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INTERESTED PARTY RESPONSE IN SUPPORT -- (re: pldg. ( 1 in MDL No. 2950) ) Filed by… — Agent Fee Litigation (Dkt. 194)
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An interested party response of plaintiff David Winner d/b/a DLW Business Consulting, Ltd., filed June 18, 2020 as Document 194 in In re: Paycheck Protection Program (PPP) Agent Fees Litigation, MDL No. 2950, before the United States Judicial Panel on Multidistrict Litigation. It supports transfer and centralization under 28 U.S.C. § 1407 and asks that the actions go to the Southern District of New York before Judge Jed S. Rakoff or to the Northern District of Illinois. It describes lenders' refusal to pay agent fees, citing 15 U.S.C. § 636(a)(36) and the SBA interim final rule at 85 Fed. Reg. 20816, which caps agent fees at 1% for loans of not more than $350,000. It states that 30 agent fee actions were then before the Panel, filed by 25 plaintiffs in 16 districts and involving 108 financial institution defendants.
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Case MDL No. 2950 Document 194 Filed 06/18/20 Page 1 of 15
BEFORE THE UNITED STATES JUDICIAL PANEL ON
MULTIDISTRICT LITIGATION
IN RE: PAYCHECK PROTECTION PROGRAM MDL No. 2950
(PPP) AGENT FEES LITIGATION
INTERESTED PARTY RESPONSE OF PLAINTIFF DAVID WINNER IN SUPPORT OF
TRANSFER TO THE SOUTHERN DISTRICT OF NEW YORK OR THE NORTHERN
DISTRICT OF ILLINOIS
Plaintiff David Winner d/b/a DLW Business Consulting, Ltd. (“Respondent”)
respectfully submits this Interested Party Response to the pending motion for transfer and
centralization in multi-district litigation of the above-captioned proceedings. As discussed below,
Respondent supports transfer and centralization, but submits that the cases should be transferred
to the Honorable Jed. S. Rakoff in the Southern District of New York or to one of the three
judges presiding over related cases in the Northern District of Illinois.
I. Introduction
These cases arise from a large but relatively straightforward dispute that warrants
multidistrict coordination. Over the past few months, many thousands of small businesses around
the country have been forced to shut down or suspend operations as a result of the COVID-19
global pandemic, losing all or nearly all revenue and rendering them unable to meet payroll and
expenses. Accordingly, Congress passed the CARES Act, including the Paycheck Protection
Program (“PPP”), to keep small businesses afloat and avoid massive layoffs by distributing
sufficient funds to cover up to eight weeks of payroll and other expenses through the Small
Business Administration (“SBA”). 15 U.S.C. §636(a)(36). Congress provided that PPP loans
would be disbursed through SBA-approved lenders, who would receive an origination fee from
the SBA for each loan, the amount of which depends on the size of the loan. The PPP
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regulations further provide that “[a]gent fees will be paid by the lender out of the fees the lender
receives from SBA. Agents may not collect fees from the borrower or be paid out of the PPP
loan proceeds.”1 “Agent fees” were to be in amounts not exceeding: 1% for loans of not more
than $350,000; 0.50% for loans of more than $350,000 and less than $2 million; and 0.25% for
loans of at least $2 million.2
Many agents – accountants, financial advisors, and the like – assisted their small business
clients with preparing and submitting PPP loan applications. The agents are prohibited from
charging their clients for such work; instead, the PPP regulations specifically state that the agents
will be paid by the lenders out of the fees the lender receives from the SBA.3 Nonetheless,
dozens of major banks across the country have now categorically refused to pay any agent fees
related to PPP loans. These blanket refusals raise common questions that are well-suited for
coordinated adjudication.4
Respondent operates an accounting firm located in Chicago, Illinois. Respondent
assisted several clients in securing PPP loans that were critical to their ability to survive the
economic climate created by the COVID-19 pandemic. However, he has not been paid for his
work because the lenders are refusing to meet their obligations under the PPP regulations. Thus,
Respondent is similarly situated to thousands of other affected agents throughout the country,
and requests coordination in order to streamline resolution of this dispute for himself and others.
1
SBA Interim Final Rule, 85 Fed. Reg. 20816 § (4)(c).
