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False Claims Act Complaint — United States ex rel. Gray v. Monofrax LLC (E.D. Mich.)

Summary

A False Claims Act Complaint (Sealed Complaint) filed 09/21/22 as ECF No. 1 in United States of America ex rel. Jeffery Gray v. Monofrax LLC, Monfrax Holding GmbH, Callista Private Equity GmbH, Compagnie de Saint-Gobain, and William Andrews, Case 5:22-cv-12221-JEL-KGA, U.S. District Court, Eastern District of Michigan, marked as filed in camera and under seal pursuant to 31 U.S.C. § 3730(b)(2). Relator Jeffery Gray brings the qui tam action on behalf of the United States. The complaint alleges that Defendants submitted materially false Paycheck Protection Program (PPP) loan applications on May 5, 2020 and January 26, 2021 and related forgiveness applications, and that Defendants mischaracterized Monofrax LLC as a small business with less than 200 employees. It alleges that the government paid $4,407,959.80 that would not otherwise have been paid.

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Cite this document

“False Claims Act Complaint — United States ex rel. Gray v. Monofrax LLC (E.D. Mich.).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/complaint-no-5-22-cv-12221-dkt-1-e-d-mich-2680b63718/, SHA-256 24d9419227ad285b832cd3da0aa88f5016f73332661233e3b6d5468078a9d5bc.

Full text

Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.1 Filed 09/21/22 Page 1 of 44



                    UNITED STATES DISTRICT COURT
                    EASTERN DISTRICT OF MICHIGAN

UNITED STATES OF AMERICA ex
rel. JEFFERY GRAY,                        Civil Action No _________________
                                          Hon.
      Plaintiff,                          Magistrate

                    v.                    FALSE CLAIMS ACT
                                          COMPLAINT
MONOFRAX LLC, MONFRAX
HOLDING GmbH, CALLISTA                    [FILED UNDER SEAL]
PRIVATE EQUITY GmbH,
COMPAGNIE de SAINT-GOBAIN,
and WILLIAM ANDREWS,
      Defendants.



        FILED IN CAMERA AND UNDER SEAL PURSUANT TO
                      31 U.S.C. § 3730(b)(2)
                     DO NOT POST ON ECF
                   DO NOT PUT IN PRESS BOX

Patricia Stamler (P35905)                 Darth M. Newman
Hertz Schram PC                           Law Offices of Darth M. Newman LLC
1760 S. telegraph Rd                      1140 Thorn Run Rd, #601
STE 300                                   Coraopolis, PA 15108
Bloomfield, Hills, PA 48302               (412) 436-3443
(248) 335-5000

Local Counsel for Plaintiff Relator       Lead Counsel for Plaintiff Relator




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         SEALED COMPLAINT AND DEMAND FOR JURY TRIAL

      Qui tam plaintiff and Relator Jeffery Gray, by and through his undersigned

attorneys, hereby brings this action on behalf of himself and on behalf of the

United States of America, against:

   • Monofrax LLC;

   • Monfrax Holding GmbH;

   • Callista Private Equity GmbH;

   • Compagnie de Saint-Gobain; and

   • William Andrews.
                                INTRODUCTION
      The claims asserted in this Complaint are based on Defendants submitting,

or causing to be submitted, materially false applications for Paycheck Protection

Program (“PPP”) loans and related forgiveness applications. Defendants, acting

through their control and/or ownership of Monofrax LLC, submitted two

applications for PPP loans. The first loan application occurred on May 5, 2020, and

the second loan application occurred on January 26, 2021. On both applications,

Defendants made materially false statements or material omissions about the

employee size of Monofrax LLC.

      Defendants mischaracterized Monofrax LLC, the nominal applicant, as a

“small business” with less than 200 employees. But, under the applicable statutes



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and regulations, Monofrax was not a small business at all and did not qualify for

any PPP loan funds or forgiveness of these loans.

      Defendants compounded their initial false claims by obtaining complete

forgiveness of both PPP loans with forgiveness payments being made on or about

September 16, 2021, and June 15, 2022. Altogether, Defendants caused the

government to pay $4,407,959.80 that would not otherwise have been paid but for

the false claims described herein.




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                                           TABLE OF CONTENTS

INTRODUCTION.......................................................................................... II
TABLE OF CONTENTS ............................................................................... 1
NATURE OF THE CLAIM ........................................................................... 3
PARTIES ....................................................................................................... 3
         A. Relator – Jeffery Gray............................................................................................. 3
         B. Defendant Monofrax LLC ..................................................................................... 4
         C. Defendant Monofrax Holding GmbH ................................................................. 5
         D. Defendant Callista Private Equity GmbH .......................................................... 6
         E. Defendant Compagnie de Saint-Gobain ............................................................. 7
         F. Defendant William Andrews................................................................................. 8
         G. Non-Party Crestmark Bank ................................................................................... 8
JURISDICTION AND VENUE ...................................................................... 9
GENERAL ALLEGATIONS ....................................................................... 10
    I. Governing Law ............................................................................................................ 10
         A. The Federal False Claims Act ............................................................................ 10
         B. The Paycheck Protection Program.................................................................... 11
              i. Affiliation Rules ................................................................................................ 14
    II. Violations of the False Claims Act ......................................................................... 18
         A. PPP Loan Applications ........................................................................................ 18
              i. First PPP Loan Application ............................................................................ 19
              ii. Second PPP Loan Application ....................................................................... 22
         B. Impermissible Affiliations .................................................................................. 25
              i. Callista’s Affiliations ....................................................................................... 26
              ii. Saint-Gobain’s Affiliations ............................................................................ 28
         C. Lack of Need for Funds ....................................................................................... 28
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            i. Payments “Up” to Callista .............................................................................. 29
       D. Forgiveness Applications .................................................................................... 30
            ii. First Forgiveness Application ........................................................................ 30
            iii.      Second Forgiveness Application ........................................................... 31
   III. Defendants’ Role(s) in the False Claims ............................................................... 31
       A. Monofrax LLC ....................................................................................................... 32
       B. Monofrax Holding GmbH................................................................................... 32
       C. Callista Private Equity GmbH ........................................................................... 32
       D. Saint-Gobain........................................................................................................... 33
       E. William Andrews .................................................................................................. 34
CAUSES OF ACTION ................................................................................. 35




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                          NATURE OF THE CLAIM

      1.    Relator sues Defendants to recover treble damages and civil penalties

on behalf of the United States of America for Defendants’ false applications for

PPP loans and forgiveness which were submitted to the Small Business

Administration (“SBA”) through Defendants’ bank, Crestmark.

      2.    Defendants knew they did not meet the established criteria set by the

SBA to obtain the PPP loans or forgiveness funds.

