Free Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

Case 1:05-cv-00738-TCW Document 36-6 ELAINE KUETHER

Filed 11/22/2006

10/18/2006

Page 1 of 23
1

1
2
3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

BROWNING- FERRIS INDUSTRIES &

4 SUBSIDIARIES

5 Plaintiff,
vs.

6

No. 05-738 T (Judge Wheeler)

7 THE UNITED STATES,

8 Defendant.
9

10 11
12

DEPOS ITION OF ELAINE KUETHER
13

BROWNING- FERRIS INDUSTRIES & SUBSIDIARIES 30 (b) (6)
14

15 16 17
18

Phoenix, Arizona october 18, 2006

19

ARIZONA REPORTING SERVICE, INC.
Court Report ing

20 21
22 23
24
C\1 ~\1

Sui te Three

~N C,-O',

2627 North Third Street Phoenix, Ari20na 85004-1126

By:

JODY L. LENS

CHOW , RMR, CRR

Prepared for:
Mr. Jacob E. Christensen Attorney at Law

Certified Reporter Certificate No. 50192

25

CERTIFIED COPY
(VVhen in red)

ARIZONA REPORTING SERVICE, INC.

(602) 274-9944

www.az-reporting.com
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1
2 3

INDEX TO EXAMINATIONS
WITNESS
PAGE

ELAINE KUETHER
4

Examination by Mr. Christensen
5 6
7
8

4

9

10

INDEX TO EXHIBITS

11
NO.
12

DESCRIPTION

MARKED
4

IDENTIFIED
5

19
13 14

20 21

15 16 17 18

Notice of Deposition Subpoena to Ms. Kuether Affidavit of Elaine E. Kuether

Amended

30 (b) (6)

4
7

7 7

19 20 21
22 23 24

25
181

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(602) 274-9944

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1

DEPOSITION OF ELAINE KUETHER

2 was taken on October 18,2006, commencing at 9:03 a.m., at
3 the Offices of the United States Attorney, Two Renaissance
4 Center, 40 N. Central Avenue, Suite 1200, Phoenix,

5 Arizona, before JODY L. LENSCHOW, Certified Reporter

6 No. 50192 for the State of Arizona.
7

8 APPEARANCES:
9

For the Plaintiff:
10

11
12 13
14

MILLER & CHEVALIER By Mr. Philip Karter 300 Conshohocken State Road

West Conshohocken, Pennsylvania
- and-

19428

ALLIED WASTE INDUSTRIES, INC.
By Mr. Joseph Sciarrotta, Jr. Managing Corporate Counsel 15880 N. Greenway-Hayden Loop
Sui te 100

15 16 17
18

Scottsdale, Arizona 85260

For the Defendant:
19 20 21
22 23 24

U. S. DEPARTMENT OF JUSTICE By Mr. Stuart J. Bassin and Mr. Jacob E. Christensen Tax Division

Room 7203
555 Fourth Street, N.W.

Washington, D.C. 20001

ALSO PRESENT:
25

Mr. Dale Parker

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1

(Deposition Exhibits Nos. 19 through 20 were

2 marked for identification.)
3

4

ELAINE KUETHER,

5 called as a witness herein, having been first duly sworn
6 by the Certified Reporter to speak the truth and nothing
7 but the truth, was examined and testified as follows:
8

9

EXAMINATION

10

11 BY MR. CHRISTENSEN:
12
13
Q.

Thank you, Elaine, for being here today.

A.
Q.

No problem.
As you know, we're here to take depositions in

14

15 the case of Browning-Ferris Industries versus United
16

States.
A.
Q.

Is this the first time you've had your deposition

17 taken?
18 19

Yes.
We're going to basically just be asking some

20 questions related to some subj ects that I'll point out in

21 a few minutes, and if by chance you don't understand a

22 question that I ask you, you can tell me that and I will

23 attempt to rephrase the question or clarify the question
24 so that you can answer that.

25 If you don't know the answer to any of the
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1 questions I ask, you can let me know that you don't know 2 the answer to that; but to the extent that you do have
3 knowledge, i would like you to answer to the extent that

4 you're able to, to answer that question, and tell me as

5 much as you do know.
6 7

A.
Q.

Okay.
If you need a break or anything, i think this is

8 going to go quick enough that you probably won't need a
9 break, but if for some reason you do, let me know that as
10

11

well. ask.