2
Id.
3
Id.
4
Another set of cases filed against lenders and related to the PPP loans allege claims on behalf of small business
borrowers, not agents. See, e.g., In re JPMorgan Chase Paycheck Protection Plan Litig. (MDL No. 2944); In re
Bank of America Paycheck Protection Plan Litig. (MDL No. 2952); and In re Wells Fargo Paycheck Protection
Plan Litig. (MDL No. 2954) The PPP Borrower Action plaintiffs assert claims that arise out of facts such as
prioritizing larger loan applicants over smaller applicants, excluding applicants who were not existing customers of
the lender, and backdating approvals. They are fundamentally different in the underlying facts and the causes of
action than the agent fee actions that are the subject of this MDL No. 2950.
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Because so many agents have been denied payment, by the same group of lenders, on the
basis of the same statute and SBA regulation, this litigation will be dominated by class actions
against the relevant lender defendants. Indeed, scores of class actions have already been filed in
federal courts around the country over the past month.5 Centralized management of discovery,
class certification, and pre-trial issues would eliminate the need for substantial duplicative
litigation around the country, and the possibility of inconsistent results. The alternative to
centralization is a patchwork of federal judges around the country independently grappling with
many identical facts and legal issues and expending resources ruling on them independently with
the obvious potential for inconsistent rulings. A single judge overseeing all of these related
actions could manage this workload more efficiently and help achieve faster and fairer results for
the parties, and avoid inconsistent rulings throughout the country.
As discussed below, Respondent submits that that the transferee district should be either
the Southern District of New York or the Northern District of Illinois. New York is the banking
capital of the country, with all pending cases already related before the Honorable Jed S. Rakoff,
who has extensive experience managing MDLs and who is well equipped to manage this
potentially large litigation as it develops. The Northern District of Illinois is an equally good
alternative, being a centrally-located hub for finance and lending, with three cases currently
pending before judges who are well-qualified to oversee this MDL.
II. Litigation Concerning Lenders’ Refusal to Pay Agent Fees Should Be Centralized.
A. The Agent Fee Dispute Raises Several Common Questions.
The defendant lenders’ refusal to pay agent fees raises questions that are inherently
common and well-suited to coordinated resolution. 28 USC § 1407 provides for the transfer of
5
As of this filing, there presently are 30 agent fee actions before the Panel (hereafter, “Related Actions”), filed by
25 different plaintiffs in 16 different districts, and involving 108 financial institution defendants.
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litigation “involving one or more common questions of fact.” As this Panel has held numerous
times, “[s]ection 1407 does not require a complete identity or even a majority of common factual
or legal issues as a prerequisite to transfer.” In re Darvocet, Darvon & Propoxyphene Prod.
Liab. Litig., 939 F. Supp. 2d 1376, 1377 (J.P.M.L. 2013); accord, In re Ins. Brokerage Antitrust
Litig., 360 F. Supp. 2d 1371, 1372 (J.P.M.L. 2005); In re Denture Cream Prod. Liab. Litig., 624
F. Supp. 2d 1379, 1381 (J.P.M.L. 2009).
The cases that would be part of the proposed MDL raise at least the following common
and foundational questions of fact that, if the cases were litigated separately, would need to be
separately resolved, by separate judges, in most or all of the separate actions:
1. Whether lenders are obligated under the CARES Act and/or its implementing
regulations to pay agent fees for agents’ services assisting PPP loan applications?
2. Whether the lenders have been unjustly enriched by retaining 100% of the fees
paid to them by the SBA for loans on which agents assisted in the preparation
and/or submission?
3. Whether the lenders have acted in bad faith in refusing to pay agent fees?
4. Is declaratory judgment available to plaintiffs seeking agent fees?
That these questions are common across the cases is underscored by the fact that the
plaintiffs have pled nearly uniform causes of action and factual allegations across dozens of
cases. Accordingly, while the cases here involve different lenders, they nevertheless arise from a
common foundation and will require the resolution of the same foundational questions.
Determinations related to the interpretation of the PPP regulations, and the discovery necessary
to decide those questions, will apply across cases and will benefit greatly from uniformity in
judicial interpretation.