      3.    Defendants engaged in the submission of false claims to the United

States in violation of the False Claims Act, 31 U.S.C. § 3729 et seq. (“FCA”).

      4.    As an employee of Defendant Monofrax LLC, Relator personally

observed Defendants’ financial and management practices and the preparation and

submission of the PPP loan and forgiveness applications.

                                    PARTIES

      A.    Relator – Jeffery Gray

      5.    Jeffery Gray is an individual resident and domiciliary of the

Commonwealth of Pennsylvania.

      6.    In October 1989, Relator Gray commenced his employment with

Monofrax’s predecessor company.

      7.    At all relevant times herein, he was the Director of Information

Technology and Special Projects for Defendant Monofrax LLC.

      8.    In April 2022, Relator was promoted to Business Systems Manager.
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      9.     Relator’s title belies his role in the company and its operations.

      10.    As a long-serving high-level management employee, Relator was

given broad access to the inner financial workings of the company and the

relationship between Monofrax and its various Private Equity and other corporate

overlords.

      11.    Relator was present for C-Suite conversations and calculations about

the purchase by Callista and later Saint-Gobain, the payments “up” to Callista, and

the applications for the PPP loans and forgiveness.

      B.     Defendant Monofrax LLC

      12.    Defendant Monofrax LLC (“Monofrax”) is a Delaware registered

limited liability company with a principal place of business at 1870 New York

Ave, Falconer, NY 14733.

      13.    Its primary business is the manufacture of refractory materials used in

the glass manufacturing industry.

      14.    Monofrax LLC is the nominal applicant and recipient for both of the

PPP loans, and both sets of forgiveness paperwork and monies at issue here.

      15.    Defendant Callista Private Equity purchased 100% of Monofrax on or

about June 6, 2016.




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      16.   As a technical matter, it seems Callista purchased all the entity that

came to be known as Defendant Monofrax Holding GmbH which in turns owns all

of Monofrax LLC.

      17.   Callista Private Equity sold Monofrax Holding GmbH to Saint-

Gobain in April 2022.

      C.    Defendant Monofrax Holding GmbH

      18.   Defendant Monofrax Holding GmbH is a German registered business

entity and the 100% owner of Monofrax LLC.

      19.   Until June 20, 2016, Monofrax Holding GmbH was known as Callista

Turnaround 3 GmbH.

      20.   On or about June 6, 2016, Callista Private Equity purchased

Monofrax.

      21.   As a technical matter, it appears Callista used a wholly owned

acquisition vehicle named Callista Turnaround 3 GmbH to purchase the entirety of

Monofrax LLC from the prior owner, RHI AG, an Austrian registered business.

      22.   Callista then changed the name of its acquisition vehicle from Callista

Turnaround 3 GmbH to Monofrax Holding GmbH on or about June 20, 2016.

      23.   The Third Amended and Restated Limited Liability Company

Agreement for Monofrax Holding GmbH is signed by only one person, Olaf

Meier, the founding partner, and CEO of Callista Private Equity GmbH.


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        24.   Defendant Monofrax Holding GmbH appears to be the company that

Callista later sold to Saint-Gobain.

        25.   At all relevant times, Monofrax Holding GmbH owned and controlled

Defendant Monofrax LLC and is thereby liable for the violations of the FCA

complained of herein.

        D.    Defendant Callista Private Equity GmbH

        26.   Defendant Callista Private Equity GmbH (“Callista”) is a German

registered business entity and, from at least June 2016 through April 2022, the

100% owner of Monofrax.

        27.   Callista may have interposed additional paper entities between itself

and Monofrax Holding GmbH, but Callista was the final or ultimate beneficial

owner and entity with the power to control Monofrax between June 2016 and April

2022.

        28.   During its term of ownership, Callista controlled the management and

closely monitored the performance of Monofrax.

        29.   Also, Callista caused Monofrax to pay to it substantial sums of money

on a more or less monthly basis.

        30.   The payments Monofrax made to Callista during Callista’s ownership

of it totaled more than $1.9 million.




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        E.    Defendant Compagnie de Saint-Gobain

        31.   Defendant Compagnie de Saint-Gobain is a global conglomerate with

a global headquarters in Courbevoie, France and a North American headquarters in

Malvern, Pennsylvania.

        32.   Compagnie de Saint-Gobain (“Saint-Gobain”) is organized under the

laws of France with a business address of Les Miroirs 18 Ave D’Alsace

Courbevoie, Courbevoie I0 92400.

        33.   Saint-Gobain is a global company which brands itself as a “worldwide

leader in light and sustainable construction, Saint-Gobain designs, manufactures

and distributes materials and services for the construction and industrial markets.”

See gen., https://www.saint-gobain.com/en/group/who-are-we last visited August

25, 2022

        34.   Saint-Gobain purchased Monofrax from Callista on or about April 20,

2022.

        35.   As with Callista’s earlier purchase from RHI AG, Saint-Gobain

purchased the Monofrax Holding GmbH entity which continues to own 100% of

Monofrax LLC.

        36.   Saint-Gobain may have interposed additional paper entities between

itself and Monofrax Holding GmbH, but Saint-Gobain has been the final or




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ultimate beneficial owner and entity with the power to control Monofrax since

April 20, 2022.

      37.    Saint-Gobain previously owned Monofrax in 1996..

      F.     Defendant William Andrews

      38.    Defendant William Andrews is an individual resident and domiciliary

of New York with an address of 12118 Anne Drive, Alden, NY 14004.

      39.    Mr. Andrews was the President and Managing Director of Monofrax

at all relevant times and the signatory on each of the PPP loan and forgiveness

applications at issue here.

      40.    Mr. Andrews voluntarily left Monofrax on or about July 8, 2022.

      41.    He received a sizeable “commission” on the sale of Monofrax to

Saint-Gobain.

      42.    The purchase price which formed the basis of that commission was

itself inflated by the value of the PPP loans and forgiveness Monofrax should

never have received.

      G.     Non-Party Crestmark Bank

      43.    Non-Party Crestmark Bancorp, Inc. is a corporation organized under

the laws of the state of Michigan with a principal place of business located at 5480

Corporate Drive, Suite 350 Troy, Michigan 48098.

      44.    Crestmark Bank is a division of MetaBank.


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      45.    Crestmark Bank processed the Monofrax PPP loan applications and

made both loans.

      46.    Crestmark’s relationship with Monofrax predates the pandemic and

the PPP loan applications.

      47.    It provided Monofrax a $3 million revolving credit line secured by

Monofrax’s assets and accounts receivable.

                          JURISDICTION AND VENUE
      48.    This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331

and 1345 because this action involves a federal question, and the United Sates is

plaintiff. This Court also has subject matter jurisdiction under 31 U.S.C. § 3732(a).

