Deposition Evidence
Sworn testimony from Ryan Cohen, board members, and internal company communications — organized by theme and timeline
Primary source: SI v. BBBY (D.D.C. 1:22-cv-02541) — Cohen Deposition ECF 130-5. The SI action was dismissed with prejudice on May 6, 2025.
Cohen on BBBY's Fundamentals
Under oath, Cohen confirmed deeply pessimistic views about BBBY's financial condition — views he held before and during the August 2022 meme rally.
“The company was doing worse than I expected.”
Cohen Deposition, pp. 374–376, 441–445 (repeated multiple times)“[BBBY] was losing hundreds of millions of dollars” with “gross margin going down…expenses going up…revenues going down.”
Cohen Deposition, pp. 374–376, 441–445“I think he did a remarkable job screwing up the company, exceptional, A plus…Him and everyone else…the management team, the board of directors.”
Cohen Deposition, pp. 493–498 (referring to CEO Mark Tritton)“A 150-page God knows what that they paid McKinsey to do…talking about how they were going to have private label and all kinds of things. And I thought it was crazy.”
Cohen Deposition, pp. 373–374 (on BBBY's strategic plan)“If that’s what they meant when they said I soured on the investment?”
“Yeah. I wasn’t happy that the company was losing so much money.”
Cohen Deposition, pp. 441–445
Why This Matters
Cohen's sworn testimony documents his pessimistic assessment of BBBY's operations and cash losses. Plaintiffs argued that this assessment conflicted with the market's interpretation of his August 12 tweet and his lack of a public correction before his exit; the SI action was later dismissed with prejudice.
The August 12 Tweet
Cohen tweeted a CNBC article screenshot with the caption "At least her cart is full." The market interpreted it as bullish. Under oath, Cohen claimed it was sarcasm — a defense never publicly disclosed.
“What did your tweet mean?”
“The article was negative and the picture of the shopping cart was filled. So I made a sarcastic comment…making fun of the fact that the article was negative and the picture was a woman who had her cart filled to the top.”
Cohen Deposition, pp. 435–436, 447–448
“Did you ever post on Reddit?”
“I have not commented publicly on the litigation…I’ve not been — I have never tweeted, posted on Reddit, or told any journalist that the tweet was sarcastic…I’ve never posted on Reddit before.”
Cohen Deposition, pp. 449–451
Sarcasm Defense — First Raised Under Oath
The reviewed record does not identify a contemporaneous public statement describing the tweet as sarcasm. The deposition records Cohen's explanation and confirms that he did not publicly clarify it before selling his position; whether the tweet was actionable was litigated in the SI case, which was dismissed with prejudice.
The “Meme King” & Deleted Tweet
Deleted May 15, 2022 Tweet
Cohen posted and later deleted a tweet stating: “taxpayer money should be spent cracking down on hedge funds and short sellers.” This aligns with his deposition testimony criticizing short sellers as “unAmerican.”
“I think it’s unAmerican to bet on — and to profit on someone else’s failure.”
Cohen Deposition, pp. 112–113 (on short sellers)“Have you ever said you are not the meme king?”
“I’ve never said I am the meme king.” [But admitted he never publicly denied it either]
Cohen Deposition, pp. 263–264
“Did you ever publicly deny influencing stock prices?”
“I don’t give out investment advice…I don’t believe so.”
Cohen Deposition, pp. 326–330
Implication
Plaintiffs cited Cohen's public profile and the market response to his posts as evidence that his communications could move the stock. Cohen disputed the legal significance of that evidence, and the SI claims were ultimately dismissed with prejudice.
The 13D/A Misperception
Some market services and participants interpreted the August 16 Schedule 13D amendment as an increased stake. Cohen testified that the reports were wrong and that he followed counsel's advice rather than issuing a public correction.
“I never said that I did buy more shares…I never said that I bought more shares. This was incorrectly reported.”
Cohen Deposition, pp. 474–475“Did you correct the misperception publicly?”
“I followed the advice of my lawyers…I did not tweet, go on Reddit, or make any public statement clarifying he had not purchased additional shares.”
Cohen Deposition, pp. 474–475
In an August 16 email to BBBY management, JPMorgan's David Freedman attributed the percentage change from 9.8% to 11.8% to the lower issuer denominator, not additional Cohen purchases. He wrote that some services reported a 1.7 million share increase because they newly included call options and suggested that the report may have contributed to quant-fund buying.
June 30: The Buying-to-Selling Pivot
Just six weeks before his complete exit, Cohen was actively planning to buy more BBBY shares — even managing his schedule around MNPI clearance windows.
