Court filing
RESPONSE IN OPPOSITION -- (re: pldg. ( 171 in MDL No. 2950), ( 1 in MDL No. 2950) )… — Agent Fee Litigation (Dkt. 181)
Summary
A supplemental opposition by defendants described as the Ohio Defendants to Alliant CPA Group's motion for transfer of actions, in In re Paycheck Protection Program (PPP) Agent Fee Litigation, MDL Docket No. 2950, filed June 17, 2020 with the United States Judicial Panel on Multidistrict Litigation as Document 181. It opposes transfer of two agent fee cases filed in the Southern District of Ohio, Lowry v. U.S. Bancorp, No. 1:20-cv-00348-MWM, and Bookmyer v. PNC Bank, N.A., No. 2:20-cv-02284-EAS-EPD. It argues that dispositive motions to dismiss are on file in both cases, that the actions lack predominating common questions of fact, and that transfer would not serve the convenience of parties and witnesses under 28 U.S.C. § 1407. It states that both complaints raise Ohio common law claims not pleaded elsewhere. The filing is ten pages.
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Case MDL No. 2950 Document 181 Filed 06/17/20 Page 1 of 10
BEFORE THE UNITED STATES JUDICIAL PANEL
ON MULTIDISTRICT LITIGATION
IN RE PAYCHECK PROTECTION PROGRAM
MDL DOCKET NO. 2950
(PPP) AGENT FEE LITIGATION
SUPPLEMENTAL OPPOSITION OF THE “OHIO DEFENDANTS”
TO ALLIANT CPA GROUP’S MOTION FOR TRANSFER OF ACTIONS
This supplemental opposition is respectfully submitted by defendants who only
appear in one or both of two agent fee cases filed by Ohio residents in the United States District
Court for the Southern District of Ohio.1 The undersigned “Ohio Defendants”2 oppose transfer
for all the reasons expressed in the opposition memorandum filed today by Synovus Bank, which
they join. The Ohio Defendants write separately to call the Panel’s attention to additional
reasons why transfer of the two Ohio cases would be especially inappropriate for the Ohio
Defendants, each of which is headquartered either in Ohio or within 40 miles of an Ohio border.
See Lowry Compl. ¶¶ 10-11 (Fifth Third Bancorp and Fifth Third Bank, N.A. headquartered in
Cincinnati, Ohio); id. ¶¶ 8-9 (First Financial Bancorp and First Financial Bank headquartered in
Cincinnati, Ohio); id. ¶¶ 6-7 (Huntington Bancshares Incorporated and The Huntington National
Bank headquartered in Columbus, Ohio); id. ¶ 12 (North Side Bank & Trust Company
headquartered in Cincinnati, Ohio); id. ¶¶ 4-5 (PNC Financial Services Group, Inc. and PNC
Bank, N.A. headquartered in Pittsburgh, PA); see also Bookmyer Am. Compl. ¶ 27 (CME
1
The Ohio cases are Lowry v. U.S. Bancorp., et al., No. 1:20-cv-00348-MWM (S.D. Ohio filed April 30, 2020) and
Bookmyer v. PNC Bank, N.A., et al., No. 2:20-cv-02284-EAS-EPD (S.D. Ohio filed May 5, 2020). Bookmyer did
not appear in the motion to transfer pending before the Panel, but was identified via Notice of Related Action filed
by the Bookmyer Plaintiffs on June 9, 2020. See CM/ECF No. 25.
2
The Ohio Defendants are CME Federal Credit Union, Fifth Third Bancorp, Fifth Third Bank, N.A., First Financial
Bancorp., First Financial Bank, Huntington Bancshares Incorporated, The Huntington National Bank, The North
Side Bank & Trust Company, PNC Financial Services Group, Inc., PNC Bank, N.A., and Telhio Credit Union.
PNC Financial Services Group, Inc. appears as a defendant only in Lowry v. U.S. Bancorp., et al. On the eve of this
filing, PNC Financial Services Group, Inc. learned of an additional agent fee action filed against it the Northern
District of Illinois for which it has yet to receive service. See Winner v. PNC Financial Services Group, Inc., No.
