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Stipulation of Dismissal with Prejudice — No. 1:22-cv-04602 (Dkt. 24, N.D. Ill.)

Summary

A stipulation of dismissal with prejudice filed March 16, 2023 as Document 24 in Franklin Capital Holdings LLC v. The United States Small Business Administration et al., Case No. 22-CV-04602, in the U.S. District Court for the Northern District of Illinois before Magistrate Judge Cummings. The parties state the action has settled, ask the court to retain jurisdiction to reopen it if the settlement is not completed, and attach a proposed order of dismissal and the settlement agreement as Exhibit A. Under the Stipulation for Compromise Settlement and Release, the SBA will re-process Franklin's forgiveness application for its $295,100 PPP loan from CIBC Bank USA and approve partial forgiveness of 75%, or $221,325, with Franklin responsible for the remaining 25%, or $73,775. The agreement states it is not an admission of liability and each party bears its own fees and costs.

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Cite this document

“Stipulation of Dismissal with Prejudice — No. 1:22-cv-04602 (Dkt. 24, N.D. Ill.).” Original at ecf.ilnd.uscourts.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/stipulation-of-dismissal-with-prejudice-no-1-22-cv-04602-dkt-24-n-d-il-88e08c8e32/, SHA-256 06711aaa8acd08657d1971678ce5828ceb11cc058d1c232503af36025b06fc2f.

Full text

     Case: 1:22-cv-04602 Document #: 24 Filed: 03/16/23 Page 1 of 8 PageID #:893




                           UNITED STATES DISTRICT COURT
                           NORTHERN DISTRICT OF ILLINOIS
                                 EASTERN DIVISION

   Franklin Capital Holdings LLC,                  )
                                                   )
                          Plaintiff,               )
                                                   )
   v.                                              )
                                                   )    Case No. 22-CV-04602
   THE UNITED STATES SMALL                         )
   BUSINESS           ADMINISTRATION;              )    Magistrate Judge Cummings
   Isabella Casillas Guzman, in her official       )
   capacity as Administrator of the Small          )
   Business Administration; Janet Yellen,          )
   in her official capacity as United States       )
   Secretary of Treasury; and The United           )
   States of America, Defendants,                  )
                                                   )


                 STIPULATION OF DISMISSAL WITH PREJUDICE
        The Parties hereby advise the Court that this action has been settled. The

executed Settlement Agreement is attached hereto as Exhibit A.          The Parties

accordingly stipulate that this case be hereby dismissed with prejudice and have

submitted a proposed Order reflecting this Stipulation. The Parties further request

that the Court retain complete jurisdiction to vacate the Order and to reopen the

action upon cause shown that settlement has not been completed in accordance with

the terms of the Settlement Agreement and further litigation is necessary to enforce

such terms.

        Each party will bear its own fees/costs.


ClarkHill\45961\437021\270947590.v1-3/15/23
     Case: 1:22-cv-04602 Document #: 24 Filed: 03/16/23 Page 2 of 8 PageID #:894




                 Respectfully submitted,



CLARK HILL PLC                                MORRIS PASQUAL
                                              Acting United States Attorney
By: /s/ Bret S. Wacker
                                              By: s/ Nicole Flores
Bret S. Wacker (Pro Hac Vice)
J. Chris White (Pro Hac Vice)                    NICOLE FLORES
730 17th Street, Suite 420                       Assistant United States Attorney
Denver, CO 80202                                 219 South Dearborn Street
Telephone: 202-772-0906                          Chicago, Illinois 60604
Facsimile: 202-772-0905                          (312) 886-9082
bwacker@clarkhill.com                            nicole.flores3@usdoj.gov
jcwhite@clarkhill.com
                                              ATTORNEY FOR DEFENDANTS
Timothy R. Herman
130 E. Randolph Street, Suite 3900
Chicago, IL 60601
ARDC No. 6301721
Telephone: 312-985-5950
Facsimile: 312-985-5574
therman@clarkhill.com

ATTORNEYS FOR PLAINTIFF




ClarkHill\45961\437021\270947590.v1-3/15/23
     Case: 1:22-cv-04602 Document #: 24 Filed: 03/16/23 Page 3 of 8 PageID #:895




                           UNITED STATES DISTRICT COURT
                           NORTHERN DISTRICT OF ILLINOIS
                                 EASTERN DIVISION

   Franklin Capital Holdings LLC,                )
                                                 )
                          Plaintiff,             )
                                                 )
   v.                                            )
                                                 )      Case No. 22-CV-04602
   THE UNITED STATES SMALL                       )
   BUSINESS           ADMINISTRATION;            )      Magistrate Judge Cummings
   Isabella Casillas Guzman, in her official     )
   capacity as Administrator of the Small        )
   Business Administration; Janet Yellen,        )
   in her official capacity as United States     )
   Secretary of Treasury; and The United         )
   States of America, Defendants,                )
                                                 )

                       PROPOSED ORDER DISMISSING ACTION
                           BY REASON OF SETTLEMENT
        The Court has been advised by counsel that this action has been settled.

