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RESPONSE IN SUPPORT -- (re: pldg. ( 1 in MDL No. 2950) ) Filed by Plaintiff SPORT &… — Agent Fee Litigation (Dkt. 185)
Summary
A brief filed June 17, 2020 as Document 185 before the United States Judicial Panel on Multidistrict Litigation in In re: Paycheck Protection Program (PPP) Agent Fees Litigation, MDL No. 2950, by plaintiff Sport & Wheat CPA PA in support of centralization and of the Western District of Washington. The brief states that the firm filed the first case of this kind on April 26, 2020 against Truist Bank, Synovus Bank, ServisFirst Bank and TheFirst, N.A., and that at least 30 more actions have followed. It argues that the class actions overlap, with tables of defendants and noting JPMorgan Chase is defending nine cases before nine separate judges. It cites 15 U.S.C. § 636(a)(36) and 85 Fed. Reg. 20811 on agent fees paid out of lender fees. The 16-page brief closes by asking the Panel to form an MDL in the Western District of Washington and is signed by counsel William F. Cash III.
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Case MDL No. 2950 Document 185 Filed 06/17/20 Page 1 of 16
BEFORE THE
UNITED STATES JUDICIAL PANEL
ON MULTIDISTRICT LITIGATION
In re: Paycheck Protection Program (PPP)
Agent Fees Litig. MDL No. 2950
PLAINTIFF SPORT & WHEAT CPA PA’S
BRIEF IN SUPPORT OF CENTRALIZATION
AND IN SUPPORT OF THE WESTERN DISTRICT OF WASHINGTON
Plaintiff Sport & Wheat CPA PA, the first company in the United States to file a case of
this kind, supports the movant’s motion seeking to centralize this now-sprawling and growing
litigation. The actions already on file constitute an overlapping tangle of class actions, and the
thicket grows denser with time. While several lending institutions have conceded the merit of
claims like Sport & Wheat’s—agreeing to compensate the small bookkeeping firms who helped
them—it is evident that others will not do so without some protracted litigation. There is no
orderly way to do this without an MDL. The Panel should bring order to the situation by
centralizing these actions.
I. Centralization is plainly appropriate, because the class actions at issue overlap with
each other, were brought by diverse parties, involve many of the same defendants,
and those defendants will continue to be named in future suits.
A. Sport & Wheat’s first-filed case seeks justice on behalf of small accounting
firms who helped the nation’s largest banks make billions.
All of these class actions consist of similar claims. The plaintiff, typically a small
accounting firm like Sport & Wheat, assisted both the defendant lenders and scores of non-party
borrowers—the lenders’ and the accountants’ mutual clients—in the processing of loans under
the brand-new Paycheck Protection Program.
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Case MDL No. 2950 Document 185 Filed 06/17/20 Page 2 of 16
As explained in Sport & Wheat’s amended complaint, attached as Ex. A, the Paycheck
Protection Program sprang into existence on March 27, 2020 when President Trump signed the
“CARES Act” into law.1 The PPP is formally an extension of an existing program of the Small
Business Administration, but it differs greatly from the SBA’s past offerings, in that it has
streamlined underwriting requirements; carries a fixed-term, low-interest rate; and above all, is
intended to be entirely forgivable upon a proper showing that the borrower spent its money on
employee paychecks and other costs of keeping the lights on. In other words, the PPP is not really
a loan program but a direct injection of federal cash into the economy—an economy crippled by
the worst levels of unemployment since the 1930’s and whose stock values were chopped, peak to
trough, by one-third in just 29 days.2 The PPP was part of Congress’s response to this instant
economic depression and one of several multi-trillion-dollar programs enacted just in the last
three months. Overall, the PPP represents $649 billion of federal spending.
