Brief Reply In Support of Petition to Vacate Final Arbitration Award filed byBenworth Capital… — Benworth Oto (Dkt. 33)

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U.S. District Court for the Northern District of California · No. 4:24-cv-04840-AMO · Doc. 33 · 2024-09-09 · Docket on CourtListener

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REPLY IN SUPPORT OF PETITION TO VACATE FINAL ARBITRATION AWARD 
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Jorge L. Piedra (Florida Bar No. 88315) 
(Pro Hac Vice) 
Jpiedra@kttlaw.com  
Dwayne A. Robinson (Florida Bar No. 99976) 
(Pro Hac Vice) 
drobinson@kttlaw.com  
Michael R. Lorigas (Florida Bar No. 123597) 
(Pro Hac Vice) 
mlorigas@kttlaw.com  
KOZYAK TROPIN & THROCKMORTON 
2525 Ponce de Leon Boulevard, 9th Floor 
Miami, Florida 33134 
Telephone: (305) 372-1800 
 
Simon S. Grille (State Bar No. 294914) 
sgrille@girardsharp.com  
GIRARD SHARP LLP 
601 California Street, Suite 1400 
San Francisco, CA 94108 
Telephone: (415) 981-4800 
 
Attorneys for Benworth Capital Partners, LLC 
 
 
 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
SAN FRANCISCO DIVISION 
 
 
BENWORTH CAPITAL PARTNERS, LLC, 
 
 
 
 
Petitioner, 
 
 
v. 
 
OTO ANALYTICS, LLC f/k/a OTO 
ANALYTICS, INC. d/b/a WOMPLY, 
 
 
 
 
Respondent. 
 
Case No. 3:24-cv-4840-AMO 
 
REPLY IN SUPPORT OF PETITION TO 
VACATE FINAL ARBITRATION AWARD  
 
Hon. Araceli Martínez-Olguín 
 
 
 
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INTRODUCTION 
Benworth’s Petition to Vacate Final Arbitration Award (ECF No. 1) (the “Petition”) details three 
grounds for this Court to vacate the Final Award: (1) the Arbitrator exceeded his powers by refusing to 
apply the plain language of the controlling SBA Regulations, which are incorporated into and express 
terms of the Agreements, to the undisputed, legally dispositive facts; (2) the Final Award compels 
Benworth to violate explicit, well defined federal public policy; and (3) the Arbitrator is guilty of 
misconduct in refusing to postpone the proceedings until the SBA completes its investigation of 
Womply.1 Womply’s Opposition to the Petition (ECF No. 25) (the “Opposition” or “Opp.”) fails to 
rehabilitate the Final Award. 
Womply primarily mischaracterizes Benworth’s arguments to cabin this Court’s review of the 
Final Award. Under Ninth Circuit precedent, however, this Court owes no deference to the Arbitrator’s 
conclusions where he strayed from the limitations imposed by the Agreements. Nor must this Court 
defer to an award that disregards federal regulations the parties incorporated into their agreements and 
agreed to be bound by. Beyond that, all of Womply’s arguments ignore not only its own undisputed 
evidence and arguments, but also the Arbitrator’s findings and prior statements.  
For these reasons, as detailed below and in the Petition, the Court should vacate the Final Award. 
ARGUMENT 
I. 
THE ARBITRATOR EXCEEDED HIS POWERS. 
A. 
This Court Is Not Bound By The Arbitrator’s Conclusions. 
 
Throughout its Opposition, Womply asserts that Benworth’s arguments on the Arbitrator 
exceeding his powers are beyond this Court’s scope of review because they supposedly seek de novo 
review of the factual findings and legal interpretations in the Final Award. Not so. Womply not only 
mischaracterizes Benworth’s arguments, but also the Ninth Circuit precedent supporting them. When 
viewed objectively, the Petition states challenges to an arbitrator’s powers that warrant closer review.  
 
