Frohwein Motion to Dismiss — Pietschner v. Kabbage (E.D. Tex.)

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U.S. District Court for the Eastern District of Texas, Sherman Division · No. 4:21-cv-00110-SDJ · Doc. 68 · 2025-03-11 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF TEXAS 
SHERMAN DIVISION 
 
UNITED STATES OF AMERICA, ex rel.  
PAUL PIETSCHNER, 
v. 
KATHRYN PETRALIA, ROBERT 
FROHWEIN, and SPENCER ROBINSON. 
 
Case No. 4:21-cv-110-SDJ 
 
ORAL ARGUMENT REQUESTED 
 
DEFENDANT ROBERT FROHWEIN’S MOTION TO DISMISS THE  
UNITED STATES OF AMERICA’S COMPLAINT IN INTERVENTION   
 
 
 
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ii 
TABLE OF CONTENTS 
INTRODUCTION......................................................................................................................... 1 
STATEMENT OF ISSUES .......................................................................................................... 3 
BACKGROUND ........................................................................................................................... 3 
I. 
 
The Defendants ............................................................................................................. 3 
II.  
Mr. Frohwein Has No Relevant Contacts With the State of Texas .............................. 4 
III.  
Kabbage and Its Role In the PPP .................................................................................. 4 
IV. 
The Complaint Does Not Allege Mr. Frohwein Knowingly Participated in Fraud on the 
SBA ............................................................................................................................... 6 
LEGAL STANDARD ................................................................................................................... 7 
I. 
 
Establishing Venue and Personal Jurisdiction .............................................................. 7 
II.  
Sufficiency of the Complaint ........................................................................................ 8 
ARGUMENT ................................................................................................................................. 9 
I. 
 
The Complaint Does Not Establish Venue in this District ........................................... 9 
II.  
This Court Lacks Personal Jurisdiction Over Mr. Frohwein ...................................... 12 
A. 
This Court Does Not Have General Jurisdiction Over Mr. Frohwein ............. 12 
B. 
This Court Does Not Have Specific Jurisdiction Over Mr. Frohwein ............. 13 
C. 
The Government Cannot Rely on Nationwide Contacts to Establish Personal 
Jurisdiction Over Mr. Frohwein in Texas ........................................................ 15 
III.  
The Complaint Does Not State An FCA Claim Against Mr. Frohwein ..................... 17 
A. 
The Complaint Does Not Sufficiently Allege That Mr. Frohwein Submitted, 
Or Caused the Submission of, False Claims or Statements ............................. 17 
B. 
The Complaint Does Not Adequately Allege Mr. Frohwein’s Scienter .......... 19 
IV. 
The Complaint Fails to Allege That Mr. Frohwein Was Unjustly Enriched or Paid by 
Mistake ........................................................................................................................ 24 
CONCLUSION ........................................................................................................................... 25 
 
 
 
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TABLE OF AUTHORITIES 
 
Page(s) 
Cases 
Ashcroft v. Iqbal, 
556 U.S. 662 (2009) ...............................................................................................................6, 8 
Bell Atlantic Corp. v. Twombly, 
550 U.S. 544 (2007) ...................................................................................................................8 
Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Mich., 
97 F.3d 822 (5th Cir. 1996) .....................................................................................................15 
Benchmark Elecs., Inc. v. J.M. Huber Corp., 
343 F.3d 719 (5th Cir. 2003) .....................................................................................................8 
Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 
582 U.S. 255 (2017) .................................................................................................................13 
Busch v. Buchman, Buchman & O’Brien, L. Firm, 
11 F.3d 1255 (5th Cir. 1994) ...................................................................................................15 
Bustos v. Lennon, 
538 F. App’x 565 (5th Cir. 2013) ............................................................................................14 
U.S. ex rel. Butler v. Hughes Helicopters, Inc., 
71 F.3d 321 (9th Cir. 1995) .....................................................................................................23 
Caldwell v. Palmetto State Sav. Bank of S.C., 
811 F.2d 916 (5th Cir. 1987) ...................................................................................................16 
U.S. ex rel. Colquitt v. Abbott Labs., 
858 F.3d 365 (5th Cir. 2017) .....................................................................................................8 
Cunningham v. Assured Auto Grp., 
No. 4:20-CV-41, 2021 U.S. Dist. LEXIS 56888 (E.D. Tex. Mar. 2, 2021) ............................14 
Daimler AG v. Bauman, 
571 U.S. 117 (2014) ...........................................................................................................12, 13 
Daniel v. Am. Bd. of Emergency Med., 
428 F.3d 408 (2d Cir. 2005).....................................................................................................16 
Ekeocha v. U.S. Dep’t of State, 
2024 U.S. Dist. LEXIS 206975 (N.D. Tex. Oct. 25, 2024) .....................................................11 
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iv 
In re Enron Corp. Sec., Derivative & “ERISA” Litig., 
490 F. Supp. 2d 784 (S.D. Tex. 2007) .......................................................................................9 
U.S. ex rel. Farmer v. City of Hous., 
523 F.3d 333 (5th Cir. 2008) ...................................................................................................20 
Gearhart v. Express Scripts, Inc., 
422 F. Supp. 3d 1217 (E.D. Ky. 2019) ....................................................................................25 
Gonzalez v. Fresenius Med. Care N. Am., 
689 F.3d 470 (5th Cir. 2012) ...................................................................................................17 
GTE New Media Servs. Inc. v. BellSouth Corp., 
199 F.3d 1343 (D.C. Cir. 2000) ...............................................................................................16 
Gundle Lining Constr. Corp. v. Adams Cnty. Asphalt, Inc., 
85 F.3d 201 (5th Cir. 1996) .....................................................................................................12 
U.S. ex rel. Haight v. RRSA (Commer. Div.), LLC, 
No. 3:16-CV-1975-S, 2020 U.S. Dist. LEXIS 195267 (N.D. Tex. Oct. 20, 
2020) ........................................................................................................................................18 
Health Choice Alliance, LLC v. Eli Lilly, Inc., 
No. 5:17-CV-123-RWS-CMC, 2018 WL 4026986 (E.D. Tex. July 25, 2018) ...................9, 19 
Hoover Grp., Inc. v. Custom Metalcraft, Inc., 
84 F.3d 1408 (Fed. Cir. 1996)..................................................................................................10 
U.S. ex rel. Johnson v. Kaner Med. Grp., P.A., 
641 F. App’x 391 (5th Cir. 2016) ............................................................................................18 
Johnston v. Multidata Sys. Int’l Corp., 
523 F.3d 602 (5th Cir. 2008) ...................................................................................................12 
Jones v. Petty-Ray Geophysical Geosource, Inc., 
954 F.2d 1061 (5th Cir. 1992) .................................................................................................12 
KM Enters., Inc. v. Glob. Traffic Techs., Inc., 
725 F.3d 718 (7th Cir. 2013) ...................................................................................................16 
U.S. ex rel. Krawitt v. Infosys Techs. Ltd., 
372 F. Supp. 3d 1078 (N.D. Cal. 2019) ...................................................................................22 
U.S. ex rel. Krohn v. Sun W. Servs., Inc., 
No. CIV-97-0644-JC/WWD, 2000 WL 36739959 (D.N.M. Apr. 11, 2000).....................15, 16 
U.S. ex rel. Lamers v. City of Green Bay, 
168 F.3d 1013 (7th Cir. 1999) .................................................................................................22 
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v 
U.S. ex rel. Landis v. Tailwind Sports Corp., 
51 F. Supp. 3d 9 (D.D.C. 2014) .........................................................................................17, 19 
Luallen v. Higgs, 
277 F. App’x 402 (5th Cir. 2008) (unpublished) .....................................................................15 
Marathon Oil Co. v. A.G. Ruhrgas, 
182 F.3d 291 (5th Cir. 1999) ...................................................................................................12 
Melder v. Morris, 
27 F.3d 1097 (5th Cir. 1994) .....................................................................................................8 
METX, LLC v. Wal-Mart Stores Tex., LLC, 
62 F. Supp. 3d 569 (E.D. Tex. 2014) .......................................................................................24 
U.S. ex rel. Porter v. Magnolia Health Plan, Inc., 
810 F. App’x 237 (5th Cir. 2020) ..............................................................................................8 
U.S. ex rel. Purcell v. MWI Corp., 
807 F.3d 281 (D.C. Cir. 2015) .................................................................................................22 
Rex Real Estate I, L.P. v. Rex Real Estate Exch., Inc., 
No. 4:18-CV-371-ALM, 2019 WL 2524830 (E.D. Tex. June 19, 2019) ..................................7 
Safeco Ins. Co. of Am. v. Burr, 
551 U.S. 47 (2007) ...................................................................................................................22 
Saktides v. Cooper, 
742 F. Supp. 382 (W.D. Tex. 1990).........................................................................................14 
Savoie v. Pritchard, 
122 F.4th 185 (5th Cir. 2024) ..................................................................................................14 
U.S. ex rel. Schutte v. SuperValu Inc., 
598 U.S. 739 (2023) .................................................................................................................22 
Script Sec. Sols. L.L.C. v. Amazon.com, Inc., 
170 F. Supp. 3d 928 (E.D. Tex. 2016) .............................................................................7, 9, 21 
Seville v. Maersk Line, Ltd., 
53 F.4th 890 (5th Cir. 2022) ....................................................................................................11 
Shambaugh & Son, L.P. v. Steadfast Ins. Co., 
91 F.4th 364 (5th Cir. 2024) ....................................................................................................13 
U.S. ex rel. Silva v. VICI Mktg., LLC, 
361 F. Supp. 3d 1245 (M.D. Fla. 2019) ...................................................................................25 
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vi 
Stuart v. Spademan, 
772 F.2d 1185 (5th Cir. 1985) .............................................................................................7, 14 
Sunbury Wire Rope Mfg. Co. v. U.S. Steel Corp., 
230 F.2d 511 (3d Cir. 1956).....................................................................................................10 
U.S. ex rel. Thistlethwaite v. Dowty Woodville Polymer, Ltd., 
976 F. Supp. 207 (S.D.N.Y. 1997) ................................................................................9, 15, 16 
Trois v. Apple Tree Auction Ctr., Inc., 
882 F.3d 485 (5th Cir. 2018) .................................................................................................3, 7 
U.S. v. Bornstein, 423 U.S. 303 (1976)..........................................................................................17 
U.S. v. Browne, 505 F.3d 1229 (11th Cir. 2007) ...........................................................................10 
U.S. v. Peters, No. 2:24-cv-00287, 2024 WL 3378034 (E.D. Cal. July 11, 2024) ........................24 
U.S. v. President & Fellows of Harvard Coll., 
323 F. Supp. 2d 151 (D. Mass. 2004) ......................................................................................17 
U.S. v. Southland Mgmt. Corp., 
326 F.3d 669 (5th Cir. 2003) .............................................................................................19, 23 
U.S. v. Villaspring Health Care Ctr., Inc., 
No. 3:11-43-DCR, 2011 WL 6337455 (E.D. Ky. Dec. 19, 2011) ...........................................18 
Unimobil 84, Inc. v. Spurney, 
797 F.2d 214 (5th Cir. 1986) .....................................................................................................8 
Universal Health Servs., Inc. v. U.S. ex rel. Escobar, 
579 U.S. 176 (2016) .................................................................................................................18 
Urquilla-Diaz v. Kaplan Univ., 
780 F.3d 1039 (11th Cir. 2015) .........................................................................................20, 21 
U.S. ex rel. Vavra v. Kellogg Brown & Root, Inc., 
903 F. Supp. 2d 473 (E.D. Tex. 2011), rev’d on other grounds, 727 F.3d 343 
(5th Cir. 2013) ..........................................................................................................................19 
Walden v. Fiore, 
571 U.S. 277 (2014) .................................................................................................................13 
U.S. ex rel. Williams v. Renal Care Grp., Inc., 
696 F.3d 518 (6th Cir. 2012) .............................................................................................20, 21 
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Statutes 
28 U.S.C. § 1391(b) .........................................................................................................................9 
31 U.S.C. § 3729(a)-(b) ...........................................................................................................17, 19 
31 U.S.C. § 3732(a) .........................................................................................................1, 9, 10, 16 
 
