Blue Flame Medical LLC v. Chain Bridge Bank, N.A. ( 2023 )

USCA4 Appeal: 21-2218 Doc: 70 Filed: 03/20/2023 Pg: 1 of 26
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-2218
BLUE FLAME MEDICAL LLC,
Plaintiff – Appellant,
v.
CHAIN BRIDGE BANK, N.A.,
Defendant and Third-Party Plaintiff – Appellee,
JOHN J. BROUGH; DAVID M. EVINGER,
Defendants – Appellees,
v.
JPMORGAN CHASE BANK, N.A.,
Third-Party Defendant.
No. 21-2219
BLUE FLAME MEDICAL LLC,
Plaintiff,
v.
CHAIN BRIDGE BANK, N.A.,
Defendant and Third-Party Plaintiff – Appellee,
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JOHN J. BROUGH; DAVID M. EVINGER,
Defendants,
v.
JPMORGAN CHASE BANK, N.A.,
Third-Party Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Leonie M. Brinkema, District Judge. (1:20-cv-00658-LMB-IDD)
Argued: October 27, 2022 Decided: March 20, 2023
Before AGEE and HARRIS, Circuit Judges, and Lydia K. GRIGGSBY, United States
District Judge for the District of Maryland, sitting by designation.
Affirmed by unpublished opinion. Judge Griggsby wrote the opinion, in which Judge Agee
and Judge Harris joined.
ARGUED: Eric Franklin Citron, GOLDSTEIN & RUSSELL, P.C., Bethesda, Maryland;
Alan E. Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New
York, New York, for Appellants. Gary Andrew Orseck, KRAMER LEVIN NAFTALIS
& FRANKEL LLP, Washington, D.C., for Appellee. ON BRIEF: Albinas J. Prizgintas,
Washington, D.C., Margarita Botero, Denver, Colorado, Marissa W. Medine, WILMER
CUTLER PICKERING HALE AND DORR LLP, New York, New York, for Appellant
JPMorgan Chase Bank, N.A. Kathleen Foley, GOLDSTEIN & RUSSELL, P.C., Bethesda,
Maryland, for Appellant Blue Flame Medical LLC. Matthew M. Madden, Donald Burke,
ROBBINS, RUSSELL, ENGLERT, ORSECK, & UNTEREINER LLP, Washington, D.C.,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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GRIGGSBY, United States District Judge for the District of Maryland, sitting by
designation:
This appeal involves the collapse of an agreement to obtain face masks for the State
of California during the early days of the COVID-19 pandemic. Defendant and Third-
Party Plaintiff-Appellee Chain Bridge Bank (“Chain Bridge”) withheld and returned
certain funds wired to the bank account of Plaintiff-Appellant Blue Flame Medical LLC
(“Blue Flame”) in order to purchase face masks for shipment under its contract with
California. Thereafter, Blue Flame filed a complaint asserting violations of U.C.C. §§ 4A-
204(a) and 4A-404 against Chain Bridge, and state law claims for tortious interference with
a contract, tortious interference with a business expectancy, conversion, fraud, constructive
fraud, negligence, defamation and breach of contract against Chain Bridge and its
President, David M. Evinger (“Evinger”), and Chief Executive Officer, John J. Brough
(“Brough”) (collectively, “Defendants”). JA19-53. Chain Bridge then filed a third-party
complaint against California’s bank, Third Party Defendant-Appellant, JPMorgan Chase
Bank, N.A. (“JPMorgan”), asserting claims for indemnification under U.C.C. § 4A-211(f)
and for unjust enrichment. JA113-22.
The district court dismissed five of Blue Flame’s state law claims on preemption
grounds. JA54; JA61. After the parties filed cross-motions for summary judgment on the
remaining claims, the district court entered summary judgment in Defendants’ favor on
each of Blue Flame’s remaining claims and entered summary judgment in favor of Chain
Bridge on its claim for indemnification from JPMorgan. JA3066-3099. The district court
held that: (1) Blue Flame’s U.C.C. § 4A-404(a) claim failed as a matter of law, because
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Blue Flame could not establish that it sustained any damage from the return of California’s
funds; (2) Blue Flame’s U.C.C. § 4A-204(a) claim also failed as a matter of law, because
that statute is not applicable to the payment order that Chain Bridge generated to facilitate
the return of California’s funds; (3) Blue Flame’s claims for tortious interference with the
contract and with business expectancy also failed as a matter of law, because Blue Flame
did not proffer any evidence of damage resulting from the return of California’s funds; (4)
Blue Flame’s defamation claim similarly failed as a matter of law, because there is no
evidence in the record to show that Defendants made any false statements about Blue
Flame or its principals; and (5) the undisputed material facts established JPMorgan’s
liability to indemnify Chain Bridge under U.C.C. § 4A-211(f) for the loss and expenses
resulting from the cancellation of the payment order wiring California’s funds to Blue
Flame. JA3083-96.
