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RESPONSE IN OPPOSITION -- (re: pldg. ( 1 in MDL No. 2950) ) Filed by Defendants Bank… — Agent Fee Litigation (Dkt. 182)
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A response filed June 17, 2020 before the United States Judicial Panel on Multidistrict Litigation in In re Paycheck Protection Program (PPP) Agent Fees, MDL No. 2950, by Bank of America Corporation and Bank of America, N.A., as Document 182. The banks oppose Alliant CPA Group LLC's motion to transfer and adopt Synovus Bank's response in opposition, noting BofA is named in 8 of the 31 tagged lawsuits. They argue that no consolidation is needed, that lender-specific MDLs are preferable to an industry-wide MDL, and that any BofA-specific MDL should go to Judge Stephanie A. Gallagher in the District of Maryland or Judge Michael L. Brown in the Northern District of Georgia. A footnote opposes combining the agent fee cases with other PPP actions in MDL No. 2944, MDL No. 2952 and MDL No. 2954. The four-page response is signed by Enu Mainigi of Williams & Connolly LLP.
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Case MDL No. 2950 Document 182 Filed 06/17/20 Page 1 of 4
BEFORE THE UNITED STATES JUDICIAL PANEL
ON MULTIDISTRICT LITIGATION
IN RE PAYCHECK PROTECTION MDL No. 2950
PROGRAM (PPP) AGENT FEES
ORAL ARGUMENT REQUESTED
BANK OF AMERICA CORPORATION’S AND BANK OF AMERICA, N.A.’S
RESPONSE TO ALLIANT CPA GROUP LLC’S MOTION FOR TRANSFER OF
ACTIONS FOR COORDINATED OR CONSOLIDATED PRETRIAL PROCEEDINGS
Enu Mainigi
WILLIAMS & CONNOLLY LLP
725 Twelfth St. NW
Washington, DC 20005
Ph: (202) 434-5000
Fax: (202) 434-5029
emainigi@wc.com
Counsel for Bank of America Corporation
and Bank of America, N.A.
Case MDL No. 2950 Document 182 Filed 06/17/20 Page 2 of 4
Bank of America Corporation and Bank of America, N.A. (collectively, “BofA”) opposes
the Motion for Transfer and Coordination and/or Consolidation for the reasons stated in Synovus
Bank’s Response in Opposition to Motion for Transfer of Actions (“Synovus’s Response”). As
one of the few lenders named in a large number of actions (8 of the 31 tagged lawsuits), BofA
writes separately to emphasize three points: First, at this time, BofA opposes any consolidation,
because consolidation is unnecessary and would not promote convenience or efficiency. Second,
if the Panel decides to consolidate any claims, lender-specific consolidation is far preferable to
an industry-wide MDL. Third, in the event of any consolidation, BofA requests that a BofA-
specific MDL should be transferred to Judge Stephanie A. Gallagher in the District of Maryland
(who is overseeing the first-filed PPP-related case against BofA) or Judge Michael L. Brown in
the Northern District of Georgia. In the event that there is industry-wide consolidation, BofA
agrees with Synovus that any industry-wide MDL should be transferred to Judge Brown.
1. BofA adopts and endorses Synovus’s Response, which explains why Plaintiff’s
proposed industry-wide MDL is unnecessary. For the same reasons the Panel is “typically
hesitant to centralize litigation on an industry-wide basis,” In re AndroGel Prods. Liab. Litig., 24
F. Supp. 3d 1378, 1379 (J.P.M.L. 2014), the proposed MDL would not promote the convenience
and efficiency goals of Section 1407. Formal consolidation is also unnecessary, whether
industry-wide or on a lender-specific basis, because the same plaintiffs’ counsel filed most of the
subject cases, and the parties can cooperate to reduce duplication through informal coordination.
See, e.g., In re: [24]7.AI, Inc., Customer Data Sec. Breach Litig., 338 F. Supp. 3d 1345, 1346
(U.S. Jud. Pan. Mult. Lit. 2018) (declining to transfer cases despite “little dispute that these
actions share factual questions” because there were only four actions at issue and informal
coordination was a superior mechanism).
1
Case MDL No. 2950 Document 182 Filed 06/17/20 Page 3 of 4
2. If, however, the Panel decides that some form of consolidation is appropriate in
these cases, BofA believes that lender-specific MDLs are preferable to an industry-wide MDL.
As a lender sued in numerous separate cases subject to this Motion, BofA is similarly situated to
JPMorgan Chase, which has requested lender-specific consolidation. Should the Panel order a
Chase-specific MDL, therefore, BofA respectfully requests the Panel also create a similar BofA-
specific MDL for the agent-fee claims brought against BofA. 1
3. In the event that the Panel consolidates the claims against BofA in a lender-
specific MDL, it should transfer those claims to Judge Stephanie Gallagher in the District of
Maryland. Judge Gallagher is overseeing the first-filed case requiring interpretation of the
CARES Act, a challenge to BofA’s PPP eligibility requirements under the Act and its
implementing regulation. Profiles, Inc. et al. v. Bank of America Corp. et al., No. 20-894 (D.
Md., filed April 3, 2020). Judge Gallagher dealt expeditiously with an application for a
temporary restraining order and preliminary injunction in that matter, and it is clear that she
could efficiently steer an MDL that may require further analysis of the same statute. The District
of Maryland only has two MDLs pending, neither of which is before Judge Gallagher. The
District of Maryland, particularly the Baltimore Division in which Judge Gallagher sits, is
convenient for business travel, given its proximity to three large airports and to train service. To
the extent that the Panel believes questions of fact regarding BofA’s behavior will predominate
in this litigation, the District of Maryland is convenient to BofA’s Charlotte headquarters. In the
1
BofA opposes any consolidation of the agent fee cases that are subject to this Motion with other
cases alleging different types of claims concerning PPP loans. Plaintiffs in certain other PPP-
related actions that do not concern agent fees have moved to consolidate such actions. See In re
JPMorgan Chase Paycheck Protection Plan Litigation, MDL No. 2944; In re Bank of America
Paycheck Protection Plan Litigation, MDL No. 2952; In re Wells Fargo Paycheck Protection
Plan Litigation, MDL No. 2954. Those cases do not involve a common set of facts or common
questions of law with the agent fee cases at issue here.
2
Case MDL No. 2950 Document 182 Filed 06/17/20 Page 4 of 4
alternative, a BofA-specific MDL should be consolidated in the Northern District of Georgia for
the reasons stated in Synovus’s Response.
In the event the Panel grants an industry-wide MDL, BofA agrees with the Synovus and
Chase responses that the Northern District of Georgia is the most suitable forum for the MDL.
BofA agrees with Chase that the Panel should not consolidate these cases in either the
District of Arizona or the Southern District of New York.
* * * * *
For the foregoing reasons, the Motion should be denied.
Respectfully submitted,
By: /s/ Enu Mainigi
Enu Mainigi
WILLIAMS & CONNOLLY LLP
725 Twelfth Street, N.W.
Washington, DC 20005
Telephone: (202) 434-5000
Facsimile: (202) 434-5029
emainigi@wc.com
Attorney for Bank of America, N.A. and
Bank of America Corporation
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