Therefore, it is not necessary that the action remain upon the calendar of the Court.

It is ORDERED that the action is DISMISSED with prejudice. The Court retains

complete jurisdiction to vacate this Order and to reopen the action upon cause shown

that agreed settlement has not been completed and further litigation is necessary

solely to enforce the terms of the settlement.

        This the ___ day of March 2023.
                                      ______________________________
                                      Jeffrey Cummings
                                      UNITED STATES MAGISTRATE JUDGE
                                      NORTHERN DISTRICT OF ILLINOIS


ClarkHill\45961\437021\270947590.v1-3/15/23
    Case: 1:22-cv-04602 Document #: 24 Filed: 03/16/23 Page 4 of 8 PageID #:896
                                             EXHIBIT "A"


                             UNITED STATES DISTRICT COURT
                             NORTHERN DISTRICT OF ILLINOIS
                                   EASTERN DIVISION

 FRANKLIN CAPITAL HOLDINGS LLC,                     )
                                                    )
                               Plaintiff,           )
                                                    )
                       v.                           )
                                                    )
 THE UNITED STATES SMALL                            )   No. 22 C 4602
 BUSINESS ADMINISTRATION,                           )
 ISABELLA CASILLAS GUZMAN,                          )   Magistrate Judge Cummings
 Administrator of the U.S. Small Business           )
 Administration, JANET YELLEN, Secretary            )
 of Treasury of the United States, THE              )
 UNITED STATES OF AMERICA,                          )
                                                    )
                               Defendants.          )

            STIPULATION FOR COMPROMISE SETTLEMENT AND RELEASE

       Plaintiff Franklin Capital Holdings LLC (“Franklin”) and Defendants the United States

Small Business Administration (“SBA”), Isabella Casillas Guzman, in her official capacity as

Administrator of the SBA, Janet Yellen, in her official capacity as Secretary of the Treasury of the

United States, and the United States of America (“Defendants”), through their undersigned

attorneys, hereby agree and stipulate as follows:

       1.      The parties do hereby agree to settle and compromise the above-entitled action

under the terms and conditions set forth herein (the “Settlement Agreement”).

       2.      Partial Forgiveness of PPP Loan to Plaintiff: On April 10, 2020, Franklin received

from CIBC Bank USA (“Lender”) a Paycheck Protection Program (“PPP”) loan in the amount of

$295,100 (“Loan”).     On February 8, 2021, Franklin completed a PPP Loan Forgiveness

Application (SBA Form 3508), requesting forgiveness for the full amount of the Loan

(“Application”). On or about January 31, 2022, the SBA denied Franklin’s Application, which

ultimately resulted in the above-captioned matter. In accordance with the terms of this Settlement
    Case: 1:22-cv-04602 Document #: 24 Filed: 03/16/23 Page 5 of 8 PageID #:897




Agreement, the SBA shall reopen and re-process Franklin’s Application, and approve partial

forgiveness for 75% of the principal balance, or $221,325. Franklin will remain responsible for

the remaining 25% of the Loan balance, or $73,775. Following the approval of the Application

providing partial forgiveness of 75% of the Loan, Defendants will make payments on the

remaining balance of the Loan in accordance with the Lender’s agreed upon terms.

          3.    Fees, Costs, and Expenses: The partial forgiveness amount described in paragraph

2, above, represents the entire amount of the compromise settlement. The respective parties will

each bear their own costs, fees, and expenses, including attorney’s fees, incurred in relation to this

matter.

          4.    No Admission of Liability or Wrongdoing: This Settlement Agreement is not and

shall not be construed as an admission by the Defendants of the truth of any allegation or the

validity of any claim asserted in this lawsuit, or of the Defendants’ liability. Conversely, this

Settlement Agreement shall not be construed as a concession by Franklin with regard to any of its

claims asserted in this lawsuit or of the Defendants’ liability.

          5.    Release: Upon receipt of the SBA’s partial forgiveness action described in

paragraph 2 above, Plaintiff, including its successors and agents, fully and forever releases,

acquits, and discharges defendants and their components, agents, employees, and former

employees, either in their official or individual capacities, from any and all claims, demands, and

causes of action of every kind, nature, or description, whether known or unknown, that plaintiff

may have had, may now have, or may hereafter discover arising out of or in connection with any

event occurring prior to the date of this Settlement Agreement relating to all claims that were raised

or could have been raised in this action and all other claims relating to the litigation and plaintiff’s

PPP loan.