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B. Coordinated Resolution Facilitates Efficiency and Fairness
Transfer is appropriate under section 1407 where it “promote[s] the just and efficient
conduct of such actions.”6 Coordinated proceedings are appropriate and effective where, as here,
numerous defendants collectively engaged in conduct subject to common allegations of unjust
enrichment, conversion, and violation of state consumer protection statutes. For example, in In
re: Checking Account Overdraft Litig., 626 F. Supp. 2d 1333 (U.S. Jud. Pan. Mult. Lit. 2009),
the JPML panel considered a request to coordinate cases against multiple defendant banks that
involved breach of contract, unjust enrichment, and consumer protection claims based on the
banks’ alleged charging of improper overdraft fees. Id. at 1334–5; id., 694 F. Supp. 2d 1302,
1310 (S.D. Fla. 2010). Even though the banks’ practices were not uniform and each bank had
different contract language, the panel granted transfer, finding that “[w]hile there will be some
unique questions of fact from bank-to-bank, these actions share sufficient factual questions
relating to industry-wide bank posting policies and procedures to warrant centralization of all
actions in one MDL docket.” In re: Checking Account Overdraft Litig., 626 F. Supp. 2d at 1335.
That these cases collectively involve several lender defendants underscores the
importance of centralization. As the Panel has found multiple times, centralizing cases involving
multiple defendants often helps to eliminate duplicative litigation. See, e.g., In re National
Prescription Opiate Litig., 290 F. Supp. 3d 1375, 1379 (J.P.M.L. 2017) (centralizing litigation
6
Section 1407 also provides that transfer should suit the parties and witnesses. Id. This issue is considered in § III as
it pertains to the venue for the MDL. But with respect to the desirability of transferring generally, centralizing this
litigation will reduce the collective costs for the parties by, among other methods, the ability to avoid multiple
depositions of the witnesses. Any inconvenience to individual defendants or witnesses will be more than offset by
the substantial collective efficiencies that will be gained. It is also possible that proceedings will be handled
remotely for some time in any event, perhaps even until there is a vaccine to the Covid-19 virus. But even in normal
times, witnesses are typically deposed in their home district and documents are usually produced electronically,
making their original location less relevant in modern litigation. Cf., e.g., In re Tribune Co. Fraudulent Conveyance
Litig., 831 F. Supp. 2d 1371, 1372 (J.P.M.L. 2011); see also Tate v. Brinderson Constructors, Inc., No. 16-CV-
04314-VC, 2016 WL 7387430, at *1 (N.D. Cal. Dec. 21, 2016); Erb v. Roadway Exp., Inc., No. 4:05-CV-0011,
2005 WL 1215955, at *4 (M.D. Pa. Apr. 19, 2005).
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against hundreds of pharmaceutical manufacturers and distributors, finding that “[a]lthough
individualized factual issues may arise in each action, such issues do not – especially at this early
stage of litigation – negate the efficiencies to be gained by centralization.”);7 In re ZF-TRW
Airbag Control Units Prod. Liab. Litig., 410 F. Supp. 3d 1357, 1360, n.2–4 (U.S. Jud. Pan. Mult.
Lit. 2019) (rejecting the argument that variation between common defect claims asserted against
all major domestic and foreign auto makers would defeat centralization because “the existence of
individual issues, which is relatively commonplace in products liability MDLs, does not negate
the common ones, which appear to be sufficiently substantial and complex to warrant creation of
an MDL”).
The number of Defendants potentially involved in this litigation does not alter the
relationship between centralization and efficiency. In addition to the aforementioned Checking
Account Overdraft Litigation, which involved more than two dozen defendants, and the other
matters cited above, this Panel has ordered coordination of cases involving multiple defendants
in numerous other circumstances. See, e.g., In re Asbestos Prod. Liab. Litig. (No. VI), 771 F.
Supp. 415, 416 (J.P.M.L. 1991) (centralizing cases involving nearly 500 defendants). See also In
re Generic Digoxin & Doxycycline Antitrust Litig., 222 F. Supp. 3d 1341, 1343 (U.S. Jud. Pan.
Mult. Lit. 2017) (centralizing litigation involving more than 50 defendants selling dozens of
different products subject to common price fixing allegations);8 In re Juul Labs, Inc., Mktg.,
Sales Practices, & Prod. Liab. Litig., 396 F. Supp. 3d 1366, 1367–68 (U.S. Jud. Pan. Mult. Lit.
