSMITH: I would think in the 8 effective. 8 office that he works at that he knows the names 9 MR. FELDMAN: By suppliers you mean like 9 of the people? 10 Universal? 10 A. What was your mother's social security number? 11 MR. GOLDSMITH: Yes. 11 Q. That's not exactly the same. 12 A. Because what's called back-ordering, if you're 12 A. There are certain things that I've chosen to 13 out of one product, but you've received nine, they're 13 place my memory on that are cute if you want to 14 not going to pay you until they get all the product. 14 challenge me on those. 15 If we have two or three people shipping part or not 15 Q. What are the names even of the first five 16 all and if they get it all from one place at one time 16 people uptown? 17 then we know that they've got what they ordered. 17 A. I do -- it just takes me a few moments to focus 18 Q. How many square feet do you rent uptown? 18 on it, so I can recall them. 19 A. Small. I'm going to guess. Maybe, not a whole 19 MR. FELDMAN: Are you waiting for names? 20 lot bigger than where we are at. 20 MR. GOLDSMITH: Yes. 21 Q. What's that address? 21 A. Sandra. We just hired someone brand new to ( > 22 A. 307, East 92nd Street. 22 answer the phones. I don't know who they are off the 23 Q. How many employees are there? 23 top of my head. People are new employees as of last 24 A. 24 week. 'Ill About five up there in that office. 25 Q. Can you identify them? 25 Q. I'll take it that you will supply the Page 81 - Page 84 Condenselt! ™ Page 85 Page 87 1 names to your attorney? 1 A. No, we do not. 2 A. Yes. 2 Q. You do not? ( 3 Q. Downtown on Franklin Street, how many 3 A. No. 4 employees are there? 4 Q. Does the company use any type of 5 A. I cannot be specific. I can look at our files. 5 computerized accounting program? 6 Q. Would it be more than ten? 6 A. It does now. This is something new, brand new. 7 A. Probably about that number, approximately. 7 Q. When did it start to use that? 8 MR. GOLDSMITH: I'd like to request the 8 A. The last six months or so. 9 names of the downtown people. 9 Q. Have you customarily obtained reports 10 MR. FELDMAN: Any requests should be in a 1o periodically in your business to show the amount of 11 letter and I'll be happy to respond. 11 sales by product? 12 MR. GOLDSMITH: Is there an objection to 12 A. Not formally. 13 providing the infonnation? 13 Q. Well? 14 MR. FELDMAN: I have to see the request 14 A. Informally? 15 before I tell you if there is an objection. 15 Q. Yes. 16 MR. GOLDSMITH: The request is for the 16 A. Yes, I would ask Emily or Michael Miernick or 17 names of the individuals and addresses of those 17 any of the other individuals that I've previously 18 individuals who work uptown and those who work 18 named how things are going and they would say this is 19 downtown. 19 going okay or that's not going okay. 20 MR. FELDMAN: Sounds like a reasonable 20 Q. That sounds like good business to me. So 21 request. I don't expect there to be an 21 do you have copies of those reports? 22 objection to it. 22 A. No, I don't. This was just over the telephone 23 Q. I didn't finish. Some consumer complaints 23 and I would ask them that simply because they see 24 you mentioned there were two complaints to your 24 what's corning in and out. 25 knowledge about short counts on some products 25 Q. You have an accountant for the company; do ( . Page 86 Page 88 1 manufactured by Universal? 1 you not? 2 MR. FELDMAN: Objection to the form. I 2 A. Yes. 3 think it rnischaracterizes the testimony. 3 Q. What's the name? 4 Q. Did I misstate your testimony, Mr. Null? 4 A. Ron Norman. 5 A. I'm aware at this moment of only two people. 5 Q. Where is he located? 6 Q. You're not certain. One product might be 6 A. He's in Long Island. 7 Oil of Primrose and you don't know any of the 7 Q. Do you have an address for him? 8 specifics. Do you know whether the documents 8 A. I can get you his address. 9 comprising those two complaints have been produced to 9 Q. You don't keep an electronic diary or 10 counsel for production to me? 1o anything like that? 11 MR. FELDMAN: Objection. I don't want to 11 A. I just got a computer this year. 12 play games with you. There were two people that 12 Q. You don't have a palm pilot or anything? 13 have been brought to my attention who made 13 A. I can get you a phone number. 14 complaints of short counting. Each referred to 14 Q. Okay. 15 many, many complaints over the years of short 15 THE WITNESS: Could you hand me that 16 counting. It has a frequent account. It's not 16 please? 17 two events, but two people who complained 17 A. (516) 829-0900. 18 repeatedly. 18 Q. With respect to information obtained on 19 So the form of your question has been 19 the perfonnance of the company, what types of 20 misleading unintentionally, I'm sure, but I just 20 information do you obtain customarily year to year 21 wanted to alert you to that and I do expect to 21 starting from financial statements. Do you get { 22 produce those statements. 22 annual financial statements? 23 Q. Do you maintain various marketing 23 A. No, I have not gotten annual financial 24 statistical information concerning sales of products, 24 statements. I just got my income tax returns. 25 numbers of customers and that sort of thing? 25 Q. An accountant has never prepared for the Page 85 - Page 88 Condenselt! ™ Page 89 Page 91 1 company a financial statement? 1 Q. Is that what you're saying? 2 MR. FELDMAN: That's not what the witness 2 A. Yes. ( 3 said. 3 Q. With regard to the complaint that there 4 Q. Does your accountant prepare company 4 have been some products that were short counted 5 financial statements? 5 besides the two consumers who complained, whose 6 A. I have seen a few financial statements when 6 complaints I haven't yet seen, is there anything else 7 we've requested them, but otherwise, I would not 7 to support the claim that there was extensive short 8 normally be given a financial statement. I'd be 8 counting of product? 9 looking at our financial condition for my income tax 9 A. I didn't claim there was extensive short counts 10 returns. 1o of product. I claimed there was short counting of 11 Q. Where do you get information on the level 11 products and I don't have any evidence at this time, 12 of sales on a product basis? 12 but we have started an investigation to see to what 13 A. From Emily. 13 extent that short counting and that's been ongoing 14 Q. She's the one that has all that 14 since the complaints came to us. 15 information? 15 Q. Who is in charge of that investigation? 16 A. Yes. 16 A. I believe Gary Krupp. 17 Q. Do you segregate your sales and income 17 Q. Is there anyone else involved in it 18 from the sale of supplements from the income derived 18 besides him? 19 from informercials or any types of book sales or 19 A. Not that I am aware of, unless he has assigned 20 anything like that? Is that segregated? 20 someone. 21 A. Yes. 21 Q. Besides the short counting, you're 22 Q. Does Gary Null and Associates only report 22 claiming that there has been some product 23 income from the sale of food supplements? 23 manufactured by Universal that did not meet potency? 24 A. No, Gary Null and Associates reports all income, 24 A. Yes. 25 but it categorizes it. 25 Q. Is that the same as quantity? i • Page 90 Page 92 1 Q. I see. That's in the income tax returns? 1 A. No. 2 A. Yes. 2 Q. What about quantity? 3 Q. In the income tax returns where it 3 A. No. Quantity is a short counting. Quality is 4 categories the food supplements, does it break it 4 the larger issue of the two. 5 down for particular sales for particular food 5 Q. What products do you claim that there is 6 supplements? 6 an issue as to the quality? 7 A. No. 7 A. At this time? 8 Q. But Emily has records that would provide 8 Q. Yes. 9 that type of breakdown? 9 A. Co-enzyme Q 10. Pychnogenol, Muscle. Those are 10 A. Yes. 10 the three primary ones. 11 Q. What about your customer base, do you have 11 Q. The first invoice, P-1 you picked out? 12 some kind of database on all of your customers? 12 A. Antioxidant and Supreme Health Formula has 13 A. Just the orders that we keep for a period of 13 Co-enzyme Q 10. 14 time. Then we throw them away. 14 Q. If the product contained any Co-enzyme Q 15 Q. Do you have information that indicates the 15 10, you're challenging that the whole product was 16 number of orders, for example, that were filled in a 16 defective? 17 given year? 17 A. Right. 18 A. No, we're doing that. Now that's one of the 18 Q. Have you tested it? 19 things now that we're implementing. 19 A. We are in the process of testing at this moment. 20 Q. Do you have information on the total 20 Q. What products -- 21 sales, dollars? 21 A. I might mention that I had asked Gary Sacks ( . 22 A. Total income, yeah. 22 would he send me samples of back products so we can 23 Q. But you don't know the total number of 23 independently test them and he did not do so. 24 orders, is that what you're saying? 24 Q. What products? Give me all the products 25 A No. 25 that you are contending that there is something wrong Page 89 - Page 92 Condenselt! ™ Page 93 Page 95 I with in terms of quality? You have the Co-enzyme Q I returned and I like to sit and examine the document 2 10? 2 myself. I will be doing that this week. 3 A. Yes. 3 Q. You said Ultimate Antioxidant, is that the 4 Q. And what else? 4 name of the first item that's Antioxidant Plus Two? 5 A. Pychnogenoland we' re checking our Ultimate 5 A. It should be Ultimate. 6 Meal. I'm sorry, Essential Meal. I've been up for 6 Q. The one that says Supreme Health Formula, 7 two days doing overnight broadcast and working 7 does that also contain some Co-enzyme Q 10 in it? 8 nonstop. So I'm a little slow. You'll excuse me, 8 A. Yes. 9 please, for that. 9 Q. Is it your testimony today that while IO Q. Essential Meal and something else? IO you're challenging the quality of those two products, 11 A. And also we are now checking for the 11 you have not seen any laboratory report to support 12 Phosphtydleserine. 12 that those particular products were deficient in a 13 Q. Spell that. 13 particular ingredients? 14 A. P H O S P H T Y D L E S E R I N E, as well as 14 A. That's correct. 15 the L-Carnitine. 15 Q. We finished the first one, Mr. Null. If 16 Q. What's the whole name? 16 you would look at P-2, another invoice, this is 17 A. Letter L. C-A-R-N-I-T-I-N-E. 17 invoice, invoice number 76385. Looking at that, Mr. 18 Q. Do you have some basis to believe that 18 Null, do you have any knowledge whether there is some 19 there was some quality problem with L-Carnitine? 19 problem that you claim with respect to the product 20 A. We are checking it based upon our suspicion that 20 that's included in that invoice? 21 since the more expensive ingredients were the ones 21 A. No, I do not. 22 that we have consistently found under potencied 22 Q. Do you have any reason to believe that 23 substantially. These were also ingredients to test 23 this product was not delivered to your company? 24 if they were under potencied. 24 A. No, I do not. 25 Q. Which products have you concluded based 25 Q. If you look at P-3, which is invoice I " I Page 94 Page 96 I upon some scientific testing -- I 76476, it indicates one product, Muscle, this is one 2 A. Co-enzyme Q 10. 2 of the products that you just identified as your 3 Q. I would like to finish that you have 3 belief that there was a problem with the quality; is 4 tested based upon to scientific method that did not 4 that right? 5 meet the quality represented? 5 A. That's correct. 6 A. Co-enzyme Q 10. The Muscle and the Pychnogenol. 6 Q. Have you seen any laboratory report that 7 Q. What about Essential Meal, you don't have 7 establishes that there is a problem with the Muscle? 8 any basis for that yet? 8 A. Yes, I have. 9 A. Not yet. 9 Q. What laboratory report? IO Q. The same thing with respect to the -- IO A. I do not have that with me. I was not aware 11 A. Phosphtydleserine. 11 that I would need it. 12 Q. And the L-Carnitine? 12 Q. Do you remember the name of the 13 A. That's correct. 13 laboratory? 14 Q. But when we looked at P-1 and you picked 14 A. I do not. This was not done by me personally, I 5 out the two products, you' re saying that because 15 but while I was away, these tests were taken. 16 there is an ingredient in those products that 16 Q. How recent were the tests taken? 17 Co-enzymeQ 10 that you're saying that there was some 17 A. Within the last few months. 18 quality problem on those products? 18 Q. Is the Co-enzyme Q 10 a separate product I 9 A. Correct. 19 or ingredient? 20 Q. Have you had those two products analyzed? 20 A. Separate product. 21 A. We've had the Ultimate Antioxidants, I believe, 21 Q. But you mentioned in P-1 that it was an 22 tested. I will have to ask what the lab reports are 22 ingredient in the antioxidants? 23 -- I have not personally seen the latest lab 23 A. It's I thought you meant with Muscle. Co-enzyme 24 reports. I've been out of the city and have not even 24 10 is sold by itself as well as an ingredient in ·"' 25 been at the Franklin Street office since I've 25 several of the other products. Page 93 - Page 96 Condenselt! ™ Page 97 Page 99 1 Q. Is it an ingredient in Muscle? 1 Universal telling them? 2 A No. 2 A. Yes. r' 3 Q. Do you know what the -- 3 Q. That there was a particular group of 4 A Muscle, did not have the protein contents that 4 product that you were rejecting? 5 we had requested and was on the label. It was short 5 A. That is correct. 6 substantially. 6 Q. Did you make any attempt to return any of 7 Q. You keep records with respect to the lot 7 that product to Universal? 8 numbers on the products that are purchased from 8 A Universal initially told us that that was not a 9 Universal? 9 problem and they did not believe that they were going 10 A No. 10 to have it independently tested in their own labs. 11 Q. So when a delivery is made to you and it's 11 So we held off until we heard back from them to see 12 one lot and then another delivery is made, you don't 12 if there was an explanation to the error. But we 13 keep any records as to what lot numbers they come 13 never got any lab reports from Gary Sacks telling us 14 from? 14 that the Muscle was fine and we then questionedthe 15 A. No, it's all based upon the invoice. We do it 15 other labs, the lab that he claimed the Pychnogenol 16 by invoice. 16 was fine. 17 Q. The lot number is shown on the invoice? 17 We started to see that there may be a 18 A. That's correct. 18 conspiracy, possibly a Rico action involved here 19 Q. Do you know what lot numbers you had 19 where multiple individuals may have engaged in 20 tested of the Muscle? 20 defrauding us for personal gain. There is the basis 21 A I do not know that. The lab would have that. 21 of our lawsuit and the basis for us not going forward 22 Q. Where did you obtain the product that you 22 even though we have repeatedly tried to communicate 23 sent to the lab for analysis? 23 with Gary Sacks to have him send us back logs, 24 A To the best of my recollection, it came from one 24 independent logs, all of which he has declined to do 25 of these shipments. 25 and I felt if he were forthright to give us back logs ( . Page 98 Page 100 1 Q. Was it a return from any customer? 1 that we had our problems one or five years ago from 2 A. No, to have done a proper test, it would have to 2 these same products. He declined to do this. If he 3 have been a sealed unopened, right? 3 didn't have anything to hide, why didn't he share 4 Q. Was this test of Muscle something you did 4 that with us? 5 in the normal course of testing products or was there 5 Q. Once you identified a product, in this 6 some particular reason? 6 case Muscle, you had some of this on hand, you've 7 A. The particular reason was simple because we had 7 done an laboratory analysis to determine that there 8 found that the discrepancy in Pychnogenolbecause we 8 is something wrong with the product, have you made an 9 had discrepancy it sends you red flags that we ought 9 effort to return the product to the manufacturer? 10 to randomly test. We will right off the batch and 10 Yes or no? 11 again, we tested again from other lots, other 11 A. Initially, yes. 12 batches, from Universal, unopened. We then started 12 Q. You did? 13 looking at our strategy for how many other products 13 A Yes. 14 we were going to have to start testing and that's 14 Q. Can you tell me what effort you made to 15 what we're in the process of doing now. 15 return it then? Did you put it on a truck and send 16 Q. Once you found that a product may not have 16 it over? 17 been up to label, did you then isolate all of your 17 A. No, we asked Gary Sacks, to the best of my 18 inventory on that product? 