RESPONSE IN OPPOSITION -- (re: pldg. ( 171 in MDL No. 2950), ( 1 in MDL No. 2950) )… — Agent Fee Litigation (Dkt. 179)

Summary

The joinder and response of defendant Cross River Bank in opposition to the motion for transfer of actions under 28 U.S.C. § 1407, filed June 17, 2020 as Document 179 before the United States Judicial Panel on Multidistrict Litigation in In re: Paycheck Protection Program (PPP) Agent Fees Litigation, MDL No. 2950. Cross River Bank, a defendant in A.D. Sims, LLC v. Wintrust Financial Corporation et al., No. 1:20-cv-002644 (N.D. Illinois), joins the opposition brief filed by Synovus Bank. It points the Panel to its pending motion to dismiss, attached as Exhibits A and B, and a briefing schedule in that action, attached as Exhibit C. Citing Panel decisions that denied transfer where a pending motion could make transfer unnecessary, it asks the Panel to deny the motion. The two-page response is signed by counsel at Manatt, Phelps & Phillips, LLP.

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          Case MDL No. 2950           Document 179           Filed 06/17/20   Page 1 of 2




                          BEFORE THE UNITED STATES
                 JUDICIAL PANEL ON MULTIDISTRICT LITIGATION

   IN RE: Paycheck Protection Program (“PPP”)                 MDL Docket No. 2950
   Agent Fees Litigation


     JOINDER AND RESPONSE OF DEFENDANT CROSS RIVER BANK 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, defendant Cross River Bank (mistakenly sued as Cross River Bank,

Inc.), one of the defendants in A.D. Sims, LLC v. Wintrust Financial Corporation et al., No.

1:20-cv-002644 (N.D. Illinois) (the “A.D. Sims Action”) hereby joins in the opposition brief filed

by Synovus Bank (Docket No. [171]), filed June 17, 2020 (the “Consolidated Response”).

       As further grounds for its opposition, Cross River Bank refers the Judicial Panel to Cross

River Bank’s motion to dismiss and supporting brief, attached as Exhibits A and B hereto. Judge

Edmond Chang has likewise set a briefing schedule, with plaintiff’s opposition due July 13, and

Cross River Bank’s reply due August 3, 2020. See Exhibit C. As is common in the Northern

District of Illinois, the Court will rule without hearing.

       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,
          Case MDL No. 2950          Document 179        Filed 06/17/20      Page 2 of 2




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 set a briefing schedule on the motion to dismiss, and

will be in the middle of its dismissal deliberations while the motion to transfer is pending.

       Accordingly, and based on the various reasons and authorities more fully set forth in the

Synovus Opposition, Cross River Bank respectfully request that the Judicial Panel deny the

Motion.

Dated: June 17, 2020                          Respectfully submitted,

                                              CROSS RIVER BANK

                                      By:     /s/ Richard E. Gottlieb
                                              Richard E. Gottlieb
                                              MANATT, PHELPS & PHILLIPS, LLP
                                              151 North Franklin Street, Suite 2600
                                              Chicago, IL 60606
                                              Telephone: (312) 529-6300
                                              Email: rgottlieb@manatt.com




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