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RESPONSE IN OPPOSITION -- (re: pldg. ( 1 in MDL No. 2950) ) Filed by Defendants… — Agent Fee Litigation (Dkt. 168)
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A response in opposition filed June 17, 2020 with the United States Judicial Panel on Multidistrict Litigation in In re Paycheck Protection Program ("PPP") Agent Fees Litigation, MDL No. 2950, as Document 168. First National Bank of Pennsylvania and F.N.B. Corp. oppose Alliant CPA Group, LLC's Motion for Transfer of Actions under Rule 6.1(c) and join oppositions filed by Synovus Bank and the Regional and Small Bank Group. The response states that FNB is a defendant in one suit, brought by HallockShannon, P.C. in the Western District of Pennsylvania, and argues that no common questions of fact exist, that transfer to Georgia or Arizona would be inconvenient, and that consolidation is premature given FNB's planned motion to dismiss. It is eight pages, signed by Blank Rome LLP counsel, with a certificate of service.
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Case MDL No. 2950 Document 168 Filed 06/17/20 Page 1 of 8
BEFORE THE UNITED STATES JUDICIAL PANEL
ON MULTIDISTRICT LITIGATION
IN RE PAYCHECK PROTECTION MDL No. 2950
PROGRAM (“PPP”) AGENT FEES
LITIGATION
FIRST NATIONAL BANK OF PENNSYLVANIA AND F.N.B. CORP.’S
RESPONSE IN OPPOSITION TO ALLIANT CPA GROUP LLC’S
MOTION FOR TRANSFER OF ACTIONS
Pursuant to Rule 6.1(c) of the Rules of Procedure for the United States Judicial Panel on
Multidistrict Litigation, First National Bank of Pennsylvania and F.N.B. Corp. (collectively,
“FNB”), hereby oppose Alliant CPA Group, LLC’s (“Alliant”) Motion for Transfer of Actions
(“Motion”). FNB also joins in the Oppositions filed by Synovus Bank and the Regional and Small
Bank Group, but files this short Opposition to raise FNB’s particularized issues and arguments.
I. INTRODUCTION
FNB opposes transfer and consolidation, and Alliant’s Motion should be denied because
none of the requirements for consolidation are satisfied. FNB is a defendant in exactly one relevant
lawsuit, pending in the United States District Court for the Western District of Pennsylvania in
Pittsburgh, Pennsylvania. In that suit, the Plaintiff, HallockShannon, P.C., is a Pennsylvania
professional corporation that provides accounting and other services to business clients and has
offices located in Wyalusing and Tunkhannock, Pennsylvania. Plaintiff HallockShannon asserts
various Pennsylvania state law claims seeking to recover certain alleged “agent fees” from the
various named defendant banks for assisting its business clients with preparing their loan
applications under the Paycheck Protection Program (“PPP”). However, the factual claims against
FNB share no common facts with any of the other PPP bank or lender defendants, even those bank
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Case MDL No. 2950 Document 168 Filed 06/17/20 Page 2 of 8
defendants named in the same lawsuit, because the bank defendants are unrelated and acted
independently. None of the bank defendants are alleged to have any involvement in the same
purported transaction, occurrence or series of transactions with any plaintiff. Lacking any common
facts, there would be no efficiencies gained by consolidating the HallockShannon lawsuit with the
other PPP lawsuits. To the contrary, FNB would be significantly inconvenienced by Alliant’s
proposed consolidation. Alliant is advocating Georgia or Arizona as the proposed venue for
consolidation. FNB has no bank branches or offices in either Georgia or Arizona. Rather, FNB
is headquartered in Pittsburgh, Pennsylvania, the same venue where Plaintiff chose to file its
complaint and the HallockShannon case is pending. Indeed, the majority of FNB’s documents and
witnesses are located in Pittsburgh, so a transfer to a different venue – particularly a venue where
FNB has no offices or operations – would be a significant inconvenience. Moreover, the
HallockShannon case is pending before the Honorable Arthur J. Schwab, a Senior District Judge
that is well-known for moving his docket forward in a very prompt and efficient fashion. Thus,
Alliant’s proposed venues are particularly inappropriate for FNB and the Motion should be denied.
Further, Alliant’s Motion should be denied because it is premature. As other banks have
done or may decide to do, FNB intends to file a motion to dismiss. Like other motions to dismiss
that are already pending, FNB’s motion likely will attack substantive legal issues as well attacks
on the sufficiency of the operative complaint for failure to plead any actual factual allegations.
