Blue Flame Medical LLC’s Motion to Dismiss Counterclaims

Summary

Reply in Support of Plaintiff/Counterclaim Defendant Blue Flame Medical LLC's Motion to Dismiss Counterclaims, filed November 9, 2020 as Document 58 in Blue Flame Medical LLC v. Chain Bridge Bank, N.A., John J. Brough and David M. Evinger, Civil Action No. 1:20-cv-00658, U.S. District Court for the Eastern District of Virginia, before The Honorable Leonie Brinkema. Blue Flame argues the Bank cannot enforce the fee-shifting provision of its Account Agreement after the Bank terminated that agreement on March 26, 2020. It argues the provision is procedurally and substantively unconscionable under Virginia law, citing Flint Hill School v. McIntosh, and is facially overbroad and void as against public policy. Peter H. White of Schulte Roth & Zabel LLP signed /s/ for Blue Flame.

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

)
BLUE FLAME MEDICAL LLC
)

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Plaintiff,

)

)

v.

)
Civil Action No. 1:20-cv-00658

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CHAIN BRIDGE BANK, N.A.,
)
The Honorable Leonie Brinkema
JOHN J. BROUGH, and
)

DAVID M. EVINGER,
)

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Defendants.
)

)

)

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CHAIN BRIDGE BANK, N.A.
)

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Counterclaim Plaintiff,
)

)
v.

)

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BLUE FLAME MEDICAL LLC
)

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Counterclaim Defendant.
)

)

REPLY IN SUPPORT OF PLAINTIFF/COUNTERCLAIM DEFENDANT
BLUE FLAME MEDICAL LLC’S MOTION TO DISMISS COUNTERCLAIMS
SCHULTE ROTH & ZABEL LLP
901 Fifteenth Street, NW, Suite 800
Washington, DC 20005

Tel:  (202) 729-7476

919 Third Avenue
New York, New York 10022
Tel:  (212) 756-2044
Counsel for Plaintiff/Counterclaim Defendant
Blue Flame Medical LLC

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TABLE OF CONTENTS

PRELIMINARY STATEMENT .....................................................................................................1
ARGUMENT ...................................................................................................................................1
I.
THE BANK CANNOT ENFORCE AN ONGOING OBLIGATION UNDER A
CONTRACT IT CHOSE TO TERMINATE. ......................................................................1
II.
THE FEE-SHIFTING PROVISION IS UNENFORCEABLE UNDER VIRGINIA
LAW. ...................................................................................................................................6
III.
THE FEE-SHIFTING PROVISION IS FACIALLY OVERBROAD AND VOID AS
AGAINST PUBLIC POLICY. ..........................................................................................10
CONCLUSION ..............................................................................................................................10

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TABLE OF AUTHORITIES

Page(s)
Cases
Am. Gen. Life & Acc. Ins. Co. v. Wood,
429 F.3d 83 (4th Cir. 2005) .......................................................................................................6
Carlson v. General Motors Corp.,
883 F.2d 287 (4th Cir. 1989) .....................................................................................................8
Darton Envt’l, Inc. v. FJUVO Collections, LLC,
332 F. Supp. 3d 1022 (W.D. Va. 2018) .....................................................................................9
Ebadom VA, LLC v. Lee,
No. CL-2018-1535, 2020 WL 1704650 (Va. Cir. Ct. Apr. 06, 2020) .......................................7
Flint Hill Sch. v. McIntosh,
No. 181678, 2020 WL 33258 (Va. Jan. 2, 2020) .........................................................6, 7, 9, 10
Kaplan v. RCA Corp.,
783 F.2d 463 (4th Cir. 1986) .....................................................................................................8
McIntosh v. Flint Hill Sch.,
No. CL-2018-1929, 2018 WL 9393020 (Va. Cir. Ct. Sep. 17, 2018) ...................................6, 7
Pitchford v. Oakwood Mobile Homes, Inc.,
124 F. Supp. 2d 958 (W.D. Va. 2000) .......................................................................................9
Princess Cruises v. Gen. Elec. Co.,
143 F.3d 828 (4th Cir. 1998) .....................................................................................................8
Saturn Distribution Corp. v. Williams,
905 F.2d 719 (4th Cir. 1990) .....................................................................................................6
Siskin Enterprises Inc. v. W.B. Stoddard Jr. Inc.,
147 F. Supp. 2d 1125 (D. Utah 2001) ....................................................................................4, 5
SunTrust Banks, Inc. v. Be Yachts, LLC,
No. C18-840, 2020 WL 5759789 (W.D. Wash. Sept. 28, 2020) ...............................................7
Texas Co. v. Northup,
153 S.E. 659 (Va. 1930).............................................................................................................3
Update, Inc. v. Samilow,
311 F. Supp. 3d 784 (E.D. Va. 2018) ........................................................................................9
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Walker v. Caterpillar Indus., Inc.,
34 F.3d 1067 (4th Cir. 1994) .....................................................................................................8
Statutes
28 U.S.C. § 2412(d)(1)(D) ...............................................................................................................9

