Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

Case 3:01-cv-02158-WWE

Document 70-4

Filed 11/01/2004

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

Y
DONALD WAINRIGHT, ET AL

VS.

CIVIL ACTION NO.
3:Ol-cv-02158{WWE,

OSM COMMUNICATIONS,

INC., ET AL

Deposition of DONALD WAINRIGHT, taken before Judi A. Roberts, Licensed Professional Reporter, No. SHR.325, and Notary Public in and for the State of Connecticut, pursuant to notice, at the law offices of J. Michael Sulzbach, 385 Orange Street, New Haven, Connecticut, on February 10, 2004 at 11:10 A.M.
DEL VECCHIO REPORTING SERVICES, LLC PROFESSIONAL SHORTHAND REPORTERS 117 RANDI DRIVE

HARTFORD 203-245-9583

MADISON, CT 06443 FAX 245-2760

STAMFORD 800-839-6867

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at that time. Q. 7V. Ballpark? Ballpark. How.... I mean, don't expect me

to hit it on target, but I would guess somewhere around seventy to 75,000 as a guess.
Q. Did anything change in your employment

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dutie.s after the Valassis acquisition? A. I don't think anything changed in my duties.

I was still managing people that were developing the product which was comprised of the software, so I was still managing programmers, I was still in charge of maintaining computer network in the building, but my responsibilities when Valassis bought the company did
not change.

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Q.
A.

And how long did you remain with Valassis?
Until 1995.

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Q. A. Q. A. Q.

And what happened then? I'm sorry, 1996, I remained with Valassis. What happened in 1996? Specifically why I left? I f t h a t ' s w h a t happened. My question was,

was there a change and what was the change?
A. I l e f t V a l a s s i s Communications to go to work

for OSM.
Q, By OSM, you m e a n OSM Communications, Inc.,

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A. yes. Q.

I only know that he spoke to his father,

And what happened at the end of year four,

did things continue as they were going or did things change in any way? A. Q. Did specifically what change? We left off that you were working reduced It's still

hours to accommodate the train schedule.

you and Deborah Russo being there, is that correct? A. Q. That's correct. Mr. Irving Polansky's last visit was in

connection with.... A. I don't know if that was his last visit, but

that's the last visit that I remember. Q. ' Okay. Did all of that change at some point

at the end of your fourth year? A. Q. Did..,. Did you quit coming in; did something

happen?

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A.

Yes, at the end of the fourth year, yes,

there was a situation where we had fallen behind in payrolls a considerable amount. was cancelled due to nonpayment. by Mr. Polansky that the....
Q. W h ic h Mr. Polansky? DEL VECCHIO REPORTING 203-245-9583

The health insurance We were being told

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A.

Robert.... that we would be getting multiple

payrolls to catch up to where we were supposed to be, and that the health insurance had been paid for.. And after several conversations to that effect and not having caught up, as we were told we would, we stopped
or I stopped coming in.

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Q.
for? A.

Was the health insurance ultimately paid

No.

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Q.

And in terms of catching up, how caught up

did OSM get? A. From being behind five payrolls to being

behind four. Q. And payrolls....

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A.
Q. A.
Q.

I think.
And payrolls were every week? No, twice per month.
In the materials produced in Exhibit 7, I'll

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show you now the last page of that exhibit that you have produced. A. Can you identify that for us please?

I can only identify that, that it was given I had never seen it

to me after I had left OSM. before.
Q.
A.

And by whom w a s it g i ve n to yo u ?
I b el i ev e it was sent to me in a l e t t e r

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after I had stopped coming in.
Q. I show you now the last page of Exhibit 8 ;

can you identify that for us?

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A.

Yes, I can.

It was a copy of a memo to me

from Robert Polansky to increase my pay. Q. A. And why was your pay being increased? Because at the time I had moved from

Michigan to Connecticut, I was still holding down two mortgages because my house in Michigan had not sold. OSM had not paid my moving expenses, so I was finding it difficult to pay for everything, so Mr. Polansky offered me another $2,000 or $1,000 per pay period. Q. Well, was this OSM's way of paying you for

your moving expenses and those things? A. Q. A. Q. A. Q. No. Just an act of generosity? I can't say I would label it as that. What would you label it as? A raise. At a time that the company was doing, as

you've described it? A. yes.
Q. Re fe rri ng you again to the last page -of Re ga rdl e ss of whether you have se en it
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The company was doing as I described it,

E xhi bi t 7.