18 recollection, to go through a recall process and he 19 A. Yes, we did. 19 refused to do so. 20 Q. Did you write a the letter to Universal 20 Q. I don't understand. Now. The sale was 21 advising them that you were rejecting? 21 only to you. You resold it to other customers of 22 A. Yes, we did. We even put a recall out to 22 yours; is that right? 23 request everyone return any of those products for 23 A. Yes. 24 full refund. 24 Q. Did you resell it before or after you 25 Q. You're saying that you sent a letter to 25 discovered that there was something wrong with it? Page 97 - Page 100 Condenselt! ™ Page 101 Page 103 1 A. Before. We sold nothing afterwards. 1 accurate answer. 2 Q. When did you discover there was something 2 Q. With respect to any attempt that you made 3 wrong with it? · 3 to return this, I'm still not clear on what you did ( 4 A. At different points of time. Different products 4 to attempt to return Muscle. That particular .. 5 proved under potenciz.ed at different points of time. 5 product, did you ever put it on a truck to send to 6 Q. We're only talking about one product at 6 Universal? 7 this point in time. 7 A. I don't know. 8 A. Muscle. 8 Q. You don't know? 9 Q. That's in front of you, P-3, do you know 9 A. I don't know. 10 when you discovered that there was something wrong 10 Q. I thought before you said no? 11 with the Muscle product? 11 MR. FELDMAN: You're asking the witness 12 A. I do not know that exact date. I was out of the 12 whether he put something on a truck? 13 city. I was not handling that personally. 13 MR. GOLDSMITH: No, he's the CEO. 14 Q. Was it before or after you had 14 Q. Are you not? You're the CEO? 15 discontinued buying product from Universal? 15 A. Yes. 16 A. I don't recall. 16 Q. You're making a serious claim to a 17 Q. Was it before or after Uniyersal was 17 supplier about the quality of their product and you 18 asking you to pay these bills or invoices? 18 discovered that there is something wrong with it. 19 A. I don't recall that because I was not privy to 19 I'm asking whether you had made through an or had 20 all that information on a daily basis. 20 through your employees an attempt to return the 21 Q. What daily basis? 21 merchandise? 22 A. The communicating going from Universal to my 22 A. I'm suggesting -- I'm stating that because these 23 office. I'm not downtown very often. Regular day to 23 matters were handled internally and I was on the road 24 day basis would not have been brought to my 24 most of this past year, most of 2000, I was out of 25 attention. Only when there was a major problem would 25 New York City on tour and lecturing all over the ( . Page 102 Page 104 1 somebody have told me we have a major problem. 1 country. That's primarily what I do and so I would 2 Q. You stopped these invoices that are the 2 not have known about these things. It would not have 3 subject matter of this lawsuit. Are the invoices 3 been significant. They would have been expected to 4 between February and June? 4 handle these problems between them and Universal. So 5 A. Yes. 5 do I, personally, know? I do not personally know. 6 Q. Of 2000? 6 Q. Who would personally know whether there 7 A. Right. 7 was an attempt to return any of the Muscle? 8 Q. Did you normally pay Universal timely on 8 A. Emily. 9 its bills within 30 days? 9 Q. Anyone else? 10 A. I don't know if it was between 30 or 45 days, 10 A. No. 11 but within a reasonable period of time we made effort 11 Q. Emily is a pretty key person here then, 12 to pay them. 12 right? 13 Q. In February 2000 there was a bill for 13 A. Yes, on these the matters she is. 14 $30,000 based upon P-1 invoice that I showed you. It 14 Q. Do you have a record of the quantity of 15 wasn't paid. Right. We know that. The invoice 15 Muscle that is in your warehouse? 16 wasn't paid. It wasn't paid within 30 days which as 16 A. I would now, yes. 17 March 7th. It wasn't paid within 60 days which would 17 Q. Do you have an approximation as who how 18 be April 7th? 18 much of that particular product you have? 19 A. I don't know why at this point. 19 A. I have no idea today. We have a lot of 20 Q. Did you have any information in February, 20 products. I can request that we now have that 21 March or April that there was something wrong with 21 computerized which I did not have before. So I could ._ ( 22 Muscle? 22 give you an accurate statement on that. 23 A. I cannot give you that today because I do not 23 Q. So would you please produce a computerized 24 want to make a mistake on it. I will check with the 24 statement of all inventory of any products that are 25 data and correspond and then I can give you an 25 claimed to be defective in any way? That's what I Page 101 - Page 104 Condenselt! ™ Page 105 Page 107 1 want to see. I want to see how much Muscle there is 1 was filed with the FDA? 2 on hand. I want to see how much Co-enzymeQ 10 that 2 A. Whatever we were required to do, we did. 3 was manufactured by Universal. 3 Q. What did you tell your customers about 4 MR. FELDMAN: You're talking about what's 4 that? 5 in inventory today? 5 A. I'm not aware. I don't have the letter. I 6 MR. GOLDSMITH: Right. What he has from 6 don't remember. 7 his inventory records. 7 Q. How long ago was it sent out? 8 MR. FELDMAN: Make a request and we'll 8 A. When we found the problem. 9 respond. I would remind you, though, that it is 9 Q. You don't know how long? 1o my understandingfrom several sources including 10 A. No. 11 witness's testimony today that the computer 11 Q. Have you received returns based upon that 12 system was only up and in place quite recently. 12 letter? 13 I think Gary Krupp was involved in that? 13 A. I believe we have. 14 A I actually got my first computer printout last 14 MR. FELDMAN: We're talking about Muscle 15 week. 15 still? 16 Q. This would be accurate as to your present 16 MR. GOLDSMITH: Muscle, right. 17 inventory level? 17 Q. When we talk about how much Muscle you 18 A. Yes. 18 have in inventory, do you have it separately as to 19 Q. Becausethey would have input it from a 19 how much was derived from returns and how much is 20 prior hand system? 20 original product received from the supplier? 21 A. Manual counts, that's correct. 21 A. I don't know how they categorized it. 22 Q. So it would be accurate today? 22 Q. Is it segregated? 23 MR. FELDMAN: I would assume so. 23 A. The whole batch from Universal would be 24 A. That is correct. 24 segregated. We wouldn't be selling somethingthat we 25 MR. FELDMAN: Assuming that information is 25 were recalling. ( . Page 106 Page 108 1 part of the system. 1 Q. What do you do with the any stuff that 2 A. Yes. 2 comes in from a customer if they return it? 3 MR. GOLDSMITH: The witness has indicated 3 A. We would put it back in that segregated 4 that is. 4 inventory. I'm assuming that. I have not been down 5 Q. You have information on Muscle? 5 there to physically see what they do. 6 A. Yes. 6 Q. Do you keep records on the amount of 7 Q. And you would have information on any of 7 returned merchandise? 8 other products on inventory? 8 A. I don't know. 9 A. Yes. 9 Q. Do you keep records on the amount of money 10 Q. Did you do any type of recall of this 1o that you refund to customers? 11 product? 11 A. I'm not sure. 12 A. Yes. 12 Q. Who knows the answers to these questions? 13 Q. Tell us what you did. Muscle is the 13 A. That would be Emily. 14 product I'm talking about. 14 Q. What about your comptroller? 15 A. Well, no. We recalled I believe also Co-enzyme 15 A He would probably get summaries from Emily. I 16 Q 10 and Pychnogenol. 16 don't know how they're broken down. I've never sat 17 Q. Let's talk about Muscle first. Did you 17 with him to go over this. 18 send out a recall letter to all of your customers? 18 Q. What about Gary Krupp? 19 A. Yes. 19 A No, he wouldn't know that. 20 Q. Have you produced a copy of that? 20 Q. So your chief operating officer, he 21 A. Yes, we have. I believe that's in the documents 21 doesn't know the amount of returns or the amount of 22 that you reviewed today. 22 refunds? 23 Q. Did you file that with the FDA? 23 MR. FELDMAN: Object to form. The witness 24 A. Yes. 24 can only speculate. 25 Q. Do you have somethingthat proves that it 25 MR. GOLDSMITH: He just said he doesn't Page 105 - Page 108 Condenselt! ™ Page 109 Page 111 1 know. 1 Q. Does he maintain an office downtown? 2 A I would assume he does not know. My assumption 2 A Maintains working space downtown. 3 is not based upon actually speaking with him because 3 Q. Are there other retail establishmentsthat ( 4 I'm not sure on a day-to-day basis who communicates, 4 you distribute products through like Vitamin Shoppe? .. 5 what correspondence,what documents,whether it's 5 A. There are some accounts I believe we have. I'm 6 recorded or not recorded in any logbook. I don't sit 6 going to approximate six or seven. 7 over my employees' shoulders every minute, every day. 7 Q. Did you send letters to those six or 8 Q. Joseph Chunga,what report information 8 seven? 9 would he have of refunds and returns? 9 A We did. Unequivocally,positively, 100 percent, 10 A If he does have it, the amounts that we would be 10 bet your life on it, we did. 11 challengingfor. I'm not sure that would be on the 11 Q. Do you have any interest in Vitamin 12 receivablesor payable basis. I'm not sure he would 12 Shoppe,the company? 13 have an awarenesson the amount of this. 13 A I wish I did. I'm not that smart. 14 Q. So with respect to the recall, besides 14 Q. So, you know, that a letter was sent out 15 sendingout a letter to your customers, that is every 15 to Vitamin Shoppe and other retailers, but you're not 16 customerthat purchased this product; is that 16 sure whether it was sent out to mail order people. 17 correct? 17 Is that a fair statement? 18 A Yes. 18 A Yes, that's correct. 19 Q. Did you do anything else? 19 Q. Did you make any announcementson the 20 A I believe we sent a letter to all distributors. 20 radio? You have a radio show; is that correct? 21 We followedup with phone calls to all the 21 A Yes. 22 distributors. 22 Q. How often do you broadcast? 23 Q. You mean stores like Vitamin Shoppe? 23 A Once a week. 24 A Yes. 24 Q. Where do you broadcast from? 25 Q. Are there other stores? When you say 25 A WEVD Studios. ( . Page 110 Page 112 1 distributors are those -- 1 Q. Where? 2 A They're the primary, the majority. They have a 2 A. In New York City. 3 lot of stores. 3 Q. Is that weekly? 4 Q. Besides Vitamin Shoppe, did you send out a 4 A. Once a week. 5 letter to individual mail order customers? 5 Q. So althoughyou reside in Florida you come 6 A. Anyone who we knew or had an ability to contact 6 up every week for that broadcast? 7 we did so. 7 A No, I have a studio in Florida. I also 8 Q. Does that mean that you know that there is 8 broadcast it ISD you link to WEVD. 9 a listing of all of your mail order customers and 9 Q. Your broadcasts are then from Florida; is 10 that this recall letter was sent to them? 10 that right? - 11 A. That's my understanding. 11 A Yes. 12 Q. If I wanted to verify that understanding, 12 Q. Why did you say a second ago you were 13 who would have the information, the documentationto 13 broadcastingfrom New York City? 14 show who the letter was sent? 14 A. My audience is New York City. I did not 15 A. That would be Marvin Small. 15 understand the specificity of your question. I was 16 Q. The attorney took care of mail? 16 assuming that you meant where is your radio show 17 A. Yes, took care of supervisingthat. 17 heard. It's heard in New York City. 18 Q. Didn't the letter go out of your office? 18 Q. Did you make an announcement on the radio 19 A. Yes, but Marvin was working from our office. 19 with respect to the recall on the Muscle products? 20 Q. He works inside of your office? 20 A. I don't know if I did or not. I can check. 21 A. Most of the time, yes. 21 Q. Do you have audio tapes of all the shows? 22 Q. He's an in-house attorney, in other words? 22 A. Not all of them. Some of them we do. 23 A He's our principal attorney. 23 Q. Does the company maintain audio tapes of 24 Q. Does he maintain an office uptown? 24 the shows? 25 A. No. 25 A Some, but not all. Page 109 - Page 112 Condenselt!™ Page 113 Page 115 1 Q. What would you do to check as to whether 1 responsible person for day-to-day operationsin the 2 or not you made that announcement? 2 last four years? 3 A. I'm going back there and have someone listen to 3 A. It's not been any one person. It's been Gary 4 the tapes that we have on hand. We do not keep a log 4 Krupp. It was Richard Havachek before that and Emily .. 5 of all of our tapes because the only tapes I actually 5 andAndre . 6 keep are the tapes that I may want to reuse because 6 Q. Tell me his last name. 7 of the quality of the information in the program. 7 A. Turan. T-U-R-A-N. 8 Q. Do you have any present recollection as to 8 Q. Anyone else? 9 whetheryou made a statement on the air regarding a 9 A. No. 10 voluntary recall by your company of the Muscle 10 Q. So those four people have been running 11 products? 11 day-to-day operations for the last four years? 12 A. I believe I did, but I will try to confirm that 12 A. Yes. 13 and verify it. 13 Q. With respect to the recall then, you say 14 Q. Besides the Muscle product, what other 14 you don't really know whether or not there was one 15 product did you send out a recall letter? Was this 15 letter or multiple letters on different products? 16 all in one letter or did you do this by separate 16 A. I do not know. 17 letters? 17 Q. Can you tell me what products then besides 18 A. I'm not sure because I was not here at that time 18 Muscle, did you attempt to recall? 19 when the other products -- I would have to get that 19 A. I don't know that we did anything except confirm 20 informationfrom Emily and our attorney. 20 our laboratory tests before we did anything. 21 Q. Weren't you involved in the decision 21 Q. I thought you said you sent out recall 22 making process having to do with these recalls? 22 letters to Vitamin Shoppe and other distributors? 23 A. No, I was not. 23 A. We did. 24 Q. You're not in touch with the people by 24 Q. With respect to the Muscle product? 25 telephonein your office? 25 A. That's what I believe. ( . Page 114 Page 116 1 A. I am in touch occasionally. Dependingupon the 1 Q. Did you sent out a similar letter on any 2 issues, but my life beyond these products is 2 other product? 3 substantial. My commitment to helping you and other 3 A. I believe we also did one. Again, this is not 4 people have a better life is substantial, whether you 4 somethingthat's clear in my mind on Pychnogenol. 5 chooseto accept it or not. That's where 99 percent 5 Q. Any other product? 6 of my effort goes daily, lecturing, counseling, 6 A. I don't know if we did it yet on Co-enzymeQ 10 7 broadcasting,writing, research, debating is 99 7 or not. We may be waiting for additional independent 8 percent of my time. 8 laboratory confirmation. 9 Q. You said you were the CEO of this company? 9 Q. If you have a product that you want to do 1o A. That's correct. 10 a recall, don't you have to do that immediately 11 Q. What would your role be as CEO? 11 before people consume it? 12 A. My role would be to have people in place to make 12 A. We would not have sold anymore of that product 13 reasonablechoices and be responsible for their 13 once we had the initial -- we had to stop selling 14 actions. So I would not be required to be there 14 that product. 15 because my greater mission is in the work that I am 15 Q. But the idea of a recall would be to tell 16 doing. 16 people immediately to return any inventory that they 17 Q. So you really don't play any active role 17 have on hand? Isn't that the reason for recall? 18 in the operation of Gary Null and Associates? 18 A. That is correct, assuming that we can prove that 19 A. I play an active role, but there is a difference 19 we have a concern and when our first contact with 20 between active role and creating what I consider 20 Gary Sacks occurred, he told us that we had nothing 21 unique and beneficial product and creating a role 21 to worry about and he told us send us a letter which \ . 