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Defendant Robert Frohwein by and through his undersigned counsel, respectfully submits 
this Motion to Dismiss (“Motion”) the Complaint in Intervention (“Complaint”) (ECF No. 40) 
filed by the United States of America (“Government”), pursuant to Federal Rules of Civil 
Procedure 12(b)(2) (lack of personal jurisdiction), 12(b)(3) (improper venue), and 12(b)(6) (failure 
to state a claim). 
INTRODUCTION 
Up against a filing deadline and change in administration, the Government’s complaint 
against Robert Frohwein, Kathryn Petralia, and Spencer Robinson (collectively, “Defendants”)—
former employees of Kabbage, Inc. (“Kabbage” or “Company”)—was hastily brought in the 
wrong court, in the wrong state, and without allegations sufficient to state a claim against Mr. 
Frohwein personally.  Despite the critical role Kabbage played in helping small businesses survive 
the COVID-19 pandemic, the Complaint seeks to rewrite history and hold Mr. Frohwein personally 
liable for Kabbage’s alleged submission of false claims during its participation in the Paycheck 
Protection Program (“PPP”).  As described in Defendants’ Joint Motion to Dismiss (“Joint 
Motion”), and for the additional reasons below, the Complaint must be dismissed in its entirety:  
The Complaint was not properly filed in this Court, the False Claims Act (“FCA”) claims (Counts 
I-III) do not satisfy the heightened pleading standard of Rule 9(b), and the remaining claims 
(Counts IV-V) simply fail on their face.   
First, venue is not proper in this district because none of the Defendants “can be found, 
resides, [or] transacts business” in this district, and no act “proscribed by [S]ection 3729” is alleged 
to have occurred here.  31 U.S.C. § 3732(a).  The Complaint alleges only that Kabbage “transacted 
business in this district” in the past.  Compl. ¶¶ 6-7 (emphasis added).  But Section 3732(a) permits 
venue in this district only if one of the Defendants presently transacts business here.  31 U.S.C. § 
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3732(a).  Because the Complaint does not allege that any Defendant presently transacts business 
in this district (nor could it), the Complaint does not establish venue as to any of them. 
Second, this Court does not have personal jurisdiction over Mr. Frohwein.  The Complaint 
fails to allege that Mr. Frohwein—a resident of the State of California—is “at home” in Texas.  
Nor does the Complaint allege that Mr. Frohwein took any act in this State related to the claims at 
issue in this case.  Requiring Mr. Frohwein to defend himself in lengthy and expensive litigation 
in a state to which he has no connection would be unfair and unjust.    
Third, the Complaint does not adequately plead that Mr. Frohwein knowingly participated 
in Kabbage’s alleged submission of false claims to the Small Business Administration (“SBA”).  
Rather, the Complaint uses formulaic recitations of the elements of an FCA claim and improper 
group pleading to allege what “Kabbage” and the “Defendants” did without plausibly alleging 
anything about Mr. Frohwein’s knowing, individual participation in the alleged fraud scheme.  
Neither tactic satisfies the heightened pleading standard of Rule 9(b).  The few non-conclusory 
allegations that are specific to Mr. Frohwein describe innocent conduct germane to the position of 
Chief Executive Officer (“CEO”), but serving as CEO does not make a person liable under the 
FCA for the acts of others.   
Fourth and finally, the two remaining claims for unjust enrichment and fraud by mistake, 
which are predicated on the same facts as the FCA claims, likewise fail to state a claim that meets 
the pleading standard of Rule 9(b).  The Complaint does not allege that Mr. Frohwein was unjustly 
enriched or paid by mistake by the SBA for Kabbage’s participation in the PPP.  Like the claims 
that come before it, the Government seeks to impose individual liability where there is none. 
Accordingly, for these reasons, and those set forth in Defendants’ Joint Motion, Mr. 
Frohwein respectfully requests that the Court dismiss the Complaint with prejudice. 
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STATEMENT OF ISSUES 
Mr. Frohwein moves to dismiss the Complaint with prejudice pursuant to Rules 12(b)(2), 
(3), and (6).  The grounds for relief are set forth below: 
1. The Complaint fails to allege facts to establish venue in this district. 
2. The Complaint fails to allege facts to establish personal jurisdiction over Mr. Frohwein. 
3. The Complaint fails to state an FCA claim against Mr. Frohwein with the particularity 
required by Rule 9(b) because (i) the factual allegations do not establish that he submitted, 
or caused the submission of, false claims or statements to the SBA, or (ii) that he acted 
with the requisite scienter. 
4. The Complaint fails to state a claim for unjust enrichment or payment by mistake. 
BACKGROUND1 
I. 
THE DEFENDANTS 
Mr. Frohwein and his co-defendants are former employees of Kabbage, an Atlanta-based, 
Delaware-incorporated financial technology company that was founded in 2008 to provide the 
smallest and most under-served businesses with access to capital.  Compl. ¶ 57.  Kabbage 
facilitated loans to small businesses and consumers through its innovative online lending platform, 
which leveraged data from customers and public sources to accelerate and improve the 
underwriting process and help businesses get access to capital more quickly.  Id.  Mr. Frohwein 
served as Kabbage’s CEO from its inception until October 2020, when American Express acquired 
the Company.  Id. ¶ 11.  Throughout that same time period, Ms. Petralia served as Kabbage’s 
 
