Court filing

Declaration of Judy Geaslen by Beringer Commerce, Inc — Blueacorn Beringer (Dkt. 28)

No. 5:21-cv-00251-BO · Doc. 28 · Docket on CourtListener

Summary

A declaration under 28 U.S.C. § 1746 by Judy Geaslen, Chief Financial Officer of plaintiff Beringer Commerce, Inc. d/b/a Blue Acorn iCi, filed June 22, 2021 as Document 28 in Beringer Commerce, Inc. v. Fin Cap, Inc., No. 5:21-cv-00251-BO, in the U.S. District Court for the Eastern District of North Carolina. It states that the plaintiff's contempt memorandum mistakenly identified the total incoming calls to its Raleigh office as calls related to the defendants' business. It reports monthly Raleigh office totals for 2021 of 1,168 incoming calls in January, 1,065 in February, 2,294 in April and 4,311 in May, and attributes the increase to consumer confusion with the defendants' PPP business. The declarant states that LinkedIn messages sent to defendants Stephanie Hockridge Reis on March 27, 2021 and Jimmy Flores on March 29, 2021, attached as Exhibits A and B, drew no response.

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Full text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Civil Action No. 5:21-CV-251-BO

BERINGER COMMERCE, INC. d/b/a
BLUE ACORN iCi,

Plaintiff,

FIN CAP, INC. d/b/a
“BLUEACORN.CO,” BLUE ACORN DECLARATION OF JUDY GEASLEN
PPP, LLC, BLUE OAK FOREST, LLC,
MICHAEL S. COTA, JAMES FLORES,
STEPHANIE HOCKRIDGE REIS, and
NATHAN REIS,

Defendants.

I, Judy Geaslen, Chief Financial Officer of BERINGER COMMERCE, INC. d/b/a BLUE

ACORN iCi, (“Blue Acorn iCi”) declare under penalty of perjury pursuant to 28 U.S.C. § 1746 as

follows:

1. At the time of the filing of the Memorandum in Support of Plaintiff’s Motion for

Contempt (“Memorandum”), I was in process of obtaining call log information to attempt to

confirm the incoming calls Blue Acorn iCi’s Raleigh office had received related to Defendants’

PPP business activities.

2. Due to an inadvertent error in communication, the Memorandum mistakenly

identified the total number of incoming calls Plaintiff’s Raleigh office received between March

and June as incoming calls related to Defendants’ business activities.

Case 5:21-cv-00251-BO Document 28 Filed 06/22/21 Page 1 of 6
3. After confirming with our telephone provider, it is not possible to segregate the

incoming calls received related to Defendants’ PPP business through our accessible call log data.

However, we have confirmed the overwhelming number of “Blue Acorn PPP” calls through

evaluation of the call history for the Raleigh office.

4. Specifically, review of the call log data shows a tremendous increase in incoming

calls received to our Raleigh office after Defendants began wrongfully advertising its PPP

business—using the Blue Acorn IP—in the spring of 2021.

5. In January of 2021, our Raleigh office received a total of 1,168 incoming calls.

6. In February of 2021, our Raleigh office received a total of 1,065 incoming calls.

7. These January and February 2021 incoming call numbers are consistent with the

historical call volume for our Raleigh office.

8. In March of 2021, as Defendants began advertising using the trade names “Blue

Acorn,” “Blue Acorn PPP,” “blueacorn.co,” and operating numerous “blue acorn” related websites

using infringing marks, the number of incoming calls our Raleigh office began to increase with

hundreds of calls from consumers who mistakenly believe Blue Acorn iCi is affiliated with, or

providing the PPP services associated with, Defendants.

9. In April and May of 2021, the call volume exploded.

10. In April of 2021, our Raleigh office received 2,294 incoming calls—or

approximately two times the normal call volume.

11. In May of 2021, our Raleigh office received 4,311 incoming calls. The incoming

calls received in the month of May alone were approximately four times the normal volume of

incoming calls to our Raleigh office.

Case 5:21-cv-00251-BO Document 28 Filed 06/22/21 Page 2 of 6
12. It is absolutely clear that the dramatic and continued increase in call volume is

directly and wholly related to Defendants’ infringement and resulting consumer confusion.

13. Data available for the partial month of June shows that the dramatic increase in call

volume related to Defendants’ PPP business continues unabated.

14. A review of the incoming call data for our Charleston office reveals the same trend,

with the number of incoming calls beginning to sharply increase in March and continuing

exponentially in April and May.