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PRELIMINARY STATEMENT
The Bank1 fails in its Opposition to Blue Flame’s Motion to Dismiss
(“Opposition”) to identify a single authority supporting its efforts to selectively enforce the fee-
shifting provision in its Account Agreement with Blue Flame months after the Bank voluntarily
and unilaterally terminated that agreement.  Neither the terms of the agreement nor the clause at
issue support the Bank’s argument, and the Bank has identified no reason why the Court should
decline to follow other courts in rejecting identical arguments under Virginia law.  The Bank also
fails to differentiate the fee-shifting clause at issue from a similar clause that the Virginia Supreme
Court recently found unconscionable and unenforceable.  Just like the clause in that case, the
Account Agreement’s fee-shifting provision benefits only the party that drafted the agreement and
was presented to the non-drafting party for its assent on a take-it-or-leave-it basis.  In fact, the fee-
shifting provision at issue here is even more unfair than the one found unconscionable by the
Virginia Supreme Court as its language cannot be limited to fees incurred in the context of
litigation, let alone to fees incurred in a successful litigation.  The Court should reject the Bank’s
effort to create leverage in this litigation through the threat of attorney’s fee liability and dismiss
the Bank’s counterclaims.
ARGUMENT
I.
THE BANK CANNOT ENFORCE AN ONGOING OBLIGATION UNDER A
CONTRACT IT CHOSE TO TERMINATE.
The Bank identifies no authority to support its argument that it can enforce the fee-
shifting provision in the Account Agreement.  The Bank chose to terminate the Account
Agreement months before Blue Flame initiated litigation to address the Bank’s reckless

1 All capitalized terms used herein have the same meanings as in the Memorandum in Support of
Plaintiff/Counterclaim Defendant Blue Flame Medical LLC’s Motion to Dismiss Counterclaims,
ECF No. 47 (the “Motion”).
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interference with its business and destruction of its reputation.  Instead, the Bank wrongly posits—
without basis in fact or the terms of the Account Agreement—that the rights and obligations under
the fee-shifting provision are not “ongoing” and therefore can be enforced by the Bank at any time,
regardless of whether Blue Flame remains its customer.  (See Opposition at 5-6.)  That is not so,
and courts applying Virginia law have rejected similar efforts to enforce contractual rights that had
previously been extinguished by the party seeking to enforce them.  (See Motion at 7-11.)  The
Bank’s efforts to distinguish those authorities identified in Blue Flame’s Motion fall flat and, in
any event, the Bank offers no conflicting authority in support of its position.
The Bank’s primary argument is that it is not attempting to enforce “ongoing
obligations under a terminated contract” which would be unenforceable following the Bank’s
termination of the Account Agreement.  (See Opposition at 5-6.)  But that is exactly what the
Bank’s counterclaims seek to do, and its argument to the contrary ignores both the plain language
of the Account Agreement and common sense.  As noted in Blue Flame’s Motion, the fee-shifting
clause provides, in pertinent part:  “You will be liable for our costs as well as our reasonable
attorneys’ fees, to the extent permitted by law, whether incurred as a result of collection or in any
other dispute involving your account.”  (Motion at 2 (quoting Exhibit B, § 3 (emphasis added)).)2
The Bank fixates on the words “be liable” (see Opposition at 6), reading out the word “will” which
clearly indicates that it is a prospective, ongoing obligation.  While the Bank attempts to argue that
it is seeking fees for a litigation arising out of Blue Flame’s purported misconduct during the brief
period when the Account Agreement was in force, the fee shifting clause is phrased as—and

