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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
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BLUE FLAME MEDICAL LLC
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Plaintiff,
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v.
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Civil Action No. 1:20-cv-00658
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CHAIN BRIDGE BANK, N.A.,
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The Honorable Leonie Brinkema
JOHN J. BROUGH, and
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DAVID M. EVINGER,
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Defendants.
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CHAIN BRIDGE BANK, N.A.
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Third-Party Plaintiff,
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v.
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JPMORGAN CHASE BANK, N.A.
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Third-Party Defendant.
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REPLY MEMORANDUM IN SUPPORT OF PLAINTIFF’S
MOTION FOR LEAVE TO FILE SUPPLEMENTAL AUTHORITIES
Defendants1 do not oppose the Court’s consideration of the decisions identified in Blue
Flame’s Motion for Leave to File Supplemental Authorities (“Motion”) (ECF No. 170), each of
which supports the procedural propriety of the Huang Declaration (ECF No. 150-11 (Pls.’ Ex.
95)). Instead, Defendants’ Response to the Motion (“Response”; ECF No. 173) doubles down on
Defendants’ baseless “basic fairness” argument and attacks the substance of the Huang Declaration
1 Capitalized terms not defined herein shall have the meanings assigned to them in Plaintiff’s
Memorandum of Law in Support of its Motion for Leave to File Supplemental Authorities (ECF
No. 171).
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and Blue Flame’s damages claim, in general. The Court should reject Defendants’ distorted
interpretations of the supplemental authorities identified in the Motion and, consistent with those
authorities, consider the Huang Declaration in connection with the parties’ pending motions for
summary judgment.
Defendants’ attempt to distinguish the four District Court decisions attached to Blue
Flame’s Motion falls flat. Defendants urge that the court in Zhizheng Wang v. Hull “did not
consider an argument that the declaration was improper because the declarants had refused to be
deposed” (Response at 2), but then immediately reveal the opposite to be true by quoting (id. at 3)
the court’s statement that the plaintiff would “not be permitted to refuse to be deposed while
offering his declarations as evidence when it suits him.” No. C18-1220, 2020 WL 4734930, at *2
(W.D. Wash. June 22, 2020). Clearly, the court was sensitive to the fact that the declarants had
not been deposed when it considered their declarations on summary judgment and denied the
motion to strike them. See No. C18-1220, 2020 WL 3315990, at *1-4 (W.D. Wash. June 18,
2020), reconsideration denied, 2020 WL 8839776 (W.D. Wash. July 6, 2020).
Defendants also insist that neither Squires v. Toyota Motor Corp., No. 4:18-CV-00138,
2021 WL 1837540 (E.D. Tex. May 7, 2021), nor Jacobs v. Floorco Enters., LLC, No. 3:17-CV-
90, 2020 WL 1290607 (W.D. Ky. Mar. 18, 2020), “suggest[s] that Huang’s refusal to be deposed
was anything other than a choice . . . .” Response at 3. By casting Huang’s inability to sit for a
deposition as a “choice,” Defendants attempt to substitute their own apparent risk appetite for that
of a non-party fact witness confronting Chinese law, a global pandemic, and the most stringent
international travel restrictions in living memory. Both decisions plainly support that witnesses in
Huang’s position should not be forced to travel to another country to sit for a deposition even if
they could make a “choice” to do so. See Squires v. Toyota Motor Corp., 2021 WL 1837540, at
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*4 (“Deponents will have to travel to either a non-U.S. country or Hawaii” and “will then have to
travel back to Japan following conclusion of the depositions”; refusing to compel non-party fact
witnesses to travel internationally for remote depositions); Jacobs v. Floorco Enters., LLC, 2020
WL 1290607, at *16 (citing “the current restrictions imposed by the United States and other
countries on travel in light of COVID-19” as a reason for not imposing deadline as to when witness
must appear for deposition).2
As at the Hearing, Defendants argue in their Response that “[b]asic fairness precludes
consideration” of the Huang Declaration. Response at 1. But Defendants continue to ignore that
Rule 56 of the Federal Rules of Civil Procedure expressly contemplates the use of declarations to
support or oppose summary judgment motions, and does not require that a declarant be deposed
in order to submit a declaration. See Fed. R. Civ. P. 56(c); United States v. Rocky Mt. Holdings,
Inc., 782 F.Supp.2d 106, 114 (E.D. Pa. 2011) (rejecting argument that “Plaintiff’s submission of
[declarations] in lieu of [a deposition] was improper” because “[n]othing in the Federal Rules of
Civil Procedure requires Plaintiff to depose [declarant]”). Moreover, the facts on which
Defendants’ fairness argument relies demonstrate nothing more than Huang’s inability to be
deposed—by either party. See Response at 2 (“Huang advised that he was ‘currently still in China
and will be for the near future.’”). Nothing prevented Defendants from seeking a declaration from
Huang as Blue Flame did. Their failure to do so does not result in any unfairness.
