«Case 5:15-cv-00101-gwc Document 85 Filed 11/13/15 Page 1 of 141 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT ANGELA C. GIVEN and ) ...»
Case 5:15-cv-00101-gwc Document 85 Filed 11/13/15 Page 1 of 141
UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
ANGELA C. GIVEN and )
JESSICA GINGRAS, on behalf of themselves
and all others similarly situated, )
v. ) Docket No. 5:15-cv-101 )
JOEL ROSETTE, TED WHITFORD, ) JURY TRIAL DEMANDEDTIM MCINERNEY, THINK FINANCE, INC., ) TC LOAN SERVICE, LLC, KENNETH E. ) REES, TC DECISION SCIENCES, LLC, )
TAILWIND MARKETING, LLC, SEQUOIA )CAPITAL OPERATIONS, LLC and )
TECHNOLOGY CROSSOVER VENTURES, )Defendants )
OPPOSITION TO MOTIONS TO DISMISSMatthew B. Byrne, Esq.
Gravel & Shea PC 76 St. Paul Street, 7th Floor, P. O. Box 369 Burlington, VT 05402-0369 (802) 658-0220 email@example.com For Plaintiffs 76 St. Paul Street Post Office Box 369 Burlington, Vermont 05402-0369
A PROFESSIONAL CORPORATIONCase 5:15-cv-00101-gwc Document 85 Filed 11/13/15 Page 2 of 141
TABLE OF CONTENTSPreliminary Statement
Standard of Review
I. PLAINTIFFS’ FIRST AMENDED COMPLAINT COMPLIES WITH THE RULES FOR
E. Plaintiffs Have Article III Standing
IV. THE ENTITY IS NOT A NECESSARY PARTY IN AN OFFICIAL CAPACITYACTION.
VIII. THE VERMONT CONSUMER FRAUD ACT IS ENFORCEABLE AGAINSTDEFENDANTS
specifically designed to evade the law. They are full of technical procedural arguments, but avoid the substance of Defendants’ admitted illegal conduct. Ironically, Defendants submit
Defendants miscalculated. Tribal immunity cannot be bought, and it does not exist in this case.
Their arbitration “agreement” is nothing more than a sham that is unconscionable, fraudulent, and unenforceable. And once the Defendants participated in an intentional tort with effects in Vermont, they all became subject to personal jurisdiction in Vermont. Finally, even though Defendants carefully tried to evade federal and state law, they forgot that RICO specifically bars
Defendants’ operation is far different than these shiny, innocent looking characters suggest. The Plain Green enterprise was created when Kenneth Rees, the mastermind of this illegal scheme, had his former business, ThinkCash, shut down by federal regulators. Rees was undeterred by
They went through a multi-step process providing personal information, including their bank account information, employment information, email address, and age. The multi-step process
Clearing House (“ACH”) transaction. Given Decl. 4-6; Gingras Decl. 4-6. Then, once every two weeks, Defendants took money out of their accounts. Plaintiffs paid triple digit
agreement. (See Rosette, et al.’s Mot. to Dismiss Exhibit B, “Purported Arbitration Agreement.”) The Purported Arbitration Agreement made a number of material misstatements,
Tribe, Ken Blatt-St. Marks, because Blatt-St. Marks sought more money for the Tribe. Preedom Aff. Exhibit 2, 8-11. In addition, an anonymous witness interviewed by the Department of the Interior reported that “the Business Committee removed Blatt-St. Marks as Chairman to continue
single one of the Business Committee members have taken something, i.e. money, equipment, vehicles.” Id. Finally, an interview of a former Chippewa Cree tribal judge conducted by the Office of the Inspector General for the United States Department of the Interior demonstrates that the Chippewa Cree judiciary is neither independent nor functional. The former judge stated
related to the removal of Blatt-St.Marks] – the Business Committee and St. Marks – because both could do harm to him job-wise.” Additional Allegations (“AA”), attached as Exhibit 1 9.
and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” Accordingly, the Rules eliminated technical pleading requirements: “No technical form is required.” Fed. R. Civ. P. 8(d)(1). Yet, Defendants’ interpretation of an assorted variety of “group pleading” cases threatens to bring technical pleading requirements roaring back. For
allegations in which he alone appears. Defendant Rees wants the Court to ignore all allegations that refer to “Defendants Rees and Think Finance,” even though Plaintiffs were conveying that
allegations because Plaintiffs used the word “and” in making claims against both Rees and Think Finance. The upshot of Defendants’ position is that Rule 8 requires that the complaint provide a distinct paragraph for each individual whenever Plaintiffs allege that an individual is responsible
facts. Conjunctions allow an author to avoid endless and mind numbing repetition. Here, Plaintiffs allege “Rees and Think Finance” when both of these defendants did the act alleged. If Plaintiffs did not use conjunctions, the complaint would be become a sea of repetitive, nearly identical allegations. One example of Rees’s preferred method of pleading shows the pleading
e.g., FAC 10, 23, 81-82), with Think Finance alone (23, 32-35, 77-80, 83-91, 94-101, 108and with Think Finance and the Tribal Defendants (32-35, 54-56, 58, 68-71).