1:20-cv-03515 (N.D. Ill. filed June 16, 2020).
Case MDL No. 2950 Document 181 Filed 06/17/20 Page 2 of 10
Federal Credit Union headquartered in Columbus, Ohio); id. ¶ 35 (Telhio Credit Union
headquartered in Columbus, Ohio). Moreover, both complaints include Ohio common law
claims that do not appear in any of the other actions proposed for transfer.
Pending motions to dismiss. The two Ohio complaints (like the other agent fee
cases) rest on the flawed legal premise that the CARES Act and related regulations entitle agents
to be paid, and also raise claims under Ohio state law not pleaded elsewhere. Fully dispositive
motions to dismiss in both Ohio cases demonstrating that plaintiffs’ claims have no basis under
federal or state law are already on file.3 See Ex. A4 (Bookmyer Defs.’ Joint Motion to Dismiss,
June 16, 2020); Ex. B. (Lowry Defs.’ Joint Motion to Dismiss, June 3, 2020). The motions are
straightforward, the Ohio judges presiding over the two cases are fully capable of resolving
them, and the Ohio Defendants expect both cases will be dismissed before any need ever arises
for coordinated pretrial discovery. To sweep these cases out of Ohio, with their Ohio plaintiffs
and Ohio defendants, and require a non-Ohio judge to consider the motions to dismiss, including
the Ohio state-law issues embedded in both, would neither serve the “convenience of parties and
witnesses” nor “promote the just and efficient conduct” of either case. 28 U.S.C. § 1407; see In
re ATM Interchange Fee Antitrust Litig., 350 F. Supp. 2d 1361, 1362-63 (J.P.M.L. 2004)
(transfer should be denied where pending motions may moot the multidistrict proceedings); see
also In re Ecuadorian Oil Concession Litig., 487 F. Supp. 1364 (J.P.M.L. 1980) (denying motion
to transfer where centralization “could delay the termination of [one] action without producing
any overriding benefits”).
3
The motions to dismiss were joined by all undersigned Ohio Defendants except CME Federal Credit Union and
Telhio Credit Union.
4
Submitted herewith is the Declaration of Jonathan M. Moses. Exhibit citations refer to the exhibits to the Moses
Declaration.
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Case MDL No. 2950 Document 181 Filed 06/17/20 Page 3 of 10
Lack of common factual questions. Even if the Ohio cases could survive the
motions to dismiss, they have virtually no facts in common with the other agent fee cases
proposed for transfer. Panel decisions require that common questions of fact “predominate.”
E.g., In re Pharmacy Ben. Plan Administrators Pricing Litig., 206 F. Supp. 2d 1362, 1363
(J.P.M.L. 2002). The complaints before the Panel may have a facial resemblance, but that is
only because a single, coordinated group of counsel filed many cookie-cutter pleadings against
more than 70 defendants across multiple different districts. That is not a basis for MDL
consolidation. In re Linear Gadolinium-Based Contrast Agents Products Liab. Litig., 341 F.
Supp. 3d 1381, 1382 (J.P.M.L. 2018) (finding consolidation unwarranted given a significant
overlap in plaintiffs’ counsel and co-counsel across actions). But more to the point, even a
cursory skim of the bare-bones complaints reveals the disparate and diverse facts that underlie
each of the claims of each of the individual agents in each of the cases proposed for transfer.