1 Mr. Frohwein incorporates by reference the Background set forth in Defendants’ Joint Motion.  For purposes of this 
Motion, Mr. Frohwein accepts as true all well-pleaded allegations except to the extent they are construed to contradict 
the undisputed allegations made in the Defendants’ declarations about their contacts with Texas.  See, e.g., Trois v. 
Apple Tree Auction Ctr., Inc., 882 F.3d 485, 492-93 (5th Cir. 2018) (explaining that “the court is permitted to look at 
evidence in the record beyond simply those facts alleged in the complaint and its proper attachments” when reviewing 
a motion to dismiss under Rule 12(b) (citation omitted)).   
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President.  Id. ¶ 10.  Mr. Robinson joined Kabbage in 2010 and also left when the Company was 
acquired by American Express in October 2020, at which point his title was “Head of Strategy.”  
Id. ¶ 12. 
II. 
MR. FROHWEIN HAS NO RELEVANT CONTACTS WITH THE STATE 
OF TEXAS 
Mr. Frohwein has never lived or worked in—and to this day does not have any relevant 
contacts with—the State of Texas.  Mr. Frohwein resided and worked in Atlanta from the time of 
Kabbage’s founding until February 2022, when he relocated to California, where he now lives and 
works.  Ex. 1 (Frohwein Declaration) ¶ 1.  Mr. Frohwein is not a resident of Texas; does not own 
property in Texas; and does not transact business in Texas (nor did he at the time the Complaint 
was filed).  Id. ¶¶ 1-2.  While he worked at Kabbage, Mr. Frohwein had no communications with 
any PPP borrowers in Texas and did not review or approve loan applications for PPP borrowers in 
Texas.  Id. ¶ 3.  As laid out in their concurrently filed individual motions to dismiss, Ms. Petralia 
and Mr. Robinson also do not live, work, or transact business in Texas; and, while at Kabbage, 
they both worked at Kabbage’s Atlanta office.    
III. 
KABBAGE AND ITS ROLE IN THE PPP 
Shortly after the COVID-19 pandemic struck, on March 27, 2020, Congress passed $349 
billion of funding for PPP loans through the Coronavirus Aid, Relief, and Economic Security 
(“CARES”) Act.2  The guiding principle of the CARES Act was to get money into the hands of 
business owners quickly through private lenders to prevent an otherwise catastrophic economic 
recession.  The SBA Administrator stressed the need to move quickly, stating that “[s]peed is the 
 
2 Rather than create an entirely new framework and direct federal payment program, the CARES Act modified the 
existing SBA 7(a) program to enable PPP.  See CARES Act, Pub. L. No. 116-136, § 1102(a), 134 Stat. 281 (2020) 
(providing for the amendment of Section 7(a) of the Small Business Act (15 U.S.C. § 636(a))). 
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operative word.”3  Given its expertise in small business lending, Kabbage was uniquely positioned 
to serve as a lender and to help provide emergency relief to small businesses.  Compl. ¶ 57.  
Kabbage submitted its application to become an authorized non-bank lender under the PPP on 
April 9, 2020, and was approved to be a direct lender on April 13, 2020.  Id. ¶¶ 51, 54.   
In less than four months, between April 9, 2020 and August 8, 2020, Kabbage processed 
over $7 billion in PPP loans as both a direct lender and a lending service provider for its partner 
banks.  Id. ¶ 55.  As detailed in Defendants’ Joint Motion, the government urged Kabbage to 
process PPP loans quickly.  See Joint Motion at Background § A.  The public record is replete with 
evidence that the government knew that borrowers would take advantage of the PPP’s relaxed 
underwriting criteria, and that it accepted this risk when it designed a first-come, first-served 
program that had limited funding, directed lenders to rely on borrower attestations, and that was 
principally focused on getting funds into the hands of small businesses as quickly as possible to 
help them survive the unprecedented economic impact of the COVID-19 pandemic.  See id. §§ A-
D.  Now, with the benefit of hindsight, the Government claims that some of the PPP loans Kabbage 
processed during this four-month period were inflated or fraudulent for one of three reasons:   
1. 
SALT Issue:  Kabbage allegedly inflated PPP loan amounts for certain borrowers 
by double-counting employees’ state and local taxes (“SALT”) (“SALT Issue”).  
See Compl. ¶¶ 105-46.   
2. 
$100K Issue:  Kabbage allegedly inflated PPP loan amounts for some borrowers 
by including annual per-employee compensation over $100,000 in calculating their 
average monthly payroll (“$100K Issue”).  See id. ¶¶ 147-85.   
 
3 Press Release, SBA, With $349 Billion in Emergency Small Business Capital Cleared, SBA and Treasury Begin 
Unprecedented 
Public-Private 
Mobilization 
Effort 
to 
Distribute 
Funds 
(Apr. 
2, 
2020), 
https://www.sba.gov/article/2020/apr/02/349-billion-emergency-small-business-capital-cleared-sba-treasury-begin 
unprecedented-public-private-0. 
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3. 
Failure to Comply with Lender Loan Review Requirements:  Kabbage 
purportedly failed to comply with PPP lender loan review requirements, including 
the alleged requirement that Kabbage (1) have a due diligence program sufficient 
to comply with Bank Secrecy Act/Anti-Money Laundering (“BSA/AML”) 
regulations or detect fraud, and (2) perform a good faith review of borrowers’ PPP 
loan applications to assess loan eligibility.4  See id. ¶¶ 186-285.   
IV. 
THE COMPLAINT DOES NOT ALLEGE MR. FROHWEIN KNOWINGLY 
PARTICIPATED IN FRAUD ON THE SBA 
The Complaint is almost entirely focused on alleged misconduct by Kabbage and other 
employees that purportedly led to inflated and fraudulent loans being submitted to the SBA.  
Setting aside all conclusory allegations and irrelevant references to the fact that Mr. Frohwein 
invoked the Fifth Amendment when deposed in connection with this matter5—none of which are 
properly considered on a motion to dismiss6—the Complaint pleads next to no facts that are 
specific to Mr. Frohwein.  And none of those allegations reflect Mr. Frohwein’s knowing 
involvement in a scheme to defraud the SBA.   
The Complaint’s sparse allegations boil down to the fact that Mr. Frohwein was Kabbage’s 
CEO, and that, as such, he “direct[ed] and control[led]” Kabbage and was “responsible for 
overseeing all of Kabbage’s employees and day-to-day operations,” including the Company’s 
participation in the PPP.  Id. ¶¶ 2-3, 11, 70.  The Complaint does not allege how Mr. Frohwein 
personally and knowingly participated in a scheme to defraud the SBA.  Tellingly, the Complaint 
does not allege that Mr. Frohwein submitted PPP loan applications or other documentation to the 
SBA, or that he had any involvement in either the development of Kabbage’s loan calculation 
 
4 Mr. Frohwein disputes the Government’s interpretation of the PPP’s lender requirements but is accepting that they 
are correct only for purposes of responding to this Motion.  Mr. Frohwein expressly reserves the right to dispute the 
Government’s interpretation of the PPP should the Complaint survive the pleading stage.   
5 The Government deposed Mr. Frohwein on June 3, 2024 pursuant to a Civil Investigative Demand served upon him 
in the course of its investigation knowing that there was an open criminal investigation that precluded him from 
testifying at the time.  Compl. ¶ 85 n.3.  The Complaint improperly contains numerous allegations concerning Mr. 
Frohwein’s Fifth Amendment invocation.  See, e.g., id. ¶¶ 85, 89, 93, 98, 126, 134, 141, 156, 166, 191, 200, 212.   
6 See Joint Motion at Argument § II; Ashcroft v. Iqbal, 556 U.S. 662, 678-80 (2009) (citing Bell Atlantic Corp. v. 
Twombly, 550 U.S. 544, 570 (2007)) (the Court must ignore all naked legal conclusions on a motion to dismiss).   
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methodology (including those calculations giving rise to the SALT or $100K Issues) or its fraud 
controls and BSA/AML program beyond his alleged general oversight of all Kabbage employees 
and company operations as CEO. 
The only non-conclusory allegations related to Mr. Frohwein’s involvement or knowledge 
of alleged misconduct are that he received a few communications in which others questioned 
Kabbage’s PPP loans.  Id. ¶¶ 133, 137, 178.  But those communications, when read in context, 
reflect that Mr. Frohwein or his team appropriately addressed any concerns, which refutes any 
claim that Mr. Frohwein was aware of—much less involved in—any purported misconduct.  See 
Argument §§ III.B.1-2, infra.7         
LEGAL STANDARD 
I. 
ESTABLISHING VENUE AND PERSONAL JURISDICTION 
The Government bears the burden of establishing venue and personal jurisdiction over the 
Defendants on a motion to dismiss under Rules 12(b)(3) for improper venue and 12(b)(2) for lack 
of personal jurisdiction.  See Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985) (“When a 
nonresident defendant presents a motion to dismiss for lack of personal jurisdiction, the plaintiff 
bears the burden of establishing the district court’s jurisdiction over the nonresident.”); Rex Real 
Estate I, L.P. v. Rex Real Estate Exch., Inc., No. 4:18-CV-371-ALM, 2019 WL 2524830, at *1 
(E.D. Tex. June 19, 2019) (“Once a defendant raises improper venue by motion, ‘the burden of 
sustaining venue will be on [the] Plaintiff.’”) (citation omitted).  In deciding these issues, the Court 
must accept as true only well-pleaded and uncontroverted facts.  However, the Court may also 
consider evidence outside the complaint.  See, e.g., Trois, 882 F.3d at 492-93 (“[T]he court is 
 
