Court filing

Complaint for Equitable Relief — Fountainhead v. Womply

Filed August 27, 2021 in Fountainhead v. Oto Analytics Womply; one of 8 filings from this case.

Record facts

Court	Circuit Court of the 18th Judicial Circuit, Seminole County, Florida — Civil Division
Filed	2021-08-27

Full text

Filing # 133596485 E-Filed 08/27/2021 05:18:27 PM

IN THE CIRCUIT COURT OF THE 18TH
JUDICIAL CIRCUIT, IN AND FOR
SEMINOLE COUNTY, FLORIDA.

CIVIL DIVISION

CASE NO. 2021CA002143

FOUNTAINHEAD SBF,
Plaintiff,
VS.
OTO ANALYTICS, INC. d/b/a WOMPLY,

Defendant.
/

COMPLAINT FOR EQUITABLE RELIEF
(SPECIFIC PERFORMANCE AND INJUNCTIVE RELIEF)

Plaintiff, Fountainhead SBF (“Fountainhead”), by and through its undersigned counsel,
hereby sues Defendant, OTO Analytics, Inc. d/b/a Womply (“Womply”), for equitable relief,

and alleges as follows:

INTRODUCTION
1. Fountainhead is a lender that is licensed and supervised by the United States

Small Business Association (the “SBA”). Among other things, Fountainhead funds and services
loans created under the Paycheck Protection Program (the “PPP”).

2. The PPP is a relief program designed to assist small businesses struggling with
the economic disruption that has resulted from the COVID-19 pandemic, by providing

inexpensive loans to small businesses to allow them to pay certain expenses, such as employee

payroll.

*#%* E-FILED: GRANT MALOY, CLERK OF CIRCUIT COURT SEMINOLE COUNTY, FL 08/30/2021 12:29:32 PM.****

3. In early February 2021, the United States government and the SBA made
modifications to the PPP, for the purpose of providing sole proprietors, independent contractors,
and self-employed business owners better access to PPP funding.

4. To make the funding and servicing of loans to these types of business more
economically viable to lenders, Womply, with the assistance and input of Fountainhead and
other lenders, designed a technology platform known as “Fast Lane” (along with the related
Teslar system, the “Technology Platform”). The Technology Platform allows lenders, such as
Fountainhead, to efficiently manage and track loans, as well as to administer, track and maintain
certain loan files that were generated for each loan.

5. Fountainhead has originated loans through the Technology Platform (the “Fast
Lane Loans”). As Womply is not a lender, and because Fountainhead is the licensed and
regulated lender of record for the Fast Lane Loans, Fountainhead is responsible for reviewing
and submitting each loan to the SBA for approval, and also for servicing the loans and
facilitating forgiveness of the loans.

6. Fountainhead and Womply entered into agreements to govern their relationship,
including the operative agreement that is relevant to this dispute: the PPP Loan Referral
Agreement (the “Agreement’). Fountainhead agreed to compensate Womply for its services in
connection with the Fast Lane Loans. To date, Fountainhead has paid Womply substantial fees

for such referrals.

7. Recently, Womply has taken the position that it is entitled to more money from
Fountainhead (as well as other lenders, as has been publicly reported), and has asserted that, by
failing to pay all that is required, Fountainhead has materially breached the Agreement.’

8. The Agreement specifically contemplates the situation in which one party has
allegedly materially breached the Agreement. In that situation, the other party may submit a
termination notice (as Womply has done here), and Womply is then required to return all loan
files to Fountainhead within thirty days. This clause, of course, recognizes the importance of
Fountainhead maintaining such loan files, even if the relationship between Fountainhead and
Womply has ended.

9. Despite its contractual obligation to provide the loan files within thirty days of a
termination notice, Womply has refused to provide Fountainhead with any of the loan files in its
possession. Womply’s refusal has caused — and is continuing to cause — harm to borrowers
because, in many instances, without access to the Technology Platform or its loan files,
Fountainhead is unable to assist borrowers in obtaining access to funds they need. Moreover, this
situation has been exacerbated in recent weeks because Fountainhead has received — and is
unable to fully comply with — law enforcement requests, subpoenas (including Grand Jury
subpoenas), and regulatory inquiries regarding certain of the loan files.