An arbitrator exceeds his powers when he strays from the limitations imposed by the parties. 
Mich. Mut. Ins. Co. v. Unigard Sec. Ins. Co., 44 F.3d 826, 830 (9th Cir. 1995) (“Thus, when the arbitrators 
                                                 
1 All capitalized terms have the same meaning as in the Petition.  
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strayed from the limitations imposed by the parties, they exceeded their powers.”). The Petition 
establishes that the Agreements limited the Arbitrator’s powers in three ways. The Arbitrator was 
required (1) to apply California law and “SBA Regulations” (as that term is defined in the Agreements); 
(2) to give controlling effect to “SBA Regulations,” notwithstanding any provision of the Agreements or 
California law to the contrary; and (3) to treat the “SBA Regulations” as express terms of the Agreements. 
(Petition at 27-28.)2  
 
Benworth’s vacatur arguments are all founded on the Arbitrator straying from these three 
limitations. For example, the Arbitrator violated the first limitation when he outright refused to apply the 
SOPs’ examples of lender services providers to Womply’s conduct. (See id. at Part I.B.3.)3 With respect 
to applying the Agent Fee Cap and concluding Womply is not a lender service provider, the Arbitrator 
strayed from the second limitation by giving controlling effect to conflicting terms in the Agreements 
instead of the plain language of SBA Regulations. (See id. at Parts I.A.3.iii; I.B.4.) In concluding that he 
would still award Womply additional fees even if Womply is a lender service provider, the Arbitrator 
elevated conflicting California law over the controlling SBA Regulations in violation of the second 
limitation. And the Arbitrator generally strayed from the third limitation by not treating the SBA 
Regulations as express terms of the Parties’ bargain. Under these circumstances, “‘where the arbitrator 
exceeds the express limitations of his contractual mandate, judicial deference is at an end,’ and 
jurisdictional challenges focusing on whether an award is grounded in a contract are considered de novo.” 
Thomas Kinkade Co. v. Hazlewood, 2007 WL 9812853, at *7 (N.D. Cal. June 6, 2007) (quoting Delta 
Queen Steamboat Co. v. Dist. 2 Marine Eng’rs Beneficial Ass’n, 889 F.2d 599, 602 (9th Cir. 1989)). 
 
This Court is also not required to enforce an award that is “legally irreconcilable with the 
undisputed facts.” Coutee v. Barington Cap. Grp., L.P., 336 F.3d 1128, 1133 (9th Cir. 2003). “[B]ecause 
facts and law are often intertwined, an arbitrator’s failure to recognize undisputed, legally dispositive 
facts may properly be deemed a manifest disregard for the law.” Id. In such cases, “the arbitrator’s 
                                                 
2 Womply disputes only the third limitation on the Arbitrator’s powers, but that argument fails for the 
reasons described below. See infra, Part I.B. 
3 The SOPs that the Arbitrator ignored are “SBA Regulations” as the Parties contractually defined that 
term. (See Petition, pp. 27-28, n.5.) 
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conclusions would not be entitled to the deference ordinarily accorded and would not bind this court.” 
Am. Postal Workers Union AFL-CIO v. U.S. Postal Serv., 682 F.2d 1280, 1285 (9th Cir. 1982). Such is 
the case here. Notably, Womply does not dispute that the foregoing remains valid and binding Ninth 
Circuit precedent. 
 
Moreover, “[a]lthough an arbitrator has great freedom in determining an award, he may not 
‘dispense his own brand of industrial justice.’” Pac. Motor Trucking Co. v. Auto. Machinists Union, 702 
F.2d 176, 177 (9th Cir. 1983) (“Because the award conflicts directly with the contract, the court properly 
vacated the award.” (emphasis added)). For example, an arbitrator has no power to disregard federal 
regulations incorporated into a contract “to achieve a desired result.” Aspic Eng’g & Constr. Co. v. ECC 
Centcom Constructors LLC, 913 F.3d 1162, 1167-68 (9th Cir. 2019). Indeed, the Ninth Circuit draws a 
distinction between arbitrations that merely determine “the competing interests of two opposing parties” 
from those that also “require[] an adjudication of the coverage and application of a federal law passed by 
Congress . . . .”  Am. Postal 682 F.2d at 1285. Where an arbitrator’s decision conflicts with federal law, 
it cannot stand: “We cannot empower the arbitrator to nullify the mandates of Congress . . . .” Id. 
(emphasis added).  
 