7 See Script Sec. Sols. L.L.C. v. Amazon.com, Inc., 170 F. Supp. 3d 928, 935 (E.D. Tex. 2016) (quoting Lone Star 
Fund V (U.S.) L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010)) (noting a court may consider documents 
attached to a motion to dismiss that are “central to claims referenced in the complaint”). 
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permitted to look at evidence in the record beyond simply those facts alleged in the complaint and 
its proper attachments.”) (citation omitted).   
II. 
SUFFICIENCY OF THE COMPLAINT 
To survive a motion to dismiss under Rule 12(b)(6), a complaint must satisfy Rule 8(a) and 
contain sufficient factual matter, which, if accepted as true, would “state a claim to relief that is 
plausible on its face.”  Iqbal, 556 U.S. at 677-78 (citation omitted).  A plaintiff is not entitled to 
relief where well-pleaded facts only permit the court to infer the “mere possibility of misconduct.”  
Id. at 679.  While a plaintiff need not include “detailed factual allegations,” a complaint requires 
more than bald accusations or speculation.  Twombly, 550 U.S. at 555.  Conclusions, naked 
assertions, and formulaic recitations of the elements of a cause of action are also not sufficient and 
must be disregarded.  Iqbal, 556 U.S. at 678-80 (citing Twombly, 550 U.S. at 555, 557).   
Above and beyond Rule 8(a)’s plausibility standard, FCA complaints, like all other 
complaints alleging fraud, must also satisfy Rule 9(b) and “state with particularity the 
circumstances constituting fraud or mistake.”  Fed. R. Civ. P. 9(b); see U.S. ex rel. Colquitt v. 
Abbott Labs., 858 F.3d 365, 371 (5th Cir. 2017).  To meet this heightened standard, the 
Government “must set forth specific facts supporting an inference of fraud.”  Melder v. Morris, 27 
F.3d 1097, 1102 (5th Cir. 1994); see also Benchmark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 
719, 724 (5th Cir. 2003) (Rule 9(b) requires “the who, what, when, where, and how to be laid out” 
with respect to a fraud claim) (citation omitted).   
The Fifth Circuit applies Rule 9(b) “with bite and without apology.”  U.S. ex rel. Porter v. 
Magnolia Health Plan, Inc., 810 F. App’x 237, 240 (5th Cir. 2020) (citation omitted).  Where a 
case involves multiple defendants, the complaint must plead specific facts as to each individual 
defendant to meet Rule 9(b)’s heightened standard.  See Unimobil 84, Inc. v. Spurney, 797 F.2d 
214, 217 (5th Cir. 1986) (finding that general allegations which fail to state with particularity the 
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9 
alleged wrongdoing of each separate defendant do not meet Rule 9(b)’s heightened pleading 
standard).  “Allegations that lump all defendants together and fail to segregate the alleged 
wrongdoing of one from those of another do not satisfy [R]ule 9(b).”  Health Choice Alliance, 
LLC v. Eli Lilly, Inc., No. 5:17-CV-123-RWS-CMC, 2018 WL 4026986, at *46 (E.D. Tex. July 
25, 2018) (citing In re Urcarco Sec. Litig., 148 F.R.D. 561, 569 (N.D. Tex. 1993), aff’d, 27 F.3d 
1097 (5th Cir. 1994)).  Moreover, “invocation of the Fifth Amendment does not excuse [the 
plaintiff] from pleading with specificity” under Rule 9(b).  In re Enron Corp. Sec., Derivative & 
“ERISA” Litig., 490 F. Supp. 2d 784, 825 (S.D. Tex. 2007). 
In ruling on a motion to dismiss under Rule 12(b)(6), “[t]he court may consider ‘the 
complaint, any documents attached to the complaint, and any documents attached to the motion to 
dismiss that are central to the claim and referenced by the complaint.’”  Script Sec. Sols. L.L.C., 
170 F. Supp. 3d at 935 (quoting Lone Star Fund V (U.S.) L.P., 594 F.3d at 387). 
ARGUMENT8 
I. 
THE COMPLAINT DOES NOT ESTABLISH VENUE IN THIS DISTRICT 
Venue is not proper under the FCA’s venue provision, 31 U.S.C. § 3732(a), because it 
limits venue to a district in which one of the defendants “can be found, resides, transacts business, 
or in which any act proscribed by [S]ection 3729 occurred.”  31 U.S.C. § 3732(a); see also U.S. ex 
rel. Thistlethwaite v. Dowty Woodville Polymer, Ltd., 976 F. Supp. 207, 210 (S.D.N.Y. 1997) 
(explaining how the first sentence in Section 3732(a) prescribes how to establish venue under the 
FCA).  The Complaint makes only a conclusory allegation that “Defendants transacted business 
 
8 Mr. Frohwein incorporates by reference the legal arguments made in Ms. Petralia and Mr. Robinson’s individual 
briefs, to the extent they relate to Mr. Frohwein.   
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10 
in this district.”  Compl. ¶ 7.9  This is both legally insufficient and factually false.  
The plain terms of the FCA’s venue provision allow this lawsuit be brought in a location 
where a defendant presently “transacts business.”  See 31 U.S.C. § 3732(a) (using “transacts” in 
the present tense); see also U.S. v. Browne, 505 F.3d 1229, 1250 (11th Cir. 2007) (holding a 
statute’s use of present tense imposes a temporal limitation on its applicability).  The 
Government’s allegation that the Defendants transacted business in this district in the past is not 
enough under the plain meaning of the statute.  31 U.S.C. § 3732(a); cf. Sunbury Wire Rope Mfg. 
Co. v. U.S. Steel Corp., 230 F.2d 511, 512-13 (3d Cir. 1956) (interpreting similar language in the 
Clayton Act and holding that the venue provision was not satisfied because the defendant stopped 
its forum-related business activities prior to the lawsuit being filed).  Nor would it make sense:  
Under the Government’s approach, a district would forever be an appropriate venue merely 
because a defendant had at some point in the past transacted business there, even if unrelated to 
the cause of action.    
Moreover, by pleading that the Defendants transacted business in Texas, the Government 
impermissibly attributes the activities of Kabbage with those of the Defendants.  That is, while 
borrowers in this district may have applied for PPP loans through Kabbage (see Compl. ¶ 6), 
Kabbage is not a party to this lawsuit, and none of the Defendants are alleged to have taken any 
act in this district.  Because none of the Defendants personally transacted business in this district 
(see Background § II, supra), venue is improper here for this additional reason.  See, e.g., Hoover 
 
9 While the Complaint also references 28 U.S.C. § 1391(b), which is the general venue statute, the Complaint does 
not provide any explanation as to which of the three prongs of Section 1391(b) would apply, and the allegation that 
Defendants transacted business in the district through Kabbage in no way satisfies any of the three prongs.  See 28 
U.S.C. § 1391(b) (allowing venue to be sustained in one of three places:  “(1) a judicial district in which any defendant 
resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a 
substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the 
subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided 
in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect 
to such action”).   
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11 
Grp., Inc. v. Custom Metalcraft, Inc., 84 F.3d 1408, 1410 (Fed. Cir. 1996) (“[V]enue as to 
corporate employees charged with personal liability for acts taken as individuals, not as the alter 
ego of the corporation, does not flow automatically to forums in which venue is proper as to the 
corporation.”); see also 1A(2) J. Moore et al., Moore’s Federal Practice ¶ 0.340 (2d ed. 1995) 
(explaining that venue requirements must be satisfied by defendants themselves).    
While courts have discretion to transfer improperly filed cases to courts that do have venue, 
that would not be proper here because the Government could reasonably have foreseen that this 
district was an improper forum and transfer would not be in the “interest of justice.”  Seville v. 
Maersk Line, Ltd., 53 F.4th 890, 894-96 (5th Cir. 2022) (dismissing case on the basis of improper 
venue).  This is not a case of a mistake that the Court should excuse because it was made by an 
inexperienced litigant or counsel.  The Government chose to file this lawsuit in this district just 
three weeks before U.S. Attorney Damien Diggs resigned and issued two press releases about it.10  
Under these circumstances, and given the other deficiencies in the Complaint (see Argument §§ 
II-IV, infra), transfer would not be in the “interest of justice.”  Seville, 53 F.4th at 894.  “[I]t is 
obviously not in the interest of justice to allow [§ 1406(a)] to be used to aid a non-diligent plaintiff 
who knowingly files a case in the wrong district.”  Id. (citation omitted); see also Ekeocha v. U.S. 
Dep’t of State, 2024 U.S. Dist. LEXIS 206975, at *8-9 (N.D. Tex. Oct. 25, 2024) (holding that a 
 
