Court filing
Exhibit B — Agent Fee Litigation (Dkt. 181.3)
Summary
Exhibit B to a filing in MDL No. 2950, filed June 17, 2020 as Document 181-3. The 26-page exhibit reproduces the defendants' joint motion to dismiss and supporting memorandum, dated June 3, 2020, in David S. Lowry, CPA, Ltd. v. U.S. Bancorp, Case No. 1:20-cv-00348-MWM, in the U.S. District Court for the Southern District of Ohio, Western Division. Nine bank defendants, among them PNC Bank N.A. and The Huntington National Bank, move under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss the complaint. The memorandum argues the plaintiff lacks standing because he does not allege a client received a Paycheck Protection Program loan, and that the CARES Act and its regulations impose no duty on lenders to pay unauthorized agents. It states more than 4.4 million borrowers had received over $510 billion and that the complaint seeks nearly $4 billion in fees.
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Full text
Case MDL No. 2950 Document 181-3 Filed 06/17/20 Page 1 of 26
EXHIBIT B
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
:
DAVID S. LOWRY, CPA, LTD., an :
Ohio limited partnership, individually
:
and on behalf of a class of similarly
:
situated businesses and individuals,
:
:
Case No. 1:20-cv-00348-MWM
Plaintiffs, :
:
Judge Matthew W. McFarland
v. :
:
U.S. BANCORP, et al., :
:
Defendants. :
________________________________ :
DEFENDANTS’ JOINT MOTION TO DISMISS
Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Defendants
PNC Financial Services Group, Inc., PNC Bank N.A., Huntington Bancshares Incorporated, The
Huntington National Bank, Fifth Third Bancorp, Fifth Third Bank, National Association, First
Financial Bancorp, First Financial Bank, and The North Side Bank & Trust Company
respectfully move to dismiss Plaintiff’s complaint with prejudice.1
A memorandum of law supporting this motion follows. For judicial efficiency,
defendants have combined their joint arguments in that memorandum. Certain defendants are
also filing short supplemental memoranda with arguments that may be specific to them.
1
Plaintiff’s counsel purported to serve the complaint by certified mail, but “the Federal Rules do not provide
for service . . . by certified mail.” Easterling v. Trump, No. 3:19-cv-112, 2019 WL 3543286, at *3 (S.D. Ohio Aug.
5, 2019). The Federal Rules “do allow service on an individual in accordance with the Ohio Rules of Civil
Procedure,” which “permit service on an individual by certified mail,” but in that case the certified mail “must be
[sent] by the Clerk of Court.” Id.; see Ohio R. Civ. P. 4.1(A). By this motion, defendants waive their objections to
defective service in this instance.
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Dated: June 3, 2020
/s/ Anthony J. O’Malley
Anthony J. O’Malley (0017506)
Jacob D. Mahle (0080797)
Angelyne E. Lisinski (0089699)
VORYS, SATER, SEYMOUR AND PEASE LLP
200 Public Square, Suite 1400
Cleveland, OH 44144
Telephone: (216) 479-6100
E-mail: ajomalley@vorys.com
Email: jdmahle@vorys.com
E-mail: aelisinski@vorys.com
Jonathan M. Moses (pro hac vice forthcoming)
Jeohn Salone Favors (pro hac vice forthcoming)
Brittany A. Fish (pro hac vice forthcoming)
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
Counsel for Defendants PNC Financial Services
Group, Inc. and PNC Bank N.A.
/s/ H. Toby Schisler
H. Toby Schisler (0068306)
DINSMORE & SHOHL LLP
255 E. Fifth Street, Suite 1900
Cincinnati, OH 45202
Telephone: (513) 977-8100
E-mail: toby.schisler@dinsmore.com
D. Michael Crites (0021333)
DINSMORE & SHOHL LLP
191 W. Nationwide Blvd, Suite 300
Columbus, OH 43215
Telephone: (614) 628-6900
E-mail: michael.crites@dinsmore.com
Elaine Golin (pro hac vice pending)
Kevin M. Jonke (pro hac vice forthcoming)
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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
Counsel for Defendants Huntington Bancshares
Incorporated and The Huntington National Bank
/s/ Nathaniel Lampley, Jr.
Nathaniel Lampley, Jr. (0041543)
Jeffrey A. Miller (0068815)
Joseph M. Brunner (0085485)
Wesley R. Abrams (0095746)
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
/s/ James E. Burke
James E. Burke (0044220)
Drew M. Hicks (0076481)
Sophia R. Holley (0091361)
Amanda Stubblefield (0097696)
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
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/s/ Ryan S. Lett
James C. Frooman (0046553)
Ryan S. Lett (0088381)
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
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 3rd day of June, 2020 a true and accurate
copy of the foregoing Joint Motion to Dismiss was sent to counsel of record via the Court’s ECF
system.
