rv)r---5amlawdaily.typepad.com/kanas.pdf · this complaint arises from defendants' unlawful...

Case 1:11-cv-00750-LO -TRJ Document 1 Filed 07/14/11 of 31 PagelD# 1

I I r7.7 7-11

IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISIONH

Capital One Financial Corporation,1680 Capital One Drive 7

McLean, Virginia 22102

Plaintiff,

V.

John A. Kanas,32 Adelaide Avenue Civil Action No.East Moriches. New York 11940

JURY TRIAL LD rV)R---5and DEMANDED

John Bohlsen,135 The HelmEast Islip, New York 11730

Defendants.

COMPLAINT

Plaintiff, Capital One Financial Corporation ("Capital One" or "the Company"), by and

through its undersigned counsel, for its Complaint against Defendants John A. Kanas and John

Bohlsen (collectively, "Defendants"), hereby states as follows:

INTRODUCTION

1. This complaint arises from Defendants' unlawful efforts to compete with Capital

One in direct violation of Defendants' contractual obligations. In connection with the 2006

merger between Capital One and North Fork Bancorporation, Inc. ("North Fork"), Kanas and

Bohlsen—who had previously served as senior executives and members of the Board of

Directors ofNorth Fork—received millions of dollars in exchange for their promise not to

compote with Capital One in New York, New Jersey, and Connecticut ("Tristate Area").


Unfortunately, Defendants have chosen to dishonor their promise by doing the very thing they

pledged not to do. These non-compete restrictions that Defendants have now disregarded were

carefully negotiated and were specifically designed and narrowly tailored to protect the goodwill,

customer and employee relationships, and confidential information that Capital One purchased as

part of its acquisition ofNorth Fork and that Defendants further developed through their service

as senior executives and, in Kanas's case, a director of Capital One following the merger.

Capital One has fully honored these agreements, while Defendants have engaged and are

continuing to engage in a pattern of conduct designed to evade these contractual promises and to

compete directly with Capital One. Capital One welcomes legitimate competition, but it rightly

expects all parties to comply with non-compete agreements negotiated in good faith.

2. After resigning their employment with Capital One, Defendants initiated their

scheme to compete with Capital One by purchasing BankUnited, Inc. ("BankUnited"), a Florida-

based bank, that now manages and offers competing banking products in the Tristate Area.

Defendants then implemented a plan to use BankUnited to expand their prohibited competitive

activities in New York. Indeed, Defendants made repeated public statements in the press and in

reports filed with the U.S. Securities and Exchange Commission in which they indicated their

plans to expand their Northeastern banking presence and thereby compete with Capital One.

Most recently, Defendants expanded their competitive activities by negotiating and planning the

acquisition of the New York-based Herald National Bank ("Herald National"), and are

attempting to conceal their improper involvement by implementing a novel reporting

arrangement that, if employed, would amount to little more than a sham. Defendants also have

taken other significant steps to expand BankUnited's business presence in New York by, among

other things, making a bid on a commercial loan portfolio and taking steps to establish new

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branch locations in the Tristate Area, including securing a lease on branch space at 960 6th

Avenue in Manhattan (fewer than 600 feet from a Capital One branch). By conducting these

activities, Defendants have reneged on their contractual obligations to Capital One by seeking to

reacquire, without cost or compensation, the goodwill purchased by Capital One as part of the

2006 merger, for which Defendants were handsomely compensated.

3. In fact, because Kanas is the CEO, President, and Chairman ofBankUnited, the

bank cannot acquire Herald National without Kanas providing services to Herald National as

required by the Bank Holding Company Act and Sarbanes-Oxley, regardless of whatever form

the acquisition takes.

4. Capital One seeks injunctive relief enforcing the clear terms ofthe non-

competition covenants to which Defendants agreed, including the contractually stipulated

extension of these provisions until at least 2013. Capital One also seeks compensatory damages

including the loss of goodwill caused as a result of Defendants' improper competitive activity.

Finally, Capital One seeks disgorgement of the value of the common stock provided to

Defendants in consideration for their non-compete assurances, as Defendants' acts have

frustrated the legitimate business purposes of these agreements.

PARTIES

5. Capital One is a corporation organized under the laws of the state ofDelaware,

with its principal place of business at 1680 Capital One Drive, McLean, Virginia 22102.

6. Upon information and belief, Defendant Kanas resides at 32 Adelaide Avenue,

East Moriches, New York 11940. Upon information and belief, Defendant Bohlsen resides at

135 The Helm, East Islip, New York 11730.


JURISDICTION AND VENUE

7. This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1332(a).

Capital One and Defendants are citizens of different states, and the matter in controversy exceeds

$75,000, exclusive of interest and costs.

This Court has personal jurisdiction over Defendants Kanas and Bohlsen pursuant

to VA Code 8.01-328.1(A)(1), 8.01-328.1(A)(2), because they have transacted business in

Virginia in connection with the allegations herein. Personal jurisdiction is proper under CFA

Institute v. Institute ofChartered Financial Analysts ofIndia, 551 F.3d 285 (4th Cir. 2009).

9. Venue in this District is proper under 28 U.S.C. 1391(a)(2) because a substantial

part of the events or omissions giving rise to the claims occurred at the offices ofCapital One in

McLean, Virginia.

FACTUAL ALLEGATIONS

10. Capital One is a financial holding company whose subsidiaries include Capital

One, N.A., and Capital One Bank (USA), N.A. As of December 31, 2010, Capital One and its

subsidiaries had $122.2 billion in deposits and $125.9 billion in managed loans outstanding.

Headquartered in McLean, Virginia, Capital One offers a broad spectrum of financial products

and services to individual consumers, small businesses, and commercial clients. These products

include lending and deposit activities, home loan lending and servicing, and commercial real

estate lending and deposit gathering. Capital One has approximately 30,000 employees, more

than 10,000 ofwhom work in Virginia. Capital One, N.A., has branch locations primarily in

New York, New Jersey, Connecticut, the District of Columbia, Louisiana, Maryland, Texas, and

Virginia.

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Merger with North Fork and Defendants' Tenure with Capital One

11. Consumer banking generally consists ofbranch-based lending and deposit

activities offered to individual consumers and small businesses, as well as auto and home loan

lending and servicing activities. Commercial banking generally comprises lending, deposit

management, and treasury management services offered to commercial real estate and middle

market customers.

12. North Fork was a commercial bank that offered these consumer and commercial

banking products from branches in New York, New Jersey, and Connecticut.

13. In March 2006, Capital One and North Fork entered into an agreement and plan

ofmerger wherein North Fork would be merged into Capital One. This stock and cash

transaction—valued at approximately $13.2 billion—was completed on December 1, 2006.

Defendants profited handsomely from the deal. Overall, Kanas personally received more than

$200 million as part of this transaction; Bohlsen personally received more than $100 million.

14. Prior to the merger, Capital One had no commercial or retail banking presence in

the State ofNew York. Through the merger, Capital One acquired North Fork's banking

presence in New York, New Jersey, and Connecticut, along with the goodwill, high-quality

personnel base, and broad spectrum of customers that attended this successful business.

