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Case 3:21-cv-02636-B Document 104 Filed 07/11/22 Page 1 of 26 PageID 1880
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
OTO ANALYTICS, INC. d/b/a WOMPLY, §
§
Plaintiff, §
§
v. § Civil Action No. 3:21-cv-2636-B
§
CAPITAL PLUS FINANCIAL, LLC, §
CROSSROADS SYSTEMS, INC., ERIC §
DONNELLY, BA FIN ORION, LLC d/b/a §
BLUEACORN, and BARRY CALHOUN, §
§
Defendants.
PLAINTIFF’S SECOND OPPOSED MOTION (1) FOR RECONSIDERATION OF THE
COURT’S ORDER DISMISSING THE BLUEACORN DEFENDANTS FOR LACK OF
PERSONAL JURISDICTION UNDER THE CURRENT COMPLAINT, (2) FOR LEAVE
TO REPLEAD ITS CLAIMS AGAINST BLUEACORN, OR (3) TO DIRECT ENTRY OF
FINAL, APPEALABLE JUDGMENT AS TO BLUEACORN
Alexander L. Cheney (admitted pro hac vice) Nina Cortell
Willkie Farr & Gallagher LLP Texas Bar No. 04844500
One Front Street Jason P. Bloom
San Francisco, CA 94111 Texas Bar No. 24045511
(415) 858-7400 Haynes and Boone, LLP
acheney@willkie.com 2323 Victory Avenue, Suite 700
Dallas, TX 75219
Mark T. Stancil (admitted pro hac vice) (214) 651-5000
Joshua S. Levy (admitted pro hac vice) jason.bloom@haynesboone.com
Willkie Farr & Gallagher LLP nina.cortell@haynesboone.com
1875 K Street, N.W.
Washington, D.C. 20006
(202) 303-1000
mstancil@willkie.com
jlevy@willkie.com
Attorneys for Plaintiff Oto Analytics, Inc.
d/b/a Womply
July 11, 2022
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .....................................................................................................1
ARGUMENT ...................................................................................................................................4
I. THE COURT SHOULD RECONSIDER ITS ORDER DISMISSING
BLUEACORN FOR LACK OF PERSONAL JURISDICTION BASED ON THE
COMPLAINT. .....................................................................................................................4
A. The Complaint Alleges That Womply’s Contract Claims Against Blueacorn
Have A Substantial Connection to Texas. ...............................................................5
B. The Complaint Alleges That Womply’s Tort Claims Against Blueacorn
Have A Substantial Connection To Texas. ............................................................12
II. ALTERNATIVELY, THE COURT SHOULD SET ASIDE ITS ORDER AND
PERMIT WOMPLY TO REPLEAD ITS CLAIMS AGAINST BLUEACORN IN
ITS SECOND AMENDED COMPLAINT. ......................................................................15
III. IN THE ALTERNATIVE, THE COURT SHOULD DIRECT ENTRY OF FINAL
JUDGMENT AS TO BLUEACORN UNDER FED. R. CIV. P. 54(b). ...........................17
CONCLUSION AND PRAYER FOR RELIEF ............................................................................19
CERTIFICATE OF CONFERENCE .............................................................................................21
CERTIFICATE OF SERVICE ......................................................................................................21
Case 3:21-cv-02636-B Document 104 Filed 07/11/22 Page 3 of 26 PageID 1882
TABLE OF AUTHORITIES
Cases Page(s)
Am. Airlines, Inc. v. Rogerson ATS,
952 F. Supp. 377 (N.D. Tex. 1996) .........................................................................................10
Anderson v. T&D Machine Handling Inc.,
85 F.3d 625 (5th Cir. 1996) .....................................................................................................19
Animale Grp., Inc. v. Sunny’s Perfume, Inc.,
2007 WL 2010476 (S.D. Tex. July 5, 2007) ......................................................................17, 19
Atwood Hatcheries v. Heisdorf & Nelson Farms,
357 F.2d 847 (5th Cir. 1996) .....................................................................................................9
Aubrey v. D Mag. Partners, L.P.,
2020 WL 619839 (N.D. Tex. Feb. 10, 2020) .............................................................................4
Austin v. Kroger Texas, L.P.,
864 F.3d 326 (5th Cir. 2017) .....................................................................................................4
Avdeef v. Google, Inc.,
678 F. App’x 239 (5th Cir. 2017) ............................................................................................18
Bristol-Myers Squibb Co. v. Super. Ct. of Cal., San Francisco Cty.,
137 S. Ct. 1773 (2017) ...............................................................................................................9
Burger King Corp. v. Rudzewicz,
471 U.S. 462 (1985) ......................................................................................................... passim
Calder v. Jones,
465 U.S. 783 (1984) .................................................................................................................13
Cent. Freight Lines Inc. v. APA Transp. Corp.,
322 F.3d 376 (5th Cir. 2003) ...................................................................................................13
Cooper Tire & Rubber Co. v. Farese,
423 F.3d 446 (5th Cir. 2005) ...................................................................................................18
Danziger & De Llano v. Morgan Verkamp L.L.C.,
24 F.4th 491 (5th Cir. 2022) ................................................................................................3, 14
Def. Distributed v. Grewal,
971 F.3d 485 (5th Cir. 2020) ...................................................................................................13
Dubea v. Simpson,
2009 WL 528258 (E.D. Tex. Mar. 2, 2009) ..............................................................................9
- ii -
Case 3:21-cv-02636-B Document 104 Filed 07/11/22 Page 4 of 26 PageID 1883
Ex Parte Reindel,
963 So.2d 614 (Ala. 2007) .......................................................................................................15
Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct.,
141 S. Ct. 1017 (2021) ...........................................................................................................8, 9
Franklin v. N.,
2012 WL 12878159 (N.D. Tex. July 6, 2012) .........................................................................19
Freedom Path, Inc. v. Lerner,
2015 WL 770254 (N.D. Tex. Feb. 24, 2015) ...........................................................................19
Guidry v. U.S. Tobacco Co., Inc.,
188 F.3d 619 (5th Cir. 1999) ...................................................................................................14
Hoffman v. L&M Arts,
774 F. Supp. 2d 826 (N.D. Tex. 2011) ....................................................................................18
Int’l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd.,
818 F.3d 193 (5th Cir. 2016) .........................................................................................5, 6, 7, 8
J & M Assocs., Inc. v. Romero,
488 F. App’x 373 (11th Cir. 2012) ..........................................................................................15
