DEBORAH A. BATTS, District Judge.
On June 13, 2017, Plaintiff Coastal Investments Partners, LLC filed a Complaint and Motion for a Preliminary Injunction seeking conversion of the principal amount of three notes issued by it to Defendant DSG Global, Inc. into common stock of DSG Global, Inc. Specifically, Plaintiff brings causes of action for injunctive relief, seeking to require Defendant to comply with the conversion notice (Count I); declaratory relief, seeking a ruling that the three notes are enforceable (Count II); and breach of contract related to the notes and a securities purchase agreement (Count III). In response, Defendant filed a Cross Motion to Dismiss, asserting that the notes in question are usurious and thus void under New York law. The Court denied Plaintiff's Motion for a Preliminary Injunction on July 31, 2017. The Court now addresses Defendant's Cross Motion to Dismiss. For the following reasons, the Court DENIES the Motion.
The parties entered into a series of Agreements on November 7, 2016: the Securities Purchase Agreement (the "SPA") and three convertible promissory notes with principal amounts of $138,889.89 (Decl. Bob Silzer in to Opp. Prelim. Inj. And in Supp. of Cross-Mot. to Dismiss ("Silzer Decl.") Ex. 1 (the "$138,888.89 Note")), $72,500 (Silzer Decl. Ex. 2 (the "$72,500 Note")), and $50,000 (Silzer Decl. Ex. 3 (the "$50,000 Note")) (collectively, the "Notes"). (Compl. ¶ 1.) The Notes had a maturity date of May 7, 2017 but have not been repaid. (
The $138,888.89 Note had a purchase price of $125,000 and a principal amount of $138,888.89. ($138,888.89 Note at 1.) In other words, Defendant received $125,000 from Plaintiff, with an original issue discount ("OID") of $13,888.89.
The $72,500 Note had a purchase price of $10,000 and a principal amount of $72,500. ($72,500 Note at 1.) On this Note, Defendant received $10,000 from Plaintiff, with an OID of $62,500. It also sets forth an 8% annual interest rate. (
The $50,000 Note had a purchase price of $10,000 and a principal amount of $50,000. ($50,000 Note at 1.) Put another way, Defendant received $10,000 from Plaintiff, with an OID of $40,000. Like the other two, it sets forth an 8% annual interest rate. (
The Notes shared several commonalities. On their face, the $72,500 and $50,000 Notes discuss a larger series of financial transactions. The $72,500 Note states that $62,500 of the $72,500 Note "may be redeemed by [Defendant] for $1.00 at any time prior to the Maturity Date in the event that [the $138,888.89 Note] is exchanged or otherwise into a revolving credit facility, with the balance of $10,000 being rolled into that same credit facility." ($72,500 Note at 1.) The $50,000 Note states that it presents a commitment by Defendant to complete the closing of a $5,000,000 equity purchase agreement with Plaintiff. ($50,000 Note at 1.) It further provides that if Defendant does not complete a registration statement within 30 days of the equity purchase agreement, the principal amount of the Note "shall automatically increase by $25,000," and if the registration statement is not declared effective by the SEC within 120 days of the equity purchase agreement, the principal amount of the Note "shall automatically increase by an additional $25,000." (
Each Note contains a prepayment penalty. If Defendant were to prepay the Note, it would have to pay 1.2 times the principal amount, or 1.35 times the principal in the case of default. ($138,888.89 Note § 2(b); $72,500 Note § 2(b); $50,000 Note § 2(b)
Section 4 of the Notes details how the note is convertible into stock: it is "convertible, in whole or in part, into shares of Common Stock at the option of [Plaintiff]" after Plaintiff delivers a notice of conversion. ($138,888.89 Note § 4(a); $72,500 Note § 4(a); $50,000 Note § 4(a).) Section 4(b) provides for the conversion price. ($138,888.89 Note § 4(b); $72,500 Note § 4(b); $50,000 Note § 4(b).) In accordance with the conversion provisions, Defendant's "obligations to issue and deliver the Conversion Shares upon conversion of this Note . . . are absolute and unconditional." ($138,888.89 Note § 4(c)(iv); $72,500 Note § 4(c)(iv); $50,000 Note § 4(c)(iv).) Failure to deliver the shares constitutes a default and subjects Defendant to various penalties. ($138,888.89 Note §§ 4(c)(iv), 6(a)(ix), 6(b); $72,500 Note §§ 4(c)(iv), 6(a)(ix), 6(b); $50,000 Note §§ 4(c)(iv), 6(a)(ix), 6(b).)