Benworth’s arguments on why the Arbitrator exceeded his powers all fall within the above-
described exceptions to the general deference ordinally accorded arbitral awards. Benworth is not asking 
the Court to re-weigh the evidence, but instead to apply the plain meaning of the Agreements to the 
undisputed facts, which the Arbitrator failed to do. This Court has the authority to do just that.  
B. 
The “SBA Regulations” Are Express Terms Of The Agreements. 
 
The Arbitrator was required to treat the SBA Regulations, including the SOPs, as actual terms of 
the Parties’ bargain because they were expressly incorporated into the Agreements. Womply disputes 
this, citing the choice-of-law provision stating “that the Agreements were governed by California law 
and ‘subject to all Applicable Laws, including SBA Regulations[,]’” which Womply concedes include 
the SOPs. (Opp. at 20.) Womply claims this did not make the SOPs a contract provision, “just as it did 
not render every decision published in California’s 174 years of jurisprudence into a contractual 
provision.” (Id.) Womply also claims that, in any event, this Court is still not permitted to review the 
Arbitrator’s interpretation of the SOPs. (Id.) Womply is wrong on both accounts. 
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First, the SBA Regulations, including the SOPs, are contract provisions that were incorporated 
into the Agreements.  “Under California law, the terms of an extrinsic document may be incorporated by 
reference in a contract if: ‘(1) the reference is clear and unequivocal, (2) the reference is called to the 
attention of the other party and he consents thereto, and (3) the terms of the incorporated document are 
known or easily available to the contracting parties.’” Fowler v. Wells Fargo Bank, N.A., 2017 WL 
3977385, at *3 (N.D. Cal. Sept. 11, 2017) (quoting DVD Copy Control Ass’n, Inc. v. Kaleidescape, Inc., 
176 Cal. App. 4th 697, 713 (Cal. Ct. App. 2009)). “This may include specific statutes or regulations.” Id. 
 
The Agreements reflect that the Parties clearly intended to incorporate the SBA Regulations as 
contractual provisions. The choice-of-law clause specifically identifies the SBA Regulations. (App. 3984, 
§ 9.) Womply not only drafted the Agreements, thereby manifesting its consent to be bound by the SBA 
Regulations, but also expressly committed to “exercise all best efforts to comply with all regulatory 
requirements of the PPP” (App. 3982) and agreed to return any fees that the SBA “determines were not 
in compliance with applicable SBA and/or PPP Loan Program Requirements” (App. 3983, § 2.3). Finally, 
the SBA Regulations are known to the Parties and publicly available to them. Thus, unlike Womply’s 
amorphous reference to “California’s 174 years of jurisprudence,” the Parties specifically identified and 
agreed to be bound by the SBA Regulations governing the PPP. 
 
