Complaint and Demand for Jury Trial — United States ex rel. Jared M. DePouw v. Anes Suhonjic et al. (Dkt. 1)

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Complaint and Demand for Jury Trial filed under seal June 25, 2021 as ECF No. 1 in United States of America ex rel. Jared M. DePouw v. Anes Suhonjic, Semsi Salja, and DMR Transportation, LLC, Case No. 1:21-cv-548 (1:21-cv-00548-JMB-SJB), in the U.S. District Court for the Western District of Michigan, Southern Division. The plaintiff-relator brings the complaint under the False Claims Act, 31 U.S.C. § 3729 et seq. He alleges that DMR applied for and received a second draw Paycheck Protection Program loan of $290,854.03 in February 2021 although its gross receipts were higher in all quarters in 2020 than in 2019, and that the two owners offered the relator $25,000.00 to falsify financial statements for the application. The complaint states that DMR received a total of $719,906.03 in PPP loans and demands a jury trial. The attorneys named are Tessa K. Muir and Mikayla S. Hamilton.

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Case 1:21-cv-00548-JMB-SJB ECF No.1, PagelD.1 Filed 06/25/21 Pag¢ iL gph. GR

June 25, 2021 3:06 PM
CLERK OF COURT
U.S. DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

UNITED STATES OF AMERICA FILED UNDER SEAL
ex rel. JARED M. DEPOUW, PURSUANT TO
31 U.S.C. § 3730(b)(2)
Plaintiff-Relator,
Case No. 1:21-cv-548
V. Hala Y. Jarbou - U.S. District Judge
Hon.
ANES SUHONJIC, SEMSI SALJA, AND
DMR TRANSPORTATION, LLC, JURY TRIAL
DEMANDED
Defendants.

COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff-Relator Jared M. DePouw (‘Relator’), for himself and on behalf of the United
States of America, by and through his attorneys Tessa K. Muir and Mikayla S. Hamilton of
Springstead Bartish Borgula & Lynch, PLLC, hereby files this Complaint under the False Claims
Act (“FCA”), 31 U.S.C. § 3729 et seq., and the False Claims Recovery Act of 2009 (“FERA”), 31
U.S.C. §§ 3729-3733, and states as follows.

INTRODUCTION

1. On March 27, 2020, Congress enacted the Coronavirus Aid, Relief, and Economic
Security Act (the “CARES Act’), Pub. L. No. 116-136, which in part provided emergency relief
to small businesses for employee retention and certain other expenses, through a program referred
to as the Paycheck Protection Plan (“PPP”). The CARES Act empowers the federal government’s
Small Business Administration (“SBA”) to make loans to eligible small business under the PPP to

keep workers paid and employed. See Small Business Act, 15 U.S.C. §§ 636(a)(36), ef seq.
Case 1:21-cv-00548-JMB-SJB ECF No.1, PagelD.2 Filed 06/25/21 Page 2 of 14

2. In order to obtain a PPP loan, a qualifying business must submit a PPP loan
application, which is signed by an authorized representative of the business.' The PPP loan
application requires the business (through its authorized representative) to acknowledge the
program rules and make certain affirmative certifications that the applicant “is eligible to receive
a loan” under the PPP, and that it will use loan proceeds “consistent with the Paycheck Protection
Program Rules.” In the PPP loan application, the small business (through its authorized
representative) must state, among other things, its: (a) average monthly payroll expenses; and (b)
number of employees. These figures are used to calculate the amount of money the small business
is eligible to receive under the PPP. In addition, businesses applying for a PPP loan must provide
documentation showing their payroll expenses.

3. A PPP loan application must be processed by a participating lender. If a PPP loan
application is approved, the participating lender funds the PPP loan using its own monies, which
are 100% guaranteed by the SBA. Data from the application — including information about the
borrower, the total amount of the loan, and the listed number of employees — is transmitted by
the lender to the SBA in the course of processing the loan

4. PPP loan proceeds must be used by the business on certain permissible expenses:
payroll costs, interest on mortgages, rent, and utilities. The PPP allows the interest and principal
on the PPP loan to be forgiven entirely if the business spends the loan proceeds on these expense
items within a designated period of time after receiving the proceeds and uses a certain amount of

the PPP loan proceeds on payroll expenses.