Mr. Karter may obj ect to some of the questions I If that happens, unless he obj ects on the grounds of

12 a privilege, such as the attorney-client privilege or
13 something to that effect, then you can go ahead and answer
14

the question.

wi th that, I think we're ready to get

15 going.

16 Is there any reason that your testimony today
17 could be impaired by physical condition or anything of

18 that sort?
19
A.
Q.

No.
Let me give you what's been marked for

20

21 identification as Exhibit 19.
22
23

MR. BASSIN:

Let's go off the record.

(An off-the-record discussion ensued.)

24 BY MR. CHRISTENSEN:

25 Q. If you could turn to Page 4 on that document,
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1 and this is the notice of the deposition that we're doing

2 today, and the letter i) there, if you could read letter

3 i) to yourself.

4 Are you prepared today basically to testify to

5 the subject contained there in letter i)?
6 7

A.
Q.

Yes.

Most of my questions will focus on that subj ect,

8 and they may also interplay with letter a) on Page 3, the
9 facts relating to the conversion of BFI, Inc. into BFI,

10 LLC.

11 So you've been asked by Browning- Ferris

12 Industries to testify to this subject; is that correct, to
13

testify on their behalf to this subj ect?

Excuse me / to

14 the facts contained in your declaration, the affidavit
15 that was prepared on the 10th of October?
16
A.

Yes.
MR. KARTER:

17
18 19

Just to be clear, Jacob, she works

for Allied Waste.

Allied Waste is the parent company.
We offered her

She was asked by Allied Waste to appear.

20 as our 30 (b) (6) deponent for that particular item, 21 Item i).
22

MR. CHRISTENSEN:

Thank you for that

23 clarification.
24 BY MR. CHRISTENSEN:

25 Q. If you can look at what's been marked as
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1 Exhibit 20.
2 3

A.
Q.

These are not marked.

Here we are.
Okay.

Excuse me.

4
5 6

A.
Q.

My purpose in showing this is just to get this
This was the subpoena

into the record of the deposition.

7 that was issued for your testimony today.
8

And let's turn to the main focus of our
discussion today, which will be the affidavit then.

9

Let's

10 mark that for identification purposes as Exhibit 21.
11

(Deposition Exhibit No. 21 was marked for

12 identification.)
13 BY MR. CHRISTENSEN:
14
Q.

Before we talk about the substance there, could

15 you just explain a little bit your educational background?
16
A.

I have a Bachelor's degree in business

17 administration and a paralegal certificate.
18
Q.

Where was the Bachelor's degree obtained?
At Ohio Dominican College in Columbus, Ohio.

19

A.
Q.

20 21
22

And the paralegal certificate, what about that?
University of Texas at San Antonio.
When did you - - what year was the - - did you

A.
Q.

23 receive the certification, the paralegal certification?
24 25
A.
Q.

2002.
And after obtaining that certification, what did
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1 you do as far as job hunt?
2

A.

I was working in San Antonio as a paralegal in a

3 lottery ticket printing company prior to moving to

4 Phoenix.
5

Q.

And once you moved to Phoenix, where did you

6 work then?
7

A.

The first job I got here is the job that I'm in

8 currently, a paralegal for Allied Waste.

9 Q. And what year was that that you began working
10 with Allied Waste?
11 12
13 14

A.
Q.

March of 2003.

What was your title working with Allied Waste?
It was and still is corporate paralegal.

A.
Q.

Could you explain a little bit what that means?

15

A.

My responsibilities include the items related to

16 the corporate maintenance of records and compliance for

17 the Allied Waste subsidiaries.
18
Q.

In your position there, who was your supervisor

19 when you began working with Allied Waste?
20 21
22
23

A.
Q.

Connie Gecich.
And who was her supervisor?

A.
Q.

Jo Lynn White.
And is she still - - is Connie - - Gecich, you

24 said?
25
A.

Uh-huh.
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1 2
3

Q.

Is she still your current supervisor?

A. Q.

No.
When did that change?
March of 2005.

4

A.
Q.

5 6
7

And who is your current supervisor?

