Exhibit 2 — Benworth's Motion to Disqualify William M. Manger, Jr. — OTO Analytics v. Benworth (N.D. Cal. No. 3:24-cv-03975)

Record facts

U.S. District Court for the Northern District of California · No. 4:24-cv-03975-AMO · Doc. 56-3 · 2024-09-13 · Docket on CourtListener

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EXHIBIT 2 
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JAMS ARBITRATION 
JAMS REF. NO. 1210038203 
 
 
 
 
 
 
 
 
 
 
BENWORTH’S MOTION TO DISQUALIFY  
WILLIAM M. MANGER, JR., AS WOMPLY’S EXPERT  
WITNESS OR, IN THE ALTERNATIVE, TO STRIKE HIS OPINIONS 
Respondent/Counter-Claimant Benworth Capital Partners, LLC (“Benworth”) moves to 
disqualify William M. Manger, Jr., from serving as an expert witness for Claimant/Counter-
Respondent Oto Analytics, Inc. d/b/a Womply (“Womply”) or, in the alternative, to strike his 
opinions. In support thereof, Benworth states: 
INTRODUCTION 
Womply’s claims against Benworth are contract disputes. The parties entered into a series 
of contracts that incorporate the rules and regulations of the U.S. Small Business Administration 
(the “SBA”) as express terms of those agreements. The agreements also specify that SBA 
regulations govern over conflicting law, including California law applicable to the agreements.  
The SBA adopted new regulations to implement the Paycheck Protection Program (“PPP”) 
during the COVID-19 pandemic. One of the PPP regulations capped at 1% the SBA lender fees 
that PPP lenders (like Benworth) making loans not exceeding $350,000 may share with its agents.  
Benworth and Womply dispute whether Womply is an agent under the SBA regulations. 
Oto Analytics, Inc. d/b/a Womply, 
 
Claimant/Counter-Respondent, 
 
v. 
 