22 that is unique and specific to handling the 22 we have that clearly and unequivocally shows that we 23 day-to-dayoperations. The second I do. The second 23 had no concern. 24 I don't. 24 Now is it reasonable in our position if he 25 Q. Who has been handling the most senior 25 has given us a letter verifying from an independent Page 113 - Page 116 Condenselt! ™ Page 117 Page 119 I laboratory that our concern was not legitimate, I'm 1 Q. Let's look. I see Muscle. Anything else? 2 not going to send out a recall letter unless I have 2 A. And our concern is also Supreme Health Formula. 3 absolute independent verification. One laboratory, 3 Q. But that you said you have no basis at ( 4 one test is not adequate by my standards. 4 this time to support that claim? 5 Q. So to date, you believe the only product 5 A. That's correct. 6 you sent a recall letter on to your distributors, 6 Q. Any other products? There is a two-page 7 Vitamin Shoppe and others similar was on the Muscle 7 invoices. You have to lift the page. 8 product? 8 A. I looked on the second page. Our other concern 9 A. That's what I believe, to the best of my 9 is L-Carnitine. 10 recollection. 10 Q. But you have no basis for that? 11 MR. FELDMAN: I think the testimony was 11 A. We have no basis, yet. 12 different. So I note an objection to that. I 12 Q. As far as you know all these other 13 think he said also Pychnogenol. 13 products were good products? 14 A. I did say Pychnogenol. 14 A. As far as I know. 15 Q. That's a whole different area and I'm 15 Q. Did you sell them to Vitamin Shoppe or 16 trying to save that because I don't believe that's a 16 some other place? 17 product that was involved in this claim, but we' 11 17 A. I don't know who we sold them to or how much we 18 get into it. 18 sold, but the assumption was that they would be sold. 19 A. Well, if you look at the Ultimate Antioxidant 19 Q. Am I correct on the assumption, until you 20 it's in there. That's one of the ingredients, 20 supposedly learned there was something wrong with 21 Pychnogenol. 21 Muscle, you sold off all the Muscle that you received 22 Q. What is Pychnogenol? 22 from Universal? 23 A. It's proanthosyadadine. 23 A. That's correct. 24 Q. This is what I meant. 24 Q. Can you give me an idea as to how much you 25 A. It's an antioxidant. 25 markup the product from its price? ( . Page 118 Page 120 1 Q. My question wasn't what the function is. 1 A. It's different for each product. Every single 2 There another name for the ingredients of something 2 product has a different markup. 3 that is called Pychnogenol. Do you know what it is? 3 Q. You say $3.45. What is that? Per what? 4 A. It's a proanthosyadadine. 4 A. Per jar. That would have been sold for around, 5 Q. Is it some type of bird seed? I don't 5 I believe, it's $24, but I have to get the current ,..,.,,.,- 6 remember. 6 price list to see. 7 A. No. 7 Q. About eight fold markup, 800 percent 8 Q. It's not another common name for that 8 markup? 9 product? 9 A. That would not have been an 800 percent. 10 A. The most common name, the name that is familiar 10 Q. Seven? 11 is Pychnogenol. Now beyond that you could find 11 A. That would have been seven and we have to factor 12 possibly people who will create other products and 12 in the shipping on weight. It generally comes to 13 that they believe are Pychnogenol, but not 13 six. We don't get six on all products. In fact, 14 Pychnogenol. 14 Vitamin E, I don't think we get two. Oil of Primrose 15 Q. I want to reserve that as a separate area 15 is very low as well. So each product you get a 16 a little later. I'd still like to go through these 16 different markup on. 17 invoices. If you would look at P-4 now which is 17 Q. Were your gross sales in the food 18 76593. Let me ask you first, is there any basis for 18 supplement products 2000 better than they were in 19 you to believe that these products were not 19 1999? 20 delivered? 20 A. They were about the same. 21 A. No. 21 Q. What was that? ( . 22 Q. Are there any particular products here 22 A. I believe it was around six, maybe, a dollar or 23 that you have a basis for your claim that some 23 so. Maybe, in that vicinity. 24 products were defective? 24 Q. Can you tell how your sales are running in 25 A. Yes. Muscle. 25 this year, yet? Page 117 - Page 120 Condenselt! ™ Page 121 Page 123 1 A. We're down this year. 1 Q. Again you've indicated that you don't have 2 Q. Do you attribute that to something in 2 a basis to support that claim? 3 particular? 3 A. We do not have yet the scientific proof. 4 A. Well, on the one hand, we attribute that to not 4 Q. Right. Any other products that you're 5 having nutrition bars to sell although we were out of 5 questioning? 6 a particular amount of product before we found 6 A No. 7 another manufacturer so we lost sales. 7 Q. Let's look at P-5. P-5 is invoice 76622? 8 Q. Why wouldn't you have been buying from 8 A. Suprema Health Formula. 9 Universal all of the products that you had no 9 Q. Do you deny that you received these 10 question? You only questioned two products, I 10 products? 11 believe? 11 A No. 12 A If it would have been one product that I found 12 Q. Did you have any problem with these 13 someone deceived me on, I would not have any 13 particular products? 14 confidence in doing business with that person. 14 A. Not that I am aware of. 15 Q. That's an issue in this lawsuit. So we'll 15 Q. Do you admit that this invoice P-5 was not 16 have to have a court decide on whether anyone 16 paid for? 17 deceivedyou. So your sales were the same. You say 17 A Yes. 18 you stopped buying from Universal in June; is that 18 Q. Do you admit that P-4 was not paid for? 19 right? 19 MR. FELDMAN: If you know? 20 A. Approximately, yes. 20 A I don't know. I'm going to guess because we're 21 Q. You're saying there was a gap in time when 21 in a suit here that it wasn't. Do I personally 22 you had no supplier? 22 know? I don't know which one is paid or not paid. 23 A Right, we were out of product and still are 23 Q. As the CEO of the company? 24 absolutely to this day. 24 A. Do I look at each invoice, no. 25 Q. When did you get your new supplier? 25 Q. Do you have reason to believe that the ( . Page 122 Page 124 1 A. Several months later. 1 allegation made by the plaintiff in this lawsuit that 2 Q. That was at Arcohan, I think you said? 2 the invoices that are set forth and itemized in the 3 A. Arcohan. 3 complaint were not paid for? 4 Q. But nevertheless, your sales were the same 4 A. I do not. 5 in 2000 as they were in 1999; is that correct? 5 Q. You do not what? 6 A. That's correct and partly that's because I had 6 A I do not know whether or not those amounts were 7 make up the difference. I offered enormous 7 or were not paid in any part. 8 discounts. Discounts just to get cash in and to turn 8 Q. Did anyone ever tell you from the company 9 product over. We had to offer a lot of new products 9 since this lawsuit has started that the company paid 1o at discount. IO those and we were wrongfully making a claim of 11 Q. Hasn't there been a significant impact 11 nonpayment? 12 over the last few years in the health food industry 12 A. No, but on the advice of counsel at a certain 13 in terms of price, some of the major pharmaceutical 13 point, it was suggested that we not pay until this 14 companies entering into competition? 14 matter has been clarified. 15 A. Not that I'm aware of. 15 Q. I understand that, but I just wanted to 16 Q. You're not aware of that? 16 dispose of the fact or at least get it on the record 17 A No. 17 that you're not claiming you paid for these, that 18 Q. So we're looking at P-4; is that right? 18 you're acknowledgingthat the invoices that are 19 A. That's correct. 19 subject matter of a lawsuit were not paid for? 20 Q. P-4 you've identified the Muscle product 20 A. That's correct. 21 and the Supreme Health Formula, but that one you have 21 Q. Now I think we're at P-6. ( . 22 no basis, but you're questioning it? 22 MR. FELDMAN: The last one marked was P-5. 23 A. Yes, and the L-Carnitine. 23 MR. GOLDSMITH: Right. 24 Q. What else? 24 Q. P-6 is invoice 76702. Looking at this 25 A. L-Carnitine. 25 invoice, is there any dispute that the products were Page 121 - Page 124 Condenselt! ™ Page 125 Page 127 1 delivered to the company? 1 A. Yes, it is. 2 A. No. 2 Q. We'll get to it. 3 Q. There's no question that this invoice was 3 A. Because it's in some of the products. It's in 4 not paid; is that correct? 4 each of the Ultimate Antioxidants. 5 A. As far as I know. 5 Q. We are at P-7 now; is that right? 6 Q. Can you identify any of these products as 6 MR. FELDMAN: Yes. P-7, that's a single 7 products that you are questioning based upon some 7 product invoice of Muscle? 8 information as to the quality? 8 THE WITNESS: Yes. 9 A. Yes. 9 Q. That's one of the products that you're 10 Q. Which products? 1o challenging? 11 A. Co-enzyme Q 10 and L-Carnitine. 11 A. Yes. 12 MR. FELDMAN: I'd like to note an 12 Q. Do you have any reason to believe that 13 objection to the form of the question. You've 13 product was not delivered? 14 asked on these various invoices as to whether 14 A No. 15 this witness disputes that the goods were 15 Q. This is invoice number 76737. P-8 is 16 actually delivered. My understanding is that 16 invoice 76833. Looking at P-8, do you have any 17 there is an issue as to delivery. 17 reason to believe that these products were not 18 This witness is testifying to the best of 18 delivered to the company? 19 his knowledge and believe that's proper and 19 A No. 20 proper for you to ask and proper for him to 20 Q. According to your best knowledge and 21 answer, but I don't want you to be misled. It's 21 infonnation, this information hasn't been paid; has 22 not a stipulation on the part of the corporation 22 it? 23 that actually receipt has occurred for 100 23 A. No. 24 percent. 24 Q. Are any of these particular products being 25 MR. GOLDSMITH: I will clear that up 25 challenged? ( . Page 126 Page 128 1 because I know which ones were not delivered. 1 A. No. 2 I'm not going to mislead him, but all of these, 2 Q. P-9 is invoice 2940. Do you know what 3 as far as I know, were delivered thus far. 3 that invoice is for? 4 MR. FELDMAN: Thus far, you're saying that 4 A. Yes. 5 there are some items, some invoices, where 5 Q. What is it? 6 delivery did not occur? 6 A. Suprema Health Formula. 7 MR. GOLDSMITH: Right. That were 7 Q. I think if you look at that carefully 8 manufactured, but not delivered. 8 that's for printing labels for that. That price 9 MR. FELDMAN: Okay. 9 doesn't agree with any kind of quantity of the actual 10 Q. Now I think the next one is P-6. 10 product; does it? 11 A P-7. 11 A. No. 12 Q. P-6 just going back to P-6. So you 12 Q. Universal print labels? 13 identified those two, the L-Carnitine and the COQ 13 A. Yes. 14 10. As to both of those, you don't have any 14 Q. Did you receive bills for the labels, the 15 scientific basis to support the challenge to either 15 printing the labels? 16 of those; is that correct? 16 A. I'm not aware if we did or not. 17 MR. FELDMAN: Objection. I think that's 17 Q. Did you think they were free or did you 18 contrary to the testimony as to Q 10? 18 think that you had to pay for them? 19 A. We have hard absolute irrefutable evidence. We 19 A. Originally, they paid for their labels. Whether 20 have hard evidence. You can always refute it, yes. 20 or not subsequent to that they included these, I 21 Q. But Muscle and COQ 10 you have something 21 would not have seen. I would not have had an 22 to support of the claim? 22 opportunity to review the individual invoices to know 23 A. And Pychnogenol. 23 that, nor for trucking, nor for any of those other 24 Q. I don't think Pychnogenol is in any of 24 expenses. 25 these invoices. 25 Q. Who's Margo? I see attention Margo. Is Page 125 - Page 128 Condenselt! ™ Page 129 Page 131 1 that someone that we reviewed, Margo Subari, right? 1 MR. FELDMAN: Object to form. I think you 2 A. Yes. 2 have to ask him whether he knows if they were 3 Q. She's someone who no longer works for you? 3 deliver or doesn't know. 4 A. No. 4 MR. GOLDSMITH: As a CEO, I'm tryingto 5 Q. Do you have a heavy turnover of employees? 5 find out whether this is a disputed issue in 6 A. No. 6 this case, the delivery. I don't think it is, 7 Q. Do you have any reason to believe that 7 but I don't think that we have to play games in 8 this bill isn't a proper bill for printing? 8 this. It should have been admitted in or it's 9 A. I don't know. 9 not disputed anyplace. 10 Q. You don't know? 10 MR. FELDMAN: I think the correct form of 11 A. I don't know. I can't answer. 11 discovery is a request for admissions, but to 12 Q. As the CEO, I have to ask as to whether 12 ask him if he disputes it, that's not a factual 13 this would be a proper bill? 13 matter. 14 A. That would be employee. 14 MR. GOLDSMITH: I think it is. He's the 15 MR. FELDMAN: Or perhaps the person who 15 CEO and I'm asking whether or not to his 16 generated the bill. 16 knowledge there is any dispute or claim that 17 Q. P-10 is 4572. Can you identify that 17 this particular product represented on this 18 invoice? 18 invoice was or was not delivered? 19 A. Yes, it is says Super Calcium Magnesium and the 19 A. I have no knowledge that it was not. Then again 20 Ultimate Antioxidant. Again, that doesn't look like 20 I have no knowledge that it was. 21 it's for product. Looks like for something else. I 21 Q. With respect to the products, the two 22 wouldn't know what it was for. 22 products shown there, you indicated that you dispute? 23 Q. It's not product because it says job 23 A. Muscle and the Suprema Health Formula. 24 number. 24 Q. The Suprema Health Formula based upon an 25 A I don't know whether it was for shipping or this 25 ingredient in there is Co-enzyme Q 10? ( Page 130 Page 132 1 tells me nothing. It shows me that somebody has 1 A. Yes. 2 charged me an amount of money. 2 Q. But you have no laboratory reports on that 3 Q. You've never seen bills before for labels; 3 that product did not have the requisite ingredient? 4 is that your testimony? 4 A No. 5 A. I haven't. 5 Q. I show you P-13, invoice 5469. This is 6 Q. Never seen a bill for a label? 6 another bill for label jobs. It's not for product as 7 MR. FELDMAN: Object to form. 7 shown on it. Do you have any information on that 8 Q. Have you ever seen a bill for label? 8 particular invoice? 9 A. Not that I am aware of. 9 A. No. 10 Q. Look at P-11, invoice 77094. Do you 10 Q. Do you know that hasn't been paid? 11 dispute that those four products were delivered to 11 A. I have no information one way or the other. 12 Gary Null? 12 Q. You don't know whether it has been paid or 13 A. No, I don't. 13 hasn't been paid? 14 Q. Do you challenge any of those four 14 A. I'm not aware that it was paid. 15 products? 15 Q. What is Grape Seed Extract? Do you know 16 A The Suprema Health Fonnula. 16 what that is? 17 Q. That's based upon? 17 A. Grape Seed Extract is an antiox.idant. 18 A. The Co-enzyme Q IO. 18 Q. Is that the same or similar to 19 Q. Because there's Co-enzyme Q 10, but you 19 Pychnogenol? 20 have no laboratory analysis of that to show that 20 A. It is not the same as Pychnogenol. 21 wasn't included; is that right? 21 Q. What's the difference? ( 22 A. Not of this particular product, but we are 22 A. The difference is that Pychnogenol is 23 testing that now. 23 trademarked and a patented product and pine bark is 24 Q. Look at P-12 invoice 77320, do you dispute 24 not. 25 that those products were delivered to your company? 25 Q. Grape seed extract is what I asked you Page 129 - Page 132 Condenselt! ™ Page 133 Page 135 1 about. 1 A Yes, I do, but I also -- on the very first part 2 A. No, it's not. 2 of our deposition, I said that Gary Sacks also had 3 Q. Why did you refer to pine bark? Is there 3 input. I suggested that he give me input because he 4 some relationship here? 4 was in a position as a manufacturer to know what 5 A. No, I misread that. I looked over here at 5 could and could not sell in the marketplace and what 6 bark. See mine says pine bark. I don't know what 6 the best formulations would be. I did not have the 7 yours said. I did misread it. 7 advantage of being in his position of manufacturing 8 Q. Right. That's what this says? 8 hundreds of different products for private labelers 9 A. All right. Then I answered your question. 