Court filing
RESPONSE IN OPPOSITION -- (re: pldg. ( 1 in MDL No. 2954), ( 2 in MDL No. 2954) )… — Agent Fee Litigation (Dkt. 25)
Summary
Plaintiff Seto Marselian's partial opposition, filed June 24, 2020 as Document 25 before the United States Judicial Panel on Multidistrict Litigation in In re: Wells Fargo Paycheck Protection Plan Litigation, MDL No. 2954, responding to DNM Contracting Inc.'s motion for consolidation and transfer under 28 U.S.C. § 1407. Marselian, plaintiff in Marselian v. Wells Fargo & Co., No. 3:20-cv-3166 (N.D. Cal.), supports consolidation of the eight Related Actions but asks that they be centralized in the Northern District of California rather than the Southern District of Texas. The filing argues that Wells Fargo is headquartered in San Francisco, that plaintiffs assert California-law claims for a California sub-class, and that the Northern District of California has more MDL experience. It asks for assignment to the Honorable Haywood S. Gilliam, Jr. and is signed by Bottini & Bottini, Inc.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
Case MDL No. 2954 Document 25 Filed 06/24/20 Page 1 of 7
BEFORE THE UNITED STATES JUDICIAL PANEL
ON MULTIDISTRICT LITIGATION
IN RE: WELLS FARGO PAYCHECK MDL No. 2954
PROTECTION PLAN LITIGATION
Plaintiff Seto Marselian’s Partial Opposition to the Motion of Plaintiff DNM
Contracting Inc. for Consolidation and Transfer Under 28 U.S.C. § 1407
Plaintiff Seto Marselian, d/b/a Bistro Pazzo, in Marselian v. Wells Fargo & Co.,
No. 3:20-cv-3166 (N.D. Cal.), respectfully submits the following partial opposition to the
June 9, 2020 motion of plaintiff DNM Contracting Inc. (“DNM”) to consolidate the
Related Actions (identified in Docket. No. 2) and to transfer them to the Southern District
of Texas for centralized pretrial proceedings under 28 U.S.C. § 1407:
• plaintiff Marselian supports coordination or consolidation of the Related
Actions for pretrial proceedings under Section 1407(a), because they involve
common questions of fact;
• plaintiff Marselian supports centralization in the Northern District of
California, where defendant Wells Fargo & Company (“Wells Fargo”) is
headquartered, and where the Marselian action and the Ma action are
pending;1 and
• plaintiff Marselian opposes centralization in any other district, including the
Southern District of Texas, because the Northern District of California is the
most convenient forum for the parties and witnesses and is the best situated to
ensure just and efficient conduct of the Related Actions.
1 Ma v. Wells Fargo & Co., No. 3:20-cv-3697 (N.D. Cal.), one of the eight Related
Actions identified in Docket No. 2.
1
Case MDL No. 2954 Document 25 Filed 06/24/20 Page 2 of 7
Accordingly, as discussed below, the Judicial Panel for Multidistrict Litigation (the
“Panel”) should enter an order:
(1) coordinating or consolidating the Related Actions for pretrial proceedings
under Section 1407;
(2) transferring all Related Actions to the Northern District of California; and
(3) denying DNM’s request to transfer any Related Actions to the Southern
District of Texas.
ARGUMENT
I. Coordination or Consolidation Under Section 1407 Is Proper Because
the Related Actions Involve Common Questions of Fact
Section 1407(a) permits coordination or consolidation of actions involving
“common questions of fact” for centralized management of pretrial proceedings in a
single district. See 28 U.S.C. § 1407(a). The Panel should order that separate cases in a
multidistrict litigation (“MDL”) be coordinated or consolidated for pretrial purposes, if
doing so would (1) avoid the possibility of inconsistent or conflicting rulings; (2)
“eliminate or reduce duplicative discovery”; and (3) “conserve the efforts and resources
of the parties, their counsel, witnesses, and the judiciary.” In re Imagitas, Inc., 486 F.
Supp. 2d 1371, 1372 (J.P.M.L. 2007).
Here, the Related Actions — all nationwide class actions commenced barely two
months apart — arose from the allegations that Wells Fargo violated the Coronavirus Aid,
Relief, and Economic Security Act and its attendant regulations. See, e.g., Marselian
Compl. ¶¶ 2–24. Specifically, each of the Related Actions raises questions regarding Wells
Fargo’s failure to properly process loan applications by small-business owners for funding
from the Paycheck Protection Program (“PPP”). Because the Related Actions involve
common questions of fact, coordination or consolidation is proper under Section 1407(a).