Plaintiffs also make a variety of detailed factual allegations against Think Finance. Many of the allegations are made concurrently with Kenneth Rees, but some also involve Think Finance
for asserting that Rees was individually involved in the fraudulent scheme. In fact, Rees’s counsel traveled all the way to Vermont to tell Plaintiffs’ counsel that in person. However, Plaintiffs’ counsel does have evidence that Rees was personally involved in the fraudulent
his company has shifted away from doing direct lending itself because ‘byzantine state laws’ made it complicated. Native American tribes, he said, ‘don’t have to look to each state’s lending laws.” Exhibit 4 at 5. Plaintiffs alleged Rees’s personal involvement in the First Amended Complaint by referencing these articles. FAC 82. In addition, Rees’s prior history of
Sequoia Capital and Technology Crossover Ventures also share in the profits of the venture. As Sequoia Capital admits, it is one of the premier venture capital operations in the world: “Sequoia Capital is a premier venture capital firm, whose impressive portfolio includes some of Silicon Valley’s most elite innovators and well-known Internet brands such as Yahoo!, Google and
Finance entities are laden with confidentiality provisions designed to obscure Technology Crossover Ventures and Sequoia’s roles from public view. When reporters ask about the relationship, Technology Crossover Ventures and Sequoia decline to comment. FAC 155.
Finance. Drew Aff. 4. The disclosure that Technology Crossover Ventures made this equity investment led Plaintiffs to investigate further. That investigation revealed that Technology
was fully aware of the illegal loansharking enterprise, Plain Green, and through his leadership of Think Finance, perpetuated the scheme. Id. Plaintiffs’ investigation also revealed that Sequoia
fully aware of the illegal payday enterprise, Plain Green, and through his leadership of Think Finance, he perpetuated the fraudulent scheme. Id. These allegations are enough to satisfy the
largely involve situations where all defendants are grouped together in a single, undifferentiated whole. That is not the case here. Plaintiffs have made individualized factual allegations against
constructed a racketeering scheme involving the fraudulent lease of small equipment. In that case, Judge Karas recognized that: “In most of the cases Defendants cite, the court dismissed the complaint because it failed to distinguish at all between any of Defendants in claims alleging discrimination or constitutional rights violations.” Angermeir v. Cohen, 14 F. Supp. 3d 134, 143 (S.D.N.Y. 2014) (emphasis added). But in Angermeir, just as in this case, “the Complaint
furtherance of a master plan to defraud, but does not allege that the communications themselves contained false or misleading information, the allegations need only describe the connection of
(2d Cir. 2009) (awarding sanction against plaintiff, in part, because of prolix complaints).
Plaintiffs must balance describing the underlying facts with avoiding interminable pleadings.3
re Sumitomo Copper Litig., 995 F. Supp. at 456. First, Plaintiffs must plead the circumstances of fraud, by (1) detailing the statements (or omissions) that Plaintiffs contend are fraudulent, (2) identifying the speaker, (3) stating where and when the statements (or omissions) were made, and (4) explaining why the statements are fraudulent. Id. Second, Plaintiffs must plead the
noted that it “would be strange indeed to demand greater precision of Plaintiffs in pleading the author’s identity than they received as readers of those documents.” Id. at 173; see also Shapo,
pleading. Rule 9(b)’s requirements are relaxed “when the facts are peculiarly within the opposing party’s knowledge.” IUE AFL-CIO Pension Fund v. Herrman, 9 F.3d 1049, 1057 (2d
should not be applied in a manner which would, in effect, obstruct all plaintiffs, including those with valid claims, from initiating RICO actions. RICO clearly provides for civil remedies to benefit victims of racketeering and in the absence of congressional action, these provisions
of the Think Finance corporate structure. The misrepresentations were made in the Purported Arbitration Agreement itself, which were available to borrowers after they completed an
Rees and Think Finance provided everything to operate the payday lending enterprise. FAC 23. Rees and Think Finance controlled every aspect of the payday lender’s actual operation,
notice to Defendants about their alleged wrongdoing because two separate sets of Defendants used Plaintiffs’ allegations to locate the precise Purported Arbitration Agreement at issue. See
reservation activity that was subject to state law. The purported speaker of these statements was Plain Green, but the true authors of the Purported Arbitration Agreement were Think Finance
eleven independent instances of wire fraud that related to these misrepresentations. FAC 47
as reconnect fees from utilities and overdraft fees from banks, and the interest rates paid on Plain Green loans. This comparison is false because it falsely claims that interest rates charged by the
225-paragraph First Amended Complaint lays out in unambiguous detail exactly what each defendant did wrong. While Defendants try to invoke procedural arguments under Rules 8 and
(5) jurisdiction under the Federal Consumer Financial Law, 12 U.S.C. § 5481. Defendants ignore all of these separate bases for jurisdiction and focus exclusively on tribal immunity. But
jurisdiction is contrary to the most recent United States Supreme Court decision on Native American tribal immunity. While Defendants cite hundreds of other cases, they did not even
pursuant to 28 U.S.C. § 1331 when the plaintiff’s well-pleaded complaint raises an issue of federal law.” Fairfield County Med. Ass’n v. United Healthcare of New England, 557 Fed.
App’x 53, 55 (2d Cir. 2014) (internal citations and quotations omitted). Only “when the claim is so insubstantial, implausible, foreclosed by prior decisions of the Supreme Court, or otherwise
lack of subject matter jurisdiction. Id. “Once a federal court has determined that a plaintiff’s jurisdiction conferring claims are not insubstantial on their face, no further consideration of the merits of the claim is relevant to a determination of the court’s jurisdiction of the subject matter.”
determination.”). Here, the Court has subject matter jurisdiction because Plaintiffs raise four federal questions for resolution: whether there is a claim under (1) the Consumer Financial
decision holding that the EFTA applied to Native American defendants). As a result, the federal claims identified in this case easily pass the requirements for subject matter jurisdiction.
diversity exists under the Class Action Fairness Act, the citizenship of any corporate entity is determined by reviewing their state of organization and principal place of business. 28 U.S.C.