9 or what might not be important or important and I can 10 Q. No, I asked you about grape seed. 1o only do it based on my research. 11 A. Why don't you try confusing me. 11 He came to me with Pychnogenol. He said 12 MR. FELDMAN: The question relates not to 12 it was a very popular item. I reviewed the 13 pine bark then, but grape seed. 13 scientific literature and found that it was true. I 14 Q. Yes, and I asked you if there is some 14 believed 100 percent in the nutritional benefit of 15 relationship. 15 Pychnogenol and we went ahead at his discretion. 16 MR. FELDMAN: So the question is not based 16 (At which time there was a short recess taken). 17 on P-13? 17 Q. I show you P-15, invoice number 77478. 18 A. All right. I thought you were referring to this 18 It's an invoice for three products. You have any 19 invoice and it says a pine bark. No, they are not 19 reason to believe that these products were not 20 the same. 20 delivered to the company? 21 Q. Next is P-14, invoice 77388. Do you have 21 A No. 22 any reason to believe that product was not delivered 22 Q. Do you contend that there is anything 23 to the company? 23 wrong with any of those three products? 24 A No. 24 A No. 25 Q. There are two lots of Muscle included on 25 Q. P-16 is invoice 6005 and is an invoice for ( I Page 134 Page 136 1 that bill? 1 a label. You don't know anything about that 2 A I see them. 2 according to your testimony on any other labels; is 3 Q. You're disputing those? 3 that correct? 4 A. Right and the Pychnogenol. 4 A. No, that's correct. 5 Q. Do you have any information as to why 5 MR. FELDMAN: Including the fact that it 6 there was no charge? What is that Pychnogenol30s. 6 relates to label, it doesn't say label on the 7 It says rebottled with new label. No charge. Do you 7 face of the document. 8 know why that was done? 8 Q. But it also doesn't indicate that it isn't 9 A. On this invoice I do not know. I don't have 9 any product here? 10 enough infonnation to know. 10 A Correct. 11 Q. Did you change your label on this product? 11 Q. It refers to a job number. P-17 is 77546, 12 A. We were forced to change our label. 12 four products on shown. Attached to it is a bill of 13 Q. When did you begin selling Pychnogenol? 13 lading. Do you have any reason to believe that those 14 A. I do not know. 14 products were not delivered to the company? 15 Q. Several years ago? 15 A No. 16 A. Several years ago. 16 Q. Is there any complaint that you have with 17 Q. You created a label of this product? This 17 any of those four products. P-18 is the last 18 is one of the Gary Null labeled products called 18 exhibit. It's invoice number 77725. To my 19 Pychnogenol. Is that what it was? 19 knowledge, although I could be incorrect, that those 20 A. Yes, we were encouraged to do so by Gary Sacks. 20 items were not delivered to the company, but were 21 Q. He's not on your payroll is he, Gary 21 produced pending orders for their release. Would you 22 Sacks? 22 look at this particular invoice? Can you tell me 23 A No. 23 which products here that you are contending there may 24 Q. What do you mean you were encouraged? 24 be something wrong with? 25 Don't you decide what products to sell? 25 A. L-Carnitine, Central Meal. Page 133 - Page 136 Condenselt! ™ Page 137 Page 139 1 Q. Central? 1 you be more specific. 2 A. Essential Meal. 2 Q. The issue questioning the quality of 3 Q. What else? 3 certain products. 4 A. Co-enzyme Q 10 and Suprema Health Formula. 4 A. Emily. 5 Q. Let's go over those four products. The 5 Q. What was the first product that she 6 L-Camitine is based upon you suspect that there may 6 questioned? 7 be something not in conformity. You don't have a 7 A. Excuse me. It was not Emily. It was Richard 8 laboratory report on that? 8 Havachek and it was Pychnogenol. 9 A. Correct. 9 Q. You think that this occurred in the year IO Q. Essential Meal, what's the basis for that? IO 2000? 11 A. The same protein that's used in Muscle is the 11 A. No, it occurred the year before, 1999. I'm not 12 same used in Essential Meal and, therefore, we have a 12 sure when in 1999. 13 suspicion not yet confirmed by independent laboratory 13 Q. Was the issue on the Pychnogenol product 14 analysis. 14 whether it infringed someone's trademark or whether 15 Q. Muscle was the quantity or quality? 15 or not it was the quality? 16 A. Quantity. 16 A. Both. 17 Q. So that's not a quantitative issue on that 17 MR. FELDMAN: Both. 18 one then? 18 Q. You're saying Richard Havachek. I'm 19 A. It's quantitative as the gram of protein. 19 sorry. I'm mispronouncing his name. He was the 20 MR. FELDMAN: But the quality of the 20 person who first raised the issue on the Pychnogenol? 21 product may be impacted by the lack of 21 A. Yes. 22 ingredients. 22 Q. How did he focus on that? How did that 23 Q. The potency? 23 come about? 24 A. Potency is grams of protein per product. 24 A. We received a lawyer's letter from the company 25 Q. You're defining it as a quantitative item? 25 who owned the trademark on Pychnogenol and then r Page 138 Page 140 1 A. Yes. 1 claiming that we were infringing their trademark. 2 Q. Essential Meal, you suspect, but you don't 2 Q. Then what did you do? Did you check on 3 have any laboratory report on that? 3 the validity of their claim? 4 A. Correct. 4 A. Yes, we did. 5 Q. Super Co-enzyme Q 10, that's the one that 5 Q. Did you do a trademark search? 6 you say you do have a report on? 6 A. Yes. 7 A. I do. 7 Q. Who took care of that? 8 Q. Supreme Health Formula, that's the one 8 A. Eric Offner. 9 that has some ingredient in it; is that right? 9 Q. He's a trademark attorney? IO A. That's correct. 10 A. Yes. 11 Q. But there is no laboratory report on that 11 Q. What did he advise? 12 product? 12 A. He said, they're right. They had the trademark 13 A. That's correct. 13 on it. 14 Q. Now do you know when you first suspected 14 Q. Did you then immediately change your 15 that there was anything wrong with any product of 15 labels and stop marketing a product under the name of 16 Universal's within the last 12 months of your dealing 16 Pychnogenol? 17 with them? 17 A. As quickly as we could, yes, but this is 18 A. I don't have a date for that. No, I do not. I 18 important. Gary Sacks argued the issue and said that 19 can only give a recollection to the best of my 19 they did not have that right and we should carry on 20 ability that it was sometime in the Spring or Spring 20 and that he meaning, Gary Sacks, sued representing 21 or Winter of 2000. 21 his company would defend that challenge completely 22 Q. Who was the person that first raised this 22 because one of the provisions that we have under Gary 23 issue? 23 Sacks, Universal could, not Gary, personally, but as 24 A. Emily. 24 a representative is personal identification against 25 MR. FELDMAN: You mean this issue? Could 25 me and Gary Null and Associates. For anything that Page 137 - Page 140 Condenselt! ™ Page 141 Page 143 1 goes wrong with the product that Universal vitamins 1 market, but we did stop selling it, I believe. We 2 manufactures for Gary Null. If they create a bad 2 wanted to hold that off before we took any drastic 3 product and I'm sued and it has nothing to do with 3 action and I don't know what period of time went by 4 me, but has to do with manufacturing practices, they 4 because I went back out on tour and I felt that the 5 are required to protect me, indemnify me and protect 5 issue had been resolved or would quietly be resolved 6 me in that litigation. 6 and next thing I heard the other company was going 7 Q. Is that a written document? 7 full force ahead and we got served and it elevated to 8 A. Yes. 8 a different level. 9 Q. That's a document that you've produced to 9 So I got back to the phone, personally, 10 counsel? 10 with Gary. I said Gary, I've just been sued and he 11 A. Yes, we have that document, sure. By the way, I 11 said that's unfortunate, but you're going to in. I 12 have that with all the people that I do business 12 said I may win, but you're going to defend me. Then 13 with. That is a necessary document without which I 13 he starts backing off and starts double talking with 14 wouldn't do business with a company. 14 me and I said Gary, you have indemnified me on these 15 Q. How does that relate to a product that's 15 products. Where's your attorney and I never got to 16 produced where someone is claiming you're infringing 16 speak with his attorney ever. 17 their trademark? 17 So finally when they were seeking a 18 A. Because Gary Sacks says we are not. He said he 18 summary judgment against me, I had to hire outside 19 spoke with his attorneys and attorneys for Universal 19 counsel and the man's name is Levine. I'm sorry. I 20 said that was a frivolous claim that they could not 20 don't know his first name. 21 hold up in court. They would not win. 21 MR. FELDMAN: Alan Levine? 22 Q. So then, what you did do? Did you have 22 A. From New York City to defend me in this action. 23 your attorney contact any attorneys for Universal and 23 So Alan and Marvin Small both went into the effort of 24 determine whether or not this was -- 24 trying to defend us and it was finally determined 25 A. My attorney spoke with Gary Sacks and asked him 25 that they were right, that we had to settle and in ( . Page 142 Page 144 1 what was the basis of that argument and I was in on 1 the process of this litigation the owners or the 2 the meeting. It was a phone meeting. 2 people running the company that owned Pychnogenol 3 Q. This is Eric Offner, is that the attorney 3 tested the batch because that was not at issue. Just 4 you're talking about? 4 the name was at issue and they said you don't even 5 A. No, Marvin Small and I spoke with Gary Sacks. 5 have what you claim you have. So not only do you not 6 Q. Marvin Small works for the company; is 6 have the right product, you don't have the right 7 that right? 7 potency for the wrong product and that just happened 8 A. Not exclusively, but he's our primary attorney 8 by surprise and that's when Gary Sacks claimed 9 of record. The bulk of what we do when we need legal 9 absolutely not true. 10 advice goes to Marvin. We were on the telephone with 10 He then provided us with a letter, which I 11 Gary where I was asking, lay out your argument. For 11 will provide you with and I believe it's in the 12 all we knew, we had a lawyer's letter and that does 12 documents that you' re going to get on Monday we just 13 not always mean that you are going to get sued. It 13 brought in. It's taken us nonstop three months. I 14 means back off. Resolve it and we can solve it. 14 believe looking, finding our documents so we were not 15 Marvin was asking how do you know we would 15 tardy in the documents, we were making every effort 16 win and Gary's argument which was -- I was firsthand 16 to get what you wanted as completely as possible. We 17 privy -- Pychnogenol has been around for a while, 17 had those batches independently tested because I just 18 long before this company and they don't have 18 didn't want to take this other company's word for it 19 exclusive right to it and we intend fully with all 19 and sure enough, it came back that it was not the 20 the products that we have, Pychnogenol, to fight them 20 right potency, but by a tremendous difference and we 21 and we're going to win and he said he spoke to his 21 had another lab do it. 22 counsel and his counsel gave him that it would be 22 We had been given the wrong product and 23 frivolous on their part. They would not in. 23 there it wasn't one single batch -- Gary was saying 24 On his insurance that we would prevail we 24 it's just one batch. We felt used and betrayed and 25 did not pull the product instantaneously from the 25 hurt because I they had to settle. So I settled with Page 141 - Page 144 Condenselt! TM Page 145 Page 147 1 that company and had to withdraw my product that Gary 1 A. We did. 2 Sacks had made from the market and Gary Sacks did not 2 Q. And? 3 defend us in that action as he was supposed to. 3 A. In fact, I had thought at one point that we had 4 Q. How much money did you pay to settle the 4 and it was decided that if we did, it would be 5 case? 5 creating an extremely hostile environment because 6 A. I don't know. I have no idea. I was not in 6 Gary Sacks at one point had made, what I considered a 7 town when any of this was occurring and I originally 7 veiled threat, that if we get sued -- that if he, 8 -- we were sued. I'm not going to use information 8 Gary Sacks as Universal, got sued, the product 9 I'm not fully cognizant on, but I remember if we went 9 pipeline is going to dry up instantaneous and as a IO to trial and lost, it would have cost us 10 small company, I could not afford to have been 11 substantially. They were seeking damages, but if we 11 without my product for a long period of time. I 12 withdraw it and apologized and everything else that 12 considered that a threat and took it seriously enough 13 they asked us to do, thenit would have been less. 13 that we decided we will deal with one issue at a time 14 So we chose the lesser path. 14 and one issue is to deal with the Pychnogenol issue 15 Q. Do you have any idea of how much money you 15 and then we will address the issue of what Gary Sacks 16 paid? 16 Universal vitamins responsibilities was in its entire 17 A. I do not. I don't want to give an inaccurate 17 manner. 18 answer. Whether it was $5,000 or $2,000 or $10,000, 18 Q. Did it resolve it in court with settlement 19 I could not tell you at this moment, but I will find 19 in 1999? 20 that out. 20 A. I think it was resolved in 2000. 21 Q. The attorney that handle the action was 21 Q. Do you know when? 22 Alan Levine? 22 A. To the best of my knowledge it was sometime in 23 A. Yes, he was. 23 the Summer. 24 Q. Do you have a duplicate of his file or 24 Q. Of 2000? 25 does he have all of the court records? 25 A. Summer or Fall of 2000. ( . Page 146 Page 148 1 A. I don't have it. He has it. 1 Q. Can you tell us when the complaint was 2 MR. FELDMAN: To assist you, I've received 2 filed? 3 a copy of the complaint and I believe the 3 MR. FELDMAN: I don't recall. I believe 4 stipulation of dismissal. I don't have the 4 Mr. Null's testimony is accurate as far as the 5 complete file. 5 dismissal. I believe that was in the Summer of 6 MR. GOLDSMITH: What I'd ask is that you 6 the year 2000. I don't know if those pleadings 7 get his whole file, bring it here, so I don't 7 were in the scope of your original request of 8 have to go to his office in Long Island. I 8 documents, but if you request them in your 9 think we ought to look at his litigation file. 9 supplemental letter that you're going to be 10 Q. How long was this action pending? 10 sending and we'll try to get that whole file. 11 A. Months. 11 I would note that the file contain 12 Q. It went to summary judgment? 12 attorney/client privilege, but the litigation 13 A. Went up to, but was not issued. 13 filings are all public record and they're 14 Q. That summary judgment motion was filed 14 available. 15 against you? 15 Q. I gather that from the way that you have 16 A. I believe it was. 16 told the story that you were annoyed with Universal 17 Q. You settled before it was heard? 17 in connection with the Pychnogenol litigation and 18 A. That's correct. 18 situation; is that correct? 19 Q. Did you ever advise Universal of the 19 A. Concerned, yes and annoyed, yes. Those are 20 status of that lawsuit? 20 correct. 21 A. Constantly they were made aware. 21 Q. You said that there was a veiled threat by 22 Q. Do you have any letters to show that? 22 Gary to stop supplying you. Did you then start to 23 A. I don't know. I would look in our files. 23 look for another supplier when he made that 24 Q. Did you consider bringing Universal into 24 statement? 25 that action? 25 A. Not at that time we did not. Page 145 - Page 148 Condenselt! ™ Page 149 Page 151 1 Q. When did he make that statement? 1 would have been in the same boat that I was in that 2 A. That was made at some point in the year 2000, 2 sued that company who had the trademark to try to 3 but I'm not sure what date it was. 3 challenge their trademark. So in reasonableness we 4 Q. That was a discussion between you and Gary 4 would wait until the outcome of that case to see what 5 Sacks? 5 our position should be. It had not been legally 6 A. Gary Sacks and myself on the telephone. 