/s/ Angelyne E. Lisinski
Angelyne E. Lisinski (0089699)
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
:
DAVID S. LOWRY, CPA, LTD., an :
Ohio limited partnership, individually :
and on behalf of a class of similarly :
situated businesses and individuals, :
:
Case No. 1:20-cv-00348-MWM
Plaintiffs, :
:
Judge Matthew W. McFarland
v. :
:
U.S. BANCORP, et al., :
:
Defendants. :
________________________________ :
DEFENDANTS’ MEMORANDUM OF LAW
IN SUPPORT OF JOINT MOTION TO DISMISS
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PRELIMINARY STATEMENT
This action concerns the Paycheck Protection Program (“PPP”), an emergency
loan program created by the Coronavirus Aid, Relief, and Economic Security Act, Pub. L. 116-
136 (the “CARES Act”). The PPP provides assistance to small businesses that have been affected
by the COVID-19 pandemic. To date, more than 4.4 million borrowers have received over $510
billion in emergency relief. U.S. Small Business Administration (“SBA”), Paycheck Protection
Program (PPP) Report (May 30, 2020). The loans are processed and funded by private lenders,
who receive a statutorily mandated processing fee from the government for each funded loan.
Plaintiff David S. Lowry, an Ohio-based accountant, seeks to divert nearly
$4 billion in statutory PPP fees from lenders to unknown third parties. On behalf of all “agents,”
he demands that lenders pay every person who even claims to have helped a borrower obtain a
PPP loan—regardless of whether the “agent” had any kind of agreement with that lender.
Although it is not clear from the complaint, Lowry’s demand appears to be based on his
(incorrect) interpretation of informal administrative guidance.1
The barebones complaint must be dismissed for several reasons. First, Lowry
does not have standing to assert any of his claims. There is no “injury in fact” because Lowry
does not allege that any of his clients actually received a PPP loan. Even if they did, the
complaint contains no allegations that trace Lowry’s purported injury to any named defendant.
Second, under the CARES Act and related regulations, lenders have no duty to
pay unauthorized agents. The statute and regulations merely impose limits on the fees that
1
This action is one of seven actions filed by the same counsel in districts around the country making similar
claims on behalf of different plaintiffs against different defendant banks. Plaintiff’s counsel has filed a petition
pursuant to 28 U.S.C. § 1407 with the Judicial Panel on Multidistrict Litigation to consolidate the actions, including
this one, in the Northern District of Georgia or, alternatively, the District of Arizona. Moreover, after this case was
filed, a separate plaintiff represented by a separate firm filed another similar action in the Southern District of Ohio,
Eastern Division. It is captioned Bookmyer v. PNC Bank N.A. et al., No. 2:20-cv-00284-EAS-EPD (S.D. Ohio filed
May 5, 2020), and is currently pending before Judge Sargus.
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agents may collect if there is an agreement with the lender to pay them. The regulations do not,
and cannot, undo the clear statutory mandate that lenders, not agents, “shall” be paid set
processing fees. Nothing in the statute, the regulations, or the guidance requires lenders to pay
customers’ agents when the lender did not agree to pay them. On the contrary, existing SBA
regulations prohibit any payment to agents absent a written agreement among the borrower,
lender, and agent. Because Lowry does not allege any such agreement, payments to him are
prohibited as a matter of law.
Third, although Lowry seeks a “declaration in accordance with SBA guidance,”
he cannot pursue declaratory relief because the CARES Act does not provide for a private right
of action. And, finally, the complaint does not state a claim for unjust enrichment because
Lowry does not allege that lenders had knowledge of his alleged role in loan applications, much
less that they agreed to pay Lowry for his services.
In short, unauthorized agents have no claim to the statutory fees that lenders are
paid as part of the federal pandemic response. The complaint should be dismissed in its entirety.
STATEMENT OF FACTS
A. The Coronavirus Pandemic and the CARES Act
The CARES Act was enacted on March 27, 2020, just two weeks after the World
Health Organization recognized the COVID-19 pandemic. The purpose of the new law was to
provide “emergency assistance and health care response for individuals, families and businesses
affected by the coronavirus pandemic.” Business Loan Program Temporary Changes; Paycheck
Protection Program, 85 Fed. Reg. at 20,811 (Apr. 15, 2020) (“First IFR”).
As part of that relief, Congress established the PPP to provide emergency loans to
small businesses. The PPP, like other loan programs for small businesses, was codified in
Section 7(a) of the Small Business Act. Under the PPP, the SBA guarantees 100 percent of loans
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made by SBA-approved lenders to eligible borrowers. The SBA also reimburses lenders for the
cost of making PPP loans by paying a mandatory loan-processing fee that depends on the size of
the loan. See 15 U.S.C. § 636(a)(36)(P)(i). The statute is express: “The [SBA] shall reimburse
a lender authorized to make a covered loan at a rate” set by the statute. Id. (emphasis added).
In contrast, the CARES Act does not specify if, how, or by whom agents may be
paid. The statute addresses agent fees in a single paragraph, entitled “FEE LIMITS.” Id.
