Motion for Summary Judgment — Creation Entertainment, Inc. v. Small Business Administration (Dkt. 67, D.D.C.)
Summary
The defendants' motion for summary judgment and supporting memorandum in Creation Entertainment, Inc. v. Small Business Administration, et al., Civil Action No. 22-0684 (ABJ), in the U.S. District Court for the District of Columbia, filed May 27, 2026 as Document 67. The SBA and its Administrator cross-move for summary judgment and oppose the plaintiff's motion (ECF No. 63). The memorandum states Creation applied on April 28, 2021 for $6,233,685.84 as a live venue operator or promoter, and that the SBA denied the application for the fourth time on December 18, 2025. It argues the application showed Creation's principal business activity was hosting fan conventions built on question-and-answer, autograph and photograph sessions with actors rather than actual performances. It also argues nothing in the OIG report demonstrates that the SBA departed from its internal guidance and precedent.
Summary drafted by a model from the text of the original file linked on this page and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
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Case 1:22-cv-00684-ABJ Document 67 Filed 05/27/26 Page 1 of 22
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CREATION ENTERTAINMENT, Inc.,
Plaintiff,
v.
Civil Action No. 22-0684 (ABJ)
SMALL BUSINESS ADMINISTRATION, et
al.,
Defendants.
MOTION FOR SUMMARY JUDGMENT AND
MEMORANDUM IN SUPPORT THEREOF
Case 1:22-cv-00684-ABJ Document 67 Filed 05/27/26 Page 2 of 22
TABLE OF CONTENTS
Table of Contents ........................................................................................................................ i
Background .................................................................................................................................1
I. The Shuttered Venue Operations Grant Program. .................................................1
II. Creation’s Application for Grant Funding. ...........................................................3
Legal Standards...........................................................................................................................4
Argument ....................................................................................................................................5
I. SBA Appropriately Applied the SVOG Statute and its Published Guidance in
Determining Plaintiff’s Principal Business Activity. .............................................5
II. SBA Properly Concluded that Live Artistic Performances were not Creation’s
Principal Business Activity. .................................................................................9
III. SBA Did Not Depart from Its Internal Guidance and Precedent.......................... 18
Conclusion ................................................................................................................................ 20
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Defendants the Small Business Administration, and its Administrator Kelly Leoffler
(collectively “SBA”) respectfully submit this memorandum in support of their cross motion for
summary judgment and in opposition to Plaintiff Creation Entertainment’s Motion for Summary
Judgment (ECF No. 63).
Creation brings claims against the SBA under the Administrative Procedure Act stemming
from SBA’s decision to deny Creation’s application for a grant award under the Shuttered Venue
Operations Grant (“SVOG”) program. SBA denied Creation’s application for an award because
Creation applied for a grant as a live venue operator and promoter but the materials that Creation
submitted did not demonstrate that Creation met the statutory criteria to qualify for an award.
Specifically, to qualify for an award as a live venue operator or promoter, Creation needed to show
that its principal business activity was to organize, promote, produce, manage, or host live
concerts, comedy shows, theatrical productions, or other events by performing artists. 15 U.S.C.
§ 9009a(a)(3)(i)(II). But Creation’s application instead showed that its principal business activity
was hosting fan conventions that involved audience interactions with actors through question-and-
answer, autograph, and photograph sessions rather than actual performances. As demonstrated
below, the Court should grant summary judgment in SBA’s favor because SBA evaluated
Creation’s application in accordance with the SVOG statute and related guidance and reached a
decision supported by the administrative record. Accordingly, the record does not support
Creation’s claim that SBA’s decision was arbitrary, capricious, or not in accordance with the law
in violation of the Administrative Procedure Act. 5 U.S.C. §706(2)(a).
BACKGROUND
I. The Shuttered Venue Operations Grant Program.
The COVID-19 public health emergency forced many, if not most, businesses in the in-
person entertainment industry to cease their operations for extended periods of time. See 166
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Cong. Rec. S7901 (Dec. 21, 2020) (Sen. Cornyn) (“Event venues were the first to close when
COVID-19 hit, and they are likely to be the last to open once it is gone.”). To “help [these
businesses] stay afloat” until they could resume their normal operations, id., Congress established
the Shuttered Venue Operators Grant Program (“SVOG” or the “Program”). See Economic Aid
to Hard-Hit Small Business, Nonprofits, and Venues Act, § 324, 134 Stat. 1182, 2022 (2020) (Div.
N, Tit. III, Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, codified at 15 U.S.C. §
9009a).