Benworth Capital Partners, LLC, 
 
Respondent/Counter-Claimant. 
_______________________________________/ 
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Multiple SBA regulations characterize Womply as an agent. Womply contends that under a non-
PPP-related SBA guidance document it is, instead, a “technology service provider.” In any event, 
and as it pertains to the present motion, the SBA guidance expressly states that even technology 
service providers are “agents” if they perform underwriting.  
SBA rules define what “underwriting” is under the PPP. The parties agree that the 
definition of underwriting is substantially different under the PPP than under traditional SBA 
lending programs authorized by Section 7(a) of the Small Business Act. Through its rulemaking 
authority, however, the SBA provided that its PPP regulations would supersede any other 
conflicting SBA rules or regulations. Womply has proffered William J. Manger, Jr.—a former 
senior SBA official—to, among other things, express an opinion that conflicts with those (and 
other) SBA regulations, which the parties agree control and govern the contracts between 
Benworth and Womply. For instance, although the PPP rules specify that they supersede 
conflicting SBA rules, Manger proposes to tell this tribunal to ignore SBA rules and apply a 
definition of underwriting that is different from the one found in the governing PPP regulations. 
These opinions are inadmissible under California law. 
This tribunal should disqualify Manger and strike his opinions. As detailed below, SBA 
regulations expressly prohibit Manger from serving as an expert for Womply. Even if his opinions 
could be considered, they are unhelpful. For one, the parol evidence rule bars parties from offering 
evidence outside the contract to contradict its express terms. Nor may Manger, who was one of 
many government officials who participated in drafting SBA regulations, offer an expert opinion 
on his (or others’) subjective intent in adopting regulations. The express terms of the provisions 
apply. The parties agreed for you, the Arbitrator, to interpret the parties’ agreements—not Manger. 
And if Womply believed the agreements favored its position, it would not have hired someone to 
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tell you what they mean.  
BACKGROUND 
Congress established the PPP to offer government-backed loans to small businesses during 
the COVID-19 pandemic. The SBA guarantees SBA-approved loans. If a borrower defaults, the 
SBA pays the defaulted loan amount to the lender. But thousands of small, minority-owned 
businesses struggled to find banks that would approve their applications for PPP loans. The SBA 
sought to remedy that inequity during the second round of PPP funding.  
Benworth is a minority-owned SBA-approved PPP lender. As a lender to low- and middle-
income borrowers, Benworth was an ideal lender for the SBA under the PPP program. SBA lenders 
like Benworth must comply with SBA regulations. These regulations define the criteria SBA 
lenders must use to, for instance, review applications and fund loans. But SBA lenders have 
ongoing obligations, including servicing the loans throughout their life and assisting the SBA in 
any investigation of loans or borrowers. As a part of the program, the SBA compensates lenders 
by paying lender fees. But the SBA restricts how those fees may be shared. See infra at pp. 6-9 
(describing the PPP regulations at issue).  
A. 
Benworth Engages Womply In Connection With The Paycheck Protection 
Program 
In February 2021, during the second round of PPP funding, Benworth and Womply entered 
into an agreement for Womply to refer PPP loan applications to Benworth that had been prepared 
using Womply’s Fast Lane platform. See Agent Agreement (attached as Exhibit A to Appendix 
in Support of Benworth’s Motion to Disqualify William M. Manger, Jr., as Womply’s Expert 
Witness or, in the Alternative, to Strike His Opinions (“Appendix”)). The Fast Lane platform was 
available online and allowed borrowers to complete SBA loan applications by answering question 
prompts and uploading or attaching documents. Womply’s Fast Lane platform would then import 
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the responses into a loan application and verify the borrower’s representations through the use of 
third-party service providers. See, e.g., Transcript of Deposition of Toby Scammell (“Scammell 
Dep. Tr.”) at 57:9-13, 121:25 – 122:13, 215:5-9 (Sept. 10, 2022) (attached as Appendix 
Exhibit B). 
The February 2021 Womply agreement with Benworth defined Womply as an “Agent.” 
Agent Agreement at p. 1. It provided that “Agent [i.e., Womply] shall provide Lender [i.e., 
Benworth] with . . . services . . . relating to the packaging and processing of PPP loan 
applications . . . .” Id. at p. 2, § 5.  
The agreement says Womply will provide both “Processing Services” and “Technology 
Services.” As to Processing Services, Womply agreed to the following:    
• 
“Assisting each loan applicant in responding to questions about its eligibility under 
the PPP,” id. at p. 2, § 5(a)(ii);  
• 
“Providing loan applicants”—i.e., not providing Benworth—“a technology 
platform that offers the Technology Services (defined below),” id. at p. 2, § 5(a)(ii);  
• 
“Coordinating the collection and review of required due diligence documentation 
under the PPP . . . including documentation necessary for Lender to comply with 
application KYC/AML/BSA Laws,” id. p. 2, § 5(a)(iii) (emphasis added); 
• 
“Communicating with loan applicants regarding loan applications process and 
status, including without limitation SBA rejections, and responding to loan 
applicant questions in connection therewith,” id. at p. 2, § 5(a)(v); and 
• 
“Assisting Lender with the preparation and submission to the SBA of any reporting 
or documentation with respect to Included Loans, as required by SBA Regulations,” 
id. at p. 2, § 5(a)(vii) (emphasis added).  
As to Technology Services, Womply agreed to “make available to Lender and loan 
applicants a technology platform,” id. at p. 3, § 5(b), that conducted the following services (among 
others):  
• 
“Providing loan applicants”—again, not Benworth—“a technology platform into 
which loan applicants can input information necessary to complete its applicable 
borrower application form for the PPP,” id. at p. 3, § 5(b)(i);  
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• 
“Ensuring the collection of all certifications, documentation and other information 
necessary to complete the borrower application form and such other forms or 
documents as the SBA may require in connection with the origination of Loans 
under the PPP,” id. at p. 3, § 5(b)(ii); and 
• 
“Submitting on Lender’s behalf each borrower application through the SBA 
Paycheck Protection Program, or such other online platform as the SBA may 
designate for transmitting data to the SBA[,]” id. at p. 4, § 5(b)(x).  
The agreement provides for Womply to be paid both “agent fees” and “technology fees.” See id. 
at pp. 4-5, § 6(a)-(b). This agreement, like the others entered into by the parties, expressly adopted 
SBA regulations. Id. at p. 10, § 18.  
Approximately two months later, in April 2021, Womply provided Benworth with a series 
of agreements to replace the February 2021 agreement. These new agreements required Benworth 
to pay Womply referral fees, API (application program interface) fees, and technology fees. See 
Amended and Restated PPP Loan Referral Agreement (“Referral Agreement”) (attached as 
Appendix Exhibit C); Womply Developer Order Form (“Order Form”) (attached as Appendix 
Exhibit D). Womply also added language reciting that it “was not a lender service provider.” 
Referral Agreement at § 1.3; Order Form at § 1.3. The agreements, however, remained subject to 
SBA regulations. Referral Agreement at § 9; Order Form at § 4. Indeed, Womply continued to 
provide the exact same services—through the Fast Lane platform—under the new agreements that 
it did under the initial agreement despite language in the new, operative documents providing that 
Benworth had the “ultimate” (but not the sole) responsibility for underwriting. See Transcript of 
Deposition of Cory Capoccia (“Capoccia Dep. Tr.”) at 167:16 – 168:8 (Sept. 21, 2022) (attached 
as Appendix Exhibit E); Referral Agreement at p. 1. The agreements were fully integrated. E.g., 
Referral Agreement at § 16.  
B. 
Womply’s New Fee Schedules Exceed The Lender Fees SBA Provided 
Womply has acknowledged to this Arbitrator that its fee regime was flawed. It now says it 
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will not seek fees that it previously claimed under the April 2021 agreements in instances where 
Benworth would have to pay Womply a greater share of lender fees than Benworth received from 
the SBA. See Womply’s Letter to Arbitrator at 4 n.2 (Dec. 21, 2022). Womply recognizes that 
such a fee structure would conflict with the goals of the PPP program.  
Similarly, under certain instances, Womply’s agreements required Benworth to pay it all 
of the SBA lender fees Benworth received. See Transcript of Deposition of Mildred J. Avila at 
69:25 – 70:2-10 (Sept. 14, 2022) (attached as Appendix Exhibit F). Womply demanded a 
payment structure that would lead Benworth to pay Womply more than 90% of the SBA lender 
fees Benworth received despite Benworth’s ongoing loan servicing responsibilities and obligations 
to the SBA. See infra at pp. 7, 10 (discussing Congressional Report).  
Womply’s fee structure threatened Benworth’s ability to continue participating in the PPP. 
The smaller the value of the loan, the greater proportion of SBA fees Benworth had to pay Womply 
under the new fee structure. See, e.g., Transcript of Deposition of Bernardo Navarro (“Navarro 
Dep. Tr.”) at 119:8 – 120:17, 126:4 – 127:13 (Oct. 26, 2022) (attached as Appendix Exhibit G). 
Excessive agent fees could discourage lenders like Benworth from funding the smaller loans that 
were critical to the PPP’s success, and that prompted Congress to implement a second round of 
PPP funding. Indeed, Womply’s expert (Manger) conceded that the refusal of SBA lenders (like 
Benworth) to fund SBA-approved loans—regardless of their size—is not authorized and could 
result in penalties, such as suspending the lender from the SBA program. See Transcript of 
Deposition of William Manger, Jr. (“Manger Dep. Tr.”) at 104:2 – 106:8 (Jan. 6, 2023) (attached 
as Appendix Exhibit H). 
C. 
The SBA Adopts An Interim Final Rule For The PPP That Caps Agent Fees 
At 1% For Loans Not Exceeding $350,000 
In April 2020, pursuant to rulemaking authority delegated to it by Congress in the 
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Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), the SBA adopted an Interim 
Final Rule to implement the PPP. See Business Loan Program Temporary Changes; Paycheck 
Protection Program, 85 Fed. Reg. 20811 (Apr. 15, 2020) (the “Interim Final Rule”).1 The Interim 
Final Rule expressly “supersede[d] any conflicting Loan Program Requirement.” Id. at 20812 
(emphasis added). Benworth’s principal acknowledged that he was not initially aware that the 
Womply agreements were at odds with the SBA regulations the parties incorporated into their 
agreements. See Navarro Dep. Tr. at 95:13-18.  
Normally, under SBA regulations and Standard Operating Procedures, “lender 
underwriting and lending criteria are focused on a borrower’s creditworthiness and ability to repay 
the loan with earnings from their business.” Select Subcommittee on the Coronavirus Crisis, “We 
Are Not The Fraud Police”: How Fintechs Facilitated Fraud In The Paycheck Protection Program 
at 8-9 (Dec. 2022) (hereinafter, the “Congressional Report”); see Small Business Administration, 
Office of Capital Access, Lender and Development Company Loan Programs at 246-56 (Oct. 1, 
2020) (hereinafter, “SOP 50 10 6” or the “SOPs”). But as the U.S. House of Representatives’ 
Select Subcommittee on the Coronavirus Crisis (the “Select Subcommittee”) found, “[g]iven the 
unique emergency nature of the PPP, the underwriting requirements for PPP loans differed greatly 
from those of traditional 7(a) loan programs.” Congressional Report at 8.  
The Interim Final Rule required limited underwriting for PPP loans. 83 Fed. Reg. at 20815. 
 
