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23-857

DBW Investments, LLC v. VNUE, Inc.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary 

order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of 

Appellate Procedure 32.1 and this Court’s local rule 32.1.1. When citing a summary 

order in a document filed with this Court, a party must cite either the federal appendix 

or an electronic database (with the notation “summary order”). A party citing a 

summary order must serve a copy of it on any party not represented by counsel. 

At a stated term of the United States Court of Appeals for the Second Circuit, held 

at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 

York, on the 24th day of May, two thousand twenty-four.

PRESENT: 

JOSÉ A. CABRANES,

BARRINGTON D. PARKER,

MARIA ARAÚJO KAHN,

Circuit Judges, 

__________________________________________ 

DBW INVESTMENTS, LLC, GOLOCK CAPITAL,

LLC, 

Plaintiffs-Counter Defendants-Appellees, 

v. 23-857 

VNUE, INC., 

Defendant-Counter Claimant-Appellant, 

CROSSOVER CAPITAL FUND II, LLC, DAVID 

WHITLOCK, CHRISTOPHER GOROG, KENNETH 

LUSTIG, 
2 

Counter-Defendants. 

___________________________________________

FOR PLAINTIFFS-COUNTERDEFENDANTS-APPELLEES: DANIEL S. STEINBERG, The Law 

Offices of Daniel S. Steinberg P.C., 

New York, NY.

FOR DEFENDANT-COUNTERCLAIMANT-APPELLANT: MARK R. BASILE, (Marjorie M. 

Santelli, on the brief), The Basile Law 

Firm, P.C., Jericho, NY.

Appeal from the June 1, 2023, judgment of the United States District Court for the 

Southern District of New York (Denise Cote, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment entered on June 1, 2023, is AFFIRMED. 

Defendant-Appellant VNUE, Inc. (“VNUE”) appeals from a judgment of the 

district court, entered following a bench trial, awarding Plaintiffs-Appellees DBW 

Investments, LLC and GOLOCK Capital, LLC (collectively, “Appellees”) damages in 

excess of $1.7 million, including attorneys’ fees, for breach of contract.

1 On appeal, VNUE 

challenges the district court’s conclusion that VNUE breached the terms of several 

1 Although VNUE’s notice of appeal was filed prematurely, this Court retains jurisdiction 

over the present appeal as the district court entered a final judgment, and subsequently amended 

its judgment, before the appeal was heard. See Fed. R. App. P. 4(a)(2); see also Zeno v. Pine Plains 

Cent. School Dist., 702 F.3d 655, 663 n.6 (2d Cir. 2012) (“Although the [appellant] filed a premature 

notice of appeal, because the district court entered an amended final judgment before the appeal 

was heard and [the appellee] suffered no prejudice, the jurisdictional defect has been cured.”).
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promissory notes by “fail[ing] to deliver” certain stock purchase warrants to Appellees. 

Golock Cap., LLC v. VNUE, Inc., No. 21cv8103 (DLC), 2023 WL 3750333, at *4 (S.D.N.Y. 

June 1, 2023). In particular, VNUE contends that the court erred in finding that VNUE 

“refused to allow the Warrants to be exercised.” Id. We assume the parties’ familiarity 

with the underlying facts, the procedural history, and the issues on appeal, to which we 

refer only as necessary to explain our decision to affirm. 

We review a district court’s findings of fact following a bench trial for clear error. 

See Siemens Energy, Inc. v. Petróleos de Venezuela, S.A., 82 F.4th 144, 153 (2d Cir. 2023). 

Under the clear error standard, we are required to accept the district court’s factual 

findings unless “’we are left with the definite and firm conviction that a mistake has been 

[made].’” Sacerdote v. N.Y. Univ., 9 F.4th 95, 119 (2d Cir. 2021) (quoting United States v. 

U.S. Gypsum Co., 333 U.S. 364, 396 (1948)). “[I]f the district court’s account of the evidence 

is plausible in light of the record viewed in its entirety,” we “may not reverse it.” Siemens, 

82 F.4th at 153 (quoting Anderson v. City of Bessemer, 470 U.S. 564, 573–74 (1985)). 

Here, VNUE argues, inter alia, that the evidence presented by Appellees at trial 

was insufficient to support the district court’s finding that it refused to issue shares under 

the warrants. In response, Appellees assert that VNUE’s claim is unpreserved for 

appellate review because VNUE did not raise the argument below. We need not decide 

the preservation issue, as it is readily apparent that VNUE’s arguments on appeal are 

meritless. 
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VNUE’s obligation to deliver the warrants—including the specific share amounts 

and exercise price—appears on the face of the contract amendments admitted at trial. See 

App’x 100, 141. Appellees presented direct testimony from one of their managing 

members, in the form of a declaration, that VNUE had not issued the warrants, see App’x 

1128, as well as unrebutted damages calculations that unambiguously include the value 

of the undelivered warrants, see App’x 1135. VNUE failed to challenge any of this 

evidence and presented no arguments or evidence to the contrary. Instead, VNUE relied

exclusively on the affirmative defense of usury as to all of Appellees’ claims.2

 

Accordingly, the district court properly held that VNUE breached its contractual 

obligations with respect to the warrants and, when awarding damages, correctly

“factor[ed] in . . . the value of the Warrants VNUE was to issue to the Plaintiffs.” Golock 

Cap., LLC, 2023 WL 3750333, at *4 (emphasis added). The district court’s account of the 

warrants evidence is more than “plausible in light of the record viewed in its entirety,” 

and thus there is no clear error. Anderson, 470 U.S. at 574. 

* * * 

 

2 In its pre-trial submissions, VNUE noted that it “does not dispute that it violated the 

[l]oans by failing to honor conversions and repay the amounts due by the maturity date. Thus, 

the Court must now determine whether [VNUE] has established the affirmative defense of 

criminal usury.” App’x at 758. 
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We have considered VNUE’s remaining arguments and find them to be without 

merit. For the reasons set forth above, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court