Second, treating the SBA Regulations as express terms of the Agreements carries legal 
significance. “When language of a statute or regulations is incorporated in a contract, such language 
establishes contractual rights and obligations apart from its legal identity as part of a statute or 
regulation.” Serv. Emps. Int’l Union, Loc. 99 v. Options—A Child Care & Hum. Servs. Agency, 200 Cal. 
App. 4th 869, 879 n.6 (2011); see also 300 DeHaro St. Invs. v. Dep’t of Hous. & Cmty. Dev., 161 Cal. 
App. 4th 1240, 1256 (2008) (“When statutory language is included in a contract, it assumes a new legal 
identity: that of contractual language.”). Although a court may not review erroneous legal interpretations, 
it is not so constrained when reviewing implausible interpretations of a contract. Courts only “enforce an 
arbitration award if it represents a plausible interpretation of the contract in the context of the parties’ 
conduct” and an “award that conflicts directly with the contract cannot be a ‘plausible interpretation.’” 
Pac. Motor Trucking, 702 F.2d at 177. 
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Here, Benworth demonstrates that the Final Award directly conflicts with the Agreements and 
that, therefore, the Arbitrator’s interpretations of the SBA Regulations (including the SOPs) are 
implausible. Under these circumstances, the Court is neither bound by, nor required to, defer to the 
Arbitrator’s implausible interpretations. See supra Part I.A.   
C. 
The Agent Fee Cap Applies To The Technology Fees.  
The Agent Fee Cap limited the “total amount that an agent may collect from the lender for 
assistance in preparing an application for a PPP loan (including referral to the lender)” to “[o]ne (1) 
percent for loans of not more than $350,000[.]” Paycheck Protection Program as Amended by Economic 
Aid Act, 86 Fed. Reg. 3709, (Jan. 14, 2021). In the Petition, Benworth walked the Court through each 
PPP loan application requirement and surveyed the undisputed facts showing that the Technology 
Services were each used to prepare the PPP loan application and to determine which lender to refer an 
applicant to, if at all. (Petition, Parts I.A.1-2.) Womply does not argue that Benworth misstated the 
requirements for a PPP loan application. Nor does Womply dispute or otherwise challenge the facts 
Benworth relied on regarding the nature of the Technology Services. 
Womply instead argues that the Arbitrator correctly concluded that the Agent Fee Cap applies 
only to fees for services an agent provided to a borrower and that Benworth received a benefit from the 
Technology Services. (Opp. 11-12.) But the plain language of the Agent Fee Cap contains no such 
limitation concerning who received or benefitted from the services. Beyond that, whether the 
Technology Services also provided a benefit to Benworth is irrelevant. Of course, Benworth received a 
benefit in the form of not having to prepare the application itself. That does not change the fact that, as 
Womply’s CEO testified, all the Technology Services were implemented before an applicant was 
referred to a lender and thus assisted the borrower in applying for a PPP loan. (App. 3996-97, ¶¶ 18-19.) 
In fact, the Arbitrator defined “Technology Services” with reference to the definition set forth in the 
Agent Agreement. (Final Award at 4, n.3.) And the Agent Agreement expressly listed “providing loan 
applicants” with Womply’s technology platform as one of the Technology Services. (Id. at 18.) 
The Opposition’s remaining arguments fare no better. Womply, like the Arbitrator, raises a 
variety of arguments that purportedly show that applying the Agent Fee Cap to the Technology Fees 
would conflict with other provisions of the Agreements and California law. (See Opp., Part I.A.) 
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However, the Arbitrator’s contractual mandate was to give controlling effect to the SBA Regulations, 
including the Agent Fee Cap, even where they conflict with other terms of the Agreements or California 
law. (App. 3984, § 9.) The Arbitrator was thus without the power to give controlling effect to terms of 
the Agreements or California law that conflict with applying the Agent Fee Cap to the Technology Fees.  
Finally, Womply argues that the Arbitrator correctly applied OTO Analytics, Inc. v. Capital Plus 
Financial, LLC, 2022 WL 1488441 (N.D. Tex. May 11, 2022) and, even if he did not, that decision is 
not a binding precedent, so the Arbitrator could manifestly disregard it. (Opp. at 14-15.) On the latter, 
during the Arbitration, Womply convinced the Arbitrator that Capital Plus was a decision he was bound 
by (App. 459:15-460:5), so Womply should not be permitted to disclaim the precedential value of 
Capital Plus here. In any event, as explained in the Petition, the Arbitrator disregarded the legal 
determinations made by the Capital Plus court that were harmful to Womply. (Petition, Part I.A.3.i.) 
For example, the Arbitrator blithely ignored Capital Plus’s legal analysis that broadly defined the term 
“preparing” in reference to PPP loans under the SBA Regulations that adopted the Agent Fee Cap. 
Capital Plus, 2022 WL 1488441 at *6 (holding that to “prepare” means to “make ready”); see also id. 
(explaining that Womply “made ready” PPP loan applications for approval by a lender “by verifying 
information to prevent fraud”).  
At bottom, the Arbitrator failed to apply the plain meaning of the Agent Fee Cap to the 
undisputed, legally dispositive facts, resulting in an irrational award that does not draw its essence from 
the Agreements and manifestly disregards the law. 
D. 
The Final Award Establishes That Womply Acted As A Lender Service Provider.  
As established in the Petition, the only conclusion which the facts of this case can support is that 
Womply acted as a lender service provider. (Petition, Part I.B.) The Arbitrator nonetheless reached the 
opposite conclusion for four reasons, each of which was debunked in the Petition. (See id.) Womply’s 
efforts to revive the Arbitrator’s reasoning fail. Only Womply’s arguments concerning underwriting and 
the SOPs merit a response, however.4 
                                                 