§ 636(a)(36)(P)(ii). That provision instructs that agents “may not collect a fee in excess of the
limits established by the [SBA],” to the extent they may be paid at all. Id. Congress did not
adjust any other terms applicable to agents under the Section 7(a) loan program or direct the
SBA to do so.
B. The Regulatory Background
On April 2, 2020, hours before the PPP application window opened, the SBA
issued the First IFR to provide guidance on the operation of the program. As directed by
Congress, the SBA set clear limits on the “total amount that an agent may collect” for “assistance
in preparing an application for a PPP loan.” 85 Fed. Reg. at 20,816. Under the First IFR, total
agent fees “may not exceed” (i) 1% for loans up to $350,000, (ii) 0.5% for loans of more than
$350,000 and less than $2 million, and (iii) 0.25% for loans of at least $2 million. Id. The First
IFR also provides that agent fees, to the extent they are paid at all, will be paid by the lender. Id.
Likewise, an informal Information Sheet issued by the Department of the Treasury reiterates that
PPP agent fees (such as they may be) “will be paid out of lender fees.” Paycheck Protection
Program (PPP) Information Sheet Lenders.2
2
Available at https://home.treasury.gov/system/files/136/PPP%20Lender%20Information
%20Fact%20Sheet.pdf? (last accessed June 2, 2020).
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Like the CARES Act, neither the First IFR nor the Information Sheet states that
lenders must pay any person who purports to be an agent of a customer. Rather, because the PPP
is an extension of the Small Business Act’s Section 7(a) Loan Guarantee Program, it is subject to
all the “same terms, conditions, and processes” as other Section 7(a) loans—including with
respect to agents—unless those terms, conditions, or processes are expressly abrogated by the
CARES Act. 15 U.S.C. § 636(a)(36)(B); see also 85 Fed. Reg. 20,812 (describing the PPP as a
“new 7(a) program”). Existing SBA regulations prohibit any payment to agents absent a written
“compensation agreement” among the borrower, lender, and agent. See 13 C.F.R. § 103.5(a).
C. Lowry Had No Reason to Believe He Would Be Paid Agent Fees.
Lowry does not allege that any of the defendants in this action ever agreed to pay
agent fees for PPP loans, much less that they would pay for unsolicited work performed by self-
declared agents. In fact, shortly after the First IFR was issued, defendants began giving
conspicuous notice that they would not pay customers’ agents in connection with PPP loans.3
For example, in the first week of April, PNC Bank, N.A. (“PNC”) stated that it “will not pay
Agents for assistance they may provide an applicant in obtaining a PPP loan.”4 Other banks did
so as well. For example, Bank of America, N.A. (not named here, but named in other suits
brought by this same counsel) has stated that “[i]n the absence of a pre-loan approval written
3
Where, as here, defendants challenge a court’s subject matter jurisdiction, the court may consider facts
from outside the four corners of the complaint. Under Rule 12(b)(1), a jurisdictional challenge may be either
“facial” or “factual.” Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). “If a Rule
12(b)(1) motion makes a factual attack, a court is free to consider and weigh extrinsic evidence of its own
jurisdiction, without granting the plaintiff’s allegations any presumption of truthfulness.” Ryan v. McDonald, 191 F.
Supp. 3d 729, 735 (N.D. Ohio 2016) (citing Ohio Nat’l Life Ins. Co., 922 F.2d at 325).
4
Available at https://www.pnc.com/en/customer-service/paycheck-protection-program.html (last accessed
June 2, 2020). Plaintiff in the Bookmyer case expressly acknowledges these notices. See Bookmyer v. PNC Bank,
N.A., Case No. 2:20-cv-02284 (S.D. Ohio), Dkt. 1 ¶ 10 (alleging that PNC “announced that it will not pay agents”).
The Huntington National Bank also stated that it “will not pay fees to any firm claiming to be a borrower’s agent.”
Available at https://www.huntington.com/coronavirus/business-resources (last accessed June 2, 2020). See also
First Financial Bank’s “CARES Act SBA Paycheck Protection Program Frequently Asked Questions,” available at
https://www.bankatfirst.com/content/first-financial-bank/home/firstfinancialbank/sba-cares-act.html#faq (last
accessed June 2, 2020).
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agreement between the agent and Bank of America, Bank of America does not pay fees or other
compensation to agents who represent or assist borrowers.”5
All of this is common knowledge in Lowry’s field. Just days after the First IFR
was published, the Association of International Certified Public Accountants (“AICPA”) warned
potential agents that neither the CARES Act nor the related guidance requires lenders to pay
agent fees absent a written agreement with the lender: “CPAs should note, that even though the
Treasury has outlined guidelines related to agency fees, there is a possibility that you will not be
paid for your services.” Small Business Loans Under the Paycheck Protection Program: Issues
Related to CPA Involvement (2020).6 Accordingly, the AICPA recommended that potential
agents “discuss this issue with clients and the banks to ensure there is an understanding,
preferably in writing, as to how and when any fees will be paid.” Id.
