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AlaFile E-Notice

02-CV-2015-000326.00
Judge: SARAH HICKS STEWART
To: WALTER JOSEPH MCCORKLE JR.
jmccorkle@balch.com

NOTICE OF ELECTRONIC FILING
IN THE CIRCUIT COURT OF MOBILE COUNTY, ALABAMA
WRIGHT TRANSPORTATION INC VS PILOT CORPORATION ET AL
02-CV-2015-000326.00
The following matter was FILED on 5/6/2016 12:50:25 PM
D003 HASLAM JAMES A III
D001 PILOT CORPORATION
D002 PILOT TRAVEL CENTERS LLC DBA PILOT FYLING J
OTHER
[Filer: MCCORKLE WALTER JOSEPH JR]
Notice Date:

5/6/2016 12:50:25 PM

JOJO SCHWARZAUER
CIRCUIT COURT CLERK
MOBILE COUNTY, ALABAMA
205 GOVERNMENT STREET
MOBILE, AL 36644
251-574-8420
charles.lewis@alacourt.gov

DOCUMENT 156
ELECTRONICALLY FILED
5/6/2016 12:49 PM
02-CV-2015-000326.00
CIRCUIT COURT OF
MOBILE COUNTY, ALABAMA
JOJO SCHWARZAUER, CLERK

IN THE CIRCUIT COURT OF MOBILE COUNTY, ALABAMA

WRIGHT TRANSPORTATION, INC.
Plaintiff,

CV 2015-326

v.
PILOT CORPORATION;
PILOT TRAVEL CENTERS LLC, d/b/a
PILOT FLYING J;
JAMES A. HASLAM III;
MARK HAZELWOOD;
BRIAN MOSHER; and,
JOHN FREEMAN,
Defendants.

NOTICE OF FILING EVIDENTIARY MATERIALS IN SUPPORT OF DEFENDANTS’
SUPPLEMENTAL MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION FOR
A PROTECTIVE ORDER AND STAY OF DISCOVERY
Defendants James A. Haslam III, Pilot Corporation, and Pilot Travel Centers LLC submit
and designate the following evidentiary materials in support of their Supplemental Memorandum
in Support of Defendants’ Motion for a Protective Order and Stay of Discovery:
1.

Exhibit A - Letter from Stephen D. Brody to Stephen M. Tunstall dated April 27,
2016;

2.

Exhibit B - Memorandum In Support of Defendant James A. Haslam III’s Motion
to Reconsider, Alter, Amend, or Vacate the Court’s April 15, 2016 Order
Granting Plaintiff’s Petition for Letter Rogatory, with Notice of Filing
Evidentiary Materials.

1

DOCUMENT 156

Dated: May 6, 2016

Respectfully submitted,

/s/ W. Joseph McCorkle, Jr.
W. Joseph McCorkle, Jr.
Balch & Bingham LLP
105 Tallapoosa St., Suite 200
Montgomery, AL 36104
Tel: (334) 269-3134
jmccorkle@balch.com
Stephen D. Brody (pro hac vice)
O’Melveny & Myers LLP
1625 Eye Street, NW
Washington D.C. 20006
(202) 383-5300
sbrody@omm.com
Counsel for Defendant James A. Haslam III

/s/ M. Christian King
M. Christian King (KINGM4874)
cking@lightfootlaw.com
LIGHTFOOT, FRANKLIN & WHITE L.L.C.
400 20th Street North
Birmingham, AL 35203
(205) 581-0700
(205) 380-9115 (Facsimile)
One of the Attorneys for Defendants Pilot
Corporation and Pilot Travel Centers LLC

2

DOCUMENT 157
ELECTRONICALLY FILED
5/6/2016 12:49 PM
02-CV-2015-000326.00
CIRCUIT COURT OF
MOBILE COUNTY, ALABAMA
JOJO SCHWARZAUER, CLERK

Exhibit A

DOCUMENT 157

BEI J I NG

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BRUSSEL S
CENTURY CITY

TEL EP H O NE

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L O S A NGELES
NEW P ORT BEACH

NEW Y O RK
SA N F RA NCISCO
SEO UL
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SI L I CON VAL LEY
SI NG A PORE
TO KY O

W RI TER'S DI RECT DI AL

April 27, 2016

( 2 0 2 ) 38 3-51 67

VIA E-MAIL

W RI TER'S E- MAI L A DDRESS

s br ody@omm.com

Stephen M. Tunstall
Stephen M. Tunstall, P.C.
260 North Joachim Street
Post Office Box 152
Mobile, Alabama 36601
Re:

Wright Transportation, Inc. v. Mark Hazelwood, CV 2015-236 (Mobile
County, Alabama)

Dear Stephen:
I write to address plaintiff Wright Transportation’s effort to subpoena defendant James A.
Haslam, III for deposition in the above-referenced action. As you know, FST Express and HB
Logistics, who are represented by the same counsel as Wright, have also filed a motion seeking
Mr. Haslam’s deposition in their case against Pilot Corp., which is pending in Franklin County,
Ohio. Mr. Haslam does not believe a deposition is warranted in either case. Discovery taken
during MDL proceedings shows the absence of support for plaintiff’s claims against Mr. Haslam
here or for any need to take his deposition.
We can only guess that plaintiff views a deposition of Mr. Haslam as a threat designed
for some litigation advantage. We are disappointed by this gamesmanship, but eager to put it
behind us. For that reason, Mr. Haslam is willing to schedule a deposition in the civil cases
pending against Pilot Corp., Pilot Travel Centers LLC, and various individual defendants, so
long as the deposition proceeds in the orderly manner outlined below.
The deposition should be coordinated across all of the currently pending civil cases, so
that Mr. Haslam is only deposed once. With the same counsel representing the plaintiffs in all of
the remaining civil litigation, coordination ought to be easy. The deposition should also be
limited to a single, seven-hour deposition day. We are willing to work with plaintiff here and in
the other, remaining civil action to identify a deposition date,1 but certain threshold matters
1

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

DOCUMENT 157

April 27, 2016 - Page 2

should be resolved before the deposition occurs. Mr. Haslam’s pending 11th Circuit appeal of
the Alabama federal court dismissal order will determine whether plaintiff’s claims against him
proceed in state or federal court. That decision should be made prior to any deposition.
If the 11th Circuit affirms the dismissal order and plaintiff’s claims remain in state court,
the court should have the opportunity to rule on Mr. Haslam’s pending motion to dismiss after
full briefing. As you know, a ruling on the motion to dismiss will go a long way to defining the
scope of this litigation, including deciding whether plaintiff should be permitted to re-plead
claims that were dismissed in the federal case and determining whether Mr. Haslam is subject to
personal jurisdiction for claims in state court. In order to give the court the opportunity to
consider the pending arguments, we propose that a deposition be scheduled within 60 days of
any 11th Circuit’s decision that affirms the state court dismissal order. If the 11th Circuit
reverses the dismissal order and the case proceeds in federal district court, we will work to
identify a deposition date within 45 days of the decision.
The foregoing proposal will allow discovery to proceed in an orderly manner, while also
eliminating needless motions practice. Toward that end, should plaintiff agree to this proposal,
the parties can advise the court at the outset of the hearing currently set for Friday, April 29,
2016.
Thank you for your attention to the foregoing. Of course, if you should have any
questions, you should not hesitate to contact me.
Very truly yours,
/s/
Stephen D. Brody
cc:

W. Joseph McCorkle, Jr., Esquire

DOCUMENT 158
ELECTRONICALLY FILED
5/6/2016 12:49 PM
02-CV-2015-000326.00
CIRCUIT COURT OF
MOBILE COUNTY, ALABAMA
JOJO SCHWARZAUER, CLERK

Exhibit B

DOCUMENT 158
106
ELECTRONICALLY FILED
4/22/2016 5:07 PM
02-CV-2015-000326.00
CIRCUIT COURT OF
MOBILE COUNTY, ALABAMA
JOJO SCHWARZAUER, CLERK

IN THE CIRCUIT COURT OF MOBILE COUNTY, ALABAMA

WRIGHT TRANSPORTATION, INC.
Plaintiff,

CV 2015-326

v.
PILOT CORPORATION;
PILOT TRAVEL CENTERS LLC, d/b/a
PILOT FLYING J;
JAMES A. HASLAM III;
MARK HAZELWOOD;
BRIAN MOSHER; and,
JOHN FREEMAN,
Defendants.

MEMORANDUM IN SUPPORT OF DEFENDANT JAMES A. HASLAM III’S MOTION
TO RECONSIDER, ALTER, AMEND, OR VACATE THE COURT’S APRIL 15, 2016
ORDER GRANTING PLAINTIFF’S PETITION FOR LETTER ROGATORY
Defendant James A. Haslam III 1 respectfully submits this memorandum in support of his
motion to reconsider, alter, amend, or vacate the Court’s Order of April 15, 2016 granting
Plaintiff’s Petition for Letter Rogatory to take Mr. Haslam’s deposition in Plaintiff’s action
against another Defendant, James Hazelwood. As the Court is aware, on January 4, 2016, Mr.
Haslam filed a motion to dismiss or, in the alternative, to abate or stay Plaintiff’s claims against
him. That motion remains pending, as does Mr. Haslam’s appeal of Plaintiff’s federal court
action, which is set for oral argument in the Eleventh Circuit Court of Appeals during the week

1

By appearing through counsel here, Mr. Haslam does not consent or waive his objection to the
exercise of jurisdiction by this Court.
1

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of June 6, 2016. The Court should not permit Plaintiff an end run around Alabama’s abatement
statute through its effort to depose Mr. Haslam as a “fact witness” in its case against Hazelwood.
FACTUAL BACKGROUND
This litigation began in July 2013, when Plaintiff filed a Complaint against the same
defendants in the United States District Court for the Southern District of Alabama. That court
dismissed the majority of Plaintiff’s claims, leaving only a breach of contract claim against Pilot
Corp. and Pilot Travel Centers LLC and an unjust enrichment claim against individual
defendants. There, as here, Plaintiff relied on the FBI Affidavit that forms the basis for the
majority of the allegations in its state court Complaint and Petition for Letter Rogatory.
Rejecting Plaintiff’s contention that the FBI Affidavit was sufficient to support its claims, Chief
Judge Steele held:
[T]he affidavit does not reference the plaintiff at all, much less assert that any
particular individual associated with any particular defendant made any particular
statement to any particular representative of the plaintiff in any particular message
transmitted via any particular form of communication on any particular date at
any particular place.
Wright Transportation, Inc. v. Pilot Corp., No. 1:13-cv-000352, Dkt. No. 68 at 4 (S.D. Ala. Jan.
9, 2014).
The case was subsequently transferred to a multi-district litigation in the Eastern District
of Kentucky. There, more than a year after the majority of Plaintiff’s claims were dismissed,
Plaintiff sought leave to amend its complaint to add a claim for fraudulent inducement.
Plaintiff’s motion was denied on grounds of undue delay and prejudice to the defendants. In re
Flying J Rebate Contract Litig., No. 2:14-md-02515, Dkt. No. 228 (E.D. Ky. May 26, 2015).
In the meantime, discovery proceeded in the MDL. That discovery not only showed the
allegations in Plaintiff’s federal complaint to be unfounded, but it also directly contradicts the
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majority of the contentions in Plaintiff’s Petition for Letter Rogatory here. Indeed, rather than
showing that Mr. Haslam worked “to specifically target Wright,” conspired “to defraud Wright,”
or “facilitate[d]” some “scheme” targeting Plaintiff, the discovery showed the opposite. Pet. ¶ 2.
It specifically belies Plaintiff’s current contention that Mr. Haslam’s deposition testimony is
“critical” or even “relevant” to its claims. Id. ¶¶ 1-2.
Plaintiff’s president and sole owner, Patrick Wright, testified that Wright Transportation
communicated with only five Pilot employees about its fuel purchase agreement, and those
employees did not include Mr. Haslam. See Dep. of Patrick Wright (“P. Wright Dep.”), June 17,
2015 (Ex. 1) at 60:19-61:8. In deposition, Mr. Wright explained the two bases for his company’s
claims in his lawsuit. First, while he acknowledged that an April 22, 2009, letter from Pilot to
Plaintiff accurately set out the terms of Plaintiff’s fuel purchase agreement, he contended that a
pilot employee named Kevin Hanscomb “called me right after this to let me know they were
going to” provide more favorable terms than those set out in writing. Id. at 86:7-14, 87:19-23.
Mr. Wright has no document reflecting the alleged change and never asked for one; nor did he
ever try to confirm the alleged oral change in terms with anyone at Pilot. Id. at 86:15-22. He
relies solely on his recollection of the alleged telephone conversation with Mr. Hanscomb.
Second, Mr. Wright alleged that Pilot erroneously charged higher fuel prices than those
appearing in the “Optimizer” Plaintiff used to direct its drivers to locations with the lowest fuel
prices on drivers’ trucking routes. The Optimizer, used throughout the time Plaintiff had a
contract with Pilot, is a computer software program that determined where drivers should refuel
by comparing net fuel prices at truck stops operated by the different companies Wright
contracted with, including Pilot, Love’s, and Flying J. Id. at 113:6-12 (“Q: But how does
Wright determine who to buy fuel from? A: Well, the Optimizer.”); see id. at 113:13-21 (“Q:
3

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What’s an Optimizer? A: It’s a software program that tells you where to fill up. Q: And what
is the Optimizer doing? A: It tells you where, if you are going from here to Minnesota, if the
lowest cost locations are Memphis, Tennessee and southern Illinois, or whatever. It tells you
where to fill up.”); id. at 113:22-114:2 (“Q: And the -- so the Optimizer is designed to direct you
to the lowest priced available fuel? A: Yes. Q: And does Wright purchase the lowest available
fuel? A: Yes.”). Approximately 60% of the time, the lowest prices were available from Pilot.
Id. at 120:10-18; see also id. at 107:24-108:9. The rest of the time, when fuel was available from
another supplier for a lower cost, Plaintiff purchased fuel from that other supplier. Id. at 120:19121:7; see also id. at 113:22-24.
Plaintiff contends that for a short period of time, the Optimizer showed one price, but
Pilot billed at a different price. See, e.g., id. at 118:13-119:10. But Mr. Wright was unable to
identify a single transaction where Pilot overbilled Plaintiff for fuel, conceding that he never
audited Plaintiff’s fuel purchases to identify overcharges; that task, Mr. Wright said, was
performed by his son Daniel, also a Wright Transportation employee. Id. at 125:12-17; see id. at
202:25-203:12. In deposition the very next day, Daniel Wright explained that the problem with
the Optimizer was simply that “the numbers that were getting plugged into the system were
inaccurate.” Dep. of Daniel Wright (“D. Wright Dep.”), June 18, 2015 (Ex. 2), at 17:1-2. As he
further explained, it was not a matter of prices in the Optimizer being consistently lower or
higher than Plaintiff’s contract price with Pilot; instead, “[t]he whole system was off. I mean,
there was numbers were higher, numbers were lower.” Id. at 17:15-16. Whatever the source of
the problem, it was easily resolved: in order to be certain the prices shown in the Optimizer
matched Pilot pricing, Pilot began sending a daily direct pricing feed to IDSC, the company
running the Optimizer, with a copy to Plaintiff. Id. at 28:23-29:6.
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Notably, Plaintiff did not conclude that the Optimizer glitch ever caused Pilot to charge
more than it had contractually agreed to charge Plaintiff. Id. at 30:21-31:4. Just as notably, Mr.
Haslam had no involvement in this issue at all. Id. at 42:17-45:6. No one at Wright
Transportation has ever spoken to Mr. Haslam about anything, let alone communicated with him
concerning Plaintiff’s purchase of fuel from Pilot. P. Wright Dep. at 60:19-61:8; 346:17-125.
Moreover, asked to identify every communication Plaintiff has ever received from Mr. Haslam,
Plaintiff listed four: three “Dear Customer” letters and one Pilot press release, the earliest dated
July 12, 2013 (after the federal Complaint was filed), id. at 346:20-347:6, which Mr. Wright
described as “four documents somebody wrote for [Mr. Haslam].” Id. at 347:3; see id. at 325:1336:3 (identifying the four documents). 2
Remarkably, Plaintiff now contends that those Dear Customer letters and press release,
which are attached for the Court’s reference (see Exs. 3-6), fraudulently induced Plaintiff to
remain a Pilot customer. See Compl. ¶¶ 80-82, 87-88. This allegation, too, was refuted by
Patrick Wright himself, when he explained that Plaintiff continues to purchase fuel from Pilot to