1  
The SBA adopted additional interim final rules in January 2021, after Congress extended 
the PPP and authorized second draws under the Economic Aid to Hard-Hit Small Businesses, 
Nonprofits, and Venues Act. But those additional rules did not materially alter the provisions at 
issue here, so Benworth refers to the 2020 Interim Final Rule for simplicity. See Business Loan 
Program Temporary Changes; Paycheck Protection Program as Amended by Economic Aid Act, 
86 Fed. Reg. 3692 (Jan. 14, 2021); Business Loan Program Temporary Changes; Paycheck 
Protection Program Second Draw Loans, 86 Fed. Reg. 3712 (Jan. 14, 2021). Unless otherwise 
noted, all citations are to the 2020 Interim Final Rule. 
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The table below shows the PPP underwriting requirements alongside the services Womply 
performed through its Fast Lane platform:  
Underwriting Requirements 
Did Womply  
Provide That Service? 
Source Of Authority 
Confirm 
receipt 
of 
borrower 
certifications, 83 Fed. Reg. at 20815 
(art. III.3.b.i.).  
✓ 
Scammell 
Dep. 
Tr. 
at 
122:19 – 123:15.  
Confirm 
receipt 
of 
information 
demonstrating 
a 
borrower 
had 
employees for whom the borrower 
paid salaries and payroll taxes on or 
around February 15, 2020, 83 Fed. 
Reg. at 20815 (art. III.3.ii.). 
✓ 
Scammell 
Dep. 
Tr. 
at 
121:25 – 122:13, 215:5-9. 
Confirm the dollar amount of average 
monthly 
payroll 
costs 
for 
the 
preceding calendar year by reviewing 
the payroll documentation submitted 
with the borrower’s application, 83 
Fed. Reg. at 20815 (art. III.3.b.iii.). 
✓ 
Scammell 
Dep. 
Tr. 
at 
90:15 – 91:15; see also 85 
Fed. 
Reg. 
at 
20812-13 
(detailing the calculation of 
the maximum PPP loans 
based on annual payroll).  
Establish an anti-money laundering 
(AML) compliance program, 83 Fed. 
Reg. at 20815 (art. III.3.b.iv.II.). 
✓ 
Capoccia Dep. Tr. at 138:1-
17, 167:16 – 168:6. 
Establish a customer identification 
program, including identifying and 
verifying borrowers’ identities, 83 
Fed. Reg. at 20815 (art. III.3.b.iv.II.). 
✓ 
Scammell Dep. Tr. at 57:9-
13. 
The Interim Final Rule provides that “[e]ach lender’s underwriting obligation under the PPP is 
limited to the items listed above [i.e., in article III.3.b.] and reviewing the ‘Paycheck Protection 
Application Form.’” 85 Fed. Reg. at 20815. Womply thus performed all the required underwriting 
functions for PPP loans.  
The Interim Final Rule also set limits on agent fees. Under the rule, “[a]gent fees will be 
paid by the lender out of the fees the lender receives from SBA.” 85 Fed. Reg. at 20816. It further 
provides:  
Agents may not collect fees from the borrower or be paid out of the PPP loan 
proceeds. The total amount that an agent may collect from the lender for assistance 
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in preparing an application for a PPP loan (including referral to the lender) may not 
exceed . . . [o]ne (1) percent for loans of not more than $350,000. . . . 
 
Id. The 1% fee cap for agents is not in dispute. These limits apply regardless of the underwriting 
or other services the agent provides. See id.  
D. 
The Parties Dispute Whether Womply Is an “Agent” Under SBA Regulations 
Under the plain language of the SBA regulations, Womply is an “Agent.” “Agent means 
an authorized representative, including a[] . . . lender service provider, or any other person 
representing an Applicant or Participant by conducting business with SBA.” 13 C.F.R. § 103.1(a) 
(2021). Conducting business with the SBA includes acting as lender service provider, as well as 
“[p]reparing or submitting on behalf of an applicant an application for financial assistance of any 
kind” and “[p]reparing or processing on behalf of a lender or a participant in any of SBA’s 
programs an application for federal financial assistance . . . .” Id. § 103.1(b)(1), (2), (4).  
The SBA also clarified the meaning of  “lender service provider.” Id. § 103.1(d). The SBA 
adopted specific guidance for agents who are lender service providers. See, e.g., SOPs at p. 185. 
The SBA SOPs offer a non-exhaustive list of lender service providers, such as:  
 
i.  
An individual or entity engaged by a 7(a) Lender to provide services 
for the purposes of obtaining Federal financial assistance that include interaction 
with the Applicant either in person or through the use of technology, to request or 
obtain eligibility and/or financial information that will be provided to the 7(a) 
Lender. This includes Agents who:  
a) Perform any pre-qualification review based on SBA’s eligibility and 
credit criteria . . . prior to submitting the Applicant’s information to the 
7(a) Lender; or  
b) Provide to the 7(a) Lender an underwritten application, whether through 
the use of technology or otherwise. 
 