D. Lowry Sues Thousands of Lenders on Behalf of All Purported Agents.
On April 30, 2020, less than a month after lenders began funding emergency
loans, Lowry filed this action seeking to recover $3,848,587,082 on behalf of all purported
agents “that facilitated small businesses to receive a loan under the PPP.” Compl. ¶¶ 1-14, 33,
44, 45. Lowry sued 10 named defendants and 4,975 unnamed lenders. His math assumes that
every single loan issued by every single bank involved an agent, and that every single agent is
entitled to the maximum fee allowed under the First IFR.
This headline-inducing calculation aside, the complaint is extraordinarily short on
details of any actual work done. Lowry alleges that “in or about April 2020, Plaintiffs assisted
their clients in the gathering and analysis of their documents, as well as the calculation and
5
Available at https://about.bankofamerica.com/promo/assistance/faqs/small-business-paycheck-protection-
program (last accessed June 2, 2020).
6
Available at https://www.aicpa.org/content/dam/aicpa/interestareas/centerforplainenglishaccounting/
resources/2020/special-report-sba-ppp-loans.pdf (last accessed June 2, 2020).
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preparation of their Applications.” Id. ¶ 36. However, Lowry does not say how many loan
applications he allegedly submitted, on behalf of which applicants, to which lenders, or whether
any of his clients actually received a PPP loan. Similarly, Lowry does not allege that he
communicated with or sought authorization from any lender, that his actions were in fact
authorized by any lender, that any lender was aware of his actions, or that he even sought
compensation from any lender.
Instead, Lowry asserts that he “believed” that purported agents “would receive the
Agent fees from the Lenders upon funding of their clients’ Applications.” Id. ¶ 41. Lowry does
not cite the CARES Act or any PPP regulation in support of his belief. In fact, Lowry does not
cite the statute or regulations at all. Although it is not clear from the complaint, he seems to
assert that the Treasury Information Sheet “mandate[s]” payment of all claimed agent fees. Id.
¶ 37; see id. ¶ 55 (“Defendants failed to pay Agent fees . . . in direct violation of [the Information
Sheet]”). On that basis, citing the vague “conduct” of unspecified defendants, Lowry seeks
declaratory relief and restitution for “unjust enrichment.” Id. at ¶¶ 53-62.
ARGUMENT
I. LEGAL STANDARD
“To survive a motion to dismiss, the complaint must present ‘enough facts to state
a claim to relief that is plausible on its face.’” Total Benefits Planning Agency, Inc. v. Anthem
Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The Court need not accept “bare assertions,” “legal
conclusions,” or “unwarranted factual inferences.” Id. “A pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
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Rule 8(a)(2) of the Federal Rules of Civil Procedure also “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. “Where a complaint pleads
facts that are ‘merely consistent with’ a defendant’s liability, it stops short of the line between
possibility and plausibility of ‘entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).
And “where the well-pleaded facts do not permit the court to infer more than the mere possibility
of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled
to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
II. LOWRY LACKS STANDING TO SUE.
The complaint must be dismissed under Rule 12(b)(1) of the Federal Rules of
Civil Procedure because the Court lacks subject matter jurisdiction. A court lacks subject matter
jurisdiction if the plaintiff does not have standing. See Stalley v. Methodist Healthcare, 517 F.3d
911, 916 (6th Cir. 2008) (“lack of standing” implicates “subject matter jurisdiction”). To
demonstrate standing, a plaintiff must show, among other things, (i) “injury in fact” (ii) that “is
fairly traceable to the challenged conduct of the defendant.” Chapman v. Tristar Prod., Inc., 940
F.3d 299, 304 (6th Cir. 2019) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)).
Lowry alleges neither.
An “injury, for standing purposes, means the ‘invasion of a legally protected
interest which is (a) concrete and particularized, and (b) actual or imminent.’” Daunt v. Benson,
956 F.3d 396, 417 (6th Cir. 2020) (quoting Lujan, 504 U.S. at 560). Here, lenders purportedly
harmed agents by “fail[ing] to pay Agent fees . . . in direct violation of [the Information Sheet].”
Compl. ¶ 55. But even under Lowry’s interpretation of the guidance, agents are not entitled to
any fees until the “funding of their clients’ Applications.” Id. ¶ 41. The complaint does not
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establish any “actual” injury because Lowry does not allege that any of his clients actually
received a PPP loan.
Even if Lowry had shown injury-in-fact, he does not trace any purported injury to
any particular defendant. Where, as here, the plaintiff is a “potential class representative,” he
“must demonstrate individual standing vis-à-vis [a particular] defendant; he cannot acquire such
standing merely by virtue of bringing a class action.” Fallick v. Nationwide Mut. Ins. Co., 162
F.3d 410, 423 (6th Cir. 1998); see also Brown v. Nationwide Life Ins. Co., No. 2:17-CV-558,
2019 WL 4543538, at *3 (S.D. Ohio Sept. 19, 2019) (a “class representative” must have “a cause
of action against each defendant”) (citation omitted); 1 Newberg on Class Actions 2:5 (5th ed.).