10 The Government issued two press releases, including U.S. Attorney Diggs’s resignation announcement where he 
was touted as holding individuals responsible for Kabbage’s alleged fraud:  “U.S. Attorney Diggs also demonstrated 
a commitment to holding individuals, not just corporations, responsible for defrauding the government.  After 
obtaining a settlement with the bankrupt fintech company Kabbage, Inc. to receive a total unsubordinated general 
unsecured claim in the bankruptcy proceeding of up to $120 million, U.S. Attorney Diggs approved the United States’ 
intervention against three former executives of Kabbage, Inc.”  Press Release, U.S. Attorney’s Office, Eastern District 
of Texas, U.S. Attorney Damien M. Diggs Announces Departure (Jan. 10, 2025), https://www.justice.gov/usao-
edtx/pr/us-attorney-damien-m-diggs-announces-departure (Diggs’s resignation announcement); see also Press 
Release, U.S. Dep’t of Just. Off. of Pub. Affairs, United States Joins Lawsuit Against Former Executives of Kabbage 
Inc. Alleging False Claims Act Violations in Connection with Paycheck Protection Program Lending (Dec. 20, 2024), 
https://www.justice.gov/archives/opa/pr/united-states-joins-lawsuit-against-former-executives-kabbage-inc-alleging-
false-claims-act (Government first announcing a lawsuit was filed against Mr. Frohwein). 
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transfer would not aid in the interest of justice and that neither party “would be prejudiced if 
Plaintiff had to refile this case in a proper venue” because the case was in its “nascent stages”).   
II. 
THIS COURT LACKS PERSONAL JURISDICTION OVER MR. 
FROHWEIN 
The Complaint also does not allege personal jurisdiction over Mr. Frohwein in the State of 
Texas.  For personal jurisdiction to fall within the boundaries of due process, the Government must 
show that:  (1) Mr. Frohwein purposefully availed himself of the privileges of conducting activities 
in Texas by establishing “minimum contacts” with Texas such that he would reasonably anticipate 
being haled into court in Texas; and (2) exercising jurisdiction would not offend traditional notions 
of fair play and substantial justice.  See Jones v. Petty-Ray Geophysical Geosource, Inc., 954 F.2d 
1061, 1067-68 (5th Cir. 1992).  Personal jurisdiction can be general or specific.  Gundle Lining 
Constr. Corp. v. Adams Cnty. Asphalt, Inc., 85 F.3d 201, 205 (5th Cir. 1996).  “General personal 
jurisdiction is found when a nonresident defendant’s contacts with the forum state, even if 
unrelated to the cause of action, are continuous, systematic, and substantial.”  Marathon Oil Co. 
v. A.G. Ruhrgas, 182 F.3d 291, 295 (5th Cir. 1999).  Specific personal jurisdiction, by contrast, is 
found when a nonresident defendant’s contacts with the forum state arise from or are related to the 
cause of action.  Id.  This Court has neither over Mr. Frohwein. 
A. 
This Court Does Not Have General Jurisdiction Over Mr. Frohwein 
General jurisdiction exists only when the defendant’s contacts with the forum state are so 
“continuous and systematic as to render them essentially at home in the forum State.”  Daimler 
AG v. Bauman, 571 U.S. 117, 127, 137 (2014) (internal citations and quotations omitted) (stating 
that the paradigm forum for the exercise of general jurisdiction is the individual’s domicile); see 
also Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602, 609 (5th Cir. 2008) (holding that 
substantial, continuous, and systematic contacts is a difficult standard to meet).  It is beyond 
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13 
dispute that Mr. Frohwein is not “at home” in Texas.  The Complaint alleges that Mr. Frohwein 
resides in California (Compl. ¶ 11), and there is no allegation that he has any relationship to Texas.  
Mr. Frohwein confirms in an uncontested declaration that he is domiciled in California.  See Ex. 1 
¶ 1; see also Background § II.  For these reasons, this Court cannot exercise general personal 
jurisdiction over Mr. Frohwein. 
B. 
This Court Does Not Have Specific Jurisdiction Over Mr. Frohwein 
Specific jurisdiction, or “case-linked” jurisdiction, exists only when the suit “arises out of 
or relates to the defendant’s contacts with the forum.”  Daimler AG, 571 U.S. at 127 (internal 
citations omitted).  “[T]here must be an affiliation between the forum and the underlying 
controversy, principally, [an] activity or an occurrence that takes place in the forum State and is 
therefore subject to the State’s regulation.”  Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 582 
U.S. 255, 262 (2017) (internal citations and quotations omitted).  This circuit applies a three-step 
test for determining specific personal jurisdiction:  (1) whether the defendant has minimum 
contacts with the forum state, i.e., whether it purposely directed its activities toward the forum 
state or purposefully availed itself of the privileges of conducting activities there; (2) whether the 
plaintiff’s cause of action arises out of or results from the defendant’s forum-related contacts; and 
(3) whether the exercise of personal jurisdiction is fair and reasonable.”  Shambaugh & Son, L.P. 
v. Steadfast Ins. Co., 91 F.4th 364, 372 (5th Cir. 2024).  The Government’s action against Mr. 
Frohwein fails each prong.   
First, the Complaint fails to allege any contacts that Mr. Frohwein has with Texas.  Nor 
does the Complaint allege that Mr. Frohwein took any act in the State of Texas related to the claims 
at issue in this lawsuit.  He is not alleged to have talked to persons located in Texas, reviewed loan 
applications for borrowers located in Texas, or taken any act to disburse funds to persons in Texas.  
Similar to its venue allegation, the Complaint alleges personal jurisdiction based on the allegation 
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14 
that Mr. Frohwein “through Kabbage, transacted business in this district.”  Compl. ¶ 6.  The 
minimum contacts required to exercise personal jurisdiction can only be established based on 
“contacts that the ‘defendant himself’ creates.”  Walden v. Fiore, 571 U.S. 277, 284 (2014) (citation 
omitted).  That Mr. Frohwein worked for a company that helped to provide loans to borrowers in 
Texas does not confer personal jurisdiction over him personally.   
Moreover, even if Mr. Frohwein had taken acts in, or directed at, Texas, the fiduciary shield 
doctrine provides that any acts taken solely in his capacity as a corporate officer for Kabbage 
cannot form the basis for personal jurisdiction over him except under limited circumstances not 
relevant here.11  Stuart, 772 F.2d at 1197.  The fiduciary shield doctrine is justified because “‘it is 
unfair to force an individual to defend a suit brought against him personally in a forum with which 
his only relevant contacts are acts performed not for his own benefit but for the benefit of his 
employer.”’  Saktides v. Cooper, 742 F. Supp. 382, 385 (W.D. Tex. 1990) (quoting Marine 
Midland Bank v. Miller, 664 F.2d 899, 902 (2d Cir. 1981)).   
Second, requiring Mr. Frohwein, a California resident with no personal connection to 
Texas, to defend himself in time-consuming and costly litigation in Texas would not be fair or 
reasonable.  Specifically, forcing the Defendants to litigate this case in Texas where they are all 
non-residents with no meaningful contacts or familiarity with the forum would impose a significant 
and unreasonable burden on them.  See Bustos v. Lennon, 538 F. App’x 565, 568 (5th Cir. 2013) 
(holding that personal jurisdiction fails to comport with “fair play and substantial justice” where 
all defendants live and work outside of Texas).  This burden is particularly unjustified when there 
 
