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Settlement Agreement (PPP): United States, Daniel Markus, Inc., Margarita Risis and Bryan Quesenberry, Relator

Summary

A settlement agreement among the United States (acting through the Department of Justice on behalf of the United States Small Business Administration), Daniel Markus, Inc. (DMI), Margarita Risis, and Bryan Quesenberry as Relator. The recitals state that Quesenberry filed a qui tam action on September 12, 2020, in the United States District Court for the District of New Jersey, Case No. 20-cv-13070, alleging that DMI applied for and received two Paycheck Protection Program loans before December 31, 2020. The United States contends that DMI, by and through Risis, received loans of $242,849 and $268,300 after false statements in the applications. DMI and Risis, jointly and severally, agree to pay $50,000, and the United States is to pay the Relator $3,541.05. A form of Consent Judgment is attached.

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Cite this document

“Settlement Agreement (PPP): United States, Daniel Markus, Inc., Margarita Risis and Bryan Quesenberry, Relator.” Original at www.justice.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/settlement-agreement-united-states-and-daniel-markus-inc-ppp-d0b45ba4b1/, SHA-256 b1f089965a1f0b080a1d371453be8a9f9b1d73a5cb97894d7f32a230bb3da6d8.

Full text

                                SETTLEMENT AGREEMENT

       This Settlement Agreement (“Agreement”) is entered into among the United States of

America, acting through the United States Department of Justice and on behalf of the

United States Small Business Administration (collectively, the “United States”), Daniel Markus,

Inc. (“DMI”), Margarita Risis (“Risis”), and Bryan Quesenberry (“Quesenberry” or “Relator”)

(collectively referred to as “the Parties”) through their authorized representatives.

                                            RECITALS

       A.      DMI is a corporation organized under the laws of New Jersey and located at 869

Kearny Avenue, Kearny, NJ 07032. DMI operated multiple pawn shops in New Jersey. Risis is

DMI’s sole shareholder.

       B.      On September 12, 2020, Bryan Quesenberry, proceeding pro se, filed a qui tam

action in the United States District Court for the District of New Jersey captioned United States

ex rel. Quesenberry v. Artistic Tile, Inc., Case No. 20-cv-13070, pursuant to the qui tam

provisions of the False Claims Act, 31 U.S.C. § 3730(b) (the “Civil Action”). Relator alleges

that DMI unlawfully applied for and received two loans under the Paycheck Protection Program

(“PPP”) prior to December 31, 2020 and falsely certified, in the submitted applications for the

PPP loans, that it would receive only one PPP loan prior to December 31, 2020.

       C.      The PPP was established pursuant to the Coronavirus Aid, Relief, and Economic

Security (“CARES”) Act. The CARES Act, which was enacted in March 2020, was designed to

provide emergency financial assistance to millions of Americans suffering economic effects

caused by the COVID-19 pandemic. One source of relief provided by the CARES Act was the

authorization of forgivable loans to small businesses for employee payroll and certain other

expenses, through the PPP. To obtain a PPP loan, a qualifying business was required submit a

                                                  1
PPP loan application, which is signed by an authorized representative of the business. The loan

application requires the business—through its authorized representative—to acknowledge the

program rules and make certain affirmative certifications regarding its eligibility to obtain the

PPP loan. A PPP loan application must be processed by a participating lender, which receives a

processing fee from SBA. If a loan application is approved, the participating lender funds the

loan, which is 100% guaranteed by the SBA.

       D.      The United States contends that it has certain civil claims against DMI and Risis

for engaging in the following conduct, hereinafter referred to as the “Covered Conduct”:

               The United States contends that, in April 2020, DMI, by and through Risis,
               submitted an application for a PPP loan to “Lender 1,” a bank headquartered in
               Salt Lake City, Utah. In that application, DMI, by and through Risis, falsely stated
               that “[d]uring the period beginning on February 15, 2020 and ending on
               December 31, 2020, the Applicant has not and will not receive another loan under
               the [PPP]” (hereinafter, the “False Statement”). Subsequently, DMI, by and
               through Risis, entered into a promissory note by which Lender 1 agreed to lend
               $242,849 to DMI pursuant to the PPP (the “Lender 1 PPP Loan”), and DMI
               received the Lender 1 PPP Loan proceeds by electronic transfer.