ii. 
Entities providing technology services to a 7(a) Lender that include 
underwriting. 
 
iii. 
An individual or entity generates a significant number of 7(a) 
Lender’s loan originations. As a general rule, SBA considers a “significant number” 
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to be two-thirds (66%) or more of the 7(a) Lender’s loan originations for the prior 
12 months.  
SOPs at p. 185 (emphasis added); see also, e.g., 85 Fed. Reg. at 20816 (art. III.4.a.) (“Loans will 
be guaranteed under the PPP under the same terms, conditions and processes as other 7(a) 
loans . . . .”); 86 Fed. Reg. 3692, 3709 (art. III.D.1.) (Jan. 14, 2021 Interim Final Rule) (same). 
Womply squarely fits within each category of lender service provider. Compare SOPs at 
p. 185 (setting forth non-exhaustive list of lender service provider functions), with supra p. 8 (chart 
detailing underwriting services Womply provided). Moreover, far beyond two-thirds, Womply 
generated more than 95% of Benworth’s loans—a significant number of loans, as Womply’s 
expert conceded. See, e.g., Manger Dep. Tr. at 210:15-21, 211:23 – 212:9, 213:3-9.  
The Select Subcommittee’s report independently provides additional support for 
concluding that Womply was a lender service provider. Applying the SBA’s rules and definition 
of “agent,” including its definition of “lender service provider,” and the information provided by 
Womply, the Select Subcommittee concluded that Womply claimed to be a technology service 
provider to avoid accountability for its PPP-related actions, despite appearing to meet the 
definition of a lender service provider. See Congressional Report at 59-60. Indeed, following the 
Congressional Report, the SBA itself announced that it was “immediately suspend[ing] . . . 
Womply from working with the SBA in any capacity,” and would “be investigating appropriate 
action against [Womply’s] management, owners, and successor companies.”2  
Womply nevertheless claims it is neither a lender service provider nor any other type of 
 