      49.    The Court may exercise personal jurisdiction over the Defendants

under 31 U.S.C. § 3732(a) because at least one Defendant transacted business in

this district and the acts complained of occurred within this district.

      50.    Venue is proper in this District under 31 U.S.C. § 3732(a) because at

least one Defendant transacted business in this district and a substantial part of the

events establishing the alleged claims arose in this District.

      51.    No allegation in this Complaint is based on a public disclosure of

allegations or transactions in a Federal criminal, civil, or administrative hearing in

which the Government or its agent is a party; in a congressional, administrative, or

General Accountability Office, or other Government report, hearing, audit, or

investigation; or from the news media. Rather, Relator is the original source.
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      52.    Under 31 U.S.C. § 3730(b)(2), this Complaint is filed in camera and

under seal and shall not be served on Defendants until the Court so orders.

      53.    Under 31 U.S.C. § 3730(b)(2), Relator voluntarily provided the

Government with Relator’s written disclosure statement, together with exhibits, of

substantially all material evidence and material information in his possession

referenced in and/or related to the Complaint.

                           GENERAL ALLEGATIONS
I.    Governing Law

      A.     The Federal False Claims Act

      54.    The FCA imposes liability upon any person who “knowingly presents,

or causes to be presented [to the Government] a false or fraudulent claim for

payment or approval,” “knowingly makes, uses, or causes to be made or used, a

false record or statement material to a false or fraudulent claim,” or conspires to do

so. 31 U.S.C. § 3729(a)(1).

      55.    As of the date of filing, any person found to have violated these

provisions is liable for a civil penalty of not less than $12,537 and not more than

$25,076 for each such violation, plus three times the damage sustained by the

Government.

      56.    The FCA imposes liability where conduct is “in reckless disregard of

the truth or falsity of the information” and clarifies that “no proof of specific intent

to defraud is required.” 31 U.S.C. § 3729(b).
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      57.    The FCA also broadly defines a "claim" to include "any request or

demand, whether under a contract or otherwise, for money or property and whether

or not the United States has tittle to the money or property, that - … is made to a

contractor, grantee, or other recipient if the money or property is to be spent or

used on the Government's behalf or to advance a Government program or interest

... " 31 U.S.C. § 3729(b)(2)(A).

      58.    The FCA empowers private persons having information regarding a

false or fraudulent claim against the Government to sue on behalf of the

Government and to share in any recovery. The complaint must be filed under seal

without service on any defendant. The complaint remains under seal while the

Government conducts an investigation of the allegations and determines whether to

intervene. 31 U.S.C. §3730(b).

      B.     The Paycheck Protection Program

      59.    The Paycheck Protection Program (“PPP”) is the United States

Government business loan program established in 2020 through the Coronavirus

Aid, Relief, and Economic Security Act (“CARES Act”) to help certain businesses,

self-employed workers, sole proprietors, certain nonprofit organizations, veterans’

organizations, and tribal businesses to continue paying their workers. The program

is implemented by the U.S. Small Business Administration (“SBA”).




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       60.     The PPP allowed qualified entities to apply for low-interest private

loans to pay for their payroll and certain other operating costs. Under the PPP, the

allowable amount of a PPP loan was calculated based on the borrowing entity’s

average monthly payroll costs multiplied by 2.5. 1

       61.     In some situations, an applicant might receive a second loan typically

equal to the first. 2

       62.     The PPP loan had to be used to cover payroll costs, rent, interest, and

utilities.

       63.     The loan may be partially or fully forgiven if the business keeps its

employee counts and employee wages stable.

       64.     The deadline for entities to apply for a PPP loan was initially June 30,

2020, which was later extended to August 8, 2020.




1
 See How to Calculate Maximum Loan Amounts – by Business Type, U.S. Small
Business Administration, (Jun. 26, 2020)
https://www.sba.gov/sites/default/files/2020-06/How-to-Calculate-Loan-Amounts-
508_1.pdf (last visited September 7, 2022).
2
 See Second Draw PPP Loan, U.S. Small Business Administration,
https://www.sba.gov/funding-programs/loans/covid-19-relief-options/paycheck-
protection-program/second-draw-ppp-loan (last visited Dec. 13, 2021).
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      65.    The PPP was reopened on January 11, 2021. The Program ended on

May 31, 2021. 3

      66.    The PPP was added under Section 1102 of the CARES Act by

amending Section 7(a) of the Small Business Act, 15 U.S.C. § 636(a) et seq.,

which temporarily permitted the SBA to guarantee 100 percent of the PPP loans.

      67.    Section 1106 of the CARES Act, which also amended Section 7(a),

further provides for forgiveness of up to the full principal amount of qualifying

loans guaranteed under the PPP.

      68.    Section 1102 of the CARES Act defines an eligible recipient of a PPP

loan as follows:

      (D) INCREASED ELIGIBILITY FOR CERTAIN SMALL
      BUSINESSES AND ORGANIZATIONS.— (i) IN GENERAL.—
      During the covered period, in addition to small business concerns, any
      business concern, nonprofit organization, veterans organization, or
      Tribal business concern described in section 31(b)(2)(C) shall be
      eligible to receive a covered loan if the business concern, nonprofit
      organization, veterans organization, or Tribal business concern
      employs not more than the greater of — (I) 500 employees; or (II) if
      applicable, the size standard in number of employees established by
      the Administration for the industry in which the business concern,
      nonprofit organization, veterans organization, or Tribal business
      concern operates.

15 U.S.C. § 636(a)(36) (D).



3 See Paycheck Protection Program, U.S. SMALL BUSINESS
ADMINISTRATION, https://www.sba.gov/funding-programs/loans/covid-19-
relief-options/paycheck-protection-program (last visited Dec. 9, 2021).

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              i.     Affiliation Rules

      69.      The PPP loan program was designed and intended to benefit small

businesses.

      70.      For the purposes of first round PPP loans, the relevant statutes and

regulations defined small businesses as those entities with 500 or fewer employees.

      71.      For second round loans, the employee limit was lowered to 300.

      72.      SBA’s existing affiliation rules apply to the PPP loan program’s

definition of small businesses. In other words, all employees of the entities under

the same ownership or control “count” towards the 500 or 300-employee limit.

      73.      13 C.F.R. 121.106 (a) sets out how the SBA calculates the number of

employees, in pertinent part, as follows:

      (a) In determining a concern’s number of employees, SBA counts all
      individuals employed on a full-time, parttime, or other basis. This
      includes employees obtained from a temporary employee agency,
      professional employer organization or leasing concern. SBA will
      consider the totality of the circumstances, including criteria used by
      the IRS for Federal income tax purposes, in determining whether
      individuals are employees of a concern.

