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INTERESTED PARTY RESPONSE IN OPPOSITION -- (re: pldg. ( 171 in MDL No. 2950), ( 1 in… — Agent Fee Litigation (Dkt. 177)
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A response in opposition filed June 17, 2020 as Document 177 in MDL Docket No. 2950, In re: Paycheck Protection Program Agent Fees Litigation, before the United States Judicial Panel on Multidistrict Litigation. Filed under Rule 6.1(c) by defendants First Hawaiian Bank, Bank of Hawaii, Central Pacific Bank, American Savings Bank, F.S.B., and Kabbage, Inc. in Aloha Accounting & Tax, LLC v. First Hawaiian Bank, No. 1:20-cv-00254-JAO-RT (D. Haw.), it opposes the motion to transfer actions to the Northern District of Georgia under 28 U.S.C. § 1407 and joins the opposition brief filed by Synovus Bank at Docket No. 171. The response points to a June 9, 2020 order to show cause why the Hawaii action should not be dismissed, attached as Exhibit A, which it says notes the mandatory home state exception of 28 U.S.C. § 1332(d)(4)(B). It states the plaintiff's response was due June 23, 2020.
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Case MDL No. 2950 Document 177 Filed 06/17/20 Page 1 of 3
BEFORE THE UNITED STATES
JUDICIAL PANEL ON MULTIDISTRICT LITIGATION
IN RE: Paycheck Protection Program (“PPP”) MDL Docket No. 2950
Agent Fees Litigation
RESPONSE OF DEFENDANTS FIRST HAWAIIAN BANK, BANK OF HAWAII,
CENTRAL PACIFIC BANK, AMERICAN SAVINGS BANK, F.S.B., AND
KABBAGE, INC. IN OPPOSITION TO MOTION FOR TRANSFER OF ACTIONS
PURSUANT TO 28 U.S.C. § 1407
Pursuant to Rule 6.1(c) of the Rules of Procedure for the United States Judicial Panel on
Multidistrict Litigation, defendants in Aloha Accounting & Tax, LLC v. First Hawaiian Bank,
No. 1:20-cv-00254-JAO-RT (D. Haw.) (the “Aloha Accounting Action”) submit this
consolidated response in opposition to Alliant CPA Group LLC’s Motion for Transfer of Actions
to the Northern District of Georgia pursuant to 28 U.S.C. § 1407 for a Coordinated and/or
Consolidated Proceeding (the “Motion”).
1. To avoid duplicative filings, defendants First Hawaiian Bank, Bank of Hawaii,
Central Pacific Bank, American Savings Bank, F.S.B. (mistakenly sued as Hawaiian Electric,
Inc., d/b/a American Savings Bank), and Kabbage, Inc. (collectively, the “Hawaii Defendants”)1
hereby join in the opposition brief filed by Synovus Bank (Docket No. [171]), filed June 17,
2020.
2. There are additional grounds to deny the Motion with respect to the Aloha
Accounting Action. On June 9, 2020, Judge Jill A. Otake issued an Order to Show Cause Why
This Action Should Not Be Dismissed Without Prejudice (the “June 9 Order,” attached as
Exhibit A). The June 9 Order refers to the likely Hawaii citizenship of more than two-thirds of
1
The Hawaii Defendants have not yet been served in the Aloha Accounting Action. They makes a
special appearance herein and specifically reserve and do not waive any of their respective rights and defenses in
the Aloha Accounting Action.
#93300419v14
Case MDL No. 2950 Document 177 Filed 06/17/20 Page 2 of 3
the class members and nearly all defendants, and notes that the mandatory home state exception
likely deprives the court of jurisdiction. See June 9 Order at 3-5, citing 28 U.S.C. §1332(d)(4)(B)
(court “shall” decline jurisdiction where “two-thirds or more of the members of all proposed
plaintiff classes in the aggregate, and the primary defendants, are citizens of the State in which
the action was originally filed”). Plaintiff has until June 23, 2020 to respond. Id. at 4.
3. The Judicial Panel has repeatedly denied transfer when a previously pending
motion may render transfer unnecessary. See, e.g., In re ATM Interchange Fee Antitrust Litig.,
350 F. Supp. 2d 1361, 1362–63 (J.P.M.L. 2004) (denying transfer pursuant to § 1407 based on
the possibility that a previously-pending motion would render § 1407 transfer unnecessary); In
re Republic Western Insurance Co. Insurance Coverage Litigation, 206 F.Supp.2d 1364
(J.P.M.L. 2002) (“There is a reasonable prospect that the multidistrict character of the actions
here before us may be eliminated by district court action on motions presently pending in the
District of Massachusetts….”); In re The Boeing Company Emp’t Practices Litig., 293 F. Supp.
2d 1382, 1383 (J.P.M.L. 2003) (denying transfer motion based on Panel’s conclusion that
anticipated dispositive motion may resolve underlying action). Here, there is even greater reason
to deny the transfer given that the court has already signaled dismissal is likely.
Accordingly, and based on the various reasons and authorities more fully set forth in the
Synovus Opposition, the Hawaii Defendants respectfully request that the Panel deny the Motion.
Dated: June 17, 2020 Respectfully submitted,
/s/ Richard E. Gottlieb
Richard E. Gottlieb
MANATT, PHELPS & PHILLIPS, LLP
151 N. Franklin St., Suite 2600
Chicago, IL 60606
rgottlieb@manatt.com
P: (312) 529-6310, F: (312) 529-6315
Counsel for Defendant Bank of Hawaii
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Case MDL No. 2950 Document 177 Filed 06/17/20 Page 3 of 3
/s/ James R. McGuire
James R. McGuire
BUCKLEY LLP
555 California Street, Suite 4925
San Francisco, CA 94104
jmcquire@buckleyfirm.com
P: (415) 619-3415, F: (415) 619-3505
Counsel for Defendant First Hawaiian Bank
/s/ Nickolas A. Kacprowski
Nickolas A. Kacprowski
DENTONS US LLP
1001 Bishop St., Suite 1800
Honolulu, HI 96813
nickolas.kacprowski@dentons.com
P: (808) 524-1800, F: (808) 524-4591
Counsel for Defendant Central Pacific Bank
/s/ Kevin W. Herring
Kevin W. Herring
ASHFORD & WRISTON, LLLP
999 Bishop St.,Suite 1400
Honolulu, HI 96813
kherring@awlaw.com
P: (808) 539-0441, F: (808) 533-4945
Specially appearing counsel for Defendant
American Savings Bank, F.S.B. (misidentified
as Hawaiian Electric, Inc. dba American
Savings Bank)
/s/ Jeffrey A. Zachman
Jeffrey A. Zachman
DENTONS US LLP
303 Peachtree St., Suite 5300
Atlanta, GA 30308
jeffrey.zachman@dentons.com
P: (404) 527-8442, F: (404) 527-4198
Counsel for Defendant Kabbage, Inc.
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