2  
Small Business Administration, Press Release, U.S. Small Business Administration 
Statement on the House Select Subcommittee on the Coronavirus Crisis Report Concerning Fraud 
in 
the 
Paycheck 
Protection 
Program 
(Dec. 
8, 
2022), 
available 
at 
https://www.sba.gov/article/2022/dec/08/us-small-business-administration-statement-house-
select-subcommittee-coronavirus-crisis-report (last visited Jan. 24, 2023). 
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agent. Womply relies on the same provision of the SOPs discussed immediately above. The 
provision includes a notation that reads: “SBA does not consider entities providing technology 
services that do not include underwriting to be Agents.” SOPs at p. 185 (emphasis added). 
Attempting to fit within this language, Womply denies that it engages in underwriting. But 
Womply’s argument is not based on the relevant definition of “underwriting” for PPP loans, as 
prescribed by PPP-related rules. Instead, Womply contends it is not an underwriter under 
traditional SBA loan programs that differ from (and pre-date) the PPP. But the SBA regulations 
do not say that those extensive underwriting criteria apply to the PPP. So, Womply hired Manger 
to say it for them.   
E. 
Womply Submits Manger’s Expert Report   
William M. Manger, Jr., was a Trump administration political appointee to the SBA. See 
Expert Report of William M. Manger, Jr., Ex. A (“Manger Report”) (attached as Appendix 
Exhibit I). Manger worked at the SBA for eight years, including previously with the George W. 
Bush administration. Id. Manger oversaw implementation of the PPP, including the drafting and 
implementation of the Interim Final Rule, as well as the SOPs. Manger Dep. Tr. at 196:22-25. He 
claims to have read “every word” of the nearly 600 pages comprising the SOPs. Id. at 
164:25 – 165:1-8. But he was unable to identify any provision of the SOPs (or the interim final 
rules, which he also “pretty much . . . read every word” of, id. at 163:6-11) to support his opinions.  
Most recently, Manger served as the SBA chief of staff and as associate administrator of 
the SBA’s Office of Capital Access. Manger Report, Ex. A. Manger departed the SBA in 
January 2021 after President Trump left office. See Manger Dep. Tr. at 12:1-3. Womply hired him 
as its expert witness in the summer of 2022. Id. at 94:2-10. But Manger admitted (repeatedly) that 
he is not an expert on technology. E.g., id. at 28:15 (“I’m not a tech expert.”). He also testified that 
he was “not that familiar” with the technology services that Womply and others provided to PPP 
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lenders. Id. at 28:15-22. 
Manger’s expert report includes a number of opinions that either (a) expressly contradict 
the express terms of the SBA regulations incorporated into Benworth and Womply’s agreements 
or (b) are otherwise impermissible. Manger provides the following opinions (or variations 
thereon):  
1. “Based on my experience at the SBA, LSP [i.e., lender service provider] fees are not 
capped by any SBA regulation, rule, guidance, or practice.” Manger Report at ¶ 45. 
2. “[I]t is my opinion that, in addition to providing Benworth with referral services, 
Womply provided Benworth with extensive technology services that did not constitute 
the type of ‘assistance in preparing an application for a PPP loan (including referral to 
the lender)’ that the SBA was regulating with the Agent Fee Cap.” Id. at ¶ 55; see also 
id. at ¶ 57 (“Womply’s platform did more than prepare and refer applications.”). 
3. “While Womply provided technology services that collected and confirmed certain 
applicant information, that does not render Womply an underwriter of PPP loans or an 
LSP.” Id. at ¶ 65; see also id. at ¶ 64 (“[I]t is my opinion that Womply did not perform 
underwriting as that term is used in SOP 50 10 6.”).  
4. The designation as a lender service provider “would not have automatically capped 
Womply’s fees under any SBA rule or regulation.” Id. at ¶ 69.  
5. “Benworth will not have to return Fees to the SBA and will not lose the SBA guarantee 
for PPP loans as long as it acted in good faith.” Id. at p. 28 (boldface and capitalizations 
omitted).   
Benworth moves to disqualify Manger and strike his impermissible opinions.  
LEGAL STANDARD 
Adjudicative bodies, such as this one, have inherent authority and broad discretion to 
disqualify expert witnesses. See Amarel v. Connell, 102 F.3d 1494, 1515 (9th Cir. 1996); Koch 
Refin. Co. v. Jennifer L. Boudreau M/V, 85 F.3d 1178, 1181 (5th Cir. 1996); Cottini v. Enloe Med. 
Ctr., 226 Cal. App. 4th 401, 425-27 (2014). To be admissible, an expert’s testimony must “‘rest[] 
on a reliable foundation and [be] relevant to the task at hand.’” Elosu v. Middlefork Ranch Inc., 26 
F.4th 1017, 1024 (9th Cir. 2022) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 
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597 (1993)). “‘Expert opinion testimony is relevant if the knowledge underlying it has a valid 
connection to the pertinent inquiry. And it is reliable if the knowledge underlying it has a reliable 
basis in the knowledge and experience of the relevant discipline.’” Alaska Rent-A-Car, Inc. v. Avis 
Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013). Ultimately, expert testimony must “help the 
trier of fact understand highly specialized issues that are not within common experience.” Elosu, 
25 F.4th at 1026. 
ARGUMENT 
Benworth requests that you disqualify Manger as an expert or, alternatively, strike his 
impermissible opinions. You should do so for two reasons. First, SBA regulations prohibit 
Womply’s retention of Manger. And second, Manger’s opinions are impermissible under 
governing law and will be of no assistance to this tribunal.  
I. 
Manger’s Testimony Violates SBA Regulations 
SBA regulations preclude Manger from offering expert testimony on behalf of Womply. 
The relevant regulation prohibits former SBA employees from representing recipients of SBA 
assistance within two years after leaving the SBA. The regulation provides in relevant part: 
No former employee, who occupied a position involving discretion over, or who 
exercised discretion with respect to, the granting or administration of SBA 
Assistance may occupy a position as employee, partner, agent, attorney or other 
representative of a concern which has received this SBA Assistance for a period of 
two years following the date of granting or administering such SBA Assistance if 
. . . [t]he date of granting or administering such SBA Assistance was within the 
period of the employee’s term of employment . . . . 
13 C.F.R. § 105.202(a)(1) (2021) (emphasis added). 
The SBA defines “SBA Assistance” broadly. “SBA Assistance means financial, 
contractual, grant, managerial or other aid, including size determinations, section 8(a) 
participation, licensing, certification, and other eligibility determinations made by SBA. The term 
also includes an express decision to compromise or defer possible litigation or other adverse 
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action.” 13 C.F.R. § 105.201(e) (2021). 
Manger is indisputably subject to this SBA regulation. By his own admission, he is a former 
SBA employee who, as the head of the Office of Capital Access, occupied a position involving 
discretion with respect to the operation and implementation of the PPP. Manger Dep. Tr. at 23:6-
9 (“[A]t the end of the day the setting of policy was . . . dictated by those that headed up the various 
arms of the agency such as the Office of Capital Access.”); id. at 78:7-10 (“I was the head of 
Capital Access and I was the one that was playing a very large role of implementing the Paycheck 
Protection Program at the SBA during the—the pertinent time.”). And, through his retention in 
this arbitration, Manger is working as an agent for Womply within two years of his departure from 
the SBA. See id. 94:2-10  
Womply may argue that it was not the beneficiary of the “granting or administering” of 
SBA Assistance. 13 C.F.R. § 105.202(a)(1) (emphasis added). But it cannot plausibly be disputed 
that Womply received some SBA Assistance. The SBA announced that it was suspending Womply 
from working with the SBA in light of the House Select Subcommittee’s Congressional Report 
detailing Womply’s transgressions with respect to the PPP. See supra at pp. 7, 10. The SBA cannot 
suspend an entity if it had never provided SBA Assistance. Notwithstanding that, it is undisputed 
that Womply received approximately $2 billion in processing fees through the administration of 
the PPP program that Manger oversaw. See Congressional Report at 4-5, 45-47.3 The Select 
Subcommittee’s report, for instance, notes that, “by improperly categorizing itself as a ‘technology 
service provider,’ [Womply] was able to demand a payment structure that would lead to ‘Benworth 
pay[ing] Womply more than 90% of the total fee collected’ from certain PPP loans.” Congressional 
 