      74.      The SBA repeatedly clarified that the affiliation rules at 13 C.F.R. §

121.301(f) applied to PPP loans and that for the purposes of counting employees,

all foreign and domestic affiliated employees must be counted. For example, the

SBA’s March 12, 2021, FAQs included question 44 on this topic:

      44. Question: How do SBA’s affiliation rules at 13 C.F.R. 121.301(f)
      apply with regard to counting the employees of foreign and U.S.
      affiliates?
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      Answer: For purposes of the PPP’s 500 or fewer employee size
      standard (or 300 employee size standard for Second Draw PPP Loans
      and certain entities for First Draw PPP Loans), an applicant must
      count all of its employees and the employees of its U.S and foreign
      affiliates, absent a waiver of or an exception to the affiliation rules. 13
      C.F.R. 121.301(f)(6). Business concerns seeking to qualify for a First
      Draw PPP Loan as a “small business concern” under section 3 of the
      Small Business Act (15 U.S.C. 632) on the basis of the employee-
      based size standard must do the same.

Exhibit 1, March 12, 2021 SBA FAQs (emphasis added).

      75.    The applicable affiliation rules appear at 13 C.F.R. § 121.301.

      Concerns and entities are affiliates of each other when one controls or
      has the power to control the other, or a third party or parties
      controls or has the power to control both. It does not matter
      whether control is exercised, so long as the power to control exists.
13 C.F.R. § 121.301(f) (emphasis added).

      For determining affiliation based on equity ownership, a concern is an
      affiliate of an individual, concern, or entity that owns or has the power
      to control more than 50 percent of the concern's voting equity.
13 C.F.R. § 121.301(f)(1).

      76.    The affiliation rules presented a special problem for certain industries

which typically organize themselves as several nominally individual businesses

owned or controlled by a single entity.

      77.    To address this reality, Congress provided statutory carveouts for

certain parts of the hospitality industry and some franchise businesses. See 15

U.S.C. § 636(A)(36)(D)(iv).

      78.    Importantly, Congress and the SBA took the exact opposite approach

with the private equity industry and global conglomerates generally.
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      79.    Indeed, private equity companies themselves were explicitly excluded

from the PPP program. See Exhibit 2, 85 Fed. Reg. 23450 at 23451(2.)(a.) (April

28, 2020).

      2. Clarification Regarding Eligible Businesses
      a. Is a hedge fund or private equity firm eligible for a PPP loan?

             No. Hedge funds and private equity firms are primarily engaged
      in investment or speculation, and such businesses are therefore
      ineligible to receive a PPP loan. The Administrator, in consultation
      with the Secretary, does not believe that Congress intended for these
      types of businesses, which are generally ineligible for section 7(a)
      loans under existing SBA regulations, to obtain PPP financing.
Exhibit 2, 85 Fed. Reg. 23450 at 23451(2.)(a.) (April 28, 2020).

      80.    Private equity owned operating companies were permitted to access

PPP funds only if they could meet both the employee limits under the affiliation

rule and specifically certified that “[c]urrent economic uncertainty makes this loan

request necessary to support the ongoing operations of the Applicant.” Exhibit 1,

March 12, 2021, SBA PPP FAQs at #31.

      81.    As the SBA repeatedly explained, companies owned by larger entities,

including private equity companies, had to take special care to ensure that no other

sources of liquidity were available before they consumed scarce PPP funds.

      b. Do the SBA affiliation rules prohibit a portfolio company of a
      private equity fund from being eligible for a PPP loan?

            Borrowers must apply the affiliation rules that appear in 13
      CFR 121.301(f), as set forth in the Second PPP Interim Final Rule (85
      FR 20817). The affiliation rules apply to private equity-owned
      businesses in the same manner as any other business subject to
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      outside ownership or control. However, in addition to applying any
      applicable affiliation rules, all borrowers should carefully review the
      required certification on the Paycheck Protection Program Borrower
      Application Form (SBA Form 2483) stating that ‘‘[c]urrent
      economic uncertainty makes this loan request necessary to
      support the ongoing operations of the Applicant.’’
Exhibit 2, 85 Fed. Reg. 23450 at 23451(2.)(a.) (April 28, 2020) (emphasis added).

      82.   The SBA specifically clarified that employees associated with foreign

affiliates must be included when calculating total number of employees.

      1. Treatment of Foreign Affiliates
            Are employees of foreign affiliates included for purposes of
      determining whether a PPP borrower has more than 500 employees?
             Yes. The CARES Act specifies that an entity is eligible for a
      PPP loan only if it is (1) a small business concern, or (2) a business
      concern, nonprofit organization described in section 501(c)(3) of the
      Internal Revenue Code, veterans organization described in section
      501(c)(19) of the Internal Revenue Code, or Tribal business concern
      described in section 31(b)(2)(C) of the Small Business Act that
      employs not more than the greater of 500 employees, or, if applicable,
      SBA’s employee-based size standard for the industry in which the
      entity operates. SBA’s affiliation regulations provide that to determine
      a concern’s size, employees of the concern ‘‘and all of its domestic
      and foreign affiliates’’ are included. 13 CFR 121.301(f). Therefore,
      to calculate the number of employees of an entity for purposes of
      determining eligibility for the PPP, an entity must include all
      employees of its domestic and foreign affiliates, except in those
      limited circumstances where the affiliation rules expressly do not
      apply to the entity. Any entity that, together with its domestic and
      foreign affiliates, does not meet the 500-employee or other
      applicable PPP size standard is therefore ineligible for a PPP
      loan.

Exhibit 3, 85 Fed. Reg. 30835 at 30837 (May 21, 2020) (emphasis added).



                                           17
Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.21 Filed 09/21/22 Page 21 of 44



      83.    Defendants applied for their first round of PPP funds on or after May

5, 2020.

      84.    The Defendants did not get the benefit of the government’s

enforcement discretion applicable to borrowers who applied for a PPP loan prior to

May 5, 2020.

      85.    The SBA often specifically warned potential borrowers that civil and

criminal liability could attach. See e.g., 85 Fed. Reg. 20811 at 20814 (April 15,

2020).

      86.    As described below, Monofrax fails both the affiliation and financial

need tests as the sine qua non for eligibility for a PPP loan. 4

II.   Violations of the False Claims Act

      87.    Defendants violated the False Claims Act by submitting materially

false applications and supporting materials in connection with their two

applications for PPP loans and their two applications for PPP loan forgiveness.

      A.     PPP Loan Applications

      88.    Monofrax made successful applications for First and Second Round

PPP loans.



4 The exceptions referenced at 13 C.F.R. § 121.301(f)(7) and 13 C.F.R. §
121.103(b) do not apply. For example, neither Callista nor Saint-Gobain appear on
the list of Small Business Investment Companies, and neither is owned or
controlled by an Indian Tribe.