Lowry, the only named plaintiff here, has not alleged injury traceable to any of
the named defendants—much less the 4,975 unnamed lenders in his complaint. The threadbare
complaint omits even the most basic details about Lowry’s alleged harm. He does not claim to
have assisted any applicant who actually submitted an application to any lender. Nor does he
allege that he sought payment from any lender or that any lender refused such a request.
In any event, any purported injury was self-inflicted. “A self-inflicted injury, by
definition, is not traceable to anyone but the plaintiff.” Buchholz v. Meyer Njus Tanick, PA, 946
F.3d 855, 866 (6th Cir. 2020). Lowry concedes that he “understood that [agents] were not
allowed to charge their clients a fee relating to the Application.” Compl. ¶ 37. Numerous banks
conspicuously published notice that they would not compensate agents. See pp. 4-5 & n.4,
supra. And Lowry, a certified public accountant, should have been aware of the AICPA’s advice
that potential agents should “discuss this issue with clients and the banks to ensure there is an
understanding, preferably in writing, as to how and when any fees will be paid.” Small Business
Loans Under the Paycheck Protection Program: Issues Related to CPA Involvement (2020).
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Lowry apparently did not heed these warnings. As a result, “[a]ny injury that
[Lowry] conceivably suffered was . . . self-inflicted, which means that it was not ‘fairly traceable
to the challenged conduct of the defendant.’” Butt v. FD Holdings, LLC, 799 F. App’x 350, 353
(6th Cir. 2020) (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)); see also
Buchholz, 946 F.3d at 866.
III. THE COMPLAINT FAILS TO STATE A CLAIM.
A. Agents Are Not Entitled to Fees under the CARES Act or Related Guidance.
Even if Lowry had standing (he does not), the complaint must be dismissed under
Rule 12(b)(6) of the Federal Rules of Civil Procedure because Lowry fails to state a claim. The
entire complaint rests on Lowry’s assertion that PPP lenders must pay fees to any purported
“agents,” even if those agents have no agreement with the lenders. But lenders have no such
payment obligation. To hold otherwise would conflict with the unambiguous language of the
CARES Act, PPP-related guidance, the broader regulatory scheme, settled common law, and the
SBA’s historical concerns about agent fraud.
1. The CARES Act Does Not Create an Entitlement to Agent Fees.
Although Lowry does not cite the CARES Act, its plain language bars his claims.
See Lamie v. United States Tr., 540 U.S. 526, 534 (2004) (“[W]hen the statute’s language is plain,
the sole function of the courts . . . is to enforce it according to its terms.”) (citation omitted).
The CARES Act imposes a limit on agent fees; nothing more. Congress directed
that “[a]n agent that assists an eligible recipient to prepare an application for a covered loan may
not collect a fee in excess of the limits established by the [SBA] Administrator.” 15 U.S.C.
§ 636(a)(36)(P)(ii). That provision—defining what an agent “may not collect” and directing the
SBA to establish “limits”—is the statute’s only reference to agent fees. Plainly, a restraint on
agents cannot impose an affirmative duty on lenders. See, e.g., Reasor v. Walmart Stores E.,
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L.P., No. 3:19-CV-27-CRS, 2019 WL 5597302, at *3 (W.D. Ky. Oct. 30, 2019) (law that
“prohibits” pharmacists from filling certain prescriptions “does not create an affirmative duty to
fill” other prescriptions); see also Sexton v. Panel Processing, Inc., 754 F.3d 332, 339 (6th Cir.
2014) (“When faced with clear language, . . . a court may not conclude that what Congress
omitted from the statute is nevertheless within its scope.”) (citation omitted).
If Congress meant to create a payment obligation, it would have done so
expressly. Indeed, with respect to lender fees, the CARES Act provides that “[t]he [SBA]
Administrator shall reimburse a lender” at set rates. 15 U.S.C. § 636(a)(36)(P)(i) (emphasis
added). There is a stark and purposeful difference in the language used in the CARES Act
concerning lenders and agents: the SBA “shall reimburse” lender fees, but agents “may not
collect” fees in excess of limits set by the SBA. Where “Congress includes particular language
in one section of a statute but omits it in another section of the same Act, it is generally presumed
that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello
v. U.S., 464 U.S. 16, 23 (1983). In short, the CARES Act does not create an entitlement to fees
for any agent who claims to have assisted a PPP borrower. The complaint should be dismissed
for that reason alone.7
2. The PPP Regulations and Guidance Do Not Create an Entitlement
to Agent Fees.
Nothing in the PPP regulations or guidance requires lenders to pay agent fees that
they did not authorize. The SBA’s formal rules make this clear. In the First IFR, the SBA
exercised its statutory authority to impose caps on the “total amount that an agent may collect.”
85 Fed. Reg. at 20,816 (emphasis added). In addition, to ensure that those fees would not eat
away at the emergency funds that Congress intended for borrowers, the SBA directed that
7
Moreover, as noted below, the CARES Act does not create a private right of action. See Section III.B, infra.