15. At the time of the merger, Kanas was the President, ChiefExecutive Officer, and

Chairman of the Board of Directors ofNorth Fork. Kanas had held these positions for nearly

thirty years, as he cultivated strong relationships in the Northeast region and developed North

Fork into one ofNew York's largest banking institutions. Capital One purchased North Fork in

large part to acquire precisely this business and its goodwill. As described more fully below,

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Capital One insisted upon noncompete protection precisely because it wished to protect the

goodwill it had purchased.

16. After the merger, Kanas became the President of Capital One's banking

operations and served on its Board of Directors. In this position, Kanas received extensive

confidential and proprietary information about Capital One's operations, clients, and customers.

17. As one ofKanas's chief deputies, Bohlsen served on the North Fork Board of

Directors as Vice Chairman for more than fifteen years. He also served on the North Fork

management team at the time it was acquired by Capital One.

18. After North Fork was merged into Capital One, Bohlsen became an Executive

Vice President of Capital One's Banking Business. In that position, he led the Commercial

Banking division of Capital One's banking subsidiary, which included the former North Fork

business. As part ofhis duties in this senior executive role, Bohlsen also was exposed to

extensive confidential and proprietary information about Capital One's operations, clients, and

customers.

19. Throughout their tenure with Capital One, Defendants transacted business in the

Commonwealth of Virginia. As a director of Capital One, Kanas personally attended meetings

of the Capital One Board of Directors, as well as meetings of the Capital One Executive

Committee, which were held at the Corporate Headquarters ofCapital One in McLean, Virginia.

As a senior executive, Bohlsen led Capital One's Commercial Banking Division, including

Capital One Direct Bank in Richmond, Virginia.

Agreements Between Capital One and Defendants

20. On March 12, 2006, simultaneous and in connection with the merger, Kanas and

Bohlsen each executed a binding Restricted Share Agreement ("RSA, attached hereto as

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Exhibits A and B) with Capital One that was contingent on the merger's ultimate consummation.

Kanas and Bohlsen were each represented by experienced counsel. Kanas's agreement granted

to him $24 million in restricted shares of Capital One common stock. Bohlsen's agreement

granted to him $18 million in restricted shares of Capital One common stock. Capital One

provided the common stock to Defendants to ensure their "continued dedication" to Capital One

and to protect the goodwill Capital One had purchased as an essential element of the merger. See

RSA If 2.

21. The RSA provided that the Capital One shares would not vest until the third

anniversary of the effective date of the merger, December 1, 2009, after three years of service by

Kanas and Bohlsen to Capital One. RSA 2. The RSA contained three exceptions that

permitted an accelerated vesting of Defendants' common stock. Id 3. But ifDefendants had

freely terminated their employment with Capital One "without good reason" before three years

had elapsed, they would have lost any right to their respective stock options. Id. 2.

22. In consideration for the common stock, Kanas and Bohlsen each agreed not to

"engage in a Competitive Business (whether as a director, stockholder, investor, member,

partner, principal, proprietor, agent, consultant, officer, employee, or otherwise)" for five years

after ending their employment with Capital One. RSA, Annex B 2(f). The RSA defined

"Competitive Business" as "the business of acquiring and/or managing" "unsecured and secured

credit card accounts, "auto loan receivables and/or accounts, "all commercial and consumer

banking products, and "home equity and mortgage loan receivables and/or accounts and/or

home equity lines of credit." Id, Annex B, Ex. A. These restrictions pertained to geographic

areas ofvaried size, some ofwhich covered the entire United States, Canada, and the United

Kingdom.

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23. The RSA provided that Defendants would be restricted from engaging in such a

Competitive Business if they had "performed services directly concerning that Competitive

Business" for Capital One or "had access or exposure to Confidential Information directly

concerning that Competitive Business" for the two years prior to them leaving Capital One.

RSA, Annex B 2(f). Inherent in their roles as senior executives (and in Kanas's case, also as a

board member), Defendants had constant access to such information, in addition to performing a

wide range of services directly concerning various Competitive Businesses.

24. Each Defendant further covenanted in the RSA "not [to] use for his own benefit

or the benefit of others, in any matter whatsoever, any ofthe Parent's confidential and

proprietary information or trade secrets." RSA, Annex B 1.

25. Pursuant to the RSA, upon leaving Capital One, Defendants would then have been

barred for five years from engaging in a Competitive Business. Because the earliest that

Defendants could leave Capital One and still collect their stock options was December 1, 2009,

the RSA essentially restrained them from competing with Capital One until December 2, 2014, at

the earliest, and thereby protected Capital One's $13.2 billion investment.

26. In July 2007, well before the three-year period of employment required for

Defendants' Capital One common stock to vest under the RSA, Capital One and Defendants

agreed that Defendants could resign early and still see their millions ofdollars in restricted stock

vest. As part of this separation, Capital One and Defendants (who were again represented by

experienced counsel) negotiated a new set of agreements to permit Defendants to end their

employment relationships, while retaining their contractual rights in the RSA to the Capital One

common stock, and to accelerate the date on which those shares vested.

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27. Specifically, on July 9, 2007, the Defendants each entered into a "Separation and

Transition Advisory Services Agreement" ("Separation Agreement, attached hereto as Exhibits

C and D), which superseded the RSA. The Separation Agreements stated that the common stock

provided for in the RSA "shall fully vest and be non-forfeitable and transferable upon the

Separation Date pursuant to Section 2 of the Restricted Share Agreement." Separation

Agreement 2. Instead of vesting on December 1, 2009, as provided for in the RSA, the

restricted shares would vest on August 6, 2007, more than two years early. On August 6, 2007,

Kanas received shares totaling a fair market value of approximately $24.4 million, and Bohlsen

received shares totaling a fair market value of approximately $16.5 million.

28. In addition to expressly permitting the common stock to vest earlier than the RSA

provided, the Separation Agreements narrowed the scope of the restrictive covenants that applied

after Defendants left Capital One's employ. Specifically, pursuant to the terms of the Separation

Agreements, Defendants promised to adhere to the following provisions for a period of five

years (the "Non-Competition Period"):

e. Non-Competition Covenant. In order to protect the Company's legitimatebusiness interests, the Executive agrees that, except as provided below, duringthe Non-Competition Period, he shall not engage in a Competitive Business(whether as a director, stockholder, investor, member, partner, principal,proprietor, agent, consultant, officer, employee or otherwise). The restrictionsof the Non-Competition Covenant apply throughout New York, New Jerseyand Connecticut, regardless of the location from which the Executiveperformed these services for the Company....

Separation Agreement, Annex B 112(e). Section 2b of Annex B defines "Competitive Business":

For purposes of this Annex B "Competitive Business" means the consumer

and commercial banking business engaged in by the Company or anyAffiliated Entity as of the Separation Date, including the business of acquiringand/or managing (whether by use of a sales force, agents, direct mail, thebranch, telemarketing, the Internet or any other channel) all commercial andconsumer banking products (including but not limited to, commercial andindustrial loans, commercial real estate loans, middle market and smallbusiness loans, whether originated directly or indirectly through other lending

9


institutions, and commercial and consumer deposits), in New York, New

Jersey and Connecticut.