                                           18
Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.22 Filed 09/21/22 Page 22 of 44



      89.    Both loans were submitted to and processed by Crestmark Bank.

        i.   First PPP Loan Application
      90.    Defendants’ first loan application was signed on May 5, 2020, and

submitted thereafter. Exhibit 4, First Round Application.

      91.    It was signed by Defendant Andrews on behalf of Monofrax LLC. Id.

      92.    PPP loan applications solicit various bits of information from the

applicant including the number of employees and the identity of any owners.

      93.    Defendants listed Monofrax Holding GmbH as the 100% owner of

Monofrax and listed 158 employees. Id.

      94.    The applications also include 8 questions that require “yes” or “no”

checkbox answers. Question 3 reads:

      Is the Applicant or any owner of the Applicant an owner of any other
      business, or have common management with, any other business? If
      yes, list all such businesses and describe the relationship on a separate
      sheet identified as addendum A.
      95.    Defendants marked “yes” in response to this question but did not

submit any explanation or any Exhibit A. Id.

      96.    Defendants failed to disclose that Callista owned Monofrax and failed

to disclose that Monofrax was affiliated with entities employing well over 1,000

employees.

      97.    These omissions alone make the certifications in the application false.



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Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.23 Filed 09/21/22 Page 23 of 44



       98.      Monofrax made each of the below additional certifications and each

was false when made.

             • The Applicant is eligible to receive a loan under the rules in
               effect at the time this application is submitted that have been
               issued by the Small Business Administration (SBA)
               implementing the Paycheck Protection Program under
               Division A, Title I of the Coronavirus Aid, Relief, and
               Economic Security Act (CARES Act) (the Paycheck
               Protection Program Rule).

             • The Applicant (1) is an independent contractor, eligible self-
               employed individual, or sole proprietor or (2) employs no
               more than the greater of 500 or employees or, if applicable,
               the size standard in number of employees established by the
               SBA in 13 C.F.R. 121.201 for the Applicant’s industry.

             • Current economic uncertainty makes this loan request
               necessary to support the ongoing operations of the
               Applicant.

             • I further certify that the information provided in this
               application and the information provided in all supporting
               documents and forms is true and accurate in all material
               respects.

Id. at 2.
       99.      Defendants’ Borrower Certificate included as part of the loan

application packet included the below additional express certifications which were

also false when made.

             • Borrower is not obtaining this account on behalf of a non-
               United States citizen or legal permanent resident.

             • All information and certifications in Borrower’s application
               for the Loan, including, without limitation, all information
               set forth in Borrower’s Paycheck Protection Program

                                            20
Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.24 Filed 09/21/22 Page 24 of 44



                Borrower Application Form (SBA Form 2483) completed
                and executed by Borrower in connection with the Loan,
                remain true and correct in all respects, and the Borrower
                has not withheld any material information.

             • The Borrower is eligible for the Loan under all applicable
               laws, regulations and rules, including without limitation
               applicable size, affiliation and other eligibility
               requirements under 15 U.S.C. § 636(a), 13 C.F.R. § 120.100
               et seq., 13 C.F.R. § 121.101 et seq., SBA SOP 50 10 5(K),
               the Coronavirus Aid, Relief, and Economic Security Act of
               2020 (“CARES Act”), and rules or other guidance issued by
               the SBA.
Id. at 17 (emphasis added).
       100. As part of the Disbursement Direction, Request and Authorization

form which formed a part of the application packet, Defendants again affirmed that

the above certifications were true by making the below affirmation.

       Borrower affirms that the representations and warranties contained in
       the Loan Documents are true, accurate and complete as of the date
       hereof.
Id. at 28.

       101. Nowhere did Defendants indicate to Crestmark or the government that

Monofrax was actually owned by Callista and that through Callista and the

applicable affiliation rules, Monofrax did not have 158 employees but had well

over 1,000 employees.

       102. For its part, after Saint-Gobain acquired Monofrax, it did not correct

any of the above false claims or otherwise take any steps to remedy the false

claims or return any of the unlawfully obtained government funds.

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Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.25 Filed 09/21/22 Page 25 of 44



       103. These affirmative and by omission false statements make the First

Round PPP loan application false under the FCA.

       104. Defendants obtained a First Round PPP loan in the amount of

$2,509,290.00.

           ii.       Second PPP Loan Application
       105. Defendants’ second loan application dated January 26, 2021 was also

signed by Mr. Andrews, listed only Monofrax Holding GmbH as an owner, and did

not include any Exhibit A or other explanation or disclosure of Monfrax’s many

affiliated employees. Exhibit 5, Second PPP Loan Application.

       106. The phrasing for Question 3 of the SBA’s FAQs was changed slightly

to read:

       Is the Applicant or any owner of the Applicant an owner of any other
       business, or have common management (including a management
       agreement) with any other business? If yes, list all such businesses
       (including their TINs if available) and describe the relationship on a
       separate sheet identified as addendum A.
Id. (changes in italics).

       107. Despite the expansion of the inquiry, Defendants checked “no” in

response to Question 3 on the second application. Id.

       108. Defendants falsely reported that Monofrax had only 130 employees

when, according to the applicable laws, rules, and regulations then in force, should

have reported it had well over 1,000 employees.



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Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.26 Filed 09/21/22 Page 26 of 44



      109. On the face of the application, Defendants made several false

certifications including by certifying each of the below statements were true when

they were not:

         • The Applicant is eligible to receive a loan under the rules in
           effect at the time this application is submitted that have been
           issued by the Small Business Administration (SBA) and the
           Department of the Treasury (Treasury) implementing
           Second Draw Paycheck Protection Program Loans under
           Division A, Title I of the Coronavirus Aid, Relief, and
           Economic Security Act (CARES Act) and the Economic Aid
           to Hard-Hit Small Businesses, Nonprofits, and Venues Act
           (the Paycheck Protection Program Rules).

         • The Applicant, together with its affiliates (if applicable),
           (1) is an independent contractor, self-employed individual,
           or sole proprietor with no employees; (2) employs no more
           than 300 employees; or (3) if NAICS 72, employs no more
           than 300 employees per physical location; (4) if a news
           organization that is majority owned or controlled by a
           NAICS code 511110 or 5151 business or a nonprofit public
           broadcasting entity with a trade or business under NAICS
           code 511110 or 5151, employs no more than 300 employees
           per location.

         • Current economic uncertainty makes this loan request
           necessary to support the ongoing operations of the
           Applicant.
Id. at 2 (emphasis added).

      110. For its part, Crestmark reported under Part E General Eligibility,

Defendants had made the below certification to the bank.