Lavespere v. Niagara Mach. & Tool Works, Inc.,
910 F.2d 167 (5th Cir. 1990) .....................................................................................................4
McGee v. Int’l Life Ins. Co.,
355 U.S. 220 (1957) ...........................................................................................................11, 12
Miss. Interstate Express, Inc. v. Transpo, Inc.,
681 F.2d 1003 (5th Cir. 1982) .................................................................................................13
Monkton Ins. Servs. Ltd. v. Ritter,
768 F.3d 429 (5th Cir. 2014) .................................................................................................6, 7
Nat’l Indus. Sand Assoc. v. Gibson,
897 S.W.2d 769 (Tex. 1995)....................................................................................................15
Pervasive Software Inc. v. Lexware GmbH & Co. KG,
688 F.3d 214 (5th Cir. 2012) ...................................................................................................10
Polythane Sys., Inc. v. Marina Ventures Int’l, Ltd.,
993 F.2d 1201 (5th Cir. 1993) ...................................................................................................9
Prod. Promotions, Inc. v. Cousteau,
495 F.2d 483 (5th Cir. 1974) .....................................................................................................9
- iii -
Case 3:21-cv-02636-B Document 104 Filed 07/11/22 Page 5 of 26 PageID 1884
Sangha v. Navig8 ShipManagement Private Ltd.,
882 F.3d 96 (5th Cir. 2018) ...................................................................................................7, 8
Sedillo ex rel. Filo & Fran Sedillo Revocable Tr. v. Team Techs., Inc.,
2020 WL 6870711 (N.D. Tex. Nov. 23, 2020) ........................................................................12
Seiferth v. Helicopteros Atuneros, Inc.,
472 F.3d 266 (5th Cir. 2006) ...........................................................................................7, 8, 10
Shippitsa Ltd. v. Slack,
2019 WL 277613 (N.D. Tex. Jan. 22, 2019) ...........................................................................19
Stewart v. Atherio, Inc.,
2018 WL 2047997 (N.D. Tex. May 2, 2018) ..........................................................................15
Texas Capital Bank, N.A. v. Garden World of Holiday, Inc.,
2009 WL 2824700 (E.D. Tex. Aug. 27, 2009) ........................................................................10
Unspam Techs, Inc. v. Chernuk,
716 F.3d 322 (4th Cir. 2013) ...................................................................................................14
Walden v. Fiore,
571 U.S. 277 (2014) .........................................................................................................6, 7, 12
Wien Air Alaska, Inc. v. Brandt,
195 F.3d 208 (5th Cir. 1999) ...................................................................................................13
Rules and Regulations
13 C.F.R. § 103.1(d) ......................................................................................................................11
Fed. R. Civ. P. 1 .............................................................................................................................18
Fed. R. Civ. P. 15(a)(2) ..............................................................................................................3, 15
Fed. R. Civ. P. 54(b) .............................................................................................................. passim
- iv -
Case 3:21-cv-02636-B Document 104 Filed 07/11/22 Page 6 of 26 PageID 1885
PRELIMINARY STATEMENT
Pursuant to the Court’s May 11, 2022 Order (“May 11 Order”; ECF No. 82) and July 6,
2022 Order (ECF No. 101), Plaintiff Womply respectfully submits this second motion for
reconsideration of the Court’s April 11, 2022 Order (“Order”; ECF No. 68) dismissing Blueacorn
for lack of personal jurisdiction.1 Given the current procedural posture of this case, in response to
the Court’s decision on the remaining Defendants’ motion to dismiss, Womply proposes three
forms of relief: the Court (1) reconsider and set aside its Order based on the current First Amended
Complaint (“Complaint” or “Am. Compl.”; ECF No. 20) and permit Womply’s claims against
Blueacorn to proceed; (2) set aside its Order and reconsider personal jurisdiction based on the
proposed Second Amended Complaint (“SAC”), which is appended as Exhibit A hereto with a
redline against the Complaint appended as Exhibit B hereto;2 or (3) enter a partial, appealable
judgment with respect to Blueacorn under Federal Rule of Civil Procedure 54(b).
(1) Reconsideration of the Order is appropriate based on the Complaint because the Court’s
dismissal reflects three legal errors—two related to Womply’s contract claims and one related to
Womply’s tort claims.
1
As noted in prior motions practice, “Womply” refers to Plaintiff Oto Analytics, Inc. d/b/a
Womply (n/k/a Oto Analytics, LLC), and “Blueacorn” refers to Defendants BA Fin Orion d/b/a
Blueacorn and Barry Calhoun. Unless otherwise noted, capitalized terms shall carry the same
meanings in Womply’s memorandum in opposition to Blueacorn’s motion to dismiss (ECF
No. 45).
2
Because Defendants have designated certain information “Confidential Information” or
“Confidential Attorney Eyes Only Information” under the April 21, 2022 Protective Order (ECF
No. 75), the SAC in Exhibit A, and accompanying references to the SAC in this Motion, contain
redactions. To enable the Court and Defendants to view the redacted information, Womply is
submitting an accompanying Sealed Appendix containing unredacted versions of the SAC and this
Motion. Should the Court grant Womply leave to amend its claims as to Blueacorn, Womply
respectfully requests that the Court direct the Clerk to publicly file the redacted SAC in Exhibit A
in accordance with Local Civil Rule 15.1.
Case 3:21-cv-02636-B Document 104 Filed 07/11/22 Page 7 of 26 PageID 1886
First, the Court’s decision dismissing Womply’s contract claims rests on a
misinterpretation of law. In concluding that those claims did not arise from Blueacorn’s minimum
contacts with Texas, the Court held “that a party must sign and perform in the forum state for
personal jurisdiction to exist.” (Order at 16 (emphasis in original).) The Supreme Court, however,
“long ago rejected the notion that personal jurisdiction might turn on mechanical tests or on
conceptualistic theories of the place of contracting or performance.” Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 478–79 (1985) (cleaned up). Accordingly, the Fifth Circuit and
numerous District Courts within this Circuit have upheld personal jurisdiction where a contract
was signed elsewhere but certain activities under the contract were performed in the forum state.