Under the Program, an eligible entity could apply for grants of up to $10 million upon
certifying “that the uncertainty of current economic conditions ma[de] necessary the grant to
support [its] ongoing operations.” 15 U.S.C. § 9009a(b)(1)(B), (c)(1)(A)(ii), (c)(3). To establish
eligibility for a grant, an entity must have had “gross earned revenue during the first, second, third,
or, only with respect to an application submitted on or after January 1, 2021, fourth quarter in 2020
that demonstrates not less than a 25 percent reduction from [its] gross earned revenue . . . during
the same quarter in 2019.” Id. § 9009a(a)(1)(A)(i)(II). An entity also needed to demonstrate that
it fell within one of six enumerated categories. Id. § 9009a(a)(1)(A). Creation claimed it was
eligible as a live venue operator or promoter. AR 0002. The statute defined a “live venue operator
or promoter,” as an individual or entity “that, as a principal business activity, organizes, promotes,
produces, manages, or hosts live concerts, comedy shows, theatrical productions, or other events
by performing artists,” and pays its performers “in an amount that is based on a percentage of
sales, a guarantee (in writing or standard contract), or another mutually beneficial formal
agreement,” and meets certain other criteria not relevant here. 15 U.S.C. § 9009a(a)(1)(A),
(a)(3)(A)(i)(I).
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II. Creation’s Application for Grant Funding.
On April 28, 2021, Creation applied for a SVOG grant award of $6,233,685.84. AR 0001-
02. Creation claimed it was eligible for a grant as a live venue operator or promoter. AR 0002.
SBA denied Creation’s application on July 2, 2021 and Creation subsequently appealed. AR 0001.
On October 29, 2021, SBA denied Creation’s appeal finding that Creation did not meet the
principal business activity standard to qualify as a live venue operator or promoter, and did not
meet one or more of the eligibility criteria to qualify as a live venue operator or promoter. AR
0022. On March 12, 2022, Creation filed suit challenging the SBA’s decision. Compl. (ECF No.
1). Two months later, SBA rescinded the decision denying Creation’s appeal and agreed to issue
a new decision based on its review of the administrative record. AR 0021. But even after
reviewing Creation’s application a third time, on July 7, 2022, SBA determined that its prior
decision was correct and Creation was not eligible for an award. AR 1043-46. Based on the
materials that Creation had submitted, SBA determined that Creation’s principal business activity
is to “organize, plan, create and promote science cosplay conventions,” not live performing arts
events. AR 1044. Creation had also stated in its application that its performers were not paid, but
the Shuttered Venue Statute requires an entity to pay its performers to qualify as a live venue
operator or promoter. AR 1045 (citing 15 U.S.C. § 9009a(a)(3)(A)(i)(I)(bb)). As SBA explained
in its denial letter,
Given that there is inadequate evidence of demonstrated qualifying live performing
arts at Applicant’s conventions, and no payments to performers, the Applicant has
failed in its application or appeal to demonstrate that its principal business activity
is the presentation of qualifying live performances, it is not a live venue operator
or promoter within the meaning of the SVOG statute.
AR 1046.
On August 19, 2022, Creation filed an amended complaint challenging SBA’s July 7, 2022
decision. 1st Am. Compl. (ECF No. 14). Creation then filed a motion to complete the
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administrative record (ECF No. 20) which the Court granted in part and denied in part. Order
(ECF No. 47). Specifically, the Court ordered SBA to include a letter and declaration from Edward
Rodriguez, Creation’s Chief Financial Officer, id. at 6 (ECF No. 47), AR 1142-1244, and a set of
applications submitted to the SVOG Program by comparator companies. Order at 8 (ECF No. 47);
AR 1246-2158. On July 8, 2025, SBA agreed to rescind the denial and reconsider Creation’s
application in light of the materials that the Court had ordered added to the administrative record
and the decision in Phil Waldrep Evangelistic Ass’n v. SBA, Civ. A. No. 22-0513 (APM), 2025
U.S. Dist. LEXIS 61016 (D.D.C. Mar. 31, 2025). See Jt. Status Rpt. (ECF No. 55).
SBA denied Creation’s application for the fourth time on December 18, 2025 finding that
its prior decision was correct. AR 2167. Specifically, the additional information that Creation
provided did not demonstrate that “Creation’s principal business activity is the presentation of live
performance arts events.” AR 2171. Instead, “the very limited advertising materials provided fail
to show that live performing arts events are the principal attraction of the events, rather than fan
interaction activities.” Id.