2
Case MDL No. 2954 Document 25 Filed 06/24/20 Page 3 of 7
II. Centralization in the Northern District of California Is Proper
Because Wells Fargo Is Headquartered in San Francisco, and Because
Plaintiffs Assert Claims Under California State Law and Allege a
California Sub-Class
Consideration of three undisputed facts weighs in favor of centralizing the pretrial
proceedings in the Northern District of California. First, Wells Fargo is headquartered in
San Francisco, where it was founded in 1852.2 California is not only Wells Fargo’s
founding place, but also its nerve center. Of Wells Fargo’s 5,300 bank branches across the
United States, over 970 are located in California. 3 (By comparison, only about 580 Wells
Fargo branches are located in Texas — where DNM filed its suit.)4 Because the Related
Actions arose from Wells Fargo’s policies and practices emanating from its corporate
headquarters in San Francisco, the Northern District of California is an “accessible forum,
relatively close to potential witnesses and evidence.” In re Vizio, Inc., Consumer Privacy
Litig., 176 F. Supp. 3d 1374, 1376 (J.P.M.L. 2016). Moreover, two of the Related Actions
— the Marselian action and the Ma action — are already pending in the Northern District
of California.
Second, in addition to asserting claims on behalf of a nationwide class of all PPP
applicants, plaintiff Marselian asserts claims under California’s consumer-protection
statutes (e.g., the California Consumer Remedies Act (“CLRA”), Unfair Competition Law
(“UCL”), and False Advertising Law (“FAL”)) on behalf of a subclass of small businesses
residing in California. See Marselian Compl. ¶¶ 88, 96–102, 113–140. The other two
Related Actions pending in the Central and Southern Districts of California also assert
2 History of Wells Fargo, available at https://www.wellsfargo.com/about/
corporate/history/ (last visited June 23, 2020).
3 ATM and Banking Locations, available at https://www.wellsfargo.com/locator/
(last visited June 23, 2020).
4 Id.
3
Case MDL No. 2954 Document 25 Filed 06/24/20 Page 4 of 7
similar claims under California law. See Karen’s Custom Compl. ¶¶ 67, 82–107 (alleging
a California sub-class and asserting claims under the CLRA, UCL, and FAL); BSJA Compl.
¶¶ 55–81 (asserting claims under the UCL and FAL). In light of these important claims
under California law and the existence of a California sub-class, centralization in the
Northern District of California will promote the efficient conduct of this litigation. See,
e.g., In re Activated Carbon-Based Hunting Clothing Mktg. & Sales Practices Litig., 840
F. Supp. 2d 1193, 1199, 1201 (D. Minn. 2012) (suggesting remand for cases raising unfair
competition and unjust enrichment claims under laws of multiple states) (citing In re
Light Cigarettes Mktg. Sales Practices Litig., 832 F. Supp. 2d 74, 77–78 (D. Me. 2011)
(suggesting for remand cases presenting “case-specific questions unique to the state law
of the[] respective jurisdictions”)).
Third, except for Texas, where two Related Actions are pending, the Northern
District of California has the highest number of the Related Actions than any other district
in this multidistrict litigation. See Dkt. No. 2 at 1–2. And each of the Related Actions —
all filed between April and June 2020 — is in its infancy. No efficiency will be gained by
transferring the Related Actions to the Southern District of Texas, which obtained
jurisdiction over DNM’s action through removal on May 22, 2020 — two weeks after
plaintiff Marselian commenced his action in the Northern District of California.
In light of these facts, the Northern District of California is the most convenient
forum for the efficient conduct of this multidistrict litigation. See Vizio, 176 F. Supp. 3d at
1376 (transferring all related actions to the Central District of California, where defendant
was headquartered). In In re Certainteed Corp. Roofing Shingle Products Liability
Litigation, for example, the Panel transferred all eight related actions to the district where
a common defendant was headquartered and two of the eight related actions — all
4
Case MDL No. 2954 Document 25 Filed 06/24/20 Page 5 of 7
nationwide class actions — were pending. See 474 F. Supp. 2d 1357, 1358 (J.P.M.L. 2007).
The operative facts here — two of the eight Related Actions are already pending in the
Northern District of California, where the common defendant, Wells Fargo, is
headquartered — compel the same result. See id. The Panel should therefore order that
all Related Actions be centralized for pretrial purposes in the Northern District of
California.