' PPP First Draw Borrower Application form available at https://www.sba.gov/document/sba-form-2483-
ppp-first-draw-borrower-application-form (last visited June 23, 2021).
Case 1:21-cv-00548-JMB-SJB ECF No.1, PagelD.3 Filed 06/25/21 Page 3 of 14

5. On December 27, 2020, the Consolidated Appropriations Act, 2021 (the “Act”),
H.R. 133, made additional funds available for loans under the PPP. The Act enables PPP borrowers
who exhausted their initial PPP loans to apply for a second loan, or a “second draw” (“PPPSD”).

6. The PPPSD loans generally operate on the same terms and conditions as PPP loans,
subject to some exceptions. PPPSD loans may only be made to PPP borrowers who: (a) have used
(prior to origination of the PPPSD loan) all proceeds of their PPP loan, (b) employ no more than
300 employees, and (c) demonstrate at least a 25% reduction in gross receipts in 2020 relative to
the same time period in 2019.

7. The PPPSD loan application has the same general requirements as the PPP loan
application, but it requires the small business (through its authorized representative) to certify,
among other things, that: (a) the small business received a PPP loan and, before the second PPPSD
loan is disbursed, will have used the full amount of the first PPP loan; (b) the “[c]urrent economic
uncertainty makes this loan request necessary to support the ongoing operations of the Applicant”;
and (c) the small business has “realized a reduction in gross receipts in excess of 25%” in 2020
relative to the same time period in 2019.”

8. Defendant DMR Transportation, LLC (“DMR”) is a trucking company located in
Grand Rapids, Michigan, with approximately 75 employees. In 2020, during the COVID-19
pandemic, DMR applied for and received a loan through the PPP. DMR was qualified to receive
the first PPP loan, which has now been forgiven.

9. In February 2021, DMR applied for and received a PPPSD loan in the amount of
$290,854.03. DMR was not eligible for this loan because the company did not meet the

requirement of having a 25% or more reduction in gross receipts between comparable quarters in

2 PPP Second Draw Borrower Application form available at https://www.sba.gov/document/sba-form-
2483-sd-ppp-second-draw-borrower-application-form (last visited June 23, 2021).
Case 1:21-cv-00548-JMB-SJB ECF No.1, PagelD.4 Filed 06/25/21 Page 4 of 14

2019 and 2020. In fact, DMR’s gross receipts were actually higher in all quarters in 2020 compared
to 2019.

10. In submitting the PPPSD loan application to the SBA, DMR, through its joint
owners, Defendants Anes Suhonjic and Semsi Salja (“Owners”) (collectively, with DMR,
“Defendants”), knowingly submitted a false claim and falsely certified that DMR was eligible to
receive the PPPSD loan.

11. Furthermore, in preparing its application for the PPPSD loan, DMR’s Owners both
offered Relator money to falsify financial statements for the application to ensure DMR qualified
for the loan, knowing that DMR did not qualify.

12. Relator brings this gui tam action on behalf of the United States under the FCA to
recover treble damages sustained by, and civil penalties and restitution owed to the United States
as a result of Defendant’s fraud.

13. This Complaint has been filed in camera and under seal pursuant to 31 U.S.C.
§ 3730(b)(2). It will not be served on Defendants unless and until the Court so orders. Relator has
provided to the Attorney General of the United States and to the United States Attorney for the
Western District of Michigan material evidence and information related to the Complaint pursuant
to 31 U.S.C. § 3730(b)(2) and Fed. R. Civ. P. 4(d).

14. Relator is the original source of the information supporting the allegations
contained in this Complaint and makes the allegations in this Complaint based on his own
knowledge, experience, and observations.