Id at I 2(b).

29. Thus, in addition to permitting Defendants' shares granted on December 1, 2006,

to vest on August 6, 2007, instead ofDecember 1, 2009, the Separation Agreement also

accelerated to August 7, 2012, instead of December 2, 2014, the date on which the Defendants

could compete with Capital One. Moreover, the Separation Agreement substantially narrowed

the geographic scope of the non-competition restrictions, as well as the types ofconduct that

would constitute impermissible competition.

30. The Non-Competition Covenant contains three exceptions. The first allows for

"ownership for investment purposes ofnot more than ten percent (10%) of the total outstanding

equity securities (or other interests) of any entity." Separation Agreement, Annex B 2(e). The

second permits "the provision of services to a corporation or other entity, a portion of the

business of which is a Competitive Business, provided that the Executive is not providing

services to the portion of the business which is directly engaged in a Competitive Business." Id.

The third permits "serving as a principal, partner, director, employee, consultant or other advisor

to a private equity firm, investment bank... or hedge fund, provided that such activities do not

involve" advising the firm with respect to Capital One or its subsidiaries. Id.

31. Each Defendant acknowledged in his Separation Agreement that all of the

restrictions set forth in Annex B were reasonable and necessary:

The Executive acknowledges that the restrictions set forth in this Annex B are

necessary to prevent the use and disclosure of the Confidential Information andto otherwise protect the legitimate business interests of the Company. TheExecutive further acknowledges that all of the restrictions in this Annex B are

reasonable in all respects, including duration, territory, and scope ofactivity.... The Executive agrees that he will be able to earn a livelihoodwithout violating this Annex B, including, without limitation, the Non-Competition Covenant contained in Paragraph 2(e) above.

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Separation Agreement, Annex B 5.

32. Defendants consented in the Separation Agreement to injunctive relief in the

event they violated, or threatened to violate, any provision of Annex B:

The Executive acknowledges and agrees that his violation of any provision ofthis Annex B will cause immediate, substantial and irreparable harm to theCompany which cannot be adequately redressed by monetary damages alone.In the event of his violation or threatened violation of any provision of thisAnnex B, the Executive agrees that the Company, without limiting any otherlegal or equitable remedies available to it, shall be entitled to equitable relief,including, without limitation, temporary, preliminary and permanent injunctiverelief, return of confidential property, and specific performance, from any court

of competent jurisdiction.

Separation Agreement, Annex B 6. Defendants also specifically agreed that the

"Non-Competition Period shall be tolled on a day-for-day basis for each day during

which the Executive participates in any activity in violation of the Non-Competition

Covenant so that he is restricted from engaging in the activities prohibited by the Non-

Competition Covenant for the full Non-Competition Period." Id

33. The parties also agreed that the Separation Agreement would "be governed by and

construed in accordance with the laws of the Commonwealth ofVirginia, without reference to

principles of conflict of laws." Separation Agreement 12.

34. Pursuant to paragraph 4(a) of the Separation Agreement, Defendants were

required to provide transition advisory services to Capital One commencing on the separation

date and ending on December 1, 2009. Transition advisory services were defined, in relevant

part, as "the continuation of the Executive's activities for the Company related to client,

customer and community relations, employee retention, business development, credit approval

and such other activities as are reasonably requested by the Company." Separation Agreement

4(a). As part of the consideration for Defendants' provision of these services, Capital One paid

each Defendant $100,000 on July 1, 2008, and $100,000 on December 31, 2008. Id. at 4(b).11


35. Finally, and in addition to accelerating the vesting of Defendants' restricted

shares, substantially narrowing the scope of activities that would constitute impermissible

competition, and paying each Defendant $200,000, Capital One agreed to provide Defendants

with numerous other perquisites and benefits as part of the separation, including continued use of

Manhattan and Long Island office space built to their specifications. Separation Agreement,

Annex A.

36. In exchange for all of these benefits, perquisites, and payments, Defendants were

required to provide limited advisory services to Capital One during their transition out of the

Company and to adhere to the Separation Agreement's reasonable and substantially narrowed

covenant not to compete. Defendants' failure to adhere to the non-compete obligations forms the

basis of this action.

Kanas and Bohlsen Join BankUnited

37. Defendants' pattern of conduct, in service of a scheme that ultimately placed them

in direct competition with Capital One, began in May 2009 (six months before their agreement to

provide advisory services expired), when Defendants, as members of a group of investors,

purchased BankUnited, FSB. At the time of the investment, the Florida-based bank had failed

and was placed in receivership by federal regulators. This investor group agreed to infuse

approximately $900 million to recapitalize the failed bank and reopened it as BankUnited.

38. BankUnited is among the largest independent banks operating in Florida, with

nearly $11 billion in assets and more than eighty branch locations.

39. Upon information and belief, Kanas currently holds more than 5,300,000 shares

ofBankUnited stock, which equates to approximately 5.5% of all outstanding shares. Upon

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information and belief, Bohlsen currently holds more than 2,600,000 shares ofBankUnited

stock, which equates to approximately 2.7% of all outstanding shares.

40. After acquiring BankUnited, Kanas was named Chairman of the Board of

Directors, President, and Chief Executive Officer of the company. Press reports portray Kanas

as the driving force behind BankUnited and as intimately knowledgeable and in control of all

aspects of the organization.

41. Bohlsen was named Chief Lending Officer of BankUnited and became Vice

Chairman of its Board of Directors.

BankUnited's Activity in the New York Market

42. In connection with BankUnited's initial public offering in January 2011,

BankUnited and Defendants' made plain their designs on entering the New York banking

market. In a registration statement filed with the U.S. Securities and Exchange Commission on

October 29, 2010, BankUnited informed its potential shareholders that it sought to expand

operations in "selected markets such as New York" because its "management team has had

significant experience and has the competitive advantage ofhaving managed one ofthe most

successful regional banks in that market." BankUnited, Inc., Form S-1, at 5 (filed on October 29,

2010). Of course, it is perfectly appropriate for Kanas and Bohlsen to compete with Capital One

in New York after the expiration of the Non-Competition Period.

43. In press releases and filings with the U.S. Securities and Exchange Commission,

Kanas, on behalf of BankUnited, has repeatedly acknowledged that he cannot compete in the

New York, New Jersey, or Connecticut markets because of Defendants' covenants not to

compete. In its Registration Statement, BankUnited stated that despite its asserted "competitive

advantage" in the New York market, "for a limited period of time, certain of our executive

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officers are subject to non-compete agreements which may restrict them from operating in these

selected markets." BankUnited, Inc., Form S-1, at 5 (filed on October 29, 2010). BankUnited

repeated this statement in its most recent Form 10-K annual report, filed on March 31, 2011.