2 The fee-shifting clause goes on to provide examples of such disputes (“disputes between you and
another joint owner; you and an authorized signer or similar party; or a third party claiming an
interest in your account”) and the Bank’s potential remedies (deduction of costs and attorneys’
fees “from your account when they are incurred”), all of which are consistent with enforcement
while the account in question remains open and active.  (Motion at 2 (quoting Exhibit B, § 3).)
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creates—a purely prospective contractual obligation which terminates with the rest of the contract.
None of the fees related to this lawsuit concern disputes that existed while the Account Agreement
was in force.  Moreover, neither the fee-shifting clause nor any other portion of the Account
Agreement provides that the obligation survives the termination of the Account Agreement.  (See
Motion at 2, Exhibits A and B.)  The Court should decline the Bank’s invitation to infer such a
term where it does not exist.
In an effort to sidestep the plain language of the Account Agreement, the Bank
attempts to analogize its counterclaims to enforce the fee-shifting clause to a suit for damages for
a material breach of contract.  (See Opposition at 5-6.)  But the Bank is not seeking damages for
breach of contract against Blue Flame in its counterclaims (see Counterclaims, ¶¶ 18-24), nor
would it have any basis to do so.  Instead, the Bank plainly is seeking to benefit from Blue Flame’s
obligation to “be liable” for the Bank’s costs and attorney’s fees under the fee-shifting provision,
despite having terminated its own obligations under the Account Agreement on March 26, 2020.
Accordingly, the authorities Blue Flame has identified that reject attempts to enforce a contract
after choosing to terminate it are directly on point, and foreclose the Bank’s efforts to enforce the
fee-shifting provision here.  See, e.g., Texas Co. v. Northup, 153 S.E. 659, 664 (Va. 1930); see
also Motion at 8-10.
The Bank’s attempt to distinguish those authorities depends entirely on its false
construct that its counterclaims are akin to seeking damages for a breach of contract, even though
the Bank has not made a breach of contract claim.  For example, the Bank argues that the Virginia
Supreme Court’s decision in Texas Co. v. Northup is inapposite because it held that “the oil
company was not entitled to receive an ongoing benefit under the lease contract . . . after
termination of the broader contract,” and that here the Bank is merely seeking to “impose liability
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under a terminated contract.”  (Opposition at 7.)  Because the sole basis for the Bank’s effort to
“impose liability” is its “ongoing benefit” under the fee-shifting provision that it chose to
terminate, Texas Co. does not support the Bank’s position here.3
The Bank’s efforts to differentiate Siskin Enterprises Inc. v. W.B. Stoddard Jr. Inc.,
147 F. Supp. 2d 1125 (D. Utah 2001), also fail.  (See Opposition at 7-8.)  That case concerned a
distribution agreement with a bilateral fee-shifting provision that the plaintiff unilaterally
terminated the day after it brought an action seeking a declaratory judgment that the defendant had
breached the agreement.  See 147 F. Supp. 2d 1125 at 1127-28.  The defendant then asserted a
counterclaim for wrongful termination of the agreement.  Id. at 1128.  Following a trial on the
merits and a jury verdict in favor of the plaintiff on the defendant’s counterclaims, the plaintiff
then filed a motion for attorney’s fees, which the court rejected.  Id. at 1126-27.
The fee-shifting provision in that case was limited to “actions . . . enforcing” the
contract.  The question presented was whether the plaintiff’s declaratory judgment action filed
before terminating the agreement constituted an “enforcing” of the contract “notwithstanding the
unilateral and self operative action by plaintiff in terminating the agreement apart from the
litigation.”  Id. at 1128 (emphasis added).  As the Bank notes, the district court concluded “that
attorneys’ fees were unavailable because the plaintiff’s action had sought to validate its termination
of the [] agreement, rather than to enforce its rights under the agreement.”  (Opposition at 7.)
However, the court went on to add that “[i]n terminating its relationship with defendant …,
plaintiff terminated all provisions of the agreement, including the attorney fees provision” and that
“[n]o language in the contract provided a means whereby the contract could be partially