LEGAL STANDARDS
Summary judgment is warranted when “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In cases
challenging agency action under the APA, the district court “sits as an appellate tribunal,” and
review “is based on the agency record and limited to determining whether the agency acted
arbitrarily or capriciously.” Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009) (quotation
marks omitted). A reviewing court may set aside agency action that is “arbitrary, capricious, an
abuse of discretion,” “otherwise not in accordance with law,” or “unsupported by substantial
evidence.” 5 U.S.C. § 706(2)(A), (E). Substantial evidence is that which “a reasonable mind might
accept as adequate to support the [agency’s] conclusion.” Mach Mining, LLC v. Sec’y of Labor,
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809 F.3d 1259, 1263 (D.C. Cir. 2016). This “requires more than a scintilla, but can be satisfied by
something less than a preponderance of the evidence.” Epsilon Elecs., Inc. v. Dep’t of Treasury,
857 F.3d 913, 918, 925 (D.C. Cir. 2017) (cleaned up). “Under this highly deferential standard of
review, the court presumes the validity of agency action and must affirm unless the [agency] failed
to consider relevant factors or made a clear error in judgment.” Nat’l Lifeline Ass’n v. FCC, 983
F.3d 498, 507 (D.C. Cir. 2020) (cleaned up). So long as an agency “articulate[s] a satisfactory
explanation for its action including a rational connection between the facts found and the choice
made,” Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
(quotation marks omitted), a court may not “substitute [its] judgment for the agency’s,” even if it
“might have reached a different conclusion in the first instance.” Epsilon Elecs., 857 F.3d at 918.
ARGUMENT
SBA denied Creation’s application after determining Creation’s principal business activity
was not the operation or promotion of live performing arts shows pursuant to 15 U.S.C. §
9009a(a)(3)(A)(i)(I). SBA’s decision to deny Creation SVOG funding is well-supported by the
administrative record, not arbitrary or capricious, and not contrary to law. SBA acknowledged
that some of Creation’s events included live artistic performances but the administrative record
demonstrated that Creation’s principal business activity is to organize, plan, create, and promote
official fan conventions relating to sci-fi, fantasy, and horror television series and films. AR 2171.
I. SBA Appropriately Applied the SVOG Statute and its Published Guidance in
Determining Plaintiff’s Principal Business Activity.
In appealing SBA’s denial of its grant application, Creation claimed it was eligible for
program funds as a “live venue operator or promoter” because it is a “live operator of Science
Fictions conventions” and “as well as a promoter of sci‐fi shows related to our licenses with various
television and movie studios.” AR 0525. Creation did not assert any other basis for eligibility,
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id., so its eligibility hinges on whether its principal business activity is indeed live performing arts.
See Mingo Logan Coal Co. v. EPA, 829 F.3d 710, 720 (D.C. Cir. 2016) (“as a general rule, claims
not presented to an agency may not be made for the first time to a reviewing court.” (cleaned up)).
SBA’s decision was not arbitrary and capricious because SBA evaluated Creation’s
application consistent with the statute and its guidance implementing the program. Under the
SVOG statute, an applicant qualifies as a live venue operator or promoter if “as a principal
business activity, [it] organizes, promotes, produces, manages, or hosts live concerts, comedy
shows, theatrical productions, or other events by performing artists.” 15 U.S.C.
§ 9009a(a)(3)(A)(i)(I) (emphasis added). Absent from this list are types of events that involve
large gatherings but not live artistic performances such as wedding venues, sporting events,
restaurants, and air shows. AR 1056-57. For entities whose broader business operations include
hosting live performing arts events but were involved in other operations as well, SBA explained
in its SVOG Frequently Asked Questions (or “FAQs”) that these entities must show that their
principal business activity is presenting live performing arts events to qualify as a live venue
operator or promoter. AR 1054-58.
SBA correctly determined that events like the fan conventions that Creation hosts are not
like “live concerts, comedy shows, theatrical productions, or other events by performing artists[,]”
that the statute requires an entity to host to qualify as a live venue operator or promoter. 15 U.S.C.
§ 9009a(a)(3)(A)(i)(I). Even though the statute includes the catch-all phrase “other events by
performing artists,” that catch-all phrase could not be construed to include fan conventions where
the primary feature is interactions with actors through question-and-answer, autograph, and
photograph sessions. AR 2171. “[W]here, as here, a more general term follows more specific
terms in a list, the general term is usually understood to ‘embrace only objects similar in nature to
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those objects enumerated by the preceding specific words.’” Circuit City Stores, Inc. v. Adams,
532 U.S. 105, 115 (2001); see also, United States v. Jicarilla Apache Nation, 564 U.S. 162, 185
(2011) (“When Congress provides specific statutory obligations, we will not read a ‘catchall’
provision to impose general obligations that would include those specifically enumerated.”).
Concerts, comedy shows, and theatrical performances all involve actors or musicians performing
their craft. Creation’s events are different in kind because they involve actors and other performing
artists interacting with their fans rather than acting or playing music. AR 2171. Accordingly,
consistent with the statute, SBA explained that performing arts events are “musical concerts,
comedy shows, theatrical productions, dance performances, or other live renderings of similarly
artistic works.” AR 1056. A fan convention would not qualify.
