Court filing
AFFIDAVIT regarding 35 Reply to Response to Motion by Beringer Commerce, Inc — Blueacorn Beringer (Dkt. 36)
No. 5:21-cv-00251-BO · Doc. 36 · Docket on CourtListener
Summary
The Second Declaration of Judy Geaslen, Chief Financial Officer of Beringer Commerce, Inc. d/b/a Blue Acorn iCi, filed July 6, 2021 as Document 36 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. Made under 28 U.S.C. § 1746, it states that the plaintiff's Raleigh office received approximately two times the normal call volume in April of 2021 and four times in May of 2021 from consumers who mistakenly believed it was connected to the defendants' PPP business. It attaches redacted consumer complaints and creditor notices as Exhibits A through J and Exhibit L, correspondence from the Arizona Attorney General as Exhibit K, and a Florida State Attorney's subpoena as Exhibit M. It also states the plaintiff's use of the BLUE ACORN mark dates back to 2007.
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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,
v.
FIN CAP, INC. d/b/a SECOND DECLARATION
“BLUEACORN.CO,” BLUE ACORN 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:
Consumer Complaints and Investigative Inquiries
1. On June 22, 2021, I submitted a Declaration [DE-28] (“First Declaration”) detailing
the tremendous increase in incoming calls received to Blue Acorn iCi’s Raleigh and Charleston
offices after Defendants wrongfully began advertising its PPP business—using the Blue Acorn
IP—in the spring of 2021. These are not the only Blue Acorn iCi offices, but these phone records
were reviewed as representative samples.
2. Specifically, in March of 2021, as Defendants began advertising using the trade
names “Blue Acorn,” “Blue Acorn PPP,” “blueacorn.co,” and operating numerous “blue acorn”
Case 5:21-cv-00251-BO Document 36 Filed 07/06/21 Page 1 of 7
related websites using infringing mark, the number of incoming calls our Raleigh and Charleston
offices received began to increase with hundreds of calls from consumers who mistakenly believe
Blue Acorn iCi is affiliated with, or providing the PPP loan services associated with Defendants.
3. In April of 2021, our Raleigh office received approximately two times the normal
call volume.
4. In May of 2021, our Raleigh office received approximately four times the normal
call volume.
5. Calls to our Charleston office during this time frame reflected the same trend.
6. In June and for the partial month of July, the dramatic increase in call volume
related to Defendants’ PPP business has continued unabated for both our Raleigh and Charleston
offices.
7. 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.
8. 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.
9. 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.
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Case 5:21-cv-00251-BO Document 36 Filed 07/06/21 Page 2 of 7
10. 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.
11. Since the filing of the Verified Complaint, in addition to phone calls, Blue Acorn
iCi has continued to receive written consumer complaints related to Defendants’ PPP business.
The vast majority of these consumer complaints express concerns about the status of their PPP
loan funds, request information on that status, and provide sensitive personal and financial
information.
12. True and accurate redacted copies of consumer complaints received since the filing
of the Verified Complaint, in addition to notices to creditors in certain individuals’ Chapter 7
Bankruptcy proceedings, are attached as Exhibits A through J and Exhibit L. 1
13. As Exhibits A through J and Exhibit L show, the consumers reaching out to Blue
Acorn iCi are confused about whether there is a connection between Blue Acorn iCi and
Defendants’ PPP business. These complaints are not merely misdirected or careless contacts.
14. Indeed, the June 24, 2021 voicemail transcription attached as Exhibit H shows that
a previous customer of Blue Acorn iCi applied for a PPP loan through Defendants’ PPP business,
believing that Defendants’ PPP business was connected with Blue Acorn iCi, clearly showing
confusion about the source of Defendants’ PPP business. The customer explains that he chose that
company believing it to be operated by Blue Acorn iCi and expresses his frustration with the
1
All attached exhibits have been redacted to remove sensitive, personally-identifying information of third parties. In
the interest of expediency, Plaintiff submits this redacted version in support of the Second Declaration of Judy Geaslen,
but will provide unredacted versions to Defendants upon request or seek to file unredacted versions under seal at the
Court’s direction. Redacted copies of Exhibits A through D were previously filed as [DE-16-1], Exhibit A to
Plaintiff’s Brief in Support of its Motion for Contempt.