FNB has compelling dismissal arguments, which is further reason why these lawsuits should not
be consolidated. As this Panel has acknowledged, consolidation should not occur unless and until
it is needed. See In re ATM Interchange Fee Antitrust Litigation, 350 F. Supp. 2d 1361, 1362-63
(J.P.M.L. 2004); In re Republic W. Ins. Co. Ins. Coverage Litig., 206 F. Supp. 2d 1364, 1365
(J.P.M.L. 2002).
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Case MDL No. 2950 Document 168 Filed 06/17/20 Page 3 of 8
If some of the plaintiffs survive motions to dismiss as to some PPP defendants, it may be
appropriate to utilize coordinated discovery or transfers within districts for some of the PPP
defendants – unlike FNB – that are named in numerous similar, overlapping lawsuits. Moreover,
the majority of the claims raised in these PPP lawsuits – including the HallockShannon case – are
premised upon state law, which necessarily varies from state to state. A Judge in Georgia (or
Arizona or New York) necessarily lacks the deep familiarity with Pennsylvania law that Judge
Schwab has acquired over nearly 20 years of experience on the Western Pennsylvania federal
bench and 30 years in private practice as a Pennsylvania lawyer. For FNB, consolidation and
transfer are simply inappropriate. With only one pending suit against FNB in Western
Pennsylvania, transfer will significantly increase the costs and complexity of litigation, with no
attending efficiencies or benefits. Thus, Alliant’s Motion should be denied.
II. THE MOTION TO TRANSFER SHOULD BE DENIED.
A. Applicable Legal Standard
When civil actions involving one or more common questions of fact are pending in
different districts, such actions may be transferred by this Panel upon its determination that
transfers for such proceedings will be for the convenience of parties and witnesses and will
promote the just and efficient conduct of such actions. 28 U.S.C.A. § 1407. Centralization of
actions pending in different districts is appropriate only if: (1) one or more common questions of
fact exist among the actions; (2) transfer would be more convenient for the parties and witnesses;
and (3) transfer would promote the just and efficient conduct of the actions. Id. The movant bears
the “burden of demonstrating the need for centralization.” In re Best Buy Co., Inc., Cal. Song-
Beverly Credit Card Act Litig., 804 F. Supp. 2d 1376, 1379 (J.P.M.L. 2011). In this case, Alliant
cannot meet any of these factors, particularly as it relates to FNB.
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Case MDL No. 2950 Document 168 Filed 06/17/20 Page 4 of 8
B. No Common Questions of Fact Exist Among the PPP Bank Defendants.
As FNB is unrelated to any other PPP defendants and acted independently in processing
PPP loans, there are no common factual questions relating to FNB that would benefit from
consolidated litigation. The Panel has made clear that “numerosity of actions” will not support
centralization without “sufficient common questions of fact to warrant Section 1407 transfer.” In
re Not-for-Profit Hospitals/Uninsured Patients Litigation, 341 F. Supp. 2d 1354, 1355 (J.P.M.L.
2004). Common factual issues must “predominate over individual factual issues.” In re
Westinghouse Elec. Corp. Employment Discrimination Litigation, 438 F. Supp. 937, 939 (J.P.M.L.
1977); see also In re Pharmacy Benefit Plan Adm’rs Pricing Litigation, 206 F. Supp. 2d 1362,
1363 (J.P.M.L. 2002) (denying transfer where “unique questions of fact predominate over any
common questions”). In the PPP context, the pleadings and briefings to date indicate that the
individual PPP defendants have taken various positions regarding the payment of agent fees and
the timing of any such payments, further demonstrating the lack of uniform common factual issues.
C. Alliant Cannot Demonstrate That Transfer Would Be More Convenient
for FNB and its Witnesses.
Consolidation may “serve the convenience of the parties and witnesses” and “promote the
just and efficient conduct of the litigation” where it would accomplish such efficiencies as
“eliminat[ing] duplicative discovery,” “prevent[ing] inconsistent pretrial rulings,” and
“conserve[ing] the resources of the parties, their counsel and the judiciary.” In re Airline Baggage
Fee Antitrust Litig., 655 F. Supp. 2d 1362, 1362-63 (J.P.M.L. 2009). However, even in the
presence of “some factual overlap,” where the pending actions may “proceed in an orderly
manner” in their original jurisdictions, consolidation is not appropriate. In re Snider, No. MDL
No. 2934, 2020 U.S. Dist. LEXIS 54442, at *1-2 (J.P.M.L. Mar. 27, 2020).