2019) (centralizing more than 40 actions involving more than 80 defendants);9 In re Valsartan N-
7
See also id. at https://ecf.ohnd.uscourts.gov/cgi-bin/qryParties.pl?238494 (“Parties”) (confirming that this MDL
involves more than 600 defendants).
8
See also id. MDL No. 2724 2:16-md-02724-CMR, Dkt. 1382 at 2–10, 1394 at 3 (confirming that this MDL
involved more than fifty defendants).
9
See also id. MDL No. 2913, 3:19-md-02913, Dkt. 551 at 19-20 (confirming that this MDL involves more than 70
defendants).
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Nitrosodimethylamine (NDMA) Contamination Prod. Liab. Litig., 363 F. Supp. 3d 1378, 1380–
82 (U.S. Jud. Pan. Mult. Lit. 2019) (centralizing claims against more than 90 defendants
manufacturing different products in different states).10
Here, coordinated proceedings would provide the additional benefit of accelerating
potential resolution by streamlining adjudication of the central questions common across cases.
Instead of litigating jurisdiction and venue, the scope of discovery, and class certification in
dozens of courts around the country, a coordinated proceeding could focus the parties on the
litigation that is necessary to begin resolving core questions relevant to lenders’ obligation to pay
agent fees. Even if some discovery and pre-trial questions require a more case-specific approach,
that work is best performed (or allocated) by a single judge familiar with all of the issues and
parties. See In re Resource Exploration, Inc. Sec. Litig., 483 F. Supp. 817, 821 (J.P.M.L. 1980)
(explaining that transfer and centralization can “ensure that the actions are supervised by a single
judge who, from day-to-day contact with all aspects of the litigation, will be in the best position
to design a pretrial program that will prevent duplicative discovery ... and substantially conserve
the time and efforts of the parties, the witnesses and the federal judiciary”). MDL judges are
afforded significant flexibility to track, subdivide, transfer, or even remand issues as needed to
progress litigation efficiently and fairly. In re Lehman Bros. Holdings, Inc., Sec. & Employee
Ret. Income Sec. Act (ERISA) Litig., 598 F. Supp. 2d 1362, 1364 (U.S. Jud. Pan. Mult. Lit. 2009)
(finding that a single court is best positioned to formulate a pre-trial program that can streamline
the adjudication of multiple related claims against numerous defendants and “leav[ing] the extent
of coordination or consolidation of [certain] actions to the discretion of the transferee judge”); In
re Nat'l Prescription Opiate Litig., 290 F. Supp. 3d at 1378–79 (“[t]he transferee judge might
10
See also id. MDL No. 2875 1:19-md-02875, Dkt. 398 (confirming that this MDL involved more than 90
defendants).
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find it useful, for example, to establish different tracks for the different types of parties or
claims”).
Rejecting centralization (i.e., having dozens or even hundreds of separately litigated
federal cases) would result in gross inefficiencies, duplication of effort, and waste of party and
judicial resources. Under that suboptimal scenario, the parties and multiple courts would expend
significant resources litigating and adjudicating common elements of the same questions over
and over again in different jurisdictions, also raising the possibility (if not inevitability) of
inconsistent rulings of all kinds. Such a scattershot approach would not only virtually guarantee
divergent rulings on central questions, it could also encourage gamesmanship among the parties
to accelerate and decelerate different cases at different times in the hopes of gaining a strategic
advantage. In addition to the duplication and delays, such an outcome has the potential to
produce disparate and unfair outcomes for different plaintiffs and defendants, depending on
when and where their cases were tried.