We agree with the district court that Blue Flame’s U.C.C. § 4A-204(a) claim fails as
a matter of law, because that provision is not applicable to the payment order that Chain
Bridge generated for the return of California’s funds. In addition, we agree with the district
court that Blue Flame’s U.C.C. § 4A-404(a) claim fails as a matter of law, because Blue
Flame cannot establish that it sustained any damage from the return of California’s funds
and that Blue Flame’s claims for tortious interference also fail as a matter of law, because
Blue Flame did not establish a valid contract with California. We also agree with the
district court that the undisputed material facts of this case establish JPMorgan’s liability
to indemnify Chain Bridge under U.C.C. § 4A-211(f) for its loss and expenses resulting
from the cancellation of the payment order wiring California’s funds to Blue Flame.
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For the reasons below, we affirm.
I.
Blue Flame’s principals, John Thomas (“Thomas”) and Mike Gula (“Gula”), are
political consultants. JA3067. When the COVID-19 pandemic began in late 2019, neither
Thomas nor Gula had “any experience in the field of medical supplies,” the “healthcare
industry,” or “supply chain management.” JA3067; JA527. Nevertheless, in February
2020, Thomas and Gula decided to turn their attention to “connecting . . . medical supply
companies with buyers.” JA2496. To that end, on March 23, 2020, they formed Blue
Flame. JA576.
Three days before Blue Flame’s certificate of formation was filed, an acquaintance
of Thomas contacted California’s State Controller, Betty Yee, on Thomas’ behalf, about
California’s interest in purchasing face masks from Thomas and Gula. JA660-61.
Through Yee, Thomas and Gula were put in touch with California’s Department of
General Services (“DOS”), the entity responsible for contracting with vendors for
supplies. JA639-654.
In anticipation of receiving a purchase order from California for the purchase of face
masks, Gula went to the McLean, Virginia office of Chain Bridge to open a bank account
for Blue Flame on March 23, 2020. JA3070. Based on the forms Gula completed, Chain
Bridge opened an account in Blue Flame’s name and provided Gula with instructions for
wiring funds to the account. JA95-112.
On March 25, 2020, two days after Blue Flame’s formation, DOS issued Blue Flame
a purchase order for 100 million N95 face masks, in four specified models, for a total price
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of $609,161,000.00, 75% of which was required to be pre-paid to Blue Flame. JA578-581.
The purchase order includes a provision allowing California to “terminate performance of
work under this Contract for its convenience . . . if [DOS] determines that a termination is
in the State’s interest.” JA1165; JA3068. The purchase order also includes an initial
delivery date of April 3, 2020 for the masks. JA3068.
At approximately 3:30 PM on March 25, 2020, Gula called Chain Bridge’s Senior
Vice President and Branch Manager, Heather Schoeppe (“Schoeppe”), to inform her that
“the state of California is sending an unbelievably large wire transfer in the amount of $450
million.” JA3070; JA139-40. The record shows that the anticipated wire transfer into Blue
Flame’s account raised concerns within Chain Bridge. JA3070.
After her conversation with Gula, Schoeppe called Chain Bridge’s Chief Financial
Officer, Joanna Williamson (“Williamson”), to ask whether it would be feasible to accept
a wire transfer for $450 million. JA1836; JA3071. Williamson acknowledged that it was
a large sum, but told Schoeppe “we’ll do whatever we need to do” to accommodate it.
JA3071. Williamson also told Schoeppe that a deposit of that size would affect the bank’s
balance sheet and “capital ratios,” but without more analysis, or more information about
how long the funds would remain in the account, she was not sure whether the impact
would be negative. Id.
On March 26, 2020, at 11:21 AM ET, a representative from the California State
Treasurer’s Office originated a wire transfer in the amount of $456,888,600 for Blue
Flame’s benefit through California’s bank, JPMorgan. JA140; JA3073. The outgoing wire
transfer triggered an alert in JPMorgan’s “roll payment guardian application,” which
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screens for suspicious transaction activity. JA920. An agent for JPMorgan contacted
California to verify approval for the wire transfer, which California confirmed. Id.
The timeline for what occurred next is central to the parties’ dispute in this appeal.
At 11:55 AM on March 26, 2020, Chain Bridge received the incoming wire transfer, which
was credited to Blue Flame’s account. JA936-37. At 11:57 AM, Gula received an
automated “Incoming Wire Confirmation” informing him that $456,888,600.00 had been
received on Blue Flame’s behalf. JA944-45.
Because officials at Chain Bridge remained concerned about the transaction,
Evinger ordered that a hold be placed on the funds at 12:07 PM. JA1016-17. JPMorgan
also had concerns about the wire transfer. As a result, JPMorgan’s Executive Director,
Rakesh Korpal (“Korpal”) asked his colleague Tim Coffey (“Coffey”) “to call Chain
Bridge Bank to determine if they knew the beneficiary of the funds and what the disposition
of the transactions or the funds were at that point.” JA925.
Coffey called Chain Bridge at approximately 12:30 PM and asked to speak to
someone in either the wire transfer or fraud departments, relaying that JPMorgan had
“concerns of fraud” related to the Blue Flame transaction. JA1023; JA3074. At 12:44 PM,
Korpal also called Chain Bridge and spoke with Brough and Evinger, explaining
JPMorgan’s concern that the “amount seems to be quite high for the supplies that they’re
purportedly paying for.” JA1047; JA3074.
Chain Bridge and JPMorgan also consulted with California about the wire transfer.