A.
Q.

Jo Lynn Whi te .
Do you have - - are there any employees that work

8 underneath your supervision?
9

A.
Q.

No.
In the past, when you began working with Allied,

10

11 were there employees that worked underneath your

12 supervision?
13 14

A.
Q. A.
Q.

Yes.
About how many?

15 16 17

One.
Was that a paralegal as well?

A.

Their title was legal assistant, but they didn't

18 have a paralegal background.
19
Q.

When did that person - - you said currently that

20 person is not working as an assistant underneath you.

21 When did that change?
22 23 24
A.
Q.

They left the company in December of 2004.
What was - - what was her name?
Kara Hensley.

A.
Q.

25

Let's just talk a little bit more in depth about
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1 the types of duties you perform as a corporate paralegal.
2

You mentioned some of them.

What sort of records and

3 filings are you in charge of making?
4

A.

The annual compliance, the annual reports with

5 various State agencies, fall under my responsibility;

6 documents filed to form companies or register them or

7 withdraw them or dissolve them also fall under my

8 responsibility.
9

Q.

Would that be any of the subsidiaries of Allied?

10 If any of the subsidiaries needed those type of filings,

11 would that fallon you, regardless of which subsidiary it
12 was?
13

A.

Likely, yes, it would be me, depending on the

14 transaction.
15
Q.

What types of transactions might you not handle

16 then?
17
A.

If it's a more complex transaction, a larger

18 transaction, a law firm would probably be involved in

19 filing documents.
20
Q.

And would that be -- would those filings be made

21 with the State regulatory agencies that we're discussing

22 here?
23 24
A.
Q.

I guess it would depend on the transaction.

What sort of transaction?

Can you give an

25 example of something that you wouldn't do that an attorney
ARIZONA REPORTING SERVICE, INC.
(602) 274-9944

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1 would do instead?
2 3

A.

Well, if it's not just a clear-cut "We need to
I can't think of an

form thi s company" type of thing.

4 example of fhand.
5 6

Q.

Let's just speak specifically about Which State authorities was Allied

Browning-Ferris, Inc.

7 required to make filings in behalf of that subsidiary or

8 with which State regulatory authorities?
9

A.
Q. A.
Q.

For which time frame?
Let's go back.

10

You began working in 2002?

11
12

Yes.
Let's start there, and if you could tell me

13 which States?
14

A.

At the time I started with the company, Inc.

15 16

was registered

well, it was formed in Delaware and
So I would have

was registered in Texas and Arizona.

17 filed the De laware f ranchi s e tax report and the Texas

18 public information report, which is - - I provide to tax
19 and they attach to the tax returns, and the Arizona annual

20 report.
21
Q.

Were there any other States that required

22 filings from BFI, Inc.?
23 24
A.

That I'm aware of or -MR. KARTER:

If I may, just for clarification,

25 at what time period are we talking about?
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1

MR. CHRISTENSEN:

We're talking about 2002, I

2 bel ieve, when she began working with Allied.
3

THE WITNESS:

No, to my knowledge, those are the

4 only States in which it was registered and those were the

5 only things I was responsible for.

6 BY MR. CHRISTENSEN:

7 Q. Did that change at any time up until the present
8 time, the States that receive these filings?

9 A. Yes.
10
Q.

Okay.

In what way?

11
12

A.
Q.

We withdrew Inc. from Texas in 2005.

Any other changes, as far as the required

13 filings with States?
14

A.
Q.

No.

15

Okay.

So just to clarify then, when you began

16 working with Allied, BFI, Inc. was required to file
17 filings with the State regulatory authorities in Texas,

18 Arizona, and in Delaware, and currently they're required
19 to file with Arizona and Delaware, but no longer with

20 Texas; is that -21
22
A.
Q.

Can you repeat the question?

Just to clarify again, when you began working

23 with Allied, the State filings were made with Texas,

24 Arizona and Delaware; is that correct? 25 MR. KARTER: For which enti ty?
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1 BY MR. CHRISTENSEN:
2 3 4

Q.

