Court filing
Letter dated April (Dkt. 104, E.D. Pa.)
Filed June 12, 2026 in Docket PAED 589575, the only filing from this case in the archive.
Record facts
| Court | U.S. District Court for the Eastern District of Pennsylvania |
|---|---|
| Filed | 2026-06-12 |
U.S. District Court for the Eastern District of Pennsylvania · No. 5:21-cv-04337-JMG · Doc. 104 · 2026-06-12 · Docket on CourtListener
Full text
1622 Locust Street
Philadelphia, PA 19103
Tel: 215.274.9420
Fax: 304.342.1110
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April 29, 2024
Judge John M. Gallagher
United States District Court for the
Eastern District of Pennsylvania
Edward N. Cahn Courthouse & Federal Bldg.
504 W. Hamilton Street, Suite 4701
Allentown, Pennsylvania 18101
Re:
Marshall, et al. v. Prestamos CDFI, LLC, No. 5:21-cv-04337-JMG (E.D. Pa.)
Dear Judge Gallagher:
On behalf of the Plaintiffs, this responds to defendant Prestamos CDFI, LLC’s
(“Prestamos”) letter filed on April 26, 2024 (ECF No. 103).
First, Prestamos’s position once again pretextually seeks to blame Plaintiffs -- who are
drivers, home healthcare assistants, hair stylists, janitors, carpet cleaners, and housekeepers --
and the limited information they have and can produce in discovery, relative to the over $7.4
billion in PPP loans Prestamos processed and the nearly $1.2 billion in fees it obtained. This time
Prestamos’s pretext is that it inexcusably failed to pursue earlier the discovery it only recently
has sought, and thus disagrees with the deadlines set forth in the Court’s April 17, 2024
Scheduling Order (ECF No. 102). Again, Plaintiffs have not withheld any discovery based on
any objection to any of Prestamos’s discovery requests despite the overly broad scope of many
of those requests. Indeed, to date, and despite Plaintiffs’ “substantially less bargaining power in
the relationship” that Prestamos’s own case cites (and pursuant to which that court voided the
same release Prestamos relies on in this case; see Greathouse v. Capital Plus Financial LLC, No.
4:22-cv-0686-P, 2023 WL 5759250, at *15-16 (N.D. Tex. Sept. 6, 2023)), Plaintiffs have already
produced to Prestamos over 400 pages of documents; two sets of written responses and
objections to Prestamos’s separate requests for production of documents; and two separate
responses to Prestamos’s interrogatories.
Prestamos acknowledges that it has already subpoenaed its own bank, Evolve Bank, that
it used to disburse PPP loans; its own contractual loan service provider (“LSP”), Blueacorn, that
it used to help process the PPP loan paperwork process; and Plaintiffs’ banks. ECF No. 103 at 3.
Prestamos omits, however, that it issued those subpoenas only in February 2024 despite the
Marshall case was filed on October 1, 2021, the Drevnak case was filed July 20, 2023, the Court
never issued any stay on discovery in either case, and discovery has been open and ongoing since
those cases were filed. Prestamos issued these subpoenas only in the last weeks also despite the
fact that the Court issued its decision granting in part and denying in part Prestamos’s motion to
Lawrence J. Lederer
llederer@baileyglasser.com
Case 5:21-cv-04337-JMG Document 104 Filed 04/29/24 Page 1 of 4
Judge John M. Gallagher
Page 2
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dismiss more than one year ago. See Marshall v. Prestamos CDFI, LLC, No. 5:21-cv-04337-
JMG, 2023 WL 2727541 (E.D. Pa. March 20, 2023).
Prestamos also omits that it should be able to readily obtain bank funding records from its
own bank and its own LSP. Monthly account disbursement records at issue are only for the few
month period of PPP funding at issue in 2021. Prestamos likewise should be able to timely
obtain the records it seeks from its own contractual LSP, Blueacorn, for the less than two dozen
Plaintiffs at issue. In fact, as its LSP, Blueacorn was at all times relevant to the PPP acting under
the scope of Prestamos’s authority. See SBA Procedural Notice Control No. 5000-20091,
Second Updated PPP Lender Processing Fee Payment and 1502 Reporting Process (Feb. 8,
2021) at 7 (“If the Lender authorizes an Agent or Lender Service Provider (as those terms are
defined in 13 CFR § 103.1) to submit any information or make any entries or certifications on
the Lender’s behalf for any purpose through the [SBA Form] 1502 Dashboard or through any
other method of 1502 reporting, the Lender acknowledges that the Agent of LSP is acting within
the scope of Lender’s authority and Lender acknowledges responsibility for all information
submitted and entries and certifications made on its behalf.”) (emphasis added).
Prestamos also claims that it “still does not know the identity of all named Plaintiffs, as
Plaintiffs have indicated that they will be adding a new named Plaintiff when they file their
Amended Complaint.” ECF No. 103 at 3 (emphasis in original). But the Court’s Scheduling
Order sets May 1, 2024 as the deadline for Plaintiffs to file their amended complaint, and June
28, 2024 as the deadline for Phase 1 class certification fact and expert discovery. Plaintiffs intend
to abide by these deadlines, including by filing their amended complaint on May 1, 2024.