3 All of the Bank’s efforts to distinguish Blue Flame’s other authorities for this argument depend
on the same faulty premise that it is not trying to obtain ongoing benefits under the terminated
Account Agreement.  (See Opposition at 8 n.3.)
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abrogated.”  147 F. Supp. 2d 1125 at 1129 (emphasis added); see also Motion at 10.  That reasoning
suggests that the plaintiff’s attorney’s fee claim would have failed even if the fee-shifting provision
had not been limited to “actions . . . enforcing” the contract.  Accordingly, the court held that the
plaintiff had “no contractual right to attorneys fees” or costs, not just in connection with the
plaintiff’s declaratory judgment action, but also in connection with the defendant’s counterclaims
for wrongful termination which were asserted after the plaintiff terminated the agreement.  See
147 F. Supp. 2d 1125 at 1130.
Finally, the Bank argues that enforcing the fee-shifting provision according to its
plain language would produce “counterintuitive and obviously unintended results.”  (Opposition
at 9.)  It insists that doing so would deprive the Bank of the ability to seek attorneys’ fees and costs
under Account Agreements that it might terminate “whenever a customer of the Bank uses its
account to defraud the Bank or to engage in other illegal activity.”  (Id.)  Putting aside that Blue
Flame did not engage in any fraudulent or illegal activity despite the Bank’s defamatory assertions
to California officials, if the Bank is concerned about this going forward, it can amend the terms
of the Account Agreement to provide that the fee-shifting provision survives termination.  What it
cannot do is insist that the Court infer such a term where it does not exist.
There is nothing irrational about Blue Flame’s interpretation of the fee-shifting
provision, which is wholly consistent with the terms of the Account Agreement.  Rather, it is the
Bank’s reading of the fee-shifting provision that would create absurd results not contemplated by
parties to the contract.  Under the Bank’s logic, Blue Flame (and all of the Bank’s other customers)
would be liable forever for any attorneys’ fees or costs incurred by the Bank for any reason related
to its account, no matter who is responsible for generating those fees and costs or how much time
has passed since the parties’ commercial relationship ended.  The Court should reject the Bank’s
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invitation to read into the Account Agreement a perpetual and non-terminable obligation to pay
the Bank’s attorneys’ fees and costs.  Because the Bank no longer has the right to enforce the fee-
shifting provision it chose to terminate, the Court should dismiss the Bank’s counterclaims.
II.
THE FEE-SHIFTING PROVISION IS UNENFORCEABLE UNDER VIRGINIA
LAW.
Apart from the fact that the Bank chose to terminate the Account Agreement in its
entirety, its efforts to enforce the fee-shifting provision should be dismissed because the provision
is both procedurally and substantively unconscionable under established Virginia law.  (See
Motion at 11-14.)  The Bank’s arguments to the contrary misconstrue the Virginia Supreme
Court’s recent decision in Flint Hill School v. McIntosh, which rejected the positions that the Bank
seeks to advance here.
First, the Bank insists that not every contract of adhesion is “invariably
unconscionable” and unenforceable.  (See Opposition at 10.)  Blue Flame does not argue to the
contrary.  As argued previously, under Virginia law, a contract of adhesion is procedurally
unconscionable and unenforceable when its terms also are substantively unconscionable.  Flint
Hill Sch. v. McIntosh, No. 181678, 2020 WL 33258, at *6 (Va. Jan. 2, 2020) [hereinafter McIntosh
II].4  In their McIntosh opinions, the Virginia Circuit Court and the Virginia Supreme Court
addressed unconscionability as Blue Flame does here—as a non-dispositive, threshold inquiry that
is satisfied where the contested provision is a contract of adhesion.  See McIntosh v. Flint Hill Sch.,