(See infra Section I.A.1 (collecting cases).) None of the cases cited in the Court’s opinion holds
otherwise. Nor has Blueacorn identified any cases holding otherwise.
Second, although the Court acknowledged “that Womply and Blueacorn’s agreements had
a ‘substantial connection with Texas’ because of the large number of applications and the actual
monetary value of these contracts” (Order at 17 (quoting Burger King, 471 U.S. at 479)), the Court
improperly overlooked numerous allegations in Womply’s Complaint to draw the inference
against Womply that these were “one-way contacts” that “did not solidly connect Blueacorn to
Texas.” (Id.) As a result, and by way of example, the Court overlooked the allegation that
Blueacorn stood to earn many millions of dollars from Texas-based Capital Plus by acting as
Capital Plus’s agent with the federal government. Blueacorn’s relationship with Capital Plus in
Texas was as bilateral as it gets: As Capital Plus’s formal Lender Service Provider, Blueacorn sent
thousands of loans to Capital Plus in Texas and received nearly half of its revenue from Texas-
based Capital Plus.
-2-
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Third, as to Womply’s tort claims, although the Court recognized that Blueacorn’s
misconduct had “effects” in Texas (id. at 15), it failed to properly credit those effects. The effects
here were extensive, such as causing Texas-based Capital Plus to collect fees on tens of thousands
of loan transactions, which fees are (contrary to Blueacorn’s misrepresentations to Womply)
apparently beyond the reach of Blueacorn. Respectfully, this case bears no resemblance to
Danziger & De Llano v. Morgan Verkamp L.L.C., 24 F.4th 491 (5th Cir. 2022), and, in any event,
that case did not purport to reverse the longstanding rule that tortious conduct causing significant,
anticipated effects in the forum state is sufficient to establish personal jurisdiction. Here,
Blueacorn’s tortious conduct caused tens of millions of dollars in fees from tens of thousands of
transactions to flow into the pockets of a Texas business—no court has ever suggested such
consequences would not support personal jurisdiction.
(2) Alternatively, Womply respectfully requests leave to include in its Second Amended
Complaint additional allegations to address the Order’s stated concerns regarding personal
jurisdiction, and to return Blueacorn and Calhoun as defendants in this action. In its May 11 Order
granting in part and denying in part Capital Plus’s motion to dismiss, the Court granted Womply
“one chance to amend its pleadings” to file a “second amended complaint,” because “[t]he court
should freely give leave to amend when justice so requires.” (May 11 Order at 28–29 (quoting
Fed. R. Civ. P. 15(a)(2)) (cleaned up).) The Court should likewise give Womply the opportunity
to replead its claims against Blueacorn and further allege Blueacorn’s substantial contacts with
Texas—including Blueacorn’s substantial PPP-related work directed towards Texas as Capital
Plus’s Lender Service Provider; payment of fees from Texas; emails and chats demonstrating
Blueacorn’s deep commercial relationship with Texas-based Capital Plus (e.g., communications
in which Blueacorn declared to Womply “*we = Cap Plus”); and marketing materials directed to
-3-
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PPP loan applicants in Texas. Moreover, many of the allegations Womply added in response to
the Court’s May 11 Order necessarily implicate Blueacorn’s contacts with Texas. The Court could
render its ultimate decision on whether the Blueacorn Defendants should remain parties after
reviewing this more fulsome backdrop. Womply respectfully submits that interests of efficiency
would be served by such a course of action.
(3) Finally, absent any other relief requested above, the Court should enter an appealable
partial judgment as to Blueacorn under Rule 54(b). Such orders are common when some (but not
all) defendants are dismissed for lack of personal jurisdiction. Allowing Womply to take an
immediate appeal would facilitate expeditious resolution of this important threshold issue.
ARGUMENT
I. THE COURT SHOULD RECONSIDER ITS ORDER DISMISSING BLUEACORN
FOR LACK OF PERSONAL JURISDICTION BASED ON THE COMPLAINT.
The Court can “reconsider and reverse its decision for any reason it deems sufficient, even
in the absence of new evidence or an intervening change in or clarification of the substantive law.”
Austin v. Kroger Texas, L.P., 864 F.3d 326, 336 (5th Cir. 2017) (quoting Lavespere v. Niagara
Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990)); see Fed. R. Civ. P. 54(b) (“any
order or other decision . . . may be revised at any time before the entry of a judgment adjudicating
all the claims and all the parties’ rights and liabilities”). Reconsideration is not limited to correcting
“manifest error” but instead “rests within the discretion of the court,” which “is broad.” Aubrey v.
D Mag. Partners, L.P., 2020 WL 619839, at *2 (N.D. Tex. Feb. 10, 2020) (Boyle, J.) (cleaned up).
Womply respectfully requests that reconsideration of the Order is appropriate under any standard
because the Complaint more than adequately alleges facts necessary to support personal
jurisdiction over Blueacorn on both Womply’s contract and tort claims.
-4-
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A. The Complaint Alleges That Womply’s Contract Claims Against Blueacorn
Have A Substantial Connection to Texas.
The Court correctly held that (i) “Blueacorn entered an agreement centered in Texas”;
(ii) “[t]he negotiations centered around drawing Womply into an agreement to facilitate the
origination of loans through Capital Plus in Texas”; (iii) “Blueacorn facilitated and individually
transmitted 86,521 PPP loans from Womply to Capital Plus in Texas” as a result of these
agreements; (iv) “[i]n effect Blueacorn directed these loan applications to Texas”; and
(v) Blueacorn therefore “ha[s] enough minimum contacts with Texas to warrant personal
jurisdiction.” (Order at 12.) The Court nonetheless concluded that Womply’s “breach-of-contract
claims do not allow the Court to exert personal jurisdiction over the Blueacorn Defendants.” (Id.
at 16.) Respectfully, the Court’s analysis contains two errors.
1. There Is No Requirement That A Party Must Sign And Perform A Contract
In The Forum State.
The Court held that “[t]he Fifth Circuit has repeatedly made clear that a party must sign
and perform in the forum state for personal jurisdiction to exist.” (Order at 16 (emphasis in
original; citing cases).) That is incorrect; to the contrary, “[t]he [Supreme] Court long ago rejected
the notion that personal jurisdiction might turn on mechanical tests or on conceptualistic theories
of the place of contracting or performance.” Burger King, 471 U.S. at 478–79 (cleaned up)
(collecting cases). A requirement that a contract must be signed and performed in a forum state
would be a paradigmatic example of such a “mechanical test” focused on “the place of contracting
or performance.”
