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REPLY TO RESPONSE TO MOTION FOR TRANSFER re: pldg. ( 2 in MDL No. 2954), ( 1 in MDL… — Agent Fee Litigation (Dkt. 42)
Summary
A reply filed July 1, 2020 before the United States Judicial Panel on Multidistrict Litigation in In re Wells Fargo Paycheck Protection Plan Litigation, MDL No. 2954, by plaintiff DNM Contracting, Inc., as Document 42. The reply supports DNM's motion to transfer and consolidate the related actions in the Southern District of Texas under 28 U.S.C. § 1407. It states that five putative nationwide class actions allege that Wells Fargo failed to follow SBA rules for processing PPP loan applications, and argues that they share a common factual core despite Wells Fargo's objections. A footnote says the parties stipulated to remove two cases from the Schedule of Actions. The movant says it does not oppose transfer to the Central or Northern District of California. The five-page reply is signed by Alfonso Kennard, Jr., Kevin T. Kennedy and Eddie Hodges Jr.
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Case MDL No. 2954 Document 42 Filed 07/01/20 Page 1 of 5
BEFORE THE
UNITED STATES JUDICIAL PANEL ON
MULTIDISTRICT LITIGATION
IN RE WELLS FARGO PAYCHECK §
PROTECTION PLAN LITIGATION §
§
§ MDL DOCKET NO: 2954
§
PLAINTIFF’S REPLY MOTION IN SUPPORT OF THE TRANSFER OF ACTIONS TO
THE SOUTHERN DISTRICT OF TEXAS PURSUANT TO 28 U.S.C. § 1407 FOR
COORDINATION OR CONSOLIDATION
Plaintiff DNM Contracting, Inc. (“DNM” or “Movant”) in the Southern District of Texas,
respectfully submits this reply in support of Movant’s Motion to Transfer and Consolidate all
Related Actions to the United States District Court for the Southern District of Texas, pursuant to
28 U.S.C. § 1407 and Rule 6.2 of the Rules of Procedure of the Judicial Panel on Multidistrict
Litigation (“JPML”), as well as any tag-along actions or other cases that may be filed asserting
related or similar claims, for centralization of the actions for coordinated or consolidated pretrial
proceedings.
Under 28 U.S.C. § 1407(a), this Panel may transfer and consolidate civil actions when “one
or more common questions of fact are pending in different districts.” Movant explained in its
opening brief that each of the Related Actions’ arises within the context of Wells Fargo’s
administration of funds provided under the federal Paycheck Protection Program (“PPP”) that were
intended for small businesses. To date, there are already five (5) putative nationwide class actions
(collectively “Related Actions”) pending in various different districts including: California, Texas,
Colorado, and Florida. The Related Actions all involve common questions of fact and assert
substantially similar claims and legal theories against Wells Fargo Bank (“Defendants”).
Case MDL No. 2954 Document 42 Filed 07/01/20 Page 2 of 5
I. BACKGROUND FACTS ALLEGED IN THE RELATED ACTIONS
Defendants assert that individual factual issues predominate over alleged common fact
questions. However, each Plaintiff in the Related Actions contends Defendants violated state laws
and their fiduciary duties when they failed to implement and follow the Small Business
Administration’s (“SBA”) rules and regulations requiring, among other things, that applications
be processed on a “first-come, first-served” basis. Specifically, all actions allege that Defendants
intentionally or negligently engaged in wrongful conduct in approving (or denying) applications
for loans available through the federal Paycheck Protection Program (“PPP”), including favoring
or prioritizing applications in processing time or order.1
Each of the Related Actions seek relief for losses incurred by the wrongful conduct by
Defendants, including monetary damages and penalties, injunctive relief, as well as punitive
damages and declaratory relief. Each action also seeks certification of nationwide or state classes
of PPP applicants that were harmed by Defendants’ wrongful conduct. Moreover, each of the
Related Actions is at the same procedural posture. Each Related Action was filed within the past
sixty days. No answer or dispositive motion has been filed in any Related Action. Therefore,
Movants seeks the transfer and assignment of the Related Actions, which all seek a finding that
Bank of America violated state laws and their fiduciary duties when they failed to implement and
follow the SBA rules and regulations, as well as any actions subsequently filed involving similar
facts or claims.