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“[a]gent fees will be paid by the lender out of the fees the lender receives from SBA,” and that
“agents may not collect fees from the borrower or be paid out of the PPP loan proceeds.” Id.
Like the language of the statute itself, that regulatory language cannot be read to
require lenders to pay any fees. Rather, it clarifies that if an agent is to be compensated for
assisting a borrower, such compensation must be paid by the lender (up to maximum potential
amounts). Indeed, any contrary reading would run afoul of the statute, which, as noted, mandates
that lenders “shall” be reimbursed in the form of stated processing fees, while agents “may not” be
paid certain amounts. Compare 15 U.S.C. § 636(a)(36)(P)(i), with id. § 636(a)(36)(P)(ii). It is,
of course, bedrock administrative law that regulations cannot “conflict[] with the enabling
statute.” Hachem v. Holder, 656 F.3d 430, 438 (6th Cir. 2011); see also Lyng v. Payne, 476 U.S.
926, 937 (1986) (“[A]n agency’s power is no greater than that delegated to it by Congress.”).
Lowry seizes on the “Information Sheet,” but that document simply reiterates that
“Agent fees will be paid out of lender fees” and that “[t]he lender will pay the agent.” Compl.
¶¶ 26-29, 37, 55. Lowry asserts that this language somehow “mandate[s]” the payment of agent
fees. Id. ¶ 37. But the Information Sheet merely paraphrases the statute and regulations, which
do no such thing.
3. Other SBA Regulations Confirm There Is No Entitlement to Agent
Fees.
Under the CARES Act, the PPP is governed by “the same terms, conditions, and
processes” as other Section 7(a) programs, except where the statute directs otherwise. 15 U.S.C.
§ 636(a)(36)(B); see also 85 Fed. Reg. at 20,812 (PPP regulations supersede only “conflicting”
Section 7(a) program requirements). The broader regulatory scheme imposes substantial checks
on the role of “agents,” including the circumstances under which an agent may be paid. The
PPP-related guidance creates additional limits—it does not remove them and certainly does not
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mandate an unchecked transfer of compensation from lenders (who incurred significant expense
to make the PPP loans on an expedited basis) to purported agents.
Lowry’s argument directly conflicts with this governing regulatory scheme. The
SBA does not require borrowers or lenders to use agents in connection with Section 7(a) loans.
See 13 C.F.R. § 103.2(a) (borrowers and lenders may “conduct business with SBA without a
representative”). But if agents are used, SBA regulations are clear that lenders, agents, and
applicants must execute written agreements to govern agent compensation. See 13 C.F.R.
§ 103.5(a) (“Any Applicant, Agent, or Packager must execute and provide to SBA a
compensation agreement, and any Lender Service Provider must execute and provide to SBA a
Lender Service Provider agreement. Each agreement governs the compensation charged for
services rendered or to be rendered to the Applicant or lender in any matter involving SBA
assistance.”). Nothing in the CARES Act or rules governing the PPP abrogates this requirement,
and Lowry makes no claim that any written agreements were ever executed to govern the
compensation he now demands. Indeed, Lowry does not allege any agreement with any lender
or, for that matter, with his purported clients.
Requiring lenders to pay unidentified agents for unauthorized and unverified work
would read this basic check out of existence and invite fraud and abuse. The SBA has recently
identified a “pattern of fraud by loan packagers and other for-fee agents in the 7(a) Loan
program, involving hundreds of millions of dollars.” U.S. Small Bus. Admin., Off. of the
Inspector Gen., Report on the Most Serious Management and Performance Challenges Facing
the Small Business Administration in Fiscal Year 2019, at 8, 9 (Oct. 11, 2018).8 And the reason
the SBA requires a written compensation agreement is to prevent “agents” and “loan packagers”
8
Available at https://www.sba.gov/sites/default/files/2019-08/SBA-OIG-Report-19-012.pdf.
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from “charging inappropriate or unreasonable fees to applicants or lenders.” Immediate Disaster
Assistance Program, 75 Fed. Reg. 60,588, 60,594 (Oct. 1, 2010); see also SBA, Lender and
Development Company Loan Programs, Standard Operating Procedures (SOP) 50 10 5(J),
Subpart B, Ch. 3 at 163 (2018).
Given heightened legislative and regulatory interest in preventing fraud and abuse
under the PPP, it would defy common sense to require lenders to pay agents who have no written
agreement governing their fees. Indeed, there is nothing that would prohibit multiple purported
agents from claiming fees for work purportedly performed on behalf of a single borrower.
4. The Common Law Confirms There Is No Entitlement to Agent Fees.
Mandating payment of claimed agent fees would also upend settled common law.
By requiring a written agreement, the SBA makes agent compensation a question of contract. It
is well-established that “[t]here can be no contract without the mutual assent of the parties.” Utley
v. Donaldson, 94 U.S. 29, 47 (1876); see also Restatement (Second) of Contracts § 17 (“[T]he
formation of a contract requires a bargain in which there is a manifestation of mutual assent to
the exchange and a consideration.”). The agreement is what creates the payment obligation: “it
is inferred that a person promises to pay for services which he requests or permits another to
perform for him as his agent.” Restatement (Second) of Agency § 441 (emphasis added).