At 12:51 PM, Fee Chang (“Chang”), an employee of DOS called Chain Bridge and
“confirm[ed]” that the wire transfer was “legitimate.” JA1048; JA3075. At 12:55 PM,
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Brough and Evinger called Chang to ask for “documentation to support . . . that funds were
transferred properly.” JA1049; JA3075. Chang replied that the funds had been transferred
by the California State Treasurer’s Office, and she referred Brough and Evinger to Natalie
Gonzalez, whom Chang stated was “in charge of the transfers.” Id. At 1:19 PM, Natalie
Gonzalez and Mark Hariri of the California State Treasurer’s Office called Brough and
Evinger to discuss the transfer of funds to Blue Flame’s account. JA1054; JA3075.
Shortly thereafter, at 1:34 PM, Brough and Evinger again spoke with Korpal.
JA1062; JA3076. During this call, Evinger asked: “Is there any way for JPMorgan to issue
a recall for the wire, so that while you intervene in this you have the funds and feel more
comfortable?” Id. Korpal responded:
Well, I feel comfortable that you’re holding the money right now. I can issue
a recall. But I don’t think you and I want to get onto the front page of the
Wall Street Journal, especially if this is a legitimate transaction.
Id. Korpal instead asked for “a few more minutes” to determine a course of action. Id.
Minutes later, at 1:37 PM, Coffey called Evinger and Brough to explain:
We’re going to be recalling those funds, OK? We have enough concerns that
we feel we need to call those funds back. Do you need a recall message from
us, or what are you looking for from us?
JA1063; JA3076. In response, Chain Bridge asked for an official communication from
JPMorgan, over the Fedline platform, requesting a recall of the funds. Id.
At 2:05 PM, JPMorgan sent a message to Chain Bridge via the Fedwire Funds
Processor (“Fedwire”) officially asking for the return of California’s funds. JA1064-65;
JA3077. At 3:21 PM, Chain Bridge returned the funds to JPMorgan, noting in the
accompanying Fedwire message that the action was taken “PER YOUR REQUEST.”
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JA1075-76; JA3077. The funds were posted to California’s JPMorgan account by 4:02
PM. JA142; JA3077.
Sometime after JPMorgan requested the return of the funds, but before California
learned the funds had already been returned, California also “requested the funds be
recalled.” JA916. Once the funds were back with California, a DOS employee emailed
various California employees, stating, “Funds are with [the State Treasurer’s Office]. After
further discussion we won’t be moving forward with the vendor.” JA1079.
Thereafter, Blue Flame tried to continue its negotiations with California. JA3078.
But California’s DOS representative declined to enter into a new agreement with Blue
Flame and began forwarding all Blue Flame correspondence to the Federal Bureau of
Investigation. 1 JA2712-14. Although California never explicitly canceled the purchase
order, Gula stated that it “was clear” that the “deal was canceled by [California’s] actions.”
JA561.
Following the termination of its purchase order with California, Blue Flame filed a
complaint in the United States District Court for the Eastern District of Virginia asserting
1
On April 8, 2021, Congressional Representative Katie Porter of the 45th District of
California wrote to the Principal Deputy Inspector General of the Department of Health
and Human Services about concerns of “potential price gouging regarding personal
protective equipment during the COVID pandemic,” identifying Blue Flame as a
“potentially costly and burdensome middleman.” JA36; JA3078. Blue Flame
subsequently provided a response to congressional investigators that included a list of all
contracts, orders, or agreements that Blue Flame entered into with federal, state, or local
governments or governmental entities, for medical supplies or equipment. JA1119-29.
This list shows that, of the 24 entities identified by Blue Flame, the company only filled
two orders. Id.
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claims under U.C.C. §§ 4A-204(a) and 4A-404 against Chain Bridge, and various state law
claims against Chain Bridge, Evinger and Brough. JA19-53. The district court dismissed
Blue Flame’s state law claims for conversion, fraud, constructive fraud, negligence and
breach of contract on federal law preemption grounds. JA54.
After Chain Bridge filed a third-party complaint against JPMorgan, asserting claims
for indemnification under U.C.C. § 4A-211(f) and for unjust enrichment, all parties filed
cross-motions for summary judgment. JA113-21. The district court entered summary
judgment in Defendants’ favor on each of Blue Flame’s remaining claims and entered
summary judgment in favor of Chain Bridge on its § 4A-211(f) claim for indemnification
from JPMorgan. JA3066-103.
The district court concluded with regard to Blue Flame’s U.C.C. § 4A-404(a) claim,
that any fraud by Blue Flame in the underlying transaction with California was not the sort
of mistake that would make JPMorgan’s cancellation effective under U.C.C. § 4A-211(c).
JA3082-83. Nonetheless, the district court held that Blue Flame’s U.C.C. § 4A-404(a)
claim failed as a matter of law, because Blue Flame could not “establish that it sustained
any damage” from the return of California’s funds. JA3083.
The district court also held that U.C.C. § 4A-204(a) is not applicable to the payment
order that Chain Bridge generated to facilitate the return of California’s funds to JPMorgan,
because this payment order was “issued” by Chain Bridge, rather than “accepted” by Chain
Bridge. JA3089. The district court further held that Blue Flame’s tortious interference
claims failed as a matter of law, because Blue Flame did not proffer evidence of any damage
resulting from the return of California’s funds. JA3090. Blue Flame’s defamation claim
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also failed as a matter of law, because the district court found that there is no evidence in
the record to show that Defendants made any false statements about Blue Flame or its
principals. JA3090-91.