The Notes also contain severability or usury savings clauses, which state that "any interest or other amount deemed interest due hereunder violates the applicable law governing usury, the applicable rate of interest hereunder shall automatically be lowered to equal the maximum rate of interest permitted under applicable law." ($138,888.89 Note § 7(f); $72,500 Note § 7(f); $50,000 Note § 7(f).)
Plaintiff submitted a notice of conversion to Defendant on May 25, 2017, seeking to convert $57,000 into 1,140,000 shares of Defendant's common stock. (Compl. ¶ 18; Miles Riccio Decl. in Supp. of Order to Show Cause for Prelim. Inj. ("Riccio Decl.") Ex. F.) Defendant, however, has not delivered any shares to Plaintiff and has expressly refused to honor the conversion notice. (Compl. ¶¶ 19-20; Riccio Decl. Ex. G.)
Plaintiff filed suit on June 13, 2017. The same day, in addition to delivering its Complaint to Chambers, Plaintiff delivered an Order to Show Cause for Preliminary Injunction, which was subsequently signed by the Court on June 27, 2017. (ECF No. 5.) Plaintiff subsequently filed its Preliminary Injunction papers via ECF on July 11, 2017. The Court held a Preliminary Injunction Hearing on July 26, 2017. The Motion papers, the Hearing, and the Court's subsequent Memorandum & Order denying the Preliminary Injunction primarily focused on the solvency of Defendant's business. Plaintiff's attorney conceded that the subsequent transactions contemplated in the Notes related to the revolving credit facility were never consummated. (Tr. 6::6-13.)
Defendant seeks to dismiss Plaintiff's Complaint on the ground that the Notes are criminally usurious as a matter of law. It offers several reasons why the Notes are usurious: (1) looking at the original issue discounts, the Court should look to the amount actually received pursuant to the Notes, making the interest rate in excess of the statutory rate; (2) the reservation of shares make the Notes usurious; (3) the default interest rate makes the Notes usurious because the stock discount is disguised interest; and (4) that the prepayment penalties violate the usury laws. Defendant argues that criminally usurious notes are void
For a complaint to survive a motion brought pursuant to Federal Rule of Civil Procedure 12(b)(6), the plaintiff must have pleaded "enough facts to state a claim to relief that is plausible on its face."
In considering a Rule 12(b)(6) motion, the Court must accept as true all factual allegations set forth in the complaint and draw all reasonable inferences in favor of the plaintiff.
As an initial matter, Defendant seeks to introduce many exhibits, attached to the Declaration of Bob Silzer, Defendant's Chief Executive Officer, in support of its Motion to Dismiss. The Notes are expressly incorporated by reference in the Complaint (
"When interpreting contracts, it is accepted that separate agreements executed contemporaneously and that are part of a single transaction are to be read together."
Under New York Penal Law § 190.40, a loan is criminally usurious when the lender "charges . . . as interest on the loan. . . a rate exceeding twenty-five per centum per annum or the equivalent rate for a longer or shorter period." N.Y. Penal Law § 190.40.
Defendant argues that the Notes are usurious on their faces because of the original issue discounts. Plaintiff argues, because the Notes contemplated a larger transaction involving an equity line of credit and a revolving line of credit to Defendant, Defendant had the option to repay the loan at a nonusurious rate. It also argues that whether Plaintiff had the requisite usurious intent is an issue of fact.
Factoring in the original issue discount, although the Notes indicate on their faces that Defendant received $145,000 from Plaintiff, there was an outstanding principal of $261,388.90. It is possible that an original issue discount could render a loan usurious.
