Declaration regarding 23 MOTION regarding 14 Order, (to Dissolve Temporary Restraining… — Blueacorn Beringer (Dkt. 25)

Record facts

U.S. District Court for the Eastern District of North Carolina · No. 5:21-cv-00251-BO · Doc. 25 · 2021-06-17 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

BERINGER COMMERCE, INC., d/b/a Civil Action No. 5:21-cv-251-BO
BLUE ACORN, iCi,

Plaintiff,
VS.

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

Defendants.

DECLARATION OF JEFFREY MEYERSON

I, Jeffrey Meyerson, declare pursuant to 28 U.S.C. § 1746 as follows:

1. I am a partner in Radix Law, PLC, an Arizona-based law firm, located at 15205 N.
Kierland Blvd. Suite #200, Scottsdale, Arizona 85254. Radix Law serves as outside general counsel
to Fin Cap, Inc., Blueacorn PPP, LLC and Blue Oak Forest, LLC (collectively, the “Blueacorn
PPP Defendants”). I make this Declaration in support of the Blueacorn PPP Defendants’ Motion
to Dissolve the June 11, 2021 Temporary Restraining Order entered in favor of Plaintiff Beringer
Commerce, Inc. d/b/a Blue Acorn iCi (“BCI”). This Declaration is based upon my personal
knowledge. Each of the following statements is true and correct to the best of my own knowledge.

2. The Blueacorn PPP Defendants conduct business as a lender service provider that
helps customers compile loan application paperwork for Paycheck Protection Plan (“PPP”) loans.
The Blueacorn PPP Defendants connect technology and financial expertise to streamline the PPP

application process for small businesses, independent contractors, and the self-employed. The

Case 5:21-cv-00251-BO Document 25 Filed 06/17/21 Page 1of5
Blueacorn PPP Defendants are not a bank or a lender, and have partnered with several banks to
apply for and secure PPP loans for customers. Principally during the “second round” of PPP
funding which began only earlier this year, the Blueacorn PPP Defendants have successfully
processed more than $14 billion in pandemic PPP loans for more than 860,000 businesses.

3. As outside general counsel to the Blueacorn PPP Defendants, I was tasked with
dealing with allegations made by BCI leading to the above-captioned lawsuit.

4. On or about May 19, 2021, I was provided with a copy of a letter dated May 12,
2021 from counsel for BCI which enclosed a few mail items that had been forwarded to BCI by
mistake. The May 12 letter simply asked the Blueacorn PPP Defendants to update their contact
information so BCI did not receive these communications going forward. A true and correct copy
of that correspondence, without exhibits, is attached hereto as Exhibit A. The May 12 letter did
not mention any prior correspondence to the Blueacorn PPP Defendants. To the best of my
knowledge and belief, prior to the receipt of the May 12 letter, neither I nor anyone at the Blueacorn
PPP Defendants had any knowledge or awareness of BCI or its business and operations, or had
any contact with BCI or any of its representatives.

5. Thereafter, on or about May 27, 2021, I received a letter from Beth A. Stanfield,
counsel for BCI, dated May 26, 2021 (Dkt. 1, Ex. O).

6. On May 27, 2021, I contacted Ms. Stanfield via email regarding her May 26 letter.
A true and correct copy of the May 27, 2021 email from J. Meyerson to B. Stanfield is attached
hereto as Exhibit B.

7. In this email, I noted to Ms. Stanfield that “in your letter you stated that we received
an April 8, 2021 cease and desist and I cannot find that letter anywhere in our file. Can you please

send me a copy of that letter at your convenience. I will discuss with my client and respond to you

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but I would ask for an extension on your current June 1 response date as it will likely take more
time than 2 business days for my client to respond and/or complete the tasks that you are asking
of them. I look forward to hearing from you.” Id.

8. I received the April 8 letter (Dkt. 1, Ex. I) from Ms. Stanfield on Friday, May 28,
2021. Upon reviewing the April 8 letter, I determined that another attorney on behalf of BCI had
sent the April 8 letter by Federal Express to the address of the previous owners of the company
and that no one currently associated with the Blueacorn PPP Defendants had actually received the
April 8 letter.