None of the cases cited in the Order holds otherwise. International Energy Ventures
Management, L.L.C. v. United Energy Group., Ltd., 818 F.3d 193, 212 (5th Cir. 2016), did not
purport to require that a contract be both signed and performed in a forum state. For starters, the
Court there considered an “unwritten agreement”; if signing a contract in the forum state were
-5-
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necessary for personal jurisdiction, the Court would have ended its analysis there, rather than
conducting a broader “inquiry” into “‘the relationship among the defendant, the forum, and the
litigation.’” Id. at 212 (quoting Walden v. Fiore, 571 U.S. 277, 284 (2014)).3 The Fifth Circuit
referred to the place of signing and place of performance only when reciting a list of items,
including a failure to “conduct business in the state,” whose combined absence would not suffice
to establish personal jurisdiction:
[T]here are not sufficient contacts with a forum state “when the defendant does not
have a physical presence in the state; it did not conduct business in the state; and
the contract underlying the business transaction at issue in the lawsuit was not
signed in the state and did not call for performance in the state.”
Id. (emphasis and double emphasis added) (quoting Monkton, 768 F.3d at 433).4 The Fifth Circuit
did not (and had no occasion to) suggest that personal jurisdiction over a contract claim requires
both signing a contract in the forum and performance in the forum.
Indeed, the Fifth’s Circuit’s reliance on Walden further disproves any such categorical rule.
Walden reaffirmed Burger King and confirmed that personal jurisdiction may be asserted “over
defendants who have purposefully ‘reach[ed] out beyond’ their State and into another by, for
example, entering a contractual relationship that ‘envisioned continuing and wide-reaching
contacts’ in the forum State.” 571 U.S. at 285 (quoting Burger King, 471 U.S. at 479–80). That is
3
The Order noted that International Energy Ventures quoted Monkton Insurance Services Ltd. v.
Ritter, 768 F.3d 429, 430, 432 (5th Cir. 2014), but the quoted passage from Monkton includes the
entire block-quoted text.
4
As the full quotation from Monkton makes clear, that case did not hold that personal jurisdiction
requires both signing and performance of a contract in the forum state. Monkton held only that
there was no personal jurisdiction over a Cayman Islands bank arising from alleged breaches of an
account agreement the bank had with a Cayman Islands company, where the owner of the Cayman
Islands company resided in Texas and received certain account-related communications and
transfers—directed by others, not by the bank—in Texas. See 768 F.3d at 433–34. Those facts bear
no resemblance to this case, where Blueacorn sent literally tens of thousands of loan applications
to Capital Plus in Texas.
-6-
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precisely the case here: Blueacorn’s contractual relationships with Womply resulted in literally
tens of thousands of contacts with Texas. As the Court’s opinion elsewhere recognized, “[e]very
application that Blueacorn sent to Capital Plus created a new contact with Texas, regardless of
whether Blueacorn made contact with Womply in the State.” (Order at 12.) In the language of
International Energy Ventures, Blueacorn indisputably “conduct[ed] business” in Texas—to the
tune of hundreds of millions of dollars in loans and tens of millions of dollars in fees. 818 F.3d at
212.
The Court also cited Sangha v. Navig8 ShipManagement Private Ltd., 882 F.3d 96, 103
(5th Cir. 2018) (Order at 16), but that case did not establish a “sign and perform” requirement.
Sangha merely repeated the above-quoted passage from International Energy Ventures,5 and
likewise relied on Walden. Moreover, Sangha involved a tort claim for tortious interference with
contract, not a breach of contract claim. The only reference in Sangha to the location of the
contract’s formation was in a footnote observing that it was signed in Florida and did not
“specifically refer to the Port of Houston” or require that the plaintiff’s “work would be confined
to the Gulf of Mexico.” 882 F.3d at 103 n.2. Even if such an observation were relevant here, that
case bears no resemblance to contracts allowing Blueacorn to deliver 86,521 loan applications to
Capital Plus in Texas, which in turn allowed Capital Plus to preclude Womply from obtaining
more than $76 million in fees it is owed. (Order at 2–4.)
Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 273 (5th Cir. 2006) (Order at 16) is
likewise inapposite. That case concerned tort claims for “defective design, failure to warn,
negligence, and negligence per se,” not a breach of contract action. Id. at 274. It did not purport to
5
Sangha also reproduced the passage from Monkton that is quoted in International Energy
Ventures and block-quoted above. See Sangha, 882 F.3d at 103.
-7-
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establish a rule for personal jurisdiction over a breach-of-contract action. The Court addressed
contract issues only in responding to the plaintiff’s attempt to use the “stream-of-commerce
theory” to hold the helicopter’s owner (defendant HAI) liable for his injuries. The plaintiff suffered
those injuries when using the helicopter on behalf of his employer, which had leased the helicopter
from HAI. Id. In rejecting that argument, the Court noted that “HAI did not have a physical
presence in Mississippi. It did not conduct business in the state. Its contract with Air 2 [plaintiff’s
employer] was not signed in Mississippi, nor did the contract call for performance in the state.” Id.
at 272 (emphasis added). Thus, not only do the facts of Seiferth differ significantly from those at
issue here, the Fifth Circuit there merely reiterated the same uncontroversial observation as in
International Energy Ventures and Sangha: The complete absence of any connection by the
defendant with the forum state—including “doing business” in the forum state—forecloses
personal jurisdiction. Here, by contrast, the Complaint alleges in detail that Blueacorn did
substantial business in Texas, to Womply’s great detriment.
The Court also cited the Supreme Court’s recent decision in Ford Motor Co. v. Montana
Eighth Judicial Dist. Ct., 141 S. Ct. 1017 (2021), for the proposition that “‘[t]he plaintiff must
show that the defendant . . . entered a contractual relationship centered’” in the forum state. (Order
at 16 (quoting 141 S. Ct. at 1025) (cleaned up).) That statement, however, does not purport to
establish a rule that a contract must be signed and performed in a forum state. Nor does that
decision—which involved product liability tort claims, not contract claims—otherwise support
such a requirement. Indeed, the “contractual relationships” implicating Blueacorn here were
undoubtedly “centered” in Texas: As alleged in the Complaint, Blueacorn contracted with Womply
to take tens of thousands of loan applications from Womply, send them to Capital Plus in Texas,
receive fees from Texas-based Capital Plus, and send payment to Womply. (Am. Compl. ¶¶ 12,
-8-
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59, 61–67, 154, 167.) “[P]ut just a bit differently,” as the Supreme Court explained in Ford Motor
Co., there was surely “‘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.’” 141 S. Ct. at 1025 (quoting Bristol-Myers Squibb Co. v. Super. Ct. of
Cal., San Francisco Cty., 137 S. Ct. 1773, 1780 (2017)) (cleaned up).