For BFI, Inc.
Okay.
Is that correct, it was just those three states

A.
Q.

5 when you began working?
6

A.
Q.

That's correct.
Let's just speak about the Texas filings in

7

8 particular for a moment.
9

Could you describe again the filings that were

10 required to be made on behalf of BFI, Inc. in Texas from

11 the time you began in 2002 until the present, just the
12 basic typical filings that were required to be made there?
13
A.
Q.

Such as their annual compliance?

14

Correct.

So that was one, the annual

15 compliance?
16
A.

Their public information report.
What would you like to know about that report?
Could you describe what it is again?

17
18 19
Q.

A.

It's an attachment to the tax filing, and it

20 includes information on the current officers, their titles

21 and their addresses, and then it also includes what entity 22 has an ownership of greater than 10 percent and who are

23 subsidiaries of that company.
24
Q.

Were there any other filings that were -- were

25 you required to make any sort of tax filings in Texas?
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1
2

A.
Q.

I don't know.

You don't know whether there was a franchise tax

3 report or something to that effect required to be filed

4 there?
5

A.

Not that I was responsible for; I'm not aware of

6 any.
7

Q.

And let's go to Arizona for a second.

What were

8 the filings that were required to be made on behalf of
9 BFI, Inc. with

Arizona?
A.

10

The annual report, which is filed with the

11 Arizona Corporation Commission.
12
13
Q.

Was that the only filing necessary?

A.

That's the only one I was aware of and that I

14 was responsible for. 15 And in Delaware? Q. 16 A. The franchise tax report. 17 Any others in Delaware? Q. 18 A. Not that I'm aware of. 19 If you could look at Paragraph Q.
20

3

of what's been

marked as Government Exhibi t 21.

This is your affidavit,

21 and you state there that in January 2005 you transmitted 22 to CT Corporation System some documents.

23 Could you describe what CT Corporation System

24 is?
25
A.

They're a registered agent.

What information
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1 are you

2 Q. I guess I'm just not entirely clear as to what
3 services they performed for Allied.
4

A.

Okay.

CT Corporation System is our registered

5 agent for statutory representation, and they also assist

6 us with filings with the various State agencies, Secretary

7 of States' offices.
8 9

Q.

So these filings that we've been talking about,

would all of those

would you employ the services of CT

10 Corporation System to make each of these filings that

11 we've been discussing?

12 A. Yes.
13
14
Q.

If you could just take a moment and look in
(b), (c) and

Paragraph 3 of Exhibit 21, at letters (a)

15

(d) .

If you could please review those paragraphs for a

16 moment.

17 Are those documents that you're also - - that
18

BFI, Inc. filedwith

or Allied on behalf of BFI, Inc.

19 filed with the State of Arizona, to the best of your

20 knowledge?
21
22
A.
Q.

Yes.
In addition to the documents you see listed

23 there in Paragraphs (a) through (d), was there any other 24 filing that was made on behalf of BFI, Inc. regarding the

25 conversion from BFI, Inc. to BFI, LLC with the State of
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16

1 Arizona?
2

MR. KARTER:

Just to clarify, when you say BFI,

3 Inc., are you 1 umping together BFI, Inc. wi th BFI, LLC, or

4 are you considering that as a separate entity?
5

MR. CHRISTENSEN:

At this point we're

6 considering that as a separate entity.
7

MR. KARTER:

I don't want to mischaracterize

8 your question, because you asked her about (a) through
9

(d), I believe it was, in reference BFI, Inc.

As you see

10 on her affidavit, in (b) it references the different
11

entity BFI, LLC.

So I just want to make sure that there

12 is a clear communication as to what it is you're asking.

13 BY MR. CHRISTENSEN:
14
Q.

Excuse me.

Let me rephrase the question.

The

15 documents listed in Paragraphs (a) through (d), aside from

16 those documents, were there any other filings with the
17 Arizona statutory agent or the regulatory agencies made
18 related to the conversion of BFI, Inc. to BFI, LLC?
19
A.
Q.

Not that I'm aware of.
Do you know when the - - it explains here, of

20

21 course, BFI, Inc. was registered as a foreign corporation
22

in Arizona.

Do you know when that application for

23 registration was made in Arizona for BFI, Inc.?
24 25
A.
Q.

When it was originally

Yes.
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1 2
3
4 before you

A.

- - registered?
No, I don't know.

