Usio, Inc. 10-Q

Item 1. Legal Proceedings.   Vaden Landers   On January 19, 2021, we initiated a lawsuit in Bexar County, Texas against our former Chief Revenue Officer, Vaden Landers.  In the lawsuit, which is styled: Usio, Inc. v. Vaden Landers , Cause No. 2021CI01069, 407th Judicial District Court, Bexar County, Texas, we allege that Mr. Landers violated the provisions of his employment agreement dated September 1, 2017 - specifically that Mr. Landers violated his non-compete obligations. The state court lawsuit only seeks injunctive relief against Mr. Landers.  We also instituted an action before the American Arbitration Association on February 2, 2021.   Mr. Landers initially refused to participate in the arbitration proceeding.  After hearings in Bexar County state court proceeding, all of the parties' claims, excluding Mr. Lander's claims for defamation and tortious interference with contract, were ordered to be heard by the American Arbitration Association.  We deny Mr. Landers’ allegations and do not believe that his counterclaims have any merit.   On or about April 27, 2021, Mr. Landers filed his answering statement and counterclaim against us in the arbitration proceeding. Therein, Mr. Landers alleged a variety of defenses to our claim that Landers violated the non-compete provisions of his employment agreement.  Mr. Landers also asserted a counterclaim for a declaratory judgment finding the non-compete provisions are unenforceable.  Mr. Landers further alleged that we breached the terms of his employment agreement because Mr. Landers' resignation was for good reason thus entitling Mr. Landers to deferred compensation.  We deny Mr. Landers' allegations.    Through our investigation, we have learned that Mr. Landers committed other violations of his employment agreement and we intend to pursue those claims in arbitration.  Both the state court litigation and the arbitration are in their initial stages. We have obtained certain documents from Mr. Landers in the state court proceeding.  Additional written discovery will be required before any depositions are taken in the state court litigation.   In the arbitration, the parties have both submitted motions to the arbitration panel on the initial legal question of whether the non-compete is enforceable.  On September 16, 2021, the arbitration panel ruled the non-competition provisions in Mr. Landers' employment agreement were enforceable.  The panel reserved ruling on the scope of the restrictions contained therein pending discovery.  The arbitration panel held that the non-compete provisions need to be reformed to more specifically set forth the competition restrictions applicable to Mr. Landers.  The parties attempted to confer on a mutually agreeable reformation, but were unable to reach an agreement.  The parties are now engaging in written discovery both as to the anticipated reformation on the non-compete provision and the ultimate merits of the case.   The state court case involving Mr. Landers is still in discovery phase.  There is no current trial setting.   We consider the risk of loss as remote related to this lawsuit.   World Health Merchants, LLC and Laitan Group, LLC     On July 21, 2021, a lawsuit was filed against us in Bexar County, Texas by two former merchants, World Health Merchants, LLC and Laitan Group, LLC. Three additional defendants were named in the lawsuit: Central Bank of St. Louis, Allied Platforms LLC, and Heriberto Cepeda.     The World Health lawsuit concerns the processing of certain transactions by us for the plaintiff merchants, which were referred to us by Allied Platforms, LLC, and defendant Mr. Cepeda pursuant to a referral agent agreement by and between us and Allied Platforms, LLC.  After initial concerns arose regarding the Plaintiffs’ transactions, we, pursuant to the applicable sub merchant processing agreement, terminated the processing of transactions for Plaintiffs. Pursuant to the same agreement, we retained certain funds for the purposes of processing returns.   After termination of the sub merchant processing agreement, Plaintiffs repeatedly demanded the return of all monies, which are in the custody of defendant, Central Bank of St. Louis.  We requested documentation from plaintiffs to substantiate the true nature of the transactions. The initial documentation provided to us raised additional concerns regarding the transactions.   After we retained counsel, additional demands were made for the return of the subject funds. However, additional concerns arose regarding ownership of the dispute funds. Based on the conflicting demands and claims of ownership, we retained the funds pending further information.  Our counsel requested additional information from various attorneys claiming to represent plaintiffs. No further information or documents were provided, and plaintiff subsequently filed the lawsuit.   We settled the case without prejudice on September 16, 2021.  The confidential settlement agreement provides for a release of funds by Central Bank of St. Louis to the Plaintiff.  We received certain risk mitigation payments totaling $156,166 pursuant to the settlement agreement.  We also received $15,000 for our reasonable and necessary attorney fees incurred in the matter.   KDHM, LLC   On September 1, 2021, KDHM, LLC sued PDS Acquisition Corp, now known as USIO Output Solutions, Inc., claiming a breach of the asset purchase agreement executed by the parties on December 14th, 2020. The lawsuit alleges that due to a mistake, accident, or inadvertence, certain customer deposits in the amount of $317,000 were improperly transferred two us.   We believe that plaintiff's claims in the lawsuit have no merit and contradict the express terms of the asset purchase agreement. As a result of this post sale dispute, we discovered that KDHM, LLC, and its principals, made certain misrepresentations and breached the terms of the asset purchase agreement.    On September 28, 2021, we filed an answer generally denying plaintiff’s allegations.  On October 5, 2021, we filed a counterclaim and third-party petition.  Therein, we allege that neither KDHM nor its principals disclosed that KDHM was not accounting for the customer deposits in accordance with Generally Accepted Accounting Principles.  Yet, KDHM, and third-party defendants its principals Henry Minten and Thomas Dowe, affirmatively represented and warranted in section 3.1(e) of the agreement that “[t]Annual Financial Statements and the Interim Financial Statements have been prepared from the books and records of Seller in accordance with GAAP applied on a consistent basis.”    We also discovered that KDHM by and through its principals failed to disclose that $305,000 in additional customer deposits existed and these deposits were not conveyed to us as required by the agreement.  KDHM, Minten and Dowe provided us with fraudulent and misleading profit and loss statements that did not disclose these additional customer deposits.  KDHM and the defendants do not dispute that these additional customer deposits exist and that they were purchased by Usio.  However, despite a written representation that these funds would be returned, KDHM and its principal have held these funds hostage.  Section 2.1(b)(x) of the agreement provides that the purchased assets includes “All of Seller’s deposits from its customer, including without limitation, those customer deposits listed on Schedule 2.1(b)(xi) of the Disclosure Schedules.”  Finally, we discovered that KDHM did not provide us with all customer lists, which are identified as purchased asset under the agreement.  We demanded the missing customer lists, but they have yet to be provided to us per the agreement.   In our counterclaims and third-party petition, we assert causes of action for fraud, breach of contract and conversion.  At this time, the parties have not engaged in any written discovery or depositions and no trial date has been set.   We consider the risk of loss as remote related to this lawsuit.   Aside from these proceedings above, we may be involved in legal matters arising in the ordinary course of business from time to time. While we believe that such matters are currently not material, there can be no assurance that matters arising in the ordinary course of business for which we are or could become involved in litigation will not have a material adverse effect on our business, financial condition or results of operations.