6 determined up to that point who really would have the 7 Q. About how much contact did you have with 7 final say so over Pychnogenol in the judgment of our 8 Gary Sacks in the year 2000? 8 attorney and that's what Gary Sacks continued to say 9 MR. FELDMAN: Object to form. 9 that he had been kept abreast of this. He was 10 A. I don't know. IO advocating that we're not going to do anything on 11 Q. How many calls were there, one call, six 11 this until such time that there is a final legal 12 calls, a dozen calls? 12 determination. 13 A. To the best of my recollection, I'm going to put 13 Q. Who is the other company who you say was 14 that between, maybe, four and seven calls. 14 selling product under the name? 15 Q. What was the subject matter of those 15 A. I don't know. That was something that was told 16 calls? 16 to me by our trademark attorney at the time because 17 A. Several of them had to do with Pychnogenol 17 he had seen that there were. 18 business and one of them had to do with a person who 18 MR. FELDMAN: I'm going suggest that you 19 had bitten into one of our bars and claimed that they 19 don't divulge the contents of the conversation. 20 had broken a tooth or something. I'm not sure 20 A. I can find that out for you. 21 exactly what it was and sued us and they were 21 Q. Did your trademark attorney give you an 22 supposed to be defending us, but my attorney did 22 opinion as to whether he felt this trademark was an 23 almost 99 percent of the work and I was concerned, 23 enforceable one or one that was subject to challenge? 24 why aren't your attorneys working on this. 24 MR. FELDMAN: That's pure attorney-client 25 Q. Did Gary in those conversations you had 25 communication. ( . Page 150 Page 152 1 with him talk to you about outstanding invoices that 1 MR. GOLDSMITH: It's not because it 2 were due? 2 doesn't relate to this case. It really relates 3 A. Not to me. He did not. 3 whether or not his credibility as to who he's 4 Q. Who did he talk to? 4 relying on. Is he relying upon Gary Sacks? So 5 A. He must have -- I cannot speculate because I am 5 that's outside the scope of attorney-client 6 not aware of that. I don't know who. 6 because we' re not talking about this case or his 7 Q. In the conversations with you he made no 7 representation. It has to do with what was he 8 mention to the fact that there was money outstanding 8 relying on. 9 to the company? 9 MR. FELDMAN: Attorney/client privilege 10 A. Not one single time. That is 100 percent, 1o does not depend on the subject of the 11 unequivocally correct. That does not mean that he 11 communication being related to the particular 12 did not ask someone else in my company, but that was 12 litigation. Any attorney-client communication 13 not the nature of our conversation. 13 is privilege. It's intended to be in 14 Q. Are you saying that after you had a 14 confidence. 15 trademark search by a trademark attorney who told you 15 Q. Let me pass that. Did you get an opinion, 16 that there was a valid trademark on Pychnogenol that 16 don't tell me what the opinion was, from this 17 you accepted some statements of Gary Sacks and your 17 trademark attorney as to whether or not this 18 attorney Marvin Small and continued to have the 18 trademark was likely to be able to be enforced or not 19 product sold under that label? 19 likely to be able to be enforced? 20 A. That's not what I'm saying. That's not what I 20 MR. FELDMAN: I think it's violative. 21 did say. The fact that someone has a trademark 21 MR. GOLDSMITH: No, I'm not asking what I \ . 22 application or trademark does not mean that you 22 the opinion is. I want to know whether he got 23 cannot contest it or challenge it. It's done every 23 an opinion. 24 single day. I had done that and I had one. So there 24 MR. FELDMAN: I think that' S a violative, 25 was another company also selling Pychnogenol that 25 indirect way of infringing on that confidential Page 149 - Page 152 Condenselt! ™ Page 153 Page 155 1 relationship. 1 A. Health and nutrition. 2 MR. GOLDSMITH: If we have to go to court 2 Q. For how many years have you been in this 3 on that, we will. I don't see that at all, but 3 business? 4 if you're going to answer that, you have a right 4 A. Advising people on consumer and health related 5 to do it. 5 issues, 35 years. 6 A. Let me put this answer to you, if this can help 6 Q. Is Gary Sacks younger than you are? 7 that's what we're here for. 7 A. I don't know how old he is. I've never asked 8 MR. FELDMAN: You have a right not to 8 his age. 9 divulge attorney/client communications. 9 Q. In the past, you've had some trademark 10 A. I understand and I'm here to help you. That's 10 situations that have arisen; have you not? 11 what we're here to do. I was relying substantially 11 A. I've never had any major issues with trademarks. 12 upon the advice of Gary Sacks because he was relying, 12 Q. No? 13 he claimed, upon his attorney's and this was, quote, 13 A No. 14 what they did everyday and one of the conversations I 14 Q. I thought you mentioned that there were 15 had with him, I said Gary, this could be very 15 times when you did? 16 serious. He says no we deal with this everyday. 16 A. I've never had any litigation with trademarks. 17 This is a common problem. Gary we're $150 million a 17 Q. Did you ever have a claim made by anyone 18 year business and we're growing. We'd be out of 18 that you were violating a trademark? 19 business and I remember him using the term 150. I 19 A. No, but I've applied for trademarks where the 20 never asked him how much money he made. I didn't 20 name that I was trying to use was so similar to 21 care. I remember that figure stuck in my mind. We 21 another product, if we wanted to fight it, we could 22 deal with this every single day and that's what we 22 have, but the cost of the fighting would have been 23. got our attorney's for. They're specialists in the 23 more than what I could afford, so I couldn't 24 area and I relied upon his input, direction and 24 challenge. My attorney said if you want to challenge 25 advice. 25 this name with the products that I was coming out, I ( - Page 154 Page 156 1 Q. This is when you are in the presence of 1 felt it was easier for me to create a different name. 2 Marvin Small, your company's attorney? 2 Q. Whose idea was it in the first place? 3 A. No, those are conversations that I had with Gary 3 Let's go back to this Pychnogenol product. You sell 4 Sacks, personally. 4 different products? 5 Q. Marvin is not involved in those 5 A. Correct. 6 conversations? 6 Q. How many different products do you sell? 7 A. No. 7 A. To the best of my knowledge, I'm going to 8 Q. Did you ask him for the name of your 8 suggest right now, maybe, 50, approximately. Whose 9 attorney so your patent attorney could get in touch 9 idea was it to pick Pychnogenol? 10 and they can discuss it? 10 Q. Yes. 11 A. I don't believe I asked that. It was my 11 A. Gary Sacks. 12 position that Gary knew more about the situation than 12 Q. Had you ever heard of Pychnogenol before 13 I did or could know and that my attorneys could not 13 Gary Sacks said anything to you? 14 be as wise on this issue because they weren't in the 14 A. Yes. 15 business of defending these actions everyday. So if 15 Q. You've earlier testified that Gary Sacks 16 Gary told me that we would prevail, it was no reason 16 would look at your formulas and tell you if there was 17 to doubt him. He was not an auto mechanic telling me 17 a problem, either manufacturing product or cost 18 about brain surgery. 18 problem? 19 Q. If he's a principal of Universal -- 19 A. Yes. 20 A. He told me he was. He told me he was one of the 20 Q. But and you submitted various formulas to 21 owners of the Universal. 21 him; is that right? 22 Q. You have a PhD? 22 A. Yes. 23 A. Yes. 23 Q. Now the Pychnogenol was out there being 24 Q. You hold yourself out as an expert in 24 sold before you ever attempted to sell it; is that " 25 health food matters? 25 correct? Page 153 - Page 156 Condenselt!™ Page 157 Page 159 1 A. Yes. 1 Q. Before you market any product under your 2 Q. Who was selling it? 2 name are you going to do a thorough investigationas 3 A. I don't know. 3 to every aspect of that product? ( 4 Q. But you saw it in the stores? 4 A I'll attempt. 5 A. I don't buy my vitamins in the stores, but I was 5 MR. FELDMAN: Objection to the form of the 6 aware of it, not from what it was being stores as 6 question, when you say every aspect. 7 much as from the hot information. Hot, meaning the 7 Q. You mentioned some of them. You just 8 popularizationof it. It was a whole lot of 8 talked about what kind of investigation you do to 9 information in the scientific literature and lay 9 make sure that it's supported by scientific 10 literature promoting Pychnogenol. 10 literature; is that one? 11 Q. This is your business. I assume that you 11 A. Yes. 12 try to get as much infonnation from magazines, from 12 Q. Aren't you also going to do some kind of 13 media, from wherever as to what is readily 13 investigation as to whether there is some market need 14 marketable,what's going to be popular so that you 14 or market demand for the particular products? 15 can, basically, market it? Is that a fair statement? 15 A. No, I do not do that type of research. With 16 A. That is not fair. 16 Pychnogenol,I did not look at a trademark because I 17 Q. No? 17 did not see a product that was so generic and I was 18 A. No, mine's different. I look for need. In 18 under the perfect assumption that it was generic,no 19 fact, if anything, I have never followed the trade of 19 different than Vitamin C. I am not going to 20 marketing popular products. Virtually making popular 20 trademark it. It's a generic product and, therefore, 21 products in the 30 years, I've voided. I was asked 21 has no proprietary protection. 22 Gary to market four different products that I refused 22 Q. Before you put a product out there under 23 to because I just didn't see that there was a 23 any name as a matter of course do you do a trademark 24 scientificjustification for them. Including 24 search to point out whether or not that product name 25 Phen-Fen,or the malhong, the one that was banned by 25 that you want to use is already protected by Page 158 Page 160 I the FDA because it was -- everyone was selling it and 1 copyright? 2 it was selling like hotcakes. 2 A. I do if it is a unique or original name. 3 Q. Many of your products are hot products? 3 Q. Would you consider a product with the name 4 A. Yes, but they don't have malhong in them. 4 fuel in it unique? 5 Q. The Q 10 Enzyme isn't that a hot product? 5 A. I'm sorry. 6 A. It's not a hot product, no because it's too 6 Q. Fuel. If you wanted to market a product 7 expensive and B, the average person doesn't know 7 and wanted to call it something about fuel, would you 8 enough about it. The hot products are Vitamin C, E, 8 consider that unique? 9 Beta Carotene. 9 MR. FELDMAN: Object to form. IO Q. Glucosamine,aren't you selling that? 10 MR. GOLDSMITH: I'm asking him a II A. Yes. 11 question. 12 Q. Wasn't that a hot product? 12 A. If I was using that as one of my products, I 13 A. Yes, it is and it's being sold across the board, 13 would try to find out whether or not I could use that 14 but the only reason, the scientific literature 14 name. 15 supports it. I have the scientific literature which 15 Q. How would you do that? 16 I do extensive research before I will sell a 16 A. You do a trademark search. 17 product. That's why when Gary came to me and said 17 Q. Have you done trademark searches in the 18 Pychnogenolwas a good product, I listened to him on 18 past? 19 what he felt was hot, but there was a lot of 19 A. Yes. 20 literature on Pychnogenol. My contention with Gary 20 Q. How much do they cost? 21 was not Pychnogenol. It was a scientific product 21 A. I do not know the exact amount. I believe it's ( . 22 would help in some people's condition of health,, 22 around 300 or 400 if it's a simple search. 23 yes. My concern was, I was not informed that it was 23 Q. So you're saying you only do it on those 24 a trademark product and it was given to me at an 24 products you think that you want to do it on, but 25 inferior potency. 25 it's not done on every product? Page 157 - Page 160 Condenselt! ™ Page 161 Page 163 1 A. If it's generic, I would not. If it's a 1 MR. GOLDSMITH: Supreme Court or is it -- 2 specific product, I would make every reasonable 2 MR. FELDMAN: I thinkit's Federal 3 effort to do it. 3 District. I'm pretty sure. ( 4 Q. You have Heavenly Hair Repair, that's a 4 Q. Was your deposition ever taken in that 5 product? 5 case? 6 A. Yes. 6 A No. 7 Q. Did you do a trademark search? 7 Q. Once that litigation was started did you 8 A. I believe we did. 8 decide that you were going to at some point replace 9 Q. Advanced Supreme C, did you ever do a 9 Universal as a supplier? 1o trademark search on that? 10 A. No. 11 A. I can't tell you. I cannot say. My policy is 11 Q. Well, how did you plan to make them pay 12 that we do get these trademarks if it's an original 12 for your costs that you thought that they were 13 name. 13 responsible for? 14 Q. What's High Pro Energy Nutrition? Was 14 A. It was my understanding from my conversations 15 that another product of yours? 15 with Gary Sacks that their attorneys would engage and 16 A. That's a nutrition bar. 16 that they were already looking into rather and that 17 Q. Ever do a search on the name High Pro 17 if this were to go against us which absolutely 18 Energy? 18 assured me it wouldn't, they would compensate 19 A. I can only relate to what our trademark attorney 19 whatever we had spent out-of-pocket and that we would 20 would have on file. Again, let me explain this. So 20 suffer no loss. They would deduct this from bills. 21 if you're going to ask 70 times for every product, my 21 Q. Did they do that? 22 answer is my policy with every new product if there 22 A. No. 23 is a potential to have that product challenged in the 23 Q. How did you? 24 marketplace we will do a trademark search on it. 24 A. Nor did they ever compensate us for the action 25 That is our policy assuming that policy is adhered 25 on Marvin representing us instead of them Page 162 Page 164 1 to. Then Eric Offner would do a research to see 1 representing us with this nutrition bar person. 2 whether or not it's usable or not usable. If it's 2 Q. Did you give some thought to how you were 3 not we would change the name. We've done that many, 3 going to retrieve your costs since they did not 4 many, many, many times if it's a generic where I do 4 perform as you say they promised to? 5 not believe I could trademark it and, therefore, 5 A. Because we were doing business with them and if 6 would have no need to or if everyone is using it I 6 the man tells me, don't worry, you'll deduct it from 7 wouldn't. That would be a waste of resources. 7 your invoices, then the assumption is whatever I owe 8 Q. You thought Pychnogenol was a generic 8 him is going to be deducted from that. 9 name? 9 Q. You stopped making payments in about 10 A. I was told that also. 10 January of 2000 and you didn't make any payments 11 Q. You never did a trademark search if a 11 after that? 12 company made a trademark claim against you? 12 A. Yes, we did. 13 A. That is correct and I would not have done a 13 Q. You did? 14 trademark search on Vitamin E or C or any individual 14 A. You're incorrect. You should check your facts. 15 nutrients because to the best of my knowledge it was 15 We do have some payments we made after that. 16 not legal to trademark any generic term. 16 Q. How much? Do you know? 17 Q. Is your full line of products marketed by 17 A. I do not know, but I do know checks were sent. 18 Vitamin Shoppe? 18 Absolutely. 19 A. I believe they are. 19 Q. But for the most part the orders far 20 Q. The litigation that occurred was this in 20 exceeded the payments during the first six months of 21 New York? Where was that litigation on the 21 2000; is that not so? 22 Pychnogenol? 22 A. I believe that's correct. 23 A. New York. 23 Q. Was that because you were trying to recoup 24 Q. What court was it in? 24 your costs in connection with the Pychnogenol suit? 25 A. I believe it was Manhattan. 25 A. I don't believe that was the case. Page 161 - Page 164 Condenselt! ™ Page 165 Page 167 1 Q. How did you expect to recoup your costs? 