2

Plaintiff’s counsel separately argued in MDL pleadings that fuel prices under its contract with
Pilot should have been based on Pilot’s fuel acquisition cost, rather than an industry-standard
index known as “OPIS average.” See, e.g., Plaintiffs’ Motion to Extend Deadlines for Expert
Discovery and General Discovery, Dkt. No. 211 (May 11, 2015). But in deposition, Mr. Wright
admitted that he was fully aware that the cost component of Plaintiff’s pricing agreement with
Pilot was based on the OPIS index. P. Wright Dep. at 160:14-17 (“Q: So you thought that Pilot
was charging you OPIS as your cost, correct? A: Yes.”). While he contends that he thought the
OPIS index was Pilot’s actual cost, he conceded that any misunderstanding on his part stemmed
not from Pilot, but from Pilot’s competitor Love’s. Mr. Wright “thought that [OPIS] was the
cost that Love’s paid for their fuel every day,” id. at 151:19-22, after he was “led to believe that
OPIS was [Love’s acquisition] cost” by one of Love’s sales representatives. Id. at 152:2-18; see
id. at 164:6-11 (“Q: But whether they said something specifically or you just misunderstood,
you left your meeting with Love’s in 2007 with the impression that OPIS equaled acquisition
cost, correct? A: Yeah, I guess. Yeah.”).
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this day “[b]ecause the fuel is cheaper than other places.” P. Wright Dep. 180:7-13; see also id.
at 177:20-25; 178:22-179:10. 3
The MDL was eventually dissolved, and Plaintiff’s case was remanded to the Southern
District of Alabama, which dismissed Plaintiff’s remaining claims based on a purported lack of
federal jurisdiction. On November 19, 2015, certain defendants, including Mr. Haslam, filed a
timely notice of appeal with the United States Court of Appeals for the Eleventh Circuit
challenging the dismissal. 4 More than two weeks after the notice of appeal was filed, Plaintiff
filed the instant complaint, re-asserting numerous claims that were dismissed from the federal
action, namely, its claims for fraudulent misrepresentation (Count III), negligent
misrepresentation (Count IV), and suppression (Count V), as well as its claim for fraudulent
inducement (Count III), which the MDL court denied Plaintiff leave to include. Because Wright
was trying to proceed on duplicative actions in both state and federal court, all Defendants except
Hazelwood filed a motion to dismiss or stay under Alabama’s abatement statute, Ala. Code § 65-440. See Defendants’ Joint Motion to Dismiss, Abate or Stay, Dkt. No. 22 (Jan. 4, 2016). This
Court has not ruled on that motion.

3

Plaintiff also misrepresents that Mr. Haslam’s motion for protective order was “denied” by “the
MDL court,” suggesting that the issue was finally and conclusively decided. Pet. ¶ 4. But as Mr.
Haslam has previously explained, the motion (which dealt with issues other than those raised
here), was denied by a magistrate judge and, pursuant to 28 U.S.C. § 636 and Federal Rule of
Civil Procedure 72, Mr. Haslam exercised his right to have that ruling reviewed by the “MDL
court,” i.e., the federal judge overseeing the MDL proceedings. See In Re: Flying J Rebate
Contract Litig., 2:14-md-2515, Dkt. No. 282 (E.D. Ky. July 14, 2015). That objection remained
pending when the case was remanded to the Southern District of Alabama
4

Belying Plaintiff’s assertion that the appeal is “frivolous,” the Eleventh Circuit calendared the
case for oral argument the week of June 6, 2016. See Wright Transp., Inc. v. Pilot Corp., Dkt.
entry Apr. 1, 2016, (11th Cir. No. 15-15184).
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Nevertheless, on March 24, 2016, Plaintiff filed a motion purporting to seek to
commence discovery only as to its claims against Hazelwood, who did not join the federal appeal
and who filed an answer to Plaintiff’s complaint with this Court. See Wright Transportation,
Inc.’s Motion to Conduct Discovery Regarding Claims against Defendant Hazelwood, Dkt. No.
37 (Mar. 24, 2016). But the only discovery specifically referenced in Plaintiff’s motion was the
deposition of Mr. Haslam. Id. at 4-5. Defendants opposed Plaintiff’s request on the grounds
that: (a) Plaintiff is foreclosed by the abatement statute from taking Mr. Haslam’s deposition; (b)
Plaintiff’s request was premature; and (c) there is no basis for taking Mr. Haslam’s deposition as
a “fact witness” or otherwise and, at a minimum, Plaintiff would have to comply with
Tennessee’s Uniform Interstate Depositions and Discovery Act before taking Mr. Haslam’s
deposition because he is a resident of Tennessee. See Defendants’ Opposition to Plaintiff’s
Motion to Conduct Discovery Regarding Claims against Defendant Hazelwood, Dkt. No. 40
(Mar. 30, 2016). At the hearing on Plaintiff’s motion, the Court stated that it was not addressing
any of these arguments and that they would be taken up at a later date, once discovery was
initiated. The Court reasoned that the motion “was not necessary to file,” because the claims
against Hazelwood were before this Court due to Hazelwood’s failure to join the federal appeal.
Order, Dkt. No. 50 (Apr. 1, 2016).
Plaintiff now purports to seek Mr. Haslam’s deposition only in his capacity as a “fact
witness” for the claims against Mr. Hazelwood. But Plaintiff’s maneuvering is no more than an
ill-disguised attempt to evade Alabama’s abatement statute and proceed with discovery against
Mr. Haslam. Tellingly, the deposition of Mr. Haslam is the only discovery requested by Plaintiff
in connection with its claims against Hazelwood. Plaintiff has not sought to depose Mr.

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Hazelwood or any of the five Pilot employees with whom Plaintiff communicated about its fuel
purchase contract.
To this end, Plaintiff filed a Petition for Letter Rogatory on April 13, 2016, asking this
Court to request that the Circuit Court of Knox County, Tennessee issue a deposition subpoena
to Mr. Haslam for May 11, 2016. See Petition for Letter Rogatory (“Pet.”), Dkt. No. 78 (Apr.
13, 2016). As with Plaintiff’s other filings in this Court, Plaintiff’s petition was premised on
misstatements and mischaracterizations of the record. Before Mr. Haslam had a chance to renew
his arguments and point out Plaintiff’s misstatements to the Court, the petition was granted. See
Order, Dkt. No. 83 (Apr. 15, 2016). Mr. Haslam now seeks reconsideration and an order
preventing Plaintiff from taking discovery from him until the federal appeal is decided.
ARGUMENT
I.

The Court Should Deny Plaintiff’s Petition for a Letter Rogatory and Issue an
Order Preventing the Taking of Discovery from Mr. Haslam until the Federal
Appeal is Resolved.
A trial court enjoys plenary authority to modify interlocutory decisions such as the one at

issue here. E.g., Rheams v. Rheams, 378 So.2d 1125, 1128 (Ala. Civ. App. 1979) (“An
interlocutory judgment is subject to modification at any time before final judgment.”). Likewise,
“[t]he Alabama Rules of Civil Procedure vest broad discretionary power in the trial court to
control the discovery process and to prevent its abuse.” Ex parte Nissei Sangyo Am., Ltd., 577
So.2d 912, 913 (Ala. 1991).
The Court should exercise its broad discretion, reconsider and vacate its prior order
granting Plaintiff’s petition for letter rogatory, and issue an order barring discovery from Mr.
Haslam until the federal appeal is resolved, for two reasons. First, Plaintiff’s request is an
obvious ploy to circumvent the abatement statute and take Mr. Haslam’s deposition in aid of
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Plaintiff’s claims against him, but the abatement statute forecloses Plaintiff from doing so.
Second, Plaintiff’s request is premature, because the Court has yet to resolve numerous threshold
issues that will determine the proper scope of this action should it proceed here rather than in
federal court after the Eleventh Circuit decides Defendants’ appeal.
A.

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

Alabama’s abatement statute, Ala. Code § 6-5-440, forecloses Plaintiff from pursuing
discovery with respect to its claims against Mr. Haslam. See Ex parte J.E. Estes Wood Co., 42
So.3d 104, 108 (Ala. 2010); L.A. Draper & Son, Inc. v. Wheelabrator-Frye, Inc., 454 So.2d 506,
508 (Ala. 1984). Recognizing as much, Plaintiff asked this Court to permit it to take Mr.
Haslam’s deposition in his purported capacity as a “fact witness” for Plaintiff’s claims against
Hazelwood. But the abatement statute is not so easily circumvented.
Because Plaintiff’s claims against Mr. Haslam are barred by the abatement statute,
Plaintiff cannot take discovery against Mr. Haslam in service of those claims. Indeed, condoning
Plaintiff’s procedural maneuvering would undermine the clear purpose of the abatement statute:
“to prevent a party from having to defend against two suits in different courts at the same time
brought by the same plaintiff on the same cause of action,” L.A. Draper, 454 So.2d at 508; “to
avoid multiplicity of suits and vexatious litigation,” Johnson v. Brown-Service Ins. Co., 307
So.2d 518, 520 (Ala. 1974); and to preserve “scarce judicial resources” and avoid “piecemeal
litigation,” Ex parte Breman Lake View Resort, L.P., 729 So.2d 849, 851 (Ala. 1999). The
discovery request is vexatious; Mr. Haslam will be required to devote substantial attention and
resources to it; and granting Plaintiff’s petition would almost certainly result in piecemeal
litigation. Moreover, any deposition would occur on almost the eve of the Eleventh Circuit
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argument that will result in submission of Mr. Haslam’s appeal for decision—a decision that will
determine whether Plaintiff’s claims against Mr. Haslam proceed in federal or state court.
Because the abatement statute prevents Plaintiff from taking Mr. Haslam’s deposition,
Plaintiff’s discovery request should be denied.
B.

Plaintiff’s Requested Discovery is Premature.

The Court should prevent the taking of discovery from Mr. Haslam for the independent
reason that taking his deposition at this juncture would be premature because there are numerous
threshold issues that this Court has yet to resolve that will determine the proper scope of this
action, should it proceed here. As explained in defendants’ motion to dismiss or stay, Mr.
Haslam and his co-defendants have well-founded grounds for dismissal of some or all of
Plaintiff’s claims and, if the Court agrees with defendants, this issues will be narrowed
considerably or the litigation dismissed in its entirety. See Defendants’ Joint Motion to Dismiss,
Abate or Stay, Dkt. No. 22, at ¶¶ 19-24 (Jan. 4, 2016).
Among the threshold issues, Plaintiff’s claims for fraudulent misrepresentation, negligent
misrepresentation, and suppression are due to be dismissed because they are barred by
Alabama’s two-year statute of limitations for causes of action sounding in fraud. Ala. Code § 62-38(l). The limitations period began to run on these claims when Plaintiff discovered, or should
have discovered, facts which would put a reasonably prudent person on notice that further
inquiry was warranted; actual knowledge of the fraud is not required. See, e.g., Foremost Ins.
Co. v. Parham, 693 So.2d 409, 421 (Ala. 1997). According to Plaintiff’s Complaint, that was no
later than April 18, 2013, as Pilot alleges that it had actual knowledge of the facts giving rise to
these claims when the FBI affidavit (which forms the basis for Plaintiff’s claims) was unsealed
on that date. See, e.g., Compl. ¶ 105 (alleging that the “material information was first revealed
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to Plaintiff during April 2013 when the FBI affidavit was unsealed”); see also id. ¶¶ 10, 106
(same). 5
Plaintiff’s fraudulent inducement claim is similarly time barred. Plaintiff alleges that,
beginning “[o]n or about July 12, 2013,” Mr. Haslam sent Dear Customer letters to all Pilot
trucking customer, including Plaintiff, which fraudulently induced Wright to continue purchasing
diesel fuel from Pilot. Compl. ¶¶ 79-88. Plaintiff makes this allegation notwithstanding Patrick
Wright’s testimony that he “first conclude[d] that Pilot was engaged . . . in misconduct” in “May
2013,” continued to purchase fuel from Pilot at that time, P. Wright Dep. 201:3-15, and
continues to do so to this day, not because of any mass mailing from Pilot, but because Pilot
offers Plaintiff the best prices, id. at 177:20-25; 178:22-179:10; 180:7-13.
Irrespective of its lack of merit, the fraudulent inducement claim is time barred. 6 It is
also indisputable that the fraudulent inducement claim is barred by res judicata, because “the
denial of leave to amend constitutes res judicata on the merits of the claims ‘which were the
subject of the proposed amended pleading’” in federal court. Christman v. St. Lucie Cnty., 509
5

These claims are time barred regardless of the application of the federal tolling statute, 28
U.S.C. § 1367(d) (state-law claims that are “pending” in federal court under supplemental
jurisdiction are tolled “while the claims is pending and for a period of 30 days after” dismissal).
Plaintiff’s claims were “pending” in federal court from July 10, 2013 until January 9, 2014, when
the Southern District of Alabama dismissed them. Thus, the federal tolling statute, assuming it
applies, would have tolled the statute of limitations for 213 days: 183 while the claims were
pending “and for a period of 30 days after [they were] dismissed.” Weinrib v. Duncan, 962
So.2d 167, 169-70 (Ala. 2007). Plaintiff commenced this action on November 24, 2015, 950
days after it was put on notice of its claims by the unsealing of the FBI affidavit, and thus its
claims were filed more than two years after its claims accrued, regardless of whether federal
tolling applies.
6

Federal tolling cannot apply to this claim because it was never “pending” in federal court, as
Plaintiff was denied leave to amend its complaint to add this claim. But even if the statute of
limitations were tolled for the 18 days between May 8, 2015, when Plaintiff filed its motion for
leave to amend, and May 26, 2015, when Plaintiff’s motion was denied, plus an additional 30
days, the claim would still be time-barred.
11

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F. App’x 878, 879 (11th Cir. 2013) (quoting King v. Hoover Grp., Inc., 958 F.2d 219, 222-223
(8th Cir. 1992)); see also Restatement (Second) of Judgments § 87 (1982) (“Federal law
determines the effects under the rules of res judicata of a judgment of a federal court.”).
In addition, Plaintiff has failed to plead its fraud-based claims with particularity,
including its claims for fraudulent misrepresentation and inducement, negligent
misrepresentation, and suppression. Ala. R. Civ. P. 9(b). Defendants also intend to seek
dismissal on the ground that Plaintiff has failed to state any claim upon which relief can be
granted. Ala. R. Civ. P. 12(b)(6).
It is self-evident that resolution of these issues is necessary to define the scope of the
litigation—and therefore discovery—before any deposition occurs. If defendants are correct on
some or all of their arguments, the majority if not all of Plaintiff’s claims must be dismissed and
the parameters of this litigation, and thus permissible discovery, would be significantly
narrowed. This Court should preclude Plaintiff from taking Mr. Haslam’s deposition until these
preliminary issues are resolved.
CONCLUSION
For the foregoing reasons, the Court need go no further than to hold that the requested
discovery, at least at present, should not proceed. Accordingly, Mr. Haslam requests an order
denying Plaintiff’s Petition for Letter Rogatory and precluding the taking of any discovery from
him until after the federal court resolves the pending appeal.

