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Dunkin' Donuts Franchised Restaurants LLC v. Moussa

July 1, 2009

DUNKIN' DONUTS FRANCHISED RESTAURANTS LLC, ET AL., PLAINTIFF,
v.
TAREK MOUSSA, DEFENDANT,
v.
JOHN PANZER, THIRD PARTY DEFENDANT AND THIRD PARTY COUNTER-DEFENDANT



The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.

OPINION

This lawsuit involves a serious fact issue: did Dunkin‟ Donuts franchisee Tarek Moussa ("Moussa") offer a bribe to a Dunkin‟ Donuts employee, John Panzer ("Panzer"), on April 25, 2007?

The Court assumes familiarity on the parties‟ part regarding the dealings between them up until April 25, 2007. The record establishes that in late 2006, Panzer was assigned as Dunkin‟s Development Manager for the territory in which Moussa held rights under a Multiple Unit Store Development Agreement ("MSDA") that he had entered into in 2004. (Panzer Dep. 28:11-29:10; 32:8-10, 23-25.) Under the MSDA, Moussa had paid $150,000 to Dunkin‟ for development rights over three locations in Newark and Elizabeth ($50,000 each). After Dunkin‟ rejected a store location proposed by Moussa for Spring Street in Elizabeth (Perisco Dep. 88:15- 22), in late 2006 Dunkin‟ agreed to amend the MSDA with Moussa to expand the areas in which he could develop Dunkin‟ locations. (Moussa Dep. 129:14-19.) During the process of amending the MSDA, the record shows that Dunkin‟ provided Moussa at least two "incorrect" proposed amendments to the MSDA. (Moussa Dep. 132:1-11.)

Panzer was responsible for working with Moussa to explore the possibility of opening additional Dunkin‟ locations. Moussa and Panzer worked together on development of locations in the Newark-Elizabeth territory throughout early 2007, meeting approximately five times for business purposes. (Moussa Dep. 181:20-182:5.)

Leading up to the April 25th event, it appears that Panzer and Moussa had a lunch meeting on April 4, 2007. At his deposition, Panzer testified that Moussa "said he wanted to give me a gift for Easter," and that he responded, "there is no need to give me any gift for Easter." (J. Panzer Dep. 122:18-21.) Moussa, on the other hand, testified that he never told Panzer he was going to give him a gift, and never even met with him on April 4, 2007. (Moussa Dep. 181:17-182:2.)

On April 25, 2007, Moussa, Panzer, and a real estate broker met to visit a possible Dunkin‟ development site. According to Panzer, he and Moussa were planning to follow the broker to another site together in Moussa‟s car. (J. Panzer Dep. 141:9-145:24.)

A. We went out to the parking lot. I went in Tarek‟s car. I got in his car and I sat down.

Within an instant of me getting to the car, he reached down, pulled out an envelope and handed it to me.

I looked at it, saw that it was money. I gave it back to him, and he said, [sic] ["]I can‟t take this." [sic]

He said, "You have to take it. This is my friend. This is how I take care of my friends."

I said, "I can‟t take it and I‟m not taking it." (J. Panzer Dep., 141:9-21.) Panzer testified that he briefly held the unsealed envelope, saw that it contained cash in bills that he ascertained were not in $1 or $5 denominations, and that he promptly passed the envelope back to Moussa, stating that he did not want it. (Pls.‟ Opp‟n Defs.‟ Mot. Summ. J. 3 (citing Panzer Dep., 146:10-11).) Panzer testified that he subsequently followed through with the visit with Moussa and the broker (J. Panzer Dep. 150:1-152:25). But afterwards, he reported the incident to his superiors at Dunkin‟ (Moussa Dep. 153:13-22), shared the narrative of the alleged bribery with his wife (K. Panzer Dep 18:21-20:21), and shortly thereafter was directed to prepare an e-mail describing the incident for review by management. (E-mail of J. Panzer to M. Ryan, Apr. 26, 2007.)

For his part, Moussa denies that any incident involving an envelope with cash for Panzer ever occurred, testifying as follows:

Q: On that day, April 25th, did you provide any cash ...


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