The very real problems with rejecting centralization are particularly acute here, where the
litigation will inevitably involve, and likely be dominated by, numerous class actions. Because
the plaintiff businesses were subject to lender policies of refusing to pay agent fees, most if not
all of the agents have a common cause of action against the lenders. Many such cases may well
be tried as class actions. In this context, centralization becomes of paramount importance: “It is
in the field of class action determinations in related multidistrict civil actions that the potential
for conflicting, disorderly, chaotic judicial action is the greatest.” In re Plumbing Fixture Cases,
298 F. Supp. at 493; accord In re Multidistrict Private Civ. Treble Damage Litig. Involving
Plumbing Fixtures, 308 F. Supp. 242, 244 (J.P.M.L. 1970) (“[A] potential for conflicting or
overlapping class actions presents one of the strongest reasons for transferring such related
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actions to a single district for coordinated or consolidated pretrial proceedings which will include
an early resolution of such potential conflicts.”). See also In re CertainTeed Corp. Roofing
Shingle Products Liability Litigation, 474 F. Supp. 2d 1357, 1358 (J.P.M.L. 2007) (centralizing
actions that involved “overlapping putative class actions.”); In re Enron Secs. Derivative &
ERISA Litig., 196 F. Supp. 2d 1375, 1376 (J.P.M.L. 2002) (granting transfer in part to prevent
inconsistent pretrial rulings, especially concerning class certification).
Given the centrality of common facts and questions, and the strong chance that cases here
will in substantial part proceed on a class action basis, there is every reason to expect that pre-
trial proceedings will be more efficient if this litigation is coordinated.
III. The Southern District of New York is an Appropriate Venue for this MDL.
While no single factor dictates the appropriate transferee selection, the Panel does
consider inter alia where the largest number of cases is pending, the site of the occurrence of the
common facts, where cases have progressed the furthest, where cost and inconvenience will be
minimized, and the experience, skill, and caseloads of available judges. Manual for Complex
Litigation, Fourth §20.131. The Related Actions are pending in districts around the country.
Plaintiffs and defendants alike are geographically dispersed. The Southern District of New York
is the most appropriate venue because it has a strong nexus to the occurrence of the common
facts, and has a large number of Related Actions (four), all of which have already been related to
the Honorable Jed S. Rakoff, Senior District Judge for the U.S. District Court for the Southern
District of New York, an eminently well-qualified judge to oversee this litigation.
A. The Southern District of New York Has a Strong Nexus to the Harm, Is
Convenient for the Parties, and Is Capable of Handling the MDL.
MDLs are often coordinated in the district with the strongest nexus to the harm. In re
Deepwater Horizon, 731 F. Supp. 2d at 1355 (centralizing cases arising from an oil spill
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impacting multiple states in the district where the oil caused the most harm). While this litigation
is unquestionably national in scope, to the extent any region here can be characterized at the
center of harm, it is New York. First, New York has the highest concentration of accountants and
auditors in the country.11 The location quotient (the ratio of the area concentration of
occupational employment to the national average concentration) for accountants and auditors in
New York is 1.35, followed next closely by Texas at 1.06 and Illinois at .98.12 New York also
has the fourth highest number of PPP loans by state, and the third highest dollar value of loans
by state.13
New York is a venue where most large lenders are at home. As the country’s preeminent
financial center, the Southern District of New York is the most appropriate transferee forum for
an MDL relating to bank lending practices. See In re Credit Default Swaps Antitrust Litig., 978
F. Supp. 2d 1374, 1375 (U.S. Jud. Pan. Mult. Lit. 2013) (centralizing banking-related actions in
Southern District of New York). And, to the extent travel is required for court hearings, the
Southern District’s Manhattan courthouse is conveniently accessed from three major
international airports with numerous flight options to virtually any other major U.S. airport. And
New York is as likely as any location to be convenient for the largest number of parties. See In re
Rhodia S.A., Sec. Litig., 398 F. Supp. 2d 1359, 1360 (Jud. Pan. Mult. Lit. 2005) (centralizing
actions in Southern District of New York as an “accessible, metropolitan location” where no
district stood out as focal point of litigation and parties and witnesses were geographically
dispersed).
11
Bureau of Labor Statistics, https://www.bls.gov/oes/current/oes132011.htm#st (last visited June 17, 2020).
12
Id.