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Here, consolidation would not eliminate duplicative discovery or conserve resources. To
the contrary, FNB – a defendant in a single PPP case – would be subjected to omnibus discovery
requests and demands that would merely increase their overall expense and inefficiency. A few
extremely large, systemically important banks that have been sued in multiple jurisdictions and
have a presence in many more states may decide that there is some potential benefit from some
consolidation and coordinated discovery of their particular cases. But, FNB would undoubtedly
suffer increased delay, burden and expense if forced into a MDL proceeding where non-related,
larger banks would attempt to address their individual issues and arguments and FNB would need
to wait for the adjudication of issues for all such unrelated PPP defendants. Moreover, the majority
of claims in these PPP actions are state law claims, which will necessarily vary from state to state,
and are inappropriate for consolidation. See In re DirectTV, Inc., Fair Labor Standards Act &
Wage & Hour Litig., 84 F. Supp. 3d 1373, 1375 (J.P.M.L. Feb. 6, 2015) (denying centralization of
eleven actions where plaintiffs’ claims implicated multiple states’ laws); In re Title Ins. Real Estate
Settlement Procedures Act (RESPA) & Antitrust Litig., 560 F. Supp. 2d 1374, 1375 (J.P.M.L. 2008)
(denying centralization of 25 actions involving “different regulatory regimes in the states in which
the actions [we]re pending along with variances in insurance regulation and law in each state”).
D. FNB’s Forthcoming Dispositive Motion Also Demonstrates That
Consolidation is Premature, At Best.
FNB – like other PPP defendants – has strong legal arguments for dismissal upon lack of
standing, as well as the legal insufficiency of the pleading. As a threshold matter, and putting
aside the impermissible group pleading, Plaintiff HallockShannon failed to allege that any
defendant bank received any of the lender fees. Thus, the Plaintiff is necessarily speculating as to
what lenders will pay or will not pay agent fees, or whether any agent fees are even required.
Plaintiff also did not allege facts demonstrating that it had satisfied all of the requirements for any
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purported agent fee. As a result, there is a high likelihood that many of the cases can be addressed
through dismissal on grounds of lack of standing, or ripeness, depending on the individual
circumstances of each case. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (holding
that a plaintiff lacks standing if it cannot demonstrate a concrete and particularized injury-in-fact);
Finkelman v. Nat'l Football League, 810 F.3d 187, 194 (3d Cir. 2016) (holding that “[s]peculative
or conjectural assertions are not sufficient” to establish standing); Coons v. Lew, 762 F.3d 891,
898 (9th Cir. 2014) (holding that speculative allegations of future injury do not satisfy the
constitutional requirement of ripeness); Sammons v. Nat'l Comm'n on Certification of Physician
Assistants, Inc., 104 F. Supp. 2d 1379, 1381 (N.D. Ga. 2000) (quoting Texas v. U.S., 523 U.S. 296,
300 (1998)) (“A claim is not ripe for adjudication if it rests upon ‘contingent future events that
may not occur as anticipated, or indeed may not occur at all.’”).
This Panel has acknowledged that cases should not be centralized where dispositive motion
practice offers a reasonable prospect of weeding out claims and reducing the number of plaintiffs
and cases. See In re ATM Interchange Fee Antitrust Litigation, 350 F. Supp. 2d at 1362-63
(recognizing that transfer should be denied where pending rulings or motions may moot the
multidistrict proceedings); see also In re The Boeing Company Employment Practices Litigation,
293 F. Supp. 2d 1382, 1383 (J.P.M.L. 2003) (denying transfer motion when Panel believed that a
summary judgment motion “may be filed shortly”). Transfer is likely only to slow this process as
the transferee court is confronted with separate dispositive motions involving different facts and
issues for each case, particularly where a defendant – like FNB – is only involved in one relevant
lawsuit.
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Case MDL No. 2950 Document 168 Filed 06/17/20 Page 7 of 8
III. CONCLUSION
For the foregoing reasons, First National Bank of Pennsylvania and F.N.B. Corp.
respectfully request that the Panel deny Alliant’s Motion and the proposed transfer and
centralization.
Dated: June 17, 2020 Respectfully submitted,
BLANK ROME LLP
/s/ Roy W. Arnold
Roy W. Arnold (PA I.D. 70544)
Joseph E. Culleiton (PA I.D. 82823)
Shawna J. Henry (PA I.D. 316881)
501 Grant Street, Suite 850
Pittsburgh, PA 15219
Phone: (412) 932-2800
Facsimile: (412) 932-2777
rarnold@blankrome.com
jculleiton@blankrome.com
shenry@blankrome.com
Counsel for Defendants First National
Bank of Pennsylvania and F.N.B. Corp.
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Case MDL No. 2950 Document 168 Filed 06/17/20 Page 8 of 8
CERTIFICATE OF SERVICE
I hereby certify that on this 17th day of June 2020, the foregoing First National Bank of
Pennsylvania and F.N.B. Corp.’s Response in Opposition to Alliant CPA Group LLC’s Motion
for Transfer of Actions was served upon all counsel of record via the electronic filing system.
/s/ Roy W. Arnold
Roy W. Arnold
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