3
Case 5:21-cv-00251-BO Document 36 Filed 07/06/21 Page 3 of 7
services provided by Defendants’ PPP business, showing the reputational harm resulting from
Defendants’ infringing activity.
15. In addition to consumer complaints and notices to creditors, Blue Acorn iCi has
received multiple subpoenas and investigative contacts from prosecutors and consumer affairs
departments from several states.
16. Exhibit F to the Verified Complaint contains copies of formal inquiries from the
State of Tennessee Division of Consumer Affairs and a Grand Jury Subpoena from the
Commonwealth of Massachusetts, both seeking information about Defendants’ PPP business.
17. After the filing of the Verified Complaint, Blue Acorn iCi continued to receive
formal investigative inquiries.
18. True and correct copies of redacted correspondence from the Arizona Attorney
General’s Consumer Protective Office seeking responses to four discrete consumer complaints
related to Defendants’ PPP business are attached as Exhibit K.
19. A true and correct copy of a redacted subpoena from the State Attorney’s office for
the Eleventh Judicial Circuit of Florida seeking information about Defendants’ PPP business is
attached as Exhibit M.
20. Blue Acorn iCi has had to retain counsel to respond to these formal inquiries to
explain that it has no connection with the “Blue Acorn PPP” business under investigation by these
agencies.
Blue Acorn iCi’s Use of the Blue Acorn IP, Advertising, and Customer Base
21. Blue Acorn iCi’s continuous and exclusive commercial use of the BLUE ACORN
ICI mark in commerce dates back to March 31, 2019 in connection with Blue Acorn iCi’s services.
4
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22. Blue Acorn iCi’s continuous and exclusive use of the BLUE ACORN mark in
commerce dates back to 2007 in connection with Blue Acorn iCi’s services.
23. Blue Acorn iCi’s continuous and exclusive use of the Acorn Logo mark in
commerce dates back to 2009 in connection with Blue Acorn iCi’s services.
24. Since 2009, Blue Acorn iCi and its Predecessors have advertised and promoted its
business in all states within the United States using both the BLUE ACORN and Acorn Logo
marks, including both North Carolina and Arizona, where some Blue Acorn iCi customers
maintain their principal place of business.
25. Since 2019, Blue Acorn iCi and its Predecessors has advertised and promoted its
business in all states within the United States using the BLUE ACORN ICI mark, including both
North Carolina and Arizona, where some Blue Acorn iCi customers maintain their principal place
of business.
26. Blue Acorn iCi currently has customers in nearly all states, including North
Carolina and Arizona.
27. While the new BLUE ACORN ICI mark was created in 2019, Blue Acorn iCi
continues to use the BLUE ACORN mark and it has not been abandoned. Specifically, to date,
Blue Acorn iCi continues to use the BLUE ACORN mark in some advertising and on invoices,
and continues to be prominently displayed on various client websites to advertise the services
being offered by Blue Acorn iCi.
Need for Injunctive Relief
28. The volume of Defendants’ PPP business and advertising further increases the
customer confusion with which Blue Acorn iCi has had to contend. A true and correct copy of a
New York Times article discussing the volume of Defendants’ PPP business is attached as Exhibit
5
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Case 5:21-cv-00251-BO Document 36 Filed 07/06/21 Page 6 of 7
CERTIFICATE OF SERVICE
The undersigned does hereby certify that a copy of the foregoing SECOND
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 6th day of July, 2021.
/s/ Beth A. Stanfield
Beth A Stanfield
Laura K. Greene
Thomas Babel
Attorneys for Plaintiff
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