9. It is important to note that a search of the Arizona Corporation Commission would
have revealed the registered address for Blueacorn PPP, LLC, which is c/o Radix Law, with an
address of 15205 N. Kierland Blvd, Ste. 200, SCOTTSDALE, AZ 85254. I would also point out
that this was one of the addresses to which the May 12 and May 26 letters were sent to.

10. I also received an email dated May 28, 2021 from Ms. Stanfield in which she
requested clarification of certain items, and stated, “Once we receive clarification on these items,
we will discuss your request for some additional time to respond to our second Cease & Desist
letter.” A true and correct copy of the email dated May 28, 2021 from B. Stanfield to J. Meyerson
is attached hereto as Exhibit C.

11. Thereafter, on or about June 1, 2021, I had a telephone conference with Ms.
Stanfield during which I advised her that no one currently associated with the Blueacorn PPP
Defendants actually received the April 8 letter sent on behalf of BCI. I further discussed with Ms.
Stanfield the very high level of internet traffic that the Blueacorn PPP website receives (over 1
million hits daily), as well as the fact that over a half-million texts and emails are sent daily to and

from customers of the Blueacorn PPP Defendants.

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12. Our conversation was centered on the fact that the Blueacorn PPP Defendants had
no intention to cause BCI any issues and that we would appreciate a collaborative approach to
determine the best course moving forward. I expressed to Ms. Stanfield that changing the name
of Blueacorn PPP immediately would actually create more issues for BCI rather than less because
customers of the Blueacorn PPP Defendants would suddenly not be able to find the new contact
information. I suggested the possibility of putting a disclaimer on the website and in
communications and BCI doing the same. The Blueacorn PPP Defendants’ concern with the
immediate name change was that if it were no longer named “Blueacorn” that hundreds of
thousands of customers would believe that the Blueacorn PPP Defendants had disappeared, and
BCI would end up receiving an increase in the number of unwanted inquiries rather than a
decrease.

13. At the end of our call, I suggested to Ms. Stanfield that we discuss these points with
our clients and then reconvene to discuss possible solutions. Ms. Stanfield expressed concern over
the volume of communications being received by BCI, but stated she would discuss the issues with
her client. Following the call, and consistent with what Ms. Stanfield indicated in her May 28
email to me, I was waiting to hear from her as to whether BCI will allow additional time for the
Blueacorn PPP Defendants to respond to the cease and desist letter dated May 26, 2021.

14. I never stated that the Blueacorn PPP Defendants were unwilling to work with BCI
to alleviate BCI’s perceived issues being caused by the alleged infringing activity; rather I was
trying to engage with BCI’s counsel to come up with solutions that would actually achieve BCI’s
goal of reducing any issues they were experiencing.

15. | The very next communication that I got from Ms. Stanfield was her email dated

June 11, 2021 transmitting a courtesy copy of this lawsuit filed on behalf of BCI. Later that

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afternoon, I received a copy of the Temporary Restraining Order entered by the Court. I never
received any prior notice of BCI’s decision to file this lawsuit or the Motion for a Temporary
Restraining Order.

16. Ms. Stanfield never mentioned filing a Motion for Temporary Restraining Order
when we had our initial discussions. In fact, the April 8 letter contains no demand to cease use of
the name “Blueacorn.” Furthermore, the May 12 and May 26 letters makes no mention of seeking
a Temporary Restraining Order or any type of preliminary or permanent injunctive relief,
threatening only in the May 26 letter that BCI would seek monetary damages if litigation were to
be filed.

Li, Had the Blueacorn PPP Defendants been provided notice and an opportunity to be
heard on BCI’s request for a temporary restraining order, | would have immediately retained
counsel who would have appeared at a hearing and apprised the Court of the nature of the parties’
ongoing discussions, and presented argument in opposition to the Motion for Temporary
Restraining Order.

I declare under penalty of perjury that the foregoing is true and correct.

EXECUTED this the 17th day of June, 2021.

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