Also, in its SVOG Frequently Asked Questions, SBA defines an entity’s principal business
activity as “the one in which it has the greatest combined amount of revenues, expenses, employees
and work hours, assets, contracts, and other business activity as compared to all its other lines of
business. The SBA may also consider other factors, such as the distribution of patents, contract
awards, and assets, as appropriate.” AR 1056. In other words, the determination is not made
solely based on an entity’s revenue stream or other quantitative measurements. Instead SBA can
make qualitative assessments about the entity’s activities. Id. Entities that offer attractions such
as agricultural fairs, pleasure cruises, or in this case conventions, would only qualify as a live
venue operator or promoter if the entity can demonstrate that “the principal business activity is
presenting live performing arts events that also include other secondary activities.” AR 1091.
SBA’s guidance reflects the “body of experience and informed judgment” that SBA has
accumulated in administering the SVOG Program, to which courts “may properly resort for
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guidance” and give “considerable weight.” United States v. Mead Corp., 533 U.S. 218, 227 (2001)
(cleaned up).
SBA determined that Creation was not eligible for a grant award because Creation did not
demonstrate that its “principal business activity” was organizing, promoting, producing,
managing, or hosting live performing arts events. AR 2168-69. Instead, Creation’s principal
business activity involved hosting and promoting “’official fan conventions’ relating to sci-fi,
fantasy, and horror television series and films.” Id.
Creation focuses on the portions of the statute that require an applicant to “derive 70
percent of its revenue from live events” and “make[] [tickets] available for purchase by the public
an average of not less than 60 days before the date of the event,” 15 U.S.C. § 9009a(a)(3)(A)(II),
(ii), and argues that these are the two objective pathways to eligibility. Pl. Mot at 16. But Creation
ignores threshold requirements specified earlier in the statute.
The statute specifies that
The term “live venue operator or promoter, theatrical producer, or live performing
arts organization operator”—
(A) means—
(i) an individual or entity—
(I) that, as a principal business activity, organizes, promotes, produces,
manages, or hosts live concerts, comedy shows, theatrical productions, or other
events by performing artists for which—
(aa) a cover charge through ticketing or front door entrance fee is applied;
and
(bb) performers are paid in an amount that is based on a percentage of sales,
a guarantee (in writing or standard contract), or another mutually beneficial
formal agreement; and
(II) for which not less than 70 percent of the earned revenue of the individual or
entity is generated through, to the extent related to a live event described in
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subclause (I), cover charges or ticket sales, production fees or production
reimbursements, nonprofit educational initiatives, or the sale of event
beverages, food, or merchandise; or
(ii) an individual or entity that, as a principal business activity, makes available for
purchase by the public an average of not less than 60 days before the date of the
event tickets to events—
15 U.S.C. § 9009a(a)(3).
Per the statute, the percentage of revenue that an entity derives from live events, and the
number of days before an entity makes tickets available does not become relevant until the entity
has established that it “organizes, promotes, produces, manages, or hosts live concerts, comedy
shows, theatrical productions, or other events by performing artists” as its “principal business
activity.” 15 U.S.C. § 9009a(a)(3)(A)(i)(I). Creation did not qualify for an award because it did
not demonstrate that it met the threshold criteria of hosting live performing arts events as its
principal business activity. AR 2168-69. Accordingly, Creation’s argument that it qualifies for
an award because it meets the objective criteria regarding revenue and ticket sales is incorrect.
II. SBA Properly Concluded that Live Artistic Performances were not Creation’s
Principal Business Activity.
SBA’s decision to deny Creation an SVOG award is supported by the administrative
record. Under the APA, the agency’s role is to resolve factual issues and arrive at a decision that
is supported by the administrative record, and the Court is responsible for determining “whether
or not as a matter of law the evidence in the administrative record permitted the agency to make
the decision it did.” Havens v. Mabus, 146 F. Supp. 3d 202, 214 (D.D.C. 2015) (quoting
Occidental Eng’g Co. v. INS, 753 F. 2d 766, 769-70 (9th Cir. 1985) (citing Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971)). In an APA case, “courts may only set
aside agency actions, including those of the [SBA], that are found to be ‘arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.’” United Steel Int’l Union v. Pension
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Ben. Guar. Corp., 839 F. Supp. 2d 232, 245 (D.D.C. 2012), aff’d, 707 F.3d 319 (D.C. Cir. 2013)
(quoting 5 U.S.C. § 706(2)(A); Sara Lee Corp. v. Am. Bakers Ass’n Ret. Plan, 512 F. Supp. 2d 32,
37 (D.D.C. 2007)). “In evaluating agency actions under this standard, courts must consider
‘whether the [agency’s] decision was based on a consideration of the relevant factors and whether
there has been a clear error of judgment.’” Id. (quoting Marsh v. Or. Nat. Res. Council, 490 U.S.