4 Womply also attempted to justify the Arbitrator’s implausible definition of “originating” but did not 
meaningfully respond to the issues raised in the Petition. (Compare Petition, Part I.B.1 with Opp., Part 
I.B.1.) In addition, Womply claims that the Arbitrator properly relied on conflicting terms of the 
 
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Underwriting. Womply makes two arguments to support the Arbitrator’s conclusion that it did 
not engage in underwriting. Neither has merit. First, Womply attempts to downplay the effect of the 
Arbitrator’s conclusion that “Womply’s technology to some extent electronically performed” the 
functions of underwriting a PPP loan by juxtaposing it with the Final Award’s statement that “Womply 
provided Benworth with technology that to some extent automated and assisted Benworth” with 
underwriting functions. (Opp. at 18.) Womply then compares its technology to lawyers using Westlaw: 
“Just as a lawyer uses technology like Westlaw to practice law, Benworth used Womply’s technology 
to perform underwriting. That does not make Westlaw a lawyer, nor does it make Womply an 
underwriter.” (Id.) Womply is comparing apples to oranges.  
Westlaw is a passive technology platform in which an individual would have to input information 
into Westlaw, obtain search results, and then analyze them. Womply was no Westlaw. Womply utilized 
various services, including Lexis Nexis, to request verifying information from applicants, verified that 
information, and then sent only those applicants who met the requirements for PPP and who were 
validated as legitimate borrowers to lenders like Benworth. The two companies could not be more 
different, and Womply’s attempt to argue that Westlaw would check the same boxes as its technology 
is manifestly untrue. 
Womply also argues that the SBA could not have intended for the PPP-specific underwriting 
rules to apply to the SOPs’ examples of lender service providers that include the term underwriting. But 
Womply offers no support for that argument. Nor could it. The Arbitrator specifically concluded that 
the SOPs contain “policies and procedures governing the PPP.” (Final Award at 9. (emphasis added)) 
And the limited requirements for underwriting a PPP loan were contained in the Interim Final Rule, 
which “supersede[d] any conflicting Loan Program Requirement (as defined in 13 CFR 120.10).” 
(App. 3851 (emphasis added).) Congress and the SBA thus clearly intended for the PPP-specific 
underwriting rules to apply to the SOPs’ examples of lender service providers. This represents another 
inartful attempt by Womply to convince the Court—as it did the Arbitrator—to ignore the plain meaning 
of the contract it wrote, signed, and agreed to be bound by.  
                                                 