      The Applicant has certified to the Lender that the Applicant, together
      with its affiliates (if applicable), (1) is an independent contractor,
      self-employed individual, or sole proprietor with no employees; (2)
      employs no more than 300 employees; (3) if NAICS 72, employs no
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Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.27 Filed 09/21/22 Page 27 of 44



         more than 300 employees per physical location; or (4) if a news
         organization that is majority owned or controlled by a NAICS code
         511110 or 5151 business or a nonprofit public broadcasting entity
         with a trade or business under NAICS code 511110 or 5151, employs
         no more than 300 employees per location.
Id. at 8 (emphasis added).

         111. Defendants’ certification to the bank was false.

         112. Crestmark made a similar report of apparent compliance at Part F

Applicant Certification of Eligibility, that “[t]he Applicant has certified to the

Lender that the Applicant is eligible under the Paycheck Protection Program

Rules.” Id.

         113. As above, Defendants’ underlying certification to Crestmark was

false.

         114. As part of the “Loan Agreement” Defendants represented and

certified to Crestmark:

         Each of the answers provided and certifications made by Borrower in
         the application submitted under the Act to the SBA in connection with
         the Loan (“Application”) is true, accurate and complete, and
         Borrower will comply with all such certifications.

                                           and

         Borrower is eligible to receive the Loan under the rules and
         regulations that have been issued by the SBA relating to the PPP.
         Borrower shall comply with all rules, regulations and requirements of
         the PPP and the SBA in existence at the time of the Loan and as are
         thereafter promulgated, including, but not limited to, those relating to
         affiliates.
Id. at 18-19 (emphasis added).

                                           24
Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.28 Filed 09/21/22 Page 28 of 44



      115. As with the first application, Defendants’ affirmative and by omission

false statements about its ownership structure and affiliations with over 1,000

employees makes the Second Round PPP loan application false under the FCA.

      116. Also as above, after Saint-Gobain acquired Monofrax, it did not

correct any of the above false claims or otherwise take any steps to remedy the

false claims or return any of the unlawfully obtained funds

      117. Defendants obtained a Second Round PPP loan in the amount of

$1,838,971.78.

      B.     Impermissible Affiliations

      118. Through application of the affiliation rules, and at all relevant times,

Monofrax did not qualify for any PPP Loans or forgiveness.

      119. The PPP was intended to benefit small American businesses, not

permit foreign private equity companies and conglomerates to siphon taxpayer

funded emergency relief funds out of the country.

      120. At the time the First and Second PPP loan applications were

submitted, approved, and funded, and when the first loan was forgiven, Monofrax

was owned by Callista.

      121. As detailed below, Callista owns or controls numerous businesses

including some truly large businesses.




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Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.29 Filed 09/21/22 Page 29 of 44



      122. In total, through Callista, Monofrax was affiliated with entities

employing well over 1,000 employees.

      123. This information was omitted from its application materials and false

and inaccurate information was submitted instead.

      124.    At the time the Second PPP loan was forgiven, Monofrax was owned

by Saint-Gobain, a gigantic international conglomerate.

      125. Had the government been aware of the true facts, that Monforax was

affiliated with so many employees, it would not have awarded any PPP loan

guarantees or forgiveness monies to Defendants.

        i.    Callista’s Affiliations
      126. Callista publishes press releases announcing the purchase and sale of

businesses.

      127. Tracking these self-reported transactions reveals the size and scope of

the web of affiliated companies under the Callista umbrella at the time Monofrax

submitted false PPP loan and forgiveness applications.

      128. Monofrax falsely reported 158 employees on its Round One

application and 130 on its Round Two application.




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Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.30 Filed 09/21/22 Page 30 of 44



      129. In addition, and at the same time, Callista owned at least 6 other

companies with over 1,500 employees.5

      130. Each of Callista’s portfolio companies are affiliated with each other

through Callista as the common owner.

      131. Callista itself boasts that “[w]e are actively involved in our portfolio

companies and support them with our many years of expertise in optimizing

corporate processes and structures.” See https://www.callista-pe.de/en/about-us last

visited August 26, 2022.

      132. This boasting rang true for Monofrax, Callista was actively involved

in the management and direction of Monofrax.




5Employees counts taken from Callista press releases announcing company
purchases:

    • 740 employees – ETM Engineering

    • 235 employees – Globus Gummiwerke

    • 200 employees – Mainsite Technologies

    • 190 employees – MWK Renningen

    • 90 employees – MelchersRaffel

    • 100 employees – PCH Metals
See Exhibit 6, Collection of Callista Press Releases.

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Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.31 Filed 09/21/22 Page 31 of 44



           ii.     Saint-Gobain’s Affiliations

      133. Saint-Gobain asserts it has over 166,000 employees across 76

countries – well beyond the number of employees permitted by the PPP. See

https://www.saint-gobain.com/en/group/who-are-we last visited August 23, 2022.

      134. In addition, for only the first half of 2022, Saint-Gobain claims to

have operating income of over €2.7 billion, recuring net income of over €1.8

billion, free cash flow of over €1.6 billion, and to have spent €431 million in share

buybacks. Exhibit 7, Saint-Gobain Half-Year Financial Report 2022 at 1.

      135. In fact, the very press release Saint-Gobain issued announcing the

purchase of Monofrax boasted similar figures including 166,000 employees across

75 countries and €44.2 billion in sales in 2021. See Exhibit 8, May 12, 2022, Saint-

Gobain Press Release at 2.

      136. Despite its great economic success and immense size, Saint-Gobain

obtained the benefit of $1,864,363.71 in government funds through the Second

PPP loan forgiveness to which it was not entitled.

      137. Additionally, Saint-Gobain is the final beneficiary of the First PPP

loan and forgiveness obtained by Monofrax – an additional $2,543,595.09.

      C.     Lack of Need for Funds

      138. Callista acquired 8 additional companies between January 2020 and

November 2021.


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Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.32 Filed 09/21/22 Page 32 of 44



      139. Callista’s own press releases reported sales or revenue figures for five

of these companies which total to nearly €150 million. See Exhibit 9, Collection of

Pandemic Acquisition Press Releases.

      140. Any company completing this many acquisitions during the pandemic

could not have truthfully certified that “[c]urrent economic uncertainty makes [a

PPP] loan request necessary to support the ongoing operations of the Applicant”.

      141. During the period of time when PPP funds were sought and obtained,

Callista was continuing to suck cash out of Monofrax for its own benefit. See

Exhibit 10, List of Payments to Callista.

      142. Ultimately, Callista used its illegally obtained government monies to

bolster the Monofrax balance sheet in advance of selling the business.

      143. There was no fire sale of Monofrax.

      144. While Saint-Gobain ultimately purchased Monofrax in April 2022,

another corporation had been actively negotiating to purchase Monofrax at the

same time.

        i.   Payments “Up” to Callista

      145. During Callista’s term of ownership, it required Monofrax to pay to it

roughly $50,000 per month as a “management fee”.