BankUnited, Inc., Form 10-K, at 5 (filed on March 31, 2011).

44. Kanas's public statements and media interviews confirm his desire to trade on the

goodwill he established in the New York market as an executive with North Fork. As Kanas

recently told the South Florida Business Journal, "I've banked in New York City for many

years, and I have a decent-size following ofpeople there who eventually will become customers

ofBankUnited." "BankUnited's Kanas talks acquisition, growth plans, South Florida Business

Journal (June 2, 2011). Clearly, Kanas and Bohlsen, as longtime New Yorkers, who continue to

operate their "Florida" bank from Manhattan, are eager to return to their home turf.

45. Kanas has publicly recognized that his ability to engage in a Competitive

Business in New York is constrained. For example, he announced his intention to "open half a

dozen branches" of BankUnited "in Manhattan on Aug. 7, 2012, the day after the noncompete

ends." John Engen, "You Can Go Home Again, US Banker (May 2011) (emphasis added).

46. Contrary to these assertions, however, BankUnited had already entered and was

actively competing in the New York commercial banking market. The BankUnited, FSB

banking portfolio contained mortgages issued on property located in New York and New Jersey

at the time Defendants acquired that entity's assets. BankUnited, under the direct management

of Kanas, as President, Chief Executive Officer, and Chairman of the Board, and Bohlsen, as

Chief Lending Officer and Vice Chairman of the Board, renegotiated the terms ofseveral of

these mortgages. Defendants' acquisition and management of these mortgage assets placed

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BankUnited in direct competition with commercial and real estate loans marketed by Capital

One in New York.

47. Upon information and belief, BankUnited has expanded its New York and New

Jersey real estate lending portfolio throughout Kanas's and Bohlsen's tenure. BankUnited has

been assigned multiple mortgages on property in New York and New Jersey from entities in

direct competition with Capital One. Upon information and belief, Kanas and Bohlsen have used

their contacts in New York and New Jersey to secure these assignments on behalf of

BankUnited.

48. When Kanas took control of BankUnited, he signaled to the public that he would

immediately compete with banks in the "Northeast" to find investment partners. In a May 22,

2009 article, Kanas was quoted as saying that he will use his "business contacts in the Northeast

to find many investors eager to make deals in South Florida." "Kanas: BankUnited to target

commercial business, South Florida Business Journal (May 22, 2009). Upon information and

belief, Bohlsen and Kanas subsequently used these business contacts to compete in New York,

New Jersey, and Connecticut. Defendants' solicitation of investors in the Northeast places them

in direct competition with Capital One in the "business of acquiring" "commercial and consumer

banking products" and is a clear-cut breach of the Separation Agreement.

49. Upon information and belief, in early June 2011, Kanas personally made an

unsolicited, pre-auction bid for Bank of Ireland's New York commercial banking portfolio on

behalf of BankUnited. Upon information and belief, Kanas's pre-auction bid was not accepted,

and Bank of Ireland has commenced a competitive public auction to sell its portfolio in the New

York banking market. Upon information and belief, Kanas remains interested in purchasing this

portfolio for BankUnited and is preparing to make a bid at the public auction. Kanas's efforts to

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win a competitive bidding process for a commercial banking portfolio plainly put him in direct

competition with other banks, including Capital One, in the business ofacquiring commercial

banking products in New York.

50. Upon information and belief, under Defendants' direction and management,

BankUnited is actively seeking to expand its presence in the New York market in direct, and

prohibited, competition with Capital One. Upon information and belief, Kanas has retained one

or more individuals to scout potential locations for BankUnited branches in New York and has

engaged in other substantial activities to erect consumer and commercial banking business

operations similar to those engaged in by Capital One in New York. BankUnited has already

secured a lease on branch space at 960 6th Avenue in Manhattan, and placed a bid to lease

property owned by the New York Metropolitan Transit Authority at 347 Madison Avenue in

Manhattan (fewer than 1700 feet from a Capital One branch). Upon information and belief, in

furtherance of such competitive activities and in concert with BankUnited, Defendants have:

made preparations and plans for the construction and operation of severalBankUnited branches;

posted job listings on www.monster.com for "Manhattan, N.Y." "SeniorCommercial Real Estate Lenders, "Relationship Bankers, "Branch Managers,and even a New York "Market President" to begin "developing and servicing"commercial and consumer banking relationships in the New York market;

contacted and/or spoken to journalists and other members of the media to

publicize the imminent opening of BankUnited's New York branches;

obtained a lease for a BankUnited branch in New York and continued to seekadditional space for other branches in the City.

As the foregoing demonstrates, it would be impossible to open competing branches in New York

on August 7, 2012, as Kanas has announced he will, without engaging in such competitive

activity in breach of the Separation Agreements prior to that date.

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51. These instances of competitive activity by and on behalf of the Defendants, taken

together, reveal Defendants' comprehensive strategy with regard to the consumer and

commercial banking business in New York. These activities make plain that Defendants are

"engag[ing] in a Competitive Business" in violation of the Separation Agreement. Separation

Agreement, Annex B J 2(e). They threaten Capital One's legitimate business interests in New

York. Defendants' actions deny Capital One the goodwill it bargained for in the Separation

Agreement and frustrate the entire purpose of that agreement.

United Capital

52. Bohlsen has more than four decades ofexperience in the restaurant financing and

franchising business. In fact, he received a degree in restaurant management from Michigan

State University. Between 1969 and 1984, Bohlsen owned a chain of restaurant franchises that,

at its peak, had fifty-three locations. In addition, he led the Arby Franchisee Association

worldwide. While with North Fork, Bohlsen helped to develop North Fork lending to New York

City's chefs and restaurants.

53. Currently, in addition to his duties for BankUnited, Bohlsen serves as the Director

of the wholly owned subsidiary United Capital Business Lending, Inc. ("United Capital")

United Capital is a Delaware Corporation that has its headquarters in Hunt Valley, Maryland.

United Capital offers commercial loans and equipment leases to growth businesses, with a

particular focus on the restaurant industry.

54. United Capital has provided millions of dollars in financing to businesses

operating in the New York, New Jersey, and Connecticut markets. For example, in February

2011, United Capital announced that it would provide $2 million in financing to a Five Guys®

Burgers franchisee based in Brooklyn, New York. As part of this deal, United Capital negotiated

refinancing for three existing stores and provided funding to open two additional locations. In

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May 2011, United Capital announced it would provide $1 million in financing to Franchise

Kings, LLC, a New Jersey-based restaurant franchisee.

55. Upon information and belief, Bohlsen has drawn on his background and

experience in restaurant franchisee lending, established and enhanced while an executive at

North Fork and Capital One, to develop, manage, and acquire these lending opportunities on

behalf ofUnited Capital. The commercial loans and leases ofUnited Capital offered to

restaurant franchisees in New York, New Jersey, and Connecticut are in direct competition with

Capital One and constitute a breach of the Separation Agreements.