               The United States further contends that, in April 2020, DMI, by and through
               Risis, submitted an application for a PPP loan to “Lender 2,” a bank
               headquartered in McLean, Virginia. In that application, DMI, by and through
               Risis, falsely stated that “[d]uring the period beginning on February 15, 2020 and
               ending on December 31, 2020, the Applicant has not and will not receive another
               loan under the [PPP].” Subsequently, DMI, by and through Risis, entered into a
               promissory note by which Lender 2 agreed to lend $268,300 to DMI pursuant to
               the PPP (the “Lender 2 PPP Loan”), and DMI received the Lender 2 PPP Loan
               funds by electronic transfer.

               The United States contends that, after receiving both the Lender 1 PPP Loan
               funds and the Lender 2 PPP Loan funds, DMI knowingly and improperly retained
               the funds obtained from both loans, contrary to the express certifications that DMI
               made, by and through Risis, that DMI would not receive more than one PPP loan
               prior to December 31, 2020.

       E.      The United States contends that it has certain civil claims against DMI and Risis

for violation the False Claims Act, 31 U.S.C. § 3729-3733 (“FCA”), and under the Financial

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Institutions Reform, Recovery and Enforcement Act of 1989, 12 U.S.C. § 1833a (“FIRREA”),

predicated on violations of 18 U.S.C. § 1014, 15 U.S.C. § 645(a), 18 U.S.C. § 1001, 18 U.S.C. §

1343, and 18 U.S.C. § 1344.

       F.      Relator claims entitlement to a share of the proceeds of this Settlement Agreement

under 31 U.S.C. § 3730(d).

       To avoid the delay, uncertainty, inconvenience, and expense of protracted litigation of the

above claims, and in consideration of the mutual promises and obligations of this Settlement

Agreement, the Parties agree and covenant as follows:

                                 TERMS AND CONDITIONS

       1.      DMI and Risis, jointly and severally, shall pay to the United States $50,000

(“Settlement Amount”) by electronic funds transfer pursuant to written instructions to be

provided by the United States Attorney’s Office for the District of New Jersey no later than 14

days after the date of this Agreement.

       2.      DMI agrees to refrain from requesting loan forgiveness from SBA for the Lender

1 PPP Loan and shall extinguish the SBA guarantee on the loan by repaying the Lender 1 Bank

PPP Loan in keeping with the terms of its promissory note, except that DMI shall fully repay the

loan no later than 12 months after the date of this Agreement.

       3.      In the event that DMI or Risis fail to complete the payments set forth in

Paragraphs 1 or 2 by the dates upon which they are due, DMI and Risis shall be in Default of

their payment obligations (“Default”). Upon Default, the United States will provide DMI and

Risis, through their legal counsel or other representative previously designated by DMI and

Risis, by electronic mail a written Notice of Default, and DMI and Risis shall have an

opportunity to cure such Default within three business days from the date the Notice of Default is

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sent by counsel for the United States. If DMI and Risis fail to cure the Default within three

business days from the date the Notice of Default is sent by the United States, the difference

between the amount paid by DMI and Risis under Paragraph 1 and $50,000 shall become

immediately due and payable, and interest on such amount shall accrue at the rate of 10 percent

per annum, compounded daily from the date of Default. In addition, the amount of any SBA

guarantee paid in connection with the Lender 1 PPP Loan shall be trebled and become

immediately due and payable to the United States, and interest on such amount shall accrue at

the rate of 10 percent per annum, compounded daily from the date the guarantee is paid by SBA.

       4.      Upon execution of this Settlement Agreement, DMI and Risis shall enter into a

Consent Judgment with the United States in the form attached as Attachment A. The

United States shall not file the Consent Judgment unless DMI and Risis are in uncured Default as

defined above. DMI and Risis agree not to contest any offset imposed and not to contest any

Consent Judgment and/or collection action undertaken by the United States pursuant to this

Paragraph, either administratively or in any state or federal court, except on the grounds of actual

payment to the United States. At its sole option, in the event of uncured Default as defined

above, the United States alternatively may rescind this Agreement as to DMI or Risis and bring

any civil and/or administrative claim, action, or proceeding against DMI or Risis for the claims

that would otherwise be covered by the releases provided herein. If the United States opts to

rescind this Agreement in the event of uncured Default as defined above, DMI or Risis agrees

not to plead, argue, or otherwise raise any defenses of statute of limitations, laches, estoppel or

similar theories, to any civil or administrative claims that are (a) filed by the United States

against DMI or Risis within 180 days of written notification to DMI and Risis that this

Agreement has been rescinded, and (b) relate to the Covered Conduct, except to the extent these

                                                  4
defenses were available on the particular date when the Civil Action referenced in Recital

Paragraph D was filed.