360, 378 (1989) (internal quotations and citation omitted); Citizens to Preserve Overton Park, 401
U.S. at 416; DIRECTV, Inc. v. FCC, 110 F.3d 816, 826 (D.C. Cir. 1997)).
To qualify as arbitrary and capricious, an agency typically must have “relied on factors
which Congress has not intended it to consider,” “entirely failed to consider an important aspect
of the problem,” “offered an explanation for its decision that runs counter to the evidence before
the agency,” or be “so implausible that it could not be ascribed to a difference in view or the
product of agency expertise.” Virginia v. Johnson, 609 F. Supp. 2d 1, 6-7 (D.D.C. 2009) (quoting
State Farm, 463 U.S. at 43 (internal quotation marks omitted)). Factual conclusions are reviewed
under the substantial evidence standard and may be overturned where they are “unsupported by
substantial evidence in a case.” 5 U.S.C. § 706(2)(E); Borgess Med. Ctr. v. Sebelius, 966 F. Supp.
2d 1, 5 (D.D.C. 2013)
Applying these principles, SBA determined that Creation’s “principal business activity”
was not organizing, promoting, producing, managing, or hosting live performing arts events
because the conventions that Creation hosts were not “musical concerts, comedy shows, theatrical
productions, dance performances, or other live renderings of similarly artistic works.” AR 1056;
2168-69. Instead, Creation’s primary business activity was to organize, plan, create, and promote
fan conventions. AR 2168-69. In making this finding, SBA relied on the documents that Creation
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submitted with its SVOG application, in addition to publicly available information regarding the
conventions that Creation hosted. AR 2168-69.
Creation’s initial application did not reflect that Creation had hosted any live performing
arts events. Instead, Creation submitted evidence that it had hosted a Star Trek convention, AR
0284, and submitted two screenshots from its website advertising a Supernatural fan convention.
AR 0509, 0518. None of these materials advertised live artistic performances such as concerts or
theatrical performances. AR 2169. SBA then allowed Creation to submit an administrative appeal
and accepted additional materials from Creation on appeal, giving Creation a second chance to
demonstrate that they qualified for an award. AR 0519. On appeal, Creation did not submit any
materials demonstrating that it hosted live performing arts events. AR 2169. Instead, Creation
submitted more materials demonstrating that it hosted fan conventions. This included a contract
for Creation to host a General Hospital convention, AR 0523-24, a contract for a Star Trek
convention, AR 0529, a document reflecting the cancelation of a Stranger Things convention, AR
0539, and a list of ticket holders to a Supernatural convention. AR 0540-623. In its statement
accompanying its appeal, Creation described itself as “both a live operator of science fictions
conventions, as well as a promoter of sci‐fi shows related to our licenses with various television
and movie studios.” AR 0525.
After Creation filed this lawsuit, SBA again reviewed Creation’s application and website
and again found ample evidence that Creation was hosting Sci Fi fan conventions but little
evidence that Creation was hosting live performing arts events. AR 2169. The website included
information about a Supernatural fan convention featuring appearances by the show’s cast
members and opportunities for photographs with, and autographs from, the cast members as well
as meditation sessions, show screenings, and makeup tutorials. Id.
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Creation argues SBA’s decision ignored that the “fan interactions” at these conventions
occur before seated audiences with live music and a host. Pl. Mot. at 19. In support of this
argument, Creation cites its reconsideration letter from Eduardo Rodreguez, Creation’s Chief
Financial Officer. AR 1145-46. But SBA considered this letter and attachments and determined
that they were not persuasive in demonstrating that Creation’s principal business activity was live
artistic performances. AR 2170. Rodreguez submitted “performer contracts” but none of the
contracts were signed by Creation or the contracted individual. AR 1180-1224. Moreover, most
of the materials that Rodreguez submitted demonstrate that live performances are not the primary
feature of the events that Creation hosts. For example, Rodriguez submitted a “program of events”
for a Supernatural fan convention that Creation was set to host in Denver, Colorado. AR 1171.
But this schedule consists of photo-ops, meet and greets, autographs. AR 1171-74. Absent from
this schedule are any performances. Id.
Although Creation’s contract with actor Beverely Elliott includes a requirement that Elliott
perform 4-5 songs in a Saturday night concert, this concert is not the primary purpose of the event.
AR 1180. Elliott must appear for a 60-90 minute question-and-answer session, sign 600
autographs and appear in 300 fan photos. Id. This is similar to Creation’s contract with
Supernatural actor Brianna Buckmaster. AR 1184-85. Although, under the contract, Buckmaster
must perform 1-2 songs as part of a Saturday night concert, Buckmaster’s primary activities are a
question-and-answer session, autograph sessions, photograph sessions, and meet and greets. AR
1185. The contract with Vampire Diaries actor Chase Coleman, does not include any
performances, only a question-and-answer session, autograph and photograph sessions, and a
private meet and greet. AR 1189.