“Given I’m going to be in the market buying, I’d like to cancel the call and ask her to speak next week. What is the best way to slow this down so that I’m not restricted from buying tomorrow and Friday.”
Cohen email to counsel, Exhibit 188 (cited at p. 404)“Why did you want to buy more shares?”
“Because I liked the price.”
Cohen Deposition, pp. 405–406 (stock was ~$4.38)
“When did you change your mind?”
“I decided I wasn’t going to go further into the investment…Could not say when or exactly why.”
Cohen Deposition, pp. 407–409
The Six-Week Pivot
On June 30, Cohen wrote that he was considering buying at approximately $4.38 and sought to avoid receiving information that would restrict trading. By August 16, he was selling at $18–$26 per share. He could not specify when or why his plan changed. This timing was part of the historical SI record and remains relevant context for the separate DK Butterfly action.
August 15, 2022: Trading-Compliance Sequence
The emails document an urgent effort to resolve Section 16 and Rule 144 questions before next-day trading. They record counsel's advice; the ultimate legal effect remains disputed in the DK Butterfly action.
Cohen Requests Non-Affiliate Confirmation
“Ryan, can you send me an email in a separate thread confirming I am NOT an affiliate or affiliate status with respect to Bed Bath & Beyond. This is time sensitive. My bank is asking for this.” — Cohen to Nebel (Olshan).
Cohen Corrects His Own Counsel
“Your email says I am not a 10% holder but I own over 10%.” — Cohen had caught a draft error. This is the moment Cohen's counsel realizes the 10% threshold has been crossed.
Nebel Is Stunned
“Huh? Not aware of you purchasing any shares since settlement agreement which disclosed under 10%. Also never filed a Form 3 or 4.” — This is the first reviewed exchange in which counsel addresses the over-10% issue and missing Section 16 filings.
Cohen Explains: Buybacks Pushed Him Over
“Correct but the company repurchased shares and threw me over.” Then: “79.96m outstanding.” — BBBY's share repurchases (reducing denominator from 96.3M to ~79.96M) mathematically pushed Cohen above 10%.
Counsel Advises on Affiliate Status
“Then you would be affiliate if over 10%. Bachar can help with Form 3.” — Nebel states his view and directs Form 3 preparation.
Cohen Demands Speed
“How long will this take? Am I prevented from trading in the meantime? Can this be done today?” — Three urgent questions in one message.
Cohen Asks for Non-Affiliate Letter (Again)
“Can you email me confirming I am not an affiliate in a separate thread. That should clear me with the bank.” — Attempting to get a written document for JPMorgan.
Nebel Refuses Point-Blank
“Cannot. You are an affiliate if above 10%. You also put directors on the Board so you cannot rebut the presumption that you are an affiliate once above 10%.” — This records counsel's contemporaneous advice, not a court determination.
Cohen: Bank Won't Let Me Trade
“The bank won't let me trade until I either file the form or you confirm I'm not an affiliate…” — JPMorgan is blocking all trading pending compliance resolution.
JPMorgan Formally Requests Confirmation
Susan Lim-Herlyn (JPM Private Bank) to Nebel: “Our client, Ryan Cohen, has expressed interest in transacting tomorrow on shares of Bed Bath & Beyond…could you please confirm the following: Ryan Cohen is not a Section 16 Insider of BBBY; He is also not considered an Affiliate of BBBY for purposes of Rule 144.”
Cohen's Ultimatum
“Ryan — has JPM reached out to you? Can you talk to them today? I need to get this resolved tonight so I can trade tomorrow.” — The statement documents urgency and intent to retain the ability to trade the next day; it does not specify buy or sell intent.
Olshan Tells JPMorgan the Truth
“Ryan will be a Section 16 filer shortly — we just became aware of the fact that he is now over 10% due to a change in the number of outstanding shares. We are unable to confirm that Ryan is not an affiliate for purposes of Rule 144 now that he is above 10% given his prior settlement with the company that resulted in changes to the composition of the Board.”
Form 3 Ready for Review
Olshan sends draft Form 3 to Cohen. Box 2 date: April 21, 2022 (the 10-K filing date that first disclosed the reduced share count). “We can get this filed tonight before 10pm with your approval.”
Cohen Approves
“I have no comments. Please provide a copy once filed.” — Seven minutes from receipt to approval.
Form 3 Filed with SEC
Filed before 10 PM deadline. Cohen is now formally a Section 16 insider on the record.
Cohen Still Pressing
“The bank needs confirmation I am not an affiliate in order to trade.” — Despite Form 3 being filed, JPMorgan is STILL blocking. Cohen presses past midnight.