Because spooling up an entirely new bureaucracy capable of distributing this money—on
the timeframe Congress wanted (i.e., absolutely immediately)—would have been impossible,
Congress invited the network of lenders already doing business with the Small Business
Administration to serve as the conduit. These lenders have some SBA processing requirements
to meet, but bear zero risk on their loans. Congress paid the lenders percentage amounts of the
funds expended—either 1%, 3%, or 5% of the face amount of the loan—depending on the size. If
the $649 billion represented a lifeline to Main Street, the 1–5% of that money that was paid out in
fees to lenders represented a risk-free sunny day on Bankers’ Row. Banks’ workload was not
1
Pub. L. No. 116-136.
2
The S&P 500 fell from its all-time high close of 3,386.15 on Feb. 19 to a trough of 2,237.40 on Mar. 23.
2
Case MDL No. 2950 Document 185 Filed 06/17/20 Page 3 of 16
particularly heavy in light of their guaranteed payout from the outfit with the best credit rating in
the world, the U.S. Treasury.
Plaintiff Sport & Wheat, however, did bear a heavy workload, and now faces
unanticipated litigation risk. Sport & Wheat is a small, two-accountant firm in Florida. Jill Sport
and Tim Wheat’s clients are—like their firm itself—mainly very small businesses operating in
small towns. In most years Sport & Wheat does a steady business helping its clients with general
accounting and tax needs. It is a small but proud part of the local business sector. When Congress
passed the PPP, however, the phone began ringing off the hook. Suddenly, Sport & Wheat’s
hundreds of small clients reached out for help—all at once—to get its assistance in dealing with
their applications to the Paycheck Protection Program.
It was late March. Sport & Wheat was in the thick of a busy tax season. To assist its
clients in keeping themselves afloat, Sport & Wheat set aside that tax work and processed an
enormous number of loan applications in a very short time. Sport & Wheat also directly managed
communications with the defendant banks, acting quite literally as the agent for many of its
borrowers.
This intensive period of work has lasted for months, with the funds only now being
exhausted. Sport & Wheat’s work is not done, however. To get the all-important loan
forgiveness, borrowers have to complete an 11-page application certifying that they did not divert
the money to other purposes. Sport & Wheat will be helping its hundreds of clients with this task
too.
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The PPP’s statute and implementing rule3 forbid Sport & Wheat from being paid by its
client, however. Under the rule, the firm may only be paid by the defendants—the lenders—and
only out of the fee they’ve been granted by Congress. It is illegal for a borrower to pay for Sport &
Wheat’s help—even after years of relying on the firm for their general accounting work.
While a good number of the lenders approached by Sport & Wheat have offered to pay a
fair fee for the work the firm did, some of them—the defendants in this putative MDL—have
refused. This is flatly illegal. It is particularly galling in light of the fact that these lenders directly
benefited from Sport & Wheat’s work. Every hour Sport & Wheat spent on a borrower’s
application is an hour that a lender was able to spend processing somebody else’s loan, making
more money for itself. If Congress considered the banks its “force multiplier,” then the
defendant banks used firms like Sport & Wheat as theirs. Overall, the PPP’s goals rested in part
on the performance of agents, and that’s why the PPP rule4 requires the banks to pay agents for
their work.
There are thousands of accounting firms, consultants, and others in the same position as
Sport & Wheat: unable to legally charge their own clients for work they did, but also unable to
collect from the very banks whom they helped and who received a ten-figure gift from the
Congress.
Accordingly—swallowing its reluctance to jeopardize its own relationships with the
defendants in future transactions—Sport & Wheat brought its suit. The suit alleges a
combination of contractual and tort claims against four defendant banks: Truist Bank, Synovus
Bank, ServisFirst Bank, and TheFirst, N.A. Sport & Wheat’s claims are not exotic; they just
3
15 U.S.C. § 636(a)(36); 85 Fed. Reg. 20811.
4
85 Fed. Reg. 20811, 20816 (“Agent fees will be paid by the lender out of the fees the lender receives from SBA.”).
4
Case MDL No. 2950 Document 185 Filed 06/17/20 Page 5 of 16
arise out of bedrock state law. Sport & Wheat asserts the existence of a nationwide class and a
Florida-specific subclass. The case was filed on April 26, 2020, first in the nation, and counsel for
Sport & Wheat have five more to be filed.