As a final matter, the district court held that there was “no evidence in the record of
a communication between Chain Bridge and JPMorgan indicating an agreement to displace
the default rule of automatic indemnity” under U.C.C. § 4A-211(f). JA3095. Accordingly,
the district court concluded that the undisputed material facts established JPMorgan’s
liability to indemnify Chain Bridge under U.C.C. § 4A-211(f). JA3092-96.
Blue Flame and JPMorgan each filed timely notices of appeal.
On appeal, Blue Flame raises three challenges to the district court’s decision. First,
Blue Flame challenges the district court’s decision that U.C.C. § 4A-204(a) imposes no
liability on Chain Bridge for withholding and returning California’s funds to JPMorgan.
Second, Blue Flame challenges the district court’s decision that its state law claims are
preempted, insofar as these claims were directed at Chain Bridge’s alleged falsification of
the payment order generated to return California’s funds. Third, Blue Flame argues that
the district court erred in entering summary judgment on its U.C.C. § 4A-404(a) and
tortious interference claims and finding that it suffered no damage from Chain Bridge’s
conduct. For its part, JPMorgan challenges the district court’s determination that Chain
Bridge is entitled to indemnification under § 4A-211(f).
II.
This Court reviews the district court’s grant of summary judgment de novo. Ray
Commc’ns, Inc. v. Clear Channel Commc’ns, Inc., 673 F.3d 294, 299 (4th Cir. 2012). The
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Court asks whether, considering the record adduced by the parties in the district court,
“there is no genuine dispute as to any material fact” and the moving party is “entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists
only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The district court’s
dismissal of Blue Flame’s state law claims is also reviewed de novo. Ray v. Roane, 948
F.3d 222, 226 (4th Cir. 2020).
III.
A.
We agree with the district court that Blue Flame cannot prevail on its U.C.C. § 4A-
204(a) claim against Chain Bridge. In Count II of the complaint, Blue Flame asserts a
claim under that statute related to Chain Bridge’s decision to return California’s funds to
JPMorgan. This provision provides, in relevant part, that:
If a receiving bank accepts a payment order issued in the name of its customer
as sender which is (i) not authorized and not effective as the order of the
customer under section 4A-202, or (ii) not enforceable, in whole or in part,
against the customer under section 4A-203, the bank shall refund any
payment of the payment order received from the customer to the extent the
bank is not entitled to enforce payment and shall pay interest on the
refundable amount calculated from the date the bank received payment to the
date of the refund.
U.C.C. § 4A-204(a).
To prevail on its U.C.C. § 4A-204(a) claim, Blue Flame must show that Chain
Bridge, in the capacity of a receiving bank, accepted a payment order issued in Blue
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Flame’s name as sender, to return California’s funds. We agree with the district court that
Blue Flame cannot make this showing for several reasons.
First, the record shows that the payment order generated to return California’s funds
was issued—rather than accepted—by Chain Bridge, at the request of JPMorgan. This
payment order states that Chain Bridge is returning California’s funds pursuant to
JPMorgan’s request. JA2214 (Chain Bridge’s Fedwire message to JPMorgan stating that
the action was taken “PER YOUR REQUEST.”). The record also makes clear that
JPMorgan is identified as the “receiving bank” for this payment order. JA2216. Given
this, the undisputed evidence in the record shows that Chain Bridge did not accept the
payment order generated to return California’s funds in the capacity of a receiving bank.
Second, the undisputed record evidence makes clear that the payment order
returning California’s funds was not issued in the name of Blue Flame as sender. Rather,
the record evidence shows that Blue Flame is identified as the “originator” of the funds
transfer for this payment order. JA2216. 2
2
Blue Flame argues that § 4A-204(a) applies even though the purchase order does not list
Blue Flame as the sender, because Chain Bridge purported to accept a payment order
naming it as the original sender of the funds transfer when the bank issued the payment
order to JPMorgan and debited California’s funds from its account. Blue Flame asserts
that a funds transfer requires two payment orders—one from the customer to its bank
ordering a payment and a second from the customer’s bank to the beneficiary actually
sending the money. So, when Chain Bridge issued a payment order to JPMorgan’s bank it
was necessarily purporting to accept a payment order from Blue Flame and was fulfilling
its duty to issue the second. This argument is without merit. What occurred here was not
a funds transfer, but a cancellation, albeit an ineffective one. A cancellation does not
require two payment orders, only “a communication of the sender of a payment order
cancelling or amending the order . . . transmitted to the receiving bank . . . and the receiving
bank’s “agree[ment] to the cancellation of amendment.” U.C.C. § 4A-211(a). Chain
(Continued)
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Given this, we agree with the district court that the undisputed record evidence
shows that Chain Bridge did not accept the payment order returning California’s funds in
the capacity of a receiving bank, and that this payment order was not issued in the name of
Blue Flame as sender. Accordingly, we affirm the district court’s decision to grant
summary judgment in Defendants’ favor on Blue Flame’s U.C.C. § 4A-204(a) claim.