10. Despite many requests from Fountainhead to Womply, highlighting the
importance of the loan files, Womply has continued to block Fountainhead’s access to them.
Although Fountainhead repeatedly has attempted to resolve this loan file dispute with Womply

amicably, including asking Womply to simply reinstate Fountainhead with access to the

' Fountainhead has paid Womply greater than 80% of the amount Womply claims it is entitled to
in fees.

Technology Platform for a brief period, such that Fountainhead could retrieve the loan files in
question at no expense to Womply, Womply has refused to cooperate.

11. Accordingly, Fountainhead brings this action seeking equitable relief. In
particular, Fountainhead is seeking specific performance of Womply’s obligation in the
Agreement to provide Fountainhead with its loan files and related injunctive relief.

THE PARTIES, JURISDICTION AND VENUE
12. The Plaintiff, Fountainhead, is a Florida limited liability company with its

principal place of business located in Seminole County, Florida.

13. The Defendant, Womply, is a California corporation doing business with
Fountainhead in Seminole County, Florida.

14. This Court has personal jurisdiction over Womply because, among other reasons,
(1) Womply breached the Agreement with Fountainhead by failing to deliver the loan files that
are the subject of this dispute to Fountainhead in Florida, and (ii) Womply is engaged in
substantial and not isolated activity in Florida, including the solicitation of PPP loan applications
from small businesses located in Florida.

15. | Venue is proper in Seminole County, Florida because the cause of action accrued
here. Specifically, Fountainhead’s breach of contract claim seeking specific performance against
Womply accrued in Seminole County, Florida because Womply is obligated under the
Agreement to deliver the loan files in dispute to Fountainhead in this county. In any event, as
Womply is not a resident of the state of Florida, venue is proper in any county in Florida,

including Seminole County.

16. Although the Agreement generally provides for arbitration of disputes between
the parties, it expressly carves out “a party’s right to seek injunctive or other equitable relief in
court.”

GENERAL ALLEGATIONS
17. On or about March 23, 2021, Fountainhead and Womply entered into the

Agreement, with a retroactive effective date of February 9, 2021, pursuant to which
Fountainhead engaged Womply to provide referrals and technology access to Fountainhead in
connection with loan applicants seeking loans under the PPP.”

18. The term of the Agreement was one year, but it provided that either party had the
right to terminate the Agreement prior to that time by giving the other party 7 days’ prior written
notice “if the other party is in material breach of any warranty, representation, covenant or
obligation under this Agreement . . . and is not able to cure such breach within seven (7) calendar
days of receiving the Notice of Termination. Ex. 1 (Agreement), at §§ 6.1 & 6.2.

19. On or about May 26, 2021, while the parties were negotiating a fee issue,
Womply sent Fountainhead a notice of termination, through which Womply terminated the
Agreement pursuant to Section 6.2 of the Agreement based upon Fountainhead’s alleged breach
of contract (the “Notice of Termination”).*

20. Section 6.3 of the Agreement provides in its entirety (with emphasis added):

* As Womply has taken the position that the Agreement contains confidential and proprietary
information, Fountainhead is simultaneously submitting a Notice of Confidential Information
within Court Filing pursuant to Florida Rule of Judicial Administration 2.420(d)(2), such that the
Agreement (Exhibit 1) will remain non-public.

> As Womply has taken the position that the Notice of Termination contains confidential and
proprietary information, Fountainhead is simultaneously submitting a Notice of Confidential
Information within Court Filing pursuant to Florida Rule of Judicial Administration 2.420(d)(2),
such that the Notice of Termination (Exhibit 2) will remain non-public.

Upon Lender’s receipt of a Notice of Termination, Lender may request from
Womply, and Womply shall reasonably provide to Lender, a plan for
transmitting to Lender electronic copies of loan files in its possession that
relate to the Referred Loans, to the extent not otherwise in the possession of
Lender. Womply will not unreasonably withhold its cooperation in such selection
and transmissions. Both parties shall agree upon a data format and method of
transmission. Womply shall reasonably provide such requested information to
Lender no later than thirty (30) days following the termination of this
Agreement.

Ex. 1, at § 6.3.

21. After receiving Womply’s Notice of Termination on June 1, 2021, Fountainhead
requested that Womply comply with its obligations under Section 6.3 by providing it with copies
of all loan files referred by Womply through the Technology Platform (the “Loan Files”).

22. As of August 27, 2021, however, Womply has failed and refused to provide
Fountainhead with copies of the Loan Files, at various points in time: (i) asserting that it is not
under any obligation to produce the Loan Files because Womply believes it is entitled to more
money from Fountainhead, (11) relying upon an arbitrary and baseless interpretation of the term
“loan file” that is inconsistent with standard lending practice and regulatory authority, and (iii)
complaining of the burden imposed on it by making the required production of the Loan Files.