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the mortgages on two homes, because I was unable to sell my home in Michigan as quickly as I had hoped; that in my employment contract it stated that they
would pay for the difference in the selling price of

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my Michigan home in terms of what I paid for it versus what I sold iL for, and that he would give me a $2,000
per month raise.

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Q.

And what was the linkage, if any, between

the moving expenses and the obligation to pay any shortfall on your house sale and the $2,000 increase, none?
A, Can you....

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Q. A. Q.

Want me to restate that? Please. What linkage was there, if any, between the

linkage between the $2,000 per month increase and the fact that you had not been paid for your moving
expenses';1

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A.

There was no linkage. It was a situation in

which perhaps my frustration led me to approach him that I was unable to cover all of the bills. Some of

those bills were directly related to my taking on
employment by OSM.

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Q.

Showing you again Exhibit 7, which is your Other than the last page, which you tell
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production.

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Q.

Okay.

But you said they would share other

information regarding specific withdrawals?
A. When that information was given it would be

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as a result of her asking, I thought that you said that there was a wire received to the account. And

the person on the phone would say, yes,, but subsequent to the wire transfer I'm showing these transactions. Q.
A,

Okay.

Now, when were these inquiries made?

Typically on pay day.

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Q.

And of the four years of your employment

which years did you begin making those inquiries?

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A.

Probably relatively early on since we were

having paychecks returned to us that didn't have enough money to clear them. Q. First year?

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A.

I would say yes. You have copies of the

checks, of some of the checks, you can look up the dates. Q. A. Well, I'm asking what you recall. I don't recall. I would like to.... I would

have to look at the checks to see when that began. Because every time a check came back with insufficient funds we would be charged for the check bouncing, so we became careful as to when we would deposit the checks.
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corporate form?
A. I don't even know what the corporate form

is, so I'm aware of no violations. Q. Okay. Now, the number of hours you worked

each year, could you.... or per week, could you break that down by year; did it change over time? A. Q. As I described before, yes, it did. Okay. How many hours a week would you work

for year one?
A.
Q, A.

Iwouldsayitwas
Andyeartwo? About the same.

approximately f ort y.

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Q. A.
Q.

Year three? About the same.
A n d . ...

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A.

To my knowledge, without consulting records

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or what-have-you, I don't believe I reduced them until
year four,,

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Q.

Okay.

And approximately when in year four,

if you start with month one in year four going to month twelve? A. It was specifically related to how far we

had fallen behind with payroll, and to my recollection I don't know how exact it is, I believe that year four is when we fell the furthest behind, and that's when I
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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

T
DONALD WAINRIGHT, ET AL VS. CIVIL ACTION NO. 3:Ol-cv-02158(WWE)
OSM COMMUNICATIONS, INC., ET AL

Deposition of JANET WAINRIGHT, taken before Judi A. Roberts, Licensed Professional Reporter, No. SHR.325, and Notary Public in and for the State of Connecticut, pursuant to notice, at the law offices of J. Michael Sulzbach, 385 Orange Street, New Haven, Connecticut, on February 10, 2004 at 10:15 A.M.
DEL VECCHIO REPORTING SERVICES, LLC PROFESSIONAL SHORTHAND REPORTERS
117 RANDI DRIVE

HARTFORD 203-245-9583

MADISON, CT 06443 FAX 245-2760

STAMFORD 800-839-6867

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didn't pay us, and he told me during the conversation that he was going to pay us our money. Q. Okay. Do you believe that you are owed the

money that your husband was contracted to get paid from OSM? A. Yes.

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Q.

Okay.

The house in Michigan, did you own

that in your sole name or jointly? A. Q. Jointly. Was it fifty/fifty, or was there an uneven,

unequal split? A. It wasn't specified. Both our names were on

the deed. Q.
A.

Do you recall what you paid for the house?
No.

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Q. A. Q.

Do you recall what you sold it for? No. Is there anyone else other than Robert

Polansky at OSM who you believe made promises to you? A. Q. I never spoke to anybody else. Okay. O f t h e o t h e r conversations you had,

the other telephone conversations you had....
Actually, did you have any in-person conversations

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with Robert Polansky during the course of your
husband's employment at 0PM?
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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

DONALD WAINRIGHT, ET AL

VS.

