Response to Petition to Confirm Arbitration Award — OTO Analytics v. Benworth (N.D. Cal. No. 3:24-cv-03975)

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U.S. District Court for the Northern District of California · No. 4:24-cv-03975-AMO · Doc. 28 · 2024-07-23 · Docket on CourtListener

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BENWORTH’S RESPONSE TO WOMPLY’S PETITION TO CONFIRM ARBITRATION AWARD 
Case No. 3:24-cv-03975-AMO 
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Daniel C. Girard (State Bar No. 114826) 
dgirard@girardsharp.com 
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 
 
Jorge L. Piedra (Florida Bar No. 88315) 
(Pro Hac Vice Forthcoming) 
jpiedra@kttlaw.com  
Dwayne A. Robinson (Florida Bar No. 99976) 
(Pro Hac Vice Forthcoming) 
drobinson@kttlaw.com  
Michael R. Lorigas (Florida Bar No. 123597) 
(Pro Hac Vice Forthcoming) 
mlorigas@kttlaw.com  
KOZYAK TROPIN & THROCKMORTON  
2525 Ponce de Leon Boulevard, 9th Floor  
Miami, Florida 33134  
Telephone: (305) 372-1800 
 
Attorneys for Benworth Capital Partners, LLC
 
 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
SAN FRANCISCO DIVISION 
 
 
OTO ANALYTICS, LLC f/k/a OTO 
ANALYTICS, INC. d/b/a WOMPLY, 
 
 
 
 
Petitioner, 
 
 
v. 
 
BENWORTH CAPITAL PARTNERS, LLC, 
 
 
 
 
Respondent. 
Case No. 3:24-cv-03975-AMO 
 
BENWORTH’S RESPONSE TO 
WOMPLY’S PETITION TO CONFIRM 
ARBITRATION AWARD 
 
Hon. Araceli Martinez-Olguin 
 
Case 4:24-cv-03975-AMO     Document 28     Filed 07/23/24     Page 1 of 4

 
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BENWORTH’S RESPONSE TO WOMPLY’S PETITION TO CONFIRM ARBITRATION AWARD 
Case No. 3:24-cv-03975-AMO 
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Benworth files this response to Womply’s Petition to Confirm Arbitration Award (the “Petition”) 
(ECF No. 1) out of an abundance of caution, to preserve its rights should the Court deny Benworth’s 
Administrative Motion for Clarification/Extension of the Deadline to Respond (ECF No. 26). Benworth 
reserves the right to oppose confirmation based on new grounds that arise after the filing of this response. 
For the reasons outlined below, the Court should deny Womply’s Petition until it considers and 
adjudicates Benworth’s forthcoming motion to vacate the arbitration award.  
During the COVID-19 pandemic, the Small Business Administration (“SBA”) implemented the 
Paycheck Protection Program (“PPP”), so that small businesses could keep up with payroll and avoid 
layoffs during and immediately after the pandemic. Benworth, a lender licensed with the SBA, enlisted 
Womply to help it prepare and refer PPP loan applications to Benworth. 
A dispute arose between Benworth and Womply. Pursuant to their agreements, the parties aimed 
to resolve their differences in Arbitration. In a JAMS arbitration styled Oto Analytics, Inc. v. Benworth 
Capital Partners LLC, JAMS Ref. No. 1210038203, the arbitrator issued an interim award. After 
additional presentations by the parties, the arbitrator issued a final award on May 30, 2024. Almost a 
month later, on June 26, 2024, the arbitrator amended the final award (the “Amended Final Award”). 
On July 1, 2024, Womply filed its Petition to Confirm Arbitration Award (the “Petition”). ECF 
No. 1. That same day, Womply’s counsel emailed Benworth’s counsel requesting that Womply accept 
service via email. To induce Benworth to accept, Womply included a waiver of service of summons form, 
which Womply edited to include information related to the case such as the time period from which the 
60-day period to respond would occur (the “Waiver”). The Waiver required Benworth to respond to the 
Petition within 60 days of July 1, 2024. After conferring via email with Womply’s counsel, Benworth 
agreed to accept service on July 5, 2024. The final Waiver, which Womply filed with the Court (ECF 
No. 15), memorialized an understanding between the parties that Womply would avoid the effort and 
expense of serving Benworth, and in exchange Benworth would have “60 days from 7/5/2024” to respond 
to the Petition. Benworth’s response is due on September 3, 2024. 
Unfortunately, once the benefit of the Waiver to Womply had accrued, Womply decided that it 
no longer desires to wait for Benworth to respond within the 60-day timeframe. Beyond that, Womply 
asks this Court to address the Petition to Confirm an arbitration award before the Court decides whether 
Case 4:24-cv-03975-AMO     Document 28     Filed 07/23/24     Page 2 of 4

 
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BENWORTH’S RESPONSE TO WOMPLY’S PETITION TO CONFIRM ARBITRATION AWARD 
Case No. 3:24-cv-03975-AMO 
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the award is subject to vacatur under the Federal Arbitration Act (“FAA”). This Court cannot confirm an 
award that is vacated. Nor may it confirm an award before the period of time to seek vacatur and later 
adjudicate its merits. The FAA allows one year for a party to seek confirmation of an arbitration award 
and three months for a party to seek vacatur. 9 U.S.C.A. §§ 9,12. Under the FAA, the grounds to oppose 
confirmation are essentially the same grounds for vacatur. See 9 U.S.C. § 9 (stating that the FAA requires 
a court to confirm an arbitration award only if it has not been vacated, modified, or corrected); Bd. of 
Teamsters & Auto Truck Drivers Local No. 70 of Alameda Cnty. v. Celotex Corp., 708 F.2d 488, 490 
(9th Cir. 1983) (limiting defenses to confirmation to only those raised in timely petitions to vacate). It 
would be both legally erroneous and impractical to adjudicate the Petition to Confirm at this time before 
Benworth has had its statutory rights to submit its vacatur petition. In an abundance of caution, however, 
Benworth adopts all the grounds in its forthcoming and timely submitted Petition to Vacate as reasons to 
deny confirmation of the award.  
Requiring Benworth to respond before the statutory time has lapsed will significantly prejudice 
Benworth. The Amended Final Award is more than 70 pages in length and the issues it attempts to 
resolve are highly technical. Even two weeks are insufficient to ascertain whether additional defenses 
may exist under existing circuit precedent. 
 
Dated: July 23, 2024 
Respectfully submitted, 
/s/ Simon S. Grille 
 
 
 
Daniel C. Girard (State Bar No. 114826) 
dgirard@girardsharp.com 
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  
 
Jorge L. Piedra (Florida Bar No. 88315) 
(Pro Hac Vice Forthcoming) 
jpiedra@kttlaw.com  
Dwayne A. Robinson (Florida Bar No. 99976) 
(Pro Hac Vice Forthcoming) 
drobinson@kttlaw.com  
Case 4:24-cv-03975-AMO     Document 28     Filed 07/23/24     Page 3 of 4

 
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BENWORTH’S RESPONSE TO WOMPLY’S PETITION TO CONFIRM ARBITRATION AWARD 
Case No. 3:24-cv-03975-AMO 
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Michael R. Lorigas (Florida Bar No. 123597) 
(Pro Hac Vice Forthcoming) 
mlorigas@kttlaw.com  
KOZYAK TROPIN & THROCKMORTON  
2525 Ponce de Leon Boulevard, 9th Floor  
Miami, Florida 33134  
Telephone: (305) 372-1800 
 
 
Attorneys for Benworth Capital Partners, LLC 
 
Case 4:24-cv-03975-AMO     Document 28     Filed 07/23/24     Page 4 of 4

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