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

12

DOCUMENT 158
106

/s/ W. Joseph McCorkle, Jr.
W. Joseph McCorkle, Jr. (MCC056)
jmccorkle@balch.com
BALCH & BINGHAM LLP
Post Office Box 78
Montgomery, AL 36101-0078
Telephone: (334) 834-6500
Facsimile: (334) 269-3115
Attorney for Defendant James A. Haslam, III

CERTIFICATE OF SERVICE
I hereby certify that on April 22, 2016, I electronically filed the foregoing with the Clerk
of the Court using the AlaFile system which will send notification of such filing to all registered
parties of record.
/s/ W. Joseph McCorkle, Jr.
Of Counsel

13

DOCUMENT 158
108
ELECTRONICALLY FILED
4/22/2016 5:18 PM
02-CV-2015-000326.00
CIRCUIT COURT OF
MOBILE COUNTY, ALABAMA
JOJO SCHWARZAUER, CLERK

IN THE CIRCUIT COURT OF MOBILE COUNTY, ALABAMA
WRIGHT TRANSPORTATION, INC.,
Plaintiff,
v.
PILOT CORP., et al.,
Defendants.

)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. CV-2015-326

NOTICE OF FILING EVIDENTIARY MATERIALS
IN SUPPORT OF DEFENDANT JAMES A HASLAM, III’S
MOTION TO RECONSIDER, ALTER, AMEND OR VACATE
Defendant James A. Haslam, III (“Haslam”) submits and designates the following
evidentiary materials in support of his Motion to Reconsider, Alter, Amend or Vacate:
1.

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

2.

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

3.

Exhibit 3 - Exhibit 19, a “Dear Customer” letter from Mr. Haslam to Pilot Flying
J customers dated July 12, 2013, from the Deposition of Patrick Wright,
conducted June 17, 2015;

4.

Exhibit 4 - Exhibit 20, a “Dear Customer” letter from Mr. Haslam to Pilot Flying
J customers dated July 25, 2013, from the Deposition of Patrick Wright,
conducted June 17, 2015;

5.

Exhibit 5 - Exhibit 21, a “Dear Customer” letter from Mr. Haslam to Pilot Flying
J customers dated October 7, 2013, from the Deposition of Patrick Wright,
conducted June 17, 2015; and

6.

Exhibit 6 - Exhibit 22, a Pilot Flying J press release dated July 14, 2014, from the
Deposition of Patrick Wright, conducted June 17, 2015.

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

244438.3

DOCUMENT 158
108

/s/ W. Joseph McCorkle, Jr.
W. Joseph McCorkle, Jr. (MCC056)
jmccorkle@balch.com
BALCH & BINGHAM LLP
Post Office Box 78
Montgomery, AL 36101-0078
Telephone: (334) 834-6500
Facsimile: (334) 269-3115
Attorney for Defendant James A. Haslam, III

CERTIFICATE OF SERVICE
I hereby certify that on April 22, 2016, I electronically filed the foregoing with the Clerk
of the Court using the AlaFile system which will send notification of such filing to all registered
parties of record.
/s/ W. Joseph McCorkle, Jr.
Of Counsel

244438.3

2

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PATRICK WRIGHT - 06/17/2015

ELECTRONICALLY FILED
4/22/2016 5:18 PM
02-CV-2015-000326.00
CIRCUIT COURT OF
MOBILE COUNTY,
Page 1ALABAMA
JOJO SCHWARZAUER, CLERK

·1· · · · ·IN THE UNITED STATES DISTRICT COURT
·2· · · · FOR THE EASTERN DISTRICT OF KENTUCKY
·3·
· ·
·4
· ·
·5
· ·
·6
· ·
·7
· ·
·8·
· ·
·9·

IN RE: PILOT FLYING J· · · · · · MDL Docket No.2515
REBATE LITIGATION· · · · · · · · Judge Amul Thapar

10·
· ·
11·
· ·
12·
· ·
13·

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

· · · ·IN THE UNITED STATES DISTRICT COURT
· · · ·FOR THE NORTHERN DISTRICT OF ALABAMA
· · · · · · · · SOUTHERN DIVISION
HB LOGISTICS, LLC
2040 Atlas Street
Columbus, Ohio 43228,
· · Plaintiff,

14
· · · · · · · · · · · DEPOSITION OF:
15
· · · · · · · · · · · PATRICK WRIGHT
16
17· · · · · · · ·S T I P U L A T I O N S
18· · · IT IS STIPULATED AND AGREED, by and between
19· the parties through their respective counsel, that
20· the deposition of:
21· · · · · · · · · ·PATRICK WRIGHT
22· may be taken before Lisa Bailey, Notary Public,
23· State at Large, at 150 Government Street, Mobile,
24· Alabama on June 17, 2015 commencing at
25· approximately 9:38 a.m.

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·1· · · Q.· · Do you remember any statements made from
·2· Pilot about fuel?
·3· · · A.· · Not the -- the meeting where we received
·4· more information about Pilot was April 2009.
·5· · · Q.· · My question is what do you remember
·6· being discussed in 2007?
·7· · · A.· · And I've told you, it hasn't changed
·8· that.· I don't remember the conversation at that
·9· meeting other than we discussed fuel.
10· · · Q.· · Did you take any notes at the meeting?
11· · · A.· · I don't know.
12· · · · · · MS. SEABROOK:· Glenn, I'm sorry to
13· · · interrupt.· They're having a hard time
14· · · hearing.· Is the volume maybe turned down?
15· · · · · · MR. BRODY:· It's turned backwards.
16· · · · · · MS. SEABROOK:· Turn the phone around.
17· · · It's turned facing away.· Thank you.
18· BY MR. KURTZ:
19· · · Q.· · Can you identify all employees at Pilot
20· that have been involved in the Wright relationship?
21· · · A.· · I can tell you the ones that I
22· remember.· Kevin Hanscomb, Chris Andrews, Holly
23· Radford.· Freeman.· What's the guy, Holland,
24· something Holland.
25· · · Q.· · Jason Holland?

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·1· · · A.· · Yes.· One of the things about fuel
·2· vendors -·3· · · Q.· · Anything else?
·4· · · A.· · -- you don't see them that often so it's
·5· not a big relationship type thing.
·6· · · Q.· · Okay.· Anyone else at Pilot that has
·7· been involved in the Wright relationship?
·8· · · A.· · I don't know of anyone else.
·9· · · Q.· · And what was Kevin Hanscomb's
10· involvement in the relationship with Wright?
11· · · A.· · Sales.
12· · · Q.· · And can you be a little more specific?
13· · · A.· · Negotiating price.
14· · · Q.· · Was Mr. Hanscomb the Wright primary
15· contact?
16· · · A.· · Yes.
17· · · Q.· · And what was your interactions, if any,
18· with Mr. Hanscomb?
19· · · A.· · Just negotiating the price and going
20· over the different lanes we run and what pricing
21· they have at different locations.
22· · · Q.· · And what was Mr. Freeman's role in
23· connection with the Wright relationship?
24· · · A.· · He came in one time in '09.
25· · · Q.· · And so you've met with Mr. Freeman one

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·1· Exhibit Number 4, a Pilot letter dated April 22nd
·2· 2009 to Wright.· It bears Bates number Wright
·3· 6253.· Do you recognize that letter?
·4· · · · · · (Exhibit Number 4 was marked for
·5· · · · · · ·identification.)
·6· · · A.· · Yes, I do.
·7· · · Q.· · Is that a letter you received from Pilot
·8· on or about April 22, 2009?
·9· · · A.· · Yes.
10· · · Q.· · And did that accurately reflect the
11· pricing terms at that time?
12· · · A.· · For a few days, yes.· They called me
13· right after this to let me know they were going to
14· cost minus two across the board.
15· · · Q.· · Do you have any document reflecting a
16· change in terms to cost minus two across the board?
17· · · A.· · No.
18· · · Q.· · Did you ever ask for a document?
19· · · A.· · No.
20· · · Q.· · Did you ever try to confirm those terms
21· with anyone at Pilot?
22· · · A.· · No.
23· · · · · · MR. TUNSTALL:· Object to the form.
24· · · Q.· · Do you believe -25· · · A.· · Typically when a vendor tells me

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·1· something, they do it.· And shame on me for
·2· thinking they were honest.
·3· · · Q.· · But Pilot had -- this was the second
·4· time Pilot sent you a document recording the terms
·5· for your pricing, correct?
·6· · · A.· · Right.
·7· · · Q.· · And a writing makes it clear that
·8· everyone knows what the pricing is supposed to be,
·9· correct?
10· · · A.· · I agree.
11· · · · · · MR. TUNSTALL:· Object to the form.
12· · · Q.· · Are there any terms of your contractual
13· arrangement with Pilot as of April 22nd 2009 that
14· are not reflected in Wright Exhibit Number 4?
15· · · · · · MR. TUNSTALL:· Object to the form.
16· · · A.· · Everything looks like what we discussed.
17· · · Q.· · Are there any missing terms?
18· · · A.· · No, not as of that date.
19· · · Q.· · Now you say -- how many days later do
20· you say the arrangement changed?
21· · · A.· · Just a couple -- a week or two later
22· they called back.· Kevin Hanscomb called back and
23· said they were going across the board.
24· · · Q.· · And what did Mr. Hanscomb say?
25· · · A.· · They were going across the board, cost

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·1· OPIS index?
·2· · · A.· · No.
·3· · · Q.· · So you're not buying from Love's?
·4· · · A.· · No, I'm buying from Love's.
·5· · · Q.· · You're buying from Love's?
·6· · · A.· · One of things is -- the huge difference
·7· is for me to go back and look and see that the
·8· Love's contract has got OPIS written all over it,
·9· you know.· And the Pilot contract doesn't.
10· · · Q.· · Did you -11· · · A.· · Pilot, you know, is the one that came in
12· telling me how great and wonderful and how much
13· cheaper they were going to be because their cost,
14· you know, their cost, not standard industry cost,
15· but their cost.
16· · · Q.· · But has Pilot been able to supply fuel
17· to Wright at the best possible prices?
18· · · · · · MR. TUNSTALL:· Object to the form.
19· · · Q.· · Available to Wright?
20· · · A.· · I don't know the answer to that.

I

21· mean, it's one of those that I'll never know in
22· 2009 in Fairfax, Virginia what cost was and what
23· the price was.
24· · · Q.· · Does Pilot frequently provide to Wright
25· the lowest priced fuel that is available to Wright?

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·1· · · · · · MR. TUNSTALL:· Object to the form.
·2· · · A.· · Probably 50, 60 percent of the time.
·3· But one of the things, though, is that Pilot has
·4· changed their pricing in an effort to keep our
·5· business.· And it's one that their price -- they
·6· continued to discount our prices.· And to me it's
·7· fairly obvious that they're trying to continue to
·8· have the lowest prices through this negotiation, if
·9· you will.
10· · · Q.· · How many -- do you have -- how many
11· times has Wright signed a contract with Love's?
12· · · A.· · Two or three.· I'm not sure.
13· · · Q.· · And you have a -14· · · A.· · I mean, typically in that case you're
15· going to sign one to start and, you know -16· · · Q.· · How many Love's contracts do you still
17· have?
18· · · A.· · I don't know the answer to that.
19· · · Q.· · And is there one signed contract with
20· Davidson Fuel?
21· · · A.· · Yes.
22· · · Q.· · And you have a copy of that?
23· · · A.· · Yes.· The one thing that's different is
24· Davidson Fuels and Oil is they only have one
25· location and that's my yard.· So that there

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·1· · · A.· · The Internet.
·2· · · Q.· · And why did you do that?
·3· · · A.· · To try to make some sense out of
·4· everything that I've been told.· To try to figure
·5· out who to believe.
·6· · · Q.· · How did Wright determine the vendor from
·7· which it would purchase fuel, among its multiple
·8· options?
·9· · · A.· · The majority is cost based.
10· · · Q.· · But how does Wright determine who to buy
11· fuel from?
12· · · A.· · Well, the Optimizer.
13· · · Q.· · What's an Optimizer?
14· · · A.· · It's a software program that tells you
15· where to fill up.
16· · · Q.· · And what is the Optimizer doing?
17· · · A.· · It tells you where, if you are going
18· from here to Minnesota, if the lowest cost
19· locations are Memphis, Tennessee, and southern
20· Illinois, or whatever.· It tells you where to fill
21· up.
22· · · Q.· · And the -- so the Optimizer is designed
23· to direct you to the lowest priced available fuel?
24· · · A.· · Yes.
25· · · Q.· · And does Wright purchase the lowest

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·1· available fuel?
·2· · · A.· · Yes.
·3· · · · · · MR. TUNSTALL:· Object to the form.
·4· · · Q.· · And who puts the information into the
·5· Optimizer?
·6· · · A.· · Well, the vendor in this case, Pilot
·7· sends the information to the IDSC Optimizer company
·8· on their changes.
·9· · · Q.· · Does Wright send any information to the
10· Optimizer?
11· · · A.· · No.· I think we have in the past sent
12· changes.· But the fuel vendors, if they're going
13· down on price, they have a direct shot to send it
14· direct to IDSC.
15· · · Q.· · And when has Wright provided information
16· or data to the Optimizer?
17· · · A.· · I don't know the answer to that.
18· Because I, for the most part we depend on the
19· vendors to send that information straight to the
20· Optimizer.
21· · · Q.· · Does Wright have the right to know what
22· information was provided to the Optimizer?
23· · · A.· · I would assume so.
24· · · Q.· · And does Wright ever check the
25· information to make sure it's accurate?