Q.

Was that - - do you know whether that happened

began working with Allied or after?
A.

5

It was already registered in Arizona when I

6 began working.
7

Q.

If I could have you look at Page 2; and

8 Paragraph 7, if you could please take a moment and read

9 that paragraph.

10 The last -- close to the bottom of the
11 paragraph, it says, "I transmitted to CT Corporation

12 System copies of the Arizona applications that I had sent
13 to them in January 2005 and asked them to refile these

14 applications. "
15

These applications, those last two words, does

16 that refer to the documents listed in Paragraph 3,

17 Paragraphs (a) through (d)?
18

A.
Q.

Yes.
And does it refer solely to those documents, or

19

20 were there any additional documents that you had them

21 refile in May of 2006?
22
A.

No, I believe it was just those listed in (a)

23 through (d).

24 Q. Let's just discuss the filings with Texas for a
25 moment.
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1
2

A. Q.

Okay.
Well, before we do that, actually, the documents

3 listed in paragraphs (a) through (d), when were those
4 prepared for filing on behalf of BFI, Inc. originally?
5 6 7 8

A.
Q.

In January 2005.

And did you prepare those personally?

A.
Q.

Yes.
And in Mayor in April of 2006, when you

9 discovered that they had not been filed with Arizona, had

10 you retained copies of those documents listed in 11 Paragraphs (a) through (d)?
12
A.

I had the copies that I had retained from

13 January of 2005.
14
Q.

And those are the copies that you submitted to

15 CT Corporation System?
16 17 18 19
A.
Q.

Yes.
For filing in 2006?

A.

Yes.
MR. KARTER:

Just obj ect to form, because you're

20 referring to those particular documents that she retained
21
22

copies of.

Presumably she sent another set.
MR. CHRISTENSEN:

Which would have been

23 identical copies.
24 25

MR. KARTER:

Right.

You can rephrase your

question or not.

I just want to make clear that I have an
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1 obj ection to the form.

2 BY MR. CHRISTENSEN:

3 Q. SO you would have sent copies of the documents
4 listed in Paragraphs (a) through (d), you would have sent
5 copies of those to CT Systems Corporation for refiling; is

6 that correct?
7
8

A.
Q.

Yes.
And those were the copies that you had retained

9 since January 2005, when you originally prepared them?
10
11 12
A.
Q.

Yes.
Now let's go to the Texas filings for a moment.

Listed in Paragraph 3, letters (e) and (f) and

13 (g), those filings seem to relate to filings made with

14 Texas on behalf of BFI, Inc.; is that correct?
15 16
A.
Q.

Yes.
And, also, in Paragraph 4 on Page 2, letters (a)

17

and (b)
A.
Q.

those also relate to filings with Texas on behalf

18 of BFI, Inc.; is that correct?
19 20

Yes.
Were there any other documents besides those

21 listed in Paragraph 3, letters (e) and (f) and
22 Paragraphs -- and (g), excuse me, and Paragraph 4 (a) and

23 (b) that were made on behalf of BFI, Inc. with Texas?
24 25
A.
Q.

I don't believe so.
Let's just go -- if you could look for a moment
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20

1 on -- if you look down at the bottom right-hand corner of

2 the document, there's the Bates number there; and if you
3 could look at the documents with Bates stamp Nos. 33

4 through 47 and tell me if those are true and correct
5 copies of these documents that are listed in Paragraphs 3

6 and 4?
7 8

There's a lot of documents, I know.
A.
Q.

Can you repeat the question?

9

Those documents listed in Bates stamp Nos. 33

10 through 47, are those, to the best of your knowledge, true

11 and correct copies of the documents that you submitted to

12 CT Corporation Systems for filing?
13 14
A. Q.

Yes.
Did you ever - - between the time that you

15 submitted those in January 2005 and April of 2006, did you
16 receive any sort of confirmation or other document from

17 the State of Arizona recognizing the filings or
18 confirmation that the filings had been received by the

19 State?
20
A.
Q.

From wha t --

21
22 23

From Arizona.

A.
Q.

From what period of time?