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For an event that includes attractions other than live artistic performances to qualify as a
live performance operator or venue, the main event must be the live performance. AR 1091. As
SBA explained, “the primary contracted duty of virtually all of the individuals is to engage in Q
& A sessions and other fan interaction events.” AR 2171. “The Saturday concert appears to occur
over just a small amount of total time the events operate. No information is provided that would
allow SBA to conclude that the Saturday concert represents the principal expense or attraction of
the events.” Id.
Creation argues SBA ignored Creation’s revenue and expense structure. Pl. Mot. at 22.
Creation misses the point. SBA does not dispute that creation sells tickets to its events or that it
pays airline or lodging expenses for “performers” or that it pays venue or equipment costs.
Compare Pl. Mot at 21-22 with AR 2168-72. Instead, SBA found that the types of events that
Creation hosts are fan conventions that primarily feature interactions with actors rather than
performances. AR 2171. Regardless of its ticketing or revenue structure, Creation has not
established that its events qualify as live performing arts events. Id.
Creation next argues that the “physical configuration” of its events demonstrates that “its
principal business activity is the presentation of live performing arts.” Pl. Mot. at 22. But the
statute mentions nothing about the “physical configuration” of the venue where the event occurs,
only the type of event that is being put on, and that event must be a “live performing arts” event.
15 U.S.C. § 9009a(a)(3)(A)(i)(I). As an example, Creation identifies the Supernatural fan
convention that it hosted in Denver, which included events described as “general sessions” in a
ballroom with a theatre setup. AR 1143, 1171-74. But nothing in the materials demonstrates that
these “general sessions” are musical or theatrical performances rather than live question-and-
answer sessions. Id. To be sure the letter from Rodriguez states that during this convention, “[t]he
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actors will all perform during the show on stage.” AR 1143. But Creation submitted no
contemporaneous documents demonstrating that these actors were, in fact, performing, rather than
participating in question-and-answer sessions, which is the standard programming for similar
events that Creation hosts. AR 2170. SBA also reasonably discounted these representations as
inconsistent with Creation’s earlier representation that it is “both a live operator of science fictions
conventions, as well as a promoter of sci‐fi shows related to our licenses with various television
and movie studios.” AR 0525, 2170. A fan convention does not transform into a live performing
arts event simply because parts of the convention occur in a room set up like a theatre or concert
hall.
Creation further faults SBA for failing to adequately scrutinize Creation’s website. Pl.
Mot. at 24-25. But Creation fails to identify any information on the website that would serve as a
reason for SBA to find that Creation had satisfied the eligibility criteria to qualify as a live venue
operator or promoter. 15 U.S.C. § 9009a(a)(3). In reaching its decision, SBA noted that Creation’s
website boasts “a 50-year tradition of producing the world’s leading conventions for fans of genre
television and film.” AR 2169 (citing creationent.com (accessed Jun. 22, 2022)).
Creation goes on to highlight events that it hosted that SBA should have considered as live
performing arts events. Pl. Mot. at 26-27. For example, Creation includes a contract with the band
Louden Swain to appear at the Supernatural conventions. AR 1228. But the contract reveals that
Louden Swain is not the main attraction. AR 1229. Instead, Louden Swain is supposed to “perform
interstitial music segments in between and introducing each Q&A panel on stage.” Id. The song
selection is expected to be related to the “actors on stage.” Id. An interstitial performance is one
that is “occurring in or being an interval or intervening space or segment.” Interstitial, Merriam
Webster, https://www.merriam-webster.com/dictionary/interstitial (last visited May 24, 2026),
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thus demonstrating that Louden Swain’s performance is not a main event. Louden Swain frontman
Rob Benedict’s contract with Creation demonstrates that aside from his interstitial performances
with his band, Benedict’s role is more akin to that of a celebrity appearing at a fan convention.
AR 1237. The contract requires Benedict to host the event, appear on stage for a question-and-
answer session, and participate in photo-op, autograph, and meet and greet sessions. Id.
Musician Jensen Ackles’s appearance at a Creation-hosted event similarly does not support
Creation’s application. Contra, Pl. Mot. at 27. The contract between Creation and Ackles does
not require Ackles to perform any songs. AR 2193. Instead, the contract is similar to the contract
that Creation entered into with actors like Elliott, Buckmaster, and Coleman discussed above. Id.