23. Fountainhead has been negotiating with Womply for a number of weeks, in good
faith, to attempt to reach an all-encompassing resolution, but Womply continues to refuse to
provide the Loan Files.

24. ‘In order to comply with its obligations to provide the Loan Files, Womply could
simply reinstate Fountainhead’s access to the Technology Platform, which would require little

more than a click of a button.

COUNT I: SPECIFIC PERFORMANCE FOR BREACH OF CONTRACT

25. Fountainhead repeats and realleges the allegations set forth in paragraphs 1
through 24 of the Complaint, as if fully set forth in this Count.

26. Womply’s failure and refusal to provide Fountainhead with the Loan Files
constitutes a breach of Womply’s contractual obligation under Section 6.3 of the Agreement.

27. The legal remedy available to Fountainhead of damages is inadequate.
Fountainhead is responsible for both funding and servicing all of the loans at issue and
complying with certain law enforcement and regulatory requests. Womply’s failure and refusal
to provide Fountainhead with the Loan Files, as required under the Agreement, prevents
Fountainhead from being able to do so, and monetary damages are not capable of compensating
Fountainhead for the resulting harm.

28. A mutuality of remedies exists between the parties under the Agreement. See Ex.
1 (Agreement). For example, Womply has the right to bring an arbitration against Fountainhead
for damages if Fountainhead allegedly does not pay Womply the fees owed under the Agreement
(as Womply has, in fact, done); and Fountainhead, in turn, has the right to seek equitable relief
from Womply in court, as it is doing in this action. /d.

29. | Womply’s obligation to provide the Loan Files is sufficiently certain such that the
Court can enforce the provision. Specifically, Fountainhead here is asking the Court to enforce
the provisions of Section 6.3 of the Agreement requiring Womply to provide Fountainhead with
the requested Loan Files, which Womply has failed and refused to do. See Ex. 1 (Agreement), at
§ 6.3.

30. As demonstrated above, the requested performance by Womply is substantially

similar (and, in fact, identical) to that promised by Womply in Section 6.3 of the Agreement.

31. All conditions precedent to the bringing of this action have occurred, been
waived, or been performed.

WHEREFORE, Plaintiff, Fountainhead, respectfully requests that the Court enter a final
judgment in its favor and against Defendant, Womply, decreeing that Womply shall
immediately transmit to Plaintiff electronic copies of the Loan Files, and granting Plaintiff such
other and further relief as this Court deems just and proper.

COUNT I: INJUNCTIVE RELIEF FOR BREACH OF CONTRACT
32. Fountainhead repeats and realleges the allegations set forth in paragraphs 1

through 24 of the Complaint, as if fully set forth in this Count.

33. Womply’s failure and refusal to provide Fountainhead with the Loan Files
constitutes a breach of Womply’s contractual obligation under Section 6.3 of the Agreement.

34. Fountainhead has no adequate remedy at law to compensate for Womply’s failure
to provide the Loan Files.

35. Fountainhead will suffer irreparable harm if Womply is not required to provide
Fountainhead with the Loan Files. Fountainhead is responsible for both funding and servicing all
of the loans at issue and complying with certain law enforcement and regulatory requests.
Womply’s failure and refusal to provide Fountainhead with the Loan Files, as required under the
Agreement, prevents Fountainhead from being able to do so, and monetary damages are not
capable of compensating Fountainhead for the resulting harm.

36. Fountainhead has a substantial likelihood of prevailing on the merits of its claim
against Womply because the parties’ Agreement requires Womply to return the Loan Files upon

termination of the Agreement.

37. An injunction serves the public interest. Absent an injunction requiring Womply
to provide the Loan Files, Womply’s failure to provide the Loan Files harms innocent third
parties, including small businesses, who have been denied access to loans. It has also caused
harm to law enforcement efforts, as Fountainhead is presently unable to comply with certain
requests from law enforcement.

WHEREFORE, Plaintiff, Fountainhead, respectfully requests that the Court enter a
temporary and permanent injunction in its favor and against Defendant, Womply, decreeing that
Womply shall immediately transmit to Plaintiff electronic copies of the Loan Files, and granting
Plaintiff such other and further relief as this Court deems just and proper.