4 Because Blue Flame does not argue that every contract of adhesion is unconscionable, the cases
cited by the Bank for the opposite proposition, both of which addressed whether employee
arbitration agreements were preempted by the Federal Arbitration Act, are wholly inapposite.  See
Saturn Distribution Corp. v. Williams, 905 F.2d 719, 727 (4th Cir. 1990) (holding that provision
of Virginia law forbidding nonnegotiable arbitration provisions in automobile franchise
agreements was preempted by Federal Arbitration Act); Am. Gen. Life & Acc. Ins. Co. v. Wood,
429 F.3d 83, 93 (4th Cir. 2005) (holding that employee’s state law claims against employer were
arbitrable under valid and enforceable arbitration agreement).

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No. CL-2018-1929, 2018 WL 9393020 at *14-15 (Va. Cir. Ct. Sep. 17, 2018) [hereinafter
McIntosh I]; McIntosh II, 2020 WL 33258, at *6.  The fee-shifting provision here, like that in
McIntosh, is a contract of adhesion because it was prepared by the Bank and presented to Blue
Flame for signature without affording Blue Flame a “meaningful choice regarding the terms.”
McIntosh II, 2020 WL 33258, at *6.  The Bank has not alleged otherwise, nor could it.  Blue Flame
did not negotiate any of the terms of the Account Agreement which, just like the enrollment
contract in McIntosh, was presented to Blue Flame for electronic signature via Docusign on a take-
it-or-leave-it basis.  See McIntosh I at *15; see also Motion at 2, 13; Complaint  ¶ 34; Answer ¶ 34;
Counterclaims ¶¶ 5-7.  Thus, while the fact that the fee-shifting provision is a contract of adhesion
does not end the Court’s inquiry as to unconscionability, it is sufficient to establish a basis for
procedural unconscionability, consistent with the Virginia Supreme Court’s decision in McIntosh
II.  See 2020 WL 33258, at *6.5
The Bank urges that procedural unconscionability is a “factbound” inquiry that
should not be resolved on a Motion to Dismiss.  (Opposition at 11-12.)  But the Bank offers no
authority holding that discovery is required to determine unconscionability, nor does it explain
how discovery could be enlightening where, as here, the contract term in question was not subject
to any negotiation.  All of the Bank’s authorities regard disputes about the unconscionability of

5 The cases cited in the Bank’s Opposition are not to the contrary.  In Ebadom VA, LLC v. Lee, the
court found that the fee-shifting provision at issue was not a contract of adhesion because it had
been actually negotiated by the parties.  No. CL-2018-1535, 2020 WL 1704650, at *2 (Va. Cir.
Ct. Apr. 06, 2020).  In SunTrust Banks, Inc. v. Be Yachts, LLC, the court did not address whether
the fee-shifting provision at issue was a contract of adhesion and based its holding primarily on an
analysis of the provision’s substance. No. C18-840, 2020 WL 5759789, at *2 (W.D. Wash. Sept.
28, 2020).  That provision, contained in a loan agreement, applied only to lawsuits brought by the
lender for a deficiency by the borrower, id., and thus was far more limited in scope than the Bank’s
fee-shifting provision, which applies whenever the Bank talks to its lawyers about a matter
concerning a customer’s account.  (See Motion at 2 (quoting Exhibit B, § 3).)
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disclaimers of the implied warranty of merchantability under Article 2 of the Uniform Commercial
Code, which does not apply to contracts like the Account Agreement here.  See Walker v.
Caterpillar Indus., Inc., 34 F.3d 1067 (4th Cir. 1994) (applying Virginia law); Carlson v. General
Motors Corp., 883 F.2d 287, 292 (4th Cir. 1989) (applying South Carolina law); Kaplan v. RCA
Corp., 783 F.2d 463, 467 (4th Cir. 1986) (applying New Jersey law).  As the Fourth Circuit stated
in Carlson, Article 2 of the UCC expressly requires that “[w]hen it is claimed or appears . . . that
[a] contract or any clause thereof may be unconscionable[,] the parties shall be afforded a
reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid
the court in making the determination.”  Carlson, 883 F.2d 287, 293 (4th Cir. 1989) (quoting
Uniform Commercial Code § 2–302(2)).  That UCC provision does not apply to contracts for the
rendering of services like the Account Agreement.  See, e.g., Princess Cruises v. Gen. Elec. Co.,
143 F.3d 828, 832 (4th Cir. 1998).  As such, the unconscionability of the fee-shifting provision at
issue can be resolved on a motion to dismiss.
Second, as to substantive unconscionability, the Bank attempts to distract from the
plain overbreadth of the fee-shifting provision by recycling an argument the Virginia Supreme
Court has already rejected:  that the provision’s “reasonableness limitation” should be interpreted
to save the provision and, specifically, to preclude a losing party in litigation from recovering its
attorney’s fees.  (See Opposition at 12-15.)  The Bank asserts that the fee-shifting provision, then,
“ordinarily would not authorize the Bank to recover its attorneys’ fees if it does not prevail in
litigation.”  (Id. at 13-14 (emphasis added).)6  However, in McIntosh II, the Virginia Supreme