15. There has been no public disclosure, relevant under 31 U.S.C. § 3730(e), of the

“allegations or transactions” in this Complaint. Alternatively, to the extent that any such public
Case 1:21-cv-00548-JMB-SJB ECF No.1, PagelD.5 Filed 06/25/21 Page 5 of 14

disclosure has been made, Relator possesses information that is independent of and materially adds
to any allegations that may have been publicly disclosed.

JURISDICTION AND VENUE

16. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 because
this action is brought for violations of the False Claims Act, 31 U.S.C. § 3729 et seq. and the False
Claims Recovery Act of 2009, 31 U.S.C. §§ 3729-3733, both federal statutes.

17. Venue is proper in the Western District of Michigan pursuant to 28 U.S.C. § 1391
and 31 U.S.C. § 3732(a), because DMR is located in and transacts business in this District, and the
events and omissions that give rise to these claims occurred in this District.

18. | This Complaint is filed within the time period prescribed by 31 U.S.C. § 3731(b).

THE PARTIES

19. Relator brings this action on behalf of the United States. The United States, acting
through the SBA, has disbursed to DMR a total of $719,906.03 in PPP loans, including the
$290,854.03 PPPSD loan in February 2021 for which DMR submitted falsified financial
information in its application.

20. Relator is a citizen of the United States and resides in Wyoming, Michigan, located
in the Western District of Michigan. Relator has been employed by DMR since October 2015 as a
controller.

21. DMR isa Michigan Limited Liability Company with its principal place of business

at 5380 36th Street SE, Grand Rapids, Michigan 49512.7 DMR is a trucking company.

> An alternate address for the same location lists Kentwood as the city for Defendant DMR, with
all other information the same.
Case 1:21-cv-00548-JMB-SJB ECF No.1, PagelD.6 Filed 06/25/21 Page 6 of 14

22. Anes Suhonjic and Semsi Salja are the joint owners of DMR. Defendant Anes
Suhonjic resides in Byron Center, Michigan. Defendant Semsi Salja resides in Kentwood,
Michigan.

FACTUAL ALLEGATIONS

23. In his role as the controller for DMR, Relator manages the company’s finances,
including accounting, bookkeeping, payroll, payables, receivables, and loan applications.

24. In April 2020, Relator prepared DMR’s application for the first PPP loan. Relator
has no concerns regarding either DMR’s qualifications to receive the first PPP loan or the use of
the proceeds from that loan. This first PPP loan has now been forgiven.

25. Subsequently, in February 2021, both of DMR’s Owners, Anes Suhonjic and Semsi
Salja, came to Relator and asked him to prepare an application for DMR to receive a second PPP
loan (PPPSD). Relator informed both Owners that DMR would not qualify for a PPPSD loan
because DMR did not meet the requirement of having a 25% or more reduction in gross receipts
between comparable quarters in 2019 and 2020. DMR’s gross receipts were in fact higher for all
quarters in 2020 compared with 2019.

26. During that meeting, Anes Suhonjic told Relator that all the other trucking
companies in town were getting the second PPP loan.

27. The Owners, acting together in a joint conversation, offered Relator $25,000.00 in
exchange for applying for the PPPSD loan and told him not to tell anyone about either the falsified
application or the bribe money. Relator refused the money. The Owners then offered to fund
Relator’s 401K account with the $25,000.00, which Relator also refused.

28. Semsi Salja’s wife, Indira Salja, was also in the room when the Owners offered

Relator this money and when he refused.
Case 1:21-cv-00548-JMB-SJB ECF No.1, PagelD.7 Filed 06/25/21 Page 7 of 14

29. That day, Relator went home and told his girlfriend, Maia Sieplinga, about this
interaction and the Owners’ attempt to bribe him. Relator also later told his parents.

30. The Owners continued to insist that DMR apply for the PPPSD loan. Both Owners
demanded that Relator falsify financial statements to ensure DMR would qualify for the PPPSD
loan.

31. Out of fear of losing his job, Relator prepared the loan application documents for
the Owners’ signature, including falsified quarterly financials. The true and accurate numbers in
the financial spreadsheet were generated by a formula, whereas the false numbers were numbers
that Relator manually typed in to manipulate the gross revenue.

