Settlement Agreement (PPP): United States, MWW Group LLC d/b/a MikeWorldWide and Aidan Forsyth, Relator
Summary
Settlement Agreement among the United States (acting through the Department of Justice on behalf of the Small Business Administration), MWW Group LLC d/b/a MIKEWORLDWIDE and Relator Aidan Forsyth, resolving qui tam Civil Action No. 23-299 (EP) (JRA) filed January 19, 2023, in the District of New Jersey. The United States contends that on or about February 4, 2021, MWW applied for a PPP loan even though MWW was ineligible because it was a registrant under the Foreign Agent Registration Act. MWW agrees to pay $2,290,000, of which the United States considers $2,060,000 restitution (a label MWW disputes), with interest at 2% per annum from November 1, 2023, in installments of $458,000. The agreement is neither an admission of liability nor a concession by the United States that its claims are not well founded.
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“Settlement Agreement (PPP): United States, MWW Group LLC d/b/a MikeWorldWide and Aidan Forsyth, Relator.”
Original at www.justice.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/settlement-agreement-united-states-and-mww-group-llc-ppp-90aa0ee480/
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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, MWW Group LLC d/b/a
MIKEWORLDWIDE (“MWW”) and Aidan Forsyth (“Relator”) (hereafter collectively
referred to as “the Parties”), through their authorized representatives.
RECITALS
A. MWW is a limited liability company with a principal place of business at
1 Meadowlands Plaza, East Rutherford, NJ 07073.
B. On January 19, 2023, Relator filed a qui tam action in the United States
District Court for the District of New Jersey captioned United States ex rel. Forsyth v.
MWW Group LLC, Civil Action No. 23-299 (EP) (JRA), pursuant to the qui tam
provisions of the False Claims Act, 31 U.S.C. § 3730(b) (the Civil Action).
C. The United States contends that it has certain civil claims against MWW.
Specifically, the United States contends that, on or about February 4, 2021, MWW
applied for a loan pursuant to the Paycheck Protection Program (“PPP”) under the
Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), even though
MWW was ineligible for such a loan because it was a registrant under the Foreign Agent
Registration Act (“FARA”). Based on MWW’s application and certification of
eligibility, SBA approved the PPP loan on or about February 7, 2021. That conduct is
referred to below as the Covered Conduct.
D. This Settlement Agreement is neither an admission of liability by MWW
nor a concession by the United States that its claims are not well founded.
E. Relator claims entitlement under 31 U.S.C. § 3730(d) to a share of the
proceeds of this Settlement Agreement and to Relator’s reasonable expenses, attorneys’
fees and costs.
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. MWW shall pay to the United States two million two hundred ninety
thousand dollars ($2,290,000), of which the United States considers two million and sixty
thousand dollars ($2,060,000) to be restitution (the “Settlement Amount”). MWW
disputes that any portion of its payment should be considered “restitution” and views its
payment to be “compensatory damages” under the False Claims Act. Interest on the
Settlement Amount will accrue at a rate of 2% per annum from November 1, 2023, by
electronic funds transfer pursuant to written instructions to be provided by the United
States Attorney’s Office for the District of New Jersey. MWW shall pay the Settlement
Amount in installment payments pursuant to the following schedule:
A. Within 30 days of the last signature on this Agreement (the “Effective
Date of the Agreement”), MWW shall make its first installment payment
of $458,000, plus interest;
B. Within 90 days of the Effective Date of the Agreement, MWW shall pay
$458,000, plus interest;
C. Within 180 days of the Effective Date of the Agreement, MWW shall
pay$458,000, plus interest;
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D. Within 270 days of the Effective Date of the Agreement, MWW shall pay
$458,000, plus interest; and
E. With 360 days of the Effective Date of the Agreement, MWW shall
pay$458,000, plus interest.
F. Collectively, the payments described in preceding subparagraphs are
referred to as the Settlement Payments.
G. If MWW is sold, merged, or transferred, or a significant portion of the
assets of MWW is sold, merged, or transferred into another non-affiliated
entity, MWW shall promptly notify the United States, and all remaining
payments owed pursuant to the Settlement Agreement shall be accelerated
and become immediately due and payable.