Recognizing that neither the law nor the facts support their fairness argument, Defendants
again attack the substance of the Huang Declaration in their Response. They suggest that Huang’s
2 Estate of Boyles v. Gree USA, Inc., No. 1:20-CV-276, 2021 WL 3292727 (M.D.N.C. Aug. 2,
2021), cited in Defendants’ Response, involved circumstances far different than those presented
here. See Response at 4. There, the court granted a motion for sanctions against three Chinese
corporate defendants that failed to make witnesses available for 30(b)(6) depositions despite three
discovery extensions and multiple court orders to appear for the depositions. Id. at *2-5.
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statement that GHC could have supplied the N95 masks for California’s order—as Huang had
agreed GHC would do at the time Blue Flame entered its contract with California—is contradicted
by a “contemporaneous” email he sent to Blue Flame. See Response at 2. However, the cited
email (ECF No. 131-18 (Defs.’ Ex. 83)), was not “contemporaneous” with GHC’s agreement to
supply the masks for California’s order. Rather, it was sent on April 7, 2020, twelve days after
Defendants thwarted Blue Flame’s transaction with California, which prevented Blue Flame from
making its contractual up-front payment to GHC. Twelve days was an eternity in the extremely
volatile N95 mask market of Spring 2020,3 and more than enough time for other buyers to claim
the production capacity GHC had planned to obtain with California’s prepayment. As Huang
explains in his declaration, not only had market conditions changed since March 26, but GHC’s
market standing had been damaged by its inability to fulfill the commitments it had made to mask
manufacturers for California’s order—a direct result of Defendants’ tortious interference and
illegal return of California’s prepayment. Huang Decl. at ¶ 38. Indeed, Huang’s email shows that
by April 7 Blue Flame had been relegated to the spot market, which did not have the capacity to
reliably supply very large orders. See ECF No. 131-18 (“Ordering on demand will be a big
unpredictable challenge for the n95s as the only way to ensure securing timely inventory is locking
down dedicated daily production capacity . . . .”). Thus, Huang’s April 7 email addresses a world
that was already much different than it would have been absent Defendants’ wrongful actions.
Defendants also attack Blue Flame’s damages claim with the same circular causation
argument advanced in their summary judgment briefing and at the Hearing: that because
California chose not proceed with the transaction after Defendants interfered, California would
3 The volatility in the N95 mask market in Spring 2020 is undisputed and, in any event, supported
by a wealth of record evidence, including Huang’s April 7 email. See, e.g., ECF No. 150-33 (Pls.’
Ex. 117) (Expert report of Marc A. Prisament).
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have chosen not to proceed even if Defendants had not interfered. See Response at 5-6. Simply
put, California’s possession of a right to terminate its contract with Blue Flame does not absolve
Defendants of their responsibility for causing California to terminate the contract. In any event,
California never invoked that contractual right, which would have required a Department of
General Services official to “deliver[] to [Blue Flame] a Notice of Termination specifying the
extent of termination and the effective date thereof.” ECF No. 131-14 (Defs.’ Ex. 79) at § 23. It
is undisputed that Blue Flame never received such a notice from California. Given that California
did not invoke the termination for convenience provision even after Defendants interfered, there
is absolutely no basis to think the State would have done so if Defendants had not interfered. After
all, it is undisputed that California did not express any discomfort with the transaction after sending
its prepayment and before being contacted by Defendants. See ECF No. 149 at 13-14; ECF No.
159 at 19. The record could not be clearer that the actions Defendants took in response to receiving
California’s prepayment caused California to abandon its transaction with Blue Flame.4 See, e.g.,
ECF No. 149 at 12-13; ECF No. 150-8 (Pls.’ Ex. 92) at 132:9-133:1, 133:17-21, 135:10-20.
For the foregoing reasons, the Court should grant Blue Flame’s Motion for Leave to File
Supplemental Authorities.
4 Defendants’ full-court press against the Huang Declaration and Blue Flame’s damages claim, in
general, distracts from the fact that Blue Flame’s damages are not an all-or-nothing proposition.
Even if a jury found that Blue Flame would have delivered only some of the masks California had
ordered (despite its suppliers’ commitments to provide enough masks for the entire order), Blue
Flame still would be entitled to damages in the amount of the lost profit from any partial
performance. Similarly, even if there were delays in Blue Flame’s delivery of the masks California
purchased, California’s dealings with its eventual N95 mask supplier, a Chinese company called
BYD, suggest that the State would have granted Blue Flame more time to perform rather than
terminate the contract. See ECF No. 150-33 (Pls.’ Ex. 117) at ¶ 22. Because there is ample
evidence in the record that Blue Flame would have delivered some number masks to California,
Defendants fail to sustain their burden on summary judgment to show that Blue Flame cannot
prove any damages.
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Dated : Washington, D.C.
August 16, 2021
Respectfully submitted,
/s/ Peter H. White
Peter H. White (VA Bar No. 32310)
Jason T. Mitchell (pro hac vice)
Gregory Ketcham-Colwill (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. (pro hac vice)
Steven R. Fisher (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
steven.fisher@srz.com
Counsel for Plaintiff Blue Flame Medical LLC
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CERTIFICATE OF SERVICE
I hereby certify that on this 16th day of August, 2021, 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: August 16, 2021
/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
peter.white@srz.com
Counsel for Blue Flame Medical LLC
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