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·1· · · · · · MR. TUNSTALL:· He's being rude and
·2· · · unprofessional in interrupting you.· Go
·3· · · ahead.· Go ahead and complete your answer.
·4· · · It's okay.· Don't let him throw you off.· Go
·5· · · ahead and complete your answer.
·6· · · A.· · I'm all right.
·7· · · Q.· · Did Wright choose to purchase fuel based
·8· on the overall -- strike that.
·9· · · · · · Did Wright choose to purchase fuel based
10· on the overall sale price that was shown or was it
11· based on some formula?
12· · · A.· · It was based on the Optimizer.
13· · · Q.· · And did the Optimizer tell you the
14· lowest overall sale price for fuel?
15· · · A.· · The Optimizer told me where the lowest
16· price was supposed to be, but that didn't
17· necessarily mean that was what we were going to be
18· charged.
19· · · Q.· · Okay.· But you -20· · · A.· · So the question is could we have bought
21· -- if we would have known that Pilot was changing
22· the rates we could have purchased somebody else's
23· fuel because it wouldn't have been the optimizer's
24· choice.
25· · · Q.· · My question is just whether your

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·1· decision-making was to purchase fuel with the
·2· lowest overall sale price as opposed to which had
·3· the most favorable looking formula?
·4· · · A.· · The entire Optimizer is going to tell
·5· you based on what your vendors submitted the lowest
·6· location.· The best place to fuel.
·7· · · Q.· · For overall price?
·8· · · A.· · It doesn't know whether or not Pilot is
·9· going to go in in the next 24 hours and change the
10· rates because they're not making enough money.
11· · · Q.· · I'm trying to focus on your
12· decision-making.· I'm just saying from the
13· standpoint -14· · · A.· · My decision-making is based on IDSC but
15· -16· · · Q.· · Let me get the question out.· Is it your
17· decision-making to buy the fuel offered at the
18· lowest overall price as opposed to what looks like
19· the best pricing formula?
20· · · · · · MR. TUNSTALL:· Object to form.
21· · · A.· · The overall best price.
22· · · Q.· · Okay.
23· · · A.· · But that assumes that you're not dealing
24· with a company that's changing the rates after you
25· purchase it.

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·1· · · · · · THE WITNESS:· I'd like a 30 second break
·2· · · to get some water.
·3· · · · · · MR. KURTZ:· Sure.
·4· · · · · · THE VIDEOGRAPHER:· We're off the
·5· · · record.· The time is approximately 12:07 p.m.
·6· · · · · · · · · · ·(Break held.)
·7· · · · · · THE VIDEOGRAPHER:· Back on the record.
·8· · · The time is approximately 12:15 p.m.
·9· BY MR. KURTZ:
10· · · Q.· · Okay.· So the Optimizer directs you to
11· the lowest overall price, correct?
12· · · A.· · Yes.
13· · · Q.· · And you said some 60 percent of the time
14· it was Pilot offering the best overall price?
15· · · A.· · That's probably a good number.
16· · · Q.· · And does that mean about 60 percent of
17· your purchases were from Pilot?
18· · · A.· · Yes.
19· · · Q.· · And were the other 40 percent of your
20· purchases from Love's or Davidson?
21· · · A.· · Well -22· · · · · · MR. TUNSTALL:· Object to the form.
23· · · A.· · One of the things that we've -24· · · · · · MR. TUNSTALL:· What time period?
25· · · A.· · We went -- we put in our own tanks so

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·1· that number has changed over time.· We are doing as
·2· much as we can with our own tanks.· And so the
·3· number probably is still 50/50, or 60/40 between
·4· Love's and Pilot.
·5· · · Q.· · What percentage of your fuel purchases
·6· now is from Davidson?
·7· · · A.· · I would say 35, 40 percent.
·8· · · Q.· · And was Flying J your exclusive supplier
·9· of fuel between 1999 and 2007?
10· · · A.· · Love's -- I can't remember what year,
11· but Flying J was the majority of our purchases in
12· the earlier years.
13· · · Q.· · Were they -- were you purchasing from
14· someone other than Flying J between 1999 and 2007
15· when you started to purchase from Love's?
16· · · A.· · I think it was all Flying J if I'm not
17· mistaken.
18· · · Q.· · Are you suggesting that the number -19· strike that.
20· · · · · · Are you suggesting that the fuel price
21· reflected in the Optimizer from Pilot was
22· inaccurate in any way?
23· · · A.· · It was inaccurate by the time we paid
24· the bill in many cases, yes.
25· · · Q.· · It's your contention that the price that

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·1· · · Q.· · Have you personally -·2· · · A.· · And they -- that's what I'm saying, they
·3· were going over that on a regular basis with the
·4· e-mails to try to figure out what was going on.
·5· · · Q.· · Have you -·6· · · A.· · Unfortunately my son ruled out that
·7· Pilot's crooked and their bogusing up the numbers
·8· and so it took a little longer than the average
·9· person, you know, to figure out that -10· · · Q.· · Did you audit -11· · · A.· · Pardon?
12· · · Q.· · Did you audit the account and determine
13· any instance in which Pilot allegedly charged more
14· than reflected in the Optimizer?
15· · · A.· · Daniel did, yes.
16· · · Q.· · Did you do that?· I'm asking you.
17· · · A.· · No.
18· · · Q.· · Do you have any personal knowledge of
19· whether Pilot ever charged more than the Optimizer?
20· · · · · · MR. TUNSTALL:· Object to the form.
21· · · A.· · Yes.· Yes.
22· · · Q.· · And what is your personal knowledge,
23· what is the basis of your personal knowledge?
24· · · · · · MR. TUNSTALL:· Object to the form.
25· · · Asked and answered.

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·1· 2007?
·2· · · A.· · My contention all along was OPIS was
·3· cost.
·4· · · Q.· · My question is, how did you become aware
·5· of OPIS in 2007?
·6· · · A.· · Their contract.
·7· · · Q.· · Love's contract?
·8· · · A.· · Uh-huh.
·9· · · Q.· · Yes?
10· · · A.· · Yes.
11· · · Q.· · And when did Love's contract -- what was
12· it about Love's contract that made you aware of
13· OPIS?
14· · · A.· · It said OPIS on there.
15· · · Q.· · Okay.· And when you say -16· · · A.· · Unlike Pilot.
17· · · Q.· · When you said OPIS is cost, what do you
18· mean?· Strike that.
19· · · · · · When you said you thought OPIS was cost,
20· what did you mean?
21· · · A.· · I thought that was the cost that Love's
22· paid for their fuel every day.
23· · · Q.· · And why -24· · · A.· · In their transaction.
25· · · Q.· · Why did you think that?

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·1· · · A.· · I was led to believe that.· And -·2· · · Q.· · Who led you to believe that Love's
·3· was -- acquisition cost was OPIS?
·4· · · · · · MR. TUNSTALL:· Object to the form.
·5· · · A.· · You know, I was just -- like I said, I
·6· was led to believe that OPIS was their cost.
·7· · · Q.· · Who led you to believe that OPIS was
·8· Love's acquisition cost?
·9· · · A.· · I don't know who their rep was.· I'm not
10· sure.
11· · · Q.· · Did somebody at Love's tell you that
12· OPIS was their acquisition cost?
13· · · A.· · Their actual contract says OPIS minus
14· two or plus two or whatever.
15· · · Q.· · Sir, my question is, did an OPIS rep
16· tell you that Love's acquisition cost was OPIS?
17· · · A.· · Yes, I would assume so.· But I don't
18· know who the rep would be.
19· · · Q.· · Do you recall anyone from Love's telling
20· you their acquisition cost was OPIS?
21· · · A.· · I don't know who.· But their -22· · · Q.· · My question -23· · · A.· · Their contract, though, was in writing
24· and -25· · · Q.· · Sir.

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·1· · · A.· · Pilot came in and led me to believe that
·2· their whole system, you know, was much better than
·3· everybody else's and, you know, their cost were
·4· lower.
·5· · · Q.· · But you just said that you believed that
·6· Pilot was purchasing fuel -·7· · · A.· · No, that they were passing on to me what
·8· their cost were.
·9· · · Q.· · And you said that you thought that OPIS
10· represented cost, correct?
11· · · A.· · Yes.
12· · · Q.· · And you thought that -13· · · A.· · And what I thought was OPIS -14· · · Q.· · Let me get this out.· So you thought
15· that Pilot was charging you OPIS as your cost,
16· correct?
17· · · A.· · Yes.
18· · · Q.· · And you thought that from 2007 on,
19· correct?
20· · · · · · MR. TUNSTALL:· Object to the form.
21· · · A.· · Yes.· Now, OPIS, you've got OPIS high,
22· OPIS medium, and you got OPIS low, lowest price.
23· You've got three different numbers in there.· And
24· shame on me, but them telling me that they bought
25· at the lowest price --

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·1· believe that, correct?
·2· · · A.· · I mean, I don't know if they did
·3· anything to lead me to believe it or if I in the
·4· course of time used OPIS for one account and cost
·5· for another.
·6· · · Q.· · But whether they said something
·7· specifically or you just misunderstood, you left
·8· your meeting with Love's in 2007 with the
·9· impression that OPIS equaled acquisition cost,
10· correct?
11· · · A.· · Yeah, I guess.· Yeah.
12· · · · · · MR. KURTZ:· Do you want to take lunch
13· · · now?· It's 1:00.
14· · · · · · THE VIDEOGRAPHER:· We're off the
15· · · record.· The time is approximately 1:03 p.m.
16· · · · · · · · · · ·(Break held.)
17· · · · · · THE VIDEOGRAPHER:· Back on the record.
18· · · The time is approximately 2:15 p.m.
19· · · · · · MR. TUNSTALL:· This is Stephen Tunstall
20· · · for Wright Transportation.· Pursuant to Judge
21· · · Wehrman's instruction by e-mail earlier today,
22· · · Plaintiffs produced through me to Mr. Kurtz on
23· · · behalf of Pilot the unredacted agreements with
24· · · Love's.· One would be a 2009 written agreement
25· · · and then the other would be a 2013 written

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·1· · · · · · MR. TUNSTALL:· I do.
·2· · · Q.· · You're accepting your counsel's
·3· instruction?
·4· · · A.· · Yes.
·5· · · Q.· · Is Wright still purchasing fuel from
·6· Pilot?
·7· · · A.· · Yes.
·8· · · Q.· · Why?
·9· · · A.· · The -- once the Feds moved in, Pilot's
10· company was totally changed.· The rates match.· The
11· discounts are better than they've ever been.· And
12· it's quite obvious that they've changed everything
13· in an effort to salvage the company.· And, you
14· know, in that case, we're getting better discounts
15· than we've ever gotten.· And like I stated earlier
16· today, it's either one of those, they are trying to
17· salvage the company or trying to create a reason,
18· you know, as far as you guys best thing you can
19· have is for me to still be doing business.
20· · · Q.· · So Wright has determined to continue to
21· purchase fuel from Pilot even though it now is
22· fully aware that Pilot is calculating cost on the
23· basis of an OPIS contract average and not its
24· actual cost; is that right?
25· · · A.· · Yes.

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·1· · · Q.· · And Wright -·2· · · A.· · There again I just found that out,
·3· though -·4· · · Q.· · That's not the question.· And Wright is
·5· perfectly happy purchasing from Pilot under those
·6· terms?
·7· · · · · · MR. TUNSTALL:· Object to the form.
·8· · · A.· · No.
·9· · · Q.· · Then why is Wright making those
10· purchases?
11· · · A.· · What I thought was going to happen was
12· once we put in our tanks at the office that we
13· wouldn't need Pilot or Flying J or any of them.
14· And it hasn't been that way.· It's one of those
15· that I'm in the process of making changes right
16· now.· Once I got the tanks put in, you know, I
17· thought that would eliminate 90 percent of the
18· purchase fuel on the road.
19· · · Q.· · Okay.· But Wright still needs to
20· purchase fuel from fuel sellers, correct?
21· · · A.· · Yes.
22· · · Q.· · And Wright is purchasing fuel from Pilot
23· even though it is aware that Pilot is calculating
24· the cost on the basis of an OPIS index and not on
25· its actual cost, correct?

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·1· · · A.· · Right.
·2· · · Q.· · And Wright is doing so because in those
·3· instances in which Pilot's price is the lowest
·4· available option, correct?
·5· · · A.· · Yes.
·6· · · Q.· · And Wright's is purchasing from Pilot
·7· even though it knows Pilot is using OPIS contract
·8· average, not its actual cost, because it's offering
·9· the best price, correct?
10· · · A.· · Yes.
11· · · Q.· · And Wright has always been interested in
12· purchasing fuel at the lowest price, correct?
13· · · A.· · Wright has always been interested in
14· purchasing fuel at the price that's displayed, the
15· price that you've been guaranteed.· That didn't
16· happen until the Feds moved in.
17· · · Q.· · Okay.· But Wright -18· · · A.· · Before we thought we were getting the
19· best price.· We thought we were getting what we
20· should be getting.
21· · · Q.· · Wright always intended to purchase fuel
22· from the seller that provided the best price,
23· correct?
24· · · A.· · Yes.
25· · · Q.· · Why is it that Wright now accepts --

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·1· strike that.
·2· · · · · · Why is it that now Wright purchases fuel
·3· from Pilot and accepts the fact that Pilot
·4· calculates cost on the basis of the OPIS contract
·5· average rather than actual cost?
·6· · · A.· · Repeat that.
·7· · · Q.· · Yeah.· Why is Wright now willing to
·8· accept and buy from Pilot fuel knowing full well
·9· that Pilot is calculating the cost on that fuel on
10· the basis of OPIS contract average and not based on
11· actual cost?
12· · · A.· · Because the fuel is cheaper than other
13· places.
14· · · Q.· · Would it -15· · · A.· · But it doesn't give them the right to
16· advertise one price and charge you another.
17· · · Q.· · I'm not asking -- for the record.· Since
18· the inception of the business in 1999, would Wright
19· have purchased fuel at the lowest price
20· irrespective of whether Pilot was calculating cost
21· on the basis of OPIS contract average rather than
22· actual cost?
23· · · A.· · The message is to purchase at the lowest
24· cost.· But if there's an advertised cost, it
25· doesn't give the vendor the right to change the

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·1· · · A.· · Yes.
·2· · · Q.· · And when did you first conclude that?
·3· · · A.· · Well, the first thing once we started
·4· hearing what was going on it made sense why we were
·5· having so much trouble with Pilot.
·6· · · Q.· · My question is when did you first
·7· conclude that Pilot was engaged, in your view, in
·8· misconduct?
·9· · · A.· · I don't have a specific date.
10· · · Q.· · Do you have an approximate date?
11· · · A.· · May 2013.
12· · · Q.· · And did you continue to purchase fuel
13· from Pilot after concluding that Pilot was engaged
14· in misconduct?
15· · · A.· · Yes.
16· · · Q.· · Why?
17· · · A.· · Great question.· I didn't think at that
18· time -- I didn't think at that time that we were in
19· the middle of it.· And as we dug we realized this
20· is exactly what all these bills that aren't
21· correct, all that led back to every bit of the
22· invoices that weren't right.
23· · · Q.· · Did you trust Pilot in May of 2013?
24· · · A.· · No.· I said that.· We were -25· · · Q.· · Where are --

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·1· · · A.· · We were in the process of putting the -·2· when we found out what was going on we started
·3· putting pumps in to get our own fuel.
·4· · · Q.· · Where are the bills that you say were
·5· incorrect from Pilot?
·6· · · A.· · Where are the bills?
·7· · · Q.· · Yeah.
·8· · · A.· · The invoices?
·9· · · Q.· · Sure.· You have -- how many invoices do
10· you have that you believe were incorrect by Pilot?
11· Strike that.
12· · · · · · How many times do you think Pilot
13· incorrectly invoiced Wright?
14· · · · · · MR. TUNSTALL:· Object to the form.
15· · · A.· · Thousands.
16· · · Q.· · From when to when?
17· · · A.· · If I had to say, 2008 through '13.
18· · · Q.· · And you're saying every single invoice
19· was incorrect?
20· · · A.· · No.· No, I'm not saying that.
21· · · Q.· · How many of those -22· · · A.· · They picked.· They picked -23· · · Q.· · How many of these -24· · · A.· · -- transactions and -25· · · Q.· · How many invoices were incorrect?