13
https://www.sba.gov/sites/default/files/2020-06/PPP_Report_20200612-508.pdf (last visited June 17, 2020)
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While S.D.N.Y. has a busy docket, it more than handles its civil caseload. The number of
pending cases per judgeship is 668, which approximates the national average of 675.14 The
average time from filing to civil trial is 31.0 months, which is only slightly slower than the
national average of 27.8 months, but still faster than half of districts nationally.15 The Southern
District of New York is well-used to handling MDL proceedings, with 18 such actions currently
pending.16
B. The Honorable Jed. S. Rakoff Is the Most Appropriate Transferee Judge.
The Honorable Jed S. Rakoff, Senior District Judge in the U.S. District Court for the
Southern District of New York, is an experienced transferee judge who would be an ideal jurist
to oversee this litigation. A district court judge since 1996, Judge Rakoff is well-known to the
Panel, having successfully presided over no fewer than five previous or ongoing MDLs. These
include several banking and finance-related litigations, such as In re Refco Inc. Securities
Litigation (MDL No. 1902); In re Merrill Lynch & Co., Inc., Securities, Derivative & “ERISA”
Litigation (MDL No. 1933); and In re Nine West LBO Securities Litigation (MDL No. 2941). As
the Panel recently concluded in transferring the latter MDL to his docket, “Judge Jed S. Rakoff is
an experienced transferee judge, and we are confident he will steer this litigation on a prudent
and expeditious course to resolution.” In re Nine W. LBO Sec. Litig., No. MDL 2941, 2020 WL
2847269, at *2 (U.S. Jud. Pan. Mult. Lit. June 2, 2020).
Four Related Actions are currently pending before Judge Rakoff. The first-filed of these,
Quinn et al. v. JPMorgan Chase Bank, N.A. et al., No. 1:20-cv-04100-JSR (S.D.N.Y.) (hereafter
14
See Federal Court Management Statistics–Profiles, U.S. Courts (Mar. 31, 2019), available at
https://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0331.2020.pdf (hereafter, “FCMS
Profiles”) (last accessed June 16, 2020).
15
Id.
16
MDL Statistics Report - Distribution of Pending MDL Dockets by District (June 15, 2020), available at
https://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_District-June-15-2020.pdf (last
accessed June 16, 2020).
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“Quinn v. JPMorgan”), was randomly assigned to Judge Rakoff. Over the objections of
defendants Citibank and Union Bank,17 Judge Rakoff thereafter related and accepted for
reassignment actions against Signature Bank, Union Bank, and Citibank.18 The parties to these
four actions already have filed an initial joint Rule 26(f) plan for discovery and Judge Rakoff has
set an initial court conference to take place on June 23, 2020.
In addition to relating these four agent fee actions before Judge Rakoff, the Southern
District of New York also rejected JPMorgan’s separate request to relate Quinn v. JPMorgan to
an earlier-filed PPP borrower action, entitled Ryan M. Kull et al. v. Chase Bank USA, N.A. et al.,
No. 1:20-cv-03138-NRB (S.D.N.Y.).19 See footnote 4, supra. This is important insofar as it
demonstrates that Judge Rakoff and the Southern District of New York appreciated immediately
the fundamental distinction between PPP agent fee cases and PPP borrower cases, which appear
to be the subject of several different Section 1407 transfer motions. See MDL Nos. 2944, 2952,
and 2954.
IV. Alternatively, the Panel Should Transfer the Actions to the Northern District of
Illinois.
There are currently three Related Actions pending in this district. See A.D. Sims, LLC v.
Wintrust Financial Corp at al.., 1:20-cv-02644 (assigned to Judge Chang); Prinzo & Associates,
LLC v. BMO Harris Bank, N.A., et. al., 1:20-cv-03256 (assigned to Judge Feinerman), and
17
See Quinn et al. v. JPMorgan Chase Bank, N.A. et al., No. 1:20-cv-04100-JSR (S.D.N.Y.) at Dkt Nos. 16
(Citibank Opp. to Fahmia’s Related Case Statement) and 17 (Union Bank Opp. to Fahmia’s Related Case
Statement).
18
See June 8, 2020 docket entries on S.D.N.Y. Docket Sheet for Quinn v. Signature (reproduced at MDL 2950 Dkt.
No. 98-4), June 9, 2020 docket entries on S.D.N.Y. Docket Sheet for Fahmia v. MUFG (MDL 2950 Dkt. No. 98-5),
June 9, 2020 docket entries on S.D.N.Y. Docket Sheet for Fahmia v. Citibank (MDL 2950 Dkt. No. 98-6).