CIVIL ACTION NO.
3:.01-cv-02158 (WWE)

OSM COMMUNICATIONS,

INC., ET AL

Deposition of DEBORAH RUS50 WILLIAMS,

taken before Judi A. Roberts, Licensed Professional Reporter, No. SHR.325, and Notary Public in and for the State of Connecticut, pursuant to notice, at the .law offices of Wiggin & Dana, 400 Atlantic Street, Stamford, Connecticut, on March 1, 2004 at 10:42 A.M.
DEL VECCHIO REPORTING SERVICES, LLC PROFESSIONAL SHORTHAND REPORTERS 117 RANDI DRIVE HARTFORD MADISON, CT 06443 STAMFORD 203-245-9583 FAX 245-2760 800-839-6867

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of items, and then they can go to their supermarket, and if they buy those items a coupon gets printed out at the register for twenty cents off or a dollar off their next shopping order, things like that, and I would be responsible for helping maintain that. Q. And your agreement was you would start after

your vacation or your honeymoon? A. Q. A. Q. Yes, I don1t remember the exact date though. Did you ever go to work for them? No. Did you tell them you would not be going to

work for them? A. A f t e r l g o t t h e o t h e r Employment Agreement

from Robert Polansky then I called them and told them. Q. Showing you now Exhibit 6, which is a

memorandum from OSM Communications or on OSM Communications' stationery to you, can you identify that for us please?
A. Yes.

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Q. A.

What is that? It's the new Employment Agreement that

Robert offered me to continue to work for OSM. Q. And can you explain in your own words bow

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the new deal worked?
A. Can you be a little more specific?
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Q.

Yes.

There was a change in your employment,

is that right, change in employment conditions?
A. Yes.

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Q.
A. Q.

Okay, which is the new deal, so to speak?
Okay. And how were you to be compensated under the

new agreement? A. A salary increase, and he guaranteed that he

would pay me the bonus that he had owed from the previous year. Q.
A.

Anything else?
No.

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Q.

Paragraph three of the memorandum says the

whole amount or the balance remaining will be paid upon funding of the company? A. Q. A. Yes. What does that mean? The remaining of the bonus from 1998 will be

paid when the company is funded. Q. Was the company ever funded, to your

knowledge? A. Well/ I guess it depends on what you mean by

"funded".
Q. Well, what you told us was your agreement the whole amount or balance

provides specifically that

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Q.

So this was a new task for you, is that

right, to go into the field? A. To this extent, yes. I had been to other

supermarkets, like a handful of other ones, but nothing to.... This was like, you know, I drove for two days for 600 miles to fifteen big V stores and had to manually update each store. And originally Robert Polansky said that we would use his car, I wouldn't have to drive. But then

when it came to the time to actually go and perform these updates, his car wasn't available and I had to take my car. Q. A. Q. Did you ever perform a task like that again? No. And why did you retain a copy of that

memorandum? A. The communication between him and me, and it

was a bill for what he owed me for my expenses of driving all that way. Q. And did you keep a hard copy or is that

something that was in your computer that you then printed in the course of this litigation? A. No, 1 had a hard copy. I think the original

version of this was in my computer at OSM, I didn't have 1t at home.
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Wainright left early and you stayed on? A.
Q. A.

Yes.
How often did that occur? I don't know exactly.

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Q.

Was there a time that Mr. Wainright began to

regularly leave early and come in late? A. He did but I don't remember when it started

or how often it occurred.

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Q.

How about you, was there a time that you

began to regularly come in late and leave early? A. Not regularly, no.

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Q.

And was there a time that you ceased to work

for OSM, .stop coming.in?
A.
Q.

T h a t w a s i n November.
In November of 2000, is that right?

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A.

Two thousand, right, because he had owed us

five paychecks at that point and we couldn't reach him to get in touch with him to find out if we were going to ge tp a id or wh e n. Q. A. Q. By "him", you mean OSM Communications? Yes. You were unable to reach its president, is

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that what you mean?
A. Yes. And at one point one of the paychecks

in September Don and his nephew, Mark, had gotten paid
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bounced. Q. Did you find out about transactions made by

any part.i cular individuals or companies?

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A.

No, they could just tell me the check Occasionally

number, they didn't say who it was for.

they would say if a deposit was made but they didn't say where it came from, it was just money was put into
fhP
B

ccount.

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Q.

Did they tell you there were withdrawals by

particular individuals? A. No, it would just be a generic withdrawal, I

don't think they knew that information.

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Q.

Did you relay any of this information to Mr.

Wainright?

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A. Q.

Yes. What information did you relay to Mr.

