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INTERESTED PARTY RESPONSE IN SUPPORT -- (re: pldg. ( 1 in MDL No. 2950) ) Filed by… — Agent Fee Litigation (Dkt. 156)
Summary
An interested party response filed June 17, 2020 as Document 156 before the United States Judicial Panel on Multidistrict Litigation in In re: Paycheck Protection Program (PPP) Agent Fees Litigation, MDL No. 2950. It is submitted under Rule 6.2(e) by William Bookmyer, Bookmyer & Associates CPA, Inc., Alex Boytan and Boytan & Associates, LLP, plaintiffs in a related Southern District of Ohio action, Case No. 2:20-cv-02284. The response supports consolidation but argues against transfer to the Northern District of Georgia and Judge Michael L. Brown, citing his tenure and pending-motion backlog. It asks the Panel to send the MDL to the Southern District of Ohio under 28 U.S.C. § 1407 and to assign it to Chief Judge Algenon L. Marbley or Judge Edmund A. Sargus, citing the district's MDL history and banking presence. The five-page response is signed by counsel James E. Arnold.
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Case MDL No. 2950 Document 156 Filed 06/17/20 Page 1 of 5
BEFORE THE UNITED STATES JUDICIAL PANEL
ON MULTIDISTRICT LITIGATION
IN RE: Paycheck Protection Program : MDL Docket No. 2950
(“PPP”) Agent Fees Litigation :
INTERESTED PARTY RESPONSE OF
WILLIAM BOOKMYER, BOOKMYER & ASSOCIATES CPA, INC.,
ALEX BOYTAN AND BOYTAN & ASSOCIATES, LLP
I. INTRODUCTION
Pursuant to Rule 6.2(e) of the Rules of Procedure for the United States Judicial Panel on
Multidistrict Litigation, Interested Parties William Bookmyer, Bookmyer & Associates CPA,
Inc., Alex Boytan and Boytan & Associates, LLP (collectively, “Bookmyer”), plaintiffs in the
related action William Bookmyer, et al. v. PNC Bank, N.A., et al., Ohio S.D. Case No. 2:20-cv-
02284 (the “Bookmyer Action”), hereby submits this Interested Party Response.
Bookmyer agrees that consolidation is warranted for the reasons set forth in the Motion
for Consolidation filed by the Movant. Bookmyer, however, submits this response: (1) to inform
the Panel that Northern District of Georgia Judge Leigh Martin is not a viable transferee due to
her recusal in the Aliant Action, and that the judge reassigned the Aliant Action, the Honorable
Michael L. Brown, is not an appropriate transferee given his limited judicial experience and the
burdens placed on him with his current docket; and (2) to suggest that the Panel should transfer
this matter to the Southern District of Ohio, and in particular to Chief Judge Algenon L. Marbley
or the Honorable Edmund A. Sargus.
II. RESPONSE
A. The Related Actions should not be transferred to the Northern District of
Georgia, Honorable Michael L. Brown.
Eleven days after the Movants filed their Motion to Consolidate with the Panel, Judge
May filed her Order of Recusal in the Aliant Action. See Aliant Action, Doc. # 21 (June 1, 2020).
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Case MDL No. 2950 Document 156 Filed 06/17/20 Page 2 of 5
The Aliant Action was reassigned to the Honorable Michael L. Brown. Id. Bookmyer
respectively submits that at this stage in his tenure on the bench, Judge Brown is not an
appropriate transferee judge for two important reasons: (1) he has limited complex civil litigation
experience, and (2) he is saddled with the largest backlog of motions pending for more than six
months in the nation.
First, Judge Brown has been a federal district court judge for less than 2 ½ years. Prior to
assuming the bench in late January 2018, Judge Brown had no prior judicial experience, and the
vast majority of his legal experience involved criminal and government investigation matters.1
Unfortunately, given his limited tenure on the bench and his lack of complex civil litigation
experience, Judge Brown is not an ideal candidate at this time to preside over an MDL of this
complexity.
Second, in part due to inheriting an extensive legacy docket, Judge Brown is burdened
with significant docket pressures and demands. According to the latest Civil Justice Reform Act
Report of Motions Pending Over Six Months for the Period Ending September 2019, Judge
Brown leads the nation in the number of civil motions that have been pending for more than six
months.2 Given this backlog of cases and motions, adding the demands of an MDL of this type to
his docket would only exacerbate the burden on an already overburdened new judge.
B. The Southern District of Ohio is an Appropriate Transferee Forum for this
Case.
The objectives of 28 U.S.C. § 1407 would be best served by sending the MDL to the
Southern District of Ohio. Bookmyer further suggests that both Chief Judge Algenon L. Marbley
1
https://www.fjc.gov/history/judges/brown-michael-lawrence;
https://en.wikipedia.org/wiki/Michael_Lawrence_Brown.
2
See https://www.uscourts.gov/sites/default/files/data_tables/cjra_8_0930.2019.pdf
at pp. 2,318-2,355; see also https://www.law.com/dailyreportonline/2019/11/21/us-judge-in-
atlanta-leads-nation-in-motions-pending-more-than-six-months/ (copy attached hereto as Ex. A).