B. There is substantial overlap in the cases on file, making centralization the
only solution, and not centralizing would leave chaos.
Since Sport & Wheat’s case was filed, at least 30 more actions have followed. All these
actions allege similar claims, and all of them seek nationwide or statewide class action treatment.
Since the early years of the MDL statute, the Panel has recognized that overlapping and
parallel class actions are particularly well-suited for centralization. In re: Hawaiian Hotel Room
Rate Antitrust Litig., 438 F. Supp. 935, 936 (J.P.M.L. 1977). Indeed, the potential for conflicting
or overlapping class actions “presents one of the strongest reasons for transferring such
related actions to a single district.” In re: Plumbing Fixtures, 308 F. Supp. 242, 243–44
(J.P.M.L. 1970). Centralization of class actions can prevent inconsistent rulings, “particularly
with respect to class certification.” In re: Tyson Foods, Inc. Chicken Litig., 582 F. Supp. 2d 1378,
1379 (J.P.M.L. 2008).
Moreover, this Panel “considers that eliminating duplicate discovery in similar cases,
avoiding conflicting judicial rulings, and conserving valuable judicial resources are sound reasons
for centralizing pretrial proceedings.” Hon. John G. Heyburn II, A View from the Panel: Part of the
Solution, 82 Tul. L. Rev. 2225, 2236 (2008).
These cases indubitably overlap. Many defendants are currently named in multiple
actions:
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Case MDL No. 2950 Document 185 Filed 06/17/20 Page 6 of 16
Number of actions Number of districts
currently defending currently appearing in
Bank of America 8 7
Celtic Bank 3 3
JPMorgan Chase 9 9
Kabbage 2 2
Royal Bank of Canada 2 1
Synovus Bank 2 2
TD Bank 2 2
Truist Bank 4 4
Wells Fargo 4 4
Some kind of transfer, if for no other reason than to get these defendants in front of a
single judge, is warranted. As to JPMorgan Chase, it does not make sense for that bank to be
defending nine cases in front of nine separate judges. In fact, nine class action cases against a
single defendant is sufficient enough to constitute an MDL all by itself. In re Allura Fiber Cement
Siding Prods. Liab. Litig., 366 F. Supp. 3d 1365 (J.P.M.L. 2019) (transferring nine class actions).
The problem, however, is that it is not possible to centralize JPMorgan Chase’s cases in
one court without transferring cases where other banks are defendants, because of the
interlocking nature of these actions. The table below shows some selected actions and some of
the defendants in those actions.
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Case MDL No. 2950 Document 185 Filed 06/17/20 Page 7 of 16
Sued
JPMorgan Sued Bank of Sued Wells
Plaintiff District Case number Chase? America? Fargo?
American C.D. Cal. 2:20-cv-3815
Video Dup.
Brunner C.D. Cal. 2:20-cv-4235
Accounting
Fruci & W.D. Wash. 2:20-cv-864
Associates
Full S.D. Fla. 1:20-cv-
Compliance 22339
ImpAcct D. Colo. 1:20-cv-1344
Panda D. Ariz. 2:20-cv-985
Accounting
Panda Group D. Utah 4:20-cv-45
Quinn S.D.N.Y. 1:20-cv-4100
Sanchez S.D. Tex. 7:20-cv-139
Smukler N.D. Cal. 3:20-cv-3413
William S.D. Ohio 2:20-cv-2284
Bookmyer
So as this table shows, even if the Panel were to put just the JPMorgan Chase cases in one
forum—or even if the parties were somehow to agree to a transfer like that under 28 U.S.C.
§ 1404—it would necessitate moving claims against Bank of America and Wells Fargo to that
new forum too. There is no way to solve each bank’s multi-judge problem without centralization.