The gist of all these cases is that lenders allegedly should have paid agents for
assisting borrowers to submit PPP loan applications. Even if there were any legal merit to that
overarching theory (and there is not), each and every claim to fees would turn on facts that are
unique to each purported agent, each loan applicant that he or she allegedly helped, and each
lender to which the applications were allegedly submitted. For example, while the claims in the
Ohio cases rest on the premise that agents are entitled to fees when they help clients obtain PPP
funding, the Lowry complaint does not allege that any particular applicants actually received a
PPP loan from any particular lender, and the Bookmyer plaintiffs’ shotgun pleading concedes
that only some of the applications that the Bookmyer plaintiffs helped prepare were ultimately
funded. See Lowry Compl. ¶ 31; Bookmyer Am. Compl. ¶¶ 38-39, 49-50. In both complaints,
there is scant detail on the actual services performed by the alleged agents. But, even assuming
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Case MDL No. 2950 Document 181 Filed 06/17/20 Page 4 of 10
the alleged agents were entitled to fees, the size of any fees would turn on a fact-intensive
inquiry for each agent, the nature of the services rendered to each loan applicant, and the details
of the agent’s written compensation agreement. See 13 C.F.R. § 103.5 (requiring execution and
disclosure of a written agreement to govern any compensation to be paid to an agent in
connection with any loan guaranteed by the Small Business Administration).
In terms of agent communications with lenders, the Bookmyer plaintiffs allege
they approached only some of the defendant lenders about fees, but not all, while the Lowry
plaintiffs do not allege that they contacted any lenders about agent fees. Bookmyer Am. Compl.
¶¶ 11-12, 40, 44, 51, 53; see generally Lowry Compl. And each lender has its own specific
approach to agent fees, which would need to be considered if these cases proceed. Among the
Ohio Defendants, PNC, Huntington, and First Financial each posted public notices making clear
they would not pay agent fees on PPP loans, while other lenders communicated their policies
differently. See Bookmyer Am. Compl. ¶ 10; Ex. B (Lowry Defs.’ Joint Motion to Dismiss at 4,
n. 4).
Alliant CPA Group’s moving papers gloss over these differences and point
instead to the statute and rules that are common to the agents’ claims. Movant’s Mem. in Supp.
of Motion for Transfer at 8, May 20, 2020, CM/ECF No. 1-1 (“The core facts at issue here are
the same, including the same CARES Act, the same SBA Regulations . . . , and the same rules . .
. .”). But the proper interpretation of the CARES Act and SBA regulations and rules is a legal
question that will be resolved by the Ohio Defendants’ motions to dismiss and is dispositive of
plaintiffs’ claims and, as legal issues, would not be a basis for MDL treatment in any event.
And, if the cases survive the motions to dismiss, the peculiar facts underlying each agent fee
claim preclude any reasonable expectation that pretrial coordination on a national level will do
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Case MDL No. 2950 Document 181 Filed 06/17/20 Page 5 of 10
anything to streamline the resolution of factual issues. See In re Proton-Pump Inhibitor Prod.
Liab. Litig., 273 F. Supp. 3d 1360 (J.P.M.L. 2017) (denying consolidation where significant
defendant-specific discovery was required); see also In re “Truckin” Cartoon Characters Copy.
Litig., 372 F. Supp. 1400, 1401 (J.P.M.L. 1974) (denying motion to transfer where discovery
would necessarily focus on individualized conduct).
Inconvenience and inefficiency. Transfer of the Ohio cases into a national MDL
would not serve the “convenience of the parties and witnesses” or “promote the just and efficient
conduct” of either action, as the MDL statute requires. 28 U.S.C. § 1407. The Ohio Defendants,
as set forth above, are headquartered either in or just outside Ohio, and they are not named in any
of the other agent fee cases currently proposed by Movant for transfer, all of which were filed in
other states. The named plaintiffs in both Ohio cases are likewise based in Ohio. Lowry Compl.
¶ 1; Bookmyer Am. Compl. ¶¶ 20-23.5 In light of the defendant-specific discovery that
plaintiffs’ fact-intensive claims would require if either case were to proceed to discovery, the
convenience of the parties and witnesses would best be served by keeping the cases where the
plaintiffs filed them, subject to possible coordination by the two Southern District of Ohio judges
to whom they are assigned. See, e.g., In re CP4 Fuel Pump Mktg., Sales Practices, & Prod.