Far from requiring “signing and performance,” the Fifth Circuit has long held that, when
considering personal jurisdiction based on a contract, “the place or time of ‘execution,’
‘consummation’ or ‘delivery’ is irrelevant—performance, contemplated or accomplished, is the
touchstone.” Prod. Promotions, Inc. v. Cousteau, 495 F.2d 483, 492 n.11 (5th Cir. 1974) (quoting
Atwood Hatcheries v. Heisdorf & Nelson Farms, 357 F.2d 847, 852 n.14 (5th Cir. 1966))
(emphasis added), abrogated on other grounds by Ins. Corp. of Ireland v. Compagnie des Bauxites
de Guinee, 456 U.S. 694, 702–03 (1982), as stated in Burstein v. State Bar of Cal., 693 F.2d 511,
518 n.12 (5th Cir. 1982). For example, in Dubea v. Simpson, 2009 WL 528258, at *4–5 (E.D. Tex.
Mar. 2, 2009), the court considered whether it had personal jurisdiction based on a contract that
“was in large part negotiated in Louisiana, and was drafted and executed . . . in Louisiana,” but
included “just one act of performance” that occurred “in Texas.” Relying on Cousteau, the court
held that act was sufficient to establish “a prima facie case for jurisdiction” in Texas, which
required only that “‘some performance is to occur there.’” Id. (quoting 495 F.2d at 492 n.11). Here,
the contracts did not result in “just one act of performance” in Texas but undisputedly resulted in
tens of thousands of loans and payments in Texas.
Courts in this Circuit routinely hold that personal jurisdiction lies over contract claims
where, as here, the contract included performance in Texas but was signed elsewhere. See, e.g.,
Polythane Sys., Inc. v. Marina Ventures Int’l, Ltd., 993 F.2d 1201, 1205 (5th Cir. 1993) (affirming
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personal jurisdiction of Texas court over Maryland entities where contracts were signed in
Maryland but certain conduct “was performed in Texas”); Texas Capital Bank, N.A. v. Garden
World of Holiday, Inc., 2009 WL 2824700, at *3–5 (E.D. Tex. Aug. 27, 2009) (denying motion to
dismiss for lack of personal jurisdiction where “the contracts were signed in Florida”); Am.
Airlines, Inc. v. Rogerson ATS, 952 F. Supp. 377, 379–82 (N.D. Tex. 1996) (denying motion to
dismiss for lack of personal jurisdiction where the agreement “was signed . . . in Tulsa,
Oklahoma”). Tellingly, Blueacorn does not defend the Court’s analysis, and is unable to identify
any authority requiring that a contract must be signed in the forum state for personal jurisdiction
to lie. (ECF No. 96.)
2. The Court Overlooked Substantial Allegations Demonstrating Blueacorn’s
Substantial Bilateral Contacts With Texas.
The Court acknowledged that “it would appear that Womply and Blueacorn’s agreements
had a ‘substantial connection with Texas’ because of the large number of applications and the
actual monetary value of these contracts” that were referred to and funded by Capital Plus in Texas.
(Order at 17 (emphasis in original).) This is sufficient to “establish[] a prima facie case” for
personal jurisdiction, which is all that is required at the pleading stage. (Order at 5 (citing Seiferth,
472 F.3d at 270; Pervasive Software Inc. v. Lexware GmbH & Co. KG, 688 F.3d 214, 219–20 (5th
Cir. 2012)).)
The Court concluded, however, that these contacts were substantial only “[i]n the abstract,”
and “were not ‘substantial’ in that the contacts did not solidly connect Blueacorn to Texas,”
because the Court assumed that Blueacorn had only “one-way contacts” that “flowed purely from
Blueacorn to Texas.” (Order at 17.) Respectfully, the Court’s assumption rests on an inference
drawn against Womply; at the pleading stage, Womply is entitled to a reasonable inference that
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Blueacorn, as Capital Plus’s Lender Service Provider, had bilateral contacts with Capital Plus in
Texas. (Id. at 5.)
In any event, Womply’s Complaint and additional evidence adequately demonstrated that
Blueacorn’s contacts with Texas were a two-way street. Those allegations included that:
Blueacorn was created to refer and service “PPP loans” for “two [] lender
counterparties,” one of which is Texas-based Capital Plus (Am. Compl. ¶¶ 9, 46;
APP’X 4–5, 8–9, 22–31, 44–51);6
Blueacorn is Capital Plus’s “Lender Service Provider”—and is therefore authorized to
“carr[y] out lender functions in originating, disbursing, servicing, or liquidating” loans,
13 C.F.R. § 103.1(d)—which requires communications to and from Capital Plus in
Texas (Am. Compl. ¶¶ 5, 46, 98; APP’X 8–9);
Blueacorn sent “billion[s] in funding” of PPP loans to Capital Plus in Texas, and
received “more than $500 million in fees” from Capital Plus in Texas (Am. Compl.
¶¶ 5, 9, 47, 50–54; APP’X 10–75);
Blueacorn and Capital Plus collaborated to negotiate the Agreements with Womply,
including by sending “diligence items” and participating in joint telephone calls (Am.
Compl. ¶ 58; APP’X 84–93, 111–28, 199–200, 212–14);
Blueacorn communicated with Womply on behalf of Capital Plus—including by
sending Womply “Capital Plus promissory note[s]” and coordinating with Womply
about “customer service inquiries” to Capital Plus—which required communications
to and from Capital Plus in Texas (Am. Compl. ¶¶ 58, 169; APP’X 94–96, 166–86,
201, 219–21); and
Blueacorn admitted that Capital Plus “undisputedly owes Blueacorn fees in connection
with those [Womply-referred] loans” (ECF No. 31 at 1).