Furthermore, the Court views the Notes together, and they plainly contemplate a larger series of transactions, including the possibility of a revolving credit facility. It may be that Plaintiff would not have entered into the Notes and agreed to negotiate a revolving credit facility absent the OID. This is speculative. This issue relates to Plaintiff's intent at the time it entered into the Notes as well as the adequacy of consideration. In general, it is inappropriate for a court to probe into the adequacy of consideration,
Defendant also argues that the Notes are criminally usurious because they require Defendant to reserve shares as security for the loans to set aside for the conversion option. Although the Court has previously stated it will not consider Exhibits 4 or 8 to the Silzer Declaration, it accepts, for the purpose of this argument, that Defendant was required to reserve 22,000,000 shares with a value of $2,640,000. The Court makes no finding as to the number or value of the shares at this time.
In support of its argument, Defendant cites New York General Obligations Law § 5-511, which states that "[a]ll . . . notes . . . whereupon or whereby there shall be reserved or taken, or secured or agreed to be reserved or taken, any greater sum, or greater value, for the loan or forbearance of any money, goods or other things in action, than is prescribed in section 5-501, shall be void." Section 5-501 is New York's civil usury statute, which prohibits a lender from collecting on a loan with interest payment exceeding 16% per annum. N.Y. Gen. Oblig. Law § 5-501;
This argument fails though because, on its face, § 5-511 applies to civil, not criminal usury. Corporations, including Defendant in this action, cannot assert a civil usury defense.
Defendant next argues that the default provisions cause the Notes to violate the criminal usury laws. The Notes provide that, following default, interest will accrue at a "rate equal to the lesser of 1.5% per month (18% per annum) or the maximum rate permitted under applicable law." (
Defendant asserts that when read in conjunction with the OID, the default interest rate is actually 58%. Defendant's argument fails for the same reasons that the Court rejects its arguments with respect to the original issue discount. On its face, an 18% interest rate is not criminally usurious.
Defendant also argues that the default interest rate is actually higher than the stated 18% because of the discount on share conversions. The Notes provide that, in the event of default, Plaintiff may require Defendant to "convert all or any part of this Note into Common Stock at the Alternate Conversion Price." (Ex. 1 § 4(b).) The Alternate Conversion price is defined as "the lesser of (i) the closing price of the Common Stock on the issuance date of the Note or (ii) 80% of the lowest traded price in the fifteen (15) Trading Days prior to the Conversion Date." (
The Court adopts Judge Marrero's reasoning in
For example, although Defendant indicates that its stock was priced at $0.12 per share at the time the Notes were issued, it is unclear what the lowest traded price of the stock was in the 15 days prior to the conversion date. Defendant has submitted some evidence related to its stock price, but it is not for the applicable time period and the Court has declined to consider it.
Defendant also argues that because Plaintiff forced it to pay $27,000 in legal fees, the Notes were usurious. Defendant cites no law for this proposition. To the contrary, "a borrower may pay reasonable expenses attendant on a loan without rendering the loan usurious."
Defendant has not argued here that the $27,000 in attorneys' fees were not expenses associated with the Notes. There is little documentation before the Court as to what the $27,000 in fees were for. This is an issue of fact that the Court will not address on a Motion to Dismiss.
Accordingly, the Court rejects Defendant's argument that the default provisions render the Notes usurious.
Finally, Defendant argues that the prepayment penalties contained in the Notes render them usurious. The Notes provide that if Defendant opts to prepay the Note, it must pay Plaintiff 1.20 times the outstanding principal amount. (Ex. 1 § 2(b).) In the event of default, Defendant must pay the outstanding principal amount multiplied by 1.35. (
Defendant's argument fails for two reasons. First, prepayment is a contingency within Defendant's control.
Accordingly, Defendant's Motion is also denied on this basis. Because the Court has determined that the Notes are not criminally usurious as a matter of law, it need not determine whether criminally usurious notes are void
For the foregoing reasons, Defendant's Motion to Dismiss is DENIED.
SO ORDERED.