H. There shall be no penalty imposed on MWW for prepayment of the
Settlement Amount.
2. Conditioned upon the United States receiving the Settlement Payments
and as soon as feasible after receipt, the United States shall pay 10% of each of the
Settlement Payments to Relator by electronic funds transfer (Relator’s Share).
3. Within 30 days of the Effective Date of the Agreement, MWW will pay to
Relator $15,192 dollars for expenses, attorneys’ fees, and costs pursuant to 31 U.S.C. §
3730(d). MWW and Relator agree that this amount represents reasonable expenses,
attorneys’ fees, and costs for the Civil Action.
4. Subject to the exceptions in Paragraph 6 (concerning reserved claims) and
Paragraph 7 (concerning default), below, and upon the United States’ receipt of the
Settlement Amount, plus interest due under Paragraph 1, the United States releases
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MWW 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 or the common law theories of
breach of contract, payment by mistake, unjust enrichment, and fraud.
5. Subject to the exceptions in Paragraph 6 below, and upon the United
States’ receipt of the Settlement Amount, plus interest due under Paragraph 1, Relator,
for himself and for his/her heirs, successors, attorneys, agents, and assigns, releases
MWW 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.
6. Notwithstanding the releases given in Paragraph 4 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;
c. Except as explicitly stated in the Agreement, any administrative
liability or enforcement right, or any administrative remedy,
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; or
f. Any liability of individuals.
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7. In the event that MWW fails to make its respective Settlement Payments
pursuant to the schedule set forth in Paragraph 1, MWW shall be in default of its payment
obligations (“Default”). In the event of a Default, the United States will provide a written
Notice of Default to MWW (hereinafter, the “Defaulting Party”) and its counsel, by U.S.
Certified Mail, at the addresses set forth on the signature page of this Agreement. The
Defaulting Party shall have an opportunity to cure such Default within seven (7) calendar
days from the date of receipt of the Notice of Default by making payment due under the
payment schedule and paying any additional interest accruing under the Settlement
Agreement up to the date of payment. If the Defaulting Party fails to cure the Default
within seven (7) calendar days of receiving the Notice of Default and in the absence of an
agreement with the United States to a modified payment schedule (“Uncured Default”),
the remaining unpaid balance of the defaulting party’s portion of the Settlement Amount
shall become immediately due and payable, and interest on the remaining unpaid balance
shall thereafter accrue at the rate of 12% per annum, compounded daily from the date of
Default, on the remaining unpaid total (principal and interest balance) of the defaulting
party’s portion of the Settlement Amount. In the event of an Uncured Default, the
Defaulting Party agrees that the United States, at its sole discretion, may (i) retain any
payments previously made, rescind this Agreement and pursue the Civil Action or bring
any civil and/or administrative claim, action, or proceeding against the Defaulting Party
who has defaulted for the claims that would otherwise be covered by the releases
provided in Paragraph 2 above, with any recovery reduced by the amount of any
payments previously made by the Defaulting Party, as appropriate, to the United States
under this Agreement; (ii) take any action to enforce this Agreement in a new action or
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by reinstating the Civil Action; (iii) offset the remaining unpaid balance from any
amounts due and owing to the Defaulting Party, and/or affiliated companies by any
department, agency, or agent of the United States at the time of the Uncured Default or
subsequently; and/or (iv) exercise any other right granted by law, or under the terms of
this Agreement, or recognizable at common law or in equity. The United States shall be
entitled to any other rights granted by law or in equity by reason of the Uncured Default,
including referral of this matter for private collection. In the event the United States
pursues private collection, the Defaulting Party agrees immediately to pay the United
States the greater of (i) a ten percent (10%) surcharge of the amount collected, as allowed
by 28 U.S.C. § 3011(a), or (ii) the United States’ reasonable attorneys’ fees and expenses
incurred in such an action. In the event that the United States opts to rescind this
Agreement pursuant to this paragraph, the Defaulting Party waives and 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 (i) filed by the United States
against the Defaulting Party within 120 days of written notification that this Agreement
has been rescinded, and (ii) relate to the Covered Conduct, except to the extent these
defenses were available on the Effective Date of this Agreement. The Defaulting Party
agrees not to contest any offset, recoupment, 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.