By contrast, “one has no duty to pay for services officiously rendered without
request although resulting in benefit to him.” Id.; accord Restatement (First) of Restitution § 2.
“A person is not required to deal with another unless he so desires.” Id. And, “ordinarily, a
person should not be required to become an obligor unless he so desires.” Id.
The SBA’s preexisting regulations reflect these common law principles. The
SBA generally recognizes three kinds of agents: (i) lender service providers, who work for and
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are paid by the lender; (ii) packagers, who are “employed and compensated by the Applicant”;
and (iii) loan brokers, who “may be employed and compensated by either the Applicant or the
SBA Lender.” 13 C.F.R. § 103.1(a). In each case, the payor requests or agrees to the agent’s
services. The complaint does not identify any SBA regulation to the contrary.
The CARES Act does not displace these common-law rules. The Supreme Court
has required that “[i]n order to abrogate a common-law principle, the statute must ‘speak
directly’ to the question addressed by the common law.” United States v. Texas, 507 U.S. 529,
534 (1993). Even then, courts “construe statutes in derogation of the common law strictly and
narrowly.” Portalatin v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 900 F.3d 377, 385 (7th
Cir. 2018). Lowry does not quote a word of the CARES Act, much less point to language that
“speaks directly” to common-law rules. Nor could he. The statute simply directs the SBA to
establish “limits” on agent fees. 15 U.S.C. § 636(a)(36)(P)(ii). And the regulations, for their
part, merely provide that PPP agents will be paid, if at all, by lenders.
In short, in recognition of these common-law (and common-sense) principles, the
statute and regulations leave it to the lender and the agent to agree as to whether a fee will be
paid and, if so, what that fee will be (subject to the regulatory cap). Lowry’s complaint ignores
these governing principles both by demanding a fee absent an agreement and by insisting on the
maximum fee allowed. His claims thus fail as a matter of law and must be dismissed.
B. The CARES Act Does Not Create a Private Right of Action.
Lowry seeks a “declaration in accordance with SBA guidance” that “agents” are
automatically entitled to 19.14% of lenders’ administrative fees. Compl. ¶ 57. As defendants
have shown, there is no basis to that claim. But even if Lowry’s interpretation were correct, he
could not pursue declaratory relief “in accordance with SBA guidance” because the CARES Act
does not create a private right of action. Id.; see Michigan Corr. Org. v. Mich. Dep’t of Corr.,
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774 F.3d 895, 902 (6th Cir. 2014) (“The point of the [Declaratory Judgment Act] is to create a
remedy for a preexisting right enforceable in federal court.”) (emphasis added).
“[P]rivate rights of action to enforce federal law must be created by Congress.”
Alexander v. Sandoval, 532 U.S. 275, 286 (2001). Lowry does not and cannot allege that the
CARES Act creates an express private right of action. See Profiles, Inc. v. Bank of Am. Corp.,
2020 WL 1849710, at *4 (D. Md. Apr. 13, 2020) (“[T]he CARES Act does not expressly provide
a private right of action.”). And even if the “SBA guidance” contained language creating such a
right (it does not), an agency “may not create a right that Congress has not.” Sandoval, 532 U.S.
at 291.
Lowry therefore has the burden of demonstrating that Congress intended to create
an implied private right of action. Stew Farm, Ltd. v. Nat. Res. Conservation Serv., 767 F.3d
554, 562 (6th Cir. 2014). Plaintiff does not allege an implied right, nor could he. As the Sixth
Circuit has recognized, implied rights of action are “increasingly rare creature[s]” because
plaintiffs must show that Congress used “clear and unambiguous” rights-creating language
“without taking the conventional route of [creating a private right of action] expressly.”
Ohlendorf v. United Food & Commercial Workers Int’l Union, Local 876, 883 F.3d 636, 640-41
(6th Cir. 2018). The complaint does not cite a single word from the CARES Act. For that
additional reason, Lowry’s declaratory judgment claim must be dismissed.9
C. Plaintiff Fails to Plead Unjust Enrichment.
Lowry’s only remaining claim is for unjust enrichment under Ohio law. Unjust
enrichment occurs when a person “has and retains money or benefits which in justice and equity
9
In addition, the Small Business Act, as modified by the CARES Act, contains a robust criminal and civil
enforcement regime. See, e.g., 15 U.S.C. §§ 645, 650. “The express provision of one method of enforcing a
substantive rule suggests that Congress intended to preclude others.” Sandoval, 532 U.S. at 290.
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belong to another.” Johnson v. Microsoft Corp., 834 N.E.2d 791, 799 (Ohio 2005). Lowry
therefore cannot establish an unjust enrichment claim unless he alleges: “(1) a benefit conferred
by a plaintiff upon a defendant; (2) knowledge by the defendant of the benefit; and (3) retention
of the benefit by the defendant under circumstances where it would be unjust to do so without
payment.” Id. The complaint meets none of these requirements.