Dated this 27" day of August, 2021.

SHUTTS & BOWEN LLP
Attorneys for Plaintiff

By: Daniel T. Stabile, Esq.
Daniel T. Stabile, Esq.

Florida Bar No. 95750

200 South Biscayne Boulevard
Suite 4100

Miami, Florida 33131

Tel: (305) 415-9063
E-mail: dstabile@shutts.com

and

Eric Reed, Esq.

Florida Bar No. 557161
300 S. Orange Avenue
Suite 1600

Orlando, Florida 32801
Tel: (407) 423-3200
E-mail: ereed@shutts.com

MIADOCS 22857864 4

EXHIBIT 1

REDACTED

EXHIBIT 2

REDACTED

IN THE CIRCUIT COURT OF THE 18TH
JUDICIAL CIRCUIT, IN AND FOR
SEMINOLE COUNTY, FLORIDA.

CIVIL DIVISION

CASE NO.

FOUNTAINHEAD SBF,
Plaintiff,

VS.

OTO ANALYTICS, INC. d/b/a WOMPLY,

Defendant.

CASE MANAGEMENT PLAN
(STREAMLINED)

The parties are to meet, review, and discuss the Case Management Plan to agree upon dates according
to the guidelines set forth in the above Case Management Plan. The parties are to sign the certification
below and submit the proposed Case Management Order with the agreed upon dates to the Court for
approval and signature. This is required to be submitted to the court or filed in the court file for
approval of the Case Management Order.

1. Date of First Response (i.e., Answer, Notice of The date of the first filing

appearance, Motion for Extension of Time, Motion to

Dismiss)

2. Deadline for adding new parties, amendment of Should be 45-60 days since response date
pleadings

3. Deadline for Witness & Exhibit List Should be 45-60 days before Trial

(Witnesses MUST be listed by actual NAME of the
witness, and not by designation (i.e., use of such
designations as “Corporate Representative,” “Records
Custodian,” “Adjustor,” or “IME Doctor” standing
alone 1s insufficient)

4. Deadline for Expert Disclosure Should be 90-120 days prior to projected trial
date for Plaintiff

(Parties should furnish opposing counsel with the
names and addresses of all expert witnesses under
Rule 1.390(a) to be called at trial and all information
regarding expert testimony that is required by Rule
1.28(b)(5). Each party is limited to one expert per
specialty. No other expert testimony should be
permitted at trial. Information furnished pursuant to
this paragraph should be timely filed with the Clerk of
the Court.)

Should be 60-90 days prior to projected trial
date for Defendant

5. Objections to pleadings

Should be resolved 120-150 days prior to
projected trial date

6. Deadline for Discovery Completion (including
Depositions)

Should be 30 days prior to projected trial
date

7. Deadline for Dispositive Motions, including
Daubert Motions-Failure to do so shall constitute a
waiver at Trial of any Daubert related evidence
objection or issue

Responsibility for scheduling of the Hearing shall be
upon the party filing the Motion or Objection.

Should be heard 15-30 days prior to
projected trial date

8. Deadline for Mediation:

Should be 45-60 days prior projected trial
date

9. Trial Date

Must include length of trial period and
projected date trial is desired to commence
approximately 12 months from date of the
Case Management Plan and submission of
Case Management Order to Court

I hereby certify that all parties have met and conferred regarding all proposed dates for the Case
Management Plan and Case Management Order and certify that all dates proposed in the Case
Management Order have been agreed to by the parties.

Date:

Signature of Counsel and Unrepresented Parties. Counsel must state FL Bar number. Unrepresented

parties must include email address for service.

EXHIBIT A

IN THE CIRCUIT COURT OF THE 18TH
JUDICIAL CIRCUIT, IN AND FOR
SEMINOLE COUNTY, FLORIDA.

CIVIL DIVISION
CASE NO.
FOUNTAINHEAD SBE,
Plaintiff,
VS.
OTO ANALYTICS, INC. d/b/a WOMPLY,
Defendant.
/
CASE MANAGEMENT
ORDER (STREAMLINED)

Pursuant to the dictates of Administrative Order AOSC20-23 of the Florida Supreme Court,
and AO 21-24, Eighteenth Judicial Circuit, it is, hereby,

ADJUDGED that the following deadlines are applicable to this action, and that same will be
strictly applied by the Court:

The projected date of trial for this matter is the trial docket beginning . A firm
trial date will be ordered by the presiding judge when this matter is at issue and notice as to same is
filed in accordance with Rule 1.440, Fla. R. Civ. P.