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·1· · · A.· · I don't know the answer to that.
·2· · · · · · MR. TUNSTALL:· Object to the form.
·3· · · Q.· · And these are the invoices that you said
·4· your son Daniel was looking at?
·5· · · A.· · He was pulling out invoices to try to
·6· figure out what was going on, why the Optimizer
·7· wasn't matching the actual price.
·8· · · Q.· · And was Daniel the one that has
·9· knowledge of what invoices Wright claims are
10· incorrect?
11· · · A.· · He has some that he was working on.
12· Sure.· Now, how many he was actually working on -13· because he -- we were all thinking that's
14· something -- and Pilot referred to it as a glitch.
15· And we're like, a glitch.· What is that?· And in
16· hindsight a glitch meant that they were changing
17· prices.
18· · · Q.· · How many times do you think -- well,
19· strike that.
20· · · · · · How many times are you contending that
21· Pilot changed a price that it had otherwise
22· provided to the Optimizer?
23· · · · · · MR. TUNSTALL:· Object to the form.
24· · · A.· · I don't know the answer.
25· · · Q.· · Do you have any approximation?

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·1· · · Q.· · And you were asked to identify all
·2· communications between Wright Transportation, Inc.
·3· and James A. Haslam, III regarding Wright
·4· Transportation Inc.'s alleged fuel rebate and/or
·5· discount contract with Pilot, Flying J, between
·6· approximately 2005 and the present day including
·7· the date of any such communications and the name,
·8· address, and telephone number of each individual at
·9· Wright Transportation, Inc. who made the
10· communication.· Do you see that?
11· · · A.· · Uh-huh.
12· · · Q.· · Is that a yes?
13· · · A.· · Yes.
14· · · Q.· · And initially there wasn't a specific
15· response given other than to refer to documents and
16· information that says, Previously provided in
17· Wright Transportation Inc.'s response to Defendant
18· Travel Center, Pilot Travel Centers LLC, request
19· for production number seven, right?
20· · · · · · MR. TUNSTALL:· Object to
21· · · characterization of testimony.· You can
22· · · answer.
23· · · Q.· · Do you see that?· It's under Answer.
24· · · A.· · I see it.
25· · · Q.· · And then immediately under that there's

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·1· a supplemental answer.· Do you see that?
·2· · · A.· · Yes.
·3· · · Q.· · And the supplemental answer says, Please
·4· see Plaintiff's amended complaint including
·5· paragraphs 17, 18, 19, and 24 filed on May 8, 2015
·6· setting forth communications with defendant
·7· Haslam.· Do you see that?
·8· · · A.· · Yes.
·9· · · Q.· · And you understand that the Court denied
10· Wright Transportation's motion for leave to amend
11· its complaint in this case, right?
12· · · A.· · I don't understand that, no.
13· · · Q.· · Were you aware that Wright
14· Transportation filed a motion asking for the
15· Court's permission to file an amended complaint?
16· · · A.· · Yes.
17· · · Q.· · And are you aware that the Court denied
18· that motion and said that Wright Transportation
19· could not file that amended complaint in this case?
20· · · · · · MR. TUNSTALL:· Object to the form of the
21· · · question, characterization of the order.· The
22· · · order speaks for itself.
23· · · A.· · I mean, you're talking above my head as
24· far as understanding what -25· · · Q.· · Are you aware that that amended -- the

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·1· Court didn't permit that amended complaint?
·2· · · A.· · Okay.· No, I was not aware of that, no.
·3· · · Q.· · All right.· So you were not aware that
·4· the Court denied the request and said that amended
·5· complaint is not part of this case, right?· You
·6· were not aware of that?
·7· · · A.· · No.
·8· · · Q.· · Regardless, you've incorporated it into
·9· your supplemental answer.· You refer to it in your
10· supplemental answer to the interrogatory, right?
11· · · A.· · Where does it say in there that it's
12· been denied?
13· · · Q.· · My question, my pending question wasn't
14· on whether the motion was granted, denied, and
15· didn't have anything to do with the outcome of the
16· motion.· My question was you referred to the
17· amended complaint in your answer to this
18· interrogatory, correct?
19· · · A.· · Yes.
20· · · Q.· · All right.· Have you ever seen the
21· amended complaint?
22· · · A.· · You're asking me -- I mean, how many
23· amended complaints do we have?· I mean, I'm sure
24· I've seen it.
25· · · Q.· · All right.· Let's not guess.· I'll show

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·1· it to you, and you can tell me if you've seen it or
·2· not.
·3· · · · · · MR. TUNSTALL:· I'm going to object to
·4· · · attorney-client privileged communications.
·5· · · Q.· · If we could mark this Exhibit 18.
·6· · · A.· · Like I said, I get one or two of these a
·7· day and to understand amended complaints and all
·8· that -·9· · · · · · MR. TUNSTALL:· What number is this?
10· · · · · · MR. BRODY:· 18.
11· · · · · · · (Exhibit Number 18
12· · · · · · · · was marked for identification.)
13· · · · · · MR. TUNSTALL:· Again, I object to
14· · · questions regarding my communications with my
15· · · client.· Attorney-client privilege, work
16· · · product.
17· · · Q.· · Mr. Wright, if you could take a look at
18· the document we've marked as Exhibit 18.
19· · · A.· · I see it, yes.
20· · · Q.· · Have you seen this document before?
21· · · A.· · I'm assuming I have.
22· · · Q.· · I don't want you to -- I don't want you
23· to assume.
24· · · A.· · It's one of those that, you guys do this
25· every day.· And I've had 80 of these come by my

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·1· office, and I've got 180 employees trying to run a
·2· trucking business.· I don't do this every day.
·3· I don't, you know -- so much of this is a year and
·4· a half old.
·5· · · Q.· · Mr. Wright -·6· · · · · · MR. TUNSTALL:· Any knowledge would be
·7· · · based on conversations with counsel.· I ask
·8· · · you to move along from attorney-client
·9· · · privilege communication questions, please.
10· · · Q.· · Mr. Wright, I'm going to represent to
11· you that this was a document prepared and filed by
12· your attorney, Mr. Tunstall, along with a motion
13· for leave seeking the Court's permission to submit
14· it.· That was the motion I was referring to that
15· was denied by the Court.· My question to you is
16· simply sitting here today taking as much time as
17· you need to look at it.· Do you remember seeing
18· this document before reviewing it here in the
19· deposition?
20· · · · · · MR. TUNSTALL:· Object to the extent of
21· · · attorney-client privilege and work product.
22· · · Don't disclose any communication you had with
23· · · me, Mr. Wright.
24· · · A.· · I don't know the answer, whether I'm
25· familiar with it or received it.

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·1· · · Q.· · Okay.· Well, you refer to it in your
·2· answer to Mr. Haslam's interrogatory.· Did you -·3· do you recall reviewing it before you verified
·4· under oath your responses to interrogatory number
·5· one?
·6· · · A.· · No.· But I mean the thing of it is the
·7· day I signed this, I was obviously reading it that
·8· day.· Yeah, it made sense that day.· You're asking
·9· me questions about this what, from July of 2013.
10· · · Q.· · The only communications, reported
11· communications, between Wright Transportation and
12· James Haslam regarding Wright's fuel purchase
13· arrangement with Pilot that are referred to in your
14· answer to the interrogatories are four paragraphs
15· to the amended complaint, correct?
16· · · · · · And I'm talking about interrogatory
17· number one.
18· · · A.· · Which is going back to this one?
19· · · Q.· · We're going back to 17.· The answer to
20· interrogatory number one in 17 refers to four
21· paragraphs in the amended complaint, correct?
22· · · A.· · Yes, four paragraphs.
23· · · Q.· · All right.· And those paragraphs are -24· 17 -- let's take them one by one.· 17, are you
25· there?

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·1· · · A.· · Yes.
·2· · · Q.· · 17 refers to an electronic communication
·3· of July 12, 2013, correct?
·4· · · A.· · Yes.
·5· · · Q.· · And it identifies that communication by
·6· Bates number at the end of the paragraph, correct?
·7· · · A.· · Yes.
·8· · · Q.· · That date, July 12, 2013, was
·9· approximately three months after the date of the
10· FBI affidavit; is that right?
11· · · A.· · Yes.
12· · · Q.· · And it was I think about two days after
13· you had filed your lawsuit that brings us here
14· today; is that right?
15· · · A.· · I don't know what the -- our date of the
16· lawsuit -- we discussed that earlier today.· And I
17· didn't know the answer then.· I still don't know
18· the date of our contract in this lawsuit.
19· · · Q.· · Is it -- let me ask you this.· Is it
20· fair to say that -- I know you were unclear when
21· Mr. Kurtz asked the question about the exact date
22· that you retained Mr. Tunstall.
23· · · A.· · Right.
24· · · Q.· · And that your attorney-client
25· relationship with him began.· Is it fair to say

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·1· that it is sometime between the date of the FBI
·2· affidavit and the date that the lawsuit was filed?
·3· · · A.· · Yes.
·4· · · Q.· · Did you ever think about suing Pilot in
·5· 2012 or '11, whatever the time period was, when you
·6· testified you were having difficulties with the
·7· Optimizer?
·8· · · A.· · At that time, we wanted to believe that
·9· something in the mix, you know, had just gone wrong
10· and nobody was doing anything illegal or wrong.
11· · · Q.· · So the answer to my question then is -12· and if you just focus on my question.· In that time
13· period did you ever think about suing Pilot?
14· · · A.· · No.
15· · · Q.· · Let's mark this as 19.
16· · · · · · · · · · ·(Exhibit Number 19
17· · · · · · · · · · ·was marked for identification.)
18· · · Q.· · If you take a look at the document we
19· marked as Wright 19.· It begins with the Bates
20· number Wright 06152 and ends with 06156, correct?
21· · · A.· · Yes.
22· · · Q.· · And this is the document that is
23· referred to in paragraph 17 of the amended
24· complaint, correct?
25· · · A.· · Yes.

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·1· · · Q.· · It's a true and correct copy of that
·2· document?
·3· · · A.· · I'm assuming it is.
·4· · · Q.· · And this is the document that you were
·5· referring to when you referenced paragraph 17 in
·6· your answer to interrogatory number one, correct?
·7· · · A.· · I don't know the answer to that.
·8· · · Q.· · Well, you verified the interrogatory
·9· answer, Mr. Wright.· And this is Wright 17.· And in
10· the interrogatory answer you referred to paragraph
11· 17 of the amended complaint.· And this is the only
12· document cited in paragraph 17 of the amended
13· complaint, correct?
14· · · A.· · Yes.· That's the letter it's referring
15· to.
16· · · Q.· · And that is the letter that you were
17· referring to in your interrogatory answer in your
18· response to interrogatory number one when you
19· referenced paragraph 17 of the amended complaint,
20· correct?
21· · · A.· · Yes.
22· · · Q.· · All right.· Paragraph 18 is also
23· referenced in your response to interrogatory number
24· one.· And paragraph 18 refers to a communication
25· dated July 25, 2013, correct?

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·1· · · · · · MR. TUNSTALL:· Say the date again.· I'm
·2· · · sorry, Mr. Brody.
·3· · · · · · MR. BRODY:· July 25, 2013 is what the
·4· · · amended complaint says.
·5· · · A.· · And what's the question?
·6· · · Q.· · The question is -- let me step back.
·7· · · · · · The next paragraph of the amended
·8· complaint that you referred to in response to
·9· interrogatory number one was paragraph 18 of the
10· amended complaint, correct?
11· · · A.· · Okay.
12· · · Q.· · Yes?
13· · · A.· · Yes.
14· · · Q.· · And paragraph 18 of the amended
15· complaint refers to a document dated July 25, 2013,
16· correct?
17· · · A.· · Yes.
18· · · Q.· · And it refers to it by Bates number.
19· And I'm going to mark the document bearing 06151 as
20· Wright 20.
21· · · · · · · · · · ·(Exhibit Number 20
22· · · · · · · · · · ·was marked for identification.)
23· · · Q.· · Do you have that document?
24· · · A.· · I do.
25· · · Q.· · And that's the -- that is a true and

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·1· correct copy of the document referred to in
·2· paragraph 18 of the amended complaint, correct?
·3· · · A.· · Yes.
·4· · · Q.· · All right.· The next paragraph that you
·5· -- of the amended complaint that you referred to in
·6· your response to interrogatory number one was
·7· paragraph 19, correct?
·8· · · A.· · Yes.
·9· · · Q.· · And paragraph 19 refers to a
10· communication of October 7, 2013, correct?
11· · · A.· · Yes.
12· · · Q.· · And the Bates number of the document is
13· referred to at the end of the paragraph beginning
14· Wright 6146 through 6150, correct, the end of
15· paragraph 19.· You don't have it yet.
16· · · A.· · Okay.· So I can't find it.· Okay.· That
17· makes sense.
18· · · Q.· · The question is you referred to the
19· document by Bates number in paragraph 19, correct?
20· · · A.· · Yes.
21· · · Q.· · Let's make that 21.
22· · · · · · · · · · ·(Exhibit Number 21
23· · · · · · · · · · ·was marked for identification.)
24· · · Q.· · And the document that we have marked as
25· Wright 21 is a true and correct copy of the

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·1· document that is referred to in paragraph 19 of the
·2· amended complaint, correct?
·3· · · A.· · Yes.
·4· · · Q.· · All right.· The last paragraph of the
·5· amended complaint that you refer to in your answer
·6· to interrogatory number one is paragraph 24; is
·7· that right?
·8· · · A.· · Yes.
·9· · · Q.· · And if you turn to the amended
10· complaint, you'll see that paragraph 24 describes a
11· document dated July 14, 2014, correct?
12· · · A.· · Yes.
13· · · Q.· · And I want to mark as Exhibit 22 -14· there's no Bates number referred to in that
15· paragraph, is there, as there was with the other
16· ones?
17· · · A.· · No.
18· · · · · · · (Exhibit Number 22
19· · · · · · · · was marked for identification.)
20· · · Q.· · But I want to ask you the document that
21· I had marked as Wright Exhibit 22 is a true and
22· correct copy of the document that you were
23· referencing in your interrogatory answer and in
24· paragraph 24 of the amended complaint, correct?
25· · · A.· · Yes.