Prestamos does not explain why this is insufficient time for class certification discovery,
especially given it has already subpoenaed the banks of virtually all Plaintiffs, and the rest of the
information it seeks is from its own bank and LSP.
In sum, Prestamos’s failure to timely pursue the discovery it seeks does not justify any
extension to the Court’s Scheduling Order. In truth, Prestamos’s delay is what is really at issue.
Throughout this litigation, Prestamos has taken the position that it prefers a longer schedule for
discovery and all other deadlines. See, e.g., Drevnak, ECF No. 15 at Exhibit A (pp’s 15-17).
And in no event does Prestamos’s dissatisfaction with what documents and information Plaintiffs
have justify extending any of the deadlines the Court already set.
Second, Prestamos’s April 26, 2024 letter also pretextually and prematurely disputes
class certification. It contends “that there were a multitude of different situations responsible for
the named Plaintiffs not receiving deposits of PPP loan proceeds (or receiving deposits of PPP
loan proceeds only to have these deposits returned to Prestamos by their bank.).” ECF No. 103 at
2. It argues that discovery is needed as to these “different situations” under the commonality and
typicality requirements of Fed. R. Civ. P. 23(a)(2) and (a)(3).
Plaintiffs agree that the Court’s determination of class certification requires a “rigorous
analysis.” As this Court recently noted in Bombin v. Southwest Airlines Co., No. 5:20-cv-01883,
2023 WL 5832166, at *7 (E.D. Pa. Sept. 7, 2023) (citing In re Niaspan Antitrust Litig., 67 F.4th
118 (3d Cir. 2023)), this is so even if it “’overlap[s] with the merits of a plaintiff’s claim.’”
Case 5:21-cv-04337-JMG Document 104 Filed 04/29/24 Page 2 of 4
Judge John M. Gallagher
Page 3
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But Prestamos’s focus on bank funding and alleged returned loan proceeds is misplaced.
The test for typicality is not whether the plaintiff and class share the same claims, but rather
whether plaintiff’s claims arise from a similar course of conduct as the class. See, e.g., In re Nat’l
Football League Players Concussion Inj. Litig., 821 F.3d 410, 428 (3d Cir. 2016). Likewise, the
test for commonality is not whether all claims and defenses are the same, but instead whether the
claims are “sufficiently cohesive to warrant adjudication by representation.” Amchem Prods.,
Inc. v. Windsor, 521 U.S. 591, 623 (1997). Neither commonality under Rule 23(a)(2) nor even
predominance of common issues under Rule 23(b)(3) requires that the claims all be the same. To
the contrary, “[w]hen ‘one or more of the central issues in the action are common to the class
and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even
though other important matters will have to be tried separately, such as damages or some
affirmative defenses peculiar to some individual class members.’” Tyson Foods, Inc. v.
Bouaphakeo, 577 U.S. 442, 453-54 (2016) (quotation omitted; emphasis added). Further,
plaintiffs need not show at the class certification stage that they will prevail on the
predominantly common issues, but only that they can offer common evidence to prove their
claims. Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 459 (2013).
Individualized bank funding defenses would not defeat a finding of typicality,
commonality or predominance in this case even if they exist. The core factual and legal questions
that overwhelmingly predominate are shared equally by Plaintiffs and class members --
Prestamos’s failure to fund the loans, its false reporting to the SBA via the SBA Form 1502s that
it did fund the loans, its collection of loan processing fees anyway on those unfunded loans, and
the parties’ respective rights and obligations as a result, including that Plaintiffs and class
members still remain on the hook under the parties’ standard form loan document agreements to
pay back to Prestamos loan proceeds they never received, plus interest. The common evidence
Plaintiffs will offer to prove those claims include the standard form loan agreements and PPP
rules, and Prestamos’s SBA Form 1502 and PPP Pledge and Advance Request reports. Indeed,
since Prestamos falsely reported to the SBA in the 1502s that Plaintiffs’ and class members’
loans were funded when in fact they were not funded, any argument that an unsuccessful attempt
to fund the loans creates no material individualized issue, and should be precluded on grounds of
estoppel as a matter of law. In sum, Prestamos cannot fairly have it both ways -- obtain the loan
processing fees based on the false representations it funded the loans, but defend on grounds its
mere attempt to fund the loans immunizes it or means it complied with its obligation to fund the
loans.
Finally, Plaintiffs would be happy to participate in a status conference concerning the
Court’s Scheduling Order if and as the Court may determine. But nothing in Prestamos’s
submission justifies the several month extension it seeks. Plaintiffs’ position remains that
Plaintiffs intend to abide by all deadlines the Court sets.
Respectfully submitted,
/s/ Lawrence J. Lederer
Lawrence J. Lederer
Case 5:21-cv-04337-JMG Document 104 Filed 04/29/24 Page 3 of 4
Judge John M. Gallagher
Page 4
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cc: All ECF Recipients
Certificate of Service
I, Lawrence J. Lederer, hereby certify that, on this 29th day of April 2024 I caused a copy
of the forgoing to be served via the Court’s ECF system on all parties of record.
/s/Lawrence J. Lederer .
Lawrence J. Lederer
Case 5:21-cv-04337-JMG Document 104 Filed 04/29/24 Page 4 of 4File and source
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