15. Blue Acorn iCi continues to be overwhelmed by the number and nature of confused

consumer calls and communications. Both the Raleigh office and the Charleston office have

experienced, and continue to experience, extreme business disruption and inability to carry out

normal business activities.

16. I have personally received and handled hundreds of calls from confused consumers

relating to Defendants’ PPP business. As averred in the Verified Complaint, these consumers are

incredibly angry, frustrated, desperate, fearful, and confused. Due to Defendants’ profoundly poor

or nonexistent customer service, consumers are unable to contact Defendants. Moreover,

consumers have serious concerns about Defendants’ collection and use of their bank account

numbers and what is being done with their PPP loan funds.

17. Blue Acorn iCi’s reputation and goodwill is being harmed because consumers

believe our company is the source of the poor and concerning business practices of Defendants.

18. In addition, the sheer number of phone calls (and other types of consumer contacts)

have made it impossible to respond or reply to all the consumers who are reaching out believing

we are associated with Defendants’ PPP business—exacerbating the reputational harm to Blue

Acorn iCi since it cannot possibly correct or explain the rampant confusion.

Case 5:21-cv-00251-BO Document 28 Filed 06/22/21 Page 3 of 6
19. Because Defendants continue to use and infringe on Blue Acorn iCi’s brand and

logo, immediate injunctive relief is absolutely necessary to address the overwhelming consumer

confusion that is ongoing.

20. In addition, Defendants have been aware of this problem since March 2021.

21. Specifically, as we were overwhelmed by these communications in March, I

attempted to reach out directly to Defendants regarding the volume of communications we had

received from customers of Defendants’ PPP business.

22. Specifically, on March 27, 2021, I sent a message through LinkedIn to Defendant

Stephanie Hockridge Reis, whose LinkedIn profile identifies her as the Co-Founder of

blueacorn.co. In that message, I identified our company; informed her that our company had been

inundated with calls and other contacts by customers of Defendants’ PPP business; notified her

that we had begun receiving financial information directly from those customers and in response

had to shut down our online support portal; and requested that they provide appropriate contact

information on their social media platforms to address the customer confusion. A true and correct

copy of this message is attached is Exhibit A and incorporated herein. I did not receive a response

to this March 27, 2021 message to Defendant Stephanie Hockridge Reis.

23. Similarly, on March 29, 2021, I sent a substantially identical message through

LinkedIn to Defendant Jimmy Flores, whose LinkedIn profile identifies him as the Founder of FIN

CAP, Inc. dba Blueacorn.co. A true and correct copy of this message is attached is Exhibit B and

incorporated herein. I did not receive a response to this March 29, 2021 message to Defendant

Jimmy Flores.

Case 5:21-cv-00251-BO Document 28 Filed 06/22/21 Page 4 of 6
Case 5:21-cv-00251-BO Document 28 Filed 06/22/21 Page 5 of 6
CERTIFICATE OF SERVICE
The undersigned does hereby certify that a copy of the foregoing DECLARATION OF
JUDY GEASLEN has been filed with the Clerk for the United States District Court, Eastern
District of North Carolina, using the electronic filing system of the Court which will send
notification to the following counsel of record:
Christopher J. Blake
N.C. State Bar No. 16933
D. Martin Warf
N.C. State Bar No. 32982
Nelson Mullins Riley & Scarborough LLP
4140 Parklake Ave, Suite 200
Raleigh, NC 27612
Chris.blake@nelsonmullins.com
Martin.warf@nelsonmullins.com

Attorneys for Defendants Fin Cap, Inc, Blueacorn PPP,
LLC and Blue Oak Forest, LLC

 By placing a copy, contained in a first-class, postage paid wrapper, into a depository
under the exclusive custody of the United States Postage Service, addressed to the
parties as indicated below

Michael S. Cota James M. Flores
2138 S. Valle Verde Cir 7833 E. Harvard Street
Mesa, AZ 85209 Scottsdale, AZ 85257

Stephanie Hockridge Reis Nathan Reis
4747 N. Scottsdale Road, Unit C 4747 N. Scottsdale Road, Unit C
Scottsdale, AZ 85251 Scottsdale, AZ 85251

This the 22nd day of June, 2021.
/s/ Beth A. Stanfield
Beth A Stanfield
Laura K. Greene
Thomas Babel

Attorneys for Plaintiff

Case 5:21-cv-00251-BO Document 28 Filed 06/22/21 Page 6 of 6

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Our copy: gov.uscourts.nced.187990.28.0.pdf
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