3  
Womply informed the Select Subcommittee that “the vast majority of its revenue—
$1.9 billion in 2021—was ‘PPP Technology Service Revenue’ from the PPP Fast Lane.” 
Congressional Report at  47. 
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Report at 60 (second alteration in original).  
Womply received SBA Assistance by other means as well. SBA Assistance encompasses 
any aid, including contractual aid or eligibility determinations by the SBA. See 13 C.F.R. 
§ 105.201(e). Womply applied to the Office of Capital Access that Manger oversaw for approval 
as an SBA lender during the PPP program. Scammell Dep. Tr. at 29:1-7. Thus, the SBA 
administered assistance to Womply by reviewing its application. Whether that application was 
granted is irrelevant. The SBA regulations at issue apply to the “granting or administering” of 
SBA Assistance. 13 C.F.R. § 202(a)(1) (emphasis added). Womply also admitted that it received 
advice from Bill Briggs, an SBA political appointee who served as Manger’s deputy. Manger Dep. 
81:23 – 83:18 (testifying that Manger supervised Briggs, who worked in the Office of Capital 
Access; first, as Manger’s senior advisor and then as one of Manger’s two deputies). Womply’s 
CEO described discussions with Bill Briggs (and others at the SBA) that began as early as 
December 2020 “about the role that Womply had played and the role that we wanted to play in 
order to get as many [PPP] loans to the most underserved . . . as we could.” Scammell Dep. Tr. at 
190:1 – 192:10.     
Because SBA regulations prohibit Manger from working with or for Womply in this 
arbitration, he should be disqualified from offering any expert testimony on Womply’s behalf. 
Manger confirmed that the SBA did not authorize his engagement with Womply—in fact, Manger 
did not even inquire with the SBA. See Manger Dep. Tr. at 97:15-19. Despite claiming to have 
read every word of various SBA SOPs and rules, Manger admitted he was unaware of the 
employment restriction contained in 13 C.F.R. § 105.202. See Manger Dep. Tr. 91:18-21. 
II. 
Manger Should Not Be Permitted To Offer An Opinion That Would Contradict The 
Plain Terms Of The Parties’ Contracts 
Allowing Manger to testify would also be contrary to the parties’ agreements to have any 
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disputes governed by SBA regulations. As explained above and in the Select Subcommittee’s 
report, SBA regulations prohibit Womply from trying to evade the agent fee cap set by the Interim 
Final Rule by relabeling itself as a “technology service provider” that does not engage in 
“underwriting.” Manger’s proposed opinions would contradict the parties’ agreements and basic 
principles of administrative law. His opinions would also intrude upon the province of the 
Arbitrator to apply the facts to the law and draw legal conclusions regarding the meaning of the 
parties’ contracts and SBA regulations. 
A. 
The Parties’ Agreements Incorporate And Are Governed By SBA Regulations  
Benworth and Womply’s agreements contain choice of law clauses that provide that SBA 
regulations shall govern the agreements. Referral Agreement § 9; Order Form § 4. The choice of 
law provision in the Referral Agreement reads in relevant part: 
This Agreement shall be governed by and construed in accordance with the laws of 
the State of California, without regard to the provisions of the conflict of laws 
thereof. This agreement is subject to all Applicable Laws, including SBA 
Regulations. In the event of any conflict between the governing law and the SBA 
Regulations (defined below), the SBA Regulations shall control. “SBA 
Regulations” means all PPP requirements and SBA guidelines under the CARES 
Act, the Economic Aid Act, the PPP Flexibility Act, any rules or guidance that have 
been issued by the SBA implementing the PPP, including SBA regulations 
published at 86 Fed. Reg. 3692 (Jan. 14, 2021) and 85 Fed. Reg. 20811 (Apr. 15, 
2020) and any subsequent Interim Final Rules and other guidance as may have been 
or may be subsequently issued by SBA or the U.S. Department of the Treasury with 
respect to the origination, servicing and forgiveness of loans under the PPP and 
Frequently Asked Questions, or any other applicable SBA loan requirements, 
including those codified in 13 CFR part 120, in each case as amended, 
supplemented or modified from time to time. 
Referral Agreement § 9 (emphasis added). That clause references the interim final rules that 
contain the agent fee cap and the criteria for underwriting under the PPP. Id. (citing 86 Fed. Reg. 
3692 (Jan. 14, 2021) and 85 Fed. Reg. 20811 (Apr. 15, 2020)). 
Under California law, SBA regulations are as much a provision of the parties’ agreements 
as the fee provisions. “When the language of a statute or regulation is incorporated in a contract, 
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17 
such language establishes contractual rights and obligations apart from its legal identity as part of 
a statute or regulation.” Serv. Emps. Int’l Union, Local 99 v. Options—A Child Care & Hum. Servs. 
Agency, 200 Cal. App. 4th 869, 879 n.6 (2011). Here, the parties agreed that the SBA regulations 
“shall control” over any other governing law, whether California law or the terms of their contract 
providing for Womply’s fees. Referral Agreement § 9; Order Form § 4. 
B. 
Under SBA Rules And Basic Principles Of Administrative Law, The Interim 
Final Rules Governing PPP Loans Take Precedence Over SBA Guidance 
Documents Like The Standard Operating Procedures 
Manger opines that the definition of “underwriting” contained in the SBA SOPs controls 
over similar provisions in the Interim Final Rule. Manger’s opinion is improper under federal 
administrative law and SBA regulations, as the PPP-specific interim final rules control.  
The federal Administrative Procedure Act sets forth the procedures by which 
administrative agencies promulgate regulations that have the force of law. See 5 U.S.C. § 553. 
Rules promulgated under the Act typically go through notice-and-comment proceedings. See id. 
§ 553(b). When the PPP was established, Congress specifically delegated emergency rulemaking 
authority to the SBA Administrator “to issue regulations to carry out” the PPP and associated small 
business-related relief programs “without regard to the notice requirements under [5 U.S.C. 
§ 553(b)].” 15 U.S.C. § 9012 & note. The SBA did just that when it adopted the Interim Final Rule 
that prescribed the underwriting criteria and agent fee caps governing the PPP.   
Agency rules—whether or not they go through notice and comment—carry the force of 
law. See United States v. Mead Corp., 533 U.S. 218, 227, 230-31 (2001); Pharoahs GC, Inc. v. 
U.S. Small Bus. Admin., 990 F.3d 217, 226 (2d Cir. 2021). Agency guidance documents like the 
SBA SOPs, however, generally do not carry the force of law. See Ctr. for Auto Safety v. Nat’l 
Highway Traffic Safety Admin., 452 F.3d 798, 808-09 (D.C. Cir. 2006). Indeed, the SBA’s website 
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instructs that its guidance documents—which include its SOPs—“lack the force and effect of law” 
“[u]nless otherwise provided in statute, regulation, or contract/agreement.”4  
Although the SBA’s SOPs are incorporated in the parties’ agreements here, those SOPs do 
not supersede PPP-specific interim final rules. The SOPs went into effect in October 2020, months 
after the PPP began and the Interim Final Rule was promulgated. Nothing in the SOPs states that 
the underwriting criteria in the SOPs supersede the PPP-specific underwriting requirements 
adopted in April 2020. See generally SOP 50 10 6. Indeed, the PPP is mentioned on a single page 
in the 590-page SOPs. And that single page states that the SOPs apply to PPP loans “to the extent 
that the SOP is not superseded by or in conflict with PPP-specific requirements.” Id. at 225 
(emphasis added). Manger does not cite this page in his expert report, notwithstanding the fact that 
he supervised the issuance of those SOPs during his time at the SBA and purportedly read every 
word of them. 
Were that not enough, the SBA later retained and reaffirmed the narrow, PPP-specific 
underwriting requirements when it issued the January 2021 Interim Final Rule. 86 Fed. Reg. at 
3707-08. The January 2021 Interim Final Rule stated that “[e]ach lender’s underwriting obligation 
under the PPP is limited to the items above [i.e., the PPP underwriting requirements] and reviewing 
the ‘Paycheck Protection Application Form.’” Id. at 3708. As explained above, see supra at pp. 7-
8, Womply performed each of these enumerated underwriting functions.  
In sum, as a matter of law, the Interim Final Rule’s requirements supersede and control 
over any conflicting (or contrary) language in the SOPs. Any attempt to supplant PPP regulations 
with contrary prescriptions found only in the SOPs is thus contrary to law as well as to the parties’ 
 