B.
We also agree with the district court that Blue Flame’s state law claims for
conversion, fraud, constructive fraud, negligence and breach of contract are preempted by
Article 4A of the Uniform Commercial Code (“Article 4A”). In Counts III, VI, VII, VIII,
and X of the complaint, Blue Flame asserts that these state law claims against Chain Bridge
relate to the return of California’s funds to JPMorgan via Fedwire. JA43 (alleging that
Defendants had no legal justification to remove funds wired by California from Blue
Flame’s account); JA47-52 (alleging that Defendants decided to undo the transaction and
closed Blue Flame’s account without reason and the bank had no right to return funds paid
to Blue Flame). The district court appropriately dismissed these claims, because they are
foreclosed by the “strong doctrine of preemption” for “state causes of action that essentially
overlap or dovetail” with the provisions of Article 4A. JA60.
Bridge did not purport to fulfill a payment order from Blue Flame but complied with
JPMorgan’s refund request. To hold otherwise would mean that a bank violates U.C.C.
§ 4A-204(a) every time it complies with a cancellation and that cannot be true. Section
4A-204(a) is simply inapplicable to this situation.
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The Federal Reserve Act gives the Board of Governors of the Federal Reserve
System (“the Federal Reserve”) the authority to promulgate “regulations governing the
transfer of funds and charges . . . among Federal reserve banks and their branches.” 12
U.S.C. § 248-1; see also id. § 248(i) (allowing the Federal Reserve to make “all rules and
regulations necessary to enable” it to effectively perform its duty to safeguard Federal
Reserve money). Pursuant to that authority, the Federal Reserve promulgated Regulation
J Subpart B to “govern funds transfers through the Fedwire Funds Service.” 12 C.F.R.
§ 210.25(a). Subpart B expressly incorporates the provisions of Article 4A, which
similarly governs funds transfers. Id. In addition, the Federal Reserve’s official
commentary to Subpart B addresses preemption and provides, in relevant part, that:
[R]egulations of the Board may preempt inconsistent provisions of state law.
Accordingly, subpart B of this part supersedes or preempts inconsistent
provisions of state law. It does not affect state law governing funds transfers
that does not conflict with the provisions of subpart B of this part, such as
Article 4A as enacted in any state, as such state law may apply to parties to
funds transfers through the Fedwire Funds Service whose rights and
obligations are not governed by subpart B of this part.
12 C.F.R. pt. 210, subpt. B, app. A, cmt. to § 210.25.
We held in Donmar Enterprises, Inc. v. Southern National Bank of North Carolina,
that Regulation J preempts any state law cause of action premised on conduct falling within
the scope of Subpart B, whether the state law conflicts with, or is duplicative of, Subpart
B. 64 F.3d 944, 949–50 (4th Cir. 1995). In Eisenberg v. Wachovia Bank, N.A., we also
held that determining if a state law claim is preempted by Regulation J turns on whether
the challenged conduct in the state law claim would also be covered under Subpart B. 301
F.3d 220, 223 (4th Cir. 2002).
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The challenged conduct that gives rise to Blue Flame’s state law claims here falls
within the scope of Article 4A and, therefore, Subpart B. Blue Flame challenges
Defendants’ decision to return California’s funds to JPMorgan via Fedwire—specifically
alleging that Defendants had no right to “undo the transaction,” JA48, “remove the funds,”
JA44, and “return the funds,” JA52, and contesting their failure to “process the wire
transfer,” JA50. But U.C.C. § 4A-211 governs the cancellation or amendment of payment
orders, and explains what is necessary for a cancellation to be “effective.” U.C.C. § 4A-
211. U.C.C. § 4A-404 also addresses the obligation of the beneficiary’s bank to pay the
beneficiary once the bank accepts a payment order on the beneficiary’s behalf. As we
discuss below, this statute also provides a remedy—consequential damages—if the bank
refuses to pay the beneficiary, absent effective cancellation. U.C.C. § 4A-404(a). These
provisions directly cover Chain Bridge’s decision to withhold and return California’s funds
via Fedwire pursuant to JPMorgan’s refund request. In fact, as will also be discussed
below, the district court concluded that JPMorgan’s refund request was not an effective
cancellation and Chain Bridge, therefore violated § 4A-404(a), by failing to pay Blue
Flame, confirming our conclusion this statute envelops the challenged conduct.
Accordingly, we agree with the district court that Blue Flame’s state law claims for
conversion, fraud, constructive fraud, negligence and breach of contract relate to conduct
that falls within the scope of Subpart B, and we affirm the district court’s holding that these
claims are, therefore, preempted. Eisenberg, 301 F.3d at 223; see also U.C.C. § 4A-102
cmt. (Article 4A preempts other law “in any situation covered by [its] particular
provisions”).
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C.
We also agree with the district court that Blue Flame has not established damages
to support its U.C.C. § 4A-404(a) claim, because the record evidence shows that California
would have canceled its contract with Blue Flame even if its funds had not been returned
to JPMorgan via the Fedwire transfer.
The district court concluded that, although Chain Bridge violated § 4A-404(a) by
returning California’s funds to JPMorgan, Blue Flame could not establish that it sustained
any damages from the return of these funds. JA3083. The district court reached this
conclusion for two independent reasons.