6 Unwilling to abandon hope of an attorney’s fee award in the event that Blue Flame prevails in
this litigation, the Bank asserts in a footnote that “[i]n an appropriate case, an award of fees could
be reasonable, within the meaning of the Account Agreement, even if the Bank does not secure a
fully favorable result.”  (Opposition at 14 n. 4.)  To support that proposition, the Bank cites the
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Court specifically rejected an argument that a reasonableness limitation saved the overly broad
fee-shifting provision at issue there from being unconscionable, and held the provision was
unconscionable because the obligation to pay “as stated in the provision” was unconscionable.
2020 WL 33258, at *5-6 (“The issue is not whether the amount of attorneys’ fees would be
unconscionable; the issue is whether the obligation to pay the School’s attorneys’ fees as stated in
the provision is unconscionable.”) (emphasis added).7
Here, the obligation imposed by the Bank’s fee-shifting provision is
unconscionable because it expressly calls for Blue Flame to pay the Bank’s attorney’s fees any
time the Bank “seek[s] the advice of an attorney, whether or not [the Bank] become[s] involved in
the dispute.”  (Motion at 2 (quoting Exhibit B, § 3).)  Thus, it is not limited to situations where
there is litigation involving the Bank and the Bank is a prevailing party, as the Bank now suggests.
Indeed, the obligation stated in the fee-shifting provision would hold Blue Flame liable for the
Bank’s attorney’s fees whenever the Bank “seek[s] the advice of an attorney” “in any dispute
involving [Blue Flame’s] account,” no matter who initiates the dispute, no matter whether the Bank

Equal Access to Justice Act’s fee-shifting provision.  28 U.S.C. § 2412(d)(1)(D).  The Bank
provides no explanation of how a fee-shifting provision in an inapplicable federal statute bears on
the interpretation of a fee-shifting provision in a bank account agreement governed by state law.