Thus, Blueacorn’s contacts with Texas “flowed into and out of the forum state.” (Order at
17 (citing McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223 (1957)).) And Blueacorn “deliberately
reached out beyond [its] home state” and “entered into a carefully structured” relationship with
Capital Plus with “continuing and wide-reaching contacts” with Texas. (Id. at 16–17 (quoting
6
All references to “APP’X” refer to the appendix accompanying Womply’s opposition to
Blueacorn’s motion to dismiss (ECF No. 46-1).
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Burger King, 471 U.S. at 479–80).) Those allegations must be accepted as true, and are more than
sufficient to support personal jurisdiction. The Court distinguished McGee based on its assumption
that “the contacts flowed purely from Blueacorn to Texas.” (Id. at 17.) Because that assumption is
wrong, McGee’s “substantial connection” standard for personal jurisdiction is satisfied. Indeed,
under Burger King and McGee, “even a single act can support jurisdiction.” Burger King, 471 U.S.
at 475 n.18 (citing McGee, 355 U.S. at 223). Here, there are numerous detailed allegations that
Blueacorn’s contacts with Texas under the contracts were pervasive.
The Supreme Court’s decision in Walden v. Fiore, 571 U.S. 277 (2014), further supports
the Court’s exercise of personal jurisdiction over Blueacorn. In Walden, the Supreme Court
reaffirmed that “it is the defendant’s conduct that must form the necessary connection with the
forum State” to establish personal jurisdiction, and “a defendant’s contacts with the forum State
may be intertwined with his transactions or interactions with the plaintiff or other parties.” 571
U.S. at 285–86 (collecting cases). That is precisely the case here, where, as a result of Blueacorn’s
performance of its contracts with Womply, “Blueacorn facilitated and individually transmitted
86,521 PPP loans from Womply to Capital Plus in Texas,” effectively “direct[ing] these loan
applications to Texas.” (Order at 12 (citing Walden, 571 U.S. at 290).)
B. The Complaint Alleges That Womply’s Tort Claims Against Blueacorn Have
A Substantial Connection To Texas.
The Court correctly held that “all the claims arise from the same forum contacts,” and
“when multiple claims arise from the same contacts, specific jurisdiction does not need to be
established for each claim.” (Order at 13 (quoting Sedillo ex rel. Filo & Fran Sedillo Revocable
Tr. v. Team Techs., Inc., 2020 WL 6870711, at *3 (N.D. Tex. Nov. 23, 2020)).) Accordingly, the
Court has personal jurisdiction over Blueacorn with respect to Womply’s contract and tort claims
for the reasons discussed above.
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The Court nonetheless analyzed “Womply’s tort claims” separately, holding correctly that
it must examine “the ‘effects’ of the defendant’s conduct when analyzing specific personal
jurisdiction.” (Id. at 14–15 (quoting Calder v. Jones, 465 U.S. 783, 788–89 (1984)).) The Court
recognized that the Complaint alleged: (i) “that Blueacorn’s CEO induced Womply’s CEO to enter
into the Agreements, where Womply provided services to Capital Plus in Texas”; (ii) that “[a]fter
entering into the agreements, Womply referred 86,521 PPP loans to Blueacorn and then referred
all of those loans to Capital Plus in Texas”; and (iii) “[p]ursuant to the agreements, Capital Plus
funded 86,521 PPP loans worth over $950 million and received $186,882,948 in Lender
Processing Fees for Womply-referred loans.” (Id. at 4, 11 (cleaned up).) Those facts are more than
sufficient to make a prima facie showing that Blueacorn’s misconduct had jurisdictionally
significant effects in Texas.
The Court’s Order, however, imposed an additional requirement that Womply must
“suffer[] the alleged injuries” in Texas, or that Blueacorn’s misconduct must “occur[] in Texas”
or be “directed toward Texas.” (Id. at 15 (cleaned up).) Respectfully, that is wrong. Neither the
Supreme Court nor the Fifth Circuit requires the harm to be felt in, have occurred in, or be directed
to the forum state to establish personal jurisdiction. All that is required is that the alleged
misconduct have the “‘foreseeable’ effect of ‘causing business activity in the forum state.’” Cent.
Freight Lines Inc. v. APA Transp. Corp., 322 F.3d 376, 382 (5th Cir. 2003) (quoting Miss.
Interstate Express, Inc. v. Transpo, Inc., 681 F.2d 1003, 1007 (5th Cir. 1982)) (reversing dismissal
for lack of personal jurisdiction); see Calder, 465 U.S. at 788–89 (“Jurisdiction over petitioners is
therefore proper in California based on the ‘effects’ of their Florida conduct in California.”); Def.
Distributed v. Grewal, 971 F.3d 485, 490–97 (5th Cir. 2020) (finding personal jurisdiction because
“[t]he foreseeable effects of a tort” “includ[ed] Texas residents”) (quoting Wien Air Alaska, Inc.
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v. Brandt, 195 F.3d 208, 211 (5th Cir. 1999)). Womply alleged that Blueacorn’s conduct had the
foreseeable effect of causing Capital Plus’s business activity in Texas. Moreover, the Fifth Circuit
has long recognized that “[e]ven an act done outside the state that has consequences or effects
within the state will suffice as a basis for jurisdiction in a suit arising from those consequences if
the effects are seriously harmful and were intended or highly likely to follow from the nonresident
defendant’s conduct.” Guidry v. U.S. Tobacco Co., Inc., 188 F.3d 619, 628 (5th Cir. 1999). That
is precisely what the Complaint alleges here. Wherever Blueacorn’s tortious conduct may have
occurred, the consequences of those actions had the effect of impermissibly enriching a Texas-
based business by tens of millions of dollars at Womply’s expense.