First, the district court found that the evidence showed that California would have
ended its relationship with Blue Flame even if Chain Bridge had released the funds,
because Blue Flame could not fulfill the contract. JA3083-84. Second, the district court
also found that there was no evidence in the record that Blue Flame would have
successfully fulfilled California’s order, even if Blue Flame had received the funds.
JA3085. Because we agree that the record evidence shows that California would have
canceled its contract with Blue Flame, even if its funds had not been returned, we affirm
the district court’s grant of summary judgment on this claim.
We first observe that California had the right to terminate its contract with Blue
Flame for convenience. The record shows that California’s purchase order with Blue
Flame allows the State to terminate the order “for its convenience,” if termination is “in
the State’s interest.” JA1165. The purchase order also requires that, upon notice of
termination, Blue Flame must stop work on the order. JA1165.
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The record evidence also shows that, once California officials became aware of Blue
Flame’s origins, California immediately asked for its funds back. Notably, the record
shows that almost immediately after the wire transfer was sent to Chain Bridge, JPMorgan
reached out to California officials to inform them of Blue Flame’s new creation and lack
of experience. JA920. Chain Bridge had a similar conversation with California officials
within an hour of receiving the wire transfer. JA1048-49; JA1054. The record also shows
that JPMorgan initiated a fraud investigation regarding the wire transfer and that Chain
Bridge promptly put a hold on the wired funds upon receipt. JA920; JA1016. Shortly
thereafter, Chain Bridge returned California’s funds to JPMorgan. JA1075-76.
The record evidence also makes clear that California did not intend to proceed with
its contract with Blue Flame. After learning of Blue Flame’s origins, California promptly
“requested the funds be recalled,” without knowing that JPMorgan had already received its
funds back. JA0916; JA1079. The record also shows that, on the same day that
California’s funds were returned to JPMorgan, a California Department of General
Services employee sent an email to multiple California employees stating that: “Funds are
with [the State Treasurer’s Office]. After further discussion we won’t be moving forward
with the vendor.” JA1079. While California never explicitly canceled the purchase order
with Blue Flame, Mike Gula testified that it “was clear” that the “deal was canceled by
[California’s] actions.” JA0561. This testimony is substantiated by other evidence in the
record showing that, following the return of its funds, California declined Blue Flame’s
further attempts at negotiation and sent Blue Flame’s correspondence to the FBI. JA2712-
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14. Given this, the record evidence shows that California would have terminated its
contract with Blue Flame before Blue Flame could have filled any orders for face masks.
Lastly, the record evidence also makes clear that California would have requested
the return of its funds before the funds would have been released to Blue Flame. Chain
Bridge’s CEO, John J. Brough, testified that Chain Bridge had an internal policy for new
customer accounts that allowed it to hold funds transfers for one day after receipt. JA188.
Pursuant to this policy, Chain Bridge would have held California’s funds until the next day,
if the bank had not returned the funds to JPMorgan. 3 JA191-92. As discussed above, the
record evidence makes clear that, within this time frame, California would have requested
the return of its funds and decided not to move forward with its contract with Blue Flame.
JA916; JA1079. Accordingly, Blue Flame would not have had the opportunity to fill any
part of California’s order, because California would have canceled the contract and Blue
Flame would have been required to immediately stop work on the purchase order pursuant
to the contract’s terms. JA1165.
Because the evidence shows that California would have ended its relationship with
Blue Flame, even if Chain Bridge had released its funds, we affirm the district court’s
decision that Blue Flame cannot establish damages for its U.C.C. § 4A-404(a) claim. 4
3
At his deposition, Chain Bridge’s CEO, John J. Brough, testified that Chain Bridge would
have held the relevant funds until the next day regardless of JPMorgan’s recall, pursuant
to the bank’s policy. JA191-92.
4
Blue Flame argues that the district court prematurely granted summary judgment on its
damages claim, because there is a genuine issue of material fact in dispute regarding
whether it could have completed the purchase order with California. Appellant’s Br. at 49-
(Continued)
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We also find Blue Flame’s argument that it is entitled to recover the amount of
California’s wire payment as damages under U.C.C. § 4A-404(a) to be unpersuasive. Blue
Flame argues that Chain Bridge was required to pay it the full amount of California’s wire
transfer, because JPMorgan’s cancellation of the wire transfer was not effective and U.C.C.
§ 4A-404(a) requires a bank to pay the beneficiary, absent an effective cancellation.
Appellant’s Br. at 54-55. This statute provides that: “[t]he right of a beneficiary to receive
payment and damages as stated in subsection (a) may not be varied by agreement.” U.C.C.
§ 4A-404(c).
Blue Flame argues that the statute establishes both a right to receive payment and
its damages in this case. We disagree.
We read this statute to simply recognize a beneficiary’s right to payment and the
right of the beneficiary to recover any damages resulting from a bank’s refusal to make a
payment. But we find no statutory right in § 4A-404(a) to receive the amount of the
payment itself as damages, regardless of whether the beneficiary incurred actual
consequential damages.