7 The Bank attempts to distinguish McIntosh on the basis that the “reasonableness limitation” at
issue in that case was implied as a matter of Virginia law, rather than appearing in the language of
the fee-shifting provision.  (Opposition at 15.)  But the Virginia Supreme Court did not suggest it
would have given greater weight to an express reasonableness limitation when it rejected the
argument that an implied reasonableness limitation rendered the provision enforceable.  See 2020
WL 33258, at *5-6.  Furthermore, the Bank’s reference to “Virginia courts’ general reluctance to
‘blue pencil’ impermissibly overbroad contract provisions” only underscores why the Court should
decline the Bank’s invitation to interpret “reasonable” to mean “prevailing party only.”  See
Update, Inc. v. Samilow, 311 F. Supp. 3d 784, 788 (E.D. Va. 2018) (citation omitted) (“[C]ourts
have no authority under Virginia law to ‘blue pencil’ or otherwise rewrite the contract to eliminate
illegal overbreadth.”); Darton Envt’l, Inc. v. FJUVO Collections, LLC, 332 F. Supp. 3d 1022, 1031
(W.D. Va. 2018); Pitchford v. Oakwood Mobile Homes, Inc., 124 F. Supp. 2d 958, 966 (W.D. Va.
2000).
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is involved in any resulting litigation, and no matter whether the Bank prevails in any such
litigation.  (See id.)  A plain reading of the fee-shifting provision suggests that Blue Flame is liable
any time the Bank picks up its phone to ask an attorney a routine question prompted by Blue
Flame’s account.  A finding that such an extraordinarily far-reaching fee-shifting provision
“shocks the conscience” is entirely consistent with the Virginia Supreme Court’s decision in
McIntosh.  See 2020 WL 33258, at *6.  Accordingly, the Court should find the fee-shifting
provision void as unconscionable and dismiss the Bank’s counterclaims.
III.
THE FEE-SHIFTING PROVISION IS FACIALLY OVERBROAD AND VOID AS
AGAINST PUBLIC POLICY.
Finally, in arguing that the fee-shifting provision is not void as against public
policy, the Bank again relies on the provision’s purported “reasonableness limitation.”  (See
Opposition at 15.)  That argument fails because, as explained above, it does not limit the
provision’s application outside of the litigation context.  The Bank also argues that the phrase “to
the extent permitted by law” precludes an interpretation of the provision that would allow it to
violate public policy.  But as the Bank itself points out, “courts have no authority under Virginia
law to ‘blue pencil’ or otherwise rewrite the contract to eliminate illegal overbreadth.”  (See id.
(citing Update, Inc., 311 F. Supp. 3d at 788).)  Yet that is precisely what the Bank asks the Court
to do here to avoid the fee-shifting clause’s facial overbreadth.  The Bank should decline that
request and dismiss the Bank’s counterclaims as void as against public policy for the reasons stated
in Blue Flame’s Motion.  (See Motion at 14-15.)
CONCLUSION
For the foregoing reasons, the Counterclaims should be dismissed in their entirety.
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Dated: November 9, 2020
Respectfully submitted,

  /s/ Peter H. White

Peter H. White, Esq. (VSB # 32310)

Jason T. Mitchell (admitted pro hac vice)
Gregory Ketcham-Colwill (admitted pro hac vice)
SCHULTE ROTH & ZABEL LLP

901 Fifteenth Street, NW, Suite 800

Washington, DC 20005

Tel:  (202) 729-7476
Fax:  (202) 730-4520

pete.white@srz.com
jason.mitchell@srz.com
gregory.ketcham-colwill@srz.com

William H. Gussman, Jr. (admitted pro hac vice)
SCHULTE ROTH & ZABEL LLP
919 Third Avenue
New York, New York 10022
Tel:  (212) 756-2044
Fax:  (212) 593-5955
bill.gussman@srz.com

Counsel for Blue Flame Medical LLC
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CERTIFICATE OF SERVICE

I hereby certify that on this 9th day of November, 2020, I caused the foregoing
document to be filed and served electronically using the Court’s CM/ECF system, which
automatically sent a notice of electronic filing to all counsel of record.

Dated: November 9, 2020

  /s/ Peter H. White

Peter H. White, Esq. (VSB# 32310)

SCHULTE ROTH & ZABEL LLP
901 Fifteenth Street, NW, Suite 800
Washington, DC 20005
Tel: 202-729-7476
Fax: 202-730-4520
pete.white@srz.com

Counsel for Blue Flame Medical LLC

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File and source

File

gov.uscourts.vaed.477405.58.0.pdf

Size

86,122 bytes

SHA-256

85ee8d1a4ff4c4969dd3e9e9a8e56b3d5ba0dc5abac5af98be462c46eb7dd532

Our copy

gov.uscourts.vaed.477405.58.0.pdf

Original

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