1
Parties have stipulated to remove certain cases that have separate factual issues. Specifically, the parties have
stipulated that Full Compliance LLC, et al. v. Wells Fargo Bank N.A., et al., 20-cv-22339 (S.D. Fla.) and Ma v.
Wells Fargo & Co., et al., 3:20-cv-03697 (N.D. Cal.) should be removed from the Schedule of Actions in this
matter.
Case MDL No. 2954 Document 42 Filed 07/01/20 Page 3 of 5
II. ARGUMENT
A. The Related Actions Are Appropriate for Transfer and Pretrial Coordination under 28
U.S.C. § 1407.
Title 28, section 1407(a) of the United States Code provides, “when civil actions involving
one or more common questions of fact are pending in different districts, such actions may be
transferred to any district for coordinated or consolidated pretrial proceedings.” 28 U.S.C. §
1407(a). The MDL Panel “shall” make such transfers when in furtherance of “the convenience of
the parties and witnesses” and when transfer “will promote the just and efficient conduct of such
actions.” Id. Because of the number of current and anticipated cases and the existence of common
questions of fact, Movant contends that the requirements for transfer under section 1407 are easily
met here. The potential differences among the plaintiffs regarding their specific injuries and any
other case-specific issues do not nullify the common questions of fact. Indeed, any differences
regarding facts and state laws can be resolved through a consolidated master complaint.
Despite Wells Fargo’s assertions to the contrary. The remaining cases in the Schedule of
Actions share a “common factual core.” Each of the Related Actions allege that Wells Fargo Bank
intentionally or negligently engaged in wrongful conduct in approving (or denying) applications
for loans available through the PPP, including favoring or prioritizing applications in processing
order or time. Liability in each case will be determined by common evidence of Wells Fargo’s
requirements for the PPP program and how Wells Fargo conducted the program.2 Because of the
common Defendant (Wells Fargo), identical issues of fact, and the number of current and
anticipated claims, transfer and consolidation is most convenient for the parties and potential
witness common to these actions.
2
Consolidation will also prevent Wells Fargo from taking different positions in each case.
Case MDL No. 2954 Document 42 Filed 07/01/20 Page 4 of 5
B. The United States District Court for the Southern District of Texas is the Appropriate
Forum for this Litigation.
Transfer and consolidation to the Southern District of Texas will promote the effective
resolution of pretrial issues and the convenience of the parties and witnesses in all of the Related
Actions. The Southern District of Texas provides a central location in either Houston, Texas, a city
which is easily accessible by flight, and a courthouse that has the capabilities of handling these
litigation cases. The Southern District of Texas is a neutral forum that provides an accessible,
metropolitan location that is a convenient forum for consolidation. See, e.g., In re Circular
Thermostat Antitrust Litig., 370 F. Supp. 2d 1355, 1357 (J.P.M.L. 2005). Notwithstanding the
foregoing, Movant does not oppose transfer to either the Central District or Northern District of
California.
III. CONCLUSION
Transfer and consolidation for pre-trial proceedings of all pending and subsequently filed
Related Actions will promote the just and efficient conduct of these actions by allowing national
coordination of discovery and other pre-trial efforts, will prevent duplicative and potentially
conflicting pre-trial rulings, will reduce the costs of litigation, and allow cases to proceed more
efficiently to trial. For all of the foregoing reasons, Movant respectfully requests the Panel enter
an Order that the Related Actions be consolidated and transferred to the United States District
Court for the Southern District of Texas.
Dated: July 1, 2020
________________________________
Alfonso Kennard, Jr.
Texas Bar No. 24036888
Case MDL No. 2954 Document 42 Filed 07/01/20 Page 5 of 5
S.D. ID. 713316
2603 Augusta Drive, Suite 1450
Houston Texas 77057
713.742.0900 (Phone)
713/742.0951 (Fax)
Alfonso.Kennard@KennardLaw.com
Kevin T. Kennedy
Texas Bar No. 24009053
S.D. ID 305324
2603 Augusta Dr., Suite 1450
Houston, Texas 77057
(713) 742-0900 (main)
(713) 742-0951 (facsimile)
kevin.kennedy@kennardlaw.com
Eddie Hodges Jr.
Texas Bar No. 24116523
2603 Augusta Dr. Suite 1450
Houston, Texas 77057
Eddie.hodges@kennardlaw.com
ATTORNEYS FOR PLAINTIFFS
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