Herald National Bank

56. Herald National is a commercial bank headquartered in midtown Manhattan in

New York City. It has offices in Brooklyn and on Long Island, New York. The bank offers a

wide range of banking services, including commercial lending.

57. On June 2, 2011, BankUnited announced that it had reached an agreement to

acquire Herald National as a wholly owned subsidiary. The deal is expected to close in the

fourth quarter of 2011. According to press accounts, this merger reflects the "desire" of

BankUnited "to return to the Empire State" to engage again in commercial banking. "Non-

Compete Can't Stop BankUnited CEO, Wall St. Journal (June 2, 2011). BankUnited itself filed

a Form 8-K with the Securities and Exchange Commission announcing the merger, in which the

Chief Operating Officer of BankUnited described the transaction as "an important step toward

expanding the reach of BankUnited into the New York market." BankUnited, Inc., Form 8-K, at

Ex. 99.1 (filed June 2, 2011). Moreover, BankUnited representatives have touted the merger to

its investors because it "[p]rovides [a] platform for market entry into New York." BankUnited,

Inc., Form 8-K, at Ex. 99.1 (filed June 27, 2011). These statements confirm that BankUnited,

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under the leadership and direction of Kanas and Bohlsen, seeks to expand its competition in New

York.

58. In apparent acknowledgement that any activity by BankUnited in New York

would violate the Non-Competition Covenants ofDefendants' Separation Agreements,

BankUnited announced plans to structure the merger to hold Herald National separately from

BankUnited. Astoundingly, BankUnited now publicly contradicts Kanas's earlier statements

about being restricted from competing in New York and contends that he can compete, simply

by slipping behind the curtain and pulling the levers of BankUnited while his employees carry

out the prohibited competition. In particular, BankUnited stated that it will form a novel

reporting structure in an attempt to evade the requirements of the Separation Agreements:

As previously disclosed, John A. Kanas, the Company's Chairman, President andChief Executive Officer, and John Bohlsen, the Company's Vice Chairman andChief Lending Officer and a director, are subject to non-compete agreementswhich expire in August 2012. These agreements purport to restrict Messrs. Kanasand Bohlsen in their individual capacities from engaging in the consumer andcommercial banking businesses in New York. Until the expiration of theseagreements, it is the Company's expectation that Herald will not be merged with,and will be held separately from, BankUnited, the Company's wholly ownedthrift subsidiary. During that period, neither Mr. Kanas nor Mr. Bohlsen will bean officer, director or employee of Herald, nor will they have any decision-making authority with respect to or otherwise participate in the affairs of Herald.Until the expiration of Messrs. Kanas's and Bohlsen's non-compete agreements,Herald's management will report to Rajinder P. Singh, the Company's ChiefOperating Officer, who will report to Herald's board of directors. It is expectedthat Herald will be merged into BankUnited at the end ofAugust 2012.

BankUnited, Inc., Form 8-K, at Item 8.01 (filed June 2, 2011). Singh, formerly an

Executive Vice President of Capital One during Kanas's and Bohlsen's tenure, was also

head of corporate strategy and development for North Fork under Kanas's leadership.

59. Upon information and belief, Kanas personally engaged in negotiations with

Herald National and, as a BankUnited director, officer, stockholder, and investor, advised

19


BankUnited in connection with the merger. Indeed, upon information and belief, Kanas was the

driving force behind the decision of BankUnited to acquire the New York commercial bank.

"BankUnited Deal Brings John Kanas Back to New York, Wall St. Journal (June 3, 2011)

("Mr. Kanas repeatedly had said he wanted to reproduce his New York success with BankUnited

in Florida, and he long had been expected to return to New York.").

60. Kanas's and Bohlsen's longstanding relationships with many key Herald National

employees enticed BankUnited to target the New York bank. In a presentation to analysts and

investors, subsequently filed with the U.S. Securities and Exchange Commission, a BankUnited

representative highlighted the connections between Herald National and former North Fork

banking employees. BankUnited, Inc., Form 8-K, at 22 (filed June 27, 2011). The presentation

emphasized that "[s]everal employees at senior and middle management positions of Herald

National were former employees ofNorth Fork." Id. Kanas and Bohlsen therefore have close

ties to key Herald National employees, officers, and directors.

61. According to press reports, the Herald National CEO and Chairman, Randy

Nielsen, is a close friend of Kanas. In fact, this is not the first time a bank managed by Kanas

has acquired a bank led by Nielsen. In 2000, North Fork, while Kanas was Chairman and CEO,

acquired Reliance Bancorp, where Nielsen was chief executive at the time. See "BankUnited

Deal Brings John Kanas Back to New York, Wall St. Journal (June 3, 2011) ("Mr. Kanas

repeatedly had said he wanted to reproduce his New York success with BankUnited in Florida,

and he long had been expected to return to New York.... To come back, Mr. Kanas has returned

to deal with an old friend, Herald Chairman and CEO Randy Nielsen. This isn't the first time

Mr. Kanas has bought a bank led by Mr. Nielsen."). After the acquisition, Kanas and Nielsen

served together on the North Fork Board of Directors. Upon information and belief, Kanas used

20


his close, personal friendship with Nielsen to secure for BankUnited the opportunity to acquire

Herald National at a bargain price.

62. Upon information and belief, Kanas was an early investor in Herald National,

which was previously known as Heritage Bank N.A., investing $25,000 in the venture.

63. Kanas has personally announced that the Herald National merger is merely the

first step in a comprehensive plan to expand BankUnited banking operations in New York, New

Jersey, and Connecticut through acquisition of local banks, including during the Non-

Competition Period. Kanas was recently quoted as stating that, even after the Herald National

merger agreement, BankUnited is seeking to acquire more New York banks "with good assets,

good locations, management talent, performing C&I loans and core deposits." Michael Rudnick,

"Sunshine State, The Deal Magazine (June 24, 2011). Unsatisfied with his current level of

competition with Capital One, Kanas is flagrantly seeking to expand his competitive activities.

64. In sum, the BankUnited acquisition ofHerald National is possible only because

Kanas has personal relationships with his former North Fork colleagues now serving as

employees and officers of Herald National. BankUnited's assertions that Kanas and Bohlsen

will be screened from interacting with Herald National until expiration of the Non-Competition

Period are belied by the actions Kanas has already taken to secure the deal for BankUnited.

These previous interactions constitute competitive activity that cannot be remedied by

implementing a reporting structure to establish separation between the two banks. Moreover,

Kanas's prior planning and negotiation raise serious concerns that any formal separation between

BankUnited and Herald National will not be recognized once the merger is consummated.

Should the merger occur, Capital One would be left effectively without a remedy to stop Kanas

21


and Bohlsen from unlawfully competing for banking business in New York, New Jersey, and

Connecticut.

CLAIM FOR RELIEF

(Breach of Contract)

65. Plaintiff realleges and incorporates herein by reference the allegations of

paragraphs 1 through 64 hereof.

66. Defendants breached their contracts with Capital One by violating the terms of the

Non-Competition Covenant in the Separation Agreements.