Specifically, Ackles is required to appear for a question-and-answer session, sign autographs,
appear in photo-ops with fans. Id. Creation cites the Rodreguez Declaration which claims that
Ackles “meets the requirements of his engagement by playing an almost two-hour musical concert
with his band Radio Company. The musical concert generally takes place on Saturday night during
the supernatural gala.” AR 1159. But even if this statement is true, this is just one of many events
that Creation hosts and the Rodreguez declaration provides no information regarding how often
Creation hosts concerts with Ackles. Id. Just because Creation hosts an occasional concert does
not establish that hosting concerts is Creation’s principal business activity as opposed to an
ancillary activity. AR 1055. Moreover, Rodriguez’s attempt to explain away the lack of reference
to musical performances in the contract between Ackles and Creation is unpersuasive considering
that some of the other contracts require the guest to perform songs as a part of their appearances
which otherwise consist mostly of question-and-answer sessions, autograph signings, and photo-
ops. See e.g., AR 1180, 1184-85.
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If the Court is persuaded that the fan conventions that Creation hosts are live performing
arts events, then the same argument could be made regarding the most recent Republican and
Democratic National Conventions. Both conventions occurred in arenas, the Republican
Convention at the Fersev Forum in Milwaukee, Wisconsin,1 and the Democratic Convention at the
United Center in Chicago, Illinois.2 Both conventions featured interstitial musical performances
by artists such as Lee Greenwald and Kid Rock at the Republican Convention3 and Stevie Wonder
and Pink at the Democratic Convention.4 But even though these events featured some musical
performances and occurred in arenas with seating, no one would dispute that the principal business
activity of the Republican and Democratic National Committees is to win elections and that the
purpose of these conventions was to nominate candidates for President and Vice President of the
United States and promote their candidacies, not to feature live performing arts.
More broadly, SBA was justifiably skeptical of the materials, like the Rodreguez letter and
declaration, that Creation submitted during litigation. AR 2170. SBA explained that even though
it reviewed these materials, the materials represent “a unique effort by Creation to fix deficiencies
in its application during litigation—an opportunity not available to other applicants.” Id. The
Rodreguez letter includes collages of people singing and playing instruments on stage, rather than
1
RNC 2024 Master Event Calendar, https://prod-
media.gopconvention2024.com/media/documents/MKE24_-_Master_Calendar_v8.pdf (last
visited, May 24, 2026)
2
DNC 2024, Democratic National Convention, https://www.unitedcenter.com/dnc-2024/
(last visited, May 24, 2026)
3
Emma Grazado, Maddie Driggers, & Amy Nakamura, What’s playing at the RNC
convention? Here’s the unofficial playlist, Wash. Post (Jul. 18, 2024)
https://www.washingtonpost.com/politics/2024/07/18/rnc-music-playlist-republican-convention/
4
Kimi Robinson, Who’s performed at the DNC? Pink, Stevie Wonder, John Legend, more
hit the stage, USA Today (Aug. 21, 2024)
https://www.usatoday.com/story/entertainment/music/2024/08/21/democratic-national-
convention-2024-music-performers/74892920007/
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stand along materials promoting musical performances. AR 1144-46. The collages appear to have
been created specifically for Creation’s SVOG application. Id. Indeed, Creation only began
highlighting musical performances at its events after it received SBA’s July 7, 2022 decision where
SBA stated “[a] holistic review of the application, submitted documentation, applicant’s website
and social media pages indicates that the applicant’s principal business activity is to organize, plan,
create and promote science cosplay conventions.” AR 1044. This conclusion was reasonable
considering that Creation had previously described itself as “both a live operator of science fictions
conventions, as well as a promoter of sci‐fi shows related to our licenses with various television
and movie studios.” AR 0525.
Creation’s mid litigation attempt to reframe its business activities warrants even more
scrutiny considering that Creation had previously stated, under penalty of perjury, that it did not
pay its performers. AR 0012, 1045. If Creation did not pay its performers, that, standing alone,
would be reason enough to deny Creation’s application. 15 U.S.C. § 9009a(a)(3)(A)(i)(I)(bb).
Although Creation later submitted evidence that it did, in fact, pay the actors that appeared at its
conventions, Creation’s prior statement under penalty of perjury that it did not pay its performers
was an added reason to view the supplemental materials that Creation submitted for the first time
before SBA issued its fourth decision with skepticism. AR 2169. Further, as noted above, the
contracts that Creation submitted were not signed, which raises questions about whether the tasks
described in the contracts were performed. See Id. These discrepancies further support a
conclusion that SBA did not err in finding Creation had not provided sufficient documentation to
demonstrate that it hosted live performing arts events. See generally, Affum v. United States, 566
F.3d 1150, 1164 (D.C. Cir. 2009) (“agency need not accept a store owner’s [bare] claim”); Camara
v. Mastro’s Rests. LLC, 952 F.3d 372, 375 (D.C. Cir. 2020) (“conclusory allegations” in an
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affidavit are inadequate to raise a genuine issue of material fact); cf. Home Box Off., Inc. v. FCC,
567 F.2d 9, 36 n.58 (D.C. Cir. 1977) (“comments which themselves . . . do not disclose the factual
or policy basis on which they rest require no response. There must be some basis for thinking a
position taken in opposition to the agency is true.”); Nw. Immigrant Rts. Project v. U.S. Citizenship
& Immigr. Servs., 496 F. Supp. 3d 31, 75 (D.D.C. 2020) (“agencies need not accept uncritically
any evidence submitted”).