Liab. Litig., 412 F. Supp. 3d 1365, 1366-67 (J.P.M.L. 2019) (declining to centralize where
actions presented “numerous [defendant]-specific and plaintiff-specific issues” and centralization
“likely would result in significant inefficiencies and delay, without producing any substantial
offsetting benefits”).
5
Nor is the convenience of Plaintiffs’ counsel a factor that deserves any weight when determining whether an action
should be transferred or consolidated. See In re DirectBuy, Inc., Mktg. & Sales Practices Litig., 682 F. Supp. 2d
1349, 1350-51 (J.P.M.L. 2010) (citing In re Anthracite Coal Antitrust Litig., 436 F. Supp. 402, 403 (J.P.M.L.
1977)). Section 1407 is not a tool to manipulate the judicial system for the benefit of counsel.
-5-
Case MDL No. 2950 Document 181 Filed 06/17/20 Page 6 of 10
The Ohio Defendants note that JPMorgan Chase has favored MDL treatment of
agent fee cases pending against it across multiple jurisdictions, but has not proposed transfer of
claims against other lenders. See JPMorgan Chase’s Response to Motion to Transfer, June 17,
2020, CM/ECF No. 158. That approach may promote convenience and efficiency for whatever
defendant-specific discovery may be required from a defendant who has been sued in multiple
jurisdictions around the country, largely in locations far from its headquarters.6 But that logic
does not apply to the Ohio Defendants, who, to date, have appeared as defendants in only one
district, the Southern District of Ohio, and, in large part, are headquartered in Ohio. Indeed,
certain of the Ohio Defendants maintain a physical presence exclusively within the State of
Ohio. For example, all nine of North Side Bank & Trust Company’s physical locations are in the
Greater Cincinnati Area. Accordingly, should the Panel see fit to order the transfer of claims in
the Ohio cases against defendants whom agents have sued across a broader geographic footprint,
the Ohio Defendants would respectfully urge the Panel to remand the claims against the Ohio
Defendants to the Southern District of Ohio where they belong.
Alternative means of coordination. Finally, the Panel’s precedents are clear
that MDL transfer is inappropriate where less drastic alternatives are available to promote
convenience and efficiency for the parties and the courts. In re Linear Gadolinium-Based
Contrast Agents Prod. Liab. Litig., 341 F. Supp. 3d at 1382 (J.P.M.L. 2018) (recognizing
centralization is the “last solution after considered review of all other options”). As evidenced
by this joint filing and the joint motions to dismiss filed in the two Ohio cases, counsel for the
Ohio Defendants have already established an efficient local coordination mechanism, and
6
To the extent that any defendant joins Movant Alliant CPA Group in arguing that an MDL for all cases and claims
is warranted due to a common threshold issue of law, the position is likewise incorrect. See In re ABA Law Sch.
Accreditation Litig., 325 F. Supp. 3d 1377, 1378 (J.P.M.L. 2018) (describing movants’ effort to centralize cases to
avoid having different federal courts decide the same issue as insufficient to justify transfer).
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Case MDL No. 2950 Document 181 Filed 06/17/20 Page 7 of 10
welcome any additional measures the Southern District of Ohio courts might implement to
minimize the burdens on the judicial system, the parties, and any potential witnesses, including
potential consolidation of the two Ohio cases. Transfer of the Ohio cases and the Ohio
Defendants into a national MDL, with a huge and likely unwieldy group of over 115 lender
defendants, will only make these Ohio cases more difficult for the parties and the courts.
* * *
For the foregoing reasons, as well as the reasons set forth in Synovus Bank’s
opposition to the transfer motion, the Ohio Defendants respectfully submit that Alliant CPA
Group’s motion for transfer should be denied with regard to the two agent fee cases pending in
the Southern District of Ohio, which are the only two cases currently pending before the Panel in
which any of the undersigned Ohio Defendants appear as defendants.