67. Defendants received good and valuable consideration for the promises they made

in the Separation Agreements, which are valid and binding contracts. The tailored competitive

restrictions placed on Defendants constitute a reasonable effort by Capital One to secure the

benefit of its purchase ofNorth Fork, including the goodwill that Defendants had established in

the community, and to protect its legitimate business interests.

68. Defendants committed at least four separate breaches of the Non-Competition

Covenant.

A. Mortgage and Restaurant Competition

69. Defendants initiated their scheme to breach the Non-Competition Covenant by

purchasing with a group of investors, during the Non-Competition Period, the assets and

liabilities of BankUnited, FSB, whose portfolio contained commercial banking products in New

York and New Jersey. Upon information and belief, BankUnited, under the direct management

of Kanas, as President, Chief Executive Officer, and Chairman of the Board, and Bohlsen, as

Chief Lending Officer and Vice Chairman of the Board, has renegotiated the terms of several of

these mortgages and, indeed, has acquired others in New York and New Jersey. Serving as

directors, officers, and stockholders of and investors in a corporation engaged in Competitive

22


Business constitutes an ongoing beach of the Non-Competition Covenant, whereby Defendants

agreed "not [to] engage in a Competitive Business... as a director, stockholder, investor,

member, partner, principal, proprietor, agent, consultant, officer, employee, or otherwise."

Separation Agreement, Annex B 2(e).

70. BankUnited has been assigned numerous mortgages on New York and New

Jersey property since Kanas and Bohlsen became directors, officers, and stockholders of and

investors in BankUnited. These activities constitute a breach of Defendants' obligations not to

engage in a Competitive Business. See Separation Agreement, Annex B 2(e).

71. Upon information and belief, Defendants have also personally been involved with

the New York and New Jersey mortgages and real estate loans of BankUnited, thereby directly

and flagrantly violating their non-compete agreements.

72. In addition, BankUnited subsidiary United Capital engages in direct competition

with Capital One over the financing of restaurant franchises in New York, New Jersey, and

Connecticut. Therefore, Defendants, as BankUnited officers, directors, shareholders, and

investors, have breached the Non-Competition Covenant.

73. Upon information and belief, Defendants have also personally been involved with

United Capital's fmancing of restaurant franchises in New York, New Jersey, and Connecticut,

thereby directly and flagrantly violating their non-compete agreements.

B. BankUnited's New York Branches

74. Defendants breached the Non-Competition Covenant by planning, preparing, and

acting to open BankUnited branches in New York. These competitive activities themselves

constitute Competitive Business, as they are part and parcel of "the consumer and commercial

banking business engaged in by" Capital One. Sepaxation Agreement, Annex B 2(b). Further,

23


such active steps in advance of the actual opening of banking branches are themselves inherently

competitive actions under Virginia law. See generally W. Insulation v. Moore, 242 F. App'x.

112 (4th Cir. 2007). Indeed, these activities evidence an overarching scheme to compete with

Capital One in violation of the Separation Agreements and deny it the full value bargained for in

the RSAs and Separation Agreements.

75. Kanas has announced his intention to open BankUnited branches in New York on

the day of the termination of the Non-Competition Period. John Engen, "You Can Go Home

Again, US Banker (May 2011) ("He expects to open half a dozen branches in Manhattan on

Aug. 7, 2012, the day after the noncompete expires... Upon information and belief,

Defendants, acting in concert with BankUnited, have engaged in the substantial competitive acts

described herein, which are necessary to open competing banking branches in New York, New

Jersey, and Connecticut. These activities breach Defendants' Non-Competition Covenants,

whereby Defendants agreed "not [to] engage in a Competitive Business... as a director,

stockholder, investor, member, partner, principal, proprietor, agent, consultant, officer,

employee, or otherwise." Separation Agreement, Annex B 112(e).

76. Upon information and belief, Defendants personally and directly have engaged,

and are currently engaging, in a Competitive Business during the Non-Compete Period by

assisting BankUnited with, and managing, these activities. This, too, clearly contravenes the

Non-Competition Covenant.

C. Bank of Ireland Portfolio

77. Upon information and belief, Kanas directly and flagrantly breached the Non-

Competition Covenant in June 2011 by placing an unsolicited, pre-auction bid for Bank of

Ireland's New York commercial banking portfolio on behalf of BankUnited. The preemptive bid

24


constitutes engaging in a Competitive Business because Kanas is participating in "the business of

acquiring and/or managing... commercial and consumer banking products" in the state ofNew

York. Separation Agreement, Annex B 2(b).

78. Defendants agreed "not [to] engage in a Competitive Business... as a director,

stockholder, investor, member, partner, principal, proprietor, agent, consultant, officer,

employee, or otherwise." Separation Agreement, Annex B 2(e). Kanas has clearly breached

this provision of the Non-Competition Covenant both in light ofhis relationship with

BankUnited and directly through his personal involvement.

D. The Herald National Merger

79. Upon information and belief, Defendants have breached the Non-Competition

Covenant by planning and negotiating BankUnited's acquisition of Herald National and by

providing advice to BankUrtited regarding the same. As alleged herein, Defendants' efforts to

acquire Herald National and its portfolio ofcommercial and consumer banking business,

including their personal roles in formulating a negotiation and acquisition strategy on behalf of

BankUnited, constitute a breach of the Non-Competition Covenant.

80. Moreover, once the merger closes, BankUnited will be engaged in further direct

competition with Capital One for the New York commercial banking market. Defendants' roles

as BankUnited officers, directors, stockholders, and investors necessarily place them in breach of

the Non-Competition Covenant. Separation Agreement, Annex B 2(e).

81. Defendants' stake in BankUnited and Herald National is not excused by the

exception to the Non-Competition Covenant regarding "ownership for investment purposes of

not more than ten percent (10%) of the total outstanding equity securities (or other interests) of

any entity." Separation Agreement, Annex B 2(e). Defendants' ownership ofBankUnited

25


common stock goes well beyond "investment purposes." Indeed, as they are the Chairman and

Vice Chairman of the BankUnited Board of Directors, respectively, as well as the institution's

two most senior executives, it strains credulity to suggest that their significant BankUnited

holdings serve a mere investment purpose.

82. Regardless of the convoluted corporate structure concocted by BankUnited

purportedly to shield Defendants from BankUnited's anticipated subsidiary, Herald National,

Defendants' positions at BankUnited guarantee that they will impermissibly provide services to

the subsidiary. The Non-Competition Covenant permits "the provision of services to a

corporation... a portion of the business of which is a Competitive Business, provided that the

Executive is not providing services to the portion of the business which is directly engaged in a

Competitive Business." Separation Agreement, Annex B If 2(e) (emphasis in original). Because

of their positions, Defendants cannot avoid providing services to Herald National, as a

BankUnited subsidiary. Defendants owe fiduciary duties to the shareholders of BankUnited (and

by extension, Herald National) and have statutory and regulatory responsibilities that, as a

practical matter, will force them to provide services to Herald National in violation of the Non-

Competition Covenant. Defendants' plan to require Herald National's management to report

only to Rajinder Singh, Chief Operating Officer ofBankUnited and Kanas's direct subordinate,

would amount to little more than a sham since Kanas would remain in ultimate control and could

not shield Defendants from their fiduciary obligations to BankUnited and Herald National under

corporate governance laws and rules and banking regulations. This threadbare ruse will not save

Defendants from breaching the Non-Competition Covenant.