Agreements and the Parties’ course of performance. (See Opp., Part I.B.4.) Once again, Womply 
overlooks that the SBA Regulations, including the SOPs, take precedence over all else. 
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The SOPs. Womply next asserts that the Arbitrator did not disregard the SOPs, he just interpreted 
them in a way that rendered them inapplicable to Womply. (Opp. at 19.) Womply also argues that the 
Arbitrator could not have manifestly disregarded the law because the SOPs do not carry the force of law 
and, even if they were terms of the Agreements, this Court may not review the Arbitrator’s interpretation 
of the SOPs. (Id. at 20.) Womply is wrong again.  
When federal regulations or even definitions from trade rules are incorporated into a contract, 
those regulations and definitions form a part of the contract and govern the parties’ relationship. For 
example, the Ninth Circuit has affirmed the vacatur of an award where the arbitrator disregarded the 
trade rules in the parties’ contract and those trade rules included definitions for commonly used terms. 
See Coast Trading Co. v. Pac. Molasses Co., 681 F.2d 1195, 1198 (9th Cir. 1982). By way of further 
example, in Aspic, the Ninth Circuit affirmed the vacatur of an award where the arbitrator refused to 
strictly enforce the regulatory requirements incorporated into the parties’ agreement because doing so 
“would result in a forfeiture and unfairness” to the less sophisticated party. Aspic Eng’g & Constr. Co. 
v. ECC Centcom Constructors LLC, 913 F.3d 1162, 1168 (9th Cir. 2019). 
The same reasoning in Coast Trading and Aspic applies here. The Arbitrator disregarded the 
SOPs to achieve a desired result. The SOPs contain a provision on compensating lender service 
providers (which, again, the Parties expressly incorporated into their Agreements): “An LSP may only 
receive compensation from the 7(a) Lender for services provided under an SBA-reviewed LSP 
Agreement.” (App. 3442.) Prior to issuing the Interim Award, the Arbitrator announced his 
interpretation of the provision: “That seems pretty emphatic. That seems to say, if you don’t have an 
approved agreement, you don’t get paid.” (App. 2801:12-18.) But the Arbitrator believed that enforcing 
this provision “would result in a disproportionately harsh penalty” to Womply. (App. 3158.) So, the 
Arbitrator concocted an array of implausible justifications to conclude that Womply was not a lender 
service provider subject to the SOPs’ condition precedent to compensation. But, as explained in the 
Petition, none of those justifications are grounded in the controlling terms of the Agreements. 
Simply put, Womply meets the SOPs’ examples of what the SBA considers to be a lender service 
provider. Had the Arbitrator strictly construed the SOPs, as he pledged to do, it would be inescapable 
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that Womply qualifies as a lender service provider. This Court is not bound by the Arbitrator’s contrary 
conclusions.  
E. 
The Final Award Grants Relief Not Permitted by the Agreements. 
Benworth argued that the Final Award grants relief not permitted by the Agreements because 
SBA Regulations (which, again, are express terms of the Agreements) do not permit an agent to collect 
fees from a lender under compensation agreements that were not submitted to or approved by the SBA. 
(Petition, Part I.C.) It is undisputed that the Agreements were not submitted to or approved by the SBA. 
Yet, the Arbitrator awarded Womply additional fees under the Agreements. Despite responding to all 
other Sections of the Petition, Womply has no response at all to this specific argument. For this reason 
alone, the Court should vacate the Final Award. See Wise v. MAXIMUS Fed. Servs., Inc., 445 F. Supp. 
3d 170, 199 (N.D. Cal. 2020) (holding that a party waived its opposition to an argument by not 
addressing it in a response). 
II. 
THE FINAL AWARD VIOLATES EXPLICIT, WELL-DEFINED PUBLIC POLICY. 
 
Benworth identified two explicit, well-defined public policies that militate against the relief 
ordered by the Final Award. The first is an SBA Regulation that requires Agents, including lender service 
providers, to provide compensation agreements to the SBA for its review. 13 C.F.R. 103.5(a) (“Any 
Applicant, Agent, or Packager must execute and provide to SBA a compensation agreement, and any 
Lender Service Provider must execute and provide to SBA a Lender Service Provider agreement.”). 
Courts “uniformly hold” that the failure to comply with this regulation “precludes any recovery of SBA 
fees.” Capital Plus, 2022 WL 1488441 at *7 (collecting cases). Womply has no response to its failure to 
comply with this regulation and vacatur of the Final Award is warranted on this basis alone. See Wise, 
445 F. Supp. 3d at 199 (holding that a party waived its opposition to an argument by not addressing it in 
a response). 
 