Dated: June 17, 2020 /s/ Jonathan M. Moses
Jonathan M. Moses
Jeohn Salone Favors
Brittany A. Fish
WACHTELL, LIPTON, ROSEN & KATZ
51 West 52nd Street
New York, NY 10019
Telephone: (212) 403-1000
E-mail: JMMoses@wlrk.com
E-mail: JFavors@wlrk.com
E-mail: BAFish@wlrk.com
Anthony J. O’Malley
Angelyne E. Lisinski
VORYS, SATER, SEYMOUR AND PEASE LLP
200 Public Square, Suite 1400
Cleveland, OH 44144
Telephone: (216) 479-6100
Email: ajomalley@vorys.com
Email: aelisinski@vorys.com
Counsel for Defendants PNC Financial Services
Group, Inc. and PNC Bank, N.A.
-7-
Case MDL No. 2950 Document 181 Filed 06/17/20 Page 8 of 10
/s/ Elaine Golin
Elaine Golin
Kevin M. Jonke
WACHTELL, LIPTON, ROSEN & KATZ
51 West 52nd Street
New York, NY 10019
Telephone: (212) 403-1000
E-mail: EPGolin@wlrk.com
E-mail: KMJonke@wlrk.com
H. Toby Schisler
DINSMORE & SHOHL LLP
255 E. Fifth Street, Suite 1900
Cincinnati, OH 45202
Telephone: (513) 977-8100
Email: toby.schisler@dinsmore.com
D. Michael Crites
DINSMORE & SHOHL LLP
191 W. Nationwide Blvd, Suite 300
Columbus, OH 43215
Telephone: (614) 628-6900
Email: michael.crites@dinsmore.com
Counsel for Defendants Huntington Bancshares
Incorporated and The Huntington National Bank
/s/ Nathaniel Lampley, Jr.
Nathaniel Lampley, Jr.
Jeffrey A. Miller
Joseph M. Brunner
Wesley R. Abrams
VORYS, SATER, SEYMOUR AND PEASE LLP
301 East Fourth Street
Great American Tower, Suite 3500
Cincinnati, OH 45202
Telephone: (513) 723-4616
E-mail: nlampley@vorys.com
E-mail: jamiller@vorys.com
E-mail: jmbrunner@vorys.com
E-mail: wrabrams@vorys.com
Counsel for Defendants Fifth Third Bancorp and
Fifth Third Bank, National Association
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Case MDL No. 2950 Document 181 Filed 06/17/20 Page 9 of 10
/s/ James E. Burke
James E. Burke
Drew M. Hicks
Sophia R. Holley
Amanda Stubblefield
KEATING MUETHING & KLEKAMP PLL
One East Fourth Street, Suite 1400
Cincinnati, OH 45202
Telephone: (513) 579-6400
E-mail: JBurke@KMKLaw.com
E-mail: DHicks@KMKLaw.com
E-mail: SHolley@KMKLaw.com
E-mail: AStubblefield@KMKLaw.com
Counsel for Defendants First Financial Bancorp
and First Financial Bank
/s/ Ryan S. Lett
James C. Frooman
Ryan S. Lett
FROST BROWN TODD LLC
3300 Great American Tower
301 East Fourth Street
Cincinnati, OH 45202
Telephone: (513) 651-6800
E-mail: jfrooman@fbtlaw.com
E-mail: rlett@fbtlaw.com
Counsel for Defendant The North Side Bank &
Trust Company
/s/ Steven David Forry
Steven David Forry
Kishala Srivastava
Kristina S. Dahmann
ICE MILLER LLP
250 West Street
Columbus, OH 43215-7513
Telephone: (614) 462-2254
Email: steven.forry@icemiller.com
Email: kishala.srivastava@icemiller.com
Email: kristina.dahmann@icemiller.com
Counsel for CME Federal Credit Union
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Case MDL No. 2950 Document 181 Filed 06/17/20 Page 10 of 10
/s/ David K. Stein
David K. Stein
Daniel C. Gibson
BRICKER & ECKLER LLP
100 South Third Street
Columbus, OH 43215
Telephone: (614) 227-7740
Email: dstein@bricker.com
Email: dgibson@bricker.com
Counsel for Telhio Credit Union
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