The Court’s reliance on Danziger & De Llano, L.L.P. v. Morgan Verkamp, L.L.C., 24 F.4th
491 (5th Cir. 2022), is misplaced. There, “‘[t]he only act or omission . . . plausibly connected to
Texas’ was an unsolicited reply to an email by the defendant.” (Order at 14 (quoting Danziger, 24
F.4th at 497).) Here, by contrast, Blueacorn coordinated its fraudulent conduct with Texas-based
Capital Plus, resulting in tens of thousands of transactions generating more than $950 million of
loans and more than $187 million in government fees flowing to Texas, which “meaningfully
connect[s] [Blueacorn] to Texas.” Danziger, at 498 (emphasis in original). Indeed, the Court held
that the Complaint “adequately pleaded” a “conspiracy between Blueacorn, Calhoun, and the
Capital Plus Defendants to commit unlawful and tortious acts against Womply that resulted in
$76 million in damages.” (May 11 Order at 28 (citing Am. Compl. ¶¶ 187–90).) Blueacorn’s
conspiracy with Capital Plus, which is undisputedly alleged to have engaged in misconduct in
Texas, further supports the Court’s exercise of personal jurisdiction.7
7
Courts are divided over whether this conspiracy, standing alone, is sufficient to allege personal
jurisdiction, and Womply reserves the right to raise this issue on appeal. Compare, e.g., Unspam
Techs, Inc. v. Chernuk, 716 F.3d 322, 329 (4th Cir. 2013) (recognizing “conspiracy theory of
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In sum, the allegations in Womply’s Complaint are more than sufficient to survive a motion
to dismiss.
II. ALTERNATIVELY, THE COURT SHOULD SET ASIDE ITS ORDER AND
PERMIT WOMPLY TO REPLEAD ITS CLAIMS AGAINST BLUEACORN IN ITS
SECOND AMENDED COMPLAINT.
In its May 11, 2022 Order granting in part and denying in part Capital Plus’s motion to
dismiss, the Court held that because “this is the Court’s first opportunity to assess the sufficiency
of Womply’s allegations, the Court deems it appropriate to provide it one chance to amend its
pleadings in light of the deficiencies noted in this Court.” (May 11 Order at 28 (citing Fed. R. Civ.
P. 15(a)(2)).) Should the Court deny reconsideration on the basis of the currently pending First
Amended Complaint, Womply respectfully requests leave to include in its Second Amended
Complaint allegations addressing the Court’s concerns regarding personal jurisdiction. Because
the Court has already granted leave to amend, including jurisdictional allegations against
Blueacorn will promote judicial economy and is particularly appropriate here because the Court
dismissed Womply’s claims against Blueacorn “without prejudice.” (Order at 1, 18); see Stewart
v. Atherio, Inc., 2018 WL 2047997, at *2 (N.D. Tex. May 2, 2018) (Boyle, J.) (“Unless there exists
a substantial reason for denying leave to amend, the district court should permit the filing of a
proposed amendment.”) (internal quotation marks omitted) (granting leave to amend).
In the SAC, Womply specifically addresses the Court’s concerns that Blueacorn did not
have “a substantial connection with Texas,” Blueacorn’s contacts with Texas ran “one-way,” and
Blueacorn’s conduct did not “meaningfully connect” it to Texas. (Order at 14–17.) For example,
jurisdiction”), and J & M Assocs., Inc. v. Romero, 488 F. App’x 373, 375 (11th Cir. 2012) (same)
(citing Ex Parte Reindel, 963 So.2d 614, 622–24 (Ala. 2007)), with Nat’l Indus. Sand Assoc. v.
Gibson, 897 S.W.2d 769, 773 (Tex. 1995) (rejecting “[c]onspiracy as an independent basis for
jurisdiction”).
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the SAC alleges, based in part on new evidence obtained through discovery in this action, that
Blueacorn was established to operate as a Lender Service Provider to just two PPP loan lenders,
one of which is Texas-based Capital Plus. (SAC ¶¶ 9, 24(a), 82.) Specifically,
(Id. ¶¶ 24(b), 24(h), 84–86,
92.)
(Id. ¶¶ 24(d)–(f), 88–89.)
(Id. ¶¶ 9, 90, 93.) In fact, the SAC alleges, based
in part on analysis of Capital Plus’s parent corporation’s financial disclosures, that Texas-based
Capital Plus paid $606.4 million in fees to the loan servicer provider Blueacorn related to Capital
Plus’s participation in the PPP loan program. (Id. ¶¶ 9, 24(l), 110.)
The SAC further details that Blueacorn and Capital Plus negotiated the Agreements with
Womply together, including specific allegations that Blueacorn’s CEO communicated directly
with Capital Plus about the proposed Agreements; that Blueacorn and Capital Plus had joint
“diligence items” and calls with Womply about the proposed Agreements; and that Blueacorn and
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Womply coordinated to provide Capital Plus with access to Womply’s Technology Platform. (Id.
¶¶ 24(n), 121–22, 126, 128, 131–32, 141.) The SAC also describes specific emails and chats
showing how Blueacorn coordinated closely with Capital Plus to implement the Agreements by
reviewing, processing, and funding the Womply-referred loans using the Womply Technology
Platform. (Id. ¶¶ 24(o), 143–151) For example, Blueacorn told Womply that “*we = Cap Plus.”
(Id. ¶ 148) And Blueacorn continues to work with Capital Plus regarding forgiveness of the
Womply-referred PPP loans. (Id. ¶¶ 84, 90, 108.)
The SAC further alleges that Blueacorn marketed its services in Texas, provided services
to PPP loan applicants in Texas, and facilitated PPP loans to borrowers in Texas that were
approved by the SBA and funded by a lender. (Id. ¶¶ 24(m), 100–102.) The SAC identifies specific
Blueacorn advertisements that appeared in Texas and specific applicants in Texas who applied for
PPP loans through Blueacorn during the relevant time period for this action. (Id. ¶¶ 101–102.) As
the Supreme Court recently confirmed, “specific jurisdiction attaches” where, as here, a company
“actively seeks to serve the market” in the forum State, including by “advertising, selling, and
servicing” products in that State. Ford, 141 S. Ct. at 1022, 1026–27.
III. IN THE ALTERNATIVE, THE COURT SHOULD DIRECT ENTRY OF FINAL
JUDGMENT AS TO BLUEACORN UNDER FED. R. CIV. P. 54(b).
Should the Court decline to reconsider or set aside its Order or decline to permit Womply
to replead its claims against Blueacorn, Womply respectfully requests that the Court “direct entry
of a final judgment” as to Blueacorn. Fed. R. Civ. P. 54(b) (“[T]he court may direct entry of a final
judgment as to one or more, but fewer than all, claims or parties . . . .”). Rule 54(b) certification
will enable Womply to take an immediate appeal, which will promote efficiency “because the
issue of personal jurisdiction is plainly separable from the remaining claims against the other
defendants.” Animale Grp., Inc. v. Sunny’s Perfume, Inc., 2007 WL 2010476, at *2 (S.D. Tex.