Lowry does not allege any “benefit” to any defendant. As noted, he does not
identify a single application he prepared or submitted, any particular client whose loan was
funded, or any processing fees paid to any defendant that may be traceable to Lowry’s work.
Even if he had done so, Lowry does not allege that any defendant was aware of his work or
knowingly acquired any benefit from it.
There is also nothing “unjust” about defendants’ retention of a potential (unpled)
benefit here. That standard is exacting: plaintiffs must “show that under the circumstances they
have a superior equity so that as against them it would be unconscionable for the defendants to
retain the benefit.” Liberty Mut. Ins. Co. v. Three-C Body Shop, Inc., 2020 WL 2042916, at *2
(Ohio Ct. App. Apr. 28, 2020) (emphasis added). The complaint does not meet that high bar for
several reasons.
Lowry is not entitled to fees under the CARES Act or the SBA regulations, and he
knew or should have known that before performing any work. Although Lowry claims that he
and other agents “assisted their clients,” he does not allege that anyone promised to pay for their
services. Compl. ¶ 36. In fact, Lowry concedes that “Plaintiffs understood that they were not
allowed to charge their clients a fee relating to the Application.” Id. at ¶ 37. Where, as here,
plaintiffs “volunteer to do something without some kind of an agreement as to who’s going to do
what and who’s going to pay,” those plaintiffs have “made a gift of” their services. HAD Ents. v.
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Galloway, 948 N.E.2d 473, 480 (Ohio Ct. App. 2011). “Restitution is the remedy for the unjust
enrichment of one party at the expense of another,” Barrow v. Village of New Miami, 104 N.E.3d
814, 818 (Ohio Ct. App. 2018), and “one who officiously confers a benefit upon another is not
entitled to restitution,” Prop. Dev., Ltd. v. Sto-Kent Lane, Inc., 1995 WL 314679, at *3 (Ohio Ct.
App. May 24, 1995) (citing Wendover Rd. Prop. Owners Ass’n v. Kornicks, 502 N.E.2d 226, 220
(Ohio Ct. App. 1985)); see also Restatement (First) of Restitution § 2.
In any event, it is not “unconscionable” for defendants to refuse to pay fees that
they said they would not pay or never agreed to pay (and that are statutorily due to them). For
example, in early April, PNC publicly stated in no uncertain terms that it “will not pay” PPP
agent fees. Lowry allegedly chose to perform anyway. Thus, even if defendants “enjoyed a
windfall,” the unjust enrichment claim fails because defendants expressly “did not consent.”
Wendover, 502 N.E.2d at 230–31.
CONCLUSION
For the foregoing reasons, defendants respectfully request that the Court dismiss
the complaint with prejudice under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure.
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Dated: June 3, 2020
/s/ Anthony J. O’Malley
Anthony J. O’Malley (0017506)
Jacob D. Mahle (0080797)
Angelyne E. Lisinski (0089699)
VORYS, SATER, SEYMOUR AND PEASE LLP
200 Public Square, Suite 1400
Cleveland, OH 44144
Telephone: (216) 479-6100
E-mail: ajomalley@vorys.com
Email: jdmahle@vorys.com
E-mail: aelisinski@vorys.com
Jonathan M. Moses (pro hac vice forthcoming)
Jeohn Salone Favors (pro hac vice forthcoming)
Brittany A. Fish (pro hac vice forthcoming)
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
Counsel for Defendants PNC Financial Services
Group, Inc. and PNC Bank N.A.
/s/ H. Toby Schisler
H. Toby Schisler (0068306)
DINSMORE & SHOHL LLP
255 E. Fifth Street, Suite 1900
Cincinnati, OH 45202
Telephone: (513) 977-8100
E-mail: toby.schisler@dinsmore.com
D. Michael Crites (0021333)
DINSMORE & SHOHL LLP
191 W. Nationwide Blvd, Suite 300
Columbus, OH 43215
Telephone: (614) 628-6900
E-mail: michael.crites@dinsmore.com
Elaine Golin (pro hac vice pending)
Kevin M. Jonke (pro hac vice forthcoming)
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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
Counsel for Defendants Huntington Bancshares
Incorporated and The Huntington National Bank
/s/ Nathaniel Lampley, Jr.
Nathaniel Lampley, Jr. (0041543)
Jeffrey A. Miller (0068815)
Joseph M. Brunner (0085485)
Wesley R. Abrams (0095746)
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
/s/ James E. Burke
James E. Burke (0044220)
Drew M. Hicks (0076481)
Sophia R. Holley (0091361)
Amanda Stubblefield (0097696)
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
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/s/ Ryan S. Lett
James C. Frooman (0046553)
Ryan S. Lett (0088381)
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
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 3rd day of June, 2020 a true and accurate
copy of the foregoing Memorandum of Law in Support of Joint Motion to Dismiss was sent to
counsel of record via the Court’s ECF system.
/s/ Angelyne E. Lisinski
Angelyne E. Lisinski (0089699)
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