      146. In some months this payment by Monofrax to Callista was as large as

$100,000 and in some months Monofrax also had to spend thousands of dollars to


                                            29
Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.33 Filed 09/21/22 Page 33 of 44



fund the travel and housing for various visiting Callista staff. See Exhibit 10, List

of Payments to Callista. 6

      147. Starting in July 2019, Crestmark, then the bank providing Monofrax a

revolving line of credit, imposed a Free Cash Flow Covenant which prohibited the

payment of management fees to Callista if the trailing 12-month financial records

showed less than $10,000 in free cash flow.

      148. During the pandemic, Monofrax failed the free cash flow covenant

test more often than it passed but still made 6 payments to Callista in 2020 and

2021 totaling $259,191.72.

      D.     Forgiveness Applications

      149. Defendants sought and obtained forgiveness for both PPP loans

thereby costing the government at least $4,407,959.80.

           ii.      First Forgiveness Application
      150. On September 9, 2021, Defendant Andrews signed a First Round PPP

Loan Forgiveness Application. See Exhibit 11, First Loan Forgiveness Application.

      151. That application was granted, and the loan was paid off seven days

later. See Exhibit 12, Notice of Paycheck Protection Program Forgiveness Payment

(indicating First PPP Loan Forgiveness Payment Date of September 16, 2021).


6
 Callista also caused Monofrax to pay for various IT conversion and supervision
services to Premium IT Services a company wholly owned by Callista. Some or all
of these services were either unnecessary or above fair market value.

                                          30
Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.34 Filed 09/21/22 Page 34 of 44



        152. Through the forgiveness process, Defendants extracted from the

government a total of $2,509,290.00 in principal and $34,305.09 in interest.

           iii.     Second Forgiveness Application

        153. Defendant Andrews signed a Second Round PPP Loan Forgiveness

Application which was submitted by Defendants in or around May 2022.

        154. This application was also granted, and the loan was paid off. See

Exhibit 13, Notice of Paycheck Protection Program Forgiveness Payment

(indicating Second PPP Loan Forgiveness Payment Date of June 15, 2022).

        155. In connection with their Second PPP loan and forgiveness application,

Defendants were able to extract from the government a total of $1,838,971.78 in

principal and $25,392.93 in interest.

        156. As between the two loans, the government paid a total of

$4,407,959.80 because of Defendants’ violations of the FCA.

III.    Defendants’ Role(s) in the False Claims

        157. Each of Defendants is liable for the false claims at issue here as each

took steps to facilitate them and/or refused to take necessary action to ameliorate

them.

        158. In addition, each benefitted from the submission of false claims.




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Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.35 Filed 09/21/22 Page 35 of 44



      A.      Monofrax LLC

      159. Monofrax LLC is the nominal applicant and signatory on each piece

of paper submitted to the government and/or Crestmark in support of both loan

applications and both forgiveness applications.

      160. Monofrax LLC received the loan disbursements, and the forgiveness

payments were made on its behalf.

      161. Monofrax continued paying monies to Callista after receiving PPP

loan funds.

      B.      Monofrax Holding GmbH

      162. Monofrax Holding GmbH is the German paper entity that owns 100%

of the units or equity of Monofrax LLC.

      163. As the 100% equity owner, Monofrax Holding controls and directs the

activities of Monofrax LLC, and benefits from the financial performance of

Monofrax LLC and the ill-gotten PPP monies at issue here.

      C.      Callista Private Equity GmbH

      164. Callista Private Equity owned and/or controlled Monofrax Holding

GmbH and through that paper entity owned and/or controlled Monofrax LLC at the

time both PPP loan applications were submitted, when the loans were disbursed, at

the time the first forgiveness application was submitted, and when the first

forgiveness funds were disbursed.


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Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.36 Filed 09/21/22 Page 36 of 44



      165. In addition, Callista caused Monofrax to pay to Callista substantial

sums of money both before and after the PPP loan and forgiveness applications

were made and granted.

      166.      Through regular meetings, including in-person meetings, and

performance monitoring, Callista directed and controlled the management and

performance of Monofrax LLC.

      167. Callista could have directed a portion of its capital reserves or other

access to liquidity to reduce or eliminate Monofrax’s need for PPP loan funds but

chose not to.

      168. Callista reaped the benefit of the false PPP applications and

disbursements at issue here through direct savings, payments from Monofrax to

Callista, and by increasing the sale price paid by Saint-Gobain.

      D.        Saint-Gobain

      169. Saint-Gobain obtained Monofrax LLC and Monofrax Holding GmbH

from Callista after the balance sheet had been improved by the disbursement of

two rounds of PPP loans, the forgiveness of the first round, and submission of the

second forgiveness application.

      170. Saint-Gobain owned Monofrax when the second forgiveness

payments were made on behalf of Monofrax.




                                          33
Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.37 Filed 09/21/22 Page 37 of 44



      171. At no time did Saint-Gobain seek to return any PPP monies, or the

monies paid by the government in connection with either forgiveness application.

      172. Instead, through its purchase, Saint-Gobain facilitated Callista’s final

conversion of PPP monies.

      E.     William Andrews

      173. Defendant Andrews personally signed each PPP loan and forgiveness

application at issue here.

      174. In addition to presiding over the balance sheet improvements

occasioned by fraudulent access to the PPP program, Defendant Andrews directed

continued payments “up” to Callista despite violations of the Free Cash Flow

Covenant imposed by Crestmark.

      175. Defendant Andrews also personally benefited as his commission

increased commensurate with the increased sale price paid by Saint-Gobain which

priced in the PPP loan funds.




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Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.38 Filed 09/21/22 Page 38 of 44



                             CAUSES OF ACTION

                                   COUNT I
   Violations of the False Claims Act: Presenting or Causing a False Claim
                           (31 U.S.C. § 3729(a)(1)(A))
                                (All Defendants)

      176. The foregoing allegations are repeated and realleged as if fully set

forth herein.

      177. The False Claims Act, 31 U.S.C. § 3729(a)(1)(A), imposes liability

upon those who knowingly present or cause to be presented false claims for

payment or approval.

      178. Defendants knowingly and willfully violated the False Claims Act by

presenting, or causing to be presented, false claims for payment or approval.

      179. Specifically, and as alleged in more detail above, Defendants

presented, or caused to be presented, materially false applications for PPP loan

funds and then for forgiveness of those loans.

      180. Defendants repeatedly certified compliance with applicable PPP laws,

rules, and regulations despite not being compliant.

      181. Defendants similarly repeatedly certified the existence of facts which

were not true.

      182. All Defendants knew or should have known (as defined in 31 U.S.C. §

3801(a)(5)) that the facts and certifications to which they attested were not true and



                                         35
Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.39 Filed 09/21/22 Page 39 of 44



that they made, presented, or submitted, or caused to be made, false or fraudulent

claims for payment to the government.