1 his colleagues have been taking people for 2 A. I believe that they would simply take that 2 determining psychiatric causes in children that do 3 amount, whatever the amount was because we didn't 3 not exist and I will challenge him and look at what I 4 know what the amount was. We hadn't been litigated 4 have to say about psychiatry. I've done the most 5 to its complete -- and they would make one lump sum. 5 extensive investigative reporting on abuses in 6 Q. Did you ever send a letter saying this is 6 psychiatric ever done by any journalist in United 7 what we incurred in cost and send it out to Universal 7 States including pathologizing the African American 8 and ask them to make a payment? 8 by psychiatry. 9 A. No, we did not because that case had just been 9 Q. I think you 're off on the question that 10 resolved recently. I mean we're talking about last 10 was asked. It was asked whether you're familiar -- 11 month or so. To the best of my knowledge this was 11 A. I'm telling you. 12 just something recent. So I never knew what the 12 Q. -- with Stephen C. Barrett and you've 13 final outcome would be. 13 indicated, basically, you are? 14 Q. Did you discuss with your attorney 14 A. Yes, I'm familiar. 15 bringing them in as a party in that lawsuit? 15 Q. And you're on his quack list that he has 16 MR. FELDMAN: Objection. It's 16 on the internet and I wanted to know whether you were 17 attorney/client privilege. 17 aware of that? 18 Q. Do you know who Stephen Barrett M.D. is? 18 A. Yes, I am. 19 A Yes, I do. 19 Q. At some point Universal was told to 20 Q. Who is he? 20 discontinue manufacturing any product that contained 21 MR. FELDMAN: You characterize him as 21 Pychnogenol on the label. Do you remember that? 22 M.D.? 22 A. Yes. 23 A Do you know who he is? 23 Q. Do you know when that was? 24 Q. I'm asking you. 24 A No. 25 A. Stephen Barrett is a non-board certified 25 Q. Wasn't that well before the institution of Page 166 Page 168 1 physician who has had his medical license rescinded. 1 that lawsuit or not? 2 Q. Do you know what kind of physician he is? 2 A. No, I don't believe so. 3 A. Claimed to have been a psychiatrist. Never 3 MR. GOLDSMITH: Can you tell us when the 4 board certified. 4 lawsuit was instituted, Mr. Feldman? 5 Q. Nothing requires you to be board 5 MR. FELDMAN: I don't know off the top of 6 certified? 6 my head. I know I have a copy of the complaint 7 A If you claim to be an expert in the given area, 7 in the office, if you want to take a short 8 I would ask what your degree is. I'd never seen a 8 recess -- 9 course that he has a degree in. He's been my nemesis 9 MR. GOLDSMITH: Was there a date on that? 10 during my adult life at least for the last 25 years. 10 MR. FELDMAN: I'm sure it was sometime in 11 He and his colleagues have tried attack and besmirch 11 either late 1999 or 2000. 12 the representations of anyone that I know that have 12 MR. GOLDSMITH: That it was instituted? 13 quality and integrity in the field and close to the 13 MR. FELDMAN: Yes. 14 pharmaceutical industry and their interests being 14 Q. At some point did you change your label on 15 served. I'm on the opposite end of that spectrum. 15 the product that had been called Pychnogenol? 16 Q. Has he criticized you in any way? 16 A. Yes, and you showed -- one of your exhibits 17 A. To me, that is an honor. Please give me more 17 shows that. 18 honors others like that. 18 Q. What did you call the products when you 19 Q. Have you looked at his internet site? 19 changed the label? 20 A. My God. I don't look at pornography. 20 A. It was referred to then as a pine bark extract. 21 Q. It's called Quack Watch? 21 Q. The same product that was in the bottle { 22 A. Isn't the technical -- let's be real on this. 22 that was called Pychnogenol is now called pine bark 23 Isn't the term quackery taking a fee for a service 23 extract? 24 you know is fraudulent? I would suggest that 24 A. Yes. 25 Mr. Barrett, I would not dignify -- he and so many of 25 Q. Is that the same thing? Page 165 - Page 168 Condenselt! ™ Page 169 Page 171 1 A. It is not the same thing according to the 1 called the products pine bark and I thought you said 2 company. 2 was that they put the same content that was in the 3 Q. I'm asking you do you think it's the same 3 bottle that had been labeled Pychnogenol in the pine ( 4 thing? 4 bark bottle? 5 MR. FELDMAN: Object to the form. I don't 5 A. That's what they told us they did and I believed 6 mean to be picky, but the one of the problems 6 him. 7 here is that the product manufactured by 7 Q. Did you have the product tested? 8 Universal did not contain that which it would 8 A. Yes, we did. 9 have had to contain in order to have the affects 9 Q. What -- 10 of Pychnogenol, I believe. 10 A. It was not the same product. It wasn't even the 11 A. I can answer your question. 11 potency on the label. 12 MR. GOLDSMITH: Don't testify. I haven't 12 Q. Was it pine bark? 13 even heard the witness say I don't know. 13 A. We don't know. We couldn't find pine bark in 14 A. I'll explain it to you. I'll answer your 14 there and we asked him to give us his samples and he 15 question. 15 wouldn't. 16 Q. There is no question, but I thought I 16 Q. You have some laboratory data on that 17 asked a different question. 17 product? 18 MR. GOLDSMITH: I'm not positive what the 18 A. We have outstanding and a lot of data, yes. 19 last question was at this point. Can you go 19 Q. Is that among the documents you produced 20 back and tell me? 20 or will be produced? 21 (Requested information was read back by the 21 MR. FELDMAN: I don't know if we have 22 reporter). 22 those test results at hand, yet. 23 Q. The product that was being sold? 23 Q. Is there any relationship between grape 24 A. No, it is not. 24 seed extract or pine bark extract and the 25 Q. It's not? 25 Pychnogenol? ( Page 170 Page 172 1 A. Absolutely 100 percent not the same product. 1 A. They are not the same product. 2 Q. Did you have any problem selling this 2 Q. Did you ever speak to the company that 3 product as pine bark? 3 held the trademark on Pychnogenol and ask them if 4 A. Yes. 4 they would license you the right to sell that 5 Q. But you sold it anyway? 5 product? 6 A. We didn't have a problem as far as a name. We 6 A. Yes, we did. 7 had a problem as far as people didn't want the pine 7 Q. When did you do that? 8 bark. They wanted Pychnogenol. 8 A. This year. 9 Q. Was it pine bark or was it something else? 9 MR. FELDMAN: This year or last year? IO A. I don't know what it was. It wasn't Pychnogenol 10 A. This year. 11 and I don't know that it was pine bark. 11 Q. 2001? 12 Q. Why didn't you have it tested? 12 A. Yes, 2000 and 2001. 13 A. Later. That's why we're bringing this 13 Q. Did you come to an agreement to license 14 countersuit. 14 the product? 15 Q. Was it pine bark? 15 A. Yes. 16 A. No. 16 Q. Now you're selling a products using the 17 MR. FELDMAN: Object to form. 17 name Pychnogenol? 18 Q. You have a product that you've just 18 A. Yes, with the proper assays done by this 19 acknowledgedyou're selling as pine bark. Are you 19 company. 20 contending that it wasn't pine bark? 20 Q. Purchasing the supply from that company? 21 MR. FELDMAN: Object to form. 21 A. Arcohan purchased it from that company and we 22 A. You mean the product I'm selling now? 22 have independent literature confirming because I 23 Q. Now. 23 didn't want to run down this road, again. So when we 24 A. Selling now. 24 told Arcohan what to do. We confinned with the 25 Q. No, Universal made another label and 25 original manufacturers, holder of the trademark of Page 169 - Page 172 Condenselt! ™ Page 173 Page 175 1 Pychnogenol are you selling to Arcohan and test our 1 -- we do not resell sell anything. We recall. 2 product and they indicate tested our product to show 2 Period. I'll say that anyway you want so you 3 3 understand it. ( that our product is containing exactly the 4 Pychnogenol that's at that potency on the label and 4 Q. I was told in this lawsuit that there was 5 we end it there. They did the same thing. Now we 5 in the beginning that there were no inventory of any 6 have the Pychnogenol at that proper potency. 6 of the goods that you complained about and that was 7 Q. Is that product costing you more now? 7 through your attorneys. Why would they tell me that? 8 A. Yes. 8 A. I do not know what they told you or why they 9 Q. Can you tell me the difference in cost? 9 would have told you. I have to confer with them. I lo A. Twice as much. 10 can't speculate on what they said and why. 11 Q. How much per bottle? 11 Q. Are you saying there are substantial 12 A. Gee, I don't have that. I can make a call and 12 quantities of this product COQ in your warehouse? 13 find out. 13 A. I do not know what's in my warehouse, as I have 14 Q. Arcohan is your present supplier? 14 not been in my warehouse in almost nine months. So I 15 A. Yes. 15 cannot tell you. I have not been present. I do know 16 Q. What is the name of the company that holds 16 that whenever we've had problems in the past with a 17 the Pychnogenol trademark? 17 product that if we had an opportunity to return it 18 A. I believe it's Horphag, H-0-R-P-H-A-G, 18 what would be our purpose to assume that I would take 19 Industries or Lab Industries. It's a second name. 19 a product that's bad and resell it? That's to show 20 THE WITNESS: Aren't they from Switzerland 20 contempt for what I respect for my audience and my 21 or something? 21 integrity. 22 MR. FELDMAN: I believe so and I believe 22 Q. Do you consider yourself an absentee 23 their name should appear in the Answers to 23 manager of the companies that you're involved in? 24 Interrogatories. I don't see it. 24 A. It's not companies. It's company and the-- 25 MR. GOLDSMITH: Was the name in Answers to 25 Q. I'm looking at the Answers to I { Page 174 Page 176 1 Interrogatories? 1 Interrogatories and I'm seeing here at least three 2 MR. FELDMAN: I couldn't find it. I 2 different entities, Gary Null and Associates, Gary 3 intended to add the full name, but -- 3 Null' s Anti-aging, Inc., Gary's Paradise Gardens? 4 Q. From letters that are attached to the 4 A. Those are entities that all have common names 5 Answers to Interrogatories, I see there were specific 5 and I place my emphasis I'm not absentee at Gary 6 letter requests by Gary Sacks to you indicating that 6 Null's Anti-aging because that's where I teach 7 he was asking for the return of any goods that you 7 everyday. That's where I teach and do experimental 8 claimed were defective. Why didn't you return the 8 farming. Gary Null and Associates, I am not 9 goods? 9 absentee. I just cannot be responsible for the IO A. On different occasions, we did return goods. We 10 day-to-day operations. 11 did. 11 Q. Farming? Where do you do farm? 12 Q. The Super COQ 10 was asking for the return 12 A. Down in Florida. 13 of what you complained about. Did you return that? 13 Q. Do you still have a ranch in Texas? 14 A. I believe we returned. Again, I wasn't in the 14 A. No. 15 warehouse, but anything that we could have returned 15 Q. What was that operation? 16 that we had an opportunity to return, we did. 16 A. That was Healing Springs Ranch. 17 Q. Isn't it a fact that all or almost all of 17 Q. Did you sell that? 18 these products were resold at a substantial increase 18 A. I sold that years ago. 19 in markup from what your cost was and that's why you 19 Q. How long ago did you sell that? 20 didn't return any of this product? 20 A. Four or five years ago. 21 A. Absolutely false. Not true and I resent the 21 Q. What was that like a spa? 22 implication. 22 A. Yes. 23 Q. So you have all of this. You have large 23 Q. The two customers who claimed that some of 24 quantities of Super COQ 10 sitting in your warehouse? 24 the merchandise that they had purchased were short 25 A. We never would have resold it -- the question is 25 did you supply them with additional merchandise for Page 173 - Page 176 Condenselt! ™ Page 177 Page 179 1 no charge? 1 adversely on your total sales? 2 A. Yes. 2 A. Because we were out of product for a long period 3 Q. Do you know how much you supplied them 3 of time that stores had been counting upon their 4 with? 4 customers. We had the problem with the recall and 5 A. No. 5 when you recall a product, it creates a question in 6 Q. Do you know what the merchandise that you 6 people's minds and creates doubt and when you're in 7 supplied them with cost, do you have any idea what 7 the reputation business, when all you really have is 8 your cost was? 8 a reputation, that is a tangible element. - , 9 A. No. 9 Q. You mean you have 50 products and if yoJ 10 Q. You contend that you've had some damage to 10 recall one product, you're saying that doesn't 11 your reputation? 11 enhance your reputation as standing behind your 12 A. Yes. 12 product in recalling it? I don't understand that. 13 Q. Is that right? 13 A. Let me make it clear for you, if you don't 14 A. That's correct. 14 understand it, right now, you ask people about 115' Q. Can you tell me how you measure that? 15 Firestone Tire and it's a lot of how likely are they 16 A. Because now when people go into a health food 16 going to buy that one tire that they assume is not 17 store to buy a Gary Null product, the health food 17 defective. There is a phenomenon that occurs when 18 store personnel would not have the same capacity in 18 people have had a bad experience. You see it in 19 their minds to stand behind my product as being the 19 psychology. Somebody has a bad experience in 20 best that there is anywhere, because of my integrity 20 something, they will tend to deal with anything else 21 is doing the best that I can do and I got that 21 even though it's not psychological. 22 feedback from some of the individuals. It's not that 22 Q. Let's talk about your sales. This is the 23 they're adamantly opposed. It's what happens when 23 middle of February. What have they gone down? 24 people then don't support you automatically and I've 24 A. Nine percent down. 25 seen this personally. 25 Q. For what month? Page 178 Page 180 1 Q. Has Vitamin Shoppe or anyone connected 1 A. January. 2 with Vitamin Shoppe said that they're not going to 2 Q. So you mean for the first month of this 3 sell your product any longer? 3 year you' re down nine percent? 4 A. No, but we don't get the same attention that we 4 A. Yes. 5 once did and we certainly don't get the same 5 Q. For 12 months of last year you said you 6 promotion. Until this incident, we got the windows 6 were the same? 7 and promoting products and lectures. I would be 7 A. He we were at the highest point last January. 8 asked to lecture. My schedule was so packed with 8 Then we declined. We were okay until about June and 9 requests, if I did it everyday I couldn't get to all 9 then we started some decline. 10 of them. Now I get none. It's like looking at 10 Q. Total sales were the same? 11 someone, that doesn't like you, but won't say it to 11 A. About the same. 12 your face. It's covert, not overt like racism. 12 Q. How does the December compare to the prior 13 Q. Have your sales gone down? 13 December? 14 A. Yes, absolutely. They're down this year. 14 A. It was. I don't know off the top of my head. I 15 Q. Are you attributing that to some 15 don't have those figures in front of me, but I know 16 particular thing that's alleged in this suit? 16 we should have been, based upon all the efforts at 17 A. Absolutely because it starts a whisper camp. 17 the time, all the exposure and something we should 18 Q. So your sales of all products are down or 18 have been 25 percent further and ahead. 19 some products? 19 Q. You don't know how December compared? 20 A. No, our sales across the board are down and I 20 A. I do not. 21 believe in part because we're not getting the support 21 Q. Those records are available? ( ' 22 in the health food industry which had been growing 22 A. Yes, they are. 23 every single year for 15 years and after this it had 23 Q. Emily is the person that has them? 24 gone down and we actually tracked that. 24 A. Yes, she does. 25 Q. What is it that you think has impacted 25 Q. Who provided most of the information or Page 177 - Page 180 Condenselt! ™ Page 181 Page 183 1 all of the information that went into these Answers 1 forward with. It's one thing to have one recall, but 2 to Interrogatories? 