8. 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).
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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.
9. Relator, for himself, and for his heirs, successors, attorneys, agents, and
assigns, releases MWW, and its 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.
10. MWW waives and shall not assert any defenses MWW 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 of the Constitution, this Agreement bars a remedy sought in such criminal
prosecution or administrative action.
11. MWW fully and finally releases 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 MWW has 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.
12. MWW fully and finally releases the Relator from any claims (including
attorneys’ fees, costs, and expenses of every kind and however denominated) that MWW
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has 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.
13. 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 MWW, and
its 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) MWW’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);
(4) the negotiation and performance of this Agreement;
(5) the payments MWW makes to the United States pursuant to
this Agreement and any payments that MWW 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 MWW, and MWW shall not charge such
Unallowable Costs directly or indirectly to any contract with the United States.
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c. Treatment of Unallowable Costs Previously Submitted for
Payment: Within 90 days of the Effective Date of this Agreement, MWW shall identify
and repay by adjustment to future claims for payment or otherwise any Unallowable
Costs included in payments previously sought by MWW or any of its subsidiaries or
affiliates from the United States. MWW agrees that the United States, at a minimum,
shall be entitled to recoup from MWW 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 MWW’s books and
records and to disagree with any calculations submitted by MWW or any of its
subsidiaries or affiliates regarding any Unallowable Costs included in payments
previously sought by MWW or the effect of any such Unallowable Costs on the amount
of such payments.
14. This Agreement is intended to be for the benefit of the Parties only.
15. Upon receipt of the first installment payment described in Paragraph 1(A),
above, the Relator and the United States shall promptly sign and file in the Civil Action a
Joint Stipulation of Dismissal of the Civil Action pursuant to Rule 41(a)(1).
16. Each Party shall bear its own legal and other costs incurred in connection
with this matter, including the preparation and performance of this Agreement.
17. Each Party and signatory to this Agreement represents that it freely and
voluntarily enters into this Agreement without any degree of duress or compulsion.
18. 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
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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.
19. This Agreement constitutes the complete agreement between the Parties.
This Agreement may not be amended except by written consent of the Parties.
20. The undersigned counsel represent and warrant that they are fully
authorized to execute this Agreement on behalf of the persons and entities indicated
below.
21. This Agreement may be executed in counterparts, each of which
constitutes an original and all of which constitute one and the same Agreement.
22. This Agreement is binding on MWW’s successors, transferees, heirs, and
assigns.
23. This Agreement is binding on Relator’s successors, transferees, heirs, and
assigns.
24. All parties consent to the disclosure of this Agreement, and information
about this Agreement, to the public.
25. This Agreement is effective on the date of signature of the last signatory to
the 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: 11/1/2023
r
rl ~
BY: ______________________________
David V. Simunovich
Assistant United States Attorney
Healthcare Fraud Unit
U.S. Attorney’s Office
District of New Jersey
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MWW GROUP LLC - DEFENDANT
DATED: 10/11/JB~: - - ,' fl~
-\\-j-"----------
Mi iael Kempner
Chi f Executive Officer
M 1W Group LLC
I Meadowlands Plaza
East Rutherford, NJ 07073
DATED: 1011112023 BY:
------------
Paul Piantino, Esq.
Freeman Mathis & Gary LLP
One Riverfront Plaza
1037 Raymond Blvd
Newark, NJ 07102
Counsel for MWW Group, LLC
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AIDAN FORSYTH - RELATOR
~- (-r~
DATED: 10/27/2023 BY: v~v
/"\ ~
----'----------
AIDAN FORSYTH
Eric H. Jaso, Esq.
Spiro Harrison & Nelson
363 Bloomfield Avenue
Montclair, NJ 07042
Counsel for Relator
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