11 The fiduciary shield doctrine provides an exception for instances in which it is alleged that individual defendants 
are the alter ego of the corporation for which they work.  See Stuart, 772 F.2d at 1197.  The Government does not 
allege that Mr. Frohwein is the alter ego of Kabbage here, nor could it.  See Savoie v. Pritchard, 122 F.4th 185, 192-
93 (5th Cir. 2024) (alter ego requires “control of internal business operations and affairs . . . to a greater degree ‘than 
that normally associated with common ownership and directorship’ such that [the defendant] and [the company] ‘cease 
be separate.’”).  
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15 
is no reason the Government must litigate this case in Texas as compared to any other state—like 
Georgia, where Kabbage was based and where each of the Defendants lived and worked at the 
time of the events giving rise to the claims at issue in this case (see Background §§ I-II).  See 
Cunningham v. Assured Auto Grp., No. 4:20-CV-41, 2021 U.S. Dist. LEXIS 56888, at *16 (E.D. 
Tex. Mar. 2, 2021) (“Forcing the Company and Individual Defendants, all non-residents of Texas 
who have no meaningful contacts with Texas, to defend a lawsuit in Texas when Plaintiff has not 
supported allegations that the Company or Individual Defendants aim any conduct at Texas as 
compared to any other state would impose an unjustified and unconstitutional burden on the 
Company and Individual Defendants.”).   
For these reasons, this Court cannot exercise specific personal jurisdiction over Mr. 
Frohwein in the State of Texas. 
C. 
The Government Cannot Rely on Nationwide Contacts to Establish 
Personal Jurisdiction Over Mr. Frohwein in Texas 
The Government may argue that the Court should consider Mr. Frohwein’s minimum 
contacts with the United States in deciding whether it has personal jurisdiction.  But the Fifth 
Circuit caselaw that applies a “national contacts” test for personal jurisdiction is inapplicable 
because it does not consider the FCA or involve a nationwide service of process clause that is 
dependent on first establishing proper venue.  See generally Busch v. Buchman, Buchman & 
O’Brien, L. Firm, 11 F.3d 1255, 1258 (5th Cir. 1994) (applying national contacts test in a case 
brought under the Exchange Act); Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Mich., 97 F.3d 
822, 826 (5th Cir. 1996) (applying a national contacts test in ERISA case while notably disagreeing 
with the holding in Busch permitting such a test); see also Luallen v. Higgs, 277 F. App’x 402, 
405 (5th Cir. 2008) (unpublished) (questioning but following Busch).     
Unlike ERISA and the Exchange Act, the FCA only permits nationwide service of process 
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16 
when the summons issues from an “appropriate court,” meaning “one in which venue is 
appropriate as described in the first sentence.”  U.S. ex rel. Krohn v. Sun W. Servs., Inc., No. CIV-
97-0644-JC/WWD, 2000 WL 36739959, at *6 (D.N.M. Apr. 11, 2000); see also Thistlethwaite, 
976 F. Supp. at 210 (likewise explaining that “‘appropriate’ refers back to the first sentence of 
[S]ection 3732(a), which describes where venue is appropriate.”).  Thus, this sentence “limits the 
exercise of jurisdiction by providing that while a summons may be served anywhere, it may issue 
only from an appropriate district court.”  Krohn, 2000 WL 36739959, at *6; see also 
Thistlethwaite, 976 F. Supp. at 210.  Because the Government has brought this case in an improper 
venue and, therefore, has not satisfied the venue provision in Section 3732(a), there is no statutory 
basis for nationwide service of process and, therefore, a national contacts test cannot be applied.  
Cf. Caldwell v. Palmetto State Sav. Bank of S.C., 811 F.2d 916, 918 (5th Cir. 1987) (providing for 
nationwide service of process only after certain requirements are met).12   
As a result, the relevant inquiry is whether Mr. Frohwein has minimum contacts with the 
State of Texas.  He does not (see Argument § I.A-B, supra), and thus, this Court has no personal 
jurisdiction over him.   
 
12 In Caldwell, the Fifth Circuit discussed the interplay between venue and personal jurisdiction in the context of the 
RICO statute.  There, the plaintiffs argued that a Texas district court had personal jurisdiction over nonresident 
defendants because RICO provides for nationwide service of process.  Id. at 918.  The Fifth Circuit, however, noted 
Section 1965(a)’s requirement that civil actions be brought where a defendant “resides, is found, has an agent, or 
transacts his affairs.”  Id. (citing 18 U.S.C. § 1965(a)).  Because none of the nonresident defendants in Caldwell 
conducted business in Texas, the court concluded that RICO could not provide a basis for personal jurisdiction.  Id.  
While the FCA’s venue and nationwide service of process provisions are distinct (and arguably more stringent), the 
same logic applies here.  Id.; cf. Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 423 (2d Cir. 2005) (holding that 
the Clayton Act’s worldwide service of process clause “may be invoked to establish personal jurisdiction only when 
the requirements of the section’s venue provision are satisfied”) (emphasis added); accord KM Enters., Inc. v. Glob. 
Traffic Techs., Inc., 725 F.3d 718, 726-28 (7th Cir. 2013); GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 
1343, 1351 (D.C. Cir. 2000). 
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III. 
THE COMPLAINT DOES NOT STATE AN FCA CLAIM AGAINST MR. 
FROHWEIN 
The Government does not allege that Mr. Frohwein personally caused the submission of 
any false claim, made any false statement, or engaged in any fraudulent conduct with the requisite 
scienter.  To state a cause of action under the FCA, the Government must plead with particularity 
that there (1) was a false statement or fraudulent course of conduct (2) made or carried out with 
the requisite scienter (3) that was material and (4) caused the government to pay out money.  See 
Gonzalez v. Fresenius Med. Care N. Am., 689 F.3d 470, 475 (5th Cir. 2012). 
A. 
The Complaint Does Not Sufficiently Allege That Mr. Frohwein 
Submitted, Or Caused the Submission of, False Claims or Statements 
To prevail under the FCA, the Government must plead with particularity Mr. Frohwein’s 
personal, knowing involvement in the submission of false claims.  31 U.S.C. § 3729(a)(1)(A).  The 
FCA indisputably requires personal participation in the submission of false claims.  See, e.g., U.S. 
v. Bornstein, 423 U.S. 303, 312 (1976) (“The [FCA], in short, penalizes a person for his own acts, 
not for the acts of someone else.”) (emphasis added).  Courts have emphasized that FCA liability 
must be based on personal misconduct.  See, e.g., U.S. ex rel. Landis v. Tailwind Sports Corp., 51 
F. Supp. 3d 9, 50 (D.D.C. 2014) (“[T]o impose liability under the FCA, particularly where a 
plaintiff alleges that the defendant ‘caused’ the submission of false claims,” the defendant must 
have done an “affirmative[] act.”); U.S. v. President & Fellows of Harvard Coll., 323 F. Supp. 2d 
151, 186-87 (D. Mass. 2004) (“To ‘cause’ the presentation of false claims under the FCA, some 
degree of participation in the claims process is required.”).  Even “mere knowledge of the 
submission of claims and knowledge of the falsity of those claims is insufficient.”  President & 
Fellows of Harvard Coll., 323 F. Supp. 2d at 186.  
Instead of alleging Mr. Frohwein’s specific, personal involvement in the supposed fraud 
scheme, the Complaint repeatedly refers to:  (1) alleged acts by Kabbage or other Kabbage 
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18 
employees,13 and (2) conclusory allegations about the “Defendants.”14  See, e.g., Compl. ¶¶ 290 
(“Kabbage submitted and caused the submission of false claims to the SBA”) (emphasis added) & 
298 (“Defendants caused the submission of false claims”) (emphasis added).  The few allegations 
that are specific to Mr. Frohwein largely describe ordinary conduct relating to his role as 
Kabbage’s CEO.  See, e.g., Compl. ¶¶ 3, 70 (alleging that Mr. Frohwein “direct[ed] and 
control[led]” the Company and was “responsible for overseeing” all employees and day-to-day 
operations).   
The Government cannot sustain an FCA claim against Mr. Frohwein just because he was 
CEO of a company that allegedly submitted false claims or made false statements.  Courts have 
dismissed cases brought on similar theories.  See, e.g., U.S. ex rel. Haight v. RRSA (Commer. Div.), 
LLC, No. 3:16-CV-1975-S, 2020 U.S. Dist. LEXIS 195267, at *13 (N.D. Tex. Oct. 20, 2020) 
(dismissing claims against individual despite allegations that she (1) “exercise[ed] control over” 
certain of the defendant corporations and (2) was chief financial officer and “involved ‘in all 
aspects of the business’” of a defendant corporation); U.S. v. Villaspring Health Care Ctr., Inc., 
No. 3:11-43-DCR, 2011 WL 6337455, at *9-10 (E.D. Ky. Dec. 19, 2011) (dismissing claims 
against CEO because “‘direct and indirect control of [a company]’ is not enough” to create FCA 
liability).  FCA liability only attaches to “those who present or directly induce the submission of 
false or fraudulent claims,” which the Complaint does not allege Mr. Frohwein has done here.  
 