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·1· interrogatory?
·2· · · A.· · I'm not -- I don't have an answer to
·3· that.
·4· · · Q.· · Well, is there anything else or not?
·5· That's a pretty simple question.
·6· · · · · · MR. TUNSTALL:· Objection.
·7· · · Mischaracterization.
·8· · · Q.· · Are there any other communications?
·9· · · A.· · With Jimmy Haslam?
10· · · Q.· · Correct.
11· · · A.· · Jimmy Haslam hasn't done anything.· It's
12· one of those, I would love to meet Jimmy Haslam.
13· What's crazy is I was the one that got beat out of
14· the money, and I have to go to these meetings.· I'm
15· up here on a firing line like I've done something
16· wrong.
17· · · Q.· · You said you'd love to meet him.· You
18· never have, have you?
19· · · A.· · No.
20· · · Q.· · And you identified in your answer to
21· that interrogatory every communication that Wright
22· Transportation has ever received from Jimmy Haslam,
23· correct?
24· · · A.· · Which is two letters somebody wrote for
25· him.

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·1· · · Q.· · Well, it was the four documents we
·2· looked at and marked as exhibits, correct?
·3· · · A.· · Four documents somebody wrote for him.
·4· · · Q.· · And we looked at all of them today,
·5· correct?
·6· · · A.· · Yes.
·7· · · Q.· · So you also received an offer of
·8· judgment from Pilot in this case; is that right?
·9· · · A.· · Yes.
10· · · Q.· · And Pilot offered to pay Wright
11· Transportation $80,000 to resolve this case in an
12· offer of judgment, correct?
13· · · A.· · No.
14· · · Q.· · All right.· Let's take a look at it.
15· · · · · · · · · · ·(Exhibit Number 23
16· · · · · · · · · · ·was marked for identification.)
17· · · Q.· · Have you seen -- have you had a chance
18· to review the document that I've handed you that
19· we've marked as Wright Exhibit 23?· Let me know
20· when you're ready to proceed.
21· · · A.· · I'm ready.
22· · · Q.· · I've handed you a document dated
23· February 28, 2014 captioned Defendants Pilot
24· Corporation and Pilot Travel Centers, LLC's Rule 68
25· Offer of Judgment.· Do you see that?

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·1· · · · · · · · · C E R T I F I C A T E
·2
·3· STATE OF ALABAMA· )
·4· JEFFERSON COUNTY· )
·5
·6· · · · I hereby certify that the above and
·7· foregoing deposition was taken down by me in
·8· stenotype, and the questions and answers thereto
·9· were reduced to computer print under my
10· Supervision, and that the foregoing represents a
11· true and correct transcript of the deposition
12· given by said witness upon said hearing.
13· · · · I further certify that I am neither of
14· counsel nor of kin to the parties to the action,
15· nor am I in anywise interested in the result of
16· said cause.
17
18· · · · · · · · · · · ·/s/Lisa Bailey
19· · · · · · · · · · · ·Lisa Bailey, CCR #289
20· · · · · · · · · · · ·CCR #289, Expires 9/30/15
21· · · · · · · · · · · ·Commissioner for the
22· · · · · · · · · · · ·State of Alabama at Large
23

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ELECTRONICALLY FILED
4/22/2016 5:18 PM
02-CV-2015-000326.00
CIRCUIT COURT OF
MOBILE COUNTY,
Page 1ALABAMA
JOJO SCHWARZAUER, CLERK

·1· · · · ·IN THE UNITED STATES DISTRICT COURT
·2· · · · FOR THE EASTERN DISTRICT OF KENTUCKY
·3·
· ·
·4·
· ·
·5
· ·
·6
· ·
·7
· ·
·8·
· ·
·9·

IN RE: PILOT FLYING J· · · · · · MDL Docket No.2515
REBATE LITIGATION· · · · · · · · Judge Amul Thapar
______________________________________________
· · · ·IN THE UNITED STATES DISTRICT COURT

10·
· ·
11·
· ·
12·
· ·
13·

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

· · · ·FOR THE NORTHERN DISTRICT OF ALABAMA
· · · · · · · · SOUTHERN DIVISION
HB LOGISTICS, LLC
2040 Atlas Street
Columbus, Ohio 43228,
· · Plaintiff,

14· · · · · · · · · · DEPOSITION OF:
15· · · · · · · · · · DANIEL WRIGHT
16· · · · · · · ·S T I P U L A T I O N S
17· · · IT IS STIPULATED AND AGREED, by and between
18· the parties through their respective counsel, that
19· the deposition of:
20· · · · · · · · · · DANIEL WRIGHT
21· may be taken before Lisa Bailey, Notary Public,
22· State at Large, at 150 Government Street, Mobile,
23· Alabama on June 18, 2015 commencing at
24· approximately 9:25 a.m.
25

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·1· there was obviously -- the numbers that were
·2· getting plugged into the system were inaccurate.
·3· And we would pull the fuel stops.· They -- it was
·4· directing them not to fuel at the correct
·5· locations.
·6· · · Q.· · And in what way were the numbers
·7· inaccurate?
·8· · · A.· · I'm -- specifically on numbers, I'm not
·9· real sure.· Our goal in the IDSC whenever I was
10· given that task was to look into it and figure out
11· what was wrong with the IDSC and make changes if
12· needed moving forward.
13· · · Q.· · So what kind of problems did you
14· identify in IDSC?
15· · · A.· · The whole system was off.· I mean, there
16· was numbers were higher, numbers were lower.· But
17· at the time we weren't necessarily -- we had a lot
18· of faith in what numbers were getting produced from
19· Pilot and Flying J.· We had a lot of faith in them
20· putting the correct numbers in and us getting the
21· correct numbers on our Optimizer.· It was very
22· evident -- looking back on it now we should have
23· expanded our research and looked into it a little
24· bit more but we had a lot of faith in them putting
25· those numbers in.· Hindsight, whenever I was

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·1· hours.· I'm not sure.
·2· · · Q.· · Just to try to bracket, do you know
·3· whether it was more than a couple hours?
·4· · · A.· · Yeah, it was definitely more than a
·5· couple hours.
·6· · · Q.· · Can you bracket that it was less than 20
·7· hours?
·8· · · A.· · I can't.
·9· · · Q.· · And has Wright identified any
10· discrepancies between Pilot and the Optimizer since
11· the end of your three-month project?
12· · · A.· · What we did is we totally started from
13· ground zero and we said, okay, let's move
14· everything from the -- you know, what -- we don't
15· know where the numbers were getting submitted.
16· Obviously, they weren't what we were getting
17· charged from Pilot and Flying J.· Let's start from
18· ground zero.· We had a lot of faith in Pilot and
19· Flying J submitting the right numbers.· So at the
20· current time during the investigation, we basically
21· said, okay, we've got a lot of faith in Pilot and
22· Flying J.· We think it may be an IDSC problem.
23· Let's start from ground zero.· Let's direct feed
24· into the Optimizer where we're included in that
25· direct pricing every day and moving forward.

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·1· · · Q.· · Yeah, I guess me question is, once you
·2· completed that project, after two or three months
·3· were there any other discrepancies going forward?
·4· · · A.· · Were there any other discrepancies?
·5· · · · · · MR. TUNSTALL:· Object to the form.
·6· · · A.· · Not to my knowledge.
·7· · · Q.· · So did the discrepancies -- whatever was
·8· causing the discrepancies, did it get fixed?
·9· · · A.· · It did.
10· · · Q.· · How did it get fixed?
11· · · A.· · Direct feed.
12· · · Q.· · Can you explain that?
13· · · A.· · They sent -- I think their -- I'm not
14· sure who -- I think it may have been -- her name
15· was Katy sent basically an Optimizer e-mail, sent
16· it to TMW and myself.· And I think -- I'm not sure
17· who else may have been from Wright, included in
18· those e-mails every day a pricing of each fuel stop
19· at that current time.· And those were uploaded into
20· the TMW and we haven't had an issue since then.
21· · · Q.· · Did you ever conclude that Pilot had
22· charged more than it had agreed to charge with
23· respect to a single one of the fuel stops?
24· · · A.· · Can you repeat the question?
25· · · · · · MR. KURTZ:· Can you read that back?· It

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·1· · · was hard to understand.· I'll restate it if
·2· · · you don't -·3· · · · · · (Requested portion read.)
·4· · · A.· · No.
·5· · · Q.· · And to your knowledge did anyone at
·6· Wright ever conclude that Pilot had charged more
·7· than it had agreed to charge with respect to any of
·8· the discrepancies -·9· · · · · · MR. TUNSTALL:· Object to the form.
10· · · Q.· · -- that you were looking at?
11· · · A.· · At the time we didn't necessarily -- I
12· didn't know -- we weren't necessarily going after
13· thinking that Pilot was doing wrong at the time.
14· · · Q.· · I'm just asking whether you -- to your
15· knowledge anyone at Wright ever concluded -16· · · A.· · I don't know.
17· · · Q.· · -- that Pilot had overcharged with
18· respect to any of the discrepancies?
19· · · A.· · I don't know.
20· · · Q.· · To your knowledge did anybody do so?
21· · · · · · MR. TUNSTALL:· Objection.· Question
22· · · asked and answered several times.
23· · · A.· · I don't know.
24· · · Q.· · I guess I'm -- in other words, you're
25· not aware of anybody who concluded that Pilot had

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·1· overcharged Wright?
·2· · · A.· · I don't -·3· · · · · · MR. TUNSTALL:· Object to the form.
·4· · · Asked and answered.
·5· · · Q.· · Is that fair?
·6· · · A.· · I don't know.
·7· · · Q.· · I can't hear.
·8· · · A.· · I don't know.
·9· · · Q.· · You don't know anyone who had?
10· · · · · · MR. TUNSTALL:· It's not what he said.
11· · · He said, "I don't know."
12· · · · · · MR. KURTZ:· Counsel.
13· · · · · · MR. TUNSTALL:· I object to the form.
14· · · You changed his answer.
15· · · · · · MR. KURTZ:· Stop with your coaching.
16· · · · · · MR. TUNSTALL:· You just changed his
17· · · answer.· I object to that.
18· BY MR. KURTZ:
19· · · Q.· · Can you identify anybody at Wright's who
20· concluded that Pilot had overcharged Wright on any
21· transaction?
22· · · · · · MR. TUNSTALL:· Object to the form.
23· · · A.· · I don't know.
24· · · Q.· · And are you aware of anybody who has
25· ever indicated that Pilot overcharged Wright with

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·1· already been printed, paper documents?
·2· · · · · · MR. TUNSTALL:· Object to the form.
·3· · · A.· · I would haven't any documents.· I mean,
·4· everything -- my communication was e-mail.
·5· · · Q.· · So does that mean you did not search any
·6· hard copy documents?
·7· · · · · · MR. TUNSTALL:· Object to the form.
·8· · · A.· · Yeah.
·9· · · · · · MR. KURTZ:· Can we take five minutes?
10· · · · · · MR. TUNSTALL:· Yeah.
11· · · · · · THE VIDEOGRAPHER:· We're off the
12· · · record.· The time is approximately 9:57 a.m.
13· · · · · · · · · (Off the record.)
14· · · · · · THE VIDEOGRAPHER:· Back on the record.
15· · · The time is approximately 9:59 a.m.
16· BY MR. KURTZ:
17· · · Q.· · I think I just have one small area.· Can
18· you just identify for me everybody at Pilot that
19· you have met or spoken with over the years?
20· · · A.· · Jason Holland.· Chris Andrews.· Kevin
21· Hanscomb.· I think it was Katy Bibee, at their -22· that was kind of their secretary that would help
23· out whenever they would be on the road and provide
24· some information as we were looking into the
25· Optimizer problems.

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·1· · · Q.· · And what -- I know this is probably hard
·2· to do, but can you just tell me what the nature of
·3· your discussions have been with Jason Holland
·4· during the course of the relationship?
·5· · · · · · MR. TUNSTALL:· Object to the form.
·6· · · A.· · Jason -- and he hadn't been our account
·7· rep.· And I really haven't had much interaction
·8· with Jason.· He came down right as -- I think it
·9· was April of 2013, maybe.· He came down with -- or
10· may have been before that.· He came down with
11· Hanscomb.· Hanscomb introduced him as Chris Andrews
12· had gotten out of that role.· And Jason Holland, he
13· was basically introducing Holland as our new
14· account rep.
15· · · Q.· · And over the years what would have been
16· the nature of your conversations with Chris
17· Andrews?
18· · · · · · MR. TUNSTALL:· Object to the form.
19· · · A.· · The nature of our conversations?
20· · · Q.· · Yeah.· I mean, what -- you know -21· · · A.· · He basically was trying to help me
22· figure out these problems with IDSC.· Came down
23· right after I kind of started my investigation.
24· Came down, went to dinner.· That's pretty much the
25· extent of our relationship.

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·1· · · Q.· · And what's been the nature of your
·2· conversations or communications and relationship
·3· with Kevin Hanscomb?
·4· · · A.· · Just the same.· He was kind of a
·5· background to Chris.· You know, he came down with
·6· Chris.· We went to dinner.· He actually came down
·7· twice.· Came down with Chris and then came down
·8· with Jason and went to dinner both nights.· And he
·9· was kind of the background and any questions he
10· would try to help out as well.
11· · · Q.· · And what was the nature of your
12· relationship and your communications with Holly
13· Bibee?
14· · · A.· · With who?
15· · · Q.· · Holly -- did you say Holly Bibee?
16· · · A.· · I think it's Katy.
17· · · Q.· · I wrote it down wrong.· Katy Bibee.
18· Thank you.
19· · · A.· · She was just basically providing
20· documents that we need.· You know, trying to help
21· out the Optimizer problems.· I think she -22· whenever they were on the road she was kind of
23· their backup, if I could -- you know, I think
24· that's her role.· I don't really know.· And I think
25· she was the one direct feeding after the

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·1· investigation directly to me if I'm not mistaken.
·2· I think she was sending the spreadsheets every day.
·3· · · Q.· · And did you find that your -- that the
·4· people that you worked with at Pilot were
·5· responsive and helpful to you?
·6· · · A.· · Yeah.· Yeah.
·7· · · · · · MR. KURTZ:· No further questions.
·8· · · · · · MR. BRODY:· I have no questions.
·9· · · · · · MR. DURKIN:· No questions.
10· · · · · · · · · · ·EXAMINATION
11· BY MR. TUNSTALL:
12· · · Q.· · Just one.· Daniel, when you were asked
13· about caring -- see if I wrote my note down
14· correctly.· About whether or not you cared about
15· how the cost of fuel is calculated, I want to make
16· sure I understand your response.· Is it your job to
17· have knowledge of and to care about how cost is
18· calculated or is it your job to identify the lowest
19· price on the Optimizer?
20· · · · · · MR. KURTZ:· Objection.
21· · · A.· · My job is to find the lowest cost on the
22· Optimizer.
23· · · Q.· · Okay.· That price that's on the
24· Optimizer, that's the total end cost that's being
25· shown?