The next policy is grounded in the SOPs’ provision on how lender service providers may be 
compensated: “An LSP may only receive compensation from the 7(a) Lender for services provided under 
an SBA-reviewed LSP Agreement.” (App. 3442.) Womply claims this is not a well-defined public policy 
that prohibits compensating a lender service provider, relying on the Arbitrator’s reasoning that this 
provision protects borrowers and does not say an agreement is illegal or invalid if not submitted to the 
Case 4:24-cv-04840-AMO     Document 33     Filed 09/09/24     Page 10 of 12

 
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SBA. (Opp. at 22-23.) Notwithstanding, the Arbitrator agreed this policy is explicit and well-defined: 
“That seems pretty emphatic. That seems to say, if you don’t have an approved agreement, you don’t get 
paid.” (App. 2801:12-18.) And the Arbitrator expressly characterized the SOPs as a document containing 
“policies and procedures governing the PPP.” (Final Award at 9 (emphasis added).) Thus, the SOPs’ 
policy on not compensating lender service providers without an agreement submitted to the SBA controls. 
If confirmed, the Final Award requires Benworth to violate SBA Regulations. 
III. 
THE ARBITRATOR SHOULD HAVE POSTPONED THE PROCEEDINGS.  
Finally, Benworth argued that the Arbitrator was guilty of misconduct in refusing to postpone 
the Final Award pending the completion of the SBA’s investigation into Womply because it foreclosed 
Benworth from presenting pertinent and material evidence. (Petition, Part III.) Benworth primarily relied 
on Naing International Enterprises., Ltd. v. Ellsworth Associates., Inc., 961 F. Supp. 1, 3 (D.D.C. 1997), 
where the court vacated an award because the arbitrator did not grant a continuance pending a 
completion of the SBA’s investigation into one of the parties. Womply counters that Naing is 
distinguishable, and the Arbitrator reasonably declined to postpone the proceedings because the SBA 
has not yet completed its investigation. (Opp. at 23-24.) 
However, as Naing observed, “neither this Court nor the arbitration panel can allow the pursuit 
of an expedient adjudication to outweigh its obligation to ensure a just and fair one.” 961 F. Supp. at 5-
6. Here, the Arbitrator allowed expediency to outweigh his obligation to ensure a fundamentally fair 
hearing. Despite acknowledging the materiality of the results of the SBA’s investigation to the issues in 
the Arbitration and the prospect that those results could render his award “advisory,” the Arbitrator 
refused to defer his ruling until the SBA completed its investigation of Womply. In so doing, the 
Arbitrator not only foreclosed Benworth from presenting pertinent evidence and material, but the 
Arbitrator also usurped the role of the SBA and granted himself the authority to make final policy 
decisions about one of the most unprecedented government relief programs in American history.  
CONCLUSION 
For these reasons, and those detailed in the Petition, the Court should vacate the Final Award. 
 
 
Case 4:24-cv-04840-AMO     Document 33     Filed 09/09/24     Page 11 of 12

 
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Dated: September 9, 2024. 
Respectfully submitted, 
 
/s/ Dwayne A. Robinson 
 
 
 
Jorge L. Piedra (Florida Bar No. 88315) 
(Pro Hac Vice) 
jpiedra@kttlaw.com  
Dwayne A. Robinson (Florida Bar No. 99976) 
(Pro Hac Vice) 
drobinson@kttlaw.com  
Michael R. Lorigas (Florida Bar No. 123597) 
(Pro Hac Vice) 
mlorigas@kttlaw.com  
KOZYAK TROPIN & THROCKMORTON  
2525 Ponce de Leon Boulevard, 9th Floor  
Miami, Florida 33134  
Telephone: 305-372-1800 
 
 
 
-and- 
 
 
 
 
 
 
 
 
                                   Simon S. Grille (State Bar No. 294914) 
sgrille@girardsharp.com  
GIRARD SHARP LLP  
601 California Street, Suite 1400  
San Francisco, CA 94108  
Telephone: (415) 981-4800  
 
Attorneys for Benworth Capital Partners, LLC 
 
Case 4:24-cv-04840-AMO     Document 33     Filed 09/09/24     Page 12 of 12

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