83. These four separate and ongoing types ofbreaches of contract have deprived, and

continue to deprive, Capital One of the goodwill it purchased in a bargained exchange for valid

26


consideration in the North Fork merger. Defendants seek to deny Capital One its protectable,

legitimate business interest in maintaining that goodwill. Defendants' breach ofcontract thereby

frustrates the entire purpose of the Separation Agreements. Their actions are highly disruptive to

Capital One's ability to conduct business in a stable manner and to maintain Capital One's

goodwill with its customers and employees, many ofwhom are former North Fork customers

and employees. Unless Defendants' misconduct is permanently restrained and enjoined, Capital

One will suffer the loss of key business and personnel, which will cause Capital One permanent

and irreparable damage.

84. As a direct and proximate result of Defendants' ongoing breach of their contracts,

Capital One has sustained and will continue to sustain irreparable injury, including the loss of

goodwill purchased by Capital One as part of the merger with North Fork, the damages from

which cannot now be calculated. Each Defendant, by signing the Separation Agreement,

"acknowledge[d] and agree[d] that his violation ofany provision of this Annex B [would] cause

immediate, substantial and irreparable harm to the Company which cannot be adequately

redressed by monetary damages alone." Separation Agreement, Annex B 6. Defendants

further covenanted that "the Company, without limiting any other legal or equitable remedies

available to it, shall be entitled to equitable relief, including, without limitation, temporary,

preliminary and permanent injunctive relief, return ofconfidential property, and specific

performance, from any court of competent jurisdiction." Id Defendants' agreed that the

appropriate remedy for their unlawful competition would be an extension of the Non-

Competition Period to grant Plaintiff the full benefit of their bargain. Id. Accordingly, Plaintiff

is entitled to a permanent injunction; extension of the Non-Competition Period to account for the

period in which Defendants were unlawfully engaging in competition; compensatory damages

27


for the loss of goodwill caused as a result ofDefendants' improper competitive activity; and

disgorgement of the value of the common stock provided to Defendants in consideration for their

non-compete assurances.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Capital One respectfully requests that a judgment be entered in

its favor against Defendants Kanas and Bohlsen as follows:

In support of all claims for relief, a permanent injunction enjoining and

restraining Defendants, and all those acting in concert with them, during the Non-Competition

Period, from directly or indirectly engaging in any Competitive Business or breaching the terms

of the Non-Competition Covenant in any other manner, including (a) serving as directors,

stockholders, investors, members, partners, principals, proprietors, agents, consultants, officers,

employees, or in any other capacity on behalf of BankUnited or any other entity to the extent that

BankUnited or such other entity is engaged in the business of acquiring or managing commercial

or consumer banking products within New York, New Jersey, or Connecticut; (b) serving as

directors, stockholders, investors, members, partners, principals, proprietors, agents, consultants,

officers, employees, or in any other capacity on behalf ofBankUnited or any other entity to the

extent that BankUnited or such other entity is engaged in the financing ofrestaurant franchises in

New York, New Jersey, or Connecticut; (c) purchasing or planning to purchase, directly or

indirectly, the New York commercial portfolio ofany commercial bank operating in New York,

New Jersey, or Connecticut, including the Bank of Ireland; (d) serving as directors, stockholders,

investors, members, partners, principals, proprietors, agents, consultants, officers, employees, or

in any other capacity on behalf ofBankUnited during or after its acquisition of Herald National,

28


or any other entity engaged in a consumer or commercial banking business within New York,

New Jersey, or Connecticut;

2. Extension of the Non-Competition Period to account for the period in which

Defendants unlawfully competed with Capital One.

3. Disgorgement of the value of the consideration provided to Defendants pursuant

to the breached Separation Agreements and the underlying RSA;

4. Award of compensatory and consequential damages in an amount to be proved at

trial; and

5. Such other and further relief as the Court deems just and proper.

Plaintiff demands a jury trial.

29


Respectfully submitted,

CDated: July 14,2011.

Orn Snyder, (pro hoc vice motT n pending)GIB ON, DUNN & CRUTCH R LLP200 Park AvenueNew York, NY 10166-0193

Telephone: 212.351.4000Fax: 212.351.4035

[email protected]

Jason C. Schwartz, SBN 43635Michael Diamant, SBN 65404

GIBSON, DUNN & CRUTCHER LLP1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

Telephone: 202.955.8500Fax: 202.467.0539

[email protected]@gibsondunn.com

Attorneys for Capital One Financial

Corporation


James A. Murphy, SBN 35380MURPHY & McGONIGLE4870 Sadler Road, Suite 301Glen Allen, VA 23060Telephone: 804.762.5330Fax: 804.762.5360

[email protected]

Attorney for Capital One Financial Corporation

rok. OFFICE USE ONLY

Case 1:11-cv-00750-LO -TRJ Document 1-1 Filed 07/14/11 Page 1 of 2 PagelD# 32l- 1

JS Ai (Rev. 12/07) CIVIL COVER,SBEETThe JS 44 ei. il cover sheet and the information coin:ruled herein neither replzi' c'eli-or supplement the filing and service ofplead inns or other papers as required by law, except as providedby local rules of court. 'This loon, approved by the Judicial Conference of the United States in September 1974. is required for the use ofthe Clerk ofCourt for the purpose of initiatingilie cfvil docket sheet (SEE INSTRUCTIONS ON II IE REVERSE O)--ft ik FORM.)

I. (a) PLAINTIFFS DEFENDANTS

Capital One Financial Corporation i i uS:1(4r?..atq.ohn A. and Bohlsen, Johni-.:I1

(b) County of Residence of First Listed PlaintitT Fairfax County, VA County of Residence of First Listed Defendant Suffolk County, NY

(EXCI:PT IN U.S. PLAINTIFF CASES) C;, Ti (IN U.S. PLAINTIFF CASES ONLY)

NO I E: IN LAND CONDEMNATION CASES, USE TIIE LOCATION OF THEI.AND INVOLVED.