                                                   2
     Case: 1:22-cv-04602 Document #: 24 Filed: 03/16/23 Page 6 of 8 PageID #:898




        6.      No Assignment: Plaintiff represents and warrants that it is the sole and lawful owner

of all rights, title and interests in and to every claim and other matter that it purports to release

herein, and that it has not heretofore assigned or transferred, or purported or attempted to assign

or transfer to any person or entity any claims or other matters herein released. The Plaintiff shall

indemnify the Defendants, and any of its departments, components and current or former

employees, whether in their official or individual capacities, against, and defend and hold harmless

from, any claims arising out of or relating to any such assignment or transfer of any claims or other

matters released herein.

        7.      Tax Consequences: Compliance with all applicable federal, state, and local tax

requirements shall be the sole responsibility of Plaintiff. This Settlement Agreement is executed

without reliance upon any representation by defendants as to tax consequences, and plaintiff is

responsible for the payment of any taxes that may be associated with the settlement payments.

        8.      Merger Clause: This Settlement Agreement contains the entire agreement between

the parties hereto, and plaintiff acknowledges and agrees that no promise or representation not

contained in this agreement has been made to it and acknowledges and represents that this

Settlement Agreement contains the entire understanding between the parties, and contains all terms

and conditions pertaining to the compromise and settlement of the disputes referenced herein. No

statement, remark, agreement, or understanding, oral or written, that is not contained herein shall

be recognized or enforced, nor does this Settlement Agreement reflect any agreed upon purpose

other than the desire of the parties to reach a full and final conclusion of the litigation and to resolve

that suit without the time and expense of further litigation




                                                    3
    Case: 1:22-cv-04602 Document #: 24 Filed: 03/16/23 Page 7 of 8 PageID #:899




       9.      Modification: This Settlement Agreement cannot be modified or amended except

by an instrument in writing, agreed to and signed by the parties, nor shall any provision hereof be

waived other than by a written waiver, signed by the parties.

       10.     Binding Successors: This Settlement Agreement shall be binding upon an inure to

the benefit of the Plaintiff and the Defendant and their respective successors, assigns, and personal

representatives, including any person, entity, department, or agency succeeding to the interests or

obligations of any party hereto, or having an interest herein.

       11.     Severability: The provisions of this agreement shall be deemed severable, and any

invalidity or unenforceability of any one or more of its provisions shall not affect the validity or

enforceability of the other provisions herein.

       12.     Public Disclosure: The parties agree that this Settlement Agreement, including all

the terms and conditions of this compromise settlement and any additional agreements relating

thereto, may be made public in their entirety, and the Plaintiff expressly consents to such release

and disclosure pursuant to 5 U.S.C. § 552a(b).

       13.     Dismissal of claims: Plaintiff stipulates to dismissal of all of its claims in the

litigation, with prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii).

Notwithstanding such dismissal, the Parties agree that Franklin may petition the Court to enforce

the terms of this Settlement Agreement.

       14.     No Precedential Value: This agreement shall have no precedential value

whatsoever in any future or pending complaints, grievances, appeals, or lawsuits against the

defendants, their agencies, and their agents, officers, or employees. This Settlement Agreement

may not be cited by any person as a model for any future settlement in any forum, provided,




                                                 4
Case: 1:22-cv-04602 Document #: 24 Filed: 03/16/23 Page 8 of 8 PageID #:900




   however, that the pa11ies may cite this agreement in support or any claim that the other party has

   breached its terms.

            15.    It is contemplated that this Stipulation for Compromise Settlement may be executed

   in several counterparts, with a separate signature page for each party. All such counterparts and

   signature pages, together, shall be deemed to be one document.



   Attorney for Defendants:                     MORRIS PASQUAL
                                                Acting United States Attorney




                                                    Assistant Unit States Attorney
                                                    219 South Dearborn Street
                                                    Chicago, Illinois 60604
                                                    (312) 886-9082
                                                    nicole. flores3(p;usdoj .gov




   Attorney for Plaintiff:


                                                730 17th Street, Suite 420
                                                Denver, CO 80202
                                                Telephone; 202-772-0906
                                                bwacker@darkhill.com


                                                Executed thi' /of March, 2023


   Plaintiff:

                                                Chainnan and Chief Executive Officer
                                                Franklin Capital Holdings LLC

                                                Executed this _LL_ day of March, 2023


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