       5.      Conditioned upon the United States receiving the payment set forth in

Paragraph 1, the United States shall pay to Relator $3,541.05 by electronic funds transfer

(“Relator’s Share”). No other relator share payments shall be made under this Agreement.

       6.      Subject to the exceptions in Paragraph 8 (concerning reserved claims) below, and

upon the United States’ receipt of the Settlement Amount, the United States releases DMI and

Risis from any civil or administrative monetary claim the United States has for the Covered

Conduct under the False Claims Act, 31 U.S.C. §§ 3729-3733; the Program Fraud Civil

Remedies Act, 31 U.S.C. §§ 3801-3812; FIRREA, 12 U.S.C. § 1833a; or the common law

theories of payment by mistake, unjust enrichment, and fraud.

       7.      Subject to the exceptions in Paragraph 8 below, and upon the United States’

receipt of the Settlement Amount, Relator, for himself and for his heirs, successors, attorneys,

agents, and assigns, releases DMI and Risis from any civil monetary claim the Relator has on

behalf of the United States for the Covered Conduct under the False Claims Act, 31 U.S.C. §§

3729–3733.

       8.      Notwithstanding the releases given in Paragraph 6 of this Agreement, or any other

term of this Agreement, the following claims and rights of the United States are specifically

reserved and are not released:

               a.      Any liability arising under Title 26, U.S. Code (Internal Revenue Code);

               b.      Any criminal liability;




                                                 5
                c.     Except as explicitly stated in this Agreement, any administrative liability

                       or enforcement right, including the suspension and debarment rights of

                       any federal agency;

                d.     Any liability to the United States (or its agencies) for any conduct other

                       than the Covered Conduct;

                e.     Any liability based upon obligations created by this Agreement; and

                f.     Any liability of individuals, except Margarita Risis.

       9.       Relator and his heirs, successors, attorneys, agents, and assigns shall not object to

this Agreement but agree and confirm that this Agreement is fair, adequate, and reasonable under

all the circumstances, pursuant to 31 U.S.C. § 3730(c)(2)(B). Conditioned upon Relator’s receipt

of the Relator’s Share, Relator and his heirs, successors, attorneys, agents, and assigns fully and

finally release, waive, and forever discharge the United States, its agencies, officers, agents,

employees, and servants, from any claims arising from the filing of the Civil Action or under

31 U.S.C. § 3730, and from any claims to a share of the proceeds of this Agreement and/or the

Civil Action.

       10.      Relator, for himself, and for his heirs, successors, attorneys, agents, and assigns,

releases Risis and DMI, and its DMI’s officers, agents, and employees, from any liability to

Relator arising from the filing of the Civil Action, or under 31 U.S.C. § 3730(d) for expenses or

attorneys’ fees and costs.

       11.      DMI and Risis waive and shall not assert any defenses DMI or Risis may have to

any criminal prosecution or administrative action relating to the Covered Conduct that may be

based in whole or in part on a contention that, under the Double Jeopardy Clause in the Fifth

Amendment of the Constitution, or under the Excessive Fines Clause in the Eighth Amendment

                                                  6
of the Constitution, this Agreement bars a remedy sought in such criminal prosecution or

administrative action.

        12.    DMI and Risis fully and finally release the United States, its agencies, officers,

agents, employees, and servants, from any claims (including attorneys’ fees, costs, and expenses

of every kind and however denominated) that DMI or Risis have asserted, could have asserted,

or may assert in the future against the United States, its agencies, officers, agents, employees,

and servants, related to the Covered Conduct or the United States’ investigation or prosecution

thereof.

        13.    DMI and Risis fully and finally release the Relator from any claims (including

attorneys’ fees, costs, and expenses of every kind and however denominated) that DMI or Risis

have asserted, could have asserted, or may assert in the future against the Relator, related to the

Covered Conduct and the Relator’s investigation and prosecution thereof.