Thus, overlap is a basis for forming an MDL of class actions. Even in cases where class
claims were carefully defined to avoid overlap, the Panel has ordered transfer. That is because
“Section 1407 proceedings will have the salutary effect of ensuring consistent application of Rule
23.” In re Nissan Mot. Corp. Antitrust Litig., 385 F. Supp. 1253 (J.P.M.L. 1974).
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Case MDL No. 2950 Document 185 Filed 06/17/20 Page 8 of 16
In this case, there is gross overlap. From a defendant’s standpoint, it makes sense to
centralize all of these actions in one forum.
It also makes sense from the standpoint of class members. Most accountants worked as an
agent for many banks. Assuming that these class actions are successful, bookkeeper class
members would then ultimately be bound by the judgment of perhaps a dozen different courts,
subjecting themselves to perhaps a dozen different schedules, claims forms, and jurisdictions.
That is no way to run a railroad.
C. The Panel has created multi-defendant MDLs when they were warranted;
this is one more such case.
Defendants have argued that multi-defendant MDLs have been historically disfavored.
But this Panel has done it before, in appropriate circumstances, and there is a precedent for this.
One Panel decision in particular seems particularly relevant: In re Proton-Pump Inhibitor Prod.
Liab. Litig. (No. II), 261 F. Supp. 3d 1351 (J.P.M.L. 2017).
In “PPI II”, the Panel created a single MDL composed of 24 actions brought against an
interlocking web of 21 corporate defendants. Those same defendants had formerly argued, in
“PPI I,” that an MDL consisting of so many separate companies would be unwieldy, and this
Panel had agreed. 273 F. Supp. 3d 1360 (J.P.M.L. 2017). But only a few months later, the Panel
reversed itself, after noting that many of the plaintiffs in the putative MDL had multiple claims
against certain repeat defendants who showed up in multiple cases. The Panel noted: “a
significant number of actions are ‘mixed use’ cases in which the plaintiffs allege use of more than
one PPI [drug].” 261 F. Supp. 3d at 1355. And the Panel turned back a bid by Takeda, which
positioned itself as a bit player in the litigation, to be “carve[d] out” of the MDL. Id.
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The Panel did that because the nature of these PPI heartburn drugs is that many people
switch from one drug to the next. Similarly, the accountants and other claimants in the cases in
this MDL have had dealings with one bank after another. That is why the Panel sees so many of
these overlapping case captions and why one plaintiff can reasonably name ten or more
defendants on a complaint.
This case is therefore not like In re Hotel Indus. Sex Trafficking Litig., MDL No. 2928,
___ F. Supp. 3d ____, 2020 WL 581882 (J.P.M.L. Feb. 5, 2020), where the Panel declined to
create an MDL of sex-trafficking victims. In that putative MDL, the Panel found that each action
“involves different alleged sex trafficking ventures, different hotel brands, different owners and
employees, different geographic locales, different witnesses, different indicia of sex trafficking,
and different time periods.” Id. at *2. By contrast, here, each claim against a defendant lender
involves the same key decisionmakers, same corporate policies to pay or not pay agents, same
forms, same web sites, same procedures, and an absolutely identical time period and federal-law
scheme. Defendants should face one judge, not nine of them, and plaintiffs should be able to get
discovery against those banks in a single forum.
Just as discovery against the defendants in a single forum will be more efficient, discovery
against each plaintiff would also be more efficient in a single forum. The interlocking nature of
these actions counsels this Panel to follow the precedent it set in PPI II and create this multi-
defendant MDL.
D. The usual alternatives to centralization will not work in these circumstances.
The Panel always teaches that parties should explore alternatives to centralization before
the Panel will consider founding an MDL. But the circumstances here preclude other alternatives
from taking root.
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First of all, this is not a situation where voluntary coordination between plaintiffs’ counsel
would be successful or helpful. These are class actions, and a leadership battle is imminent.