19
See Ryan M. Kull et al. v. Chase Bank USA, N.A. et al., No. 1:20-cv-03138-NRB (S.D.N.Y.) at Dkt. No. 9
(JPMorgan June 4, 2020 Notice of Related Action identifying Quinn v. JPMorgan), Dkt. No. 10 (Quinn Plaintiffs’
Response), and Dkt. No. 11 (JPMorgan Reply). These filings were in the form of letters addressed to the Hon.
Naomi Reice Buchwald (presiding over the Kull action), with copies provided to Judge Rakoff. Judge Rakoff’s
chambers ultimately responded to JPMorgan’s counsel by email clarifying that Judge Buchwald had determined that
Quinn v. JPMorgan was not related to Kull and, “[a]ccordingly, the Quinn [v. JPMorgan] action, as well as three
other cases related to it … will remain with Judge Rakoff.”
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Respondent’s case, Winner v. PNC Financial Services Group, Inc., 1:20-cv-03515 (assigned to
Judge Pallmeyer). Given the high concentration of agents in the Chicago metropolitan area,
there are likely to be more cases filed in this district in short order.20
The district is well-suited to handle a large MDL. It has 30 district judges and 15
magistrate judges, with approximately 703 pending cases per judgeship,21 which is only slightly
over the national average of 675.22 The average time from filing to civil trial is 39 months,
which puts it at roughly the median nationally.23 There are currently seven MDLs pending in the
Northern District of Illinois,24 showing that it is well conditioned to handle MDL proceedings.
All three judges presiding over Related Cases in this district are very well-qualified to
oversee this MDL. Judge Edmond E. Chang has been a district judge for ten years, and has
handled many complex class actions.25 Judge Feinerman has likewise been a district judge for
ten years, and is currently overseeing the In re: 100% Grated Parmesan Cheese Marketing and
Sales Practices Litigation (MDL No. 2705). Judge Pallmeyer is the Chief Judge of the District,
and has been on the bench for over twenty years. She is currently overseeing the In re Zimmer
NexGen Knee Implant Products Liability Litigation (MDL No. 2272).
20
Bureau of Labor Statistics, https://www.bls.gov/oes/current/oes132011.htm#st (last visited June 17, 2020).
21
See Federal Court Management Statistics–Profiles, U.S. Courts (Mar. 31, 2019), available at
https://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0331.2020.pdf (hereafter, “FCMS
Profiles”) (last accessed June 17, 2020).
22
Id.
23
Id.
24
See https://www.ilnd.uscourts.gov/mdl-details.aspx?WNesDQBcWakSF/4TSCIYmQ== (last visited June 17,
2020).
25
See, e.g., Leung v. XPO Logistics, Inc., 326 F.R.D. 185 (N.D. Ill. 2018); Ploss as Tr. for Harry Ploss Tr. DTD
8/16/1993 v. Kraft Foods Grp., Inc., 431 F. Supp. 3d 1003 (N.D. Ill. 2020).
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Case MDL No. 2950 Document 194 Filed 06/18/20 Page 14 of 15
Finally, Chicago is unquestionably a major metropolitan area with ease of access to the
courthouse from two international airports. And it is centrally located, meaning it will be a
convenient location for parties and witnesses, should in-person travel resume.
V. Conclusion
For the forgoing reasons, we respectfully request that the Panel coordinate these actions,
and transfer them to Judge Rakoff in the Southern District of New York, or to Judge Chang,
Judge Feinerman, or Judge Pallmeyer in the Northern District of Illinois.
Dated: June 17, 2020 Respectfully submitted,
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
By: /s/ Jonathan D. Selbin
Jonathan D. Selbin
250 Hudson Street, 8th Floor
New York, New York 10013-1413
Telephone: (212) 355-9500
Facsimile: (212) 355-9592
Michael W. Sobol
Roger N. Heller
Anne B. Shaver
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
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Case MDL No. 2950 Document 194 Filed 06/18/20 Page 15 of 15
Gary Klinger
MASON LIETZ & KLINGER LLP
227 W. Monroe Street, Suite 2100
Chicago, IL 60606
Telephone: (202) 429-2290
Attorneys for Plaintiff David Winner
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