The Next Morning
6:05 AM — Cohen resumes: “Ryan. What is earliest time I can call you?”
7:34 AM — Nebel sends 13D/A amendment for filing. Cohen approves within 2 minutes: “Please file.”
Market Open — Cohen sells 5,000,000 shares across 9 tranches ($18.68–$26.27 per share).
5:47 PM — JPMorgan files Form 144 with SEC.
8:31 PM — JPMorgan’s David Freedman emails board: “386 million shares traded…the furious buying may have been driven by quant funds buying on the ‘increased’ stake.”
Cohen on Trading Intent
Cohen testified that he wanted the ability to trade and that the decision to buy or sell depended on price. The next morning he executed a 5M-share sale.
“On August 15, did you intend to buy or sell?”
“I wanted to be able to trade.” / “It depended on the price.” / “I wanted the option to trade.”
Cohen Deposition, pp. 455–465
“So you may have bought shares on August 16?”
“Yes. It depended on the price. I may have bought depending on the price. I may have sold.”
Cohen Deposition, p. 457
“Did you tell your counsel you were specifically selling?”
“I don’t remember exactly what I told him…Could not confirm whether he told counsel he was specifically selling.”
Cohen Deposition, pp. 458–459
Actions vs. Words
The emails document urgency to preserve next-day trading ability, followed by a 5-million-share sale and full exit. That sequence permits—but does not compel—an inference that a sale was contemplated before market open; Cohen testified that he might have bought or sold depending on price.
Board Member Testimony
Four board members were deposed. All denied sharing MNPI with Cohen (outside the June 28 Tritton departure call). Their testimony reveals board dynamics and the three-director subgroup.
Harriet Edelman (Board Chair)
“Were you aware of any legal reason Cohen couldn’t sell?”
“I was not aware of any legal reason why he couldn’t sell” and “I know of no legal limitation to his selling.”
Edelman Deposition (Ex. 23) at 294
“What was causing the stock price movement?”
“We have energy behind the stock ‘without a catalyst’ as the pundits call it.” [And later:] “No” [when asked if she reached any conclusions about the cause].
Edelman email (Ex. 116); Edelman Deposition at 295
“Did you provide Cohen any material non-public information?”
“I do not believe I did.” [Asked separately about financial performance, capital raises, buybuy BABY sale/spin-off, and “any MNPI whatsoever” — same answer to each].
Edelman Deposition at 296–297
Marjorie Bowen (Cohen Appointee)
“Did you provide Cohen MNPI about buybuy BABY, debt, financial performance, or anything about BBBY?”
“Absolutely not.” / “No.” / “Nor anyone else.”
Bowen Deposition (Ex. 24) at 223–224
“How would you characterize BBBY’s financial performance?”
“Abysmal.” [And separately:] “hemorrhaging cash.”
Bowen Deposition at 225–228
“What was your reaction when Cohen sold?”
“I think I said I was frustrated and disappointed. It’s never helpful when a large shareholder sells their shares.”
Bowen Deposition at 222
Benjamin Rosenzweig (Cohen Appointee)
“Was it your understanding that you were not permitted to share MNPI with Cohen?”
“Correct, not permitted to share.”
Rosenzweig Deposition (Ex. 25) at 25
“Did you?”
“I did not.”
Rosenzweig Deposition at 25
Rosenzweig also testified Cohen was “not” his friend, and that he did not speak with Cohen after the lawsuit was filed. This contrasts with his seven prior board seats tied to Privet Fund Management, where he could freely share MNPI with the activist shareholder.
Shelly Lombard (Cohen Appointee)
“You communicated with Bowen and Rosenzweig more than any other board members?”
“Yes.” [Because] “We were, the three of us were probably more financially savvy than the rest of the board [who] were really retail experts…we communicated on the balance sheet and the financial aspects of the company.”
Lombard Deposition (Ex. 26) at 123–124
“Were they discussing any other shareholder as frequently as Cohen?”
“No, I don’t think so.”
Lombard Deposition at 124
The MNPI Protocol (June 28–July 1, 2022)
The formal information wall protocol between the board and Cohen, centered on CEO Tritton's removal. This sequence shows Cohen actively managing his MNPI status.
Edelman's MNPI Protocol Email
“I would like to share information with you that we will announce tomorrow morning…The information I will share is non-public and highly confidential. Therefore, in advance of the call, I will request your confirmation that you will keep the information confidential and not trade in BBBY securities until the information is publicly announced tomorrow. If you would like to talk today, we can keep this simple by your replying ‘Acknowledged and Agreed’ to this email.”