There is no practical way to have lawyers “share” leadership of separate nationwide class actions
in different districts.
Nor are plaintiffs’ counsel currently coordinated. These class action cases have been filed
by a diverse set of attorneys, reflecting the intense press scrutiny this case has received and the
attention that has arisen across the accounting industry and the plaintiff’s bar. Since Sport &
Wheat—acting alone—filed the first case in Florida, several plaintiff lawyer groups have
emerged. While the “Graylaw Group” does appear in several actions, it is by no means a strong
majority of the actions. The several cases filed by the McCune firm in California (see doc. 98-1)
do not appear to have anything in common with Graylaw, and it is seeking a different district
from movant. The Leigh, King case in Alabama, is represented by counsel distinct from all other
cases. The Bookmyer case in Ohio also has distinct, separate counsel. And more are likely to arise.
Moreover, many of these cases have named the same exact defendants.
So there are indeed competing plaintiff “groups”—groups which are directly competing
to lead nationwide class actions, in different jurisdictions, against the same defendants. Sport &
Wheat, for example, has sued Truist Bank, and expects to lead the litigation against that party;
but Truist has also been sued by two other plaintiffs elsewhere. In short, this case is not like the
In re Family Dollar litigation this Panel just disposed of, where the Panel noted that “[a]ll
plaintiffs are represented by the same counsel, and one law firm is defending Family Dollar in all
actions.” MDL No. 2939, ___ F. Supp. 3d ____, 2020 WL 2849474 (J.P.M.L. Jun. 2, 2020).
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This putative MDL is also not a situation where a strategic set of Section 1404 transfer
motions might bring order and harmony. There is no real center of gravity for these cases. No
plaintiff or plaintiff’s lawyer has an incentive to let its case go to another district; no defendant
would truly like to see its case sent anywhere other than its own hometown, and that can’t
happen for all of them because of the interlocking nature of these claims. There is just no Rubik’s
Cube-type list of grantable Section 1404 motions which would bring order to this thicket. As the
Panel noted just this month, “[v]oluntary coordination across these dispersed districts, especially
given the complexity of the factual questions and the number and nature of discovery disputes,
appears problematic.” In re Smitty's/CAM2 303 Tractor Hydraulic Fluid Litig., MDL No. 2936,
___ F. Supp. 3d ____, 2020 WL 2848377, at *2 (J.P.M.L. Jun. 2, 2020).
Fortunately, MDL judges have shown the ability to deal with cases in this posture. A
thoughtful trial judge ought to be able to streamline things, including: (1) coordinating discovery
against the defendant banks; (2) coordinating discovery against the plaintiff accounting firms; (3)
overseeing the factual discovery necessary to determine whether Rule 23’s requirements have
been met as to each defendant; and (4) motions practice on preliminary matters—most urgently,
the meaning of the PPP statute and rule, which is a common question in each case (albeit not
really a factual one). The Panel historically trusts trial judges to chart the right way, leaving to
transferee judges “‘the extent and manner of coordination or consolidation of actions’ in an
MDL.” In re Equifax, Inc. Customer Data Security Breach Litig., 289 F. Supp. 3d 1322, 1325
(J.P.M.L. 2017).
And many trial judges have proved able to coordinate sprawling litigation like this—
against multiple defendants—within an MDL structure. E.g., In re Blue Cross/Blue Shield
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Antitrust Litig., MDL No. 2406 (N.D. Ala.). In that MDL, separate tracks have been created to
coordinate discovery in class actions with national reach. Similarly, in In re Generic Pharms.
Pricing Antitrust Litig., MDL No. 2724 (E.D. Pa.), the judge has established a separate track and
docket number for each of the generic drugs at issue; there are well over 30 tracks and scores of
differently-situated class action parties, but it is an orderly process, and it can work here too.