13 See Compl. ¶¶ 10, 12, 18, 45, 51-59, 61, 63, 64, 67, 69, 73-75, 77, 81-83, 85-92, 94-97, 101, 103-05, 108-25, 127-
31, 135, 140, 143-46, 148-55, 158-62, 164, 167, 169, 172-76, 180-85, 187, 189, 193-95, 201, 202, 204-11, 213-17, 
221, 223, 225, 227, 230-46, 248-55, 257, 260, 261, 263-69, 272, 273, 275, 277, 278, 282, 284-87, 289-91, 294, 296, 
297, 302-06, 310, 314-21, 324-29, 341, 350, 351 (allegations concerning conduct by Kabbage and/or other Kabbage 
employees who are not parties to this case). 
14 See Compl. ¶¶ 2-4, 6-7, 9, 47-51, 59-60, 62-63, 65-66, 68, 70-71, 73-81, 84, 99, 100, 102-04, 120, 131-32, 139, 
142, 147, 157, 165, 167, 170-71, 177, 179, 186, 188, 190, 192, 196, 198-99, 203, 205-06, 211, 218-20, 224, 228-29, 
247, 258-59, 274, 276, 281, 288, 290, 293, 295-96, 298-300, 302-05, 307-08, 311-13, 315-20, 322-23, 325-29, 331-
34, 336, 339-40, 342, 344, 347-48, 353-54, 356-59, 362-64 (allegations concerning conduct by Defendants 
collectively).   
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Universal Health Servs., Inc. v. U.S. ex rel. Escobar, 579 U.S. 176, 182 (2016) (emphasis added).   
B. 
The Complaint Does Not Adequately Allege Mr. Frohwein’s Scienter 
The Government has not adequately pled Mr. Frohwein’s scienter either.  Scienter under 
the FCA “is an elevated standard” that must be “strict[ly] enforce[d].”  U.S. ex rel. Johnson v. 
Kaner Med. Grp., P.A., 641 F. App’x 391, 394 (5th Cir. 2016) (quotations omitted); Escobar, 579 
U.S. at 192.  To satisfy the FCA’s knowledge element, the Government must allege that Mr. 
Frohwein acted with “actual knowledge,” “deliberate ignorance,” or “in reckless disregard of the 
truth or falsity of the information” that allegedly renders a claim false.  31 U.S.C. § 3729(b).  Mere 
“negligence” and “innocent mistakes” do not suffice.  U.S. v. Southland Mgmt. Corp., 326 F.3d 
669, 681-82 (5th Cir. 2003) (Jones, J., concurring).  “‘Although Rule 9(b) expressly allows scienter 
to be “averred generally,” simple allegations that [a] defendant[] possess[es] fraudulent intent will 
not satisfy Rule 9(b).’”  Health Choice Alliance, LLC, No. 5:17-CV-123-RWS-CMC, 2018 WL 
4026986, at *5 (quoting U.S. ex rel. Vavra v. Kellogg Brown & Root, Inc., 903 F. Supp. 2d 473, 
485 (E.D. Tex. 2011), rev’d on other grounds, 727 F.3d 343 (5th Cir. 2013)).  The Government 
“‘must set forth specific facts supporting an inference of fraud.’”  Vavra, 903 F. Supp. 2d at 485 
(quoting Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 339 (5th Cir. 2008)) (emphasis original).  
And, importantly, the Government cannot establish the FCA’s scienter requirement solely based 
on the fact that a defendant “had a high-ranking position,” as such a “loose” type of constructive 
knowledge is “inconsistent with the Act’s language structure, and purpose.”  Landis, 51 F. Supp. 
3d at 52 (citations and quotations omitted).   
The Government has not met this burden.  Rather, like the rest of its allegations, the 
Complaint’s allegations of “knowledge” improperly attribute to Mr. Frohwein the collective 
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20 
knowledge of other persons and Kabbage.15  The Complaint contains no allegations from which a 
factfinder could infer that Mr. Frohwein knew, or was deliberate or reckless in not knowing, that 
Kabbage was submitting false or fraudulent claims to the SBA.  We address each of these 
allegations, in turn, below.    
1. 
The Complaint Does Not Allege That Mr. Frohwein Had 
Knowledge of the SALT Issue 
In an attempt to tie Mr. Frohwein to the SALT Issue, the Complaint references two 
instances in which a question about Kabbage’s loan calculation methodology was raised to him.  
Specifically, the Complaint references an April 20, 2020, email from one of Kabbage’s lending 
partners to Mr. Frohwein that relays a question from a PPP borrower about Kabbage’s use of state 
and local income taxes in its loan calculation (see Compl. ¶ 133; Ex. 2 at 1-2), and an April 24, 
2020 voicemail from a CPA alleging that Kabbage’s loan calculation was flawed (see Compl. ¶ 
137; Ex. 3 at 1-3).  Neither of these communications shows that Mr. Frohwein knew that there was 
a problem with Kabbage’s loan calculation that was causing loan amounts to be inflated.   
Indeed, a review of the communications shows that, contrary to what the Complaint alleges 
(see Compl. ¶ 136), Mr. Frohwein instructed his team to investigate the questions that were raised 
to him, and that he was subsequently assured that there was no error in Kabbage’s loan calculation 
methodology.  See Ex. 2 at 1; Ex. 3 at 1-3.  This is the exact opposite of acting with “reckless 
disregard,” the lowest scienter threshold under the FCA.  U.S. ex rel. Farmer v. City of Hous., 523 
F.3d 333, 343 (5th Cir. 2008) (“[T]he FCA’s onerous mens rea requirement [is], at a minimum, 
 
15 See, e.g., Compl. ¶¶ 62, 84, 103, 147, 167, 188, 190, 196, 206, 219-20, 228-29, 293, 296, 308 (allegations concerning 
what “Defendants knew”); ¶¶ 2, 315-20, 325-29 (allegations concerning what “Kabbage knew”).  For example, the 
Complaint contains alleges that “Defendants knew that Kabbage was systematically approving fraudulent PPP loans 
and disbursing funds to fraudulent PPP borrowers” (Compl. ¶ 228), and that “Kabbage knowingly inflated loan 
amounts of tens of thousands of PPP loans by systematically double-counting employees’ state and local taxes [ ] and 
by including annual per-employee compensation in excess of $100,000 in calculating borrowers’ average monthly 
payroll, contrary to statute and SBA regulations” (id. ¶ 2). 
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21 
reckless indifference.” (emphasis added)).  Courts do not find FCA violations when defendants 
follow up on reported issues, as Mr. Frohwein did.  See, e.g., Urquilla-Diaz v. Kaplan Univ., 780 
F.3d 1039, 1058, 1061-62 (11th Cir. 2015) (finding a CEO who “relied on the opinions of his 
subordinates, including those charged with compliance, and had no reason to believe that [the 
company’s] policies violated the [relevant] regulations” did not meet the reckless disregard 
standard); U.S. ex rel. Williams v. Renal Care Grp., Inc., 696 F.3d 518, 531 (6th Cir. 2012) 
(concluding that defendants demonstrated a lack of scienter by “consistently s[eeking] clarification 
on the issue”).   
2. 
The Complaint Does Not Allege That Mr. Frohwein Had 
Knowledge of the $100K Issue 
The Complaint lodges two specific allegations that purportedly put Mr. Frohwein on notice 
of the $100K Issue, but neither establishes that he acted with actual knowledge or even reckless 
disregard of the alleged issue.   
First, the Complaint alleges that Mr. Frohwein received a draft report from consultant 
Alvarez & Marsal (“A&M”) who “recommended that Kabbage update the language in its loan 
calculation procedures regarding compensation of an individual employee in excess of $100,000 
per year.”  Compl. ¶ 168.  But the Complaint does not allege that A&M told Kabbage that its loan 
calculation procedure was incorrect.  As such, this claim cannot plausibly be interpreted to have 
put Mr. Frohwein on notice of the alleged $100K Issue.   
Second, the Complaint alleges that on July 16, 2020, a Kabbage employee copied Mr. 
Frohwein on a forwarded email from a journalist who inquired about SBA data reflecting that 
Kabbage had approved loans for borrowers who did not qualify for the loan amounts.  Id. ¶ 178.  
Yet the email underlying this allegation demonstrates that Mr. Frohwein’s team investigated the 
journalist’s concerns and reported that they were unfounded.  Ex. 4 at 1-2; see also Script Sec. 
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22 
Sols. L.L.C., 170 F. Supp. 3d at 935 (noting a court may consider documents attached to a motion 
to dismiss that are central to claims referenced in the complaint).  As such, this email does not 
establish that Mr. Frohwein acted with “reckless disregard of” the $100K Issue, let alone with 
“actual knowledge” or “deliberate ignorance.”  See, e.g., Urquilla-Diaz, 780 F.3d at 1058, 1061-
62 (defendant did not act with the reckless disregard because he relied on subordinates and had no 
reason to believe there was a violation); Williams, 696 F.3d at 531 (defendants demonstrated a 
lack of scienter by “consistently s[eeking] clarification on the issue”). 
3. 
The Complaint Does Not Allege That Mr. Frohwein Knew That 
Kabbage Failed to Comply With PPP Lender Requirements 
The Complaint also does not allege that Mr. Frohwein knew that Kabbage failed to comply 
with PPP lending requirements at the time Kabbage submitted allegedly false claims.  U.S. ex rel. 
Schutte v. SuperValu Inc., 598 U.S. 739, 749 (2023).16  The Complaint alleges that Kabbage failed 
to comply with the requirement that PPP lenders (1) have a BSA/AML program “equivalent to 
that of a comparable federally regulated institution” (Compl. ¶ 45), and (2) perform a “good faith 
review” of borrowers’ PPP applications and supporting documentation (id. ¶ 48).  But, notably, 
the Complaint does not explain what these requirements mean.  This is unsurprising.  The PPP was 
haphazardly rolled out at the height of the COVID-19 pandemic, and the government’s guidance 
to lenders has widely been criticized as unclear, insufficient, and ever-changing.  See Joint Motion 
at Background § C.   
Because the PPP lender requirements were so widely regarded as vague (see id.), one 
cannot reasonably infer that Mr. Frohwein nor anyone else could have knowingly failed to comply 
with them at the time.  Indeed, the converse can be inferred from the allegations in the Complaint:  
 