4  
Small Business Administration, SBA guidance, available at https://www.sba.gov/about-
sba/open-government/sba-guidance (last visited Jan. 25, 2023). 
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agreement incorporating that law. But that is precisely what Manger seeks to do.  
C. 
Womply Cannot Offer Extrinsic Evidence—Through Manger’s Opinions—
That Contradicts Or Varies The Terms Of The Interim Final Rule That Are 
Expressly Incorporated Into the Parties’ Agreements 
California recognizes the parol evidence rule. See Cal. Code Civ. Proc. § 1856; Cal. Civ. 
Code § 1625. California’s parol evidence rule is substantive law and applies in these arbitral 
proceedings. See Reeder v. Specialized Loan Servicing, LLC, 52 Cal. App. 5th 795, 804 (2020) 
(“The parol evidence rule is a rule of substantive law . . . .”); see also Riverisland Cold Storage, 
Inc. v. Fresno-Madera Prod. Credit Ass’n, 55 Cal.4th 1169, 1174 (2013) (“Although the parol 
evidence rule results in the exclusion of evidence, it is not a rule of evidence but one of substantive 
law.”); Referral Agreement § 9 (incorporating California law); Order Form § 4 (same). “When the 
parties to a written contract have agreed to it as an ‘integration’—a complete and final embodiment 
of the terms of an agreement—parol evidence cannot be used to add to or vary its terms.” Archer 
v. Coinbase, Inc., 53 Cal. App. 5th 266, 275 (2020) (some internal quotation marks omitted). 
Under California law, courts “do not consider the subjective understanding of one of the parties, 
but the parties’ mutual, objective manifestations of assent.” Id.; see Cal. Civ. Code § 1636 (“A 
contract must be so interpreted as to give effect to the mutual intention of the parties as it existed 
at the time of contracting, so far as the same is ascertainable and lawful.”). 
Many of Manger’s opinions violate the parol evidence rule. For instance, Manger opines 
that lender service provider fees “are not capped by any SBA regulation, rule, guidance, or 
practice.” Manger Report at ¶ 45. But the express and clear terms of the SBA regulations provide 
that lender service providers are agents. See 13 C.F.R. § 103.1(a). And the Interim Final Rule 
indisputably caps agent fees at 1% for loans of not exceeding $350,000. 85 Fed. Reg. at 20816. 
Besides being misleading, Manger’s opinion is directly contradicts the Interim Final Rule and must 
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be excluded. For the same reasons, Manger’s opinion that a designation as a lender service provider 
“would not have automatically capped Womply’s fees” is also improper. Manger Report at ¶ 69.  
Manger opines that this tribunal should apply the traditional SBA criteria for 
underwriting—rather than the underwriting criteria in the PPP-specific interim final rules—in 
determining whether Womply engaged in underwriting that would preclude it from claiming the 
status of a technology service provider. See, e.g., id. ¶¶ 60, 64-65. Again, such an opinion is 
contrary to the contract (and its incorporated provisions). The PPP requirements set forth in the 
Interim Final Rule “supersede any conflicting Loan Program Requirements (as defined in 13 CFR 
120.10).” 85 Fed. Reg. at 20812; see SOP 50 10 6 at 225 (stating that the SOPs apply to PPP loans 
“to the extent that the SOP is not superseded by or in conflict with PPP-specific requirements” 
(emphasis added)); see also 13 C.F.R. § 120.10 (2021) (defining “Loan Program Requirements” 
to include “SBA Standard Operating Procedures (SOPs)”). As explained, see supra at pp. 7-8, the 
Interim Final Rule defines underwriting as a limited set of activities. See 85 Fed. Reg. at 20815. 
These activities differ markedly from the traditional underwriting activities associated with non-
PPP loans. SOP 50 10 6 at 246-56. Accordingly, Manger’s opinion that this Arbitrator should 
apply the definition of underwriting appearing in the SOPs, even though they conflict with the 
criteria in the Interim Final Rule, is prohibited under the parol evidence rule.  
In essence, Manger attempts to read language out of the Interim Final Rule and the SOPs 
imposing program-specific rules for the PPP. But the SBA—including while Manger was an 
associate administrator—failed to adopt language conforming to his interpretation in the Interim 
Final Rule, and Womply cannot offer extrinsic evidence through Manger’s testimony to achieve 
that result.  
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III. 
This Tribunal May Not Rely On Manger’s Perspective As To What He (Or Others) 
Intended In Adopting SBA Regulations  
Womply also relies on Manger to supplement SBA regulations with understandings that 
are not reflected in the text of the SBA Interim Final Rule, the SOPs, the FAQs, or anywhere else. 
See, e.g., Manger Report at ¶ 63 (opining that “the SBA did not intend to expand the category of 
entities that were [lender service providers]” by adopting the Interim Final Rule); Manger Dep. Tr. 
at 175:14 – 176:4 (opining that Manger’s present interpretation of the SOPs is coextensive with 
the SBA’s interpretation of the SOPs at the time the SBA adopted the SOPs in October 2020).  
California law does not permit such opinions. “‘[I]t is well established that it is a judicial 
function to interpret the law.’” Nadler v. Schwarzenegger, 137 Cal. App. 4th 1327, 1335 (2006). 
“In [California], evidence that relates to the mental processes of individual legislators is ‘irrelevant 
to the judicial task.’” Id. at 1336 (quoting Cnty. of Los Angeles v. Super. Ct. of Los Angeles Cnty., 
13 Cal.3d 726, 728 (1975)); see id. (stating that “‘fundamental, historically enshrined legal 
principle[s] . . . preclude[] any judicially authorized inquiry into the subjective motives or mental 
processes of legislators’” (quoting Cnty. of Los Angeles, 13 Cal.3d at 726)).  
Through his testimony and expert report, Manger offers his own spin on how SBA 
regulations should be understood. In addition to those interpretations being impermissible under 
the parol evidence rule, they are also barred. To determine what the SBA regulations—or any 
statutory scheme—mean, this tribunal must rely on the express and clear terms of the applicable 
provisions, not testimony about what drafters had subjectively intended to accomplish. See Cnty. 
of Los Angeles, 13 Cal.3d at 726-32 (holding that plaintiff could not compel testimony of members 
of county board of supervisors in challenge to validity of a county ordinance); Nadler, 137 
Cal. App. 4th at 1335-37 (holding that plaintiffs challenging legislative apportionment could not 
compel legislative staff member to testify about legislators’ subjective motivations). For this 
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additional reason, the tribunal should strike Manger’s testimony.  
IV. 
Manger Is Not Qualified To Offer An Opinion On Whether Womply Only Offered 
Technology Services, Nor Would That Opinion Be Helpful To The Trier Of Fact 
Other parts of Manger’s testimony should be deemed inadmissible since he is not qualified 
to offer an expert opinion on Womply’s technology services. E.g., Manger Report at ¶¶ 55, 57. 
Such opinions amount to legal conclusions.  
Manger testified at his deposition that he is not an expert in technology. See Manger Dep. 
Tr. at 28:15 (“I’m not a tech expert.”). When questioned about how Womply’s system worked, 
Manger could not provide detailed information. Instead, he conceded that he was “not that 
familiar” with the technology services that Womply and others provided to PPP lenders. Id. at 
28:15-22. He is therefore not qualified to offer an opinion on whether Womply is a technology 
service provider or opinions as to any of the technology services that Womply provided. 
Moreover, Manger’s legal conclusions are not helpful. Even if Womply were a technology 
service provider, the ultimate question is whether Womply was performing “underwriting,” as that 
term is defined in the Interim Final Rule. Technology service providers who act as loan 
underwriters are no longer solely technology service providers, instead they become subject to 
PPP agent fee caps because they are lender service providers or another type of agent. See 85 Fed. 
Reg. at 20816 (capping at 1% “the total amount that an agent may collect from the lender for 
assistance in preparing an applicating for a PPP loan” of not more than $350,000); SOP 50 10 6 at 
p. 185 (noting that entities providing underwriting can be considered agents). Moreover, whether 
the applicable underwriting criteria appear in the Interim Final Rule (or elsewhere) is a question 
of law. That is an issue for the arbitrator to resolve; not for Manger, who is neither qualified nor 
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legally permitted to opine on such matters.5 Manger’s opinions are silent on the pertinent question: 
whether Womply performed underwriting services under the applicable criteria in the Interim Final 
Rule. Because expert testimony must “help the trier of fact understand highly specialized issues 
that are not within common experience,” Elosu, 26 F.4th at 1026, Manger’s opinions are improper. 
On an issue reserved to you as Arbitrator, he applies the wrong law to reach an erroneous 
conclusion.    
V. 
Manger’s Opinion That Benworth Will Not Have To Return Fees Should Be Stricken 
As It Offers No Aid to The Arbitrator 
Finally, this tribunal should strike Manger’s opinion as to the circumstances in which 
Benworth would have to refund fees to the SBA. Benworth contends Womply is not entitled to 
any additional fees because the 1% fee cap incorporated into their agreements plainly prohibits 
these additional fees. But the cap applies whether Benworth returns fees to the SBA or not. 
Moreover, Manger’s report provides no basis for his opinion besides tracking the language of SBA 
regulations. Manger attempts to buttress this opinion by stating that it is “[b]ased on my experience 
at the SBA.” Manger Report at ¶ 76. But nowhere does he identify any experiences that inform 
this opinion. See Domingo ex rel. Domingo v. T.K., 289 F.3d 600, 607 (9th Cir. 2002) (opinion 
should not be admitted based solely on the “‘ipse dixit of the expert’” (quoting Gen. Elec. Co. v. 
 