2 when you start having multiple recalls and people 3 A I don't know. I can only guess and I don't want 3 returning a product and calling, running out of ( 4 to guess. 4 product or others things do happen in the normal 5 Q. You said you gave some information to 5 course of business and we accept that, but people 6 Mr. Small? 6 look for the patterns that happen. 7 A. Yes. 7 For instance, if one of my products is off 8 Q. Marvin? 8 in flavor which can happen, you will see, not then, 9 A. Marvin Small has been working full time on 9 you '11see three or four months down the road a 10 this. I can see his bills. 10 decline in the sales and we have had that, but I've 11 Q. So you think that he prepared or provided 11 accepted that in the nonnal course of doing 12 counsel with most of the information? 12 business. There are errors that will occur that can 13 A. He and Joseph Chunga would be the two 13 not be prevented. I'm not suing Gary Sacks and his 14 individuals that I presume has the greatest effort 14 company because of that. That is not the basis of my 15 towards this accomplishments of this task. 15 lawsuit. I'm suing because of what I will 16 Q. Other than the conversation that you had 16 demonstrate in court are malfeasances that were 17 with Mr. Small you were not involved in any further 17 intentional and that takes it to a different level 18 aspect of the preparation of the Answers to 18 and when this kind of battle goes on, the public 19 Interrogatories; is that correct? 19 becomes fully aware of it and everyone questions my 20 A That's correct. I was out of town. 20 ability to make a proper judgments on their behalf. 21 Q. Who is Pharmetic Laboratory? Do you know 21 Q. I did not though understand that. You had 22 who they are? 22 numerous recalls you said every business has 23 A. No. 23 sometimes problems and you just mentioned sometimes a 24 MR. FELDMAN: I can help you with that. 24 bar doesn't taste right. You said you've had that 25 That's the laboratory whose report was supplied 25 situation; is that right? ( Page 182 Page 184 1 to Gary Null by your client. 1 A. Yes, we have. 2 MR. GOLDSMITH: I don't know whether you 2 Q. Is that a bar purchased from Universal? 3 want to make a copy of this. It's an exhibit. 3 A. Yes, it is. 4 MR. FELDMAN: If we can identify it for 4 Q. Have you ever purchased bars from any 5 the record. 5 other company? 6 MR. GOLDSMITH: We'll make it the first 6 A. No, we have not. 7 page whatever. 7 Q. You're not attributing any impact on your 8 MR. FELDMAN: If you'd like to do that. 8 reputation because of that situation? 9 You want to take a break for a minute? 9 A. Yes, I am, but not as if it were a single 10 MR. GOLDSMITH: Yes. 10 incident. It is the cumulation of many different 11 (At which time there was a short recess 11 instances over a period of being affected. It's the 12 taken). 12 market you' re dealing with. Either you go out and 13 Q. Is there any particular assertion that 13 get a new market that's not aware of any problems and 14 you' re making in this lawsuit that you feel has 14 have a better consistent product to share with them 15 impacted upon your reputation? 15 or the audience that you're working with. If they 16 A Yes. 16 start seeing too many problems they'll stop. It's no 17 Q. What is it? 17 different than the restaurant business. You won't 18 A. The public confidence before had been virtually 18 deal with the bad service. They won't come back or 19 unchallenge. Now there is a challenge. 19 come back occasionally. 20 Q. What events? Is it the Pychnogenol? Is 20 Q. Your reputation is being attacked from

I 21 it something else? Is it Muscle? What I'm asking 21 other sources such as -- \. 22 you what is, the assertion that you're making that 22 A. He's attacked me my entire career. 23 has impacted upon your reputation? 23 Q. Doesn't he attack others that have an 24 A. The quality of my judgment about being able to 24 impact upon your reputation? 25 provide consistency in the product that I come 25 A. Not at all. Page 181 - Page 184 Condenselt! ™ Page 185 Page 187 1 Q. Why? 1 reputation declines, your sales will decline? 2 A. First of all, those are political attacks. 2 A. Yes, for the people who are using my products or I 3 They're attacking my right to talk about issues, my 3 could use my products and, therefore -- 4 qualifications to talk about those issues and I might 4 Q. Thus far, you've testified that your sales 5 mention the people who have used Stephen Barrett's 5 have declined for one month? 6 material for those attacks, I have sued and won take 6 A. Yes. 7 me down that path and I've tell you the whole story. 7 Q. Do you have any way of isolating why the 8 I would love for you to use him against me. 8 sales declined, that is whether it was because of 9 Q. Have you sued him? 9 market conditions, whether it was because of some IO A. Not hini, but I've sued the people who have used 1o situation that supposedly the plaintiff did or 11 his material. 11 whatever? Can you in any way relate the decline in 12 Q. Who have you sued? 12 sales to particular acts or market events? 13 A. DiNeedel, ABC, the Pritikin Program. 13 A. We're working on that, but I do not have a 14 Q. Were those successful? 14 definitive statement. 15 A. Yes. 15 Q. Who is? 16 Q. Who handled those lawsuits? 16 A. Marvin Small. 17 A. Marvin Small, but we' re in the process now of 17 Q. Your attorney is working on that? 18 examining suing Stephen Barrett. People are 18 A. Yes. 19 reviewing our options of suing. 19 Q. Any other people that are employees for 20 Q. You said you sued ABC? 20 you? 21 A. Yes. 21 A. No. 22 Q. Pritikin? 22 Q. How is he working on it? 23 A. Yes. 23 A. He's developing a research program and I'm not 24 Q. What's the third one? 24 aware of his techniques or methods to try to measure 25 A. Dr. DiNeedel for using material that they got. 25 the actual impact of that upon my reputation. ( Page 186 Page 188 1 Q. Are you suing anyone else right now? 1 Q. Are you claimingthat you've had some 2 A. I'm suing Mitchell Rose. He's the literary 2 out-of-pocketexpenses as a result of allegedacts of 3 agent. 3 the defendant? 4 Q. Anyone else? 4 A. Absolutely. 5 A. I'm suing a Greg Jenkins. 5 Q. Do you have an itemizationof those 6 Q. Who is that? 6 out-of-pocketexpenses? 7 A. He's a landscaper. We won a summary judgment on 7 A. I believewe do. I don't havethat figurewith 8 him. 8 me, but it's thousandsand thousandsof dollars. 9 Q. Is that a personal matter? 9 Q. Whohas that information? IO A. Yes. 1O A. Joe Chunga. 11 Q. Didn't do a good job for you someplace? 11 Q. Why is that not set forthin the Answers 12 A. That's correct. 12 to Interrogatories? 13 Q. Where in Florida? 13 A. Becauseit's still goingon, increasingright 14 A. Yes. 14 now. We have numerouslabs doingwork and now we're 15 Q. Who else are you suing? 15 testingall the products. 16 A. I'm not aware we' re suing anyone. 16 Q. I'm talkingabout the damageditemization 17 Q. Anyone suing you? 17 is not shownin the Answersto Interrogatories. 18 A. Outside of that personal injury suit, no. 18 A. Becauseit's still accumulating. 19 Q. Any suits between yourself and former 19 Q. As of the presenttoday, do you havedata 20 employees? 20 on the presentdamage? ( . 21 A. No. 21 A. I can get that. 22 Q. Any claims of lawsuits by you or against 22 Q. Hasn't your attorneyasked you to do that? 23 you with respect to former employees? 23 A. No. 24 A. No. 24 Q. I have to say thereis numerous 25 Q. Would it be fair to say that if your 25 objections.At a quickglance at the interrogatories Page 185 - Page 188 Condenselt! ™ Page 189 Page 191 1 you presented me today show that specific information 1 Q. If you sold product that you bought for 2 is not contained in them. 2 $500,000, I'm rounding up the $475,000 and you sell 3 MR. FELDMAN: That is your opinion, sir. 3 it for $3 million dollars why are you entitled to 4 I suggest you read them carefully. 4 damages of $500,000? 5 MR. GOLDSMITH: I certainly haven't the 5 A. A, the recall of those products. All the 6 chance because they weren't supplied until a few 6 inventory that we had that we had not sold and they 7 hours ago. 7 insist that we destroy that product and provide proof 8 A. I brought thousands of documents. 8 of that and it's not like we had $400,000 worth of 9 Q. Where are they? Do you have a copy for 9 product that we sold. That is an assumption that's 10 me? 10 not correct. 11 MR. FELDMAN: Of what? 11 Q. You destroyed some of the $475,000 of 12 MR. GOLDSMITH: Of the Answers to 12 Pychnogenol that you purchased? Is that what you're 13 Interrogatories. 13 saying? 14 MR. FELDMAN: I've give you one copy which 14 MR. FELDMAN: Objection. You're assuming 15 you've marked as P-19, I believe. 15 that the answer to 21 G is stating that the 16 Q. For example, in your answer to number 21G, 16 dollar amount of Pychnogenol is $475,000 from 17 you say attorney's fees to Alan Levine. You don't 17 Universal. I think you're misreading the answer 18 have a dollar figure. 18 and you're misleading the witness by suggesting 19 A. I don't have a dollar figure. 19 that's what it means. I don't ~ow that 20 Q. Did you ask your comptroller or 20 Mr. Null contributed that figure. I think that 21 accountant? 21 came from other individuals and you may very 22 A. I'll see. 22 well unintentionally be misleading him to 23 Q. What's the attorney fees to Marvin Small? 23 suggest that's what it means, $475,000 in 24 MR. FELDMAN: I object to this line of 24 purchase price. 25 questioning. If you request for specifics, 25 MR. GOLDSMITH: Well, let me say one ( . Page 190 Page 192 1 we'll attempt to supply them. He's in the 1 thing, your objection here is an improper 2 process of collecting additional data, as the 2 objection. You may have had several others 3 information continues to develop. It's not a 3 today and, basically, the only objection you're 4 complete picture at the present time. 4 entitled to make under the rules has to be as to 5 Q. Can you tell me what is this basis of the 5 privilege or claim of confidence. These 6 claim of $475,000 is in connection with Pychnogenol. 6 objections are, basically, then are suggesting 7 Can you tell me how that figure is derived? 7 answers to the witness and I think they're 8 A. I believe that is derived from the total amount 8 violative of the rule. So I want to just 9 of Pychnogenolwe purchased based on invoices that 9 proceed with respect to these questions. 10 were added up at over the period of time we purchased 10 Q. You see this exhibit, P-19? 11 Pychnogenol. 11 MR. FELDMAN: I want to respond to that. 12 Q. You purchased $475,000 of a product from 12 I don't know that there is anything in the rules 13 Universal called Pychnogenol? 13 which prohibits the objection as to form. 14 A. Yes. 14 MR. GOLDSMITH:Not as to form. 15 Q. Did you resell that product? 15 MR. FELDMAN: If a question is misleading, 16 A. Yes. 16 as your questions have been, intentionally or 17 Q. At six and seven times what you paid for 17 unintentionally, I think I owe it to you, the 18 it? 18 record, to the witness and to my client to put 19 A. No, I don't know what the exact figure is. I 19 that on the record to give you among other 20 don't know what the markup was, but whatever our 20 things an opportunity to ask a non-objectionable 21 markup was, it was. 21 question. (. 22 Q. Didn't you say markup was mostly around 22 MR. GOLDSMITH: It's a lot more in the 23 six or seven? 23 objection than the objection to form you have. .. 24 A. We try to reach six times, but on some products 24 Q. You see this exhibit, P-19? Is that your 25 we don't get three times. 25 signature? Page 189 - Page 192 Condenselt! ™ Page 193 Page 195 1 A. Yes. 1 A. That is what I believe is in the two or 3,000 2 Q. You said earlierthat you read all the 2 documents that I brought today for you. They were to 3 answers;is that right? 3 provide the documentation to back up each of those 4 A. Yes. 4 statements. 5 Q. Now I'm lookingat the answerto question 5 Q. Is Pychnogenol a pine bark extract? 6 number21 G. Feelfree to read it. 6 A. It come from pine bark. 7 A. Yes. 7 Q. Do you have some knowledge that Gary Sacks 8 Q. Canyou tell me how the figureof $475,000 8 knew that the Pychnogenol was a trademark product 9 in damagesis derived? 9 when he told you to keep selling it under that name? 10 A. I believeit's basedupon what the retailvalue 10 A. I would answer that in a slightly different 11 of the Pychnogenolwould have been. That is not the 11 manner, if I may. 12 costof Pychnogenol,as I understandit, but the 12 Q. I'd like you to answer the question that I 13 retailof all the Pychnogenol.His objectionwas 13 asked. The court reporter can read it if you'd 14 correct. I wouldhave answered you incorrectlyand 14 like. 15 wouldhave made the wrongassumption based upon your 15 MR. FELDMAN: Why don't you read that? 16 question. 16 (Requested information was read back by the 17 Q. Whatare you saying,that the total 17 reporter). 18 purchasesof Pychnogenolwere, maybe, 50 or $60,000? 18 A. When he told me to keep selling it, yes, I did. 19 Is that whatyou're saying? 19 Q. When you first started marketing it and 20 A. Yes,that's what I'm saying. 20 you determined to start marketing, this was a few 21 Q. So you're markingup the total salesto 21 years ago? 22 $475,000;is that right? 22 A. Yes. 23 A. Yes. 23 Q. Do you think that Gary Sacks knew that was 24 Q. Didn't you sell any of it? 24 a trademark material? 25 A. Yes,we sold someof it. 25 A. I don't know if he knew, but he should have. ( . Page 194 Page 196 1 Q. So why would you be entitled to the total 1 Q. Should you have? 2 markup value of all of the Pychnogenol if you sold 2 A. No, I should not have. 3 some of it? 3 Q. Can you explain to me why he should and 4 A. Based upon what we did not sell and had to 4 you should not? 5 recall and had to destroy and all of our costs 5 A. Because he was the one responsible for creating 6 involved in that issue. 6 the original materials at the code and standards that 7 Q. Are you saying that you have records to 7 would allow me to sell it with confidence in the 8 show that you were unable to sell or had recalled or 8 marketplace. That was our agreement. That was our 9 destroyed a sufficient amount of Pychnogenolto 9 arrangement and he did not do that. He did not 10 equate to $475,000 of the retail value? 10 either intentionally or unintentionally. I don't 11 A. I don't know what the exact amount is. I did 11 know at this moment, but he would have been in the 12 not calculate that amount. It was calculated by 12 position to have known because in the manufacturing 13 people within my office. 13 he would have known from the industry publication. 14 Q. Did you see their calculations? 14 They get the industry -- whenever there's a hot 15 A. No, I did not. 15 issue, meaning a controversial issue or contended 16 Q. Did you review any of it? 16 issue, he should have been aware of that. 17 A. No, I've explained I've been out of town and 17 Q. But you don't have any knowledge that he 18 have not been in the office to review it. 18 was aware; is that correct? 19 Q. So you don't know whether that answer is a 19 A. I do not. 20 correct answer; do you? 20 Q. There's an allegation in the third-party 21 A. I believe that it is correct because I'm 21 complaint that there was a conspiracy between 22 trusting that the research they did is accurate. 22 Universal, Gary Sacks and David Mitchell. Do you 23 Q. Has all of the documents been provided to 23 have any knowledge about that allegation? 24 support how that was derived if there was goods 24 A. Well, in part, Gary Sacks explained to me on one 25 destroyed,records of destruction? 25 of the times that I was out there, when I was curious Page 193 - Page 196 Condenselt! ™ Page 197 Page 199 1 as to how you would know whether or not you got a 100 1 sell that product? At that point you have a letter 2 tablets or 50 tablets, whether it was one, potency or 2 from a lawyer claiming that you are infringing; is 3 another potency and he said it's not possible to make 3 that right? 4 that kind of mistake because Gary Sacks had to be 4 A. Right. 5 responsible for all the orders came in because we 5 Q. So why is it not your decision rather than 6 sent the orders to him. Meaning, I want 500 6 someone from the supplier, your supplier? 