E. Responses to other parties’ positions on this motion.
Some of the defendants have argued, in opposing the motion to transfer, that any overlap
or redundancy is of plaintiffs’ making. These are the same defendants who would be the first to
raise a defense based on improper personal jurisdiction if plaintiffs’ actions were filed anywhere
else. The fact is, Sport & Wheat’s complaint was properly venued and has been duplicated,
through no fault of its own, by other plaintiffs whom the Panel should view equally.
Many of the defendants, rather than focusing on the practicality of sending these actions
to a central forum for handling, have chosen to focus instead of the merits of these claims,
arguing that the claims aren’t ripe, or that plaintiffs simply are misreading the CARES Act and its
regulations. As the Panel well knows, “an assessment of the merits of [] actions is beyond the
Panel’s authority.” In re Uber Techs., Inc., Data Sec. Breach Litig., 304 F. Supp. 3d 1351, 1354
(J.P.M.L. 2018). But if anything, the sheer number of motions to dismiss filed, see e.g., doc. 166-3
(“Regional and Small Banks’” Br., Ex. C), with several more threatened to come, illustrates the
commonality of issues between these actions. It points toward, not away from, centralized
handling.
Other defendants, including JPMorgan Chase and Wells Fargo, support centralization.
This means they believe movant has shown sufficiently common factual issues so as to warrant an
MDL. It raises the question why this treatment is not appropriate for the other banks too.
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* * *
This Panel is one of the most practical judicial bodies in the Nation. As a matter of
practicalities, centralization is the best realistic option. It will promote judicial efficiencies,
conserve the parties’ resources, allow for common rulings on discovery questions and class
certification in a way that does not set up inter-district conflicts, and provide for a uniform
application of this very new federal law.
Creation of this MDL is warranted, and its benefits would certainly outweigh the
alternative of leaving these overlapping actions to shuffle along without centralization.
II. The Western District of Washington is the best available district.
As the Panel well knows, the selection of an appropriate transferee forum depends greatly
on the specific facts and circumstances of the litigation being considered for consolidation and
depends on the “the nuances of a particular litigation.” Robert A. Cahn, A Look at the Judicial
Panel on Multidistrict Litigation, 72 F.R.D. 211, 214 (1977).
The unique “nuances” presenting themselves to the Panel here are as follows:
Nationwide, overlapping class actions.
No clear center of gravity.
Plaintiffs and defendants located across the country.
Defendants who did business across the country.
Uniformly applicable federal law in the form of the Paycheck Protection Program
statute and its implementing rules.
All actions are in their extreme infancy.
In candor, there really is no true “best” district for this litigation to be held. Some of the
Panel’s traditional factors, such as the location of evidence, documents, or witnesses, also do not
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strongly counsel in favor of a specific district. (With the advent of computerization and cloud-
based discovery, this factor grows less important every year anyway.)
Sport & Wheat has reviewed the districts where actions have already been filed and would
submit that the Western District of Washington is as good a district as any to host this MDL.
Here is why:
The Western District of Washington currently hosts no MDL presently, so the
clerk’s office should have capacity to handle these class action cases.
The district’s docket is relatively uncongested in terms of “favorable caseload
statistics,” a factor the Panel has frequently used. In re Xyberbaut Corp. Sec. Litig.,
403 F. Supp. 2d 1354, 1355 (J.P.M.L. 2005).
In the March 2020 statistics report,5 the Western District of Washington came
out very favorably, placing 16th-fastest in the nation on time from filing to
disposition (7.1 months), and 6th-fastest from filing to civil trial (19.1 months).
The district is also 16th-best in terms of the number of civil cases older than 3
years. This demonstrates a district with the flexibility and capacity to handle these
actions.
Geographic convenience—long Seattle’s Achilles heel—no longer matters as
much in a covid-19 era.