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·1· · · · · · · · · C E R T I F I C A T E
·2
·3· STATE OF ALABAMA· )
·4· JEFFERSON COUNTY· )
·5
·6· · · · I hereby certify that the above and
·7· foregoing deposition was taken down by me in
·8· stenotype, and the questions and answers thereto
·9· were reduced to computer print under my
10· Supervision, and that the foregoing represents a
11· true and correct transcript of the deposition
12· given by said witness upon said hearing.
13· · · · I further certify that I am neither of
14· counsel nor of kin to the parties to the action,
15· nor am I in anywise interested in the result of
16· said cause.
17
18· · · · · · · · · · · · ·/s/Lisa Bailey
19· · · · · · · · · · · ·Lisa Bailey, CCR #289
20· · · · · · · · · · · ·CCR #289, Expires 9/30/15
21· · · · · · · · · · · ·Commissioner for the
22· · · · · · · · · · · ·State of Alabama at Large
23

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ELECTRONICALLY FILED
4/22/2016 5:18 PM
02-CV-2015-000326.00
CIRCUIT COURT OF
MOBILE COUNTY, ALABAMA
JOJO SCHWARZAUER, CLERK

Exhibit 3

,

DOCUMENT 158
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Thread•Topic; UPDATE TO P!l.01. FlYfNG J HVE-POl NT PlAN
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Attached is a revised letter. I understand the letter previously sent was potentiaHy going into
Junk Mai!bo:.<es so we have formatted fn a fashion to reach voure-m.an. Thanks for your
business.

CONFIDENTIAl
This e~mail message and all corresponding eAmail mesS(Iges~ inci¥Jding all attachments, are
intended solely for the individual{s) named above. They contain confidentfa:l and/or
proprietary information. Do not forward, COP Vi distribute or otherwise· relay the messages or

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their content to any individual without first contacting the taw Department.
If you have received this e-mail message in errot~ do not read; forward:~ copy or distribute it or
any of its conte.nt to anyone. In addition.. please notify the sender that you hat~e received this
message immediately by return e-mail and delete it.

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Customer Update 071213.pdf

133 KB
Wright 06152

DOCUMENT 158
111

St4bjed!Recalk ATTACHED UPDATE
From~ J Hastam 3 <JHaslam3@pilotffyingj.~c:om>
Oate~7/12/201311;SOAM
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Wright 06153

,

DOCUMENT 158
111

...

1 ~>anno give ymr an: update on
22 <:lt our press COli:ference.

ourprogr~s~

on the five s.teps we amwux1ced on April

1) We instn.H.::ted m~.r entire .inte.rnal f1e1d audlt te.;.nn (2S ph\'$ ~.~mploye.es} \Jj;!ck ts.?
Knox:vnh~ to re;<'iew all of <>m' diesel fuel accounts, nearly 5,m.m, st;:::rting. with our
manttaJ diesel reb;ate customers, which were highlighted in the Nn'iJ 18. federat
affidavit"

• Our audit te~nl completed theiv initial manual diesel rebate Xl~View on Jtt.ne
30. Vt/e hav~:: mailed letters t<> <lH of tJ\Jr m:anua! diesel rebate t'Ustonu=m;
e:<plaining the results ofour ~ltldit. Thos~ accounts wh'<l h<~.d a dis~repancy in
d11'~ cust<.mH.~r·s favor receivted ch~cks f~Jt the amounts $f the d!screpa!H::iesi
p!us interest. We have invited ~-~H manualdresd r~bat~ -cn~to.mets to db;cus~
or verify our findings,
• lt is il'nportant to not~ that then~ =.vere numerous !11~tnuai diesel teb~Re
accounts fb.at had a zero hahmc~ and even son'ie a.cco~mts th:<1t owed r!:wney'
to PHot Flying J.
• We have begun to audit ail nth m· ateo.;.rnts with any typ€ of dirf.!{...t bill tw
rebate reiatitH1ship with Pilot flying J. This a:ull\irwm r~v1ew accounts fn.Jm

January 2008 to date,
2) We amwunced th::tt we alre:~dy had begun restructuring our sales team to begin
restoring f;::ith in our operations~

We placed three team members of our dies~! fuel sales team on
administrative ieave on April 20. In addition, si}l. rnetrthers of our s:aies tear.n
have resigned or wen!J t~rmimit<ed.
On a more poslt!ve rwte, we are very pleased .to announce the folhJwing

addition::; to cur sales team:
·
c: David Hughes has been nam.nd Vice President of Sai;~s. D<:vid has .15
years' experienre \n the trucking industry. giving him a strong
foundation tu ht"~lp tead our sales team. Prior to )Glning P!lot Flying J
in 2012, he \Vo.rked with Covenant Transportation Grm.~p in
Chattan~o1cga,

c:

TN.
Scott Nelson has bt•en hil'ed as ;:1. Vie~ President. Scott wili join Sc.att
Won:bold with our National A-ccount team and h"s an outstanding

background in saks and the trucking industry, Before joining PUot
Flying }1 Scntt was President and CEO of Premier irailel' Leasing
Solutions anrl Bllsiness Development at GE Equipment Services Trailer Fleet Services ln Wayne, PA.
(') Steve Vandennk has moved ti·om his position as a PUnt Flying }
Division Director of Op€tJtions to Nnrtheast;wHdwest Director of

Wright 06154

DOCUMENT 158
111

Sales, He

wm devek~:p new busim~-~ ~'CCOUnts within the regi(}n while

custo~rs. Steve has Men a
valttahle teaurm:emh:er at PHot Jrly!ng j w1th over 20 yea!'!{ e~pe,rien:e~S.

cultivating ami suppO>I'ting existing

in the travel c:ente.r business.
c• Dav,e Rewersj a disciplined administrative man::~ger with a lt'ing
history in the dies~l t't':lnlS~~dion business, wiH be in ch.~·:U'ge of ~:n~r
hlside sales department Hil will b~ responsible f(H' strategie pia.nning
and growth of dies-eH\HJ1 sales and f:ocuson sales implementation and
~ustom~r ret~mtkm. Da~..re rec~pt!y joined .Pilot Flying Jfrom Fleet One
LLG in Ni'ashvH!e. TN, where he W'as Group

Pr~.Istclent

for Fh~e·t

Sales.
• 'l'his has been a very difficulttitrte for ntembers of our diest>l t\val. sales team
v;ho rem~ln ln piace. 'I1n:se team 1nernbers hav~. been re:al troopars, staying
foc~1sed, ;and ;Joing th~ir job:s.. Taki11g ea re ~f the ~l.lStome'r temains their
pdnnrr)' ·ff.tC~ls •.

3) On AprH 22, we orrl.~red d~{.; cornph·:te elim~mxtio:n by h\M :m of manually calc:ulaud
dies.el reba.tes ro rriinhni'ze any opportunity fo:r hta1~um. error, rtdsuse or ::thuse;

Nevl P<>lides ilnd procedures have bef.m pr;t tn pl~~te and ess~HifiaUy aH
manually ~aJculat:ed dli:JSel reb~tes at P·i!ot Flying l havt: been eliminated..

4J l asked (l\lr outside

~m,msel

tc' Work with out !ntiN'ital cmnJ$et t.o CN!ate and staffa
position ofCJ->iiefComp!iance Ofiicet.

This' pto<:ess has ttl~$n m or~ time tha:n ex.p~ete.d du.t-'l to the ifnfivrtanee of
getting. the ri·ght persr.1n f<H' this jo'6. We hav~ \ds~tecl with other yornpa:nh~s
who have hest pi(H.;tl~es comp!ian(;e poiicits and offl.:;ers in place. We hope

to have this position fill-ed within the next several months~
5) FiMUy, on April22~ 1 am:1ounc(~d tbe Pi:!ot Fly!ng J 'Board made thedec!slon to: hire
anlndepemient Spt'.!dal Counsei to conduct an indepe.m1ent. tntemal fnv~stigation
for tht! Board; in addition to manC~gettent's {~1t~mal investigation.
·

Reid Weingarten. uf the national iavv firm Step.tne & Jnhnson1 has his
inv~stigatirm underway.
Weing~rten and .his: ream,

:1tnd ?Hot F!y4ng } .is fhHv

coop.et~t1ng

with

ln sumrM.ry:

We h~we eomlJleted the rexiiew of aH of ot~r manual .rt:bate <.:ustom.ers'
accounts and paid a:U d~~crepantH~S found in the custon1t:H's' tavor, with
interest,
• WfJ. hav~ eliminated the ma£tual d!~set rehan~s <ll.nd ins~<?<lled: systems and
co.ntr0ls to hdp ~ns.ure this cto~s not hapt.n~n ~g~in,

• We cohtin.ue to audit aU of 01.lT other custom.er .accounts,

Wright06155

DOCUMENT 158
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l~inaUyj

PUnt Flymg J is proactiv~ly confirming aU ofits pricingrelatiQ.nshi.ps with its
diese:l custom1:l:rs. ·

VIe unde!"stiitnd that Pii.ot Flyfi1g I $tH! ht.-s lots of work to d~) !o r~gain }fOUl' trust. We
are taking aggressive measures to reJ>tor:e. prese.rve and protect our custo1ner
reiat.lor.ships, We wm contiW.le to wor~ "~e.r.y hard evBty day to overtome past
issues and ensur~ they f.;re rit1t rep.eah:H:t Thank you f(>r your P<\tJen~e as we work
througl:uhis process,
In the l.neantlme, our r..·ompany i.$. contim:ih;::g to make great stdde!iin delivering the
best po.ss5b!e s£;rv:ic~ tq ym.1 and your driv\~rs. it is our goal to have DUF in <:1U our
.stores, evmx lane. by Se~1ternber 1.; to cr;mpler~~ ou:r $.SO n'llH!.on shower
impnwement proj~~ct by the middle of oext y~ar: and t~ op.e:n 16 ntlW stores in the
US and Canada this. yea:r,
.

.

Thank you fot ,Y(H~r COl"Jtinued :suppt;rt We. wm ?v~Orl): hard to f'1:)gah~ YiJUr trust,
Pilot Flying) ~s conm1itted 36S drws a year, 24~7, t<; provide you.r driv~rs with the.
best possible fueH!1g experi~nce.
Sin.cerely,

l!mmy Haslarn

Wright 06156

DOCUMENT 158
112
ELECTRONICALLY FILED
4/22/2016 5:18 PM
02-CV-2015-000326.00
CIRCUIT COURT OF
MOBILE COUNTY, ALABAMA
JOJO SCHWARZAUER, CLERK

Exhibit 4

DOCUMENT 158
112

Subject: PHot Flylng J micro site
from: J Haslam 3 <JHas!am3@pi1atflyingi.com>
Date: 7/25/2013 5:13PM

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MlME-Ver5ion: 1. 0
Piiot Flying J offidaliy announced today a new website. to provide 1nfurmauon to you regarding
the rebate program and the federal investigation. The webslte can be found at

www.rebateeducation.pHotflyingj.corn.

We take this investigation seriously and are taking the appropriate steps to rebuUd your trust.
One way to de that is to keep the lines of communication open, so we can make information
readily available to you and reaffirm your confidence in us.

Information about Piiot Flying Ys day-to-day bu.siness operations, inducllng travei center
locations, directions and more vvitl continue to be available at www.pliotflyingj.com,

EXHIBIT

tiJo
Jimmy Haslam

lf](,~f""

Pilot Flying J
Wright 06151

DOCUMENT 158
113
ELECTRONICALLY FILED
4/22/2016 5:18 PM
02-CV-2015-000326.00
CIRCUIT COURT OF
MOBILE COUNTY, ALABAMA
JOJO SCHWARZAUER, CLERK

Exhibit 5

DOCUMENT 158
113

From: Jin'lmy tlashm

On Monday morning, Sepwmbef 30. 20

we provided rm update to the rfltdfu regarding
the Five Point Plan w::: put int(? pl.ac.e on A.pt11
2(H:!. to rcg~hl the ~ru.st SJJd C(lnfide:nce
of mu· cosion1ers, While tms stale1:nem t$ a.,.·aHable on our J\1\cttX'lite
(1~Y!.J-eb<:ttertiJM£g,H~)n.-pj1t'~tt1vhgj,cQf.l1t< we b~ve

.attached a

of t..~i.s sta{'{?m~m for

your convenience.
We <:ontinu~~ to take thi~ inv~.stig~tirm s<:.riom;ly and want to er1lRU.\~ 1iW apprt1pria:te. st~..>ps
are taken to rebuild y~.;ur trtlSL ...,;v·c atso wam: m .k'-':ep the li.1.1e~ <,)f cormm..micm.io:n <:Jpen, ,tf
yen have any que-stions or CCltnn1e1;.ts, pica:;e feef i'n<:e to emaH us at

.Vlf! irmat~!?.X~2} lli ini·fl_!jJ~bSi.\?.!·

Since.re ly.
~

........

.....~"\

,"';~

,('.-·..

/

t!/'~

.t·,, .:

I}~._,~~~

~

i

- !

''-i

Jimmy H~.:slarn

!
Wright 06146

DOCUMENT 158
113

0 iloli.~,

r:AVI!t. CIJNTERS

l\1essage fhrrn Pilot Flying .I c.go ,Ununy B.nslam
September 30~ 2013

l w~.nt t'() bring )'QU.up
fHlSt sevi'J?ral memhs w

lo date t;;n.aH that \Vc'\:~ been doingl~f<~ at PHot Flying J <:l'<~el~ the
deu! with th<: m•exp~cred mn1 0f e\1etttS that b<'~g;<tn unt1'.1lding this

past ApriL.

f1irst h~f me say Pik;t F~ying J '>'iill t~merge from thiS <:haUerrgC', as difHcu!t <t.B it ha~ been.
an even bettQ.r z~mnp<'~l~)'> a ,.•oqlpany nH1de up (;)f people commhted tQ providing the hest
~erv~ce in Hllrind.l.lSil'Y t.o.Altl~Ca's pwtoosi.,mal drivers and the mottnir1g public.
I amlncr;:·.dihiy proud <.~f (,Rlr :24;00t1 plus tearn members wh)) absorbed tlw shcJck Qftha
news of nur c.un;e~n ciretunsmm:es. hnmediutely pi~ke(i thetT\,.~{ve~ l.tp, and went right
back to work do:ng their J~'il,,$. Dt~~pitt the actr:~.atian~ swiding i.}roum.i i.n th~;~. weeks after
April l5. ous team !'l)fnJi;uns c.:m.1.e to work ev~ry day with theit beads held high, and,
through their acti()ns, showed tha\ PiiotFiying J is a t,~o;:r.lpany tlmt they b~lieve in..

Since Apnl l :5, we have dc1ne our best to investigate the aik~gations rna~ ~~gr.inst S<;)me
members oftYur diesel fuel 5aks team, u.; ldcntifJ.' any wrot'tgd~"'ing, (1nd h; a,~\"$:.rtce \Jur
customers that we wm net tOlerate th;at kind .of be.haviN: any1..vhere !u. our ·~~oml:l;u~y and
we wiH i'!i[ike.:rig.ht WO% any error\'i w'e diM:ove:r.
·
\Ve ha"<~e rnatie great progrt%:s on a.U frollt$. Le{ me g<> through them one by one in tbe
sa:m~ order in wruch I annouaced theln on April 22.

1) On A:p:dl 22l Iannoune~d 'Wt were bringing onr t1etd audit wam to Kno:!l:vine

to revie·w an ~)f our mann~tf aecm.tuts with our diesel fncl truckil.,g ~ompanj'
~..~ustomers.