In fact, the plain language of § 4A-404(a) provides that, if the bank refuses to pay,
“the beneficiary may recover damages resulting from the refusal[.]” U.C.C. § 4A-404(a)
(emphasis supplied). The official comments to the statute confirm our reading of the statute
and state that a refusal to pay the beneficiary “may result in consequential damages.” Id.
54. But, there is no material dispute of fact in the record as to whether California would
have canceled the contract. Accordingly, we need not address whether Blue Flame had the
capability to fill the contract to resolve this claim.
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§ 4A-404 cmt. 3 (emphasis supplied). Given this, we conclude that Blue Flame is not
entitled to receive the amount of California’s funds as damages under U.C.C. § 4A-404(a),
absent proof of actual damages caused by the return of these funds. Accordingly, we affirm
the district court’s grant of summary judgment on this claim.
D.
We also affirm the district court’s dismissal of Blue Flame’s tortious interference
claim, because Blue Flame has not established a valid contract with California. Blue Flame
argues that California’s decision to back out of its contract with Blue Flame, after receiving
calls from Chain Bridge, shows that Chain Bridge interfered with its contract and business
expectancy. Appellant’s Br. at 56. The district court granted summary judgment in
Defendants’ favor on these claims for three independent reasons.
First, the district court found that there were issues with the validity of the
contractual relationship and business expectancy between Blue Flame and California,
given Blue Flame’s “apparent initial misrepresentation to California authorities.” JA3090.
Second, the district court found insufficient evidence to conclude that Chain Bridge had an
“intent to disturb” the business relationship between Blue Flame and California. JA3090-
91. Lastly, the district court found insufficient evidence in the record to show that Blue
Flame could have fulfilled California’s order and that California would not have cancelled
the contract and insisted on the return of its funds. JA3091.
Because we agree that Blue Flame has not established a valid contractual
relationship with California in this case, we affirm the district court’s grant of summary
judgment on Blue Flame’s tortious interference claims.
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To prevail on a tortious interference claim based upon interference with a contract
or business expectancy, Blue Flame must show, among other things, the existence of a
valid contract or business expectancy. Chaves v. Johnson, 335 S.E.2d 97, 102 (Va. 1985).
The record shows that Blue Flame did not argue that it had a valid contractual relationship
with California before the district court. JA11. Rather, Blue Flame argued that the parties
stipulated that there was an agreement and that this stipulation established a valid
contractual relationship. JA11; see also Appellant’s Br. at 55.
The record evidence makes clear, however, that the parties stipulated only that there
was an agreement between Blue Flame and California. JA139. Accordingly, there is no
stipulation in the record that this agreement was valid. JA139.
Blue Flame argues on appeal that reversal of the district court’s decision is,
nonetheless, required, because the district court failed to properly address the validity of
its contract with California. Blue Flame’s Reply Br. at 27. But, by failing to raise this
issue before the district court, or in its opening brief, Blue Flame has waived this argument.
See Belk, Inc. v. Meyer Corp., 679 F.3d 146, 153 n.6 (4th Cir. 2012) (concluding the
appellant waived an argument “by inadequately presenting the challenge in its opening
brief”); see also Fed. R. App. P. 28(a)(8). Accordingly, we affirm the district court’s
dismissal of Blue Flames’ tortious interference claims, because Blue Flame has not
established a valid contractual relationship with California. 5
5
Because we conclude that Blue Flame fails to establish a valid contract with California,
we need not reach Blue Flame’s argument that the district court erred by entering summary
judgment in favor of Chain Bridge on its U.C.C. § 4A-404(a) and tortious interference
claims.
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E.
As a final matter, we agree also with the district court that JPMorgan is obligated to
indemnify Chain Bridge for the loss and expenses resulting from the return of California’s
funds under U.C.C. § 4A-211(f). This provision provides that:
Unless otherwise provided in an agreement of the parties or in a funds-
transfer system rule, if the receiving bank, after accepting a payment order,
agrees to cancellation or amendment of the order by the sender or is bound
by a funds­transfer system rule allowing cancellation or amendment without
the bank’s agreement, the sender, whether or not cancellation or amendment
is effective, is liable to the bank for any loss and expenses, including
reasonable attorney’s fees, incurred by the bank as a result of the cancellation
or amendment or attempted cancellation or amendment.
U.C.C. § 4A-21l(f). The official comments to U.C.C. § 4A-211 also explain that:
If a receiving bank agrees to cancellation or amendment under subsection
(c)(1) or (2), it is automatically entitled to indemnification from the sender
under subsection (f). The indemnification provision recognizes that a sender
has no right to cancel a payment order after it is accepted by the receiving
bank. If the receiving bank agrees to cancellation, it is doing so as an
accommodation to the sender and it should not incur a risk of loss in doing
so.
Id. at cmt. 5.
The record evidence shows that Chain Bridge accepted the payment order wiring
California’s funds to Blue Flame’s account in the capacity of the receiving bank. JA936-
37. Shortly thereafter, Chain Bridge agreed to return these funds to JPMorgan, at
JPMorgan’s request. JA2214. Because the record evidence shows that Chain Bridge, in
the role of the receiving bank, accepted the payment order wiring California’s funds to
Blue Flame, and that Chain Bridge subsequently agreed to the cancellation of this payment
order at JPMorgan’s request, U.C.C. § 4A-211(f) governs the parties’ obligations with
regards to indemnification.