From the time that you submitted the documents

24 in January of 2005 to CT Corpora t ion Sys terns un t i 1 you

25 were informed in April of 2006 that they had not been
ARIZONA REPORTING SERVICE, INC.
(602) 274-9944

www.az-reporting.com
199

Phoenix, AZ

Case 1:05-cv-00738-TCW Document 36-6 ELAINE KUETHER

Filed 11/22/2006

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21

1 filed with the State, did you receive any sort of -2 3

A.
Q.

No.
So you didn't receive any sort of confirmation

4 from the State of Arizona that the documents had been

5 received during that time period?
6 7

A.
Q.

No.
What was it that alerted you to the fact that

8 they had not been filed with the State of Arizona?
9

A.

It just occurred to me that it had taken longer

10 than the estimated time and I had not heard anything.
11
Q.

Do you have any idea why they didn't actually

12 file those documents in January of 2005?
13 14
A.
Q.

I don't know what happened on their end.

Okay.

Let's just turn to Delaware for a second.

15 We're almost finished here.

16 When did you - - back to Arizona for a moment.
17 When did you actually receive a certificate of compliance

18 that BFI, Inc. had been withdrawn as a foreign corporation

19 in Arizona?
20
A.
Q.

In September of 2006.

21

And when did you receive confirmation from the

22 State of Arizona that BFI, LLC had been organized in the

23 State of Arizona?
24 25
A.
Q.

September 2006.
If you could look at Bates stamp Nos. 52 through
(602) 274-9944

ARIZONA REPORTING SERVICE, INC.

www.az-reporting.com

200

Phoenix, AZ

Case 1:05-cv-00738-TCW Document 36-6 ELAINE KUETHER

Filed 11/22/2006

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Page 22 of 23
22

1

54.

Excuse me, 52, Bates stamp No. 52.

Is that the

2 certificate -- a copy of the certificate you received from
3 the State of Arizona that BFI, Inc. had been withdrawn?

4 Sorry, it's a very hard copy to read.
5

A.

If I'm not mistaken, it's the tax clearance.

6 That's not the actual withdrawal.
7

Q.

Would they have issued another certificate of

8 wi thdrawal?
9

A.

Looks like they file-stamped the application for

10 wi thdrawal .
11
Q.

Okay.

Let's not worry about that for now.

Just

12 let me ask you one more question regarding the Delaware

13 filings, the filings that were made with Delaware on
14

behalf of BFI, Inc.
A.

Did you ever file a certificate of

15 dissolution of BFI, Inc. with the State of Delaware?
16 17
18

No.
MR. CHRISTENSEN:

I think that's all the

questions that we have for you.

So thank you for your

19 time, and I believe we'll move -- we're ready at this

20 point to move on to
21
22 23 24 25

MR. KARTER:

No questions.

(The deposition concluded at 9:40 a.m.)

(Signature waived.)

ELAINE KUETHER
ARIZONA REPORTING SERVICE, INC.
(602) 274-9944

www.az-reporting.com
201

Phoenix, AZ

Case 1:05-cv-00738-TCW Document 36-6 ELAINE KUETHER

Filed 11/22/2006

10/18/2006

Page 23 of 23
23

1 STATE OF ARIZONA
2 COUNTY OF MARICOPA
3

ss.

4

BE IT KNOWN that the foregoing deposition was

5 taken before me, JODY L. LENSCHOW, Certified Reporter

6 No. 50192 for the State of Arizona, and by virtue thereof
7 authorized to administer an oath; that the witness before

8 testifying was duly sworn by me; that the questions
9 propounded by counsel and the answers of the witness
10 thereto were taken down by me in shorthand and thereafter

11 transcribed under my direction; that a review of the
12 transcript by the witness was waived; that the foregoing

13 pages contain a full, true, and accurate transcript of all
14 proceedings and testimony had, all to the best of my skill

15 and ability.
16

I FURTHER CERTIFY that I am not related to nor

17 employed by any of the parties hereto and have no interest
18 in the outcome thereof.
19

DATED at Phoenix, Arizona, this 30th day of

20 October, 2006.
21 22
23 24

25

Y L. ENSCHOW, RMR, Certified Reporter Certificate No. 50192
ARIZONA REPORTING SERVICE, INC.

l\/ /~~
(602) 274-9944

www.az-reporting.com
202

Phoenix, AZ