5  
See SEC v. Capital Consultants, LLC, 397 F.3d 733, 749 (9th Cir. 2005) (“Experts may 
interpret and analyze factual evidence but may not testify about the law.”); see also Anderson v. 
Suiters, 499 F.3d 1228, 1238 (10th Cir. 2007) (“While expert witnesses may testify as to the 
ultimate matter at issue, this refers to testimony on ultimate facts; testimony on ultimate questions 
of law, i.e., legal opinions or conclusions, is not favored.” (citation omitted)); N.G. v. Cnty. of San 
Diego, 59 Cal. App. 5th 63, 77 (2020) (“Although otherwise admissible opinion evidence is not 
objectionable because it embraces the ultimate issue to be decided by the trier of fact, an expert is 
not allowed to testify to legal conclusions in the guise of expert opinion. Such legal conclusions 
do not constitute substantial evidence. The manner in which the law should apply to particular 
facts is a legal question and is not subject to expert opinion.” (alterations and internal quotation 
marks omitted)). 
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Joiner, 522 U.S. 136, 147 (1997))). The opinion should be stricken. 
CONCLUSION 
For the foregoing reasons, Manger should be disqualified from testifying as an expert 
witness on behalf of Womply. In the alternative, Manger’s opinions should be stricken as 
inadmissible expert testimony. 
Dated: January 25, 2023 
 
 
Respectfully submitted, 
By: /s/ Dwayne A. Robinson 
Corali Lopez-Castro 
Jorge L. Piedra 
Dwayne A. Robinson 
Michael R. Lorigas 
KOZYAK TROPIN &  
THROCKMORTON LLP 
2525 Ponce de Leon Boulevard, 9th Floor 
Miami, FL 33134 
(305) 372-1800 
drobinson@kttlaw.com 
 
Attorneys for Benworth Capital Partners, LLC 
 
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