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July 5, 2007) (cleaned up) (granting Rule 54(b) certification). As a result, without Rule 54(b)
certification, Womply will otherwise be forced “to choose between deferring its claims against
[Blueacorn] to be resolved at a much later date, either in this Court or in some other district, or
withdrawing its appeal, acquiescing in this Court’s decision on personal jurisdiction, and
proceeding simultaneously in two courts.” Id.
Rule 54(b) certification will not disrupt this action and will prevent substantial delay and
inefficiency. Although this case is currently scheduled for trial on May 1, 2023 (ECF No. 35), that
schedule is unlikely to hold. The Court’s initial schedule has already been extended several times,
including at Blueacorn’s request. (ECF Nos. 55–56, 91–92, 94–95.) Both Blueacorn and Capital
Plus have stonewalled Womply’s discovery requests, which will also require extending the
schedule to ensure that Womply is able to obtain necessary discovery. (See ECF No. 63 at 3–5;
ECF No. 73 at 4–6.) In fact, counsel for Womply and Capital Plus are conferring about a proposed
revised schedule. Accordingly, Rule 54(b) certification will provide just and speedy relief. Fed. R.
Civ. P. 1.
Courts in this Circuit often enter “a final appealable order” under Rule 54(b) when
dismissing claims against certain parties “for lack of personal jurisdiction.” Avdeef v. Google, Inc.,
678 F. App’x 239, 239 (5th Cir. 2017); see, e.g., Cooper Tire & Rubber Co. v. Farese, 423 F.3d
446, 453 (5th Cir. 2005) (“Cooper Tire’s claims against Turner and his firm were dismissed for
lack of personal jurisdiction, the dismissal being certified under Federal Rule of Civil Procedure
54(b) as a partial final judgment.”); Hoffman v. L&M Arts, 774 F. Supp. 2d 826, 849 (N.D. Tex.
2011) (“By Rule 54(b) final judgment filed today, Hoffman’s action against Meyer is dismissed
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without prejudice for lack of personal jurisdiction.”).8 As one court noted, “[o]ne would be hard-
pressed to find a decision in which a court denied Rule 54(b) certification after dismissing a party
for lack of personal jurisdiction.” Animale, 2007 WL 2010476, at *1.9
CONCLUSION AND PRAYER FOR RELIEF
For the foregoing reasons, Womply respectfully requests that the Court (i) reconsider and
set aside its Order based on the current Complaint; (ii) alternatively, set aside its Order and
reconsider personal jurisdiction over Blueacorn based on the SAC; or (iii) in the alternative, direct
entry of final, appealable judgment as to Blueacorn under Rule 54(b). Should the Court deny
Womply leave to replead its claims against Blueacorn, Womply will file its SAC against Capital
Plus.
8
See also Anderson v. T&D Machine Handling Inc., 85 F.3d 625 (5th Cir. 1996) (“[T]he district
court granted T&D’s motion and entered final judgment dismissing the claims against SBH for
lack of personal jurisdiction.”) (citing Fed. R. Civ. P. 54(b)); Shippitsa Ltd. v. Slack, 2019 WL
277613, at *1 (N.D. Tex. Jan. 22, 2019) (dismissing claims against certain defendants “for lack of
personal jurisdiction” and “enter[ing] final judgment under Rule 54(b)”); Freedom Path, Inc. v.
Lerner, 2015 WL 770254, at *14 (N.D. Tex. Feb. 24, 2015) (same); Franklin v. N., 2012 WL
12878159, at *2 n.2 (N.D. Tex. July 6, 2012) (same).
9
Alternatively, Womply requests that the Court certify its Order for interlocutory appeal pursuant
to 28 U.S.C. § 1292(b) because (i) personal jurisdiction “involves a controlling question of law,”
(ii) there is “substantial ground for difference of opinion” for the reasons set forth above, and
(iii) “immediate appeal from the order may materially advance the ultimate termination of the
litigation” by avoiding the need for Womply to re-file this action in a different court.
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Dated: July 11, 2022 Respectfully submitted,
Of Counsel: By: /s/ Jason P. Bloom ____________
Nina Cortell
Willkie Farr & Gallagher LLP Texas Bar No. 04844500
Jason P. Bloom
Alexander L. Cheney (admitted pro hac vice) Texas Bar No. 24045511
One Front Street Haynes and Boone, LLP
San Francisco, CA 94111 2323 Victory Avenue, Suite 700
(415) 858-7400 Dallas, TX 75219
acheney@willkie.com (214) 651-5000
jason.bloom@haynesboone.com
Mark T. Stancil (admitted pro hac vice) nina.cortell@haynesboone.com
Joshua S. Levy (admitted pro hac vice)
1875 K Street, N.W. Attorneys for Plaintiff Oto Analytics, Inc. d/b/a
Washington, D.C. 20006 Womply
(202) 303-1000
mstancil@willkie.com
jlevy@willkie.com
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Case 3:21-cv-02636-B Document 104 Filed 07/11/22 Page 26 of 26 PageID 1905
CERTIFICATE OF CONFERENCE
On May 10, 2022, I conferred with Michael Levy and Christopher Egleson, counsel for
Blueacorn, by email regarding the relief requested herein. Counsel for Blueacorn stated that they
are opposed to Womply’s motion for reconsideration and for leave to amend the complaint, and
would take a position regarding Rule 54(b) certification after reviewing this motion. On June 20,
2022, Blueacorn filed its opposition to the entirety of Womply’s motion. (ECF No. 96.)
/s/ Joshua S. Levy
Joshua S. Levy
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has been served
on the following counsel of record, this 11th day of July 2022, by using the electronic case filing
system of the United States District Court for the Northern District of Texas:
Penny P. Reid, preid@sidley.com
Claire Homsher, chomsher@sidley.com
Michael A. Levy, mlevy@sidley.com
Christopher M. Egleson, cegleson@sidley.com
Katelin Everson, keverson@sidley.com
Terrell W. Oxford, toxford@susmangodfrey.com
Harry P. Susman, hsusman@susmangodfrey.com
Megan Elise Griffith, mgriffith@susmangodfrey.com
/s/ Jason P. Bloom
Jason P. Bloom
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