32. Relator told the Owners that the financial spreadsheets the Owners were signing for
the loan application were false and that DMR did not in fact have the required gross revenue losses
in 2020 to qualify.

33. The Microsoft Excel version of these spreadsheets is on the DMR server at the main
DMR office, located at 5380 36th Street, Grand Rapids, MI.

34. Both Owners signed every page of the application, including the falsified financials.
Both Owners knew the financial information was false and that, without the falsification, DMR
would not qualify for the PPPSD loan.

35. Relator submitted the signed documents to Horizon Bank, Grand Rapids branch,
through Horizon Bank’s online application portal.

36. Upon information and belief, Horizon Bank is insured by the Federal Deposit

Insurance Corporation (FDIC), as the bank’s website references FDIC insurance.*

* See Horizon Bank website, https://www.horizonbank.com/personal/save-invest/savings-money-market-
cds/certificate-of-deposits (last visited June 23, 2021);
https://www.horizonbank.com/business/bank/savings-money-market-cds (last visited June 23, 2021).
Case 1:21-cv-00548-JMB-SJB ECF No.1, PagelD.8 Filed 06/25/21 Page 8 of 14

37. Horizon Bank informed Relator that the initial financial information did not reflect
enough of a gross revenue loss to qualify for the PPPSD loan.

38. The initial version Relator submitted through the Horizon Bank portal showed a
loss of only approximately 23%, but the loan required a loss of 25% or more.

39. Under continued pressure from the Owners, Relator sent the bank “corrected”
financial statements via email, which included numbers that reflected an approximate 26% loss of
gross revenue. He used the email address(es) jared@dmrtransportation.com and/or
accounting@dmrtransportation.com to send the records.

40. Both Owners physically wet-signed every page of the initial financial statements
showing an artificial 23% loss, as well as the “corrected” version showing a 26% loss. The Owners
knew that both versions were false and urged Relator to submit them to Horizon Bank for the
PPPSD application.

41. Horizon Bank then preapproved DMR for a PPPSD loan in the amount of roughly
$290,000.00.

42. Owner Anes Suhonjic told Relator that “we should shop around” to other banks for
a higher loan amount. Mr. Suhonjic eventually backed down from this request after Relator
informed him that doing so would only increase the chances of the fraud being discovered.

43. On February 23, 2021, Horizon Bank delivered a cashier’s check to DMR for the
PPPSD loan in the amount of $290,854.03. The check was made out to DMR Transportation.

44. A month or so earlier, before applying for the PPPSD loan, DMR was working with
the same Horizon Bank location to apply for a truck loan. In support of that loan application,

Relator submitted DMR’s true and accurate 2020 financial statements. Horizon Bank was in
Case 1:21-cv-00548-JMB-SJB ECF No.1, PagelD.9 Filed 06/25/21 Page 9 of 14

possession of these statements, which did not match the financials submitted in support of the
PPPSD loan.

45. Relator does not know if anyone at Horizon Bank realized the discrepancy, but he
thought it might be caught in underwriting for the PPPSD loan. No one at Horizon Bank raised
suspicions.

46. On February 25, 2021, two days after Horizon Bank delivered the cashier’s check
to DMR, Relator hired undersigned counsel to help him figure out what to do. On March 4, 2021,
his attorney contacted the United States Attorney’s Office for the Western District of Michigan
(“U.S. Attorney’s Office”) to inform the office that Relator would like to report information
pertaining to PPP loan fraud.

47. In early March 2021, Relator asked the DMR Owners if they were going to deposit
the check for the second PPPSD loan, as he had not seen it deposited in any of the company bank
accounts. The Owners then asked Relator if he was going to tattle on them to the government, to
which he responded that he would not.

48. On March 17, 2021, Relator provided the above information to the U.S. Attorney’s
Office and two federal investigators during a video conference call under proffer protection.