        14.    a.        Unallowable Costs Defined: All costs (as defined in the Federal

Acquisition Regulation, 48 C.F.R. § 31.205-47) incurred by or on behalf of DMI or Risis, and

DMI’s present or former officers, directors, employees, shareholders, and agents in connection

with:

                         (1)    the matters covered by this Agreement;

                         (2)    the United States’ audit(s) and civil investigation(s) of the matters

                                covered by this Agreement;

                         (3)    DMI’s investigation, defense, and corrective actions undertaken in

                                response to the United States’ audit(s) and civil investigation(s) in

                                connection with the matters covered by this Agreement (including

                                attorneys’ fees);

                                                    7
                      (4)     the negotiation and performance of this Agreement; and

                      (5)     the payment DMI makes to the United States pursuant to this

                              Agreement and any payments that DMI may make to Relator,

                              including costs and attorney’s fees,

are unallowable costs for government contracting purposes (hereinafter referred to as

“Unallowable Costs”).

               b.     Future Treatment of Unallowable Costs: Unallowable Costs will be

separately determined and accounted for by DMI and Risis, and DMI and Risis shall not charge

such Unallowable Costs directly or indirectly to any contract with the United States.

               c.     Treatment of Unallowable Costs Previously Submitted for Payment:

Within 90 days of the Effective Date of this Agreement, DMI and Risis shall identify and repay

by adjustment to future claims for payment or otherwise any Unallowable Costs included in

payments previously sought by DMI and Risis or any of its subsidiaries or affiliates from the

United States. DMI and Risis agree that the United States, at a minimum, shall be entitled to

recoup from DMI and Risis any overpayment plus applicable interest and penalties as a result of

the inclusion of such Unallowable Costs on previously submitted requests for payment. The

United States, including the Department of Justice and/or the affected agencies, reserves its

rights to audit, examine, or re-examine DMI’s and Risis’s books and records and to disagree with

any calculations submitted by DMI and Risis or any of its subsidiaries or affiliates regarding any

Unallowable Costs included in payments previously sought by DMI and Risis, or the effect of

any such Unallowable Costs on the amount of such payments.

       15.     This Agreement is intended to be for the benefit of the Parties only.




                                                8
       16.     Upon receipt of the payment described in Paragraph 1, above, Relator and the

United States shall promptly sign and file in the Civil Action a Joint Stipulation of Dismissal of

all claims against DMI in the Civil Action pursuant to Rule 41(a)(1)(A). Such dismissal shall be:

(a) with prejudice to the Relator as to all claims against all named defendants in the Civil Action;

(b) with prejudice to the United States as to the Covered Conduct; and (c) without prejudice to

the United States as to all other claims or allegations in the Civil Action.

       17.     Each Party shall bear its own legal and other costs incurred in connection with

this matter, including the preparation and performance of this Agreement.

       18.     Each Party and signatory to this Agreement represents that it freely and

voluntarily enters into this Agreement without any degree of duress or compulsion.

       19.     This Agreement is governed by the laws of the United States. The exclusive

jurisdiction and venue for any dispute relating to this Agreement is the United States District

Court for the District of New Jersey. For purposes of construing this Agreement, this Agreement

shall be deemed to have been drafted by all Parties to this Agreement and shall not, therefore, be

construed against any Party for that reason in any subsequent dispute.

       20.     This Agreement constitutes the complete agreement between the Parties. This

Agreement may not be amended except by written consent of the Parties.

       21.     The undersigned counsel represent and warrant that they are fully authorized to

execute this Agreement on behalf of the persons and entities indicated below.

       22.     This Agreement may be executed in counterparts, each of which constitutes an

original and all of which constitute one and the same Agreement.

       23.     This Agreement is binding on DMI’s and Risis’ successors, transferees, heirs, and

assigns.

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       24.    This Agreement is binding on Relator’s successors, transferees, heirs, and assigns.

       25.    All parties consent to the United States’ disclosure of this Agreement, and

information about this Agreement, to the public.

       26.    This Agreement is effective on the date of signature of the last signatory to the

Agreement (Effective Date of this Agreement). Facsimiles of signatures shall constitute

acceptable, binding signatures for purposes of this Agreement.

                            [remainder of page intentionally blank]




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                          THE UNITED STATES OF AMERICA



 Dated: the 16 day of March, 2022       By: ______________________________
                                             Jared Wiesner
                                             Trial Attorney
                                             Commercial Litigation Branch
                                             Civil Division
                                             United States Department of Justice


 Dated: the 17 day of March, 2022       By: ______________________________
                                             David V. Simunovich
                                             Assistant United States Attorney
                                             Counsel for the United States
                                             970 Broad Street, Suite 700
                                             Newark, NJ 07102
                                             Tel: (973) 645-2736
                                             Attorneys for United States of America

APPROVED:


R. DAVID WALK, JR.
Chief, Government Fraud Unit
United States Attorney’s Office
District of New Jersey




                                       11
Attachment
     A




    14
               IN THE UNITED STATES DISTRICT COURT FOR THE
                          DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA                      )
ex rel. BRYAN QUESENBERRY                     )
                                              )
               Plaintiff/Relator,             )
                                              )       No.: 20-cv-13070 (RMB/KMW)
                       v.                     )
                                              )
DANIEL MARKUS, INC., and                      )
MARGARITA RISIS,                              )
                                              )
                       Defendants.            )

                                    CONSENT JUDGMENT

       Plaintiff United States of America (the “United States”) and Defendants Daniel

Markus, Inc. (“DMI”) and Margarita Risis (“Risis”) (collectively referred as the

“Parties”), hereby stipulate, agree and consent to the entry of this judgment based upon

the following uncontested allegations:

       1.      This Court has jurisdiction over this case under 28 U.S.C. §§ 1331, 1345,

1367(a). DMI and Risis consent to the jurisdiction of the United States District Court for

the District of New Jersey for the resolution of this dispute.

       2.      On the ___ day of January, 2022, Defendants DMI and Risis entered into a

Settlement Agreement with Plaintiff United States for the purpose of resolving a dispute

(the “Settlement Agreement”). A copy of the Settlement Agreement is attached hereto as

Exhibit 1 and incorporated by reference herein.

       3.      Under the terms of the Settlement Agreement, DMI and Risis agreed to

pay to the United States the sum of $50,000 (Settlement Amount) and the outstanding
balance of its Paycheck Protection Program loan through “Lender 1,” a bank

headquartered in Salt Lake City, Utah (the “PPP Loan”).

       4.      Also under the terms of the Settlement Agreement, DMI and Risis agreed

that in the event DMI or Risis defaulted and failed to pay the Settlement Amount, within

three (3) business days of the date the Notice of Default is sent by counsel for the United

States, the United States may file a Consent Judgment against DMI and Risis in the

amount of (1) the unpaid balance of the Settlement Amount, and (2) three times the

amount of any SBA guarantee paid in connection with the PPP Loan.

       5.      DMI and Risis have now failed to make payment in accordance with the

Settlement Agreement, and therefore is in default under the terms of the

Settlement Agreement.

       6.      Unless it has already done so, within a reasonable time after the filing of

this Consent Judgment, the United States will file a statement of debt showing the

amount due and owing under the Settlement Agreement as of the date of default.

       7.      The United States has given DMI and Risis written notice of default under

the terms of the Settlement Agreement, and demanded that DMI and Risis cure that

default by tendering payment in full on the cure amount under the terms of the Settlement

Agreement. The United States has given DMI and Risis three (3) business days to cure

the default, as provided in the Settlement Agreement, but DMI and Risis failed to respond

or to make arrangements to comply with the terms of the Settlement Agreement.

       ACCORDINGLY, THIS COURT enters judgment for the United States against

Defendants DMI and Risis in the amount of $_____________________, plus interest at


                                            16
the post-judgment interest at the rate of 10% per annum, compounded daily from the date

this Consent Judgment is entered until it is satisfied. This Court retains jurisdiction over

this action.

        DONE AND ORDERED in the District of New Jersey this ___ day of

___________, 202_.


                                            __________________________________
                                            UNITED STATES DISTRICT JUDGE

Conformed copies to:

Counsel of Record for the United States and DMI and Risis




                                             17
                                      Consent to File


       Pursuant to the CM/ECF Administrative Procedures Rule David Hong, Esq.,

Counsel for DMI and Risis, has consented to the undersigned Assistant United States

Attorney’s electronic filing of this Joint Stipulation and proposed Order.

       The parties hereby stipulate and agree to the entry of this Consent Judgment. A

proposed order accompanies this motion.




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                      CERTIFICATE OF FILING AND SERVICE

       I HEREBY CERTIFY that on                              , I electronically caused the

foregoing document to be filed with the Clerk of Court using the CM/ECF system. I also

certify that the foregoing document is being served this day on all counsel of record in the

manner specified via transmission of Notices of Electronic Filing generated by CM/ECF

and/or via email.


                                              By:      /s/
                                                       David V. Simunovich
                                                       Assistant United States Attorney




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      SERVICE LIST


     David S. Hong, Esq.
Law Office of David S. Hong
        c/o Prestige
350 W. 42nd Street, Suite 19H
    New York, NY 10036
  david@davidhonglaw.com

    David V. Simunovich
   Assistant U.S. Attorney
 970 Broad Street, Suite 700
     Newark, NJ 07102
david.simunovich@usdoj.gov




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