2

Wright06147

DOCUMENT 158
113

Our field auditteatn crJni.pie'tf.~ the. review ~)fall of our w.af)tlai rebate accounts on
JtH'ie 30. noti.fied. ab.nos.t e:very customer itl whose acct.)Ufl:t ""''~':. f{.>t)i)d a

discrepancy, and sent thos~ \..:usr.mners cned{~.f\)r the: amount nf t~ discrt--p~!ucy

pjus int~rest.
We an:! m)w fin~l.iztt\g ;.mr audit()f<~ll ofz)ur other die~J fuel ~x..:o~m;;S with any
rype of direct diS\:'()Uttt agre:enwnt from 2005 ~o t~ate aoo ~xpe<:t to cr.rm.pletf' this
......
,., ... " h>. t.,,. &>·n J nf'· ''"'"'
.• ,.,•. r
p~,J~"~·~ v,.r .~,\v: ~ ,u v
t..H~- J'"'<~ .
l \:anut)t ~e S:pe<:tfic, tn.~(t C'~l genen:\l\ze tf"H~t \WS. are fit1ding disctepantieS ill ~
rt1ativeiy s-n1aU number {mt almost 7/X)() die~d fl.lei s.ales. ct\S~Qmer Mcotwu.s
auditf.\i, and that the <i!nount we've p:uid w c~.1p:ect thc>se tHscrepande:-; n~pres{~Ul:Y
a very small percentage of \)Ut(rverall diesel ft}t~l saks.

AdditkmaHy, lawyers for $t':!!ne of our c'.~~tomers
w'orked with our ktwyer~ to
'l>'flt~(\"e
t\1:::;.
f;de""!
o~.'•\u:·t
ir·
Aric~m~..;::,;.
~l
"in.:s
"u·tjr;1~
r"':""ooV
... ., t''
.
\.t<U10 •:\... ....
< •' . . .,. :}
_,. tt:'< \<.<ty~.rantee
.';':"" "'<
,, '. e~·crv
f' '""'
()1'lt1 of our. re.bate- and zflrect <.U.'$COt:f;:1t .cui'lt;:;l'ners :,vin rec~eive lOOS~' recovery ptu.s
imerest on any sh<.lrtfa!l hltheir <%t\."J)Unts witl'i•JtH
it!ga~ {jr m!wr co:'ii.:il t~J the
cuswmer, if they ':\o choose {O participate in the d"*<t... Th& agft•;;ment receive~J,
preliminary approv~! from the fec;eral judge il-; mid~Jul;. \V>:.~ l'l:r.~pc it \ViU receive
final annt{;vai
in. Novemher. Piease tK1te, this b ea;;h .and. {~ve-rv- im:ih!ki\:ial
"'
~

~··..

~

V~

'.-~,........ ~. ..... ~. . . . . .

,..,.,

-~

"-:'")~""("

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.

customer's choi.!.~e h> pruTidpate-. 1'.\'f not participate itJ t:hi~ dass .actim.1 s~.tth:ment
We beheve it is a fair and just se:ulemcm and. a.Hows r.m: C\~stt·>rners ro be mi.i.de
whoie s~)tmcr rather than later.

\Ve will no~ be ::,atisfi:ed untH :,ve hav~ identified ev'ery .singk discrepancy. nu.u1e.
e~··ery affected cuBtomer whole, and mgaim::d the contldcm~e nf~H of our
c~r~ton~er~~

.2) 1 anoounc\.'il on Aprlt 22 that we had pta~ed sevel'a! m~nlbers of our diesel

fuel sate-s team on administrativE leave and already ttad beg~m re.t;trl,1eturlng
that team.
Currently.

~eve.11

members of our ;:;~les (l!arn have plead gum.y to

~.\busing our

customers' trust and have resigned or been terminated. Others have been placed
on admimstratlve leave pending lh~ r~~sults of the ong{)1ng investifa:rlon.
You km~v.· \Vho ~ome of t.hese ernp1oy,~;::s. urz through y(J'-lr own n~pordng; but
wnsistent with QUr poiicy as a private cmnpany. w'e are not g·oing t6 publidy
discuss any ,;pedfic empl.oyee matters.
·

David Hughes, Sieve Vr.:.nderink and Mikt HlH, aH ~.enior mernt-t;rs ofour team,
have been moved w diesei tud sates and an:. doin2. outstan.Jim~............1obs '1-:Grkin~""'"' w;th

-

3
Wright06148

DOCUMENT 158
113

existing mernb~ of our diesel $~tl~~s tt;u.rn !O sel the &ales def~artmem~s. n.ew
cv~1r~e.

In addiri~n, \'1-:'e h:;;ve no,_~,. ptnced aitt'l~'ist evti)' custt,met· contract in "~'riting and
"viH eorrtinu~; to d.~l :;;o gomg forward. Odr gm:il iffi.H.{) make cettain ~a·v'ecy custnmcr
is imtkatciv""' irrvolw.d with wh!tt hi~.. r;r.ber co111ratt savs
., ?;Q th!i.t .,..r>oxtle..~;. aiwavs
""
know the exact ex!XX~f.ation
of(!ach comracl..
..
..

'

'

'

3) On April 22~ r direct'(!a the t:.'O.UYernion of .an (If. eu:r diesd fuel t~~~Sti)ffi~rS- tll
13"lectrl)nk t~akl.d~tk~n af\d payJ:n(lnt~ eUn~inatiJlg a!] ma~tu.an:v

mattag~

f~<:e(Hlnts.

Th:ls. has ·~lmo:-;t been "'··'·"d~'l-'"~"
n:K>vecl to a different. de.pa.mnent.

4) We asked 'l')Ur (mtshl.e connst~.to help u..~ tt.n-ate and statl' a cmnptianct- tlffi,~e
ttl r~p<}ift to the companf.s g~nenli counsel w tnsm:e t·hat this type' ~jfacth1ty
n\'!ver lm.r·ulens
at Pilot. F1-vina
J.
r r . a<tn!n
5

~

We h~rv~~ . .~reJ1ted ~m inte.r.tH&i/extern<1l Compl innce Advu;ory CtmHnittee incl udin:g
foil!' :;eas~;,;ned expert~~;: Stan Br~rrd" BlH Mrm~lii, Chd~ Nic~!itn; ~nd R<)n Ham~.
Br~nd.,

a p:!rtne.r of the Bmnd Law Group of Washingwn, QC~ ~.rv~ as ge.nernl
<:;{Y\.tnsel to the U. S. H{lu~e of Repre~~ntatives 1mder. Speg.ke.r Thorn~~ P. ''Tip"
O'Ne.ai
and was the House's Chtd'Ls.;g.!l.l Oftic.cr d:urif!g th;u dme.. 1\<krem~
NkaS.ttn and H~?,rr\s are als<> v<.:ry experl.e;it.~d h1 the. compii}'l.nce. field. Mon:m
s~.rve:;;

as

Ex:ev.~taive.

Vice Prrtskkn.t.:md Ckneral C<~unsel

f~:~r

ingrtim ln{hlSJrks.

wn· ;;.,., l't;,."'~'l'·" ., ...r"'"''" ''" \t~,-.,~.· J>•··;.,,,.~,~J'
0"'"l"'"f,l ,...,.,,,~"!\.·"'~ Cl1\>~:f(';·-~·r,..·~·l·:;,,.1""'
h ..
.•
Officer und Set.~retacy of Bridgeswne. An'Wr\Ca$., Inc. Fhu~ris i~ a P~.rtner at Neal &.
<f...-.\..,f,J,~"'""'-~~"'-,.,10.; ;;?·'-•l~ ..... V" ~•.,..

"'.t."'·"~

·~"l..,•~J.'....

•1 C.;

4'~L~·--.a.A '\,.~'\~'A•""h'-d-~

~"'+.V"

\'"'so:}_~ ,A~:t \..",_.,

flatwelL PLC
Thec~'lntntiuee,

w9rking w.ixh our ~e.am, is re.·~~'ie<.vu.1g aH of our cmnpany £X)i.icies,
C):mi \Vlll. make reci.'munendatjons in. an effort tn in1prove
the pr~J>::ed.ures and mak~ our c;:m~pf!J'l.Y even ~tt0111~r regarding ''dning tbe right
pn:t(:.ech.tte:;;

~nd proe~~$e:>

. ..
t l1mg·.

5)

Finally~ on

April 22} 1 inform~4 you tbaf {m:r board in a spt>t:!ial meeting oo
April 21 voted to hire a special euunstl f() make an indeptondent report m tbe
board.

A~

you kn~.-;-<A•, the bi:)atd a:nnotmc~d on Muy i lt had hi.red Reid Wcingart~n, one
H>O mosi: int1ue1·st1ai tawy.ers &C:<:ord!ng fi"> the NiltSi<>tlal4:\~Y.}Qtii1ml.

t1f t:he

M.r. We.inganen artd his t~~arn Jwvt & fldl uwestig..ation UlKierway and wm mak.;
their re.p€,)ft dite.etiy to the board ·•iJKlf: its COl1ipck~tinr:.. 1d£) not know whe:n 1\-k

4

Wright06149

DOCUMENT 158
113

Weinga:rter1 ,'l~d his terun ,:vm i.mmpie:t~ their wGrk or ifthe bq~.rd will ~hnose t\)
m<~ke

!t i"JUbli\;.

As I have nrevtnus~v said when eon11r.~ bef.\)revou Hkethis.l \~·ould like. to ten vou·in
y:t;).U would l.~ke to ~sk,. btU r
A

~

.

.

.

,

~

~

r

.

.

~

detaii evl!fythlng l knvw and. tilk~ tj1'ecy questh:.m t know
cannot, .and. I hope ycm ur..dersum.d.

l appre(:i~lte your conttnued interest in <.)tlt(;.t'>l"l1p~ny and our iamil.'>'. Thi$ co!~tin~ws tt) be
the most cbfficulnhing we've. t;ver bt:!'en.thnmgh.
disappohithig, ernbarrassi.ng, ~nd
infuri~ting <'!I thnes, but I have be~I; truly ln~pircd by how much gotld comes mrt t)f
a.d versity ~

We. ~11-e taking this neg~~tive ttnd tt.~rnlng h imi) a 'Stn:i1gth that wHl stand. us l.n good stead
for years to <:orne. We ac.e cQmJnitted to e~~suri.:'lg this.
nf>t <;tt\l' h:xppen ~i~akn.
I ·want f.O thank our cu~fOlYt~rs f<Jr thdr: CCl1tinueci h:!Yllhv.
our f.;:ev ~;unnHt.~rli\
~
-~.
y
,
. for evervthiwi
. , "'~

they have dot~t t:md co()mlnue ttl d.:.'J.fl'!.' IS$. ~nd ;;)Ul' reatt'l memb£~rs for t!'ti'i~focu.s, h;a:rd
wcxk and commitme.m tl> Pii<)t Fiyi11g J.
,

,

,

,

<i

F

Although we hav~ focused a great deal on the aH~gf~tions rn:.1de in Api'il, we have not loot
sight of the broader busi11ess we opera{;;.:. \Ve have made changes w aHo.,.v us to servenur
\~usto!ne.rs betteL indudimi ext'l<UH.HtH:. our 6()().,strona
!Wtwork uf stores with more th:.m
w
15 new !ocatkms throl~ghout tnt United St<'ltes and Canada. in n'>r:;p{.m$e to the needs of
our cust.omers, \Ve plan trJ :provkk; four ~drlhkmal opportunh~es for rmr custl:)t11ers ~o fucel
with us in Kentucky, HHnois, Ohlo and Texas.
-

J

~-

l hope you've also di:>c\".lvered our mk:rosite. ~~r_w .tet>art'r.;g.v..9lti<';:<n.piktflvin£i.wm>
which we bunched J~1ly 25 ir; an effort w keep our customt.!f!~, our tearn ~11emhers and
_\'•)~; infonneri rm fi reguhH' b<>si~:. W'f:. wUl (.'Ont\nue to ke~p the ~ite updated with the latest
lrJormation, mduding interviews with key team rnemtx"r~ throttghora our company.

Thank you.

5
Wright 06150

DOCUMENT 158
114
ELECTRONICALLY FILED
4/22/2016 5:18 PM
02-CV-2015-000326.00
CIRCUIT COURT OF
MOBILE COUNTY, ALABAMA
JOJO SCHWARZAUER, CLERK

Exhibit 6

DOCUMENT 158
114

Piloli..
NEWS RELEASE
July 14, 2014
FOR IMMEDIATE RELEASE
For further information,
Contact: Rachel Albright
The Ingram Group
615-345-9200 (o)
615-734-9686 (c)

PILOT FLYING JREACHES AGREEMENT WITH FEDERAL GOVERNMENT
KNOXVILLE, TN -- Pilot Flying J has reached an understanding with the U. S.
Attorney's office, Eastern District of Tennessee, and the U. S. Department of Justice,
that the company will not be prosecuted, assuming it follows the terms of the
agreement, including paying a monetary penalty over the next two years and fully
cooperating with the federal government's investigation of fraudulent conduct
within the company's diesel fuel sales discount programs.

"We, as a company, look forward to putting this whole unfortunate episode behind
us, continuing our efforts to rectify the damage done, regaining our customers' trust,
and getting on with our business," said CEO Jimmy Haslam. "We've been committed
from the beginning of this to doing the right thing, and that remains our
commitment."
"The past 15 months, since the federal government served a search warrant on the
company's headquarters, have been very trying for all involved," said Aubrey
Harwell, Pilot Flying J's attorney. "The company has cooperated fully with the
government and will continue to do so. As to its customers, the company has gone
to extraordinary lengths to understand and identify any wrongdoing and make it
right."
"Under the terms of the agreement," Harwell added, "the company has certain
obligations, which it fully intends to fulfill. We appreciate the diligence the U. S.
Attorney's office has shown in this matter. It certainly has been no less diligent than
our own internal investigation. I believe this agreement is the result of the good
intentions of both sides to do the right thing."

EXHIBIT

I

~?--·

\U(t'K'At'

1

DOCUMENT 158
114

The agreement, titled a "Criminal Enforcement Agreement," is neither an indictment
nor a finding of guilt. It clearly states that the company will not be prosecuted under
any current circumstances so long as the company complies with the terms of the
agreement. However, individuals may still be prosecuted.
Under the agreement, Pilot Flying J also acknowledges and accepts full
responsibility for any criminal conduct committed by its employees, including some
personnel involved with the operation and oversight of its direct diesel fuel sales
group, an approximately 90-member division of the company, which overall has
23,000 employees and 650 retail locations nationwide.
Over the two year term of the agreement, in addition to paying the monetary
penalty, which the government has set at $92 million consistent with the United
States Sentencing Guidelines, the company also commits to keep the government
advised of the status of its internal compliance program, which it voluntarily
initiated immediately following the execution of the warrant last year.
To learn more about Pilot Flying j's actions regarding the investigation, please visit
the company's Rebate Education site: h.tl;JLJ/rebateeducation.pilotflyingj.comL.
About Pilot Flyim' I
Pilot Flying J, the largest operator of travel centers in North America, is committed
to making life better for professional drivers. Headquartered in Knoxville, TN, Pilot
Flying J provides professional drivers more than 65,000 parking spaces, 4,400
showers and 4,000 diesel lanes, more than 2,200 of them with DEFat the pump.

Pilot Flying J currently is ranked No. 7 on Forbes' list of America's largest private
companies with reported annual revenues of more than $30 billion.
To learn more about Pilot Flying J, visit www.pilotflyingj.com.
###

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