III. Centralization in the Southern District of Texas Would Be Improper
Because That District Lacks Substantial Experience in Handling
Complex MDL Actions
As demonstrated above, DNM does not — and cannot — meet its heavy burden to
demonstrate that centralization in the Southern District of Texas is appropriate, in light
of the fact that:
• Wells Fargo is headquartered in San Francisco;
• the claims involve California law and a California sub-class; and
• plaintiff Marselian commenced his action in the Northern District of California
weeks before the Southern District of Texas obtained jurisdiction.
See In re Transocean Ltd. Sec. Litig., 753 F. Supp. 2d 1373, 1374 (J.P.M.L. 2010) (“where
only a minimal number of actions are involved, the moving party generally bears a heavier
burden of demonstrating the need for centralization”).
But consideration of additional factors further weighs in favor of the Northern
District of California. Compared to the Southern District of Texas, the Northern District
of California has much more experience in handling multidistrict litigation. According to
the Panel’s statistics, the judges in the Northern District of California have managed 120
5
Case MDL No. 2954 Document 25 Filed 06/24/20 Page 6 of 7
MDLs.5 Currently, 20 MDLs are pending in the Northern District of California.6 By
comparison, only one MDL is pending in the Southern District of Texas (before the
Honorable Keith P. Ellison — not the Honorable Alfred H. Bennett, who is presiding over
DNM’s action).7 The Northern District of California also has substantial experience in
presiding over litigation involving Wells Fargo’s business practices. In fact, just last year,
the Northern District of California adjudicated In re Wells Fargo & Co. Shareholder
Derivative Litigation, Lead Case No. 3:16-cv-5541 (N.D. Cal.), a shareholder derivative
action arising from Wells Fargo’s “fake-account” scandal, approving a massive settlement
of $320 million.8 The related securities-fraud class action against Wells Fargo, also
adjudicated in the Northern District of California, was resolved in a $480 million
settlement.9
These facts weigh heavily in favor of transferring all Related Actions to the
Northern District of California. See, e.g., In re Imprelis Herbicide Mktg., Sales Practices
& Prods. Liab. Litig., 825 F. Supp. 2d 1357 (J.P.M.L. 2011) (favoring assignment “to an
experienced transferee judge who is willing and able to receive the assignment”); In re
Wesson Oil Mktg. & Sales Practices Litig., 818 F. Supp. 2d 1383 (J.P.M.L. 2011) (favoring
assignment to “an experienced transferee judge”).
5 MDL Statistics Report – Distribution of Pending MDL Dockets by District,
available at https://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets
_By_District-May-15-2020.pdf (last visited June 23, 2020).
6 Id.
7 Id.
8 See Kevin LaCrois, Massive Settlement in Wells Fargo Bogus Account Scandal
Derivative Suit, THE D&O DIARY, Mar. 3, 2019.
9 See Hefler v. Wells Fargo & Co., No. 3:16-cv-5479, Dkt. Nos. 234, 255 (N.D. Cal.).
6
Case MDL No. 2954 Document 25 Filed 06/24/20 Page 7 of 7
CONCLUSION
For the reasons set forth above, the Panel should enter an order pursuant to
Section 1407 consolidating or coordinating for pretrial proceedings all Related Actions in
the Northern District of California, San Francisco Division, before the Honorable
Haywood S. Gilliam, Jr. The Panel should deny the motion to transfer the Related Actions
to the Southern District of Texas.
Dated: June 24, 2020 Respectfully submitted,
BOTTINI & BOTTINI, INC.
Francis A. Bottini, Jr.
Albert Y. Chang
Yury A. Kolesnikov
s/ Francis A. Bottini, Jr.
Francis A. Bottini, Jr.
7817 Ivanhoe Avenue, Suite 102
La Jolla, California 92037
Telephone: (858) 914-2001
Facsimile: (858) 914-2002
Email: fbottini@bottinilaw.com
achang@bottinilaw.com
ykolesnikov@bottinilaw.com
Attorneys for Plaintiff Seto Marselian
in Marselian v. Wells Fargo & Co.,
No. 3:20-cv-3166 (N.D. Cal.)
7
File and source
- File
- gov.uscourts.jpml.1161957.25.0.pdf
- Size
- 153,919 bytes
- SHA-256
- 5b2711380d4d6c570206e1a471374a89f45171a17027ba235048c34e73be180f
- Original
- No public link identified.