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On appeal, JPMorgan advances the same three arguments that it unsuccessfully
raised before the district court to argue that it has no obligation to indemnify Chain Bridge
under § 4A-211(f). Namely, that: (1) § 4A-211(f) is not applicable, because Chain Bridge
cancelled the payment order wiring California’s funds to Blue Flame’s account for its own
reasons; (2) the parties agreed that JPMorgan would not indemnify Chain Bridge,
displacing automatic indemnification; and (3) Chain Bridge cannot establish that its
claimed loss and expenses were caused by JPMorgan’s conduct. We find these arguments
unpersuasive.
First, as discussed above, the record evidence makes clear that JPMorgan cancelled
the payment order wiring California’s funds when it sent a message to Chain Bridge via
Fedwire asking for the return of these funds. JA1064-65. We also agree with the district
court that U.C.C. § 4A-211(f) does not impose any requirement that Chain Bridge
accommodate this cancellation request solely to benefit JPMorgan. There is no language
within § 4A-211(f) that requires the receiving bank to have a certain subjective motivation
when accepting cancellation. In fact, as the commentary to § 4A-211(f) notes, when a
receiving bank agrees to a cancellation, it does so “as an accommodation to the sender”
and is “automatically entitled to indemnification,” because a receiving bank is never
required to agree to cancellation once it has accepted the original payment order. U.C.C.
§ 4A-211(f) cmt. 5 (emphasis added). The use of the word “automatically” in the official
comment to this statute also suggests that indemnification is certain, regardless of the
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circumstances. 6 Given this, JPMorgan is not relieved of its obligation to indemnify Chain
Bridge under U.C.C. § 4A-211(f), even if Chain Bridge had its own reasons for agreeing
to the cancellation of the payment order.
Second, JPMorgan’s argument that the parties reached an agreement to displace the
automatic indemnification default rule under U.C.C. § 4A-211(f) is unsubstantiated.
JPMorgan correctly observes that it would not be obligated to indemnify Chain Bridge if
the parties agreed to displace this default rule. But, JPMorgan’s reliance upon an internal
Chain Bridge phone call to show that Chain Bridge and JPMorgan reached such an
agreement is misplaced. 7 We agree with the district court that this internal phone call
among Chain Bridge employees does not establish a meeting of the minds between Chain
6
JPMorgan argues that common law indemnification principles apply and support its
argument. Notably, the Uniform Commercial Code provides that “[u]nless displaced by
the particular provisions of [the U.C.C.], the principles of law and equity . . . supplement
its provisions.” U.C.C. § 1-103(b). Under common law indemnification principles, an
indemnitee whose liability is “technical, passive or secondary” can shift “the burden for
the entire loss . . . to the indemnitor whose actual fault caused the injury.” White v. Johns-
Manville Corp., 662 F.2d 243, 249–50 (4th Cir. 1981). Where an indemnitee “active[ly]”
caused the injury, “an essential predicate to the[] right to indemnification is necessarily
missing.” Id. at 250. However, we conclude that the § 4A-211(f) displaces common law
principles by allowing for automatic indemnification. See Banca Commerciale Italiana v.
N. Trust Int’l Banking Corp., 160 F.3d 90, 94 (2d Cir. 1998) (noting that § 4A-211 does
not require the plaintiff to meet common law indemnification elements).
7
During this internal phone call, a Chain Bridge employee (Claudia Mojica-Guadron)
asked, “Are we getting an indemnity letter from [JPMorgan]?” Evinger or Brough
responded: “They’re sending a recall notice through Fed[Line] . . . just return it to the
same place it came from.” JA346. Another Chain Bridge employee then asked, “Claudia,
you mentioned the indemnity letter, is that part of the procedures usually?” Mojica-
Guadron replied: “Normally you want to get that from the other bank, just because, and
in this case because we credited the customer’s account.” Evinger or Brough then cut
in and said: “It’s okay, don't worry about it . . . It is what it is.” Id.
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Bridge and JPMorgan regarding indemnification. In fact, JPMorgan was not even aware
of the conversation until this litigation ensued. JA3094; see also U.C.C. § 1-201(b)(3) (an
agreement could include a “bargain of the parties in fact, as found in their language or
inferred from other circumstances, including course of performance, course of dealing, or
usage of trade”).
Finally, we agree with the district court that this litigation is evidence of the loss
and expenses that Chain Bridge has incurred due to JPMorgan’s request for the return of
California’s funds. Accordingly, we affirm the district court’s decision that JPMorgan must
indemnify Chain Bridge under U.C.C. § 4A-211(f).
IV.
For the reasons set forth herein, we affirm the district court’s grant of summary
judgment in Defendants’ favor on Blue Flame’s U.C.C. § 4A-204(a) claim and Blue
Flame’s state law claims for conversion, fraud, constructive fraud, negligence and breach
of contract. We also affirm the district court’s grant of summary judgment in favor of
Defendants on Blue Flame’s U.C.C. § 4A-404 and tortious interference claims. Lastly, we
affirm the district court’s grant of summary judgment in Chain Bridge’s favor on its claim
that JPMorgan is obligated to indemnify Chain Bridge under U.C.C. § 4A-211(f).
AFFIRMED.
26