16 “The FCA is a fraud prevention statute”—not a “technical compliance” statute.  U.S. ex rel. Lamers v. City of 
Green Bay, 168 F.3d 1013, 1020 (7th Cir. 1999).  A regulatory violation is “not fraud unless the violator knowingly 
lies to the government about [it].”  Id. (emphasis added). 
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23 
That Mr. Frohwein subjectively believed Kabbage was in compliance with PPP lending 
requirements.  When “guidance allow[s] for more than one reasonable interpretation, it would defy 
history and current thinking to treat a defendant who merely adopts one such interpretation as a 
knowing or reckless violator.”  Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 70 n.20 (2007); see 
U.S. ex rel. Purcell v. MWI Corp., 807 F.3d 281, 288 (D.C. Cir. 2015) (“[E]stablishing even the 
loosest standard of knowledge, i.e., acting in reckless disregard of the truth or falsity of the 
information[,] is difficult when falsity turns on a disputed interpretive question.”) (internal 
quotations omitted); U.S. ex rel. Krawitt v. Infosys Techs. Ltd., 372 F. Supp. 3d 1078, 1089-90 
(N.D. Cal. 2019) (dismissing complaint where the vagueness of applicable regulations precluded 
a finding of scienter).   
The Complaint seems to rely on two allegations to argue Mr. Frohwein knew Kabbage was 
not in compliance with these PPP lending requirements:  (1) that he was on certain communications 
about PPP borrower fraud, and (2) that he received a consultant report on Kabbage’s BSA/AML 
program.  As to the former, the Complaint’s references to discussions in which Mr. Frohwein 
participated concerning borrower fraud do not show that he knew Kabbage was failing to comply 
with PPP lender requirements.  See, e.g., Compl. ¶¶ 279-80.  Rather, they reflect that Mr. Frohwein 
knew what the SBA knew:  There would be some level of borrower fraud in the PPP.  See Joint 
Motion at Background § D.   
The Government cannot establish scienter when it knowingly accepted a risk of fraud in 
the program, urged lenders to relax their underwriting guidelines and rely on borrower attestations, 
and publicly proclaimed that it would pursue fraudulent borrowers on the backend.  See Southland 
Mgmt. Corp., 326 F.3d at 681-82 (Jones, J., concurring) (“[A] presenter cannot be said to have 
knowingly presented a fraudulent or false claim” where “the government knows and approves of 
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24 
the particulars of [the] claim for payment before that claim is presented” (quoting U.S. ex rel. 
Durcholz v. FKW, Inc., 189 F.3d 542, 545 (7th Cir. 1999)) (emphasis added); see also U.S. ex rel. 
Butler v. Hughes Helicopters, Inc., 71 F.3d 321, 328 (9th Cir. 1995) (“Even if the discrepancy 
constituted a false statement, the [government] knew of the discrepancy, and so [defendant] did 
not ‘knowingly’ submit a false claim.”).   
Beyond the Complaint’s mere references to communications discussing borrower fraud in 
the PPP, the Government’s only other allegation concerns Mr. Frohwein’s reaction to a June 2020 
A&M report that analyzed the Company’s PPP compliance.  Compl. ¶¶ 254, 256.  However, the 
A&M report found that Kabbage was actually in compliance with PPP lender requirements, 
concluding:  
Overall, A&M observed a PPP compliance program that generally 
appears to be consistent with the SBA’s PPP Interim Final Rules 
guidance and applicable BSA/AML and OFAC requirements and 
our understanding of regulatory expectations.  We also observed that 
Kabbage is currently in the midst of enhancing controls and making 
key operational changes to comply with evolving SBA PPP 
guidance changes. 
Ex. 5 at 3.  Because A&M’s report found that Kabbage was adhering to the PPP’s requirements, 
it cannot form the basis of Mr. Frohwein’s knowledge that Kabbage was violating them and 
thereby submitting false claims to the SBA.  Compl. ¶ 256.   
IV. 
THE COMPLAINT FAILS TO ALLEGE THAT MR. FROHWEIN WAS 
UNJUSTLY ENRICHED OR PAID BY MISTAKE 
Equally flawed are the Government’s claims that Mr. Frohwein was unjustly enriched or 
paid based on a mistake of fact, both of which must be pled with particularity under Rule 9(b).  
See Compl. ¶¶ 354-364; see also METX, LLC v. Wal-Mart Stores Tex., LLC, 62 F. Supp. 3d 569, 
586 (E.D. Tex. 2014) (applying Rule 9(b)’s heightened pleading standard to unjust enrichment 
claim); Fed. R. Civ. P. 9(b) (allegations of “fraud or mistake” must be pled with particularity) 
(emphasis added).  The Government makes no non-conclusory allegations to support either of 
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25 
these counts and instead simply “re-alleges and incorporates by reference all [other] paragraphs 
[in the] [C]omplaint.”  Compl. ¶¶ 355, 361.  Unjust enrichment and payment by mistake claims 
fail if premised on the same fraud as the government’s insufficiently pled FCA claims.  See U.S. 
v. Peters, No. 2:24-cv-00287, 2024 WL 3378034, at *6 (E.D. Cal. July 11, 2024).  Because the 
Government has not alleged the fraud underlying its FCA claims with the requisite particularity, 
its unjust enrichment and payment by mistake claims—which are based on the same purported 
misconduct—also fail.   
Moreover, to state the obvious, the SBA paid Kabbage—not Mr. Frohwein—for services 
Kabbage provided under the PPP.  The Complaint does not allege that Mr. Frohwein received any 
direct benefit from fees the SBA paid Kabbage.  Rather, the Complaint merely alleges that:  
Kabbage paid him a salary and bonus payments for his role as CEO (Compl. ¶ 79); he received a 
pay-out for the sale of Kabbage to American Express (id. ¶ 80); and American Express paid him a 
retention bonus following that acquisition (id. ¶ 81).  Courts frequently dismiss unjust enrichment 
and payment by mistake claims where, as here, there is no direct link between the plaintiff’s 
missing funds and the benefit conferred on the defendant.  See, e.g., U.S. ex rel. Silva v. VICI 
Mktg., LLC, 361 F. Supp. 3d 1245, 1257-58 (M.D. Fla. 2019) (dismissing unjust enrichment and 
payment by mistake claims where defendant did not directly benefit); Gearhart v. Express Scripts, 
Inc., 422 F. Supp. 3d 1217, 1226-27 (E.D. Ky. 2019) (rejecting unjust enrichment claim where “at 
least two steps” separated any benefit from plaintiff to defendant).  The Court should therefore 
dismiss these additional counts, as Mr. Frohwein was not paid by mistake or unjustly enriched.   
CONCLUSION 
For the reasons stated herein, Mr. Frohwein respectfully requests that the Court dismiss all 
of the Government’s claims with prejudice under Rule 12(b).  
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26 
Dated: March 11, 2025 
 
 
 
Respectfully submitted, 
By:       /s/ Alexander J. Chern 
 
 
Miranda Hooker (pro hac vice)  
Kate E. MacLeman (pro hac vice) 
Kara N. Czekai (pro hac vice)  
GOODWIN PROCTER LLP  
100 Northern Avenue  
Boston, Massachusetts 02210 
Telephone: (617) 570-1000 
Fax: (617) 523-1231   
MHooker@goodwinlaw.com  
KMacLeman@goodwinlaw.com   
KCzekai@goodwinlaw.com  
Nicholas M. Mathews 
Alexander J. Chern 
MCKOOL SMITH, PC  
300 Crescent Court, Suite 1500 
Dallas, TX 75201 
Telephone: (214) 978-4258 
Fax: (214) 978-4044 
NMathews@mckoolsmith.com 
AChern@mckoolsmith.com 
 
ATTORNEYS FOR DEFENDANT 
ROBERT FROHWEIN 
 
 
 
 
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27 
CERTIFICATE OF SERVICE 
 
I hereby certify that on March 11, 2025, I caused the foregoing to be electronically filed 
with the Clerk of the Court using the CM/ECF system, which sent notification of filing to all 
attorneys of record. 
 
 
 
 
 
 
/s/ Alexander J. Chern 
 
 
Alexander J. Chern          
Case 4:21-cv-00110-SDJ     Document 68     Filed 03/11/25     Page 34 of 34 PageID #:  588

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