Importantly, in considering whether SBA correctly assessed Creation’s principal business
activity Courts “do not ask whether record evidence could support the petitioner’s view of the
issue, but whether it supports the [agency’s] ultimate decision.” Fla. Gas Transmission Co. v.
FERC, 604 F.3d 636, 645 (D.C. Cir. 2010). Indeed, “[i]t would defy that standard of review [under
State Farm] to invalidate [an agency’s] decision simply because there are alternate methods by
which to calculate [], even if those alternatives might ultimately produce a more accurate” result.
Baystate Franklin Med. Ctr. v. Azar, 950 F.3d 84, 89 (D.C. Cir. 2020). The agency’s decision is
presumed to be valid, and a court must not substitute its judgment for that of the agency. Havens,
146 F. Supp. 3d at 214 (citing Citizens to Preserve Overton Park, 401 U.S., 415; State Farm, 463
U.S. at 43).
III. SBA Did Not Depart from Its Internal Guidance and Precedent.
Finally, Creation argues that SBA’s decision violated its own guidance and precedent. Pl.
Mot at 30. Not so. As an initial matter, to advance this argument Creation relies on a report from
the SBA Office of Inspector General that is not part of the administrative record and argues that
the report constitutes SBA’s internal guidance. Id. Creation misunderstands the purpose of this
report and its relevance to this litigation because an Inspector General report is not “internal
guidance.” Inspectors General are established within agencies “to conduct and supervise audits
and investigations relating to the programs and operations.” 5 U.S.C. § 402(b)(1). The SBA
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Inspector General publishes reports, like the one that Creation cites, to keep the Administrator and
Congress informed of “fraud and other serious problems, abuses, and deficiencies relating to the
administration of [SBA] programs”, “to recommend corrective action concerning the problems,
abuses, and deficiencies, and to report on the progress made in implementing the corrective
action.” 5 U.S.C. § 404(a)(5). The report is not meant to serve as agency guidance, inform SVOG
applicants on how to prepare and submit their applications, or instruct SBA staff on how to review
SVOG applications. The Office of Inspector General is “an independent and objective oversight
office created within SBA by the Inspector General Act. Small Business Admin., About the Office
of Inspector General, https://www.sba.gov/about-sba/oversight-advocacy/office-inspector-
general/about-office-inspector-general (last visited May 25, 2026). The Inspector General is not
tasked with administering or promulgating rules or guidance for the SVOG program or any other
SBA program.
To be sure, SBA published guidance to SVOG applicants explaining how SBA would
evaluate applications. See AR 1047, 1087. Specifically, SBA published a list of answers to
“Frequently Asked Questions,” which “answers common questions about the SVOG program,
defines terms, and provides additional guidance.” AR 1087. SBA instructed applicants to “refer
to and carefully review the FAQs for guidance as you complete the SVOG application.” Id. Unlike
in the OIG report, nothing in the published guidance states that SBA would “presume applicant
assertions to be true” or view “data in the light most favorable to the applicant.” Compare AR
1047-1128 with OIG Report (ECF No. 63-2 at 14-15).
Creation purports to quote the OIG report claiming that the report reflects “that applicants
demonstrating live events ‘at any frequency’ were considered to satisfy the ‘primary business’
requirement.” Pl. Mot. at 30. Creation purports to quote the OIG report at pages 7-8 but no such
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Case 1:22-cv-00684-ABJ Document 67 Filed 05/27/26 Page 22 of 22
language is at page 7-8 or anywhere in the report. OIG Report (ECF No. 63-2 at 5-30). On the
contrary, the guidance specifies that for an entity to be eligible it must demonstrate that its principal
business activity is “live concerts, comedy shows, theatrical productions or other events by
performing artists.” AR 1095. For example, SBA explained that for an entity like a dinner theatre
to qualify, the dinner theatre must demonstrate that its principal line of business is live venue
operation rather than restaurant operation. Id.
Accordingly, nothing in the OIG report demonstrates that SBA departed from its internal
guidance and precedent.
CONCLUSION
For these reasons, the Court should grant SBA’s motion for summary judgment and deny
Creation’s cross motion for summary judgment.
Dated: May 27, 2026 Respectfully submitted,
JEANINE FERRIS PIRRO
United States Attorney
By: /s/ John J. Bardo
JOHN J. BARDO, D.C. Bar #1655534
Assistant United States Attorney
601 D Street, NW
Washington, DC 20530
(202) 870-6770
Attorneys for the United States of America
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