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Wainright?
A. Mainly about checks clearing, because he was

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more concerned about health insurance being cancelled because we had problems with it in the past where the
checks bounced or they never got sent and then we lost health insurance, and that was usually the one that we'd worry about. Q. Did the banks ever relay to you any

information about Mr, Polansky, Robert Polansky's
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A.

Yes.

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Q.
A.

What were the nature of those disputes?
Not being paid.

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Q. A. Q.

Any other topics? Nothing that was really a dispute. Any disagreements or let's say heated

concerns?

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A.

Well, Don was concerned about the investors

and the number of investors that had come and gone and no deal had been agreed on. Q. A. Did you share the same concerns? I was concerned but Don was more concerned

because he had a family to take care of and he was the sole bread winner, I guess. Q. And you relayed in your testimony that you

were not paid for a period of time, five paychecks or five pay periods? A. By the end of November, yes.

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Q.

Okay.

When did you first go in arrears on

your pay periods? A. Q.
A.

Go into what? Arrears. Wh e n w a s your first paycheck late?

I don't know.

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Q.

Okay.

How many pay periods were you late

or actually in arrears on, in other words, not been
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paid, let's say in July of 2000?
A.
Q.

Well, I can look at this and see.
Sure.

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A.

From what I had here the paycheck for July

14 wasn't paid until August 17, and the paycheck for July 31 wasn't paid until September 12th, which made it forty-two days late. Q. When do you claim that you first went three

pay periods without pay? A. Q. I don't remember. At any time did Robert Polansky ever say to

you he would personally guarantee the payments of the

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company to you? A.
Q.

I'm not sure what you mean "personally".
Well, in the various exhibits the terms of

your employment are set forth at different points on

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OSM letterhead, did you believe Robert Polansky was
speaking for himself or for the company? A. Well, the way we understood employment was

that his father was putting money into the account to pay our salary. So my understanding is that OSM is a It's like the money wasn't coming

Polansky company.

from OSM, the money was coming from Israel Polansky. So when he said that he was going to pay us, I assumed it's coming from him and Israel.
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Q.

Fair enough,

Other than the documents

you've produced today, do you know of any other documents which document any promises made by Mr. Polanskytoyou?
A. No.

6

Q.

Do you believe there are any witnesses to

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any promises that Mr. Robert Polansky made to you? A. I would say Donald Wainright would be the

only one.

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Q.

What is it you believe he witnessed with

regard to promises made by Robert Polansky?

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A.

Promises to pay our salary/ because usually

we were all in the office at the same time and Don would have heard what was going on. Q. Did Mr. Robert Polansky ever say anything to

the effect, I will personally pay it out of my own accounts? A. Q, Wo. Thank you. I have nothing further.

MR. RILEY:

I have nothing. I've got a couple.

MR. SULZBACH:

REDIRECT-EXAMINATION BY MR. SULZBACH:

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Q.

With regard to Anne Polansky, part of your

complaint says that money was drained from OSM and

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property was purchased through and placed in Anne
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Polansky's name to shield assets from OSM creditors.
Do you have any reason to believe that's true? A. Q. A. Yes. And what is that? So we can't go after Robert Polansky for the

money that he owes us. Q. What is it that Anne Polansky has that

belonged to OSM? A . I
Q.

don't know.

I mean, you told us that the only money that

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OSM ever had came from Israel Polansky'5 investment,

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isn't that right?
A. Q. Yes. And what is it that OSM placed in Anne

Polansky's name? A . I Q.
A.

don't know.

So you don't know yourself....
No.

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Q.

.,,,,. of any reason to believe that in fact

property had been purchased through and placed in Anne Polansky's name to keep it away from creditors? You

don't know of any fact that supports that claim, do you?
A. Not off-hand, no.

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Q,

Well, do you want to think about it a little
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more?

I don

7

I: want you to have to make a snap

judgment.

A.

Nothing that I can think of.

Q. Going back for a moment to Israel Polansky and what you knew about him. Prior to June of 1998 what did you know about Israel Polansky?

A. Q.
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Regarding what? Regarding his participation in OSM, for

example. A. I know he was putting money into the company so he would pay our salaries and any significant bills that came in. Q. A. How did you know that? Robert told us.

Q. What, if anything, did you know about Israel Polansky's financial condition prior to June of 1998? A. Q. A. I just knew he had a lot of money. How did you know that? Pretty much based on the fact that he had been

paying us up until this point and had said that he was going to continue to fund the company until we got investors. Q. The last part where you said he was going to continue to fund the company until they got investors, that's really your conclusion of what he said, is that
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