Any request(s) for the addition of new parties, or amendments to the pleadings, shall be served
within days of the date of this Order.

The fact witnesses of all parties shall be disclosed to all other parties no later than. days
prior to the above projected trial date.

All of Plaintiff's Expert Witnesses shall be disclosed to all other parties no later than__days
prior to the above projected trial date. Defendant’s Expert Witnesses shall be disclosed to all other
parties within 30 days thereafter.

All fact AND expert discovery shall be completed no later than_ days prior to the above
projected trial date.

All objections to the pleadings, and all pre-trial motions shall be resolved no later than_days
prior to the above projected trial date.

Mediation shall be completed no later than days prior to the above projected trial date.

ORDER

THE COURT, having reviewed the preceding Case Management Dates finding them
to be satisfactory. Accordingly, it is hereby ORDERED that

1. COMPLIANCE WITH THIS CASE MANAGEMENT ORDER: The parties shall
strictly comply with the terms of this Case Management Plan and Case Management Order unless
otherwise ordered by the Court. FAILURE TO COMPLY WITH ALL REQUIREMENTS OF THIS
ORDER WILL RESULT IN THE IMPOSITION OF SANCTIONS.

2. ADDITIONAL EIGHTEENTH CIRCUIT AND DIVISION SPECIFIC
GUIDELINES: All counsel and unrepresented parties shall familiarize themselves and comply with
the requirements of the following: (1) Amended Administrative Order Establishing the Eighteenth
Judicial Circuit Courtroom Decorum Policy (AO 09-06); and (ii) any division-specific guidelines
and policies that may be applicable.

3. MODIFICATION OF THIS ORDER: The parties may not, individually or by
agreement, alter or extend the deadlines in this Order, or waive any of the provisions of this Order.
The provisions of this Order may be modified only upon motion/stipulation and Court order in
accordance with applicable law.

4. NOTICES FOR TRIAL: Within ten (10) days of the case being at issue as defined
by Rule 1.440, Fla. R. Civ. P., or within ten (10) days from the date of this Order if the case has been
at issue longer than ten (10) days, the Plaintiff shall confer with opposing counsel/party regarding the
anticipated length of trial and file a Notice for Trial. The Plaintiff shall forward a copy of the Notice
for Trial to the Case Manager at the email address noted on the Eighteenth Judicial Circuit website.

5. DISCOVERY: All counsel and unrepresented parties shall familiarize themselves
with the current edition of the Florida Handbook on Civil Discovery Practice and seek to resolve
discovery issues without court intervention whenever possible.

6. SERVICE OF THIS ORDER: Counsel is ordered to promptly serve and file proof
with the Clerk, no more than five (5) business days from the date of this Order that all pro se parties,
subsequently named or appearing herein, have been served copies of this Order. In the event a party is
unrepresented and has not designated an email address for purposes of electronic service, counsel for
Plaintiff shall be responsible for serving this Order and all future orders of the Court via a non-
electronic means (U.S. mail, Federal Express or the equivalent) and shall file a Certificate of Service
with the Court indicating who was served, the date of service, and the method of service (including any
address or email used) within three (3) business days. If Plaintiff is unrepresented, Counsel for the
Defendant shall have this same obligation. If all parties are unrepresented, the Plaintiff shall provide
stamped addressed envelopes to the Court with submission of this and any other proposed Order.

7. SETTLEMENT: Zhe case will not be removed from the docket until all documents
necessary for closure of the case are filed with the Clerk and notification has been provided to the

judicial assistant. A notice of settlement is not sufficient to remove the case from the trial docket.

DONE AND ORDERED this day of , 2021, in

County, Florida.

CIRCUIT JUDGE

Aitrue and correct copy of the foregoing was distributed to all parties by filing and service
via the eportal to all attorney(s)/Anterested parties identified on the eportal Electronic

Service List.

If you are a person with a disability who needs any accommodation in order to
participate in this proceeding, you are entitled, at no cost to you, to the
provision of certain assistance. Please contact the ADA Coordinator in your
county at least 7 days before your scheduled court appearance, orimmediately
upon receiving this notification if the time before the scheduled appearance is

less than 7 days. If you are hearing or voice impaired, call 711.
MIADOCS 22883938 1

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Complaint for Equitable Relief — Fountainhead v. Womply

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