Cohen Agrees
“Hi Harriet, 5 et today works. Acknowledged and Agreed.” — Explicit acceptance of confidentiality and no-trade restrictions.
First Call — Tritton Departure Shared
Edelman shares news of Tritton's impending removal with Cohen under the MNPI protocol.
Cohen Requests Second Call
“Harriet. Do you have a chance to get back on the line now?” — Cohen makes “demands” during this second call (per Edelman's June 29 email).
Cohen's Angry Follow-Up
“It’s important for the full board to recognize its accountability for this unacceptable trajectory. Firing Mark only reinforces the board’s mistakes…I am expecting the board to promptly respond to my request after getting through today.”
Cohen Requests MNPI Clearance
“From a housekeeping perspective, please confirm that all MNPI shared with me earlier this week has been completely disclosed and that I am no longer in possession of MNPI.”
Edelman Confirms Clearance
“From a ‘housekeeping perspective:’ in our view, the substance of our conversations earlier this week was reflected in the press releases issued by the Company on Wednesday, 6/27/22; and therefore, no longer constitutes MNPI.” — Cohen is cleared to trade.
What the Company Knew
Internal communications from Susie Kim (SVP IR & Treasury) and Board members show that BBBY personnel attributed the rally to retail, options, short-covering, and meme activity and identified no new company news or analyst catalyst.
“On the open, we are trading up 27% on elevated volume of 17M shares at $7.84 on no new news or rumors. The trading thus far has been retail-driven (little block volume), and surveillance team believes is day trading and triggered/driven by options activity ($6, $8 and $10 contracts are the most active). Due to this activity, it has also likely triggered short covering, creating a ‘double whammy’ effect.”
Susie Kim email, August 5, 2022, 10:29 AM (Ex. 28)“Given the continued elevation, a short squeeze is most likely in effect based on the options activity and we have also triggered MEME activity. Our NASDAQ trader has also noted we are among the most active names mentioned on the Reddit boards today.”
Susie Kim email, August 5, 2022, 6:55 PM (Ex. 28)“No immediate news or analyst catalysts…We suspected trading was retail-driven/MEME-related and confirmed via our NASDAQ desk that BBBY was among the most active names mentioned across Reddit…before the RCV-related events from this March, we experienced similar retail trading dynamics in January 2021 and June of 2021.”
Susie Kim board memo, August 8, 2022 (Ex. 29)Historical Evidentiary Significance
BBBY's IR department contemporaneously attributed the trading to meme/retail, options, and short-covering dynamics and identified no immediate company-news catalyst. Plaintiffs used that evidence in SI; it does not by itself establish what either seller knew or whether the market price was legally artificial.
JPMorgan's August 16 Analysis
David Freedman (JPM Vice Chairman, Global Head of Shareholder Engagement) emailed BBBY management and board at 8:31 PM on August 16 — the day Cohen sold 5 million shares.
“I have not been sending emails about the meme-stock trading we have been seeing because we had no real insight into which investors were driving it — other than to say we did not see institutional investor participation.”
David Freedman email, August 16, 2022, 8:31 PM (Ex. 27)“The furious buying in the morning may have been driven by some quant fund buying on the ‘increased’ stake reported by Ryan (even though his number of shares did not change, some services reported a 1.7mm share increase because they included the call options now but not before).”
David Freedman email, August 16, 2022, 8:31 PM (Ex. 27)Freedman's Conclusion
“I would conclude that today may have represented some capitulation by the shorts in BBBY.” Freedman reported 61.5 million shares on loan and offered his contemporaneous assessment of squeeze-related trading; the email was an analysis, not proof of a single cause for the price movement.
Bratya Fund Internal Communications
Internal chat messages from the Bratya Fund (lead plaintiff representative David Coti and Edouard Coti) reveal squeeze-oriented trading psychology.
August 15–18 Chat Excerpts
Bratya's internal communications reference unrealistic valuation expectations, squeeze mechanics, puts/hedging strategies, and intraday tactical adjustments. When news broke of Cohen's exit on August 17 evening:
“BROOO…removes so much pressure…filing is the most important thing”
Bratya internal chat, August 17, 2022 evening (Ex. 3)The reaction is evidence that the traders were discussing squeeze mechanics and tactical effects of Cohen's exit. It does not by itself determine reliance or investor sophistication as a matter of law.
Historical Class-Certification Argument
The defense cited these communications in challenging typicality and reliance. The SI action was dismissed with prejudice before any class-wide merits determination; the chats should therefore be presented as litigated evidence, not a finding that reliance was absent.