7 milligrams of Vitamin C at 100 tablets. He was the 7 MR. FELDMAN: Objection to form. 8 one who would place those orders. It was an 8 A. He is not just the supplier. He's the 9 automatic system from the order going to him to a 9 manufacturer. Who better to determine whether or not 10 person who was responsible for seeing that it was 10 there is a product being properly done than the 11 manufactured and at the end of that manufacturing 11 person who is getting the raw materials. I don't 12 process it had to be records kept of another person 12 know where he's getting his raw material. He does. 13 that would say we actually manufactured this product 13 Q. I thought we were talking about the issue 14 to these standards. That is more than one person 14 of infringement? 15 having an impact upon how a product is manufactured. 15 A. That was because he was claiming it was not an 16 One person alone could not do that. That would 16 infringement because he -- 17 require the assistance of several people involved in 17 Q. You accepted his legal opinion that this 18 creating a product, its potency and numbers or 18 was not a valid infringement? 19 guaranteeing that the product and potency and 19 MR. FELDMAN: Objection to form of the 20 standards were being met. 20 question. It mischaracterizes. This the 21 Q. This is all supposition on your part; 21 witness has been over this before. 22 isn't it? 22 MR. GOLDSMITH: I think this is not being 23 A. At this moment its supposition as to how 23 productive to continue because of the fact that 24 conspiracy existed. It is not supposition that we 24 I don't have enough documents. The witness is 25 got a product that was not what we ordered. 25 very, very vague on most areas. I think that we ( . Page 198 Page 200 1 Q. That's disputed as to what your product 1 will resume this deposition once I have all of 2 was and whether it conformed or not, but the 2 the documents and complete Answers to 3 allegation is that there was some knowledge on the 3 Interrogatories and I do not believe that what 4 part of Gary Sacks, David Mitchell and Universal 4 you've presented me with are complete answers. 5 Laboratories that when they sold you a product, it 5 I will be sending you a notice for the 6 did not conform. Do you have any basis to support 6 deposition of a number of other people who have 7 that allegation? 7 be identified today associated with the 8 A. We are exploring that now at this moment. 8 company. So you'll be getting that shortly. 9 Q. I assume that answer means you have no 9 It's ten after four. So I'll see you again. 10 present knowledge; is that correct? 10 - - - 11 MR. FELDMAN: Present knowledge of what? 11 (The deposition was concluded at 4:10 p.m.) 12 Q. Whether there was a knowledge on the part 12 - - - 13 of these individuals that there was something 13 14 nonconforming about the product? 14 15 A. We are presuming the knowledge based upon the 15 16 consistency of what I would consider deception on the 16 17 part of Gary Sacks and continually being told that 17 18 there was no problem and denying the problem and 18 19 giving us information, back in my mind that clearly 19 20 shows that he was aware of problem and allowed it to 20 21 continue. 21 22 Q. Once you became aware that there was a 22 23 claim of trademark infringement and you are the 23 24 selling company, was it up to the salesperson of your 24 25 supplier to decide whether you should continue to 25 Page 197 - Page 200 Condenselt! ™ Page 201 1 CERTIFICATE 2 3 I, LATITISA LASSITER, being a Shorthand Reporter 4 and Notary Public of the State of New Jersey, do 5 hereby certify that the foregoing is a true and ', 6 correct transcript of the proceedings. 7 8 9 10 d-d~LATITISA LASSITER--, 11 SHORTHAND REPORTER 12 13 14 15 DATED: 3- 7-o l 16 17 18 This transcript is not to be copied 19 unless under the direct control and supervision of 20 the reporter. 21 22 23 RICHARDA MERLINO& ASSOCIAIBS 7 MONTAGUEA VENUE 24 TRENTON,NEW JERSEY 08628 25 (609) 883-7707 Night phone: (609) 882-6569 (

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5:20 193:18 197:2 absentee [31 175:22 85:17 $24 [l] 120:5 1995 [1] 65: 1 500 [1] 197:6 176:5 176:9 adequate c11 117:4 $250,000 (1] 10:3 1997 [l] 61:14 516 (l] 88:17 absolute c21 117:3 adheredc11 161:25 $288,000 (6] 5:10 1999 (6] 120:19 122:5 5469 [l] 132:5 126:19 admissions c11 131:11 ( .. 26:2 67:6 68:12 139:11 139:12 147:19 absolutely c111 6:13 admitc21 123:15 69:10 72:8 168:11 -6- 59:12 121:24 144:9 123:18 163:17 164:18 170:1 $3 (1) 191:3 c11 131:8 6' 1 [l] 7:15 174:21 178:14 178:17 admitted $3.45 [l] 120:3 -2- 60 [6] 18:16 19:4 188:4 adultc11166:10 $30,000 [l] 102:14 20 [2] 4:21 33:15 19:15 59:3 80:21 abuses c11 167:5 Advanced c11 161:9 $400,000 [l] 191:8 200 [3) 9:14 28:17 102:17 acceptc4J 65:19 advantage c11 135:7 $475,000 [9] 190:6 68:24 600 [2] 59:3 67:18 71:19 114:5 183:5 adversely c11 179:1 190:12 191:2 191:11 200,000 [l] 58:3 191:16 191:23 193:8 6005 [l] 135:25 accepted cs1 64:24 advicec4J 124:12 193:22 194:10 2000 [20) 18:15 609 [2] 201:25 201:25 76:24 150:17 183:11 142:10 153:12 153:25 78:17 78:19 102:6 199:17 14:7 $5,000 [l] 145:18 65 [2] 1:19 2:8 advise[4J 102:13 103:24 120:18 accompany c11 49:14 74:4 140:11 146:19 $500,000 [2) 191:2 650 (2] 7:13 7:23 122:5 138:21 139:10 accomplishments c11 advisedc11 65:5 191:4 147:20 147:24 147:25 181:15 c21 98:21 $60,000 [l] 193:18 148:6 149:2 149:8 -7- advising 164:10 164:21 168:11 according £3J 127:20 155:4 [l] 201:24 172:12 7 136:2 169:1 advocating c11 151:10 -0- 70 [l] 161:21 2001 (3] 1:18 172:11 accountc21 52:22 affected c21 58:16 07039 [l] 2:5 172:12 724-1378 [l] 8:5 86:16 184:11 [41 07470 [l] 1:20 212[1] 8:5 76385 [l] 95:17 accountant 87:25 affectS[l] 169:9 88:25 89:4 189:21 07470-7007 [l) 21Gc3J 189:16 191:15 76476 [l] 96:1 affix r2132:5 39:1 accounting c11 87:5 2:9 193:6 76593 [l] 118:18 affixedc11 32:15 accounts cs1 24:22 08628 [l) 201:24 225 [3) 8:2 83:19 76622 [l] 123:7 afford[3J 57:21 83:23 24:23 61:16 61:16 76702 [l) 124:24 111:5 147:10 155:23 -1- 25 [2] 166:10 180:18 167:7 76737 [l] 127:15 accumulating c11 Africanc11 1,000 [l] 37:15 25th c21 7:13 7:23 76833 [l] 127:16 188:18 afterwards c11 101:1 1/6/45 [l] 7:14 28 (l] 18:15 77094[1] 130:10 accurate r101 17:11 agamc16J 21:8 36:16 50:19 53:8 10 [26] 65:7 92:9 28th [2] 19:3 20:12 77320 [l] 130:24 18:12 41:3 50:21 103:1 104:22 105:16 60:22 80:15 98:11 92:13 92:15 93:2 293 [l] 2:4 77388 [l] 133:21 94:2 94:6 94:17 105:22 148:4 194:22 98:11 116:3 123:1 ( ' 2940 [l] 128:2 77478[1] 135:17 129:20 95:7 96:18 96:24 acknowledge r11 131:19 161:20 105:2 106:16 116:6 77546 [l] 136:11 35:9 172:23 174:14 200:9 -3- against[7J 140:24 125:11 126:14 126:18 77725 [l] 136:18 acknowledged c11 143:18 146:15 162:12 126:21 130:18 130:19 3,000 [l] 195:1 7thr21 102:17 102:18 170:19 163:17 185:8 186:22 Index Page 1 Condenselt! ™ age - based age c11 155:8 analyzed c21 65:7 approvec21 32:14 39:24 105:25 108:4 authoritatively c11 . agentc21 29:9 94:20 54:9 112:16 116:18 161:25 25:8 186:3 AndreC21 81:7 approved [3J 26:21 191:14 authorized c21 65:2 ago 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conjecture r11 25:20 contributed c11 191:20 counsel[9J 16:16 50:4 73:4 complete [61 65:3 18:9 86:10 124:12 146:5 connected c11 178:1 control [SJ 39:8 communicates c11 165:5 190:4 141:10 142:22 142:22 200:2 40:10 40:13 58:16 109:4 200:4 connection [41 14:11 143:19 181:12 148:17 164:24 190:6 201:19 communicating r11 completed c11 21:2 counseling c11 114:6 consider [61 114:20 controversial r11 101:22 completely [31 18:12 196:15 countcsi 76:18 140:21 144:16 146:24 160:3 160:8 communication [71 175:22 198:16 conversation [91 76:20 77:18 78:12 33:15 42:2 42:6 complied r11 41:13 10:13 25:16 26:18 80:5 50:24 151:25 152:11 comprise r21 69:10 considerations c21 44:18 44:21 49:22 76:16 77:23 countedc11 91:4 152:12 72:8 150:13 151:19 181:16 considered [4J countercharges r11 communications r11 comprising c11 86:9 36:1 45:20 147:6 147:12 conversations [91 50:24 153:9 comptroller rs1 11:24 26:18 43:19 77:4 consistency r21 182:25 countersuit [31 69:2 compames [8J 33:16 24:14 25:24 108:14 149:25 150:7 153:14 73:24 170:14 35:12 58:22 58:23 189:20 198:16 154:3 154:6 163:14 consistent r11 184:14 counting [91 24:4 59:17 122:14 175:23 computer [31 88:11 convoluted [IJ 41 :16 86:14 86:16 91:8 175:24 105:11 105:14 consistently [IJ coo [2] 11:6 11:7 91:10 91:13 91:21 93:22 company [921 5:9 computerized [3J copiedr11 201:18 92:3 179:3 11:6 11:17 22:19 87:5 104:21 104:23 conspiracy (3J 99:18 countryc11 104:1 23:19 25:24 26:22 196:21 197:24 copies [3J 36:10 ( ' 26:24 27:10 27:11 concernc111 35:13 36:12 87:21 countsrsi 78:5 36:8 64:15 73:17 conspired c11 50:7 28:23 28:25 29:2 copy [8J 15:3 15:5 80:10 85:25 91:9 76:17 116:19 116:23 29:10 29:23 30:19 Constantly r11 146:21 106:20 146:3 168:6 105:21 117:1 31:4 31:20 31:25 119:2 119:8 consultant r21 44:3 182:3 189:9 189:14 COUNTYc11 1:1 158:23 32:9 35:14 35:25 48:7 copyright r11 160:1 coupler21 31:15 37:13 38:12 38:17 concerned [61 45:19 consumec11 116:11 78:11 77:1 77:19 77:22 COQc6J65:7 126:13 41:1 41:6 41:7 consumer [81 39:21 126:21 174:12 174:24 courser6J 7:4 41:9 41:12 148:19 149:23 42:3 78:15 78:15 78:25 175:12 98:5 159:23 166:9 47:5 47:11 48:1 concerning c12110:19 79:8 81:4 85:23 CORPc11 1:6 183:5 183:11 50:12 50:15 50:17 10:20 12:1 24:4 155:4 51:1 52:18 53:4 24:12 24:16 34:16 corporate c21 11:8 COurt[l8] 1:1 55:9 56:4 56:14 35:12 64:9 64:14 consumers c21 79:1 34:19 6:9 7:3 9:4 91:5 59:15 74:18 81:22 73:22 86:24 corporation c211 :7 18:15 18:21 20:24 87:4 87:25 88:19 contactc9J 27:24 125:22 21:10 73:25 121:16 concernsc21 30:18 141:21 145:25 147:18 89:1 89:4 95:23 35:11 30:6 43:16 50:17 59:24 110:6 116:19 correct [68J 6:5 153:2 162:24 163:1 111:12 112:23 113:10 6:21 7:7 9:10 114:9 123:23 124:8 concluded c21 93:25 141:23 149:7 183:16 195:13 200:11 12:6 12:11 13:2 124:9 125:1 127:18 containcs1 73:22 covertc11 178:12 conclusion c11 76:9 24:11 29:15 34:24 130:25 133:23 135:20 95:7 148:11 169:8 38:7 38:16 44:23 createc4J 53:25 136:14 136:20 139:24 condition c21 89:9 169:9 52:14 52:19 54:3 118:12 141:2 156:1 140:21 141:14 142:6 158:22 contained [3J 92:14 59:22 68:17 77:14 createdc21 53:24 142:18 143:6 144:2 conditionerc11 66:10 167:20 189:2 94:13 94:19 95:14 134:17 145:1 147:10 150:9 conditions c11 187:9 containing c11 173:3 96:5 97:18 99:5 creates c21 179:5 150:12 150:25 151:2 105:21 105:24 109:17 151:13 162:12 169:2 conductc11 9:7 contaminated c11 179:6 35:17 111:18 111:20 114:10 172:2 172:19 172:20 conferc4J 6:4 116:18 119:5 119:19 creating cs1 114:20 172:21 173:16 175:24 7:6 17:8 175:9 contempt c11 175:20 119:23 122:5 122:6 114:21 147:5 196:5 183:14 184:5 198:24 confidence [61 36:4 contendc21 135:22 122:19 124:20 125:4 197:18 200:8 121:14 152:14 182:18 177:10 126:16 131:10 136:3 credibility c11 152:3 company's [3J 47:3 192:5 196:7 contended r11 196:15 136:4 136:10 137:9 credit c11 34:12 144:18 154:2 confident c11 36:17 contending [31 92:25 138:4 138:10 138:13 34:16 65:20 65:23 ( ' comparer11 180:12 confidential c11 136:23 170:20 146:18 148:18 148:20 66:5 66:13 76:14 compared c11 180:19 152:25 150:11 156:5 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Index Page 4 Condenseltl .™ curious - duties curious c11 196:25 deception c11 198:16 21:14 22:4 71:22 discontinued £31 documentaries c11 current[3J 25:5 decidec4J 121:16 72:15 72:25 74:3 46:19 48:10 101:15 83:15 67:24 120:5 134:25 163:8 198:25 135:2 163:4 200:1 discount c11 122:10 documentation £31 200:6 200:11 customarily 12187:9 decidedc21 147:4 discounts 121 122:8 74:19 110:13 195:3 88:20 147:13 depositions 11118:16 122:8 111 / documented customer£91 78:22 decision £31 56:15 derived(6J 89:18 discourage 111 37:1 80:3 79:4 79:11 81:3 113:21 199:5 107:19 190:7 190:8 documents£271 5:1 193:9 194:24 discover 111 101:2 81:13 90:11 98:1 decisions 111 56:17 12:14 12:15 13:6 108:2 109:16 28:22 discovered £31 100:25 180:9 describe 121 13:8 14:10 15:12 declinec4J 28:25 101:10 103:18 customer'sc11 79:13 183:10 187:1 187:11 15:14 20:24 21:4 DESCRIPTION 111 discovery £31 6:8 21:9 22:7 71:18 customers £141 78: 17 declined cs1 99:24 15:13 131:11 78:19 80:4 86:25 4:1 72:17 86:8 106:21 100:2 180:8 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Index Page 16 Condenseltl . ™ ow- mter 103:20 111:4 118:16 transactions c11 65:6 67:15 69:21 unless [61 23:17 35:19 35:20 37:14 175:7 68:10 93:5 94:21 95:3 25:10 70:15 91:19 38:8 39:6 53:13 thrOW[l] 90:14 transcribe c11 18:4 95:5 117:19 127:4 117:2 201:19 76:18 76:20 76:20 129:20 Thursday c11 1:17 transcript [4J 1:17 unopened c21 98:3 81:25 82:3 109:23 110:4 111:4 111:11 timelyc11 102:8 6:24 201:6 201:18 unable c11 194:8 98:12 I ,$ 111:15 115:22 unchallenge c11182:19 unpaidc11 67:4 117:7 l timeS[l2] 5:17 transpired c11 43:5 119:15 120:14 158:8 5:21 5:25 28:18 treating [l] 66:3 underc201 7:3 up r221 9:3 25:21 159:19 162:14 162:18 21:10 29:14 29:16 ..JI 55:10 155:15 161:21 tremendous c11 144:20 55:5 56:1 77:6 178:1 178:2 197:7 162:4 190:17 190:24 35:12 35:20 79:20 82:24 93:6 98:17 TRENTON[l] 201:24 93:22 93:24 101:5 105:12 109:21 112:6 vitamins c121 9:8 190:25 196:25 24:4 24:16 trial [31 6:9 19:24 140:15 140:22 150:19 122:7 125:25 141:21 26:21 tire [2] 179:15 179:16 29:16 30:19 145:10 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180:10 190:8 value[4J 28:7 40:2 173:10 24:5 24:7 24:8 Waynec21 1:20 " 193:17 193:21 194:1 193:10 194:2 194:10 Twincs1 33:7 24:17 26:l 27:8 2:9 touch[3J 113:24 varioUS[S] 9:8 33:9 33:10 33:12 27:25 28:3 28:12 [7J22:23 84:24 114:l 154:9 22:10 86:23 125:14 week 33:15 28:23 29:l 29:19 95:2 105:15 111:23 156:20 tOUT[8]19:17 21:24 two [42J 5:21 31:2 31:23 32:20 33:21 112:4 112:6 22:8 22:21 22:22 36:6 37:5 37:20 veiledc21 147:7 37:18 46:14 48:7 weeklyc11 112:3 46:8 103:25 143:4 53:15 62:1 63:5 38:18 40:3 40:25 148:21 weeksc11 53:15 towards r11 181:15 63:12 64:3 67:18 41:12 41:22 42:3 venuec11 19:19 42:10 43:2 43:24 tOWD[3]145:7 181:20 74:25 75:24 76:24 weightc11 120:12 47:24 venues c11 23:11 194:17 78:7 78:15 78:17 46:19 47:21 welcoming c11 22:1 48:11 48:19 50:5 verbatim c11 18:4 80:8 80:9 80:22 West[4J8:2 9:14 trackedc11 178:24 51:14 52:18 53:4 verification r2135:5 82:15 85:24 86:5 83:19 83:23 trade c2131 :22 157:19 86:9 .86:12 86:17 53:5 55:9 59:18 117:3 111:25 trademark [42J 139:14 86:17 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157:20 162:14 162:16 172:3 willingc11 58:21 172:25 173:17 195:8 58:8 58:10 58:13 147:8 147:16 148:16 182:18 c21 195:24 198:23 88:19 89:19 154:19 154:21 163:9 visit [3J 43:21 44:24 Willowbrook 165:7 167:19 169:8 1:19 2:8 trademarked c11 49:14 170:25 184:2 190:13 W1D[4] 141:21 142:16 132:23 visited[3J 30:7 -u- 191:17 196:22 198:4 142:21 143:12 trademarks [41 155:11 36:14 47:18 U-P-P c11 11:4 Universal' s c2146:5 155:16 155:19 161:12 vitamin [31) windowsc11 178:6 ultimate c111 36:6 138:16 8:25 32:12 33:7 35:9 Winterc11 138:21 Index Page 17 Condenselt! ™ wise - yourself wise c11154:14 149:8 153:18 172:8 wishc11111:13 172:9 172:9 172:10 178:14 178:23 180:3 39:12 withdraw[31 180:5 145:1 145:12 9:9 18:16 years £411 withiD[lB] 9:21 24:20 24:20 18:18 19:4 19:5 28:2 28:4 28:5 19:13 19:15 20:11 31:12 31:13 31:15 35:22 41:9 45:2 33:15 42:9 43:10 50:14 96:17 102:9 48:7 51:11 51:13 102:11 102:16 102:17 52:17 54:16 55:19 138:16 194:13 55:20 59:25 61:1 withoutcs1 28:10 64:13 78:7 78:11 65:20 67:10 141:13 79:3 86:15 100:1 147:11 115:2 115:11 122:12 witness £33J 3:4 134:15 134:16 155:2 12:5 14:23 19:23 155:5 157:21 166:10 21:8 21:14 21:15 176:18 176:20 178:23 21:19 25:6 25:8 195:21 31:13 34:22 34:24 yet[9J 91:6 94:8 41:20 51:4 72:2 94:9 116:6 119:11 73:6 84:6 88:15 120:25 123:3 137:13 89:2 103:11 106:3 171:22 108:23 125:15 125:18 5:24 127:8 169:13 173:20 Yorkc24J 7:25 8:2 8:7 191:18 192:7 192:18 8:13 8:14 9:15 199:21 199:24 9:15 9:19 9:19 witness's c11 105:11 17:24 19:20 22:24 won c21185:6 186:7 30:3 31:16 43:4 word [3J64:24 76:24 103:25 112:2 112:13 144:18 112:14 112:17 143:22 162:21 162:23 words c11 110:22 youngerc11 155:6 workedc11 53:10 7:11 13:17 yourself c101 workscs1 29:9 43:2 49:10 84:8 110:20 129:3 52:22 53:3 78:14 142:6 154:24 175:22 186:19 worryc21 116:21 164:6 worthc11 191:8 write [SJ17:15 55:8 55:15 77:7 98:20 writing[3J 56:14 56:18 114:7 written [SJ 16:10 17:14 41:21 55:7 141:7 wrongc111 67:20 80:18 92:25 100:8 100:25 101:3 101:10 102:21 103:18 119:20 135:23 136:24 138:15 141:l 144:7 144:22 193:15 wrongfully c11124:10 -x- Xc11 3:1 -Y- Yc11 93:14 y ANKOWITZ [l] 2:2 year c2118:6 8:9 43:10 43:11 48:16 78:7 88:11 88:20 88:20 90:17 103:24 120:25 121:1 139:9 139:11 148:6 149:2 Index Page 18