49. Relator subsequently provided relevant emails, PPPSD application materials, and
financial statements to the U.S. Attorney’s Office, all of which he had in his possession prior to
the proffer interview and provided voluntarily.

50. The check for the PPPSD loan was held by owner Semsi Salja’s wife, Indira Salja,

and was eventually deposited into the DMR Huntington money market account on March 22, 2021.
Case 1:21-cv-00548-JMB-SJB ECF No.1, PagelD.10 Filed 06/25/21 Page 10 of 14

COUNT I: FALSE CLAIMS ACT — PRESENTATION OF FALSE CLAIMS
(Defendants DMR, Anes Suhonjic, and Semsi Salja)

51. Relator incorporates by reference all prior paragraphs of this Complaint as if fully
restated herein.

52. Defendants knowingly presented or caused to be presented false claims for payment
to the SBA, through Horizon Bank, when they submitted DMR’s fraudulent PPPSD loan
application.

53. Defendants falsely certified on these forms that DMR was eligible to receive the
PPPSD loan, which included the certification that it had at least a 25% reduction in gross receipts
in 2020 relative to the same quarters in 2019.

54. The submission of this false application caused the SBA to pay out monies, through
Horizon Bank, that it would not have paid if it had known the falsity of Defendants’ certifications.

55. The SBA and the banks administering PPP loans are grantees or other recipients of
money from the United States Government within the meaning of 31 U.S.C. § 3729(b)(2)(A)GD.
All such money is to be spent to advance the United States’ interest in effectuating the purposes
of the CARES Act.

56, Defendants’ knowing presentation of a false or fraudulent application to the SBA
and Horizon Bank was in violation of 31 U.S.C. § 3729(a)(1)(A).

57, Each presentation of a false or fraudulent claim to the SBA or Horizon Bank is a
separate violation of the FCA.

58. By reason of the false or fraudulent claims that Defendants knowingly presented,

the United States has been damaged in an amount to be proven at trial.

10
Case 1:21-cv-00548-JMB-SJB ECF No.1, PagelD.11 Filed 06/25/21 Page 11 of 14

COUNT Ul: FEDERAL FALSE CLAIMS ACT —- FALSE RECORD OR STATEMENT
(Defendants DMR, Anes Suhonjic, and Semsi Salja)

59. Relator incorporates by reference all prior paragraphs of this Complaint as if fully
restated herein.

60. Defendants knowingly made and used false financial records and statements when
they caused claims for payment to be submitted to the SBA, through Horizon Bank, on behalf of
Defendant DMR, including false statements that Defendant DMR was eligible to receive the
PPPSD loan and false financial records to establish eligibility for the PPPSD loan.

61. The making and use of these false financial records and statements caused the SBA
to pay out monies, through Horizon Bank, that it would not have paid if it had known of the falsity
of Defendants’ records and statements.

62. The SBA and the banks administering PPP loans are grantees or other recipients of
money from the United States Government within the meaning of 31 U.S.C. § 3729(b)(2)(A)(11).
All such money is to be spent to advance the United States’ interest in effectuating the purposes
of the CARES Act.

63. Defendants’ knowing making and use of false financial records or statements
material to false or fraudulent claims for payments submitted to the SBA and Horizon Bank
violated 31 U.S.C. § 3729(a)(1)(B).

64. Each making or use of a false record or statement to the SBA or Horizon Bank is a
separate violation of the FCA.

65. By reason of the false or fraudulent records or statements that Defendants’

knowingly made or used, the United States has been damaged in an amount to be proven at trial.

11
Case 1:21-cv-00548-JMB-SJB ECF No.1, PagelD.12 Filed 06/25/21 Page 12 of 14

COUNT II (IN THE ALTERNATIVE): FEDERAL FALSE CLAIMS ACT —
AVOIDING OBLIGATION

(Defendants DMR, Anes Suhonjic, and Semsi Salja)

66. Relator incorporates by reference all prior paragraphs of this Complaint as if fully
restated herein.

67. Relator asserts Count III in the alternative to Counts I and IL.

68. Defendants knowingly concealed or improperly avoided Defendant DMR’s
obligation to return PPPSD loans to the SBA or Horizon Bank after receiving PPPSD loan
proceeds for which Defendant DMR was ineligible.