(c) Attorney's (Finn Name, Address, and Telephone Number) Attorneys (If Known}

See attachment Unknown

II. BASIS OF JURISDICTION (Place an "X" in One Bux Only) il l. CITIZENSHIP OF PRINCIPAL PA RTIES(Poce an -X" in One Box for Plaintiff(For Diversity Cases Only) and One I3ox for Defendant)

O I U.S. Ciovc•mment 0 3 Federal Question PTF BEE PTE. DEEPlaintiff (U.S. Government Not a Party) Citizen cifThk State 0 l 0 1 lncorpomted or Principal Place X 4 0 1

of [liminess In This State

0 2 U.S. Goveniment >4 4 Diversity Citizen of Another State 0 2 R3 2 Incorporated fruit/Principal Place 0 5 0 5Defendant of I3usiness In Another State(Indicate Citizenship of Parties in [tem III)

Citizen or Subject of a 0 3 0 3 Foreign Nation 0 6 0 6

Foreicil Countrv

IV NATI-112c AV KIIIT nm-, -v- 1-1,, 7E,,

1 CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY- OTBER,5TATUTES I.71 110 Insurance PERSONAL INJURY PERSONAL INJURY 0 610 Agriculture 0 422 Appeal 28 USC 150 0 400 Stille Reapportionment71 20 Marine 0 310 Airplane 0 362 l'ciwoal Injury 71 620 Other Food & Drug 0 423 Withdrawal 0 410 AntitrustO 130 Miller Act 0 315 Airplane Product bled. Malpractice 0 625 Drug Related Seizure 23 USC 157 01 430 Banks and BankingO 140 Negotiable Instrument Liability 0 365 Personal Nut}, of Property 21 USC 881 0 450 CommerceO 150 Recovoy of Overpayment 0 320 Assault, Libel & Product Liability 0 630 Liquor Laws I PROPERTY RIGHTS 0 460 Deportation

& Enforcement offudgment Slander 0 368 Asbestos Personal 0 640 R.R. & Truck 0 320 Copyrights 0 470 Racketeer Influenced and1 151 Medicare Act 0 330 Federal Employers' Injury Product 0 650 Airline Regs, 1 030 Patent Corrupt OrganizationsO 152 Recovety of Defaulted Liability Liability 0 660 Occupational 0 MO Trademark 0 'ISO-Consumer Credit

Student Loans 0 340 Marine PERSONAL PROPERTY Safetyil lealM 0 490 Cable/Sat TV(Excl. Veterans) 0 345 Marine Product 71 370 Other Fraud 1 il'i0 Other 0 810 Selective Service

0 153 Recovery olOverpayment Liability 0 371 Truth in Lending LA ROR SOCIAL SECURITY 0 850 Securities/Commodities/of Veteran's Benefits 0 350 Motor Vehicle 0 380 Other Personal 0 710 Fair Labor Standarck 0 861 IIIA (139511) Exchange

O 160 Stockholders' Sons 0 355 Motor Vehicle Property Damage Act 0 862 Wad: Lung (923) CI 875 Customer ChallenueA 190 Othes Connact Product Liability 0 385 Property Damage n 720 Labor/Mgmt. Relations n 863 opkkr/Dmv (105(0) 12 USC 3410O 195 COIIIMCI PI alluC LiabilitY 0 360 Other Peisonal Product Liability 0 730 LaboriMpmt.Reponing 71 064 SSID Title XVI 771 890 Other Statutory Actions1 196 Franchise !Murry & Dischisme Act 0 805 RS1(4050i 0 891 Agrieulmral Acts

I REAL PROPERTY CIVIL RIGRTS PRISONER-PETITIONS 0 740 Railway Labor Act FEDERAL TAX SUITS 0 892 Economic Stabilization Act0 210 Land Condemnation .0 441 'yroting 0 510 Motions to Vacate 0 790 Other Labor Litigation 0 870 Taxes (U.S. Plaintiff 0 893 Environmental Matters.-t 220 Foreclosure 0 442 Employment Sentence 0 791 Dupl. Rel. Inc. or Dcleildinul 0 894 Energy Allocation ActEl 230 Rent Lease & Ejectment 0 443 Housing/ Ilalicas Corpus: Security Act 0 871 IRS--Tinid Party 0 895 Freedom of Informationill 240 Tons to Land Accommodations 0 530 General 26 USC 7609 ActO 215 Tort Product Liability 0 444 Welfare 0 535 Death Penalty IMMIGRATION 0 900Appcal of Fee Determinationil 290 All Other Real Property 0 445 Amer. w/Disabilities 0 540 Mandamus & Other 0 462 Naturalization Application Under Equal Acccss

Employment .0 550 Civil Rights 0 463 Habeas Corpus to Justice0 440 Amer. w/Disabilitics 0 555 Prison Condition Alien Detainee 0 950 Constitutionality of

Other 0 465 Other Immigration State Statute,:71 4411 Other Civil Richts Actions

V. ORIGIN (Place an -.X" in One Box Only) Appeal to Districtfrom

anotherJudge frontTransferredA 1 Original a 7 Removed from 0 3 Remanded from 0 4 Reinstated or D. D CI 6 Multidistriet 7district MagistrateProceeding Stale Court Appellate Court Reopened Litigation(specify) Judgment

C,AtbVcCiViShry under which you are filing (Do not cite jurisdictional statutes unless diversity):VI. CAUSE OF ACTION..Briet description of cause:

Breach of Contract

VII. REQUESTED IN n CHECK IF TIIIS IS A CLASS ACTION DEMAND S CHECK YES only ifdemanded in complaint:COMPLAINT: UNDER P.R.C.P. 23 In excess o f 7 5 0 0 0 JURY DEMAND: gf Yes 71 No

VIII. RELATED CASE(S)(See insulictions):

IF ANY JUDGE DOCKET NUMBER

DATE SIGNATURE OS' ATTORNEY OF RECORD

07/14/2011 4g—;5----------RECEIPT i) AMOUNT APPLYING [FP JUDGE MAG. JUDGE

Case 1:11-cv-00750-LO -TRJ Document 1-1 Filed 07/14/11 Page 2 of 2 PagelD# 33

Attachment A

Orin Snyder, (pro hac vice motion pending)GIBSON, DUNN & CRUTCHER LLP200 Park AvenueNew York, NY 10166-0193Telephone: 212.351.4000Fax: 212.351.4035

[email protected]

Jason C. Schwartz, Va. Bar No. 43635Michael Diamant, Va. Bar No. 65404GIBSON, DUNN & CRUTCHER LLP1050 Connecticut Avenue, N.W.Washington, D.C. 20036Telephone: 202.955.8500Fax: 202.467.0539

[email protected]@gibsondunn.com

James A. Murphy, Va. Bar No. 35380MURPHY & McGONIGLE4870 Sadler Road, Suite 301Glen Allen, VA 23060Telephone: 804.762.5330Fax: 804.762.5360

[email protected]

Attorneys for Capital One Financial Corporation

-TRJ Document 1-2 Filed 07/14/11

bivision: iReceipt Number: 14683022906Cashier ID: sbrownTransaction Date: 07/14/2011Payer Name: GIBSON DUNN CRUTCHER LLP

CIVIL FILING FEEFor: GIBSON DUNN CRUTCHER LLPAmount: $350.00

CHECKRemitter: GIBSON DUNN CRUTCHER LLPCheck/Money Order Num: 957923Amt Tendered: $350.00

Total Due: $350.00Total Tendered: $350.00Change Amt: $0.00

FILING FEE1I1CV750

rv)r---5amlawdaily.typepad.com/kanas.pdf · this complaint arises from defendants' unlawful...

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