Candidly, this is the part in the brief where parties traditionally inform the Panel
of the exact number of airlines and intercity bus companies providing convenient
service to specific hotels nearby the courthouse. No one can dispute Seattle’s
ability to serve as a sufficient business hub for the lawyers, but Seattle has suffered
from its longtime refusal to be centrally located within the U.S.A., one of the
factors the Panel has flirted with at times. E.g., In re Smitty’s, 2020 WL 2848377 at
*2 (Missouri is “centrally located and easily accessible”).
However, this this factor no longer matters much either. With covid-19 itself
forcing much of federal litigation into virtual mode, it is not unreasonable to think
that a Seattle-based judge could conduct this MDL remotely when warranted,
erasing Seattle’s geographic disadvantage over a place like, say, Atlanta.
5
United States District Courts — National Judicial Caseload Profile (Mar. 2020), available at
https://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0331.2020.pdf.
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Case MDL No. 2950 Document 185 Filed 06/17/20 Page 15 of 16
Further, the judge currently handling a member case in this putative MDL, Chief Judge
Ricardo Martinez, would be a good fit to this litigation. He has a solid tenure on the federal
bench, holds the distinction of being the Chief Judge in his district, has been commended by local
attorneys as pragmatic, has managed other complex class litigation in the past, but has never
previously presided over an MDL. Thus, Chief Judge Martinez may be ripe for selection as the
transferee judge. He has certainly demonstrated the character and ability to do so.
Several of the districts that might traditionally be in the running should be excluded from
consideration.
Sport & Wheat’s own home district, the Northern District of Florida, continues to suffer
from courthouse construction problems in Pensacola, and this small district is already hosting
two MDLs—MDL No. 2734 (Abilify) and MDL No. 2885 (3M Earplugs). With over 9,000 cases
currently pending, the district is busy enough.
The Northern District of Georgia, which movant and certain other defendants seek, is
also a poor choice. That district already hosts four MDLs, including the sprawling Equifax class
action, and its statistical picture is not as good as the Western District of Washington’s, ranking
14th worst in average pending cases per judge, vs. 51st for W.D. Wash. Another problem with
movant’s selection of the Northern District of Georgia—and the choice of certain defendants—
is that Judge Brown, the judge currently assigned to the only case pending there, has had a
relatively short tenure on the bench, having taken his seat only in 2018, and this MDL might
better be assigned to a more experienced judge. Worse, the docket he inherited from his
colleagues makes him the most backlogged district judge in the entire Nation in terms of motions
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pending more than six months.6 Docket conditions do matter. In re Teflon Prods. Liab. Litig., 416
F. Supp. 2d 1364, 1365 (J.P.M.L. 2006). That is a reason to steer these cases elsewhere.
Other districts where MDL member cases are pending, such as the Central District of
California or Southern District of New York, suffer from similar levels of case congestion and are
not viable selections. As to Judge Rakoff, while he is certainly an able transferee judge, the Panel
assigned him a new MDL just two weeks ago, so it makes little sense to send him another one
now.
This Panel could avoid all those problems by transferring the MDL actions to the
Western District of Washington, which is the best forum for a case of this scope in this era.
III. Conclusion.
Plaintiff Sport & Wheat CPA PA respectfully asks that the Panel centralize these actions,
and form an MDL in the Western District of Washington.
Respectfully submitted,
/s/ William F. Cash III
William F. Cash III (Fla. Bar No. 68443)
LEVIN, PAPANTONIO, THOMAS,
MITCHELL, RAFFERTY & PROCTOR, P.A.
316 South Baylen Street, Suite 600
Pensacola, FL 32502
Phone: 850-435-7059
Email: bcash@levinlaw.com
Attorney for Sport & Wheat CPA PA
6
Jonathan Ringel, US Judge in Atlanta Leads Nation in Motions Pending More Than Six Months, Daily Report /
Law.com (Nov. 21, 2019), available at https://www.law.com/dailyreportonline/2019/11/21/us-judge-in-atlanta-
leads-nation-in-motions-pending-more-than-six-months/.
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