69. Defendants knew DMR was ineligible for the PPPSD loan, and that, accordingly,
the PPPSD loan it received was an overpayment from the SBA.

70. The SBA and the banks administering PPP loans are grantees or other recipients of
money from the United States Government within the meaning of 31 U.S.C. § 3729(b)(2)(A)(ii).
All such money is to be spent to advance the United States’ interest in effectuating the purposes
of the CARES Act.

71. Defendants’ knowing concealment or avoidance of their obligations to repay the
SBA violated 31 U.S.C. § 3729(a)(1)(B).

72. Each instance thereof is a separate violation of the FCA.

73. By reason of Defendants’ concealment and avoidance of its obligations to repay the

SBA, the United States has been damaged in an amount to be proven at trial.

12
Case 1:21-cv-00548-JMB-SJB ECF No.1, PagelD.13 Filed 06/25/21 Page 13 of 14

PRAYER FOR RELIEF

WHEREFORE, Relator respectfully requests that this Court enter judgment in his favor,
and that of the United States, against Defendants DMR, Anes Suhonjic, and Semsi Salja granting
the following on all Counts:

(A) an award to the United States for treble its damages, a statutory penalty for each

violation of the FCA, and for its costs pursuant to 31 U.S.C. § 3729(a)(3);

(B) an award to Relator in the maximum amount permitted under 31 U.S.C. § 3730(d),

and for the reasonable attorney’s fees and costs he incurred prosecuting this action;

(C) awards to the United States and Relator for pre- and post-judgment interest at the

rates permitted by law; and

(D) an award of such other and further relief as this Court may deem to be just and

proper.

DEMAND FOR JURY TRIAL

Pursuant to Fed. R. Civ. P. 38(b), Relator demands trial by jury on all questions of fact

raised by the Complaint.

Dated: June 25, 2021 Respectfully Submitted,

/s/ Tessa Muir

Tessa K. Muir

Mikayla S. Hamilton

Springstead Bartish Borgula & Lynch, PLLC
60 Monroe Center, Suite 500

Grand Rapids, Michigan 49503

(616) 458-5500

tessa@sbbllaw.com

mikayla@sbbllaw.com

13
Case 1:21-cv-00548-JMB-SJB ECF No.1, PagelD.14 Filed 06/25/21 Page 14 of 14

CERTIFICATE OF SERVICE

I certify that this Complaint has been filed in camera and under seal pursuant to 31 U.S.C.
§ 3730(b)(2) and, as such, it will not be served on Defendants unless and until the Court so orders.
On June 24, 2021, Relator, through his attorneys, notified the United States Attorney’s Office for
the Western District of Michigan that the Complaint had been finalized and would be filed with
the Court under seal. The United States Attorney’s Office requested that the copy for the Attorney
General of the United States be sent by mail.

On June 25, 2021, a copy of the Complaint and Relator’s evidentiary disclosures was sent
by first class mail to the Attorney General of the United States and the United States Attorney for
the Western District of Michigan at the following addresses:

The Honorable Merrick Garland
Attorney General of the United States
United States Department of Justice
950 Pennsylvania Ave. N.W.
Washington, D.C. 20530-0001

U.S. Attorney Andrew Byerly Birge, Western District of Michigan
C/O AUSA Adam Townshend

330 Ionia Ave. N.W.

Suite 501

Grand Rapids, MI 49503

Additionally, undersigned counsel provided the same materials to the United States
Attorney’s Office for the Western District of Michigan via email to adam.townshend.usdoj.gov on
June 25, 2021.

Dated: June 25, 2021 /s/ Tessa Muir
Tessa K. Muir
Springstead Bartish Borgula & Lynch, PLLC
60 Monroe Center, Suite 500
Grand Rapids, Michigan 49503
(616) 458-5500
tessa@sbbllaw.com

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