      183. Each of the applications submitted or caused to be submitted by the

Defendants is a separate false and fraudulent claim.

      184. The Defendants presented or caused to be presented these claims

knowing their falsity, or in deliberate ignorance or reckless disregard that such

claims were false.

      185. The United States was unaware of the foregoing circumstances and

conduct of the Defendants and, in reliance on said false and fraudulent claims,

authorized payments to be made to or on behalf of the Defendants, made such

payments, and has been damaged.

      186. Because of these false or fraudulent claims submitted or caused to be

submitted by Defendants, the United States has been damaged in an amount to be

determined at trial.




                                         36
Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.40 Filed 09/21/22 Page 40 of 44



                                  COUNT II
 Violations of the False Claims Act: Making, Using, or Causing to be Used a
                          False Record or Statement
                          (31 U.S.C. § 3729(a)(1)(B))
                               (All Defendants)
      187. The foregoing allegations are repeated and realleged as if fully set

forth herein.

      188. The False Claims Act, 31 U.S.C. § 3729(a)(1)(B), imposes liability

upon those who knowingly make, use, or cause to be made or used, false records or

statements material to a false or fraudulent claim.

      189. Defendants knowingly and willfully violated the False Claims Act by

making, using, or causing to be made or used, false records or statements material

to false or fraudulent claims.

      190. Specifically, for purposes of obtaining or aiding to obtain PPP loans

and then forgiveness of those loans, Defendants made or presented, or caused to be

made or presented, to the United States false or fraudulent applications and/or

records, knowing these materials to be false or fraudulent, or acting with reckless

disregard or deliberate ignorance thereof.

      191. Each application submitted to the Government in support of

Defendants' above-described false claims is a separate false record or statement

and separate violation of 31 U.S.C. § 3729(a)(1)(B).

      192. The United States was unaware of the foregoing circumstances and

conduct of the Defendants and, in reliance on said false and fraudulent applications
                                        37
Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.41 Filed 09/21/22 Page 41 of 44



and/or records, authorized payments to be made to or on behalf of the Defendants,

made such payments, and has been damaged.

      193. Because of these false or fraudulent statements submitted or caused to

be submitted by Defendants, the United States paid the claims, resulting in

damages to the United States in an amount to be determined at trial.

                                 COUNT III
Violations of the False Claims Act: Conspiring to Violate the False Claims Act
                          (31 U.S.C. § 3729(a)(1)(C))
                               (All Defendants)
      194. The foregoing allegations are repeated and realleged as if fully set

forth herein.

      195. The False Claims Act, 31 U.S.C. § 3729(a)(1)(C), imposes liability

upon those who conspire to commit a violation of another sub-section of the False

Claims Act.

      196. Defendants knowingly, in reckless disregard, and/or in deliberate

ignorance of the truth conspired between themselves, with their employees and

administrators, and others, to violate the False Claims Act.

      197. Defendants conspired to submit false and fraudulent claims related to

their applications for PPP loans and then forgiveness of those loans.

      198. Defendants did in fact submit false and fraudulent claims.

      199. As a consequence of their conspiracies, the United States paid these

claims when it would not have but for Defendants' unlawful conduct.

                                         38
Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.42 Filed 09/21/22 Page 42 of 44



        200. As a result of this conspiracy, and the resulting false or fraudulent

claims submitted or caused to be submitted by Defendants, the United States paid

the claims, resulting in damages to the United States in an amount to be determined

at trial.

                                 COUNT IV
Violations of the False Claims Act: Conspiring to Violate the False Claims Act
                          (31 U.S.C. § 3729(a)(1)(G))
                               (All Defendants)
        201. The foregoing allegations are repeated and realleged as if fully set

forth herein.

        202. The False Claims Act, 31 U.S.C. § 3729(a)(1)(G), imposes liability

upon those who knowingly make, use, or cause to be made or used, false records or

statements material to an obligation to pay or transmit money or property to the

Government, or conceals or knowingly and improperly avoids or decreases an

obligation to pay or transmit money or property to the Government.

        203. Upon receipt of improperly obtained PPP loan and forgiveness funds,

Defendants had an obligation to repay and refund to the Government the amounts

paid by the government.

        204. Defendants knowingly and willfully violated the False Claims Act by

failing to so repay or refund the monies it received.

        205. Each improperly obtained set of loan or forgiveness funds received by

or on behalf of Defendants generates a separate obligation to repay or refund those

                                          39
Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.43 Filed 09/21/22 Page 43 of 44



ill-gotten monies and Defendants’ failure to do so is a separate violation of 31

U.S.C. § 3729(a)(1)(G).

      206. The United States was unaware of the foregoing circumstances and

conduct of Defendants.

      207. Had the government been aware of Defendants’ knowing false

certifications and knowing failure to return overpayments it would have taken steps

to recover them.

      208. The United States has been damaged as a result in an amount to be

determined at trial.

                             PRAYER FOR RELIEF



      WHEREFORE, Relator, on behalf of himself as well as the United

States requests the following relief:

          a. A judgment against Defendants, jointly and severally, in an amount
             equal to all damages due to the Government, including treble
             damages, under the FCA;

          b. A judgment against Defendants, jointly and severally, for all civil
             penalties due to the Government for each of Defendants’ violations of
             the FCA;

          c. That Relator recover from Defendants, jointly and severally, all costs
             of this action, with interest, including the cost to the Government for
             its expenses related to this action;
          d. That Relator be awarded all reasonable attorneys’ fees in bringing this
             action;

                                         40
Case 5:22-cv-12221-JEL-KGA ECF No. 1, PageID.44 Filed 09/21/22 Page 44 of 44



          e. That Relator be awarded the maximum amount of the proceeds of this
             action as allowed under 31 U.S.C. § 3730, and/or any other applicable
             provision of law;

          f. An award of pre- and post-judgment interest; and

          g. Such other and further relief to Relator and/or the United States of
             America as this Court may deem just and proper.

                       REQUEST FOR TRIAL BY JURY

      Under Rule 38 of the Federal Rules of Civil Procedure, Relator hereby

requests a trial by jury.



                            BY:        /s/Patricia Stamler
                                       Patricia Stamler
                                       Hertz Schram PC
                                       1760 S. telegraph Rd
                                       STE 300
                                       Bloomfield, Hills, PA 48302
                                       Telephone: (248) 335-5000
                                       Email:       pstamler@hertzschram.com

                                       Local Counsel for Plaintiff Relator

                                       /s/ Darth M. Newman
                                       Darth M. Newman
                                       Law Offices of Darth M. Newman LLC
                                       1140 Thorn Run Rd, # 601
                                       Coraopolis, PA 15108
                                       Telephone: 412-436-3443
                                       Email:       darth@dnewmanlaw.com

                                       Lead Counsel for Plaintiff Relator




                                         41


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