2
Case MDL No. 2950 Document 156 Filed 06/17/20 Page 3 of 5
and Judge Edmund A. Sargus, who is currently presiding over the Bookmyer Action, are
particularly well-suited to preside over this MDL.
First, the Southern District of Ohio (Columbus Division) is a convenient and economical
forum. It is centrally located, readily accessible to the rest of the nation, and cost-effective to
visit for the litigants and counsel. Columbus is served by the John Glenn International Airport,
located only six miles from downtown Columbus and the Joseph P. Kinneary Courthouse. Travel
times from the airport to the federal courthouse in Columbus are approximately 15 to 30 minutes
depending on the time of day.
Second, the Southern District of Ohio has the necessary experience and qualifications to
handle an MDL. Historically, the Southern District of Ohio has hosted 20 MDLs.3 The District
currently has only two pending MDLs, both before Judge Sargus.4 Two MDLs assigned to the
district have been terminated in the prior two years, making it underutilized currently.5
Third, the Southern District of Ohio is the current venue of two pending Paycheck
Protection Program “agent fee” class actions involving 15 different defendant banks - the
Bookmyer Action and David S. Lowry, CPA, Ltd. v. U.S. Bancorp, SD Ohio Case No. 1:20-cv-
00348 (J. Matthew W. McFarland). The filing of these cases in the Southern District of Ohio
reflect the fact that the district has a strong connection to the banking industry, including many
of the defendant banks, both national and regional in scope.
3
https://www.jpml.uscourts.gov/sites/jpml/files/JPML_Cumulative_Terminated_Litigations-FY-
2019.pdf.
4
https://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_District-June-15-
2020.pdf.
5
https://www.jpml.uscourts.gov/sites/jpml/files/JPML_Cumulative_Terminated_Litigations-FY-
2019.pdf.
3
Case MDL No. 2950 Document 156 Filed 06/17/20 Page 4 of 5
Columbus, Ohio, is the headquarters of Huntington National Bank, the fourth most active
SBA lender bank.6 Columbus is the site of JP Morgan Chase’s largest facility in the world, and
Chase employs more than 19,200 employees in Columbus.7 Columbus is also the location of a
significant regional office of PNC Bank, and nearby Cincinnati is the headquarters of Fifth Third
Bank.
While all of the active-duty judges in the Southern District of Ohio with the necessary
experience to preside over an MDL (which includes Chief Judge Marbley and Judges Sargus,
Michael Watson, and Timothy Black) would be appropriate, both Chief Judge Marbley and
Judge Sargus are particularly suited to preside over this MDL.
Chief Judge Marbley has served over 22 years on the federal bench, with extensive civil
litigation experience prior to his appointment. He is an adjunct professor of trial advocacy at The
Ohio State University College of Law and an instructor of trial advocacy at Harvard University
Law School. While he has never presided over an MDL, he most certainly has the necessary
“time and experience to steer this litigation on a prudent course and sitting in a district with the
capacity to handle this litigation.” In re Motor Fuel Temperature Sales Practices Litig., 493 F.
Supp. 2d 1365, 1367 (J.P.M.L. 2007).
Finally, Judge Sargus is a well-respected and experienced MDL judge. During his nearly
24 years of service on the federal bench, he has presided over three MDLs. MDL No. 1315
(SmarTalk TeleServices, Inc., SEC) (terminated 2008), MDL Case No. 2433 (E. I. du Pont de
Nemours and Company C-8 Personal Injury Litigation); MDL Case No. 2846 (Davol, Inc./C.R.
Bard, Inc., Polypropylene Hernia Mesh Products Liability Litigation). While two of these MDLs
remain pending before him, MDL Case No. 2433 (C-8 Personal Injury Litigation) appears near
6
https://www.sba.gov/article/2020/mar/02/100-most-active-sba-7a-lenders.
7
https://careers.jpmorgan.com/us/en/about-us/locations/columbus.
4
Case MDL No. 2950 Document 156 Filed 06/17/20 Page 5 of 5
completion and may even be resolved and/or returned to the Panel by the time the Panel rules on
this matter. Even if he is not personally assigned this MDL, Judge Sargus would prove to be a
valuable source of information and counsel for Judge Marbley and/or any other Southern District
of Ohio judge assigned this MDL.
In short, Chief Judge Marbley and Judge Sargus have the experience, temperament, and
skill to effectively manage and supervise this MDL action.
III. CONCLUSION
Interested Party Bookmyer supports consolidation. Bookmyer also submits that the
Southern District of Ohio should be the site of the MDL, and the matter should be assigned to
Chief Judge Algenon L. Marbley or the Hon. Edmund A Sargus.
Dated: June 17, 2020 Respectfully submitted,
/s/ James E. Arnold
James E. Arnold (Ohio Bar # 0037712)
ARNOLD & CLIFFORD LLP
115 W. Main St., Suite 400
Columbus, Ohio 43215-5099
Ph: 614-460-1600
Fx: 614-469-1066
Email: jarnold@arnlaw.com
Counsel for Plaintiffs William Bookmyer,
Bookmyer & Associates CPA, Inc., Alex
Boytan and Boytan & Associates, LLP
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